City Paper is not for tourists
The Metropolitan Police Department owned Stingrays for almost a decade before anyone outside the Department found out. That was by design. Stingrays are expensive surveillance devices that mimic cell towers, sending out a strong signal that tricks every cell phone in the area into revealing its exact location; they let police track persons of interest with extreme accuracy, and also get the location of everyone else who happens to be close by. MPD first won a federal grant to acquire Stingrays in 2003, with the goal of using them to combat terrorism, and then-Assistant Chief Peter Newsham later signed a non-disclosure agreement with the FBI. In the NDA, Newsham promised to never disclose details about how MPD was using the tool, and to even potentially drop criminal cases if the trial risked exposing details related to the technology.
However, by 2013, advocates and journalists had uncovered that MPD possessed the technology, and that they weren’t just using it to fight terrorism. They were going after drug traffickers and other routine criminals, and when they used their Stingrays, they sometimes didn’t get a warrant. The American Civil Liberties Union of DC (ACLU-DC) helped challenge the constitutionality of this surveillance, and eventually, a judge mandated that police cannot use artificial cell towers without a warrant. The Supreme Court recently agreed with this decision, and with that, the District’s Stingray saga came to a close.
But now, ACLU-DC wants to ensure that when police use surveillance technologies, the public conversation about what is and isn’t appropriate happens ahead of time, not after the fact. This week, the ACLU is kicking off its Community Oversight of Surveillance in D.C (COS-DC) campaign, partnering with eight other organizations, including the Justice for Muslims Collective—an activist group that combats Islamophobia in the D.C. area—and the harm-reduction non-profit HIPS. Their ultimate goal is to pass a bill that would give the public and D.C. Council full control over how District agencies use surveillance.
Right now, says ACLU-DC policy director Nassim Moshiree, “they can acquire the technology in secret. They can have it for years—use it, not use it… That’s a major problem.” ACLU organizers point to a laundry list of technology MPD currently possesses without much public oversight into what they’re used for: automatic license plate readers, which let police see everywhere a car has gone over the course of weeks or months; Morpho, a facial recognition software that searches mugshots; old-fashioned CCTV; and body cameras, which ACLU-DC says are not used in a uniform manner and are often turned off. They are also worried that D.C. agencies might already (or soon) possess more surveillance tech that advocates don’t know about: real-time facial recognition, predictive policing tools, software for monitoring social media.
“We don’t know which of these technologies are being used by our agencies,” says Moshiree. “And we don’t know how they’re being used, which is maybe even more important.”
A spokesperson for MPD declined to comment on whether the Department owns any of the technologies that ACLU-DC is concerned they might be using, and also did not comment on how they use the technologies they possess.
A COS bill would forbid agencies from using surveillance tech without the D.C. Council holding a public hearing first. The Council would have to authorize all such technology, and also specify exactly when and how agencies are allowed to use it—perhaps lawmakers would approve facial recognition for combatting terrorism, but not for arresting shoplifters. The model legislation that ACLU-DC is working with also imposes harsh penalties for agencies that violate the bill. Anyone who knowingly violates the oversight restrictions would be guilty of a misdemeanor crime, punishable by up to six months in prison.
An MPD spokesperson tells City Paper, “Until a proposal is introduced to the Council, we will decline to comment on a speculative bill.”
Currently, Moshiree says, to find out anything about the surveillance an agency is conducting requires a lot of research and public records requests. She wants to make that awareness a given, not a hard-fought prize. ACLU-DC field organizer Larry Bryant says that the goal of the campaign is to make it so advocates and the public can answer a few basic questions: “How are they being used? And where are they being used? Are they being used in an equitable way?”
He says that the MPD’s record makes it even more important to let the public monitor how exactly surveillance is conducted. “Here in D.C., we know that there’s a pattern of uneven policing that’s based on race. On poor and low-income communities,” he says. He is also concerned that these technologies could be used to monitor activists, referencing a local Black Lives Matter activist who filed a lawsuit claiming MPD was tracking her activity, as well as well-documented surveillance of racial justice activists in other cities like Baltimore and Memphis.
This is one of the reasons, he explains, that in addition to requiring the Council’s pre-approval for all surveillance tech that agencies adopt, the model bill also requires annual reports spelling out how exactly the tools are being used in practice. “Without regular monitoring,” Moshiree argues, “you can’t ensure that what the law is obligating agencies to do is actually happening.”
The District’s COS campaign is part of a national movement led by the ACLU, which has successfully passed similar legislation in 12 cities and counties, and is in the process of getting bills passed in 17 more. One of the first cities to pass a COS law (also sometimes called Community Control over Police Surveillance, or CCOPS) was Oakland. In 2013, it became public knowledge that the city was quietly constructing what it called the Domain Awareness Center (DAC), a multi-million dollar surveillance center that would operate over 700 cameras and automatic license plate readers. Journalists soon uncovered that a top city official gave a concerning justification for the Center: Referencing dozens of recent protests, she wrote that “Oakland’s long history of civil discourse and protest adds to the need” for the DAC. Public outcry ensued, and ultimately, Oakland’s city council drastically pared back the Center’s scope.
In the wake of this, activists decided the city needed more lasting reform and began pursuing a COS ordinance. Matt Cagle, an attorney with ACLU Northern California who helped draft the legislation, explains, “Surveillance operates in secret by nature, so this [was] about bringing surveillance out of the shadows and into the democratic process.” It felt even more urgent, he says, because of the Oakland Police Department’s long history of over-policing communities of color. “These are decisions about what public safety means,” he says. “They shouldn’t be made unilaterally by police departments or by surveillance vendors.”
Oakland City Council passed the bill unanimously in 2018, but the ACLU has not always been successful in its efforts. That same year, a statewide COS bill in California passed in the state Senate, but came to a halt in the Assembly, following pushback from law enforcement unions and a few local sheriffs’ departments. The California Police Chiefs’ Association was one of the groups formally lobbying against the bill, arguing that by making all surveillance technology public knowledge, the bill “would serve to provide an advantage to current and would-be criminals. This would ultimately put countless communities at risk.”
When the Oakland ordinance passed, experts quickly dubbed it the “strongest surveillance oversight law in the country,” but it’s quickly becoming more standard as more communities adopt ACLU National’s model COS legislation, which closely resembles Oakland’s. ACLU-DC and its partners plan to adapt that model bill to meet the District’s specific needs, after a series of community outreach meetings in the coming months.
Tamika Spellman, who is a policy and advocacy associate at HIPS, explains that HIPS is partnering on the campaign because the communities it serves—sex workers and substance users—are particularly affected by police surveillance. “They surveil these people to the ninth degree,” she says, “to find new ways to monitor their behavior.”
Talking about the need to restrict how surveillance technology is used, she discussed the efforts in recent years to crack down on sex workers. Officers across the country monitored Craigslist and Backpage classifieds to ferret out solicitation. Spellman has been a sex worker by choice for 36 years, and she says that if the prospect of surveillance makes people afraid to solicit over the internet, they may decide to work in the streets instead. “[That’s] way more dangerous,” she explains. “I prefer online because I can thoroughly vet the person I’m dealing with.”
Bryant and Spellman both emphasized that their campaign does not seek to ban surveillance: only to give the public and D.C. Council more power over how it’s used. “I wouldn’t have issues with them surveilling people for just mass murders or terrorist attacks,” argues Spellman. But right now, “who’s to say that you’re using this information for the greater good?”
This post has been updated to reflect that Oakland drew from ACLU National’s model COS legislation. A previous version stated that ACLU National drew from the ordinance Oakland passed.