NYPD may be violating police surveillance transparency law

Black Lives Matter protests and a reckoning on policing in the summer of 2020 brought a wave of police reform bills in New York. Among them was the Public Oversight of Surveillance Technology (POST) Act, a once-stalled bill to require the New York City Police Department to disclose and describe the surveillance technology it uses.

The bill, which had faced resistance from the NYPD for years, eventually racked up three dozen co-sponsors in the New York City Council and passed easily in the largely Democratic body, with the support of civil liberties and privacy advocates who called it an important first step towards transparency.

But three years later after its passage, some supporters of the POST Act – and the Office of the Inspector General for the NYPD – say that the police department is not properly complying with the transparency law. The latest example of this alleged non-compliance is the surprise unveiling of new surveillance tools – including four-legged robots and a GPS tracker projectile launcher – by Mayor Eric Adams’ administration earlier this week.

The POST Act, sponsored by then-City Council Member (now Bronx Borough President) Vanessa Gibson, requires the NYPD to “propose a surveillance technology impact and use policy and post such proposal on the department’s website, at least 90 days prior to the use of any new surveillance technology.” For technologies already in use, the NYPD had 180 days from the time the law was effective to post the policies. The law requires the department to consider public comments on the policies after they’re posted, but it doesn’t regulate how the department uses any of its technology.

The first POST Act policies were finalized by the NYPD in April 2021. Rather than issuing policies for each of the specific surveillance tools it uses, however, the department tended to release policies for broader categories of technologies – such as “license plate readers,” “thermographic cameras” and “GPS tracking devices.” There are a few exceptions to this; ShotSpotter, a gun detection system made by a firm of the same name, has its own impact and use policy. But when it comes to technologies like “situational awareness cameras,” for example, the NYPD groups together different types of camera-equipped tools with different capabilities made by different companies, all under the same policy.

In a report released in November 2022, the Office of the Inspector General for the NYPD said that this approach runs counter to the actual intent of the POST Act. “It is OIG-NYPD’s position that the POST Act does in fact require an (impact and use policy) for each surveillance technology,” the report read. “NYPD’s interpretation, which allows grouping of several technologies under a single IUP, is contrary to the intent of the POST Act.”

The OIG report warned that this approach could allow the department to get around the requirement to release new policies when it acquires new tools by grouping those tools into one of the already-existing broad categories of technologies – which would allow the NYPD to start using the new tools immediately, rather than waiting until after a 90-day period which includes time for public comment. “This allows (the) NYPD to avoid the public notification process – a critical aspect of the POST Act – and thus cannot have been the intent of the legislation,” the report said.

That is exactly what appears to have happened with the four-legged robots and other new police surveillance technologies introduced this week. 

On Tuesday, Mayor Eric Adams held a press conference in Times Square to unveil a trio of new surveillance tools that will be piloted by the NYPD: the K5 Autonomous Security Robot, which will be deployed in a Times Square subway station; the StarChase system that can shoot GPS tags at fleeing cars; and the return of “Digidog,” a four-legged robot that was scrapped by the previous administration after public criticism. In a press release, the department said that the department would begin using K5 and the “Digidog” this summer. 

The Adams administration has said that these tools can be used to keep officers and civilians safe, and Adams has not been shy about his interest in exploring new technologies to pursue both goals. But rather than releasing new impact and use policies that describe exactly what these tools are capable of and how they’ll be used, the NYPD simply updated existing policies with brief addendums. “What we saw happening yesterday was exactly what they predicted would happen,” Michael Sisitzky, assistant policy director at the New York Civil Liberties Union, said the day after the press conference.

The NYPD insists that it is following the requirements of the POST Act. It said that the four-legged robots and other new tools did not require new impact and use policies or public comment periods because they were just “enhancements” to technologies already in use. “The NYPD currently uses situational awareness cameras and GPS technologies, which were the subject of preexisting POST Act impact and use policies,”  a spokesperson for the NYPD’s Deputy Commissioner Public Information said in a statement. “The technologies announced today are enhancements to these existing technologies and as such, amendments were made to existing POST Act impact and use policies. The POST Act does not require the 90-day timeframe for addendums to existing surveillance technology impact and use policies.”

The department’s use of the word “enhancement” is key. The POST Act states that when the NYPD “seeks to acquire or acquires enhancements to surveillance technology or uses such surveillance technology for a purpose or in a manner not previously disclosed,” then the existing impact and use policy should receive an addendum.

The OIG’s 2022 report mentioned other issues with the department’s compliance, like the use of generic and general language in the impact and use policies. Because of these and other issues it identified, the OIG said that it wasn’t able to conduct an audit of the impact and use policies, as the POST Act requires. Instead, their report included 15 recommendations for the NYPD. The first of those recommendations was that the NYPD issue an impact and use policies for “each individual surveillance technology, as opposed to continuing its practice of grouping similar technologies under a single IUP.”

In a separate report released last month, the OIG noted that the NYPD had rejected all but one of those recommendations. Their 15th recommendation – for the NYPD to issue press releases when it publishes new use policies – is marked as “under consideration” by the department.

As the NYPD takes a fundamentally different approach to the POST Act than what some of its supporters had in mind and the OIG’s interpretation, it’s unclear whether lawmakers will act to tighten the reporting requirements. 

Bronx Borough President Vanessa Gibson did not immediately respond to a request for comment on whether she thought the law she sponsored was being properly followed by the NYPD.

Asked about the POST Act shortly after the new tools were announced on Tuesday, City Council Speaker Adrienne Adams said that the council would look at the issue of compliance. “We are definitely going to take a look at the POST Act to figure that part out,” she said. A spokesperson for the speaker declined to comment further on Wednesday.

New York City Comptroller Brad Lander, who was a co-sponsor of the bill while he was in the City Council, said on Thursday that it’s up to the council to decide whether to introduce new legislation. Lander said that while new technologies can keep people safe, it’s important to have guardrails and transparency around what tools are being used. “DNA (analysis) gives such a good example of why you have to have the right guardrails in place. Used appropriately, DNA is a very valuable and important technology for identifying perpetrators of crime and exonerating people who did not commit crime,” Lander said. “But you better put the right guardrails around it, because used inappropriately, the collection of everyone's DNA is a dystopian hellscape.”

Lander said that he does not think the NYPD is currently complying with the POST Act. “It’s not a heavy handed law,” Lander said. “Even after the public comment period it provides, the commissioner makes the decision about what to use. But to neglect even that conversation, I believe, is dangerous. It reflects either a disregard or a contempt for even a minimal amount of public dialogue about guardrails.” 

New legislation might be on the way. Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, told City & State that his group is part of a coalition that is drafting bills that would, among other things, codify all of the recommendations that the OIG made to the NYPD – though he declined to say which City Council members were working on these bills. 

Cahn added that there is growing momentum in the council for regulating uses of surveillance technology. He pointed to a hearing scheduled for later this month on the use of biometric identification systems, where two bills limiting the use of facial recognition and other biometric systems by businesses and residential buildings – sponsored by Council Members Shahana Hanif and Carlina Rivera – will be considered. Public Advocate Jumaane Williams has also advocated for banning government use of facial recognition, including by law enforcement. Williams did not respond to a request for comment, but Cahn said that he hopes to see a bill move forward soon.

“The POST Act was always just intended to be a first step towards pushing back against surveillance abuses,” he said.