By Brian Hofer
(Editor’s note: This op-ed was originally published in SF Gate on December 29, 2021. Prop E will be on the ballot in San Francisco in March. Hofer on Friday posted on X: “Note the date: 3 years later, @LondonBreed is “still” lying about SF’s surveillance ordinance. Prop E won’t increase public safety, but will increase taxpayer liability due to civil rights violations.” The Vanguard is republishing with permission of the author).
On Nov. 22 (2021), San Francisco police Chief Bill Scott was interviewed by KGO to discuss retail theft. Scott stated that the San Francisco Police Department (SFPD) could not view camera footage due to “city county ordinances.”
When asked by the interviewer to confirm his statement, Scott again stated, “That is correct. We cannot because of local laws. That is correct.” Scott also claimed to have had “many conversations” and that there had been “no results.” On Dec. 14 (2021), San Francisco Mayor London Breed stated that amendments to the surveillance technology vetting ordinance were needed, claiming that “that policy is out of balance.”
None of these statements are true.
The Board of Supervisors supported creation of an ordinance to vet surveillance technology used by city departments. It was enacted in June 2019. I helped co-author this ordinance, as I’ve done for five other jurisdictions in California to date. Across the country, 22 municipalities have enacted such common sense legislation, and I regularly consult with municipal staff as they navigate such frameworks.
The ordinance requires that an impact analysis be conducted to highlight any red flags from use. This analysis is conducted by staff proposing to use the technology and requires that certain questions be addressed — what third parties might receive data? What data is collected and how long will it be retained? What are the proposed uses of the technology, and what public safety goal will be achieved? How much does it cost?
A proposed use policy is brought forth at the same time, and ideally, guardrails are built into the policy that would mitigate any of the concerns raised in the analysis. The framework facilitates appropriate uses of technology such as responding to violent crimes, while mitigating the negative impacts from use such as racial profiling, an ongoing problem for SFPD. The ordinance also expressly allows use of technologies that have not yet been approved in exigent circumstances — that is, if there is an imminent threat to someone’s life or risk of serious physical injury, SFPD has always had the authority to act.
On July 20, the board unanimously approved 32 separate use policies and use of such technologies throughout the city. The policies were submitted by various city departments. Nineteen of the policies were for cameras. Notably, SFPD refused to submit such a camera policy. According to its own survey, SFPD is presently using 44 surveillance technologies.
In a Dec. 14 (2021) blog post, Breed deliberately misleads the public by claiming that SFPD is barred from preventing and interrupting crime in real time, and by mischaracterizing the ordinance’s requirements. Although true that any new technology must receive Board of Supervisors approval prior to acquisition or use, this is not true for existing technology. Section 19.B.5 (d) specifically authorizes continued use of existing tech, including data sharing. Mayor Breed claims that the ordinance has “created barriers for law enforcement when responding to public safety emergencies. It hobbled law enforcement when confronting life-threatening incidents like active shooters, suspected terrorist events, hostage taking, kidnapping, natural disasters, or looting. It also created a significant delay in the approval process to establish a policy to use the equipment.”
These are blatant lies. As stated above, SFPD has always had authority to act in life-threatening scenarios.
When Scott claimed that he was prevented from accessing camera footage that a merchant might have, that was also an inaccurate claim. Section 19.B.2 (k) expressly authorizes “receipt, access to, or use of” information provided by a non-city entity, such as business improvement districts or private citizens, without needing to first obtain board approval. If Chief Scott is claiming that his hands are tied, it’s his fingerprints on the rope.
There is no bureaucratic delay as claimed by the mayor, when SFPD has had over two years to submit required use policies for its existing surveillance technology. Dozens of departments have successfully navigated the ordinance. SFPD itself submitted two use policies, for automated license plate readers and an acoustic gunshot detecting technology. Each was approved unanimously by the board, demonstrating that the ordinance is a pragmatic approach to facilitating appropriate uses of technology to increase public safety, and that SFPD knows how to comply. If SFPD desires expanded or new uses, ask for them. The mayor and chief are skipping class, yet blaming the school for their failing grades.
The drug-warrior rhetoric recently espoused by Breed will cause harm. I hate to break it to you, mayor, but the War on Drugs is over. Drugs won. We have decades of data to demonstrate that increased police presence and mass surveillance will have no positive impact on what is occurring in the Tenderloin. In a review of over 500 studies on crime prevention, a National Institute of Justice report stated that “increased arrests or raids on drug market locations” does not work.
As the police officer’s association lies to the public about District Attorney Chesa Boudin, claiming that his policies and laws like Proposition 47 are the root of all evil, their own statistics show that SFPD solves larceny theft at a less than 3% rate this year. The burglary clearance rate is 10%. Despite the use of automated license plate readers, auto theft recovery is less than 8%. No district attorney can prosecute a case that isn’t brought to them. This also raises the question as to why SFPD is not more effective at solving crimes, when they have 44 surveillance technologies at their disposal.
Arresting folks in the Tenderloin will not eliminate the root causes of these harms. These folks can’t afford to pay court or probation fees, they won’t show up to court appearances, and if incarcerated, taxpayers will spend triple the amount to keep a human in a cage, rather than provide preventative help and wrap-around services that have shown a far greater effectiveness than increased punitive action.
San Francisco suffers from a failure of leadership, not a cumbersome surveillance ordinance. It’s a lack of vision, a knee-jerk reaction that leads to the further and constant erosion of civil liberties protections, in return for an illusion of greater public safety.
Brian Hofer is the Executive Director of Secure Justice, and Chair of the City of Oakland’s Privacy Advisory Commission. He co-authored San Francisco’s surveillance ordinance, and continues to engage with city staff as they navigate the ordinance framework.
