How Do You Stop the Surveillance State from Spreading? It's a Lot Trickier Than You Might Think

This month, for the first time ever on U.S. soil, a police department used a robot to kill a suspected gunman. When it comes to the fight back against the use of surveillance technologies by law enforcement, there’s no question that the stakes are high. Less clear to activist and advocates is the best way forward.

In early June, the California Santa Clara County Board of Supervisors unanimously approved the Surveillance Technology & Community Safety Ordinance, which requires law enforcement agencies to obtain approval from the Board before purchasing new surveillance technologies, or using technologies in new manner.

Some advocacy groups heralded the passage of the ordinance as a major victory, with the American Civil Liberties Union of California declaring Santa Clara had become “the first county in the nation to institute consistent transparency, accountability and oversight measures for all surveillance decisions.”  

But other anti-surveillance activists in California and across the country see the development differently. “Historic and current realities suggest that Santa Clara County is setting a troubling precedent of legitimizing state sanctioned surveillance, spying, and infiltration by passing this ordinance,” said the coalition group Stop LAPD Spying in a statement released earlier this month.

In interviews with AlterNet, activists and advocates on both sides of the debate stressed the importance of checking unbridled police access to new surveillance technologies. Yet the interviews also revealed mounting tensions about the direction of the movement against surveillance, and concern on the part of some activists that those most affected by the use of surveillance technologies were best left out of the conversation.

At the core of the debate is whether the push to pass surveillance ordinances empowers or undermines local communities fighting to protect themselves from government spying. Under the ordinance, board members are tasked with the approval process by assessing whether the potential benefits of the surveillance technology outweigh the costs, including financial burdens to the city and concerns about civil liberties and privacy rights.

If the underlying function of the ordinance is to create a process for the procurement of surveillance technologies, say some activists, the legislation is a mistake. “The problem with all ordinances that try to control local surveillance, is that, essentially, they allow it,” explained Alfredo Lopez, member of the Leadership Committee of May First/People Link, a politically progressive national membership organization working on technology and the issues that affect it.

“While the ordinance appears to strongly curtail surveillance, it actually legitimizes its use in many circumstances and those are circumstances that could involve activists and organizers—the targets of national and international surveillance.”

When asked, groups that pushed for the passage of the Santa Clara ordinance emphatically denied that their efforts actually served to facilitate the purchase of surveillance technologies. Shahid Buttar is the director of grassroots advocacy at the Electronic Frontier Foundation, a nonprofit dedicating to defending civil liberties in the digital world. Buttar told AlterNet that surveillance technologies are already being deployed by local police forces across the US, often without any oversight or regulation. Stingrays, for example, which enable cops to locate a mobile phone by mimicking a cell phone tower, have been in use by police forces about a decade, but it was only last week that a federal judge ruled that the warrantless use of the device was unconstitutional.

“To claim that a transparency-advancing measure legitimates the technology, basically ignores the fact that the police are obtaining these technologies whether there are ordinances or not,” said Buttar. “Any transparency-advancing measure is a step forward from the current baseline.”

For Peter Bibring, the director of police practices for the ACLU of California, the fight for transparency when it comes to surveillance technologies is not so different than the fight for transparency in other areas of police misconduct. “When groups advocate for data collection on police stops as a way to combat racial profiling, that’s not an endorsement of racial profiling,” he told AlterNet. The ACLU of California developed the text for a model surveillance ordinance for a report published in April.

Under the Santa Clara ordinance, law enforcement agencies must also submit an annual surveillance report for each approved technology, which are supposed to outline how acquired data has been shared with other agencies, an evaluation of “whether the surveillance technology has been effective at achieving its identified purpose,” and a summary of community complaints or concerns.

“Knowledge is power,” Bibring stressed, “and without the public knowing what the government is doing, they can’t hold them accountable.”  

Some activists, though, are hard pressed to take on board Bibring’s comparison between surveillance ordinances and broader struggles for police transparency and accountability.

“The Santa Clara ordinance very clearly lays out what the process would be to acquire technologies,” said Stop LAPD Spying campaign coordinator Hamid Khan. “It doesn’t lay out what the process would be to prohibit the use of technologies.” He stressed that there were other avenues available for the ACLU to press for transparency, like filing freedom of information requests to query what technologies police departments had acquired and what policies governed their use.

For Khan and others, the tensions around the surveillance ordinances are reflective of broader tensions between statewide or national groups, and organizations mobilizing on the ground. The Stop LAPD Spying Coalition has previously criticized the ACLU of California for being opaque and unaccountable to local, community-based group also working on surveillance issues. The two groups have also taken opposing views on the use of police body cameras, with the ACLU of California supporting their use, and the Stop LAPD Spying Coalition stressing that cameras are no fix for an institution as fundamentally violent and racist as policing.

The tensions about what it means to empower local stakeholders have also emerged in less explicit ways. Buttar told AlterNet that ordinances like the one passed in Santa Clara “could dramatically change the landscape simply by giving elected policy makers and executives a forum in which to participate in debate [about surveillance technologies].”

Local officials often have profound concerns around the erosion of civil liberties, said Buttar, and surveillance ordinances provide a mechanism by which the public and local legislators can push forward surveillance reforms that have a real impact on people’s everyday lives.

Groups like Stop LAPD Spying, however, are dubious that the decisions of local elected officials will be reflective of the needs or expressed desires of their voters, especially when it comes the actions of law enforcement. Although ordinances like the one passed in Santa Clara guarantee a “properly noticed public meting” before law enforcement agencies purchase new technologies, there is no guarantee that local boards or commissions will reject these requests, even if they are vocally opposed by local residents.   

Activists critical of the ordinance strategy stress that local officials have often done very little to rein in police abuses, or have pursued the procurement of surveillance technologies against the explicit wishes of local residents. Ordinances have the appearance of democratic accountability, say these activists, but do little to ensure that the needs and desires of the most affected communities will actually be prioritized.

The debate over whether to support or oppose surveillance ordinances underscores broader uncertainties about who is leading the fight against government spying, and what advocates and activists should aim to achieve.

“Unless this movement around the surveillance industrial complex—if we don’t scrutinize it, who’s doing what, we’re going down the same road as the immigrant rights movement, where national organizations occupied the space, and the voices of on the streets, the voice of the community, were completely silenced,” Khan told AlterNet.

“Foundations poured in millions and millions of dollars and what happened?” he continued. “The whole debate about legalization and citizenship is gone. That’s the danger we see.”