Model Ordinance to Protect First Amendment Rights and Online Privacy

(A .PDF copy of the current full proposed ordinance, including a suggested “whereas” preamble, is embedded at the end of this page.)

rental-ordinance-292x300[jump to: I. Definitions — II. Limits on Undercover Infiltration and Political Profiling — III. Protections for Public Demonstrations — IV. Safeguarding Online Privacy — V. Surveillance and First Amendment Protected Activities — VI. Protections on Personal Information — VII. Civil Action and Injunctive Relief — VIII. Severability ]

BE IT RESOLVED that the city of [city] passes this resolution in order to ensure the protections of the First Amendment, [relevant state and local provisions], and to ensure online privacy.

I. Definitions

A. “Observation” or “monitoring” means surveillance, monitoring, or data collection facilitated by human intelligence, undisclosed participation by law enforcement agents or informants, warrantless wiretaps, remote or live imaging, data recorded from cellular telephones, internet, and other telecommunications devices, or other routine or spontaneous investigative activities.

B. “Data Centers” means any facilities accepting public funds to facilitate the collection, dissemination, or analysis of intelligence data concerning non-criminal behavior collected through observation by federal, state, or local law enforcement agencies.

C. “Non-Criminal Intelligence Information” means information about activities that are not criminal in nature, collected outside the context of an investigation of a criminal act that has occurred.

D. “Local Law Enforcement Agencies” include [ ].

II. Limits on Undercover Infiltration and Political Profiling

A. Local law enforcement authorities shall not engage in undercover infiltration, or undisclosed participation of any kind, in groups or organizations pursuing First Amendment-protected (speech, political, or religious) activity, absent probable cause that a criminal offense has been or may be committed.

B. Any investigation involving religious institutions or political organizations shall be pursued through the most minimally invasive methods available, and shall require active and recurring internal oversight.

C. Local law enforcement authorities shall not select persons, organizations, associations, or institutions for any investigatory activity, to any extent, on the basis of their First Amendment-protected (speech, political, or religious) activities.

D. Local authorities shall not collect, disseminate, or maintain Non-Criminal Intelligence Information about the political, religious, or social views, associations, or activities of any person or any group, association, corporation, business, partnership, or other organization unless such information relates to criminal activity and there is reasonable suspicion to believe that the person may be involved.

III. Protections for Public Demonstrations

A. Law enforcement activities undertaken in the context of political demonstrations, or other activities protected by the First Amendment, shall be subject to the following limitations:

  1. Crowd management: Police shall approach non-violent protests from a crowd management, not a crowd control, perspective and practice de-escalation techniques as much as possible.
  2. Free Speech zones: Persons and groups have a right to organize and participate in peaceful First Amendment protected activity on the streets, sidewalks, and other public ways, and in the parks of [the City of ] , and to engage in First Amendment protected activity near the object of their protest so they may be seen and heard, subject to reasonable restrictions designed to protect public safety, persons, and property, and to accommodate the interest of persons not participating in the assemblies to use the streets, sidewalks, and other public ways to travel to their intended destinations, and use the parks for recreational purposes. Notice and plan approval process for First Amendment protected activity may only be established to avoid situations where more than one group seeks to use the same space at the same time and to provide [local law enforcement agencies] the ability to provide appropriate police protection, traffic control, and other support for participants and other persons and may not discriminate on anticipated views to be expressed or prefer non-First Amendment activities over First Amendment activities.  However, it shall not be an offense to assemble or parade on a [the City of ] street, sidewalk, or other public way, or in a [the City of ] park, without having provided notice or obtained an approved assembly plan. First Amendment protected activity that will take place on public sidewalks and crosswalks and will not prevent other pedestrians from using the sidewalks and crosswalks; or have fewer than 50 anticipated participants; or  is for the purpose of an immediate and spontaneous expression of views in response to a public event shall be exempt from any notice and approval process.
  3. Mass arrests: Arrests of persons engaged in First Amendment protected activity must rely on articulable facts supporting probable cause to believe that each person subjected to arrest committed a criminal offense, beyond their presence in a particular location at a particular time. Arrests to pre-empt criminal activity are not authorized. Any person arrested for failure to obey a time, place, or manner restriction must be allowed an opportunity to depart from the area.
  4. Police checkpoints: No screening checkpoint shall subject any person to a search absent reasonable suspicion of criminal activity.
  5. Conditions of confinement during mass arrests: Persons subjected to arrest for participation in First Amendment protected activity shall not be subjected to shackling absent a specific threat of violence, shall be allowed access to counsel within six hours, and shall be given a copy of any incident report relating to their arrest to use for exculpatory purposes.
  6. Use of force: No non-lethal weapons shall be used until after an act of proportionate violence is committed, nor shall undercover law enforcement agents commit the act serving as a predicate for the deployment of nonlethal weapons, nor in any circumstances shall rubber bullets, bean bags, or wooden dowels be aimed at areas above the thighs.
  7. Crowd control technology: Any procurement by law enforcement authorities of equipment for crowd control purposes (including but not limited to tasers, tear gas, pepper spray, and Long Range Audio Devices (LRADs)) shall require prior notice to the public, a meaningful opportunity to comment, and the affirmative approval of the City Council.

IV. Safeguarding Online Privacy

A. Social media and law enforcement. [Local law enforcement authorities]shall not access information in an person’s cellular phone, computer, e-mail, social media account, or any personal electronic device or account unless supported by a judicial warrant based on probable cause and specific to the device or account unless a judicially recognized exception to the Fourth Amendment’s warrant requirement exists. Any evidence obtained without a warrant based on probable cause is not admissible in any criminal proceeding, civil proceeding, administrative proceeding, arbitration proceeding, or other adjudicatory proceeding nor shall it be used to establish reasonable suspicion or probable cause to believe that an offense has been committed unless a judicially recognized exception to the Fourth Amendment’s warrant requirement exists.

B. Social media and public employment. Employment with [the City of ] shall not be conditioned on the applicant or employee providing the password to their personal e-mail or social media accounts or any information in personal e-mail or social media accounts not available to the public. Not available to the public includes, but is not limited to social media accounts that are private or that may be viewed only by persons approved by the applicant or employee or information on an otherwise public social media account that is set as private or accessible only to persons approved by the applicant or employee.

V. Surveillance and First Amendment Protected Activities

A. Face Recognition Technology – [Local law enforcement authorities] shall not use face recognition technology to create a record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual for whom the record is created or unless pertinent to and within the scope of an authorized law enforcement activity where there is reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in criminal activity.

B. Surveillance technologies – [Local law enforcement authorities] shall not use aerial surveillance, police body-worn cameras, cell-site simulators, or license plate readers to create a record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual for whom the record is created or unless pertinent to and within the scope of an authorized law enforcement activity where there is reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in criminal activity.

VI. Protections on Personal Information

  1. [Local law enforcement authorities] shall not create any records describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual for whom the record is created or unless pertinent to and within the scope of an authorized law enforcement activity where there is reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in criminal activity.
  2. [Local law enforcement authorities] shall neither share with nor receive from other local law enforcement agencies or other local government bodies any records describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual for whom the record is created or unless pertinent to and within the scope of an authorized law enforcement activity where there is reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in criminal activity.
  3. Local law enforcement agencies shall not supply Intelligence Information to federal officials absent reasonable suspicion that a criminal offense has been or may be committed. Incident reports concerning allegedly suspicious activities shall not be reported to databases directly or indirectly accessible by federal officials absent reasonable suspicion that a criminal violation has been or may be committed.
  4. Intelligence Information shall not be disseminated to military or private sector organizations. Intelligence related to a criminal investigation that has been collected by local authorities shall be disseminated only to law enforcement agencies; local authorities shall not include military or private sector actors, nor Data Centers (see I.B.) through which military or private sector actors could gain access directly or indirectly to such data.
  5. Local law enforcement agencies shall not participate in inter-agency bodies that disseminate non-criminal intelligence information unless those bodies comply with 28 C.F.R. Part 23 and its requirements regarding information receipt, maintenance, security, and dissemination.

VII. Civil Action and Injunctive Relief

A. Any person subjected to law enforcement activity exceeding the limits imposed by this Ordinance may file in a court of competent jurisdiction a civil action for declaratory or injunctive relief against either

  1. the local law enforcement agency employing the individual agent whose conduct constituted a violation,
  2. the individual agent(s) responsible for the injury, or both.

B. Attorney’s fees

  1. A litigant who successfully brings a civil action for declaratory or injunctive relief under this act shall be awarded attorney’s fees.

VIII. Severability

A. The provisions of this Ordinance shall be severable. If any phrase, clause, sentence, or provision of this Ordinance is declared by a court of competent jurisdiction to violate the Constitution of the United States or the Constitution of the State of [State], or if its applicability to any agency, person or circumstance is held invalid, the validity of the remainder of the Ordinance and its applicability to any other agency, person, or circumstances shall not be affected.

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