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NY City Council Measure Would Require Transparency for NYPD Electronic Surveillance

DEEPLINKS BLOG
March 4, 2017

Two members of the New York City Council introduced a bill on Wednesday, March 1 to enact long overdue transparency rules for the NYPD’s procurement and deployment of electronic surveillance technology. It is the latest in a series of similar proposals around the country modeled on a Silicon Valley law adopted in 2016, which was crafted to impose municipal checks  and balances to constrain on executive power and address the metastasis of surveillance.

The Public Oversight of Surveillance Technology (POST) Act, introduced by councilmembers Dan Garodnick and Vanessa Gibson, would require important disclosures by the NYPD before it buys electronic surveillance gear. It would also require an opportunity for public comment on its proposed use policies. 

Transparency, relative to the prevailing practice of secret procurement and unaccountable use, could be effectively transformative.

In particular, the POST Act would require the NYPD to publish a use policy for each electronic surveillance platform that it uses, or that it seeks to use in the future. The policy must explain the applicable supervisory guidelines and potential requirements for court authorization, as well as "[s]afeguards or security measures designed to protect…from unauthorized access" of the sort that has plagued federal surveillance efforts. Each platform’s use policy must also include parameters for data retention, access, use, and dissemination, as well as reports or tests about the technology’s potential impact on health and safety.

Informed by the history of executive circumvention of legal limits on surveillance authorities, the POST Act also provides for ongoing auditing by the NYPD's inspector general. That office was created three years ago when the Council—responding to mounting concerns about police accountability—overrode a veto by then Mayor Michael Bloomberg, who sought to prevent the Inspector General’s office from being established in the first place.

Because of separation of powers principles embedded in the New York State constitution, NYC's POST act is less demanding than the Silicon Valley law on which it was based. Specifically, the NYC proposal lacks a legislative veto over proposed surveillance platforms. The transparency rules proposed in NYC would, however, represent a big step forward from the current baseline.

Transparency, relative to the prevailing practice of secret procurement and unaccountable use, could be effectively transformative. Noting a history of secrecy precluding effective oversight by Councilmembers, Faiza Patel & Michael Price from the Brennan Center for Justice at NYU law school explain:

The POST Act is sensitive to national security and public safety needs and does not require the police to stop using cutting-edge tools. Nor does the bill undermine operational secrecy.

It simply requires disclosure of big-picture information about new technologies and their permissible uses — before they hit the street….

New York needs greater transparency, oversight and democratic accountability for local policing. The POST Act is an essential step in that direction that will promote both public safety and the rights of every New Yorker.

Beyond helping secure the rights of New Yorkers, the POST Act could also embolden reform in Congress, which has settled for legislating in the dark by repeatedly authorizing domestic intelligence powers without conducting meaningful oversight.

With a key statutory pillar of the NSA’s Internet spying programs set to expire at the end of 2017, municipal campaigns challenging the ubiquity of surveillance are especially timely this year. As the legislative overseers of the nation’s largest police department, the New York City Council will have a chance to show Congress how to do its job.

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