By Cory Briggs
Anyone running a multi-billion-dollar corporation rightly expects its lawyers to read the draft contracts they’re given and point out problematic language so it can be changed, rejected, or at least accepted with eyes wide open.
But in the city of San Diego, the Mayor and City Council cannot count on that support from City Attorney Mara Elliott. Because she failed to do her job on yet another big-ticket transaction, there’s a good chance that years of data about you and your family have now been collected — and almost certainly sold off — by Wall Street.
Over the last couple years, you’ve probably noticed new streetlights going up in your neighborhood. In early 2017, the Mayor and City Council approved a $30 million contract for what they were told were energy-efficient lighting systems from a subsidiary of General Electric to retrofit electricity-guzzling streetlights across the city. Dubbed the “Intelligent Cities Lighting Project” and deploying roughly 14,000 “smart streetlights,” the proposal promised taxpayers $2.4 million in annual energy savings.
As Voice of San Diego reported earlier this year, nearly 3,000 of the new streetlights are equipped with “intelligent nodes” — what turned out to be cameras and other surveillance devices — used by police to monitor streets, sidewalks, and other public places. If you have one of these nodes close to where you live, anyone analyzing the data can determine things like what time you leave for work, what time you get home, and the route you take, whether your kids walk to school alone or with an adult, who visits your home, how often you get UPS or Amazon deliveries, and so on.
The equipment’s surveillance capabilities were never mentioned at the City Council’s hearing on the contract. Surveillance came as a total surprise to residents where the equipment has been installed, and they are understandably worried about a lack of police oversight and the potential for abuse of the surveillance technology. Three members of the council have joined the growing chorus of concern and are now calling for a halt to further streetlight installations.
Despite ample opportunity to do so, Elliott never told the Mayor or City Council about the equipment’s surveillance capabilities or the need for rules to prevent abuse, even though that would have been obvious to any competent lawyer reading GE’s contract. One part states: “GE’s Intelligent Node, connected to [streetlight] fixtures, can see, hear and feel, providing a connected hub of data collection for endless applications.”
Another states: “The core feature of this platform is the ability to collect data from a ubiquitous network of sensors embedded in the intelligent nodes.” The contract even brags that the data “provide valuable insights for city officials and local businesses to enhance their awareness of the environments.”
Oblivious to these red flags, Elliott repeatedly blessed the contract without comment. The materials given to the City Council before it voted on the contract included a report listing “City Attorney” among the officials who had already approved it. When the Council voted on the contract, Elliott never mentioned surveillance or data-gathering. And now, the executed contract’s signature page prominently displays her office’s “approved” stamp.
Elliott’s failure to point out the “Big Brother” potential of the streetlights is bad enough, and any lawyer in private practice who didn’t call the client’s attention to the problem would be fired on the spot. However, the consequences of Elliott’s malpractice don’t end there.
What news outlets have not yet reported is that the contract gives GE the right to use and share every bit of data passing through the surveillance equipment—forever. In other words, the police aren’t the only ones who have your data. So do Wall Street and Big Tech.
Under the contract, there are two types of data — “source data” and “processed data” — which are pretty much what they sound like. “Source data” represent the audio, visual, and other input data captured by the surveillance equipment. Processed data” represent the output from the devices that gather, analyze, and make sense of the input data.
The contract makes it crystal clear that “GE owns all right, title and interest in the processed data.” And even though the city owns the source data, the contract gives GE “a nonexclusive, perpetual, irrevocable, sublicenseable right and license to collect, use, reproduce, make available, aggregate, modify, display, perform, store (digitally or otherwise), transmit, make derivative works of and otherwise process the source data, in each case as permitted by applicable law.”
Because there are no legal restrictions on data gathered in public places, the Elliott-approved contract lets GE do whatever it wants with all data the surveillance equipment collects about you and your family — even if the contract is terminated early. GE forever controls whatever information is collected. This is the government version of Facebook selling your personal social-media data to Cambridge Analytica.
I am confident that the Mayor and City Council were unaware that GE’s contract contained a personal-privacy land mine for San Diegans and a corporate-profit gold mine for GE. Most of us would like to think our policy-makers read and understand every document put in front of them, but that’s unrealistic in the case of contracts with Wall Street behemoths. It’s the City Attorney’s job to carefully analyze such contracts and explain them in full before they are signed.
Unfortunately, Elliott failed to do her job on the GE contract. She has created yet another mess at city hall — one that could have easily been avoided and at a minimum should have been brought to the public’s and the policy-makers’ attention up front. This one will cost us dearly, in both money and our privacy.
Cory Briggs is a public-interest attorney, taxpayer advocate, and candidate for San Diego City Attorney.
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