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San Diego is expected to get its first look next week at new rules for the use and acquisition of any devices, including smart streetlights, that are capable of watching and listening to the public.
The surveillance ordinance was born out of a frustration that the city’s smart streetlights program began as a means of saving money on energy costs and evolved into a tool for law enforcement. What the members of the City Council knew, or didn’t know, about the extent to which police could access the cameras has been a source of ongoing controversy.
The debate over the technology literally spilled onto the streets in January, and is now making its way into campaign messaging. At its core is a fundamental tension between privacy and public safety and a question of whether San Diegans — and their representatives — properly vetted and consented to being surveilled.
The activists and community members who are helping to write the policy have also been at the forefront of criminal justice issues for many years. In San Diego, the police reform movement is now turning its attention to tech.
They have the strong support of at least two City Council members who’ve argued in recent days a new system of checks and balances is overdue. Two others have walked back statements they previously made to me about not knowing the devices were being used to investigate crimes.
When I interviewed City Councilman Scott Sherman in April 2019, he said he was in the dark about SDPD’s connection to the streetlights. He told me then: “I would like to see some briefings from law enforcement to Council members about the oversight.”
Both he and City Councilman Chris Cate at the time said they were supportive of the smart streetlights being used by police and prosecutors but wanted more information to ensure no one’s civil liberties were being violated. By then, investigators were accessing the camera footage stored on select streetlights and preparing to use some of it at an upcoming criminal trial.
“That’s news to me,” Cate said. “I would like to know the process by which they gathered it, if they’re going through and getting court orders.”
But the San Diego Police Department took issue with the suggestion that it had been less than transparent about what investigators were doing.
Capt. Jeff Jordon insisted that he and Police Chief David Nisleit had spoken one-on-one with every member of the City Council. A VOSD review of City Council calendars — following a records request that took six months to complete — shows that SDPD had indeed scheduled briefings with elected officials to talk about the streetlights in private.
After sharing the calendar appointment with Sherman, the councilman said he’d honestly forgotten about it when we spoke in 2019.
“I don’t remember that meeting at all, which is why I was so taken back about it in the news media,” he said. “I know it’s on the calendar. I just don’t remember the meeting.”
Cate’s office also confirmed that a briefing took place with SDPD in November 2018 but said his comments to me last year about being in the dark were in reference to the original City Council vote taken in December 2016.
“If there was any misunderstanding as to what he said, my apologies,” wrote Cate’s deputy chief of staff, Rebecca Kelley, in an email.
In addition to Sherman and Cate, five other City Council members — Barbara Bry, Jen Campbell, Chris Ward, Mark Kersey and Monica Montgomery — met with SDPD to discuss the smart streetlights in late 2018 or early 2019. City Council President Georgette Gómez and Councilwoman Vivian Moreno’s office have also confirmed that they’d spoken privately with Nisleit or Jordon during that time period.
But not everyone was satisfied with SDPD’s just-trust-us attitude and assurance that it would only use the cameras to investigate serious, violent crimes.
On Wednesday, Gómez said police leaders, including the chief, walked her through the process of how they gain access to streetlight camera footage. She was bothered that there were no actual rules in place for how the technology could and couldn’t be used long term.
“People come and go, and they can have the greatest intentions, but the next person might not,” she told me.
At the time, SDPD was preparing to write its own policy around accessing the devices — it posted that policy online a few months later — but Gómez remembered thinking the City Council should be leading that effort. She said she’d been hearing concerns from the community about how the technology might be abused and believed that elected officials, not police or the mayor’s office, were responsible for establishing those safeguards.
Montgomery also told me in May that her briefing with SDPD had been a mere introduction to the topic, triggering a lot more questions in her mind.
Months after their sit-downs, Montgomery, Gómez and Ward issued a statement calling for a moratorium on the smart streetlights program. As Montgomery put it, “we wanted to pull back and understand the capabilities of what these cameras were really being used for.” She also wanted a better understanding of how other cities were putting controls around similar forms of surveillance.
“This is obviously one bad thing after another with these streetlights,” she said.
In the early phases of the project, the city considered giving SDPD real-time access to the devices. Investigators have sole discretion over what is and isn’t a serious crime worthy of a look-see and took advantage of that authority at the height of the recent Black Lives Matter protests.
Part of the program’s funding has been its own source of controversy. Hundreds of the devices were paid for with federal anti-poverty dollars meant for infrastructure projects in low- to moderate-income neighborhoods.
Even the transit and mobility data captured by the streetlight technology, which was one of the main selling points for the program in December 2016, hasn’t been all that useful.
As chair of the Public Safety Committee, Montgomery, who wasn’t on the Council when the streetlights were approved, is now leading the effort to rein in the city’s use of surveillance with the Trust SD Coalition, a group of tech-minded activists and community members.
Gómez said she is fully behind that effort, and is calling for the complete defunding of the smart streetlights program. Both those discussions are expected to take place this month.
So in advance, let’s recap what we know and revisit the history of this program, the seeds of which were planted about a decade ago. But it really didn’t begin to take form until 2014, when the city rolled out a pilot program in the East Village to test new technologies capable of dimming and brightening lights from afar.
San Diego’s Environmental Services Department persuades the City Council to expand the pilot program. General Electric offers to loan $30 million so that the city can retrofit thousands of its streetlights with GE technologies. Most of the public deliberation is focused on the interest rate of the loan and the long-term maintenance costs of the equipment. Officials say the energy savings will pay for the program over a 13-year period.
The law enforcement capabilities of the devices are known to officials but don’t get airtime. A single page buried within a packet of documents mentions “surveillance” and “gun shot detection.” No one asks about it, and officials don’t bring it up at either the committee or City Council levels.
As the devices are later rolled out across the city, officials and their financial partners in the private sector tout the ability of the sensors to capture environmental and mobility data in their promotional materials and news reports.
By August, SDPD is seeing the full crime-fighting potential of the cameras and pulls footage in connection to a grisly murder in the Gaslamp with the permission of city managers. Jordon later says he’s “hooked” on devices, even if the cameras aren’t always located in the most convenient places for investigators.
SDPD officials start informing the City Council of their access to the streetlights. By the time everyone’s informed, it’s been months since police pulled the first video.
In response to feedback from community members and the City Council and in acknowledgment that they’ve walked backward into a messy situation — trying to rethink policy for technology long after it’s been deployed — city officials create a website and begin holding public meetings to answer questions and calm growing concerns. They note that the footage automatically deletes itself after five days. The cameras are only aimed in public rights of way. The equipment can’t pan or tilt and can’t recognize faces or license plates (yet).
By then, management of the smart streetlights program had been handed to the city’s Sustainability Department.
SDPD posts a memo to its website outlining its procedures for accessing the devices. Jordon later says it’s a living document that will change over time.
Jordon gives a presentation to the Public Safety Committee explaining how SDPD is accessing the devices. He insists that investigators are only looking for footage in connection with the most serious crimes. What constitutes a serious crime, he later tells me, is determined on an individual basis to protect the loss of life and property.
Activists hold a rally outside City Hall to urge the mayor to hit pause on the program until their privacy concerns are addressed. Three City Council members — Gómez, Montgomery and Ward — echo that request in a statement of their own.
By the end of October, SDPD has accessed the cameras 175 times over a 14 month-period, according to data analyzed by NBC 7. On the list are more than two dozen homicides and nine sexual assault investigations. But there’s also an illegal dumping case involving concrete near an FBI parking structure in Sorrento Valley.
City Attorney Mara Elliott holds a press conference near a memorial for a security guard who had been shot and killed. Streetlight footage led to the arrest of two men, she said. She calls the technology a game-changer for law enforcement.
Geneviéve Jones-Wright and other activists crash the press conference and question, among other things, what happens to the camera footage when it’s outside the city’s view and control. Elliott insists that, even though the data is stored by an outside company, it can’t be sold for profit. The activists demand stronger oversight and a means of auditing these assurances.
The following day, the Public Safety Committee spikes new rules for the streetlights proposed by the Sustainability Department, which is now overseeing the program, and instead gets to work on a more comprehensive ordinance that’ll extend to all technologies in the possession of the city. Gómez and Montgomery ask Elliott to step aside and allow outside legal counsel to review the surveillance ordinance they intend to draft because Elliott already “holds a distinct policy position on the matter.”
In a memo obtained by NBC 7, a city manager says the smart streetlights program is plagued by cost overruns, lax supervision and a lack of properly-trained staff. He promises to aggressively renegotiate the contract with GE Current, which spun off from GE.
Officials in the Sustainability Department get an ear full, as members of the City Council signal that they’re interested in making financial cuts to the program, possibly shutting it down for good. The mayor responds by proposing to dramatically shrink the program and place its funding source under the Community Parking District budget.
In late May and early June, civil demonstrations take place across the region over the unequal and unjust treatment of Black Americans. The access log later reveals that SDPD went looking for evidence in connection to crimes allegedly committed by protesters. That includes a number of vandalism and property damage cases, as well as reported assaults on officers. In one incident, a man is accused of aiming a laser pointer at a police helicopter. He’s now being charged in federal court.
Jordon has confirmed that SDPD sometimes shares streetlight camera footage with outside law enforcement agencies.
The Public Safety Committee is expected to begin debating the merits of the surveillance ordinance that governs the use and acquisition of new devices. It’s also considering the creation of a privacy advisory commission made up of community members and “subject-matter experts.” That means people who specialize in civil rights law, auditing and accounting, and encryption security. No politicians. No police.
“We want to keep it independent and make sure there’s no political pressure or pressure otherwise,” Jones-Wright said at a panel discussion Wednesday.
The City Council is also expected to review the Community Parking District budget, which is the new source of funding for the scaled-down version of the streetlights program.
Bella Ross contributed to this report.