Co-authored by Alyssa Derosa, clinic student, in the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law.
The New York City Council recently introduced legislation aimed at increasing the transparency and accountability over the NYPD’s use of powerful new surveillance tools. The bill, called the Public Oversight of Police Technology (POST) Act, requires the NYPD to disclose basic information about the technology it uses, including policies and procedures for collecting and safeguarding sensitive personal information. In short, the POST Act will help protect the privacy rights of New Yorkers, facilitate oversight of the NYPD, and make the city a safer place for everyone.
Critics of the bill were quick to criticize the proposed disclosure requirements, worried that they might tip off the “bad guys.” Larry Byrne, the NYPD’s Deputy Commissioner for Legal Matters, called the legislation “misguided,” claiming that the disclosure requirements would tell criminals how to thwart police investigations and wind up in Al Qaeda’s magazine.
Of course, no one wants to enact policies that would undermine the NYPD’s ability to keep New Yorkers safe. That is why the Council carefully crafted the POST Act to avoid any release of operational details that might compromise police investigations. Concerns that the POST Act would provide criminals or terrorists with a leg up on the police are unwarranted and hyperbolic.
First, criminals are often keenly aware of the kinds of surveillance tools enforcement officers have at their disposal. But that does not necessarily make those tools less effective. Wiretaps, for example, remain a potent investigative technique despite public awareness of their general existence. Likewise, cell phone locators will continue to work; X-ray vans will continue to see through walls, and license plate readers will continue to read license plates. The problem is that law-abiding New Yorkers - including members of the City Council - are not aware of such technologies or rules that police follow when using them. That is one of the reasons why the POST Act is so important. New surveillance technologies do not just capture information about criminals: they affect the privacy rights of all New Yorkers. And without some basic information, legislators and government watchdogs, including the NYPD Inspector General, cannot oversee the NYPD or do their jobs effectively.
By contrast, the federal government routinely discloses its ground rules for using new technologies and strongly encouraged local agencies to be open to the public about the surveillance technologies they use. For example, both the Department of Justice and the Department of Homeland Security have published policies on their use of “Stingrays” (cell phone locators). DHS has also been open about its use of facial recognition technologies and license plate readers. These are the very same types of technology employed by the NYPD but shrouded in secrecy. If the federal government does not see this disclosure as a threat to national security, there is no reason why the NYPD should avoid being equally transparent.
Finally, history shows that the public inevitably finds out about new police surveillance tools, often through the press or from costly freedom of information lawsuits. The information must also be properly disclosed to courts and criminal defendants. Failure to do so could put thousands of prosecutions in jeopardy, as happened in Baltimore and Florida, making the city less safe. In short, even without the POST Act, it is fanciful to think that the NYPD’s surveillance tools would remain a secret forever. The real question is whether the NYPD will be upfront with policymakers and the public (perhaps heading off concerns about privacy or abuse), or whether it will fight to keep its policies a secret and wait for the next alarming headline to appear.
Ultimately, the POST Act will serve to inform the public and the City Council about the information the NYPD collects and the policies for retaining, sharing, and protecting it. Public safety and national security are serious concerns, but the POST Act does not raise them. Transparency and oversight are healthy features of a strong local democracy, and the NYPD should embrace them.