Boston’s ordinance is the result of four years of work, beginning in November 2017 with representatives from Digital Fourth, Families for Justice as Healing, the Muslim Justice League, Jewish Voices for Peace and the ACLU of Massachusetts, and continuing with support from the Student Immigrant Movement and Unafraid Educators. The ordinance was first proposed for consideration by Michelle Wu in 2019, received significant support from Ayanna Pressley, Ricardo Arroyo, Andrea Campbell, Kim Janey and Lydia Edwards, and then went through considerable revisions to address the important topic of information sharing on BPS students with BPD and through them to ICE.
This is a big deal. Police departments across New England look to Boston PD. It will now be the job of local surveillance activists on the ground, to discover as much as we can about how surveillance technologies are used at Boston PD, and to organize to block approvals of intrusive technologies, just as we have been doing in Somerville and Cambridge.
To join our existing campaigns for ordinances in Watertown and Arlington, or to help us launch one in Newton, please contact email@example.com.
Our local fusion center, BRIC, has been at the core of police efforts to surveil and suppress social movements for over a decade. And, since 2012, we’ve been calling them out on their abusive and un-Constitutional practices.
This October 30, please join us for a livestreamed discussion on fusion centers, with Boston City Councilor Ricardo Arroyo, law student Dani Hargus, and journalist Emma Best, moderated by our own Alex Marthews!
The key to understanding this document is that BRIC is legally obliged to follow 28 CFR Part 23. This is part of a Clinton-era Executive Order that tried to ensure that “criminal intelligence systems” don’t violate your Fourth Amendment rights. It makes it illegal for BRIC to keep a file on you not based on a “criminal predicate” — in other words, reasonable suspicion of your involvement in an actual crime.
As it turns out, BRIC’s attitude to this whole “Constitution” thing is a little … different.
BRIC’s Permanent Files
For its “Permanent” files, BRIC does indeed require a criminal predicate — though this document doesn’t include any information on how well that policy is followed.
BRIC’s Temporary Files
For its “Temporary” files, however, BRIC retains information on Boston area residents where “involvement in the suspected activity is questionable”, or where their identity cannot be established with certainty. The examples are that they have “possibleassociations with known criminals,” or that they have “criminal history” and “could again become criminally active.” BRIC retains “Temporary” files for up to a year, to see if information emerges that would enable to upgrade it to a “Permanent” file.
No. No, no. That’s not how the Fourth Amendment works. The government isn’t supposed to keep “criminal intelligence files” of people they generally believe to be Bad, or people with Bad Associations, based on a belief that they have a generalized propensity to commit crimes in the future. BRIC’s belief must be a reasonable one, based on evidence of your involvement in an actual crime. This violates 28 CFR Part 23 and, with it, the Fourth Amendment itself.
BRIC’s Interim Files
Oh, and it gets worse. Just in case their rules on “Temporary” criminal intelligence files don’t provide them with enough room to wiggle around the Constitution, BRIC allows itself a further category of “Interim” files. Apparently, BRIC can open an “Interim” file and retain it for up to 90 days if they receive “information that, absent additional information or change, would be deemed unnecessary for retention beyond a short term period,” or that is “specific to an anticipated event or incident with the potential for criminal conduct.”
I know, vague much?
It seems BRIC considers that they can open a file for 90 days based on literally anything at all. There’s no such thing as an “event or incident” with no “potential for criminal conduct.” This could cover everything down to your aunt’s Sunday evening knitting circle. “Interim Files” only exist as a category to allow BRIC essentially unfettered discretion.
To be fair, the Guidelines also tell BRIC employees what shouldn’t be in an intelligence file. This includes protected criminal record information, information “based solely on support of an unpopular cause”, information “based on ethnic background”, “based on religious or political affiliations” or “based on non-criminal personal habits;” and “associations that are not of a criminal nature.” However, we know from their gang databasing practices that their definition of what constitutes “associations of a criminal nature” is extremely broad, and that their notion of surveillance not “based solely” on religion, politics or ethnicity may differ sharply from Bostonians’ common understanding.
We call on BRIC to make available to the public, with any legally necessary redactions, a representative sample of its current Temporary, Interim and Permanent Files, and then to delete the Temporary and Interim Files as contrary to the Fourth Amendment.
Then, at least, we will know how much surveillance BRIC is conducting that is not based on at least reasonable suspicion of involvement in an actual crime.
Quick summary of S. 2963, the MA police reform bill, as compared to previous versions.
Ignore the acres of verbiage on commissions. Maybe they’ll work, maybe they won’t, but they’re likelier to drag out and thwart police accountability than to promote it. So: What real reforms were blocked and what were included?
First, and most crucially, police reformers didn’t get any limitations on qualified immunity. Without that, police officers know they’ll still likely face no consequences for violating people’s rights in Massachusetts – which they do a lot. MA punted where CO led.
Second, the bill contains important, if long-overdue reforms. It outlaws police rape of people in their custody. It allows municipalities to not have a school resource officer. It limits school information sharing with gang databases. It limits no-knock warrants (RIP, Breonna Taylor.) The bill outlaws chokeholds resulting in unconsciousness or death. And it bans biometric surveillance without a time limit (though RMV is still allowed to do it).
But the final version also omits important things. No limits on military equipment acquisition by police; no data collection on police stops; it never envisioned doing anything on civil asset forfeitures, or requiring warrants for use of drones or stingrays or other police surveillance tech.
In summary: The reforms that are real are the ones police unions really felt they could not block. The fact that there are some reforms they couldn’t block shows that there are limits to their massive resistance. And the battle on qualified immunity is just beginning.
Here is this morning’s update on the current status of police “reform” in the House. For the topics the House has not yet considered, it’s not too late to call your House Rep and make your opinion known. All texts of amendments may be found at https://malegislature.gov/Bills/191/H4860/Amendments/House.
Key successes so far: – #116, which we supported, passed narrowly. It placed further restrictions on no-knock warrants to protect children and elders. Yes, this means that almost half of our 80% Democratic House, thinks that on suspicion that illegal drugs exist in a home, the police should not have to check whether there are kids and elderly people inside before a SWAT team busts in, throws flash-bang grenades, and opens fire. – #148, which we supported, passed. It strengthened penalties for police rape of people in custody, so at least there’s a consensus that that is wrong, I guess. Looking forward to seeing how many indictments are actually brought!
Key failures so far: – #51, #54, #79, #107, #110, #129, #132 and #177, all of which we opposed, were some of the amendments which were folded into “Consolidated Amendment A” (https://malegislature.gov/Bills/GetAmendmentContent/191/H4860/A/House/Preview).* Consolidated Amendment A weakens the procedures of the Commission relative to the underlying House Amendment H4860 (the House bill). The Consolidated Amendment generally limits the ability of the Commission to investigate complaints until the police department has ruled on them, narrows the grounds for decertification, extends the appeal process for decertification, and gives the Commission greater discretion to not decertify. This basically means that the most important lesson Bob DeLeo is taking from the fury on the streets, is that it’s very important that any new Commission not be obliged to decertify officers who are shown to practice racist policing, to use excessive force, or to fail to intervene when they see other officers doing it.
– #77, which we supported, failed, as part of the process leading to the approval of Consolidated Amendment A. It was an effort to restore a “preponderance of the evidence” standard for decertification; the standard in the bill remains at “clear and convincing evidence.” There are further efforts, apparently, to increase the standard to “beyond a reasonable doubt.” – #111, which we opposed, passed. It narrowed information not allowed for schools to share with law enforcement. – #187, which we opposed, passed. It replaced the state auditor as a member of the new Police Commission with the president of the DAs’ association, as part of “Consolidated Amendment B”, which covered who should and should not be a member of various Commissions set up by the bill (https://malegislature.gov/Bills/GetAmendmentContent/191/H4860/B/House/Preview). – #200, which we supported, failed. It would have banned tear gas and other chemical weapons. Apparently, it’s just a step too far to ban substances whose use in war is prohibited by the Geneva Conventions, from being used against people protesting police brutality.
Key amendments we support that have not yet been considered: – #80: Establishes that database of police misconduct records should be publicly available and searchable – #85: Public notice for Commission meetings, not simply by request – #100: (also supported by ACLU and Progressive Mass): Creates direct right to sue for police abuse, not just via the AG’s office – #131: (also supported by ACLU and Progressive Mass): Restores Senate language on local control of military equipment acquisition – #201: Appears to bar 287(g) agreements of police or sheriffs’ departments with ICE in their current form
Key amendments we oppose that have not yet been considered: – #33 would make the chokehold ban more limited, as would #114 – #91 is a mischievous and silly amendment that would strip legislators’ qualified immunity from civil suit as revenge for stripping police officers of theirs. – #149, also opposed by ACLU, would remove warrant/imminent harm requirement for law enforcement access to RMV records – #172, #173, #193, #197 and #204 would all replace the bill’s repellently weak reform of qualified immunity with an even weaker study committee to consider the issue. – #215, among other things, would limit decertification for bias to intentional bias.
* It appears that if an amendment is folded into a “Consolidated Amendment”, it may be that its exact language need not appear in the Consolidated Amendment; it’s more like the amendment’s author agrees to implicitly withdraw the amendment if the language in the Consolidated Amendment passes.
TL;DR: The House bill is, overall, far weaker than the Senate bill. We have till 1pm tomorrow to persuade House members to submit amendments. We want to see the Senate language on qualified immunity, school resource officers, police stops, and military equipment approvals, in the House bill. We like the House’s face surveillance language better than the Senate’s. We don’t want, or need, yet more blue-ribbon commissions to consider at length What, If Anything, To Do. It’s quite clear what the problem is:
The police spy on, shoot and hurt people without probable cause, often for racist reasons. People who do that shouldn’t be police, and people it gets done to, should get to sue the people who did it to them.
Local discretion on whether to have police in schools?
Local elected official approval process for military equipment acquisition by police?
Chokeholds outlawed if intent or result of unconsciousness or death?
No-knock warrants limited?
Data collection on police traffic and pedestrian stops to prevent profiling?
In other words, the House bill has stronger provisions on face surveillance, but strips key language from the Senate version on qualified immunity, school resource officers, military equipment for police, and data collection on traffic stops. And as a last slap in the face to the Black community in Massachusetts, the House bill takes funds designated for securing racial equity in cannabis dispensary licenses, and redirected them to yet more police training.
At Digital Fourth, we would support a bill stronger than the Senate bill. Our optimal bill here would outlaw chokeholds, tear gas, other chemical irritants, the use of dogs at protests, and police rape; end qualified immunity, end information sharing of schools with the police and ICE, ban school resource officers, end the 1033 military equipment acquisition program, end no-knock warrants, end civil asset forfeitures, reverse the delays introduced by amendment in the Senate to the decertification process, and still collect data on all police stops.
The Senate bill at least represented progress, especially with the House provisions on face surveillance added. Therefore, we support all amendments adding the Senate language back in, excepting those relating to face surveillance. But the House bill – again, excepting the face surveillance provisions – is a betrayal of everyone genuinely concerned for equal justice, and deserves to wither in the fire.This is what happens now.
You have till 1pm tomorrow to persuade your House member to submit or endorse amendments to the House bill. Then, House leadership will allow debate, likely on Tuesday or Wednesday, and vote on them and the bill. Then, the House and Senate will create a conference committee to try to agree common language. As you can see above, there are a lot of key differences. If the conference agrees on language, the bill goes back to both bodies for a vote, and then, if passed, it goes to the Governor’s desk. If the bill is not signed by the end of the session, which is currently scheduled for July 31, then the bill dies for this session, and would be reintroduced when the new session begins in January.
On Bastille Day, at 4:20am, the Massachusetts Senate passed a 70-page police reform bill. Two weeks remain for the House to consider it, and for the governor to sign it, in the midst of an acute public health and economic crisis. Police organizations are burning up the phone lines to prevent the House from acting on it. Please call your House Rep today, to prevent the House from mincing its key provisions into oblivion.
In our view, the key provisions are:
Police rape of people in their custody will be outlawed.
Police will no longer be able to use qualified immunity as a defense in civil lawsuits, unless “no reasonable person” could have considered the behavior at issue to be unlawful. This will sharply increase the chance that a resident whose rights the police violate, can obtain damages.*
Police will no longer be able to use face surveillance. This moratorium extends through December 31, 2021.
Police will no longer be legally obliged to provide school resource officers. It will be up to the school superintendent whether they want to ask for an officer.
S2800 also has some important flaws and limitations:
It does nothing to reform the fusion centers, which spy on Massachusetts residents uninvolved in actual crimes.
It does nothing directly to assist people and communities wrecked by the banal daily evils of the carceral state, and was not constructed on the basis of deep, lengthy or substantive conversations with them.
It’s weighed down with an array of futile language appointing commissions and funding retraining of police.
The language relating to face surveillance, tear gas, chokeholds and police decertification processes is weaker than we would like. We’re advocating separately relating to the face surveillance provisions.
However, based on long experience, we also believe that if any of the bill’s good provisions had come up before the Public Safety Committee during the regular committee process, they would have failed; and that there’s simply not enough time left in the two-year legislative session, which ends July 31, to start over with a broader and more consultative process.
We’re not waiting another two years. Taken together, this bill represents substantial progress towards our goal of restoring the Fourth Amendment in Massachusetts. Please call today!
*If found liable, the individual officer would still be indemnified against personal loss, except for portions of a judgment exceeding $1 million, for actions committed outside the scope of their official duties, and for actions that are “wilful, wanton or malicious” (MGL ch. 258 s. 9A). In practice, this means that public budgets will still bear 99.98% of the cost burden for police misconduct.
The Boston City Council voted unanimously on June 24 to ban government use of face surveillance technologies. Face surveillance systems are systematically worse at recognizing women and people of color, partly because the training datasets they learn with contain a preponderance of white, middle-aged men. Nothing about our criminal justice system requires the adoption of a technology that biases arrests and charging decisions more against Black people.
But if the technology ever somehow overcomes that, and becomes one hundred percent accurate, it becomes immensely more terrifying. In many cities already across the world, the police track wherever you go in public, and the authorities can easily form a picture of your habits and activities, to keep in their pockets for whenever you’re accused of a crime – or for whenever you grow inconvenient to them in other ways. Now, thanks to years of work by the #BosCops and #PressPause coalitions, which we’ve been a part of from the start, Boston will not be one of those cities. This matters.
Now we turn to what’s next. Face surveillance is a unique kind of threat, but the police should not deploy any surveillance technology without public hearings, and without the knowledge and approval of local elected officials. Those officials should have the power to approve or deny the use of such technologies. The surveillance state needs a little more sand in its gears, to stop the continuous ratchet of more and more invasive technologies. Next month – probably – the City Council will consider a surveillance ordinance that would do all that. Similar ordinances are already on the books in Cambridge, Somerville, Brookline, Lawrence, Northampton, and (as of July 1) Easthampton too, and many other municipalities across the nation.
But the face surveillance ordinance itself still, like any ordinance, has loopholes and limitations. We’ve written to the Boston City Council to lay out some of those problems:
So there won’t be a public network of City-owned cameras; what happens if there’s a private network, and the City simply requests that footage?
The City has the authority to regulate whether and how private businesses deploy face surveillance in the City. To address this, the city-wide ban on face surveillance should be amended to include language on how sports stadiums like Fenway Park, the TD Garden and retail stores like Home Depot, Macy’s, Best Buy and Kohl’s will be permitted to use face surveillance software, and require them to disclose use of it to the public.
And we still don’t know whether MBTA uses facial recognition; City agencies, including the police, should need a warrant for their footage.
Here’s our testimony on these points. And if you’d like to help with our continuing municipal campaigns to rein in surveillance in Massachusetts, email us today!
By standing up for surveillance reform and privacy now, you can achieve wonders.
There are a lot of people who think that we can do nothing to prevent the US from turning into a Chinese-style surveillance dystopia. There are even more who feel daunted by the power and influence of the surveillance agencies and major tech companies, like there’s nothing they can do.
This couldn’t be further from the truth.
We’re a small, if growing, movement. At any one time in the Boston area, there are probably only two hundred people taking meaningful actions to limit the free hand of police, FBI, DHS and NSA to stop, search and surveil us. If we’re talking people who make it their full-time job, then within the whole Boston area, we’re probably talking fewer than five people.
But despite these small numbers, our cause is both popular and just. Wherever we advance our proposed ordinances and by-laws, people like them by huge majorities. Cambridge and Somerville both now have surveillance oversight ordinances and bans on law enforcement use of facial recognition. Brookline, Arlington and many other places are working on similar measures. We’re already at 200,000 people just in Greater Boston who are protected in some measure from the surveillance state.
Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.
Truth is, you don’t need a majority. You need a few committed people, as few as one in ten thousand people, to start having an effect.
Extinction Rebellion began with just one courageous 15-year-old. Imagine what our small band could do with one more pair of hands…yours. Sign up here and let’s do great things together!
Last night (July 30, 2019), the Mayor and City Council of Cambridge, MA voted unanimously to move forward for committee discussion a ban on law enforcement use of facial recognition software. Mayor McGovern proposed the measure, seconded by Councillors Kelley and Siddiqui. Speakers in favor of it included Kade Crockford of the ACLU of Massachusetts, Ilan Levy and Chris Lucy. The next stages of the process will be consideration by the Public Safety Committee at a public hearing; a recommendation from the Committee to the Council; and finally, a hearing and a Council vote on adoption.
Cambridge’s draft text is less thoroughgoing than Somerville’s, and tries to leave some space for the Cambridge police still to use “inadvertent[ly] or unintentional[ly]” recei[ved]” images identified using facial recognition software, provided they did not “request or solicit the receipt, access of, or use of such information” (see the proposed text for full details here).
We’d rather see their use of such information barred entirely, because this language gives the Cambridge police a strong incentive to argue that any image they receive and use was in fact received inadvertently or unintentionally. We would also support a change that would prohibit city agencies from giving videos with faces (other than those intended for publication) to any entity that might do face recognition on them, except under a specific court order.
Meanwhile, Cambridge’s surveillance oversight ordinance, passed in December 2018, will come into effect September 10, and that should trigger the Cambridge police referring each of their current deployments of surveillance technology to the City Council for a public hearing and approval of plans governing their use. Our Cambridge volunteers will be monitoring the process to make sure that the ball doesn’t get dropped.
Other Massachusetts cities and towns where activists are moving forward with campaigns for surveillance oversight or to ban facial recognition software include Boston, Brookline, Northampton and Worcester.
To help move forward Digital Fourth’s work locally, click here!
To join our listserv discussing this and other local initiatives to protect privacy and roll back the surveillance state, click here!