Ask the Experts! Technology and Surveillance in a Post-Snowden Era

Linda Lye and Nicole Ozer are legal stalwarts at the ACLU of Northern California, and for many years have advocated fiercely on behalf of privacy and free speech in our digital era. They are hard at work reining in the government’s use of technology for surveillance. Linda Lye is a Senior Staff Attorney and Nicole Ozer is the Technology and Civil Liberties Policy Director. 

Q: Linda and Nicole, what is the landscape of technology and government surveillance today?

Nicole Ozer: It’s been just over a year since Edward Snowden confirmed what we had long suspected—that the federal government has been engaged in widespread, warrantless spying. And that it has been improperly prying into the private emails, phone calls, and online activities of Americans.

Linda Lye: We’ve also seen that local law enforcement agencies here in Northern California, including Oakland and San Francisco are using sophisticated and intrusive surveillance devices.  Surveillance using new technologies pose new and complex threats to our Fourth Amendment rights and our privacy—whether or not we think we’ve done anything wrong.

Q: What should local law enforcement be doing differently?

LYE: Of course it’s important to strike the right balance between privacy and safety. Local police departments using surveillance technology should consider and plan for privacy and free speech protections on the front end. To start, the agencies need to be much more transparent. No surveillance technology should be approved or deployed without a robust public debate and strong rules to safeguard the rights of community members and prevent misuse.

 Q: What is a recent example of surveillance by local law enforcement using technology?

LYE: We helped put the brakes on Oakland’s Domain Awareness Center (DAC), a rather ominously named surveillance hub. It was originally conceived as a way to monitor activity at the Port of Oakland, but in a classic example of mission creep, grew into a vast center that, as proposed, would have aggregated surveillance systems from all over the city. It would have included license plate readers and video cameras on city streets and in Oakland schools. Monitoring children in schools wouldn’t make the port safer. But it would result in massive surveillance of innocent Oakland residents.   

OZER: Until the ACLU and others pushed back, this sweeping system was on its way to being deployed and without safeguards to prevent misuse. There were no policies governing what data could be collected, how it could be used, and when (if ever) that data would be deleted. There was no clarity on whether a warrant would be required and for what kind of information gathering, and when (if ever) the data would be deleted.

That’s pretty scary. It could have given the government free reign to put together details about our day-to-day lives and share it with other agencies with no oversight. This impacts all of us – whether or not we think we’ve done anything wrong. And that kind of unchecked surveillance is dangerous for a democracy.

Q: How did the ACLU-NC reign in the DAC surveillance?

LYE: The ACLU wields tremendous influence with elected officials. So we had conversations with local leaders and testified before the City Council. We expressed our grave concerns about mission creep, the lack of any privacy safeguards, transparency, or oversight. Our advocacy, combined with local uproar, resulted in the City of Oakland agreeing to massively scale back the DAC. 

The City will return the DAC’s focus to the Port of Oakland instead of the entire city, and will build in important privacy protections. The Oakland City Council also voted to create a privacy committee as a check on the DAC’s activities. I am serving on the DAC privacy committee to represent the ACLU’s privacy concerns.

Q: There are other uses of technology for surveillance that law enforcement is using that are also troubling. Tell us about Stingrays.

OZER: Stingrays are shadowy devices that are highly intrusive and indiscriminate. A Stingray mimics a cell phone tower so that it picks up the signals mobile phones send out to connect to the network. Police can use it to track a suspect by looking for their phone’s signaling data to figure out where they live and where they go. But since Stingrays gather information from all the mobile phones in a given area, individuals who may not have any connection to a suspect could have their phone’s information caught up in a Stingray’s net.

Police can end up tracking many people in dense urban areas or scoop up information across wide distances by mounting Stingrays on drones, driving them around in vehicles, or carrying them in backpacks. As of right now, there are no rules in place governing use of these devices and some police are not getting a warrant to gather this sensitive location information.

LYE: Making Stingrays even more suspect is the fact that the main manufacturer of these devices, Harris Corp., has managed to get several police agencies who use the devices to sign non-disclosure agreements barring the agencies from publicly discussing where they obtained the devices. In other words, a private company has persuaded government agencies to agree to not tell the public about devices that they are using in their community and that can be accessing their sensitive location information.

Q: What has the ACLU of Northern California done to curb the warrantless use of Stingrays?

LYE: We have been tracking this issue closely. After the FBI refused to turn over public records about use of Stingrays, we sued to get access to the information. In addition, we worked closely with Sacramento’s News 10 to get documents that show widespread use of Stingrays by local police departments across California. The documents showed that nine law enforcement agencies, both large and small, are using them.

Q: License plate readers have been in the news. What are they and how are they being used?

OZER: Automated License Plate Readers, also called ALPRs, are cameras that can be mounted on police cars or in various locations like street corners. ALPRs are able to capture and retain tens of thousands of license plate images per minute. It’s a tool that law enforcement can use to locate a stolen vehicle, for instance, but ALPRs could also be used to track a driver’s movements. Because of the sweeping amount of information these devices collect and the lack of meaningful privacy protections in place, the potential for misuse and abuse is too high.

Q: Where are ALPRs being used?

LYE: In the small, hilly, upscale city of Piedmont, which is surrounded on all sides by the city of Oakland, police have installed ALPRs at all points of entry. And we’ve learned—by obtaining government documents using the California Public Records Act—that this one small town with 11,000 residents has collected nearly 6 million images of license plates in less than a year’s time. The South Bay city of Milpitas, with only 67,000 residents, collected 4.7 million plate images in slightly more time. 

So you can imagine the magnitude of data that could be collected by these devices in a city like San Francisco or Los Angeles.

Alameda, another Bay Area city, recently announced a pilot program to install ALPRs on their police cruisers.

As with the other surveillance technologies, there’s a great need for privacy protections. License plate data should only be examined when police reasonably believe that the data are relevant to an ongoing criminal investigation. And in most cases, any data collected should not be retained for more than a month. All of these protections need to be in place early on—before the technology is utilized. 

Q: What can ACLU members do about these issues? How can we help?

OZER: ACLU members and activists can make a huge difference. Your voices are critical, especially for the elected officials in your community. Together, we can make sure that our agencies are transparent and accountable, our cities are properly balancing the potential costs and benefits of surveillance technology, and the rights of community members are respected.

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