A closer look at New York City's landmark POST Act—a law the NYPD and Bill de Blasio spent three years trying to quash
On February 16, 2016, Travis Browne was walking northbound on Brooklyn’s Ocean Avenue when he was shot in the back. He told investigators that he believed a man from his neighborhood, “Ice,” was the culprit—the two were in a fistfight earlier that day. So the NYPD issued an arrest warrant for Ice.
According to court documents, Detective Gordon Brown, of the NYPD’s warrant squad, sought to arrest Ice, visiting all known addresses linked to the 25-year-old Brooklyn native. But after months of searching, he couldn’t find his suspect.
Exhausting the in-person searches, the detective, along with a Brooklyn ADA, decided to use a cell-site simulator (say that ten times fast), also known as a Stingray. Stingrays act as portable cellular towers designed to triangulate a mobile phone’s location.
With the Stingray, law enforcement located and arrested Ice. Following a successful identification lineup, officers charged him with second degree attempted murder, a crime that carries a prison sentence of 20 years to life in New York State.
About a year into Ice’s court case, a New York judge ruled the NYPD’s use of the Stingray technology, in this instance, to be unconstitutional. Though an earlier judge authorized a pen register to collect phone data, the later court ruled that the order did not extend to Stingray technology.
In a remarkable coincidence, just five days before Mr. Browne was shot, the NYCLU received, through a FOIL request, a deluge of documents detailing how the NYPD used Stingray technology for almost a decade with no public oversight and no uniform judiciary standard. Over eight years—from 2008 to 2016—the NYPD authorized more than 1,000 Stingray surveillance requests—and only eight years later was the public learning about this surveillance technology. Think about that: for eight years the NYPD was furtively lifting our private information from our phones.
The court appeal and judge’s ruling in Ice’s case reflect the growing cleavages between the criminal justice system and the NYPD’s surveillance infrastructure: the law cannot keep pace with the creeping bounds and development of law enforcement’s spy technology.
But lawmakers, legal experts, and activists have taken the first step towards narrowing the chasm in New York City. This month, the New York City Council voted overwhelmingly to pass the Public Oversight of Surveillance Technology (POST) Act. According to a statement from the New York City Council, the new law requires the NYPD to “publicly disclose information on its surveillance technology tools and to develop policies on how it uses those tools. The bill would also require annual oversight of the NYPD’s use of surveillance technology to ensure compliance with those policies.”
“We are seeing a change in the way that we use technology, and our laws need to adequately reflect those changes,” Councilmember Vanessa Gibson, who co-sponsored the legislation, told Document. “The POST Act will provide transparency and oversight [by] requiring the NYPD to disclose their use of surveillance technology on New Yorkers during a time in which residents are asking for greater accountability from government and law enforcement.”
But the bill is just the first step in what the law’s architects hope is meaningful, if incremental, reform of public surveillance.
“The POST Act was never meant to be a solution,” says Rashida Richardson, Policy Director at The AI Now Institute and architect of the POST Act. “It’s more of a first step in diagnosing the problem, so that way we can understand what comprehensive or even structural reform should look like. Because without fully understanding the surveillance infrastructure and the levels of obfuscation that the NYPD, and to some extent the Mayor’s Office, engage in, you’re more likely to create watered-down reform.”
“For years, the [NYPD] has sought to hide these destructive and discriminatory systems from New Yorkers,” says Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), a non-profit that has been instrumental in getting the bill passed. “Now we’ll begin to see how New Yorkers are truly tracked. But transparency is just the first step, and once we see what systems the NYPD abuses, we’ll begin to outlaw these tools.”
“Public engagement on this issue changed the whole political trajectory of the bill and made passage and de Blasio signing it possible.”
In New York, as in other cities across the nation, the George Floyd protests have led to renewed calls for police reform. The POST Act is one law in a much larger and bundled wave of reform legislation—legislation to ban use of chokeholds by NYPD officers, require officers to make their badge numbers visible, and a bill that reaffirms New Yorkers’ right to record police activity.
Richardson and her colleagues started crafting the legislation in 2016, after California cities passed laws to reform or oversee the police’s surveillance technology in the state.
In New York City, the POST Act is designed to accomplish several goals. First, advocates hope to uncover any current and future surveillance technologies that might run afoul of the balance of public safety and personal privacy. Second, the bill will reveal how expensive this technology is. Third, the bill will shed light on the NYPD’s internal policies and practices related to surveillance technology (or whether officers are adequately trained in using them). Finally, if the law is truly effective, it will reveal, for the first time, the NYPD’s relationship to data collection and sharing.
If those are the bill’s legal, formal qualities, advocates of the bill anticipate it will educate the public. Real reform—curtailment of surveillance technology, independent oversight—will only cement through sustained public pressure.
For years, defense attorneys and advocates have struggled to wage war on the NYPD’s surveillance programs in an environment of information asymmetry—it’s difficult to mount a challenge against an opaque surveillance state. For instance, many advocates are concerned about the NYPD’s data collection and sharing programs—the public knows almost nothing about what data is collected, where it is stored, and what other agencies it may be shared with. In California, law enforcement in “sanctuary cities” were indirectly sharing information with the Immigration and Customs Enforcement (ICE). In New York, public defenders and advocates already suspect that the NYPD is sharing information with ICE—intentionally or otherwise. And that can have profound implications for undocumented New Yorkers.
In 2017, Richardson and the POST Act’s other legal architects, found a bill sponsor: Councilmember Daniel Garodnick. Garodnick was in the final year of his term on the council. With no fear of an electoral backlash, he introduced the bill into the legislative process. Councilmember Gibson co-sponsored the legislation. Gibson knew the bill would face vociferous opposition from the NYPD and Mayor’s Office, and privately worried it wouldn’t pass in the City Council.
Publicly, Mayor Bill de Blasio was quiet on the bill. But through backchanneling, the mayor made clear to advocates and councilmembers that he would not support the POST Act, going as far as to say that he would veto it, according to one source with close knowledge of the events. The mayor didn’t have the political capital. So, supporting the POST Act wasn’t a politically viable move; sign the bill, and he faced even more consternation from the NYPD’s already fractious and organized coalition. In the end, mayor didn’t have to worry about a public food fight. With the bill in its early stages, the NYPD went on a public relations offensive.
“September 11 forever changed how the NYPD views its mission and the world around us,” John Miller, Deputy Commissioner of the NYPD’s Intelligence and Counterterrorism unit, testified before the City Council in June 2017. “[The POST Act] would require the Police Department to provide an impact and use report, and disseminate it online, for each piece of equipment deemed ‘surveillance technology.’”
Miller bristled on behalf of the Police Department. He worried, ostensibly, that any disclosure or revelation of the NYPD’s surveillance technology would give terrorists an advantage in attacking New York. His testimony invoked Hezbollah, al-Qaeda, ISIS, and lone-wolf actors as cause for concern and reason to drop the bill.
Three days after his testimony, Miller took to the airwaves to bash the bill, telling one radio host, “It would be a law that would endanger people because it would help criminals and terrorists, but it would also endanger police officers because it would allow criminals to learn way too much way too easily. It’s one-stop shopping.” He added, “The activists have in their mind this idea that police departments in cities like New York run massive surveillance programs targeting innocent civilians for no reason…now that’s nutty. I mean why would we do that? How could we do that?”
Then, on October 31, 2017, 29-year-old Sayfullo Habibullaevic Saipov drove a truck down a bike path in lower Manhattan, killing eight civilians. Mr. de Blasio called it an act of terrorism. And with terrorism back in the news cycle, the POST Act died before it could even reach a floor vote.
“When people hear ‘terrorism’ or they hear [a law is] only going to be used against violent gangs, they sort of tune out and assume that it’s just being used to go after the most notorious criminals,” says Ángel Díaz, a liberty and national security expert at the Brennan Center for Justice. “But [this technology] is being used increasingly for ordinary purposes, like trying to catch a guy who stole a six-pack of beer at a CVS, or by ICE to find undocumented people whose only crime was entering the country after being deported once.”
Other advocates are fearful that the technology might be used to monitor, surveil, and infiltrate political activity in New York. In 2014, a group of Black Lives Matters advocates suspected the NYPD was not only photographing Black Lives Matters protesters but also conducting surveillance of their cell phones. In June 2020, the NYPD began aerial surveillance of protesters in New York City, using helicopters and drones.
“We’ve already seen the way that the NYPD engages in disparately-impacting surveillance practices,” says nash Sheard, Associate Director of Community Organizing at the Electronic Frontier Foundation (EFF), a nonprofit organization that defends against civil liberties abuses in the digital world. “We already know in 1971 there was a lawsuit filed that resulted in the Handschu agreement, after the NYPD’s Red Squad began surveilling the Black Panthers. More recently, post-9/11, we saw the NYPD surveil mosques and other places frequented by Muslim and Arab communities—so we already know the NYPD has a long and documented history of surveillance based on race, religion, and ethnicity.”
For decades, the Handschu agreement was one of the only stop-gap measures in curbing the NYPD’s targeted surveillance of civilian political organizations and activity. In 2002, in the aftermath of 9/11, the NYPD sought to roll back large parts of it. So the courts relaxed the Handschu agreement, authorizing an expansive NYPD surveillance program that has extended far beyond the writ of counter-terrorism. Shortly after Handschu was rolled back, the NYPD began to monitor anti-war protesters.
As surveillance technology evolves, New Yorkers will have to balance surveillance power with personal freedoms. In addition to license plate readers, x-ray vans, and stingrays, the NYPD now has a unit dedicated to operating face recognition systems—but it isn’t just being used in the fight against terrorism.
(The Brennan Center for Justice has compiled a list of all known NYPD surveillance technologies, which can be accessed here.)
“There’s been an explosion in face recognition in the past year and a half,” says Sidney Thaxter, a defense attorney in The Bronx Defenders’ Digital Forensics Unit. “In 2016, our office probably had two cases [involving facial recognition technology]. Now it seems to be popping up everywhere, especially in shoplifting cases. It’s being used against protesters and alleged shoplifters rather than to fight terrorism and all of the [other] reasons it was ostensibly designed for.
“If it turns out that these technologies are all being used for low to mid-level crimes more than in terrorism cases, maybe we decide the fact that it’s being used against protesters, the chilling of free speech, and the general loss of privacies makes the technology not worthwhile. The POST Act will hopefully specify the technologies used and review balancing the value of technology against the public’s privacy interests.” (Though the POST Act is the first step in opening the public’s eyes to the NYPD’s surveillance technologies—and it’s abuses—many advocates are worried that the NYPD will stifle the Inspector General’s Office’s office to effectively enact the law.)
When Councilmember Gibson re-introduced the POST Act last month, the bill rode the wave of reform demanded by public outrage at the death of George Floyd. A beachhead of 38 co-sponsors ensured that the bill sailed into law by a vote of 44 to 6. This time there would be no backchanneling or debate. Mayor de Blasio signed the bill into law, with immediate effect, on July 15.
“I honestly think the political climate right now and the uprisings have really pushed city councilmembers to actually be more supportive of criminal justice reform and transparency efforts,” Richardson told me over the phone. “Public engagement on this issue changed the whole political trajectory of the bill and made passage and de Blasio signing it possible.
“It took a lot of cajoling to get people to co-sponsor or commit to a vote, which I think says something about the state of reform in New York City. People assume we’re a lot more progressive than we are. But it actually takes a pandemic, economic collapse, and physical uprising to even push progressive-seeming councilmembers to do the right thing.”
nash Sheard, at EFF, agrees that the POST Act’s passing is a direct result of the protests, and preaches that privacy protection should concern everyone. “You don’t have to be part of the ‘Defund The Police’ chorus to believe that we need to strike a balance between public safety and protection of civil liberties,” he told me by phone. “But we’re not able to strike that balance if we don’t have the information that we need to actively engage in the conversation.”