On Tuesday, November 30, 2021, Secure Justice sued the City of Berkeley for ignoring their own Acquisition and Use of Surveillance Technology Ordinance (B.M.C. 2.99 et seq.).

On March 13, 2018, the City of Berkeley enacted the Ordinance. The Ordinance requires that a) prior to acquiring surveillance technology, b) prior to using surveillance technology without City Council approval, or c) prior to entering into an agreement with a non-City entity to acquire or use surveillance technology, that staff must first present an acquisition report and proposed use policy for vetting – allowing for meaningful public input and notice and city council deliberation as to appropriate and inappropriate uses, and the establishment of guardrails to protect our civil liberties. None of these steps occurred with regard to the acquisition and use of surveillance technology for the San Pablo Park Cameras and Transit Station Camera installations.

Is this merely a form over substance lawsuit? No. Berkeley has significant problems with racial profiling, infringement upon First Amendment protected activity, and use of surveillance technology specifically, and the City of Berkeley is lawfully required by a unanimously enacted Ordinance to address such concerns when using surveillance technology.

In 2017-2018, as then-President Donald Trump escalated his white supremacist agenda, the City of Berkeley became a focal point for far-right white supremacist groups like the Proud Boys to come to Berkeley and protest. Counter-protestors also showed up, and as the two sides clashed, the Berkeley Police Department specifically targeted anti-fascist protestors by arresting and “doxxing” them – a practice of publicly revealing personal information such as names, photos, address, and so on that causes the subject to become a target of online and in-person hate speech and hate crimes. The Appeal reported that of all the photos published by Berkeley Police, none were white supremacists, only anti-fascist counter protestors, and the photos were published prior to any charges being filed. The Appeal could not find examples of other police departments doing the same behavior. This chilling effect caused protestors to have to spend time in jail awaiting release, forcing them to expend thousands of dollars to defend themselves, only to have all charges dismissed. The doxxed anti-fascist counter-protestors were either never charged, or they had all charges dismissed in Court – demonstrating that they were not a true public safety threat and rather were being targeted for their ideology, a clear First Amendment violation. Several of these individuals and their attorneys were threatened by white supremacists with physical violence and were subject to online harassment.

Berkeley Police have also been guilty of racial profiling for years. Whether compared to the racial demographics of the city, rates of contraband found, individuals placed in handcuffs or actually arrested, a clear bias against Black individuals is apparent across all categories. Historically, surveillance has always been used against certain communities more than others, including Black groups like the Black Panthers, and Black leaders like Dr. Martin Luther King, Jr. and Malcolm X. While Oakland is set to enter its shameful record 19th year of federal oversight due to racial profiling, Berkeley’s stop-data racial demographics are even worse than Oakland’s.

Groups like Oakland’s Lighthouse Mosque (on the border of Oakland/Berkeley) have also used San Pablo Park during Covid protocols for its Friday “Jummah” congregation gatherings. Unbeknown to the mosque organizers, prayer leaders were standing (and likely being recorded) almost directly underneath one of the very sophisticated H4 cameras that has analytics and audio recording capability.

The Berkeley City Council was aware of the civil liberties concerns at the time of enactment of the Ordinance, and expressly covered such technologies that are known to have a disparate impact like facial recognition (subsequently completely banned by amendment in 2019), which has a widely known accuracy problem with darker skin tones and different genders – as the algorithms are trained on mostly white male faces, researchers have discovered that Black women were misidentified at a 34% higher error rate than white men.

The foundation of the Ordinance is that prior to releasing powerful and invasive surveillance technology into public spaces, possible appropriate uses be distinguished from possible inappropriate uses. After a thorough public review and meaningful input into policy guardrails sufficient to defend civil liberties, ideally the benefits of the technology would be received without the negative impacts. By completely avoiding the vetting process here with the San Pablo Park Cameras and Transit Station Cameras, the public has been robbed of any input into the policy rule making process, and the City Council was not even given the opportunity to make an informed decision as no acquisition report (impact analysis) had been provided to them prior to use of the technology. No guardrails are in place that would have likely become established as a result of public input into the policy making. There are no restrictions on use or third-party data sharing.

On October 16, 2018, the Berkeley City Manager attempted to unlawfully declare “exigent circumstances” were present and therefore allowed the acquisition and use of surveillance technology without City Council approval for the San Pablo Park Cameras. Although true that the ordinance would allow such action if such circumstances were present, there was no exigency.

The Ordinance defines exigent circumstances as “the City Manager’s good faith belief that an emergency involving imminent danger of death or serious physical injury to any person, or imminent danger of significant property damage, requires use of the Surveillance Technology or the information it provides.” However, the fact pattern presented was solely based on two shootings that had occurred months in the past: August 18 and September 21, 2018, and there were no allegations of retaliatory action or any specific present or future threat. Clearly there was no “imminent” threat, as the City Manager took the time to seek out a vendor, research competitors, schedule an item for City Council approval (completely unnecessary if exigent circumstances were present), and the technology itself was not acquired or installed until the spring of 2019. The City Manager was attempting to avoid the vetting framework and public scrutiny required by the Ordinance. Although the City Council was likely genuinely mislead that an exemption for regular (old school) cameras applied because the City Manager’s report concealed the truth about what was acquired, it is clear that these were no ordinanary cameras.

As revealed by many public record documents in the possession of Secure Justice, including the contract documents and staff correspondence, both the San Pablo Park Cameras and Transfer Station Cameras, made by vendor Avigilon, are pan-tilt-zoom (movable), capture audio, remotely viewable, and both the cameras and server come preloaded with analytics capable of capturing biometric information such as face detection, gait analysis, and object detection. In addition, the San Pablo Park Cameras were also installed on privately owned utility poles across the street from the park. Thus, these two surveillance technology installations are not exempt from the Ordinance.

Public record requests submitted to Berkeley have revealed documents confirming that Avigilon’s Control Center (ACC) and H4 cameras come pre-loaded with various analytics, such as “Appearance Search”, which according to Avigilon “is a sophisticated AI search engine for video data that incorporates the characteristics of a person’s face. It sorts through hours of footage with ease to quickly locate…people…even if their clothing change over time…Avigilon Appearance Search technology permits users to initiate a search for a person by selecting certain specific physical descriptions” including hair color, clothing, and gender. The marketing materials are rife with references to analytics that can be used to identify “any individual or group” which meets the definition of surveillance technology in the Ordinance. Emails between Avigilon representatives and Berkeley administrative staff frequently discuss the use of artificial intelligence, analytics, and algorithmic data models and data sets – features that allow for the identification of individuals or groups because of the data collected and analytics that could be applied to such data.

In addition, contract documents and emails further discuss the remote viewing capabilities (login credentials were also provided to third parties like the Northern California Regional Intelligence Center, a federal fusion center located in San Francisco), audio recording and licenses were obtained to record audio (at least 24), and as a potential ban on facial recognition technology was being proposed by Council Member Harrison, administrative staff reached out to her office via email requesting an exemption for the San Pablo Park Cameras, further confirmation that an agreement was entered into with a non-city entity to acquire and use analytics capable of identifying an “individual or group.” Avigilon representatives emailed staff to coordinate a response to the facial recognition ban, mentioning that they had just had similar conversations in San Francisco, the first city in the country to ban such technology in May 2019.

The residents of Berkeley may very well want these cameras installed and used. However, we highly doubt that most folks are in favor of the complete elimination of oversight or accountability measures intended to protect the very civil liberties of Berkeley residents and visitors to its public spaces.

Read the full lawsuit here.

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