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Judge mulls legality of San Francisco police’s use of surveillance cameras to monitor protesters

Civil liberties and privacy groups believe the SFPD violated a city ordinance banning the use of facial recognition technology when it tapped into a network of private surveillance cameras to spy on Black Lives Matter protesters in 2020.

SAN FRANCISCO (CN) — The San Francisco Police Department is not exempt from a city ordinance banning the use of facial recognition technology, privacy advocates argued at a hearing to determine whether its use of hundreds of private cameras to spy on protesters was illegal.

The police department received real-time access to high-definition cameras operated by the Union Square Business Improvement District, a private business association, during racial justice protests in late May and early June. Civil liberties groups sued the city on behalf of three activists in 2020, claiming the police department violated the city’s landmark anti-surveillance technology law that requires the police to seek approval from the Board of Supervisors before acquiring or using surveillance technology.

The Electronic Frontier Foundation, one of the groups representing the activists, says that in addition to investigating incidents of assault and looting during protests, SFPD also used the cameras to conduct blanket surveillance of demonstrators.

The SPFD says it didn’t need the board’s approval to access the cameras since it falls under the law's carve out for city agencies “possessing or using” surveillance technology on an ongoing basis before the ordinance went into effect on July 15, 2019.

The police had used the camera network to monitor a Pride Parade in June, just one month prior to the law’s effective date.

At a Tuesday hearing before San Francisco Superior Court Judge Richard Ulmer, EFF attorney Saira Hussain said the police department’s one-time use of the camera network doesn’t qualify as ongoing prior use. She said the board wanted to avoid disrupting departments that had been using surveillance systems like automated license plate readers and bus cameras for years.

“The board was concerned by disruption to department operations which happens when a department is deprived of a technology it has come to rely on. And that's simply not the case here,” she said. “There was a onetime use of the camera network for a 24-hour period and that clearly shows the department was not using the technology prior to the enactment of the ordinance.”

She said the infrequent use underscores the need for the police department to comply with the law and submit to the board a plan for how it intends to use surveillance technology, adding, “If officers aren't familiar with the technology or how it could be used, it can easily be used in inappropriate or harmful ways.”

Representing the police department, Deputy City Attorney Wayne Snodgrass countered that the board could have imposed more clearly-defined restrictions on the use of surveillance technology, but left it open to interpretation.

“The plaintiffs are making an argument based on language they wished the board of supervisor had enacted but that they didn't enact,” he said.

If Ulmer were to accept the city’s interpretation, Hussain rejoined, “then the SFPD could also live-monitor the cameras of every business district network every day in perpetuity because it did so once, before including those camera networks that didn’t exist at the time of the ordinance’s enactment. Those are absurd results and those cannot hold.”

Ulmer took arguments under submission and will issue a decision on whether the police department violated the law. He could also set the case for trial.

As the dispute over the use of live surveillance unfolds in court, San Francisco Mayor London Breed has proposed giving the police more access to cameras during “critical events” like organized theft, looting and rioting, and mass assaults with guns or vehicles, and to surveil “safety crisis areas” like open-air drug markets or places that have seen an uptick in violent crimes over a two-week period.

“We are talking about violent crimes, including property crimes that are being perpetrated more frequently with the use of guns, getaway vehicles, and other weapons that can seriously injure or even kill innocent bystanders,” Breed said in a statement announcing her intent to place the measure on the June ballot. “These situations also include entrenched open air drug dealing, again with the use of firearms and other weapons, in neighborhoods where families and seniors are afraid to leave their homes. We can give our law enforcement the tools they need, while also maintaining strong oversight and safeguards to ensure these tools are used appropriately to address dangerous criminal activity.”

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