December 17, 2003
Councilmember Kathy Patterson
Committee on the Judiciary
City Council of the District of Columbia
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Chairperson Patterson,
The Electronic Privacy Information Center (EPIC) writes to the City Council of the District of Columbia in support of the hearing currently underway, "Current Policies and Practices of the Metropolitan Police Department Related to Demonstrations within the District." We applaud your commitment to the protection of free speech in political demonstration and the efforts of the Council to establish protections for political expression in the Nation's Capital. We urge you to consider the surveillance of protesters and the maintenance of electronic databases on protestors as you examine of the Metropolitan Police Department's policy and practice in handling protests.
Last year you proposed the "District of Columbia Anti-Surveillance Act of 2002" to bring the use of new surveillance technology within the rule of law. We supported that effort and now urge you to reconsider the bill, as it is critically important to protect the rights of residents, visitors and most significantly, people who engage in peaceful public protest in our Nation's capital. The technological surveillance methods employed by the police are every bit as chilling as tactical operations on the ground. We encourage you to reexamine the proposals of June 2002 and implement a bill
As we pointed out last year in testimony before the Council, the risk that surveillance poses to constitutionally protected activity is more than theoretical. EPIC submitted a series of Freedom of Information Act requests to several agencies in the District shortly after learning of the plan to install video cameras in public places. The documents that we obtained last year contain individual logs of the aerial surveillance conducted by the DC Municipal Police. We would like to call your attention to the activities of surveillance by the MPD.
An example from 2001 makes clear that video surveillance is specifically undertaken of individuals engaged in political protest. This clearly implicates constitutionally protected freedoms.
- On January 18, 2001 aerial surveillance was conducted by the MPD of "demonstration activity." The Park Police "provided downlink photos of coffins/demonstrators."
Many of the records we obtained concerned the DC protests in April 2002.
- On April 20, 2002, the Metropolitan Police Department conducted a "downlink video of demonstration activity" at Connecticut and Florida.
- On April 22, 2002, the United States Park Police conducted surveillance of demonstrators.
- On April 22, 2002 the Metropolitan Police Department provided a "downlink of MPD Command Center w/demonstrators."
Recent news stories indicate that similar surveillance activities are taking place across the country. According to a New York Times article from November 23, 2003, the FBI has recently sent a confidential memorandum to local law enforcement agencies across the country. The Bureau's memorandum reveals the FBI is collecting extensive information on the tactics, training and organization of antiwar demonstrators. Sent in advance of antiwar demonstrations in Washington, DC and San Francisco, the memo advised local law-enforcement officials to report any suspicious activity at protests to its counterterrorism squads. They are collecting information on both legal and illegal activities. These investigative efforts involving collection of data on legal activity can have a chilling effect on the political speech of all who take part.
The Milwaukee Journal Sentinel reported on October 3, 2003, that Milwaukee police officers are instructed to videotape protesters outside of President Bush's fundraisers. According to police records, officers fill out a "daily protest report" for every demonstration. The reports, filed by the department's Intelligence Division, list the names of anyone arrested, the types of signs observed and the media outlets in attendance. Some list the types of vehicles driven by protesters and their license plate numbers. On each form, officers must check a box indicating whether the event was videotaped. If it was not, they must explain why.
In Minneapolis last June, Target Corp. made a gift to the Minneapolis Police Department consisting of at least 30 security surveillance cameras. The Star Tribune reports they were installed to keep watch over a 10-block shopping area including Target’s corporate headquarters and target Center. It is important to consider a number of issues that arise when the police and private sector enter a surveillance partnership. There is a lack of police video surveillance guidelines, as well as a lack of debate at the community level to ascertain the usefulness of the video surveillance scheme and its impact on freedom of expression and privacy. A similar partnership has taken place here in Washington, DC when the MPD installed video surveillance equipment on the rooftops of a Georgetown store in co-operation with the Georgetown Business District. Just like in Minneapolis, the MPD installed their video surveillance equipment without informing the DC Council until after. They justified the use of cameras in a shopping area as being useful to prevent terrorist attacks and to monitor demonstrators, without providing neighborhood citizens’ groups with an opportunity to contest those claims beforehand.
The California Attorney General's Office recently distributed Guidelines advising local police to observe stricter state limits than those of federal agencies when it comes to spying on the public. The guidelines, entitled "Criminal Intelligence Systems: A California Perspective," were prompted by law enforcement responses to antiwar protests. According to the Boston Globe, in Fresno, a sheriff's deputy serving on an antiterrorist detail posed as a peace activist. In San Francisco, police apologized for videotaping antiwar protesters without first getting the required clearance. In Oakland, police were tipped in April by the California Antiterrorism Information Center of antiwar activities, which spawned some of the most violent clashes between protesters and police in the early weeks of the Iraq war. The new Guidelines emphasize the importance of boundaries and oversight in the pursuit of both security and protection of Constitutional rights. They state: "Put bluntly, it is a mistake of constitutional dimension to gather information for a criminal intelligence file where there is no reasonable suspicion" of criminal activity.
Although police surveillance of protestor activity does not constitute a direct ban on the protected activity, surveillance deters protestors nonetheless. Police surveillance of public protests chills the exercise of the First Amendment freedoms of speech, assembly, and association. Images obtained by police during protests may be used in retaliation against individuals for their political views. Even imagined negative consequences from surveillance may deter protestors from expressing their political views, a right that is the basis of any democratic society. At a time when dissent with the government is often perceived as lack of patriotism, the presence of surveillance technologies during protests is likely to inhibit protestors from exercising their constitutional rights.
In addition, there will be serious Constitutional questions that arise when images obtained by the police are used in trial against a criminal defendant. Particularly with a technology where it is so easy to manipulate images and so difficult to ensure the integrity of a digital file, very clear rules for retention, chain of custody, and use must be established.
The District of Columbia residents face the risk of hi-tech police surveillance in this city that has long cherished freedom. Government officials across the country face similar challenges in monitoring police data collection of innocent citizens and restricting use and installation of government surveillance technologies. It is clear that legislation is needed here in the District of Columbia. As we pointed out last year in testimony before the Council, adoption of a measure that establishes independent oversight of police activity and calls for specific police reporting and judicial review requirements will significantly enhance the protection of the freedoms of residents and visitors of the District of Columbia.
As you investigate police conduct and procedures used at demonstrations, we urge you to also examine the implications of electronic and video surveillance in the District of Columbia. Until strict safeguards are implemented for surveillance and data collection at demonstrations, the freedom of expression of protestors, tourists, and D.C. residents will remain at risk.
Executive Director, EPIC
Policy Analyst, EPIC
Barton, Gina. "Police Ready to Roll Again for Bush Protests." Milwaukee Journal Sentinel 3 Oct 2003, 1A.
Brandt, Steve. "Going Downtown? You'll Be Watched; Target Helps Minneapolis Buy Cameras that Scan Streets Quicker than Police Can." Star Tribune 10 June 2003, 1B.
Caina Calvan, Bobby. "New Surveillance Guidelines Fuel Debate in California: Concerns Raised on Civil Liberties." The Boston Globe 30 Nov 2003, A21.
EPIC Video Surveillance Information Page, Electronic Privacy Information Center. 17 Dec 2003 <http://www.epic.org/privacy/surveillance/>
EPIC Protester Privacy Page, Electronic Privacy Information Center. 17 Dec 2003 <http://www.epic.org/privacy/protest/>
Lichtblau, Eric. "FBI Scrutinizes Anti-War Rallies." The New York Times 23 Nov 2003, 1.