SAIRA HUSSAIN (SBN 300326) ADAM SCHWARTZ (SBN 309491) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel; (415) 436-9333 Fax: (415) 436-9993 Email: saira@,eff. org adam@eff.org MATTHEW CAGLE (SBN 286101) 1 1. San 151613013123 Cami}? Summer Cour? 0:31 a 7 211211 QUEEN 91*: WE mum" 8-K ?mama AER-GLGNEQ ACLU FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493 Fax: (415) 255-1478 Email: mcag1e@ac1unc.org Attorneys for Plainti?fs SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO HOPE WILLIAMS, NATHAN SHEARD, and Case NanNESTOR REYES, COMPLAINT FOR DECLARATORY Plaintiffs, AND INJ UN CTIVE RELIEF v. CITY AND COUNTY OF SAN FRANCISCO, Defendant. 1 COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF LUJN INTRODUCTION 1. From May 31 through June 7, 2020, as thousands of people took to the streets in San Francisco to exercise their First Amendment rights and participate in Black?led protests against police violence, the San Francisco Police Department acquired, borrowed, and used a private network of more than 400 surveillance cameras to Spy on protestors in real time. In doing so, the SFPD violated the City?s Acquisition of Surveillance Technology OrdinancelC?the Ordinance?). 2. Plaintiffs are Black and Latinx protesters who participated in and organized several protests against police violence that have taken place in San Francisco since May 2020, including during the period of acquisition, borrowing, and use of the camera network. sweeping surveillance of these protests has invaded Plaintiffs? privacy, chills them ?om participating in and organizing future protests, and undermines their ability to recruit activists and organize protests, a cornerstone of our democracy. 3. Plaintiffs seek a declaratory judgment that the City and County of San Francisco (?the City?) violated the Ordinance when the SFPD acquired, borrowed, and used a private camera network without prior approval from the City?s Board of Supervisors (?Board?). In addition, Plaintiffs seek an injunction requiring the City to ensure that the SF PD does not acquire, borrow, or use any private camera network Without prior Board approval. JURISDICTION AND VENUE 4. This Court has jurisdiction under article VI, section 10 of the California Constitution and California Code of Civil Procedure 410.10, 525?26, and 1060. 5. Venue in this court is proper because Plaintiffs? claims arose in and around the City and County of San Francisco, and because this is an action against the City and County of San Francisco. Code Civ. Proc. 394. PARTIES 6. Plaintiff Hepe Williams is a Black woman who resides in San Francisco, California. Williams is an activist who both organized and participated in several protests against police violence in San Francisco in May and June of 2020. 2 . FOR DECLARATORY AND INJUNCTIVE RELIEF #Plaintiff Nathan Sheard is a Black man who resides in San Francisco, California. Sheard is an activist and in his personal capacity, he participated in one protest and helped connect protestors with legal support in San Francisco in May and June of 2020. In his professional capacity, Sheard is an employee of the Electronic Frontier Foundation. 8. Plaintiff Nestor Reyes is a Latinx person and native San Franciscan who resides in Berkeley, California. Reyes is an activist who participated and organized several protests against police violence in San Francisco in May and June'of 2020. 9. Defendant City and County of San Francisco is a political subdivision of the State of California that can be sued in its own name. The San Francisco Police Department is a City department. Defendant operates, governs, and is responsible for the SFPD pursuant to the laws of the State of California and San Francisco. OF FACTS SF History of Unlawful Surveillance 10. The SFPD has a long and troubling history of targeting individuals for unlawful surveillance based on, among other attributes, their race, ethnicity, religion, socioeconomic status, sexuality, gender identity, and political activism. 11. Throughout the 20th century, the SFPD surveilled and conducted raids on establishments frequented by the community, including bars and bathhouses. By the 19705, the SFPD Intelligence Unit had/amassed files on more than 100,000 San Franciscans dating back decades, including civil rights demonstrators, anti-War activists, labor union members, and student protesters from San Francisco State University. In the 19803, the SFPD spied on organizations during the 1984 Democratic National Convention, and maintained ?les on at least 100 civil rights, labor, and special interest groups. It also conducted undercover surveillance of political groups challenging U.S. intervention in Central America. 12. Public outcry about this decades-long pattern of SFPD surveillance abuses led the Police Commission to adopt Department General Order 8.10 in 1990, which requires ?articulable and reasonable suspicion? before SFPD of?cers may conduct a criminal investigation that involves the First Amendment activities of any individual, group, or organization. 3 COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF 13. DeSpite this policy, there have been prominent examples of the SF continued surveillance of First Amendment activities. For example, in 1993, an SFPD inspector was caught selling to a third-party organization intelligence information obtained through surveillance of Arab American groups and opponents of South African apartheid. Black Lives Matter Protests and San Francisco?s Surveillance Technology Ordinance 14. Since 2014, Black?led protests against police violence, often known as Black Lives Matter protests, have been similarly monitored and baselessly treated as a potential threat by federal and local law enforcement agencies across the nation. 15. The growth of this movement has coincided with the proliferation of modern surveillance technologies that give the government unprecedented power to identify, track, and target activists. 16. In the past several years, SFPD has acquired an arsenal of sophisticated surveillance technologies, including automated license plate readers; Cellebrite, a mobile system that enables police to conduct forensic searches of smartphones; and ShotSpotter, a microphone?equipped technology designed to detect gunshots. 17. history of targeting activists and marginalized groups for surveillance, coupled with the unprecedented surveillance powers made possible by modern technology, prompted the San Francisco Board of Supervisors to pass an ordinance limiting government use of surveillance technologies. 18. In June 2019, the San Francisco Board of Supervisors passed the Acquisition of Surveillance Technology Ordinance (codi?ed in San Francisco Administrative Code, Chapter 19B et seq), which, among other things, prohibits any City department from acquiring, borrowing, sharing, or using surveillance technology1 without ?rst obtaining approval ?om the Board via a separate ordinance and speci?c use policy. The Ordinance went into effect on July 15, 2019. I The Ordinance?s de?nition of ?surveillance technology? includes surveillance cameras. S.F. Admin. Code. 19B.1. 4 COWLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 19. Section 19B.2(a) of the Ordinance states, in relevant part, that a City department must obtain Board of Supervisors approval of a separate ordinance and speci?c use policy prior to engaging in any of the following actions: Acquiring or borrowing new Surveillance Technology, including but not limited to acquiring Surveillance Technology without the exchange of monies or other consideration; (3) Using new or existing Surveillance Technology for a purpose, in a manner, or in a location not speci?ed in a Surveillance Technology Policy ordinance approved by the Board in accordance with this Chapter (4) Entering into agreement with a non-City entity to acquire, share, or otherwise use Surveillance 20. Leading up to the passage of the Ordinance, the author of the legislation, Supervisor Aaron Peskin, repeatedly emphasized that one of the Ordinance?s goals was to protect marginalized communities and political dissidents from high-tech police surveillance. a. On April 15, 2019, during a Board of Supervisors Rules Committee meeting, Supervisor Peskin stated: ?If you take even a cursory look at some historical uses of surveillance technologies it is often times these marginalized groups, artists, and political dissidents who are disproportionally subject to the abuses of this technology.? b. On May 6, 2019, during another Rules Committee meeting, Supervisor Peskin emphasized the need for ?oversight into a category of technology that historically has often been used in abusive ways against marginalized communities.? He continued: could regale you with some of the things that have happened in this city in the late 603, early 705, again with surveillance of Act Up during the AIDS crisis, with surveillance of the Black Lives Matter movement.? 0. On May 14, 2019, during a Board of Supervisors meeting, Supervisor Peskin again pointed to inappropriate use of surveillance technology against Black Lives Matter protesters as an example of the need for the Ordinance. After these remarks and at that same meeting, the Board of Supervisors voted to approve the Ordinance. 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Business Improvement Districts 21. Business improvement districts?also called community bene?t districts?Fare non- city entities formed by a majority of property owners within a certain geographic area, with approval from the Board of Supervisors and in accordance with state and local law. The property owners pay a special assessment and those funds are used to make agreed-upon improvements that supplement services that the city provides. There are currently 18 business improvement districts and community benefit districts in San Francisco. 22. Several of San Francisco?s business improvement districts have surveillance camera networks that consist of hundreds of cameras streamed to a control room within the district. 23. The Union Square Business Improvement District is a business improvement district in San Francisco. It is a California nonpro?t corporation. It is bound on the north by Bush Street, on the east by Kearny Street, on the south by Market Street, and on the west by Taylor and Mason Streets. The USBID operates a network of more than 400 video surveillance cameras. These cameras are high de?nition, allow remote control of zoom and focus capabilities, and are linked to a Software system that can automatically analyze content, including distinguishing between when a car or a person passes within the frame. Below is a map of the camera network. 6 COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF San Francisco Protests Against Police Violence in Summer 2020 24. Following the police killing of George Floyd on May 25, 2020, in Minneapolis, Minnesota, protests against police Violence spread throughout the country, including in San Francisco. Thousands of people participated in protests in San Francisco during the end of May and early June. 25. During this time period, the protests were overwhelmingly peaceful. A small number of people engaged in property destruction, which primarily affected commercial properties. 26. Plaintiffs participated in and organized peaceful protests against police Violence in San Francisco during this time. 27. On May 30, 2020, Plaintiff Nathan Sheard participated in a protest that began at City Hall and went east up Market Street, including past areas Where cameras are located. 7 COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF May 31, 2020, Plaintiff Nestor Reyes participated in a protest that began at City Hall and went east up Market Street, including?past areas where cameras are located. 29. On June 2, 2020, Plaintiff Hope Williams organized and participated in a protest that began at City Hall and culminated in a sit-in in front of 850 Bryant Street. 30. On June 3, 2020, Plaintiffs Williams and Reyes participated in a protest of an estimated 10,000 people in the Mission District, which was organized by students at Mission High School. 31. On June'S, 2020, Plaintiff Reyes participated in a protest that began at City Hall and went west up Market Street, toward the Castro District. 32. From the end of May through June, Plaintiff Sheard helped staff a hotline to connect Bay Area protestors with legal support. 33. Plaintiffs participated in and organized these protests in order to exercise their First Amendment right to petition the government, and persuade their fellow residents, regarding the need for concrete action to end racism and violence by police and other law enforcement of?cers. Acquisition, Borrowing, and Use of the Surveillance Cameras During Protests 34. Between May 31 and June 7, 2020, the SFPD acquired, borrowed, and used the camera network for real-time surveillance of protests against police violence in the Union Square area. 35. On the morning of May 31, 2020, an of?cer from Homeland Security Unit, Of?cer Oliver Lim, emailed the Director of Services, Chris Boss, requesting real-time use of the cameras on Market Street ?to monitor the potential violence today for situational awareness and enhanced response.? 36. In an email response that same morning, Mr. Boss provided the SFPD with 48-hour remote use of the cameras. 37. On June 2, 2020, another of?cer from Homeland Security Unit, Of?cer Tiffany Gunter, emailed Mr. Boss requesting an extension for real-time use of the cameras for ?ve 3 . COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF 4300M more days, through June 7, stating, ?We have several planned demos all week and we anticipate several more over the - 38. The USBID provided the SFPD with this extension of remote, real?time use of the camera network. 39. On June 10, 2020, Of?cer Gunter sent an email to Mr. Boss thanking him for ?the use of your cameras,? and stating that the cameras ?were extremely helpful in giving us situational awareness and ensuring public safety during the multiple demos that came through the area.?2 40. The SFPD acquired, borrowed, and used the private network of surveillance cameras without prior approval from the Board of Supervisors.? No Exigency ustified the Violation of the Ordinance 41. The Ordinance exempts the temporary acquisition or use of surveillance technology in exigent circumstances, which are narrowly de?ned as ?an emergency involving imminent danger of death or serious physical injury to any person that requires the immediate use of Surveillance Technology or the information it provides.? S.F. Admin. Code 19B.l 19B.7. 42. Here, no exigent circumstances existed within the meaning of the Ordinance that permitted SFPD to acquire and use the camera network, absent prior approval from the Board of Supervisors. There was no emergency involving imminent danger of death or serious physical injury to a person that required SF immediate use of the camera network. Plaintiffs Are Affected by Violation of the Ordinance 43. The Ordinance provides a private right of action to ?any person affected? by ?any alleged violation? of the Ordinance. S.F. Admin. Code 44. Plaintiffs are affected by the violation of the Ordinance. First, their privacy and free speech rights were violated when the SFPD subjected their protest activity to unlawful 2 Nearly a month later, in an August 5 report to the Board of Supervisors, the SFPD Chief took the position that, while the SF PD obtained a remote real-time link to the network of surveillance cameras, the SF PD did not monitor this network. In fact, the June 10 email from SFPD sent at the time of the surveillance shows the SFPD monitored the camera network. Even if SFPD did not visually monitor the cameras feeds, the SFPD acquired, borrowed, and used the network by, among other things, establishing a remote real-time link without prior Board approval. 9 COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF 4:935surveillance. Second, the risk of further unlawful SFPD?surveillance makes them afraid to participate in future protests and chills the exercise of their First Amendment rights. Third, the risk' of further unlawful SF PD surveillance makes it harder for them to recruit activists and organize future protests. CAUSE Acquisition, Borrowing, and Use of the Surveillance Camera Network in Violation of San Francisco Administrative Code (3), and (4) 45. Plaintiffs incorporate by reference the allegations of the above paragraphs as though fully set forth herein. 46. The Ordinance prohibits City departments from acquiring, borrowing, or using surveillance technology prior to obtaining express approval from the Board of Supervisors of a surveillance technology policy. S.F. Admin. Code (3), (4). 47. The SF PD acquired, borrowed, and used the network of more than 400 cameras, by means of a remote real-time link, without obtaining prior Board approval. PRAYER FOR RELIEF WHBREFORE, Plaintiffs request that this Court: A. Enter a declaratory judgment stating that the City violated the Ordinance because the SFPD, without prior Board approval, acquired, borrowed, and used the camera network. B. Enter an order enjoining the City, its agents, employees, successors, and all others acting in concert with it, to ensure that the SFPD does not, without prior Board approval, acquire, borrow, or use any private camera network. C. EEnter an order requiring the City to pay Plaintiffs? attorneys? fees and costs under San Francisco Administrative Code Code ofCivil Procedure 1021.5, and any other applicable statutes. D. Grant Plaintiffs any further reliefthe Court deemsjust and proper. Respectfully Submitted, Saira Hussain Dated: October 7, 2020 By: 10 -COMPLAINT FOR DECLARATORY AND RELIEF KDOOQONUI-IAUJ SAIRA HUSSAIN (SBN 300326) ADAM SCHWARTZ (SBN 3094910) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel.: (415) 436?9333 Fax: (415) 436?9993 Email: saira@eff.org adam@eff. org Attorneys for Plaintiffs Williams and Reyes 11 MATTHEW CAGLE (SBN 286101) ACLU FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493 Fax: (415) 255-1478 Email: mcaglc@aclunc.org Attorney for Plainti?fs? Williams, Sheard, and Reyes COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF