From: Chapters
To: [email protected]; Okrepkie, Jeff; Alvarez, Eddie; Rogers, Natalie Cc: CityCouncilListPublic; Stapp, Mark; MacDonald, Dianna; Fleming, Victoria; Banuelos, Caroline; Cregan, John; [email protected]
Subject: [EXTERNAL] ACLU NorCal Sonoma County Comment re: Item 6.1, Drone as First Responder Program Date: Tuesday, January 28, 2025 8:04:11 AM
Attachments: image002.png
Santa Rosa Public Safety Subcommittee 6.1 Drone as First Responder Program.pdf Chapter 8.80 SMC.pdf
Dear Santa Rosa Public Safety Subcommittee:
Attached, please find public comment from the Sonoma County Chapter of the ACLU of Northern California on agenda item 6.1, “Drone as First Responder Program” of the Santa Rosa Public Safety Subcommittee meeting on January 28, 2025.
Respectfully,
The Sonoma County Chapter of the ACLU of Northern California
Email: [email protected]
January 28, 2025
VIA ELECTRONIC MAIL
TO: Santa Rosa Public Safety Subcommittee
CC: Santa Rosa City Council (Mayor Mark Stapp, Vice Mayor Eddie Alvarez, Councilmember Dianna MacDonald, Councilmember Victoria Fleming, Councilmember Caroline Bañuelos, Councilmember Jeff Okrepkie, Councilmember Natalie Rogers)
CC: Chief John Cregan, Santa Rosa Police Department
Re: Item 6.1, Drone as First Responder Program, Public Safety Subcommittee meeting on January 28, 2025
Dear Santa Rosa Public Safety Subcommittee, Mayor Stapp, and City Councilmembers:
On behalf of the Sonoma County Chapter of the ACLU of Northern California (“ACLU NorCal Sonoma County Chapter” or “our chapter” or “ACLU”), I submit public comments on agenda item 6.1, “Drone as First Responder Program” of the Santa Rosa Public Safety Subcommittee meeting on January 28, 2025.
We write to you to urge you to consider the serious privacy and civil rights ramifications of drones and “drone as first responder” (DFR)
1 specifically.
Privacy Concerns with Utilization of Surveillance Technologies
The evidence is clear that while surveillance has increased exponentially, public safety has not. On the contrary, surveillance systems often make people less safe, especially
1 Jay Stanley, Eye-in-the-Sky Policing Needs Strict Limits, ACLU White Paper, (July 27, 2023), https://www.aclu.org/documents/eye-in-the-sky-policing-needs-strict-limits.
for groups that have historically been in the government’s crosshairs. Modern surveillance technology makes it possible for the government to track who we are, where we go, what we do, and who we know. It fuels hightech profiling and perpetuates systems of biased policing. It facilitates deportations, chills speech, and imperils the rights of activists, religious minorities, and people who need reproductive and gender- affirming care.
2 Surveillance systems fuel racial injustice. In a nation where police interactions with the public all too frequently turn dangerous, surveillance systems can exacerbate and magnify these problems, increasing the risk of unnecessary government scrutiny, in- person encounters, and violence. Again and again, police have used surveillance systems to create inaccurate and discriminatory watchlists, engage in discriminatory stops and searches, and upend people’s lives. Surveillance technologies amplify the over-policing of Black and Brown communities.
Surveillance endangers immigrant communities, and this fact should be of particular concern for us in Santa Rosa. Across the United States, federal immigration agencies have eagerly exploited local databases rich with information collected by private data brokers, municipal agencies, and police departments. This information is fed into a deportation machine that tears apart immigrant communities. In recent years, Immigration and Customs Enforcement (ICE) has further expanded its reach into communities by exploiting local surveillance systems and databases to track, identify, and target immigrant community members for detention and deportation. No local surveillance system is safe from ICE’s demands.
Substantive Civil Rights and Liberties Concerns with Drones
The Council’s conversation with the public and departments should focus on identifying agreed-up issues or problems that the community wants to solve. Then, there should be an in-depth examination of evidence-based non-surveillance interventions that actually achieve those goals. We urge Council to question whether the harms of this invasive surveillance technology outweigh the purported benefits, especially because drones have not been demonstrated to meaningfully prevent crime or improve public safety. To the contrary, research has cast doubt on the efficacy of drones, finding that they provide minimal cost advantage to comparable manned aircraft and provide no more security than manned aircraft despite being significantly more expensive. 3 In light of these
2 We encourage you to read the ACLU’s new report, “SEEING SURVEILLANCE: THROUGH WHY POLICYMAKERS SHOULD LOOK PAST THE HYPE,” available at
https://www.aclunc.org/sites/default/files/Seeing Through Surveillance Report Web.pdf . 3 Abigail Hall, Drones: Public Interest, Public Choice, and the Expansion of Unmanned Aerial Vehicles (September 17, 2014). Available at SSRN: https://ssrn.com/abstract=2497539. concerns, communities are objecting to the use of drones by police agencies when given the opportunity.4 This is reflective of broader public sentiment against the use of drones for domestic surveillance.5 While we appreciate the information included in the presentation by SRPD, it should be accompanied by clear data to back up the supposed benefits of the DFR program.
Public sentiment is further justified by the serious civil rights and liberties concerns raised by drones. They are more invasive than traditional aerial surveillance because they present fewer barriers to frequent use and are less conspicuous. Unlike a traditional manned helicopter or aircraft, they are smaller, cheaper to acquire and operate, easier to operate without advanced skill, and capable of being equipped with invasive tracking systems. Drones can fly lower, more quietly, and navigate private spaces in ways unlike traditional aircraft. For example, a group of folks hosting a religious gathering in their backyard would be aware if a helicopter hovered over their property but might never know if a drone were flying overhead and recording video and audio of their gathering for unknown uses. The technological differences between manned aircraft remove natural limits that currently exist to deter continuous and routine aerial surveillance.
The amount of highly personal information drones can collect is nothing short of staggering. Small, hovering platforms, drones can explore hidden spaces or peer into windows. They can be equipped with high powered, night-vision cameras. So called “see-through imaging” can monitor people on the inside of a building. Through distributed video, a number of drones working in concert like a swarm of sentient insects can scoop up sensitive information with unsettling precision. Drones can be coupled with powerful sensors such as facial recognition, license plate trackers, and other
4 When the Los Angeles Police Department proposed acquiring and using drones in 2019, it received over 1,675 letters in response to requests for public comment on its proposed drone program, the vast majority of which urged LAPD to halt the program in its entirety. Makeda Easter and Kate Mather, Civilian oversight panel hears guidelines for LAPD use of drones, LA TIMES (October 3, 2017), available at http://www.latimes.com/local/lanow/la-me-ln-lapd-drones-20171002-story.html. The public also expressed its opposition to the drone program in two separate petitions, one with over 1,900 signatories and another with more than 800 signatories. See Drone-Free LAPD. No Drones, LA!, MoveOn.org Petitions, Drone- Free LAPD. No Drones, LA! | MoveOn; see also Shomi k Mukherjee, Concord police to get drones, but promise not to spy, EAST BAY TIMES (Oct. 14, 2021)
https://www.eastbaytimes.com/2021/10/14/concord-polic e-to-adopt-drones-program-promises-no- surveillance-amid-pushback/
5 See Terance Miethe, Miliaikeala SJ. Heen, & Emily Trosyhnski, Public Attitudes About Aerial Drone Activities: Results of a National Survey (Research in Brief report), CENTER FOR CRIME AND JUSTICE POLICY (July 2014) Research-PublicAttitudesaboutAerialDroneActivities.pdf (unlv.edu); see also Stephen Rice, Eyes In The Sky: The Public Has Privacy Concerns About Drones , FORBES (Feb. 4, 2019) Eyes In The Sky: The Public Has Privacy Concerns About Drones (forbes.com) (citing data from a study revealing that drone use generates fears of police and that the general public opposes ongoing drone surveillance)
software to automate the identification and tracking of community members. In many jurisdictions, drones capture footage from the moment they take flight until the moment they land, raising the possibility that drone-mounted cameras will capture high-definition imagery of private property and Santa Rosa community members going about their daily lives. SRPD should clarify the footage that drones would capture and whether it includes the entirety of all drone flights.
The Santa Rosa City Council should take very seriously the real possibility that the DFR program drones could expand into an even more invasive surveillance system and impose legal limits that prevent a citywide drone program from taking flight. Even when approved for a limited set of specified uses, it is often easy for police to expand the scope and intrusiveness of surveillance drones in ways the public and elected leaders never approved. These threats are not hypothetical. Drones touted as public safety tools are now available to monitor people in their private homes, workplaces, and places of worship, as well as in public spaces and during First Amendment protected events like protests.
6 Indeed, police in Northern California have previously deployed drones to monitor students and immigrants’ rights protests, and even used them to spy on encampments and unhoused people during the pandemic.7
Low-income communities of color in certain areas like Los Angeles have been dealing with oppressive aerial surveillance for many years, from police helicopters. Those communities have found such surveillance physically and psychologically harmful.8 Drones, too, are likely to be deployed first and foremost in low-income communities — though they could easily become far more pervasive and ever-present than police helicopters, which are expensive and thus subject to natural limits on their deployment9, especially in communities that don’t have very well-funded police departments.
We should keep in mind that, with advances in artificial intelligence, video is becoming a far more searchable, accessible, and analyzable — and therefore dangerous — set of
6 Jeff Stone, UK police may use drones to monitor protests, siege operations, INTERNATIONAL BUSINESS TIMES (January 5, 2016), http://www.ibtimes.com/uk-polic e-may-use-drones-monitor- protests-siege-operations-2250287.
7 See Dave Maass & Mike Katz-Lacabe, Alameda and Contra Costa County Sheriffs Flew Drones Over Protests, ELECTRONIC FRONTIER FOUNDATION (Dec. 5, 2018) Alameda and Contra Costa County Sheriffs Flew Drones Over Protests | Electronic Frontier Foundation (eff.org); April Glaser, Homel ess people are at risk from the coronavirus. Police have a contentious solution: drones , NBC NEWS (April 24, 2020) Homeless people are at risk from the coronavirus. Police have a contentious solution: Drones. (nbcnews.com).
8 Arielle Samuelson, The environmental terrorism of police choppers, HEATED (May 4, 2023), https://heated.world/p/the-environmental-terrorism-of-police. 9 Jay Stanley, We Already Have Police Helicopters, So What’s the Big Deal Over Drones?, (March 8, 2013), https://www.aclu.org/news/smart-just ice/we-already-have-police-helicopters-so-whats-big-deal- over.
data than it used to be. There will be a constant incentive on the part of both government and private contractors to run video datasets through machine learning algorithms for AI training purposes and to search for particular violations of the law or other facts of interest to law enforcement that might be buried within. Human attention is no longer a limiting factor when it comes to analyzing video data.
The principle of community consent was codified into California law by AB 481 (2021- 2022) at Cal. Govt. Code §§ 7070-75. In passing that law, the Legislature declared the “public has a right to know about any funding, acquisition, or use of military equipment by state or local government officials, as well as a right to participate in any government agency’s decision to fund, acquire, or use such equipment.” 10 Among other
requirements, that statute mandates that a law enforcement agency must seek and obtain city council approval of a program and set of policies prior to using “military equipment”
11 “for a purpose, in a manner, or by a person not previously approved by the governing body.”12 A City Council is not obligated to approve a program and cannot do so unless it determines it is “necessary,” that “no reasonable alternative” exists “that can achieve the same objective,” and that any policies safeguard the “public’s welfare, safety, civil rights, and civil liberties.”
13 Surveillance Requires Oversight
Any government use of surveillance must include proper oversight and accountability to protect individuals’ rights and liberties and to maintain the critical trust that should exist between law enforcement and the community. For this reason, we drafted a Surveillance Technology and Community Safety Ordinance, which has already been adopted by the City of Sebastopol and which we urge the City of Santa Rosa to adopt as well.
Such an ordinance creates transparent processes which allow law enforcement to obtain and renew approval for the use of certain surveillance devices including in exigent circumstances, while restricting unnecessary and problematic uses and practices.
10 Cal. Govt. Code §§ 7070-75 is also referred to by Assembly Bill 481 (2021-2022) and is available here:
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill id=202120220AB481 . 11 Under the law, drones are explicitly listed as a type of “military equipment,” as they are “unmanned, remotely piloted, powered aerial or ground vehicles.” Cal. Govt. Code §7070(c)(1). 12 Cal. Govt. Code § 7071(a)(1)(E).
13 Cal. Civil Code. s. 7071(d)(1).
A copy of Sebastopol’s Surveillance Technology & Community Safety Ordinance, now codified at Chapter 8.80 of the Sebastopol Municipal Code, is attached here as an exhibit for reference.
Giv
en the novelty of a DFR program, unanticipated issues are likely to emerge. Policies are needed in three areas: usage limits, transparency, and data handling. Good policies, including on usage limits, transparency, and privacy, should not be left up to police departments, but should be given legal force by a city council or other legislative body as part of a vote to approve a DFR program. To increase transparency to the public, the time, purpose, destination, and precise route of every DFR flight must be published. The practice of per-flight transparency should be regularized and mandated as a part of any police drone program.
Conclusion
We are concerned that the Santa Rosa community and City Council have not been able to adeq
uately and meaningfully consider the proposed DFR program, its impact on civil rights and liberties, and the availability of non-surveillance alternatives. We urge the City Council to investigate the purported need for the DFR program, and to question whether the cost to the community outweighs the stated benefits. We encourage the City of Santa Rosa to adopt an ordinance that would impose reasonable checks and balances on law enforcement’s use of surveillance in order to increase transparency and protect civil rights and liberties, and to update SRPD's Policy on Unmanned Aerial System (UAS) Operations accordingly.
Respec
tfully,
The Sonoma County Chapter of the ACLU of Northern California
8.80.010
8.80.015
8.80.020
8.80.030
8.80.040
8.80.050
8.80.060
8.80.065
8.80.070
8.80.075
8.80.080
8.80.090
Chapter 8.80
SURVEILLANCE TECHNOLOGY AND COMMUNITY SAFETY ORDINANCE
Sections:
Title.
Purpose and findings.
Definitions.
City Council review mandatory for surveillance technology decisions.
Temporary acquisition during exigent circumstances.
Surveillance impact report and surveillance use policy submission.
Standard for approval and compliance for existing surveillance technology.
Oversight following Council approval.
Prevention of secret surveillance technology contracts and agreements.
Prohibition of certain surveillance technologies.
Whistleblower protections and enforcement.
Severability.
8.80.010 Title.
This chapter shall be known as the “Surveillance Technology and Community Safety Ordinance.” (Ord. 1145, 2022)
8.80.015 Purpose and findings.
Biometric surveillance and predictive policing technologies have the potential to grant government entities the unprecedented power to secretly identify, monitor, and locate people simply going about their daily lives, threatening Californians’ privacy, liberty, safety and freedom as guaranteed by the California Constitution.
While surveillance technology may threaten the privacy of all of us, throughout history, surveillance efforts have been used to intimidate and oppress certain communities and groups more than others, including those that are defined by a common race, ethnicity, religion, national origin, income level, sexual orientation, or political perspective.
The use of biometric surveillance systems and predictive policing technology to watch, categorize, monitor and record the activities and movements of all Californians disproportionately impacts people of color, women, immigrants, LGBTQ people, and political activists of all backgrounds. Bias, accuracy issues, and stereotypes built into biometric surveillance systems and predictive policing technology have been shown to be flawed thus raising the potential for significant harm and injury to the groups previously mentioned.
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 1 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
No decisions relating to surveillance technology should occur without strong consideration being given to the impact such technologies may have on civil rights and civil liberties, including those rights guaranteed by the First, Fourth, and Fourteenth Amendments to the United States Constitution, as well as Sections 1, 2, and 13 of Article I of the California Constitution.
Due to the potential for abuse and misuse, it is imperative and as a matter of best practices that legally enforceable safeguards, including robust transparency, oversight, and accountability measures, must be in place to protect civil rights and civil liberties before any surveillance technology is deployed.
Whenever a surveillance technology is approved for use in the City of Sebastopol, data reporting measures must be adopted that empower the City Council and public to verify that mandated civil rights and civil liberties safeguards have been strictly adhered to.
The Sebastopol City Council finds that the public has a right to know about any funding, acquisition, or use of surveillance technologies within the City of Sebastopol. This chapter codifies and guarantees that the acquisition and use of these technologies are subject to rigorous review, public debate, oversight and annual reporting by any City department utilizing these technologies.
This chapter bans the use of certain technologies within the City of Sebastopol absent clearly defined exigent circumstances that would expose our citizens to a major risk to the public safety. Should the technologies be required to be implemented during a public safety emergency, the chapter provides for both limited use and duration with mandated public reporting requirements and significant levels of review regarding their use or any continued use. (Ord. 1145, 2022)
8.80.020
Definitions.
For purposes of this chapter, the following words, terms and phrases shall have these definitions:
“Annual surveillance report” means an annual written report concerning each of the specific surveillance technologies used by the City. The annual surveillance report will include all of the following:
1. A general description of how the surveillance technology was used;
2. A general description of whether and how often data acquired through the use of the surveillance technology item was shared with outside entities, the name of any recipient entity, the type(s) of data disclosed, under what legal standard(s) the information was disclosed, and the justification for the disclosure(s);
3. A summary of community complaints or concerns about each surveillance technology item;
4. The results of any internal audits required by the surveillance use policy, any information about violations of the surveillance use policy, and a general description of any actions taken in response; Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 2 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
5. Information, including crime statistics, that helps the City Council assess whether the surveillance technologies used by the City have been effective at achieving their identified purposes;
6. Statistics and information about any related Public Records Act requests;
7. Total annual costs for the surveillance technologies, including personnel and other ongoing costs, and what source of funding will fund the technologies in the coming year;
8. Any requested modifications to the surveillance use policy and a detailed basis for the request;
9. Where applicable, a general breakdown of what physical objects each surveillance technology hardware was installed upon, using general descriptive terms; and for each surveillance technology software, a general breakdown of what data sources the surveillance technology was applied to;
10. The summary of all requests for City Council approval for the use of any surveillance technology item, including whether the City Council approved or rejected the proposal and/or required changes to a proposed surveillance use policy before approval;
11. The annual surveillance report will not contain the specific records that a surveillance technology item collects, stores, exchanges, or analyzes and/or information protected, restricted and/or sealed pursuant to State and/or Federal laws, including information not required to be released by the Public Records Act. “Biometric surveillance technology” means any computer software that uses face recognition technology or other remote biometric recognition in real time or on a recording or photograph. “City” means the City of Sebastopol, and “City Department” means any City department and its officers and employees.
“Face recognition technology” or “FRT” means an automated or semiautomated process that:
1. Assists in identifying or verifying an individual based on an individual’s face; or
2. Identifies or logs characteristics of an individual’s face, head, or body to infer emotion, associations, expressions, or the location of an individual.
“Other remote biometric recognition” means:
1. An automated or semiautomated process that assists in identifying an individual, capturing information about an individual, or otherwise generating or assisting in generating information about an individual based on physiological, biological, or behavioral characteristics ascertained from a distance;
2. Uses voice recognition technology; or
3. Identifies or logs such characteristics to infer emotion, associations, activities, or the location of an individual; and does not include identification based on fingerprints or palm prints that have been manually obtained during the course of a criminal investigation or detention.
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 3 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023. “Personal communication device” means a cellular telephone that has not been modified beyond stock manufacturer capabilities, a personal digital assistant, a wireless-capable tablet or similar wireless two-way communications and/or portable internet-accessing devices, whether procured or subsidized by a City entity or personally owned, that is used in the regular course of conducting City business. “Predictive policing technology” means computer algorithms that use preexisting data to forecast or predict places or times that have a high risk of crime, or individuals or groups who are likely to be connected to a crime. This definition does not include computer algorithms used solely to visualize, chart, or map past criminal activity (e.g., heat maps).
“Surveillance impact report” means a written report including at a minimum the following:
1. Information describing the surveillance technology and how it works, including product descriptions from manufacturers;
2. Information on the proposed purpose(s) for the surveillance technology;
3. If applicable, the location(s) it may be deployed and crime statistics for any location(s);
4. The fiscal costs for the surveillance technology, including initial purchase, personnel and other ongoing costs, and any current or potential sources of funding;
5. An assessment identifying with specificity any potential adverse impacts the surveillance technology, if deployed, might have on civil liberties and civil rights; and what specific, affirmative measures will be implemented to safeguard the public from those potential adverse impacts;
6. Whether use or maintenance of the technology will require data gathered by the technology to be handled or stored by a third-party vendor on an ongoing basis; and
7. A summary of the experience, if any, other governmental entities have had with the proposed technology, including information about the effectiveness, and any known adverse information about the technology such as unanticipated costs, failures, civil rights, or civil liberties abuses. “Surveillance technology” means any software, electronic device, system utilizing an electronic device, or similar, used, designed, or primarily intended to collect, retain, process, or share audio, electronic, visual, location, thermal, biometric, olfactory or similar information specifically associated with, or capable of being associated with, any individual or group. “Surveillance technology” includes but is not limited to:
1. International mobile subscriber identity (IMSI) catchers and other cell site simulators;
2. Automatic license plate readers;
3. Electric toll readers;
4. Closed-circuit television cameras;
5. Gunshot detection hardware and services;
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 4 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
6. Video and audio monitoring and/or recording technology, such as surveillance cameras, wide-angle cameras, and wearable body cameras;
7. Mobile DNA capture technology;
8. Biometric surveillance technology, including facial, voice, iris, and gait-recognition software and databases;
9. Software designed to monitor social media services;
10. X-ray vans;
11. Software designed to forecast criminal activity or criminality;
12. Radio-frequency ID (RFID) scanners;
13. Tools, including software and hardware, used to gain unauthorized access to a computer, computer service, or computer network.
“Surveillance technology” does not include the following devices, hardware or software:
1. Office hardware, such as televisions, computers, credit card machines, copy machines, telephones, and printers, that are in widespread use by City departments and used for routine City business and transactions;
2. City databases and enterprise systems that contain information kept in the ordinary course of City business, including, but not limited to, human resources, permits, licenses, and business records;
3. City databases and enterprise systems that do not contain any data or other information collected, captured, recorded, retained, processed, intercepted, or analyzed by surveillance technology, including payroll, accounting, or other fiscal databases;
4. Information technology security systems, including firewalls and other cybersecurity systems;
5. Physical access control systems, employee identification management systems, and other physical control systems;
6. Infrastructure and mechanical control systems, including those that control or manage street lights, traffic lights, electrical, natural gas, or water or sewer functions;
7. Manually operated technological devices used primarily for internal City and department communications and are not designed to surreptitiously collect surveillance data, such as radios, personal communication devices, and email systems;
8. Manually operated, nonwearable, handheld cameras, audio recorders and video recorders that are not designed to be used surreptitiously and whose functionality is limited to manually capturing and manually downloading video and/or audio recordings;
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 5 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
9. Surveillance devices that cannot record or transmit audio or video or be remotely accessed, such as image stabilizing binoculars or night vision equipment;
10. Computers, software, hardware, or devices used in monitoring the work and work-related activities involving City employees, contractors and volunteers or used in conducting internal investigations involving City employees, contractors and volunteers;
11. Parking ticket devices;
12. Police department interview room and holding cell;
13. Police department computer-aided dispatch (CAD), records/case management, Live Scan, booking, Department of Motor Vehicles, California Law Enforcement Telecommunications Systems (CLETS), 9-1-1, and related dispatch and operation or emergency services systems;
14. Police department early warning systems.
“Surveillance use policy” means a publicly released, legally enforceable written policy governing the City department’s use of a specific surveillance technology that, at a minimum, includes all of the following:
1. Purpose. The specific purpose(s) that the surveillance technology item is intended to advance.
2. Authorized Use. The uses that are authorized, and the rules and processes required prior to such use and uses of the surveillance technology that will be expressly prohibited.
3. Data Collection. What types of surveillance data will be collected, captured, recorded, intercepted, or retained by the surveillance technology, what types of data may be inadvertently collected during the authorized uses of the surveillance technology, and what measures will be taken to minimize and delete such data.
4. Data Access. The category of individuals who can access or use the collected information, how and under what circumstances data collected with surveillance technology can be analyzed and reviewed, and the rules and processes required prior to access or use of the information.
5. Data Protection. The general safeguards that protect information from unauthorized access, including encryption and access control mechanisms.
6. Data Retention. The limited time period, if any, that information collected by the surveillance technology will be routinely retained, the reason such retention period is appropriate to further the purpose(s) enumerated in the surveillance use policy, the process by which the information is regularly deleted after that period lapses, and the specific conditions that must be met to retain information beyond that period.
7. Public Access. How collected information can be accessed or used by members of the public, including criminal defendants.
8. Third-Party Data Sharing. Which governmental agencies, departments, bureaus, divisions, or units may receive data collected by the surveillance technology operated by the City department, including any required Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 6 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023. justification or legal standard necessary to share that data, and how it will ensure that any entity sharing or receiving such data complies with the surveillance use policy.
9. Training. The training required for any individual authorized to use the surveillance technology or to access information collected by the surveillance technology.
10. Auditing and Oversight. The mechanisms to ensure that the surveillance use policy is followed, including internal personnel assigned to ensure compliance with the policy, internal record-keeping of the use of the technology or access the information collected by the technology, technical measures to monitor for misuse, any independent person or entity with oversight authority, and the legally enforceable sanctions for violations of the policy.
11. Complaints. What procedures will be put in place by which members of the public can register complaints or concerns, or submit questions about the deployment or use of a specific surveillance technology, and how the municipal entity will ensure each question and complaint is responded to in a timely manner. (Amended as part of January 2023 update; Ord. 1145, 2022)
8.80.030
City Council review mandatory for surveillance technology decisions.
A City department must obtain City Council approval by ordinance of a surveillance use policy following a public hearing conducted at a regular City Council meeting, prior to engaging in any of the following:
A. Seeking funds for a surveillance technology, including, but not limited to, applying for a grant or soliciting or accepting State or Federal funds or in-kind or other donations for the purpose of acquiring surveillance technology;
B. Acquiring or borrowing a new surveillance technology, including, but not limited to, acquiring such technology without the exchange of monies or consideration;
C. Using a new or existing surveillance technology for a purpose, in a manner or in a location not previously approved by the City Council in accordance with this chapter; or D. Entering into an agreement, including a written or oral agreement, with a non-City entity to acquire, share or otherwise use surveillance technology or the information it provides, including data-sharing agreements. (Ord. 1145, 2022)
8.80.040
Temporary acquisition during exigent circumstances.
A. A department may temporarily acquire or temporarily use surveillance technology in exigent circumstances without following the provisions of this chapter. Nothing in this section or chapter shall preclude law enforcement from utilizing these technologies or utilizing mutual aid from a law enforcement partner who may opt to utilize Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 7 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023. these technologies during exigent circumstances, which for the purposes of this chapter is defined as an emergency involving imminent danger of death or serious physical injury to any person that requires the immediate use of surveillance technology or the information it provides. Any surveillance technology temporarily acquired in exigent circumstances shall be returned within seven days following the conclusion of the exigent circumstances, unless the department acquires the surveillance technology in accordance with the requirements of this chapter.
B. If a department acquires or uses surveillance technology for exigent circumstances, the department shall do all of the following:
1. Use the surveillance technology solely to respond to the exigent circumstances;
2. Cease using the surveillance technology within seven days, or when the exigent circumstances end, whichever is sooner;
3. Keep and maintain only data related to the exigent circumstances, and dispose of any data that is not relevant to an ongoing investigation, unless its retention is (a) authorized by a court based on a finding of probable cause to believe the information constitutes evidence of a crime; or (b) otherwise required by law;
4. Not disclose to any third party any information acquired during exigent circumstances unless such disclosure is (a) authorized by a court based on a finding of probable cause to believe the information constitutes evidence of a crime; or (b) otherwise required by law; and
5. Submit a written report summarizing that acquisition and/or use of surveillance technology under this section to the City Council within 60 days following the inception of the exigent circumstances. (Ord. 1145, 2022)
8.80.050
Surveillance impact report and surveillance use policy submission.
A. The City department seeking approval under SMC 8.80.030 shall submit to the City Council a surveillance impact report and a proposed surveillance use policy via an informational staff report on a regular City Council meeting consent calendar at least 45 days prior to the public hearing required under SMC 8.80.030. The informational staff report shall be posted on the City website with the relevant City Council agenda at least 30 days prior to the public hearing.
B. The City Council may request revisions to the surveillance impact report or surveillance use policy submitted by the City department. (Ord. 1145, 2022)
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 8 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
8.80.060 Standard for approval and compliance for existing surveillance technology.
A. The City Council shall only approve a request to fund, acquire, or use a surveillance technology under SMC
8.80.030 if it determines the benefits of the proposed surveillance technology outweigh its costs, that the surveillance use policy will safeguard civil liberties and civil rights, that no alternative with lesser economic cost or impact on civil rights or liberties would be as effective, and that the uses and deployments of the surveillance technology will not be based upon discriminatory or viewpoint-based factors or have a disparate impact on any community or group.
B. A City department or departments possessing or using surveillance technology prior to the effective date of the ordinance codified in this chapter shall submit or jointly submit a proposed surveillance use policy no later than 120 days following the effective date of the ordinance codified in this chapter for review and approval by the City Council pursuant to SMC
8.80.030.
C. If a City department is unable to meet this 120-day timeline, the department may notify the Council in writing of the department’s request to extend this period and the reasons for that request. The City Council may grant City departments extensions of up to 90 days beyond the 120-day timeline to prepare and submit a proposed surveillance use policy.
D. If the City Council has not approved the continuing use of surveillance technology, including the surveillance impact report and surveillance use policy, within 180 days of their submission to the City Council, the City department shall cease its use of the surveillance technology and the sharing of surveillance data therefrom until such time as City Council approval is obtained in accordance with this chapter. (Ord. 1145, 2022)
8.80.065
Oversight following Council approval.
A. A City department that obtains approval under SMC 8.80.030 must submit to the City Council, and make available on its website, an annual surveillance report for each surveillance technology used by the City department within 12 months of Council approval, and annually thereafter on or before November 1st. The annual report shall be a single report detailing each type of technology that was utilized by the City. If the City department is unable to meet the deadline, the department head shall notify the City Council in writing of staff’s request to extend this period, and the reasons for that request. The City Council may grant reasonable extensions for good cause.
B. Based upon information in the annual surveillance report, the City Council will, at a public hearing during a regular City Council meeting, reassess whether that surveillance technology as used continues to meet the standard of approval set forth in SMC
8.80.060. If it does not, the City Council shall consider:
1. Directing that the use of the surveillance technology cease; Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 9 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
2. Requiring modifications to the surveillance use policy that are designed to address the Council’s concerns; and/or
3. Directing a report back from the department regarding steps taken to address the Council’s concerns. (Ord. 1145, 2022)
8.80.070 Prevention of secret surveillance technology contracts and agreements.
A. It shall be unlawful for the City or any City department to enter into any surveillance-related contract or other agreement that conflicts with the provisions of this chapter, and any conflicting provisions in such future contracts or agreements, including, but not limited to, nondisclosure agreements, shall be deemed void and legally unenforceable. The City and any City department shall have one year from the effective date of the ordinance codified in this chapter to bring any existing contracts or agreements into compliance with this chapter; after that date, any conflicting provisions in contracts or agreements signed prior to the enactment of the ordinance codified in this chapter shall be deemed void and legally unenforceable to the extent permitted by law. This section shall not apply to collective bargaining agreements and related memorandums of agreement or understanding that predate this chapter.
B. To the extent permitted by law, the City shall publicly disclose all of its surveillance-related contracts, including any and all related nondisclosure agreements, if any, regardless of any contract terms to the contrary. (Ord. 1145, 2022)
8.80.075
Prohibition of certain surveillance technologies.
A. It shall be unlawful for any City department to obtain, retain, access, or use:
1. Biometric surveillance technology; or
2. Predictive policing technology; or
3. Facial recognition technology; or
4. Any information obtained from biometric surveillance or predictive policing technologies.
B. A City department’s inadvertent or unintentional receipt, retention, access to, or use of any information obtained from subsections (A)(1) through (A)(4) of this section shall not be a violation of this subsection; provided, that:
1. The City department does not request or solicit its receipt, access to, or use of such information; and Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 10 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
2. The City department creates a log of such receipt, access to, or use and, within seven days of the event, submits that log to the City Council for inclusion in the City Council’s subsequent regular meeting agenda.
C. Any violation of this chapter constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this chapter. An action instituted under this subsection shall be brought against the City of Sebastopol.
D. No data collected or derived from any use of technology in violation of this chapter, and no evidence derived therefrom, may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority subject to the jurisdiction of the State of California. Data collected or derived in violation of this chapter shall be considered unlawfully obtained, and shall be deleted upon discovery.
E. A court shall award costs to the prevailing plaintiff in any action brought to enforce this chapter and any reasonable attorney’s fees as may be awarded pursuant to State law. (Ord. 1145, 2022)
8.80.080
Whistleblower protections and enforcement.
A. Neither the City nor anyone acting on behalf of the City may take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment, including but not limited to discriminating with respect to compensation, terms and conditions of employment, access to information, restrictions on due process rights, or civil or criminal liability, because:
1. The employee or applicant was perceived to, about to, or assisted in any lawful disclosure of information concerning the funding, acquisition, or use of a surveillance technology or surveillance data based upon a good faith belief that the disclosure evidenced a violation of this chapter; or
2. The employee or applicant was perceived to, about to, or assisted or participated in any proceeding or action to carry out the purposes of this chapter.
B. It shall be grounds for disciplinary action for a City employee or anyone else acting on behalf of the City to retaliate against another City employee or applicant who makes a good-faith complaint that there has been a failure to comply with any surveillance use policy or administrative instruction promulgated under this chapter.
C. Any employee or applicant who is injured by a violation of this section may institute a proceeding for monetary damages and injunctive relief against the City in any court of competent jurisdiction.
D. Enforcement.
1. Any violation of this chapter constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this chapter. An action instituted under this subsection shall be brought against the City of Sebastopol, and if necessary to effectuate compliance with this chapter or a surveillance use policy (including to expunge Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 11 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023. information unlawfully collected, retained, or shared thereunder), any third party, except a City employee, with possession, custody, or control of data subject to this chapter.
2. Prior to the initiation of any legal proceeding under subsection (D)(1) of this section, the City of Sebastopol shall be given written notice of the violation(s) and an opportunity to correct such alleged violation(s) within 30 days of receipt of the notice.
3. If the alleged violation is substantiated and subsequently cured, a notice shall be posted in a conspicuous space on the City’s website that generally describes the corrective measure(s) taken to address the violation(s).
E. A court shall award costs to the prevailing plaintiff in any action brought to enforce this chapter and any reasonable attorney’s fees as may be awarded pursuant to State law.
F. Nothing in this chapter is intended to, or shall be interpreted to, conflict with the Constitution of the United States, the Constitution of the State of California, or with any State or Federal law. (Ord. 1145, 2022)
8.80.090 Severability.
A. The provisions of this chapter are declared to be separate and severable. The invalidity of any clause, phrase, sentence, paragraph, subdivision, section or portion of this chapter, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances.
B. The City Council hereby declares that it would have passed this chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional.
C. The City Clerk shall certify to the adoption of the ordinance codified in this chapter and shall cause the same or a summary thereof to be published as required by law.
D. The ordinance codified in this chapter shall take effect and be in full force and effect 30 days from and after the date of its final passage and adoption. (Ord. 1145, 2022) Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 12 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.
Disclaimer: The City Clerk’s Office has the official version of the Sebastopol Municipal Code. Users should contact the City Clerk’s Office for ordinances passed subsequent to the ordinance cited above.
City Website: www.ci.sebastopol.ca.us
Hosted by General Code.
Ch. 8.80 Surveillance Technology and Community Safety Ordinance | Sebastopol Municipal Code Page 13 of 13 The Sebastopol Municipal Code is current through Ordinance 1149, passed October 3, 2023.