Touching off another national controversy centered around California, the Federal Bureau of Investigation was discovered to have concealed video and audio monitoring devices around a courthouse in the San Francisco East Bay five to six years ago.

“Federal agents planted hidden microphones and conducted secret video surveillance at Alameda County’s Rene C. Davidson Courthouse for ten months, despite having no court warrant,” the East Bay Express noted. “The surveillance operation was part of an investigation into alleged bid rigging at foreclosed property auctions where thousands of houses and apartment buildings were sold by banks. But defense attorneys for some of the individuals accused say the FBI’s surveillance tactics violated their clients’ constitutional rights, and everyone else whose conversations might have been captured on tape.”

“The government’s unauthorized use of recording devices to capture private conversations at the Alameda and Contra Costa County courthouses violated defendants’ Fourth Amendment rights to be secure against unreasonable searches and seizures,” according to lawyers representing powerful Oakland landlord Michael Marr, as the ABA Journal observed. “Private affairs are routinely discussed as citizens, their lawyers, and even judges walk to and from court, and lawyers often take clients aside outside the courthouse for privileged conversation.”

Making a stink

Marr’s lawyers have had an incentive to swing for the fences. The FBI raided their client’s offices in 2011, and he was indicted, along with 11 other regional investors, by a 2014 federal grand jury. “Dozens of investors in Northern California already pleaded guilty to organizing similar bid-rigging schemes at foreclosure auctions,” according to the Express. “But Marr and his associates insist they are innocent, that he’s a federal scapegoat instead of going after the banks.”

The blockbuster allegations threw into some question the wisdom behind the FBI’s determination to acquire through secretive means the kind of information they might have gathered more traditionally. “At one of the auction locations, in San Mateo, the FBI actually had cooperators who were willing to wear wires to record their conversations with other real estate investors,” Fusion reported. “But the FBI wanted even more evidence, so it decided to bug public areas at the three courts where auctions were taking place over a period ranging from 2009 to 2011.” 

“They placed recording devices in vehicles around the courthouses, in lights near the entrances, in a planter, in a sprinkler, in a bus stop near the courthouse, and in a “backpack placed next to a statue situated inside the Alameda County Courthouse,” according to a letter written by a prosecutor that detailed the recordings.”

Laws in tension

Remarkably, the FBI had set up the surveillance only after checking in with the County Sheriff, not securing the approval of a judge. Although Marr’s lawyers asked the court to consider that the FBI actually recorded public conversations feloniously — California being a so-called “two-party consent” state — state law has also imposed “a fairly broad ‘public area’ exception, which would cover courthouse steps and bus stops,” according to Techdirt. “But that interpretation of the state’s wiretap law exceptions may be subject to the government’s interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.”

The Bureau has been on thin ice in California since pressuring Apple to unlock a cellphone involved in the San Bernardino terror case. “The FBI served Apple with a court order in February compelling the company to help break into an encrypted iPhone” used by one of the San Bernardino shooters, the San Francisco Chronicle recalled. “Apple resisted, and the FBI dropped the case last month after saying it bought a tool from a private entity it hasn’t identified to break into the phone. State and local law enforcement agencies say they have hundreds of encrypted iPhones that they could use the FBI’s help getting into.” 

According to CB Insights, the Los Angeles Times reported, “Northern California is the headquarters of six of the 10 American commercial drone companies that have attracted the most venture capital.” The economic consequences of drones’ ascendance in Silicon Valley have attracted attention along with the cash. Drone firms “are creating high-paying work for engineers, including those designing ever more sophisticated software to operate the machines,” the Times noted.

But, as the Times observed, the Silicon Valley pattern of big innovations in small groups was likely to repeat itself with drones:

“Competition from Chinese manufacturers has already pushed 3D Robotics and some other American drone companies to make their hardware in other countries. Anderson’s company has an engineering center in San Diego, but manufactures its drones in Tijuana and Shenzhen, China, where there is cheap labor.”

Hopes and fears

California’s unique challenges have supplied drone manufacturers with an immediate market and proving ground. Given the state’s vast size, rugged terrain, and drought-era risk of massive fires, drones have emerged as a new source of hope for keeping residents safe. Taking inspiration from their own approach to monitoring outer space for important events, Bay Area astrophysicists have embarked on a project called Fuego — short for “Fire Urgency Estimator in Geosynchronous Orbit.”

“The idea is to enable early location and identification of fires using drones, planes, and satellites mounted with special infrared cameras,” Wired reported; “once fully operational the system could spot new wildfires anywhere in the Western US barely three minutes after they start.

“‘All year round is going to be fire season now,’ says Carlton Pennypacker, an astrophysicist at UC Berkeley and lead researcher on Fuego. ‘That makes this more urgent.'”

But the city of Huntington Beach recently provided the backdrop to a video dramatizing the legal and cultural uncertainty around drones. As the Orange County Register observed, the viral clip caught one resident ruining what a local drone company called an instructional video. After “yelling that he’ll be angry if ‘you put that over my house,'” the man sent a hovering drone crashing to the ground with a single swat of his t-shirt. “I don’t even think that’s legal,” he added.

Lucky7drones, makers of the $1,000-plus drone, have filed a police report. In the absence of federal regulation, the Register noted, municipalities have crafted rules restricting or banning drones’ use, while Huntington Beach, among others, has done neither.

Drones’ awkward, changing status in California has aroused residents’ hopes and fears in a complex combination. In Southern California’s beach communities, for instance, drones have begun to emerge as a solution to the age-old threat of shark attacks.

But with the new knowledge they afford has come a new way of sizing up the risks of everyday life.

“A new drone that is being utilized by Southland lifeguards reveals a chilling look at how many sharks are just feet from the shoreline at one beach,” CBS Los Angeles reported. Within minutes of launch, a Seal Beach lifeguard told CBS LA, “we knew there were 10 to 12 sharks all in the Surfside area.” The impact on beachgoers was also swift — calling into question whether Californians’ more carefree attitude toward sharks could survive the advent of drone patrols:

“‘I was planning on going surfing tomorrow and definitely not now,’ one woman said, while another said: ‘Sharks are kind of like my biggest fear so that’s like very daunting for me.'”

Protecting privacy

If Californians have had to give added thought to their new status as watchers, the rise of drones has also forced them to consider how more often they’re willing to be watched. In an effort to shore up the state’s privacy protections against invasive drone use, Assemblyman Bill Quirk, D-Hayward, has pushed a new piece of legislation through several key committees. The bill, AB56, “would place strict regulations on law enforcement use of drones, and prohibit drone surveillance of private property without a warrant in most situations,” according to the Tenth Amendment Center.

Under proposed regulations, the Center noted, only so-called exigent circumstances, like natural disasters, public emergencies or the imminent threat of death or grave bodily harm, would permit law enforcement to deploy drones without a warrant or the express permission of property owners.

A year ago the American Civil Liberties Union of California submitted public records requests to the Sacramento County Sheriff’s Department and Anaheim Police Department to produce documents pertaining to a cellphone surveillance program. Those requests were denied, leading the advocacy group to take their case to Orange County and Sacramento Superior Courts.

Both departments admit to owning Stingrays, or “cell site simulators,” which trick cellphones of nearby users into connecting to their surveillance devices. The cellphones of unsuspecting users think they are connecting to a cellphone tower, but instead send geo-location and other sensitive information to police agencies.

ACLU: No oversight of controversial surveillance

The ACLU is concerned about the lack of oversight of a program that is potentially collecting data on innocent Californians — people who’ve done nothing wrong and aren’t the intended targets of law enforcement.

“Stingrays are capable of invading the privacy of innocent Americans, so the public must be able to monitor how law enforcement agencies use them,” said Peter Bibring, the ACLU of California’s director of police practices. “The police cannot adopt a new, invasive surveillance technology without any kind of public oversight or accountability.”

Rather than hand over documents about the controversial program, both law enforcement agencies refused to comply with the ACLU’s public records request, using different tactics for obstructing transparency. The Sacramento Sheriff’s Department acknowledged the requested documents existed, but refused to disclose them. After a follow-up request, the agency redacted documents and claimed an exemption under the Homeland Security Act and Arms Export Control Act.

Meanwhile, the Anaheim Police Department claimed the request was vague, while acknowledging the documents existed. The department then refused to produce the records, citing an exemption due to trade secrets.

“The CPRA ensures Californians’ fundamental right to information about the actions that law enforcement agencies take in their name,” Matt Cagle, an attorney with the ACLU of Northern California, said in a press release. “The police cannot claim secrecy over their routine use of Stingrays, invasive surveillance devices that indiscriminately collect data on suspects and bystanders alike.”

Agencies flout spirit of California’s open records law

Back in the late 1960s, when state lawmakers drafted the California Public Records Act, they intended a robust law to aid government transparency.

“In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state,” the opening paragraph of the landmark law states.

Yet multiple exemptions give agencies the power to block disclosure. That forces public interest groups or citizen activists to hire attorneys to take to court the government agency, with its extensive resources paid for by taxpayers. In other situations, agencies charge a high upfront cost for copies of paper records.

According to the Associated Press, “Whether roadblocks are created by authorities to discourage those seeking information, or simply a byproduct of bureaucracy and tighter budgets, greater costs to fulfill freedom of information requests ultimately can interfere with the public’s right to know.”

California’s hollow disclosure law

Journalists and First Amendment experts say the California Public Records Act, while well-intended, has lost its effectiveness.

“California has a law that was originally a pretty good law, from the standpoint of government transparency, but over the years, it’s become a much less good law — maybe even a bad law,” Peter Scheer, executive director of the First Amendment Coalition, recently told the San Bernardino Sun. “The incentives are all on the side of withholding. No one’s ever been yelled at, reprimanded or fired for withholding information.”

Last summer, Gov. Jerry Brown and state lawmakers quickly passed special tax breaks for defense contractors Boeing and Lockheed Martin. Some information about the deal was withheld from lawmakers and nearly all of it was withheld from the public. The state’s Office of Business and Economic Development, also known as GO-Biz, denied a public records request by Calnewsroom.com for information about the negotiations.

“If GO-Biz were to provide you access to all the documents you seek, highly sensitive information would be disclosed that would jeopardize the possibility of the state of California being able to compete to attract companies like Lockheed Martin, Northrop or Tesla,” Grace Arupo Rodriguez, GO-Biz’s deputy director of legal affairs, wrote in a letter denying a public records request.

In the case of the Stingray surveillance program, Californians may not know the true nature of the program until the state’s transparency laws are upgraded.

According to the Los Angeles Times, “In Florida, which has among the most open government disclosure requirements, public records obtained by the ACLU showed that the state spent more than $3 million on the devices and related equipment. The Tallahassee police detailed 250 investigations in which it had used Stingrays.”

With time running short on the availability of DHS grant money, and bipartisan support in the U.S. Congress for advancing new phone protections, critics accused Santa Clara County officials of haste and overreach.

Santa Clara County Sheriff Laurie Smith found herself at the center of the dispute, which revolves around her request to the county’s Board of Supervisors for a portable surveillance system commonly known as “Stingray” (pictured above).

According to Ars Technica, “The same company that exclusively manufacturers the Stingray — Florida-based Harris Corporation — has for years been selling government agencies an entire range of secretive mobile phone surveillance technologies from a catalogue that it conceals from the public on national security grounds.”

For the Silicon Valley situation, the San Francisco Chronicle explained, “The device is said to mimic a cell tower, allowing authorities to track cellphones and pinpoint their location.” Stingray equipment ran a tab of over $500,000 — costs that could be covered by Homeland Security grants acquired by the county two years ago.

Skepticism on the Board of Supervisors has contributed to cops’ sense of urgency. Supervisor Sen. Joe Simitian, a former state senator, told the Contra Costa Times he knew about the potential Stingray deal since December. “I’m a little disappointed if they’re trying to hurry this up because the grant is going to expire,” he said. “It would have been nice to have been told about this a year ago.”

Stingray technology is already used in Alameda County and the cities of San Jose and San Francisco, with agencies around the San Diego and Los Angeles areas also getting into the act. But Simitian has spoken out about the value of more internal deliberation and resident input, criticizing Santa Clara sheriffs for holding a single, brief public meeting on the matter.

Legal questions

Challenges to Santa Clara’s plans haven’t just focused on the technology itself. Although some federal legislators have recently reintroduced a bill designed to bring some constraints to how cellphones can be monitored, for now police departments have enjoyed wide latitude in choosing how to proceed.

In Congress, the Geolocation Privacy and Surveillance Act was recently rolled out by a bipartisan group including Sen. Ron Wyden, D-Ore., and Sen. Mark Kirk, R-Ill. Designed to protect individuals’ cellphones from excessive intrusion by law enforcement or others, the act would require a warrant from police before using technology like Stingray to track locations.

“GPS data can be a valuable tool for law enforcement,” said Wyden in a statement, “but our laws need to keep up with technology and set out exactly when and how the government can collect Americans’ electronic location data.”

Santa Clara sheriffs, meanwhile, have tried to frame their broader approach in reasonable terms. The sheriff’s office announced its intended use of stingray technology “triangulates on a mobile phone only, and does not monitor, eavesdrop, or intercept conversations or data such as texts,” Ars Technica reported.

According to the Chronicle, Sheriff Smith tried to emphasize the potential benefits to allowing her office to set limits on its own:

“Smith … said the device will be used only ‘to acquire criminal-activity data to aid in apprehension and prosecution,’ and not to ‘observe community members.’ She said the device could help her deputies — and officers from other nearby agencies — find missing people and victims of human trafficking.

“But the department has no finalized policy for using the technology, and officials do not plan to seek public approval of a policy when it is completed.”

Changing expectations

That put California’s longstanding privacy and civil liberty advocates up in arms. “Because Stingrays are capable of dragnet secretive surveillance, they raise serious privacy issues and necessitate robust oversight by citizens, elected leaders and the judiciary,” wrote Matt Cagle of the American Civil Liberties Union. “The ‘just trust us’ approach to surveillance doesn’t cut it, especially when the surveillance is close to home. Yet the public’s ability to learn about and debate surveillance technology should not depend on the good will of law enforcement agencies – it should be incorporated into our democratic processes.”

Pending legislation, however, expectations for change have been blunted by events at the federal level.

As the Wall Street Journal reported, for years the U.S. Department of Justice has been using Stingray technology in a once-secret airborne surveillance program.

After passing the Assembly and the state Senate, AB1327 will await Brown’s signature until the end of September.

Legislation regulating the use of drones by law enforcement has already been proposed or passed in 13 other states. But a combination of timing, public opinion and California’s high profile have catapulted AB1327 to national attention.

Around the country, voters have objected strongly to the prospect of “domestic” drones used to police citizens, and some legislatures have responded. In Virginia, legislators barred both cops and regulators from deploying drones for the next two years, while Florida’s elected representatives considered requiring a warrant for any use of drones by law enforcement.

Sweeping rules, specific restrictions

A bipartisan group of California lawmakers banded together to draft AB1327. Assemblymen Steven Bradford, D-Gardena, Jeff Gorell, R-Camarillo, and Bill Quirk, D-Hayward, proposed to restrict drone policing in several key ways:

• In general, “public agencies” would be barred from using or contracting for “unmanned aircraft systems.” Narrow exceptions would include a use of drones that “achieves the core mission” of an agency and “is unrelated to the gathering of criminal intelligence.”
• Law enforcement agencies would be required to obtain a warrant based on probable cause, except in the instance of traffic accidents, environmental disasters, or the inspection of “state parks and wilderness areas for illegal vegetation or fires.”
• Any public agencies “intending to deploy” drones would be required to provide “reasonable public notice.”
• Information collected by drones, including photo and video data, would have to be “permanently destroyed within one year,” and could not be “disseminated” beyond the agency collecting that information.
• Finally, along with such information and its records, the identities of individuals and entities who “obtains or requests” those records would be subject to a disclosure requirement. Here, narrow exceptions would include disclosures that “would endanger the safety of a person involved in an investigation,” or “endanger the successful completion of the investigation” itself.

In general, Gorell said, the prospect of policing by drone raised a threat to “our reasonable expectation of privacy,” requiring lawmakers to set “guidelines,” according to The Los Angeles Times. But amid the flurry of precise details and legalistic language, one exemption seemed to run contrary to the civil-libertarian flavor of the legislation. “Illegal vegetation,” which law enforcement could search without a warrant over public land, clearly referenced cultivated marijuana plants.

Legislating in advance

California’s cops have reacted negatively to news of AB1327’s passage. Aaron Maguire, legislative counsel for the California State Sheriff’s Association, summed up that organization’s skepticism toward Gorell’s view of privacy. “If you’re going to the 49ers game, or you’re in a public arena,” he said, “we don’t think an individual has a reasonable expectation of privacy, and we don’t think a warrant makes sense.”

By any measure, AB1327 can be read as an effort to head off a potential problem at the pass. Reactive legislating has increasingly come under attack by activists and lobbyists with vested interests in pushing against “do-nothing” legislators. In fact, although fears of drone abuse are on the rise, the number of such incidents has so far been very low nationwide. In California, however, a string of events attracting popular attention pushed drone concerns to the front burner more than inside political pressure or partisan agendas.

Backlash crested this summer against law enforcement drones real and imagined:

• San Jose police had to apologize for pursuing drone plans without adequate public notice.
• The Los Angeles Police Department placed two drones under lock and key pending clarifications of federal rules.
• A Los Angeles crowd dispatched a hobbyist’s drone, mistaking it for an LAPD device.
• A West Hollywood man raised awkward legal questions by tormenting city cops with flyovers of police station parking lots.

The decision on limiting drone use now is up to Brown.

A new bipartisan bill would prohibit California’s cooperation with warrantless snooping by the National Security Agency.

Senate Bill 828 is by state Sen. Ted Lieu, D-Redondo Beach. Invoking the Bill of Rights’ Fourth Amendment protections against unreasonable searches and seizures, SB828 would affect the state, its employees, its governmental subdivisions and even corporations providing services for the state.

According to the language of the bill, all those affected are barred from “materially supporting or assisting” any “federal agency or federal agent in collecting electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place, and thing to be searched or seized.”

That broad wording would extend legal protections against surveillance to non-citizens and citizens alike. Snooping with a warrant still would be allowed.

Additionally, SB828 bans the use of electronic data and metadata obtained without a warrant in state and local criminal investigations or prosecutions.

Dubbed the “Fourth Amendment Protection Act,” the bill would put California on a collision course with a major federal policy for the second time in recent years. Last October, the lawmakers passed the Trust Act. It introduced sweeping measures to shelter illegal immigrants from federal action.

Over strenuous objections of those favoring tighter immigration laws, Gov. Jerry Brown signed the Trust Act with a suite of other bills that activists estimated would keep some 20,000 undocumented people out of federal detention every year.

Anti-surveillance momentum

Nationally, California legislators stuck their necks out with the Trust Act.

But with SB828, they wouldn’t be alone. One of the bill’s two co-sponsors, State Sen. Joel Anderson, R-San Diego, invoked similar measures passed by state legislatures in Arizona, Maryland, Tennessee, Utah and Washington.

Anderson explained the bill “would stop NSA access to DMV records, Covered California records, state records, even voting records that might otherwise be confiscated at will.” Although “unequivocally dedicated to stopping terrorism,” Anderson insisted that Americans “must be ever vigilant that our desire for safety does not come at the expense of the freedoms and liberty our enemies seek to destroy.”

A press release describing the impact of the bill was also issued by Lieu. “State-funded public resources should not be going toward aiding the NSA or any other federal agency,” he said, in “indiscriminate spying on its own citizens” that “violates the Fourth Amendment.”
 
Last year, the release noted, Lieu successfully spearheaded a bipartisan resolution “urging Congress to reconsider its vote for the NSA to stop its unconstitutional practices.” That resolution, SR16, also called on President Obama to end “the NSA’s blanket, unreasonable, and unconstitutional collection of all Americans’ telephone records,” singling out overbroad uses of the PATRIOT Act for reform.

Earlier this year, Anderson and Lieu teamed up to push Sacramento to cut off the NSA from access to basic utilities and services in California. Then as now, Lieu explicitly compared NSA surveillance to the federal government’s wholesale detention of Japanese-Americans during World War Two, warning that the “last time the federal government massively violated the U.S. Constitution, over 100,000 innocent Americans were rounded up and interned.”

California leadership

As the debate continues in Congress over the scope and force of federal law surrounding America’s surveillance regime, elected officials in California face an opportunity to take a notable lead on the issue.

Democratic Sen. Dianne Feinstein, head of the Senate Intelligence Committee, was recently at the center of an unusually fierce dispute with the CIA over detention and interrogation. The controversy came to a head when Feinstein discovered that the CIA had secretly spied on Senate staffers working on a committee report critical of the agency’s practices.

Previously, Feinstein herself had been criticized for a lax attitude toward surveillance issues. The last time the Foreign Intelligence Surveillance Court turned down a government request to conduct electronic surveillance was in 2009.

Events will unfold quickly in California once legislators determine whether or not to support the bill. If passed, SB828 would go into immediate effect as an “urgency statute.”

The TechCrunch web site regularly cites examples of how “techno-militarization” has come to the Golden State, including this December story from Oakland:

“Oakland’s City Council voted to move ahead with controversial city surveillance center during a raucous council meeting Tuesday morning that only ended when the police cleared out the chambers.

“The council voted 6-1 to approve an incremental resolution allowing the city to hire a new contractor to assemble the Domain Awareness Center, a surveillance hub that would allow police and city officials to continuously monitor video cameras, gunshot detectors and license-plate readers across the city.

“Dozens of Oakland residents, deeply worried the center would allow the city to spy on people’s everyday lives, tried to turn the resolution into a referendum on surveillance and persuade council members to stall, or scrap, the process.”

The East Bay Express thinks it’s already turned up evidence that Oakland authorities plan to use the Domain Awareness Center to suppress dissent:

“So what is the real purpose of the massive $10.9 million surveillance system? The records we examined show that the DAC is an open-ended project that would create a surveillance system that could watch the entire city and is designed to easily incorporate new high-tech features in the future. And one of the uses that has piqued the interest of city staffers is the deployment of the DAC to track political protesters and monitor large demonstrations.

“Linda Lye, a staff attorney at the American Civil Liberties Union of Northern California, was alarmed when we showed her emails that revealed that the Oakland Police Department has already started using the DAC to keep tabs on people engaged in First Amendment activity. ‘The fact that the focus so far has been on political protests, rather than the violent crime that’s impacting Oakland residents, is troubling, and telling about how the city plans to use the DAC,’ she said.”

Big police brother is watching you

Here’s another Northern California example from the Center for Investigative Reporting:

“A year ago, the Northern California Regional Intelligence Center – one of dozens of law enforcement intelligence-sharing centers set up after the terrorist attacks of Sept. 11, 2001 – signed a $340,000 agreement with the Silicon Valley firm Palantir to construct a database of license-plate records flowing in from police using the devices across 14 counties, documents and interviews show.

“The extent of the center’s data collection has never been revealed. Neither has the involvement of Palantir, a Silicon Valley firm with extensive ties to the Pentagon and intelligence agencies. The CIA’s venture capital fund, In-Q-Tel, has invested $2 million in the firm.

“The jurisdictions supplying license-plate data to the intelligence center stretch from Monterey County to the Oregon border. According to contract documents, the database will be capable of handling at least 100 million records and be accessible to local and state law enforcement across the region.

“Law enforcement agencies throughout Northern California will be able to access the data, as will state and federal authorities.”

Per reports, at least 32 government agencies in the Bay Area are now using license-plate readers.

Here’s an example from Southern California, from a CBS 8/San Diego report:

“A massive data collection operation is underway in San Diego county to store and search millions of photographs. The photos are being taken by license plate reading cameras mounted on law enforcement vehicles all across the county.”

‘A new relationship between the individual and the state’

There are many more such examples. Collectively, they make a key premise of gloomy tech intellectuals impossible to dispute: We’re seeing a sea change in technology and policing, with huge long-term implications for privacy and the relationship between the individual and the state — and there hasn’t even been a real discussion about it.

Even though we’ve seen it coming for years.

Of course, authorities go in the opposite direction when technology has the potential to embarrass them:

“SAN FRANCISCO (AP) — A San Francisco Fire Department ban on video cameras now explicitly includes helmet-mounted devices that film emergency scenes, according to Chief Joanne Hayes-White.

“The edict comes after images taken in the aftermath of the July 6 Asiana Airlines crash at the San Francisco airport led to questions about first responders’ actions, which resulted in a survivor being run over by a fire truck.”

If things like this don’t make you cynical, you’re well-medicated.