Tag: ACLU

Courts, criminal justice, King County

Amid Lawsuit Over Jail Conditions, County Moves Forward With Controversial Inmate Transfer Plan

By Erica C. Barnett

A King County Council committee tentatively moved forward on an agreement to move up to 150 men currently incarcerated at the downtown King County Correctional Facility to the South Correctional Entity (SCORE), a jail owned jointly by six south King County cities. The contract, which will cost the county around $3.5 million over two years, is supposed to “help King County mitigate the impact of the unprecedented levels of employee vacancies on staff in the Department of Adult and Juvenile Detention,” according to a letter from King County Executive Dow Constantine that accompanied the legislation. Under the agreement, DAJD would initially transfer about 50 men to SCORE starting in April.

PubliCola first reported on the county’s decision to fund the SCORE contract last year.

The county council’s Law, Justice, Health and Human Services Committee moved the agreement forward without recommendation, citing the need to balance concerns raised by attorneys who represent incarcerated people with the abbreviated timeline laid out by Constantine and the county’s Department of Adult and Juvenile Detention, which runs the jail. The council plans to work out the details over the next two to three weeks and adopt the agreement by the end of March.

The union that represents employees at King County’s Department of Public Defense, SEIU 925, believes the proposed agreement fails to address their concerns that moving defendants to SCORE will impede attorneys’ access to their clients and put them at a disadvantage during court proceedings; the union sent a letter to the council laying out their concerns with the contract last night.

Currently, SCORE only allows inmates to access court hearings virtually, and has just one booth where attorneys can talk to their clients and pass documents back and forth, along with several booths where one member of an inmate’s defense team (which might include investigators, paralegals, and mitigation specialists) can communicate with them at a time.

“We frequently have to get documents signed; we frequently have to work through documentation; we frequently need interpreters. Trying to do this over video will be impossible.”—Department of Public Defense union president Molly Gilbert

SCORE also has video visitation booths where visitors can speak with incarcerated people virtually; the jail, unlike those operated by King County, has no in-person visitation.

“Once you get above the misdemeanor level and start talking about felonies, you’re talking about really convoluted court hearings and legal concepts that are difficult to explain,” DPD union president Molly Gilbert told PubliCola. “We frequently have to get documents signed; we frequently have to work through documentation; we frequently need interpreters. Trying to do this over video will be impossible.”

Last November, the union filed a demand to bargain over the proposal to move inmates to SCORE, arguing that the agreement creates changes to their members’ working conditions; the county has not agreed to negotiate with the union.

“I don’t want to be an alarmist here, but we are at a critical stage. Delaying simply creates one more day, one more moment where the opportunities for people in our custody won’t get met.”—Department of Adult and Juvenile Detention director Allen Nance

At Tuesday’s meeting, interim DAJD administrative division director Diana Joy said SCORE had assured the department that it would transfer defendants to court and that attorneys as well as other DPD staff, such as investigators and paralegals, will have direct access to clients.

However, the contract itself says only that “SCORE will provide a minimum of one transport to a King County designated facility every twelve hours for King County inmates newly booked at SCORE or housed at SCORE and requested by King County to be returned.” It says almost nothing about defendants’ access to attorneys and others working on their cases; the sole reference to these rights in the contract is a line stipulating that “confidential telephones or visitation rooms shall be available to a Contract Agency Inmate to communicate with his or her legal counsel.

At Tuesday’s meeting, DAJD director Allen Nance said it was important for the county to move forward on the contract quickly because conditions at the jail have continued to deteriorate amid an ongoing staffing shortage.

“I don’t want to be an alarmist here,” Nance said, “but we are at a critical stage … Delaying simply creates one more day, one more moment where the opportunities for people in our custody won’t get met.”

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Understaffing at the jail reached unprecedented levels during the pandemic, as the jail struggled to hire and retain applicants for high-stress jobs that pay less than other law enforcement positions and lately have required frequent mandatory overtime. Currently, according to King County Corrections Guild president Dennis Folk, the jail is 111 guards short of its staffing target—an improvement since last year, when the shortage reached 129 absent guards.

“This is [DAJD’s] way of trying to decrease our numbers [of people] that are in custody, which ultimately results in us having less posts that we need to fill,” Folk said. Removing 50 people from the jail, for example, could eliminate the need to staff one floor of the jail, for example. “I don’t think it will make that big of a dent, but they seem to think it will.”

Guard shortages, combined with a dramatic increase in the number of people housed at the downtown jail, have led to untenable and sometimes dangerous conditions in the jail. In February, the ACLU of Washington filed a lawsuit against the county, alleging that conditions at the jail violate an agreement known as the Hammer settlement, which requires the jail to meet minimal health and safety standards, including adequate access to behavioral and physical health care.

The contract says the inmates who will be transferred to SCORE will be men accused of Class C and “non-violent B level” felonies, such as burglary, auto theft, and  stalking. “SCORE would not be used for people doing service work in King County jails, who have frequent court appearances, or who have significant medical or mental health needs,” the agreement says. Gilbert says a stable group of inmates without “frequent court appearances” doesn’t really exist; everyone in the jail, except people waiting to go to Western State Hospital for competency evaluations, has to appear in court. “We don’t understand what population it is they’re talking about,” she said.

“Yes, it’s challenging, yes, there are tradeoffs, but I think we owe it to the folks who are trying to make the best of a very dangerous situation, to take up their request … and give the best answer we can within the timeline they have asked for.”—King County Councilmember Claudia Balducci

King County Councilmember and committee chair Girmay Zahilay said Tuesday that while “on the one hand, we want to be able to relieve pressure on… the downtown jail,” which is facing “crisis” conditions, “on the other hand, we’ve heard some some downsides,” including the need for defense attorneys to travel to a third jail, on top of the downtown jail and the Norm Maleng Regional Justice Center in Kent (which has suspended new bookings) , in order to meet with clients.

Councilmember Claudia Balducci, who worked for DAJD for 15 years and directed the department from 2011 to early 2014, countered that both DPD and the jail itself have asked the county to do something to improve conditions inside the facility. “So yes, it’s challenging, yes, there are tradeoffs, but I think we owe it to the folks who are trying to make the best of a very dangerous situation, to take up their request … and give an answer the best answer we can within the timeline they have asked for.”

Folk, from the jail guards’ union, said that once the jail has 473 guards on staff—the point at which guards who volunteer for extra shifts are no longer eligible for overtime pay at 2.5 times their regular wages—”I want that contract canceled.” Hiring more than 100 new guards presents challenges that go beyond recruitment. One issue, Folk said, is that many new recruits can’t pass the state law enforcement academy’s physical fitness test; in a recent batch of 13 new guards, he said, “over half failed” and had to be let go. Still, he said, the jail has 19 new hires coming on board this month.

In July 2020, King County Executive Dow Constantine pledged to close the downtown jail “in phases” after the end of the COVID-19 pandemic. In the intervening years, the county’s overall jail population has rebounded, reaching about 1,600 (compared to a pre-pandemic average of around 1,900) last year.

criminal justice, Health, Mental Health

In a Sign of Worsening Conditions, Understaffed King County Jail Has Lacked Water for a Week

By Erica C. Barnett

The King County Jail in downtown Seattle has lacked potable water since Thursday, September 29, and people incarcerated at the jail have been relying on bottled water for the past week, PubliCola has confirmed.

According to a spokesman for the county’s Department of Adult and Juvenile Detention (DAJD), the county “has had the tap water in the jail tested multiple times in multiple locations, and all tests have indicated that the water meets EPA standards for drinking water. However, since the water is still cloudy, we are providing bottled water for drinking and cooking purposes.” The jail has “ample supplies of bottled water,” the spokesman said.

According to the president of the King County Corrections Guild, Dennis Folk, inmates are allowed one bottle of water at a time and can trade in empties for new bottles. This restriction, Folk said, makes it less likely that people will melt the plastic bottles to turn them into weapons or fill them with urine or feces to fling at guards or other inmates.

However, it’s unclear how frequently people inside the jail are actually getting access to water.

“What we are hearing is that there is rationing of water and people are having to choose between hydration or hygiene, and there just isn’t enough water available,” the president of the public defense union (SEIU 925), Molly Gilbert, said.

A spokesman for the jail said there is no rationing and that DADJ offers water “at every meal, periodically throughout the day, during medication delivery, and per request of jail residents.”

PubliCola reported the news exclusively on Twitter Thursday morning.

According to an email from King County Department of Adult and Juvenile Detention (DAJD) director Allen Nance to the King County Department of Public Defense, the department became aware of “complaints related to water quality” last week (according to Folk, the water coming out of the taps was brown). “We immediately implemented bottled water for all persons in custody and staff out of an abundance of caution,” Nance wrote.

“We have women in the jail who are having their period and they’re unable to get a change of underwear for the week,” Gilbert said. “It’s inhumane, it’s unconstitutional, and it’s a clear liability for the county.”—Molly Gilbert, SEIU 925, King County Public Defense Chapter

Water testing found high “turbidity,” or cloudiness—basically, foreign particles in water that can indicate the presence of disease-causing microbes—and the water has remained off since then while the county has tried to figure out the source of the problem. In his email, Nance said the brown water may have resulted from faulty screens on the water heaters at the jail. According to the DAJD spokesman, the county has sent samples of the water for testing and expects to get the results back tomorrow.

The ongoing water shutoff is just the most recent example of ongoing problems at the jail that have severely limited residents’ access to medical care, attorneys, and time outside their cells. In a survey conducted by the ACLU of Washington in late September, public defenders reported that their clients often lacked access to basic medical care, such as treatment for injuries and dental care, and medication, including everything from insulin to psychiatric meds. When there aren’t enough guards on duty, Gilbert said, escorts for the jail nurses who hand out medication are often the first thing to go. Responding to Gilbert’s statements, the jail spokesman said there are “few if any instances when medication passes would be affected by corrections officer staffing” and that the jail delivers medication even during staffing shortages.

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Most of the ongoing issues at the jail stem directly from a worsening staffing shortage, combined with a growing population as the county books more people on misdemeanor charges and transfers inmates from the Regional Justice Center in Kent, whose setup requires more guards per incarcerated person. In recent months, staffing shortages at the jail have led to frequent lockdowns, in which people are locked in their cells 23 hours a day, and defense attorneys report waiting hours to meet with clients, who have to be escorted to meeting areas by guards who are in short supply.

In January, the unions for the public defenders and jail guards joined forces to ask county officials to reduce the population at the downtown jail. Although that request was in response to COVID outbreaks, the staffing shortages that were at issue back then have only worsened in the intervening months.

“We have women in the jail who are having their period and they’re unable to get a change of underwear for the week,” Gilbert said. “It’s inhumane, it’s unconstitutional, and it’s a clear liability for the county.” The jail spokesman disputes this and says jail inmates regularly receive fresh clothes regularly, and can get clean underwear whenever they want.

King County offers hiring bonuses for guards at both the adult and youth detention centers, but hiring hasn’t kept up with attrition as guards burn out and leave. Booking fewer people into the jail would be one solution—about half the people in the downtown jail are booked for three days or less—but that idea is politically unpopular at a time when perceptions of crime have increased. One candidate for King County Prosecutor, Federal Way mayor Jim Ferrell, recently signed on to an “open letter”  from eight South King County mayors calling for more felony bookings and “incarceration to ensure… public safety.”

Cops, Courts, criminal justice, Police

Investigations into Police Conduct at Protests Provides Window into Office of Police Accountability
Protest at 11th Avenue and Pine Street on Capitol Hill in June 2020 (Creative Commons)

By Paul Kiefer

Seattle’s Office of Police Accountability (OPA) is less than halfway through the 142 investigations it launched into the Seattle Police Department’s response to last summer’s protests—the result of nearly 20,000 individual complaints. Since September, the office has closed 55 of those investigations.

Relatively few of the investigations resulted in the OPA finding an officer guilty of misconduct significant enough to merit discipline: The office only ruled that officers seriously violated department policy in 12 cases. Some involved well-publicized incidents. For example, the OPA ruled that an SPD officer breached department policy when he threw a tear gas canister at an NBC news crew in Cal Anderson Park on June 1, hitting correspondent Jo Ling Kent in the arm. Of the 12 officers involved in those incidents, SPD has issued written or oral reprimands to six, including the officer who threw the tear gas canister at the news crew. The other six officers await a disciplinary decision from Interim Police Chief Adrian Diaz.

But the OPA isn’t limited to deciding whether or not an officer needs discipline. The office’s rulings on protest-related misconduct allegations have been a window into the OPA’s toolkit—and into the strategic thinking of its director, Andrew Myerberg.

Training Referrals

In about 20 percent of protest cases, Myerberg recommended “training referrals” instead of discipline. A training referral directs SPD to re-train an officer on the specific policy or practice they violated; the OPA typically issues the referrals to first-time offenders.

In one case, an officer received a training referral for having his body-worn video camera off when he fired a pepper ball at a reporter reaching into her bag at a protest on Capitol Hill; after watching the bodycam footage from a nearby officer, the OPA concluded that SPD couldn’t hear the reporter identify herself as press, and believed she was reaching into her bag for something to throw at him. Another officer was referred to training after insinuating that he would ticket a bicyclist who questioned why SPD officers were using a Seattle Public Schools property as a staging ground.

La Rond Baker and Erin Goodman, the co-chairs of Seattle’s Community Police Commission—one of the OPA’s counterparts in the city’s police accountability system—said it was unclear that training referrals are having their intended effect. “We believe there needs to be a critical conversation both about the effectiveness of these trainings, and the negative effects limited disciplinary sanctions might have on the culture of the Seattle Police Department and public trust in Seattle’s accountability system,” they told PubliCola in a joint statement.

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If you’re reading this, we know you’re someone who appreciates deeply sourced breaking news, features, and analysis—along with guest columns from local opinion leaders, ongoing coverage of the kind of stories that get short shrift in mainstream media, and informed, incisive opinion writing about issues that matter.

We know there are a lot of publications competing for your dollars and attention, but PubliCola truly is different. We cover Seattle and King County on a budget that is funded entirely by reader contributions—no ads, no paywalls, ever.

Being fully independent means that we cover the stories we consider most interesting and newsworthy, based on our own news judgment and feedback from readers about what matters to them, not what advertisers or corporate funders want us to write about. It also means that we need your support. So if you get something out of this site, consider giving something back by kicking in a few dollars a month, or making a one-time contribution, to help us keep doing this work. If you prefer to Venmo or write a check, our Support page includes information about those options. Thank you for your ongoing readership and support.

Myerberg says that the OPA hasn’t collected data about how well the training referrals work—for example, by tracking whether officers who go through mandatory training break the rules again—because of staffing restraints. “We have anecdotally looked at behavior changes,” he said, adding that his office hasn’t seen any noticeable patterns of repeat offenses.  Nevertheless, the OPA hasn’t formally reviewed the recidivism rates of officers who receive training referrals.

He also argues that issuing training referrals for first-time offenses that aren’t serious uses of force, bias incidents or dishonesty is a matter of fairness. Recommending more serious consequences for those first-time offenses wouldn’t be appropriate, Myerberg said, because “there’s no other employer that would hold their employees to that high a standard,” particularly given the unusual pressures of officers’ jobs—though, as police accountability advocates pointed out routinely over the past year, no other employer gives its employees the right to detain or kill. He added that issuing training referrals is an opportunity to push SPD supervisors to take a more active role in correcting officers’ behavior and department culture.

 

Management Action Recommendations

In some cases—like that of the British journalist who SPD officers arrested at Cal Anderson park last July—the OPA ruled that officers acted in line with department policy, but that their actions pointed to flaws in policy or training (rather than in the officers’ judgment). When those situations arise, Myerberg can issue a “management action recommendation” to suggest changes to the department’s policy manual and training curriculum.

Since September, Myerberg has issued eight of those recommendations. Those include a recommendation that SPD train its officers to make fewer misdemeanor arrests at protests to avoid escalating tensions, and that the agency screen its social media posts for accuracy. Current SPD policy only requires the department to screen tweets about shootings by officers and other incidents in which police kill or seriously injure people. Continue reading “Investigations into Police Conduct at Protests Provides Window into Office of Police Accountability” →

Courts, criminal justice, King County

King County Appeals Ruling That Allows Lighter Sentencing for Juveniles to US Supreme Court

By Paul Kiefer

Last Thursday, King County Prosecutor Dan Satterberg filed a petition with the U.S. Supreme Court appealing a pair of Washington State Supreme Court decisions expanding judges’ discretion to consider the age and maturity of juvenile offenders when sentencing or re-sentencing them.

Satterberg argues that overturning the decisions would restore the proper balance of power between the state legislature, prosecutors and judges and reduce sentencing disparities between different parts of the state. The ACLU and criminal defense attorneys disagree, saying that the rulings have allowed judges to impose sentences in line with new research about children’s brain development, and to redress ongoing prison sentences that were excessive to begin with.

Though Satterberg is challenging decisions the state court issued in September, the true target of his appeal is a landmark 2017 state Supreme Court decision that courts, attorneys and prosecutors—including Satterberg —have already acknowledged as case law. The appeal caught many juvenile justice reform advocates off guard, re-igniting a debate about the limits and fairness of age-conscious sentencing.

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If you’re reading this, we know you’re someone who appreciates deeply sourced breaking news, features, and analysis—along with guest columns from local opinion leaders, ongoing coverage of the kind of stories that get short shrift in mainstream media, and informed, incisive opinion writing about issues that matter. Earlier this month, we took a look back at just some of the work we’ve been able to do thanks to generous contributions from our readers, but those pieces represent just a handful of the hundreds of stories we’ve published this year.

We know there are a lot of publications competing for your dollars and attention, but PubliCola truly is different. We cover Seattle and King County on a budget that is funded entirely and exclusively by reader contributions—no ads, no paywalls, ever.

Being fully independent means that we cover the stories we consider most interesting and newsworthy, based on our own news judgment and feedback from readers about what matters to them, not what advertisers or corporate funders want us to write about. It also means that we need your support. So if you get something out of this site, consider giving something back by kicking in a few dollars a month, or making a one-time contribution, to help us keep doing this work. If you prefer to Venmo or write a check, our Support page includes information about those options. Thank you for your ongoing readership and support.

The past three years of litigation about Washington’s juvenile sentencing laws hinges on six armed robberies on Halloween night in 2012. The culprits were a group of Tacoma teenagers, and their haul was mostly candy and cell phones. Nobody was injured, but because one of the teenagers threatened trick-or-treaters with a gun, the Pierce County Superior court charge two of the older members of the group—17-year-old Zyion Houston-Sconiers and 16-year-old Treson Lee Roberts—as adults. They received sentences of 31 and 26 years, respectively.

The lengthy sentences were the result of a Washington State law known as “automatic decline,” which requires prosecutors to charge 16- and 17-year-olds as adults if they commit a serious crime, such as aggravated assault or murder, or already have a criminal record. Unlike charges in juvenile courts, the state attaches mandatory minimum sentences to adult charges, so while the Pierce County judge who sentenced Houston-Sconiers and Roberts acknowledged that the sentences were unfair, his hands were tied by state law.

Houston-Sconiers and Roberts appealed their sentences to the Washington State Supreme Court, arguing that judges should be required to consider a juvenile defendant’s youth and immaturity when making sentencing decisions, regardless of the defendant’s crimes. The court agreed, ruling that Washington judges are required to consider a juvenile defendant’s age during a sentencing hearing in adult court, and as a result Houston-Sconiers and Roberts also received shortened sentences. Because the Pierce County prosecutor didn’t appeal the court’s decision, it became case law.

Satterberg argues that the state court’s rulings in Houston-Sconiers, Ali, and Domingo-Cornelio allow sentencing judges to “impose no jail time at all for juvenile offenders who commit the most serious crimes,” stripping the legislature’s power to determine mandatory sentences that “reflect the will of the citizenry.”

Many juvenile justice reform advocates celebrated the decision, known as Washington v. Houston-Sconiers, as a landmark victory in the fight for fairer juvenile sentencing in Washington. Tukwila criminal defense attorney Emily Gause, who will represent one of the juvenile defendants before the US Supreme Court when it hears Satterberg’s appeal, told PubliCola that Houston-Sconiers prompted courts to formally acknowledge the science of brain development and adjust sentences accordingly.

Among other impacts, Gause said defense attorneys are now less likely to encourage juvenile clients charged as adults to take plea deals to avoid lengthy mandatory sentences. Now, she said, “Judges can really craft the right sentence for the specific facts of a particular case. Now the details about the role that a child played in a criminal act actually matter, not just the rubber stamp of what they were convicted of.”

Continue reading “King County Appeals Ruling That Allows Lighter Sentencing for Juveniles to US Supreme Court” →

Cops, Crime, criminal justice, Density, Development, Environment, land use, Morning Crank, Urbanism, zoning

Morning Crank: Incongruous With Their Fundamental Mission

Image result for futurewise logo

1. For years, environmental advocates who support urban density as a tool against sprawl have grumbled about the fact that the anti-sprawl nonprofit Futurewise has two men on its board who make a living fighting against the foundational principles of the organization—attorneys Jeff Eustis and David Bricklin. Both men were ousted from the Futurewise board last month after the board voted to impose term limits on board members, who will be limited to no more than three successive terms from now on.

Both Eustis and Bricklin are crossways with Futurewise on a number of high-profile local issues, including the question of whether Seattle should allow more people to live in single-family areas, which occupy 75 percent of the city’s residential land but house a shrinking fraction of Seattle’s residents. Eustis is currently representing the Queen Anne Community Council, headed by longtime anti-density activist Marty Kaplan, in its efforts to stop new rules that would make it easier to build backyard cottages and basement apartments in single-family areas. Bricklin represents homeowner activists working to stop the city’s Mandatory Housing Affordability plan, which would allow townhouses and small apartment buildings in  7 percent of the city’s single-family areas.

To get a sense of how incongruous this work is with Futurewise’s primary mission, consider this: Futurewise is one of the lead organizations behind Seattle For Everyone, the pro-density, pro-MHA, pro-housing group. Bricklin co-wrote an op/ed in the Seattle Times denouncing MHA and calling it a “random” upzone that fails to take the concerns of single-family neighborhoods into account.

Bricklin’s firm also represents the Shorewood Neighborhood Preservation Coalition, a group of homeowners who have protested a plan by Mary’s Place to build housing for homeless families on Ambaum Blvd. in Burien on the grounds that dense housing (as opposed to the existing office buildings) is incompatible with their single-family neighborhood. The Burien City Council approved the upzone, 4-3, after a heated debate this past Monday night at which one council member, Nancy Tosta, suggested that instead of allowing homeless families to live on the site, the city should preserve it as office space, since “part of the way of dealing with homelessness is to have people make more money.”

Bricklin is still on the boards of Climate Solutions, the Washington Environmental Council, and Washington Conservation Voters.

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2. Seattle City Council members reached no resolution this week on a proposal from the mayor’s office to approve the city’s purchase of GrayKey, a technology that enables police to easily (and cheaply) unlock any cell phone and review its contents, including location data, without putting the technology through a privacy assessment under the city’s stringent surveillance ordinance. If the city determines that a technology is a form of surveillance, the city has to prepare a surveillance impact report that “include[s]  an in-depth review of privacy implications, especially relating to equity and community impact,” according to the ordinance. The process includes public meetings, review by a special advisory group, and approval by the council at a meeting open to the public. In contrast, technologies that intrude on privacy but aren’t considered surveillance only require a “privacy impact analysis” that is not subject to formal public process or council approval. Previous examples of technologies the city has deemed to be surveillance include license-plate readers (used to issue traffic tickets) and cameras at emergency scenes.

The city’s IT department, which answers to the mayor, determined that GrayKey is not a “surveillance technology” after the company submitted answers to a list of questions from the city suggesting that the technology would only be used if the Seattle Police Department obtained a warrant to search a person’s phone. In an email appended to that report, Seattle’s chief privacy officer, Ginger Armbruster, wrote, “If phones are acquired either under warrant or with suspect[‘]s knowledge then this is not surveillance by ordinance definition.” In other words, Armbruster is saying that as soon as SPD gets a warrant to break into someone’s phone and scrape their data, the surveillance rules, by definition, no longer apply.

ACLU Technology and Liberty Project Director Shankar Narayan disagrees with this interpretation, noting that the surveillance law doesn’t include any exemption for warrants. “The ordinance is about the entire question of whether it’s an appropriate technology for an agency to have, and encompasses a much broader set of concerns. If the warrant serves the same function as a surveillance ordinance”—that is, if anything the police do after they get a warrant is de facto not surveillance—”then why do we need a surveillance ordinance? The intent of the council was to put scrutiny on technologies that are invasive—as, clearly, a technology that allows police to open your cell phone and download data about the intimate details of your life is.” It’s the technology, in other words—not how the city claims it will be used—that matters.

The city’s initial privacy assessment is brief and unilluminating. GrayKey skipped many of the city’s questions, answered others with perfunctory, one-word answers, and followed up on many of the skipped questions with the same all-purpose sentence: “this solution is used for Police case forensic purposes only. ”

Proponents of GrayKey’s technology (and GrayKey itself) say that the police will limit its use to child sexual abuse cases—the kind of crimes that tend to silence concerns about privacy because of their sheer awfulness. Who could possibly object to breaking into the phones of child molesters? Or terrorists? Or murderers? As council member Bruce Harrell, who said he does not consider GrayKey a surveillance technology, put it Tuesday, “No one has a right to privacy when they are visiting child pornography sites.”

The problem is that in the absence of review under the surveillance ordinance, even if police claim they will only use GrayKey to investigate the worst kinds of crimes, there will be no way of knowing how they are actually using it. (Narayan says police departments frequently claim that they will only use surveillance technology to hunt down child molesters, or terrorists, to create political pressure to approve the technology or risk looking soft on crime.) The council can state its preference that the technology be limited to certain types of especially heinous crimes, but if the phone-cracking technology isn’t subject to the ordinance which allows the city council to place legally binding limits on the use of surveillance tools, the decision facing the city is essentially binary: Approve (and purchase) the technology and hope for the best, or don’t.

This is why privacy advocates consider it so important to look at surveillance technology thoroughly, and to give the public real opportunities to weigh in on granting the city sweeping authority to review people’s movements and access their data.  Harrell said Tuesday that he didn’t want to “jump every time the ACLU says [a technology] raises issues,” and that he was confident that additional review by the executive would resolve any questions the council might have. But, as council member Lisa Herbold pointed out, there’s no requirement that the mayor’s office present the results of any future internal privacy assessment to the council—they can run it through a privacy impact assessment, reach the same conclusions they’ve already reached, and post it on the website with all the others without any additional input from the council or the public. The only way to ensure that concerns are daylighted before the city buys this, or any other, technology that could invade people’s privacy is to determine that GrayKey is surveillance, and put it through the process. At the end of Tuesday’s meeting, the council’s governance, equity, and technology committee had made no decision on whether to subject GrayKey to additional scrutiny or wait to see what the mayor’s office does next. The city currently plans to purchase the phone-cracking technology sometime in the third quarter of next year.