We Are Being Watched

Our fear of another 9/11 resulted in the erosion of our privacy rights. And now our fear of crime is pushing the surveillance state to a whole new level.

It’s been a dozen years since three jetliners hurtled into the World Trade Center in Lower Manhattan and the Pentagon, leaving 2,996 people dead, injuring 6,000, and setting the stage for more than a decade of American war and occupation in Central Asia and the Middle East. The events on September 11 also resulted in the fundamental alteration of American society: Our international borders are now lined with additional fences, security cameras, and thousands of new Border Patrol agents as drones sweep the skies above. And the National Security Agency — first under President George W. Bush and now under President Barack Obama — routinely collects our phone records and emails and monitors our Internet activity.

Our government, in short, has increasingly infringed on our privacy rights and our civil liberties as part of the so-called War on Terror. And our nation, scarred by the fear of more terrorist attacks, has allowed it to happen. From Congress’ easy passage of the Patriot Act to the mandatory use of biometrics to identify welfare recipients to the storing of arrestees’ DNA in dozens of states — including California — regardless of whether they were convicted of a crime or not, these changes have penetrated every aspect of our relationship with government.

And now many local public agencies — backed by generous funding from the US Department of Homeland Security, an agency established to fight terrorism — are taking government surveillance to a new level: They’re installing high-resolution surveillance cameras on street corners, buying license plate readers to monitor people’s movements, and building large “intelligence centers” to collect and analyze data.

And they’re doing it not to protect residents from the new threats posed by terrorists in the 21st century, but to combat an age-old societal fear: crime.

“Since 9/11, we’ve seen a huge shift with justifications and implementations,” said Linda Lye, a staff attorney with the American Civil Liberties Union of Northern California. Lye has emerged as one of the sharpest critics of law enforcement surveillance programs, speaking out against both the Alameda County Sheriff’s proposed purchase of drones earlier this year and Oakland’s sweeping new surveillance center. “On one hand, we’ve got the need to fight terrorism, but what we see on the ground is purportedly anti-terrorist strategies being deployed in fairly mundane ways that alter the relationship between the community and the government.”

For example, there are now dozens of so-called “fusion centers” — intelligence centers initially set up by Department of Homeland Security for counter-terrorism purposes that are now migrating toward an “all-crimes” focus — across the country, including in San Francisco, where the Northern California Regional Intelligence Center (NCRIC) is located. Law enforcement agencies around the region feed information to NCRIC through a system called Suspicious Activity Reporting, and each department has at least one “terrorist liaison officer” tasked with delivering potentially actionable information to the fusion center. There is also a strong connection between the expansion of the government’s surveillance apparatus and the War on Drugs: NCRIC shares personnel and office space with the Northern California High Intensity Drug Trafficking Area, a federal counter-narcotics effort that brings federal resources — including aspects of the US military — to bear on drug trafficking and drug-related crime.

The East Bay, long known for its progressive values, is not exempt from this trend. Years of spiraling crime in Oakland have provided the impetus for a rapid expansion of the surveillance and intelligence-gathering capabilities of area law enforcement. This summer’s furor in Oakland over the construction of the Domain Awareness Center — a federally funded, citywide surveillance hub originally intended as an anti-terrorism tool for the Port of Oakland — is only the most overt manifestation of this trend. Cities as divergent as Piedmont, Richmond, and San Leandro have turned to surveillance systems that were designed originally to fight terrorism in order to deal with the threat — real or perceived — of violent crime.

At the same time, the rush by local governments to add new ways to keep tabs on citizens is being accompanied by virtually no oversight — and no laws designed to prevent abuses. The plethora of new surveillance programs is also raising questions about whether our local governments may soon have the ability to monitor our daily movements, using street cameras and license plate readers to track us from the time we leave our homes in the morning to when we return home at night — and whether such continual surveillance violates our constitutional rights. In addition, at least one high-ranking staffer in the City of Oakland has expressed the desire to use electronic surveillance to monitor political activity.

In other words, the privacy rights and civil liberties we’ve given up since 9/11 to fight the War on Terror are being further eroded in the Fight Against Crime.

The Domain Awareness Center — Oakland’s planned surveillance hub that is being designed to collect data from at least 150 city and port cameras, 40 license plate readers, gunshot detectors, alarm notifications, and intelligent video programs — is the broadest surveillance project in the region and has attracted the most criticism. Funded entirely through federal grant money and being built on a contract by Science Applications International Corporation (SAIC) — a defense contractor with a record of making shoddy products; producing cost overruns; and defrauding municipal, federal, and foreign governments — the surveillance center has also attracted heavy criticism for its lack of privacy or data retention policies, as well as for its plans to incorporate cameras from the Oakland Unified School District, the Oakland Coliseum, and freeways.

But expanded electronic surveillance has also garnered widespread support from city residents who are fed up with crime and are willing to trade their privacy rights and civil liberties for the chance of being safer — much as Americans have done throughout the past decade in the fight against terrorism.

“People who probably in a ‘normal’ or less fearful crime-ridden situation would not think about wanting more cameras, but in the reality of today, I’m getting people saying, ‘Can’t we get more cameras in these places?'” said Dan Kalb, who represents North Oakland (one of the city’s less crime-impacted neighborhoods) on the city council. “They want to be able to walk back from BART to their homes — four blocks — without fearing having to do it. People are taking cabs from Rockridge BART home. It’s a shame that it’s gotten to that point.”

While much of the official rhetoric about the surveillance center has revolved around Oakland’s high crime rate, a substantial body of research reveals that video surveillance does not impact violent crime. In London, where there are 4.2 million surveillance cameras, police studies last decade concluded that the expansion of the surveillance state had not resulted in decreased crime.

Furthermore, video surveillance by law enforcement raises concerns about racial profiling. In Lansing, Michigan, an independent study of surveillance cameras concluded that black residents were twice as likely to be under continual surveillance than white residents.

Oakland’s surveillance center also will likely make use of the cameras that belong to regional transit agencies. Documents prepared by SAIC for the Oakland City Council indicate that traffic cameras along regional freeways and exits belonging to Caltrans and the Metropolitan Transportation Commission are targets for inclusion in the surveillance center. Cameras in the city’s eight BART stations are also likely to be included. A little-noticed provision of AC Transit’s Bus Rapid Transit plan for International Boulevard is the installation of video cameras at each BRT station along the thoroughfare, turning East Oakland’s main artery into one of the most heavily monitored streets in the city. It is not clear whether AC Transit cameras will be included in the surveillance program as well.

Another surveillance technology that has been widely adopted in the Bay Area is Automated License Plate Readers, which use infrared optical character recognition software paired with cameras, which are either mounted on vehicles or installed at fixed locations. The devices can log thousands of license plates during an eight-hour patrol shift. At least 32 law enforcement agencies use plate readers in the Bay Area, including the Alameda County Sheriff’s Office and the Berkeley, Oakland, San Leandro, Fremont, and Livermore police departments. The Metropolitan Transportation Commission, which operates seven major bridges in the Bay Area, also uses plate readers to record toll violators, and has amassed hundreds of millions of records since 2005.

The Northern California Regional Intelligence Center also signed a $340,000 agreement with the Silicon Valley firm Palantir last year to construct a database of license plate records flowing in from police using the devices from fourteen counties, running from California’s Central Coast to the Oregon Border. The Center for Investigative Reporting revealed the existence of this database earlier this summer. According to contract documents, the database will be capable of handling at least 100 million records and be accessible to local and state law enforcement across the region, including federal authorities. To date, San Leandro, Milpitas, Daly City, and San Francisco police have memoranda of understanding with NCRIC, while Oakland, the CHP, Walnut Creek, Alameda, and Piedmont also participate in the program.

License plate readers are valued by law enforcement for the detail they provide about people’s movements. And because there are no laws concerning how long these data can be stored, law enforcement agencies have an incentive to keep such records in perpetuity — as is the case in Berkeley, Oakland, and Fremont. The Alameda County Sheriff’s Office retains its license plate records for five years. However, there are not only doubts about the value of retaining such revealing records for long periods of time, but also questions about the impacts on privacy rights. The California Highway Patrol, which uses more than one hundred plate readers statewide, retains license plate scans for sixty days and then deletes them if they are not linked to a criminal investigation. CHP documents state that “indefinite retention of LPR data can be counterproductive … can contribute to priva[cy] concerns,” and “increase the risk of misuse or accidental disclosure.”

The fear of crime spilling over from Oakland has been the impetus behind the rapid deployment of surveillance cameras and license plate readers in neighboring cities. This June, the Piedmont City Council approved a plan to spend approximately $700,000 to install 39 cameras equipped with license plate readers along the wealthy enclave’s borders with Oakland. Piedmont’s plan is not the first of its kind; in 2010, Tiburon set up plate readers on the two roads leading in and out of town. Piedmont Police Chief Ricki Goede pointed to a 50 percent increase in burglaries (from 90 in 2011 to 135 in 2012) in the town of 11,000 residents as the justification for turning to heightened electronic surveillance.

Oakland’s neighbor to the south, San Leandro, is considering a pilot project proposed by Police Chief Sandra Spagnoli to set up two surveillance camera installations of four to seven cameras and one license plate reader each at crime “hot spots” around the city. The surveillance cameras will not be monitored live, unlike Oakland’s system. San Leandro police currently have surveillance cameras at city hall and the police station, as well as three vehicles equipped with license plate readers. SLPD also has access to the city’s red light cameras and eighty traffic cameras — but the city’s video networks are not linked.

The San Leandro City Council reviewed the camera proposal last week, and Chief Spagnoli cited Oakland’s high crime rate and the potential for Oakland’s Domain Awareness Center to displace crime into neighboring cities as the rationale for increasing San Leandro’s surveillance capabilities. Councilman Michael Gregory, an Oakland native, questioned Spagnoli about her assertion that crime displacement could occur rapidly. “The displacement of crime from some of the traditional areas from West Oakland to East Oakland took decades,” Gregory said. “How long do you think it will take this displacement to happen now?”

“I don’t think it’s going to take very long to displace their [Oakland’s] crime,” said Spagnoli. “We need to get out in front of this before this 150-camera system comes to Oakland,” she added.

While the San Leandro City Council voted 5-2 to allow Spagnoli to proceed with the project and draw up a budget for review, councilmembers acknowledged the privacy concerns of residents who spoke out against the cameras and plate readers. Vice Mayor Jim Prola openly questioned the need for San Leandro to retain license plate records for a year, verbally sparring with Spagnoli and asserting his preference for revising the city’s policies to keep video and license plate records for only ninety days. Other councilmembers voiced their preference for an external audit of SLPD license plate records, and restricting retention periods. Mayor Stephen Cassidy, who voted against approving SLPD’s project, pointedly asked Spagnoli whether SLPD would use facial recognition software with the surveillance system.

“Facial recognition is part of the future of public safety,” Spagnoli replied after asserting that SLPD didn’t currently have that technology. Cassidy then stated he would seek to bar SLPD from using such technology when the department’s video policy came up for review.

Contra Costa County cities are also using wide-scale video surveillance systems under the rubric of fighting both crime and terrorism. Richmond Police operate a 42-camera system that is monitored by retired police officers for 12 to 16 hours per day, while the Port of Richmond has 82 networked cameras equipped with motion- and image-recognition software. Pittsburg Police can monitor the city’s 89 cameras live on their smartphones. Three-quarters of the city of San Pablo are monitored by surveillance cameras, license plate readers, and ShotSpotter gunshot detectors; most of the cameras are concentrated on Market Avenue and Rumrill Boulevard, which abut neighboring Richmond. The plan was approved by the city council in June, and will cost $900,000 over the next three years.

Oakland’s Domain Awareness Center also has another purpose: to keep tabs on large political protests, which have become common in recent years. Renee Domingo, Oakland’s director of Emergency Services and one of the city’s point people on the surveillance center, wrote in an industry publication last month that “Oakland’s long history of civil discourse and protest adds to the need” for the surveillance center, citing more than thirty demonstrations in recent years that have required a police presence.

Oakland Councilman Kalb took issue with Domingo’s characterization that one of the purposes of the surveillance center was to track political protesters, and vowed to establish guidelines that would bar such actions. “This should not be for surveillance of people’s legal political activities,” Kalb said. “If there needs to be something explicit in the privacy policy to state that, which should be obvious, then we will make it say that.”

But the City of Oakland has a long history of using covert operations to keep an eye on demonstrators. In the run-up to the 2003 anti-Iraq War demonstration at the Port of Oakland — which ended in a barrage of police projectiles being fired at demonstrators and arrests that cost the city $1 million in legal settlements — a state anti-terrorism information center distributed intel to Oakland police about demonstrators that conflated the monitoring of terrorist activities with keeping tabs on political protesters. The Oscar Grant protests of 2009 and 2010 also elicited large turnouts of police, as well as federal and state law enforcement, who recorded demonstrations, infiltrated meetings, and mingled with crowds while undercover. And the new trend toward expanded electronic surveillance will enhance the ability — and proclivity — of local law enforcement to track and monitor political activity.

The current technology available to law enforcement — surveillance cameras, license plate readers, location data provided by cellphone companies and through social media — also allows authorities to create a very detailed portrait of an individual’s movements and associations. Unified surveillance systems like Oakland’s surveillance center and NCRIC’s database of license plate information from across Northern California create an environment where your movements could become an open book. “If a networked system of cameras has access to your movements, it can tell a tremendous amount about you,” said Jennifer Lynch, a staff attorney at the Electronic Frontier Foundation who works on surveillance issues. “If cameras are photographing you whenever you leave your apartment, your doctor’s office, your political meetings, suddenly the government has a record of your movements, and that says a lot.”

Both Oakland’s surveillance center and NCRIC’s license plate reader database will provide law enforcement with access to locational data for vehicles, as well as live feeds from cameras. If Oakland’s center negotiates agreements with the MTC, Caltrans, BART, and AC Transit, it will also have the capability to access the license plate readers and traffic cameras mounted on the Bay Bridge and along local freeways, as well as security cameras in BART stations and train cars.

The MTC also retains fare data for users of its Clipper card, which is equipped with a radio frequency identification chip. More than one million transit riders in the Bay Area use Clipper, whose user data is digitally stored and available for seven years even after a rider closes his or her account. Clipper data is available to law enforcement pursuant to a warrant or subpoena. While some restrictions were established in 2010 by the California legislature on sharing individual locational data retained by FasTrak fare devices, no such limits exist for Clipper cards.

From a legal standpoint, there is also a great deal of uncertainty about the limits on electronic surveillance by the government. In January 2012, the US Supreme Court unanimously ruled in U.S. v. Antoine Jones that law enforcement couldn’t install a GPS tracker on a vehicle without a warrant. In her concurring opinion, Justice Sonia Sotomayor wrote that the use of such technology by the government might chill “associational and expressive freedoms.”

Sotomayor also cautioned against surveillance without checks and balances: “I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.'”

However, surveillance from security cameras and license plate readers may fall under a different legal category from GPS devices because the technology is used to monitor people and vehicles in public spaces. And in 1967, the high court ruled in U.S. v. Katz that the public does not have a reasonable expectation of privacy when in public places.

Locally, there are signs of pushback against the expansion of post-9/11 security policies. Last year, the Berkeley City Council approved a package of reforms designed to block some of the intrusions by the federal government into local law enforcement. Berkeley police, for example, now will not keep immigrants in custody simply because they’re wanted by Immigration and Customs Enforcement. The reforms also restrict police from gathering intelligence on people engaged in non-violent, non-felonious civil disobedience, and they bar BPD from submitting Suspicious Activity Reports to the Northern California Regional Intelligence Center unless there is reasonable suspicion that someone has committed or intended to commit a crime.

Suspicious Activity Reporting is a national initiative set up after 9/11 to encourage the reporting to law enforcement of individuals engaged in suspect behavior. SARs have long been criticized by civil libertarians, who maintain that law enforcement has lowered the bar for such reports below that of criminal activity, resulting in the targeting people of color and those involved in First Amendment activity.

“We know with federal programs like SAR that it encourages racial and religious profiling because the guidelines are so vague that they allow and encourage law enforcement to report anyone they don’t like as suspicious,” said Lye of the ACLU. A leaked 2011 SAR report from the Seattle police illustrated Lye’s point: a black man seen photographing municipal buildings in downtown Seattle elicited enough concern from SPD to classify his actions as “highly suspicious” and document the route he took to drive into downtown Seattle — even though he had done nothing wrong.

A March report by the Government Accountability Office also faulted the SAR program for not developing any benchmarks to demonstrate tangible results of this reporting. In other words, Suspicious Activity Reporting is a blanket intelligence-gathering system that includes no way of determining whether the information it yields has any use.

Nadia Kayyali, a San Francisco defense attorney who worked with the Board of Rights Defense Committee and several organizations under the umbrella group Coalition for a Safe Berkeley to advance the Berkeley reforms, pointed to their successful passage as evidence that local governments can determine their own involvement in anti-terrorism programs that threaten civil liberties. “Suspicious Activity Reporting seems so esoteric and far away that it doesn’t seem like change can happen here,” Kayyali said. “But now, Berkeley is the only locality in the entire country with limitations on SARs.”

Berkeley’s long history of political activism and the city’s relatively low crime rate also played major roles in the passage of the reforms. Kayyali believes that Oakland’s political environment is “toxic” due to a combination of fear over crime and self-defeating, oppositional organizing by radicals who “treat anyone on the council like they’re garbage” rather than building political alliances. She pointed to the success of the activist group Alameda County Against Drones in working with proponents of realignment and immigrants rights on the Alameda County level, which resulted in the strong turnout by their allies at a February 14 hearing of the Alameda County Board of Supervisors concerning Sheriff Ahern’s proposed drone purchase. Ahern backed off his plan after considerable opposition from community groups, which were reflected in Supervisor Richard Valle’s concluding comments after the meeting.

“I have real concerns about the Bill of Rights, particularly the Fourth Amendment, and the people’s rights to privacy. And those to me are paramount and there will always be a need for technology,” said Valle at the end of the hearing last winter. “However, with regard to this particular technology, you have to weigh the cost benefits, you have to weigh the cost going forward with regard to the constitution, and I know that sometimes lives can be at risk or at jeopardy, but that’s always been the case in our history as a country.” 


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