SAN DIEGO, Calif. (Aug 11, 2022) – Last week, the San Diego City Council passed an ordinance that will create some oversight and transparency for surveillance programs. But the council bowed to police pressure and created a loophole by exempting local cops serving on federal task forces.

The ordinance drafted by the Trust SD Coalition and sponsored by Councilwoman Monica Montgomery Steppe requires San Diego police and other city government departments to submit a Surveillance Impact Report and a Surveillance Use Policy to a privacy advisory board made up of community leaders and tech experts before acquiring or using surveillance technology. Based on advisory board findings, the city council must give final approval after a public hearing before surveillance tech can be acquired or deployed. Surveillance programs will also be subject to an annual review.

The push for surveillance oversight began two years ago after revelations that the city’s new “energy-efficient” streetlights came equipped with cameras and microphones.

While the ordinance doesn’t ban surveillance technology, its passage takes the first step toward ensuring surveillance technology is operated with transparency and oversight in San Diego. It will also give residents a say in the process and provides an avenue to limit the proliferation of surveillance technology.

“Oversight and transparency is a tool for communities for making sure they get to have a say,” Lilly Irani, a professor at UC San Diego and member of the TRUST SD Coalition told Gizmodo. She added that for San Diegans, the goal isn’t merely giving subject matter experts a chance to chime in. “I see this as a tool for organizing and practicing democracy over technology, rather than just making sure experts get to advise the council.”

The new law contains a big loophole that was inserted in June under pressure from San Diego Police Chief Dave Nisleit. The council voted 5-4 to include new language that exempts police officers working on federal task forces from the oversight and transparency requirements.

Nisleit claimed the ordinance would require him to remove his officers from federal task forces due to non-disclosure agreements. The police chief cited 16 non-disclosure agreements with the FBI.

“Based on the fact that the non-disclosure agreement would be null and void, I believe I have no choice but to remove my officers from task forces,” he said. “Anything that reduces relationships with state-local or local and federal partners is not wise.”

As Tenth Amendment Center Michael Boldin noted in a tweet, “In Missouri, law enforcement fought tooth and nail to oppose the 2nd Amendment Preservation Act – because they want to keep participating on “joint task forces” with the ATF. After 8 years, they lost. In San Diego, a 5-4 vote allows cops to continue on FBI task forces for spying.

The capitulation by the city council reveals the power of the national surveillance state and how local law enforcement feeds into it.

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.”

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 levels 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 levels.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information.

Mike Maharrey