OPINION: Weed should regulate its surveillance

Submitted by Jonathan Hofer

Take a drive throughout the town of Weed and you’ll surely come across odd looking cameras topped with a blinking blue light. They’re primarily intended for traffic monitoring, one city employee told me. But their pervasiveness without an accompanying city ordinance has gone on too long and the city risks jeopardizing its citizen’s civil liberties.

One of the more prominent of these cameras is mounted to a telephone pole on Main Street. From its vantage point, the main street camera is particularly concerning for its possible ability to surveil regular goers to the nearby dispensary, bar, and bank. Some months ago, a camera was mounted at the intersection of Broadway and Roseburg overlooking a historically African-American predominant residential area.

While the intention to monitor traffic is merited, there is an unfortunate propensity for these technologies to expand in their reach and scope. In San Diego, for example, the city council in 2016 sold the public on a new smart streetlight program. Armed with an array of sensors, the street lights feature wide angle cameras and the ability to upload collected data to a cloud storage database.

The City of San Diego applauded the smart street lights for their energy efficiency and future applications in regards to improving traffic, saying the lights would “help City staff provide better services to our residents and increase efficiencies for City operations.”

But, the mission creep settled in quickly. In 2019 reports surfaced that San Diego’s contract with the streetlight vendor, General Electric, allowed “unrestricted rights to the data” gathered by the cameras and sensors, including the right to sell the data to third parties.

By early 2020, it was clear that the San Diego police were not even using the streetlights for the primary purpose of traffic control or monitoring, but instead were looking into alleged criminal activity. Then, in the wake of the Black Lives Matter protests in June of 2020, police used the cameras to investigate protestors. This type of surveillance can have a considerable chilling effect on First Amendment activity.

Though it is of course desirable for police to effectively utilize the tools at their disposal, this much is clear: with a poor regulatory regime, no oversight, and little transparency, the benign traffic monitoring cameras went above and beyond their explicitly stated purpose. And it does not help that some vendors specifically market their wares to city officials as “enabling infrastructure by hosting third party sensors.” Meaning, that other sensors and software can be incorporated later.

It would have been prudent for the City of Weed to have had a privacy policy in place prior to the acquisition of surveillance technology. For starters, there is virtually no transparency on the issue; information related to it is not readily available. A search of the words “camera,” “surveillance,” or “privacy” on the City of Weed’s website returns no pages nor documents. Compare that with the gold standard set by the City of Oakland, which has its policies enshrined as a dedicated chapter in its municipal code.

Policy 378 of the Weed Police Department Policy Manual does have a section on a Public Safety Video Surveillance System. The policy deserves kudos for specifying that the cameras should be conspicuous, and that they will not record audio, but otherwise the policy is neglectful for its porous standards.

Proponents of the cameras might counter that these are only keeping an eye on the public thoroughfare; there is no expectation of privacy, and therefore it would not be a Fourth Amendment violation, per se. But as the California State Auditor once noted, “[The United States Supreme Court] has decided cases involving other electronic surveillance [...] the court has found that certain electronic data that reveal individuals’ movements over an extended period of time, if gathered, do at some point impinge on privacy.”

Even in public, there still needs to be a concern over surveillance.

Furthermore, there is nothing stopping the Weed Police Department (WPD) from acquiring more invasive technology. Policy 378.3.3 says it can integrate its video surveillance equipment with “gunshot detection, incident mapping, crime analysis, license plate recognition, facial recognition and other video-based analytical systems may be considered based upon availability and the nature of department strategy.”

Not only has gunshot detection, facial recognition, predictive policing, and license plate recognition systems come under fire for being flawed and having negative impacts on civil liberties, but in the WPD’s response to an inquiry from the California State Auditor, WPD said that there are no plans to use an automated license plate recognition system. If this is the case, then why do they need a surveillance system capable of doing so?

The video retention policies stand out as another big risk. Absent of being used in litigation, Policy 378.5 says that the “retention schedule [is] a minimum of one year.” However, the media is seemingly not regularly cleared automatically after that time as the city attorney needs to explicitly sign off before the video can be deleted.

This is not to say that the City of Weed’s efforts up to this point have been in bad faith. Rather, given that the city now has these technologies at their disposal, it is imperative that guidelines are made now to prevent future abuse. Without specific policies there is no guarantee that the civil liberties of the residents are being respected. The genie must be kept in its bottle. An ordinance requiring city council approval for the acquisition of surveillance technology and mandated standards is needed.

Jonathan Hofer was born and raised in Weed. He is a former political science researcher at the University of California, Berkeley and currently works as a research associate at an Oakland based public policy think tank working on municipal surveillance and the impact of emerging technologies on civil liberties.