A Bill to Oversee 21st Century Police Surveillance

This piece was origin­ally published by City & State.

From secretly collect­ing DNA samples of minors to main­tain­ing a gang data­base that is suspi­ciously over 98% black or Latino, there are many examples of why the NYPD cannot be trus­ted to deploy surveil­lance tools without legal safe­guards to prevent them from viol­at­ing New York­ers’ privacy and civil rights. 

Most recently, The New York Times exposed how the company Clear­view amassed more than three billion photos from popu­lar websites such as Face­book, LinkedIn, and Venmo to power its facial recog­ni­tion app. It didn’t take long for another Buzzfeed to uncover that Clear­view was tout­ing a rela­tion­ship with the NYPD in its promo­tional mater­i­als.

The depart­ment denied that it had an “insti­tu­tional rela­tion­ship” with Clear­view, but a New York Post invest­ig­a­tion quickly found that several NYPD officers were running the app on their personal phones. The NYPD even­tu­ally conceded that a limited number of officers were allowed to run trial versions of the app. Of course, we still don’t know what controls (if any) the depart­ment put in place to prevent abuse, and what it will do with data it collec­ted during these trial peri­ods.

The depart­ment’s cava­lier approach to monit­or­ing New York­ers cannot escape regu­la­tion any longer. A bill with over­whelm­ing support in the City Coun­cil, the Public Over­sight of Surveil­lance Tech­no­logy Act (POST Act), would bring much needed trans­par­ency. It would require the NYPD to make basic disclos­ures about its surveil­lance tools and what policies it has in place to protect the privacy of New York­ers. The bill already has 33 co-spon­sors in the 51-member City Coun­cil, includ­ing Public Advoc­ate Jumaane Willi­ams and Public Safety Chair­man Donovan Richards. Support­ers are wait­ing on Speaker Corey John­son to allow the bill to come up for a vote. 

The NYPD has moun­ted fierce oppos­i­tion to the POST Act, claim­ing the legis­la­tion would help crim­in­als and endanger lives by forcing the depart­ment to give away too much inform­a­tion. But these argu­ments do not hold up under scru­tiny.

The POST Act’s report­ing oblig­a­tions are too general to be a useful roadmap for the bad guys. The bill would not require disclos­ure of how it uses surveil­lance tools in specific invest­ig­a­tions, or disclos­ure of where or when it might be used. It would not require disclos­ure of how someone might avoid it. 

It also would­n’t make the tools any less effect­ive. For example, wiretaps continue to be an import­ant invest­ig­at­ive tool despite wide­spread know­ledge of their exist­ence and a strict legal frame­work govern­ing their use. Why should New York­ers have fewer protec­tions for their faces than for their land­line tele­phones?

NYPD’s modern surveil­lance tools, and their related privacy and racial bias concerns, are already well known to the public. From facial recog­ni­tion tech­no­logy that cannot reli­ably identify people of color to Stin­gray devices that collect cell phone inform­a­tion regard­less of a connec­tion to a suspec­ted crime, journ­al­ists and lawyers have slowly informed the public about surveil­lance abuses despite the NYPD’s stead­fast resist­ance to basic trans­par­ency.

Last year, the Bren­nan Center published a chart show­ing the scope of the NYPD’s surveil­lance arsenal based on publicly avail­able inform­a­tion. This chart tracks the poten­tial impact of each tool and provides links to NYPD policies to the extent they exist. Even this incom­plete invent­ory reveals an expans­ive network that covers large swaths of New York City, includ­ing roads, homes, parks, and even online spaces. It would be diffi­cult for the NYPD’s hypo­thet­ical crim­inal to parti­cip­ate in modern soci­ety without coming under the scope of the depart­ment’s surveil­lance appar­atus. 

Rather than wait for another alarm­ing head­line about dysto­pian surveil­lance, the POST Act would front-load over­sight. It would allow poli­cy­makers and community members to have an informed conver­sa­tion about the rules of the road before the NYPD deploys a new tech­no­logy. It also would encour­age the NYPD to be more thought­ful in how it approaches new surveil­lance tech­no­lo­gies. This approach can help prevent fore­see­able harms to indi­vidual rights, strengthen community trust, and avoid wast­ing scarce resources.

When the City Coun­cil first debated the POST Act in 2017, it had the oppor­tun­ity to be a leader – now, it has fallen behind. Cities across the coun­try, includ­ing San Fran­cisco, Seattle and Nashville, have all passed laws to hold their police depart­ments account­able. Each of these laws goes further than would be required under the POST Act. In some juris­dic­tions, police must obtain City Coun­cil approval before they can acquire new surveil­lance tools; a grow­ing number of cities have even passed outright bans of facial recog­ni­tion tech­no­logy.

But in New York, when Coun­cil member Robert Holden asked the city Depart­ment of Inform­a­tion Tech­no­logy and Tele­com­mu­nic­a­tions whether the NYPD uses facial recog­ni­tion, a widely repor­ted fact, a repres­ent­at­ive said the depart­ment did not know. 

It does­n’t have to be this way. We need 21st century over­sight of 21st century poli­cing. Every day the City Coun­cil waits to pass the POST Act is a gamble for the civil rights and civil liber­ties of New York­ers. The POST Act’s basic trans­par­ency report­ing is needed to ensure that New York remains a strong local demo­cracy that respects the consti­tu­tion and the rule of law.