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