On March 13, 2018, the city of Berkeley became the first city in the nation to enact a surveillance equipment ordinance based on an ACLU model now in place in seven local governments in the greater Bay Area, plus a handful of other localities outside of California.

Unfortunately, it’s been all downhill since then as the city manager and her staff have repeatedly violated the ordinance.

The primary intent of the ordinance is to establish a public vetting process for surveillance technology, whereby the Council and regular citizens can discuss the potential impact of using privacy-invading equipment, and the appropriateness of using such technology in the community. The ordinance requires a review of an impact statement and proposed use policy prior to any acquisition or use so that we understand the civil liberties risks and financial costs before releasing such equipment into the wild.

The newest violation involves security cameras installed at San Pablo Park. On October 16, the city manager Dee Williams-Ridley first attempted an absurd end-run around the ordinance. She told the council that cameras were needed at the park immediately because of an August shooting. She claimed that Berkeley should not have to go through the usual vetting process, which would include hearings at the Police Review Commission and the City Council, since “exigent circumstances” existed and the ordinance allows exceptions when there is an “emergency involving imminent danger of death or serious physical injury to any person, or imminent danger of significant property.” But the shootings she referred to, while worrisome, happened two months earlier. There was no imminent threat, thus no basis for invoking the “exigent circumstance” exemption.

In addition, Williams-Ridley suggested that the surveillance equipment to be installed would be regular cameras that store data in the camera and does not transmit it. Those kinds of cameras are exempt from the hearings required by the ordinance.

At the October meeting, I warned the Mayor and Council that this rush to put in cameras because of “exigent circumstances” would lead to legal action because they were not authorized to make such a declaration. Only the police or city manager can do that. The Council ended up removing the exigent circumstances language from the staff’s proposal and authorized the city manager to pursue a vendor.

As it turns out, the city has installed cameras that do way more than just record movements in the park, according to information I found in city documents.  In January, the city manager contracted for a surveillance camera system with vendor Avigilon — once again showing there were no exigent circumstances present. Avigilon is well-known for providing artificial intelligence like face analytics, gait analysis, license plate readers, and even allowing a user to search for people by specific physical descriptions, including gender.

The contract Berkeley signed with Avigilon shows that the cameras installed in San Pablo Park can perform thermal tracking, their control center has various analytics installed in it, and the cameras came with their own onboard analytics — all features that make the cameras subject to the ordinance and thus to public hearings. These were no ordinary stand-alone cameras.

Internal city communications that I obtained confirm that the San Pablo Park cameras use behavioral artificial intelligence like gait analysis.

“Cameras installed in San Pablo Park use ‘Self learning video analytics’ (which is defined as capturing objects in motion) which provide high-quality video images which theoretically could be submitted or utilized in conjunction with facial recognition software or services,” Savita Chaudhary, the director of the department of information technology, wrote in a July 9 email to City Councilwoman Kate Harrison, who plans to introduce a measure to ban the use of facial recognition technology. “However, no facial recognition software or services are utilized by this camera system or by any other City department.”

Even though the city says it is not using these enhanced surveillance techniques, the fact that they exist means their acquisition should have been subject to a public hearing.

City staff wants Harrison to exempt the San Pablo Park cameras from her proposed legislation. One July 1 email by Tom Ray, the information security manager, to Harrison (which was forwarded by City Attorney Farimah Brown) he suggests that Harrison “Exempt the CCTV Face Recognition Technology used by the San Pablo Park CCTV.”

These emails of  July 1 and July 9 included Berkeley’s highest-ranking administrators, including the city manager, city attorney, chief of police, information security manager, and director of information technology. Not one administrator corrected or challenged the accuracy of these representations about enhanced cameras in San Pablo Park. This raises a question: if staff didn’t know about the analytics or intend to use them, why would they lobby for such a specific exemption in the first place?

It was only after a local TV station KTVU inquired about the enhanced cameras that the city came up with a new response: the entire exemption request document is wrong, our highest-ranking officials don’t know what they are talking about, and even though we repeatedly sent it to a council member who was pushing back and causing us to further inquire into the matter, it was all a big mistake.

Except it wasn’t. In addition to the previous writings confirming knowledge of and intent to use analytics, the contract itself clearly and specifically states within the scope of services that video analytics have been purchased, in addition to the purchase of multiple cameras that each come with their own onboard analytics.

Just a couple of pages later in the same contract packet, the city manager signed a request for waiver of competitive solicitation on January 28, using in support the demonstrably false statement that the City Council had approved an exigent circumstances declaration back on October 16. The city manager was at that meeting, as was I. It takes less than two minutes to review the official minutes from that meeting, in case she “forgot.”

Staff is attempting to further backpedal by claiming they only intended to buy five regular cameras, and that they aren’t retaining any data for more than a day or two. Then how can they justify this purchase to the taxpayers of Berkeley? On Amazon, five HD cameras cost about $1,000 in total. The city manager spent $35,000 and purchased eight terabytes of storage, sufficient to hold several months’ worth of video.

By dodging the public discussion and vetting required by the ordinance, and issuing a competitive bid waiver, the city manager could hide this contract from public and Council scrutiny and keep the use of analytics secret. To add further insult to injury, the city is breaking state law by not complying with my public record requests to elicit further information about who knew what, and when.

The Mayor worked very hard to get a unanimous vote from his colleagues for the ordinance, and it’s discouraging to see the city manager go behind his back and avoid Council oversight. With this type of track record, no one should have confidence that Berkeley can use a radical, dangerously intrusive, and error-prone technology like face surveillance in a responsible manner. The City Council needs to support Harrison’s proposed ban on such technology, just like the San Francisco Board of Supervisors and Oakland City Council have done in their respective cities.

I have sent the city of Berkeley a notice that it has “90 days to cure” the mistaken way in which the cameras in San Pablo Park were acquired. This would involve public hearings and public review by the Police Review Commission and the City Council, as set out in the ordinance. If the city does not fix the problem, Berkeley will be subject to legal challenges. In addition, I call on Berkeley to comply with my public records act request to elicit more information so that Berkeley residents can better understand exactly what happened.

Trust is earned, and Berkeley has a long way to go in that regard.

Brian Hofer is the executive director of Secure Justice, the co-author of Berkeley’s surveillance equipment ordinance, and co-author of five other surveillance ordinances. He plays softball twice a week at San Pablo Park.

Brian Hofer is the executive director of Secure Justice, the co-author of Berkeley’s surveillance equipment ordinance, and co-author of five other surveillance ordinances. He plays softball twice a week at San Pablo Park.