OPD Use Policy for Israeli Cellphone Cracking Tech Begins Approval Process after Years of Operating Without City-Mandated Policy
In November, as anti-genocide protesters began their advocacy at Oakland’s City Council to pass a resolution supporting a Gaza ceasefire, the OPD was quietly introducing a use policy for it’s long-held Universal Forensic Extraction Device [UFED] manufactured and supported by Israeli-owned surveillance company, Cellebrite.
OPD has used Cellebrite's UFED for years, pulling data from cellphones for use in OPD investigations. But despite a city ordinance that has required OPD to submit a use policy and yearly impact report for its Cellebrite UFED, OPD has, for years, failed to produce any policy.
That changed this year as a result of a lawsuit brought by Secure Justice, a non profit organization focusing on oversight of public agency surveillance practices*. The lawsuit focused on the OPD's extensive use of surveillance technologies without appropriate reports or use policies, including its Automated License Plate Readers [ALPR], FLIR and Shotspotter systems. According to City of Oakland ordinance, OPD and other departments must submit a use policy and impact report statement to the Privacy Advisory Commission [PAC] and receive a positive recommendation before the use policy can be approved by the City Council and the technology can be used.
The City's settlement agreement for the Secure Justice suit requires the City and OPD to finally adhere to their own legal mandates to produce the required policies and oversight data. The PAC reviewed the Cellebrite UFED use policy in November and suggested various amendments, which were incorporated and subsequently approved at a December meeting. The documents now go back to Council for their review and approval process, which is scheduled to begin at a Public Safety Committee meeting March 12.
Much of the OPD’s UFED use is in warrant-driven investigations, but the original use policy presented to the PAC indicates that OPD has been using UFED in various other situations. OPD has subjected residents on parole and probation to involuntary cellphone extractions based on the existence of “electronic device search clauses” in their orders of conditional release, including in Ceasefire “call-ins”. The revised use policy eventually passed by the PAC bans that practice. OPD practice also allowed residents to consent to UFED investigation of their phone, but in the new policy, the consent must be recorded and documented. OPD has always been able to use the device to extract data from OPD-issued phones for officers, a practice that will continue with or without consent by the officers. The use policy specifically bars collection of cloud-based data using UFED.
As part of passage of the use policy and impact statement, the OPD will apparently seek a new contract with Cellebrite for new upgraded devices and a software subscription service at an ongoing cost of $90K per year, according to OPD’s impact report and supplemental information. OPD argues that it's current Cellebrite UFED is outdated and is incapable of cracking newer phones, which has caused OPD to rely on technology loans from other agencies.
Should the City Council vote against adopting the use policy, the OPD would be obligated by the City’s surveillance ordinance to cease using the Cellebrite UFED immediately.
Cellebrite has had its share of controversies over the years. Several reports have emerged that it is used by intelligence services against detained political prisoners and political activists in various states with few human rights safeguards: in Bahrain , Indonesia, Botswana, among several others. Due to its Israeli-based ownership, the company has also been a focus of the Boycott, Sanction and Divestment [BDS] campaign by anti-Apartheid activists internationally.
In its use policy, OPD argues that there are no alternatives to Cellebrite’s proprietary UFED technology that meet court requirements. But a report by technology equity advocate Upturn finds that policing agencies throughout the US widely use alternatives to Cellebrite, including Graykey, a product from a Canada-based company, Magnet Forensics.
Last Minute Records Retention Legislation Discussion Reveals Policy Was Fast-Tracked for Approval Without Due Deliberation
A last minute deliberation on a new records retention policy revealed a Council largely ignorant of the contents of the new rules before them last Tuesday. The item was originally scheduled to the Consent calendar, where it would have received little scrutiny before being passed in bulk.
Clerk Intended Non-Consent Scheduling for Discussion
The new records retention policy was originally intended for placement on the non-consent calendar, according to the legislation’s sponsor, City Clerk Asha Reed at the 2/8 Rules Committee meeting. Reed explained at the time that she did not believe the item was in the purview of any committee and should go straight to council, but that her office had intended for it to be scheduled to the non-consent calendar where Council could give it adequate attention during the 2/20 meeting. The City’s records retention policies are based on city, state and federal laws regarding records maintenance, as well as City discretion to go beyond what is legally mandated if allowed.
Regardless, CM Janani Ramachandran, for reasons she did not disclose, moved to place the item on the Consent calendar where it would get no discussion at the Rules meeting. Rules Committee Chair Bas agreed to the change.
KTVU Coverage Draws Scrutiny
But in the meantime, the item received greater public scrutiny after KTVU reported that the new policy includes changes in the procedure for destruction of police records. Lisa Fernandez, the KTVU employee behind the reporting, argued that the new records policy would mean destruction of internal affairs records in a shorter time frame than is currently intended. It’s not clear if the KTVU story is accurate, however—IAD-related records can be destroyed 5 years after the resolution of related investigations in the current policy for un-sustained findings, according to the previous retention schedule [and 15 years after completion for sustained findings according to the stated legal basis for the schedule]. The new policy would require a 20 year retention after termination. OPD holds on to records longer than required in the current retention schedule. The KTVU reporting did not focus on any other records retention policies.
Vast Document That Can't be Compared to Previous Policy
There may be other police records retention schedules altered in the nearly 40 page document, which contains item by item classification, but no comparative analysis of the current schedule. The current schedule is also not included in the legislative packet, and does not appear to be available in any online City of Oakland site. This publication was only able to access the document by finding it in a responsive records request on the City’s public records portal. A comparison of the two policies would require a line by line comparison for two documents set up in different formats which characterize the records differently.
Shortly before the meeting, in light of the reporting and the alarm it caused, Council President Nikki Fortunato Bas announced she’d pull the item to non-consent for further discussion—as Bas was arriving late to the meeting, the request was made instead by CM Rebecca Kaplan.
Police and CPRA Related Records Policies Pulled for Greater Scrutiny at Future Meeting
When the item was read in, Bas made a motion to pull out all police records-related legislation for further deliberation to a future meeting, including policy, training materials, service requests, complaints, audits, dispatch and other types of police records. Bas also requested that all Community Police Review Agency [CPRA] records retention policies be pulled out of the legislation for review. CM Ramachandran, who had been ultimately responsible for scheduling the legislation to the consent calendar left the meeting as the legislation discussion began and did not return until the item deliberation had ended.
Even after Bas made her motion, however, it became clear the council was confused about what they were passing. Before Bas could even make the motion, and apparently unaware that the item had just been transferred to non-consent for deliberation, CM Noel Gallo immediately moved the item for passage as soon as it was read in by the clerk.
Other Record Retention Policies Unclear
In the aftermath of the Bas’ amendments, Council made the move to pass the amended legislation, despite several inquiries by Kaplan about what appeared to be a 4-year retention for public video records of council meetings—records that are currently required to be kept in perpetuity. Initially, Kaplan was told by the Clerk, Reed, who teleconferenced into the meeting, that the video records were maintained permanently in the legislation, despite the fact that the legislation lists only a 4-year retention period schedule. The City’s consultant, who developed the new policy, who was also teleconferencing, added to the confusion by stating that according to City law cited in the legislation, the retention period for video records is only 4 years.
“Our recommendation was for four years, because Oakland municipal code says four years. I cannot undo municipal code…so we’d have to change the code,” Williams said.
CM Dan Kalb, who was chairing the council meeting, noted immediately that the code itself says “at least four years.”
Kaplan noted the confusing discrepancies.
“I’m also concerned that we heard verbally that this policy before us would adopt a permanent standard for video, but the actual document says four years, so that makes me concerned about what else is in the document,” Kaplan said.
Deputy City Attorney Selia Warren eventually clarified the policy and legal structure.
“This is something that we should correct if the council is okay with it. The code provision that the consultant cited does say at least four years, but it also says that…[the City] shall permanently retain all recordings of all meetings,” Warren said.
In a statement to this publication, the City Attorney’s public information consultant confirmed that the code does state that video records must be kept in perpetuity, but did not clarify what would happen if the records retention policy schedule had actually erroneously stated the retention as only four years. During the meeting, Warren clarified that when destroying records, staff must receive permission to do so by the City Attorney’s office.
Kaplan successfully moved to strike the 4 year language and replace it with the term “permanent”.
Bas’ legislative request has not yet been scheduled and the current police records retention policies would apparently remain as they are in the current schedule until the new records-retention policy comes before Council with the police changes.
Council Commits to Larger Stakeholder Engagement for “Expanded” Labor Standards Policy on Measure U Funded Projects as Additional $22 MM is Approved
The City Council on Tuesday passed legislation allowing the Housing and Community Development Department [HCD] to allocate an additional $22 MM in Measure U funding for affordable housing projects that applied for U funds in 2023. When the same legislation first came before the CED committee on 2/13, the Alameda County Construction and Building Trades Council, through allied Council members Nikki Fortunato Bas and Kevin Jenkins, introduced amendments that would have held up funding for many projects unless and until new labor standards requiring agreements with the Trades were passed. The amendments didn’t receive enough support during the committee meeting to advance as part of the Measure U funding legislation [you can read all about that in previous OO reporting].
New amendments were added for consideration in the legislative packet for the Measure U item in the meantime and introduced by Bas at the meeting. The new amendments would have put the onus for creating new “labor standards”—essentially a Project Labor Agreement [PLA] for every Measure U funded project—on the City Administrator’s office, with a deadline before the next release of funding, in 2025 known as a Notice of Funding Availability [NOFA].
But during the public comment period, it became clear that affordable housing developers and advocates were concerned about the ambiguity in legislation that might delay the 2025 NOFA. Organizations representing Black and minority contractors were concerned about being excluded from the labor standards discussion the City Administrator would be compelled to initiate by the legislation, as well.
Lihbin Shiao of Mosaic Urban Development, a Bay Area based affordable housing advisor, like other affordable housing representatives that spoke at public comment, told Council that delaying the NOFA could increase construction costs. Shiao also said that PLA’s increase the total cost of affordable housing without a tangible benefit for local BIPOC communities.
“A number of studies and data points at this time indicate that Project Labor Agreements increase costs between 13.5 to 14.5% and thereby reduce the number of affordable housing units built. We found in an initial survey of three general contractors that subcontractors of color frequently do not choose to bid on jobs with a PLA, and that jobs with a PLA have lower DEI [Diversity, Equity and Inclusion] employment outcomes,” Shiao said.
Shiao also argued that community workforce agreements have better track records in all those criteria.
Bruce Geron, President and Chairman National Association of Minority Contractors [NAMC], also noted his concern that the legislation would commit the city to PLA’s with Measure U funded projects.
“I stand shoulder to shoulder in recognizing the tremendous contribution that unions have made in shaping America, I’m not here to debate that…" Geron acknowledged. But Geron pleaded for caution in rushing towards the PLA discussion and structure the legislation seemed to require.
"If PLA’s are not done correctly, they have the potential to do tremendous harm out there. And it appears that what’s going on now is that there is a covert attempt to kind of commit Oakland to approving a PLA,” Geron said.
In her comments, HCD Director Weinstein noted that she did not believe the language would delay the 2025 NOFA as the affordable housing developers feared. But Weinstein also pointed out that the legislation makes it appear that the City does not have labor standards for grantees when it is not the case.
“I just want to clarify that we have labor standards already in place so what we are considering is potential changes to labor standards, and I just want to make that clear, because the way it reads is as if there are no labor standards already attached to Measure U,” Weinstein said.
The concerns of the stakeholders were incorporated into the final version of the amendments, removing the ambiguity around the release of a new NOFA in 2025, and specifically adding NAMC to the list of stakeholders in a potential labor standards agreement. No timeline is set for the labor standards process.
*Secure Justice was founded and is run by Privacy Advisory Commission Chair Brian Hofer.
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