NEW YORK, N.Y. (June 19, 2020) – On Thursday, the New York City Council overwhelmingly passed an ordinance that takes the first step toward limiting the unchecked use of surveillance technologies that violate basic privacy rights and feed into a broader national surveillance state.

Councilmember Dan Garodnick introduced the Public Oversight of Surveillance Technology Act (POST Act) over three years ago. Once signed into law, the ordinance will require the New York Police Department to disclose information about all of its surveillance technology such as stingray devices, automatic license plate readers (ALPRs), cameras and drones. Under the rules, the NYPD would be required to issue an “impact and use policy” for each type of surveillance technology it uses now or acquires in the future, creating an environment of transparency currently lacking in the department. Disclosure would include important information about each surveillance tool, including, but not limited to, its description, capabilities, guidelines for use, security measures designed to protect any data it collects, and whether other entities have access to information it gathers.

The Post Act passed by a veto-proof 46-6 margin. Mayor Bill DeBlasio has indicated he will sign the measure.

The Post Act lacks the requirement for council approval for the purchase and use of surveillance technology included in ordinances passed in other cities such as Oakland, California. Due to city charter limitations, the council cannot exercise direct control over the NYPD. In an effort to address the issue of surveillance in the city, activists crafted the POST Act to maximize transparency and provide full opportunity for public input.

“If the NYPD seeks to acquire a tech that is unacceptable or to use it in an unacceptable way, this bill will give us everything we need to politically pressure the Mayor to force NYPD to discontinue its use,” ACLU National Advocacy and Policy Counsel Chad Marlow said when the Post Act was introduced.

The POST Act will provide much-needed transparency. and prevent local police from obtaining technology without public knowledge. As Patrick Henry said, “The liberties of a people never were, nor ever will be, secure when the transactions of their rulers may be concealed from them.”

The measure will also provide an avenue for concerned residents to oppose and stop the purchase of spy gear. As the saying goes, sunlight is the best disinfectant.

A broad coalition of over 100 organizations, including the Tenth Amendment Center, has pushed to get the Post Act enacted since its introduction in March 2017. The effort included dozens of meetings with council members, hundreds of phone calls, aggressive media campaigning and countless strategy sessions. The effort got a boost with the “defund the police” movement sparked by the death of George Floyd at the hands of Minneapolis police officers.

The introduction of the POST Act was part of a nationwide #TakeCTRL initiative to address surveillance at the local level.

Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. The federal government often provides grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The Electronic Frontier Foundation praised the passage of the Post Act as a big step forward in the battle against the broader surveillance state.

“With federal agencies expanding their spying programs against immigrants and political dissidents, and concern that the federal government will commandeer the surveillance programs of state and local governments, the police surveillance transparency movement continues to gain momentum on the local and state level.”

Impact on Federal Programs

Information collected by local law enforcement undoubtedly ends up in federal databases. The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S. In return, it undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

The POST Act takes an important first step toward limiting the use of surveillance technology in the city.

 


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