A squad of 14 New York Police Department drones will soon be soaring over the city’s skyline, with the ability to record people’s lives, even if that’s not their stated use. Some will be equipped with infrared cameras that have the ability to see through walls and record the privacy of bedrooms, although, again, NYPD says this isn’t the intent. Still, the technology isn’t just creepy (though it is creepy); if not monitored carefully, its deployment raises the specter of uses beyond those currently planned by the NYPD that could be illegal.
Warrantless infrared imaging crossed the line of legality for the Supreme Court nearly 20 years ago, when it held in Kyollo v. United States that such usage of these cameras violated the Fourth Amendment. This wasn’t the decision of the Court’s liberals either, it was Justice Antonin Scalia who wrote that our homes should be “held safe from prying government eyes.” The NYPD statement says that it won’t engage in warrantless surveillance. And Chief of Department Terence Monahan has said, “Let me be clear: N.Y.P.D. drones will not be used for warrantless surveillance.” Instead, the drones are supposed to be for “monitoring giant crowds, investigating hazardous waste spills, handling hostage situations and reaching remote areas in crime scenes, among other tasks.”
New Yorkers are being asked to take the NYPD at its word, but many New Yorkers want a stronger guarantee. This is part of why advocates and activists are pushing for the Public Oversight of Surveillance Technology Act (“POST Act”), a New York City Council bill that would require the NYPD to develop and publicize an “impact and use policy” for each piece of surveillance technology it purchases. (One of us, Vanessa, is a cosponsor of the legislation.) The bill, which was reintroduced earlier this year, has been gaining support throughout 2018, pending a hearing by the Council’s Public Safety committee. The NYPD would have 180 days following enactment of the legislation to publicly post policies for existing tools. For future tools, they would be required to post public notice at least 90 days prior to deploying a new technology. Such steps would still allow the NYPD to buy the equipment it wants, but New Yorkers will better understand how their digital lives are being policed and how information that could be conducted incidentally to lawful surveillance is being protected. The POST Act also requires the Office of the Inspector General for the NYPD to conduct an annual audit of NYPD compliance with the law.
Perhaps the most surprising part of the NYPD drone program is that we even know it’s happening at all. For years, advocates objected to the lack of civilian oversight of NYPD surveillance purchases. All too often, military-grade spy tools have been imported from battlefields abroad and used on American city streets, without any oversight by, or input from, the civilians we elect to local and state governments. These concerns about surveillance go far beyond drones, impacting almost every form of electronic communication.
For example, unlike the FBI and a growing list of police departments across the country, the NYPD has no public policy to explain how stingrays can be used, where they can be targeted, and what happens with the data from the thousands of bystanders who are caught up in their use. Many law enforcement boosters state that they won’t use their tools to the full extent of their technical capability, but without a systematic policy, again we’re only left with the NYPD’s promise.
These tools are powerful, and that power requires powerful oversight. Sadly, today the NYPD can spend millions of dollars insophisticated spy tools and military equipment right off the battlefield, without any oversight by elected lawmakers. This loophole in city law allows the NYPD to use money from private donations and federal grants without any disclosure to the City Council.
The NYPD response to the POST Act has been alarmist. NYPD Deputy Commissioner for Intelligence and Counterterrorism John Miller called the POST Act a “roadmap for terrorists.” But Miller and other POST Act opponents have never explained why the NYPD shouldn’t provide the exact same type of privacy and use policy that the FBI voluntarily provides for Stingrays. Far from being an extreme measure, the POST Act would be weaker than a number of other surveillance oversight bills in the country. Numerous municipalities, including Oakland, Seattle, and Cambridge, Mass., have enacted stronger versions of the bill that empowered civilians to be able to block the use of a proposed technology. By requiring privacy and use policies, the POST Act is only attempting to keep up with the national effort to limit the capacity for government surveillance abuse.
Thankfully, the bill is gaining momentum. Recently, the Black, Lantino/a, and Asian Caucus (BLAC) endorsed the POST Act. The BLAC’s endorsement of the POST Act highlights the inescapable reality that communities of color continue to bear the burden of NYPD policing.
The danger of mission creep in NYPD surveillance with its powerful new tools is most acute for Muslim and immigrant New Yorkers, who have faced the bulk of President Donald Trump’s nativist attacks. Trump’s campaign threat of a Muslim-American registry, and his ongoing efforts to target our must vulnerable neighbors for deportation, have made both of these communities even more fearful of data sharing between city officials and U.S. Immigration and Customs Enforcement (ICE).
Despite New York City’s promise of being a “sanctuary city,” the City’s much-lauded 2017 privacy protection legislation largely exempted the NYPD. Currently, nothing in city law bars the NYPD from sharing information with ICE or other federal officials. Thus, should widespread surveillance with these new tools beyond the purposes stated by the NYPD become a reality, these communities would be most at risk. The POST Act would help to ensure that the NYPD doesn’t become the eyes and ears of the Trump deportation machine and ensure that civilian oversight keeps pace with the advances in police technology.