Privacy SOS

Dissent is Not Terrorism: Bringing local, democratic control over police surveillance in Boston

Recent reporting from Los Angeles highlights the urgent need for city councils across the United States to take control of local government surveillance operations, subjecting police spying to democratic control, oversight, transparency, and public accountability. On November 10, Boston residents have an opportunity to voice support for an ordinance that would take surveillance technology decisions out of the hands of the police department and place them with the City Council, ensuring executive agencies are not acting in cover of secrecy, conducting operations that run counter to community needs.

According to the LA Times, the Los Angeles Police Department has announced plans to acquire state of the art aerial surveillance technology, which it plans to use to film Black Lives Matter and other protests on the ground. A spokesperson for the department says they intend to keep the video surveillance footage of protesters “indefinitely.”

Local activists and the ACLU of Southern California expressed outrage, but according to the LA Times, the police department has no intention of listening to concerned residents.

LAPD Deputy Chief Peter Zarcone, the head of the department’s “counterterrorism” and special operations bureau, was defiant about the department’s plans, dismissing outright any privacy concerns related to filming First Amendment protected activity and storing the footage forever. When reporters asked him to respond to racial justice and civil rights objections to the department’s plans to spy on protesters, he said: “If the privacy concern is that that should not be done, then that would preclude what we’re trying to do.” In other words: We intend to violate the privacy of people exercising their rights, and we won’t apologize for it.

The LAPD aerial surveillance story raises two crucial issues activists across the country must confront: First, the increasingly dangerous role state and local police are playing as ears for the federal government’s intelligence apparatus, made worse by police and “counterterrorism” officials’ conflation of dissent with terrorism; and second, the necessary first steps we can take at the local level to democratize and institutionalize oversight, control, and accountability, to begin to unwind the post-9/11 entanglement of local police with federal agencies.

Local police are the tip of the spear for the Trump administration’s war on dissent

In the post-9/11 period, the federal government has poured billions of dollars into state and local policing, enabling departments to purchase, install, and maintain vast surveillance networks throughout every major urban area in the country. The creation of “fusion centers” sponsored by the Department of Homeland Security simultaneously facilitated increasingly close personal and information sharing relationships among local, state, and federal authorities. The boundary between the enforcement of criminal laws and intelligence operations has eroded in the United States, as police increasingly view themselves as a key component of the nationwide intelligence infrastructure, known to its adherents as the “intelligence community.”

As the fallout from the Boston Marathon bombings showed, the feds have not always been quick to share information with state and local police. But the information has flowed with increasingly alarming depth and velocity in the other direction, as state and local police collect and share vast quantities of information with federal officials, sometimes by request and sometimes automatically, through networked information sharing programs and database systems.

This transformation—shifting local policing away from local concerns and turning the nation’s nearly 1 million cops into eyes and ears for the FBI and the rest of the federal intelligence infrastructure—was intentional, and methodically planned. In 2008, the Office of the Director of National Intelligence declared “the imperative need of moving beyond considering State and local government to be only ‘first responders,’ preferring instead to thinking of them as the first line of defense in a very deep line of information assets.” To facilitate the transformation, the Department of Homeland Security created two grant programs, the Urban Areas Security Initiative and the State Homeland Security Grant Program, to fund the expansion of the national security state to state and local police and sheriffs departments. DHS also created the Office of Intelligence and Analysis, which works closely with state and local cops through DHS-funded fusion centers nationwide.

The degree to which local elected officials have been involved in this process varies by region, but generally the transformation took place absent open debate, democratic oversight, or accountability. The institutions, partnerships, and technologies that facilitate the federalization of local policing—the fusion centers, task force agreements, and database systems—remain shrouded in secrecy from not only local residents but also local elected leadership, who lack the security clearances required to even discuss the details of many fusion center operations with the police ostensibly under their command.

This critical failure of oversight has predictable, devastating consequences: mission creep and civil rights harms. What started out as a mission to fight terrorism quickly morphed into surveillance operations targeting dissenters who challenge the status quo.

Scholar, advocate, and former FBI official Michael German has written extensively about the danger these federalized intelligence operations pose to basic civil rights in communities across the country. According to German, there are “several characteristics of intelligence work that make it susceptible to abuse.”

  1. Contrary to routine criminal justice processes, which involve procedural safeguards and due process protections, “intelligence activities generally take place in secret, with little independent oversight and no opportunity for victims to defend themselves from improper or illegal government actions.”
  2. The mission of intelligence work, as defined by its practitioners, is simultaneously “compelling but ambiguous,” and leads to discourse that implies any intelligence failures could lead to mass devastation—an effective rhetorical maneuver deployed to silence critics and chill democratic oversight from elected officials who seek to protect civil rights and liberties. In this framework, oversight and civil rights protections can be all too easily marginalized or even demonized as threats to public safety, a significant challenge for local politicians who are too often reluctant to challenge the power of the police.

The combined effect is that police are essentially free to determine, by themselves, what kinds of surveillance operations and technologies to pursue, and which groups and people to target. German quotes a witness for the Church Committee, a Senate Committee established in the 1970s to investigate domestic surveillance operations, explaining how giving secretive government agents a free hand in intelligence work ultimately leads to political surveillance:

“The risk was that you would get people who would be susceptible to political considerations as opposed to national security considerations, or would construe political considerations to be national security considerations, to move from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate.”

In the shadows, absent any oversight or transparency, “law enforcement officials working in intelligence soon begin to see themselves not just as enforcers of criminal law, but as defenders of the existing social, moral, and political order,” German writes. Given the political leanings of police unions, it is not surprising that intelligence officials usually reserve their most invasive and persistent surveillance operations for people of color, Black political organizers, Muslims, and left-wing activists. While deeply troubling, it is not surprising that police departments are especially interested in spying on Black Lives Matter protests and other groups that directly challenge the power of those very police, and in many cases call for police abolition.

Here in Boston we’ve gotten glimpses of what the surveillance machinery looks like, though most of it remains secret. Piece by piece, year after year, we’ve put together evidence that police at the Boston Regional Intelligence Center have spied on antiwar activists, Occupy Boston activists, Muslims, and Black Lives Matter movement supporters. This pattern has played itself out across the country over and over again since 2003, when Congress got the ball rolling by establishing the Department of Homeland Security. The question now is what we can do about it.

Systemic problems demand systemic solutions: Ensuring community control over surveillance

Police departments have for too long acted under cover of secrecy and independent of any direct oversight or accountability from elected officials or members of the public. That must change.

On November 10 at 3pm, Boston residents will get an opportunity to speak in favor of an ordinance that would, among other crucial measures, take decision making power regarding surveillance technologies and operations directly from the police department and place it in the hands of the elected City Council.

The ordinance, part of the ACLU’s nationwide Community Control Over Police Surveillance (CCOPS) effort, is supported at the local level by organizing from the ACLU of Massachusetts, Student Immigrant Movement, Unafraid Educators, and Muslim Justice League. If enacted, it will require that:

  • all existing City of Boston surveillance technologies and database systems are disclosed to the public and the City Council, and that the City Council vote to determine whether to allow City agencies to continue to use them, and if so, pursuant to what civil rights and privacy protections;
  • going forward, all City of Boston procurement and policy decisions regarding surveillance technologies and databases go through a public process at the City Council, which will decide whether to approve or deny new requests for surveillance procurement and any policy changes; and
  • City agencies report to the public and the City Council annually on the cost and impact of all approved surveillance systems, ensuring there is a framework for ongoing oversight and accountability of approved systems, while the City Council at all times retains the power to revoke approval for any previously approved system, technology, or policy.

These essential transparency, oversight, and accountability provisions are not magical potions. They will not, alone, unravel the post-9/11 surveillance state the Boston Police Department has become entangled with, in the shadows, for all these years. Instead, the law creates necessary space and a clear, systematized process for organizing to effect this much-needed systemic change. Ensuring the ordinance leads to true community control will require ongoing organizing and democratic engagement from civil rights groups and community members concerned about surveillance. City Councilors will in some cases need to be pushed to vote the right way, knowing what we know about the rhetoric of counterterrorism and its power over discourse and policy. But activists and other residents will have opportunities to intervene that we currently lack, because we often don’t know what’s happening inside City agencies, and because there is no current process in the law to mandate public decision-making outside of the executive branch.

If we pass this crucial ordinance, the ACLU and our allies likely won’t win every surveillance battle at the City Council. But recent history indicates that placing in the City Council’s hands decisions about surveillance in Boston results in policy outcomes that are far superior to those we see when police make the decisions on their own, behind closed doors. In June 2020, the City Council unanimously voted to ban all government agencies in the City from using facial surveillance technology. The police department was at the time dangerously close to acquiring technology that would have facilitated city-wide face surveillance.

We won a ban on face surveillance, but going forward we need to create a standard process to democratize procurement policy. Instead of approaching surveillance procurement and policy from the whack-a-mole perspective, it’s high time we institutionalize transparency, oversight, and accountability for future generations.

Join us: If you’d like to help us ensure Boston residents have a say in what kinds of surveillance systems our City agencies acquire and deploy, as well as the rules governing those systems, please sign up to testify at the hearing on November 10, and help us spread the word. Email Kade Crockford at kcrockford@aclum.org for more information, or if you’d like help with your testimony.  

© 2020 ACLU of Massachusetts.