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Brooklyn Court: NYPD’s Use of Cell-Phone Trackers Unconstitutional

A first and necessary step towards maintaining the privacy rights of all New Yorkers, but more must be done.

  • Isabelle Glimcher
December 8, 2017

From so-called ‘Stin­gray’ devices that collect call data and can disrupt service, to x-ray vans that can scan any unlucky passerby, the NYPD has acquired a range of high level surveil­lance tech­no­lo­gies, with little or no over­sight from the courts, the City Coun­cil, or the public. These tech­no­lo­gies allow the NYPD to watch, listen, and track New York­ers like never before. But last month, a New York State court in Brook­lyn ruled that the NYPD’s use of Stin­grays without a warrant was uncon­sti­tu­tional. This was a first and neces­sary step towards main­tain­ing the privacy rights of all New York­ers, but more must be done.

Stin­grays mimic cell phone towers, enabling the NYPD to track a cell phone’s loca­tion down to a specific apart­ment within a build­ing, retrieve data from the phone, and even disrupt service. The recent ruling in People v. Gordon finally chal­lenges the NYPD’s right to use these devices free from over­sight. Justice Martin Murphy held that a Stin­gray, “[b]y its very nature,” “intrudes upon an indi­vidu­al’s reas­on­able expect­a­tion of privacy, acting as an instru­ment of eaves­drop­ping, and requires a separ­ate warrant suppor­ted by prob­able cause.”

Since 2009, police officers in New York State have been required to get a warrant to use a GPS device for monit­or­ing an indi­vidu­al’s where­abouts. Stin­grays largely achieve the same effect, but the NYPD never sought a similar warrant and refused to disclose its policies regard­ing Stin­grays or even to acknow­ledge their use. Accord­ing to New York’s Legal Aid Soci­ety, this case was the first in which prosec­utors directly told defense attor­neys and their clients about the approval to use a cell-site simu­lator. This follows a pattern of secrecy regard­ing the use these tech­no­lo­gies – accord­ing to the New York Times, “[i]n Baltimore, where the police have used cell-site simu­lat­ors thou­sands of times, defense lawyers have pressed for details about how the police found certain subjects, only to have prosec­utors drop charges to avoid answer­ing ques­tions.” The ruling in Brook­lyn consti­tutes import­ant progress towards protect­ing the privacy and due process rights of all New York­ers. While court over­sight is an import­ant element, the NYPD must do more.

Warrant­less collec­tion of data isn’t the only prob­lem asso­ci­ated with these tech­no­lo­gies – there are also import­ant concerns about how the data is used once its already gathered. To date, the NYPD has not provided policy guidelines for its use of this surveil­lance tech­no­logy, or for the hold­ing or destruc­tion of tera­bytes of addi­tional data incid­ent­ally collec­ted on inno­cent New York­ers. This contrasts with the published policies of the Depart­ments of Justice and Home­land Secur­ity, both of which require warrants for the use of many of these tech­no­lo­gies. The District of Columbia Court of Appeals has also held that such a require­ment is appro­pri­ate to protect indi­vidual secur­ity.

The city coun­cil has proposed a solu­tion: the Public Over­sight of Surveil­lance Tech­no­logy (POST) Act. The POST Act would increase public and city coun­cil over­sight of the NYPD’s policy on the use of surveil­lance tech­no­lo­gies, and its parti­cip­a­tion in inform­a­tion shar­ing networks. Follow­ing similar bills intro­duced or passed in Seattle, San Fran­cisco, Santa Clara, and Oakland, the POST Act requires the NYPD to publicly disclose the acquis­i­tion of new surveil­lance tech­no­logy, provide a broad descrip­tion of how the tech­no­logy works, and outline the policy regu­lat­ing its use. Once the inform­a­tion is published, the public would have the oppor­tun­ity to submit comments, to which NYPD lead­er­ship would be required to respond.

The NYPD opposes this bill because they main­tain that disclos­ing such inform­a­tion would empower those enga­ging in crim­inal beha­vior to circum­vent surveil­lance. However, the bill does not require the NYPD to provide oper­a­tional details, and does not prevent the police depart­ment from acquir­ing and using the tech­no­logy. Instead, it aims to provide the public and their repres­ent­at­ives on the city coun­cil with the inform­a­tion neces­sary to over­see the prac­tices of the depart­ment. Through this over­sight, public trust in the police can be rebuilt, and the rights of those living in New York City can be better protec­ted.

In many ways, the Brook­lyn Supreme Court ruling raises more ques­tions than it answers. Will the NYPD imple­ment the prac­tices called for by the court even though they dispute the court’s reas­on­ing? What will happen to the unknown number of people who were arres­ted after police relied on a Stin­gray device without proper author­iz­a­tion from the Court? What about the other invas­ive surveil­lance tech­no­logy used in secret by the NYPD? Privacy protec­tion needs to be proact­ive, not react­ive. New York­ers need a police depart­ment whose commit­ment to both privacy and protec­tion is evid­ent through published policies and a will­ing­ness to accept over­sight by elec­ted offi­cials. Passage of the POST Act would be a huge step forward towards achiev­ing this goal. 

(Photo: Flickr)