INTRODUCED BY COUNCIL MEMBER___________________________
APPROVED AS TO FORM AND LEGALITY_________________________
CITY ATTORNEY

ORDINANCE NO.____________________ C.M.S.
AN ORDINANCE relating to the City of Oakland’s use of Surveillance Equipment;
requiring City Departments to obtain City Council approval prior to acquiring certain
Surveillance Equipment; requiring City Departments to propose protocols related to proper use
and deployment of certain Surveillance Equipment for Council review, requiring City
Departments to adopt written protocols that address data retention, storage and access of any data
obtained through the use of certain Surveillance Equipment, and establishing a new Chapter 2.42
in the Oakland Municipal Code.
WHEREAS, while Surveillance Equipment may help promote public safety in some
contexts, such as red light cameras, the benefits of such technologies should be balanced with the
need to protect privacy and anonymity, free speech and association, and equal protection; and
WHEREAS, the United States Constitution’s First Amendment guarantees freedoms
concerning religion, expression, assembly, and the right to petition the government; and
WHEREAS, the United States Constitution’s Fourth Amendment guarantees the right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, and prohibits the use of general warrants; and
WHEREAS, the United States Constitution’s Fourteenth Amendment guarantees equal
protection of the law; and
and

WHEREAS, the California Constitution’s Article I contains an express right to privacy;

WHEREAS, the aforementioned rights enumerated in the United States and California
Constitutions may be unlawfully abridged upon the use of Surveillance Equipment and the
improper collection and retention of data obtained through that equipment; and
WHEREAS, all City Departments shall seek approval from the City Council prior to the
acquisition and operation of any Surveillance Equipment; and
WHEREAS, City Departments shall also propose specific protocols for City Council
review and approval that address the appropriate use of certain Surveillance Equipment and any
data captured by such equipment; and

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 WHEREAS, the Delphine Allen v. City of Oakland police misconduct lawsuit resulted in
the January 22, 2003 Negotiated Settlement Agreement that included compliance standards
related to the Oakland Police Department’s handling of lapel cameras and in-car video footage,
City Departments should also develop protocols for the retaining, storing, and accessing data
captured by Surveillance Equipment; and
WHEREAS, the creation of the Domain Awareness Center has raised community
concerns over privacy and the lack of public process leading up to the decisions to acquire or use
certain Surveillance Equipment; and
WHEREAS, on March 4, 2014 the City Council acknowledged the concerns of the
community regarding implementation of the Domain Awareness Center and voted to create a
citizens Advisory Body to develop a Data Retention and Privacy Policy for the Domain
Awareness Center; and
WHEREAS, on June 11, 2014, in United States v. Quartavious Davis, the United States
Court of Appeals ruled that police officers must obtain a warrant prior to collecting cellphone
location data, which could restrict Oakland Police Department’s current use of Stingray and
Cellebrite technology; and
WHEREAS, on June 25, 2014, in Riley v. California, the United States Supreme Court
ruled that the police generally may not, without a warrant, search digital information on a
cellphone seized from an individual who has been arrested, which could restrict Oakland Police
Department’s current use of Stingray and Cellebrite technology, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:
A new Chapter 2.42 of the Oakland Municipal Code (“OMC”) is established as follows:
Chapter 2.42 Acquisition and Use of Surveillance Equipment
OMC 2.42.10 Definitions
The following definitions apply to this Chapter 2.42
“City Department” generally means any agency, department, office, or division created
under OMC 2.29 et seq. (“City Agencies, Departments, and Offices”).
“Data Management Protocols” generally means procedures governing how data collected
by Surveillance Equipment will be retained, stored, used, modified, indexed and accessed.
Information comprising data management protocols includes, at a minimum, the information
required in Section 2.42.30.
“Operational Protocols” generally means procedures governing how and when
Surveillance Equipment may be used and by whom. Information comprising operational
protocols includes, at a minimum, the information required in Section 2.42.20.
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 “Surveillance Equipment” means any device, instrument, apparatus, software, implement,
mechanism or contrivance or similar that is used, designed to be used, or primarily intended to be
used to collect, retain, process, analyze, manipulate, view, or share audio, electronic, visual,
location, thermal, olfactory, biometric, or similar information about an individual or a thing.
“Person” means any natural person, corporation, institution, public or private entity.
OMC 2.42.20 Council Approval for City Department Acquisition and Operations of
Surveillance Equipment
Any City Department intending to acquire, receive, borrow, use, or share Surveillance
Equipment shall obtain City Council approval via ordinance prior to acquisition, grant
application, partnership creation, research, or any other act initiated by or involving the City that
would enable it to use Surveillance Equipment. In requesting approval to acquire, receive,
borrow, use, or share Surveillance Equipment, City Departments shall include proposed
Operational Protocols containing the following information for the City Council’s consideration,
along with any other information specifically requested by the City Council:
A. A clear statement describing the purpose and use of the proposed Surveillance Equipment
and an explanation as to why there are no alternatives to use of the proposed Surveillance
Equipment.
B. The type of Surveillance Equipment to be acquired and used, including its full
capabilities, and number of units to be acquired and used.
C. Where a City Department proposes to use the Surveillance Equipment, such as a
structure, person, or vehicle it may be attached to or an area within which it may be
deployed.
D. How and when a City Department proposes to use the Surveillance Equipment, such as
whether the Surveillance Equipment will be operated continuously or used only under
specific circumstances, and whether the Surveillance Equipment will be installed
permanently or temporarily.
E. A mitigation plan describing how the City Department’s use of the Surveillance
Equipment will be regulated to protect privacy, anonymity, and limit the risk of potential
abuse. The plan shall describe how the City Department will prohibit targeting based
upon a person’s constitutionally protected status, including but not limited to race,
religion, ethnicity, gender, sexual orientation, or any other protected status. The plan
shall describe how the City Department will ensure that lawful activities are not
surveilled, such as attending a place of worship or a political rally, absent a strong
showing for the need to use the Surveillance Equipment. The showing necessary to
monitor lawful activities shall be described in the plan.
F. A description of how and when data will be collected, used, and retained, and who will
have access to any data captured by the Surveillance Equipment.
G. The extent to which activity will be monitored in real time as data is being captured and
the extent to which monitoring or analysis of historically recorded information will occur.
H. A public outreach plan for each community in which the City Department intends to use
the Surveillance Equipment that includes opportunity for public meetings, a public
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 I.

J.
K.
L.
M.

comment period of no less than 90 days, and written agency response to these comments.
City Council approval shall not occur until after the 90 day public comment period and
written agency response period has completed.
If more than one City Department will have access to the Surveillance Equipment or the
data captured by it, a lead City Department shall be identified that is responsible for
maintaining the equipment and ensuring compliance with all related protocols. If the lead
City Department intends to delegate any related responsibilities to other City
Departments these responsibilities and associated City Departments and personnel shall
be clearly identified.
Whether a City Department intends to share access to the Surveillance Equipment or the
collected data with any other government or private entity. No sharing agreement shall
be entered into without prior City Council approval.
A description of the training to be provided to operators or users of the Surveillance
Equipment.
A description of the intended protocols for independent audit and oversight to ensure
protocol compliance.
A description of the initial cost of the Surveillance Equipment, and any other costs,
annual or otherwise, including but not limited to maintenance, licensing, staff time, and
training, and a detailed explanation of the funding source used to cover any cost.

Upon review of the information required under this Section 2.42.20, and any other information
deemed relevant by the City Council, and after the end of the public comment period and
submission of the agency response referenced in Paragraph H above, the City Council may
approve the acquisition and operation of Surveillance Equipment, approve the acquisition of
Surveillance Equipment and require future City Council approval for operations, deny the
acquisition or use of Surveillance Equipment for the purpose proposed, or take other actions.
OMC 2.42.30 Data Management Protocols for Surveillance Equipment
Prior to operating Surveillance Equipment acquired after the effective date of this Ordinance,
City Departments shall submit written protocols for managing data collected by Surveillance
Equipment to the City Council. No Surveillance Equipment acquired after the effective date of
this Ordinance shall be deployed until the City Council approves the Data Management
Protocols. The City Council shall require that any or all Data Management Protocols required
under this Section 2.42.30 be approved by ordinance. These Data Management Protocols shall
address the following:
A. Purposes for which the Surveillance Equipment may be deployed and protocols for
ensuring that data it collects directly advances those purposes and that no more data than
is necessary to further those purposes is collected.
B. The time period for which any data collected by Surveillance Equipment will be retained
after which it must be destroyed, absent a showing that it is necessary to maintain certain
data beyond that period.
C. The methods for storing recorded information, including how the data is to be secured,
segregated, labeled or indexed. Such methods must allow for the City Department
personnel, the City Auditor’s office, and independent third-party auditors to readily
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 D.
E.

F.
G.
H.

search and locate specific data that is collected and determine with certainty that data was
properly deleted, consistent with applicable law.
How the data may be accessed, including who will be responsible for authorizing access,
who will be allowed to request access, and acceptable reasons for requesting access.
A user’s log to track viewing, accessing, sharing, analyzing, modification, or use of any
data captured or collected by the Surveillance Equipment, including the date, time, the
individuals involved, the data involved, the reason(s) for viewing, accessing, sharing,
analyzing, modification, or using the data, and the authority for doing the act performed
(e.g. warrant, reasonable suspicion).
A description of the individuals or Persons who have authority to obtain copies of the
records and how the existence and location of copies will be tracked.
A general description of the system that will be used to store the data, and how it will be
secured (e.g. encryption, physical security).
A description of the unit or individuals responsible for ensuring compliance with Section
2.42.30 and when and how independent third-party compliance audits will be conducted.

OMC 2.42.40 Acquisition and Use of Surveillance Equipment Related to Law Enforcement
Investigations
Section 1. Each City Department operating Surveillance Equipment prior to the effective
date of this Ordinance shall propose written Operational Protocols consistent with OMC 2.42.20
no later than ninety (90) days following the effective date of this Ordinance for City Council
review and possible approval by ordinance. The City Council is hereby authorized to disapprove
the continued use of any Surveillance Equipment already in use.
Section 2. Each City Department operating Surveillance Equipment prior to the effective
date of this Ordinance shall adopt written Data Management Protocols consistent with OMC
2.42.30 no later than ninety (90) days following the effective date of this Ordinance and submit
these protocols to the City Council for review and possible approval by ordinance.
Section 3. Following one year after the effective date of this Ordinance and each year
thereafter on January 15 or the next closest regularly scheduled city council meeting, the City
Council shall hold a public hearing to evaluate implementation of and compliance with the
provisions of this Ordinance. At least two weeks prior to each public hearing, the City
Administrator shall issue a report describing the implementation of the provisions of this
Ordinance and compliance therewith. The City Administrator’s report shall also answer these
questions and describe any corrective action taken or needed:
a) Purpose Specification. Describe how the data acquired directly advanced the
specified purpose given to obtain City Council approval for the Surveillance
Equipment.
b) Data Minimization. Describe whether and how the Surveillance Equipment was used
in a manner not allowed. Describe whether and how data was obtained that did not
directly advance the specified purpose of the Surveillance Equipment. Describe
whether and how data was improperly accessed. What were the consequences of such
misuse?
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 c) Data Retention. Describe whether and how data was retained for a lengthier period of
time than the stated need in the Data Management Protocol.
d) Public Access. Statistics and information about public records requests received,
including response rates.
e) Cost Justification. Total annual costs of the Surveillance Equipment, including
ongoing costs, maintenance costs, personnel costs, and any costs incurred for
violations of this Ordinance, the Operational Protocols, or Data Management
Protocols.
f) Requests for Change. A summary of all requests for approval submitted to the City
Council for the acquisition or new use of Surveillance Equipment, and the result of
the request; number of times the City Council requested changes be made to
Operational Protocols or Data Management Protocols before approving the request
and the result of the change.
Section 4. Any Person found guilty of knowingly violating any section or provision of
this Ordinance or any Operational or Data Management Protocols approved by the City Council
pursuant to Section OMC 2.42.20 and 2.42.30 respectively, shall be guilty of a misdemeanor and
punishable upon conviction by a fine of not more than $1,000 or by imprisonment not to exceed
six month, or both fine and imprisonment. This Ordinance defines any violation of this
Ordinance as an injury to any person affected by such violation.
Section 5. Any Person who knowingly violates any section or provision of this Ordinance
or any Operational or Data Management Protocols shall be subject to a private right of action for
damages or equitable relief, to be brought by any other person claiming that a violation has
injured his business, his person, or his reputation. A person so injured shall be entitled to actual
and punitive damages, and a reasonable attorney's fee and other costs of litigation, in addition to
any other relief allowed under California law. This Ordinance defines any violation of this
Ordinance as an injury to any person affected by such violation.
Section 6. This Ordinance shall be enforced to the full extent of the authority of the City
of Oakland. If any section, subsection, paragraph, sentence or word of this Ordinance is deemed
to be invalid or beyond the authority of the City of Oakland, either on its face or as applied, the
invalidity of such provision shall not affect the other sections, subsections, paragraphs or words
of this Ordinance, and the applications thereof; and to that end the section, subsections,
paragraphs, sentences and words of this Ordinance shall be deemed severable.
Section 7. This Ordinance shall amend Ordinance 12483 C.M.S., commonly known as
the City of Oakland Sunshine Ordinance, by creating a new Section 2.20.220 (D) (3) to read:
“To the extent the request is not in conflict with California law, the Operational and Data
Management Protocols, use logs, independent audits, any data, access, or sharing agreements,
and the surveillance data itself, shall be available to the public upon request.”
This Ordinance shall take effect and be in force on January 1, 2015.

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