I know you devote most of your energy to California. So let’s start by talking about what kind of data is collected by state and local government agencies in California.
It’s hard to say exactly. It’s not like law enforcement lets us sit down at the terminal and play around with their criminal information databases and analytical algorithms. Our knowledge of what kind of data is being collected, and how it is being transmitted, usually comes from user agreements, contracts, memorandums of understanding, meeting minutes, training materials, and occasionally an actual privacy policy.
Here’s how I explain it: it’s like trying to understand how Facebook works when you’ve only read Facebook’s terms of service. You’ve never actually sat down in front of Facebook and used it.
Still, we do know a fair bit about the range of data that the government is collecting in California—enough to be very concerned.
Can you give us some examples?
One example is California’s gang databases. These are quite controversial. Last year, the state legislature even passed a law restricting their use—and another is on the way. These are databases that contain information on individuals that law enforcement has identified as gang members, or affiliated with gangs, or related to people in gangs. Or at least they’re supposed to be. A state audit sampled the data and found that as many 13% of people in the database had no listed reason for being included.
Another example is license plate reader databases, where law enforcement is constantly collecting license plate information from cameras and geolocating the data. In aggregate, that allows them to piece together people’s travel patterns or get instant alerts on where certain individuals are.
The government also collects information from undocumented immigrants who get driver licenses, or obtain medical services, or seek other services from the government.
One of the most controversial systems is something called the California Law Enforcement Telecommunications System (CLETS). It’s a bit difficult to explain, but you can think of it as a rudimentary law enforcement internet. It’s been around for decades. It’s the backbone connecting dozens of state and federal databases—ranging from criminal history to restraining orders to DMV data. It provides access to users through a single portal and even a handy mobile app. It also includes a messaging service that enables law enforcement personnel from all over California to communicate.
And various agencies within the Department of Homeland Security (DHS) have access to this massive network of databases.
The bottom line is: any interaction you have with state and local governments—including non-criminal things like obtaining a business license—is going to leave a paper trail. And the question is whether the federal government is going to be able to access it.
The federal government’s use of data obtained at a state and local level has always been a cause for concern. But with Trump in the White House threatening to accelerate mass deportations and build a Muslim registry, this issue has acquired a much greater sense of urgency. Tell us about the idea of a “California database firewall.”
A firewall is something that protects your computer. It ensures that only the things you want to get through to your computer can get through, and only the things you want to leave your computer can leave.
The general concept of the California database firewall is that there should be a restriction on how data collected in California is shared with the federal government for purposes that would violate civil liberties and human rights. Bills like California’s S.B. 54 and S.B. 31 were launched to protect data collected in California from being used for mass deportations or to create a Muslim registry. There is also concern that data related to the medical marijuana sector may be used by federal law enforcement agencies to go after patients.
California data belongs to California. The California state government shouldn’t be collecting more data than they need to. And they should be limited in how they share it.
I know that the EFF’s offices are in California, but are there other reasons for tackling this issue in California first?
We need to attack it on multiple fronts. We engage Congress, we take issues to court, we pressure companies, and we build tools for people to defend themselves. But I see particular strength in targeting California.
Obviously, part of that is proximity. Our offices are only a couple of hours drive from Sacramento. Also, California is basically the size of a country. If we pass a good law, we’re protecting the rights of some forty million people.
Finally, there seems to be a lot more anti-Trump momentum in California than there is elsewhere at the moment. As bleak as everything might look on the national and international stage since November, the political prospects in California actually do look kind of bright. The legislature is really motivated to take action. A Democratic supermajority in the statehouse and a Democratic governor opens up a lot of opportunities for radical and dramatic legislation. They’re viewing issues like law enforcement and surveillance in a new light. Certain proposals that they might’ve discussed philosophically or theoretically are now more of a real possibility.
So the election of Trump has focused Californian politicians’ minds on the possible abuse of data, and problems with surveillance and law enforcement more generally?
I mean, that’s the hope. They’ve heard the rhetoric from Trump about Muslim registries and mass deportations. They know there’s been a lot of movement towards LGBT rights over the last decade or so, and they know that’s under threat. They seem pretty angry.
You look at the bills and resolutions that were announced by the California legislature immediately after the election. You see that they hired Eric Holder to fight Washington. You see Jerry Brown being quite defiant, particularly on climate change. It’s a different dynamic than on the federal stage, where Democrats might be riled up but they don’t have much power.
That said, California Republicans deserve some credit for taking on these issues long before the election. A couple of years ago, California passed one of the country’s strongest restrictions on digital searches by police. One of the two co-sponsors was State Senator Joel Anderson, a Republican who later became Trump’s California campaign chair. So maybe there’s hope yet.
When it comes to the California database firewall, what do the current legislative prospects look like?
Originally, the main piece of legislation that would’ve created the California database firewall was S.B. 54, known as the California Values Act. But they’ve been slowly cutting chunks out of it—either moving them to separate bills or scrapping them entirely. The bill still contains things that are very important to the immigrant community, but the stance on collecting and sharing data has become murkier.
Even so, I think law enforcement is going to push back really hard and try to get more and more amended. Legislators are often reluctant to do anything that law enforcement opposes. So we may see the bill get sliced down further.
A lot of this is going to depend on how much the Trump Administration is normalized, and whether the people in California who were really upset when he was first elected continue to be really upset. Just to be clear: EFF doesn’t engage in electioneering, and we didn’t have a position on who should be elected. We would have problems with either Clinton or Trump. We would be aggressively criticizing both Administrations.
I’m just trying to give you an idea of the political landscape. The question is, three months from now, will politicians in California be as worked up about the Trump Administration as they were in December 2016?
Who knows? I mean, Donald Trump continues to post inflammatory things to his Twitter account and his Administration continues to aggressively pursue its agenda. On the other hand, courage among elected officials is a rare commodity sometimes. We’ll have to see.
What’s next? How does the EFF keep pushing ahead on this issue, even if the current legislative path looks unclear?
It’s difficult, because there are so many different battlegrounds being opened up. On healthcare, on immigration, on religious freedom, on education—on so many fronts.
The good news is that a lot more people are getting engaged in politics, many for the first time. But those people quickly realize they can’t pay attention to all the issues. They have to choose. And let’s say they can only handle three. Are those three going to be digital privacy, surveillance, and law enforcement accountability, or are they going to be climate change, immigration, and healthcare? I think that a lot of groups out there are going to be competing for the air in the room.
But it’s hard to deny that people are angry, and people are involved. Something will come of it.