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Diego Alcala: Oral Histories of Surveillance

[The City of Bayamón] has invited research in the Internet of Things and has partnered with T-Mobile, just to see if they can produce different commercial uses for IoT technologies. I’m looking at it because there are no controls as to how government plays a role in this or how the private actor plays a role in this. We don’t have any legislative or statutory protections, when it comes to sharing information or collecting information. We do have privacy protection built in the event that a commercial private entity has a breach. If that occurs with your digital data, the corporation must notify the user. And that’s it. That’s the only responsibility.
—Diego Alcala

Our Data Bodies (ODB) is excited to present a series of oral histories from organizers, writers, and cultural workers whose work has been steeped in resisting discriminatory surveillance technology and racialized surveillance capitalism, and has illuminated strategies for abolition and abolitionist reform. This oral history features Diego Alcala, an attorney whose work focuses on human rights and discriminatory technology, based in Puerto Rico. The transcript, which has been slightly edited for clarity, follows below.

 

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Seeta Peña Gangadharan: We’re here today to do an oral history about what you’re learning and doing in Puerto Rico, and specifically around some of your discoveries, with respect to facial recognition. So, to get us started, love for you to just get my questions ready, just under, help us understand where you’re coming from, and tell us about the work that you do. 

 

Diego Alcala: I’m an attorney. I work in the federal courts. I represent people that do not have the money to hire an attorney appointed to represent people accused of federal crimes in the district of Puerto Rico. I also have a background in human rights, and I also have an interest in technology, how technology impacts human rights and civil rights. My interest is not limited to technology. I try to incorporate how the abolitionist movement can fit in with technology, along with how the abolitionist movement can also fit in with other disciplines, and I’m trying to get something going in Puerto Rico to organize around that concept. 

 

Seeta Peña Gangadharan: Can you say a little bit about the context in Puerto Rico. Just thinking about what you just mentioned, with respect to abolition and just the unique history.  

 

Diego Alcala: Sure. Just some background information Puerto Rico… it didn’t have its own government. It was ruled by a Spanish military. The United States declared war against Spain in late 19th century. The United States invaded Cuba, and it also invaded Puerto Rico and the Philippines. [In the end] Puerto Rico and Philippines were passed as bounty to the United States.  

 

…Puerto Rico is important because of its strategic location militarily …Puerto Rico was never planned or thought of as part of the United States during that invasion. It was seen as a territory since the beginning. And in 1898, when it happened [to fall] under military rule, all the way until first decade of the 1900s when it became a civilian post in Puerto Rico. The United States when it came in… it looked at the Puerto Rican judicial system legal structures and other institutions, and it determined that we are not ready because… we are inferior as a race. So, come through 1906, 1913, and the United States Supreme Court has this judicial decision… and what’s called unincorporated territories doctrine from the Insular Cases. It basically said that Puerto Rico is part of, but it is not in the United States. [The US had] given citizenship to Puerto Ricans, but [that] did not mean that you get the entire rights of the United States Constitution.  

 

Then we pass onto the 1910s, 20s, 30s—the Great Depression era. By that time, the Puerto Rico economy has transformed itself from an agrarian diverse mix of agriculture. …Pretty much there was a caste system to in Puerto Rico. So, they [the Puerto Rican nationalist movement] lost leverage when US multinational corporations came into Puerto Rico and took over the agricultural industry, making sugar, the primary export. [The] exploitation of the workforce led to a strong labour movement in the 20s and 30s, which coincided with the passing of laws to create the first police department in Puerto Rico. The purpose of that was to quell the protests and to disincentivize unions. It was important, especially post-World War II, to keep Puerto Rico, a non-Communist country. For that reason, Puerto Rico was allowed to create its own constitution, which at the end, had to be approved by the Congress. You look at the wording of the Constitution, [and] it states that in the spirit of a compact, the people of Puerto Rico and the US Congress enter into this constitution. [The constitution] was shown to the world as a big success… [Puerto Rico]—not as the United States state… not an independent nation but something… sui generis which is basically something that we just made up. And that was sold to the world and to Puerto Rico. We would get these two new best-of-both worlds: we get to keep our traditions, but we are also part of the United States.  

 

So, we have been dealing with imperialism, since the good old days.  There has been… a bunch of isms that we deal with when it comes to race. 

 

In the 40s and 50s in Puerto Rico, when the government went getting companies to come and take advantages of tax codes (so that corporations can come down for cheaper labor), we were sold on the idea that we were not white or Black. We were a mixture of Taino, Black Africans, and Europeans, creating this perfect race of Puerto Ricans. Therefore, conversations… about race were not instituted or encouraged. And [race] was actually something that was not present as a policy… [And that] was racist but very comparable to what Brazil went through in the 70s, in which the entire propaganda was, “We are Brazilians. We’re not necessarily Black or not white.” 

 

[T]his has it has made significant made an impression on many people. I’ll give you one statistic. Utah, in the year 2019 arrested or convicted and sent to prison a total of eleven African Americans. Eleven people were classified as Black. In Puerto Rico, that number was three. Because we are classified as Hispanics Latinos, and therefore, the entire race is washed out. This is a similar phenomenon in the states if you look at the arrest records in Florida, specifically the Orlando area where there’s a large Puerto Rican community. We are seen as Hispanics, but there’s no [one Hispanic population]. In Puerto Rico, there have been efforts recently [to change this]. For the first time in 2000, the census actually asked race. It has started to evolve and people are starting to at least recognize that there may be systematic issues with race, but don’t really talk about it too much. Puerto Rico has its own set of challenges. Right now we’re in a bankruptcy. And because we do not qualify under the federal bankruptcy court proceedings because, again, Puerto Rico was excluded from that by the United States Congress, we cannot go ahead and practice organized bankruptcy proceedings in federal court like other states can take advantage of. We are not a nation. So we do not qualify for restructuring of debt proceedings, or mechanisms under the IMF, or the World Bank.  We created our own bankruptcy proceeding, and it was ruled unconstitutional and tweeted by the United States Supreme Court.  

 

Then two or three days later, President Obama and the US Congress passed the Promesa Act, which instituted a financial oversight review board in Puerto Rico, which is an appointed seven-member group that would supervise all budgetary decisions of the government of Puerto Rico. So, [the US government] created an unelected legislature, with veto power over whatever action needed to be done when it comes to distributing the funds of Puerto Rico. The reason for that is that we are in bankruptcy, and we have to pay back billions of dollars in loans, most of which have not been audited. Many of them [have been] taken or are over what’s called the constitutional limits, which are by law, illegal. But because… these board members are appointed by the president, and… Puerto Ricans do not identify themselves as Democrat or Republican. It’s a matter of who you know and what you know, [which determines] who gets on the board.  

 

On top of that, we have to take into account our strategic position in the Caribbean when it comes to the bowling alley of hurricanes that come our way because of climate change. That’s when you see how much damage, there has been to the Puerto Rico ecosystem. We haven’t had a robust conversation as to what climate change can do to an island. Mostly you can see the impact of what type of economic policy has been put into place. One [hurricane] after another. You see, for example, in the 50s and 60s how strips of land were turned into hotels, like 20 feet away from beaches. Instead of protecting ourselves, we went all out. In 2017, we got hit by a hurricane Irma and Maria, which stalled the entire recovery plan. 

 

So because it’s basically an unelected group of people that just show up and tell us we can’t spend money here and there. Obviously, they’ve implemented severe austerity measures. In the past five years, we have closed or, at least, we have shut down over 450 schools. We’re in the process of shutting down more jails. Many, many workers rights that have been gained through collective bargaining agreements that has been stripped away. We are a step, just one more step to at-will hiring. 

 

So there’s there’s, there’s a lot of problems right from those laws that have been created, dealing with this bankruptcy.  

 

Then on top of that we were able to get an earthquake in January 2020. The significance of that said it hit the south, west portions of the island which is traditionally one of the ports, damaging severely, the infrastructure of that, that area of the community. Again, creating doubt as to our ability to sustain a home. And those plans—so that was restructured again, and they continue to be restructured. And obviously, like everyone else, we’re able to enjoy twenty-four-seven because of the coronavirus, which has an… economic impact. One hundred thousand people have been unemployed or employed because of this.  

 

It’s been an interesting development, which has provided opportunities for others to step in… to get rid of public corporations. It’s also implementing technology as a way to save. 

 

Seeta Peña Gangadharan: I would love to know just kind of how you came to discover [these issues]. What what was in your field of vision? 

 

Diego Alcala: I’m a federal defense attorney. So I get to defend people accused of federal crimes. Every single federal agency law enforcement agency works in Puerto Rico. Homeland Security works in Puerto Rico. Customs and Border Protection works in Puerto Rico. ATF. FBI. So their tools are being used here. And part of my job is to whatever they have against my client. I’ve been exposed to all these new technologies for the past five to six years. But it wasn’t until the realization of what’s happening structurally in Puerto Rico [that it clicked]. 

 

One event that is maybe a kind of the catalyst for my interest was in 2017… [with] one of the many protests that we’ve had in Puerto Rico against these austerity measures, against University of Puerto Rico. A group of students fighting those austerity measures went into a meeting of the Board of Regents. They transmit[ted] their request to the four Regents, asking them to reconsider the tuition fees, etc., live on Facebook, [which got transmitted] on different channels and media channels. Eventually… those students were arrested and charged with burglary and other felonies for interfering with the Board of Regents. So, basically, a political case was presented against them.  

 

There was a use a huge show of force. Whenever the court was called, helicopters were around the building. Whenever the case was around, you could see this entire police structure jump near the courthouse.  

 

A bunch of cases were dismissed for lack of evidence or whatever. But three or four months ago, the last four students… [went] to trial. The case was dropped because one of the state witnesses would not come down to Puerto Rico—a retired police officer. That police officer got a search warrant to look at the Facebook accounts of everyone who actually clicked on the Facebook live feed or either liked or shared it… They had secured a search warrant so they actually went to a judge, and the judge said, “Yes.” So they extracted the entire Facebook metadata of least three thousand people. 

 

The defense teams who were given this list are only allowed to share that with the defendants. The defendants identified some people in that lesson share that information with other people that have been whose information extracted. And those other people are actually activists, or they’re people that are fighting for other causes in Puerto Rico. So, what data is in there? It’s still unknown, because the government was not going to use that information at their trial. Because they were not going to use it, there is no mechanism for the defense team to question it. What’s in there? It’s unknown. What’s the purpose of keeping it? It’s unknown, and there’s no policy yet as to how to retrieve it or destroy it. And that obviously creates this ambivalence in the law and in the policies of the Puerto Rico police. Remember this goes in tension with these trainings from the federal agents that are down here, testing all these other technologies.  

 

Puerto Rico has a history of of surveilling political activists. There is a case in Puerto Rico—a very famous case—that ordered the government to return the dossiers of every person that was spied on by the government. And over 3000 dossiers had to be returned to the people of Puerto Rico. So the police are seen as an agent of this anti-nationalist, anti-independence movement. There’s a history and a culture ingrained in the police. It’s not something that can be reformed, as people like to say, “I can’t reform it.”  

 

Seeta Peña Gangadharan: To come back to a point that you mentioned earlier, so you’re seeing you mentioned that you’re seeing experiments, basically in Puerto Rico, with technology that’s being brought down with from the different agencies. And I’m just wondering if you can share any other, like maybe one or two examples of experiments that you’re seeing.

 

Diego Alcala: First, we have got the Civil Rights Commission, which is an agency of the Puerto Rico government, publishing a report in 2017 regarding other civil surveillance matters that are occurring in Puerto Rico, such as videotaping protests and targeting specific individuals within that protest. So you can see people from the police department. Some of them [have been] identified as police officers surveilling protesters.

 

We also see the integration of more advanced technologies such as ShotSpotter, which is basically a tool that allows the police to get notice, if a recording device believes that what it is hearing is actually a gunshot. That technology [that] is in use is not part of the police budget. It is actually part of the housing public housing budget. The department of public housing paid for this technology, which is a very unique way of how to [prevent people from understanding what’s going on. These [recording devices] were actually placed in lower income housing units. No other place in Puerto Rico has these other than or traditional low income housing units. That same company does have predictive policing products.. It will be interesting thing to see if they’re going to try to bring it down here.

 

We [Puerto Rico] had an infatuation with Rudy Giuliani for a while. In 2012, 2014, and 2016, he has come down to Puerto Rico not only selling himself and his consulting firm when it comes to policing, but NYPD came down to Puerto Rico and helped out with the training, not only on the street cops but also with the more advanced police rioting gear and police use-of-force techniques. So yeah, we learned from the best. The Puerto Rico police is the second biggest police unit in the United States, after the NYPD.

 

When we have other technologies coming in. You have to understand that… the federal government is using other agencies to purchase technologies. Department of Corrections has a drone. The Department of Housing which I mentioned. Also because of our austerity measures, we sold off a bunch of services. We have these eight public-private partnerships. An example would be the airport airports in Puerto Rico were owned by the government. Now it’s a private entity. For COVID, we were able to see how the private entity at the airport installed facial recognition, just to see if the passengers coming in actually had any fevers. So that was implemented there, but that I’m just bringing you that as an example, as a way of how technology can be implemented through a private corporation.

 

Our highway system is… many sections are privatized. We do have license plate readers, which are routinely used and shared with the police. …I can think of a few Appcelerator out in a city called Bayamón which is the second largest city [in Puerto Rico]. The town has invited research in the Internet of Things and has partnered with T-Mobile, just to see if they can produce different commercial uses for IoT technologies. I’m looking at it because there are no controls as to how government plays a role in this or how the private actor plays a role in this. We don’t have any legislative or statutory protections, when it comes to sharing information or collecting information. We do have privacy protection built in the event that a commercial private entity has a breach. If that occurs with your digital data, the corporation must notify the user. And that’s it. That’s the only responsibility. Within seven days… [you must receive notice, but] there’s no financial liability for that [breach].

 

…There is jurisprudence regarding employee protections. When it comes to surveillance technology, the employee must know that certain areas within their employers’ work or business [have surveillance tech in place]. There must be notice. So for example, you cannot record or track your client your employee’s car, if he’s not aware of it right, that would be illegal. So interestingly enough, we do have a private cause of action when it comes to surveillance in Puerto Rico… [Unlike] the Illinois biometrics statute… we need we still need to prove damages, as opposed to the Illinois’ biometric bill, which [states] the act of collecting biometric without express consent is the tort [e.g., the civil wrong]. Here we still need to prove how… [IoT data collection] link[s] to a damage. So you have to show at least some damage.

 

Seeta Peña Gangadharan: You’ve described historically deep roots to the conditions that are at play here. I’m just curious if you might be able to reflect on what some of the ideal scenarios are for how things might change.

 

Diego Alcala: We have issues of Puerto Rico that are not just technology-related issues. Every disaster invites separate opportunity for someone to take advantage of this. We have been in an economic spiral since 2006. We have been in an environmental toilet basically just spiralling down, and our infrastructure is completely shot… One of my concerns here is if there is a coordinated effort to implement what you’ve seen for example, an LAPD or Oakland, or Boston or other, other police and law enforcement agencies. I’m unsure if that’s actually something that, that is planned, but… there have… [we] do have to create the tools.

 

…There needs to be community awareness but also flip it on the state. What is the purpose of what they’re [the government are] using? For example, I had a conversation with a municipality and activists they’re questioning the use of body cams. The town said, “We need it in order to record interest with civilians so that we can defend ourselves, or just to ensure that they don’t have any bad apples.” But in reality, if you look at the literature, it doesn’t add up. It doesn’t really back up… The police are going to use it as their tool. They don’t necessarily turn it on when they need to. The reason I’m bringing it up is because… the activists are demanding police justify the use of this money… in a way that create[s] options. Maybe that money could be used on social workers to address stresses that the police face. So that conversation is needed, right? Conversation with the community empowers [the community] to come up with alternatives that would reduce the need of the thing need to be implemented.

 

At the same time… [another solution we need] is significant legislation on the either collecting or analyzing, including the tools used for analyzing and the extent of these tools, how to use them. …Recently… the European Court of Justice… ruled as to the use of or private or video surveillance videos by England—how long and for what purpose can they keep this video. So, I mean, that’s just one example of how to do it. You have to question the necessity.

 

My biggest problem with everything I’m saying is this relationship that we have with the United States. Every single law that you have in the United States has a public exception. Right. So, you have 175,000 laws… and all of them have a public safety exception. A police officer, either needs his internal document or a search warrant. There is no stop gap, there is no end as to what extent can you get right. Legislation… is the only way to stop and create a similar to what Illinois created… You don’t need to prove damages and it’s applicable to both public and private actors, as opposed to public.

 

Seeta Peña Gangadharan: You mentioned the banning of the national anthem in the 60s. I’m just wondering if you actually have a song that captures or film what you’re describing or the vision that you’d like to see come into fruition?

 

Diego Alcala: That’s a question that I’m not good at… I don’t, I don’t. You caught me off guard! It’s like a pirate question. …But I think I’m hopeful that this this election cycle, things happen, different than what we’re talking about the states. What do we got actually elected people into the legislature on political parties that did not exist fourteen months ago. Among those elected are really the conservative people. But on the other side we got [those] that come from a human rights background. I’m hopeful that legislation doesn’t just recently go through, which has created so much damage before.

 

I’m also very aware of many people that are very upset… post-Maria. We were basically left on our own. Many people had an expectation that we would not be left by our own… by the federal government. A lot of people hold on to this idea that without the federal government, everything crumbles. We’re here, and it still crumbled. We are not better off than many people thought… and that has created an atmosphere that’s challenging previous decisions. And being able to challenge and grow and hope for something that we may fail at doing. But we’re trying.