A revised draft of the proposed Surveillance Technology Ordinance

Nancy E. Glowa ^dS^ Assistant City Solicitors City Solicitor Paul S. Kawai Samuel A. Aylesworth Arthur J. Goldberg •v^sass^ Keplin K. U. Allwaters Deputy City Solicitor Sean M. McKendry

Megan B, Bayer

ValiBuland Brian A. Schwartz

First Assistant City Solicitor

Public Records Access Officer

Jennifer Simpson

CITY OF CAMBRIDGE

Office of the City Solicitor

795 Massachusetts Avenue

Cambridge, Massachusetts 02139

Louis A. DePasquale

City Manager

City Hall

795 Massachusetts Avenue

Cambridge, MA 02139

Re: Surveillance Ordinance - Explanatory Comments and Responses to Issues

Raised by theACLU at the 4/17/18 Public Safety Committee Meeting

Dear Mr. DePasquale: I am pleased to submit to you revisions to the proposed draft Surveillance Technology Ordinance (the "Ordinance"), both redlined and clean drafts of which are attached hereto for your review and submission to the City Council for its consideration.

By way of background, and as you are aware, City staff including you, Deputy City Manager Lisa Peterson, Police Commissioner Branville Bard, and members of this office have been meeting and conferring with Kade Crockford of the American Civil Liberties Union of Massachusetts (the "ACLU") on several occasions over the last year and a half, including numerous teleconferences with Ms. Crockford in order to discuss the concerns the ACLU and Digital Fourth have expressed with regard to the Ordinance.

The ACLU had submitted questions concerning the Ordinance during the October 18, 2017 Public Safety Committee hearing to which the City responded in meetings and telephone conferences thereafter. During the April 17, 2018 Public Safety Committee hearing the Committee requested that a revised version of the Ordinance be prepared for a City Council meeting to be held in late May or early June.

At the April 17, 2018 Committee Hearing, the ACLU also submitted a number of specific questions related to the Ordinance; City staff met with the ACLU on June 14, 2018 to discuss those questions as well as other questions that had previously been submitted to City staff, and City staff then had a teleconference with Ms. Crockford on June 18, 2018 to discuss the proposed revisions City staff made to the Ordinance in order to address the ACLU s questions.

Set forth in detail below are questions and issues raised by the ACLU together with our responses to the same and further explanation, if any, regarding the City staffs recommendations as to those issues. Telephone [phone removed] Facsimile [phone removed] TTY/TTD (61 7) 349-4242 A. DEFINITIONS. 1. Section U.22.Q20^B)—DeftnittQRS—Exieent Circumstances: Whether to

Include Significant Property Damage or Loss in the Definition ofExiffent

Circumstances fn. 2 of the redlined Ordmance).

The ACLU suggested that "significant property damage or loss" should be removed from the Ordinance's definition ofExigent Circumstances in Section 12.22,020(R). • City staff do not recommend that "significant property damage or loss be removed from the definition ofExigent Circumstances in Section 12,22.020(B) of the Ordinance, By way of example, in the event that the Police Department receives a tip that a large property may be destroyed by one or more individuals, and such property destruction poses public health or similar risk to the general public, the Police Department needs the ability, under Section 12.22.040 of the Ordinance, to acquire and use on a temporary basis Surveillance Technology not previously approved by the Council, iu order to mitigate or remove the risk tfaat such property destruction poses.

Indeed, other Surveillance Ordmances recently adopted in Berkeley and Davis, California, contain "property damage" in their definition ofexigent circumstances. Moreover, there may be circumstances where the Police Department receives a tip that someone intends to destroy property used for emergency response purposes, ie., someone could target all of the City's fire trucks or ambulances, and in so doing, hamper the City's abUity to respond to fire and health emergencies, leading to loss of life.

Given those risks, City staff strongly recommend that this language not be altered. However, in order to address the ACLU's concerns. City staff have added the following language to the definition ofExigent Circumstances m Section 12.22.020(B): "The use of Surveillance Teclmology in Exigent Clrcuxnstances shall CLOt mfringe upon an mdividuEiTs right to peacefully protest" 2. Section 12»22.020(TV3Uc)""-Defmitions —Exemption for Cameras Installed In or On a Police Vehicle; Excludinfi Cameras with License Plate Readme

Teehnolojsyfrom the_E_x_emDtion for Cameras Installed In or On a Police

Vehicle (n. 5). The next suggestion oftfae ACLU's is to add "except license plate readers" to 12.22.020(F)(3)(c) which exempts cameras installed in or on a police vehicle fi-om. the requirements of the Ordinance, in other words, makmg "license plate readers" subject to the provisions of the Ordinance. • That change is agreeable to City staff, and City staff have revised 12,22.020(F)(3)(c) to include: "cameras installed in or on a police vehicle, except cameras with license plate reading technology", so that cameras with Page 2 of 9 such technology will not be exempt from the requirements of the Ordinance. 3. Section _12*22.020<H)—Definitions—TeehBoloev-Speeific Surveillance Use Policy: Adding a Definition ofTeehnoEoEy-Spec|f|c_iSurveilIance Use Policy (p. m. Because the ACLU suggests fhat a City department should be required to submit a specific Surveillance Use Policy as to a specific technology when the City department is seeking Council approval of the specific SurveiUance Technology, City staff have added a new definition for a "Technology-Speciflc Surveillance Use Policy" in Subsection (H) of 12.22.020. Be ACQUISITION AND USE OF SURVEILLANCE TECHNOLOGY. X. Sections y_^2,030^

Temsorstry Acquisition and Use of Surveillance TedmoloEV in Exieent

Circumstances: Addiae the Requirement that a Technoioev-Specific