Debate On Police Surveillance Technologies in D.C. is Long Overdue

“...how were [these technologies] approved for use by MPD? Do we know? Or were they approved?”

Great questions. D.C. City Councilmember Anita Bonds posed these questions during a recent debate surrounding two police technologies within the context of the emergency police reform legislation passed in July. Councilmember David Grosso introduced two amendments to that legislation, which would have temporarily banned the use of facial recognition technology and cell-site simulators (surveillance devices that mimic cell phone towers, tricking nearby cell phones in the area into transmitting their locations and identifying information) by the Metropolitan Police Department (MPD). Although the Council did not approve these amendments, their debate was quite revealing and set the stage for future discussions on surveillance technologies. The discussion showed just how little the D.C. City Council members themselves have been informed about the surveillance technologies that police are using in the District.

The City Council’s lack of familiarity with these technologies despite MPD’s use of them makes sense: the Council has never passed laws authorizing or regulating such technology in the District. And the Council is not alone in its confusion and lack of awareness; if Councilmembers don’t know what technologies are being used, how, and when, how can D.C. residents have any understanding or clarity?

For that very reason, OTI is part of a coalition of local advocates known as “Community Oversight of Surveillance - D.C.” or COS-DC, which has been urging the City Council to adopt a Community Control Over Police Surveillance law to bring transparency and oversight to surveillance technologies used in the District.

To answer the Council’s apt questions: as far as we know, MPD owns cell-site simulators acquired in 2003 and 2008, initially for antiterrorism purposes and later deployed to track cellular phones possessed by suspected fugitives, drug traffickers, and violent offenders. When it comes to facial recognition technology, in 2017 MPD implemented a facial recognition system called Morpho Face Detective (MFD) to assist detectives in identifying individuals involved with a crime. But despite ongoing use, three years later we still have no regulation of any of these technologies, and transparency efforts are scarce. Confidentiality agreements with the relevant companies or the FBI have further impeded transparency into both cell-site simulators and facial recognition technology in D.C.

And these are not isolated cases. In fact, only body-worn cameras and closed circuit television (CCTV) systems are subject to rulemaking and transparency requirements imposed by the D.C. City Council. Facial recognition technology and cell-site simulators are among a wide range of other surveillance tools that are currently used in D.C. but remain opaque and largely unchecked. For instance:

• Automated license plate recognition (ALPR) systems use optical character recognition (OCR) on video images to read license plates on motor vehicles, providing police the ability to track individuals’ movements over time. ALPRs first came to the Washington region in 2004 as a pilot program, and didn’t appear in MPD documentation until 2009 in its Annual Report, where the department reported that it had obtained over 30 ALPR systems. And although a 2010 study concluded that ALPR use in D.C.-area auto theft hot spots did not appear to reduce auto theft or other crimes, media and civil society reports show that MPD has continued increasing deployment of ALPRs.
• While MPD is more transparent in its use of gunshot locator systems, or ShotSpotters, this technology also remains unregulated in the District. ShotSpotter is acoustic technology that uses sensors to locate and alert law enforcement agencies of potential gunfire in real time—so these devices are listening at all times, and may be accompanied by cameras. MPD began implementing the ShotSpotter in 2006, initially just in the 7th Police District in Southeast using FBI grant funding, and in 2007 began expanding use of the system around the city. Thanks to an open data initiative, since February 2018 MPD has uploaded data regarding the system being used in the District, periodically publishing ShotSpotter gunshot data and maps. As of 2016, almost 300 sensors had been strategically placed throughout D.C., covering about 20 square miles (or about a third of the city), all in neighborhoods east of Rock Creek Park. As of May 30, 2018 MPD had ShotSpotter coverage in 6 of its 7 police districts.

These mass surveillance technologies have concerning First, Fourth and Fourteenth Amendment implications—posing serious threats to residents' free speech, privacy, and equal protection rights. This is especially true when such technologies are used together to track individuals over time. Notably, in 2014 MPD reported that it had completed the integration of the District’s CCTV, gunshot locator systems, ALPR cameras, and the Computer Aided Dispatch systems. Studies have repeatedly shown how facial recognition technologies can be prone to error and misidentify women and people of color at much higher rates. Also, it is well documented that cell-site simulators can sweep in sensitive, private information about large numbers of innocent bystanders, and that they can locate people’s cell phones with great precision, including inside of homes and other private spaces requiring heightened protection under the Fourth Amendment. Likewise, Courts have already found that license plate recognition systems are highly invasive, providing law enforcement with information that could “afford a basis for inferring personal characteristics” or the presence of an individual at a certain place and time. Finally, as other advocates have pointed out, gunshot detection systems can also hear and record human voices, and police in other jurisdictions have used these recordings as evidence in court despite warrantless collection (and insistence from police that the systems do not record voices).

An open, full-fledged debate on the deployment of all of these technologies in D.C. is long overdue. To his credit, Councilmember Grosso spurred a welcome and productive discussion in the Council simply by introducing his amendments in July, and the conversation was a useful start. Judiciary Chairman Charles Allen suggested a hearing process where Councilmembers can actually dig into these different technologies; this would be a wise move, and OTI and the COS-DC coalition stand ready to support this effort.

Ultimately, transparency and oversight obligations should be put in place surrounding both the acquisition and use of these surveillance technologies, and as we have argued along with our “Community Oversight of Surveillance D.C.” partners, we desperately need an oversight law to this end. D.C. residents must have input into whether, what, and how these surveillance tools are used on them.