California needs to better regulate surveillance

In recent years, local California police agencies have eagerly implemented Automated License Plate Readers, or ALPRs, for local use. Heralded by proponents, these cameras capture images of passing cars and store them on a database to be shared among officers and other agencies for the purpose of parking enforcement and tracking stolen vehicles. As these tools become more commonplace, they present a unique challenge to civil liberties.

With the growing influence of surveillance techniques, it is important to examine the efficacy of automated systems. These plate readers are liable to relay false positives to officers, and this can have potentially lethal consequences. There have been cases when an ALPR camera has misidentified a car, and officers acting upon that information conducted a detention of the driver at gunpoint. When there is insufficient oversight, government surveillance used in this manner can quite literally endanger lives.

Beyond illustrating the wrongness of the sentiment that supposes, “If you’re doing nothing wrong, you have nothing to fear,” similar events show that the risk posed by government surveillance exceeds privacy concerns alone. There currently are and always have been real and material consequences of state surveillance that place the physical wellbeing of individuals at risk.

When police are told by autonomous surveillance systems that a particular person is a criminal, police may be liable to forgo old-fashioned detective work and, instead, presume the person’s guilt. This presumption can cost lives. As “predictive policing,” which makes use of predictive statistical modeling to identify criminal activity, becomes more prevalent, the people should have the assurance that their police departments are interrogating the accuracy of their technology. The people should have the guarantee that automated surveillance systems are not using or relaying to officers tainted or biased data. As the great American hero Edward Snowden pointed out, “The people looking at this data are looking for criminals. You could be the most innocent person in the world, but if somebody programmed to see patterns of criminality looks at your data, they’re not going to find you – they’re going to find a criminal.” This assurance that police are utilizing fair and accurate data, however, is impossible without more public transparency.

What is worse is the lack of oversight that citizens have over their police departments. Many law enforcement agencies do not audit themselves nor do they publish reports testifying to the efficacy of their surveillance technologies. Few municipalities have policies in place to effectively mitigate misuse of collected data.

According to Berkeley’s own Administrative Order 001-2016, which pertains to ALPRs specifically, data may be stored for up to a year, but this order did not include a requirement to make this data available for an audit.

Even within the California Bay Area alone, there are other cases of ALPRs and other surveillance mediums misidentifying people. Mike Sena, executive director of the Northern California Reginal Intelligence Center, which facilitates automated license plate readers, has attested to the fact that these systems misidentify 1 out of every 10 cars it places a “hit” on.

Recognizing the potential misuse of surveillance has become even more important in the time of Donald Trump’s presidency. Surveillance has historically posed a risk to communities of color. A particular concern pertains to Immigration and Customs Enforcement, or ICE, which frequently relies on local law enforcement and maybe even their surveillance capabilities.

In 2018, a year that saw ICE crackdowns in California despite its sanctuary state status, it was found that BART had sent information relating to 57,000 license plates to an intelligence center, which partners with ICE and other federal agencies. These practices undermine the principles of federalism by going outside of the separation of powers between the state and the federal government. While local police departments are to abide by local “sanctuary state” laws, which forbid them from directly helping enforce federal immigration laws, federal authorities have previously found themselves as beneficiaries of locally obtained surveillance data. The habitual pattern of ICE mistakenly deporting U.S citizens or detaining documented immigrants may only get worse under the current administration’s efforts to ramp up deportations, as ALPR networks can track marked cars in real-time in addition to identifying traveling patterns of vehicles.

According to documents made available by the Electronic Frontier Foundation, police in New York have increased surveillance of cars parked near a mosque. Data from the Oakland Police Department showed that license plate readers were disproportionately dispatched in low-income communities and communities of racial minorities. This can create a “chilling effect” on the freedom of expression of minority groups. And it can reinforce already stigmatized communities by creating a “feedback loop” in which police are repeatedly sent to a particular neighborhood regardless of that neighborhood’s true crime rate.

It remains clear that additional reforms and citizen oversight are needed over local use of surveillance technology. Despite this, the United States is witnessing a shift in terms of government surveillance policies. Tech companies have responded to market demand for increased digital safety — some notable examples include Apple’s refusal to create “backdoors” for the government and the proliferation of encryption applications on digital smartphone stores.

Elements of the mass surveillance of private phone calls authorized by the Patriot Act at the federal level ended, and domestic efforts to reform surveillance technology continue to make meaningful change. In 2018, the city of Oakland pioneered what the internet civil liberties group Electronic Frontier Foundation called “the new gold standard in community control of police surveillance” with its draft of the Surveillance and Community Safety Ordinance. In addition to requiring city council approval before a city entity may acquire surveillance technology, it also includes comprehensive reporting and audit mandates for the technologies, whistleblower protection and a requirement of a civil liberties impact assessment. Since then, the Californian cities of Berkeley, Davis and Palo Alto have used Oakland’s ordinance as a template to craft their own policies.

As more governments adopt such policies, each of these victories demonstrates that we, as a society, should protect the values enshrined within the Bill of Rights. Maintaining the police state under the guise of “public safety” is not a fair trade for sacrificing our freedom.

Jonathan Hofer is a senior studying political science at the University of California, Berkeley.