Over the weekend, the City of Cambridge released a draft surveillance oversight ordinance. Today at 2pm the Public Safety Committee of the City Council will hold a hearing on the draft, and take comments from the public and interested organizations. The ACLU will submit written testimony, and will testify during the public comment period.
If you want to ensure community control over police surveillance in Cambridge, but can’t make the hearing today, please submit written comment by email to firstname.lastname@example.org.
The ACLU suggests strengthening the draft ordinance in the following ways:
- In section 12.22.020 (F) 3 c., the draft exempts “cameras installed in or on a police vehicle” from the requirements of the ordinance. This exemption could be read to include license plate reader cameras. The language should be modified to read, “cameras installed in or on a police vehicle, not to include license plate reader cameras.”
- In sections 12.22.030 (A) and (B), the draft ordinance requires city agencies to “submit to the City Council a Surveillance Impact Report and obtain City Council approval before” acquiring or using surveillance technologies. The language should read, “submit to the City Council a Surveillance Impact Report and a Surveillance Use Policy and obtain City Council approval of both before” acquiring or using surveillance technologies. Similarly, section 12.22.060 (C) should be modified to read: “…including whether the City Council approved, rejected, or required modifications to the Surveillance Impact Report and/or Surveillance Use Policy.”
- In section 12.22.030 (C), the draft states that the Council “shall balance” a number of factors in making its decisions. We recommend the language state: “…the City Council shall consider the safeguarding of individuals’ rights to privacy, freedom of speech, and freedom of association, as well as the investigative responsibilities of the Police Department.”
- In section 12.22.050 (B), the draft states: “To the extent the City Manager…determines that approving or denying the Surveillance Use Policy would unlawfully obstruct the investigative or prosecutorial functions of the Police Department, the City Council shall simply receive and discuss the applicable portions of the Surveillance Use Policy.” This sentence is a loophole that swallows the entire ordinance, and should be removed in its entirety.
- In section 12.22.060 (A), the draft states: “Similarly, if the City Council received but did not approve a Surveillance Impact Report from the Police Department because of concerns over obstructing the Police Department’s investigative or prosecutorial function, the Police Department must still submit an Annual Surveillance Use Report…” This sentence is confusing and should be removed in its entirety. The ordinance should require that, except in exigent circumstances, the City Council has the final say over surveillance technology acquisitions.
- In section 12.22.060 (B), the mechanism for ongoing oversight is insufficient. The current draft states: “If the benefits or reasonably anticipated benefits [of the technology] do not outweigh the financial and/or operational costs or civil liberties or civil rights are not reasonably safeguarded, the City Council may consider (1) recommending modifications to the Surveillance Use Policy that are designed to address the City Council’s concerns to the City Manager for his consideration; and/or (2) requesting a report back from the City Manager regarding steps taken to address the City Council’s concerns.” This framework leaves ongoing oversight up to the City Manager, whereas a strong oversight ordinance empowers the City Council to revoke authorization for use of a surveillance technology if the Council determines the technology has been used in ways that do not benefit the City and its people. Crucially, this draft provides no mechanism whereby the Council may revoke authorization. In order to ensure ongoing accountability and oversight, the Council must have this authority.
- The draft ordinance does not establish a process for requiring public input in the City Council’s deliberations over Surveillance Impact Reports or Surveillance Use Policies, and it must. The ordinance should stipulate that the Council hold public hearings to discuss every Surveillance Impact Report and Use Policy before the Council votes to approve or deny them. At minimum, in cases where the Council determines it is necessary because of time or resource constraints, the Council must allow for a public comment period before approving or denying any Impact Report or Use Policy.
- Finally, in section 12.22.070, the draft ordinance states that the City Manager shall enforce the ordinance. This is insufficient. The ordinance should include a right of private action, at minimum, as well as a provision mandating the awarding of successful litigants reasonable attorneys’ fees. The ACLU also recommends including whistleblower protections, as outlined in Section 9 of the attached ACLU model surveillance oversight ordinance.
 The language about “investigative and prosecutorial functions” does not appear in any city surveillance oversight ordinance in the country. It only appears in the Santa Clara County, California ordinance, because that ordinance governs county government. The language was included in Santa Clara to ensure the ordinance did not impact the Santa Clara District Attorney or the Santa Clara Sheriff, both of whom are elected officials. None of the city ordinances in California or Washington state include this provision, and it should be removed from the Cambridge draft, because Cambridge is a city not a county.
 The ACLU’s model ordinance is also available online. https://www.aclu.org/files/communitycontrol/ACLU-Local-Surveillance-Technology-Model-City-Council-Bill-January-2017.pdf.