Many BART riders were exasperated last year when they discovered that some BART surveillance cameras were decoys. But surveillance is suddenly a scarier proposition in 2017, and the BART board is considering new oversight measures for surveillance technologies used on its trains and at stations.
The BART board considering a proposal called the BART Surveillance & Community Safety Act that would require board approval of any surveillance tool used by BART Police or any other BART entity. The legislation is being lobbied for by the ACLU of Northern California, the Oakland Privacy Working Group and the Electronic Frontier Foundation (EFF).
“BART could take a big step forward toward accountability and transparency by passing this ordinance, which will ensure public and collective board oversight of whether or not to acquire dangerous and invasive spying tools,” EFF senior attorney Adam Schwartz tells SF Weekly.
These spying tools now include spying gadgets like the the StringRay or cell-site simulator often used by law enforcement to intercept phone data, and the license plate readers that BART adopted last year. This measure would not forbid the use of these tools. But it would require specific BART board approval and allow for public comment and review before any such tools could be used.
“The BART ordinance is very similar to the Santa Clara ordinance,” Schwartz says, referring to the Santa Clara County Technology Surveillance Ordinance passed last June. That law allowed for public review of the Santa Clara bodycam policy for sheriffs and jail guards approved this week.
Not surprisingly, the ACLU and EFF have a few additional recommendations for the BART proposal.
“The most significant recommendation is that there needs to be teeth,” Schwartz tells SF Weekly. “What you need is an enforcement tool. And the best enforcement tool is the power of the general public to bring a lawsuit that gets a judge to command the BART Police or the BART board to obey the ordinance.”
That provision for a lawsuit, called a “private cause of action”, already exists in the measure BART is considering. The EFF recommends the provision be bolstered with fee shifting, or the ability for a successful plaintiff to recoup legal fees.
Privacy advocates are also recommending that BART remove any exemptions for “sensitive security information”, exemptions that would shield certain spying practices from public review.
To law enforcement and government agencies, this may all seem like more red tape. But in the era of cybersecurity issues, red tape is an important protection tool for private citizens.
“Often the legislature will say no, you don’t need this tool. Sometimes they’ll say yes and they’ll insist upon safeguards,” Schwartz says. “It’s a process of open democratic government to make these decisions.”