CHD Scores Win in ‘Smart City’ Lawsuit as Court Orders Los Angeles to Turn Over Documents.

Children’s Health Defense (CHD) sued the City of Los Angeles to obtain records CHD said are essential to protecting the rights of residents, who don’t know what forms of surveillance they and their children are being subjected to and as a result, can’t exercise their legal right to opt out of being surveilled.

A California judge this week ordered the City of Los Angeles to release documents related to its smart city initiatives to Children’s Health Defense (CHD), which requested the documents under the California Public Records Act.

Superior Court Judge Mitchell Beckloff said the city must turn over missing email attachments, produce supplemental documents, conduct a new search relevant to privacy laws and contracts, and deliver other documents the city withheld last year by claiming privilege when it only partially responded to CHD’s request.

In his order, Judge Beckloff cautioned the city that “the Petitioners’ interest in the requested records is substantial” and that interest — namely the city’s Digital Code of Ethics and “the right of a member of the public to opt out of the collection and sharing of personal data” — must be considered when the city invokes deliberative process privilege.

“CHD is excited to be at the forefront of fighting for children’s rights in this new era of digitalization, smart cities and wireless technology,” Miriam Eckenfels-Garcia, director of CHD’s Electromagnetic Radiation (EMR) and Wireless program, told The Defender.

“As we assess and address new threats that come with this new age, we are thrilled that the court recognized residents’ rights to navigate the city without digital ID,” she added. “We are determined to fight against the threats to privacy and bodily autonomy that come with the uncontrolled rollout of wireless technology.”

HD and several LA residents filed the lawsuit on July 24, 2023, in Los Angeles County Superior Court. The suit alleges that key departments in city government violated the California Public Records Act by failing to promptly respond to the plaintiffs’ request to produce records from 2019-2023 of communications, programs, committees and technologies related to smart city planning.

Most of the city’s 20 departments involved in smart city planning provided the documents CHD requested when it began investigating smart city projects in April 2023.

However, the Information Technology Agency, Bureau of Street Lighting, Los Angeles World Airports, Bureau of Street Services, Bureau of Engineering and the Los Angeles Police Department, which likely have the most sensitive information about the smart city rollout, either did not respond or did not respond adequately to the request, lawyers for CHD argued last week before the judge.

“The legal issue arose because the city withheld thousands of smart city documents claiming ‘deliberative process privilege,’” Greg Glaser, one of the attorneys representing CHD told The Defender.

“That means the city claimed the records are confidential because disclosing them would hinder future candid policy deliberation by city officials,” Glaser said. “So the court weighed the plaintiffs’ substantial privacy interests against the city’s lesser interests in confidentiality. Plaintiffs won, and the court ordered limited redaction and release of the records.”

CHD argued that accessing these records was essential to protecting the rights of residents, who don’t know what forms of surveillance they and their children are being subjected to and therefore can’t exercise their legal right to opt out of being surveilled.

That leaves residents in “a Catch-22: petitioners are lawfully permitted to follow the Attorney General’s guidance to opt-out of corporate surveillance … but cannot identify the surveillance in order to opt-out,” CHD said in its brief filed March 1.

Information about surveillance is so obscured, CHD found in its analysis of the documents released so far that “even City employees cannot identify surveillance that is already taking place by the City and the City’s corporate partners,” like Amazon and Oracle.

California and federal law both protect the right to know what personal information is collected, along with the right to opt in and opt out of information-sharing and sale, according to the brief.

In its Digital Code of Ethics, the City of Los Angeles recognizes residents’ right to navigate the city without digital ID and without having locational and other data tracked and stored.

However, publicly available information and the records obtained by CHD so far indicate the city does collect and store such data, in violation of the code. The plaintiffs want to make that data collection transparent so they and others can exercise their right to privacy and opt out if they so choose.

The court agreed.

Ray Flores, one of the attorneys representing CHD, celebrated the decision as a key step in protecting the privacy rights of all Angelinos. “This is the first smart-city surveillance court battle,” he said. “One of many to come. We are game.”

City acknowledged it ‘dropped the ball’ but argued requests were too broad

In its March 15 reply brief to the court, submitted before last week’s hearing, the city acknowledged it had “dropped the ball on a few occasions in processing requests by Petitioner.”

However, the city argued the petitioners’ requests were too broad.

The city also disagreed with CHD’s arguments that city residents, particularly youth, are not able to “opt out of ‘corporate surveillance.’”

The city acknowledges “there is a significant public interest in understanding how City intends to implement the roll out of its smart technology strategy, as its implementation will impact public safety, transportation, energy, and other community infrastructure.”

The city didn’t deny the issues raised about privacy rights and the right to opt out of surveillance. Instead, it said those issues were “perhaps worthy of investigation in some other lawsuit,” but said it was outside of the scope of this particular request, which the city argued is more narrowly about the city’s compliance with the California Public Records Act.

To that end, the city said it had produced tens of thousands of responsive records and withheld only a “small fraction” of them and argued the different forms of privilege it claimed to withhold the documents was justified.

Because the court found almost entirely for the plaintiffs, Glaser said city officials will need to produce thousands of more documents over the next four months.

“The City Attorney’s Office will be busy this spring redacting thousands of withheld smart city emails, contracts and accounting records, and then producing them to CHD,” he said.

‘That’s not smart, that’s surveillance profiteering’

In 2020, Los Angeles launched its SmartLA 2028 initiative, promising to solve a host of “urban challenges” — from racial injustice to natural disasters to climate change — using smart technologies to create “a highly digital and connected city” by 2028.

2028 is the target year because the city will host the 2028 Summer Olympics and plans to provide tourists with a “digital Olympic experience,” according to the SmartLA 2028 strategy document.

The document outlines in broad strokes a vision for the city that Olympics consumers will visit — a smart city built for Los Angeles to compete in the digital economy.

The plan includes a panoply of digital infrastructure, including a surveillance camera network that can capture individual face and voice signatures and can be used for law enforcement or marketed to third parties.

Since launching the initiative and its blueprint for a smart city by 2028, departments across the city have been implementing different smart technologies, often in partnership with private corporations.

For example, the private security infrastructure firm Verkada announced it is using the city’s Information Technology Agency’s cloud services to offer real-time surveillance technology integrated across the city.

In another example, information obtained through the petitioners’ California Public Records Request revealed the city may open the data it collects to third-party applications, allow for private 5G and other telecom infrastructure to be installed on city property, and monetize data collected through the city’s smart street lamps.

The Bureau of Street Lighting already issued a directive that allows telecom companies to use the light poles as mounting sites for their private infrastructure. It is also testing the light poles as sites for surveillance cameras, surveillance audio detection, small cell 5G and digital banners that provide real-time public information.

“That’s not smart, that’s surveillance profiteering,” Glaser said. “The cameras and microphones have a radius that can pick up conversations inside buildings, and artificial intelligence on the backend can process data in real time. These technologies are working together to promote the internet of things and voluntary digital ID before the LA Olympic Games in 2028.”

In another controversial move, the Los Angeles Police Department last year introduced its first robot police dog, made by Boston Dynamics.

In all of these cases, critics raise concerns about transparency, privacy and mass surveillance, demanding answers about how authorities collect, retain and share surveillance data.

While companies like Verkada and city officials say they are committed to protecting the privacy of Los Angeles residents, Glaser and Flores said the city has not been forthcoming when it comes to questions about what data are collected and how.

“Our case focused on gaining access to thousands of these withheld city records regarding the smart city rollout,” Glaser said.

As new documents are reviewed, Glaser said, CHD’s legal team will provide updates on key discoveries.

https://childrenshealthdefense.org/defender/chd-smart-city-lawsuit-court-orders-los-angeles-documents/