ACLU-State of Surveillance

Published on May 2016 | Categories: Documents | Downloads: 30 | Comments: 0 | Views: 342
of 36
Download PDF   Embed   Report

outline for northern california surveillance laws

Comments

Content


THE STATE OF SURVEILLANCE.
Government Monitoring
of Political Activity in
Northern & Central California
A Report by the ACLU of Northern California
Written by Mark Schlosberg, Police Practices Policy Director
July ?00c
TABLE OF CONTENTS
Executive Summary.............................I
Part I. Government Surveillance and Privacy Rights.
A Brief History...............................·
Part II. Dissent in Times of Crisis. September II, ?00I
and the Removal of Regulations................S
Part III. Blurring Dissent and Terrorism. Surveillance
by State and Federal Agencies.................c
Part IV. Surveillance Abuses by Local Agencies
in Northern and Central California...........I?
Part V. California Law and the Lack of Surveillance
Regulation...................................?0
Part VI. Recommended Reforms for Law Enforcement
Surveillance Activities in California........?·
Part VII. Conclusion...................................?S
Appendix A. Best Practices Guidelines for First Amendment
Activities...................................?c
End Notes....................................·I
Researchers: Julie Mercer, Kimberly Nobella, Shyla Batliwalla, Aimee Logan
Designer: Gigi Pandian
Editor: Suzanne Samuel
Tis report is also available on the web: www.aclunc.org/surveillance_report
I The State of Surveillance
EXECUTIVE SUMMARY
D
uring one week in late December 2005, Americans learned
about three separate federal government surveillance pro-
grams, raising great concern about civil liberties in this country.
We heard for the nrst time that the President had authorized the
National Security Administration (NSA) to monitor thousands
of phone conversations, without court approval as required by
law.
1
We learned of a massive Pentagon anti-terrorism database
that contained information on several anti-war demonstrations.
2

And we saw new evidence that the FBI is collecting information
on activist organizations across the country.
3
A few months later
we learned that the NSA was collecting private citizens' phone
records.
4
Tese revelations reignited the national debate over govern-
ment surveillance of political activity, a debate reminiscent of
one from nearly four decades ago. Te 1960s and '70s was an
era of extensive political activity-and of wide-ranging clandes-
tine government surveillance. During that period, and in the
revelations of surveillance that followed in subsequent years, we
learned that protest is an activity to be protected rather than
feared. As a nation, the experience of dissent and surveillance of
the 1960s and '70s taught us many lessons. Today, some in law
enforcement appear to be in danger of forgetting them.
Recent political events have led to renewed levels of political
activity, with law enforcement often inappropriately connating
legitimate political dissent with terrorism. Law enforcement at
all levels-federal, state, and local-has received extensive fund-
ing for expanded intelligence activities, including surveillance.
With inadequate regulation and an insumcient understanding of
the protections anorded to protest and dissent, law enforcement
has overstepped its bounds in monitoring political activity.
While the public debate has largely focused on spying at the
federal level, information has been mounting about surveillance
abuses by state and local law enforcement agencies. From lo-
cal participation in federal FBI programs, to the state Omce of
Homeland Security, to county sherins, California law enforce-
ment has been gathering information on individuals and organi-
zations engaged in political activity. Tey have done so without
adequate regulation or sumcient understanding of the ways in
which this activity is protected by U.S. and California law.
Tis report documents surveillance of political activity in
Northern and Central California. It tells the stories of individu-
als and organizations that have been targets of surveillance, ana-
lyzes current law enforcement policy, and recommends specinc
policy reforms to safeguard Californians' rights to privacy and
free speech.
Since September 11, 2001, the federal government has spent
over $500 million building state and local police intelligence
functions nationwide. In California, intelligence functions have
grown dramatically at both the state and local level. California
now has a central anti-terrorism center and plans to develop four
regional intelligence clearinghouses.
5
Police and sherin's depart-
ments throughout the state have developed their own homeland
security, anti-terrorism, and intelligence units. Over 20 Califor-
nia police departments have joined an FBI Joint Terrorism Task
Force.
6
Te American Civil Liberties Union of Northern California
(ACLU-NC) has consistently cautioned against the dangers of
expanding the surveillance infrastructure without sumcient reg-
ulation to protect civil liberties and guard against abuses. Cali-
fornia's constitutional right to privacy prohibits law enforcement
from monitoring or compiling information on individuals or
organizations engaged in activity protected by the First Amend-
ment unless there is reasonable suspicion of a crime. Te inci-
dents of law enforcement surveillance detailed in this report raise
serious constitutional concerns. Tese law enforcement abuses
and the lack of regulation that allows them to occur threaten our
cherished principles of free speech, free association, and privacy.
As early as November 2001, the ACLU-NC urged California
Attorney General Bill Lockyer to adopt strict guidelines regulat-
ing the California Anti-Terrorism Information Center.
7
In 2002,
we urged Northern and Central California law enforcement
agencies to institute regulations protecting privacy rights in the
context of the war on terrorism.
8
As this report documents, in just the last nve years, multiple
peaceful political organizations have been targeted for monitor-
ing or innltration by law enforcement agencies in Northern and
Central California. Tactics have ranged from compiling and dis-
seminating information about planned protest activities to un-
dercover omcers covertly posing as organization members, even
leaders, to gather information or innuence decisions.
Political gatherings of all types-meetings, vigils, demonstra-
tions, and speeches-have been targeted by surveillance opera-
tions. Entirely law-abiding protesters have been videotaped with-
out cause or suspicion. Political Web sites have been monitored.
Demonstrations have been called crime scenes. Undercover om-
cers have lied to protect their covert status. Law enforcement has
equated protest with terrorism. State agencies have instructed
local omcials to monitor and report on citizens' peaceful, lawful
participation in the democratic process.
Tese are not isolated incidents. While the character and scope
of surveillance may not be the same as that of the 1960s, these
incidents represent a disturbing trend in law enforcement that is
fueled by greater funding, a national climate of fear, and a trou-
bling lack of regulation.
The State of Surveillance ?
If history is any guide, the stories documented in this report
represent only the tip of the iceberg. Te expansive surveil-
lance programs of the 1960s and '70s-monitoring hundreds
of thousands of Americans, prying into the personal lives of
civil rights leaders like Martin Luther King, Jr., and attempting
to disrupt the civil rights movement and other groups creating
social change-were not fully revealed until years after they
occurred. In fact, we continue to learn more about that surveil-
lance to this day.
Surveillance activities are, by nature, secret. Te subjects of
surveillance and the general public learn about these incidents
largely though happenstance, as was the case with the stories
documented in this report: reading an innltrator's obituary in
the newspaper, a police chief bragging about his use of under-
cover omcers, documents obtained in litigation over a related in-
cident, an inadvertent response to a Public Records Act request.
Tus, the number of documented incidents and their paper trail
are all the more signincant.
While surveillance has increased, few California law enforce-
ment agencies have any policies, let alone clear and comprehen-
sive regulations, protecting the privacy and free speech rights of
those engaging in lawful protest from government surveillance.
In September 2003, California Attorney General Bill Lockyer
released a manual instructing state law enforcement omcials
that monitoring or innltrating political organizations without
reasonable suspicion of criminal activity violated the California
Constitution.
9
Nearly three years later, an ACLU-NC survey
found that local law enforcement agencies have failed to develop
policies implementing those standards. Violations of California
privacy law have taken place without local omcials acknowledg-
ing-or, in some cases, even realizing-that their actions were
wrong.
Tis report contains a number of policy recommendations
for state and local government to protect the privacy and free
speech rights of Californians engaging in political activity. Tey
include:
n Te California Attorney General should issue specinc guide-
lines to local law enforcement and actively encourage their
adoption by sherin's and police departments throughout the
state.
n Te state should adopt legislation regulating surveillance by
the National Guard, the State Terrorism Treat Assessment
Center, and the state Omce of Homeland Security that pro-
tects privacy and free expression.
n Te legislature should require local police and sherin's de-
partments to regularly report on their policies and surveil-
lance activities to the Legislative Analyst's Omce.
n Local law enforcement agencies should adopt strong poli-
cies, following the state attorney general's recommendations,
to restrict surveillance of individuals and organizations par-
ticipating in lawful protest activity. A ¨best practices" policy
is included as Appendix A.
Tis report is divided into seven sections. Part I provides a
brief overview of the history of government surveillance of po-
litical activity and a discussion of California's constitutional right
to privacy. Part II outlines the expansion of government power
after September 11, 2001. Part III describes instances of surveil-
lance by federal and state agencies. Part IV contains examples
of surveillance by local police and sherin's departments. Part V
discusses the current inadequacies of local police policies. Part VI
oners specinc recommendations for reform. Part VII is a conclu-
sion. Appendix A is a ¨best practices" surveillance policy.
Te chilling enect of surveillance has a detrimental impact on
political debate, discourages membership in organizations, and
breeds distrust of law enforcement. While many of the organiza-
tions highlighted in this report have not altered their message-
in fact, some have helped expose the monitoring-the impact on
other individuals and organizations cannot be underestimated.
With the war in Iraq continuing into its fourth year and the
country divided over its merits, whether to continue, and how
to get out, it is vitally important that people representing all per-
spectives on the political spectrum are free to express their views.
Individuals must be able to exercise their constitutional rights to
free speech and dissent without fear of being watched, without
threat of their name or organization landing in a terrorism data-
base or police nle.
Law enforcement resources certainly must be devoted to in-
vestigating terrorism and prosecuting criminals, but this does
not require sacrincing core civil liberties in the process. Intel-
ligence activities must be undertaken responsibly, in a manner
that ensures we are both safe and free.
· The State of Surveillance
PART I. GOVERNMENT
SURVEILLANCE & PRIVACY
RIGHTS. A BRIEF HISTORY
T
he government has consistently used law enforcement agen-
cies to investigate and stine political dissent. Tis is true
of the last nve years, and of the last 50 years. Tis monitoring
stands at odds with California's strong protections for privacy
rights, which are brieny chronicled here. A historical context is
essential to understand current government surveillance of polit-
ical activity. Te 1976 U.S. Senate Church Committee's chroni-
cling of surveillance and warnings of its dangers are particularly
relevant today. A historical perspective serves not to equate the
events of today with the onenses of decades past, but rather to
show a continuum of government surveillance in America and
the ways in which California responded through protections to
privacy and dissent.
CHURCH COMMITTEE
In 1976, the United States Senate Select Committee to Study
Operations with Respect to Intelligence Activities chaired by
Senator Frank Church, known as the Church Committee, con-
ducted a comprehensive survey of government monitoring of
political activity. Te committee found a pattern of abuses dat-
ing back to 1936. It warned that unchecked intelligence gather-
ing on political activists could chill legitimate political speech
and result in further government abuse.
According to the Church Com-
mittee, ¨Since the re-establishment
of federal domestic intelligence
programs in 1936, there has been
a steady increase in the govern-
ment's capacity and willingness to
pry into, and even disrupt, the po-
litical activities and personal lives
of the people."
10
Te Committee
noted ¨vaguely denned" missions
to ¨collect intelligence about 'sub-
versive activities'" in the 1930s and
1940s, a widening of the ¨scope
of investigations" from the 1940s
through the early 1960s, and a raft
of abuses during the 1960s and
early 1970s.
11

Te Church Committee docu-
mented massive clandestine surveillance from the 1930s through
the 1970s. Targeting political activists and diverse social move-
ments, the surveillance activities were perpetuated by virtually
every federal law enforcement agency of the time, including:
n U.S. Army Intelligence compiled nles on over 100,000
Americans
n FBI COINTELPRO Program monitored and disrupted po-
litical organizations
n FBI mounted an intensive campaign to ¨neutralize [Martin
Luther King, Jr.] as an enective civil rights leader."
12
Te Church Committee's 1976 report concluded with a series
of recommendations to ensure that government agencies lim-
ited their surveillance activities to legitimate criminal investi-
gations.
13
Ultimately, several reforms were implemented at the
federal level, including the Foreign Intelligence Surveillance Act,
which limited and regulated domestic surveillance for foreign in-
telligence purposes, and guidelines from then-Attorney General
Edward Levi regulating FBI surveillance activities.
14

Although the Church Committee concentrated on intelli-
gence abuses at the federal level, it also discussed implications at
the local level, a focus of this report. Te Committee found that
encouraging local law enforcement
to establish their own intelligence
units without sumcient direction
or regulation ¨greatly expanded the
domestic intelligence apparatus,
making it harder to control."
15

Te federal agents often used
local law enforcement to do their
dirty work. Police and sherin's de-
partments were allowed, even en-
couraged, to acquire information
wanted at the federal level without
fear of criticism or reprisal for using
¨covert techniques." According to
the report, ¨Tese federal policies
contributed to the proliferation of
local police intelligence activities,
often without adequate controls."
16
BY THE END OF I9I·,
THE SAN FRANCISCO
POLICE DEPARTMENT
HAD AMASSED
INTELLIGENCE FILES
ON OVER I00,000
PEOPLE, INCLUDING
CIVIL RIGHTS
DEMONSTRATORS AND
ANTI-WAR ACTIVISTS.
The State of Surveillance 4
LOCAL POLICE
SURVEILLANCE IN
NORTHERN CALIFORNIA
DURING THE I9c0s & I0s
Te largest police intelligence sections of the 1960s and 70s were
located in places such as Chicago and Los Angeles, but unregu-
lated monitoring of innocent activities was prevalent in North-
ern California as well. By the end of 1973, the San Francisco Po-
lice Department had amassed intelligence nles on over 100,000
people, including civil rights demonstrators and anti-war activ-
ists.
17
Te department had a large budget and stan with a broad
mandate to ¨gather information and maintain nles on known
and suspected activities in the community, subversive groups,
and individuals whose activities might threaten the welfare of
the community."
18

Smaller police departments also exchanged information with
larger departments throughout the '60s and '70s. Chicago had
the largest police intelligence unit, with nles on over 14,000 or-
ganizations and 258,000 individuals in 1975.
19
Several Northern
California law enforcement agencies cooperated in the Chicago
spying enort. Police and sherin's departments in San Jose, Oak-
land, Palo Alto, Newark, and San Mateo traded information on
church groups, civil rights groups, and anti-war organizations
with the Chicago intelligence unit.
20

THE RIGHT TO PRIVACY
IN CALIFORNIA
Even though most surveillance activity was hidden from the
public during the 1960s and '70s-the public did not learn
about most of this era's surveillance activities for at least a de-
cade-California voters began to push for additional privacy
protections in 1972.
During this time, revelations about government surveillance
of political activity were mounting. Te FBI's COINTELPRO
program had been exposed in 1971.
21
In March 1972, Solicitor
General Erwin M. Griswold acknowledged that the Army ¨went
too far" in its surveillance enorts.
22
Also that year, lawsuits charged
Southern California police with illegally spying on students at
UCLA and several Los Angeles community colleges.
23

Californian voters overwhelmingly passed a 1972 ballot initia-
tive to add the right to privacy to the California Constitution.
Although police surveillance was not the sole motivation behind
the privacy amendment, the ballot argument in favor of the
amendment specincally cited ¨the proliferation of government
snooping and data collecting that is threatening to destroy our
traditional freedoms."
24
Tree years later, in White v. Davis, the California Supreme
Court set new standards for police surveillance of political
activity.
25
Filed just before the 1972 election, the White case
concerned police surveillance of student organizational meet-
ings and lectures at UCLA. Te 1975 landmark decision found
that the alleged surveillance constituted ¨government snooping
in the extreme," and ran afoul of the new constitutional right to
privacy.
26
White established the standard for legal governmental
surveillance that holds to this day: In California, law enforce-
ment omcers are prohibited from conducting undercover op-
erations or engaging in surveillance of political activity in the
absence of reasonable suspicion of a crime.
27

In future decades, reforms were slowly instituted though fur-
ther abuses were also revealed.
28
On the whole, however, at the
close of the millennium, law enforcement was moving in the
direction of greater professionalism and regulation.
29

LAW ENFORCEMENT OFFICERS
ARE PROHIBITED FROM
CONDUCTING UNDERCOVER
OPERATIONS OR ENGAGING
IN SURVEILLANCE OF
POLITICAL ACTIVITY
IN THE ABSENCE OF
REASONABLE SUSPICION
OF A CRIME.
Sur vei l l ance of di s s ent has been an i s s ue of concer n
f rom t he 1960s t o t he pres ent day.
S The State of Surveillance
PART II.
DISSENT IN TIMES OF CRISIS.
SEPTEMBER II, ?00I & THE
REMOVAL OF REGULATIONS
I
n its 1976 report, the Church Committee warned of the
government's tendency to target dissent in times of crisis:
Te crescendo of improper intelligence activity in the latter
part of the 1960s and the early 1970s shows what we must
watch out for: In time of crisis, the Government will exer-
cise its power to conduct domestic intelligence activities to
the fullest extent. Te distinction between legal dissent and
criminal conduct is easily forgotten.
30
Te tragic events of September 11, 2001 constituted just this
type of crisis. Te urge to respond quickly and forcefully led to
a dramatic expansion of surveillance powers and the drastic in-
crease in government resources for intelligence gathering at the
federal, state, and local levels. Tese developments took place
without sumcient regulation.
Within two months, Congress passed the USA PATRIOT
Act and the President signed it into law. Te PATRIOT Act
expanded the power of federal agents to monitor email, Web
sites, library and school records, all without meaningful judicial
review.
31
Ten-Attorney General John Ashcroft directed govern-
mental agencies to restrict disclosure of Freedom of Information
Act information and promulgated regulations allowing certain
attorney-client conversations to be monitored.
32
Concerns about civil liberties were brushed aside as unpa-
triotic. Testifying before Congress, Ashcroft criticized those
who voiced concern for ¨lost liberties" in the war on terror,
saying that dissenting voices ¨only
aid terrorists for they erode our
national unity and diminish our
resolve."
33
History had been for-
gotten; the Church Committee's
warnings ignored.
In May 2002, the U.S. Justice
Department made it even easier to
monitor political and religious ac-
tivity. Gutting the FBI's guidelines
on General Crimes, Racketeering
Enterprise, and Terrorism Enter-
prise Investigations, Ashcroft and
his team removed protections put in
place following the Church Com-
mittee hearings that had restricted government monitoring of
political activity.
34
Under the new guidelines, still in use today,
FBI agents can attend open political meetings, rallies, and dem-
onstrations, monitoring who is saying what and who is associat-
ing with whom without any suspicion of criminal activity:
For the purpose of detecting or preventing terrorist activi-
ties, the FBI is authorized to visit any place and attend any
event that is open to the public, on the same terms and
conditions as members of the public generally.
35
Te rapid expansion of federal surveillance powers was mir-
rored at the state and local level. On September 25, 2001, then-
Governor Gray Davis and Attorney General Bill Lockyer created
the California Anti-Terrorism Information Center (CATIC).
Described as ¨part of the state's enort to respond enectively to
the directive by U.S. Attorney General John Ashcroft to establish
state and local counter-terrorist task forces," the center was insti-
tuted to collect and disseminate terrorist related information to
local law enforcement.
36

Over $500 million in federal Department of Justice and
Homeland Security funds nowed to local law enforcement across
the nation to create locally based intelligence units. Tese new
units were charged with gathering and analyzing information,
but they were not required to adopt any specinc regulations safe-
guarding civil liberties.
37
A number of local police departments
in Northern and Central California formed their own homeland
security or counter-terrorism units,
or joined the FBI's Joint Terrorism
Task Forces (JTTFs), which placed
local police omcers under the con-
trol and jurisdiction of the FBI.
38

Law enforcement's enorts to im-
prove investigative capabilities and
increase enectiveness were laudable.
However, dramatically increased sur-
veillance capabilities, coupled with a
lack of regulation and pressure to
focus resources on terrorism inves-
tigations, have led to intelligence
abuses at all levels of law enforce-
ment-federal, state, and local.
¯THE DISTINCTION
BETWEEN LEGAL
DISSENT AND
CRIMINAL CONDUCT
IS EASILY
FORGOTTEN.º
÷CHURCH COMMITTEE,
I9Ic
The State of Surveillance c
PART III. BLURRING
DISSENT & TERRORISM.
SURVEILLANCE BY STATE
& FEDERAL AGENCIES
I
n Northern and Central California, several layers of gov-
ernmental agencies have been conducting surveillance
and collecting and disseminating information regarding pro-
test activities. At the federal level, the Defense Department
has collected information about various anti-war protests, and
the FBI conducts anti-terrorism
investigations individually and
with other law enforcement agen-
cies through Joint Terrorism Task
Forces (JTTFs). At the state level,
the State Terrorism Treat Assess-
ment Center (STTAC), formerly
known as the California Anti-Ter-
rorism Information Center (CAT-
IC), and the state Omce of Home-
land Security (OHS) analyze and
disseminate intelligence informa-
tion. Locally, several police and
sherin's departments have moni-
tored or innltrated organizations
engaging in activity protected by
the First Amendment. Tis sec-
tion addresses surveillance abuses
by federal and state agencies while
Part IV describes activity by local law enforcement.
CATIC AND THE OFFICE
OF HOMELAND SECURITY.
Monitoring Protest
Activities
From its inception in 2001, the California Anti-Terrorism In-
formation Center dispatched advisories to local law enforcement
agencies regarding protest activities throughout California.
Billed as a ¨powerful weapon in the war to protect our people
and property from the enemies of freedom," CATIC bulletins
were often used to alert law enforcement about legitimate pro-
test activity at the local level.
46

On April 7, 2003, CATIC issued a bulletin warning of vio-
lence by demonstrators at an anti-war demonstration at the Port
of Oakland. Police responded in an excessive manner, nring
wooden dowels at protesters and injuring over 50 people (see
page 7). Following this incident, Justice Department Spokesper-
son Mike Van Winkle equated the demonstrators' protest activ-
ity with terrorism, telling the Oakland Tribune:
You can make an easy kind of
a link that if you have a pro-
test group protesting a war
where the cause that's being
fought against is international
terrorism you might have ter-
rorism at the [protest].. You
can almost argue that a protest
against that is a terrorist act.
47

Although Van Winkle's state-
ment was quickly repudiated by
California Attorney General Bill
Lockyer, for the nrst year and a half
of CATIC's existence, Van Winkle's
view of protest activity was renected
in numerous bulletins issued by the
anti-terrorism agency.
On November 7, 2001, in what
appears to be one of CATIC's nrst advisories, CATIC issued a
bulletin with the heading ¨Anti-Terrorism, Terrorism Advisory
for Law Enforcement Use Only, Sensitive Information." Te
bulletin warned of ¨possible war protests" and stated that ¨the
International Action Center, an anti-war, anti-globalization, and
anti-corporation protest advocacy group founded by former
U.S. Attorney General Ramsey Clark, is encouraging individu-
als to protest the war in Afghanistan in San Francisco." Te
bulletin also referenced possible protests in Los Angeles and
Sacramento.
48
In April 2002, the agency issued an ¨Anti-Terrorism, Law
Enforcement Advisory," discussing ¨California's vulner-
ability to violence based on current Middle East Conflict."
While an analysis of terrorist threats linked to conflicts in
the Middle East would certainly be an appropriate func-
tion for CATIC, this particular bulletin also listed ¨events
involving Middle Eastern festivities," including ¨the Afghan
SEVERAL LAYERS
OF GOVERNMENTAL
AGENCIES HAVE
BEEN CONDUCTING
SURVEILLANCE AND
COLLECTING AND
DISSEMINATING
INFORMATION
REGARDING PROTEST
ACTIVITIES.
I The State of Surveillance
New Year's Festival in Pleasanton at the Alameda County
Fairgrounds" and a ¨march against 'War and Racism'" in
San Francisco.
49
A follow-up bulletin issued a month later
detailed ¨demonstrations on California college campuses by
pro-Israeli and pro-Palestinian groups."
50
Beyond issuing bulletins, in at least one instance, CATIC
also directed local law enforcement to report protest activity to
the FBI's Joint Terrorism Task Force. On November 8, 2002,
CATIC issued a ¨Law Enforcement Advisory" about a ¨rally" at
Lawrence Livermore National Laboratory:
A civil disobedience rally has been called by members of the
Bay Area Pledge (Not In Our Name, NION). Demonstrators
plan to meet on Monday, November 11, 2002 at 12:00 p.m.
at the West Gate of Lawrence Livermore National Laborato-
ry's (LLNL) lab on Vasco Road, Livermore, California. Tey
will represent themselves as a model weapons inspection team
OAKLAND POLICE TURN VIOLENT AT PORT OF
OAKLAND ANTI-WAR DEMONSTRATION
O
n the morning of April 7, 2003, members of Direct Action to Stop the War and others opposed to the war in
Iraq gathered at the entrance to the Port of Oakland. Teir goal was to form a picket line at the Port to highlight
the role of two shipping companies operating out of the Port. Te protesters believed that the shipping companies
helped facilitate the war by transporting weapons and operating Iraq's Port of Umm Qasr. Te Direct Action Web site
advertising the protest specincally stated that the protest was not a ¨civil disobedience" action and that the purpose of
the protest was ¨to maintain the picket line not to get arrested."
39
Te demonstration began as planned, with protesters maintaining a peaceful picket at the Port of Oakland entrance.
Ten, with little warning, police moved in to disperse the protest. Police used an array of ¨less lethal" weapons, depart-
ing from traditional crowd-control practices. Oakland police nred wooden dowels, shot nlled beanbags, and sting-ball
grenades at the crowd. Omcers continued nring as protesters ned. Te New York Times reported ¨the clash was the
most violent between protesters and the authorities anywhere in the country since the start of the war in Iraq."
40
In
total, over 50 people were injured, including 9 dockworkers, members of the International Longshore and Warehouse
Union (ILWU), who were not involved in the protest.
41

In response, the ACLU-NC joined the National Lawyers Guild in nling an excessive force class-action lawsuit
against the City of Oakland and its police department on behalf of the Longshoremen's Union members who were
injured. Te incident ultimately cost Oakland over $2 million and resulted in a new Oakland Police Department
crowd control policy.
42
With all the attention paid to police violence, weapons, and subsequent policy reforms, the
subject of the ¨intelligence" acquired by the Oakland Police Department prior to the April 7 protest received less
public scrutiny.
Investigation later revealed that, even before the protest took place, its organizers were monitored by both a state
agency-the California Anti-Terrorism Information Center-and local police. An act of political dissent-a planned
picket line-set on overzealous warning systems and may have innuenced the choice of police response tactics.
Trough a Public Records Act request, the ACLU-NC learned that the Oakland Police Department had gathered
information not only about Direct Action's planned picket line, but in fact about unrelated anti-war activities by the
ILWU. Te OPD had entered the ILWU's Yahoo newsgroup and printed out postings issued months earlier about the
Union's opposition to the war in Iraq.
43
Ten, just days before the protest, Oakland police received a warning from
CATIC, the state's anti-terrorism information center, about ¨potential violence"
44
-a warning that one law enforce-
ment omcial from a neighboring agency indicated had ¨extra weight."
45

The Port incident and the events leading up to it illustrate how inappropriate surveillance affects governmen-
tal agencies at multiple levels. The bulletin issued by the California Anti-Terrorism Information Center prior to
the incident also demonstrates the danger of conflating political dissent with terrorism. By the time the CATIC
bulletin was revealed in the Oakland case in April 2003, CATIC had already been issuing terrorism advisories on
protests to local law enforcement agencies throughout the state for more than a year and a half without public or
media knowledge.
The State of Surveillance 8
demanding inspection of LLNL. Rally attendees are encour-
aged to support international weapons inspections. Tis
rally is expected to be non-violent and participants have
been asked to bring or wear banners, clipboards, cameras,
weapons inspector jackets (light blue preferred), uniform (if
in the military), robes (if belonging to a religious order), or
appropriate props and apparel.
Despite the innocuous nature of the demonstration, the bul-
letin advised law enforcement to contact either the local FBI
Joint Terrorism Task Force or CATIC's Situation Unit with ¨any
additional information regarding this rally, potential problems
occurring with this rally or information regarding any similar
situations."
51
CATIC continued to issue bulle-
tins on anti-war and other political
protests throughout the state until
the Port of Oakland incident in April
2003. Te public disclosure of that
bulletin, a signincant follow-up in-
vestigation by the Oakland Tribune,
and advocacy by the ACLU led At-
torney General Bill Lockyer to com-
mission a review of the agency. As a
result, CATIC was prohibited from
gathering information or issuing bul-
letins on individuals or organizations
engaging in protected activity.
52

As Attorney General Lockyer was
instituting these reforms in one
agency, the state Omce of Homeland
Security (OHS) was being devel-
oped to coordinate ¨the activities of
all state agencies pertaining to terrorism-related issues." Ten-
Governor Gray Davis created the omce by executive order in
2003. OHS initially functioned largely as a clearinghouse for
disbursing federal homeland security grant money to local
agencies.
53
More recently, however, California's OHS appears
to have played a larger role in intelligence analysis.
In January 2005, the OHS, the California Attorney General's
Omce, and the California Highway Patrol nnalized a memoran-
dum of understanding to create a new agency called the State
Terrorism Treat Assessment Center (STTAC). According to
the Homeland Security Strategy, a policy document from OHS,
¨Te new STTAC is tasked with the collection, analysis and dis-
semination of terrorism-related information and the investiga-
tion of terrorism-related information, in full and complete col-
laboration with federal, state and local agencies charged with a
counter-terrorism mission." Te new STTAC also ¨encompasses
duties formerly addressed separately by the CATIC."
54
While OHS has a signincant role in STTAC, it lacks indepen-
dent oversight, and there are no statutes governing its functions.
OHS employs a number of ¨contract analysts" to support in-
telligence gathering related to terrorism. Te analysts, however,
are not peace omcers.
55
According to a California Department
of Justice memorandum, allowing OHS access to intelligence
information raises a number of legal concerns.
56
Worse, the state
OHS may have advanced several surveillance proposals that
would violate the rights of individuals under both the California
and federal Constitutions.
As early as 2004, Ed Manavian, then the head of CATIC, began
raising concerns about the legality of OHS's role in intelligence
gathering and analysis.
57
In a 2005 email to the director of the
Justice Department's Division of Law Enforcement, Manavian
described Senior Assistant Attorney
General John Gordnier's concerns
about OHS's intelligence gathering,
particularly the contract analysts'
role: ¨Whose authority would these
analysts work under? Under what
rules and guidelines were they going
to operate under in the area of intelli-
gence, especially in the retention and
dissemination portions? Under what
statutory authority would they oper-
ate under?"
58
According to a whistleblower com-
plaint recently nled with the state,
Manavian claims he was demoted for
not being complicit in privacy viola-
tions and for speaking out forcefully
in interagency meetings to oppose
OHS policies that would threaten
civil liberties.
59
Manavian raised civil
liberties issues regarding a number of OHS programs and pro-
posals. He advocated withdrawal from a federal database pro-
gram that did not abide by California privacy protections and
claims he spoke out about a number of inappropriate ideas
noated by the OHS, including a proposal to bug the omces of
Muslim imams who work in prisons.
60

Manavian isn't the only Justice Department employee voicing
concerns regarding the scope of OHS activities. In an April 21,
2006 memorandum Allen Benitez, Assistant Chief of the Crimi-
nal Intelligence Bureau of DOJ, wrote:
OHS is assigning tasks in areas outside the mission of
STTAC. OHS Contract Analysts have been tasked by OHS
management with researching and collecting information
on street gangs, outlaw motorcycle gangs, political groups,
protests, and other areas that do not meet the mission of the
STTAC and may not be allowed under the law.
61
THE CALIFORNIA
OFFICE OF
HOMELAND SECURITY
LACKS INDEPENDENT
OVERSIGHT,
AND THERE ARE
NO STATUTES
GOVERNING ITS
FUNCTIONS.
9 The State of Surveillance
On July 1, 2006, the Los Angeles Times provided evidence sup-
porting this assessment. Te LA Times gained access to OHS
reports detailing information about political demonstrations
throughout California, including:
n An animal rights rally outside a Canadian consulate omce in
San Francisco to protest the hunting of seals
n A demonstration in Walnut Creek at which U.S. Rep. George
Miller (D-Martinez) and other omcials spoke against the
war in Iraq
n A Women's International League for Peace and Freedom
gathering at a courthouse in support of a 56-year-old Salinas
woman facing federal trespassing charges
62
Following the revelation of the bulletins by the Los Angeles
Times, both Attorney General Bill Locker and representatives of
OHS spoke out against the tracking of information on demon-
strations. A representative from Gov. Arnold Schwarzenegger's
omce called the tracking of such information ¨totally inappro-
priate and unacceptable."
65
While these statements are hearten-
ing, many questions remain as to why the bulletins were issued
and what regulations govern the actions of OHS and its contract
analysts.
On July 6, 2006, the three California ACLU amliates nled
Public Records Act requests seeking detailed information from
the attorney general and OHS about the issues raised in Mana-
vian's complaint, the Benitez memo, and the Times report. As
this report goes to press, we await the results of the requests. Still,
the information we have points to the need for additional regu-
lation to safeguard the privacy rights of Californians exercising
their First Amendment rights through public protest.
CALIFORNIA
NATIONAL GUARD.
Monitoring Protesting
Grandmothers
Te California Anti-Terrorism Information Center and the Of-
nce of Homeland Security are not the only state agencies that
have focused on First Amendment protected activity in the name
of stopping terrorism. Last Mother's Day, Code Pink, Gold Star
Families for Peace, and the Raging Grannies organized an anti-
war protest at the Vietnam Veterans Memorial in Sacramento.
Te May 8, 2005 protest was peaceful, attended by approxi-
mately 50 people, some of whom had lost family in combat.
Lasting less than two hours, it included songs and a peace proc-
lamation. Surprisingly, this small gathering drew the attention of
the California National Guard.
66

On May 5, 2005, Jennifer Scoggins, a member of Gov. Arnold
Schwarzenegger's press omce, sent an email to the California Na-
tional Guard giving omcials a ¨heads-up" that members of Code
Pink, Gold Star Families for Peace, and others were planning
to ¨mark Mother's Day urging the Governor and Legislature to
support bringing California National Guardsmen home from
Iraq by Labor Day." Te email was forwarded up the chain of
command to then-Adjutant General Tomas Eres and other se-
nior National Guard stan. On May 6, Colonel Floyd J. (¨Jen")
Davis replied that he was forwarding the information to his ¨In-
tell. Folks who continue to monitor."
67
Among the people copied on Davis's email was Colonel Rob-
ert J. O'Neil, who had recently been tapped to head up a new
intelligence program called the Information Synchronization,
Knowledge Management and Intelligence Fusion program. Te
Fusion program was billed as a ¨one-stop shop for local, state
and national law enforcement to share information."
68

Te Guard's monitoring of the protest was publicly reported
a month later in the San Jose Mercury News, and immediately
drew criticism from leading law enforcement and intelligence
experts. Christopher Pyle, a former Army Intelligence Omcer
who nrst exposed the military's domestic spying programs in
1970, told the Mercury News, ¨Te National Guard doesn't need
to do this. Its job is not to investigate individuals, but to clear the
streets, protect facilities and help nrst responders."
69

California Attorney General Bill Lockyer questioned the
Guard's action saying, ¨You have to wonder how monitoring
the activities of soldiers' widows and orphans advances the
anti-terrorism enort."
70
Te ACLU-NC urged the dismantling
of the Guard unit responsible for the spying, and State Senator
Joe Dunn opened an investigation.
71
Te Guard initially defended its enort, claiming it would
be ¨negligent" to not track anti-war rallies since they have
the potential to degenerate into riots. According to Guard
Thi s Wal nut Creek ant i - war march was ref erenced
i n an Of f i ce of Homel and Securi t y bul l et i n.
J
E
F
F

P
A
T
E
R
S
O
N
The State of Surveillance I0
spokesperson Lt. Col. Stan Zezotarski, the monitoring enort
was ¨nothing subversive, because who knows who could innl-
trate that type of group and try to stir something up. After all,
we live in the age of terrorism, so who knows?"
72

Te Guard tried to quell criticism by inviting members of
the groups involved in the protest to tour their facilities. Tis
public-relations attempt backnred when Code Pink members
saw and photographed an anti-Muslim poster in Guard omces.
Te poster depicts an incident in which ¨General Black Jack Per-
shing" and his unit slaughtered 49 Muslims with bullets soaked
in pigs' blood. Te poster asks: ¨Maybe it is time for this segment
of history to repeat itself, maybe in Iraq? Te question is where
do we nnd another Black Jack Pershing."
73
Te Guard initially
defended the poster as being ¨historically accurate," but later
told the San Jose Mercury News that it had been removed.
74
Te Army conducted its own internal investigation of the in-
cident and Guard unit. Its report, which purported to clear the
Guard, was issued in August 2005 but never released publicly.
Senator Dunn, who did view the report, said that the report
¨refers to additional protests and demonstrations" and ¨labeled
as questionable Guard involvement surrounding them."
75

Although Senator Dunn encountered problems during his in-
vestigation of the National Guard-including the fact that Col-
onel Davis's hard drive was erased upon his retirement despite
the senator's request that all information related to the incident
be preserved-he uncovered evidence that other states had simi-
lar Fusion programs and may be engaged in comparable spying
enorts.
76
As Dunn explained:
Because the [Fusion programs] were all created at about the
same time and to the best of our knowledge thus far seem-
ingly engaged in similar activity, including domestic surveil-
lance activities, we could only conclude that it had been
part of a concentrated or coordinated enort to create such
units around the country."
77

In November 2005, in response to pressure from Senator
Dunn and others, the California National Guard dismantled the
Fusion program. Senator Dunn hailed the decision as an impor-
tant step: ¨It means that, at least for now, the Guard leadership
won't be tempted to engage in domestic surveillance activities in
California, which are barred by federal law."
78

A June 2006 review by the state auditor found that the Fusion
intelligence unit was created in violation of state law, circum-
venting the normal budget process.
79
Senator Dunn has intro-
duced legislation to would prevent the Guard from engaging in
domestic surveillance activities without express approval by the
legislature.
80
THE PENTAGON
& THE FBI.
Monitoring Local
Protests
Federal agencies are also engaged in monitoring political activ-
ism in Northern and Central California. In December 2005,
NBC News reported on the existence of the previously secret
Department of Defense (DOD) Treat and Local Observation
Notice (TALON) database. Te database contained information
from TALON reports nled by Defense Department personnel
over at least a 10-month period.
81

Te anti-terrorism database included information on nu-
merous anti-war and counter-recruitment protests, including
campus demonstrations by UC Santa Cruz Students Against
War and the UC Berkeley Stop the War Coalition, a Sacramento
¯THE NATIONAL GUARD
DOESN¹T NEED TO DO
THIS. ITS JOB IS NOT TO
INVESTIGATE INDIVIDUALS,
BUT TO CLEAR THE
STREETS, PROTECT
FACILITIES AND HELP
FIRST RESPONDERS.º
÷CHRISTOPHER PYLE,
FORMER ARMY INTELLIGENCE
OFFICER
The Nat i onal Guard moni t ored t hi s Sacrament o
Mot her` s Day ant i - war ral l y organi zed
by Code Pi nk, Gol d St ar Fami l i es f or Peace,
and t he Ragi ng Granni es .
R
A
E

A
B
I
L
E
A
H
II The State of Surveillance
protest organized by mili-
tary veterans, and a San
Francisco demonstration
organized by local activ-
ists.
82
Te TALON database
also designated the level of
concern posed by the pro-
test activity. For example,
the Santa Cruz student pro-
test was deemed ¨credible"
and a ¨threat," while the
Berkeley campus protest
was considered a ¨threat"
but ¨not credible."
83

Te disclosure of the da-
tabase drew criticism and
questions from political
leaders nationally, includ-
ing Sen. Dianne Feinstein
and U.S. Rep. Zoe Lofgren (D-San Jose).
84
Further media in-
vestigations revealed additional aspects of the DOD program,
including the Defense Department's failure to purge database
information on a timely basis.
85
Under pressure, the Defense Department conceded that in-
cluding information about anti-war protesters in the database
was inappropriate. According to a letter written to Congress by
Deputy Undersecretary of Defense Robert W. Rogalski:
Although the TALON reporting system was intended to
document suspicious incidents possibly linked to foreign
terrorist threats to DOD resources, some came to view the
system as a means to report information about demonstra-
tions and anti-base activity.. CIFA (Counterintelligence
Field Activity) has removed the TALON reports on demon-
strations and anti-base activity from the database.
86
While these assurances are heartening, it is still not clear how
much information on legitimate protest activity was collected,
why it was collected, and whether the TALON information was
transmitted to other databases or agencies.
In February 2006, in coordination with several other ACLU
amliates and the national ACLU omce, the ACLU-NC and the
San Francisco Bay Guardian nled Freedom of Information Act
(FOIA) requests with the Defense Department seeking infor-
mation collected on students at UC Berkeley and Santa Cruz
and documents on the TALON system. Te ACLU-NC sought
documents on an expedited basis because of the information's
time-sensitive nature.
87

When the Pentagon denied the ACLU-NC's request for expe-
dited processing, the ACLU-NC nled a lawsuit in federal court to
compel speedy production of the documents. On May 25, 2006,
U.S. District Court Judge William Alsup granted the ACLU-
NC's request and ordered
the Defense Department
to expedite the search for
responsive documents.
88

Te FBI's Joint Terrorism
Task Forces have also been
gathering information on
people and organizations
engaging in constitution-
ally protected activity.
In September 2004, the
ACLU-NC nled a FOIA
request with the Northern
California FBI omces seek-
ing policy information on
their surveillance practices.
Nearly two years later, the
FBI has yet to provide doc-
uments in response.
Documents obtained by the ACLU from FBI omces in other
regions suggest that the FBI may be gathering information on
organizations engaging in protected activities. One document
obtained by the national ACLU relates to a May 2002 confer-
ence held at Stanford University entitled ¨Tird National Or-
ganizing Conference on Iraq." Te heavily redacted document
appears to contain ¨a contact list" of attendees and a number
of references to the American-Arab Anti-Discrimination Com-
mittee, including the organization's Washington, D.C. address,
phone number, and email.
89
FBI documents obtained in other states are more explicit.
Documents obtained by the ACLU national omce show that
the FBI was investigating People for the Ethical Treatment of
Animals, a national animal rights organization.
90
A November
2002 document obtained by the Pennsylvania ACLU reports on
the ¨results of investigation of Pittsburgh anti-war activity." Te
activities at issue were entirely peaceful leaneting conducted by
the Tomas Merton Center for Peace and Justice, which the FBI
described as ¨a left-wing organization advocating, among many
political causes, pacinsm."
91
As the Church Committee warned us decades earlier, in times
of crisis, law enforcement and intelligence agencies blur the line
between legal dissent and criminal conduct. Lack of regulation
only facilitates governmental overreach.
Te monitoring of political groups and free-speech protest ac-
tivities should come as no surprise in light of the vast resources
committed to intelligence gathering post-9/11 and the gutting
of regulations protecting political and religious activity from un-
warranted government surveillance. Yet, the extent to which the
government took advantage of a climate of fear and a time of
unease merits widespread notice and opposition.
St udent s f rom UC Berkel ey and UC Sant a Cr uz
ended up i n a Def ens e Depar t ment ant i - t errori s m
dat abas e f or par t i ci pat i ng i n demons t rat i ons
agai ns t mi l i t ar y recr ui t ment .
·

B
O
B

F
I
T
C
H
The State of Surveillance I?
PART IV. SURVEILLANCE
ABUSES BY LOCAL AGENCIES
IN NORTHERN & CENTRAL
CALIFORNIA
M
onitoring of political activists has occurred at the local level
as well. From Fresno to Santa Cruz, Oakland to Sacramen-
to, police agencies have innltrated organizations or monitored
individuals engaging in political activity protected by the First
Amendment.
In most cases, the local police or sherin's department did not
have regulations prohibiting such activity. In other instances, the
surveillance violated established policies. All of the incidents rep-
resent local law enforcement's failure to protect their communi-
ties from unwarranted government surveillance.
OAKLAND POLICE
DEPARTMENT.
Infiltrating a Protest
Against Police Brutality
While the 2003 Port of Oakland incident illustrates inappro-
priate use of the California Anti-Terrorism Information Center
(CATIC), subsequent Oakland Police Department actions relat-
ed to the incident demonstrate the misuse of undercover police
omcers to spy on political activists.
Te April 7, 2003 police action described above (see sidebar,
page 7) sparked outrage. Community members and others believed
it was important to ¨stand up to police brutality and to amrm the
constitutionally protected rights of free speech and assembly." So,
they chose May 12, 2003 to return to the Port for a demonstration
against the police response to the April 7 protest.
92
Te protest went smoothly as approximately 400 protesters
marched from the West Oakland BART station to the Port.
Tere was no police interference and there were no arrests. Ac-
cording to Patrick Reinsborough, a Direct Action to Stop the
War volunteer, ¨[Te protest] was a victory. It showed that
we're not going to tolerate the kinds of police brutality and at-
tacks on civil liberties we saw on April 7."
In their public statements, the Oakland Police Department
concurred that the May demonstration was a success, a valida-
tion of proactive communication strategies. ¨Tis time was dif-
ferent," Daniel Ashford, the Oakland Police Department spokes-
person, told the San Francisco Bay Guardian. ¨You just learn
from each event, and we dennitely learned from April 7. We're
not experts in this, but we know now that communication is
important and enective."
93
What organizers did not know at the time, and what the Oak-
land Police Department did not tell the press, was that the pro-
test had been innltrated-and partially directed-by members
of the Oakland Police Department posing as demonstrators.
Documents obtained by the ACLU-NC during litigation over
the original April 7 incident revealed that two undercover Oak-
land police omcers were elected to ¨plan the route of the march
and decide where it would end up and some of the places that
it would go."
94
Innltrating the protest would have been highly inappropriate
in and of itself. Omcers taking leadership roles and helping di-
rect the protest is even more invasive, approaching the tactics
used by law enforcement during the 1960s.
Te OPD's actions were far more insidious than other alter-
natives, such as open communication between the police and
organizers (ironically, the protest organizers believed this was ac-
complished) or gathering information from public sources such
as Web sites and newspapers.
Af t er ant i - war prot es t ers at t he Por t of Oakl and were
t arget s of pol i ce br ut al i t y, demons t rat ors organi zed
anot her Por t demons t rat i on, whi ch was i nf i l t rat ed
by undercover of f i cers .
J
E
F
F

P
A
T
E
R
S
O
N
I· The State of Surveillance
In his statement to the Oakland Police Department's Board
of Review on the April 7 incident, then-Captain Howard Jordan
espoused the benents of police innltration:
So if you put people in there from the beginning, I think
we'd be able to gather the information and maybe even di-
rect them to do something that we want them to do. An
example would be if we wanted to march to the dark station
or march to the police department. If we have our people
near it we can say, ¨We don't think that's a good idea, let's go
somewhere else." So those are some of the things I think we
should consider for future. I think it will help us in the long
run if we had that information available, or at least have
some intelligence as to what's happening at that place.
95
Jordan also told the Board of Review that the OPD should
have a unit available for such undercover operations, and that
these tactics are common in other police departments:
I think we need to have a group of omcers available at all
times, any time of the day, so if this information becomes
available they can follow up on it. So we could get omcers
into that group for their meetings. We could get people
there in advance. Tey advertise that stun on the Internet.
It's not that dimcult. San Francisco does it, Seattle, a lot of
large agencies do it. And we need to make sure that the next
time something like this happens, that we're way ahead of
the curve-that we're in there.
96

Tis approach to protest activity, if followed, would constitute
a wholesale violation of the state constitutional right to privacy.
California law prohibits police innltration or monitoring in the
absence of reasonable suspicion of criminal activity. Unfortu-
nately, as Jordan noted, the use of undercover omcers to monitor
activist groups is not unique to Oakland; it is increasingly wide-
spread. Jurisdictions throughout the state lack policies restrict-
ing surveillance activity to cases where omcers have reasonable
suspicion of a crime, as required by California law.
FRESNO COUNTY
SHERIFF¹S DEPARTMENT.
Spying on Peace
Protesters
On August 31, 2003, as she was reading her copy of the Fresno
Bee, something strange caught Fresno schoolteacher Camille
Russell's eye. She noticed a picture of Aaron Michael Kilner
above his obituary. Te write-up noted that Kilner was a dep-
uty sherin in the Fresno County Sherin's Department and a
member of its ¨anti-terrorist team." Camille noticed the pic-
ture because she recognized the man as Aaron Stokes, a person
she knew as a fellow member of Peace Fresno, a local anti-war
and social justice organization.
97
For the previous several months, Kilner had attended Peace
Fresno meetings and rallies, taking minutes for the group on
one occasion and traveling to a demonstration in Sacramento
on another. He passed out nyers and participated in street pro-
tests. He told members his name was Aaron Stokes and that he
was not working due to a small inheritance he had received.
98
After Camille Russell noticed his picture, she circulated
copies of the obituary to Peace Fresno members, telling them,
¨Don't say anything to anyone else. Just look at this picture,
and see if you recognize him." People quickly realized that the
Aaron Stokes Peace Fresno members had known was in fact
Aaron Kilner, a Fresno County Deputy Sherin who had innl-
trated the peace group.
99
Feeling betrayed and violated, Peace
Fresno members sought the assistance of local attorney Cath-
erine Campbell.
Campbell sent a letter to Fresno County Sherin Richard
Pierce demanding to know why the group had been innltrated.
His response claimed that the department did not have any
nles on Peace Fresno, but he neither connrmed nor denied that
Kilner had been directed to spy on Peace Fresno meetings for
the sherin's department. Parroting the FBI guidelines written
by then-Attorney General John Ashcroft, Pierce claimed the
right to send his members to organizational meetings:
For the purpose of detecting or preventing terrorist activi-
ties, the Fresno County Sherin's Department may visit any
place and attend any event that is open to the public on
the same terms and conditions as members of the public
generally.
100

¯IF YOU PUT PEOPLE
IN THERE FROM THE
BEGINNING, I THINK WE¹D
BE ABLE TO GATHER THE
INFORMATION AND MAYBE
EVEN DIRECT THEM TO DO
SOMETHING THAT WE WANT
THEM TO DO.º
÷HOWARD JORDAN, DEPUTY
CHIEF, OAKLAND POLICE
The State of Surveillance I4
After being stonewalled by the sherin's department, Peace
Fresno went public with their story, which drew widespread at-
tention from concerned members of the local community and
from the media. Te Fresno Bee provided extensive coverage of
the story and questioned the sherin's actions in an editorial:
Te nation's concern about personal liberties vs. national
security has become exceedingly personal recently, as mem-
bers of Peace Fresno found when they realized that an un-
dercover sherin's detective had been attending their meet-
ings. We share their concerns. At a time when the sherin is
saying he needs more money for omcers we question using
detectives' time to monitor a political group like Peace Fres-
no with apparently no evidence of criminal activity. Tis
certainly raises questions about the sherin's priorities.
101
Unfortunately, the questions raised were not answered. After
attempting to obtain additional information from the depart-
ment and the FBI for several months, on April 21, 2004, the
ACLU-NC nled a complaint with Attorney General Bill Lockyer
on behalf of Peace Fresno.
102

Te complaint urged the attorney general to use his constitu-
tional authority to direct the sherin to adopt a policy prohibiting
the innltration and surveillance of community organizations. It
also asked for full disclosure of how and why the innltration was
ordered and any information Kilner had collected. Two months
later, the attorney general agreed to open an investigation.
103
Nearly two years after the complaint was initially nled, on
February 10, 2006, Lockyer connrmed that the innltration of
Peace Fresno had been an omcially sanctioned sherin's depart-
ment action. According to Lockyer, ¨Tere is no disagreement
about the facts."
104
Lockyer's omce also connrmed what members of Peace Fres-
no already knew-that no members of Peace Fresno had en-
gaged in criminal activity ¨other than jaywalking." According
to Nathan Barankin, Lockyer's spokesperson, ¨Te Attorney
General has very serious concerns about methods used by the
Fresno Sherin's Department with Peace Fresno."
105
Despite this determination, no public report has been re-
leased and no enforcement action taken. Te attorney general's
omce has been in negotiations for some time with the Fresno
Sherin's Department about a new policy limiting undercover
surveillance. Te attorney general is also considering nling a
lawsuit against the sherin for violating Peace Fresno members'
rights.
106
What is unclear, however, is why the attorney general
has not simply used his power-authorized by the California
Constitution-to direct the sherin to stop using undercover
omcers to spy on political activists.
107

Tree years after Aaron Kilner began attending Peace Fres-
no's meetings, members are thankful that their case is being
investigated, but they still wonder how and why they were in-
vestigated. Tey also worry that, in the absence of sumcient
regulation, it could happen again. As Camille Russell told the
Fresno Bee:
I'm totally convinced no one ever thought Peace Fresno was a
terrorist organization. When we have law enforcement surveil-
ling people for their political views, it's really scary. We need
Lockyer to take a stand for us. We should all take a stand.
108

¯AT A TIME WHEN THE
SHERIFF IS SAYING HE
NEEDS MORE MONEY FOR
OFFICERS WE QUESTION
USING DETECTIVES¹ TIME
TO MONITOR A POLITICAL
GROUP LIKE PEACE FRESNO
WITH APPARENTLY NO
EVIDENCE OF CRIMINAL
ACTIVITY. THIS CERTAINLY
RAISES QUESTIONS
ABOUT THE SHERIFF¹S
PRIORITIES.º
÷FRESNO BEE
Li s a Sol omon, Cami l l e Rus s el l , and Dan Yas een
( l - t o- r) of Peace Fres no were t he t arget s of
cl andes t i ne s ur vei l l ance by an undercover Fres no
deput y s heri f f pos i ng as a f el l ow peace group member.
M
I
K
E

R
H
O
D
E
S
IS The State of Surveillance
FRESNO STATE
POLICE DEPARTMENT.
Undercover
Surveillance of
Student Activists
While Attorney General Lockyer's omce was investigating the
Peace Fresno incident, the Fresno County Sherin was engag-
ing in another undercover operation, this time at California State
University, Fresno. On November 10, 2004, the Cal State Fresno
student group Campus Peace and Civil Liberties Coalition
(CPCLC) hosted an on-campus lecture by a speaker formerly
employed by People for the Ethical Treatment of Animals (PETA)
named Gary Yourofsky. He addressed approximately 60 people
about the benents of a vegan diet. Six of those 60 attendees were
undercover police omcers-three from the county sherin's de-
partment and three from the campus police department.
109

CPCLC leaders learned about the undercover law enforcement
presence through a December 2004 campus task force meeting
on outside speakers and events. When discussion turned to the
CPCLC lecture, someone asked why there were no uniformed
police omcers at the event. Fresno State Police Chief David
Huerta responded by asking, ¨How do you know that there were
no omcers present?" Huerta also stated that Mr. Yourofsky was
of concern because the Department of Homeland Security [had]
classined PETA as a terrorist organization.
110
After unsuccessful attempts to quietly learn why undercover
omcers were at the CPCLC lecture and what information they
collected, students went public with what happened. Te uni-
versity initially defended the undercover omcers' spying, stating
that it was common practice. According to Fresno State's Di-
rector of Public Safety David
Moll:
I don't understand what
the problem is. Tere's
undercover police every-
where. Tey're gathering
intelligence to keep order,
not to repress anybody.
Tey could be at a school
or a church, or Big Hat
Days.
111
Moll also claimed the use
of undercover omcers was
necessitated by the speaker's
controversial views and the
surrounding community's
possible reaction:
Te person they had speaking was fairly controversial, an
animal rights activist that had been on campus before. You
know, there's always the possibility, being a big ag commu-
nity as we are, there are some people who see that as possibly
anecting their livelihood.
112
Te Fresno Sherin's Department continues to claim the right
to monitor protected activity. Assistant Sherin Tom Gattie said,
¨If there is an open meeting, we can listen."
113
Te students, however, did not take the violation of their rights
lightly. Tey contacted the ACLU-NC, which wrote letters to the
Fresno State President and
Fresno County Sherin on
their behalf. Students also
held press conferences and
staged a 48-hour hunger
strike in front of the cam-
pus administration build-
ing. Ruth Obel-Jorgenson,
President of the CPCLC,
described how surveillance
impacts people's willing-
ness to express their views:
¨Tat kind of monitoring
is wrong and it's sneaky.
Even when you are doing
nothing wrong, it makes
you feel like you are, just to
know someone is watching
you."
114
¯I DON¹T UNDERSTAND WHAT
THE PROBLEM IS. THERE¹S
UNDERCOVER POLICE
EVERYWHERE. THEY COULD
BE AT A SCHOOL OR A
CHURCH, OR BIG HAT DAYSº
÷FRESNO STATE DIRECTOR
OF PUBLIC SAFETY
DAVID MOLL
Rut h Obel - Jorgens on and ot her Cal St at e
Fres no s t udent s prot es t ed undercover s ur vei l l ance
of t hei r campus group` s l ect ure on t he benef i t s
of a vegan di et .
M
I
K
E

R
H
O
D
E
S
The State of Surveillance Ic
In May 2005, Fresno State University President John Welty
issued a directive to Fresno State's Director of Public Safety
David Moll and Fresno State Police Chief David Huerta pro-
hibiting the use of undercover surveillance at campus events
¨unless they are required by law and have been expressly ap-
proved."
115
Welty's order mandates that the university's vice
president or president must be informed of any outside law
enforcement agencies' on-campus investigations and requires
the Fresno State Police Department to inform the event's or-
ganizers if they intend to use undercover omcers for safety
purposes.
116

While this policy change was undoubtedly a success, it was
tempered by the fact that Fresno State inexplicably refuses to
allow public access to documents pertaining to the CPCLC
event. Furthermore, to this day, the Fresno Sherin's Depart-
ment maintains the right to engage in this type of surveil-
lance activity.
117
CONTRA COSTA COUNTY
SHERIFF¹S DEPARTMENT.
Secretly Monitoring
Labor Rally
When Southern California Safeway store workers went on strike
in 2003-2004, reaching an impasse on health care issues raised
in contract negotiations, demonstrators voiced their opinions
at Northern California Safeway venues as well. A delegation of
religious leaders planned a pilgrimage to the home of Safeway
CEO Steve Burd, located in the Contra Costa County city of
Alamo, to deliver postcards supporting the striking workers.
118

At the same time, the Contra Costa Sherin's Department used
its Homeland Security Unit to monitor the activity of labor
activists in San Francisco.
On January 23, 2004, two men identifying themselves as
members of the Contra Costa County Sherin's Homeland Se-
curity Unit went to the United Food and Commercial Workers
Union (UFCW) omces in Martinez, the union representing
Safeway workers, to ask about the pilgrimage. UFCW stan
told them that they were not organizing the event and directed
them to a contact number on a nyer.
119

Te next day-despite the fact that the sherin's department
had been in contact with the pilgrimage organizers-union
leaders saw the same sherin's deputies in plainclothes attending
a demonstration at a Safeway store in San Francisco. California
Labor Federation Leader Art Pulaski approached the deputies
and asked them if they were law enforcement. Tey denied it.
One of the deputies said, ¨My brother is in Iraq and my father
is a union oil worker. I'm just here to support the strikers."
120

When a UFCW stan member connrmed that the two men
were in fact from Homeland Security, Pulaski asked them
again-several times. Te men nnally admitted that they were
sherin's deputies in the Homeland Security Unit. Pulaski re-
sponded by telling the deputies, ¨We are alarmed at having
undercover omcers at a union rally. I have to tell you that I am
greatly onended that you wouldn't give your name[s] and that
you continued to lie about being in law enforcement."
121
Te Labor Federation went public about the surveillance. At
a press conference denouncing the clandestine monitoring of
the rally, Law Professor and former California State Supreme
Court Justice Joseph Grodin said, ¨Te kind of innltration has
the inevitable consequence of chilling the participation of in-
nocent people in what is otherwise a constitutionally protected
activity."
122
Lutheran Pastor Carol Bean, one of the organizers
of the pilgrimage, wondered, ¨When did priests and postcards
become a threat to national security?"
123
Representatives from the ACLU-NC and its Mt. Diablo
Chapter, the local League of Women Voters, the San Francisco
Labor Coalition, and Reverend Phil Lawson (a clergy leader in-
volved in the pilgrimage) met with and wrote letters to Sherin
Warren Rupf expressing concern about the monitoring.
Sherin Rupf claimed that his deputies were not there to spy
on labor leaders and were not performing ¨homeland security"
functions. Te deputies were attending the rally, he said, to
learn about crowd management from the San Francisco Police
Department.
124
Sherin Rupf refused to release any police reports or other doc-
uments on the decision to send the deputies to the rally or the
information they gathered. Rupf declared that the labor leaders
had no privacy rights in their public activities.
125
Te depart-
ment had previously asserted that it was justined in monitor-
ing protests because terrorists could use legal demonstrations
USING A HOMELAND
SECURITY JUSTIFICATION
TO MONITOR LAWFUL
ACTIVITY ¯IS SENDING
A CHILLING AND
INTIMIDATING MESSAGE TO
ALL OF US.º
÷LABOR LEADER
ART PULASKI
II The State of Surveillance
for cover.
126
Te ACLU-NC nled a Public Records Act request
with the San Francisco Police Department. Te agency had
no documents referencing any inquiries from or coordination
with the Contra Costa County Sherin's Department about the
Safeway rally.
Shortly after the incident, the department changed the name
of the Homeland Security Unit and the full extent of the unit's
activities remain shrouded in secrecy. Tis incident may repre-
sent only the tip of the iceberg with regard to the department's
practices. What is clear, however, is that the department still
lacks a policy regulating the surveillance of peaceful demon-
strations, paving the way for possible future abuses. As labor
leader Pulaski explained, using a homeland security justinca-
tion to monitor lawful activity ¨is sending a chilling and in-
timidating message to all of us."
127
SANTA CRUZ POLICE
DEPARTMENT.
Spying on Parade
Planning Meetings
Police departments both large and small have run afoul of state pri-
vacy protections. In early 2006, the city of Santa Cruz had its own
police spying scandal when undercover omcers attended planning
meetings for the Do It Yourself (DIY) New Year's Parade.
For the past several years, Santa Cruz had held a ¨First Night"
parade on New Year's Eve to create a safe environment for cel-
ebrating the holiday. When Santa Cruz decided to cancel the
parade, Wes Modes and fellow community activists decided to
create their own parade, in part to protest the cancellation but
largely to oner a forum for art and ideas. Among the intend-
ed purposes of the event were ¨free expression, empowerment,
blowing minds, revolution,
political involvement, devel-
oping alternative communi-
ty, showing the power of the
people, seeing more whimsy
in our town, developing DIY
culture, community."
128
Organizers decided not to
seek parade permits, a deci-
sion they explained on their
Web site:
Our institutions can
barely manage their own
anairs. And now, First
Night, our little city-
sponsored humdrum
New Year's safe-and-
sane event, has nnally imploded. It has never been clearer
that we can't rely on anyone but ourselves. But after all, we
make this city. And we create communities. Us. We are the
force that has always made our communities connected and
vital and full of life.
129
Police found out about parade plans in late October. Rather
than contacting the organizers to facilitate the event or learn
more about their plans, Santa Cruz Deputy Police Chief Kevin
Vogel and Lieutenant Rudy Escalante decided to innltrate the
group's parade planning meetings instead.
130

Te Santa Cruz Police Department sent in undercover om-
cers with no consideration for potential privacy concerns and
no information suggesting that the group was likely to engage
in destructive or violent behavior. As explained by Santa Cruz
Independent Police Auditor Bob Aaronson, the undercover op-
eration ¨was not perceived to be 'a big deal.' "
131
When parade organizers learned that their meetings had been
innltrated, they informed the press. Santa Cruz City Council
members expressed their concern and demanded answers. Po-
lice Chief Howard Skerry promised a complete investigation.
Rather than conducting the inquiry himself, or using omcers
not involved in the initial decision however, Chief Skerry tapped
Deputy Chief Vogel-the very person who authorized the innl-
tration-to investigate whether the authorization was appropri-
ate. Not surprisingly, Vogel's report cleared the Santa Cruz Police
Department of any wrongdoing.
132
Community activists and the ACLU-NC denounced the
investigation, highlighting the clear connict of interest. Santa
Cruz's Independent Police Auditor Bob Aaronson objected in a
letter to the Santa Cruz City Manager, stating:
I regret to say that this Internal Investigation, for my pur-
poses, is incomplete and nawed for a very predictable rea-
son. It violates one of the
most basic investigative pre-
cepts by having been com-
piled and written by the very
individual whose decisions
are/should be under investi-
gative scrutiny.
133
Te city manager then
authorized Aaronson to con-
duct his own investigation.
In a 34-page report, the au-
ditor analyzed the actions of
the department and the con-
stitutional right to privacy.
Aaronson's report concluded
that the parade organizers'
rights were violated:
¯THE SANTA CRUZ POLICE
DEPARTMENT VIOLATED
THE...PARADE ORGANIZERS¹
RIGHTS TO PRIVACY,
FREEDOM OF SPEECH AND
FREEDOM OF ASSEMBLY.º
÷SANTA CRUZ POLICE
AUDITOR BOB AARONSON
The State of Surveillance I8
Te Santa Cruz Police Department violated the Last Night
DIY Parade organizers' rights to privacy, freedom of speech
and freedom of assembly in the manner in which they went
about obtaining information about the organizers' activities.
While the Department was obligated to collect information
about the event, it was not free to choose the means without
due consideration of the rights of the people involved. Less
intrusive alternatives were available, but none were tried.
134
Aaronson found that the root of the problems that led to the
incident was a lack of policy and training on the protections af-
forded by California's privacy provisions and White v. Davis, the
landmark California Supreme Court case interpreting the state's
constitutional right to privacy. Aaronson suggested that the in-
cident presented the city with an opportunity to come together
as a community to develop a clear policy addressing the obliga-
tions of law enforcement under the state constitutional right to
privacy.
135

In April 2006, with the backing of the city council, the Santa
Cruz City Manager convened a working group to begin crafting
a new police department policy, seeking input from the ACLU.
Te new policy, which was issued on July 5, 2006, represents a
signincant improvement.
136
Te policy now prohibits the use of
undercover omcers to investigate organizations in the absence
of reasonable suspicion of a crime and requires the department,
when feasible, to open dialogue with organizations rather than
conducting surveillance.
Collaboration and communication toward a new policy rep-
resents an ideal solution. However, it will lead to positive change
only if all parties commit to open dialogue and a shared goal of
developing and implementing a comprehensive policy.
Despite the changes, the Santa Cruz policy still does not regu-
late monitoring organizations beyond the use of undercover of-
ncers, does not denne First Amendment protected activity, and
does not provide sumcient guidance to omcers. Santa Cruz of-
ncials have promised additional dialogue, including another city
council hearing. Although it is too soon to tell what the ultimate
outcome of the process in Santa Cruz will be, it is clear that col-
laborative solutions oner the greatest promise in bringing about
substantial reform.
SAN FRANCISCO POLICE
DEPARTMENT.
Policies Work Only
When They Are Followed
Many police departments have no policies whatsoever regu-
lating the use of undercover omcers to monitor political ac-
tivities. Other departments have regulations, but do not al-
ways follow them.
Te San Francisco Police Department's policy on undercover
omcers includes the strongest protections for First Amendment
activity in Northern and Central California, if not the nation.
Te San Francisco regulations were written and adopted follow-
ing a police spying scandal in the 1990s. Te policy stands as a
model for other jurisdictions.
However, even the best policies are inenective if they are not
followed. Tat is exactly what happened when San Francisco
saw huge protests against the war in Iraq between October 2002
and February 2003. During these demonstrations, several San
Francisco police omcers posed as protesters to monitor crowd
activities. One omcer even wore a pin of Cuban revolutionary
Che Guevara on his hat. Tis undercover protest monitoring
was never authorized by the chief of police, representing a fail-
ure to follow San Francisco's Guidelines for First Amendment
Activities.
137

Te violations came to light during a routine audit of police
practices by the Omce of Citizen Complaints (OCC). Under a
section entitled ¨Critical Concerns," the audit noted the viola-
tion, nnding that ¨certain omcers, supervisors and command
stan involved in requesting, providing or authorizing under-
cover surveillance were not trained or were not responsive to
training on the Guidelines for First Amendment Activities."
138

After the OCC report was made public, the police department
conducted an internal investigation that resulted in minor dis-
ciplinary action.
139

What happened in San Francisco demonstrates that even
the strongest policies must be vigorously followed and
monitored. The independent audit by the OCC proved
critical in exposing the SFPD's failure to follow its own reg-
ulations. It serves as an important reminder of the value of
Undercover San Franci s co pol i ce of f i cers s ecret l y
moni t ored ant i - war demons t rat i ons l i ke t hi s one, i n
vi ol at i on of depar t ment pol i cy.
J
E
F
F

P
A
T
E
R
S
O
N
I9 The State of Surveillance
independent oversight and review of intelligence operations,
a practice that is far too uncommon in police and sheriff 's
departments.
SACRAMENTO POLICE
DEPARTMENT.
Protest as ¯Crime Sceneº
Police videotaping is another means of conducting surveillance
of dissent that represents intimidation and chills protest activ-
ity. Sometimes police legitimately videotape demonstrations for
training purposes or to document specinc acts of unlawful activ-
ity. However, when the videotaping is used to identify members
of a crowd who are peacefully exercising their First Amendment
rights, it raises signincant privacy concerns.
On February 15, 2003, peace and justice organizations held a
demonstration in Sacramento to protest the then-impending war
in Iraq. Approximately 10,000
people attended the peaceful anti-
war demonstration at the state
capitol. Te Sacramento Police
Department provided security
for the event. Tey also sent a
police department employee to
videotape the demonstration. Te
videotaper wore a jacket labeled
¨Identincation Specialist" and was
accompanied by two uniformed
omcers.
140

Demonstrators were alarmed
to see the employee videotaping
protesters and members of the
crowd. Maggie Coulter, a demonstration organizer, said, ¨I think
it's intimidation. What in God's name are the police doing here,
walking through the crowds in their black uniforms nlming ev-
eryone. It sends chills through you." Coulter asked the ¨Identin-
cation Specialist" why she was videotaping the crowd. Te police
employee responded, ¨Tis is a crime scene."
141

Sacramento Police Sergeant Justin Risley connrmed that taping
of the protest was at least partially intended to modify protesters'
behavior. As Risley told the Sacramento Bee, ¨What happens in a
crowd is that there is a sense of anonymity, a lessening of personal
responsibility. A riot mentality can develop. But if somebody feels
they're being nlmed, their behavior suddenly improves."
142
According to Professor Kevin Johnson of the University of
California Davis Law School, such police actions are intimidat-
ing and raise signincant privacy concerns:
Under the current climate, with civil liberties being limited
in the name of national security, such conduct by police
may well cause concern among peaceful protesters. Politi-
cal activists may feel threatened, especially immigrants who
may be subject to deportation for political activitie. Te
whole setup is designed to intimidate at some level.
143
Sacramento's videotaping practices may also be inconsistent
with past policy agreements by the city. In 1983, in response to
a lawsuit brought by the ACLU-NC, Sacramento agreed to limit
their use of video surveillance of individuals at political events.
According to the settlement, individuals may only be singled
out for nlming where the person is engaged or beginning to en-
gage in criminal activity: ¨Individuals who are speaking at rallies,
or handing out literature, or engaging in other peaceful, consti-
tutionally protected activities shall not be singled out for photo-
graphing or recording."
144

It is intimidating to be videotaped by a uniformed police em-
ployee or have a lawful protest viewed as a crime scene. It is
unsettling in the extreme to nnd out that a fellow organization
member-perhaps even an or-
ganization leader-is actually an
undercover police omcer.
In San Francisco we saw the
consequences of having a policy,
even an exemplary policy, that
is not consistently followed. In
Fresno, we saw what happens
when no policy is in place at all.
In Santa Cruz, we see a depart-
ment moving toward reform
with a new policy that represents
some progress but still contains
signincant denciencies.
To protect the rights of those engaging in lawful political
activity, police departments must have policies in place that re-
strict surveillance of dissent and regulate the use of undercover
omcers monitoring activities protected by the First Amend-
ment. Mechanisms must also be established to ensure that
those policies are followed and enforced, including adequate
auditing measures. Tese policies are needed to protect rights
constitutionally guaranteed to all Californians. Unfortunately,
those rights have been inadequately understood and dissemi-
nated throughout the ranks of California law enforcement.
¯THIS IS A CRIME
SCENE.º
÷SACRAMENTO POLICE
EMPLOYEE DESCRIBING
AN ANTI-WAR MARCH
The State of Surveillance ?0
T
he monitoring of political activity at the state and local level
has not occurred for lack of constitutional protection. In
fact, California's constitutional right to privacy provides greater
protections than the federal Constitution. It is California law
that prohibits surveillance of free speech activity in the absence
of reasonable suspicion of a crime. Although this right exists as
a legal principle in California, there is little regulation in place
to enforce it.
ATTEMPTS AT
REGULATION.
The Lockyer Manual
Following the April 2003 Port of Oakland incident and subse-
quent disclosures about the California Anti-Terrorism Informa-
tion Center (CATIC), the ACLU-NC urged Attorney General
Bill Lockyer to issue guidelines for local law enforcement.
Te resulting Lockyer Manual states that law enforcement
must have reasonable suspicion of a crime to engage in surveil-
lance of political activity. It outlines California's constitutional
privacy protections and the state Supreme Court decisions in-
terpreting and connrming those privacy rights. According to the
manual, which was distributed to California local law enforce-
ment agencies:
[A]bsent an articulable criminal predicate for the gathering
of information it will not be possible to justify it under the
general heading of intelligence activity. Specincally, White
[the leading California Supreme Court precedent on this
issue] teaches that there must be some connection between
the information gathered and unlawful activity. Put another
way, White is a warning to law enforcement in California
that it cannot operate from the premise that it can gather
intelligence on citizens' activities regardless of any articu-
lable connection to unlawful action.. [W]here there is no
indication that the information relates to acts which impact
the safety of the public or individual members of the public
it should not be collected."
145
(emphasis original)
Lockyer emphasized the need for privacy protections in several
public statements and explained the importance of educating lo-
cal law enforcement on these protections:
We hope to do a variety of things to be sure that our agents
and allies in law enforcement don't interpret it in ways
that would allow spying on political groups or innltrating
mosques or things of that sort that I guess some believe
could be done under the federal guidelines. We explicitly
reject any work of that sort in California. It doesn't have a
criminal predicate and that's the basis of our investigative
activities.
146

Nathan Barankin, Lockyer's spokesperson, also spoke to the
Lockyer Manual's policy and education goals:
Tis report, we hope, will help law enforcement agencies
understand the complex rights and responsibilities of both
law enforcement and the public. What the [attorney gen-
eral] hopes is that they'll get it, and they'll read it, and take
a look at their own policies to make sure they have enective
and good ones in place.
147
Clarifying and communicating policies around surveillance
and privacy protections to local law enforcement is imperative,
and the ACLU-NC was pleased to see Attorney General Lockyer
agree. However, we were curious to what extent the Lockyer
Manual had in fact enected changes in policy and practice.
LOCKYER MANUAL
IMPLEMENTATION.
A Survey of Efficacy
Te ACLU-NC surveyed 103 police and sherin's departments
across California in 2005 to assess local law enforcement imple-
mentation of the Lockyer Manual. (More information on survey
methodology is available at www.aclunc.org/surveillance_report.)
Te survey asked for the following information:
n All policies, bulletins, and training materials implementing
the Lockyer Manual
n All documents governing the circumstances under which
law enforcement may or may not monitor or gather intel-
ligence on individuals or organizations engaged in political
or religious activity
n Whether the law enforcement department is a member of an
FBI Joint Terrorism Task Force, and, if so, what rules govern
that membership
PART V. CALIFORNIA LAW AND
THE LACK OF SURVEILLANCE
REGULATION
?I The State of Surveillance
The survey revealed a profound lack of regulation and a
disappointing level of familiarity with the Lockyer Manual.
Of the police and sheriff 's departments surveyed, 94 pro-
vided some documents or a substantive response. Not one
department of the 94 respondents had policy or training
materials that referenced the Lockyer Manual. Only eight
departments said they were aware of the document, used it
for guidance, or distributed it to their members. The vast
majority of respondents provided no documents. At least one
department, the Westminster Police Department, had never
heard of the manual:
I was not aware of the Lockyer Manual until its mention
in this letter. I have searched the web brieny, and have
been unsuccessful in locating it. Terefore, I am also not
aware of any ¨orders, bulletins, guidelines, policy state-
ment, training materials, manuals or any other documents
relating to the Lockyer Manual."
148

Other departments refused to respond to our survey in any
substantive way. The Torrance Police Department suggested
that fulfilling our request for information ¨could assist those
who are considering or planning to engage in terrorist ac-
tivity." This response provides another salient example of a
tendency among some in law enforcement to blur the line
between legitimate political activity and terrorism.
149

Policies were similarly deficient in enumerating privacy
protections. Out of the 94 responding departments, only
ACLU-NC SURVEY OF LOCKYER MANUAL
IMPLEMENTATION BY CALIFORNIA POLICE
& SHERIFF¹S DEPARTMENTS*
Number of departments surveyed. I0·
Number of departments that responded. 94
Number of departments participating in,
having a liason to, or ad hoc membership
in a Joint Terrorism Task Force. ·0
Number of departments that have regulations governing
the creation of intelligence files. ??
Number of departments that used, distributed,
or indicated an awareness of the Lockyer Manual. 8
Number of departments that have restrictions
on surveillance activities. c
Number of departments that have policies referencing
California¹s constitutional right to privacy. I
*?00S survey
The State of Surveillance ??
one agency had a direct refer-
ence to the California consti-
tutional right to privacy, and
that was in a references section
at the end of the policy.
150
A
few departments' policies had
vague references to the right
to privacy, but even those
lacked the strong language of
the Lockyer Manual.
Te vast majority of law
enforcement agencies did not
have policies regulating the circumstances under which of-
ncers may monitor or gather information on individuals en-
gaged in political activity. Out of the 94 responsive police and
sherin's departments, only 6 departments had any policies
regulating the monitoring of protected activity. Te strongest
policy in the state was from San Francisco, which provides
broad protections for individuals and guidelines for omcers
in addition to auditing and reporting procedures designed to
guard against abus-
es.
151
Te Los Angeles
Police Department
also has detailed pro-
cedures.
152
Some local law en-
forcement did have
regulations on cre-
ating intelligence
files. Several major
police and sheriff 's
departments, includ-
ing San Jose, San Di-
ego, Modesto, and
Long Beach, require
that there be rea-
sonable suspicion before opening an intelligence file on an
individual. Still, among the 94 departments responding to
our survey, only 22 agencies had any policies restricting the
creation of intelligence files.
Regulations were even more scarce controlling joint op-
erations between local and federal law enforcement. Over
20 of the 94 responding departments said they are mem-
bers of or affiliated with the FBI's Joint Terrorism Task Force
(JTTF). Yet, these collaborative activities appear to be con-
ducted without policies or adequate training to ensure that
California's constitutional protections are understood and
followed.
Attorney General Lockyer has frequently emphasized that
the California Constitution is more protective of privacy
than federal law. Unfortunately, it appears that this distinc-
tion has not been conveyed to
local law enforcement effective-
ly. None of the task force mem-
bers responding to our survey
provided specific guidance on
California privacy protections
to its task force members.
153
At
least one JTTF partner believes
that its members are obligated
to follow the less protective fed-
eral law, even though they are
California officers. In his re-
sponse to our survey, Sanford A. Toyen, Legal Advisor to the
San Diego County Sheriff, said:
The FBI and not the Sheriff 's Department dictates policy
statements, general orders, manual, and other material
covering the functions and duties of JTTF members.
154
The ACLU-NC survey findings mirror Santa Cruz Inde-
pendent Auditor Bob Aaronson's conclusions, enumerated in
his report on under-
cover officers infiltrat-
ing Santa Cruz parade
planning meetings. He
found that the issue of
limitations on gov-
ernment surveillance
of political activity
is ¨inadequately ad-
dressed, to the extent
that it is addressed
anywhere. As well,
neither Santa Cruz
nor the vast majority
of other law enforce-
ment agencies, large
or small, have explicit policies which adequately deal with
the issue."
155

THE VAST MAJORITY OF LAW
ENFORCEMENT AGENCIES DID NOT
HAVE POLICIES REGULATING THE
CIRCUMSTANCES UNDER WHICH
OFFICERS MAY MONITOR OR GATHER
INFORMATION ON INDIVIDUALS
ENGAGED IN POLITICAL ACTIVITY.
THE SURVEY REVEALED
A PROFOUND LACK OF
REGULATION AND A
DISAPPOINTING LEVEL OF
FAMILIARITY WITH THE
LOCKYER MANUAL.
?· The State of Surveillance
PART VI. RECOMMENDED
REFORMS FOR LAW ENFORCEMENT
SURVEILLANCE ACTIVITIES IN
CALIFORNIA
H
istory has shown that acute problems develop when sur-
veillance of political activity is allowed to continue without
regard for privacy protections. Te increase in inappropriate gov-
ernment surveillance of the past nve years, combined with a lack
of regulation, oversight, and accountability, mandates a response
at both the state and local level.
Policies are not only vital for preserving civil liberties, they
also represent good law enforcement practice that leads to ef-
fective results. In the words of California Attorney General Bill
Lockyer: ¨We can protect our freedoms and our public safety..
If people don't trust the police, it makes it much harder to get
the job done. If you respect people's civil liberties, you're more
likely to get assistance."
156
Te International Association of Chiefs of Police (IACP) dis-
cussed the importance of policies at length in its 2005 report,
¨Intelligence-Led Policing: Te New Intelligence Architecture."
Te IACP argued that although intelligence functions are criti-
cal to solving crimes, intelligence gathering must nevertheless be
specinc and regulated.
157
Having learned from the abuses of the 1960s and '70s, the
IACP specincally highlights the need for privacy protections. As
the report states, all agencies should ¨ensure that privacy issues
are protected by policy and practice. Tese can be done without
hindering the intelligence process and will reduce your organiza-
tion's liability concerns."
158
Unregulated intelligence gathering simply is not enective
policing, the IACP stressed. It emphasized the importance of
understanding what intelligence actually is, and warned of the
perils of confusing information with intelligence. Collecting
excessive amounts of irrelevant information does not improve
law enforcement's enectiveness. Useful intelligence is produced
through targeted information collection and good analysis. As
the IACP instructed, ¨To be enective, intelligence collection
must be planned and focused; its methods must be coordinated,
and its guidelines must prohibit illegal methods of obtaining
information."
159

In light of these recommendations from the law enforcement com-
munity and the examples of surveillance abuses described in this re-
port, the ACLU of Northern California recommends the following
reforms for law enforcement surveillance activities in California.
1. ADOPT AND IMPLEMENT LOCAL LAW
ENFORCEMENT REGULATIONS. Most of the
state's local law enforcement agencies have no policies
regulating when omcers can monitor or innltrate groups
engaging in First Amendment protected activity. Califor-
nia Attorney General Bill Lockyer had the right idea when
he issued the Lockyer Manual. However, local law en-
forcement policies have not incorporated Lockyer's man-
ual or his instructions about privacy rights.
To remedy this lack of guidance and information, the follow-
ing actions should be taken:
a. California Attorney General Bill Lockyer
should issue specific guidelines to local law
enforcement on California's constitutional
right to privacy and state law's limits on col-
lecting information and undercover moni-
toring of political activity. Te current Lockyer
Manual, while helpful, is lengthy and covers sev-
eral topics. Because it is not written as a policy or
bulletin, it is not well suited for training. Te new
guidelines should clarify what the attorney general
has asserted in the past: ¨We can't do surveillance or
investigate without reasonable suspicion." Given law
enforcement agencies' failure to implement his 2003
manual, Lockyer's new guidelines need to be specinc
and direct.
b. Attorney General Lockyer must actively
promote implementation of the guidelines.
Te California Constitution charges the attorney
general with supervising all local sherins. Lockyer
should utilize this authority and direct local sherins
to implement these new surveillance guidelines. Al-
though the attorney general does not have the same
authority over local police departments, his position
as California's top law enforcement omcer accords
him a great deal of persuasive power. Te attorney
general should utilize his position and actively push
for regulations governing surveillance in California.
The State of Surveillance ?4
c. The California Legislature should pass legisla-
tion requiring local law enforcement agencies to
report on their surveillance activities to the Leg-
islative Analyst's Office (LAO) annually. Reports
by local police and sherin's departments should include
copies of their policies, the number of times the agency
investigated or used undercover omcers to monitor or-
ganizations engaging in protected activity, the circum-
stances surrounding the monitoring, and any violations
of department surveillance policies. Te LAO should re-
lease the reports' policy and statistical information to the
public annually.
d. Local law enforcement and local governments
should proactively adopt policies protecting
the privacy rights of individuals. Local regulations
should clearly state that law enforcement may not moni-
tor or innltrate organizations engaged in First Amend-
ment protected activity in the absence of reasonable
suspicion of a crime. Fortunately, several good policies
already exist. Te best of these surveillance policies are
combined into a ¨best practices" policy that is attached
as Appendix A. We recommend that every law enforce-
ment agency adopt and implement a policy similar to
this one.
2. THE CALIFORNIA LEGISLATURE SHOULD
PASS LEGISLATION REGULATING STATE IN-
TELLIGENCE AGENCIES. The California Anti-
Terrorism Information Center and the California National
Guard have both recently been involved in inappropriate
monitoring of political activity. Current reports indicate
that the state Office of Homeland Security (OHS) lacks
sufficient regulation and may have attempted to imple-
ment several programs with serious civil liberties con-
cerns. The California Legislature should act to regulate
these agencies by doing the following:
a. The California Legislature should pass Senator
Joe Dunn's SB 1696 and the governor should
sign it. Dunn's legislation prohibits the California Na-
tional Guard from engaging in domestic surveillance
without express approval from the state legislature. Tis
piece of legislation mirrors the federal Posse Comitatus
Act, which prohibits the military from engaging in do-
mestic policing activities.
b. The California Legislature should pass legisla-
tion regulating the state's intelligence agencies.
Te legislature should create an Inspector General po-
sition to audit and investigate complaints against OHS
and other state-level intelligence agencies. Te Inspector
General should be required to issue regular reports delin-
eating activities that could potentially impact individu-
als' constitutional rights. An Inspector General will act
as a control on OHS, which is currently insumciently
regulated, and has broad authority over signincant intel-
ligence functions.
3. INSTITUTE REGULATIONS, REVIEW, AND
TRAINING PROTECTING THE RIGHT TO
PRIVACY IN LOCAL LAW ENFORCEMENT' S
JOINT OPERATIONS WITH FEDERAL AGEN-
CIES. California's Constitution provides greater protection
than federal law, but local agencies do not provide FBI Joint
Terrorism Task Forces (JTTF) members with instructions or
regulations to safeguard those protections. Agencies at both
the state and local level should take action to prevent Cali-
fornia omcers from becoming entangled in federal programs
that may violate California law. Documents obtained by the
ACLU nationally suggest that the JTTFs are gathering infor-
mation about political organizations in a manner that may
violate California's constitutional right to privacy.
a. Both the state attorney general and local law en-
forcement executives should issue specific guide-
lines to state and local law enforcement serving
on FBI Joint Terrorism Task Forces. These guide-
lines should outline the differences between
state and federal requirements and highlight an
officer's responsibility to follow California law.
Local omcials should not participate in JTTF assign-
ments that violate California law.
b. Local city councils and boards of supervisors
should hold annual hearings to review their ju-
risdiction's participation in Joint Terrorism Task
Forces. At the hearings, omcials should carefully exam-
ine local JTTFs' roles in surveillance of political activity
and any racial, ethnic, or religious pronling being used or
suspected of being used. Tese hearings follow the model
used by Portland, Oregon, which held hearings on the
local JTTF for years, and by the Contra Costa County
Board of Supervisors, which passed legislation last year
requiring annual JTTF review hearings.
160
?S The State of Surveillance
PART VII. CONCLUSION
O
ver the last several years, increased intelligence funding, an
inadequate understanding of privacy laws and protections
for political activity, and a profound lack of regulation have all
led to inappropriate monitoring of organizations and individuals
engaged in constitutionally protected political activity.
We have become aware of the stories in this report largely
by chance. If history is any guide, they are only the tip of the
iceberg.
At this moment in our history, state and local omcials possess
a unique opportunity. Tey must take action now and protect
Californians' privacy, before even greater abuses occur.
Tirty years ago, the U.S. Senate-appointed Church Com-
mittee investigating government surveillance wrote: ¨In time
of crisis, the government will exercise its power to conduct do-
mestic intelligence activities to the fullest extent. Te distinction
between legal dissent and criminal conduct is easily forgotten."
Tat lesson is as salient now as it was then.
Again and again, Californians expressed strong support for
individual privacy rights. Historically and today, political ac-
tivity, dissent, and freedom of expression occupy a vital place
in our state.
Government omcials and law enforcement have the elected
duty to institute policies, educate omcers, and conduct reviews
to ensure that California maintains a clear distinction between
dissent and criminal conduct. Teir actions are essential to pro-
tecting political activity and free expression in California.
IF HISTORY IS ANY GUIDE,
]THE STORIES IN THIS
REPORT¦ ARE ONLY THE TIP
OF THE ICEBERG.
The State of Surveillance ?c
APPENDIX A.
BEST PRACTICES GUIDELINES
FOR FIRST AMENDMENT
ACTIVITIES
T
hese guidelines come from policies in use by law enforce-
ment agencies throughout Northern and Central California.
Although this may not represent a truly ¨model policy," it does
gather together some of the best policies on First Amendment
activities currently employed by regional law enforcement agen-
cies. Tis policy focuses on issues relating to First Amendment
activities, privacy, and oversight; it is not intended as a compre-
hensive policy covering all aspects of criminal intelligence.
I. STATEMENT OF PRINCIPLES
A. Te Santa Cruz Police Department supports the right
of citizens to freely associate without government inter-
ference, respects the protections anorded Americans by
the First and Fourth Amendments to the Constitution
of the United States and respects the right of privacy
guaranteed to individuals under the State and Federal
Constitutions. (Santa Cruz Police Department Depart-
mental Directive, section 610 Undercover Operations,
July 5, 2006))
II. DEFINITIONS
A. First Amendment Activity: All speech associations
and/or conduct protected by the First Amendment and/
or California Constitutions Article I, section 2 (Free-
dom of Speech) and/or Article 3 (Right to Assemble and
Petition the Government, including but not limited to
expression, advocacy, association or participation in ex-
pressive conduct to further any political or social opinion
or religious belief ). Examples include speaking, meeting,
writing, marching, picketing or other expressive conduct
protected by the First Amendment. (San Francisco Po-
lice Department General Order 8.10, Guidelines for
First Amendment Protected Activities, June 30, 1999)
B. Articulable and Reasonable Suspicion: Te stan-
dard of reasonable suspicion is lower than probable
cause. Tis standard requires members to be able to ar-
ticulate specinc facts or circumstances indicating a past,
current, or impending violation, and there must be an
objective basis for initiating an investigation. A mere
hunch is insumcient.
1. Demonstrations. Te Department shall not con-
duct an investigation in connection with a planned
political demonstration, march, rally or other public
event, including an act of civil disobedience, unless
the prerequisites of Section [III A] are met. Nothing
shall preclude the Department, however, from open-
ly contacting organizations or persons knowledge-
able about a public event to facilitate tramc control,
crowd management or other safety measures at the
event. (San Francisco Police Department General
Order 8.10, Guidelines for First Amendment Pro-
tected Activities, June 30, 1999)
III. INVESTIGATIVE STANDARDS
A. When a Criminal Investigation That Involves
First Amendment Activities Is Permitted. Te
Department may conduct a criminal investigation that
involves the First Amendment activities of persons,
groups, or organizations when there is articulable and
reasonable suspicion to believe that:
1. Tey are planning or engaged in criminal activity
a. Which could reasonably be expected to
result in bodily injury and/or property
damage in excess of $2500
b. Or which constitutes a felony or misde-
meanor hate crime
2. And the First Amendment activities are relevant to
the criminal investigation. (San Francisco Police De-
partment General Order 8.10, Guidelines for First
Amendment Protected Activities, June 30, 1999)
?I The State of Surveillance
B. When These Guidelines Apply
1. Te Department must follow these guidelines in
every criminal investigation that involves the First
Amendment activities of a person, group or orga-
nization. Tese guidelines do not apply to criminal
investigations that do not involve First Amendment
activities.
2. Tese guidelines are intended to regulate the con-
duct of criminal investigations that involve First
Amendment activities by requiring
a. Written justincation for the investigation and
b. Written approval by the commanding
Omcer of the Special Investigations Divi-
sion, Deputy Chief of Investigations and
the Chief of Police.
3. Tese guidelines, however, are not intended to in-
terfere with investigation into criminal activity. In-
vestigations of criminal activities that involve First
Amendment activities are permitted provided that
the investigation is justined and document as re-
quired by these Guidelines. (San Francisco Police
Department General Order 8.10, Guidelines for
First Amendment Protected Activities, June 30,
1999)
IV. AUTHORIZATION OF INVESTIGATIONS
A. A member of the Department may undertake an inves-
tigation that comes within these guidelines only after re-
ceiving prior written authorization by the Commanding
Omcer of the Special Investigations Division (SID), the
Deputy Chief of the Investigations Bureau and the Chief
of Police. (San Francisco Police Department General Or-
der 8.10, Guidelines for First Amendment Protected Ac-
tivities, June 30, 1999)
V. USE OF UNDERCOVER OFFICERS
A. Undercover Investigation: Authorization
No undercover investigation shall be commenced with-
out the written approval of the Chief of Police and
Committee.
Exception: In an emergency involving a life threatening
situation and the Undercover Committee is unavailable,
an undercover investigation may be commenced with the
approval of the Chief of Police. Telephonic notincation to
the Undercover Committee shall be made as soon as pos-
sible and written approval from the Undercover Commit-
tee shall be requested within 72 hours. (Los Angeles Police
Department ATD Anti-Terrorism Division Standards and
Procedures, March 18, 2003)
B. Less Restrictive Alternatives
Absent exigent circumstances that require an undercover
investigation to commence immediately, the Police Depart-
ment will not undertake any such undercover investiga-
tion unless it has nrst sought to gather information it seeks
through direct and open communication with the subject
of the investigation or the subject's membership. Autho-
rized undercover investigations shall use the least intrusive
techniques possible given the circumstances. Examples of
less intrusive techniques include tactics such as research-
ing departmental records or researching public records,
the Internet, or other information sources accessible by the
general public. When covert surveillance becomes neces-
sary, the Police Department whenever feasible shall conduct
that surveillance from a public location before undertak-
ing surveillance from private property with or without the
property owner's consent. (Santa Cruz Police Department
Departmental Directive, Section 610 Undercover Opera-
tions, July 5, 2006)
C. Conduct of Undercover Officers
Tactics employed by police personnel will comply with ex-
isting law, will not entail entrapment, and will not further
criminal acts. Undercover omcers shall not assume leader-
ship positions in the organizations under surveillance and
shall not attempt to direct organizational activities. (Santa
Cruz Police Department Departmental Directive, Section
610 Undercover Operations, July 5, 2006)
D. Time Duration
No undercover investigation instituted per this policy shall
extend for more than thirty days without the Police Chief or
Deputy Police Chief 's authorization to extend the investiga-
tion. Extension authorizations may not exceed thirty days
in duration. (Santa Cruz Police Department Departmen-
tal Directive, Section 610 Undercover Operations, July 5,
2006)
The State of Surveillance ?8
E. Continuing Need for Reasonable Suspicion
Any such undercover investigation shall immediately cease
when the investigation or other information reveals that the
reasonable suspicion which prompted the investigation is
unfounded. (Santa Cruz Police Department Departmen-
tal Directive, Section 610 Undercover Operations, July 5,
2006)
VI. INTELLIGENCE FILES
A. Creation of Intelligence Files: Restrictions
1. Only criminal intelligence information concerning
an individual or group may be collected and main-
tained if there is ¨reasonable suspicion" that the in-
dividual or group is involved in criminal conduct or
activity, the information is relevant to that criminal
conduct or activity, and relates to activities that pres-
ent a threat to the community.
2. Criminal intelligence information shall not be col-
lected or maintained about the political, religious, or
social views, associations, or activities of any individ-
ual or any group, association, corporation, business,
partnership, or other organization, UNLESS such
information directly relates to criminal conduct or
activity AND there is reasonable suspicion that the
subject of the information is or may be involved in
criminal conduct or activity. (Modesto Police De-
partment General Order 5.02, May 1, 2005, em-
phasis in original)
B. Information Dissemination
1. Te dissemination level is the classincation of infor-
mation and how it is to be shared with agencies, if
at all. If more than one agency submits information
on the same subject and the information is linked
in the automated database, the dissemination level
viewed in the system must renect the most restrictive
dissemination level...
2. Only authorized personnel shall disseminate crimi-
nal intelligence information and only where there
is a need-to-know and a right-to-know the infor-
mation in the performance of a law enforcement
activity.
3. Criminal intelligence information shall be dissemi-
nated only to law enforcement or criminal investiga-
tive authorities that shall agree to follow procedures
regarding information receipt, maintenance, secu-
rity, and dissemination that are consistent with this
General Order. Tis shall not limit the dissemina-
tion of an assessment of criminal intelligence infor-
mation to a government omcial or any other indi-
vidual, when necessary, to avoid imminent danger
to life or property.
4. An audit trail or dissemination record is required
when information is disseminated from the data-
base. Te record shall contain the following infor-
mation:
a. The date of dissemination of the in-
formation
b. Te name of the individual requesting
the information
c. Te name of the agency requesting the
information
d. Te reason for the release of the informa-
tion (need-to-know/right-to-know)
e. The information provided by the
requester
f. Te name of the stan member dissemi-
nating the information (Modesto Police
Department General Order 5.02, May 1,
2005)
C. File Review and Purge
Information stored in the Criminal Intelligence nles should
be reviewed periodically for reclassincation or purge in or-
der to ensure that the nle is current, accurate, and relevant
to the needs and objectives of our department; safeguard
the individuals' right of privacy as guaranteed under fed-
eral and state laws; and, ensure that the security classinca-
tion level remains appropriate..Reclassifying and purg-
ing information in the intelligence nle should be done on
an ongoing basis as documents are reviewed. In addition,
a complete review of the Criminal Intelligence nle for
?9 The State of Surveillance
purging purposes will be undertaken every nve years..
Materials purged from our Criminal Intelligence nle will
be destroyed in accordance with applicable laws, rule, and
state/local policy. (San Jose Police Department Criminal
Intelligence Unit, Operating Procedures, October 20,
2004)
VII. VIDEOTAPING
A. Authorization
It is the policy of the Department to videotape and photo-
graph in a manner that minimizes interference with people
lawfully participating in First Amendment events. Video
or photographic equipment shall not be brought or used
without the written authorization of the Event Command-
er. (San Francisco Police Department General Order 8.10,
Guidelines for First Amendment Protected Activities, June
30, 1999)
B. Purpose
Te Department shall videotape or photograph only for
crowd control training or evidentiary purposes. Evidentiary
purposes shall include only:
1. Evidence that is reasonably likely to be used in adminis-
trative, civil, or criminal proceeding or investigations.
2. Evidence related to allegations against members of
the Department. (San Francisco Police Department
General Order 8.10, Guidelines for First Amend-
ment Protected Activities, June 30, 1999)
VIII. AUDIT AND REVIEW
A. Police Commission Review
On an annual basis, the Police Commission shall conduct
or request an outside auditor to conduct an audit of the
Department's nles, records and documents to determine
whether the Department is in compliance with the guide-
lines. In addition, the Police Commission may conduct
such an audit unannounced at any time.
1. In conducting the yearly audit, the Police Commission
shall review the following:
a. All current guidelines, rules and memoranda inter-
preting the guidelines
b. All documents relating to investigations subject to
Section III, and undercover techniques to Section
[V] of these guidelines
c. All Agency Assisted Forms or other documentation
relating to the transmittal of documents to other crimi-
nal justice agencies, as described in Section [VI B].
2. Te Police Commission shall prepare a written report
concerning its annual audit, which shall include but not
be limited to:
a. Te number of investigations authorized during the
prior year.
b. Te number of authorizations sought but denied.
c. Te number of times that undercover omcers or in-
nltrators were approved.
d. Te number and types of unlawful activities
investigated.
e. Te number and types of arrests and prosecutions
that were the direct and proximate cause of investi-
gations conducted under the guidelines.
f. Te number of requests by members of the public
made expressly pursuant to these guidelines for ac-
cess to records, including:
i. Te number of such requests where docu-
ments or information was produced.
ii. Te number of such requests where the
documents or information did not exist.
iii. Te number of requests denied.
g. Te number of requests from outside agencies, as
documented by an Agency Assist Form, for access
to records of investigations conducted pursuant to
these guidelines, including:
The State of Surveillance ·0
i. Te number of such requests granted.
ii. Te number of such requests denied.
h. A complete description of violations of the guide-
lines, including information about:
i. Te nature and causes of the violation and the
sections of the guidelines that were violated.
ii. Actions taken as a result of discovery of the
violations, including whether any omcer has
been disciplined as a result of the violation.
iii. Recommendations of how to prevent re-
currence of violations of the guidelines that
were discovered during the prior year.
iv. Te report shall not contain data or in-
formation regarding investigations that
are ongoing at the time of the report's
creation. Te data and information,
however, shall be included in the nrst re-
port submitted after the completion of
the investigation.
(San Francisco Police Department General
Order 8.10, Guidelines for First Amend-
ment Protected Activities, June 30, 1999)
IX. VIOLATIONS OF GUIDELINES
A. If the Police Commission determines that an actual vio-
lation of these guidelines and/or First Amendment has
occurred, the Commission shall:
1. Notify the parties about whom information was
gathered or maintained in violation of the guidelines
pursuant to the following:
a. When information is released to individu-
als or organizations, the names and identi-
fying information concerning private citi-
zens other than the individual notined shall
be excised to preserve their privacy.
b. Tere shall be no disclosure if the informa-
tion is reasonably likely to endanger life,
property or physical safety of any particu-
lar person. However.if the information
may be segregated, such that a portion of
the information can be disclosed without
endangering the life or physical safety of
one particular person, that portion of the
information that the Police Commission
concludes can be disclosed without endan-
gering the life or physical safety of any par-
ticular person will be disclosed.
c. Tere shall be no disclosure if disclosure is
prohibited by local, state or federal law.
d. Te Commission may deny disclosure if
disclosure is exempt under San Francisco's
Sunshine Ordinance . with the following
exceptions:
i. Te.exception for personal and
otherwise private information
shall not be applied unless that
information would reveal the
identity of an individual other
than the requesting party.
ii. Te (exemption).of ¨secret in-
vestigative techniques or proce-
dures" shall not be allied to the
fact that a particular procedure
occurred, but only to a descrip-
tion of how that procedure was
executed, and shall apply only
if the information would jeop-
ardize future law enforcement
enorts..
e. No disclosure is required if an investigation
is ongoing, but disclosure may be made
during an ongoing investigation within the
discretion of the Commission.
2. Refer the violation to the Chief of Police for a rec-
ommendation concerning discipline of the members
involved. (San Francisco Police Department General
Order 8.10, Guidelines for First Amendment Pro-
tected Activities, June 30, 1999)
·I The State of Surveillance
ENDNOTES
1
James Risen and Eric Lichtblau, ¨Bush Let U.S. Spy on Callers Without Courts," New York Times, December 16, 2005.
2
Lisa Myers et. al., ¨Is the Pentagon Spying on Americans?" msnbc.com, December 14, 2005.
3
Eric Lichtblau, ¨FBI Watched Activist Groups, New Files Show," New York Times, December 20, 2005.
4
Leslie Cauley, ¨NSA Has Massive Database of Americans' Phone Calls," USA Today, May 11, 2006.
5
David E. Kaplan, ¨Spies Among Us," U.S. News and World Report, May 8, 2006.
6
California now has a central anti-terrorism center and plans to develop four regional intelligence clearinghouses. Police and sherin's
departments throughout the state have developed their own homeland security, anti-terrorism, and intelligence units. Over 20
California police and sherin's departments have joined an FBI Joint Terrorism Task Force. Information obtained from survey
described in Part V.
7
Letter from the ACLU amliates of Northern California, Southern California, and San Diego to Attorney General Bill Lockyer,
November 26, 2001.
8
See, for example, letters from the ACLU-NC to San Francisco, San Jose, and Oakland Police Departments, July 23, 2002.
9
Criminal Intelligence Systems: A California Perspective, September 2003 (¨Lockyer Manual").
10
Intelligence Activities and the Rights of Americans, Book II, Final Report of the Select Committee to Study Governmental Opera-
tions, Senate Report No. 94-755, 94
th
Congress, 2d Session, April 26, 1976 (¨Church Committee Report"), p. 21.
11
Id., p. 22
12
Id., pp. 6, 10, 11.
13
See generally Id., pp. 289-¿.
14
Electronic Privacy Information Center, ¨Te Attorney General's Guidelines," www.epic.org/privacy/fbi.
15
Church Committee Report, p. 68.
16
Id., p. 78.
17
Carol Pogash, ¨Intelligence Unit Sifting 'Garbage' From Its Files," San Francisco Examiner, April 23, 1975.
18
Id.
19
Larry Green, ¨California Agencies Got Spy Dossiers on Non-Criminal Groups from Chicago Police," Los Angeles Times, December
6, 1984.
20
Bill Wallace, ¨Bay Area Police Shared Data on Dissidents With Chicago in 1960's," San Francisco Chronicle, December 7, 1984.
21
Mike Cassidy and Will Miller, ¨Short History of FBI COINTELPRO," Albion Monitor, www.monitor.net/monitor, May 26,
1999.
22
COINTEPLRO was revealed in 1971 when a group of citizens removed secret nles from an FBI omce in Media, Pennsylvania, and
released them to the press. ¨U.S. Admits Army Went Too Far in Its Spying," Los Angeles Times, March 28, 1972, p. 22.
23
Jack Jones, ¨Suit Claims Police at Junior College Spied on Activists," Los Angeles Times, March 21, 1972; Los Angeles Times, June
15, 1972, News note regarding suit against Los Angeles Police Department by UCLA professor Hayden White.
24
White v. Davis (1975) 13 Cal.3d 757, 774 (quoting the ballot argument in favor of the initiative).
25
Sixty-three percent of Californians voted in favor or the measure. Rebecca LaVally, ¨200 Signincant Statutes and Constitutional
Amendments of the 20
th
Century," California Senate Omce of Research, December 1999, www.sen.ca.gov/sor/reports/reports_
by_subj/laws_of_century.
26
White v. Davis, supra, note 24.
27
Lockyer Manual, citing White.
28
In San Francisco, the Police Department gathered information on nearly 100 advocacy organizations leading up to the 1984 Dem-
ocratic Convention. (Bill Wallace, ¨S.F. Cops Spied as Demos Met in '84," San Francisco Examiner, March 7, 1988. Describes
how the San Francisco Police Department gathered information on nearly 100 ¨civil, labor, and special-interest organizations,
including charitable groups," including Catholic Charities of Oakland, the National Lawyers' Guild, and the ACLU.) In 1993,
news broke that an inspector in the SFPD had collected information on a number of largely Arab-American and pro-Palestinian
The State of Surveillance ·?
activists. (Rachel Gordon, ¨Chief Admits Failure to Destroy Cop Files," San Francisco Examiner, January 20, 1993. Describes
Inspector Tom Gerard collecting information on a number of largely Arab-American and pro-Palestinian activists.) Tese scandals
led to reforms, with San Francisco developing a model policy regulating surveillance. By the 1990s, intelligence units throughout
the country were largely connned to large police departments and focused on targeting drug smugglers and organized crime.
Kaplan, supra, note 5.
29
Kaplan, supra, note 5.
30
Church Committee Report, p. 289.
31
Barton Gellman, ¨Te FBI's Secret Scrutiny," Washington Post, November 6, 2005.
32
Christopher H. Schmitt and Edward T. Pound, ¨Keeping Secrets," U.S. News and World Report, December 22, 2003 (noting
Ashcroft's October 12, 2001 directive); Akhil Reed Amar and Vikram David Amar, ¨Te New Regulation Allowing Federal Agents
to Monitor Attorney-Client Conversations: Why It Treatens Fourth Amendment Values," Findlaw, http://writ.news.nndlaw.
com/amar/20011116.html, November 16, 2001.
33
Attorney General John Ashcroft, Senate Judicial Committee Testimony, December 6, 2001.
34
Susan Schmidt and Dan Eggan, ¨FBI Given More Latitude," Washington Post, May 30, 2002.
35
Te Attorney General's Guidelines on General Crimes, Racketeering Enterprise, and Terrorism Enterprise Investigations, May 30,
2002, Section IV.A.2.
36
Omce of the Governor press release, ¨Governor Davis and Attorney General Lockyer Announce Major Terrorism Prevention
Initiative," September 25, 2001.
37
Kaplan, supra, note 5.
38
Kaplan, supra, note 5; ¨Local Homeland Security Units Forming," KRON4.com, November 20, 2003, http://www.kron4.com/
global/story.asp?s=1534748&ClientType=printable (last visited July 10, 2004, describing formation of Contra Costa Sherin
Homeland Security Unit). Other agencies participating in various JTTFs, though not necessarily at the local level, include the De-
partment of Defense and the NSA, both agencies that have been embroiled in illegal spying scandals. See George G. Tenant, Testi-
mony Before the Senate Select Committee on Intelligence, February 6, 2002, www.cia.gov/cia/reports/Ann_Rpt_2002/swtandhs.
html (indicating that the NSA and Defense Intelligence Agency participate on the Federal Joint Terrorism Taskforce).
39
Printout from Direct Action Website obtained from Oakland Police Department pursuant to a Public Records Act Request (PRA
document).
40
Dean E. Murphy, ¨Oakland Police Use Crowd-Control Ammunition at Protest," New York Times, April 8, 2003.
41
Carolyn Marshall, ¨Oakland Nears Final Payouts for Protesters Hurt by Police," New York Times, March 20, 2006.
42
Id.
43
Printouts from ILWU newsgroup, PRA document.
44
CATIC Law Enforcement Advisory, April 2, 2003, PRA document.
45
Ian Honman, Sean Holstege and Josh Richman, ¨State Monitored War Protesters," Oakland Tribune, May 18, 2003.
46
Omce of the Governor Press Release, supra, note 36 (quoting Governor Gray Davis).
47
Ian Honman, Sean Holstege and Josh Richman, supra, note 45.
48
California Anti-Terrorism Information Center (CATIC) Terrorism Advisory for Law Enforcement Use Only, November 7,
2001.
49
CATIC Law Enforcement Advisory, April 5, 2002.
50
CATIC Law Enforcement Advisory, May 14, 2002.
51
CATIC Law Enforcement Advisory, November 8, 2002.
52
Ian Honman and Sean Holstege, ¨State's Terror Analysts Reigned In," Oakland Tribune, July 23, 2006.
53
Executive Order D-67-03, February 7, 2003.
54
Governor's Omce of Homeland Security, ¨California Homeland Security Strategy," March 2005, p. 8.
55
Memorandum from Allen Benitez, Assistant Chief of the Criminal Intelligence Bureau, to Wilfredo Cid, Assistant Director,
Division of Law Enforcement, April 21, 2006 (¨Benitez Memo").
56
Memorandum from W. Scott Trope, Special Assistant Attorney General Executive, to Patrick Lunney, Director, Division of Law
Enforcement, February 8, 2005.
·· The State of Surveillance
57
Id.
58
Email from Ed Manavian to Patrick Lunney, July 18, 2005.
59
Id.
60
Whistleblower Complaint nled with State Personnel Board, April 7, 2006.
61
Benitez Memo, supra, note 55.
62
Peter Nicholas, ¨State Tracked Protesters in Name of Security," Los Angeles Times, July 1, 2006.
63
Benitez Memo, supra, note 55.
64
Id.
65
Peter Nicholas, supra.
66
Interview with Natalie Wormeili.
67
Email documents obtained though a Public Records Act request.
68
Dion Nissenbaum, ¨Program Raises Spying Concern," San Jose Mercury News, June 26, 2005.
69
Id.
70
Mark Gladstone, ¨State Senator Questioning Guard Surveillance Unit," San Jose Mercury News, June 28, 2005.
71
Letter from ACLU amliates of Northern California, Southern California, and San Diego to Gov. Arnold Schwarzenegger, June
30, 2005.
72
Nissenbaum, supra, note 68.
73
Dion Nissenbaum, ¨National Guard Under Fire for Anti-Islam Display," San Jose Mercury News, July 11, 2005; copy of poster
obtained from www.jackiet.us/htmlpages/candposterstory.html.
74
Nissenbaum, July 11, 2005.
75
Don Tompson, ¨National Guard Says Internal Report Rejects Spying Allegations," www.sfgate.com, August 16, 2005.
76
Dion Nissenbaum, ¨National Guard Erases Computer Files," Contra Costa Times, July 6, 2005.
77
Edwin Garcia, ¨Legislator Makes New Allegations of Spying," Contra Costa Times, March 1, 2006.
78
Edwin Garcia, ¨Under Pressure, Guard Dismantles Alleged Spy Unit," San Jose Mercury News, December 2, 2005.
79
California State Auditor report, ¨Military Department: It Has Had Problems with Inadequate Personnel Management and Im-
proper Organizational Structure and Has Not Met Recruiting and Facility Maintenance Requirements," June 2006.
80
California State Senate Bill 1696.
81
Myers et al., supra, note 2.
82
Excerpts from TALON database obtained from msnbc.com, http://msnbcmedia.msn.com/i/msnbc/sections/news/DODAnti-
WarProtestDatabaseTracker.pdf.
83
Id.
84
Erica Werner, ¨Senator Raises Question on Pentagon Program," www.sfgate.com, January 12, 2005 (Associated Press article);
Becky Bartindale, ¨Lofgren Seeks Probe of Pentagon Activity," San Jose Mercury News, January 3, 2006.
85
Walter Pincus, ¨Unverined Reports of Terror Treats Linger," Washington Post, January 31, 2006.
86
Letter from Robert W. Rogalski to Senate Armed Services Committee, January 27, 2006.
87
Freedom of Information Act Request to Department of Defense and Various Components, January 31, 2006 (sent February 1,
2006).
88
Order Granting Plaintin's Motion for Summary Judgment, ACLU-NC et al. v. U.S. Department of Defense et al., May 25, 2006.
89
FBI Report to Counterrorism Detroit from Los Angeles omce, November 15, 2002.
90
Spencer S. Hsu, ¨FBI Papers Show Terror Inquiries Into PETA," Washington Post, December 20, 2005.
91
FBI Investigative Report, Pittsburgh, dated November 29, 2002.
92
T.J. Degroat, ¨Return to the Docks," San Francisco Bay Guardian, May 21, 2003.
93
Id.
94
ILWU v. City of Oakland, Deposition of Captain Howard Jordan, April 28, 2005 p. 24:11-24.
95
Captain Howard Jordan, Statement at Oakland Police Department Board of Review, May 29, 2003.
The State of Surveillance ·4
96
Id.
97
Diana Marcum, ¨Group Alleges Police Scrutiny," Fresno Bee, October 4, 2003.
98
Interviews with Peace Fresno members.
99
Marcum, supra, note 97.
100
Letter from Sherin Richard Pierce to Catherine Campbell, September 24, 2003.
101
¨Troubling Disclosure," Fresno Bee, October 11, 2003 (stan editorial).
102
Letter from ACLU-NC and Peace Fresno to Bill Lockyer sent April 21, 2004.
103
Diana Marcum, ¨Inquiry Targets Sherin's Actions," Fresno Bee, June 22, 2004.
104
Diana Marcum, ¨Agency May Have Violated Civil Rights," Fresno Bee, February 10, 2006.
105
Id.
106
Id.
107
California Constitution Article V, Section 13.
108
Marcum, supra, note 104.
109
Juliana Barbarassa, ¨ACLU and Peace Group Protest Undercover Surveillance on Campus," April 27, 2005, Associated Press
article, www.saveourcivilliberties.org/en/2005/04/1062.shtml.
110
Information provided by Dr. Donna Hardina. Statements were made at meeting of Task Force to Revise APM 625 Policy on
Outside Speakers and Events on Campus, December 10, 2004.
111
Diana Marcum, ¨Police Presence at Events Debated," Fresno Bee, April 6, 2005.
112
ABC Action News 30, April 7, 2005 (quoting David Moll).
113
Jim Steinberg, ¨Fresno State Clarines Policies on Surveillance," Fresno Bee, May 17, 2005.
114
Diana Marcum, ¨Police Presence At Events Debated," Fresno Bee, April 6, 2005.
115
Directive from President John Welty to David Moll and Police Chief David Huerta, May 2, 2005.
116
Id.
117
Diana Marcum, February 10, 2006.
118
Jessica Guynn and John Simerman, ¨Protest Set for Safeway CEO House," Contra Costa Times, January 27, 2004.
119
Interview and statement from Art Pulaski.
120
Id.
121
Id.
122
Jessica Guynn, ¨Unions Seek Probe of Sherin's Tactics," Contra Costa Times, January 28, 2004.
123
Id.
124
Statement made during a meeting with ACLU-NC and other community members.
125
Letter from Sherin Warren Rupf sent May 17, 2004.
126
Kron.com, supra, note 8 (report describes the activities of the Contra Costa County Homeland Security Unit and indicates that
¨there is also concern that legal demonstrations are used by terrorists as cover").
127
George Raine, ¨Grocery Union Alleges Intimidation," San Francisco Chronicle, January 28, 2004.
128
DIY Website, www.lastnightdiy.org/action.html (last visited July 10, 2006).
129
DIY Website, www.lastnightdiy.org/download/last-night-handbills.pdf (last visited July 10, 2006).
130
Memorandum from Robert H. Aaronson, Independent Police Auditor, City of Santa Cruz, to Richard Wilson, City Manager,
City of Santa Cruz, March 20, 2006 (¨Aaronson Report"), p. 5.
131
Id., p. 2.
132
Memorandum from Deputy Chief Vogel to Chief of Police Re. Summary of Findings, Last Night DIY Internal Investigation,
February 6, 2006.
133
Robert H. Aaronson, Independent Police Auditor, ¨Audit Review of Last Night DIY Internal Investigation," February 13, 2006.
134
Aaronson Report, p. 33.
135
Aaronson Report, p. 2.
·S The State of Surveillance
136
Santa Cruz Police Departmental Directive 610, Undercover Operations-First Amendment Activity, enective July 5, 2006.
137
Joe Garofoli and Jim Herron Zamora, ¨SFPD Spied on Peace Marches," San Francisco Chronicle, March 13, 2003; Omce of
Citizens Complaints, Annual Audit Under SFPD General Order 8.10, March 7, 2003 (¨OCC Audit").
138
OCC Audit, p. 1.
139
Jaxon Van Derbeken, ¨Police to Get Chief 's Hearing," San Francisco Chronicle, August 14, 2003.
140
Dorothy Korber, ¨Portesters Cry Foul Over Police Videotaping," Sacramento Bee, March 5, 2003.
141
Id.
142
Id.
143
Id.
144
International Committee Against Racism v. City of Sacramento, No. 297181, December 1983 (policy attached to dismissal
order).
145
Lockyer Manual, supra, note 9, pp. 16-18.
146
Ian Honman, ¨Lockyer Pledges to Stop Gathering Intelligence on Political Groups Unless Crime Suspected," Tri-Valley Herald,
July 15, 2005.
147
Matthew B. Stannard, ¨Law Omcers Get Free-Speech Guidelines," San Francisco Chronicle, October 18, 2003.
148
Letter from Danielle Martell, Records Supervisor of the Westminster Police Department, August 22, 2005.
149
Letter from Chief James D. Harren, Torrance Police Department, October 12, 2005.
150
Contra Costa Sherin's Department, Policies and Procedures, Criminal Intelligence Files 6-3.9, enective April 2, 2004. In the time
since we conducted our survey, the Santa Cruz Police Department has issued an order restricting undercover surveillance of First
Amendment protected activity that directly refers to California's constitutional right to privacy. San Jose Police Department's
Criminal Intelligence Unit Operating Procedures contains a reference to state privacy laws, but not privacy rights under the state
constitution.
151
San Francisco Police Department General Order 8.10, Guidelines for First Amendment Activities, Revised June 30, 1999.
152
Los Angeles Police Department Anti-Terrorist Division Standards and Procedures, March 18, 2003.
153
Te Los Angeles Police Department guidelines state that members of a multi-agency task force may follow the guidelines of the
lead agency as long as those standards do not violate ¨current laws," but guidelines do not discuss the distinction between state
and federal standards.
154
Letter from Sherin William B. Kolender, February 13, 2006.
155
Aaronson Report, supra, note 130, p. 33.
156
Bob Egelko, ¨Lockyer Backs ACLU on Privacy," San Francisco Chronicle, July 15, 2003.
157
Marilyn Peterson, Intelligence-Led Policing: Te New Intelligence Architecture, September 2005 (¨IACP Report"), pp. 19-20.
158
IACP Report, p. 16.
159
IACP Report, p. 6.
160
Henry Stern, ¨Protecting Civil Rights a Priority, Omcials Say," Te Oregonian, October 30, 2003 (discussing the 2003 annual
review hearing). Portland recently withdrew from the Joint Terrorism Task Force over concerns about a lack of oversight. See
¨Portland Police to Exit FBI-Led Anit-Terror Team," Seattle Times, April 29, 2005 (Assocaited Press Article). Te Contra Costa
County Board of Supervisors resolution was passed unanimously on September 13, 2005. See Resolution No 2005/581.

Sponsor Documents

Or use your account on DocShare.tips

Hide

Forgot your password?

Or register your new account on DocShare.tips

Hide

Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in

Close