Police Push Back on Surveillance Oversight Bill

A city council bill that would subject the New York City Police Department to increased public disclosure requirements regarding its use of surveillance technologies drew intense criticism last week from top NYPD officials, who claimed that the legislation would endanger officers and members of the public.

The Public Oversight of Surveillance Technology Act, introduced by Council Members Dan Garodnick and Vanessa Gibson in March, would require comprehensive public reporting of the police department’s surveillance capabilities, including disclosure of specific technologies used by police and internal policies regarding their use.

Supporters say the bill will help citizens better understand the NYPD’s use of surveillance tools and allow for a more robust and informed public debate about the privacy and safety concerns they present. But at a contentious June 14 hearing at City Hall, John Miller, the NYPD’s top counterterrorism official, said the legislation “would create an effective blueprint for those seeking to do harm.”

In the years after the 9/11 attacks, the NYPD adopted a number of controversial surveillance tactics that later came to light through press reports and legal cases brought by civil liberties groups. In February 2016, the NYPD confirmed, in response to a Freedom of Information Law request, that it uses cell site simulators, also known as Stingrays, which allow police to track the location of cellphone users and are capable, in some cases, of intercepting their communications. (NYPD Deputy Commissioner for Legal Matters Larry Byrne said at the hearing that the NYPD does not intercept the content of communications using cell site simulators.) The NYPD also uses x-ray vans known as “backscatters” that can be used to see through walls and vehicles, and which critics say may expose bystanders to harmful radiation.

Byrne said that the NYPD is already subject to sufficient oversight performed under the auspices of the court system, the department’s inspector general, and court-ordered guidelines that require civilian monitoring, which were strengthened in recent years after it was revealed that the NYPD had targeted Muslims in a years-long surveillance program that, according to NYPD officials in court testimony first reported by the Associated Press, never resulted in a terrorism investigation or even a single lead.

Much of the NYPD officials’ criticism centered on the bill’s definition of “surveillance technology,” which they said is overly broad and would require the disclosure of information that would be useful to terrorists and other criminals. As drafted, the bill defines surveillance technology as “equipment, software, or system capable of, or used or designed for, collecting, retaining, processing, or sharing audio, video, location, thermal, biometric, or similar information, that is operated by or at the direction of the department,” and would require the NYPD to publicly disclose the capabilities of such tools and the rules governing their use. In practice, according to Miller, these requirements would be an “invaluable roadmap to terrorists,” who he said routinely adjust their plans based on their knowledge of law enforcement tactics and capabilities.

“The way this bill is written right now, it would be asking us to, say, describe the manufacture type and capabilities of recording devices worn by undercover officers or other human sources who were in the middle of an ongoing terrorist plot,” he said. “That would be insane.”

The POST Act was based, in part, on similar surveillance oversight legislation that is under consideration or has recently been passed elsewhere, including in Seattle, San Francisco, Oakland, and Santa Clara County, California.

Miller, who described the NYPD as “the most transparent municipal police department in the world,” said that New York City’s situation warrants a different approach. “While legislation similar to this proposal has been enacted in other jurisdictions, it is fair to say that none of these jurisdictions are (sic) the number one target for terrorists worldwide,” he said.

“This proposal would require us to advertise sensitive technologies that criminals and terrorists do not fully understand,” Miller said. “It would require the police department to list them all in one place, describe how they work, what their limitations are that we place upon them and our use of them. In effect, it would create a one-stop shopping guide to understanding these tools and how to thwart them for criminal elements and terrorists across the nation or the world.”

Garodnick suggested that rather than acting as a guide for terrorists, the increased disclosure required under the bill could have the opposite effect, discouraging potential criminals in the same way an officer on a street corner might.

Garodnick expressed willingness to work with law enforcement officials to revise the legislation, but said that the proposal would not interfere with the NYPD’s ability to keep New Yorkers safe. “We carefully crafted the bill so that it does not require that the police department disclose operational details regarding when and where they employ its tools,” Garodnick said.

“We need to be able to understand what technologies are being used in our name,” he said.