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Lawsuit alleging SFPD illegally used live surveillance to spy on protesters finally gets its day in court

A long-simmering dispute over the legality of San Francisco police using live surveillance finally went to court Friday, just days after Mayor London Breed set the stage for a larger showdown over surveillance that could end up being decided by voters this summer.

In October 2020, the Electronic Frontier Foundation and ACLU of Northern California sued police for gaining live access to a camera network in Union Square after a day of protests over the killing of George Floyd was followed by looting in May 2020.

San Francisco Superior Court Judge Richard Ulmer heard arguments in the case Friday, but did not make a ruling. He continued the matter to Feb 1. At issue is whether police improperly accessed live footage and violated a local ordinance barring city agencies from using new surveillance technologies without prior approval from the Board of Supervisors.

The civil liberties groups, which filed the lawsuit on behalf of three protesters, say police clearly broke the law by gaining live access to the camera network before submitting a policy seeking approval from the Board of Supervisors to use the new technology. They accuse the police of using the camera network to spy on protesters.

But the City Attorney’s Office, which is defending the police department, argues that police didn’t need approval because officers accessed the same camera network to live monitor the Pride Parade in June 2019—just one month before the ordinance went into effect.

In court Friday, EFF attorney Saira Hussain argued that a single use of the camera network did not justify police continuing to use it after “the enactment of the ordinance.”

While acknowledging an officer looked at the live camera feed, Deputy City Attorney Wayne Snodgrass disputed the allegation that police spied on protesters.

“She was using the laptop and camera network to monitor a physical area and ensure that it remained quiet, which it did,” Snodgrass said.

Regardless, Hussain said, police should not be “secretly” gaining live access to the camera network, because it could discourage protesters from participating in future demonstrations.

Both sides want to avoid going to trial. The judge could either rule in favor of the city and dismiss the case; rule in favor of the protesters and require police to get approval from the Board of Supervisors to use the camera network; or side with neither and send the case to trial.

Friday’s hearing came on the heels of Breed picking a fight this week with the Board of Supervisors over live surveillance. Last December, the mayor responded to another round of looting in Union Square—and pressure to clean up drug dealing in the Tenderloin—by announcing plans to give police more access to live camera networks. Those plans materialized Tuesday when she placed a measure on the June ballot to give police live surveillance without board approval.

In turn, five members of the Board of Supervisors, including Supervisor Aaron Peskin, responded by putting their own measure on the ballot to maintain the existing ordinance and continue requiring police to get approval from the board.

In a phone interview before the hearing, Mukund Rathi, an attorney with the EFF, said the mayor’s proposal would “gut” an ordinance designed to ensure oversight over city agencies using surveillance technologies.

“We have a lot of concerns about this initiative,” Rathi said. “It seems like the police kind of see the criticism they are getting over their unauthorized use of surveillance technology, and so they are working with the mayor to kind of scrap the ordinance that they are trying to get around in the first place.”

The camera network at the center of the debate is run by the Union Square Alliance, a community benefit district that uses funds from local property owners to make improvements in the area. The network was funded in part by crypto executive Chris Larsen, who founded Ripple and has also paid for other camera networks in San Francisco.

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