Brian Hofer Thwarts Authoritarian Power
The surveillance policy expert protects citizens from unlawful electronic search and seizure he has successfully convinced sanctuary cities and counties to ban contracts with businesses assisting ICE.
Brian Hofer has been working since 2014 to get Bay Area public agencies to adopt surveillance policies.
Photo by Lance Yamamoto
The proverbial lights came on for attorney Brian Hofer when he read that public safety agencies in Oakland were designing a surveillance center to monitor the public using cameras and video and artificial intelligence tools like license plate trackers and facial recognition software.
Dark visions of authoritarian powers constantly tracking people with spytech and squashing dissent flooded Hofer’s imagination. And for the first time in his life, Hofer threw himself into political activism, ultimately helping to derail the so-called Domain Awareness Center project.
Since that day in early 2014, Hofer has spent up to 100 unpaid hours a month successfully pushing numerous agencies across the Bay Area to adopt policies he hopes will allow for the use of powerful new crime-fighting technologies without sacrificing civil liberties in the process. “I’m compelled now so that I finally got off the sidelines,” said Hofer, who is now chairman of both the Oakland Privacy advocacy group and the city of Oakland’s path-breaking Privacy Advisory Commission. “There’s just this switch in my brain that I can’t turn off.”
As a result of his dedication, Hofer has become widely regarded as an expert on surveillance policy, having written model legislation on the subject with invitations to speak coming from New York and Washington, D.C.
“A lot of what I do is just try to educate: Look at how powerful this technology is and all the harm you could be doing and let’s draft a policy around that so it doesn’t happen,” said Hofer, who at the age of 40 is unmarried and has just a pet dog “to keep alive.”
So far, Hofer has helped Santa Clara County and the cities of Berkeley and Davis become the first local agencies in the nation to mandate public disclosure of surveillance spending and rules. The Oakland City Council in May unanimously approved the nation’s toughest municipal surveillance disclosure law, and Hofer has been working with Alameda County, Palo Alto, and Bay Area Rapid Transit to develop similar laws.
“Oakland’s ordinance is the gold standard,” said Hofer, citing whistleblower protections and a provision prohibiting the city from entering into nondisclosure agreements that could keep surveillance activities secret.
Tessa D’Arcangelew of the American Civil Liberties Union of Northern California agreed. “It’s the strongest ordinance in the country,” she said.
These days, in addition to advocating for disclosure and use ordinances, Hofer and other members of the local “Deport ICE” coalition are ardently demanding that cities and counties with sanctuary policies adopt rules to bar contracting with businesses that provide services to U.S. Immigration and Customs Enforcement.
The sanctuary issue has taken on real urgency for Hofer given the hard-line attitude that “crazy” President Donald Trump has taken toward immigrants, particularly Muslims and those who crossed U.S. borders illegally, Hofer said.
“We’re watching those communities right now, in real time, right in front of us, get targeted and abused. Their liberty is getting taken away, and the question is: Are we going to do something about it?” said Hofer, recalling the rise of fascist Germany before World War II and the discriminatory policies toward Jews and other minorities that led to mass murder.
“I think we are watching the foundation for another holocaust-type event,” said Hofer, who maintains he is not a “conspiracy theorist” or a doomsayer by nature.
Hofer and allies are having an effect. The city of Richmond adopted a sanctuary contracting ban in May, and similar laws are under review in Alameda, Berkeley, and Oakland.
In February, following protests by Hofer and others, the Alameda City Council deferred consideration of a police department proposal to buy $500,000 of stationary license plate readers for their island’s bridges and tunnels largely because the recommended vendor, Vigilant Solutions of Livermore, is a subcontractor to a company that shares commercial, not law enforcement-related, license plate reader data with ICE. Contacted for comment, Vigilant, the nation’s largest provider of license plate reader services to law enforcement and commercial companies like automobile repossession firms as well as facial recognition and gunshot mapping technologies, issued a statement saying it does not independently give ICE any data from law enforcement agencies, which control access to their own data.
Alameda Police Chief Paul Rolleri, who plans to meet with Hofer this month, said he is not wedded to Vigilant, which had no contract with ICE until right before he went to the council with the fixed camera proposal. Alameda has had Vigilant cameras on squad cars for four years, and they played a key role in the arrest of a shooting suspect and numerous car thieves and locating a suicidal woman, Rolleri said.
“I still see it as valuable tool,” said Rolleri, who said he’s been impressed with the way Hofer has worked with local agencies to find workable policies.
The city of San Pablo in April renewed its contract with Vigilant, but after protests it required the company to stipulate in its license plate reader contract that it would pay liquidated damages if data collected in city boundaries were to be shared with ICE.
Vigilant has said repeatedly that it does not share data without permission from cities, which own their own data.
Hofer said his political sensibilities were significantly formed by his upbringing in the community of Weed in far Northern California in a rural and largely libertarian milieu where racism was prevalent but migrant labor on ranches was taken as a given.
While the rest of his family trended Republican, however, Hofer’s libertarianism veered leftward.
Hofer sees it as his civic duty to question authority and to protect the U.S. Constitution, notably the Fourth Amendment’s prohibition against unreasonable search and seizure.
His strident positions did not sit well with some members of his extended clan, making for “some very interesting Thanksgiving conversations” and “ruined dinners.”
“Sadly, I had family members attacking me on Facebook. It’s weird because they were military and they swear an oath to defend the Constitution,” Hofer said. “And here they are calling me a ‘traitor’ and a ‘terrorist’ because I think the Patriot Act was illegal, or I think what Edward Snowden did was appropriate.”
Hofer said he is not against surveillance technology in principle, but given its potential chilling effect on democratic debate, it should be used under strict guidelines.
“I don’t take a position that a piece of equipment is per se evil,” Hofer said. “It’s intent. How are you using it; what are you using it for?
“Do I have the right to walk around my own damn city without the police tracking me?” he asks rhetorically. “Why are you tracking me? You have no suspicion of wrongdoing, and yet you’re tracking my movement around town, and you’re recording it. Why? Who gave you that authority?”
Even as he poses such fundamental questions, Hofer said he has been able to work well with government officials, particularly in law enforcement, and the proposals he has backed have all been approved.
Joe DeVries, an assistant to the Oakland city administrator who serves as the city’s chief privacy officer, credited Hofer since 2014 with helping turn “chaos into a process that really met everyone’s needs. Brian was a critical partner in that.”
“Brian bridges the gap between the advocate community and law enforcement the city. He teaches both sides,” Devries said.
One person with whom Hofer does not have a good relationship, nevertheless, is Oakland Police Chief Anne Kirkpatrick, against whom Hofer filed a complaint last November accusing her of making untruthful statements regarding the city police department’s traffic control support for an ICE raid in West Oakland in August 2017. Kirkpatrick, who was sworn into office that February, has insisted publicly that she did nothing wrong.
“We got into a yelling match on the phone — the first and only time we have ever spoken,” Hofer said.
Might Hofer one day seek to be one of the chief’s bosses on the city council?
Hofer said he’s thought about it, but he thinks he’s having more impact as a surveillance policy advocate than he could as an elected council person, and he would likely do the work full time if he could.
“I think I’ll just stay in my lane. I’m good at it,” Hofer said. “I’m in my happy spot.”