Sup. Jane Kim has introduced legislation to the Board of Supervisors calling for a re-examination of the San Francisco Police Department's participation in some aspects of the Joint Terrorism Task Force, which was created by the Federal Bureau of Investigations to do domestic surveillance.
The proposed ordinance would prohibit the SFPD from working with the JTTF to collect intelligence on individuals in the absence of criminal wrongdoing, which has been a concern of civil libertarians since last year when a secret memo revealed that local officers were under FBI command and not bound by local and state restrictions on such surveillance (see "Spies in blue," 4/26/11).
Kim said the ordinance was necessary to ensure the "requirement of reasonable suspicion before we do any type of investigation of criminal activity. And we don't base it on ethnic identification or religious practice as some of the members of the community have been experiencing the last couple of years.
"Our office is sponsoring this because many members of the Arab, Asian and the Muslim community worship in the district and own many small businesses," she said.
Critics of the relationship between local and federal law enforcement agencies, facilitated through participation in the JTTF, have long raised concerns about racial profiling and unnecessary spying ordered at the federal level, and carried out by SFPD inspectors assigned full time to the task force.
Federal regulations governing FBI intelligence gathering are weaker than standards set by San Francisco and California's Constitution. In 1990, the San Francisco Police Commission established rules requiring that intelligence-gathering involving any First Amendment activity be based on reasonable suspicion of significant criminal activity. Those rules reflect the California Constitutional requirement of an "articulable criminal predicate" before law enforcement agencies engage in intelligence-gathering activity.
However, because the SFPD inspectors assigned to the JTTF work under the direction of the FBI, the local regulation and control of law enforcement is effectively limited in JTTF investigations.
"It's important that a clear prohibition against policing based on race, ethnicity, national origin, or religion applies to all of our officers, all of the time," said John Crew, police practices expert for the Northern California chapter of the American Civil Liberties Union. The ACLU is one of more than 30 civil rights and community organizations participating in the Coalition for Safe SF, which helped develop the proposed ordinance.
According to the coalition, current rules prevent the SFPD from barring its inspectors assigned to the JTTF from joining FBI agents in collecting intelligence on San Franciscans without any "particular factual predication."
"The purpose of this legislation is to restore local control, civilian oversight, and transparency over the SFPD's participation in FBI intelligence-gathering," stated attorney Nasrina Bargzie of the Asian Law Caucus, which is part of the coalition.
The coalition was a major participant in the San Francisco Human Rights Commission hearing in 2010 on the issue of baseless spying and racial profiling in JTTF investigations. The result was a comprehensive report, endorsed by the Board of Supervisors last spring.
But in 2011, the ACLU and Asian Law Caucus learned that key protections for civil liberties — including civilian oversight of intelligence activity and safeguards to limit intrusive tactics — were thrown out the window and replaced by a secret Memorandum of Understanding with federal law enforcement in 2007.