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High-Tech Police Surveillance Needs Oversight, Especially in New York City

A bill before the New York City Council would help protect the public’s rights by ensuring the NYPD doesn’t abuse powerful technologies.

December 16, 2019

After two years of persistent advocacy from civil rights groups and community activists, the New York City Council has finally scheduled a hearing for December 18 on the Public Oversight of Surveillance Technology Act, a bill that would require the New York City Police Department to report on its use of surveillance tools. The POST Act fits into a nationwide trend of cities that are trying to improve transparency and accountability when it comes to law enforcement’s use of technologies like cell phone location trackers, automated license plate scanners, facial recognition, and social media monitoring software. 

Last month’s hearing on the NYPD’s use of body-worn cameras illustrates how meaningful public oversight is possible when the council has the information it needs to ask informed questions about the police’s deployment of surveillance technologies. This is exactly why it is so important that the council pass the POST Act.

Body cameras are an important tool for improving law enforcement accountability, but they also raise complicated issues around privacy and constitutional rights. As the Brennan Center testified at the hearing, without adequate safeguards, body cameras may radically increase scrutiny of already over-policed communities. Body cameras accompany officers everywhere they go, enabling the NYPD to record in private spaces like apartment buildings and homes. Even videos of discrete, individual incidents may include significant amounts of personal information about not only the subject of the video, but also anyone in the background.

The risk that body cameras might become a tool for dragnet surveillance is magnified when they are used in conjunction with other surveillance technologies such as facial recognition, which the NYPD has previously misused. Combining body camera footage with facial recognition would enable the NYPD to identify multitudes of ordinary people remotely and in secret, regardless of whether they are suspected of a crime. Given the NYPD’s history of surveilling protesters, the pairing of these technologies also presents concerns over freedom of expression and association. Facial recognition’s well-documented deficiencies with regard to effectiveness and racial bias further amplify these concerns.  

The NYPD’s answers to council member’s questions revealed their growing use of body camera footage for criminal investigations. For example, the NYPD’s database of body camera footage contains eight million videos and grows by about 130,000 each week. These videos are integrated into CompStat, a statistical system used to track crime-related data throughout the city, and it is not clear how the footage is used within that system. The department also stated it uses algorithms to analyze body camera footage, which can be utilized as a data point in NYPD investigations. However, when and how this happens remains opaque.

The city council knows far more about the NYPD’s use of body cameras than about other surveillance technologies. The police first launched a body camera pilot program in 2014 pursuant to a federal court order in Floyd v. City of New York, a lawsuit challenging the department’s unconstitutional stop-and-frisk tactics. Before expanding the use of body cameras beyond the pilot to its approximately 20,000 uniformed patrol officers, the NYPD solicited public feedback and later publicly released a policy on its use of body cameras. This gave council members some of the information they needed to ask detailed questions at the hearing. We need to extend this oversight model and build on it.   

The POST Act, which the NYPD has thus far opposed, would create more opportunities for the city council to conduct public oversight without interfering with the department’s ability to keep the city safe. It would require the NYPD to disclose basic information about every surveillance technology it uses and share its policies regarding their impact and use. It would also require the NYPD inspector general to conduct an annual audit to ensure the department is complying with those policies.

Currently, basic information about the NYPD’s use of various technologies is mostly hidden from the public and typically only brought to light by investigative journalists or civil society groups through Freedom of Information Law (FOIL) litigation. Keeping this information secret erodes the relationship between the public and the police. For example, only after extensive FOIL litigation did the NYPD reveal that for over eight years it had been using a technology called Stingrays to track cell phones locations. Subsequently, a federal court in Manhattan found that the use of this technology constituted a search under the Fourth Amendment and therefore required a warrant. Because the public and elected officials were kept in the dark about the NYPD’s methods and technology, the NYPD had conducted over a thousand illegal, warrantless searches without proper oversight.

As the Brennan Center has documented, the NYPD deploys an extensive arsenal of surveillance technologies. In the meantime, scandal after scandal shows how the status quo of secrecy is untenable. In one striking case, after facial recognition systems failed to produce a match for a suspected low-level shoplifter, officers uploaded an image of a similar looking celebrity and used the resulting matches in their investigation. In another example, the department uploaded photos of juveniles into its facial recognition database, even though the technology has a higher error rate for young children and state law requires that arrest photos of juveniles be destroyed after certain conditions are met. The NYPD has also maintained a database containing the fingerprints of children charged as juveniles, in direct violation of state law.

The goal of the POST Act is to allow the public, city council, and NYPD to have a productive conversation about new surveillance technologies on the front end, rather than in response to a sensational news headline. Given that transparency and police accountability came up repeatedly in the body camera hearing, passing the POST Act should be a priority for the city council. It is a necessary step toward improving public oversight of the NYPD’s surveillance technologies.