A bit more than a month has passed since Green Bay city council members discovered that microphones had moths earlier been added to the building’s surveillance system. Alderman Chris Wery dramatically confronted Mayor Eric Genrich at the full council meeting on Tuesday, February 7: “City council nor the public was advised of this spying and not even a simple signage warning of the intrusion was put in place.”
Alderman Chris Wery questioning Mayor Eric Genrich about surveillance practices.
Today, Green Bay City Hall is not only facing a civil lawsuit over its use of audio recording devices, but an investigation is underway to determine if criminal charges should be filed against anyone from the city. Brown County District Attorney David Lasee worked with the Green Bay Police Department to refer the investigation to the West Allis Police Department. The charge here is serious. Violating Wisconsin’s Electronic Surveillance Control Law is a Class H felony. A conviction on this charge can lead to up to six years in state prison, a maximum fine of $10,000, or both.
The plaintiffs behind the civil lawsuit claim that the city and Mayor Eric Genrich violated the law by installing audio recording devices in the hallways of City Hall. The complaint alleges that Genrich installed “highly sensitive audio listening devices” that have been intercepting and recording private communications for years, including conversations between council members and the public, privileged attorney-client communications, and personal conversations. Genrich and members of his administration maintain that the devices are legal; they believe there is no reasonable expectation of privacy in a hallway of a public building.
The city formally admitted on February 10, 2023 to installing the devices outside the mayor’s office and city council chambers in December 2021 and outside the city clerk’s office in July 2022. These actions were taken without city council approval or knowledge. Signs were posted to alert visitors of the recording after the presence of the devices were revealed. Then, in early March, Brown County Judge Marc Hammer ordered the microphones turned off while the lawsuit plays out. On Tuesday, March 7, in a 9-3 vote, the city council passed a policy to remove the devices from City Hall and the recordings destroyed at the conclusion of the lawsuit.
In this blog, I will discuss the problem of surveillance of citizens generally and then provide some concerning details on the Green Bay situation. There are questions of legality involved here, but of far greater importance is the character of a politician who would bug the heart of city government and spy on his constituents. Claiming that no laws were broken is not an excuse to listen to the privacy conversations of Green Bay residents. That the mayor did this at all is what is at issue.
While government officials argue that surveillance is necessary for safety and security, and this is Genrich’s explicit justification (claiming that there were three incidents where city employees and members of the public were “verbally assaulted”) surveillance infringes on the civil liberties and privacy rights of people. Privacy is a fundamental human right, enshrined in constitutions and international declarations around the world, with the United States standing as the recognized paradigm—at least in principle. Citizens have the right to keep their personal information and activities private and governments are obliged to respect this right. That they don’t does not obviate principle.
Surveillance has a chilling effect on free speech and association; people may be less likely to express controversial opinions or engage in political activism if they fear being monitored. Moreover, government surveillance affects citizens emotionally and psychologically. Knowing they’re being monitored can make people feel like they are constantly being watched. They become unsure of the spaces where they may privately communicate with others with confidence. This can produce a sense of paranoia and a loss of trust in others. All this negatively affects political engagement and freedom of expression.
Government surveillance is easily abused. I hardly need to recount here the many cases of governments using surveillance to target political opponents, journalists, and activists. Abuse of power undermines the rule of law and erodes trust in government institutions. This is why governments are required to obtain warrants before conducting surveillance—and why these warrants must be subject to judicial review. Citizens should enjoy the right to access and control their personal data, and to know how it is being collected and used by government agencies.
Even if we took those who surveil the public on their word that they deploy such technology to enhance safety and security, the alleged benefits of surveillance are vastly overstated. Moreover, there are alternative ways to achieve the goals of public safety without infringing on civil liberties and privacy rights. At the very least, when listening technology is used for this purpose, there must be transparency and accountability around surveillance activities. Wery was right to raise his objection and educate the mayor on the basic principle that governments should disclose the extent of their surveillance activities, the legal basis for these activities, and any oversight mechanisms that are in place.
When Wery called for the equipment to be removed, Genrich refused to do so, stating that the security system is lawful and commonplace. Afterwards, Genrich’s office provided a fact sheet noting that, of the fourteen cameras in public areas of City Hall, three have audio capability and are located only in the hallways of the first and second floors. The city argued that similar technology has been used in the Green Bay Police Department lobby for nearly a decade and that the transit system has had video and audio capabilities for 20 years.
Genrich means to dissimulate the reality that City Hall is where politics happen. That the June 17, 1972 break-in of the Democratic National Committee headquarters at the Washington, D.C. Watergate Office Building was illegal was not the only objectionable thing about the Watergate scandal. Indeed, the burglary was the least of it. It was the fact that members of one political party were there installing bugs in order to listen to the private conversations of their political opponents. President Nixon didn’t resign his office because he was a burglar. He resigned because he betrayed a foundational principle of a free society. At least he had that much integrity.
Despite the city’s assertion that the security system is lawful, concerns persist about the potential violation of citizens’ privacy. Critics argued that the devices could capture private conversations between attorneys and clients, political discussions by voters casting in-person absentee ballots, off-the-record conversations between journalists and sources, and quiet conversations between City Council members and constituents outside of council chambers. Such scenarios could violate citizens’ reasonable expectation of privacy and constitute a breach of their rights.
Attorney Ryan Walsh, representing the Wisconsin Senate and three individuals suing the City of Green Bay and Mayor Genrich over the use of audio surveillance, wrote the letter to Brown County District Attorney David Lasee requesting a criminal investigation be opened. Walsh easily destroyed Genrich’s bogus safety argument. “I don’t know how you deter anyone by secretly recording them and not letting them know that you are recording them,” he said. It is implausible that these were installed for safety reasons if we presume that Walsh’s point would have occurred to Genrich and his administration at some point in their deliberations about whether to install audio listening devices. Surely they aren’t that stupid (I’ve met Genrich, and he struck me as a reasonably intelligent person).
Attorneys for the city and mayor argued the plaintiffs knew about the audio recording devices since mid-September, which is beyond the timeframe allowed for notice under law. They reference a letter sent to some eight hundred of the mayor’s constituents alerting them to the presence of audio surveillance devices.
That a letter of that nature was sent raises two questions. First, was the limited distribution of the letter designed to let a select number of the mayor’s constituents know where they might be recorded and that recordings of others existed? Second, was the letter a tactic to delegitimize as “politics” the concerns of citizens who raised the issue by saying that the letter proves it was not a secret?
The second function of the letter was affirmed by Judge Hammer. Granting the restraining order ordering the microphones be turned off immediately and any recordings sealed until the court says otherwise, he commented, “I’m concerned there was some type of underhandedness or strategy in waiting until after the city primary and before the city election to dirty up the mayor.” He then blatantly accused Republicans of using “a fundamental right that our people have as a political tool.”
Whatever their motive, Republicans are standing up for the fundamental right of people. That the populists in the Republican Party have taken a keen interest in the civil liberties of Americans is a welcome development in light of the history of establishment Republicans on the question of surveillance. That said, speculating about their political motive is an exercise in political speech that undermines the fair and impartial character of the court Judge Hammer is supposed to uphold.
Indeed, Hammer’s political speech appears coordinated with Genrich’s re-election campaign, which quickly issued a statement from the mayor reading in part, “I agree with Judge Hammer that the actions of Wisconsin Republicans are political and suspiciously timed. These MAGA Republicans who are aligned with my opponent are making our residents and city staff less safe by prioritizing politics over safety.”
These MAGA Republicans are putting the civil liberties and privacy rights of Green Bay residents ahead go the mayor’s desire to glean information from them by secretly recording their conversations. Genrich’s use of epithet “MAGA” is typical of Democratic Party rhetoric. It’s rhetoric designed to delegitimize those standing up for working people and separate populist Republicans from their establishment colleagues. It’s part of the Uniparty strategy of differentiating between acceptable Republicans and the deplorables.
It’s a distraction. Consider not only Walsh’s point that there can be no deterrent effect of audio surveillance no one knows exists, but the admission by the mayor’s office that they don’t comprehensively review the recordings—in other words, the mayor is only interested in some conversations. Which ones? That’s not a hard question to answer. It’s a simple matter to keep track of who is in the building with fourteen video cameras, their recordings time stamped, and match those to the audio recordings and listen to the conversations. One is naïve in the extreme to believe with any degree of certainty that this is not what those devices were for.