Court Says Location Of FBI's Utility Pole-Piggybacking Surveillance Cameras Can Remain Secret

from the OPERATION-REMORA dept

Last June, the FBI engaged in a public records lawsuit on its own behalf, seeking to prevent the city of Seattle from disclosing the locations of cameras the agency had mounted on city-owned utility poles. At the center of the case (for a short while) was privacy activist Phil Mocek, whose public records request for this information had spurred the FBI into action.

In its arguments against the city's disclosure of this information, the government posited the novel theory that revealing the cameras' locations would violate the privacy of those the FBI was actively surveilling.

Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged.

It made several related arguments in hopes of keeping this info from being revealed, including a modified "mosaic" theory and that, while all surveillance cameras are nominally created equal, the FBI's were more equal than others.

The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s).

The FBI presumably doesn't use its cameras to troll for criminal activity, at least according to its courtroom assertions. The City of Seattle, however, didn't feel particularly compelled to protect the location info of the FBI's parasitic contributions to its utility poles. Phil Mocek was removed from the FBI's suit, leaving the city to defend its proposed disclosure against the FBI's claims of a future full of unsurveilled criminal activity.

The FBI's lawsuit has now wrapped up with the agency coming out on top. In a short order, federal judge Richard Jones finds the location of the FBI's publicly-mounted cameras to be deserving of ongoing secrecy. From the court's order [PDF]:

The United States contends, and the Court is persuaded, that the requested information is (1) protected by the federal law enforcement privilege; (2) federal property, subject to the FBI’s right to control and prohibit the disclosure of the information by the City, absent the express authorization of the FBI; and (3) expressly protected from disclosure by the PRA. The Court is further persuaded that the disclosure of the requested information by the City will cause irreparable harm to important federal interests, namely, the ability to carry out effective investigations of criminal violations and national security threats.

The order includes an injunction that prevents the city from releasing this information for the rest of forever, no matter the underlying circumstances.

The City of Seattle, including any officers, agents and employees thereof, are hereby permanently enjoined from disclosing, in response to any request under the Washington PRA, or otherwise, the… information that it has received from the FBI, absent the express authorization to do so by the FBI…

This includes information that seemingly would have no further law enforcement use, like those used in closed or fruitless investigations. Unless some of these cameras are located in sparsely-populated areas of the city, it's highly unlikely anyone could work their way backward from the camera's location to determine the identity of the surveillance targets. But the court sees it the way the FBI sees it: that anything it declares to be protected by "law enforcement privilege" should remain that way indefinitely.

Filed Under: fbi, phil mocek, public records, seattle, secrecy, surveillance, utility poles

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  1. icon
    Phil Mocek (profile), 26 Jan 2017 @ 2:31pm

    Re: could SCL release info on which poles do not have FBI piggybacking?

    At 1h25m05s in that same video:

    Phil Mocek (Seattle Privacy Coalition): I'm curious if we're-- Is the idea of regulating who can crawl up onto a City-Light-owned pole and wire into it off the table? It seems odd to me that City Light would allow someone from an outside agency to go up there and hook into their--

    Kshama Sawant (City Council): I was wondering the same thing. What if I set up a camera? What would City Light do?

    Deborah Juarez (City Council): I'll help you. (laughter)

    Mocek: It would seem to present a danger to pole workers, also.

    Jim Baggs (City Light): Our-- Again, this analysis was done some time ago, but the primary concern from City Light's perspective is the safety concern. You're in an area where it's dangerous and only qualified workers should be in that area doing any kind of work on electrical facilities. My understanding is--this predates me, but if you go back several years to when City Light first became aware or somehow got involved in allowing federal agencies--FBI, ATF, whoever--to install these cameras, perhaps on City Light poles, that there was an evaluation of the qualified nature of the people and the workers that would be doing these installations, and that at that time, the utility was convinced to its satisfaction that anyone who would be doing this work would be completely qualified in doing the work. [...] And we were satisfied at the time that he safety considerations would be met, and have since allowed the practice until, as I said, more recently here a year or two ago, when we made the determination that even involvement really at all of either keeping records or tracking or giving permission was not really utility function, it was really more of a law enforcement function and to the degree to which it was either made sense or it was okay or not okay was something that we wanted to back away from.

    David Robinson (Seattle Privacy Coalition): Does that mean that the ATF or whoever had their own bucket trucks and their own linemen, and their own fake Seattle City Light decals on the trucks?

    Baggs: I don't believe they had any fake City Light decals, but yes, they have their own equipment and people.

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