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The Appeal Podcast: American Cities’ Growing Reliance on Surveillance

With Appeal contributor Mike Hayes

In an effort to meet public demand to reduce the size of the brick and mortar prison population, some jurisdictions are doing so but reinvesting manpower and money into what activists call “digital prisons.” In addition to electronic monitoring, this increasingly involves surveillance systems that can spy on citizens in real time. One such surveillance program in New Orleans—involving an elaborate network of cameras—has run afoul of privacy and criminal reform advocates. Our guest, Appeal contributor Mike Hayes, discusses the rise of surveillance systems in dozens of American cities.

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Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember you can always follow us on Twitter and Facebook at The Appeal magazine’s main Twitter and Facebook page and as always you can rate and subscribe to us on iTunes.

To meet public demand to reduce the size of brick and mortar prison populations, some jurisdictions are doing so but reinvesting manpower and money into what activists are calling “digital prisons.” This includes electric monitoring but increasingly involves surveillance systems as well. One such surveillance program in New Orleans involving an elaborate network of cameras has run afoul of privacy and criminal justice reform advocates who claim it’s just another form of overly broad social control. Our guest. Appeal  contributor Mike Hayes, discusses the rise of surveillance systems in dozens of American cities.

[Begin Clip]

Mike Hayes: The policy description for how police use the surveillance cameras is only a few pages long and essentially says that police can utilize surveillance footage for any legitimate law enforcement purpose, which is a very broad way to state your policies and practices and sort of gives police a real free reign when it comes to how they’re using the technology.

[End Clip]

Adam: Mike, thanks so much for joining us.

Mike Hayes: Yeah, thanks for having me Adam.

Adam: So loved the piece. Super kind of underexplored or underrated component of how we talk about criminal justice reform or criminal legal reform. You begin by talking about the case of Raymond Robinson. Let’s talk about the case of Raymond Robinson as a guide to talk about the broader issue of these new surveillance systems that are emerging in various cities. Specifically in this case New Orleans. Just to kind of orient our listeners.

Mike Hayes: Uh, sure. So in late January of this year, a 26-year-old New Orleans man named Raymond Robinson was spotted on a surveillance camera by a New Orleans police officer named April Augustine, who was observing him from the city’s real time crime center, which is an office where the more than 400 surveillance cameras hanging up around the city feed the footage that they’re capturing in real time to a group of technicians and, uh, police officers who have access to the building. So Officer Augustine sees Mr. Robinson on a street corner in New Orleans, he’s getting out of his Volkswagen Beetle and she observes him pull a package from his trunk and then she sees him climb into another man’s car and then exit shortly thereafter no longer holding the package that she saw him get out of his car with. And then, uh, Mr. Robinson crosses the street, walks into a corner store down the road, and Officer Augustine believing that she may have just observed a drug transaction, alerts some nearby New Orleans police officers about what she just saw on the surveillance tape. And then they drive over to the scene and minutes later they walk Mr. Robinson out of the store in handcuffs and placed him on the curb. And in their police report, the two officers, Brandon Abadie and Darius McFarland, who were dispatched by the officer at the real time crime center to investigate this case. They note that they observed quote “vegetation” on Mr. Robinson’s pants.

Adam: Vegetation. Is that a technical term or is that just them kind of editorializing?

Mike Hayes: This is the first time actually I’ve heard that term. I read a lot of police reports and uh, I’ve never, I’ve never seen the term “vegetation” but what they believed it appeared to be was marijuana on his pants.

Adam: Right. Okay.

Mike Hayes: So from there these officers called the canine unit to search Mr. Robinson’s Volkswagen bug. And after that search happens, the police claim they found drugs inside the car and Mr. Robinson is charged with multiple counts of felony drug possession. So things weren’t looking good for him after this episode. Then around May 10th his case takes a bit of a dramatic turn when the judge in his criminal case ruled to suppress the evidence against him. His lawyer who’s with the Orleans Public Defenders Office filed a motion to suppress the evidence and in that motion the public defender claimed that the police had unlawfully search Mr. Robinson’s vehicle. The core of the argument here was that the officers never observed Mr. Robinson committing a crime so they had no right to walk into that store, take him into custody and then call the canine unit to search his car. And the judge pretty much bought that argument and in the decision to suppress the evidence, the judge wrote that in this case the police entered the store and immediately grabbed and handcuffed the defendant and escorted him outside the store and did that without reasonable suspicion that he had committed a crime. So the state opposed this ruling. They filed a couple of appeals all the way up to the highest court in the state, the State Supreme Court, but all those higher courts sided with the District Court judge in this case and said ‘you can’t base your case on this evidence we’re siding with the judge that the evidence stay suppressed.’ And at that point the Orleans district attorney was forced to drop the case against Mr. Robinson. And it stands out as an interesting example of how police in New Orleans are permitted to conduct investigations stemming from observation made by law enforcement personnel at the Real Time Crime Center who are viewing surveillance footage from these cameras.

Adam: So let’s talk about this. Let’s kind of establish the stakes, how this applies beyond this case obviously. So they are actually surveilling neighborhoods in real time. Typically when people think of surveillance cameras, they think of something you look at retroactively after there’s been some establishment of a crime. But what police are doing in New Orleans and as you mentioned increasingly in other cities, they are actually watching neighborhoods in real time sort of looking for is vaguely suspicious activity, kind of the equivalent of signature strikes in Afghanistan or Somalia where you sort of look at a pattern of behavior as opposed to per se evidence of a crime. Is that a correct generalization?

Mike Hayes: Well it certainly seems to be what happened in this case and what’s interesting is while I was reporting this story, I asked New Orleans police and the mayor’s office multiple times if the police are in fact using what they’re seeing on these cameras to initiate investigations. And the response I got was interesting. You know they told me that it’s not meant to be a proactive system, it’s more of a reactive system. The mayor’s office told me quote “daily operations at the Real Time Crime Center center around software connected to the 9-1-1 call center” and they explained it as one a call for service comes in the software automatically alerts crime center technicians, two cameras near the incident and at that point technicians are going back and looking at nearby footage and seeing if they were observing any criminal activity related to the complaint that came in.

Adam: And they can obviously go back in time and look at the footage.

Mike Hayes: Yeah. Yeah. They can real quick. It’s a very dynamic system. They can bring up a camera from that date, from that time and see what was going on on the street corner, which makes sense and that’s how this system has been presented to the public in New Orleans. And there’s been quite a few cases where that was more or less the timeline where they had a complaint or they observed activity in some other way and retroactively went back and looked at the surveillance footage as evidence. Now in the Robinson case, based on how the police themselves describe it in the police report, this wasn’t a reactive situation. This was an officer at the Real Time Crime Center peering into a screen, watching the surveillance camera, who thought that she saw something and chose to initiate the investigation and I should add that in the ruling to suppress the evidence in this case, which is what ultimately led to the charges being dropped, the judge does note that it seemed to the judge that the police based their investigation on what was being observed at the Real Time Crime Center as opposed to some other observation that was made or some other complaint that was made.

Adam: So the Real Time Crime Center was done in concert with the Office of Homeland Security, correct?

Mike Hayes: That is correct. It is not run by the New Orleans police per se. It is under the jurisdiction of Homeland Security and that’s a really important distinction.

Adam: Yeah. This is similar to these fusion centers which emerged in the sort of late 2000s. Now we have this, again, this kind of quasi militarization of domestic policing with Homeland Security being involved. I assume this, there is some fig leaf about terrorism, but really of course it’s just ends up being used for low level crime. Now in sort of criminal justice reform circles, there is an emerging debate going on about are we just shifting from brick and mortar prisons to what activists called “digital prisons?” Which are a combination of surveillance and electronic monitoring, which seems to kind of be playing out in New Orleans. You note that the physical jail population quote “fell from nearly 4,000 in 2009 to approximately 1,100 in May of this year—but the city has been making major investments in surveillance and policing.” Can we talk about this trend where you sort of say, okay, we’re taking people out of county lockup but we’re increasing things. You don’t have to comment on electric monitoring, but the other side of it, this kind of surveillance, this reliance on surveillance and more police and whether or not you sort of see this as being just displacement of control versus, uh, a kinder, gentler machine gun hand. I know the ACLU has raised major objections to this. Can we talk about the implications of this broader trend where we sort of give the impression it’s reform, but it’s just another form of monitoring people?

Mike Hayes: Yeah, sure, so I’m glad that you mentioned that this is a trend. It’s definitely not just New Orleans, cities all over the country are spending millions to expand their use of cool new tools like CCTV surveillance cameras, which in some cases includes facial recognition technology as well. The startling thing to me about these decisions by law enforcement to expand the use of technologies is that the tech is far outpacing the policies and oversight of these new tools. For instance, sticking with New Orleans, the policy description for how police use the surveillance cameras is only a few pages long and essentially says that police can utilize surveillance footage for any legitimate law enforcement purpose, which is a very broad way to state your policies and practices and sort of gives police a real free reign when it comes to how they’re using the technology. And because of this freedom that police have been given when it comes to how to use this new technology, what we’re starting to see is situations come up where I think all of the stakeholders are not totally on the same page about how the surveillance is being used. Again, to go back to the Robinson case, you know, I asked the different stakeholders involved in this surveillance expansion directly if police are using cameras to initiate investigations and the mayor’s office told me again, ‘it’s tied to the 9-1-1 call center when a call for service comes in, we alert the crime center technicians and they check if there’s a camera nearby’ and they also add that police and other public safety officials can access historical footage for investigations as well. But as the judge observed in the Robinson case, it wasn’t a complaint or a 9-1-1 call that triggered the investigation in the Robinson case. NOPD stated in their own police report that an officer was watching him via the feed from an nearby surveillance camera and that is why they decided to alert some officers nearby who follow them into the store and arrested him. So going back to your question about how this trend of using more digital tools in law enforcement is affecting the reform movement, what I’m finding as I do more reporting on this topic of the future of policing, is that what’s happening with emerging technology in some ways is happening outside of that debate around reform. Again, take New Orleans for example, they’re under a federal consent decree, which means an independent monitor has been appointed and this group is being given the chance to review a wide range of policies and practices of the police departments. So they’re gaining access to, for example, a lot of data on how NOPD addresses use of force incidents. However, the expansion of surveillance in the city is not a part of this because technically the Real Time Crime Center, where the feeds from all these cameras are housed and viewed, is run by Homeland Security. So the police monitor doesn’t have jurisdiction over the surveillance cameras.

Adam: How convenient.

Mike Hayes: Right. So it can’t apply the same oversight that it can to other areas of the police department.

Adam: Right. So you note that quote:

The ACLU estimates that there are 50 million surveillance cameras in the United States and several other cities around the country have undertaken projects similar to the surveillance system in New Orleans. Last month, Detroit announced that it would spend more than $10 million to install 500 new cameras. The Chicago Police Department has developed several video surveillance applications, including software [quote] ‘already able to process and provide notification functionalities such as … face capture and match.’”

So we have facial recognition. Obviously San Francisco recently banned facial recognition. Other cities are thinking about following it. This all has a very dystopian vibe to it. Technology really seems to be accelerating at a pace far greater than that which we’re having a public debate. I want to talk about the racial component to this. All these cities I just listed have large African American populations. It seems like perhaps — dare I venture to say — one reason we’re not having a public debate is that the populations being targeted are largely poor and African American. To what extent is there a racial component to this?

Mike Hayes: That’s a really good question and I think as more concerned people, reporters, public defenders, community groups, etcetera keep asking for more information we may get better answers to the racial component of all this in the hopefully not so distant future. In New Orleans we may have a good idea in fact, sooner rather than later. In my story, I write about this lawsuit that came about this year by an Orleans public defender, the ACLU and the Southern Poverty Law Center after another criminal case involving some problematic surveillance fell apart. In this episode and a public defender by the name of Laura Bixby filed a Freedom of Information Act request seeking a map of all the public surveillance cameras in the city, which was purely trying to figure out where all these cameras live. And the city denied that request stating exception in FOIA law, claiming that they didn’t have to turn over that information because cameras are used in terrorism prevention. So after she was denied, the ACLU and the SPLC filed a lawsuit on her behalf and they won. The judge that ruled in Bixby and the advocacy groups favor wrote that the city provided quote “no evidence” that the quote “publicly visible cameras are used in the prevention of terrorism.” And added that the New Orleans Office of Homeland Security, which runs the Real Time Crime Center, “is not one of the investigatory or law enforcement agencies covered” by the terrorism exception and went on to write that the New Orleans Office of Homeland Security “is not a police department. It neither investigates nor prosecutes crimes.” So they got shot down on that terrorism exception. The city is appealing this decision, but if the original ruling holds up, the groups that sued may soon have at their disposal a map of where all these cameras are located. So from that we should be able to drill down and see what neighborhoods in New Orleans are more surveilled than others. And one thing I’ll be particularly interested to see is if a larger percentage of cameras have been installed in neighborhoods where a larger population of residents are minorities.

Adam: You can throw “terrorism” at anything and that automatically shuts down transparency, as I’m sure you know in your job.

Mike Hayes: Not my first time I’ve had the terrorist exception come up in a FOIA case.

Adam: So. There’s a lot of talk when it comes to mass surveillance about parallel construction. There was an infamous case in 2013 about the DEA was using NSA mass surveillance illegally — depending who you ask but most people agreed it was illegal — to find information on drug cases and then going back and basically reverse engineering an evidentiary basis for the initial investigation sort of knowing what they know. So kind of hiding their trail, if you will, or masking their trail. To what extent are there concerns about parallel construction using these surveillance systems where, take for example the Robinson case we talked about at the opening of the show, it seems like their problem was that they were too honest. They sort of acknowledged that they were just arbitrarily surveilling a neighborhood, whereas they could have arbitrarily surveilled the neighborhood and then maybe sent a police officer to the scene and then you know, he could have claimed he saw something or smell something. To what extent do you think that surveillance systems really create a risk about parallel construction, which most people, most public defenders and most activists and most reporters, would not have any way of really knowing took place?

Mike Hayes: Yeah, privacy advocates are obviously very concerned about this. Again, going back to what I was saying about a lack of oversight of how law enforcement are using these tools. Uh, privacy advocates are keenly aware of this fact and are pushing for law enforcement to be more straightforward in explaining their approach with new technology. Take the case that sparked the lawsuit for the map of the surveillance cameras in New Orleans for example. Here you see a situation where the ACLU wants to get more involved because they believe that more needs to be hashed out in terms of what’s being publicly disclosed about how police are utilizing surveillance cameras. What’s interesting here when you bring up this concept of parallel construction in the case that proceeded that lawsuit by the Orleans Public Defenders Office, the case of this man, Clint Carter, earlier this year, a local New Orleans media outlet The Lens reported that another New Orleans resident by the name of Clint Carter, uh, was arrested and charged after police said they observed him making a quote “hand-to-hand” drug transaction. And in that police report, the department said an undercover officer observed Carter throughout the day because of complaints of drug activity in the area. The report says the officer saw Carter reach into his pants, pull out an object and hand it to another person. But when police pulled up to the scene and arrested Carter, they did not find any drugs. So Laura Bixby, Carter’s attorney from the Orleans Public Defenders Office told The Lens that police were quote, “very unclear” about whether the undercover officer “was actually on the scene or whether he was at the Real Time Crime Center watching the cameras, or somewhere else entirely.” And at trial in that case, the state never called this undercover officer to testify. Prosecutors did however, turnover surveillance footage that showed a camera pointed directly at Carter and zooming in on him during the incident. Carter was ultimately acquitted, but his attorney told me that he actually remains in prison on a parole violation stemming from this arrest because brass knuckles were found on him. So that’s an example, unlike the Robinson case, where it’s pretty clear cut in the narrative of the police report that the investigation stemmed and was initiated from what was being observed on the surveillance camera, here you have some unclear language about an undercover officer who ultimately doesn’t even testify at trial and the only evidence you have is surveillance footage. So I think this speaks to the potential for some parallel construction to occur in these cases.

Adam: Well, fascinating stuff. Thank you so much for coming on. I think we’ll stop there. To use a really well worn cliche, we will watch this space because I think that, uh, it’s, again, all this sort of emerging technological and legal issues seem like they’re still being sorted out. So I really appreciate you staying on this and I look forward to future writing on this. Thank you so much for coming on.

Mike Hayes: Thanks Adam. Thanks for having me.

Adam: Thanks to our guest Mike Hayes. This has been The Appeal podcast. Remember, you can always follow us on Twitter and Facebook at The Appeal magazine’s main Twitter and Facebook pages and as always, you can rate and subscribe to us on iTunes. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.