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.