The County of Santa Clara
California

Report
79983

Receive report from the Office of the County Executive relating to a Surveillance Technology Ordinance, and forward to the Board of Supervisors. (Held from February 11, 2016, Finance and Government Operations Committee meeting, Item No. 15)

Information

Department:Office of the County ExecutiveSponsors:
Category:Report

Body

FISCAL IMPLICATIONS

There are no fiscal implications associated with the receipt of this report.

REASONS FOR RECOMMENDATION

Over the past ten months the Administration and the Finance and Government Operations Committee have been working through several iterations of a Surveillance Technology Ordinance.  This process has included receiving significant input from the public as well as from County departments and the Offices of the County Executive and County Counsel.

 

Before the committee is what is being considered a final draft for review and approval by the committee and forwarding to the full Board for final approval.

 

Two copies of the ordinance are included for the Committee’s review.  A marked up copy that identifies the latest modifications that have been requested by Supervisor Simitian and a final clean copy that would be transmitted to the Board for final approval.

CHILD IMPACT

The recommended action will have no/neutral impact on children and youth.

SENIOR IMPACT

The recommended action will have no/neutral impact on seniors.

SUSTAINABILITY IMPLICATIONS

The recommended action will have no/neutral sustainability implications.

 

Meeting History

Feb 11, 2016 2:00 PM Video Finance and Government Operations Committee Regular Meeting

Taken out of order after Item No. 13.

Twelve individuals addressed the Committee.

At the request of Chairperson Simitian, the Committee directed the Office of the County Counsel to provide an off-agenda memorandum relating to possible consideration of issues regarding authority and preemption concerning Surveillance Technology during closed session.

At the request of Vice Chairperson Chavez, the Committee directed the Office of the County Executive to create a "placeholder" item for the March 2, 2016 FGOC agenda relating to a Surveillance Technology Ordinance.

RESULT:RECEIVED [UNANIMOUS]
MOVER:Cindy Chavez, Vice Chairperson
SECONDER:S. Joseph Simitian, Chairperson
AYES:S. Joseph Simitian, Cindy Chavez
Mar 2, 2016 2:00 PM Video Finance and Government Operations Committee Regular Meeting

Held to the April 14, 2016 meeting at request of Chairperson Simitian.

RESULT:HELD [UNANIMOUS]Next: 4/14/2016 3:00 PM
MOVER:Cindy Chavez, Vice Chairperson
SECONDER:S. Joseph Simitian, Chairperson
AYES:S. Joseph Simitian, Cindy Chavez
Apr 14, 2016 3:00 PM Video Finance and Government Operations Committee Regular Meeting

Taken out of order after Item No. 4.

Ten individuals addressed the Committee.

Chairperson Simitian advised of a supplemental report provided by the Office of the District Attorney immediately prior to the meeting, and stated that the document has not yet been reviewed by the Committee.

The Committee forwarded the proposed Ordinance to the Board on date uncertain with a favorable recommendation from the Committee subject to the following requests, led by the Office of the County Counsel in collaboration with the Sheriff's Office, the Office of the District Attorney, and the Office of the Public Defender; include all of the information that the Committee has received to date, including the District Attorney's contribution in the letter from the Sheriff; clarify concerns regarding what activities do or do not apply to the Ordinance, including input from County Counsel under what terms and conditions the Ordinance applies; include a sample Annual Use Policy report, similar to the Acquisition Policy with respect to closed circuit television as an example, relating to body worn cameras including the interim steps that would go into making that final report, and a description of any procedural changes that would need to be made in processes that currently exist in order to meet the policy objective, and to determine if the report creates an undue burden; and, include an analysis from County Counsel inclusive of the four points referenced in the memorandum that was put forth in the agenda packet, with clarification prior to Board consideration whether the proposed Ordinance has an impact relating to Senate Bill 178.

The Committee recessed at 5:18 p.m. The meeting reconvened at 5:26 p.m.

RESULT:FORWARDED [UNANIMOUS]
MOVER:Cindy Chavez, Vice Chairperson
SECONDER:S. Joseph Simitian, Chairperson
AYES:S. Joseph Simitian, Cindy Chavez

Transcript

Feb 11, 2016 2:00 PMFinance and Government Operations CommitteeRegular Meeting

 

3:07 PMSpeakers we have, we have a two minute rule, so we'll be asking folks to limit their remarks to two minutes or less if they can, and i'm going to ask -- I have Mr. Coelho here from the county counsel's office who's been working diligently and at length, thank you, Mr. Coelho, thank you, Mr. Korb, for your assistance in that area. Do we have anyone either from the public defender's office t district attorney's office or the sheriff's office, if you would just join us in the front here so we can just use you as resources and if you have some comments at some point here in a moment, we're certainly happy to entertain those. We have -- I want to use you all as resources, and take advantage of your expertise and i'm not sure if there's anyone here from the sheriff's office, we have a letter from the sheriff certainly. Alright. And do we have cards from everybody would wishes to speak just so we can roughly gauge how long all this is going to take? Let me go through and count, we have 10, okay, I think this is manageable within the time constraints that we've got, and supervisor chavez, what I would like to do if you're agreeable is I want to do a brief recap of sort of where we are and how we got here and what the fundamental goal is, then indicate what we've heard and who we've heard it from, let folks from the public defender's office and the district attorney's office add to the letters if they wish to do so, then hear from members of the public, but I think sort of laying it all out first would be helpful and i'm just going to ask for a moment or two of patience from folks on that front. What we have before us today in item 15 is a surveillance ordinance that is proposed that has been heard a number of times here in this committee. My thanks to the district attorney's office, to the public defender's office, to the sheriff's department, they've all been helpful in putting their comments in writing, the district attorney not once by twice at my request, so double the thanks there, and we have copies of that correspondence that are a matter of public record, we have them here and i'm looking to my staff in the back, I think we put copies out at the back table for members of the public would want them, so they are there. And -- but I first want to take an overaveraging view of what we are and not trying to do, the goal -- the reason i'm talking to you directly is I would like to have two vote ins support if I can make the case effectively -- the goal is not to prohibit the acquisition of any surveillance technology, and it's interesting, you know, there are folks who I think have misunderstood from the beginning of this conversation, there is no prohibition on any surveillance technology acquisition or use in the ordinance. The ordinance -- the proposed ordinance doesn't do that. What it attempts to do is say, before we use public funds to acquire and use a surveillance technology, we should do just a couple of things. We should make sure that we have an anticipated surveillance impact report, meaning we should ask a few questions and we should get some answers so we know what the impact of the technologies acquisition and use will be on the public's civil liberty and due process rights. The other thing that is expected pursuant to the proposed ordinance is that we have in place before we acquire the technology a set of policies and procedures for review and approval by our board to make sure that once if acquisition has been completed, everybody knows ahead of time what the rules of the road are going to be. Those are the two requirements, and my view from the outset has been, if we're going to be using public funds and if we're going to be putting this technology in the hands of public employees and any liability associated with their use or misuse is born by the county, then we just ought to ask ourselves, because we acquire the surveillance technology in question, what are we acquiring, why are we acquiring it, how is it going to be use and had what kind of protections will be in place and then what do the rule to have road look like. One of the concerns that has run through the conversation to date has been that this has the potential to be unduly burdensome, and I think it's important to point out just how manageable this is and I want to particularly express my appreciation to the district attorney's office for notwithstanding the concerns that the office still has, for calling out the fact that it's not those two item that is are the greatest source of concern in terms of the burden, in fact, if we look back, the district attorney's office who supervisor chavez you recall recall had some responsibility back for security camera guidelines has already done a very nice job of providing guidelines for security cameras, the whole document is less than 8 pages long, and this is exactly the kind of guidelines and policies that we would hope we o could get before we acquired any technology. So, it is something that is not terribly burdensome, it's something that not only is quite doable, it is something that has been done and it is something that is now in place with respect to this particular acquisition that guides the use of the technology and protection protects us in the ways that I mentioned. Similarly, supervisor, you will remember we had a recent conversation at our board of supervisors about the purchase by the sheriff's department of -- I think it was four gps trackers if I recall correctly, the amount of money was relatively modest, and at my request, the board was good enough to put the item off for a meeting or two, and to bring it back after the sheriff's department had answered a number of questions -- those are the very kinds of questions that we would hope to see asked and answered in the anticipated surveillance impact report that would be required prior to the acquisition, the sheriff's office managed to pull them together in a space of just a couple of week, they were literally I think two or three pages long, my staff has looked at them and incorporated about 75% of that work probably into a document that we managed to stretch to no more than four pages long, so I mention all this because it is absolutely not my sbenlt and it's certainly not my expectation based on the language that we have drafted in cooperation with county counsel's office to impose an undue burden, but if we have as I say an 8 page policy for guidelines, for closed circuit television, tla's not unduly burdensome, it can be done, if we have a three, four page document that is sufficient to answer the questions that are laid out in the proposed ordinance for a surveillance impact report, again, not unduly burdensome. The third and faounlbacker final requirement is for an annual report, which is basically nothing more than a check-in once a year to say, okay, great that we had that anticipated surveillance impact report, great that we have policies and procedures in place, can we just be sure that that's what we've been doing during the curse of the past year and have somebody report back. And those are the three elements of this -- the core elements of this proposal. Ask yourself beforehand what you're getting, how you're going the use it, put some rules in the road in place, come back once a year that's what we've been doing or there's been a problem, that's the proposal. Now, I think and i'm looking at Mr. Welsh from the district attorney's office, i'm looking at the district attorney's letters, the greatest concern they've had with respect to the potential burden and based on my conversation widths the sheriff's office, I think this was a similar concern was that the annual report function could be unduly burdensome, Mr. Welsh, is that a fair summary of the latest content?
3:17 PMYes, that's one of our concerns.
And I think there is a simple misunderstanding here and I believebacker I think there ought to be a way to resolve it. I think that the district attorney's concern or the sheriff's concern is essentially every interaction, every individual use of a surveillance technology would essentially have to be documented, recorded and turned in as part of a report at the end of the year. That is not what the ordinance anticipates, now, Mr. Coelho, I know you have only part of the responsibility for drafting because we've taken some of that on in my office where there were particular policy judgments to be made, but I just want to be clear, that has not been your understanding of what the annual reports would be about, because this has been part of the proposal from day 1.
3:18 PMYou're correct, supervisor, in fact, we did not add details saying that there's a requirement to identify the number of times surveillance technology was used and describe specific instances, it was more major categories of that were required, an overview of how it's been used over the last year.
Got it. so, I think we're really at a point on that one where we don't have a lot to disagree about except perhaps the need for language that clarifies the limitations on our expectations with respect to that third piece. Then the one other sort of question, and supervisor chavez, you will remember that as the never ending paragraph 9 debate, and the obvious question, and I thought it was an appropriate one from law enforcement is, well, what about a circumstance in which we have an immediate need to acquire and use technology which we have not already vetted in this way, and the answer was, let's see if we can't find a way to permit that to happen with a report back in some reasonable period of time. And so the paragraph 9 language that exists today says in effect, if you haven't been able to do this -- if you haven't been able to acquire the technology pursuant to the regular timeline and there is frailly an xi gent circumstance, a real emergency, using language that has come from state law that was promulgated this year, do what you have to do and get back to us within 90 days and i'm going the look to county counsel's office and to my staff and my recollection is without flip tog the page that we've now said, and by the way, if you can't get back to us in 90 day, feel free to ask us for another 90, am I remembering that correctly?
3:20 PMYes, supervisor, that was the addition that you ask be added this time.
Thank you, because we didn't want people to feel they were under the gun in terms of time, but we wanted to make sure that this was limited to temporary uses and that as soon as reasonably practicable after the temporary use, that we were back in the routine process of simply saying again, here's what we're using, here's why we're bussing it and ear are the rules of the road by which it will be used. So, we had some tension there and i'm sort of trying to lay all this out for our discussion today and members of the public, between the district attorney's office which is concerned about the fact that the phrase reasonable suspicion is no longer used in section 9 and the public defender's office who sent a letter in support who specifically says they don't like the term reasonable suspicion because they think it's unduly broad and in this instance, I came down on the side of the public defender's argument or relatively early on, and in fact, that debate played out on the front page of the san francisco chronicle in late November with a front page headline that says oakland racial disparity over vague police tactic that -- with a paragraph that begins police in oakland disproportionate search african americans under the program terse of reasonable suspicion, end quote, a vague legal standard that can amount to an officer's lunchbacker hunch, i'm guessing the district attorney has a different assumption of what reasonable suspicion means, but I came for purposes of putting a [inaudible] concern about the overly broad nature of that term was a legitimate one, so i'm going to stop there. We have in front of us today an ordinance that I would be happy to vote for and move forward, consistent with the brown act I have no absolutely idea where the three other colleagues are that don't sit on this committee and we held off to get to yes in this committee until we could find something that says no, this is what we're talking about, which is why I appreciate the public defender and the district attorney being here, as well as members of the public who have been here with us repeatedly to comment. Before we go to members of the public, do you want to offer any other comments. Supervisor chavez and I have the let esinger, they are in the back, thank you for both organizations for prem mel gatling them, and if you would like to say anything else at this time, please do, then we'll go to members of the public. Er
3:23 PMMy comments will be relatively brief, I want to start by stating that this is an extremely important ordinance to the district attorney, he has studied it carefully and has instructed me to do the same. That's why we submitted two very detailed letters outlying our concerns both practical and legal. Mr. Rosen would have enjoyed being here today, but he is chairing the cejac steering committee and they're meeting right now, for that reason, he was unable to attend. We alluded to some of our concerns about the legality of the ordinance, I think more specifically in our second letter, and the district attorney is asking that the board of supervisors request a legal opinion from county counsel on two specific questions, one, do senate bills 34 and 741 pre-empt county regulations in the area of surveillance technologies, and two, does the proposed ordinance as currently written infringe on the district attorney's and sheriff's state constitutional authority to investigate and prosecute crime and train an assigned personnel as necessary. I appreciate senator simitian your belief that compliance with the ordinance as currently drafted will not be unduly burdensome, but I am greatly concerned that compliance with the ordinance will prove to be very difficult. Setting aside the legality, i'm looking now solely at the practicality, because the failure to comply with this ordinance can lead to criminal liability for police officers and district attorney investigators, and therefore compliance with the ordinance is paramount. We are concerned, one, with the definition of surveillance technology, and what technology will in fact be encompassed by that definition. And how do we get an answer to that question before we embark on potentially purchasing a piece of equipment? Are we to turn to county counsel and propose the question while we're buying some gps equipment, do you believe that meet it is definition of surveillance technology, do we turn to the board for that answer or do we rely on our own legal expertise in defining that term as we think it should be applied and then act accordingly? So, that is one of our chief concerns, when a piece of technology will be encompassed by the ordinance. I would agree that to the extent we can readily identify a piece of technology by being encompassed by the ordinance, that finally anticipated impact report is probably not that difficult, but i'm concerned about filing the annual use report and some of the requirements to categorize for example whether the use of the technology was successful or not, I don't know how an investigator is to keep track every time he runs a license plate in a database, whether his running of that license plate was successful or not. He May get a hit, but does that mean it was successful in terms of furthering the investigation? So, we're asking our investigators to stop in the middle of the investigation and not just work on investigating crime and silvering crime but now they have to have an eye toward how are they going to complete this annual use report, that's what we're concerned, it's going to detract from their important work of assisting the prosecutors in the office or the sheriff deputy who is are working on solving crime. So, those are the chief concerns that we have. We've laid them out in great detail in our two letters and unless either member of the board has questions for me, you know, I have no further comments.
3:27 PMThank you, I think that's very helpful. Let me provide a preliminary response before we go to the public defenders because I want to tee these issues ufp for conversation not only between supervisor chavez and myself, but for members of the public, on the issue of authority and preemtion, I think these are legitimate issues, we've been talking to the county counsel all the way along, I think it's fair to say that to date, county counsel thinks we've been coloring inside the lines, but if you are hopeful we'll have that conversation in closed session to get some direct legal counsel, i'm going to look to county counsel and say are we in a position to do that? Because I think I heard the most gracious of potential litigation threats coming from the county district attorney just a moment ago.
3:28 PMWe could probably have -- again, I need to take a look at it closer but my guess is we could look at the facts and we might determine that there would be grounds to go into closed session. We're also prepared to analyze and report back to the board off agenda if you are interested in get k information in response to the --
3:29 PMWell, an opinion letter from county counsel is always a confidential document, i'm happy to ask county counsel to provide witchy that legal judgment so that a ul five members of the board are fully informed about what county counsel's view is on those. I will point out because I know that the aclu has weighed in on this. Amongst other thorts, the board maintains, i'm quoting now from a letter or an e-mail from the aclu, but I did a little homework of my tone verify their citations at least, they remind us that the board maintains the authority to supervise the official conduct of county officers pursuant to california government code 25303 to enter into contracts, 23004c, and unless delegated to a county officer or employee, the authority to accept and receive gifts from a government entity, and that additionally, government code section 23004d provides that the board May manage and control property acquired for county purposes. And therefore the county can exercise control over the sharing of surveillance technology and data with other non-county entities. Those are some very basic grants of authority from the government code to county governments, but that being said, we have not only the right but we have the obligation to pass a county budget on an annual basis, so with we pass a county budget, we have to say, what are we buying and how is it going to be used, and supervisor chavez will remember the rather lively exchange that I had with the sheriff about the sting ray proposal that was made and at the time, the sheriff was very clear in reminding the board that if we had approved funding and didn't know what we had approved it for tha, responsibility rested with us and I thought her comments were well taken and I just want to make sure going forward with we approve funding, we know what it's for and how it will be used, that it will be used in a fashion that is consistent with the policy values of our community as articulated by our board and that it doesn't open us up to multimillion liability which will be born by no one other than the county if there is a misuse or abuse of the technology, but as to the authority issues, i'm happy to go to the county counsel's office and make sure we have been fully and properly advised before we move forward. With respect to the definition of surveillance, we have tried to -- I take your point that no one should be accountable for the implementation of a law or language that they can't understand, and i'll look to the two of you if I remember void from vagueness from my first year of law school, what we tried to do is provide a long list, so supervisor chavez f you look at the ordinance language, you will see there's a long, specific list of technologies which would be covered, but we've used the phrase as well, including but not limited to, and the reason we've done that is because that makes the ordinance future proof, and by that, I mean that if somebody comes up with a new gizmo tomorrow and attempts to use it in a way that compromises civil liktbacker liberties or due process, we want to make sure it's covered and that it doesn't mater to slip through a loophole in the law because the law hasn't kept up with the latest technology. That interestingly is the way silicon valley businesses have urged the state and federal government to legislate because what they've said and I think they make a good case is you don't want to ban the technology, you want to ban the bad behavior, so what this surveillance definition is very consciously trying to do is say there's nothing wherein with any of these tech nogs which I say there is no prohibition on the use of any of these technologies it is the wisdom in which we use them, so we try to exercise good judgment about how we use them and we're trying to make sure we put out the list as fully as we can to give you that certainty, but we make it future proof if there's some new advent in technology, and the other thing i'm going to say, is that when somebody's trying to determine what other items are included, they look to that list to give them guidance about the kieds of things that might be excluded and I think we've got a pretty good definition here on that front and I don't want it to be overly narrow because I think that that becomes too much of a loophole, and then the last thing on the annual use report and particularly with respect to success, no, we're not asking for folks out in the field on a daily basis to do this, let me give you an example of something that might be in a report. If you've been authorized to spend money on license plate readers, then I think it's not unreasonable to say at the end of the year, how many hits did you get? You looked at 100 thousand license plate and is you have them in the database, out of that 100 thousand, did that produce some reasonable number of stolen cars that you were able to identify and return to their owners, did it help you catch two or three folk who were criminals that you had a wanted out on, that's the thing we'd like to know at the end of the year and frankly if the technology is serving the public well, I think it's going to be a useful tool for you to say in balancing the healthy tension between privacy safeguards and public safety, we think we have a good story to tell in term of how much money we spent, here haoes how minimal we were able to make the impact on public privacy or due process and here's how great our results are in terms of the number of folks who were reconnected with their vehicles or who were apprehended because they should have been, so I think we can work our way through all three of these and we May have to agree to disagree on some of these pieces but I wanted to tee up the other point of view. Then from the public defender's office, I believe it's Mr. Gutierrez, yes, would you lean forward and introduce yourself formally and share any thoughts you have, we have the let frer the public defender, but I appreciate her weighing in as well.
3:35 PMTla's correct, good afternoon, my name is andy gutierrez, i'm the research supervisor at the office of the public defender, we don't have specific comments with regard to the preemtion of the authority issue, we'll leave that to county counsel, but I am here at the question of molly o'neal, she couldn't be here today, she wanted me to make the following comment on behalf of the office of the public defender, what I would say is that our comments are more broad based and speak to perhaps the essence of the proposed ordinance, we live at a time when government agencies are collecting increasingly vast amounts of digital and/or electronic information, much of that information can be tie today a particular individual. The ability to store such information is likewise increasing dramatically. The fact that local government agencies can collect and retain such a vast amount of data create as serious privacy and s if liberty concerns. Given this enormous power over information, government ating sis are entrusted with enormous responsibility. We must be responsible stewards of the information we collect on individuals. That responsibility begins with knowing inventory and reporting in a transparent way on what we collect. This proposed ordinance with its provision in section 9 allowing for temporary use in xo gent circumstances fairly balances sub lick safety needs with civil liberty and privacy concerns. While this ordinance will impose [inaudible] on county agency, the public has the right to know what information is being collected about them, how it is being collected, how long it is retained and what policies and procedures are in place to make sure this information is not misused and/or improperly accessed or disclosed. In this regard, this proposed ordinance is in line with recent state legislation requiring government agencies to inventory, standardize and publicly disclose their digital data collection systems. I'm referring to sb272 and also sb178 also known as cal epa, this proposed ordinance considered today is certainly not the last word on this subject as information and digital technology is evolving, but it does set a dialogue that has to be had today and a framework.
3:38 PMThank you very much. gentlemen, thank you both, please stay with us if you can and thank you to both your offices. And it's easy for me to say thank you to the public defender's office because they have a support position, for the district attorney's office, let me say it's equally easy to say thank you because I so much appreciate the way in which the back and forth has been undertaken, it's been a respectful and constructive dialogue, I hope the view of the district attorney's office has been a bilateral effect, ream important as jobs as board members to craft policy, to listen to, to hear from folks who are going to be in the field on a daily basis and my hope is i'm not sure i'm going to be able to bring the district attorney or the sheriff along, if there are legitimate concerns that the district attorney's office shares during the course of the conversation, we've tried to incorporate the responses into the document so far and we've been able to do that to some extent, tla's why it's a different document today and i'm prepared to continue to do that to the extent that we identify legitimate concerns that we f we can address while still maintains the fundamental effectiveness of the ordinance, so thank you to your offices. ( calling speaker names ). If you would call come on up and get in line so we can move efficiently through the time we have and we're going to ask you to limit your remarks in two minutes and tell us what you think.
3:40 PMThank you, first of all, thank you so much for bringing this up, it really is a vital topic and I very much appreciate the input. There are a couple of things, one is, wouldn't fish and game be require today comply with this? I read quickly and it certainly seems like they would be, i'm not sure that's the intent, they survey lots of animals, the eu, the right to be forgotten, if your data is picked up by a sting ray device, completely innocent, why should that be retained? There in my view should be a way that that information should be purged as is readierbacker require ined the eu. Another is the discipline, so in case of an egregious violation, the language of an employee would be discipline, tla's weak in my opinion. I would hope it could be strong e termination. The legal limit I think is set at below what small claims is, 7500 and then $100 an hour, that seems way too low to be an effective deterrent for bad behavior for misuse. Lastly, I didn't hear anything about the -- or see in the packet I should say what two of the leading organizations have said about this, the aclu and the electronic frontiers foundation in san francisco. So, I think this is a wonderful start, I appreciate it, I think that it should be more comprehensive and thank you again.
3:42 PMThank you. thank you very much, before I call up our next speaker, I want to do something different, supervisor chavez, i'm going to try to comment on some of these items as we go so they don't get lost along the way or subsequent speakers don't have to repeat the same case. I want to let the speakers know, the $7,500 figure is a maximum that someone could claim for legal fees if they were challenging the behavior of someone in the county, and that figure is taken directly from a comparable provision in state law so that the two are consistent, and that was a -- it is a low threshold, it obviously protects the county frankly from somebody out there looking to rack up big attorney fees but still giving someone with the good time effort, I put effort to do the right think, I want some recompense. With respect to discipline, I would ask all of the readers to note, as the district attorney's office noted earlier, it's a criminal offense to deliberately with intent violate the ordinance, the language about discipline is separated out and this follows a conversation with the district attorney, the language about discipline has been separated out to say that retaliating against somebody or making a good faith complaint has be a legitimate basis for discipline so that we don't in effect chill the ability of employees to come forward as whistle blowers but a deliberate and intentional violation of the ordinance is a criminal offense so it's not simply the basis of [inaudible] and then on the right to be forgotten, yes, one of the critical issues i've been concerned about, as we collect all this data in an era where storage has become so inexpensive as to be negligible, when is it time to push the delete button, that's the type of thing that would be in a use policy so we'd know if we were going to use lpr, that after some reasonable period of time, that the location of law abiding citizens would in fact be deleted so all of those issues were ones I wanted to respond to in realtime so it was understood as we go along, thank you to our next speaker who's going to come forward. If you will introduce yourself, thanks again.
3:44 PMHi, nabl angelou, i'm an organizer at the aclu, we are in full support and excited about this ordinance. I want to first thank both of you for your ongoing attention to this issue over the past year, it's been over a year I think, as the county works to get this right. I also want to thank the county executives, the sheriff, the d. A. And the public defender for engaging in this issue and for there being an opportunity for the public to meaningfully weigh in to how to view surveillance in the county tha,'s the spirit of this ordinance. I'm here to encourage you today to move this ordinance to the full board on the same day that scientists announced a groundbreaking discovery, gravitational waves, we can make it a groundbreaking day all around, this too is ground baek, it shouldn't be groundbreaking because it is simple, basic oversight and transparency and we believe that these mechanisms will enable the county to make thoughtful, cost effective and smart decisions about surveillance, decisions that the community can get behind because they will trust that it's being used for public safety without eroding their rights or being misused against specific communities in unfair ways, so thank you again, I encourage you the support this and move it forward.
3:46 PMThank you for your comments. ( calling speaker names ). Welcome.
Hi, thank you for letting me speak. So, my name is jamar hamond, I live in district 3, i'm a resident, I moved down here last year, I support this ordinance because it's vital that decisions like this are made in a transparent way so people know what's going on and not up in arms when they find out later on is so everyone just knows right upfront. I personally experienced being individually targeted by police surveillance tactics over things like disagreeing about jaywalking tickets and bicycle [inaudible] and I found afterwards that I was being hacked and tracked in my movements, I assumed it was like gps stalking on my phone or something like that, thanks to savvy thinking on my part, I was able to avoid some unpleasantness and not get killed like some people are being, but I think that it's very important because when you take a stand like I went to ia after a while, I couldn't take it anymore and I found that I was being stalked even more, so it's nice to have the safeguards so that there are limits to what can go on and make sure that people are held accountable, and I just want to say, yeah, go on with this and it's a good step and I hope there will be more people in other parts of the country doing this.
3:47 PMThank you very much for your comments and thanks for being with us. ( calling speaker names ). Welcome.
3:48 PMMy name's mike chase, i'm speaking today as a citizen. I urge you to go ahead and move the ordinance along, I think it's a good ordinance and I was especially mindful of councilmember simitian, board member simitian's comments of future proofing, I think that's critically important and certainly appropriate to silicon valley, having said all that, I think the ordinance is not perfect, so I would like to make a few points about ways in which I think the ordinance could be improved, in section 7, pardon me, let me go back to something else, yes, in section 7e2, I would suggest replacing and the uses that are prohibited with and a statement clarifying that all other uses are prohibited. I think this is critically important so we do not have a prohibited use selection and an allowable uses section with a murky gray area in between.
3:49 PMCan I ask you to repeat that, please. Er
In section 7e2, replace and the uses that are prohibited with and a statement clarifying that all other uses are prohibited.
Thank you, please proceed.
The other one is -- or another important one is in section 9, in subsection 1, 2 and 3, I would replace 90 days following the end of those circumstances with 90 days following the initial acquisition or use, whichever comes first. This is because the circumstances mentioned in the ordinance could continue indefinitely. I have a few more seconds so I will just do one more or maybe i'm out of time.
I used up some of your time, go ahead fm
3:50 PMIn sectioned 1, I would replace deploy with acquire, which specifies acquisition. Those are two separate stages, acquisition proceeds. -- precedes deployment. [inaudible]. It could be one day before or two hours before, which I believe is not the board's intent sx, the last one, in section 4, I would replace the language out weigh the costs with out weigh both the initial and ongoing costs.
Thank you, if you would share your comments in writing either with the clerk here or with my staff member brian who's going to raise his hand in the back row, I would appreciate it.
Thank you so much.
3:51 PM( calling speaker names ).
Thank you very much, my name is samina, i'm on the counseling of [inaudible] islamic relations, thank you for considering this proposal and the efforts that you've heard in order to try to push this forward. I strongly urge the committee to move forward with adopting this surveillance ordinance. It's important that here in santa clara county, we set an example for the rest of the country by ensuring there's properly analysis of proposed -- of any proposed surveillance technology, proper oversight and public input. We should not be making rash decisions about surveillance technology and elected officials shouldn't be forced to make last minute decisions to aproved or not approve technology, without such considerations, our community will find itself saddled with expensive and overly intrusive technology. This allows us to make smart decisions and that includes all the stakeholders, community members must have the opportunity to have -- to be able to be informed of this and informed of the process, and I believe that having that type of transparency will be able to strengthen and help rebuild trust between the community. Thank you so much for consideration this again and I urge you again to push this forward.
3:52 PMThank you for your comments, thanks for being with us today. ( calling speaker names ).
My name's shahad, i'm with graosz roots advocacy, and i'm here to thank you for your leadership and urge you to forward the proposed sal with the board of supervisor widths a favorable recommendation, there are a few points I want to make, first around the country, law enforcement agencies have sought forgiveness presuming permission to deploy military tools in communities without prior approval without local legislators and particularly without the post deployment oversight to ensure compliance with constitutional limit and is that context legislating affirmative requirements or arequiring using or beginning the procurement process for surveillance technology is [inaudible] the first point I want to make is with respect to the device neutrality of the proposed ordinance, that is to say future proofing it, it is important to require forgiveness -- permission rather than forgiveness, the papt earn and practice of law enforcement agent sis around the country is to acquire first, use and then ask questions later. It's worth noting that sb34 and 741, two of the measures that the sheriff's office cited as potential concerns for predemising, this ordinance does nothing more than ensure the going forward effect of those state measures which were pegged particularly to two pieces of technology, automatic license plate readers and sting ray devices which have been used by law enforce l agency ins the state for nearly and in some cases over a decades wha, the california state legislature did last year, tried to close the bond years after the horse left, future proofing is critical to make sure that does not recur, we have some ideas with respect to the definitions both to tighten them, specifically adding communication and is biometrics to the list of proposed definitions and for them to address some of the unburdened concerns.
3:54 PMAnd any written information can go either to our clerk or to my staff and we would appreciate it and before we take the next speaker, in the [inaudible] category, I know we had a card with someone are the investigator's association and it still is not in the pile, if you could hand it in and I apologize for making you fill out the skard twice.
3:55 PMMy name is michael o'brian and i'm a resident of santa clara county and also an aclu board member with the midpeninsula chapter, i'm here to stand in support of the ordinance and to urge you to push forward to a vote.
Thank you very much, thanks for being with us. Next speaker.
My name is jerry schwarz, i'm a resident of palo alto and a volunteer with the aclu, and i've been here several times on previous hearings on this ordinance and I am very pleased that it has gotten this far and I would not object to it going forward, but if it does go forward, I will repeat a comment I had I believe at the last meeting, which is it's not clear what happens -- what the requirements are with regard to transfer of data to third parties and i'm in particular concern with alpr's where it seems to be widely available. There was an article in the oz tekhnica website three or four months ago in which they had obtained every record from oakland and I believe they got it from vigilant, I don't remember how they got it, they got every alpr record from oakland and it seems to me if that would be possible for oakland, it might be possible for santa clara county, and somehow that has to be covered in a use policy and it's not clear to me that the current state of the ordinance requires that. It doesn't exclude it, but it doesn't seem to require it, so I want to thank supervisor simitian for all your efforts in this area. It has been very impressive and in particular, your efforts with regard to the sheriff's -- how many months now, six? A request to require a sting ray.
3:57 PMThank you, Mr. Schwarz. ( calling speaker names ). I believe that is all of our speakers, welcome.
3:58 PMHello, one more time, i've been down here several times the talk to you about this order nants, tracy rosenberg from the privacy working group and from media alliance, I would like to address three points, the first is the reference to state bills 741 and sb34, and I bring those up specifically because I travel to sacramento on several occasions to testimony on behalf of those bills, what I want to clarify in this space is that those bills were transparency equipment ordinance, they were very specifically set out requirements for usage policies and usage audits, exactly the same process that we are seeing in this ordinance that we are considering today, so the idea that they would pre-empt or contradict or in any way were not congruent with each other is not an accurate statement, and it's important because we're walking in the path of several trends, both statewide and nationally that have been going on in terms of how do we provide oversight for the use of this equipment, so we are not jumping out into some place where no one else has ever gone, we are following state and national trends, we're just trying do do so in a global way so we don't have to pass 7 different ordinances for 7 different kinds of surveillance equipment this year and then next year, pass 7 more ordinances for what develops in 2017 because your time is too valuable for that. I encourage you to take a look at the let ner the packet from my colleague, brian hofer who is with the privacy commission in oakland, these are ordinance specific and there are some helpful comments in there about the correct definition of burdensome, and if you look at the issue of preceding thing in exams and if you look at the issue of knowing with certainty what permitted uses are and aren't, then I think you can maybe redefine the word burdensome into not having to guess and lowering the opportunity for the kiepds of mistakes and abuses that happen -- that have happened.
4:00 PMAnd I would say thank you at this point.
So, thank you.
Thank you again. alright. Welcome.
Thank you, I was going to give her one of my minutes.
My name is michael witting ton from the district attorney's investigation, I will not take much of your time, i'm currently opposed to this measure as it's currently written from a labor standpoint fr, my investigators, it is important to me that their faou khu, whether there's something intentional or accidental in the process of doing their job does not force them into a misdemeanor court violation or something that they're facing basically losing their jobs and I know this is a long written document and a lot of analysis is going into it by us, but with this current measure from a labor standpoint, we are opposed, thank you.
4:01 PMThank you, and I just want to underscore for you the fact that the language involving a misdemeanor is very clear about the fact that it has to be -- it can only be a misdemeanor to intentionally use county owned surveillance technology for a purpose or in a manner that is specifically prohibited in a board approved use policy or without complying with the terms, and I just -- I want to underscore for you the concern we had in drafting to say that means that if you were channeled, anyone were charged by the district attorney, they would have to prove that there was an intentional misuse and that there was an intentional misuse in a manner that was specifically prohibited, so a pretty high bar for a misdemeanor, and I don't expect you to change your mind, I just want the make sure people understand that that consideration was taken into the drafting of the document.
4:02 PMYes, sir, and I noticed a lot of that, however I noticed a lot of the verbiage, anything now can be considered of surveillance, google earth, google, i'm not saying we are not for oversight or accountability, but far from it, we are all for it, in our association, the ultimate accountability's in court for us, so we don't want to violate those things but by having a vague or broad topic where there could be some type of thing that could trip us up, that could cause tremendous issues down the road in a criminal prosecution, as well as on the labor side as far as how our investigators do work, simply put at this current state, we're opposed and I want to say thank you very much, have a good day.
4:03 PMThank you, next speaker is paul don hue to be followed by sasn anywhere.
I'm paul don hue, I want to thank you again for looking into this ordinance and i'm glad that this ordinance -- as you outed earlier, doesn't hamper the appropriate use of surveillance technology because there are appropriate uses, it just really makes the decision on what's appropriate and what's not, a public decision where people can give feedback and take part in the debate. One concern that I have is on section 9 is as you've probably heard a million times, but i'm concerned about perpetual xe jens sis because for instance, terrorism is an angoing concern and that involves the danger of death or physical injury, and i'm concerned that rather than making the report required after the beginning of the xe generals si, it's after the end of the xi generals si, if it doesn't end, no report would ever be required so that is one area that I would suggest improvement, overall, I think this is a great ordinance and I hope that you recommend it to the board.
4:04 PMThank you very much for your comments and I believe our last speaker is asan newer, welcome.
I'm asan, a resident of san jose and I wanted to support the ordinance and it increase it is public's trust and not only the purchase of surveillance equipment but how they're used for that, i'm very thank fm. The opposition by the district attorney's office regarding the great burden cause is a cause by alarm by itself, if f the county is considering using so many surveillance equipment that book keep ising not feasible, we already might have a problem, so thank you.
4:05 PMThank you for your comments and again thank you for being here. Let me make sure before I bring the matter back to our full committee that we have all the cards, the clerk has no more cards, anybody else from the public who wants to speak ? Gentlemen, any additional comments either of you want the make? Mr. Welsh, no, Mr. [inaudible].
No.
Okay. supervisor chavez, comments, questions, thoughts?
Thank you, I would like to ask just a couple of very broad questions and maybe if it's alright, i'll start with you and then i'll ask you both some questions. To begin with, i'm just going the start with the last couple of items that we've heard. One is, what was the consideration of adding the criminal penalty to the actual ordinance and then let me couple that with a second question which is i'm curious about what the penalties are now irrespective of the ordinance for someone to violate the law because in some instances, the concerns that are raised or outline ined the document appear to be unlawful on their face, although I don't know the answer to that in every circumstance, I more mean this broadly.
4:06 PMWell, the misdemeanor is present in order to make sure that there is some real authority behind the prohibition, so that it is clear that this is an unlawful act. A board policy does not have standing in terms of the law and in fact we see violations of board policy on a fairly routine basis here in the county and we go about our business and in fact any type the board of supervisors has three votes to simply waive a policy, we do. So, the notion was let's try and strike the right balance, could have said a felony under some circumstances, didn't want to go to that level, but a misdemeanor while a criminal offense is the lowest form of criminal offense there is, but it was designed to say, let's be klaoe, it's against the law to engage in this conduct. That being said, because it's a criminal offense, there's already a relatively high bar to getting a conviction, you have to prove a guilty intent, that's the -- sort of the first year law school criteria that you learn, but as I said, we wanted to be clear that it had to be an intentional abuse of a specifically prohibited behavior, so the language is about as highbacker tight as it can be in paragraph 12 with respect to saying, you know, should someone be -- so, let's say for example that the language was vague, I don't think it is, we a have difference of opinion on that, let's say the language was vague, somebody shows up in court and say, how am I supposed to know, the language was vague, the district attorney's office would have to prove not only that they did the thing that was prohibited, they had to prove whether it was an intentional violation of the law in order even for a misdemeanor to be in place. Now, to the point as to whether or not some of the things we're talking about are already unlawful, they are, but many of them might not be, so for example, it's not clear to me what's going to happen, we have one case that was pretender -- reported with one of the cijic staff [inaudible] and we had allegations with the correction staff misusing it, i'm not clear what the penalty would be, in this case, if this law was on the books, this ordinance that was proposed and if we had a specific policy in place that had been reviewed and approved by our board of supervisors, that said, can't use the cijic database for any other purpose than its lawful purpose and for the purposes that's there, if you violate that provision and it can be proved you did so intentionally, and that that was a specific prohibition, you would be guilty of a misdemeanor which again is the lowest form of penalty for a criminal violation, and unless it's an infraction to be clear.
4:10 PMBut to use that example in the case of misusing cijic, as I understand it td. A. 's office is taking action on that matter because it is unlawful, potentially unlawful. There's an allegation potentially unlawfulness, correct?
Right, in the penal code and/or the government code tha, would apply to unauthorized access of a criminal database such as cijic. Er
How about the license plate reader database?
I'm not aware of any law right now that would criminalize the unlawful access of an alpr database.
So, to then use the example that wouldn't be already prohibited by law, if we have an lpr like the display reader database and it has millions or in the case of one of the private companies, 2 billion license plate recognition files and somebody with access to that database said, gee, that's a cute looking 16 year-old get hinting the casing I think i'll go online and find out where she parks and where she hangs out and it's your 16 year-old daughter, and he is or she is looking at the database for what is clearly not for a legal purpose, but is violating a surveillance ordinance that we May have adopted, in that case, if someone could prove that it was intentional and that it was a violation of a specific provision, then they could philly be hit with a misdemeanor charge.
4:11 PMTo follow up on that, what you're saying today, that action that he just described would not be unlawful?
4:12 PMWell, it could be another crime. It could be, for example, an attempt to have an lawful contact with a minor.
Let's say -- we don't know the intent beyond the point he just raised, the point he just raised is that we have safeguards for cijic, we don't have safe cards for this new technology, why would it be a problem for you to marry what we already do for cijic with something that does protect the -- I mean, that's built around those same kinds of protections in moderation?
Because cijic contains information about a person's criminal history, which can involve extremely sensitive and potentially prejudicial information that a person May not want to be made public. For example, whether they were arrested or charged or convicted of certain offenses, and alpr database is document where a person goes on a public street so, those are completely different types of information in my opinion. Now, --
4:13 PMExcuse the interruption, but i'm guessing you're aware of the fact that in new york, the police came under criticism for using alpr technology to track the movements of cars, vehicles in close proximity to a mosque as part of a muslim mapping effort, i'm guessing that you're very mindful of the recent extreme court case with respect to gps tracking and the comments from justice soto myor about how revealing somebody's privacy ravelments are, which is part of the reason the court struck down the use of attracting technology without a warrant, she pointed out that that effectively becomes a road map to a person's religious, sexual orientation, I mean, somebody May be out if the public place and I understand that that's the justification, but as you pull all of those little dots together, all of a sudden, you've created a difference in kind, not a difference in degree, that's why the court took that place, so there May be an employee who -- there tl May be somebody in that database who doesn't want the world to know or law enforcement to know that he or she has been to all these different places by collecting the dots unless it's for a legitimate law enforcement purposes. Er
4:14 PMAnd then it beg it is purpose, why isn't termination from employment a sufficient remedy for a law enforcement officer to misuse the database?
I want to make sure I understand this, the district attorney's office in the instance that we just used, the instance of getting I would consider inappropriately just for the time being getting someone's information because you can, that -- in your mind, the fact -- or is what you're proposing there be no remedy for that because it's not that big a deal? I'm not really not trying to put words in your mouth.
4:15 PMI was trying to draw the distinction why there May not be a law [inaudible] compare today criminal history. I'm trying to draw that distinction.
The author of the bill that was killed by the industry, I can tell you why there's no no state law, the industry or at the time law enforcement refused to find common ground on this issue.
So, i'm sorry, please finish your response.
I apologize. turn that mic. Off, go ahead.
I was trying to draw the distinction.
And I understood that, but beyond the distinction, what do you think is an appropriate remedy and what is the appropriate way to imbed that remedy if it's not at a state level f we were to imbed it locally wha, would be appropriate?
I think there are any number of ways a county, law enforcement officer can be behaving inamroipt in the scope of his or her employment, whether it is improperly accessing an internal database, this would not be cijic but our own internal database, whether it would be improper viewing evidence that had been collected in a case because of its salacious nature, there are a number of thing that is a law enforcement officer could do that would violate department policy and the remedy can then be up to and including termination. The question is, should the remedy also include criminal prosecution, and that is what we have questioned, whether the violation of this county ordinance should rise to the level of a criminal o fencing as opposed to being a fire able offense.
4:16 PMAnd I understand now why you were making the point about the difference between cijic. I'm mindful there's so much information available to law enforcement officers and at least when i've been on ride along, if you look up someone's license plate information, you can get a lot of information about them, including their criminal history, including someone called e 911, so from that perspective, what you're suggesting is -- May not always be really reflective of the way that information -- how quickly you can go from a license plate to quite a lot of information about a person, so anyway televising's why I was probing that.
4:17 PMBut if I may, if you look at senate bill 84 governing alpr, it governs a public agency to have a use and privacy policy to document every time the database is being abinged sashed and had for what purpose, to demonstrate a legitimate purpose, to be subject to auditing requirements but the penalty for violate hating is a civil penalty.
4:18 PMYour concern as a district attorney's concern is only with the level of penalty that's being requested, not the penalty itself?
Right, I mean, we have many concerns with the ordinance, but this is one of our concerns that the intentional violation of the ordinance could result in criminal liability as opposed to civil liability.
So, let me go back to a couple of broader issues that you raised and i'm going to for the purposes of just sort of narrowing down the discussion, I am also very interested in county counsel's response to whether or not there's a conflict and then also the role of the board relative to the d. A. And the sheriff's office, and I have to say this question comes up quite a lot from the d. A. , so I do think at some point we've got to sort of iron it out, and you know, and I will just also reinforce that I think the budgetary responsibility that belongs to the board is a tight balance with the flexibility that I think maybe the district attorney is looking for and looking at, anyway, I think that's a much longer discussion that will have to happen -- continue to happen, but that being said, you commented that you thought the policy as it was currently designed was -- that it had some challenges in terms of being practically applied, and specifically I think you were referencing the reporting, but was that the only concern that you had relative to its prablgtbacker practical applicability was the reporting?
4:19 PMWell, I didn't want to repeat everything I nut the two letters, tha were submitted for consideration.
So, those two letters still stand in term of your concerns?
4:20 PMYes.
Okay.
We're concerned about what could be construed surveillance technology, I think that is a very broad term and I can imagine any number of tasks completed by a law enforcement officer that could be construed as use of surveillance technology, for example, an officer arrives on a crime scene and there is sdaoed dent on a crime seen, and there are officers are documenting the crime scene, in the course of doing her job, she has taken a picture with someone in the background who probably has ? Og to do with that investigation, does that officer now have to document that those photographs were taken? Those are the types of concerns we have, but we're also concerned with the requirement that we become the police agency for every other law enforcement department in the county that is utilizing surveillance technology because it's one thing to talk about what equipment is being purchased by the district attorney's office, whether we're purchasing a tracking device, which by the way we can't deploy without a search warrant, but it's another thing to talk about as the ordinance does this surveillance technology that's used by non-county entities and the results of the use of that technology being shared with the district attorney's office, imposing then on us a requirement to include that information in an annual use report. As we stated, we receive many cases a year, so what are we to do with that information that's been collected by the san jose police department as a result of their use of a license plate reader? When we take in that police report, are we supposed to document, here's now another example of information that's come to us from a license plate reader so we can include that in an annual use report. I think that speaks to the legality of the measure when we start talking about information that we have received from non-county entities, and information that we are using to investigate and prosecute criminal activity.
4:22 PMWhat's the legality issue there? There's a reporting requirement, but what's the legal concern?
What is the authority of the board to require the district attorney to document and to report information that has been shared with the district attorney from a non-county entity? That's what we see as a legal question because now you're going beyond the power of the purse, now you're going beyond, well, county funds have been use today allow the d. A. To buy a gps tracker, now we want them to include in a use report that the gps that they purchased was in fact effective, so how does that further a county policy to examine whether the city of san jose wisely spent its money on a gps tracker, that's why we're questioning the legality of that provision which requires us to potentially report the data that has been shader with us from another agency.
4:23 PMAnd I do want to ask, Mr. Simitian, if you want to give your thoughts to that. Thank you.
We have had some conversation with the district attorney and the sheriffs about the ability to regulate shairg of information and I would agree, we're not a position and county counsel would agree as well, we're not in the position to govern the acquisition and use of surveillance technology by the city of san jose, if they share a piece of information with our organization, we obviously can't put our hands over our ear and is say we're not going to listen because we don't like the way you got that information, what we're trying to do with this ordinance is make sure that if we're going fo go out and acquire technology and use it, that we do nit a way that is fully transparent and where we've agreed ahead of time as to the appropriate use and is the consequences.
4:24 PMBut very specifically, so what you're saying is if the ordinance does not contemplate tracking the use of another city but only when it's purchased by us and used by us?
Yeah, I think there's a finer line distinction, for example, and this is a perfectly good conversation to have, there are services for example, there's a private database services that has 2 billion license plate hits out there. Do we want to spend taxpayer funds on a private service that collects and retains that information without any safeguards? That's a conversation that would then take place that up until now hasn't taken place in this board.
4:25 PMBut just to be clear, the concern that's been raise led, you're not asking as part of this ordinance for the d. A. 's office to track usage by the city of san jose in a case that they're bringing forward?
No. sxfrjts my concern is that the ordinance can easily be read to impose that requirement.
Mr. Welsh, with all due respect, I understand it's your role at this time to raise these questions, but I think it's an overstatement to say it can easily be read to do that. I don't begrudge you or the district attorney for a moment the appropriateness of saying what about this and what about that, but I do think saying that it can be easily read to do that in my view is fak chummily inaccurate. Can I go to Mr. Gutierrez far quick side question, can you remind us of some of the minor thing that is are felonies in life.
4:26 PMWell, we've had a lolt of changes in the law recently, we used to have just basic possession of low level drugs or theft that is were felony, they're now misdemeanors. Er
Illegal dumping.
Illegal dumping, no, it depends on what it is, but generally i'm not aware of --
Is that an infraction?
It could be if it's in an ordinance. There are many county and city ordinances including park ordinances that involve dump hating are infractions, some May be misdemeanors. Er
Drunk and disorderly.
That is going to be a misdemeanor.
Okay.
One thing I wanted to -- I don't know if it's a correction, but there is -- the board is aware of sb34 mentioned already on the books now in california, an automated license plate reader law that requires the operators of such systems to have retention policies and security procedures in place. I think that's sort of a legislative indication that they consider that that type of information that's collected to be private or have some privacy concerns at least attached to them. There are also other state and federal laws that govern unauthorized access of computer database systems that could be implicated outside anything we're discussing today and they've been on the books for some year and is finally there's civil liability, if you without authorize access a database system and obtain information that you're not entitle today and it involves someone's private ? Ftion or they have an exhortation of privacy, the constitution speaks loud and clear, we have a constitutional provision, you could look at some invasion of privacy, there are other things out there that could militate against someone accessing ingathering's tie today a specific individual.
4:28 PMThank you. supervisor, other comments or questions?
Not right now, and I apologize, I know the hour is running late.
Yes, supervisor, how would you like to proceed? I would like to get this out of committee to our full board with the support of both the members of this committee, if that's an achievable thing and I don't know how close you think we are, what other work that you think would be appropriate for us to do, whether we're ready to move forward, come back in a mother.
If we could come back, I heard a lot of good information, I want to follow up with the letters that we got, after hearing this very interesting and important discussion, it's kind of helped me focus a little bit on the couple of areas of concern I have and I would like to follow up and the other thing is I know the sheriff's office isn't here today and I had some questions for them as well, and I didn't get to ask them, so I will ask them to join us at our next meeting.
Would you like us to continue o the next meeting or the meeting after that, I think our next meeting is March 2.
4:29 PMThe following meeting would be ideal.
Okay.
Thank you.
Let's do it the first meeting -- let's do it as a place holder on March 2 so it's agendized if you would like to have some conversation there, but then also let's preserve a place in april, does that work for you, supervisor?
That works for me and I appreciate everyone coming out, you don't have to come out again, but I would like some more information, thank you.
Lfrt, then I think that takes us -- thank you, both gentlemen, thank you to herbs of the public who were here. Then supervisor, we have item 15, this deals with -- excuse me, item 16 -- excuse me, item 14 which we skipped, thank you, that deals with our student groups, would you like to continue this to our next meeting? No, I think that's fine, everybody's been very patient with a long meeting today, why don't we continue that item and looking to the clerk, do we have any other item that is we have not yet taken up? That's it, alright, then without objection, we will continue item 14 to our March 2 meeting. I don't believe we have any other issues before us, so without objection, we are adjourned. Thank you.


Apr 14, 2016 3:00 PMFinance and Government Operations CommitteeRegular Meeting

 

4:02 PMWe're going to move to item 22 which is to discuss the surveillance ordinance and supervisor, this item as you know and as members of the public know has been before our committee for quite some time, I think we've been having this conversation for about a year. My hope and expectation is we move it out of committee today and either with a favorable recommendation, a favorable recommendation contingent on or just move it forward for further debate and deliberation as we go forward, but I think it's time to force the conversation to a more results oriented point. I do think that we have the document in front of us today that has been before us before, so i'm going to -- that's the February 11th version. I should mention that we were asked at a previous meeting by representative of the district attorney's office to look at a couple of issues regarding potential preemgts, regarding any potential conflict of laws issues, we have had a chance to do that and we have a public memorandum in our packets from orry korb and rob could well low, the county counsels that have been working on this with us, and it is dated April 13th, I believe copies are in the back for those of you who don't have them, it is a list of thing that is the committee might consider or our board might consider moving forward, and I won't go through what each of those are, we can get to them in a minute. As I have mentioned before, I think there are some basic understandings that I think are helpful to the conversation because as long as we've been talk about it, they continue to be misunderstood or overlooked. One of the questions I keep getting from people who have had a prolif ral awaremessier, what surveillance does this ordinance attempt to prohibit and the answer is none, just to be clear, it doesn't prohibit the use of any surveillance technology, it creates oversight and accountability process. The next question is, well, then what does the process require sx, the answer is an anticipated impact report, policies in place before you acquire and use something sx, a report back from time to time to say this is how we used it, that's the ordinance in a nutshell and I think once we've talked about those various reports and requirement, people have been anxious to know, is this going to pose an undue burden on the organization, so my mere insurance was no didn't seem to be quite enough for some folks so what we've done and again I think these document ares in the back, we went to a policy that had already been prepared and approved by our board of supervisors as to close circuit television that was prepared by the district attorney's office, it was 7 pages, I think it's about an 8 or 9 page document, 7 pages was the policy and it was prepared expeditiously by the district attorney and I think met with approve by our board, similarly in terms of what an anticipated impact report might look like, how significant is that work, I didn't think it needed to be that heavy a lift, just some basic information, we got that kind of information when we heard from the sheriff about gps trackers, my office pulled together a sample impact report/statement that I think ended up being three, four pages at the most, again, that's at the bah back, so this is not volume nows and it's not heavy lifting in my judgment and i'm saying that not to spar, but just to try and provide some reassurance that the expectations are there's a basic threshold information that will be provided in the pr kress, so why don't I stop there because we have a number of cards. Supervisor chavez, since I am going to ask at some point for a motion to move this forward to our board, I would like to ask you, how would you like to proceed today, we've been at this for a while, we have a document in front of us, we have a report from koelho, we have a number of cards, I think I saw Mr. Walsh raising his hand from the district attorney's office, I think I saw our public defender, ms. O'neal in the room, we have members of the public and I don't know if we have a member of the sheriff's office that's on this item, if we do, thank you very much. So, how would you like to proceed on the hopes we get to yes on? Ing.
4:07 PMSo, why don't we take the public comment and then I want to walk through the document with the questions that I have and then what I would like to do is allow sheriff binged or Mr. Walsh or ms. o'neal to give feedback, thank you.
4:08 PMLet's start then with jerry schwarz, and I should have mentioned, we have received communications from the aclu and a host of other community organizations going bab to last september, but we have a more recent letter to our committee from the aclu which is dated April 13th, we have a letter from the electronic frontier foundation as well and one nay jor comment I need to make, at 2:09 today, we received a proposed surveillance draft from the district attorney's office, we didn't have to process that or to put it into the document today but I appreciate the fact that it's something we could live with alt some point in the conversation, so ms. -- Mr. Schwarz, tell me what you think?
4:09 PMI won't take me too long, I strongly support this. I think it's time to move it forward or to resolve it. I really want to move it forward, but we -- we continue to refine it as I went through it, I found some drafting things I would have changed but it's time in my opinion to resolve this, it's been going on a long time, it's been refined and refined and refined and I strongly support it.
Thank you, you strike me as a very refined gentleman yourself, Mr. Schwarz, so that takes me to ( calling speaker names ).
Good afternoon, supervisor simitian, supervisor chavez, i'm richard ka un t exactly director of the asian [inaudible] alliance and in full support of the surveillance ordinance, in the proposed ordinance, I would like to highlight one section of the findings and I quote, proper transparency, oversight and accountability are fundamental to minimizing the risk proposed by surveillance technologies, the board finds it essential to have an informed public decision before deploying surveillance technology, unquote. We don't want the appearance to happen in secret, input from the community before the purchase is essential, not after as was the case for the city of san jose. [inaudible] good governance and provides oversight. Thank you very much.
4:10 PMThank you. ( calling speaker names ).
Yes, good afternoon, tracy rosen e -- rosenberg from the bay area from media alliance. When it comes to surveillance equipment, we've seen in various places throughout the country, we've seen some fraud, some waste, some overreach and we've seen some [inaudible] abuses, we've also seen secretive use. That doesn't mean that on each and every occasion, these pieces of equipment are used, that these kinds of abuses are happening. I would never say that. However, it does mean that there's a track record here where this has happened so the question for you is as a government agency, are you going to do anything to prevent those kinds of abuses, fraud, waste and overrao efp from happening here, and you have an opportunity here to do that with a very carefully crafted ordinance, and doesn't prohibit the use that is anything useful to investigate crime, but it does say we are going to do this publicly, forth rightly and transparently and we are going the have policies in place and check and see if those policies are fired, that's what the role of government is, so I really hope that at this point, you will move this ordinance forward. If it turns out there's specific thing ins the ordinance that don't work, it can be revisited and it can be changed bu, we can't have policies in place unless we put them into place and it is time for surveillance not to be a sort of an unregular elated wild west frontier. That's a very dangerous place to put all of us into, so thank you.
4:12 PMThank you for your comments. ( calling speaker names ).
Good afternoon, I believe -- my name is charlotte casey, I believe that a healthy democracy depends on groups mike mine, like the san jose peace and justice sent e having the confidence that we can organize events, protests like we're having Friday in front of the martin luther king library to speak up against military spending on tax day and many of the grass roots organizations are have done a lot of work. We need the confidence and the security that the new technology coming down the road, the new surveillance technology will not be spying on us, doing all kinds of creepy information gathering, we want to know what's happening and I think this ordinance can do that, and I urge you to vote it out of committee and bring it to the board of supervisors.
4:13 PMThank you very much. ( calling speaker names ). Ms. Chase, welcome.
Mr., my name's mike chase, I would like like to urge you to move this ahead, move this out of committee this accidenter surveillance ordinance is needed and it is practical. The public wants this, 67% of likely 2016 voters wanted local law makers to approve surveillance used by law enforcement, a strong majority want to see public reporting from law enforcement agent sis regarding the frequency of use and public notification before their purchase. I really think this is a practical and non-burdensome ordinance. We know from oakland's experience which requires a comprehensive annual reporting for its domain awareness center and from fresno's experience which includes an annual audit of its video surveillance program that this is practical. If those cities can do it, san jose can do it. You know there are objections from the sheriff's office and the district attorney but frankly I think some of those objections have been come into exaggeration and speculation. Last, I would like to mention that section 9 of this particular agreement in front of you, this ordinance in front of you does allow for the ad hoc and exigent use of equipment, so if that is necessary, this proposal before you covers that so I strongly urge you to move it on to the full board. Thank you.
4:15 PMThank you very much. ( calling speaker names ). And let me ask the clerk, we need to be using that two minute timer which I think we neglected to do the last couple of times, if you get to the end and want to finish a thought, please do. Er
My name is roger winslow, vice-president of the deputy sheriff's office, i've been in process of this drafting, we've reviewed it several times, in general, I get the intent, supervise so, I get the intent, and we support it. The public wants to trust the job that we do, we want them to trust the job that we do, and the first couple of versions were disturbing because they seemed so browned that it wasn't going to shine light on something that wasn't good, the problem was it felt like we were not going to be able to do the job that we've been called to do and that's as the add voluntary skated of law enforcement, that's what we're trying to bring forward. I understand general content and I appreciate the board of supervisors being the fiduciaries have that responsibility, we get it, we understand. I have been unable to view the current piece so I don't have an opinion at the moment, but as the general intent maintains and is true and as long as we're not adding so much work that we can't do the job you've asked us to do, this should work, the balance test or the transparency versus the actual being able to do law enforcement, please keep this mind going forward, we have a hard time already with the limited personnel that we have.
4:17 PMAnd we have copies of a sample impact report in the back, we have copies of an actual use policy for cc tv that was prepared by our district attorneys and I should probably have said the reason why we're working from f from the February document, we did not have time after that expiration to come up with final crafted language so we have a memo instead from county counsel's office which we'll ask Mr. Koelho to present briefly when we get through with the speakers. Welcome.
Michael witting ton, president of the santa clara county district attorney's investigation, i'm here to renew my objection in the manner it is written, the lack of specificity and the definition of surveillance and the specificity in the annual surveillance report requirements would create an onerous amount of work for my investigators, we have no issue with oversight and providing clarity and transparency to the community. However, as this is worded without clear translation, without clear guidance, everything would be surveillance and would require documentation as the process is going on which would slow down our investigators, slow down investigators and put a burden on labor, therefore i'm here to state my objection.
4:18 PMThank you for your comments. ( calling speaker names ).
Thank you, as you know taclu of california strongly supports the currently proposed ordinance, but we are not the only ones, in a letter submitted this week, we noted this proposed surveillance ordinance and its important policy reforms for transparency, accountability and oversight enjoy broad support. In a rescent statewide poll, 67% of likely 27 voters wanted law voters to approve this yao u used by law enforcement, a strong majority of voters wanted to see public reporting from law enforcement act sis of frequently used of lassoers vales technologies and notify cases before their purchase. The mercury news have called this common sense and l. A. Times has praised them for being pragmatic. Last year, we submitted a letter with 28 co-signers, the law foundation of silicon valley, sirens, and in this let e we explained that as a community as the public, we have a right to know what types of technologies are being used in our communities and on how they should be used to accomplish community goal, without oversight, abuse and overreach happens, there's 572 sixties asking the board of supervisors to support this ordinance, so there's broad support for this. This support is for good reason, we see without oversight and accountability from law makers and without opportunity for the public to meaningfully weigh in, law enforcement tools that are meant to keep us safe creep into violation of our rights and those rights are meant to preserve our democracy, mon toinger software as the san jose police department and san jose admitted to using the software to track protesters days after they obtained it so we see how this happens, these have come under scrutiny.
4:21 PMAnd wrapping up, please.
And if this ordinance is moved to the full board and passed, it is likely that santa clara county will face the same, thank you.
Thank you very much, our next speaker is paul donahue.
Good afternoon, i've come to several of these meetings on this topic and one thing i've notice ised nobody is oppose today the appropriate use of surveillance technology, the question is what is appropriate and who decides what is appropriate and this moves that decision from various offices around the country to hear in a public forum with transparency and accountability so I enbacker encourage the committee to move this forward with a board of supervisors with a favorable recommendation.
And our speaker I have is from someone who declined to give their name and we welcome you to the microphone.
4:22 PMMy name is greg baldakouski and I wanted to read a statement that I quickly wrote, the declaration of independence and u. S. Constitution guarantees all americans lawful liberty, pursuit of happiness and life, the first amendment guarantees freedom of speech, the right to [inaudible], free of association and to petition the government for redress of [inaudible] free of reasonable searches and seizure yours, the old dragnet tv show articulated the purpose of law enforcement is "to protect and to serve ". In 2016, high-tech nolg surveillance equipment presented substantial potential to seriously breach, damage and adversely affect the above rights of americans and the potential to seriously xropz or damage the mission of law enforcement to protect and to serve. It is necessary for law enforcement to use technology to fulfill its mission, however in the 2000's, technology has become so advanced that it's encroaching on the rights of americans in negative ways, the dispute between apple communities and the department of justice is a watershed event and it demands the republicans must have this important discussion and balance discussions must be had, checks and balances are substantially required here. These technologies are not toys, they are very serious technologies that can very seriously and adversely affect the lives of americans. Thank you.
4:23 PMThank you for your comments. And let me just confirm with the clerk that that is the last of public comment, yes? Thank you all very much, very concisely done and supervisor chavez, at this point, i'm incline today turn to Mr. Coelho from the county counsel's office and share with us generally what is in the page and a half memo we have dated April 13th, and for the record, this is a public document, one that's readily available, I don't know if we have copies of this in the back, we do, okay. And thank you again to the county counsel's office generally for your help in this regard.
4:24 PMThe purpose of the memo was to lay out following our evaluation of the issues raised by the district attorney's letters and the referral by the committee, lay out areas of the proposed ordinance that we think May be appropriate for additional modifications, the memo itself is extremely brief, the four categories, I can certainly list for you and the public that has not had an opportunity to read it, the first is to lay out specifically in the ordinance that sections or the parts of government code section 25303 which make it quite clear that the board of supervisors has budgetary authority over both the district attorney's office and the sheriff's office, but 25303 includes a caveat, some additional language that indicate that is the board cannot obstruct and that's the word used in the statute, the sheriff in its investigative function or the d. A. In its investigative or prosecutorial function, specifically we think it's appropriate since we're talking about openness and making certain that everyone knows what the rule ares to lay out according to the state legislature, these are parts of the rules and the ordinance should cite to that, that's one of the four areas. The second area is because the district attorney and sheriff are spookily e legislated, independently elected and they have their separate constitutional statutorily authority, obligations as well as constraints, we think it's appropriate rather than lumping in all departments together which is essentially what occurs in section 2 of the proposed ordinance, to break section 2 dpoun, one part will be all county departments other than the shft sheriff and the d. A. , the other part will be the sheriff and the d. A. Specifically because there May be some distinctions between what the board has the authority to do with respect to everybody else as compared to the two elected officials. The third area is tide to the preemtion analysis that we were asked to do, and that specifically is whether or not state or federal law prevents the county from even having such an ordinance. We did our research, we did our analysis, I won't waive the attorney and client privilege of work product, we set forth our conclusions in a confidential board off agenda but what I can say is there was no specific law that prohibited, specifically says this county or any other entity can't have such on ordinance, with respect to the two statutes that the district attorney's office asked our office to look at specifically, I won't provide the legal analysis but I will say those statutes on their face indicate that certain things are required before license plate reader technology or cell site simulator technology can be acquired or used, specifically a notice to the public is required depending on which new section you're looking at in state law that's effective this year, use policies are required and certain approvals are required, and so to the extent that section 9 has an exigency exception saying you don't have to comply with the use parts of the ordinance if it's an emergency, state law says you do have to have use policies in place, so we're going to need to address that preemtion issue, we don't want to say it's okay to do something that state law says wait a second, you have to do this first, you have to have a use policy and the final category and i'll make this quick, there was certain parts of the ordinance that I think can be made more clear, for example, we refer to technology in one or two place and is it should say surveillance technology, simple things that don't change the ordinance itself but will clarify it for those who are either reading it in context or pulling parts of it later on.
4:28 PMThank you, Mr. Coelho, I want to go back to these four, restate them, not surprisingly restate them from my perspective and if you think I have misstated them, you will correct me. Item number 1, we're looking at code section 25303 from the government code and you're reminding us, we should not obscure the prosecutorial function of the district attorney, we have the same language that says nothing contained herein should constrain the authority over [inaudible] so we have to balance that in some way, yes?
4:29 PMCorrect.
Number 2, you're simply indicating that since the sheriff and the d. A. Do stand in a somewhat different category, that for clarity purposes, we might be able to break them out so we're clear about any changes, whether they be major or modest that are different in terms of their roles and responsibilities or the board's engagement with them, fair enough?
That's fair. . Er item 3, but our section 9 gave more flexibility to law enforcement than state law allows, is that where we are at the moment?
4:30 PMThat's where we are.
Okay. and item 4, we just to continue the refinement that somebody referenced earlier as long as we have the document in front of us, correct?
Yes.
Okay, supervisor chavez, any comments on that piece or should we ask representative from the d. A. 's sxaufs the sheriff's sxaufs the public defender's office and any other official entities to come forward so we can walk through this section by section, what's your pleasure?
That would be great.
We have microphones right here, Mr. Walsh, are you representing the d. A. , and mindful of the fact that we have not had time to see the document, but we have our public defend e holly o'neal and someone from the sheriff's department, if you would all introduce yourselves and then -- yeah. And I think supervisor chavez is just reminding me we're not going to walk through each and every sentence and each of every paragraph in each of every section.
4:31 PMUnless you want to.
But that if there are issues, we'd like you to tee them up.
That would be great.
As we March through, and supervisor chavez?
Thank you, so thank you for all of that information and i'm going the start with a process question for staff and then I want to ask some more specific questions along -- and i'm going to be using the 21116 memorandum, i'm sorry, proposed ordinance, so first let me go back to Mr. Coelho, i'm presuming with the outline that you've given us or the memorandum you've given us, you will then be redrafting the ordinance to come back to the board as an ordinance for discussion, so any action that we would take today would be general in nature and directive because we don't have the ordinance we're voting on, is that correct?
4:32 PMWith respect to what we will do, that's exactly right. We will provide the modifications that we think are required.
Great, thank you. what i'm going to focus on is what I am hopeful will help me understand the practical application of what's before us, and so what I want to start out with and supervisor simitian, this May be the one area that I need you, okay.
[inaudible].
So, let me just start with the way i'm looking at this generally and maybe, rob, i'm going to pick on you for a minute because joe's not here, so the way I look at this is this ordinance very simply outlines a process for how we evaluate surveillance tools, i'll come back to the definition of surveillance, but this outlines a process for review, is that correct?
4:33 PMYes, it outlines a process, as you get toward the end of the ordinance, it also includes the penalty sections, for example, retaliation is prohibited which is not a process, and there May be misdemeanor implications which is not a process, other than that, you're correct, it describes -- I think generally speaking, it describes a process that needs to be followed before technology is acquired or used or to the extent we already have it, will continue to be used.
So, then if we were to look at the definition -- well, let me go back and say, what that means then is we have a sample in our packet of what would be used as the surveillance report which I think is intended -- this document is intended to demonstrate what would happen when someone wanted to purchase a piece of technology, is that correct?
4:34 PMThat's right, and it is -- if you can hold it up, it's the one that says sample on it, it's in the back, it's about 75% taken from the memo that the sheriff's department did in fact provide us which you May remember, I called out as I thought being a helpful response to our inquiries, it's ao slightly tweaked version by my office but it was an example of what someone might turn in as an acceptable --
To be clear, the purpose of this document is in the acquisition which would mean us purchasing a piece of equipment, is that correct?
Yes.
Okay. so, the way I am looking at this component of the process, and very simply, i'm again to the to be -- i'm not trying to be flip in my language, i'm trying to make a point that we have a budget process now and essentially these questions or these subjects would be covered in our budget -- within our current budget process.
4:35 PMYes, and/or if we did something ad hoc during the course of the year.
Of course, but it's a budget action is a bet r way to say it, this is related to a budgetary action.
Yes, but it could conceivably be used in the acquisition not as part of the budget process but as part of some other acquisition and one of the things the ordinance talks about is what if something is granted, what if something is gifted, if you ask what is the most common thing, it would be during the budge proscesz, that would be the routine way.
What i'm trying to narrow it down to is a better understanding is when we are acquiring a use of technology, we use a process wlosht it's being donated to us or being granted to us, that's the only thing I was trying to make clear. My question is have all of you had a chance to see this document? The sample document that's in our packet. Are there any concerns about this part of the process?
4:36 PMHi, brian walsh from the district attorney's office. The one concern I have with that process, if you're directing an agency to produce a report in advance of purchasing a piece of equipment, that seems em auntly reasonable and you're right, the example you provided doesn't seem to be overly burdensome, the question is when the department, any department chooses to use a piece of technological equipment, how does it know it's governed by this ordinance and where does the department go for that clarification? . Er do you want to respond to that?
4:37 PMAnd I would respond to read the definition of technology that is contained in the document, it has an expansive list of specific technologies in an effort to be helpful and clarify what specific technologies might be covered but then it also lists a certain set of conducts or behaviors that were related to the use of the technology so that if the same surveillance practice was undertaken but with a non-listed technology, folks would know that.
So, just to follow up on that, Mr. Wall b, did you want to respond to that? I'm so blind, did you want to respond to that?
4:38 PMThank you, my only response would be, and we've made this comment repeatedly, we find the definition of surveillance technology difpt to understand and to apply, to the extent you provide examples of what's included or excluded, of course that's very helpful, but to the extent a piece of equipment is not specifically mentioned, then we have to rely on the overarching definition and that's where it becomes difficult and a concern for us because we want to comply with the ordinance, we don't want go out and purchase a piece of equipment without submitting an impact use report only to be told that you should have filed this report because this piece of equipment falls under the definition of surveillance technology, so in the version of the ordinance that we submitted this afternoon, we have a slightly different definition of surveillance technology taken from the seattle ordinance, we believe that definition provides more clarity to all county departments who are endeavoring to comply with the ordinance.
4:39 PMSo, I had a thought about this and just as I was listening to you speak and we have now a privacy officer, so my question is whether or not it would make sense -- if there was concern or confusion, that the privacy officer would sign off because one thing I realize is with we look at our regular transmittal, that tles ao some questions that people have to answer, like is it going the help children or what will be the impact to seniors, I sort of wondered who would be the arbiter of that, could that be the privacy officer?
The person working on our privacy is really not countywide, so we could certainly create such a structure, that would be possible, but it would be up to the board.
4:40 PMI mean, my own view is we're asked all the time to simply ask the county counsel, I knower county counsel serves the sheriff's office, county counsel's office serves the district attorney's office, you know, if you feel like you need legal advice on the meaning of a county ordinance, that would be the first place that I think you would go. That being said, i'm not inclined to agree, I do not agree. I strongly disagree that the definition provides any ambiguity. I think we've been very clear about what is specifically included looking at section 7c, what is generically included and then we've even gone far at the request of various evils and departments to provide an indication of thing that is are not included. That being said, if you have a doubt, then --
4:41 PMI think county counsel's a great solution, gra et, i'm adding that to my list, okay, county counsel, because they love weighing in on things when there's conflicts between the board and the d. A. , great, good. And then so then I want to go to the issue around --
Excuse the interruption, I want to be clear to Mr. Walsh and to you, i'm happy to take a look at the language that's been provided.
And we haven't had a chance, I appreciate you raising that, supervisor simitian, and I wanted to thank the d. A. And our public defender and the sheriff for all sending good information and letters and I think it was at the prompting, supervisor simitian, of both of thaws the d. A. Put something forward which I really appreciated, and the process is iterative until it goes to the board and even then, right. I want to go to the section on definitions, i'm sorry that I marked this up. And here's my question about the definition issue, and I wonder if by having county counsel be available the weigh in, that there is less concern over the definition if we have a third party that can weigh in when there is conflict, and i'm asking any of you who would be impacted by this if you have a concern about that. Not to say -- I also want to take a look at the language that was submitted, but does that alleviate the concern around definition? Yes? Okay.
4:42 PM[inaudible] from the sheriff's office.
You have to get right into that mic. .
Can you speak right up and reintroduce yourself t reason I asked that is because I applied the wrong title to you last time we were together. I don't know which way I went on the scale, but I want to make sure I get the title right nod.
4:43 PMMy name is ken binged, i'm one of sheriff smith's assistant sheriffs, so one of the concerns that we had about surveillance technology definition as already discussed by the district attorney's office was just kind of the general vagueness of it and, for example, we're in the process of trying to obtain camera worn body footage, well, body worn cameras, would they be part of this surveillance technology because it records audio and video, we're going to have a number of cameras out there on a daily basis recording all day long at every incident so, we also have patrol dash mounted cameras in all of our vehicles that record enforcement stops as well, so there's some concern on the part of our office in terms of how do you capture that, how do you define whether it's successful or not in the annual use report and that -- we have concern whether it falls into that or not?
4:44 PMSo, does the technology -- does body worn cameras fall into this for reporting purposes?
I would say absolutely and I think Mr. Coelho would say absolutely as well, but I should let Mr. Coelho be the Judge Of that. Er
Yes. er
And I would go on to say -- I say that as someone who brought the proposal to the board for us to purchase body worn cameras and who has been an advocate for body worn cameras, yeah, but I think they ought to go through the process and I think the discussion that has already taken place has been indicative of the privacy -- supervisor chavez, for example, you've expressed concerns about domestic violence circumstances and I think it's a very good example of why this would be a useful policy to have in place, the short answer would have been yes.
4:45 PMI have to ask you to work on that.
So, I think the sheriff's office is in agreement that it would be appropriate and we don't have a concern in terms of bringing the procurement or the request to purchase the body worn cameras or whatever other surveillance equipment that would fall under this section in the initial discussions for purchase, then our concern is the tediousness of trying to log and capture all of the daily uses amongst several hundred patrol deputies in the streets, how do they chart that, how do we report it at the end of the year, it's -- it basically makes the job more onerous in terms of doing their patrol and investigative work trying to do a separate track of recording what they're doing, determining whether it's successful or not and logging and all that.
4:46 PMAnd that is the second big nut I want to try to get to the bottom of today because I do think that the issues that have been raised relative to how this happens, and I think let me just say, I presume that part of -- there are two big issue that is are out stampeder, one is I think people want to know if they're doing the right thing, are they doing it appropriately and second, are we doing it in a way that allows people to do their jobs but also allow the public to feel secure that we're balancing privacy with protection, so with that perspective, supervisor sm ix, I would be very interested in understanding expectation relative to the annual report. Now, you gave us a sample annual report. I don't know if you all have seen it, it was from the city of min low park which is a relatively small city, so I realize it was just a sample, but could you walk through what your expectation would be and what would it look like specifically using the technology of body worn cameras?
4:47 PMWell, this is the first time the question's been asked of me except when it was asked of me by the sheriff and i'm surprised this concern lingers because I was very direct, very clear in saying that it is not the expectation of the ordinance or of me as a proponent of the ordinance that we get an item by item list of every interaction any more than we would say with respect to the closed circuit television that I think the district attorney is responsible for that we wanted a list at the end of the year of every frame or that we wanted a list of --
So, supervisor simitian, i'm using his question, it would have been my question too, what is it?
And the answer is it is the language found at the bottom of page 3, packet page 572, annual surveillance report and then under definitions, it mean as written report concerning specific surveillance technology that includes all the following, to try to realtime and if you'll bear with me, i'm going to have to do this in realtime, we have 7 different things we would be asking, the description of how the surveillance technology was used including whether it captured images, sound of members of the public who are not suspected in engaging in lawful conduct so, we would simply ask, how were those body worn cameras used, notwithstanding their importance with respect to forelegs who were suspected of engaging if unlawful conductbacker conduct, what did they pick up, and about members of the public who are not suspected, did they pick up images, sound or other information?
4:48 PMSo, this is browned, it's not quantitative, it is only qualitative?
That's right, although the next sentence says under two, whether and how oftener data acquired through the use of the surveillance technology was shared with outside entities, the name of any recipient entityser under what legal language the data was disclosed, again t expectation is not that we have specific cases or a point by point item resuscitation of the dozens, scores, houn dreads or thousands but it might might say something like the information obtained on our body worn cameras was shared with the following four outside entities, we shared this kind of data, we shared it upon request, pursuant to a warrant and the justification for the disclosure was that it was necessary as part of an ongoing investigation in another jurisdiction or part of a criminal prosecution or maybe it was given to the public defender because the public defender's team needed the information in order to mount a defense.
4:49 PMThe first being broad, the second is -- could actually be quite a lot of data, I mean, that could be -- because then that could be case specific based on the way you just described it.
4:50 PMWell, again, I think the language is clear about what it is, nor do I think it's undual mdly burdensome and I think at the beginning of the year, somebody said, here's my anticipated impact report, here's how we think it's going to affect members of the public and here are our policies, now, the question is, do you then say, that's good, we're done, we hope that worked out, or on an annual basis, do you circle back and say, we need to know, is that how you used it and we're not asking for reports on 426 cases, we're asking if you --
Supervisor simitian, the question i'm asking, I totally understand what you just outlined here's what i'm asking specifically, when you said the information disclose and had the justification for disclosure means that, you are either asking broadly, did we share information with the fbi, a broad category of people and we did it under broad circumstances, there was a warrant or under investigation or the way this was constructed, it looks like you're asking for specific cases, are you asking for that information in ago ra gait or specifically?
4:51 PMIn ago ra gait and we can clarify that, but I think the easy way for me to say this is if you share it 446 times with four entities, you say that, and here's who the four entities are, we're not asking for a list of all the cases.
The reason i'm clarifying that question, in order to denote the number of times you are asking for reporting that is more detailed by case which means that this is not something that would be collected at a later -- this is something that would be collected on an ongoing basis, the reason i'm asking that specifically is there May be a way to gather that data in aggregate and it May not be, so we're asking people to do potentially different kinds of information gathering.
4:52 PMWe're not asking them to collect any data they don't already have, not any data that they can't compute, but for example, we have the most -- and I think some of them are waiting patiently, we have some pretty small mom and pop non-profits and we require them to tell us, if you pay this money, how many clients did you see, i'm not asking for the name of those clients or the case folders on each of those clients but i'm asking them to say, if we're a non-profit and you paid us this much money, you saw 420 clients in the last six cities, that's what we're looking for here.
4:53 PMI don't think that's an aggregate collection of information but I understand your point. Any thoughts or concerns about that from anyone? No, then i'm just going to go on, a summary of community complaints or concerns about the surveillance technology and does that mean we're going to have a formal place that people can place complaints, would that be county counsel like a whisleblower or somebody complaining to the respective agencies or both.
It means we're asking these organizations to tell us whether they've received complaints or concerns, and it doesn't even say specifically how many, it just says let us know what kinds of issues came up during the course of the year.
Okay.
So, I did have a question about that particular section. It is pretty broad and i'm just wondering if there's going to be complaints about the use of the equipment, so there be standing of someone either affected by it or could someone from an outside county from santa clara that is against the use of surveillance equipment, maybe not in the balanced way that we're trying to be here in this county, but would they be able to bring complaints and log them and us be reporting on the same complaints that come in from antisurveillance if you will folks or people with concerns that are not directly affected by the equipment used.
4:54 PMSheriff pinder, i'm going the read it one more time, if you were filing an annual report, you would tell us what did we get in the way of complaint ts, that sentence does not create any new complaint process, doesn't create any new complaint entitlement, all it says is if during the course of the year, you got three different kinds of complaint, please tell us in a cum of paragraphs what those three types of complaints were and whether they were -- I would think you would say we got one complaint or this was a frequent complaint or recurring cause of concern, but all it says is we did the anticipated impact report in the hope that we identified the kinds of privacy concerns that you would need to address, at the end of the year, we're going the circle back and say what kind of privacy concerns did people complain about. The answer could be in an optimistic world, we didn't get any complaints, people were fine, or we got complaints from people that thought we only turned on the body worn cameras when it was in our favor to do so.
4:55 PMI understand, the reason I ask is because -- wouldn't it be more prudent to have complaints that actually have a nexus to the use of the surveillance equipment rather than general complaints and I propose this just because what we could have is a certain group of people complaining with the same complaints and then every year we list the same complaints and then it could give an unbalanced perspective of people complaining versus if we limit it to those affected by the surveillance equipment, that might provide a better understanding of whether the equipment is effective or appropriate.
4:56 PMYeah, again, I want to reiterate, we're trusting your organization to report back to us the relevant information, so if you want to give us two paragraphs has says, we continue to have complaints from an outside organization that is not affected by this but they continue to raise the following complaint, nra's responsive to the requirement of the paragraph, I mean, I would, -- the language really is relying on you to exercise your professional judgment and if you want to tell -- but it will at least allow for some conversation, so you and I might have a conversation at the board meeting where we would say, it's interesting, why do people come back year after year or why is an out of town group raise this complaint when it hasn't been used, if you have some complaints, we'd like you to tell us what are the issue that is have arisen by using the thung thing which our board has authorize ted use of public funds for. Er
4:57 PMOkay.
So, and just for what it's worth, my thoughts on this are that I think whenever someone gives us feedback from the public, even if their feedback is broad and whether or not it's got a direct nexus to an experience they've had on an experience someone else had, there's value to us, what it could also point out in a good job we are or aren't doing with communication to the public, we want to build trust, so I would just include it.
4:58 PMAbsolutely.
Thank you.
I just had two more on this section, and one is the item number 7 which was the total annual cost for surveillance technology including personnel and other ongoing cost and what source of funds will fund the technology in the coming year, I wondered if you wouldn't mind, supervisor, just explaining the importance of that section and then -- and, again, just kind of a second question, is it something that would be appropriately folded into the budget process?
Well, I think a good example, painful, but good example might be the conversation we had in these chambers about the sting ray tech nomg, while the requisition was to be funded through a grant, my recollection was the expectation was that there was ongoing costs of roughly 42 thousand dollars a year and it's been a while since the conversation, my number May be off, that's an important thing to know, when you say yes to the expenditure of half a million dollars in grant funding, is there an ongoing cost associated with that, and if so, what is the source of funding for that onginger cost.
4:59 PMSo, this would be an annual update of the fiscal analysis that you request and the initial document that people put forward?
Yes, and it's to provide trance sparency and accountability, last year, we thought it was going to cost us this, it turns out now it's going the cost us only 20 thousand dollars instead of 40 thousand dollars, we were conservative and we should be relaxed on the o ut cost or vice-versa obviously.
5:00 PMOkay. I was looking for one more section. This is actually sort of a broad question under the surveillance use policy and I apologize because I May have asked it before and I can't recall the answer. Is some of the surveillance use policy under the retention -- we also have a records retention policy, does any of that overlap with this?
Good question. we haven't analyzed it. Er
Whit comes back for our final vote, I would be interested if what if any impact that policy would have on this policy since it's a broad policy and I will say that at vta, we used the record retention policy in part to deal with how long we were keeping the closed circuit tv data, so that's what made me ask the question. Er
5:01 PMGenerally, the records retention policy allows the individual departments to classify records that they keep and including records that are sensitive and confidential records and assign minimum retention periods for those records, usually the absolute minimum is about 2 years.
So, one of the reasons I was asking the question had less to do with the legal entities here and had more to do with the non-public safety organizations because in some ways, the -- i'm not sure this would happen very often, it seemed they May conflict and it would be worth taking a look at.
May I comment on that briefly?
Please much. erbacker
5:02 PMThe specific part of the use policy definition under six talks about data retention and what I would anticipate subject to the board's input regarding language modification, what I would anticipate is something that says consistent with the data retention policy we anticipate keeping this for two years or we would ant pate keeping this for four years which departments are allowed to do because they believe it falls under some important exception, so it would be putting the duration of time if the many time was the issue that we were looking at for what's going to be retained as well as any additional information laid out, tied to the retention that's in the ordinance, so I don't -- with we inserted this pursuant to our discussions with supervisor simitian, our pantsbacker anticipation was not that it would be a cumbersome obligation but simply if you're going the keep this for 40 years, we would like it included. If you're going to throw it away after 90 days, that helps us determine how the privacy implications and other implications --
5:03 PMAnd if you wanted to make changes to it. Is there any other feedback that you wanted to give to the policy, those are the things I had outstanding questions on.
To this particular section?
No, i'm done cohering you with the document
I have a brief follow-up question for tount u county counsel if I could. He mentioned the tension between the board's fund of the sheriff and the district attorney and their independent right as o leaded officials to do investigative work and as a response to that tension, it would add a section or break out the policy with respect to the sheriff and the d. A. , and I guess i'm just kind of wondering, how that would work and whether the policy itself isn't in fact directed mostly towards the sheriff and the d. A. And their affiliations with other law enforcement agencies, so I guess i'm just wondering what that language would like like in terms of a breakout and whether some resolution on that tension would be enlightening for actual practical application of policy. If I wasn't clear, I can go again.
5:04 PMMr. Coelho, please step in, but I think the first part I would say is there are surprisingly large number of departments and agencies that collect information, so this is by no means limited to just those two organizations. I think if anything, those two organizations have asked us to be mindful of the fact that they play a somewhat different role in the collection of information and we're trying to be mindful of that and respectful of it. I think in my conversations with Mr. Coelho, he suggested where even there is not a significant difference of the application of the ordinance, it might be useful as a matter of clarity to say this is the part that deals with the sheriff and the d. A. And this is the part that deals with everybody else. I think Mr. Coelho, is that a fair summary?
5:05 PMIt is a fair summary, the other thing that I would mention is at the last session that we had in february, there was some discussion about what about entities that give us information, so we're not using technology at all, part of your definition includes -- or the information technology provides, so you've got an interstate trooper in indiana who uses a license plate reader or something like that, they provide the ruts of use of that technology to the sheriff as part of its ongoing investigation of something or the d. A. As part of its ongoing investigation, does the policy apply or not, with respect to any other county departments other than these elected departments that don't have the obstruct language from the statute, the board can do whatever it want tos do, with respect to the d. A. And sheriff, it May be a closer call so there might be a modification to that portion of the requirements that would apply only to the d. A. And the sheriff, that's a policy decision to be made by the board and we're happy to give our legal analysis. Er
5:06 PMMay I follow up?
Please. er
I wanted to say in general, and I have submitted a letter stating as much, in favor of this ordinance sh it's difficult in a criminal justice setting for us to do our job if we're operating without any idea of what kind of technology is being used the track or keep track of criminal defendants, and so I am very much in favor of this ordinance as is my office, but I would really like to see whether that example you just gave of course is very important to me because I in fact would like the state trooper from indiana included in the ordinance and so i'll be back next time the matter's before the board to look at what the proposed language is and I understand there was a proposal from the d. A. Again as well which I have not seen, so it sounds like iteration's enough, I would just like to see it.
5:07 PMI think without revealing the attorney/client privilege advisebacker advice we've received, I think I can say we try to make sure we don't overstep our bounds, if we overstep our bounds, that would make the ordinance subject to attack. Mr. Coelho, I heard you say that the our ability to regulate the conduct of someone in our organization outside of the sheriff and the district attorney's office with respect to what kind of information they access from a third party is likely to be greater, and without getting into the back and forth of just where that line gets drawn, I think that's a fair summary. And, again, we're trying to respect that.
5:08 PMSo, I just have a couple of other -- just one issue I wanted to ask the staff to look at before this come ts back to the board and that is senate bill 178, that bill is new and just rehabilitated. I realize from talking to a member of the investigative team over at the district attorney's office that that's already put some changes in the way that we're collecting information and how we're notifying the public about that and I don't know if it will impact the ordinance at all but I think it's worth us taking a look at to make sure if it does that we're mindful of it as it comes forward, and it's a leno bill, and it just took effect in january, so I have all my questions answered and I have a recommended motion that I want to put forward and supervisor simitian, any changes, I would be interested in getting your feedback. I'm going to move this forward recognizing that we haven't seen the final ordinance, and that subject to that -- to how I feel about that ordinance, I May change the direction i'm in today. A few things I want to make sure are included, one, that we include all of the information that we've received to date and that would include the district attorney's contribution in the letter that we also received from the sheriff that I don't know if it made it into our packet but for the full board. Second, that we add in that if there is any concern about whether or not something does or doesn't apply to the ordinance, that all parties are encouraged to seek input from county counsel, I think that's a good way of determining what -- under what terms and conditions the ordinance applies. Three, that there be a sample -- that I thought the sample that was put in here on acquisition was very good and that that be included. And d, that a report al be reported, that a sample report so that the board would have a chance to look at that, that we include an analysis if it has impact of senate bill 178, and that would be included with whatever document was put forward by county counsel on behalf of the committee that's inclusive of the memorandum that was put forth in today's packet and that would be a motion.
5:11 PMThank you, and just to be clear, there was reference, I think it was d on a sample report, were we talking about the annual report and are you hoping that we can provide a sample of such a report or draft one that's -- that would be consistent with our expect traipses about what such a report would like like even if it's a fictional report, like a hypothetical report?
Yes.
And what I would like to did is use the body worn cameras since that's something we already have experience with and it would demonstrate the need, and that would be a motion and then I just want to give two pieces of feedback.
Before the motion is finalized, and I thought I heard the last part of the motion referencing the four points in the county counsel's memo. Was that to incorporate those in the language?
5:12 PMYes. er
So, it was a specific direction to try and incorporate the direction that the county counsel has previously given, and then my last question is to say, and with those various caveat ts, we would forward it to the board and would that be with a favorable recommendation from the committee subject to those issues being addressed?
Yes.
Thank you, alright. we have a motion. I'm prepared to second that motion. Further discussion?
Yes.
Superintendentbacker supervisor chavez?
The last thing I wanted to add, in addition to using the body worn cameras and all the other information that I asked to be included, the interim steps that would go into making that final report for the annual report I think would be really important, so what that means is we'd have the annual report along with if there are any changes that would need to be made in processes that currently exist, what would they be, because if the point you're raising is we're worried about -- you're not making this necessarily, sheriff, but if the point is that we're going to be deviating from current, the current way we collect information or not, I think that the body worn cameras are such a good example because I imagine they're used rather a lot, then we would understand if there would need to be procedural changes in order to meet this policy objective or not because that's important in terms of cumbersome or not.
5:13 PMI think the only challenge there with respect to body worms and we can figure out how to address it, since this is not a technology that is not fully and robustly deplayed at present, trying to figure out what changes if any might result as a result of the ordinance is hard because you're looking at something that you're in the pr kress of implementing rather than something is implemented in way of what's new in the way of requirements. Are we creating a lot of make work of people that get ins the way of doing their work and what does that look like over the course of the year and that might be easier for us to determine when something's already in place.
5:14 PMThe reason I want to use body worn cameras as an example, I think that's what all of us are a little familiar with, I think some of the other technology, until I saw pictures of it and started reading about it, I wouldn't have known exactly what they were, so I would like to use this and you use it quite a lot and you use it in court, it's something that -- even if we're using it as a pilot, procedurally, we would understand it, so those are all my comments.
Great, we have a motioning, we have a second, any last comments from staff? Mr. Coelho?
5:15 PMJust a request from clarification, is the direction to us, county administration or the county law department ts, you mentioned two policies, one was an acquisition policy which is part of the packet that was presented already, the other is you're talking about a use policy sample tied to body worn cameras, annual report sample, so we oar not being asked to prepare any samples or are we being asked to produce samples?
Yes, I would like the staff to did that, I would likebacker like county counsel to take a lead on work witching the sheriff's office and the d. A. 's office and molly, if your office is impacted to figure out what that report would look like and if there would be any procedural changes, what they would be and that's helpful to know because that one is so used, it would be helpful to understand that. So, yes.
5:16 PMAnd Mr. Coelho, to be clear, there are three document that is are anticipated by virtue of the surveillance ordinance, one is the surveillance anticipated impact report, we have already created a sample of that and it's publicly available.
And just to stop you, that's what i'm referring to is the acquisition report and that May be while you're thinking they're two different things. . Er the second is a proposed policy and that policy in this case is not a sample -- well, it's a sample, it's not a hypothetical policy, we have a policy in place that the district attorney's office drafted that was reviewed by our board of services with respect to cc tv, closed circuit television, so that document is real and it's out there and I thought it was helpful in providing some idea of both content and scope, and the third piece is the annual report and that's the piece that I believe supervisor chavez and I are talking about where we will need some help from you in your office. I will of course look forward to weighing in as well, but to supervisor chavez's point, that it's going to require some conversation with the various interested parties, the stakeholders who use the technology and who are mindful of that because they're going to tell you this is how we received the information, here's what we do have in the way of data and here's what we don't and so on and so forth. Er
5:17 PMThen in the cover transmittal, making sure county counsel can play the role of determining what is and isn't surveillance, if there's confusion about it and then an analysis of senate bill 178.
Alright. we have a motion. Supervisor chavez makes the motion, supervisor simitian seconds without objection and hearing none, the motion passes unanimously, thank you all very much. I will say as a matter of process, given the other thing that is are going on before the board, the chances of this showing up before the board before May is 0, as I understand it, so people have some expectation?
5:18 PMThe earliest it would get to the board would be sometime in may. Er
Thank you to all the various parties who have been part of this long conversation, it's helpful to have your input. I'm going to take a five minute recess to allow people to step out of the room and allow people to take a breath. ( meeting in recess for 5 minutes, to
5:24 PMRecording was Paused for 5 minutes and 21 seconds
5:26 PMResume at 5:23 ).