AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA v. S.C. (CITY OF LOS ANGELES)Amicus Curiae Brief of The Northern California Chapter of the Society of Professional JournalistsCal.May 10, 2016SUPREME COURT COPY Case No. $227106 FILED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA \ MAY 0 2016 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF Frank A. McGuire Clerk SOUTHERN CALIFRONIA and ELECTRONIC FRONTIER. FOUNDATION, Deputy Petitioners, Vv. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, COUNTY OF LOS ANGELES,and the LOS ANGELES COUNTY SHERIFF’S DEPARTMENT,and the CITY OF LOS ANGELES,andthe LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest. After a Decision by the Court ofAppeal, Second Appellate District, Division Three, Case No. B259392 Los Angeles County Superior Court, Case No. BS143004 (Hon. James C. Chalfant) APPLICATION OF THE NORTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF PROFESSIONAL JOURNALISTS FOR LEAVE TO FILE AMICUS CURIAE BRIEFAND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS RECEIVED James R. Wheaton (SBN 115230) Cherokee D.M. Melton (SBN 243265) MAY 04 2016 FIRSTAMENDMENT PROJECT 1736 Franklin Street, 9th Floor CLERK SUPREME COURT Oakland, CA 94612 Tel: (510) 208-7744 Fax: (510) 208-4562 wheaton@thefirstamendment.org cmelton@thefirstamendment.org Attorneysfor Amicus Curiae Northern California Chapter ofthe Society ofProfessional Journalists TABLE OF CONTENTS APPLICATION FOR LEAVE TO FILE ...eee eeeeeeneeceeseeeeseeneenesesesaeeenees I BRIEF OF AMICUS CURIAE ou.eccceeecnereeeeceseesaeeseesseesseeeaseneeenaeees 1 I. INTRODUCTION oo.eccccecesceceeceeeesaeesesassnsessesaeeseesaaeens I U. ARGUMENT ooo. cccscenseeeneeeeesesesesensessesseecsnseseeseeseeeeeags 4 A. The MassIndiscriminate Collection of Data on Every Vehicle in Los Angeles is Not a “Record of Investigation” Under Government Code § 6254(f). 4 B. Holding that All ALPR Data is Secret Will Have A Profound Chilling Effect on the Public’s Exercise of State and Federal Constitutional Rights ........00..0..... 8 1. The Collection ofALPR Data Places Unique Burdens on the Press.........cceesececesseeeeseceseneeees 11 C. Senate Bill 34 Does Not Create a New Exemption to the CPRA oo... eeecceceeeeeneesseereseteeeeerenseenseeeeeseeesas 17 TH. CONCLUSION...cece ccccccececeeeeeeeseneeeeecaneresnerneneeeneeneeaee 18 WORD COUNTCERTIFICATE 0... cee cecceeseseeeeeneesneseeeeneneeeeaesaeerseeseneeeas 19 CERTIFICATE OF SERVICE..0...cccccccccccessceseceeeeseeeeeeeeaeesteeeceeaeenereneeeneees 20 TABLE OF AUTHORITIES FEDERAL CASES Arizona Free Enter. Club’s Freedom Club PAC v. Bennett (2011) LBL S. Ct. 2806... cece ccceececeseceeeneeceeeeecaeeeaeetsaaeessaeeetsaeteeseaeeaeeeeanees 11 Branzburg v. Hayes (1972) 408 U.S. 665 oo. ccceecccecceeececeeseesaeeceseesesecseesaeesseeseaeessneeeeteatessneseateees 11 Buckley v. Valeo (1976) ADA US. Licceccccceccccseccssecneecescenseeeescecseeaeeeseseaaeseaneeseaaeeeceaeseeseseaeeeseaes 11 Globe Newspaper Co. v. Super. Ct. (1982) A57 U.S. 596... eccccccccessesscecenscesceceesnecceaeeseeceseeeseeeseaeeeeeseeeserseeeseneate 11 Healy v. James (1972) 408 U.S. 169... ecccccccnceseeeseeseeceneeecseeseeeaeceaecesneeseeeeseeseeseseeseaneeets 10 In re FBIfor an Order Requiring the Prod. Of Tangible Things [For. Intel. Surv. Ct., June 19, 2014] 2014 US. Dist. LEXIS 157864...cc eeccccesecsesseeseeeeeeeseaeeeeeeserserensanenaees 7,8 N.A.A.C.P. v. Alabama (1958) 357 U.S. 449iccccccesceececeeececeeeseseeeceeneesetsnecsneeeeeaeeeeeeaeteaseeeeneeeeeaee 10 Near v. State ofMinnesota ex rel. Olson (1931) 283 U.S. 697 .ccccccsccsccssessecsescecessceesseesesecsecaseeseeceaeeseaeecesaensteessesaeesees 16 New York Times Co. v. Sullivan (1964) 376 U.S. 254. eecccscsccsceseceseeseeseeeseceeesenseseesesseteeeseeeeeneeesesaeeessesseeaeenes 12 New York Times Co. v. United States (1971) AQ3 U.S. T13 oececcccccseesecsecesecesececaecesesecseeeeseseccaeeeeaecesneesenseeeesensesaeees 15 Richmond Newspapers, Inc. v. Virginia (1980) MAR U.S. S55 .oicecccccccceseceseesseteeeeeseesseeesseceeceseseseceeneeeseneeenssaetseseeceaneras 11 Riley v. California (2014) 134 S.Ct. 2473 oooceccccccccescccsecseessseeeseesceeseeeeeeeessneeseaeeesaenseneseessteeeeees 7 United States v. Sherman (9th Cir. 1978) S81 F.2d 1358 ooo cccccccsscsseseecssesseseeseeeseceecneeceeeeceeeeseeessenssseeenents 1} United States v. U.S. Dist. Ct. for E. Dist. ofMich., S. Div.) (1972) MOT U.S. 297. cceecececccsceescnseseceseensnesesceeeseseeseceseeaeeaeeeceeseaeeeestesseneeeenes 10 CALIFORNIA CASES Burrows v. Super. Ct. (1974) 13 Cal.3d 238 ooeecesceseeesneesreseeseeeceseeeeeseasseeeseeessesseessaeeteetegs 1] Caldecott v. Super. Ct. (2015) 243 CalApp.4th 212 occceeccteceenecsecsseeeceeseeaeeecaeecscsssesneteesareneaey 8 CBS, Inc. v. Block (1986) AQ Cal.3d 646 oc ccccccccccccscssseeceseeeseeeeesecseeseseeseeecrteeseseceeeeeeaeeteenteeeases 5 Cty ofLos Angeles v. Super. Ct. (2012) 211 CabApp.4th 57 oo. ee cc cceceeesccsceeeeseeeeeeeecsnessaeessseseseseneeesseseeenaes 5 Commission on Peace Officer Standards & Training v. Super. Ct. (2007) AQ Cal.4th 278 ooecccccccccccsccesecssseccssseceesseeseceaeeeceesaeeceeeeeseaseeseeneseaeseaees 6 Delaney v. Super. Ct. (1990) 50 Cal.3d 785 .occccccccccssecsccesesseeseesseesessececeeeseeeeessaeeeseeeseeseaeeneeenaeees 12 Filarsky v. Super. Ct. (2002) 28 Cal4th 419ceccccccccecseseccsseenecsesteesseecaeeeceeeceeaeceseeeseeseneeerees 2,4 League ofCalifornia Cities v. Super. Ct. (2015) 241 CalApp.4th 976 oo... eecccesssscecseceeceeecsscceseesessesseseeesntseseesatesanees 8 Long Beach Police Officers Assn. v. City ofLong Beach (2014) 59 Cal4th 59 ooecccssesecteesneesaececceevseeessaeeteeseeseeeessseseerenieeaseatesees 4,5 Miller v. Super. Ct. (1999) 21 Cal. 4th 883 ooo. ccccccccccsssneesesesseeseceescesseeeereeeeeeeseasereeseeenteesaes 13 People v. Vasco (2005) 131 Cal.App.4th 137 oooeeeccceseesseceeeeeeseeeesseeeeesseeenerseseseereeeees 13 Rancho Publications v. Super. Ct. (1999) 68 Cal.App.4th 1538 oeeeeecceeecseseeeeesreeeeerseeseeatetsateesseneees 13,15 ili White v. Davis (1975) 13 Cal.3d 757 weeeeccesccsseeenceeneeeaeceeeeeeenevseeeeeesueeeeceseeeeeaeeesees passim Williams v. Super. Ct. (1993) 5 Cal.4th 337 .occccccccsccsssccessecessscssnesseceseesseesssseeseeeeseessereesneeeestesseeeees 7 Sierra Club v. Super. Ct. (2013) 57 Cal4th 157 ooeccecccccececccsscecessceeseeenseeseeeesecseeeseeseeesseseseseseeessssesaeeessees 5 CONSTITUTIONAL PROVISIONS Cal. Const. art. 1, 9 Looe cccccccccccsssseceeseeseeessseaeeeessseeeeeeesecessesecssseeeeseees 1,14 Cal. Const, art. I, § 2, subd. (D) oo... eeecccccecesceccesseeesessseeesseeseseeseesaaeessaneee 12 Cal. Const, art. I, § 3, subd. (D)(1) wc.ccceccsssceeeeesesseecesssseeecessseesecees 5 Cal. Const. art. I, § 3, subd. (b)(2) oo.ccccccccscceseessseesseeessseeesseaes passim STATUTES Civil Code § 1798 .90.5 oo eccccssccsscsseeceeeseccesseesessnseeessseesescessseecesseeeecenseeeessecseaseeeeueeenaas 17 Evidence Code § 1070 oe eeccccecssceecesesceeseeescecsseeceseeessceceseessesseessesecseeceesaeesseseseeseseeesseeentees 13 Government Code § 6250 oe eccecccccssseceesseeeseeeecsneesseecesaeecsnecesecsseeseseesseeeseeecssauseseeseeeessatesseeensees 1,5 § O254(f) oo. eeecceesccceesnecsceeeeeeseeceacessanecsueeesceeseesaeeseseeseneeseesseeeesstessneeeegs passim § O254(K) ..eeeeeccecccceesseesecseeceeeeeeecseeeesseeeesessscsesenseeeseeceseeeeesseestensseseaes 17, 18 § 6275 occcccsccseesessnscecsseenseceesseeeeessusecessseeenseceseesseeeesesaeaeeeeeseenseeesesseeeseseeees 17 §§ 6276.01-6276.48 oooccccccccccseccssecceseeesecesesseessseeesseesesseeenseesseecsateesseeeseeees 18 California Rule of Court R520 oo eeeecccssecseccccscceceseeeesseececccccecceeecccceccecsceceseecauneuteecessuscsessetesececssauaaaseneces I OTHERAUTHORITIES Justice Louis Brandeis, Other People’s Money and The How Bankers Use It (1914) woeceesesecneesesscsaeesneesecererseeneesecacaecaesaecenecsessaessaecarcateaseeatessenesseenes 3 Cyrus Farivar, The Cops Are Tracking My Car — and Yours, Arstechnica (July 18, 2013) available at http://arstechnica.com/tech-policy/2013/07/the- cops-are-tracking-my-car-and-yours/1/ 0...eeeeeeeee eee eres eens eneereeeneeas 17 Brian Hofer and the Oakland Privacy Working Group, Oakland Poised to Lead in Protecting Privacy, East Bay Express (Feb. 4, 2015) available at http://www.eastbayexpress.com/oakland/oakland-poised-to- lead-in-protecting-privacy/Content?oid=4 185374 (all websites last visited ON May 3, 2016) oo... eee eeeceesseeeeecseeeeneeceseeecsseeeeeesaaeeseseesessersuesrsaeesenaeetes 6, 14 Shawn Musgrave, License Plate-Reading Devices Fuel Privacy Debate, The Boston Globe (April 9, 2013) available at http://www.bostonglobe.com/ metro/2013/04/08/big-brother-better-police- work-new-technology-automatically-runs-license-plates- everyone/IqoAoFfgp31UnXZT2CsFSK/storyhtm]...ceceeeseeeneeees 16 Orwell, 1984, Pt. 1, Chpt. 1, June 8, 1949 oo.eeeeeeneeeeneeneseee 14, 15 Sen. Bill 34, (2015), 2015 Cal. Legis. Serv. Ch. 532, available at http://www.leginfo.ca.gov/pub/15-16/bill/sen/sb_0001-0 050/sb_34bill20151006chaptered.html...eeeeeeteens 17 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to California Rule of Court 8.520, the Northern California Chapter of the Society of Professional Journalists respectfully requests leave to file the accompanying amicus curiae brief in support of Petitioners’ request that this Court reverse the Court ofAppeal and holdthat data collected by Real Parties using Automated License Plate Readers (“ALPR”) are not “[rJecords of ... investigations...” within the meaning of Government Code § 6254(f),! and therefore not exempt from disclosure under the California Public Records Act, § 6250 et seq. The Society of Professional Journalists (“SPJ”) is a not-for-profit, national journalism organization dedicated to encouraging the free practice ofjournalism and stimulating high standardsofethical behavior. SPJ was founded in 1909 as Sigma Delta Chi, a journalistic fraternity.It is the oldest, largest, and most representative organization serving journalists in the United States. SPJ worksto inspire and educate current and future journalists through professional development. SPJ also worksto protect First Amendment guarantees of freedom of speech and press throughits advocacy efforts. Among other things, SPJ actively follows administrative, legislative, and judicial developments, and makesits voice heard through court filings and petitions on behalf ofjournalists who have been shut-out of hearings, denied access to information, or compelled to turn over notes and research. SPJ has nearly 9,000 members nation-wide, including broadcast, print, and online journalists, journalism educators and students, and other non-journalist members who support SPJ’s mission. The ' All further statutory references are to the Government Code unless otherwise indicated. Northern California Chapter (“Nor. Cal. SPJ”) was founded in 1931 and has approximately 200 members. Nor. Cal. SPJ has an active Freedom of Information Committee that has recommendedthat the Chapter be involved in this matter. Nor. Cal. SPJ has a significant interest in this case, and in particular, in upholding the public’s right of access and the free flow of information that is vital to a well-informedcitizenry and a free press. Specifically, Nor. Cal. SPJ has an interest in the disclosure of the public records at issue here becausethey are necessary to the education of the public on the activities of the Real Parties, and for a meaningful discussion on the same. Nor. Cal. SPJ agrees with Petitioners that the Court ofAppeal’s holdingsignificantly expands the exemption for law enforcement “records of investigation” under § 6254(f). Nor. Cal. SPJ also agrees with Petitioners that the Court ofAppeal improperly ignored the Constitutional mandate to construe the exemptions to disclosure narrowly. (See Cal. Const.art. I, § 3, subd. (b)(2).) Nor. Cal. SPJ further agrees that the Court ofAppealfailed to acknowledgethe fundamental difference between automated ALPR technology andtraditional policing, and the impactofthat difference on public records law. Nor. Cal. SPJ can assist the Court by highlighting and explaining the importance of transparency in government andthefree flow of information with respect to ALPR data, particularly from the point of view of the media. In addition, Nor. Cal. SPJ is concerned with the chilling effect the Court of Appeal’s decision will have onstate and federal constitutionalrights, namely,the right to free speech, press, assembly, anonymity, and the right to privacy. Moreover, Nor. Cal. SPJ has identified specific burdens and risks uniquely placed on the media, and those who work with the media, as a result ofALPRs. For the foregoing reasons, Nor. Cal. SPJ respectfully requests that the Court accept the accompanying brief for filing in this case.” Dated: May 3, 2016 Respectfully submitted, James Wheaton Cherokee Melton Attorneysfor Northern California Chapter of the Society ofProfessional Journalists 2 No counsel for a party authored this brief in whole orin part, and no counsel or party made a monetary contribution intended to fund the preparation or submission ofthis brief. WI BRIEF OFAMICUS CURIAE I. INTRODUCTION The Los Angeles Police and Sheriff’s Departments’ mass, indiscriminate collection of license plate data that records the location, movements, and behavior of innocent, ordinary citizens, implicates serious state and federal constitutional concerns. Chief among them is the loss of privacy, which inevitably flows from the type of “government snooping” and “overbroad collection and retention of unnecessary personal information” prohibited by the California Constitution. (White v. Davis (1975) 13 Cal.3d 757, 775; Cal. Const. art. I, § 1.) The extent of this secret surveillance is so far-reaching, and the potential for abuse so great, that the chilling effect is enormousonthe rights to free speech, a free press, the right to association, and the attendantright to anonymity. To make matters worse, the City and County?refuse to disclose the records of this widespread “government snooping”in response to Petitioners’ California Public Records Act (“CPRA”) request. Real Parties claim that the Automated License Plate Reader (““ALPR”) data are “Trjecords ... of investigations” and thus, exempt from disclosure under Government Code § 6254(f). The Court ofAppeal agreed. The Court ofAppeal’s decision that the ALPRsroutine, untargeted, mass collection of data is an “investigation” is error. It is an unprecedented expansion of the term, and one that renders it totally meaningless.It effectively removes any limit on what information police may gather and keep secret. That interpretation also ignores the constitutional mandate that 3 Amicus Curiae Nor. Cal. SPJ refers to Real Parties in Interest City of Los Angeles as “City,” County of Los Angeles as “County,” and the two collectively as “Real Parties.” statues limiting access to public documents be narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(2).) The decision to shield these records from the public significantly stifle, if not wholly foreclose, a meaningful public debate on the dangers and virtues of this program. Amicus curiae Northern Californian Chapter of the Society of Professional Journalists (“Nor. Cal. SPJ’) are journalists and non- journalists who support the organization’s mission of upholding the public’s right of access and the free flow of information thatis vital to a well- informedcitizenry and to a free press. Thus, Nor. Cal. SPJ has a significant interest in the disclosure of the public records necessary to have such a debate. It is the job of the press to investigate and report on theaffairs of government, and speech by citizens on matters of public concern lies at the heart of the freedoms of speech and press guaranteed by the state and federal constitutions. The bedrock for these guarantees in the California Constitution is the CPRA, the purpose of which is to “increas[e] freedom of information by giving members of the public access to information in the possession of public agencies.” (Filarsky v. Super. Ct. (2002) 28 Cal.4th 419, 425.) However, the interest of amicus here is not just in the disclosure of public records and information necessary to fully expose and discuss the business of the governmentandits effects on the lives of the people ofthis state. For the masscollection and retention of secret ALPR data does not just place heavy burdens on journalists wishing to report the news, but also on their ability to gatherit in the first place. The ability to piece together, through ALPR data, where a journalist was and who she was meeting with, and where she may be next — all in secret — strikes at the heart of the legal safeguards enacted to guarantee that the media continue to act as the unfettered eyes and ears of the public, and protect confidential and anonymoussources whoare the foundation of investigative journalism. While the issue of privacy may beirrelevant to the legal question of whether ALPRdata are “records of investigation” within the meaning of § 6254(f), amicus Nor. Cal SPJ respectfully urges this Court to consider the chilling effect the Court ofAppeal’s decision will have on the exercise of state and federal constitutional rights, including the rightto privacy. This case presents an inescapable conundrum. The law enforcement agencies’ decision to collect massive amounts of data to create searchable dossiers of information concerning everyone’stravel and habits, innocent and guilty alike, and then insist on keepingall the data secret, present this Court with two outcomes, both unpalatable. In one case, that data is disclosed under the CPRA,and the invasion of personal privacy the police have already inflicted is repeated and magnified. Moreover, that data can be collected by private entities whose interest in protecting privacy is scant at best. But in the other case, that invasion of privacy is every bit as complete, exceptit is kept secret. In that latter scenario, we become dimly aware we are being watched, but we do not entirely know when or by whom, or what is done with the information. Lawful use surely, but also abuse, can be expected. In choosing between these equally unpleasant choices,the California Constitution points to the preferred outcome:disclosure and debate. As is so oftensaid, “sunlight is said to be the best of disinfectants.’ The decision of whether to gather this information at all and what 4 Justice Louis Brandeis, Other People's Money and The How Bankers Use It (1914). information is in fact gathered should notbe left solely in the hands of those who wishto keepit secret.° IL ARGUMENT A. The Mass, Indiscriminate Collection of Data on Every Vehicle in Los Angeles is Not a “Record of Investigation” Under Government Code § 6254(f) The purpose of the CPRA is to “increas[e] freedom of information by giving membersofthe public access to information in the possession of public agencies.” (Filarsky, supra, 28 Cal.4th at 425.) Transparency and accountability are especially important whenit comestotheactivities of law enforcementofficers who, as this Court recently stated, “... hold one of the most powerful positions in our society.” (Long Beach Police Officers Assn. v. City ofLong Beach (2014) 59 Cal.4th 59, 73.) “[O]ur dependence on them is high andthe potential for abuse of poweris far from insignificant.” (Jbid. [internal citations omitted].) Indeed, as this Court has recognized: Implicit in the democratic processis the notion that government should be accountableforits actions. In orderto verify accountability, individuals must have accessto governmentfiles. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process. 5 It is worth noting that this conundrumis one entirely of the Real Parties- own making. Assuming, arguendo,that the initial mass scan of every license plate within an area to check for “hot plates”of stolen vehicles, perpetrators at large, or “Amber Alert” vehicles, is legitimate, that legitimacy vanishes once a vehicle has been scanned and found innocent. The problem arises here because the agencies choose to thereafter keep the data in massive searchable databases, thus rendering them subject to a Public Records Act request. If the police configured their technology to checka license plate against a knownlist and then instantly discard those that did not yield a positive hit, there is no record and the entire issue and the attendant concernsover privacy vanish. Having created the problem they should not be heard to solve it by keeping data on millions of innocent citizens secret. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) Thus, access to public records “is a fundamental and necessary right of every personin this state.” (§ 6250; see also Cal. Const., art. I, § 3, subd. (b)(1).) The presumption is that this information is open and accessible. (See, e.g., Sierra Club v. Super. Ct. (2013) 57 Cal.4th 157, 166-67; Cty ofLos Angeles v. Super. Ct. (2012) 211 Cal.App.4th 57, 60.) Significantly, since the passage of Proposition 59, the Constitution requires that courts “broadly construe statutes that grant public access to government information and narrowly construe statues that limit such access.” ° (Long Beach Police Officers Assn., supra, 59 Cal.4th at 68; Cal. Const., art. I, § 3, subd. (b)(2).) The Court ofAppeal held that the records generated from the automatic, untargeted scanning of every vehicle licenseplate traveling through Los Angeles constitutes “records of ... investigations” exempt from disclosure under § 6254(f). This was error. As amply argued by Petitioners, the unprecedented expansion of the term “investigation” to include the mass, indiscriminate collection of data is not only inconsistent with prior case law,it renders the term meaningless. While the City argues that Petitioners’ proffered limit on the meaning of “investigations” to only include targeted inquiries “into a specific crime or person,” is unworkable, law enforcementoffers no rule at all. (Pets. Open. Br. at 15.) Indeed, under the logic offered by Real Parties, any information gathered by a police ® Real Parties argue that passage of the Constitutional amendmentin Proposition 59 changed nothing, or simply restated existing law. To uphold that interpretation would require that this Court overrule its own recent case law, finding that Proposition 59 did in fact create a new rule of interpretation, and that new rule affects how current statutes and past case law should be applied since its passage. (See Sierra Club, supra, 57 Cal.4th at 166; Long Beach Police Officers Assn., supra, 59 Cal.4th at 68.) officer, at any time, on entirely innocent people not suspected of any wrongdoing would be a “record of investigation” because ofits potential future use, even where there is no connection to a crime. A single example of the breadth of this argument, applied outside the license plate context, reveals its unreasonableness. Imagine an innocent individual engaged in lawfully protected activity who is subject to mass surveillance that is kept secret. Whether entering a mosque,attending a political rally, or simply walking down thestreet, their movements are now recorded in secret and without the public accountability that the CPRA provides. Incredibly, this means that when that memberofthe political rally or mosque requests those images of herself under the CPRA,she will be told no because they are “records of an investigation.” This is true even though the data collected has no connection to any actual investigation, and the individual is under no suspicion of actual wrongdoing. The surveillance information described above,like the ALPR records at issue here,is just the bulk collection of data, a miniscule amount of which may possibly be connected to criminal activity.’ That does not changethe fact, however,that the indiscriminate collection of information is just that, and not an “investigation” into any particular suspect or crime. Its essential nature does not change because it may become usefullater on, at a time and in situation yet to be determined, and which in nearlyall cases will never materialize. (See Commission on Peace Officer Standards 7 For example, in November 2014, Menlo Park, California presented a report on automated license plate readers, which concludedthat “only one stolen vehicle had been recovered even though police had tracked the license plates of 263,430 vehicles.” Brian Hofer and the Oakland Privacy Working Group, Oakland Poised to Lead in Protecting Privacy, East Bay Express (Feb. 4, 2015) available at http://www.eastbayexpress.com/oakland/oakland-poised-to-lead-in- protecting-privacy/Content?oid=4 185374 (all websites last visited on May 3, 2016). & Training v. Super. Ct. (2007) 42 Cal.4th 278, 291, quoting, Williamsv. Super. Ct. (1993) 5 Cal.4th 337, 355 [’(T)he law doesnot provide... that a public agency mayshield a record from public disclosure, regardless of its nature, simply by placingit in a file labelled “investigatory.”’)] Moreover, the Court ofAppeal’s conclusion that ALPRs simply automate what an officer could otherwise do, and that technologyis irrelevant to the question of what constitutes an “investigation,” is deeply problematic. (Slip. Op. at 11.) New technology does matter. A police officer walking downthe street cannot and does not “investigate” every person or vehicle that passes by, run their information and plate numbers against police databases, and permanently catalog that information for potential future use. Yet, the ALPR system doesjust that. It allows law enforcement to track the movements of any citizen at any time, and thereby know where one has been, who they have met with, and where they maylikely go, a process which heretofore was not possible. The fact that technology now allows the state to gather and retain this information with ease, does not makeit any less worthy of protection. (See Riley v. California (2014) 134 S.Ct. 2473, 2494-95.) If the mass stockpiling of information can be considered an investigation under the CPRA,then Real Parties truly have carte blanche to operate in secret. Such an interpretation does not just undermine the CPRA, it obliterates it, at least as far as law enforcement agencies are concerned.® Certainly, this is not what the Legislature had in mind whenit enacted the CPRA,with the intention “to open agency action to the light of ® Contrary to the City’s claim, Petitioners do not argue that “widespread data collection can never be an investigation ...” (City Ans. at 29.) It is telling, however, that the City sought to rebut this claim by a singular citation to a decision of the Foreign Intelligence Surveillance Act (FISA) Court. (See City Ans. Brf. at 29 citing Jn re F'BIfor an Order Requiring the public review ...” (Caldecott v. Super. Ct. (2015) 243 Cal.App.4th 212, 223-24), “prevent secrecy in government and contribute significantly to the public understanding of governmentactivities.” (League ofCalifornia Cities v. Super. Ct. (2015) 241 Cal.App.4th 976, 994 [internal citations omitted].) B. Holding that All ALPR Data is Secret Will Have A Profound Chilling Effect on the Public’s Exercise of State and Federal Constitutional Rights While the nature and extent of the privacy violations the ALPR program inflicts on Los Angeles residents may beirrelevantto the legal question of whether ALPR data are “records of investigation” within the meaning of § 6254(f), amicus Nor. Cal. SPJ respectfully urge this Court to consider the chilling effects the Court ofAppeal’s decision to keep the data secret will have on the exercise of state and federal constitutional rights. First and foremost, the right to privacy guaranteed by the California Constitution is specifically concerned with, among otherthings, providing protection to citizens against “government snooping and the secret gathering ofpersonalinformation [and] the overbroad collection and retention of unnecessary personal information by governmentand business interests.” (White, supra, 13 Cal.3d at 775 [emphasis added].) The driving force behind the provision was the concern overthe “accelerating encroachmenton personal freedom and security caused by increased surveillance and data collection activity in contemporary society.” (ad. at 774 [emphasis added].) Prod. OfTangible Things (For. Intel. Surv. Ct., June 19, 2014] 2014 U.S. Dist. LEXIS 157864, *14.) Even there, the court was required to make a finding that there was a “reasonable, articulable suspicion”that “certain” telephone numbers involved were “associated with an internationalterrorist organization.” (In re FBIfor an Order Requiring the Prod. OfTangible Things, 2014 U.S. Dist. LEXIS 157864.) In White v. Davis, the California Supreme Court addressed another surveillance program by the LAPDthat, like this one, involved the secret and overbroad collection ofpersonal information, government snooping, and secret surveillance. (/d. at 757.) In White, the plaintiff alleged that members of the LAPD,acting as “secret informers and undercover agents,” registered as students, attended University classes, and were submitting reports to the police department of class discussions and student meetings, both public andprivate. (Id. at 761 [emphasis added].) Like the ALPR program, the “intelligence” gathered in White by the LAPD agents did not pertain to any particular illegal activity or acts, but rather was gathered to be maintained in police files or ‘dossiers’ for future potential use. (/d. at 762.) In defending the program, the LAPD arguedthat the “the gathering of intelligence information to enable the police to anticipate and perhaps prevent future criminalactivity is a legitimate and importantpolice function.” (/d. at 766.) The White Court explained, however,that the right to privacy is an enforceable limit to law enforcement’s admittedly legitimate interest in gathering information to forestall future criminalacts. (Id. at 766.) Indeed, analyzing the LAPD’s surveillance program against the principals upon whichthe constitutional amendment was enacted, the Court foundthat “the police surveillance operation challenged ... epitomizes the kind of governmental conduct which the new constitutional amendment condemns.” (/d. at 775.) Importantly, the Court took issue with the “routine” nature of the surveillance, including that which occurred in both public andprivate, and foundthat it constituted “government snooping”in the extreme.” (/d. at 775-76.) Moreover, because the information gathered did not pertain to any illegal activity or acts, “a strong suspicionis raised that the gathered material, preserved in “police dossiers’ may be largely unnecessary” for any legitimate or compelling governmental interest. (/d. at 776.) Last, the Court repeatedly noted that the secrecy of the program and the records was a decisive feature that rendered it constitutionally suspect. (V/d. at 761, 767.) As a result, the Court held that the Complaint stated aprimafacie violation of the constitutional right to privacy. Equally significant was the Court’s finding that the First Amendment imposed a limit to the LAPD’s routine surveillance activities. (dd. at 761.) “[T]he Constitution’s protection is not limited to direct interference with fundamental rights.” Ud. at 767 (quoting Healy v. James (1972) 408 U.S. 169, 183).) Thus, secret police surveillance may run afoul of the First Amendmentif the effect of the challenged activity is to chill protected activity. (/d.). The United States Supreme Court has found the same. (See e.g, N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 461 [“In the domain of these indispensable liberties, whether of speech, press, or association, the decisionsofthis Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental! action.”]; United States v. U.S. Dist. Ct. for E. Dist. ofMich., S. Div.) (1972) 407 U.S. 297, 320 [“Official surveillance, whetherits purpose be criminal investigation or ongoing intelligence gathering,risks infringement of constitutionally protected privacy of speech.”].) In White, like here, secret surveillance of ordinary citizens, and the creation of a database of personal information, inevitably inhibits the right to privacy, the exercise of free speech, and the right of association. While it is true that ALPR technology creates new opportunities for police to solve crimes, it also exponentially increases the invasiveness of the surveillance. Asthis Court has recognized, the development oftechnology has “accelerated the ability of government to intrude into areas which a person 10 normally chooses to exclude from prying eyes and inquisitive minds.” (Burrows v. Super. Ct. (1974) 13 Cal.3d 238, 248.) “Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.” ([bid.) That the government collects this information in secret, and insists on keeping it secret, compounds the problem. 1. The Collection ofALPR Data Places Unique Burdenson the Press The collection and retention of mass surveillance data poses acute threats to the freedom and autonomyofthe press, and to the rights of those who choose,either confidentially or anonymously, to be a source for news. These risks to fundamental rights, which are linked to the right to privacy just discussed, are also implicated here and weigh in favor of disclosure. The right to not only publish the news,but also to gatherit, is protected by the First Amendment. (See Branzburg v. Hayes (1972) 408 U.S. 665, 681; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 576 (plurality opinion) [recognizing that the First amendment incorporates a right “to gather information”]; Globe Newspaper Co. v. Super. Ct. (1982) 457 U.S. 596, 604 [gathering information is among the freedomsthat are “necessary to the enjoyment of other First Amendmentrights.”]; see also United States v. Sherman (9th Cir. 1978) 581 F.2d 1358, 1361 [The Supreme Court has recognized that newsgathering is an activity protected by the First Amendment.”].) “[T]here is practically universal agreement that a major purpose of” the First Amendment“wasto protect the free discussion of governmental affairs.” (Arizona Free Enter. Club’s Freedom Club PACv. Bennett (2011) 131 S. Ct. 2806, 2828-29 (quoting Buckley v. Valeo (1976) 424 US.1, 14).) That agreement “reflects our ‘profound national commitmentto the principle that debate on public issues should be uninhibited, robust, and wide-open.’” (/bid. (quoting New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270).) In addition, California has enacted specific safeguards to protect the press, its information, and its sources. Article I, § 2 subd. (b) of the California Constitution protects from forced disclosure a newsgatherer’s “source ofany information” and “any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”? (Delaney v. Super. Ct. (1990) 50 Cal.3d 785, 796-97 (quoting Cal. Const. Art. 1, § 2 subd. (b) [emphasis added]).) This Constitutional provision, as well as the corresponding andidentical ° Article 1, section 2(b), provides, in full: “A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person whohas been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the powerto issue subpoenas, for refusing to disclose the source ofany information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, orfor refusing to disclose any unpublished information obtained or preparedin gathering, receiving or processing ofinformationfor communication to the public. [§] Nor shall a radio or television news reporter or other person connected with or employedby a radioortelevision station, or any person who has been so connected or employed, be so adjudged in contemptfor refusing to disclose the source ofany information procured while so connected or employed for news or news commentary purposes on radio or television, orfor refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing ofinformation for communication to the public. [J] As used in this subdivision, ‘unpublished information’ includes information not disseminated to the public by the personfrom whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whateversort notitself disseminated to the public through a medium of communication, whether or not published information based uponorrelated to such material has been disseminated.” [emphasis added]. Evidence Codesection 1070 is the statutory counterpart to article I, section 2(b), and contains nearly identical wording. rule found in Evidence Code section 1070, shields a// unpublished information, whether confidential or non-confidential, and all sources for such information. Unpublished information includes “a newsperson’s unpublished, non-confidential eyewitness observations of an occurrence in a public place.” '° (Id. at 797 [emphasis added].) The shield law provides “virtually absolute immunity for refusing to testify or otherwise surrender unpublished information.” (Miller v. Super. Ct. (1999) 21 Cal. 4th 883, 899.) Theright to privacy foundin article 1, section 1 of the California Constitution, and the First Amendmentto the federal constitution, provide additional protections for journalists and their sources, because they “‘protect[] the speech and privacyrights of individuals who wish to promulgate their information and ideas in a public forum while keeping their identities secret.” (Rancho Publications v. Super. Ct. (1999) 68 Cal.App.4th 1538, 1547.) Indiscriminate, massive collection ofALPR data that is then kept secret poses a particular threat to the media. In newsgathering, and especially in investigative reporting, confidential and anonymous sources are a vital resource whose importance cannot be understated. Some of the 10 To qualify for shield law protection, the newsperson must show “that he is one of the types ofpersons enumeratedin the law, that the information was ‘obtained or prepared in gathering, receiving or processing of information for communication to the public,’ and that the information has not been ‘disseminated to the public by the person from whom disclosureis sought.’” (People v. Vasco (2005) 131 Cal.App.4th 137, 151.) most importantstories of our time, particularly those involving government corruption or abuse, are only possible with the use of such sources.!! The ALPRs untargeted surveillance poses an acute problem for journalists and their sources, particularly where the source might be in law enforcement, or providing information about law enforcementactivities or perceived misbehavior or malfeasance. Knowledge that essentially every car’s movements can be indelibly recorded in a secret database for later search or examination makes movement extremely difficult in a culture built on the automobile. The problem is not that the police are diligently watching every vehicle on hundreds of screens in some underground bunker. The problem is more subtle, and effectively self-imposed by the mere knowledgeofthe fact of secret dragnet surveillance.!* This is described no better than in the touchstone book “1984”by George Orwell: There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork.It was even conceivable that they watched everybodyall the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — didlive, from habit that became instinct — in the assumption that every sound you made wasoverheard, and, except in darkness, every movementscrutinized. '! For example, FBI Assistant Director Mark Felt — the famous source of Watergate reporters Woodward and Bernstein known as “Deep Throat” — insisted all meetings be held in a parking garage. Such garages are no longer reliably anonymousifthe identity of every car going in and out can be recorded by thestate. '2 According to a recent East Bay Express Article: “In 2014, the PEN American Center surveyed writers in fifty nations, finding that many writers living in so-called free countries say they sometimes avoid controversial topics out of fear of government surveillance, and are self- censoring at levels near those in repressed nations.” Oakland Poised to Leadin Protecting Privacy, supra note 7. 14 (Orwell, 1984, Pt. 1, Chpt. 1, June 8, 1949.) A law enforcement source knowsofthe capability of collecting auto movements, and so must avoid travelling to a place where a journalist’s movement might also be captured, or even of allowing the journalist to cometo their home or workplace. Thus, the massive collection and retention ofALPR data — which can pinpoint where a person has been and may likely be again — has the potential to undermine, if not obliterate, the fabric of safeguards described above. This threat not only exists for journalists, who rely on these protectionsto their jobs, but also on those individuals who choose to speak to the press as sources of information — whetherin private or in public, and who do so only with the promise of confidentiality or anonymity. The right to speak or associate anonymously, whether to a journalist or otherwise, is deeply rooted in both the First Amendmentandthe state right to privacy. The secret, indiscriminate collection of everyone’s movements undoubtedly underminesthat right, and “[aJnonymity, once lost, cannot be regained.” (Rancho Publ., supra, 68 Cal.App.4th at 1541.) The United States Supreme Court has explained that the press fulfills its essential role in our democracy by baring the secrets of government and informing the people. (New York Times Co. v. United States (1971) 403 U.S. 713, 717 (Black, J. Concurring).) “Only a free and unrestrained press can effectively expose deception in government.” (Ibid.).'? These essential functions cannot be fulfilled if the exercise of these rights are chilled by the masssurveillance and secret indiscriminate stockpiling of information at issue here. Nor can the press fully function if it fears the misuse ofthis information against it, or other reprisals from knowledge gleaned from secret ALPR data. These concernsare not fanciful. For example, a Bay Area based reporter requested ALPR data on his own license plate from the Oakland Police Department (“OPD”). In so doing, he learned that OPD’s ALPR system had captured his car 13 times between April 29, 2013 and May6, 2013 at various points throughout the city, including at an intersection near his home. He had not committed any crime, nor was his car wanted or stolen. '* 13 See also Near v. State ofMinnesota ex rel. Olson (1931) 283 U.S. 697, 719-20 (“[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the dangerof its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminalalliances and official neglect, emphasizes the primary needof a vigilant and courageouspress, especially in great cities.”) 14 See Cyrus Farivar, The Cops Are Tracking My Car — and Yours, Arstechnica (July 18, 2013) available at http://arstechnica.com/tech- policy/2013/07/the-cops-are-tracking-my-car-and-yours/1/. '5 Tt was also reported by the Boston Globethat, in 2004, police tracked Canadian reporter Kerry Diotte using automated license scansafter he wrotearticles critical of the local traffic division. “A senior officer admitted to inappropriately searching for the reporter’s vehicle in a license scan database in an attempt to catch Diotte driving drunk.” Shawn Musgrave, License Plate-Reading Devices Fuel Privacy Debate, The Boston Globe (April 9, 2013) available at http://www.bostonglobe.com/ metro/2013/04/08/big-brother-better-police-work-new-technology- automatically-runs-license-plates- everyone/1qoAoFfgp3 1 UnXZT2CsFSK/story-html. To be clear, in arguing for disclosure of these documents, amicus Nor. Cal. SPJ acknowledges the rights to confidentiality and anonymity it cherishes will be threatened. If Petitioners’ relief is granted, and even the limited ALPR data released, the privacy of millions of Los Angeles residents will be compromised. However, it is hardly for the law enforcement agencies that breached the privacyin the first instance to be heard now as advocating for protection from further invasion. Noris it an answerto arguethat the secret, mass surveillance program already in use by Real Parties will harm citizens if better, more accurate information about it is disclosed and discussed. It is only throughthe release of these records that the public can be informed and debate the virtues, values, flaws, and dangers ofthe collection and retention of ALPRdata. C. Senate Bill 34 Does Not Create a New Exemptionto the CPRA The County is wrong whenit argues that Senate Bill 34, as set forth in Civil Code section 1798.90.5 et seq., created a new exemption to the CPRA. The California Constitution explicitly requires that statutes limiting the right of access “be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” (Cal. Const. art. I, § 3 subd. (b)(2).) No such findings were adopted.!° Furthermore, the CPRA mandatesthat “each addition or amendment to a statute that exempts any information containedin a public record from disclosure pursuant to subdivision (k) of Section 6254 shall be listed and describedin this article ...”!” (§ 6275.) Noneofthe provisions includedin 16 See Sen. Bill 34, (2015), 2015 Cal. Legis. Serv. Ch. 532, available at http://www.leginfo.ca.gov/pub/15-16/bill/sen/sb_0001-0 050/sb_34bill20151006_chaptered.html. S.B. 34 are listed in the Government Code Chapter which painstakingly cross-references and incorporate exemptions created by laws enacted outside of the CPRA. (See §§ 6276.01-6276.48.) S.B. 34 satisfies none of the legal requirements necessary for establishing a new exemption to the CPRA. If. CONCLUSION Amicus Nor. Cal. SPJ respectfully urge this Court to granttherelief requested by Petitioners, hold that the exemption found in § 6254(f) for “records of investigations” does not apply to ALPR data, and reverse the Court ofAppeal. Respectfully submitted, Date: May 3, 2015 FIRST AMENDMENTPROJECT By Cherokee D.M. Melton James Wheaton Attorneys for Amicus Curiae Society of Professional Journalists, Northern California Chapter !7 Government Code section 6254 (k) provides that: “Records, the disclosure of which is exempted or prohibited pursuant to federalor state law, including, but not limited to, provisions of the Evidence Coderelating to privilege.” If, as the County claims, S.B. 34 prohibited the disclosure of the ALPR data via the CPRA, § 6254(k) would provide the exemption. WORD COUNT CERTIFICATE I certify that I prepared this brief using Times 13 font using Word | computing software, and that the attached application and brief together is 6,687 words, including footnotes, but excluding the cover, the tables, the signature block, andthis certificate. I have relied on the automated word count of the computer program used to preparethe brief. Date: May 3, 2015 FIRST AMENDMENT PROJECT Cherokee D.M. Melton Attorneysfor Amicus Curiae Society ofProfessional Journalists, Northern California Chapter CERTIFICATE OF SERVICE I, Nicole Feliciano, hereby declare: I am overthe age of 18 years and am not a party to this action. I am employed in the county of Alameda. My business addressis First AmendmentProject, 1736 Franklin Street, Ninth Floor, Oakland, CA 94612. On May4, 2016 I caused to be served the attached: APPLICATION OF THE NORTHERN CALIFORNIA CHAPTER OFTHE SOCIETY OF PROFESSIONAL JOURNALISTS FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS _X__ BY MAIL.I caused the above identified document(s) addressed to the party(ies) listed below to be deposited for collection at the Public Interest Law Offices or a certified United States Postal Service box following the regular practice for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, correspondenceis deposited with the United States Postal Service on this day. I declare under penalty of perjury, under the lawsofthe State of California, that the foregoing is true and correct, and that this Declaration was executed at Oakland, California on May 4, 2016. Nicole Feliciano DECLARANT 20 SERVICELIST Court of Appeal 24 Appellant District Division Three Ronald Regan State Bldg. 300 South Spring Street Floor 2, North Tower Los Angeles, CA 90013-1213 Hon. James Chalfant Los Angeles County Superior Court 111 North Hill St., Dept. 85 Los Angeles, CA 90012 Respondent Peter Bibring, Esq. ACLU Foundation of Southern California 1313 W. Eighth Street Los Angeles, CA 90017 (213) 977-9500- FAX: (213) 977-5299 Attorneysfor Petitioners: American Civil Liberties Union Foundation ofSouthern California and Electronic Frontier Foundation Jennifer Lynch, Esq. Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436-9333- Fax: (415) 436-9993 ilynch@leff.org Attorneysfor Petitioners: American Civil Liberties Union Foundation ofSouthern California and Electronic Frontier Foundation Michael Feuer, City Attorney Carlos De La Guerra, Managing Assistant City Attorney Debra L. Gonzales, Supervising Assistant City Attorney Heather L. Aubty, Deputy City Attorney 200 North Main Street City Hall East, Room 800 Los Angeles, CA 90012 (213) 978-8393 Fax: (213) 978-8787 Attorneysfor Real Parties in Interest: City ofLos Angeles and Los Angeles Police Department 2] Eric Brown, Esq. Tomas A. Guterres, Esq. James C. Jardin, Esq. Collins Collins Muir Stewart, LLP 11 00 El Centro Street South Pasadena, CA 91030 (626) 243-1100 Fax: (626) 243-111 Attorneysfor Real Parties in Interest: County ofLos Angeles 22
