ACLU of Southern California v. Superior Court of Los Angeles
- Court Rules Secret Scoring of Teachers Unconstitutional: A federal district court has held that firing public school teachers based on the results of a secret algorithm is unconstitutional. The case, Houston Federation of Teachers vs. Houston Independent School District, concerned a commercial software company's proprietary appraisal system that was used to score teachers. Teachers could not correct their scores, independently reproduce their scores, or learn more than basic information about how the algorithm worked. "When a public agency adopts a policy of making high stakes employment decisions based on secret algorithms incompatible with minimum due process, the proper remedy is to overturn the policy," the court wrote. EPIC recently filed a complaint asking the FTC to stop the secret scoring of young tennis players. EPIC has pursued several cases on "Algorithmic Transparency," including one for rating travelers and another for assessing guilt or innocence. (Jun. 13, 2017)
- EPIC Urges Massachusetts High Court to Protect Email Privacy: EPIC has filed an amicus brief in the Massachusetts Supreme Judicial Court regarding email privacy. At issue is Google's scanning of the email of non-Gmail users. EPIC argued that this is prohibited by the Massachusetts Wiretap Act. EPIC described Google's complex scanning and analysis of private communications, concluding that it was far more invasive than the interception of a telephone communications, prohibited by state law. A federal court in California recently ruled that non-Gmail users may sue Google for violation of the state wiretap law. EPIC has filed many amicus briefs in federal and state courts and participated in the successful litigation of a cellphone privacy case before the Massachusetts Judicial Court. The EPIC State Policy Project is based in Somerville, Massachusetts. (Oct. 24, 2016) More top news »
- EFF-ACLU Opening Brief
- City of Los Angelas Answer Brief
- County of Los Angelas Answer Brief
- EFF-ACLU Reply Brief
- EFF-ACLU Petition for Review
- City of Los Angelas and County of Los Angelas Answer Brief
- EFF-ACLU Reply Brief
- Amici in support of Petition:
- EPIC Amicus Letter
- Reporters Committee for Freedom of the Press Amicus Letter
- Sacramento Valley Mirror, Lake County News, People's Vanguard of Davis, Woodland Record, Rio Dell Times, Ferndale Enterprise, LION Publishing Group & Michael Robertson Amicus Letter
- Northern California Chapter of the Society of Professional Journalists Amicus Letter
- Am. Civil Liberties Union Found. of S. California v. Superior Court of Los Angeles Cty., 236 Cal. App. 4th 673 (May 11, 2015)
The California Supreme Court will decide whether to review the Court of Appeals decision in ACLU Foundation of Southern California v. Superior Court of Los Angeles County. The Appeals Court agreed with the trial court, holding that records generated by Automated License Plate Readers (ALPR) are investigative records and thus exempt under California Government Code § 6254(f).
The relevant part of § 5254(f) authorizes law enforcement to withhold "records of . . . investigations conducted by . . . any state or local police agency, or any investigatory or security files compiled by any other state or local police agency . . . ." At issue is whether the functions performed by ALPR systems are "investigations" within the meaning of § 6254(f).
The case arises from separate open records request by the ACLU of Southern California and the Electronic Frontier Foundation (EFF) pertaining to the use Automated License Plate Readers by the Los Angeles Police Department (LAPD) and the Los Angeles Sheriff’s Department (LASD). Both ACLU and EFF filed open records requests for the policies, procedures, training, and practices related to the use of ALPR. Additionally, both organizations also requested a week’s worth of data from the ALPRs. The LAPD and LASD agreed to produce the policies, procedures, etc. but withheld the ALPR data citing, among other things, the exemption for records of law enforcement investigations. The trial court agreed with the LAPD and LASD and held that the ALPR data was exempted under California Government Code § 6254(f).
ACLU of Southern LA’s Petition to California Appeals Court
The ACLU and EFF petitioned the California Appeals Court, arguing that the Superior Court erred in holding the ALPR data exempt under § 6254(f). The petitioners argued that 1) the Superior Court misunderstood the technology when they determined that ALPR data constitutes investigative record because the ALPR data collection was generally targeted; and 2) the holding does not fit with the common understanding of "investigation" because it means all vehicles in the LA area are constantly under investigation. The petitioners argued that data collected indiscriminately is not a record of an investigation. The petitioners argued that to count all ALPR data as an investigative record would inappropriately expand the scope of § 6254(f).
California Appeals Court Ruling
The California Appeals Court upheld the Superior Court’s ruling that ALPR data was exempt from release because the data was an investigatory record under § 6254(f). The Appeals Court found that the scanning of license plates performed by the ALPR systems are investigations within the meaning of §6254(f) because they are “conducted for the purpose of uncovering information surrounding the commission of the violation [of law] and its agency.” Specifically, the ALPR systems scan plates and immediately check the plate scans against a “hot list” of plates associated with suspected crimes. The scans and hot list checks, according to the Appeals Court, are records of investigations. The Court adds in support of its position that these records exist only because the LAPD and LASD are trying to “uncover information surrounding the commission of a violation of law and its agency.”
The Appeals Court found that just because the ALPR systems scanned all plates in view does not mean the ALPRs are not performing an investigation. The court explains that “in exempting records of . . . investigations conducted by law enforcement agencies, § 6254 does not distinguish between investigations to determine if a crime has been or is about to be committed and those that are undertaken once criminal conduct is apparent.” Additionally, the court argued that retention of millions of license plate scans for extended periods of time does not strip an investigative record of its exempt status.
California Supreme Court
In June 2015, the ACLU and the EFF petitioned the California Supreme Court to review the decision of the Appeals. The California Supreme Court agreed to review the case in July 2015.
EPIC has a long-standing record of protecting open record laws and access by the public to government records. Additionally, EPIC advocates for stronger privacy against surveillance technology and against mass surveillance of the public. ACLU v. Superior Court of Los Angeles County is particularly significant and relevant to EPIC’s mission because of its potential to extend the California’s open record exemption for law enforcement investigative records to all indiscriminate mass surveillance conducted by California authorities. Such a broad exemption would undermine the purpose of open government laws and impede the public’s ability to learn about potential abuse and misuse of mass surveillance techniques.
California Supreme Court, No. S227106Merits Stage
California Court of Appeal, Second District, Division 3
Los Angelas County Superior Court
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by Ryan Calo, A. Michael Froomkin,