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We Are Being Watched

Our fear of another 9/11 resulted in the erosion of our privacy rights. And now our fear of crime is pushing the surveillance state to a whole new level.



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Both Oakland's surveillance center and NCRIC's license plate reader database will provide law enforcement with access to locational data for vehicles, as well as live feeds from cameras. If Oakland's center negotiates agreements with the MTC, Caltrans, BART, and AC Transit, it will also have the capability to access the license plate readers and traffic cameras mounted on the Bay Bridge and along local freeways, as well as security cameras in BART stations and train cars.

The MTC also retains fare data for users of its Clipper card, which is equipped with a radio frequency identification chip. More than one million transit riders in the Bay Area use Clipper, whose user data is digitally stored and available for seven years even after a rider closes his or her account. Clipper data is available to law enforcement pursuant to a warrant or subpoena. While some restrictions were established in 2010 by the California legislature on sharing individual locational data retained by FasTrak fare devices, no such limits exist for Clipper cards.

From a legal standpoint, there is also a great deal of uncertainty about the limits on electronic surveillance by the government. In January 2012, the US Supreme Court unanimously ruled in U.S. v. Antoine Jones that law enforcement couldn't install a GPS tracker on a vehicle without a warrant. In her concurring opinion, Justice Sonia Sotomayor wrote that the use of such technology by the government might chill "associational and expressive freedoms."

Sotomayor also cautioned against surveillance without checks and balances: "I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent 'a too permeating police surveillance.'"

However, surveillance from security cameras and license plate readers may fall under a different legal category from GPS devices because the technology is used to monitor people and vehicles in public spaces. And in 1967, the high court ruled in U.S. v. Katz that the public does not have a reasonable expectation of privacy when in public places.

Locally, there are signs of pushback against the expansion of post-9/11 security policies. Last year, the Berkeley City Council approved a package of reforms designed to block some of the intrusions by the federal government into local law enforcement. Berkeley police, for example, now will not keep immigrants in custody simply because they're wanted by Immigration and Customs Enforcement. The reforms also restrict police from gathering intelligence on people engaged in non-violent, non-felonious civil disobedience, and they bar BPD from submitting Suspicious Activity Reports to the Northern California Regional Intelligence Center unless there is reasonable suspicion that someone has committed or intended to commit a crime.

Suspicious Activity Reporting is a national initiative set up after 9/11 to encourage the reporting to law enforcement of individuals engaged in suspect behavior. SARs have long been criticized by civil libertarians, who maintain that law enforcement has lowered the bar for such reports below that of criminal activity, resulting in the targeting people of color and those involved in First Amendment activity.

"We know with federal programs like SAR that it encourages racial and religious profiling because the guidelines are so vague that they allow and encourage law enforcement to report anyone they don't like as suspicious," said Lye of the ACLU. A leaked 2011 SAR report from the Seattle police illustrated Lye's point: a black man seen photographing municipal buildings in downtown Seattle elicited enough concern from SPD to classify his actions as "highly suspicious" and document the route he took to drive into downtown Seattle — even though he had done nothing wrong.

A March report by the Government Accountability Office also faulted the SAR program for not developing any benchmarks to demonstrate tangible results of this reporting. In other words, Suspicious Activity Reporting is a blanket intelligence-gathering system that includes no way of determining whether the information it yields has any use.

Nadia Kayyali, a San Francisco defense attorney who worked with the Board of Rights Defense Committee and several organizations under the umbrella group Coalition for a Safe Berkeley to advance the Berkeley reforms, pointed to their successful passage as evidence that local governments can determine their own involvement in anti-terrorism programs that threaten civil liberties. "Suspicious Activity Reporting seems so esoteric and far away that it doesn't seem like change can happen here," Kayyali said. "But now, Berkeley is the only locality in the entire country with limitations on SARs."

Berkeley's long history of political activism and the city's relatively low crime rate also played major roles in the passage of the reforms. Kayyali believes that Oakland's political environment is "toxic" due to a combination of fear over crime and self-defeating, oppositional organizing by radicals who "treat anyone on the council like they're garbage" rather than building political alliances. She pointed to the success of the activist group Alameda County Against Drones in working with proponents of realignment and immigrants rights on the Alameda County level, which resulted in the strong turnout by their allies at a February 14 hearing of the Alameda County Board of Supervisors concerning Sheriff Ahern's proposed drone purchase. Ahern backed off his plan after considerable opposition from community groups, which were reflected in Supervisor Richard Valle's concluding comments after the meeting.

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