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Analysis

POST Act Hearing Round-Up

Here are a few key moments from the June 14 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.

  • Michael Price
June 21, 2017
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?
 
Byrne: No. 
 
 
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.