As Cleveland police use more surveillance technology, legal experts say the city needs more oversight.
The Cleveland Division of Police uses body and dashboard cameras, license plate readers and gunshot detection technology. Department policies, not laws, guide how they use them and how long they store data.
There is some external oversight. The Community Police Commission (CPC), an independent police oversight board, has final authority over police policies. Its members review and can change new or existing policies.
But Brian Ray, the Cleveland State University law professor who directs the Center for Cybersecurity and Privacy Protection, said the commission has a lot of responsibilities, making it difficult to focus on surveillance.
In 2022, Mayor Justin Bibb pledged to form a technology advisory committee to address privacy and civil rights concerns. That committee has met once.
Other cities have adopted laws that create oversight of how police use surveillance technology. Ray and other legal experts said they would like to see similar oversight boards or ordinances in Cleveland.
What oversight exists in Cleveland now?
Cleveland police can be held accountable for misusing surveillance technology, though there could be much stronger oversight, said Jonathan P. Witmer-Rich, a law professor at Cleveland State University.
In court, a judge can decide whether police violate someone’s Fourth Amendment rights in the process of collecting evidence. The Fourth Amendment protects people from unreasonable searches and seizures. But most cases are resolved in plea deals, Witmer-Rich said.
“The majority of police searches and seizures are never going to get tested in court,” he said.
CPC can’t tell the division what technology it can use, but “we can put guardrails around how it’s used,” Commissioner Piet van Lier said.
CPC’s Police Policy Committee, with the help of legal experts volunteering in a surveillance technology work group, has been reviewing and altering Cleveland police policies.
In April, the commission approved changes to the division’s policy on ShotSpotter, the gunshot detection technology.
The commission added language including, “ShotSpotter alert alone does not provide probable cause for vehicle stops or searches, entry into a backyard, business or residential search for suspects.”
The changes were, in part, to ensure police are not violating people’s rights as they respond to a scene after a gunshot detection alert, van Lier said.
‘It starts becoming a Fourth Amendment problem’
At a recent CPC forum at which police explained what surveillance technology they use and how they use it, Witmer-Rich said the amount of technology police use can become a Fourth Amendment issue.
“The better your systems get, the more comprehensive they get, the more accurate they get, it starts becoming a Fourth Amendment problem,” Witmer-Rich said. “Because … it also allows you to intrude into people’s privacy in a more serious and intrusive way.”
The committee is currently looking at the division’s body-camera policy. The division recently revised it to include dash-camera footage, van Lier said. The CPC committee is also reviewing the department’s policy on automatic license plate readers.
The group also plans to create a policy for Fusus, a new technology platform that “unifies live video, data and sensor feeds” from several sources, according to its website.
At Cleveland’s Real Time Crime Center, an investigative support unit uses Fusus to analyze all data coming in from public and accessible private cameras, ShotSpotter and other technology.
“We try to take that [information] and get a picture of what’s going on,” said Sgt. Jose Garcia, who leads the unit. “And get that as fast as we can to the officers.”
Gary Daniels, chief lobbyist and spokesperson with the ACLU-Ohio, said that kind of central platform is concerning. Combining the data gives the government enough information to surveil everybody in the city, he said.
“Where is that person getting medical treatment? Are they getting mental health treatment? Are they going to the gay bar? Are they going to the gun store? Are they going to the mosque or the temple or the church? Which one?” Daniels said. “For many people, understandably, there are details of their private lives and their whereabouts they don’t want the government to know about.”
What are other cities doing?
The American Civil Liberties Union has created guidelines called Community Control Over Police Surveillance (CCOPS). The guidelines have helped more than 20 cities adopt oversight laws.
Under these laws, police must make their case for why they want to use certain technology before acquiring it. The oversight body also reviews existing technology and makes policy recommendations.
“The CCOPS process requires the city to get approval before they start using something,” Witmer-Rich said. “Whereas what’s happening in Cleveland is that the police start using something and then the [CPC] works on what the policy should be after the police are already using it.”
In Oakland, California, an independent advisory board looks at costs, privacy risks and whether technologies might disproportionately impact marginalized communities. Based on its findings, the board makes recommendations to the city council, which almost always implements the board’s policy and limitations.
Ray, who has worked with Oakland analysts, said the best models for independent oversight also include an annual report on how the technology has been used and who had access to the data.
“That provides the opportunity for an ongoing evaluation of whether the technology is doing what it’s supposed to do,” Ray said. “And also whether the limits that we impose are being followed.”
In February, then-Safety Director Karrie Howard told The Marshall Project – Cleveland the city’s proposed technology advisory committee would not publicly meet. Instead, they would issue a report after a quarterly meeting. Asked how residents could rely on the accuracy of reports, Howard said, “You’ll have to trust us.”
The committee met in March. Two community police commissioners were part of that meeting, van Lier said. Jamikah Dye, former assistant director of public safety, was organizing the committee. She was fired mid-April.
Government should justify surveillance technology
Daniels, with the ACLU-Ohio, said he’d like to see laws in place, rather than just police policies, to limit what police can do with surveillance data.
“It is not up to us to justify to the government why we don’t want to be surveilled,” he said. “You’re flipping the argument on its head. The justification needs to be with the government explaining why they need to take this step, why do they need to spend all of this money to do these things?”
At last week’s forum, a community member asked Daniels whether he had examples of Cleveland police misusing surveillance data.
Daniels said we shouldn’t have to wait until there’s an example of abuse to create laws.
He gave Signal Cleveland an example of health regulations for restaurants.
“I don’t want to wait until I get sick going to a restaurant because of the way they handle the food there,” Daniels said. “There should be laws in place that say you’re going to handle the food ABC way so that people don’t get sick.”
‘When politicians fail … we receive more policing’
LaTonya Goldsby, president of Black Lives Matter-Cleveland, said the surveillance technology police use, especially ShotSpotter, does not reduce crime. The gunshot detection sensors are predominantly placed in Black and brown communities, Goldsby said.
“When politicians fail to address social problems, we receive more policing in our communities, more surveillance in our communities, and more criminalization,” Goldsby said at the forum last week. “And so this is why. Because it has no impact on gun violence. It does not reduce the crime that we see in our community.”
ShotSpotter “has no significant impact on firearm-related homicides or arrest outcomes,” according to a study published in the Journal of Urban Health.
Sara Fadlalla, who works with the Cleveland Palestine Advocacy Community, was one of several community members at the forum. She said the discussion raised some alarms.
“I can’t shed the sentiment of over-policing and surveillance just not being the route that we should be taking,” Fadlalla said. “We should more effectively introduce programs that are community-led, initiatives that actually target what we’re trying to eradicate, gun violence.”
