Approved as to Form and Legality
________________________
City Attorney’s Office

OAKLAND CITY COUNCIL
ORDINANCE NO. ____________________ C.M.S.
INTRODUCED BY COUNCILMEMBER [IF APPLICABLE]

THE SURVEILLANCE AND COMMUNITY SAFETY ORDINANCE
Whereas, the City Council finds it is essential to have an informed public
debate as early as possible about decisions related to surveillance technology;
and
Whereas, the City Council finds that, while surveillance technology may
threaten the privacy of all citizens, throughout history, surveillance efforts have
been used to intimidate and oppress certain communities and groups more than
others, including those that are defined by a common race, ethnicity, religion,
national origin, income level, sexual orientation, or political perspective; and
Whereas, the City Council finds that surveillance technology may also be
a valuable tool to bolster community safety and aid in the investigation and
prosecution of crimes, while acknowledging the significance of protecting the
privacy of citizens; and
Whereas, the City Council finds that surveillance technology includes not
just technology capable of accessing non-public places or information (such as
wiretaps) but also technology which aggregates publicly available information,
because such information, in the aggregate or when pieced together with other
information, has the potential to reveal a wealth of detail about a person’s
familial, political, professional, religious, or sexual associations; and
Whereas, the City Council finds that no decisions relating to surveillance
technology should occur without strong consideration being given to the impact
such technologies may have on civil rights and civil liberties, including those
rights guaranteed by the California and United States Constitutions; and
Whereas, the City Council finds that any and all decisions regarding if and
how surveillance technologies should be funded, acquired, or used should
include meaningful public input and that public opinion should be given significant
weight; and
Whereas, the City Council finds that legally enforceable safeguards,
including robust transparency, oversight, and accountability measures, must be
in place to protect civil rights and civil liberties before any surveillance technology
is deployed; and

 Whereas, the City Council finds that if a surveillance technology is
approved, data reporting measures must be adopted that empower the City
Council and public to verify that mandated civil rights and civil liberties
safeguards have been strictly adhered to; now, therefore
THE CITY COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS
FOLLOWS:
Section 1. Title
This ordinance shall be known as the Surveillance & Community Safety
Ordinance.
Section 2. City Council Approval Requirement
1)
A City entity shall notify the Chair of the Privacy Advisory Commission
prior to the entity:
a) Seeking or soliciting funds for surveillance technology, including but
not limited to applying for a grant; or,
b) Soliciting proposals with a non-City entity to acquire, share or
otherwise use surveillance technology or the information it
provides.
Upon notification by the entity, the Chair shall place the item on the agenda at
the next meeting for discussion and possible action. At this meeting, the entity
shall inform the Privacy Advisory Commission of the need for the funds or
equipment, or shall otherwise justify the action the entity intends to take. The
Privacy Advisory Commission may vote its approval to proceed, object to the
proposal, recommend that the entity modify its proposal, or take no action.
Failure by the Privacy Advisory Commission to act shall not prohibit the entity
from proceeding. Opposition to the action by the Privacy Advisory Commission
shall not prohibit the entity from proceeding. The City entity is still bound by
subsection (2) regardless of the action taken by the Privacy Advisory
Commission under this subsection.
2)
A City entity must obtain City Council approval, subsequent to a
mandatory, properly-noticed, germane, public hearing prior to any of the
following:
a) Accepting state or federal funds or in-kind or other donations for
surveillance technology;
b) Acquiring new surveillance technology, including but not limited to
procuring such technology without the exchange of monies or
consideration;
c) Using new surveillance technology, or using existing surveillance
technology for a purpose, in a manner or in a location not
previously approved by the City Council; or
d) Entering into an agreement with a non-City entity to acquire, share
or otherwise use surveillance technology or the information it
provides.
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 3)
A City entity must obtain City Council approval of a Surveillance Use
Policy prior to engaging in any of the activities described in subsection (2)(a)-(d).
Section 3. Information Required
1)
The City entity seeking approval under Section 2 shall submit to the City
Council a Surveillance Impact Report and a proposed Surveillance Use Policy. A
Surveillance Use Policy shall be considered a draft proposal until such time as it
is approved pursuant to a vote of the City Council.
a) Prior to seeking City Council approval under Section 2, the City
entity shall submit the Surveillance Impact Report and proposed
Surveillance Use Policy to the Privacy Advisory Commission for its
review at a regularly noticed meeting.
b) The Privacy Advisory Commission shall recommend that the City
Council adopt, modify, or reject the proposed Surveillance Use
Policy. If the Privacy Advisory Commission proposes that the
Surveillance Use Policy be modified, the Privacy Advisory
Commission shall propose modifications to the City entity and/or
City Council in writing.
c) Failure by the Privacy Advisory Commission to make its
recommendation on the item within ninety (90) days of submission
shall enable the City entity to proceed to the City Council for
approval of the item.
2)
After receiving the recommendation of the Privacy Advisory Commission,
the City Council shall provide the public notice that will include the Surveillance
Impact Report, proposed Surveillance Use Policy, and Privacy Advisory
Commission recommendation at least fifteen (15) days prior to the public
hearing.
3)
The City Council, or its appointed designee, shall continue to make the
Surveillance Impact Report and Surveillance Use Policy, and updated versions
thereof, available to the public as long as the municipal entity continues to utilize
the surveillance technology in accordance with its request pursuant to Section
2(1).
Section 4. Determination by City Council that Benefits Outweigh Costs and
Concerns
The City Council shall only approve any action described in Section 2, subsection
(1) or Section 5 of this ordinance after first considering the recommendation of
the Privacy Advisory Commission, and subsequently making a determination that
the benefits to the community of the surveillance technology outweigh the costs;
that the proposal will safeguard civil liberties and civil rights; and that, in the City
Council’s judgment, no alternative with a lesser economic cost or impact on civil
rights or civil liberties would be as effective.
Section 5. Compliance for Existing Surveillance Technology

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 Each City entity possessing or using surveillance technology prior to the effective
date of this ordinance shall submit a Surveillance Impact Report and a proposed
Surveillance Use Policy for each surveillance technology, in compliance with
Section 3 (1) (a-c).
a) Prior to submitting the Surveillance Impact Report and proposed
Surveillance Use Policy as described above, each City entity shall
present to the Privacy Advisory Commission a list of surveillance
technology already possessed or used by the City entity.
b) The Privacy Advisory Commission shall rank the items in order of
potential impact to civil liberties.
c) Within sixty (60) days of the Privacy Advisory Commission’s action
in b), each City entity shall submit at least one (1) Surveillance
Impact Report and proposed Surveillance Use Policy per month to
the Privacy Advisory Commission for review, beginning with the
highest-ranking items as determined by the Privacy Advisory
Commission, and continuing thereafter every month until the list is
exhausted.
d) Failure by the Privacy Advisory Commission to make its
recommendation on any item within 90 days of submission shall
enable the City entity to proceed to the City Council for approval of
the item pursuant to Section 4. If such review and approval has not
occurred within sixty (60) days of the City Council submission date,
the City entity shall cease its use of the surveillance technology
until such review and approval occurs.
Section 6. Oversight Following City Council Approval
1)
A City entity which obtained approval for the use of surveillance
technology must submit a written Surveillance Report for each such surveillance
technology to the City Council within twelve (12) months of City Council approval
and annually thereafter on or before November 1.
a) Prior to submission of the Surveillance Report to the City Council,
the City entity shall submit the Surveillance Report to the Privacy
Advisory Commission for its review.
b) The Privacy Advisory Commission shall recommend to the City
Council that the benefits to the community of the surveillance
technology outweigh the costs and that civil liberties and civil rights
are safeguarded; that use of the surveillance technology cease; or
propose modifications to the Surveillance Use Policy that will
resolve the concerns.
2)
Based upon information provided in the Surveillance Report and after
considering the recommendation of the Privacy Advisory Commission, the City
Council shall determine whether the requirements of Section 4 are still satisfied.
If the requirements of Section 4 are not satisfied, the City Council shall direct that
use of the surveillance technology cease and/or require modifications to the
Surveillance Use Policy that will resolve any deficiencies.

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 3)
No later than January 15 of each year, the City Council shall hold a public
meeting and publicly release in print and online a report that includes, for the
prior year:
a) A summary of all requests for City Council approval pursuant to
Section 2 or Section 5 and the pertinent Privacy Advisory
Commission recommendation, including whether the City Council
approved or rejected the proposal and/or required changes to a
proposed Surveillance Use Policy before approval; and
b) All Surveillance Reports submitted.
Section 7. Definitions
The following definitions apply to this Ordinance:
1)
“Surveillance Report” means a written report concerning a specific
surveillance technology that includes all the following:
a) A description of how the surveillance technology was used,
including the quantity of data gathered or analyzed by the
technology;
b) Whether and how often data acquired through the use of the
surveillance technology was shared with outside entities, the name
of any recipient entity, the type(s) of data disclosed, under what
legal standard(s) the information was disclosed, and the justification
for the disclosure(s);
c) Where applicable, a breakdown of what physical objects the
surveillance technology software was installed upon; for
surveillance technology software, a breakdown of what data
sources the surveillance technology was applied to;
d) Where applicable, a breakdown of where the surveillance
technology was deployed geographically, by individual census tract
as defined in the relevant year by the United States Census
Bureau;
e) A summary of community complaints or concerns about the
surveillance technology, and an analysis of any discriminatory uses
of the technology and effects on the public’s civil rights and civil
liberties, including but not limited to those guaranteed by the
California and Federal Constitutions;
f) The results of any internal audits, any information about violations
or potential violations of the Surveillance Use Policy, and any
actions taken in response;
g) Information about any data breaches or other unauthorized access
to the data collected by the surveillance technology, including
information about the scope of the breach and the actions taken in
response;
h) Information, including crime statistics, that help the community
assess whether the surveillance technology has been effective at
achieving its identified purposes;
i) Statistics and information about public records act requests,
including response rates;

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 j) Total annual costs for the surveillance technology, including
personnel and other ongoing costs, and what source of funding will
fund the technology in the coming year; and
k) Any requested modifications to the Surveillance Use Policy and a
detailed basis for the request.
2)
“City entity” means any department, bureau, division, or unit of the City of
Oakland.
3)
“Surveillance technology” means any electronic device, system utilizing an
electronic device, or similar used, designed, or primarily intended to collect,
retain, process, or share audio, electronic, visual, location, thermal, olfactory,
biometric, or similar information specifically associated with, or capable of being
associated with, any individual or group.
a) “Surveillance technology” does not include the following devices or
hardware, unless they have been equipped with, or are modified to
become or include, a surveillance technology as defined in Section
7(3): (a) routine office hardware, such as televisions, computers,
and printers, that is in widespread public use and will not be used
for any surveillance or law enforcement functions; (b) Parking
Ticket Devices (PTDs); (c) manually-operated, non-wearable,
handheld digital cameras, audio recorders, and video recorders that
are not designed to be used surreptitiously and whose functionality
is limited to manually capturing and manually downloading video
and/or audio recordings; (d) surveillance devices that cannot record
or transmit audio or video or be remotely accessed, such as image
stabilizing binoculars or night vision goggles; (e) manually-operated
technological devices used primarily for internal municipal entity
communications and are not designed to surreptitiously collect
surveillance data, such as radios and email systems; (f) municipal
agency databases that do not contain any data or other information
collected, captured, recorded, retained, processed, intercepted, or
analyzed by surveillance technology.
4)
“Surveillance Impact Report” means a publicly-released written report
including at a minimum the following:
a) Description: Information describing the surveillance technology
and how it works, including product descriptions from
manufacturers;
b) Purpose: Information on the proposed purposes(s) for the
surveillance technology;
c) Location: The location(s) it may be deployed and crime statistics
for any location(s);
d) Impact: An assessment identifying any potential impact on civil
liberties and civil rights including but not limited to potential
disparate or adverse impacts on any communities or groups if the
surveillance technology was used or deployed, intentionally or
inadvertently, in a manner that is discriminatory, viewpoint-based,
or biased via algorithm. In addition, identify specific, affirmative

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 e)

f)

g)

h)

i)

j)

measures that will be implemented to safeguard the public from
each such impacts;
Data Sources: A list of all sources of data to be collected,
analyzed, or processed by the surveillance technology, including
“open source” data;
Data Security: Information about the steps that will be taken to
ensure that adequate security measures are used to safeguard the
data collected or generated by the technology from unauthorized
access or disclosure;
Fiscal Cost: The fiscal costs for the surveillance technology,
including initial purchase, personnel and other ongoing costs, and
any current or potential sources of funding;
Third-Party Dependence: Whether use or maintenance of the
technology will require data gathered by the technology to be
handled or stored by a third-party vendor on an ongoing basis;
Alternatives: A summary of all alternative methods (whether
involving the use of a new technology or not) considered before
deciding to use the proposed surveillance technology, including the
costs and benefits associated with each alternative and an
explanation of the reasons why each alternative is inadequate; and,
Track Record: A summary of the experience (if any) other entities,
especially government entities, have had with the proposed
technology, including, if available, quantitative information about the
effectiveness of the proposed technology in achieving its stated
purpose in other jurisdictions, and any known adverse information
about the technology (such as unanticipated costs, failures, or civil
rights and civil liberties abuses).

5)
"Surveillance Use Policy" means a publicly-released and legallyenforceable policy for use of the surveillance technology that at a minimum
specifies the following:
a) Purpose: The specific purpose(s) that the surveillance technology
is intended to advance;
b) Authorized Use: The specific uses that are authorized, and the
rules and processes required prior to such use;
c) Data Collection: The information that can be collected by the
surveillance technology. Where applicable, list any data sources
the technology will rely upon, including “open source” data;
d) Data Access: The individuals who can access or use the collected
information, and the rules and processes required prior to access or
use of the information;
e) Data Protection: The safeguards that protect information from
unauthorized access, including encryption and access control
mechanisms;
f) Data Retention: The time period, if any, for which information
collected by the surveillance technology will be routinely retained,
the reason such retention period is appropriate to further the
purpose(s), the process by which the information is regularly
deleted after that period lapses, and the specific conditions that
must be met to retain information beyond that period;
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 g) Public Access: How collected information can be accessed or
used by members of the public, including criminal defendants;
h) Third-Party Data Sharing: If and how other City or non-City
entities can access or use the information, including any required
justification or legal standard necessary to do so and any
obligations imposed on the recipient of the information;
i) Training: The training required for any individual authorized to use
the surveillance technology or to access information collected by
the surveillance technology, including any training materials;
j) Auditing and Oversight: The mechanisms to ensure that the
Surveillance Use Policy is followed, including internal personnel
assigned to ensure compliance with the policy, internal
recordkeeping of the use of the technology or access to information
collected by the technology, technical measures to monitor for
misuse, any independent person or entity with oversight authority,
and the legally enforceable sanctions for violations of the policy;
and
k) Maintenance: The mechanisms and procedures to ensure that the
security and integrity of the surveillance technology and collected
information will be maintained.
Section 8. Enforcement
1)
Any violation of Resolution No. 85638 (DAC Surveillance Use Policy
adopted June 2, 2015), Resolution No. 85807 (FLIR Surveillance Use Policy
adopted October 6, 2015), Resolution No. xxxxx (Cell Site Simulator Use Policy
adopted xxxxxx, 2017), this Ordinance, or of a Surveillance Use Policy
promulgated under this Ordinance, constitutes an injury and any person may
institute proceedings for injunctive relief, declaratory relief, or writ of mandate in
any court of competent jurisdiction to enforce this Ordinance. An action instituted
under this paragraph shall be brought against the respective City agency, the
City of Oakland, and, if necessary to effectuate compliance with this Ordinance
or a Surveillance Use Policy (including to expunge information unlawfully
collected, retained, or shared thereunder), any third-party with possession,
custody, or control of data subject to this Ordinance.
2)
Any person who has been subjected to a surveillance technology in
violation of this Ordinance, or about whom information has been obtained,
retained, accessed, shared, or used in violation of this Ordinance or of a
Surveillance Use Policy promulgated under this Ordinance, may institute
proceedings in any court of competent jurisdiction against any person who
committed such violation and shall be entitled to recover actual damages (but not
less than liquidated damages of one thousand dollars ($1,000) or one hundred
dollars ($100) per day for each day of violation, whichever is greater) and
punitive damages.
3)
A court shall award costs and reasonable attorneys' fees to the plaintiff
who is the prevailing party in an action brought under paragraphs (1) or (2).

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 4)
In addition, for a willful, intentional, or reckless violation of this Ordinance
or of a Surveillance Use Policy promulgated under this Ordinance, an individual
shall be deemed guilty of a misdemeanor and may be punished by a fine not
exceeding one thousand dollars ($1,000) per violation.
Section 9. Secrecy of Surveillance Technology
It shall be unlawful for the City of Oakland or any municipal entity to enter into
any contract or other agreement that conflicts with the provisions of this
Ordinance, and any conflicting provisions in such contracts or agreements,
including but not limited to non-disclosure agreements, shall be deemed void and
legally unenforceable. Conflicting provisions in contracts or agreements signed
prior to the enactment of this Ordinance shall be deemed void and legally
unenforceable to the extent permitted by law. This section shall not apply to
collective bargaining agreements and related memorandums of agreement or
understanding that pre-date this Ordinance.
Section 10. Whistleblower Protections
1)

No municipal entity or anyone acting on behalf of a municipal entity may
take or fail to take, or threaten to take or fail to take, a personnel action
with respect to any employee or applicant for employment, including but
not limited to discriminating with respect to compensation, terms,
conditions, access to information, restrictions on due process rights,
privileges of employment, or civil or criminal liability, because:
a) The employee or applicant was perceived to, about to, or assisted
in any lawful disclosure of information concerning the funding,
acquisition, or use of a surveillance technology or surveillance data
to any relevant municipal agency, municipal law enforcement,
prosecutorial, or investigatory office, or City Council Member,
based upon a good faith belief that the disclosure evidenced a
violation of this Ordinance; or
b) The employee or applicant was perceived to, about to, or assisted
or participated in any proceeding or action to carry out the purposes
of this Ordinance.

2)

It shall be grounds for disciplinary action for a municipal employee or
anyone else acting on behalf of a municipal entity to retaliate against an
individual who makes a good-faith complaint that there has been a failure
to comply with any part of this Ordinance.

3)

Any employee or applicant who is injured by a violation of Section 10 may
institute a proceeding for monetary damages and injunctive relief in any
court of competent jurisdiction.

Section 11. Severability
The provisions in this Ordinance are severable. If any part of provision of this
Ordinance, or the application of this Ordinance to any person or circumstance, is
held invalid, the remainder of this Ordinance, including the application of such
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 part or provisions to other persons or circumstances, shall not be affected by
such holding and shall continue to have force and effect.
Section 12. Construction
The provisions of this Ordinance, including the terms defined in Section 7, are to
be construed broadly so as to effectuate the purposes of this Ordinance.
Section 13. Effective Date
This Ordinance shall take effect on [DATE].

IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - BROOKS, CAMPBELL WASHINGTON, GALLO, GUILLÉN, KALB, KAPLAN, REID AND
PRESIDENT GIBSON MCELHANEY
NOES –
ABSENT –
ABSTENTION –

ATTEST:
LATONDA SIMMONS
City Clerk and Clerk of the Council of the
City of Oakland, California

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