OAKLAND — Since it was launched in 2016, the Oakland Privacy Advisory Commission has helped guide city departments in using surveillance technology for public safety without abusing people’s privacy and civil rights.
But that balancing act is being disrupted by the Oakland Police Department, according to a lawsuit filed this week by the commission’s chairman.
The suit alleges the police department has undermined the commission’s work by failing to provide it with needed information and letting the FBI access license plate reader data.
“Police surveillance technologies may help reduce crime but they also pose a clear and present threat to the civil liberties of the citizens of Oakland,” states the lawsuit filed Thursday in Alameda County Superior Court by Brian Hofer. In addition to being the commission’s chairman, Hofer is the founder of Secure Justice, a nonprofit that advocates against state abuse of power.
Hofer alleges the police department and the city attorney’s office violated the city’s surveillance technology vetting ordinance, the city charter and multiple state laws involving the use of surveillance technology and public records access.
Representatives for both the police department and the city attorney’s office declined to comment about the lawsuit.
Like other police departments, Oakland’s uses automated cameras to read the license plates of cars driving in certain areas of the city so it can match the numbers with whatever data it has about the vehicles — such as whether they’re stolen — to help solve crimes. The cameras’ GPS technology records where and when a car was seen.
Under a city policy enacted in 2016, the police department is supposed to store the license plate data for only six months and must follow protocol when sharing data with outside parties.
But Hofer alleges that at a privacy commission meeting last month, police department representatives confirmed that since the beginning of 2019 they started retaining data for two years, with the city attorney’s OK.
Police also acknowledged at that meeting they had been giving the FBI “unfettered access” to the license plate data in violation of the city’s policy, the lawsuit alleges.
The suit also accuses the police department of failing to audit the use of its surveillance technology, as required by city policy, and of not providing information that Hofer requested under the state’s public records act.
“OPD is making it impossible for (the privacy commission), and, by extension, the City Council, to perform its oversight function to protect the citizens of Oakland from undue violation of their right to privacy,” the lawsuit states.
Catherine Crump, a clinical professor of law at UC Berkeley and director of its Samuelson Law, Technology & Public Policy Clinic, called the lawsuit “a really big deal.”
She said the privacy advisory commission was established largely in response to citizens’ outrage over a $10.9 million citywide surveillance system called the “domain awareness center.”
Oakland followed other jurisdictions like Santa Clara County in enacting the the ACLU’s model of vetting technology, called Community Control Over Police Surveillance.
“Oakland really led the way in trying to regulate this type of technology, but it only works if OPD follows the law,” she said. “If you create this elaborate system to make sure citizens get input on what type of surveillance technology is deployed in their community, and OPD ignores it, what good is it doing?”
Other privacy commission members expressed similar concerns.
“The privacy commission is designed to give the Oakland community an ability to raise their concerns about civil liberties and privacy matters,” commissioner Heather Patterson, who also is a member of the Secure Justice advisory board, said in a written statement.
In a blog post on the Secure Justice website, Hofer said, “The concern is that such technologies may be used against certain communities more than others.” He pointed to a 2015 Electronic Frontier Foundation analysis of Oakland police license plate reader data that showed certain populations — including low-income residents and Black and Latino neighborhoods — were targeted by the technology more than others.
The lawsuit also alleges that the police department has used surveillance technology such as drones without a search warrant or prior approval.
While it does not object to using that technology in emergency circumstances, the policy requires the department to send follow-up reports to the privacy commission for review. Oakland police failed to do so, according to the suit.
The suit asks the court to compel the police department to provide that information and to either destroy license plate data after six months or request a policy change through the City Council, and to keep a “record of access” to all police surveillance technology databases.
“By refusing to track third party access as required by law and policy,” Hofer wrote, “OPD is prohibiting the public, the PAC, the City Council, and all Oaklanders from having any confidence that their sensitive data is protected.”