Last night’s meeting was definitely a marathon not a sprint :-). I showed up around 5:30 and signed up as 8th on the list to speak. I ended up leaving around 10. The public comments wrapped up about 30 mins earlier and then there was a round of amendments to the motion by the Mayor. I didn’t get to stay for the conclusion, but understand that the amended motion passed. Of the 4 things I was asking the council to consider, I think that one of them was addressed directly (requiring the AI draft retention features to be turned on), one was addressed partially (shortening the term – more on that below) and two were essentially ignored (splitting the vote and forming an independent audit board). Unfortunately I think think those were the two most important of my requests.
On the positive, I did have a really good interaction with one of the councilmen and sent him a follow-up email this morning:
I am sending this as a follow-up to my comments and our brief conversation at the council meeting last night. Overall, I do want to say that I appreciate the council taking the time to listen to what everyone had to say. I also appreciate the amendment to turn on the AI draft retention feature.
While the final decision last night didn’t go the way I had hoped (it seemed clear to me that the vote at least needed to be split between what we were renewing vs what was new), it’s at least the case that the council made the decisions they did fully informed of the public’s various points of view.
I have included a copy of the comments I made in the meeting below for your reference. I learned a few things in the meeting itself, so have a few additional thoughts.
1 – of the 4 proposals I asked the council to consider, the only one that I don’t think had enough discussion / consideration was the request to appoint some form of independent oversight to the use of this technology. I do appreciate the amendment to require the report to the city manager and commission every 30 days, but I don’t think that goes far enough. In nearly every case of abuse of this tech in other cities, there were similar “safeguards” in place and in nearly every case they failed to catch or stop the abuse. It was the victims of the abuse that brought it to light and, fortunately, were able to find justice. I don’t want the citizens of Covington to have to fight for this themselves, so ask that the council please consider the creation of some independent review board outside of the police department and the council. There are many examples to learn from:
It was clear to me last night that there is a breach of trust between some of the public and the police department. Some of this might be a natural consequence of the police doing their job in the best way they can and some people thinking or feeling they could do better. But I think some of it also comes from the perceived secrecy surrounding the policies and activities. Some form of independent Public Safety Technology board could be a big step to close that trust gap by shining some light and giving a consistent, informed voice to the public.
This body could be responsible for things like:
- Acquisition of Axon/Flock/etc.
- Contract renewal
- New capabilities
- Data retention periods
- Interagency data sharing
- AI features
- Facial recognition
- Searches of historical footage
- Vendor access to government data
- Major changes to terms of service
- Data migration/termination plans
- Annual audit results
and could consist of something like:
- 2 civilian/community representatives
- 1 privacy/civil liberties representative
- 1 technology/data-security expert
- 1 attorney/public-records expert
- 1 former law-enforcement representative
- 1 prosecutor/public defender representative
- perhaps a City Council representative as a non-voting liaison
While its likely too late for the Axon contract, this board could have a role in future tech contracts and policies that could prevent the misunderstandings and potential missteps and mistrust that developed as part of this contract.
2 – I do understand now that the term of the contract is not 10 years, but 10, 1 year contracts each subject to a funding vote by the current council. That being said, I think the question of the costs to terminate the contract before the full 10 years deserves some more exploration. I know you asked the solicitor a direct question about early termination costs and he indicated that there are none. While I think the solicitor provided a direct answer to your direct question, I think there are broader questions about costs to the city should the contract be terminated before the full 10 years.
One source of potential costs for early termination comes from Axon’s standard MSA, which is referenced as governing the most recent publicly available quote Axon. Under the section titled “Effect of Termination” it states:
“Upon termination of this Agreement, Customer rights immediately terminate. Customer remains responsible for all fees for the applicable term incurred before the effective date of termination. Customer is not responsible for Service fees that accrue post termination. If Customer purchases Axon Devices for less than the manufacturer’s suggested retail price (“MSRP”) and this Agreement terminates before the expiration of the Initial Term or the completion of all Renewal Terms, Axon will invoice Customer the difference between the MSRP for Axon Devices received, including any Spare Axon Devices, and amounts paid towards those Axon Devices. Only if terminating for non-appropriation, Customer may return Axon Devices to Axon within thirty (30) days of termination. MSRP is the standalone price of the individual Axon Device at the time of sale. For bundled Axon Devices, MSRP is the standalone price of all individual components.”
This reads very similar to a contract with a cell phone provider that bundles the phone into the monthly cost. If you terminate early, you can avoid the remaining service changes BUT you have to pay for the remaining balance of the device itself. To be fair, it seems (based on info in the quote) that the body cameras are already paid off / owned by the city so there wouldn’t be any costs there, but for the other hardware items in the quote (drones, ALPRs – which I do understand were removed by amendment from the contract last night after I had to leave) there could be some exit costs, which are higher the earlier the exit.
Another source of potential costs is associated with data migration from the Axon platform. According to the Axon standard cloud services data portability and migration terms, agencies have 90 days to migrate their data once a contract is terminated provided they are paid in full through the date of termination. The quote from Axon indicates that the City of Covington is currently behind on a few invoices from the current contracts so this is not a hypothetical risk. If the city decided to terminate before the end of the 10 year term, they would immediately start a clock to extract all of the evidence that could be needed in current investigations or active cases and the time on that clock could be limited if we weren’t up to date on our payments. And then there is the cost to the City’s IT department to extract all of the data in its raw form (you loose access to the applications as soon as the contract is terminated) and arrange for storage that meets all of the security and chain of evidence rules that are required. It could serve as a powerful incentive to not terminate early.
Axon is known to use strong arm tactics to keep its customers from exercising early termination options. In this case there is documented evidence of Axon stating that early termination is only possible by not funding and that decision could impact the government’s credit rating. I can only imagine a possible future city council meeting where all of this comes to light and we realize that the option to terminate early was only hypothetical.
There are good examples of other cities that have negotiated more favorable termination options. We could look to them for guidance – examples:
Note: I have sent an email to the City Manager to ask for a current / final copy (after the amendments have been added) of the contract and terms and will adjust my POV if I see differences in subsequent documents.
Thanks for all you do for the city.
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