BOSTON, Mass. (Nov. 2, 2021) – The Boston City Council recently approved an ordinance that sets the stage to limit the acquisition and use of surveillance technology by law enforcement and other city agencies. The law will also help limit the impact of the federal surveillance state.
Councilors Ricardo Arroyo and Michelle Wu sponsored the ordinance. It was initially filed by acting Mayor Kim Janey when she was District 7 councilor. Under the law, the Boston Police Department will have to get council approval before acquiring or using new surveillance technology. It will also have to get approval before using existing technology in a new way.
The ordinance includes a long list of surveillance technology that will be subject to the requirements, including ALPRs, cameras, electronic toll readers, social media monitoring software, stingray devices, RFID scanners, gunshot detection devices, computer hacking technology and more.
Provisions in the ordinance also limit information-sharing between all “information-gathering agencies.” The law specifically prohibits information-sharing between law enforcement and the Boston Public School system except in emergency situations.
The ordinance establishes two new city commissions to provide oversight for surveillance programs — the Surveillance Oversight Advisory Board and the Surveillance Data Privacy Working Group,
The council unanimously passed the ordinance on Oct. 21. It still needs final approval from acting Mayor Janey before it goes into effect.
While it doesn’t ban surveillance technology, the passage of the ordinance takes the first step toward ensuring surveillance technology is operated with transparency and oversight in Boston. It also gives residents a say in the process and provides an avenue to limit the proliferation of surveillance technology.
ACLU of Massachusetts Executive Director Carol Rose praised the passage of the ordinance in a statement.
“Far too often, police departments obtain invasive, costly surveillance equipment in secret and without any oversight. This ordinance flips that script, ensuring local residents remain in control of their own communities.”
The ordinance was based on CCOPS model legislation developed by the ACLU with input from the Tenth Amendment Center. Boston joins more than 20 Massachusetts jurisdictions that have imposed similar rules.
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 privacysos.org 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.”
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 fusion centers and a system known as the “information sharing environment” or ISE.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. 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. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
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.
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