While citizens are ignored, circular logic from police chief prompts swift action to reduce surveillance oversight

Mar 202013
 

Ahead of fulfilment of the public records request I placed for all such letters received by Seattle City Council, I received yesterday a copy of the March 15, 2013, letter from Seattle Police Department Chief John Diaz to Mike O’Brien of Seattle City Council concerning C.B. 117730, the bill that passed Monday which regulates the acquisition and use of surveillance equipment by City of Seattle staff.  This was wonderfully refreshing.  I’ve fallen into a habit of requesting public records through a rather formal process, typically dealing with stubborn and opaque agencies like the U.S. Transportation Security Administration and the Seattle Police Department.  This time, I thought, “These are my elected representatives at a municipal level.  I’ll just ask nicely and see what happens.”  Hooray for helpful and cooperative public servants.

Mr. Diaz wrote to request a specific change to the bill.  In his letter, he stated that courts are not inclined to grant a warrant when it is not legally required.  Mind-bogglingly, he then asserted that because of this judicial disinclination, by creating a legal requirement for police to acquire a warrant in order to perform surveillance, Council would hinder his staff’s ability to perform surveillance.  In essence, he claims that because courts won’t issue a warrant when one is not required, police should be allowed continued freedom to use high-tech surveillance equipment without the requirement that a warrant be issued.

He requested that City Council add to the ordinance a paragraph exempting surveillance equipment from regulation under the ordinance if it will be installed or used on a temporary basis in any of three circumstances: 1) for the purpose of a criminal investigation, 2) pursuant to a lawfully issued search warrant, or 3) under exigent circumstances as defined in case law.  He did so by way of suggesting addition of the following paragraph as “SMC 14.18.30 Acquisition and Use of Surveillance Equipment Related to Law Enforcement Investigations”:

Notwithstanding the provisions of this Chapter, City departments may acquire or use surveillance equipment that will be installed or used on a temporary basis for the purpose of a criminal investigation, or pursuant to a lawfully issued search warrant, or under exigent circumstances as defined in case law.  This exemption from provisions of this ordinance does not apply to surveillance cameras mounted on drones or other unmanned aircraft.

The first version the bill I saw, provided to me by a legislative aide late afternoon on Thursday, February 28 (almost two weeks before Mr. Diaz mailed his request to City Council), contained no such paragraph.  Several days later, at the regularly-scheduled meeting of City Council’s Public Safety, Civil Rights, and Technology Committee, a new version of the bill which I later learned to be version 10 (see differences) was discussed.  Seattle Police Department was represented at that meeting by Deputy Chief Clark Kimerer.  Mr. Kimerer told the committee that the department had one concern with the bill, and that it had been satisfactorily addressed in the latest version.  He expressed no further opposition.  The version of the bill which satisfactorily addressed the concern contained the following, which differs from the paragraph Mr. Diaz would later suggest only by a single comma and the word ‘or’:

Notwithstanding the provisions of this Chapter, City departments may acquire or use surveillance equipment that will be installed or used on a temporary basis for the purpose of a criminal investigation pursuant to a lawfully issued search warrant, or under exigent circumstances as defined in case law. This exemption from the provisions of this ordinance does not apply to surveillance cameras mounted on drones or other unmanned aircraft.

That bill passed committee on March 6 and was headed for consideration by full council.

On the morning of Monday, March 18, during council briefing, Bruce Harrell reported having received the letter the previous business day.  He said that the bill already contained the language suggested in the letter and guessed that this was a mistake on the part of SPD.  Inexplicably, he introduced a new version of the bill, version 12, providing scant detail.  Later in the day, at the meeting of full council, when the bill came up for discussion, he immediately moved to replace version 10 with version 12.  The motion passed unanimously without any discussion.  Among three other changes, version 12 contained the following paragraph:

Notwithstanding the provisions of this Chapter, City departments may acquire or use surveillance equipment that is used on a temporary basis for the purpose of a criminal investigation supported by reasonable suspicion, or pursuant to a lawfully issued search warrant, or under exigent circumstances as defined in case law.  This exemption from the provisions of this ordinance does not apply to surveillance cameras mounted on drones or other unmanned aircraft.

The bill passed, and is headed for the Mayor.

The differences between the three paragraphs I quoted are linguistically subtle but legally significant.  Version 10 is almost identical to the Diaz version, though I believe it is preferable to his, stipulating that the exemption for criminal investigations only applies to those investigations that are pursuant to a lawfully-issued search warrant.  Version 12, that which passed after being introduced under mysterious circumstances, weakens the bill by broadening the exemption.  It’s somewhat nonsensical, mixing present and future tense (“may acquire or use surveillance equipment that is used on a temporary basis”), and it replaces the requirement for warrant, which involves judicial oversight, with requirement for reasonable suspicion, which involves little more than a police officer’s hunch.

My thoughtful and reasonable suggestions, provided to the PSCRT Committee on March 6, were almost entirely ignored, yet City Council devoted almost all of the time they spent discussing the bill in public to implementing and reimplementing one suggestion—based seemingly on circular logic and resistance to meaningful oversight—from the leader of the department whose rogue actions were the impetus for creation of this ordinance.  Why police—this police department in particular—are allowed to dictate legislation regulating their own activities is beyond me.

I am frustrated by this, but remain optimistic that with continued efforts, we will turn Seattle into a small bubble of safety from the ever-encroaching surveillance state.

Text of the police chief’s letter, which I transcribed from a PDF of the original, follows:

Councilmember Mike O’Brien
Seattle City Council
600 4th Avenue, 2nd Floor
PO Box 34025
Seattle, WA 98124-4025

Dear Councilmember O’Brien:

On Monday, March 18, you are scheduled to vote on C.B. 117730, requiring the adoption, by ordinance, of protocols for the use of surveillance systems by the City of Seattle.

These protocols require that City departments name specific locations of surveillance equipment, how and when the department will use such equipment, how the equipment will be regulated to protect privacy, and a description of the nature and extent of public outreach conducted in each community in which the department intends to use the surveillance equipment.

While many of these requirements may be appropriate for surveillance systems to monitor the public at large, applying them to the surveillance that the Police Department does when it is conducting a legal criminal investigation, brings about potentially serious unintended consequences.  Please consider amending this legislation so that it exempts criminal investigations from the scope of items that must be approved by the City Council.  We suggest the following language:

SMC 14.18.30 Acquisition and Use of Surveillance Equipment Related to Law Enforcement Investigations
Notwithstanding the provisions of this Chapter, City departments may acquire or use surveillance equipment that will be installed or used on a temporary basis for the purpose of a criminal investigation, or pursuant to a lawfully issued search warrant, or under exigent circumstances as defined in case law.  This exemption from provisions of this ordinance does not apply to surveillance cameras mounted on drones or other unmanned aircraft.

While we understand why the Council and the public might want the Seattle Police Department to obtain search warrants whenever we do criminal surveillance, the results of this policy present legal impediments to our ability to conduct criminal investigations.

We have been advised by the City Law Department and a King County Prosecutor that courts will not be inclined to grant warrants when they are not legally required.  Should this legislation pass as it currently reads, we may not be able to conduct legal surveillance.  For example, under this legislation, the surveillance of a house that may contain a meth lab will require a warrant because the house is in public view; however, the Court might not grant a warrant in this case because surveillance is already allowed.  We would have no way of proceeding with our investigation.

We appreciate and agree with the Council’s goals of transparency concerning public surveillance systems and wish to work with you on that issue.  However, we believe that a public discussion on criminal surveillance activities may detract from the more important discussion of establishing policy on public surveillance systems.

We support the legislation — with the above amendment — and commit to having conversations with the Council and community about our public surveillance activities.  We respectfully request your consideration of the amendment we have proposed above.  Thank you.

Sincerely,
John Diaz

City Council stumbles upon warrantless surveillance by police unfit for public discussion and unqualified for private discussion

Mar 192013
 

I believe I may have been a bit hasty in my assessment yesterday of the situation surrounding Seattle Police Department meddling in the crafting of legislation intended in part to restrict police acquisition and use of surveillance equipment (C.B. 117730).  I still feel that changes to the bill made between versions 10 and 12 weakened the resulting ordinance.  However, while it seemed at first that City Council Public Safety, Civil Rights, and Technology Council chair and mayoral candidate Bruce Harrell was acting in a spineless and/or foolish manner in his interaction with police, I now believe the situation is more complicated than that.

I believe the PSCRT committee truly intended to restrict large-scale public surveillance such as that which SPD intend to begin performing under the guise of “port security,” that in doing so, committee members stumbled upon a different kind of surveillance, and that with SPD’s coaching, they steered clear of that other surveillance.  This is encouraging news, as it suggests to me that they were not simply duped by SPD and are not necessarily oblivious to the subset of concerns some of us have recently expressed to them, but that they simply avoided addressing that other kind of surveillance in order to get an ordinance passed that addresses the issue about which the public have expressed most concern.

This morning, intending to request a copy of the letter Harrell described receiving from the Chief of Police on March 15 (which I did request this afternoon), I reviewed the recordings of yesterday’s council briefing and meeting of full council.  Some of the discussion was a bit disturbing.  Harrell danced around a policing issue that he felt was inappropriate for discussion in public, but that he also believed did not qualify for restriction to private discussion during executive session (i.e., a closed session not subject to our state’s Open Meetings Act).  He said, “A lot of what [our peace officers] do relative to criminal investigations, it’s a little– It’s sensitive information how they go about establishing probable cause, how often they conduct these criminal investigations, where they do it.  And this is not the kind of conversation that you have in executive session ’cause it doesn’t fall under one of the exemptions.”  As an ardent supporter of both open government and ethical policing, this gives me pause.

My transcript of council briefing follows.  This discussion begins at 59 minutes into the recording:

Bruce Harrell: “So, many of you might have received a letter from the Chief on March 15th that captured a paragraph that the police department wanted in it– To give you some context, you may recall that Councilmember Licata and others, including myself, are trying to do in this legislation are just trying to require, before a decision is made, before a purchase is made, or certainly before the use is made, that departments have a very open and transparent conversation on how surveillance equipment should be used, its intended use, a statement of intention, very specific protocols how they are to be used, under what circumstances, etc.  And, it really gets– It allows the city to get their arms around the use of surveillance equipment.  So, and it was a very inclusive process.  We both listened to the Police Department, the Human Rights Commission, other community activists, in this process.

“Getting back to the letter that the chief had sent to us, requesting this paragraph.  It should be very clear: This entire paragraph is in the legislation.  It has been. And so one of their concerns is has been is to whether we are somehow thwarting or inhibiting the Seattle Police Department’s ability to use surveillance equipment in certain criminal investigations on a temporary basis.  And so we had carved out that exception.  And so I think that they– the Police Department actually made an error in this letter, because what they really wanted was something else that we had– something else to sort of clarify the exemption of a criminal investigation.  In other words, we had these criminal investigations already exempted.  And what I passed out to you is some additional language they wanted which is on page six of the document of the ordinance that I– that we have in front of you.

“The sentence, `open in accordance with state law and subject to court rule.’ So, I don’t have any problems with that and it could clarify what we’re trying to do.  Again, we’re not trying to inhibit the Police Department’s ability to use surveillance equipment on a temporary basis for criminal investigations.  What we’re trying to do more is put the p– require each department to put in certain protocols in place when we’re looking at surveillance equipment for general surveillance and protecting our ports, etc.  So, so, we can make that, that change.  I don’t have a– It’s not a substantive change… what we had already and I think we’ll be fine there, so…

“Councilmember Licata, did you want to say something?”

Nick Licata: “Yes.  I did want to have an opportunity to talk to you about this addition because there were some questions raised about how big of a loophole it was providing.  Particularly since we’re talking about protocols being presented so, but, let’s have that conversation later, and see where we go with it.”

Harrell: “Yeah.  There’s a possibility Councilmember Licata and I, and Tom Rasmussen and I talked over the weekend about whether we– if we wanted to hold it for a week or so.  And I’ll just be very candid with you on my position on this.  We have been working with the police department very closely on this.  They gave their several other changes we made at their request. Again, the entire section in their March 15 letter which was just delivered last week is included in there. Trying not to inhibit their ability about criminal investigations, but the challenge we have is:  A lot of what they do relative to criminal investigations, it’s a little– It’s sensitive information how they go about establishing probable cause, how often they conduct these criminal investigations, where they do it.  And this is not the kind of conversation that you have in executive session ’cause it doesn’t fall under one of the exemptions. All the more reason, I think, to have an open and transparent conversation on what these protocols should be.  What is the standard, whether it’s probable cause, exigent circumstances, or articulable suspicion? Whatever the standards are, when they decide to use surveillance equipment, I think that’s a conversation we need to have.

“But certainly this legislation will not inhibit their ability right now to conduct criminal investigations with search warrants, etc.  So, I don’t particularly see a need to hold it.  What I see a need for is to require the department to have this conversation on their protocols.  Quite candidly: Getting information from the department has been somewhat challenging. I’ve been pressing for a May Day report ad nauseum, and I’m not getting that, so sometimes we have to put pressures on these departments to come up and work with us on developing protocols.  And so I think this is a prime opportunity to– we have good legislation in front of us that’s– was very inclusive in the process, and so again, they can come up with protocols and we can have the conversation about it.”

Licata: “The, um–”

Harrell: “You wanna hold?

Licata: “Here’s the– There’s certain areas in here which are still being, shall we say, investigated and clarified. We’re in agreement we want protocols, and the Seattle Police Department’s in favor of coming to us with protocols.  But as often the case is, what do the protocols apply to?  And that is the– what we’re wrestling with right now.  We have exempted them from providing protocols where they have a warrant or where there’s an exigent circumstances.”

Harrell: “A criminal investigation.”

Licata: “Right.  Criminal investigations.  So the question is: What is a criminal investigation that falls outside the area of a warrant and what– or exigent circumstances.  And by exempting all criminal investigations from having crimi– from having the need for protocols, are we opening up too large [Bruce Harrell nods] an area of activity that does not have any protocols. Part of that concern is that– and this is where we probably need some legal assistance, and maybe why you need to hold it, is are we then allowing a City department—in this case Police Department—to define what criminal is without a reference, and therefore anyone could be subject to surveillance.  Or, is there a way of defining a way that is understood by all of us, certainly, that falls within that range?  So that’s what we’re trying to determine.

“The– I talked to the Chief this morning. He’s very concerned about, you know, situations where you might have people who have been sexually assaulted, and they have a lead, or something of that sort.  And there’s other instances where I think all of us would be in agreement upon, but when you go beyond that, that’s the question that I think the public has also raised.  I think there’s a way to resolve it.  I’m not sure if this exact– this wording, and that’s you may need to hold–”

Harrell: “That’s the wording the Police Department gave us.”

Licata: “Exactly.”

Harrell: “And I agree with everything you said, in fact.  So, there– Quite frankly, there seems to be little ambiguity in what a criminal investigation is.  There doesn’t seem to be that.  That they have to have an articulable reason, they has to be some kind of probable cause, some kind of reason to investigate somebody.  It cannot be arbitrary or capricious.  They can’t– There has to be some kind of factual basis.  But to your point:  We would like– I’d like to see that defined so that we leave very little for, you know, in doubt.

“We’ll talk this morning, again, and early this afternoon.  Quite frankly, I just don’t see a need to hold it, because we have exempted criminal investigations as we speak.  If they think there’s need for further clarification, that’s exact– Those are exact kind of departmental protocols we want to see in place.  And it’s– Quite frankly, it’s not that hard to do.  These protocols do not take a lot of time to develop.  They need to sort of describe what their current methods of operations are now using surveillance equipment.  You would think a department would have pretty sophisticated protocols in place already, so this isn’t a lot of work that needs to be done to develop these articulable protocols of criminal investigations, so…  But anyway, we’ll see.  We’ll talk more this morning.  So the other part of– Did anyone else have any questions on the surveillance part?”

Sally Clark: “No– This has been helpful back-and-forth between the two of you, and perhaps we could check in, you know, mid-day with councilmembers to let folks know whether it looks like there’s adequate resolution of this, or whether there’s just too much ambiguity existing–”

Harrell: “What I don’t fully understand is, criminal investigations on a temporary basis are exempted from the protocols right now. Okay?

Tim Burgess: “Some.”

Harrell: “Some.”

Burgess: “If a warrant is issued or it’s an emergency.  What is not exempted and happens frequently is criminal investigations that are done before a warrant can be applied for and establishing probable cause, and I think that’s Chief Diaz’ concern, which is why he wants this additional language to cover non-warrant investigations in accordance with state law and subject to court rule, which is very clearly defined.”

Licata: “That’s exactly it.  And just to expand the conversation, I–”

Harrell: “Okay, let me clarify something, though.  I’m sorry, that was rude of me. ‘Cause that wasn’t totally crap, but go ahead.  Because this was a mistake here.  This language, here, that says, `to be installed on a temporary basis for the purpose of a criminal investigation, comma, *or* pursuant, so it’s a conjunction which says that criminal investigations are exempt.  But she put `or’—Krista did this, sort of in a hurry—as though this is new language.  This conjunction would insinuate there are two conditions: One is whether there is criminal investigation, or there’s lawfully issued warrant.  Not this gray land if there’s a pre-criminal investigation not a warrant. Sorry, I just needed to clarify that.”

Licata: “Is that your perception as well, Councilmember Burgess?”

Burgess: “Well, the– I don’t have the original in front of me, but–”

Licata: “See, this is an area that, this gets to where–

Clark: “So at this point, because we are looking at trying to also discern what staff may have meant with wording, if I could ask that there be a small group that looks at this after we adjourn this meeting, and then again, we could touch base in the mid-day to find out whether we’re in agreement or whether it does look like there needs to be something–”

Licata: “Right.  I think it does get a bit into the weeds and I don’t think we–

Clark: “And in a good way.  I mean Councilmember Harrell, you’ve explained, you know, far more than I think we’ve heard a lot of folks in terms of the detail of what this can mean.  So it’s important, we have spent a fair amount of time on it, and we want to get it right.”

Licata: “I agree.”

Clark: “Good.”

Harrell: “Okay.  Councilmember Licata, I apologize for cutting you off, there.  Did you get your point in?”

Licata: “I– The point is that we need to discuss this before two o’clock and see if we can resolve it.  If not, we’ll just ask for a hold.”

Clark: “Yep.”

Discussion shifted to a different topic at 70m10s.

Seattle City Council pass ordinance restricting surveillance equipment after Councilmember Harrell slips in a gift for police

Mar 192013
 

On Monday, March 18, 2013, Seattle City Council passed C.B. 117730, which restricts City all departments’ acquisition and use of surveillance equipment. This is generally a good thing, but there are games being played, and the public are losing.

Seattle Police Department’s representative, Clark Kimerer, was all smiles when the bill was discussed publicly during the March 6 meeting of the Public Safety, Civil Rights, and Technology Committee, expressing no opposition.  Then, Chief of Police John Diaz sent a letter on Friday, March 15, that resulted in weakening of the bill without much more than committee chair Bruce Harrell waving his hands and babbling about how criminal investigation is clearly defined, tossing around the terms articulable suspicion and probable cause in a few seconds of “just trust me.”  Councilmember Nick Licata, who has been asking the right questions lately, seems to have just trusted Harrell on this one, and definitely should not have done so.

Harrell glossed over the changes when Licata questioned them during the council briefing earlier in the day. Harrell reported that multiple councilmembers received a letter from the Chief of Police on March 15. He said that the police were requesting a paragraph that was already included in the bill. He did not explain why this needless request led to a substantial change in the bill. Discussion ended with the expressed assumption that the changes would be discussed in detail at the full council meeting later in the day. They were not.

Immediately upon initiation of discussion of the bill during the full council meeting, Harrell moved to replace version 10 of the bill with version 12. Without any discussion, the motion passed unanimously. There were four changes. One removed some redundancy that was introduced with version 10. Another added a section requiring evaluation of the effects of this ordinance one year after its implementation. A third narrowed slightly the exemption for investigative use of equipment “that will be installed or used on a temporary basis” to equipment “that is used on a temporary basis.”  The fourth significantly widened the exemption for police investigative surveillance from criminal investigations pursuant to lawfully issued search warrants to those supported simply by reasonable suspicion.

Our police sneaked in a system of scores of public surveillance cameras with nearly 200 wireless access points at which they almost certainly hope to install more cameras, and Bruce Harrell thinks they should be able to bypass City Council oversight based on nothing more than reasonable suspicion.  Not based on a search warrant, not even on probable cause, but on reasonable suspicion—just a bit more than a hunch.  Mayor McGinn has shown that he is unwilling to stand up to our rogue police department, and now it seems that Bruce Harrell is either unwilling to do so or is incapable of doing so without being fooled by the police.

Here’s a diff of version 10 vs. version 12:

--- bill_v10    2013-03-19 02:00:15.728145999 -0700
+++ bill_v12    2013-03-19 02:00:17.832145999 -0700
@@ -17,7 +17,6 @@
 some contexts, such as red light cameras, the benefits of such
 technologies should be balanced with the need to protect privacy and
 anonymity, free speech and association, and equal protection;
-weighed against the potential downsides, including impacts on privacy;
 and

 WHEREAS, while the courts have established that people generally do not
@@ -189,9 +188,9 @@

 Notwithstanding the provisions of this Chapter, City departments may
 acquire or use surveillance equipment
-that will be installed or used on a temporary basis
+that is used on a temporary basis
 for the purpose of a criminal investigation
-pursuant to a lawfully issued search warrant,
+supported by reasonable suspicion, or pursuant to a lawfully issued search warrant,
 or under exigent circumstances as defined in case law.  This exemption
 from the provisions of this ordinance does not apply to surveillance
 cameras mounted on drones or other unmanned aircraft.
@@ -210,6 +209,10 @@
 protocols to the City Council for review and possible approval by
 ordinance.

+Section 4. Following one year after the effective date of this
+ordinance, the City Council will review its implementation as it applies
+to city department use of surveillance equipment.
+
 This ordinance shall take effect and be in force 30 days after its
 approval by the Mayor, but if not approved and returned by the Mayor
 within ten days after presentation, it shall take effect as provided by

Brief notes I published via Twitter while reviewing the council briefing and meeting of full council:

  • At Monday’s @SeattleCouncil briefing, discussion of surveillance equipment bill 117730 began at 59m0s: http://www.seattlechannel.org/videos/video.asp?ID=2011321
  • Harrell said Chief of Police sent letter March 15 to councilmembers requesting addition of paragraph that was already included in bill.
  • Unclear what still needed to change. Licata asked just how big of a loophole this would open. Harrell said already made mult changes for SPD
  • Licata expresses concern over allowing use of surveillance equipment for any criminal investigation; could create wide loophole. 63m38s
  • Council Briefing discussion of surveillance bill ended with agreement that there’d be more discussion of details at Full Council meeting.
  • March 18 @SeattleCouncil meeting begun discussion of C.B. 117730 restricting surveillance equipment use at 57m8s http://www.seattlechannel.org/videos/video.asp?ID=2021321
  • Council immediately voted unanimously to replace v10 of the bill with v12. Harrell later described revisions since v10 at 62m58s

Updates to Seattle Surveillance Equipment Bill

Mar 152013
 

I previously wrote about Seattle City Council Bill 117730, which would require city departments to receive Council approval before acquiring most surveillance equipment. In the few days between the time when I received a copy of the bill and the introduction of the bill at the March 6, 2013, meeting of the Council’s Public Safety, [...]

My interview of head of SPD’s public surveillance camera program

Mar 062013
 

On February 21, 2013, I conducted a brief, impromptu, interview with Monty E. Moss #5598 of the Seattle Police Department about security technology, policies, and procedures for the set of surveillance cameras the department recently began installing on Alki Beach in Seattle. Of particular interest are Moss’ belief that it is important to keep secret [...]

More feedback on Seattle City Council bill to regulate local government surveillance

Mar 052013
 

In no particular order, following are suggestions I’ve received from others about Seattle City Council Bill 117730, which would regulate the acquisition and use of certain surveillance equipment by municipal government.  I support all these.  (See also my initial thoughts on the bill.) Seattle Police Department have a history of poor management of video and [...]

My thoughts on a Seattle City Council bill to regulate surveillance equipment

Mar 032013
 

On the agenda for the March 6, 2013, meeting of Seattle City Council’s Public Safety, Civil Rights, and Technology Committee is discussion of Council Bill 117730, which would regulate the acquisition and use of certain surveillance equipment by municipal government. I received a draft Friday and took some notes while reviewing it. Following is that [...]

Sprint demands 50% extra monthly to activate new phone with same service, hangs up on me when I balk

Aug 132012
 

I have been a satisfied customer of Sprint for around 15 years.  I’ve been using a smartphone with their mobile service since shortly after the Palm Treo 600 was introduced in 2003. I recently acquired two Samsung SPH-D700′s (a.k.a., Epic 4G), and after flashing them with the alternative Android firmware Cyanogenmod, browsed to Sprint’s Website [...]

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