By: David Maass, EFF.org |
Police in California have your data literally at their fingertips.
They can sit at a computer terminal or in their squad car and check your DMV records, your criminal records, your parking citations, any restraining orders you’ve filed or have been filed against you. They can search other state databases and even tap into the FBI’s trove. If you’ve got a snowmobile, they can look up that registration too. Much of this personal data they can access through a smartphone app.
Is there a name for this information network? Yes, it’s really boring: the California Law Enforcement Telecommunications System (CLETS). Most people pronounce it “Clets.”
Do police abuse their access to CLETS? You betcha. For example, they’ve used it to stalk their ex-partners, gain advantage in custody proceedings, and screen potential online dates. In one of the worst incidents, an officer allegedly attempted to leak records on witnesses to family of a convicted murderer. According to the latest data, 2016 was a record-breaking year: California hit a statewide, all-time high for police discipline involving CLETS; meanwhile the Oakland Police Department broke an all-time record for individual law enforcement agencies.
Is anybody doing anything about CLETS misuse? Yes and no. Certainly EFF has been making noise about privacy violations involving CLETS. The government, not so much.
For years, we’ve pushed for better data to track when California cops misuse CLETS data. We have filed request after request for misuse data under the California Public Records Act. We’ve sent letters, met with staff, assisted journalists, and spoken up during public meetings to demand state officials overseeing these databases take some sort of action. This is the third report we’ve published on misuse data.
Yet state officials have made zero progress in addressing widespread database misconduct. No hearings on misuse have been held, no disciplinary actions have been taken, and the horror stories continue to mount.
Who are these state officials? Get ready for another boring acronym: the CLETS Advisory Committee (CAC). Yes, CAC is an acronym containing an acronym. Most people pronounce it “Cack.”
CAC was created by the California legislature decades ago to oversee CLETS as part policy body, part disciplinary board. It comes under the California Department of Justice and works hand in hand with CADOJ’s Criminal Justice Information Services department. CAC has 11 members, with more than half being appointed by special interest groups that lobby for law enforcement and municipalities. That means CAC is controlled by groups that are predisposed to support—not punish—their members. As a result, the body has gone out of its way to pass policies that police ask for, while simultaneously taking a largely hands-off approach to discipline.
It used to be that CADOJ and CAC investigated violations, but several years back they handed off that responsibility to the individual agencies that subscribe to CLETS. Nowadays each of those agencies is required to file disclosures about each investigation they conduct, including an annual summary for CAC to review. Then CAC decides whether further administrative action is necessary
Or at least that’s how it’s supposed to work. CAC has not even looked at the misuse data in years, and consequently, they’ve taken no action whatsoever against anyone or any department—not even a “don’t do it again” warning letter.
What’s even worse is that they’ve been remarkably lax about whether agencies need to file anything about CLETS violations at all. This year some of the state’s largest law enforcement agencies failed to file the mandated paperwork. Meanwhile, agencies that do report often list investigations as “pending,” but never follow-up with the eventual outcome as required.
So, when EFF obtained the latest round of misuse data, we knew it would be bad. But we also knew it would be incomplete—the tip of a very large, blue iceberg.
What the Misuse Data Told Us
Police agencies disclosed that a total of 159 misuse investigations were launched in 2016. Of those, 117 investigations found that police had in fact abused CLETS. Another 39 cases were listed as pending conclusion. That means there were only a small number of cases—potentially in single digits—where an investigation cleared the officer.
Let’s focus on those 117 cases of confirmed misuse. They represent a 14.5% increase over misuse in 2015, and a 50% increase over 2011.
In 27 cases, the misuse was so severe that the offending police officer either resigned or was terminated. Three cases resulted in a misdemeanor conviction, and three cases resulted in a felony conviction.
In 24 cases, no action was taken to discipline the offending officer at all. In 28 cases, the result was “counseling.” Another 21 mystery cases were listed as “other” action having been taken, leaving the public in the dark.
First, there was the Oakland Police Department, who for the first time since we’ve been collecting data, actually turned in their disclosures. That’s the good news.
The bad news is that they reported 17 cases of CLETS misuse—the highest number for any agency in at least seven years. These are likely related to the ongoing, expansive scandal in which at least one OPD officer is accused of providing CLETS records to a teenage sex worker whom he—and many other officers—allegedly sexually exploited.
The head of OPD’s internal affairs department filed the hard copy of the disclosure with CADOJ. However, when we called OPD’s public affairs division, a spokesperson challenged the numbers, staying that only 1 misuse case was found in 2016, while the remaining 16 are still pending. That’s still bad and possibly even worse, if it turns out OPD provided wildly inaccurate data to CADOJ.
The Yuba County Probation Department—a very small agency in central-northern California—also drew our attention. In 2015, they broke the record with 15 violations of CLETS policy, all of which resulted in only “counseling” for the officers who broke the rules. CADOJ ignored our request for a public hearing on this. Facing no action to deter further violations, Yuba reported another six cases of misuse in 2016—again with counseling as the only outcome.
What was missing from the data also jumped out at us. The Los Angeles Police Department for the seventh year in a row filed no misuse disclosures with the state. Typically, the San Diego County Sheriff’s Office conducts more investigations into CLETS misuse than any other agency. This time, they did not file anything at all.
Oversight on Hold
Will this be the year CADOJ and the CLETS Advisory Committee finally steps up to protect our privacy? Probably not. In December, CADOJ failed to produce historical misuse statistics as requested by CAC, so the committee agreed to postpone discussion until its next meeting. However, since CAC reduced its meetings to the statutory minimum of two per year, it won’t meet again until this summer. The year will be half over and, if the trend continues, many, many more people will have had their privacy invaded by misbehaving police.
One thing you can count on: EFF will continue to pressure these state officials, and if we can’t get them to do their jobs, then it’s time for the legislature to find someone else who can.
A Note on CLETS and the California Values Act
EFF has fielded a lot of questions recently about CLETS as legislators consider S.B. 54, the California Values Act. The bill, among other measures to protect immigrants, would limit the federal government’s access to California’s law enforcement databases for the purposes of immigration enforcement. CLETS would clearly fall into that category.
During the bill-making process, S.B. 54 was amended to allow immigration officials to access criminal history information via CLETS. EFF is very concerned that this CLETS provision would create a backdoor to the very data the bill was designed to protect. While S.B. 54 may still protect some Californians’ data accessible through CLETS from immigration officials, implementation of those protections would require an oversight body with the motivation to enforce the law.
That oversight body would be—you guessed it—the same CLETS Advisory Committee that refuses to take any action on database abuse by police officers. In fact, several of the organizations that have seats on CAC—including the California Peace Officers’ Association and the California State Sheriffs’ Association—are actively lobbying against S.B. 54.
EFF supports S.B. 54 and believes it will do much to protect the data of California residents. However, we hope that as lawmakers build a firewall against data misuse by the feds, they take a close look at the officials who would be watching the CLETS gateway.