BART shared data with ICE, records show
Proposed surveillance policy would prevent future lapses, privacy advocates say
OAKLAND >> For eight months last year, BART collected some riders’ license plate information and sent it to a database U.S. Immigration and Customs Enforcement can access, employing surveillance technology the BART board had declared should not be used, according to documents obtained through a public records request.
BART police continued to transmit photos of cars from the MacArthur station parking garage even after the board passed a sanctuary policy that appears to have banned those actions. ICE wouldn’t say Wednesday whether it viewed the data.
The controversy comes as BART’s board later this month revisits a sweeping plan to increase surveillance at its stations in the wake of several violent encounters. BART delayed acting on those plans after riders and privacy advocates objected to the lack of a surveillance policy — which the board will consider today — that would govern how the transit agency collects, stores and shares information about its riders.
The issue with the plate collection dates to April 2016, when BART’s elected leaders told staff to delay a pilot program to use license plate readers that already had been installed without public notice at the MacArthur station in late 2015.
Somehow, the license plate readers were turned on anyway. BART spokesman Chris Filipi said it was an “accident.” Board directors Lateefah Simon and Debora Allen said they hadn’t been briefed on the situation until a reporter brought it to their attention.
From at least January through August of last year, BART sent pictures of 57,632 license plates to the Northern California Regional Intelligence Center, which partners with ICE and other federal agencies, according to public records that Mike Katz-Lacabe, a San Leandro
resident and privacy advocate, obtained in November and later shared with this news organization.
It kept sending that data even after BART’s board, in June 2017, adopted its “Safe Transit” policy, which mirrors “sanctuary city” policies throughout the state and prohibits the district’s employees, including its police officers, from using the agency’s resources to help enforce federal immigration laws.
BART police didn’t realize they had sent the license plate data until Katz-Lacabe and Brian Hofer, chairman of the Oakland Privacy Advisory Commission, brought it to the attention of BART police Chief Carlos Rojas in November, Filipi said. Rojas had the license plate readers uninstalled within two weeks, Katz-Lacabe said.
Intentional or not, Juan Prieto, spokesman for the California Immigrant Youth Justice Alliance, said he wasn’t surprised BART had shared license plate data
with federal agencies because he doesn’t trust government to follow through on its promises to protect undocumented immigrants.
“The word sanctuary has lost a lot of its strength,” Prieto said. “Trusting any state agency to fully support the undocumented community through sanctuary farces is something we are no longer gambling with.”
Those lapses of trust, however, are what privacy advocates want to avoid with a surveillance use policy BART’s board will consider adopting today. The timing couldn’t be more critical as BART seeks to expand its use of surveillance in light of recent violent crimes on the system, including the July stabbing death of 18-year-old Nia Wilson, said Shahid Buttar, director of grassroots advocacy for the Electronic Frontier Foundation.
“(The documented lapses) demonstrate that police and law enforcement agencies are not effectively able to
oversee themselves,” Buttar said. “That’s why civilian oversight is so important.”
That is, if the public is given any legal teeth for effective oversight in this policy, he said.
The proposed policy requires staff to present any new surveillance technology to the board before it is deployed, detailing what data will be collected, how long that data will be stored and which other agencies will be able to access it. The policy also requires the district to draft an annual report explaining how the surveillance technology is being used.
“The actual impact is really enormous,” said Hofer, who helped BART draft the policy. “The number of people (this policy) will protect is huge.”
But unless the board agrees to adopt the proposal as an ordinance, which would allow members of the public to sue the district for violations, it will remain a policy on paper only.
And without effective enforcement, such a policy is less likely to be followed, Matt Cagle, an attorney with the American Civil Liberties Union’s Northern California chapter, said in a letter Wednesday to BART’s board. He urged the board to adopt procedures that allow community concerns to first be heard by BART and, if the violations continue, to be challenged in court.
“This will not invite unnecessary litigation,” he wrote. “Rather, it will ensure that members of the public have a clear procedure by which they can raise legitimate concerns and seek a remedy for non-compliance without litigation.”
If adopted, the policy will be put to use right away, Hofer said. The district already is trying an advanced surveillance system at Lake Merritt that uses computer analytics to track passengers’ movements. But it’s unclear how the district is using that system since it was installed without public notice, he said.
BART initially denied a public records request from this news organization for documents related to the Lake Merritt pilot program. The district subsequently provided invoices showing the agency purchased $156,025 in surveillance software between June 2016 and July 2017 for use through June 2019. Representatives from BART did not answer questions about how the technology is being used.
“Where is the data going and how long are they retaining it and where are they sending it?” Hofer asked. “That’s the point of the surveillance policy the board is voting on.”
The board will meet at 9 a.m. today on the third floor of the Kaiser Center at 2040 Webster St. in Oakland.