New York City is considering a range of legislative measures to increase civilian control over the New York Police Department (NYPD). Earlier this year, EFF endorsed the proposed Public Oversight of Surveillance Technology (POST) Act to increase transparency into the NYPD’s acquisition of surveillance technology, such as license plate readers and cell site simulators. Now EFF also supports the proposed Right to Know Act to guard the digital rights of New Yorkers and visitors impacted by so-called “consent” searches of their digital devices during stop and frisks.
The NYPD is the nation’s largest police department, with global operations and an unfortunately long history of acting outside its authority. Given its size and presence among domestic law enforcement agencies, NYPD policies can set national norms, which are why its abuses—and policies enacted to curtail them—are important not only to New Yorkers but all Americans.
In New York, the frequency of racially disparate detentions and searches of innocent New Yorkers exploded under an era of “broken windows policing” championed by former police commissioner Bill Bratton. (Bratton also worked in similar capacities in Boston and in Los Angeles, where his record prompted sustained criticism from local residents and communities.) “Broken windows policing” encourages police to aggressively pursue low-level crimes, driving NYPD officers to issue 1.8 million summonses between 2010 and 2015 for quality-of-life misdemeanors and infractions such as public drinking.
The “broken windows” paradigm often places police in a position to challenge, or even violate, constitutional limits on their authority.
This has grown especially apparent in the stop-and-frisk program used by the NYPD. The constitutional authorization for stopping and frisking individuals dates to 1968, when the Supreme Court in Terry v. Ohio allowed brief detentions of civilians based on reasonable suspicion of crime, and pat-down frisks of detained civilians based on reasonable suspicion of concealed weapon possession.
Until 2011, the Department’s stop-and-frisk practices escalated dramatically, attracting widespread criticism from figures including the current Mayor, the city’s Public Advocate, and even a former New York State Attorney General. In 2013, a federal judge ruled that the NYPD’s stop-and-frisk practices reflected impermissible racial bias, and ordered an end to the Department’s disregard for constitutional limits on its authority.
Included in the items searched by NYPD officers during stops and frisks are portable electronic tools including cellular phones, tablets, and laptops. The rising tide of digital device searches around the country prompted the Supreme Court in 2014 to decide Riley v. California, limiting law enforcement authority to search cell phones without a warrant (even incident to arrest, when the state’s power over an individual stands at its zenith). The Riley court was clear that a judicial warrant is required for a mandatory search of a cell phone because they can reveal massive quantities of an individual’s most sensitive information, including communications, associations, locations, and photographs.
Even though Riley prohibited compulsory warrantless searches of digital devices incident to arrest, warrantless searches of electronic devices still continue, enabled by waivers of Fourth Amendment rights prompted by police requests for so-called “consent” to search. It is consent searches that the Right to Know Act aims to subject to appropriate limits.
Police encounters are inherently intimidating, especially for youth of color. When an armed police officer demands permission to search an electronic device, many members of the public may not realize they have the right to say “no.” Others are aware of their theoretical rights but legitimately fear the consequences of asserting them. The Right to Know Act would limit this end-run around the privacy rights recognized in Riley in two important ways.
First, the Act would require police seeking consent to execute a search of digital devices (or their persons, vehicles, other belongings, and homes) to first notify civilians that they have the right to refuse consent. This requirement to provide notice of rights would operate similarly to Miranda warnings, but at an earlier stage in the investigative process.
Short of creating any new rights, this provision would simply require that civilians receive notice of their existing rights. Such notice is neither difficult to provide, nor burdensome on police officers. Indeed, as recognized by the Supreme Court in Miranda, notice of constitutionally guaranteed rights is crucial to prevent waivers that are neither informed nor voluntary.
In addition, the Act would require officers “to obtain objective proof that an individual gave informed and voluntary consent to a search.” This requirement is important to address the frequent occurrence when police claim to have been granted consent but investigative targets claim otherwise. By requiring objective proof of consent, the Right to Know Act will help restore trust in law enforcement.
The Civilian Complaint Review Board (CCRB) recently documented systemic violations by the Department, identifying hundreds of unlawful searches entirely disregarding legal requirements to secure either a judicial warrant or consent to justify a search. These pervasive violations of constitutional limits on the Department’s search authority, coupled with the unfortunate phenomenon of some police officers making false statements in other contexts, suggest the need for the Act’s requirements to protect New Yorkers and ensure the vitality of their rights.
In short, the Right to Know Act would place important limits on consent searches of civilians’ digital devices. We hope that in the future, the New York City Council will enact additional protections of digital liberty, including compilation and publication of demographic statistics about exactly whom the NYPD is subjecting to digital consent searches, and ultimately a ban on consent searches of digital devices. For now, the Right to Know Act is an excellent start.