Civil Liberties

From Ferguson to NSA, News Events Spark Flurry of California Bills

A civil-liberties rebound in state Capitol?

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Since its inception, our nation has struggled to find the right balance between protecting the rights of individualsour civil libertiesand ensuring that government has the tools to protect the public's safety and security. Since the terrorist attacks on 9/11, that pendulum has swung sharply and understandably in the security direction.

Such a tilt has not only been obvious in national policymaking, but at the state level, where legislators are attuned to public attitudes and to the demands of special interests.

Police unions, for instance, are among the most powerful interest groups in California and few state legislators from either party want to endure their wrath during campaign season.

There are signs, however, the pendulum has hit its apex and is starting to shift direction. Because of the riots and protests over police killings in Ferguson, Mo., Baltimore and New York City, policing issues have become a hot topic in the Legislature, with more than 20 bills introduced this year that address police use-of-force issues.

The term "civil liberties" is a broad one that includes not only the question of when police should use deadly force—but matters of surveillance and privacy, and anything dealing with people's ability to exercise their basic freedoms of speech and association free from government overreach. Other events—such as data breaches and National Security Agency spying—have propelled such matters into the forefront, also.

Restoring the balance

"Communities are now alive with these issues and there needs to be a reset on the balance of power between the police and the national-security infrastructure and individual rights and it's just been so out of balance since 9/11," said Nicole Ozer, an attorney with the American Civil Liberties Union of California. Her group is backing a major privacy bill as well as model local ordinances requiring public debates before cities pass surveillance laws.

Police organizations agree that there's room for improving police accountability, but caution against going too far in the other direction. They welcome the discussion, but worry about excessive paperwork requirements mandated by some of the bills, and also raise some unresolved concerns about privacy issues.

"Our concern is it's maybe an overreach, it's maybe moving too fast and too soon," said Chula Vista Police Chief David Bejarano, head of theCalifornia Police Chiefs Association. For instance, he favors the use of body cameras, which have significantly reduced allegations over excessive force. But he wants any new laws to give local agencies the discretion to set their own policies. If the laws are too restrictive, he fears they will discourage police from embracing these cameras.

"We all have the same goals, even though there's a little difference of opinion on how we get there," Bejarano added. But he welcomes the discussion given that it's been nearly a half century since U.S. policymakers have taken a comprehensive look at the nation's approaches toward policing.

Likewise, Assemblyman Tom Lackey, a Palmdale Republican who spent 22 years with the California Highway Patrol, agrees the Legislature is having a timely discussion. "We've had a few instances that have really gotten a lot of attention that have hurt law enforcement's image and we need to do whatever we can to build that back—and some of these mitigation measures are possible pathways of accomplishing that."

There's been fevered activity at the Capitol on many fronts. Legislators have authored bills that restrict the use of drones, protect against the misuse of DNA samples and deal with public and private data breaches.

They also have authored bills to ensure the right of individuals to make cellphone recordings of police, restrict district attorneys' use of secret grand juries and halt acquisition of military equipment by local police.

Another one would restrict police agencies' use of "civil asset forfeiture"—the seizure of property from people who have never been convicted or even charged with a crime.

Assembly Speaker Toni Atkins, D-San Diego, even created a new Committee on Privacy and Consumer Protection to handle a panoply of privacy and individual liberties issues in one place—rather than as a hodgepodge manner in a variety of Assembly committees.

It's a small world

"We've taken a very big world with a lot of room and made it a whole lot smaller, where people really can keep tabs on each other," said the committee's philosophically minded chairman, Assemblyman Mike Gatto, D-Burbank. In other words, new technologies make it extremely easy for everyone—including the government—to monitor our behavior.

He lumps privacy-oriented legislation into three categories: "One of them is the need to protect citizens from … government intrusions on privacy. The other is the need to protect citizens from corporate intrusions of privacy. The third is the need to protect citizens from fellow citizens intruding on their privacy." The state is doing well on the third, not so well on the second and terribly on the first, he said. The fate of his health-privacy bill (SB 170), which would have restricted the government's use of DNA-related data, illustrates his point.

Newborn DNA screening is a public-health success story, but he is troubled about what happens after the screening takes place. In California, the state owns the samples and doesn't get the permission of parents before it sells the data to private companies for testing. Those samples, he said, can fall into the wrong hands and may—in a future scenario—be misused to discriminate against a person based on HIV status or a genetic predisposition toward, say, violence. Despite the dystopian imagery, this is a serious concern given rapid advancement of DNA technologies.

The bill, which would have required the state to notify parents that it keeps and tests DNA samples, has now been gutted. "Some of my colleagues… didn't feel that citizens could handle the truth and they actually did not want to disclose to the public that the state of California is taking their children's blood and DNA, storing it forever and leasing and selling it to researchers to be experimented on," he added.

"There are more (civil-libertarian) proposals, but a) Do they move the ball forward meaningfully and b) What are their fate?"

He remains skeptical of any long-term progress, especially given both parties' tilt to the political center—and civil-liberties concerns usually come from further reaches of left and right.

Policing the police

One noteworthy measure that is moving forward makes clear in the legal code the public has the right to videotape or photograph police officers while they are doing their jobs in a public place. Sometimes California police officers confiscate the cameras of onlookers and charge them with obstruction of justice. SB 411, by Sen. Ricardo Lara, D-Bell Gardens, says such photography "in and of itself" is not obstruction. A person can still be charged for actually interfering with an officer, but not just for recording the officer's activities.

But other police-reform bills are struggling to survive—or stay true to their original intent. Assemblywoman Shirley Weber, D-San Diego, introduced AB 66, which includes some reporting requirements for body cameras but mainly "would prohibit law-enforcement officers involved in serious use-of-force incidents that result in serious bodily injury or death from viewing the video until they have filed an initial report."

That issue became a huge stumbling block in the committee. Civil-libertarian groups worry that police accused of wrongdoing are given a chance—not available to the public—to align their reports with what happened. It makes it hard to know what they were thinking at the time of the incident. But police officers fear they will be punished for simple lapses of memory if they don't get to see the video first.

Weber agreed to a compromise that would allow the watching of the video to be a local decision. "We came back and for whatever reason something went here, something went there, one member went south, boom, boom, boom, bang, bang, bang and what we saw in the end that came out was not what we thought we agreed upon," she said. In her view, the bill now would do more harm than good because it was reworked to give officers the right to first view the video—the opposite of what she had intended.

Lackey said he couldn't support it in its original form: "Why wouldn't we afford law enforcement, who has a responsibility for documenting the event, full access to all information that would refresh their memory and make them build the trust and replace some ill-conceived perception that they are trying to trick somebody or trying to exaggerate?"

But others saw the conundrum. "There are pluses and minuses to reviewing the tape on the part of the officer," said Joe Vargas, a retired Anaheim Police Department captain, who now is a consultant for law-enforcement agencies. "On the one hand, he'll probably write a heck of a lot more accurate report. On the other hand, it also contaminates his impression of what he thought he saw as opposed to what he's actually seen."

Weber's bill requiring the state Department of Justice to compile racial data on police stops is moving forward—but legislation requiring agencies to compile an expanded list of data on use-of-force incidents was held in committee.

"We're into this battle that continues," Weber added. "You've got a lot of chatter now but I'm not sure how far we're going to move with it. It will be interesting to see what bills come out and what they look like in their final form. That will be the critical issue."

Electronic privacy

Perhaps the most far-reaching civil-liberties bill moving forward this session is the California Electronic Privacy Act, which would require police officers to get a warrant or wiretap order to access electronic communications from companies such as Facebook or Google. It was introduced by one of the Senate's most liberal members, Sen. Mark Leno, D-San Francisco, and one of its most conservative members, Sen. Joel Anderson, R-El Cajon.

In the past, it "die(d) on the vine in the face of opposition from law enforcement, which for some reason finds it wholly objectionable that they'd be forced to get a warrant before demanding personal information," said the ACLU's Will Matthews. "But what makes this effort so distinct… is that every major player in Silicon Valley is lined up in favor of this bill.… These companies know that it is imperative to their bottom line that their customers feel secure in knowing that their electronic information is secure and protected."

The big question is whether Gov. Jerry Brown—who is a mixed bag on such civil-liberties legislation—will agree. "The problem is eyeing the needle," Anderson told me. "We always need to balance civil liberties against proposed security.… We need to stop terrorism but not at the cost of our liberties."

He believes SB 178 strikes the right balance, but the California State Sheriff's Association argues the bill would imperil legitimate investigations—and includes "burdensome and unnecessary reporting requirements."

The privacy conundrum

Some argue that for all its flurry of activity, the Legislature isn't tackling the tough issues that need to be resolved.

"The body camera is a technology whose time has come," said Vargas, the retired Anaheim police captain. But he wonders why the state's open-records laws, developed mainly in the 1970s, haven't kept pace with the rapidly advancing technologies. That's an area he believes state legislators need to act—and provide some local guidance and a modern update.

Vargas uses the hypothetical example of a city councilmember, who gets in a drunken argument in public and a police officer is called and the body camera records the incident. Should that be released to the public? How about when a police officer pulls a driver over for a routine stop and records the person doing something potentially embarrassing? What are the standards? Who gets to see what and when?

Some of these bills assert such a strong privacy protection they "make it more difficult for the public to access the data and oversee the government," said Jim Ewert, general counsel for the California Newspaper Publishers Association. It would be ironic, he notes, if bills designed to protect the civil liberties of the public end up shrouding more government behavior in secrecy. Yet he's not the only one to see a changing debate.

Changing awareness

In 2014, then-Sen. Ted Lieu, D-Torrance, co-authored a bill (with Republican Sen. Anderson) that would have prohibited the state government from cooperating with the National Security Agency in its efforts to collect electronic information or metadata from anyone in California. The governor signed this largely symbolic law, but vetoed another more substantive bill by Lieu and Anderson to place limits on police use of drones.

Since being elected to Congress last year, Lieu has been a steady voice against the NSA's warrantless record collection activities, but it hasn't always been that way—a point he readily acknowledges. "I've always believed that the most important duty of any legislator is to defend and protect the Constitution," Lieu said. "I just wasn't aware of all these violations of our constitutional rights by our federal government and in some cases state and local governments. I think part of it was just awareness."

The leads to the big question: Are we seeing a long-term shift in awareness or just a passing fad? As the news cycle changes, Ewert fears legislators will move on to other things. "Reacting to headlines is not always the greatest way to develop public policy," he said. "It takes a great deal of time to work through these issues."

Likewise, Chapman University law professor John Eastman sees the legislative push as being "a lot more political than civil-liberties driven." In his view, it's more about politicians capitalizing on national issues for a coming election than anything else.

But whatever the political realities or motives of legislators, there's no question this legislative session has resulted in the introduction of many bills that at least try to readjust the balance between liberty and security—something Sacramento observers haven't seen for many years. Despite disagreements over many of the bills' details, civil libertarians and police advocates agree that this is a generally good thing.

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51 responses to “From Ferguson to NSA, News Events Spark Flurry of California Bills

  1. If there’s a State that can do this incorrectly, California is most assuredly at the top of that list.

  2. The California legislature also passed a “right to die” bill today, one that is similar to Oregon’s. Why physician assisted suicide continues to be a crime is beyond me.

    1. It’s destruction of State property.

      1. Ha!

        It’s just that it is justified on “respect life” grounds, generally. How are you respecting life if you’re literally forcing somebody with a terminal and eventually extremely painful illness to live through that pain? And that’s not even getting into the individual rights’ aspect of it.

        1. Boethius had some thoughts on that, but it should still be up to the individual.

      2. That was our old Navy joke about getting a sunburn. Some things never change.

    2. You want to die, you’ve just been suppressing the urge.

      /futurepolicejustification

    3. Cops don’t want doctors honing in on their turf?

  3. There’s been fevered activity at the Capitol on many fronts. Legislators have authored bills that restrict the use of drones, protect against the misuse of DNA samples and deal with public and private data breaches.

    Ah, yes, by “use of drones” you mean kids who buy a tarantula quad copter and stick a Mobius 808 camera on it won’t be able to fly it around their neighborhood.

    Hooray for civil liberties and staying back the pimp hand of the state!

    1. In context of this article, I would hope that means restrictions on police surveillance use (because you have no expectation of privacy, blah blah blah). But I’m also a cynic so your interpretation is fine.

      1. Read the article Greenhut linked to.

        No, I already did so you didn’t have to:

        But the downsides are obvious, too. In late January, a two-foot-long drone crashed on the White House grounds. It was a private drone reportedly operated by a drunken, off-duty government employee, but the issue raised security concerns. An even greater concern involves privacy matters, especially if they become ubiquitous.

        “If a drone invades your private property, it is an extension of the person sending the drone,” said Sen. Hannah-Beth Jackson, in an interview. The Santa Barbara Democrat has authored SB 142, which would make the drone operator liable for trespassing if the operator didn’t have permission from the property owner and the drone was flying below navigable airspace.

        Her approach seems reasonable. Why should I have to put up with a noisy and potentially dangerous drone buzzing my house? They can be equipped with video cameras, so it’s creepy that someone can eavesdrop on my family. Last year, however, Gov. Jerry Brown signed a law that bans picture-taking by trespassing drones.

        Yeah, the government is pissed that drones might be spying on IT! A private drone landed… on the King’s LAWN!!! SOMETHING MUST BE DONE!

        1. The tiniest bit of danger or violation of privacy for the aristocrats means any restrictions they want in order to feel comfortable, Paul. You should know this by now.

          1. That’s why I just yesterday purchased my tarantula quad with a mobius camera. Because I fear this shit’s going to be illegal soon.

        2. Psh. Why would I do that when you can do it for me?

          (Thanks.)

      2. In fact, the laws SPECIFICALLY EXCLUDE government spying with drones:

        The other part fears privacy invasions by individuals and police agencies. The governor vetoed a bill last year that placed limits on law enforcement’s use of the technology ? but similar measures are being revived this year.

    2. If the legislature is passing bills, you can be assured it’s not to increase freedom or liberty. And any that incidentally do are almost guaranteed to have some crony shit slipped in there as their real raison d’etre.

    3. Put a paint gun on hobby drone and you could knock out all the cameras in a town at a fraction of the cost of putting them up.

      You’d be surprised how many fiefdoms have a bunker full of wide-screen TVs connected to street cameras. On bright side these IT geeks mostly like to build this up as a payed hobby and no one actually watches the video.

  4. In other words, new technologies make it extremely easy for everyone?including the government?to monitor our behavior.

    Hey, thanks Mike Gatto for, you know, throwing in that “Oh yeah, and I guess the government, too” afterthought in your quote abour the utter destruction of the fourth amendment in this country.

    Yeah, yeah, I know the government might send in armed agents of the state to kill my dog and check if the gas meter is working… but… but Safeway tracks my purchases so the Koch brothers can increase their dominion over the Galaxy!

    Yeah, fuck you, California. I’m not impressed.

  5. Doesn’t matter how many laws they write to restrain the police. As long as the police face no penalty for breaking the law, then they’re going to ignore it.

    1. THIS. A LOT.

      We need another law? We have plenty of laws. What’s lacking is a universally applied consequence for breaking them.

  6. How bout a happy compromise? Coercing citizens without the use of force.

    1. You’re taking all the fun out of government.

  7. “It would be ironic, he notes, if bills designed to protect the civil liberties of the public end up shrouding more government behavior in secrecy.”

    Ironic? I would have used a word closer to “predictable,” “unsurprising,” “par-for-the-course,” or some such.

    1. Their “ironic” comes from the same dictionary as CNBC’s “unexpected”.

  8. I won’t be around for the PM Links so:

    Mattress Girl’s New ‘Art’ Project

    It is not worth dwelling at length on the continued exploits of Emma Sulkowicz, a.k.a. “Mattress Girl,” but a word is in order about her new “art” project ? an eight-minute video of Sulkowicz and an unknown male actor engaging in seemingly consensual sex, during which the man becomes violent and forces himself upon Sulkowicz.

    I’m not linking to her site directly – so SFW

    1. Do not watch this video if your motives would upset me, my desires are unclear to you, or my nuances are indecipherable. . . .

      If you watch this video without my consent, then I hope you reflect on your reasons for objectifying me and participating in my rape, for, in that case, you were the one who couldn’t resist the urge to make Ceci N’est Pas Un Viol about what you wanted to make it about: rape. . . .

      Do you refuse to see me as either a human being or a victim? If so, why? Is it to deny me agency and thus further victimize me? If so, what do you think of the fact that you owe your ability to do so to me, since I’m the one who took a risk and made myself vulnerable in the first place?

      1. If she is the sort of person I think she is, then she is one of those attention seekers who keeps doing the scary, chaotic things that get the people she cares about to give her the attention and support she craves until one day the scary, chaotic stuff gets her into trouble even they can’t bail her out of.

        I stand by my prediction:

        In two decades, Ms. Sulkowicz will either be in dead from suicide or in jail. And the news article will detail a life going downhill, drug alcohol abuse, petty crimes and periods of homelessness.

        And while some deranged people will try to blame Nungesser for shattering her psyche, the people who truly know her will know deep in their hearts that she was broken well before she arrived at Columbia, and instead of helping her, the people ‘supporting her in her struggle’ were in fact cynically using her and cast her aside the moment she became worthless to them.

        and

        It would not surprise me if she were the victim of childhood sexual abuse or the sibling of someone who was abused.

        1. I agree 100% with your psychological assessment, but I believe that she has a secure future in academia. It may be as a creative arts workshop instructor at some JC, but she’ll always have an income stream.

          Plus, her parents are affluent psychiatrists. The “periods of homelessness” would be “periods spent sulking in her childhood bedroom at her parents’ house.”

          But yes, the “where are they now” 20 years from now is unlikely to be a pretty story.

      2. If you watch this video without my consent, then I hope you reflect on your reasons for objectifying me and participating in my rape, for, in that case, you were the one who couldn’t resist the urge to make Ceci N’est Pas Un Viol about what you wanted to make it about: rape. . . .

        Do you refuse to see me as either a human being or a victim? If so, why? Is it to deny me agency and thus further victimize me? If so, what do you think of the fact that you owe your ability to do so to me, since I’m the one who took a risk and made myself vulnerable in the first place?

        This is utterly incoherent. It reads like a faulty machine failing the Turing Test.

        1. That you find her nuance indecipherable is your problem, not hers.

          1. She properly refused to enact his labor by writing more clearly.

      3. Do not watch this video if your motives would upset me, my desires are unclear to you, or my nuances are indecipherable. . . .

        If you watch this video without my consent, then I hope you reflect on your reasons for objectifying me and participating in my rape,

        OFFS

        “Affirmative consent” to watch a video? With an ideological purity test to get a ticket?

    2. So it’s a movie version of the Bernie Sanders literature?

    3. This was posted late last night so most missed it. It was already ‘bated to by the night-owl Hit & Runners.

      1. thought it would be – ah well – hard to beat the crowd of furious ‘baters.

        1. To tell you the truth, I think the whole concept was so bizarre, that even for Hit & Run, it left everyone with a kind of a ‘huh’ feeling. Considering that anything SJW and sex related usually creates a firestorm of comments.

      2. Sulky doesn’t really do it for me. She is cute but evil and insane; the perfect example of a useful idiot.

        1. Not even Crusty would, I’d wager. That is some seriously high-maintenance batshit, right there. Exquisite in its purity, it’s well-nigh taking batshit to the level of high art.

          I mean, just…. she’s…. wow.

          1. I would. But I have a long history of being attracted to the damaged and unstable.

            *looks at picture of Jodi Arias*
            Sigh.

            1. Florida Man|6.5.15 @ 4:00PM|#
              “I would. But I have a long history of being attracted to the damaged and unstable.”

              Maybe.
              At 1:30. If the rest of the seats at the bar were empty. And I knew how to get out in the morning without leaving a limb.

    4. And to think that less than a year ago this person was held up by sitting Congressmen, Senators, SJW’s and Feminists everywhere as a hero to be looked up to.

      1. You may still look up to her.

        If you have her permission.

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