Children’s Health Defense (CHD) sued the City of Los Angeles to obtain records CHD said are essential to protecting the rights of residents, who don’t know what forms of surveillance they and their children are being subjected to and as a result, can’t exercise their legal right to opt out of being surveilled.
April
5, 2024
8045 Pageviews
A California judge this week ordered the City of
Los Angeles to
release documents related to its smart city initiatives to Children’s Health Defense (CHD), which requested the documents
under the California Public Records Act.
Superior Court Judge Mitchell Beckloff said the city must turn over
missing email attachments, produce supplemental documents, conduct a new search
relevant to privacy laws and contracts, and deliver other documents the city
withheld last year by claiming privilege when it only partially responded to
CHD’s request.
In his order, Judge Beckloff
cautioned the city that “the Petitioners’ interest in the requested records is
substantial” and that interest — namely the city’s Digital Code of Ethics and “the right of a
member of the public to opt out of the collection and sharing of personal data”
— must be considered when the city invokes deliberative process privilege.
“CHD is excited to be at the
forefront of fighting for children’s rights in this new era of digitalization,
smart cities and wireless technology,” Miriam Eckenfels-Garcia, director of
CHD’s Electromagnetic Radiation (EMR) and Wireless program,
told The Defender.
“As we assess and address new threats
that come with this new age, we are thrilled that the court recognized
residents’ rights to navigate the city without digital ID,” she added. “We are
determined to fight against the threats to privacy and bodily autonomy that
come with the uncontrolled rollout of wireless technology.”
CHD and several LA residents filed the lawsuit on July 24, 2023, in Los Angeles County Superior Court. The suit
alleges that key departments in city government violated the California
Public Records Act by
failing to promptly respond to the plaintiffs’ request to produce records from
2019-2023 of communications, programs, committees and technologies related to
smart city planning.
Most of the city’s
20 departments involved in smart city planning provided the documents CHD
requested when it began investigating smart city projects in April 2023.
However, the Information Technology
Agency, Bureau of Street Lighting, Los Angeles World
Airports, Bureau of Street Services, Bureau
of Engineering en de Los Angeles Police Department, die
waarschijnlijk over de meest gevoelige informatie beschikken over de uitrol van
slimme steden, hebben niet of niet adequaat op het verzoek gereageerd,
betoogden advocaten van CHD vorige week voor de rechter.
“The legal issue
arose because the city withheld thousands of smart city documents claiming
‘deliberative process privilege,’” Greg Glaser, one of the attorneys
representing CHD told The Defender.
“That means the
city claimed the records are confidential because disclosing them would hinder
future candid policy deliberation by city officials,” Glaser said. “So the
court weighed the plaintiffs’ substantial privacy interests against the city’s
lesser interests in confidentiality. Plaintiffs won, and the court ordered
limited redaction and release of the records.”
CHD argued that
accessing these records was essential to protecting the rights of residents,
who don’t know what forms of surveillance they and their children are being
subjected to and therefore can’t exercise their legal right to opt out of being
surveilled.
That leaves residents in “a Catch-22: petitioners are lawfully permitted
to follow the Attorney General’s guidance to opt-out of corporate surveillance … but cannot identify the
surveillance in order to opt-out,” CHD said in its brief filed March 1.
Information about surveillance is so obscured, CHD found in its analysis
of the documents released so far that “even City employees cannot identify
surveillance that is already taking place by the City and the City’s corporate
partners,” like Amazon and Oracle.
California and
federal law both protect the right to know what personal information is
collected, along with the right to opt in and opt out of information-sharing
and sale, according to the brief.
In its Digital Code of Ethics,
the City of Los Angeles recognizes residents’
right to navigate the city without digital ID and without having locational and
other data tracked and stored.
However, publicly available information and the records obtained by CHD
so far indicate the city does collect and store such data, in violation of the
code. The plaintiffs want to make that data collection transparent so they and
others can exercise their right to privacy and opt out if they so choose.
The court agreed.
Ray Flores, one of the attorneys representing CHD, celebrated the
decision as a key step in protecting the privacy rights of all Angelinos. “This
is the first smart-city surveillance court battle,” he said. “One of many to
come. We are game.”
City acknowledged it ‘dropped the ball’
but argued requests were too broad
In its March 15 reply brief to the court, submitted before last
week’s hearing, the city acknowledged it had “dropped the ball on a few
occasions in processing requests by Petitioner.”
However, the city
argued the petitioners’ requests were too broad.
The city also disagreed with CHD’s arguments that city residents,
particularly youth, are not able to “opt out of ‘corporate surveillance.’”
The city acknowledges “there is a significant public interest in
understanding how City intends to implement the roll out of its smart
technology strategy, as its implementation will impact public safety,
transportation, energy, and other community infrastructure.”
The city didn’t deny the issues raised about privacy rights and the
right to opt out of surveillance. Instead, it said those issues were “perhaps
worthy of investigation in some other lawsuit,” but said it was outside of the
scope of this particular request, which the city argued is more narrowly about
the city’s compliance with the California Public Records Act.
To that end, the
city said it had produced tens of thousands of responsive records and withheld
only a “small fraction” of them and argued the different forms of privilege it
claimed to withhold the documents was justified.
Because the court
found almost entirely for the plaintiffs, Glaser said city officials will need
to produce thousands of more documents over the next four months.
“The City
Attorney’s Office will be busy this spring redacting thousands of withheld
smart city emails, contracts and accounting records, and then producing them to
CHD,” he said.
‘That’s not smart, that’s surveillance profiteering’
In 2020, Los Angeles launched its SmartLA 2028 initiative, promising to solve a host of “urban challenges” — from
racial injustice to natural disasters to climate change — using smart technologies
to create “a highly digital and connected city” by 2028.
2028 is the target year because the city will host the 2028 Summer
Olympics and plans to provide tourists with a “digital Olympic experience,”
according to the SmartLA 2028 strategy document.
The document
outlines in broad strokes a vision for the city that Olympics consumers will
visit — a smart city built for Los Angeles to compete in the digital economy.
The plan includes a panoply of digital infrastructure, including a surveillance camera
network that
can capture individual face and voice signatures and can be used for law
enforcement or marketed to third parties.
Since launching the initiative and its blueprint for a smart city by
2028, departments across the city have been implementing different smart
technologies, often in partnership with private corporations.
For example, the private security infrastructure firm Verkada announced it is using the city’s Information Technology Agency’s cloud services to offer real-time surveillance technology integrated across the city.
In another example, information obtained through the petitioners’
California Public Records Request revealed the city may open the data it
collects to third-party applications, allow for private 5G and other telecom
infrastructure to be installed on city property, and monetize data collected
through the city’s smart street lamps.
The Bureau
of Street Lighting already issued a directive that allows telecom
companies to use the light poles as mounting sites for their private
infrastructure. It is
also testing the light poles as sites for surveillance cameras, surveillance
audio detection, small cell 5G and digital banners that provide
real-time public information.
“That’s not smart, that’s surveillance
profiteering,” Glaser said. “The cameras and microphones have a radius that can
pick up conversations inside buildings, and artificial intelligence on the
backend can process data in real time. These
technologies are working together to promote the internet of things and
voluntary digital ID before the LA Olympic Games in 2028.”
In another
controversial move, the Los Angeles Police Department last year introduced its
first robot police dog, made by Boston Dynamics.
In all of these cases, critics raise concerns
about transparency, privacy and mass surveillance, demanding answers about how
authorities collect, retain and share surveillance data.
While companies like Verkada and city
officials say they are committed to protecting the privacy of Los Angeles
residents, Glaser and Flores said the city has not been forthcoming
when it comes to questions about what data are collected and how.
“Our case focused on gaining access to
thousands of these withheld city records regarding the smart city rollout,”
Glaser said.
As new documents are reviewed, Glaser said, CHD’s legal team will
provide updates on key discoveries.
Brenda Baletti, Ph.D., is a
senior reporter for The Defender. She wrote and taught about capitalism and
politics for 10 years in the writing program at Duke University. She holds a
Ph.D. in human geography from the University of North Carolina at Chapel Hill
and a master's from the University of Texas at Austin.
