Last week, the New York City Council held a hearing on the Public Oversight of Surveillance Technology (“POST”) Act. The POST Act would require the NYPD to produce public reports describing – in broad terms – the capabilities, safeguards, and rules for using powerful new surveillance technologies. Councilmembers of the Public Safety Committee questioned representatives of the NYPD, including the Deputy Commissioner for Intelligence and Counterterrorism, John Miller, and the Deputy Commissioner for Legal Matters, Lawrence Byrne. Advocates from nearly a dozen civil rights, immigrants’ rights, and community organizations, including the Brennan Center, testified in support of the POST Act.
Here are a few key moments from the hearing, which began with 9/11 and wound its way to a remarkable rebuke of the City Council’s role in oversight of the NYPD. The NYPD insisted that the POST Act is not necessary, but also seemed to misunderstand the risks posed by the technology it uses. On the plus side, the NYPD said it would work with the Council to address public safety concerns and proposed, for the first time, specific changes to the bill it would like to see.
The POST Act is Crafted to Protect Public Safety
The NYPD focused much of its testimony on the threat of terrorism in New York after 9/11, emphasizing that the city “remains in the crosshairs of violent terrorists.” Councilmembers Daniel Garodnick and Vanessa L. Gibson, the primary co-sponsors of the bill, emphasized that their goal is keep New Yorkers safe too. They agreed with the NYPD that it would not be appropriate to disclose too much detail about surveillance technologies, like where or when they might be used. In his opening statement, Garodnick noted:
We carefully crafted the bill so it does not require that the police department disclose operational details regarding when and where it will employ its tools.
But the Council did push back on the idea that the NYPD could not disclose basic information about the tools its uses, akin to what federal agencies do. Holding up a copy of the Justice Department’s policy for using secretive “Stingray” devices, Garodnick asked:
Why is it so risky for the NYPD to put out a policy like this, and not so for the Department of Justice and the federal government?
The NYPD conceded, stating a policy on “when and how we use these things” is “something we can have a dialogue with you about.” Evidently, Garodnick’s point was clear: If the chief federal law enforcement agency responsible for national security can disclose this kind of information, then there is no good reason why the NYPD cannot do so as well.
City Council Role in Overseeing the NYPD
Prior to the hearing, the NYPD made it clear that it did not support the POST Act, but the Department’s reluctance to allow oversight came into full view when Councilmember Rory Lancman began questioning Miller:
Lancman: Do you agree the balance between security and privacy, the limits of surveillance, should be ultimately decided, not by the police department with all due respect, but by the public and their elected representatives?
Miller: The balance…is decided on a daily basis…when you go before a court and you say ‘Your Honor, these are the facts as we have them, this is where the investigation may take us, and we would seek the court’s permission to go forward’ …and as the arbiter that has operated within the system for 200 years comes to a judgment on behalf of the public as to whether a specific tool can be used in the micro sense…
Lancman: Respectfully, here’s the part that I think you don’t get. There are tools that are available to you … [b]ut nonetheless, the public might feel that that kind of surveillance, that kind of record-keeping, whatever it might be, might be more than what the public is willing to accept in order to achieve whatever security end…
Of course, the judicial process is no substitute for legislative oversight, particularly where – as has often been the case – surveillance tools are not disclosed to the courts. The legislature makes laws and helps set policy, whereas the role of the courts is to apply those rules on a case-by-case basis. As Lancman observed, the NYPD seemed unwilling to recognize this distinction and the unique role of the City Council in police oversight.
Councilmember Garodnick had a similar exchange with Deputy Commissioner Byrne on the implications of non-disclosure agreements between the NYPD and the companies that supply their surveillance technologies:
Byrne: …If [the mayor] has questions for the Police Commissioner, we will find a way to answer those questions without violating any non-disclosure agreement in an appropriate private setting so that we are not compromising the ability to use those technologies lawfully.
Garodnick: How about a member of the Council? Let’s say the Public Safety Chair of the City Council.
Byrne: We would be very open to a broader closed door briefing…so that we can demystify for you a bit what do and don’t do, we use and don’t use.
The idea of a private briefing on privacy issues that matter to the public was not appealing to Garodnick, who clarified that the objective of the POST Act is “Public Oversight of Surveillance Technology:”
…Respectfully, it’s not only about the comfort of the Council. There are New Yorkers out there who appropriately question what level of surveillance is being done in their name and with their tax dollars, and they deserve to know…that you have the policies in place, that you are following the policies…
The idea is that the public, through their elected representatives, gets a say in how local police operate. But for that discussion to be useful and productive, the public must be informed – not just about threats, but about what local police are doing to prevent them in the public’s name.
Despite the police department’s suggestion that the bill would hamper their ability to fight terrorism, the POST Act does not impose restrictions on what the NYPD can and cannot do. It does not attempt to remove any tools from the Department’s toolbox or recommend how they should be used. It does not tell the police to disclose where and when they are using these tools. It simply requires a modicum of transparency to ensure that both the public and the City Council have the information necessary to make informed inquiries and policy decisions.
Facts Are Important: How a “Stingray” Differs from a “Pen Register”
The NYPD balked at the need for greater transparency while also either misunderstanding or misrepresenting how its own current technology works. During the hearing, Councilmember Garodnick honed in on the NYPD’s use of “Stingrays,” which are basically portable fake cell phone towers the size of a briefcase. They force all cell phones in the vicinity to connect to the Stingray instead of a normal cell phone tower, collecting data about the location of a suspect’s phone – as well as everyone else’s phone in the area. Garodnick asked what the NYPD does with bystanders’ data:
…Can you capture information that is not related to the phone for which you have a warrant while you are capturing the information that you are actually looking for…let’s say I’m walking by right next to the person who is the target of your investigation.
Rather than engaging in substantive dialogue on the subject (for example, the Justice Department requires data be deleted within 30 days), the NYPD denied the issue and misstated how the technology works:
Byrne: It would not tell us anything about you.
Garodnick: What does it tell you about me?
Byrne: It tells us where the cell phone is located.
Garodnick: It tells you that my cell phone is located there?
Byrne: Only if you call the person or the person calls you.
Garodnick: Okay so proximity to the cell site locator does not do anything if you are not the target?
In fact, Stingrays force all nearby cell phones to connect to the device, revealing their location as well as other data. The NYPD appeared to not grasp this critical point, or else not acknowledge it. Instead, the Department likened Stingrays to “pen registers” from the 1980s, which target only one phone and record only the phone numbers called and received on that particular line. The comparison is inapt, misleading, and out of line with federal practice. And it is a perfect example of why the POST Act is needed.
* * *
Police have broad authorities and powerful tools at their disposal. New Yorkers should be informed in broad terms about these capabilities, but no one wants to pass a bill that would risk public safety. The NYPD should engage with the City Council on the substance of the POST Act and propose specific reforms to accommodate, rather than misrepresent, its concerns. New Yorkers should have a say in how local law enforcement collects and uses their data. The POST Act gives us that voice.