The battle between privacy rights advocates and law enforcement over what the public is entitled to know about data picked up by police surveillance tools is playing out in the San Diego court system.
The 4th District Court of Appeal is expected to soon decide whether to hear a case about a local journalist’s fight to review the Chula Vista Police Department’s drone footage.
If the appeals court takes up the matter, its ruling could affect police departments across California. The issue of whether law enforcement should be required to publicly release video from its drone flights echoes past legal fights over automated license plate readers and body cam footage and the need to independently substantiate how police are using rapidly advancing surveillance technology.
The current case began two years ago when Art Castanares, publisher of the Latino newspaper La Prensa San Diego, filed a California Public Records Act request, asking Chula Vista police to turn over footage from all drone flights for March 2021.
The department refused, claiming the footage was investigative and therefore exempt from disclosure. Castanares sued. In April, a San Diego County Superior Court judge sided with Chula Vista police. The department declined an interview with KPBS, citing litigation.
Castanares has asked the 4th District Court of Appeal to hear the case. Despite the lower-court loss, Castanares argues the law is on his side.
“All of these videos should be public,” Castanares said. “There's no difference in the fact that the video is strapped to a drone than if it was a body cam worn by a police officer. These have all been ruled to be disclosable.”
State law requires California police departments to release video footage of critical incidents within 45 days.
The Chula Vista Police Department has been a national leader in drone use among law enforcement agencies. In 2017, it became the first police department in the nation to deploy drones to respond to 911 calls. It also deploys drones to investigate crimes and traffic accidents, search for missing people, survey fires and natural disasters.
“Drones provide invaluable information to officers, sharing with them a visual into what is actually occurring,” Chula Vista Police Chief Roxana Kennedy said in a department video. “It makes all the difference to officers, dispatchers and supervisors making split-second decisions.”
In 2019, the agency became the first police department in the country to receive a waiver from the Federal Aviation Administration to fly its drones beyond the visual line of sight.
More than 1,500 police departments across the country use drones, according to the MIT Technology Review.
In a nod to privacy rights, Chula Vista police state on their website that their rules bar flying drones for surveillance or general patrol.
Castanares said he supports the use of drones by Chula Vista police and he trusts officers are not spying on residents.
“Trust but verify,” Castanares said. “All we're trying to do is to confirm how these are being used, that they’re following the procedure.”
Brian Hofer, executive director of the Oakland-based Secure Justice, which advocates for reigning in surveillance technology, applauds Castanares’s appeal. Hofer believes the San Diego judge’s ruling that Chula Vista police need not release its drone footage to Castanares because it is investigative, if unchallenged, could lead to a dystopian future. Hofer contends the court’s decision, in effect, says the data can’t be made public in case a future crime arises. And that makes everyone a suspect.
“Obviously, our country was founded on the exact opposite principle of innocent until proven guilty, that you cannot surveil us if there's no reasonable suspicion or probable cause and collect such data,” Hofer said.
He argued that the ruling forces the public to accept the Chula Vista police at their word—that the drone footage is investigative, without independent corroboration. He said the impact — if the ruling stands — is huge.
“Then transparency into policing is dead, it's dead on arrival,” Hofer said. “And all the hard work of reform efforts, it's going to die on the vine because you're not going to have the information that you need to suggest policy changes or to hold people accountable.”
Albert Fox Cahn, executive director of the New York-based Surveillance Technology Oversight Project, agreed with Hofer. But he also worries about privacy interests if the Chula Vista police drone video is released to the public.
“There is a very real risk that when we allow this drone footage to become even more accessible, that it will become a threat to the public, not an accountability tool,” Cahn said. “The idea that a police department could fly a drone over my backyard and then anyone who wanted to could get that footage, that, to me, is a concerning situation.“
Hofer said tools exist to aggregate and obfuscate granular information in videos to protect privacy interests.
Meanwhile, Art Castanares, said the point of his lawsuit against Chula Vista police, extends beyond the city’s borders.
“This is about how police agencies across the country want to use new technology for surveillance, and they don't want to show the public how they're using it,” Castanares said.
