One of the broadest pushes to reel in America’s surveillance state isn’t in Congress, the White House or a courtroom; arguably it’s in Joe Simitian’s office in California’s Santa Clara County government building.
Simitian – 63 and bespectacled – is a supervisor on the county board here. This winter he drafted a proposal for regulation that would require local law enforcement to justify each time they use any piece of surveillance technology – fake cellphone towers, computer hacks, license plate readers, GPS trackers, or anything else that helps cops track civilians.
The police aren’t his biggest fans. Simitian has spent the past year trying to slow the sheriff’s purchase of new gadgets, and describes the relationship as having a “healthy tension”.
“I am perpetually the guy at our board meetings saying, ‘I just want to be mindful of …’” he told the Guardian. “People talk about the importance of constitutional rights, but somehow this one just seems to have taken a back seat to others.”
Privacy advocates say the Santa Clara regulation would be one of the broadest anti-surveillance measures being considered anywhere in the US. As Washington remains deadlocked over how to put a leash on an ever-growing list of surveillance technology used by state and local police departments, it will probably be up to city councils and county boards to play watchdog.
That can be a daunting task for local politicians who often have little technical experience and are more focused on dangerous intersections and village planning.
Based in Silicon Valley, Simitian might be a special case. He’s been close to technology since his mother helped program computers with punched cards. At one point she worked at North American Aerospace Defense Command in Colorado Springs. He also has an interest in non-parochial issues. The bookshelf in his office includes treatises on recent foreign conflicts – With The Contras – and most of the autobiographies to come out of the Bush and Obama administrations.
If privacy is a passion, he doesn’t show it verbally. In conversation and at board meetings he speaks in a steady, even cadence. He’s also prone to unprompted anecdotes.
Like this one: just before he joined the state assembly in 2000, an employee at the local Microsoft campus asked him for his thoughts on privacy legislation. Simitian said his first response was that he thought that was something handled by Washington DC. The room laughed.
Since then, his policy efforts have donned a tin foil hat.
In 2001, he introduced what would become the first data breach disclosure law in the US where if hackers steal a company’s data, the firm has to notify affected consumers. Since then, 46 states have followed suit.
As he paged over a binder of county documents and news clippings related to privacy, Simitian acknowledged, “these issues seem a little abstract when you’re in the middle of a recession”.
But he said that someone has to remain on guard. If the electorate waits to care about privacy only after it’s gone, it’s probably too late, he said.
“This is not something that happens overnight,” Simitian said. “This is a steady drip of the erosion of the right to privacy.”
His efforts come as Congress and states have moved to regulate specific electronic surveillance methods, such as aerial drones, bulk telephone record collection, and devices that impersonate a cell tower to intercept calls.
But making laws takes a lot of time, and as new bits of spy kit continuously show up it can be hard to keep pace.
So Simitian’s draft ordinance would require the local sheriff or any county agency to get board approval if it wants to buy any new piece of surveillance technology or use an existing system in a new way. This applies to any “technological tool used, designed or primarily intended to collect … information specifically associated with, or capable of being associated with, any individual or group”.
The sheriff would then have to provide details for a public report that would explain what the technology is and how it would be used.
In Silicon Valley speak, the statute is, theoretically, future-proof.
Law enforcement also says it is overly burdensome.
“We want to be careful about tying the hands of police officers who are just trying to solve crimes and protect people,” said the Santa Clara County district attorney, Jeffrey Rosen. “It’s not as though we’re in a country where there are no laws about how law enforcement is supposed to act.”
Rosen said he has one-on-one chats with Simitian at least once a month. And he said he genuinely respects him, even if he disagrees. He did, however, note that when he talks with law enforcement counterparts in other cities, they don’t seem to have to debate with a Simitian. In an interview, the district attorney described the county supervisor as “unique”. Even in Santa Clara he can be an anomaly.
At a county board meeting last month, Simitian peppered sheriff’s department officials about their request to buy four GPS tracking devices for $3,000 – a small request given the county’s annual budget, and one that was eventually approved.
But Simitian had wanted to know what controls would be placed on who had access to data collected by the trackers. The department, which didn’t immediately respond to a request for comment, recently had several correctional officers accused of inappropriately accessing a database with inmate data.
Simitian asked if the sheriff’s department would accept data security advice from a county technology staffer. The sheriff’s department declined. “Captain, we’ve got legal liability as a county for any misuse or abuse of the system,” Simitian told the board.
“I’m just baffled there isn’t some way you’d be open to stepping up the security of the system.”