Sebastopol Municipal Code Ch. 8.80 Surveillance Technology and Community Safety Ordinance

This chapter shall be known as the “Surveillance Technology and Community Safety Ordinance.” (Ord. 1145, 2022)

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.

While surveillance technology may threaten the privacy of all of us, 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.

The use of biometric surveillance systems and predictive policing technology to watch, categorize, monitor and record the activities and movements of all Californians disproportionately impacts people of color, women, immigrants, LGBTQ people, and political activists of all backgrounds. Bias, accuracy issues, and stereotypes built into biometric surveillance systems and predictive policing technology have been shown to be flawed thus raising the potential for significant harm and injury to the groups previously mentioned.

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 First, Fourth, and Fourteenth Amendments to the United States Constitution, as well as Sections 1, 2, and 13 of Article I of the California Constitution.

Due to the potential for abuse and misuse, it is imperative and as a matter of best practices 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.

Whenever a surveillance technology is approved for use in the City of Sebastopol, 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.

The Sebastopol City Council finds that the public has a right to know about any funding, acquisition, or use of surveillance technologies within the City of Sebastopol. This chapter codifies and guarantees that the acquisition and use of these technologies are subject to rigorous review, public debate, oversight and annual reporting by any City department utilizing these technologies.

This chapter bans the use of certain technologies within the City of Sebastopol absent clearly defined exigent circumstances that would expose our citizens to a major risk to the public safety. Should the technologies be required to be implemented during a public safety emergency, the chapter provides for both limited use and duration with mandated public reporting requirements and significant levels of review regarding their use or any continued use. (Ord. 1145, 2022)

For purposes of this chapter, the following words, terms and phrases shall have these definitions:

“Annual surveillance report” means an annual written report concerning each of the specific surveillance technologies used by the City. The annual surveillance report will include all of the following:

1. A general description of how the surveillance technology was used;

2. A general description of whether and how often data acquired through the use of the surveillance technology item 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);

3. A summary of community complaints or concerns about each surveillance technology item;

4. The results of any internal audits required by the surveillance use policy, any information about violations of the surveillance use policy, and a general description of any actions taken in response;

5. Information, including crime statistics, that helps the City Council assess whether the surveillance technologies used by the City have been effective at achieving their identified purposes;

6. Statistics and information about any related Public Records Act requests;

7. Total annual costs for the surveillance technologies, including personnel and other ongoing costs, and what source of funding will fund the technologies in the coming year;

8. Any requested modifications to the surveillance use policy and a detailed basis for the request;

9. Where applicable, a general breakdown of what physical objects each surveillance technology hardware was installed upon, using general descriptive terms; and for each surveillance technology software, a general breakdown of what data sources the surveillance technology was applied to;

10. The summary of all requests for City Council approval for the use of any surveillance technology item, including whether the City Council approved or rejected the proposal and/or required changes to a proposed surveillance use policy before approval;

11. The annual surveillance report will not contain the specific records that a surveillance technology item collects, stores, exchanges, or analyzes and/or information protected, restricted and/or sealed pursuant to State and/or Federal laws, including information not required to be released by the Public Records Act.

“Biometric surveillance technology” means any computer software that uses face recognition technology or other remote biometric recognition in real time or on a recording or photograph.

“City” means the City of Sebastopol, and “City Department” means any City department and its officers and employees.

“Face recognition technology” or “FRT” means an automated or semiautomated process that:

1. Assists in identifying or verifying an individual based on an individual’s face; or

2. Identifies or logs characteristics of an individual’s face, head, or body to infer emotion, associations, expressions, or the location of an individual.

“Other remote biometric recognition” means:

1. An automated or semiautomated process that assists in identifying an individual, capturing information about an individual, or otherwise generating or assisting in generating information about an individual based on physiological, biological, or behavioral characteristics ascertained from a distance;

2. Uses voice recognition technology; or

3. Identifies or logs such characteristics to infer emotion, associations, activities, or the location of an individual; and does not include identification based on fingerprints or palm prints that have been manually obtained during the course of a criminal investigation or detention.

“Personal communication device” means a cellular telephone that has not been modified beyond stock manufacturer capabilities, a personal digital assistant, a wireless-capable tablet or similar wireless two-way communications and/or portable internet-accessing devices, whether procured or subsidized by a City entity or personally owned, that is used in the regular course of conducting City business.

“Predictive policing technology” means computer algorithms that use preexisting data to forecast or predict places or times that have a high risk of crime, or individuals or groups who are likely to be connected to a crime. This definition does not include computer algorithms used solely to visualize, chart, or map past criminal activity (e.g., heat maps).

“Surveillance impact report” means a written report including at a minimum the following:

1. Information describing the surveillance technology and how it works, including product descriptions from manufacturers;

2. Information on the proposed purpose(s) for the surveillance technology;

3. If applicable, the location(s) it may be deployed and crime statistics for any location(s);

4. The fiscal costs for the surveillance technology, including initial purchase, personnel and other ongoing costs, and any current or potential sources of funding;

5. An assessment identifying with specificity any potential adverse impacts the surveillance technology, if deployed, might have on civil liberties and civil rights; and what specific, affirmative measures will be implemented to safeguard the public from those potential adverse impacts;

6. 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; and

7. A summary of the experience, if any, other governmental entities have had with the proposed technology, including information about the effectiveness, and any known adverse information about the technology such as unanticipated costs, failures, civil rights, or civil liberties abuses.

“Surveillance technology” means any software, 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, biometric, olfactory or similar information specifically associated with, or capable of being associated with, any individual or group. “Surveillance technology” includes but is not limited to:

1. International mobile subscriber identity (IMSI) catchers and other cell site simulators;

2. Automatic license plate readers;

3. Electric toll readers;

4. Closed-circuit television cameras;

5. Gunshot detection hardware and services;

6. Video and audio monitoring and/or recording technology, such as surveillance cameras, wide-angle cameras, and wearable body cameras;

7. Mobile DNA capture technology;

8. Biometric surveillance technology, including facial, voice, iris, and gait-recognition software and databases;

9. Software designed to monitor social media services;

10. X-ray vans;

11. Software designed to forecast criminal activity or criminality;

12. Radio-frequency ID (RFID) scanners;

13. Tools, including software and hardware, used to gain unauthorized access to a computer, computer service, or computer network.

“Surveillance technology” does not include the following devices, hardware or software:

1. Office hardware, such as televisions, computers, credit card machines, copy machines, telephones, and printers, that are in widespread use by City departments and used for routine City business and transactions;

2. City databases and enterprise systems that contain information kept in the ordinary course of City business, including, but not limited to, human resources, permits, licenses, and business records;

3. City databases and enterprise systems that do not contain any data or other information collected, captured, recorded, retained, processed, intercepted, or analyzed by surveillance technology, including payroll, accounting, or other fiscal databases;

4. Information technology security systems, including firewalls and other cybersecurity systems;

5. Physical access control systems, employee identification management systems, and other physical control systems;

6. Infrastructure and mechanical control systems, including those that control or manage street lights, traffic lights, electrical, natural gas, or water or sewer functions;

7. Manually operated technological devices used primarily for internal City and department communications and are not designed to surreptitiously collect surveillance data, such as radios, personal communication devices, and email systems;

8. Manually operated, nonwearable, handheld 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;

9. Surveillance devices that cannot record or transmit audio or video or be remotely accessed, such as image stabilizing binoculars or night vision equipment;

10. Computers, software, hardware, or devices used in monitoring the work and work-related activities involving City employees, contractors and volunteers or used in conducting internal investigations involving City employees, contractors and volunteers;

11. Parking ticket devices;

12. Police department interview room and holding cell;

13. Police department computer-aided dispatch (CAD), records/case management, Live Scan, booking, Department of Motor Vehicles, California Law Enforcement Telecommunications Systems (CLETS), 9-1-1, and related dispatch and operation or emergency services systems;

14. Police department early warning systems.

“Surveillance use policy” means a publicly released, legally enforceable written policy governing the City department’s use of a specific surveillance technology that, at a minimum, includes all of the following:

1. Purpose. The specific purpose(s) that the surveillance technology item is intended to advance.

2. Authorized Use. The uses that are authorized, and the rules and processes required prior to such use and uses of the surveillance technology that will be expressly prohibited.

3. Data Collection. What types of surveillance data will be collected, captured, recorded, intercepted, or retained by the surveillance technology, what types of data may be inadvertently collected during the authorized uses of the surveillance technology, and what measures will be taken to minimize and delete such data.

4. Data Access. The category of individuals who can access or use the collected information, how and under what circumstances data collected with surveillance technology can be analyzed and reviewed, and the rules and processes required prior to access or use of the information.

5. Data Protection. The general safeguards that protect information from unauthorized access, including encryption and access control mechanisms.

6. Data Retention. The limited time period, if any, that information collected by the surveillance technology will be routinely retained, the reason such retention period is appropriate to further the purpose(s) enumerated in the surveillance use policy, 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.

7. Public Access. How collected information can be accessed or used by members of the public, including criminal defendants.

8. Third-Party Data Sharing. Which governmental agencies, departments, bureaus, divisions, or units may receive data collected by the surveillance technology operated by the City department, including any required justification or legal standard necessary to share that data, and how it will ensure that any entity sharing or receiving such data complies with the surveillance use policy.

9. Training. The training required for any individual authorized to use the surveillance technology or to access information collected by the surveillance technology.

10. 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 record-keeping of the use of the technology or access the 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.

11. Complaints. What procedures will be put in place by which members of the public can register complaints or concerns, or submit questions about the deployment or use of a specific surveillance technology, and how the municipal entity will ensure each question and complaint is responded to in a timely manner.

“Traditional security camera” means any camera that is solely capable of capturing and recording video and/or audio. Traditional security cameras do not include cameras that are capable of collecting thermal, biometric, olfactory, or similar information, involve the use of any predictive technology, scanning technology, artificial technology, or recognition technology of any kind. (Ord. 1164 § 2, 2026; amended as part of January 2023 update; Ord. 1145, 2022)

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. 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 the City 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. (Ord. 1164 § 3, 2026; Ord. 1145, 2022)

A. A department may temporarily acquire or temporarily use surveillance technology in exigent circumstances without following the provisions of this chapter. Nothing in this section or chapter shall preclude law enforcement from utilizing these technologies or utilizing mutual aid from a law enforcement partner who may opt to utilize these technologies during exigent circumstances, which for the purposes of this chapter is defined 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. Any surveillance technology temporarily acquired in exigent circumstances shall be returned within seven days following the conclusion of the exigent circumstances, unless the department acquires the surveillance technology in accordance with the requirements of this chapter.

B. If a department acquires or uses surveillance technology for exigent circumstances, the department shall do all of the following:

1. Use the surveillance technology solely to respond to the exigent circumstances;

2. Cease using the surveillance technology within seven days, or when the exigent circumstances end, whichever is sooner;

3. Keep and maintain only data related to the exigent circumstances, and dispose of any data that is not relevant to an ongoing investigation, unless its retention is (a) authorized by a court based on a finding of probable cause to believe the information constitutes evidence of a crime; or (b) otherwise required by law;

4. Not disclose to any third party any information acquired during exigent circumstances unless such disclosure is (a) authorized by a court based on a finding of probable cause to believe the information constitutes evidence of a crime; or (b) otherwise required by law; and

5. Submit a written report summarizing that acquisition and/or use of surveillance technology under this section to the City Council within 60 days following the inception of the exigent circumstances. (Ord. 1145, 2022)

A. The City department seeking approval under SMC 8.80.030 shall submit to the City Council a surveillance impact report and a proposed surveillance use policy via an informational staff report on a regular City Council meeting consent calendar at least 45 days prior to the public hearing required under SMC 8.80.030. The informational staff report shall be posted on the City website with the relevant City Council agenda at least 30 days prior to the public hearing.

B. The City Council may request revisions to the surveillance impact report or surveillance use policy submitted by the City department. (Ord. 1145, 2022)

A. The City Council shall only approve a request to fund, acquire, or use a surveillance technology under SMC 8.80.030 if it determines the benefits of the proposed surveillance technology outweigh its costs, that the surveillance use policy will safeguard civil liberties and civil rights, that no alternative with lesser economic cost or impact on civil rights or liberties would be as effective, and that the uses and deployments of the surveillance technology will not be based upon discriminatory or viewpoint-based factors or have a disparate impact on any community or group.

B. A City department or departments possessing or using surveillance technology prior to the effective date of the ordinance codified in this chapter shall submit or jointly submit a proposed surveillance use policy no later than 120 days following the effective date of the ordinance codified in this chapter for review and approval by the City Council pursuant to SMC 8.80.030.

C. If a City department is unable to meet this 120-day timeline, the department may notify the Council in writing of the department’s request to extend this period and the reasons for that request. The City Council may grant City departments extensions of up to 90 days beyond the 120-day timeline to prepare and submit a proposed surveillance use policy.

D. If the City Council has not approved the continuing use of surveillance technology, including the surveillance impact report and surveillance use policy, within 180 days of their submission to the City Council, the City department shall cease its use of the surveillance technology and the sharing of surveillance data therefrom until such time as City Council approval is obtained in accordance with this chapter. (Ord. 1145, 2022)

A. A City department that obtains approval under SMC 8.80.030 must submit to the City Council, and make available on its website, an annual surveillance report for each surveillance technology used by the City department within 12 months of Council approval, and annually thereafter on or before November 1st. The annual report shall be a single report detailing each type of technology that was utilized by the City. If the City department is unable to meet the deadline, the department head shall notify the City Council in writing of staff’s request to extend this period, and the reasons for that request. The City Council may grant reasonable extensions for good cause.

B. Based upon information in the annual surveillance report, the City Council will, at a public hearing during a regular City Council meeting, reassess whether that surveillance technology as used continues to meet the standard of approval set forth in SMC 8.80.060. If it does not, the City Council shall consider:

1. Directing that the use of the surveillance technology cease;

2. Requiring modifications to the surveillance use policy that are designed to address the Council’s concerns; and/or

3. Directing a report back from the department regarding steps taken to address the Council’s concerns. (Ord. 1145, 2022)

A. It shall be unlawful for the City or any City department to enter into any surveillance-related contract or other agreement that conflicts with the provisions of this chapter, and any conflicting provisions in such future contracts or agreements, including, but not limited to, nondisclosure agreements, shall be deemed void and legally unenforceable. The City and any City department shall have one year from the effective date of the ordinance codified in this chapter to bring any existing contracts or agreements into compliance with this chapter; after that date, any conflicting provisions in contracts or agreements signed prior to the enactment of the ordinance codified in this chapter 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 predate this chapter.

B. To the extent permitted by law, the City shall publicly disclose all of its surveillance-related contracts, including any and all related nondisclosure agreements, if any, regardless of any contract terms to the contrary. (Ord. 1145, 2022)

A. It shall be unlawful for any City department to obtain, retain, access, or use:

1. Biometric surveillance technology; or

2. Predictive policing technology; or

3. Facial recognition technology; or

4. Any information obtained from biometric surveillance or predictive policing technologies.

B. A City department’s inadvertent or unintentional receipt, retention, access to, or use of any information obtained from subsections (A)(1) through (A)(4) of this section shall not be a violation of this subsection; provided, that:

1. The City department does not request or solicit its receipt, access to, or use of such information; and

2. The City department creates a log of such receipt, access to, or use and, within seven days of the event, submits that log to the City Council for inclusion in the City Council’s subsequent regular meeting agenda.

C. Any violation of this chapter 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 chapter. An action instituted under this subsection shall be brought against the City of Sebastopol.

D. No data collected or derived from any use of technology in violation of this chapter, and no evidence derived therefrom, may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority subject to the jurisdiction of the State of California. Data collected or derived in violation of this chapter shall be considered unlawfully obtained, and shall be deleted upon discovery.

E. A court shall award costs to the prevailing plaintiff in any action brought to enforce this chapter and any reasonable attorney’s fees as may be awarded pursuant to State law. (Ord. 1145, 2022)

A. Neither the City nor anyone acting on behalf of the City 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 and conditions of employment, access to information, restrictions on due process rights, or civil or criminal liability, because:

1. 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 based upon a good faith belief that the disclosure evidenced a violation of this chapter; or

2. 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 chapter.

B. It shall be grounds for disciplinary action for a City employee or anyone else acting on behalf of the City to retaliate against another City employee or applicant who makes a good-faith complaint that there has been a failure to comply with any surveillance use policy or administrative instruction promulgated under this chapter.

C. Any employee or applicant who is injured by a violation of this section may institute a proceeding for monetary damages and injunctive relief against the City in any court of competent jurisdiction.

D. Enforcement.

1. Any violation of this chapter 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 chapter. An action instituted under this subsection shall be brought against the City of Sebastopol, and if necessary to effectuate compliance with this chapter or a surveillance use policy (including to expunge information unlawfully collected, retained, or shared thereunder), any third party, except a City employee, with possession, custody, or control of data subject to this chapter.

2. Prior to the initiation of any legal proceeding under subsection (D)(1) of this section, the City of Sebastopol shall be given written notice of the violation(s) and an opportunity to correct such alleged violation(s) within 30 days of receipt of the notice.

3. If the alleged violation is substantiated and subsequently cured, a notice shall be posted in a conspicuous space on the City’s website that generally describes the corrective measure(s) taken to address the violation(s).

E. A court shall award costs to the prevailing plaintiff in any action brought to enforce this chapter and any reasonable attorney’s fees as may be awarded pursuant to State law.

F. Nothing in this chapter is intended to, or shall be interpreted to, conflict with the Constitution of the United States, the Constitution of the State of California, or with any State or Federal law. (Ord. 1145, 2022)

A. The provisions of this chapter are declared to be separate and severable. The invalidity of any clause, phrase, sentence, paragraph, subdivision, section or portion of this chapter, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances.

B. The City Council hereby declares that it would have passed this chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional.

C. The City Clerk shall certify to the adoption of the ordinance codified in this chapter and shall cause the same or a summary thereof to be published as required by law.

D. The ordinance codified in this chapter shall take effect and be in full force and effect 30 days from and after the date of its final passage and adoption. (Ord. 1145, 2022)