NASHVILLE, Tenn. (June 13, 2017) – Last week, the Metropolitan Council of Nashville and Davidson County overwhelmingly passed an ordinance taking the first step toward limiting the unchecked use of surveillance technologies that violate basic privacy rights and feed into a broader national surveillance state.

Councilman Dave Rosenberg introduced ordinance No. BL2017-646 in March. The new law requires law enforcement agencies to get council approval by a resolution adopted after a public meeting before deploying or obtaining certain surveillance technology. Approval will be required before police can take the following actions.

(1) Installing unmanned surveillance technology onto or within the public right of way, unless the same type of surveillance technology is already in use by the entity; and  the number of new devices does not represent more than a fifty percent (50%) increase in the total number of devices of the same type already in use by the department, board, or commission seeking installation, as compared to the number of devices in use the time of this ordinance’s implementation or at the time of the last such approval by the Metropolitan Council, whichever is more recent.
(2) Entering into an agreement with a private entity to acquire, share or otherwise use surveillance technology or the information it provides if such agreement includes exchange of any monetary or any other form of consideration from any source, including the assessment of any additional fees, interest, or surcharges on unpaid fines or debts absent approval by the Metropolitan Council;
(3) Accepting state or federal funds or in-kind or other donations for surveillance technology;
(4) Acquiring new surveillance technology, including but not limited to procuring such technology without the exchange of monies or consideration; or
(5) Entering into an intergovernmental agreement regarding the installation of surveillance technology or use of the information it provides within the Dwight D. Eisenhower National System of Interstate and Defense Highways.

Surveillance technology covered by the ordinance encompasses a wide range of surveillance devises, including but not limited to:

(i) international mobile subscriber identity (IMSI) catchers and other cell site simulators; (ii) automatic license plate readers; (iii) closed-circuit television cameras; (iv) biometric surveillance technology, including facial, voice, iris, and gait-recognition software and databases; (v) mobile DNA capture technology; (vi) x-ray vans; (vii) video and audio monitoring and/or recording technology, such as surveillance cameras and wide-angle cameras; (viii) surveillance enabled or capable lightbulbs or light fixtures; (ix) tools, including software and hardware, used to gain unauthorized access to a computer, computer service, or computer network; (x) social media monitoring software; (xi) through-the-wall radar or similar imaging technology; (xii) passive scanners of radio networks; (xiii) long-range Bluetooth and other wireless-scanning devices; and (xiv) radio-frequency I.D. (RFID) scanners. The enumeration of surveillance technology examples in this subsection shall not be interpreted as an endorsement or approval of their use.

The ordinance passed Tuesday by a 25-2 margin.

“There’s always that balance between privacy and security, and right now privacy is being completely ignored and this will restore some balance to that,” Rosenberg told News Channel 5.

Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. The federal government often provides grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.

As put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The new Nashville ordinance will prevent local police from obtaining technology without public knowledge, and provide an avenue for concerned residents to oppose and stop the purchase of spy gear.

Impact on Federal Programs

Information collected by local law enforcement undoubtedly ends up in federal databases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S. In return, it undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

The new Nashville ordinance takes an important first step toward limiting the use of surveillance technology in the city.

Mike Maharrey

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