Council approves the use of home security camera footage for criminal investigations

For the last few years, an interpretation of the city's surveillance ordinance has kept the police from using footage from home security cameras to identify criminals

At this week’s Sebastopol City Council meeting on Tuesday, the council passed an amendment to its Surveillance Technology Ordinance that would allow police to use security camera footage from homes and businesses in their investigations.

According to the staff report, “Recently, there have been multiple instances where the Police Department was unable to utilize camera footage from private security cameras/doorbell cameras as part of a criminal investigation because doing so would potentially violate the ordinance.”

What does the original ordinance actually say?

The Sebastopol City Council adopted the Surveillance Technology and Community Safety Ordinance in 2022 to protect Sebastopol citizens from the widening array of surveillance technologies. According to the staff report, “Biometric surveillance and predictive policing technologies have the potential to grant government entities the unprecedented power to secretly identify, monitor, and locate people simply going about their daily lives, threatening Californians’ privacy, liberty, safety and freedom as guaranteed by the California Constitution.”

The array of technologies covered by the ordinance is very broad, and includes the following: international mobile subscriber identity (IMSI) catchers and other cell site simulators; automatic license plate readers; electric toll readers; closed-circuit television cameras; gunshot detection hardware and services; video and audio monitoring and/or recording technology, such as surveillance cameras, wide-angle cameras, and wearable body cameras; mobile DNA capture technology; biometric surveillance technology, including facial, voice, iris, and gait-recognition software and databases; software designed to monitor social media services; X-ray vans; software designed to forecast criminal activity or criminality; radio-frequency ID (RFID) scanners; tools, including software and hardware, used to gain unauthorized access to a computer, computer service, or computer network.

The Surveillance Ordinance requires that any use of the above technologies by the city of Sebastopol (including by its police force) be approved first, in a public hearing, by the city council.

Here is that section of the original ordinance:

8.80.030 - City Council review mandatory for surveillance technology decisions.

A City department must obtain City Council approval by ordinance of a surveillance use policy following a public hearing conducted at a regular City Council meeting, prior to engaging in any of the following:

A. Seeking funds for a surveillance technology, including, but not limited to, applying for a grant or soliciting or accepting State or Federal funds or in-kind or other donations for the purpose of acquiring surveillance technology;

B. Acquiring or borrowing a new surveillance technology, including, but not limited to, acquiring such technology without the exchange of monies or consideration;

C. Using a new or existing surveillance technology for a purpose, in a manner or in a location not previously approved by the City Council in accordance with this chapter; or

D. Entering into an agreement, including a written or oral agreement, with a non-City entity to acquire, share or otherwise use surveillance technology or the information it provides, including data-sharing agreements. (Ord. 1145, 2022)

According to a retired city councilmember who asked not to be named, former City Attorney Larry McLaughlin suggested that the way the ordinance was worded created some ambiguity about whether or not the City could use privately owned security cameras to help solve crimes because the Council had not approved the use of cameras in those specific locations. (McLaughlin doesn’t recall this; his memory is that the ordinance only applied to city-owned cameras.) At some point, however, this interpretation of the law filtered down and changed the way the Sebastopol police dealt—or refused to deal—with footage provided by local home and business owners who’d been victims of crimes captured on their security cameras.

Unintended consequences

One of the victims of this interpretation of the ordinance was sitting in the council chamber on Tuesday. In fact, she was sitting at the dais.

“A few years ago, my car was broken into right here on Morris,” Councilmember Neysa Hinton said. “I was at a birthday party at Crooked Goat, and somebody busted out my windows and all the other windows of cars down the street. I had left my wallet in my glove box and lost a lot of cash and my personal information. Because of this ordinance, we could not use the cameras that were set up on the auto body shops across the street from Morris to try to figure out and investigate that crime.”

Hinton noted the same thing had happened at Retrograde Coffee.

“We did hear about this issue with an email from Danielle at Retrograde, who also has a camera behind her shop and had a break-in, and we couldn’t investigate it because we couldn’t use her own camera for her own crime to make an arrest,” Hinton said.

Mayor Jill McLewis contrasted this with her experience after a break-in several years before, where police were able to use private security footage to successfully identify and apprehend the perpetrator.

According to those who wrote the surveillance ordinance, it wasn’t meant to ban the use of private security camera footage by police in criminal investigations. Both Former Mayor Una Glass and Sebastopol Attorney Omar Figueroa, who wrote the ordinance with former Police Chief Ron Nelson, spoke during public comment and said that they never intended it to apply to private home security cameras.

“Never once did we think that this ordinance would prohibit the use of private security camera recordings to aid a criminal prosecution and apprehension. Police Chief Nelson would never have approved this ordinance if it had done that,” Figueroa said.

The proposed amendments

At Tuesday’s meeting, City Attorney Alex Mog proposed three amendments to clarify clarify the situations which would trigger a mandatory review and public hearing before the city council. (These amendments are in bold italic below.)

Reasoning that the Surveillance Ordinance was really aimed at more exotic surveillance techniques, he proposed an amendment to Part A to make it easier for police to update existing traditional surveillance cameras on city buildings without getting permission from city the council.

A. Seeking funds for a surveillance technology, including, but not limited to, applying for a grant or soliciting or accepting State or Federal funds or in-kind or other donations for the purpose of acquiring surveillance technology, except for traditional security cameras;

He then proposed two more amendments intended to clarify that police could indeed use private security footage in criminal investigations:

C. Using a new or existing surveillance technology for a purpose, in a manner or in a location not previously approved by the City Council in accordance with this chapter. This does not apply to traditional security cameras, except for the use of traditional security cameras owned by the City in a new location; or

D. Entering into an agreement, including a written or oral agreement, with a non-City entity to acquire, share or otherwise use surveillance technology or the information it provides, including data-sharing agreements. This does not include using traditional security cameras for a specific incident or event, as long as such use is not part of an ongoing arrangement with a non-City entity.

Under questioning by Vice Mayor Sandra Maurer, Mog confirmed that these amendments didn’t give blanket access to all private cameras in the city. He noted that it applied to footage voluntarily submitted by citizens. If the Sebastopol Police wanted footage from a private security camera and the homeowner didn’t want to comply, the police would have to, per the Fourth Amendment, get a warrant signed by a judge.

Stephen Zollman asked Mog about adding “a provision for a seven-day window for the use of the surveillance technology, meaning if police wanted to access that tape, they would have seven days to do it. But they also must let the council know—creating a paper trail—each time that they’re trying to access something in order to resolve those type of criminal offenses.” He also suggested that the footage be erased (at least from the police copy) after seven days.

Mog pointed out that police investigations, especially if there’s a prosecution, often last longer than seven days.

In public comment, a frequent commenter who goes by Robert said, “What’s the seven-day thing? What if you’re on vacation and someone breaks into your house? What if you don’t come back for two or three weeks? Seven days!? Oh, we can’t use that camera identifying who just stole all your stuff.”

But most of the concerns in public comment were from civil libertarians.

Figueroa, the ordinance’s original co-author, said, “When this ordinance was adopted, the city recognized the simple truth that surveillance tools can watch people as they go about their daily lives and can affect privacy and liberty,” he said. “Because of that, the community was promised notice in public discussion before surveillance expanded. We are told this change is needed because the process takes time, but the purpose of the ordinance was never speed. The purpose was trust. The ordinance already allows immediate use of surveillance technology in exigent circumstances. So the way this is put, it only applies when there’s time for public review. That is how public trust is protected. Right now, the council reviews expansions before they happen. The proposal removes review for a broad category of camera uses and upgrades that currently come before you. It shifts decisions away from public deliberation and toward administrative discretion. Once that authority is surrendered, it is difficult to reclaim.”

Frequent public commenter Woody Hastings agreed.

“My main concern is about sharing traditional videos—old school videos—with outside entities. This provision is unacceptable. A non-city entity can easily be a malevolent entity or become one. It doesn’t matter that it’s not for an ongoing arrangement. Access once to a video can do a lot of damage in the wrong hands. The problem is that traditional video can be processed with AI to reveal information that is not discernible simply by watching the video. This includes human physiological data, magnification of otherwise imperceptible motion, combination with other data to reveal deep behavior characteristics and patterns that reveal sensitive information that can be used against innocent Sebastopol residents. Please don’t erode our privacy further than it already is.”

He requested that the council delay making a decision on these amendments. “A Franklin quote comes to mind for me on this. Ben Franklin said, ‘Those who give up essential liberty to purchase a little safety deserve neither liberty or safety.’”

June Brashares noted that the language of the amendments didn’t seem to address criminal investigations in particular but rather could be abused to allow the police force to share videos with outside entities.

Councilmember Phill Carter recommended taking the two issues—the use of private security camera footage for police investigations and the need for council approval for existing surveillance camera updates—separately, and that’s what the council did.

They voted 5 to 0 to accept the amendments to Parts C and D of the Surveillance Ordinance (Section 8.80.030), which are meant to clarify that police can use private security camera footage in their investigations. They rejected the amendment to Part A, which would have allowed the police department to make updates to existing security cameras without council oversight.

The staff report on this issue is quite interesting. You can find it here.

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