Brian Hofer is the chair of the city of Oakland’s Privacy Advisory Commission, which he helped form in 2016. He is the founder of Secure Justice and helps cities implement smart city technologies. He previously served as an adviser on San Diego’s oversight framework.
I’ve sat through a lot of chaotic city meetings, and the San Diego Privacy Advisory Board, or PAB, meeting on June 22 was no exception.
Public commenters accused law enforcement of acting in bad faith for not sharing more information about a new proposed street camera and automatic license plate reader project. Board members were visibly frustrated by the San Diego Police Department’s refusal to answer questions about the project. The advisory board had previously forwarded 111 questions to the police department. The department’s response was that it is legally prohibited from producing certain documents. The department also argued it didn’t need to answer all the board’s questions — which the board, understandably, did not appreciate.
It’s clear that the status quo is not working, and that San Diego needs a reset.
San Diego’s history with such projects isn’t great. As the Voice of San Diego and others began to investigate a 2017 installation of smart streetlights under then-Mayor Kevin Faulconer, the public became aware of the civil liberties concerns and financial boondoggle that the project became known for. This led to a well-organized effort by the Trust SD Coalition and their champion Councilwoman Monica Montgomery Steppe to enact both a surveillance technology vetting framework, along with a privacy advisory board of subject matter experts to advise the city on best practices regarding data security and surveillance technology. San Diego modeled their framework after Oakland, which in 2016 created the first municipal oversight body of residents with expertise in the country that would serve such a purpose.
I was invited by the coalition and Councilwoman Montgomery Steppe to consult on the project. As an outsider with insider access, here’s my perspective: no stakeholder is blameless here. Everyone has room for improvement. There is honest confusion as to what the expectations are, and how the process works.
SDPD has steadfastly refused to meet with advisory board members to work on the required policy. SDPD’s documents are also missing legally required information that both the PAB and Secure Justice have identified and made SDPD aware of.
At the same time, the police department is correct when its officials say the ordinance is impossible to comply with as currently written, and that the advisory board does not understand municipal procurement procedures, which usually occur in piecemeal, not all at once. Board members asked to see contracts with the surveillance tech vendors upfront, and when SDPD said it had no contract to provide, officials were telling the truth. The ordinance, as it currently stands, prohibits SDPD from soliciting a contract until after the advisory board has reviewed the proposal. That said, SDPD had more than two years to suggest amendments to the proposed ordinance and chose not to. Attacking the language after-the-fact is yet more fuel for those who don’t believe SDPD will ever act in good-faith.
The ordinance anticipates that an item might come to the PAB at various stages in the procurement process, before or after a contract has been produced, but without experience or training, the members didn’t know that. Although San Diego followed Oakland’s model, my advice was ignored on a couple key provisions which are now blowing up. It’s likely that amendments will be introduced soon to reduce the administrative burden on all parties, without sacrificing any civil liberties protections. Oakland learned from its years of experience with this model, having made 20 amendments to the original model in 2021, at the request of staff to better define terms and match municipal procurement practices.
The advisory board had no realistic shot of performing well at this early stage because the administration forced two controversial items on them at their first very meeting, which is not only a practical mistake but an egregious overstep of authority. The chair of the PAB sets the agenda, not the mayor or police chief. The PAB hadn’t even enacted bylaws yet, hadn’t been trained, and hadn’t elected all its officers. They had no realistic shot at doing their due diligence and making a recommendation on the merits. The motion not-to-adopt that passed on June 22 reflects this frustration.
This model is now in place in dozens of municipalities of all sizes and flavors across the country because it is the most practical approach to addressing municipal use of surveillance technologies. It is not new nor radical. It has flexibility built in, and with the PAB’s expertise relieving overworked city staffers and their elected bosses from dealing with matters they likely don’t understand, San Diego will witness the benefits and utility of participating in good faith in this process, ensuring that the boondoggle from the first smart streetlights implementation, which taxpayers are still paying millions of dollars for, won’t occur again.
Folks need to calm down and take a deep breath. Start talking to each other. My biggest mistake when I became an activist in 2014 was not speaking to folks on the other side of the aisle. Once I learned to do so, it was surprising and encouraging how much common ground we found. The PAB’s primary duty is to defend the civil liberties of all San Diegans. SDPD likewise is obligated to serve and protect all of San Diego. The activists are showing up because of how much they care about their community. This passion and expertise possessed by the various stakeholders is impressive, and when channeled productively, I’m confident that San Diego, with its much larger platform, will have an even greater impact on the national conversation around privacy and surveillance than Oakland. Municipal adoption of smart city and law enforcement technology is not going to disappear, and neither will the concerns. If San Diego gets this right, the upside and example set for other municipalities will be significant.