To: Miami-Dade Board of County Commissioners
From: Howard L. Simon, Executive Director, American Civil Liberties Union of Florida
Date: June 5, 2017
Re: Proposed Miami-Dade Wide-Area Surveillance Grant Application
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I write, on behalf of the American Civil Liberties Union of Florida, to urge that you defer action on the proposed resolution to grant retroactive authorization for a federal grant to deploy Wide-Area aerial Surveillance by the Miami-Dade Police Department. These remarks supplement the email that you received earlier this afternoon from Jeanne Baker of the Greater Miami Chapter of the ACLU.
At the very least, a measure of this significance – one that so fundamentally changes the relationship between police and the public, one that puts the general public under surveillance – should be the subject of a full airing by Commissioners, with the public having a full opportunity to voice its views on whether we should make such a significant change in public policy.
Wide-area surveillance is an extremely powerful technology that has the potential to fundamentally change the nature of our public spaces, and the relationship between the individual and his or her government. The Commission should not approve the Police Department’s request for federal (or any other funds) for this purpose, certainly not without first ensuring that there are adequate safeguards against abuses and to protect the rights of the people of our community.
Wide-area surveillance is a technology that has enormous capacity to both assist law enforcement but also to threaten the privacy and civil rights and liberties of the people of Miami-Dade County. The technology can be used not only to monitor the comings and goings of all motorists and pedestrians within a 32 square mile area, it also gives the government the ability to press “rewind” on all of those residents’ movements. As MDPD spokesperson Lt. Juan Villalba Jr. told the Miami Herald, “It’s kind of like a DVR.” That is a power that no government official has ever had, and one that should not lightly be granted to the Miami-Dade police department. In our society the government does not record the activities of citizens without individualized suspicion. The possibility of surveillance might prove useful in some later investigation is not an adequate justification.
Those defending wide-area surveillance claim that aerial tracking does not have the resolution to identify individuals, but that is a hollow argument. First, many people can be identified by the house or building they emerge from in the morning, where they go to work, and where they stop in between. And others will be identifiable by cross-indexing aerial footage with ground-based surveillance cameras. Indeed, the entire purpose of the system is to identify particular people.
Defenders have also argued that people have no expectation of privacy in public. But that is far from the case. More importantly, that over-simplification should not end the conversation but should begin a conversation on how to employ technology that assists law enforcement with its important mission and, at the same time enact safeguards the protect the rights of the people in our community. While everyone in a public place is subject to being viewed by those in their immediate area, we do not expect that we will be followed around for hours, days, and weeks, by anyone else in those public spaces. Indeed if one of them were to do so, we would most likely seek a restraining order. Yet that is exactly what this technology does.
When the Supreme Court considered whether a GPS tracker attached to a car constituted a search under the Fourth Amendment, the government made this same argument that the subject of that search had no expectation of privacy since he was driving in public. A majority of the Court, however, in U.S. v. Jones, found that the GPS tracking did, in fact, constitute a search governed by the Fourth Amendment, and that the persistence and breadth of the information collected changes the analysis.
Wide-area surveillance is a brand-new technology. No community has been subject to anything like it in American history. If Miami-Dade were to begin regular use of this technology, it would become the only city in the United States where it is in regular use. A pilot project of the technology was conducted in Baltimore in 2016, but when it was disclosed to the public there was a “storm of criticism,” as the Baltimore Sun put it, and to our knowledge the Department has not decided whether it will move beyond last year’s pilot program.[1]
Previous U.S. deployments included a secret nine-day test in Compton, CA, and an attempt to deploy the technology in Dayton, Ohio, home of the company behind the technology, Persistent Surveillance Solutions. In Dayton, community opposition to the technology led political leaders to opt against deployment.
Again, if Miami-Dade County were to employ this technology on a regular basis, it would become the only city in the United States where it is in regular use.
Other events have also shown deep public discomfort with aerial surveillance. Beginning in 2013, we witnessed a rapid nationwide outpouring of support for state legislation regulating surveillance drones, with legislation proposed in at least 43 states and enacted in 13 – including Florida.[2]
No American wants to be tracked from the moment they leave their house in the morning until they return at night – especially when they are not suspected of criminal activity. That kind of monitoring is something that in the past could only be done by a substantial, around-the-clock crew of government agents. Today, technology has the capacity to carry out such tracking of entire populations.
I urge you not to allow technology’s capabilities to determine our policies, rather than our values and visions for the kind of community we want to create.
[1] https://www.aclu.org/blog/status-domestic-drone-legislation-states and https://www.aclu.org/blog/status-2014-domestic-drone-legislation-states?redirect=blog/technology-and-liberty/status-2014-domestic-drone-legislation-states