When Santa Clara County adopted its surveillance tech ordinance in 2016, it boasted about the policy being the first in the nation. The ACLU, which worked closely with Supervisor Joe Simitian to craft the measure, held it up as a model for other jurisdictions looking to protect the public from government overreach.
The landmark law requires the county at the outset to weigh the benefits of any spy-tech against the cost—both financial and in terms of how it might infringe on privacy, civil rights and civil liberties. It also mandates written guidelines governing a technology’s application and impact before acquiring, activating or changing its use.
Analysis, advisement, approval—in that order.
In a 3-0-1 vote—with Simitian abstaining and Supervisor Dave Cortese absent—the Board of Supervisors approved a one-year contract extension with jail telephone vendor Global Tel-Link. At County Executive Jeff Smith’s behest, the revised deal includes language that grants the District Attorney’s Office a direct line to listen in on inmates.
Critics of the plan say the board of supes got it all backwards, approving ramped-up surveillance without the requisite analysis or advisement.
To Public Defender Molly O’Neal, the vote violated the county policy by green-lighting what would be a new spy-tech tool for the DA while skipping the first steps of creating a cost-benefit study and a set of bespoke rules. “The board should make no exception for this completely avoidable disregard of the surveillance ordinance,” she wrote in a memo addressed to the board. “It would create a precedent encouraging other departments to avoid compliance when acquiring new surveillance technology.”
O’Neal said the order in which the county went about this violates the “plain language” of the surveillance policy. The deal with the DA raises serious concerns about checks and balances, attorney-client privilege and due process—concerns that she believes could’ve and should’ve been addressed in public view before any vote.
DA Jeff Rosen argued otherwise.
“It’s hard for me to understand how a technology that the county has had for nine years is new technology,” Rosen said on Tuesday.
While the Global Tel-Link contract dates back to 2010, the latest amendment could be considered a new application of its monitoring service. And per county policy, novel use of existing technology still require prior study and strictures.
Yet instead of carving out language about DA access until determining whether it met that new use-or-new tech threshold, the board brushed aside uncertainty enough to approve the contract. Albeit, with a caveat: that the latest provisions would only go into effect once Rosen produces the required reports and guidelines.
The vote this week stems from a months-long dispute between the Sheriff’s Office and the DA over how easily prosecutors should listen in on inmates. After years of simply handing over call recordings whenever the DA asked for them, Sheriff Laurie Smith began requiring court orders to curb what she called a burdensome uptick in requests.
That was last fall. In January, Rosen appealed to the county executive, saying the additional paperwork for search warrants and subpoenas delayed investigations and threatened public safety. County CEO Jeff Smith, in turn, directed county procurement to add the DA to the contract, granting his office the same access as the sheriff’s.
In March, the sheriff agreed to ease up on the court-order standard as long as prosecutors agreed to not bombard her staff with reams of requests, which can each take up to a couple weeks to process. By then, the contract revision was set in motion.
By framing this as a procurement matter, however, the county exec kept the debate shrouded from public view. Inmate rights advocates, namely Silicon Valley De-Bug, only heard about the proposal last week when San Jose Inside published a story about it.
Christine Clifford, who became a criminal justice reform activist for De-Bug because she had family in jail, questioned why the county would put the vote ahead of any scrutiny over how it would affect the lives of pretrial detainees. “You have no idea to know what it is like to have no conversation with your loved one about their case knowing that any discussion may implicate them further—or you,” she told county officials.
De-Bug founder Raj Jayadev said giving the DA the access he requested would have a chilling effect on families with loved ones in jail. “That lack of connection is a problem,” he warned, “not just for the people inside but their families and loved ones at home.”
Public defenders said ideally the jails would to go back to demanding court permission for the DA’s phone recording requests. Because while attorney-client calls are protected by registering certain numbers on a do-not-record list, Assistant Public Defender Damon Silver said prosecutors still get a huge upper hand from listening to inmates talk about strategy in non-privileged calls with family, friends and confidantes.
They basically “game the system and hear how our clients are telling their families about their case and the decisions they are weighing,” he told the board. “This information has no legitimate law enforcement value, but provides a massive tactical advantage.” added:
“As a result, citizens in custody have a Hobbesian choice of seeking no outside counsel with loved ones, or having them risk being eavesdropped,” he added. “We believe that is an unfair … and deserves judicial review.”
If the DA does end up gaining the contractual right to direct access, however, officials from O’Neal’s office said they would at least want to see a clear plan in place about how to prevent ethical lapses and outright abuses. The public defender said she would also prefer more information about how the DA intends to protect privileged attorney-client calls and how it plans to prevent questionable “fishing expeditions.”
In addition to her disagreement about process, O’Neal raised several other worries and questions about the DA’s phone deal.
Like, for example, the language granting prosecutors “read only” access. Several weeks ago, O’Neal said jailers gave a demonstration of how the Global Tel-Link software works, and that she can attest there’s no transcription option. Thus, she wrote in her memo, “there is nothing to ‘read,’” and the contract may be promising something it can’t deliver.
When asked about the wording, Rosen said “read only” is more “a term of art.”
“It means we’re not the administrators of the system,” he explained, but it would allow his office to listen to and download calls on demand.
Further, O’Neal said, the county should consider how this pending policy change would affect the poor, disproportionately minority inmates whose calls are in question. People awaiting trial in jail are so often there because they can’t afford bail, she said, which puts them at a huge disadvantage compared to defendants who remain free before trial.
“We should be asking whether people who cannot afford bail should receive fewer protections simply because they are poor and incarcerated,” she wrote in her memo.
Finally, time is not of the essence, O’Neal contended. The board could have waited until all these concerns about civil liberties and constitutional rights were addressed.
Supervisor Susan Ellenberg seemed to agree, saying the DA’s access made this more of a policy discussion instead of a contract update, and should probably have been less rushed. “I’m hesitant about making a decision very quickly,” she said before casting her vote on the contract amendment anyway.
All that aside, Simitian commended his colleagues for at least having some debate about it in the first place. That is, after all, what the surveillance ordinance set out to do.
“As painful as this conversation has been, for a variety of reasons, I think it shows that this policy is working in the way it was intended to work,” he said. “Which is, we’re actually having the important policy discussion that I think we should be having, about how to keep people safe while protecting their privacy and due process.”
Historically, in this county “and every other county in the country,” Simitian added, people would make these decisions without much transparency, if any at all—and quite often as an afterthought.
“So before you go home and tell everybody what a painful meeting you sat through,” he said, “I hope you’ll say to yourselves … ‘You know what? Our Board of Supervisors grappled with some fundamental constitutional issues today that are important, and didn’t just look the other way on a routine matter of contracting and procurement.’”
Whether it appropriately dealt with this as a surveillance matter is another question.