City tackles uncharted territory

Yuma council’s ‘smart city’ plan requires new laws

With “smart city” devices coming to Yuma, city officials continue to grapple with issues related to the new technology.

After the City Council had a couple of weeks to digest a draft ordinance, members had another discussion on how digital recordings would be handled and how the city will ensure citizen privacy.

The draft ordinance proposes policies regarding the “smart city” nodes, which will be placed on streetlights and have the ability to record video and audio, provide lighting control, a city-wide wireless network and allow cellular carriers to use the network to extend service coverage and network capacity. The ordinance explains how data can be used and by whom and proposes external and internal committees to provide the council with policy change recommendations as issues arise.

In August, Yuma entered into a contract with anyCOMM Holdings Corp. for the installation of the nodes on city infrastructure, such as streetlights and traffic boxes. The project is being done in conjunction with a conversion to LED streetlights by Siemens Industry.

Yuma would be the first city in Arizona and the second in the nation, behind San Jose, Calif., to have this technology. “This is uncharted territory ... We’re not sure how the courts will treat that,” City Administrator Greg Wilkinson said.

The recorded data can serve as a tool for deterring crimes and in the investigation of crimes. However, officials are trying to strike a good balance between protecting the privacy of citizens while allowing police to investigate crimes without more hurdles than necessary.

During a June 19 work session, the council members shared more of their thoughts and concerns. Councilor Edward Thomas pointed out the section which says that “once information is retrieved, it will be handled in the same manner as other evidence is handled” by the police and fire departments. He

asked how evidence is typically handled.

Police Chief John Lekan explained that if a private business or property owner refuses to share video evidence during an investigation, police can request a search warrant or court order “if it’s absolutely necessary we have it.” Once video is downloaded to a CD disk or sent to police via a file, it goes to a forensic crew, which stores it “in a manner that nobody can get it without going through a chain of custody process.” The tracking mechanism shows everyone who touches and views evidence.

“Not only do we have to follow the Constitution, but we are also concerned with the rules of evidence in getting it introduced into court, so there are specific guidelines that are already in place through laws,” Lekan said.

Fire Chief Steve Irr explained that fire investigators handle evidence much like the police department does.

Thomas also questioned a section that says that “only the city will be allowed direct access” to the data collected on the nodes, “except as may be required by law.” He asked whether that referred to local, state or constitutional laws.

“The reason for that statement ‘by law’ is there may be a judicial action, a judge order, which would require us to hand over whatever information we have. It could involve a court case or a lawsuit,” Wilkinson said.

“The reason we are going through some of these machinations is because there is some unknown in this which will be established by the courts,” he added.

Mayor Doug Nicholls said that the ordinance should be as specific as possible in citing laws, “that way if I am a citizen that has a question on how this applies to me, I don’t have to hire an attorney to scour all the state law. I can go straight to that section of law and educate myself.”

He added: “What this document should represent is our good-faith effort of trying to determine where things are and obviously this technology will be changing rapidly in the next five years, so I expect this document here to be changing rapidly as things develop on the legal side as well as the technical side.”

Lekan said he was concerned with putting in unnecessary restrictions. “If we’re restricted to just acquiring evidence through the basis of court order and search warrant, then this will be incredibly time-intensive because I feel there is going to be the potential for many items of evidence to be carved out.”

He pointed out that as long as evidence falls under the purview of the search and seizure requirements, then that evidence can become available to police without a warrant or court order. In addition, he said, there is no expectation of privacy in a public place.

Replying to another question from Thomas, Wilkinson said that the nodes have room to record up to 28 days, and after that, the data will be lost. “It will just be overwritten every 28 days and keep going like that, until such time we need it, we get a warrant or a robbery is captured on camera and we grab it.”

Deputy Mayor Gary Knight expressed concern that public records requests might lead to the invasion of someone’s privacy. “A picture can have a lot of elements and maybe some collateral information,” he said, such as a person in a yard or seen through a window.

“Unless it’s actually pulled down as part of a case, we would not have access to the information. We don’t own it and it’s not our information until we actually pull it down. And when we do pull it down, then it will be handled just like every other piece of evidence within YPD or YFD,” Wilkinson said.

Lekan added that when video comes into their possession, it will then be subject to the rules of evidence procedure and public records requests. “Then we will ensure that it meets the public records law and redact what is allowed to be redacted,” he said, noting that faces of minors, for example, might be blurred or people not part of the investigation might be blacked out.

Even now, Lekan said, if police get a public records request for video evidence, it’s viewed to “make sure there’s not something there that can invade privacy.”

This task will fall to video analysts. Even without the “smart city” nodes, the police department will be dealing with more video evidence next year when it uses a grant to buy body cameras for officers. When the system is fully up, the department will need six video analysts and a supervisor to process video evidence.

Another issue that the city has to decide is whether to allow real-time video surveillance to be recorded. “When streaming it live, it will not be recorded. But if taking action off of that information, my guess is that we will want to record it in order to recreate the incident,” Wilkinson said.

Thomas also asked whether the council will have the final say when the oversight and review committees recommend changes. Wilkinson replied that yes, just like the Planning and Zoning Commission in the majority makes recommendations, the council is free to say yes or no.

DRAFT RESOLUTION

The draft resolution notes that the city wants to ensure that the information and data collected from the nodes is handled in a proper and legal manner, “conforming to citizens’ constitutional rights.”

It proposes two committees, one an external committee and the other an internal committee. The Citizen Oversight Committee would consist of the mayor or his designee and four citizens appointed by the council who would serve as volunteers. They would provide the council with policy change recommendations as issues arise. Members would meet at least twice a year or as needed with the purpose of reviewing the access of city information and data collected by the nodes.

The Review Committee would be put together by the city administrator to provide operations oversight and internal policies and procedures for all access and retrieval of data collected by the nodes. It will meet on quarterly basis or as needed to review urgent requests.

Requests for use and release of the information not already authorized by policy will be turned over to the review committee for consideration and approval. For example, if an agency wants to access to real-time traffic counts and monitoring to help in traffic control and changes to traffic light timing, the request will be turned over to the review committee for consideration and approval.

In all cases, the city will adhere to rules regarding warrant and search-andseizure will be adhered to protect citizens’ Fourth Amendment rights.

The draft resolution gives the police department access to the data after an event in cases involving individuals accused of committing a felony or misdemeanor. Random use or searches and viewing of private property would not be allowed. Real-time surveillance will not be conducted without warrants into areas where a warrant is required.

All information that is retrieved will be handled in the same way as other police evidence.

It also allows the fire and police departments to access the data after an event for use in a civil or criminal investigation of a traffic accident. Both public safety agencies may use the realtime information for community events and public safety incidents. Nodes will not be used for routine intersection and speed enforcement monitoring.

Only the city will be allowed direct access to the data, whether its live or recorded, and until accessed by the city, such data will not be considered to be in the possession or control of the city and therefore would not subject to public records requests.