Experts say mayor’s drive to override surveillance law misstates law’s restrictions

Mayor London Breed’s announcement yesterday that she wants to give law enforcement more access to surveillance technology left privacy experts and political figures baffled – the 2019 surveillance technology law she wants to amend already permits law enforcement to access such data, they said. 

Brian Hofer, who co-authored the 2019 legislation which aims to limit access to surveillance technology, agreed: “They’ve either never read the ordinance or they’re being deliberately misleading.” 

The mayor’s Medium post on Tuesday said the surveillance technology law needed to be amended “to clarify that peace officers are allowed to access live-feed and in real-time surveillance technologies when necessary to maintain public safety.” Surveillance technology can include cameras, facial recognition technology, and tools to gain unauthorized access to computers. 

Lee Hepner, a legislative aide to Supervisor Aaron Peskin, who sponsored the 2019 law, said the law does not prevent the Police Department from using real-time monitoring. He wondered whether the mayor was getting “bad advice.” 

Current law also already allows for police to access this type of footage – live feeds of an ongoing looting incident, for example – without Board approval whenever there is “danger of death or serious physical injury. ” 

Instances of mass retail theft, like the ones Breed is using as examples of the law’s deficiency, already allow police to bypass the approval process due to “exigent circumstances,” said Hofer. “During a smash-and-grab … there’s obviously a risk to somebody.” 

And after any crime event, police routinely pick up street video footage. 

For instances of ongoing surveillance, “the law requires them to propose a policy for how they are going to use surveillance technology as it’s defined,” Hepner said. “And then there’s a public vetting process and ultimately the Board of Supervisors approves it.” 

Hepner noted that several other city departments have already gone through the process of creating these types of policies, including the SFMTA — which has policies that allow for live monitoring in certain use-cases by authorized personnel. 

The announcement raised concerns that the police and the mayor are using highly publicized instances of crime in the city to circumvent San Francisco’s nationally lauded privacy law.  

In a scathing Tuesday announcement outlining aggressive plans to address theft and drug-dealing, Breed said the 2019 ordinance prevented the Police Department from accessing cameras during recent large-scale retail thefts, calling the barrier to access “ridiculous” and pointing out that other jurisdictions across the country have access to such surveillance tools while San Francisco law enforcement does not. 

“There is a balance to be had, I know,” Breed said. But if officers can’t use cameras during a mass retail-theft event, she said, then “that policy is out of balance.” 

But, the mayor appears to be wrong on what the law allows. 

If the department is requesting access to technology such as real-time monitoring for events that may not involve a risk of physical injury, Hofer said that there could be concerns such as police monitoring footage during protests, or passing footage on to third parties like Immigration and Customs Enforcement. 

The ACLU sued the city on behalf of racial justice advocates after the SFPD used real-time camera network to “spy on the Black Lives Matter protests following the murder of George Floyd,” the ACLU of Northern California pointed out yesterday. 

In any case, Hofer said, all the Police Department has to do is propose a policy on how such surveillance technology would be used. It has not yet done so. 

“What I’m picking up on is that she’s trying to create a back door in this legislation, when the front door is wide open,” said Hepner. 

Further, the SFPD is already in violation of the law’s requirement that city departments get the Board of Supervisors’ approval of surveillance technology policies for surveillance technologies already in use. Only two of the department’s close to 50 different surveillance technologies are compliant two and a half years after the law’s passage. 

A spokesperson for the ACLU of Northern California told Mission Local in a statement that it opposes attempts to undermine the surveillance technology ordinance, adding that “a diverse community coalition supported the ordinance” when it passed in 2019, “putting needed guardrails on police surveillance.” 

“The SFPD has a long record of racial discrimination and abuse and gutting the ordinance to give police unchecked access to real-time surveillance will endanger the people of San Francisco, particularly immigrants, the unhoused, people of color, and religious minorities,” said the statement. “Weakening the ordinance will undermine police accountability and harm people’s rights and safety for years to come.” 

Breed said her office is actively working on amendments, which she plans to introduce in January to the Board of Supervisors. Her office did not respond to a request for comment.

UPDATE, Dec. 16: Public Defender Mano Raju expressed concern about giving police live-access to surveillance altogether, and said in a statement that “San Francisco police are already utilizing racially-biased, unreliable and illegal facial recognition technology, and giving them more tools to do so would further harm people of color and exacerbate existing economic and power dynamics.”

“Mayor Breed’s press release rightfully notes that recent legislation ‘created a clear public process and transparency relating to surveillance technologies,'” Raju continued. “This proposal, which would undermine said process, raises serious concerns.”