Final Report: Public Comments on NYPD Surveillance Technology Submitted by Eisenberg & Baum, LLP on Feb. 25th, 2021

Final Report

Thanks to everyone for your participation and interest in the Forums on NYPD's Use of Surveillance Technology, hosted by the AI Fairness and Data Privacy Practice Group at Eisenberg & Baum, LLP.

We appreciate the contributions of the 10 forum speakers and organizers in addition to the approximately 85 concerned citizens who shared their insights, thoughts, questions, and concerns about the NYPD's use of surveillance technology tools.

We compiled the public comments collectively gathered from both forums and the Google form, and submitted them on February 25th, the deadline mandated by the POST Act.

Our document began with an outline of the POST Act before highlighting multiple ways in which omissions and procedural deficiencies in the NYPD’s draft policies undermined the disclosures they were meant to provide.

These omissions provoke questions like the following:

  • How do these technologies work together? Thirty-six discrete technologies are described as if they are utilized independently without disclosing if or when they are deployed in tandem.
  • How many surveillance tech devices are in use throughout NYC and where are they located? If this information isn't included in policy disclosures, how then can we accurately assess the tools' impacts on individual privacy and equity?
  • Which commercial vendors does the NYPD purchase these technologies from and maintain operations with? Relatedly, detailed funding disclosures should be provided for each.

We closed this section by pointing out other cities -- including but not limited to Seattle, Oakland, and San Francisco -- that provide a model for improving these procedural deficiencies.

Comments from our first forum with speakers Renée Cummings, Albert Fox Cahn, Ke Yang, Reyna Lubin, and Phillip C. Hamilton, underscored concerns related to the following:

  • Accountability: e.g. “Following the model of Oakland Privacy Commission, there should be an independent board composed of residents, law enforcement, and community activists who have approval authority over the surveillance technology being used.”
  • Transparency: e.g. “NYPD should regularly submit its surveillance technology to independent, third-party monitors and the result should be made public," and, "The comprehensive audit should include technological (data sets, models, implementation), socio-economic, financial, internal training and policy implementation procedures within the NYPD, and audit of all vendors and sub-vendors who develop and update the technology."
  • Public Education, Right-to-Know, and Training: e.g. “FOIL requests seeking access to information about the use, impact, and deployment of surveillance technology should be expedited and maximize the information given to the public, and NYPD should not issue rote-denials on baseless rationales such as revealing investigative techniques, inter- / intra- agency materials, and more.”
  • Technology, Data Sets, and Accuracy: e.g. “NYPD with public stakeholders should focus on developing an 'accuracy threshold' and eradicate and/or pause the use of any technology that demonstrates biased inaccuracies in certain populations especially along racial, gender lines.”
  • Criminal Justice: “Any use of surveillance technology involved in a criminal case should be disclosed to the criminal defendant and counsel as well as the prosecution.”

Comments from our second forum with speakers Laura Hecht-Felella and Brandon del Pozo zeroed in on the following issues:

  • Third-Party Audits: e.g. “Audit should go beyond just the technology itself, but address the effectiveness, use, and impact of the technology.”
  • Safeguards and Civil Society Oversight: e.g. “Granting a private right of action that allows individual civilians to take action to hold the police accountable for abuse of surveillance technology that encroaches on civil rights.”
  • Establishing a "serious crime" threshold for surveillance tech: e.g. “If the NYPD came to lift fingerprints at the scene of every crime, it would be excessive and invasive – similarly, we should not be using technology for minor infractions which gives the government the capacity to invade into our private spheres in life.”
  • Financial Transparency between tech companies and NYPD: e.g. “NDAs should not be used. The research and development of the technology should be revealed to the scientific community and the public for review after a certain time period, akin to how the NIH and medical science community discloses their research and data to the science community after a period of time. The protected interest in surveillance technology should be the public good, and not the financial interest of tech companies.”
  • Data Use and Storage Oversight: e.g. “Should we shift our focus from looking at here at 36 technologies to how the technologies collect data and how that data is monetized by use of these technologies?”
  • Comprehensive Oversight: e.g. “NYPD should explore a comprehensive approach to enhancing oversight ‘through the utilization of an accountability assessment tool that allows an organization to take stock of its surveillance operations, and through the creation of multi-disciplinary Technoethics Boards that could be worked into the process of building and applying surveillance programs.’”
  • Need for NYPD to Gain Public Trust: e.g. “There is a general mistrust toward the NYPD that is further compounded by mistrust towards the use of technology in policing. But there are crimes that can be prevented if the police worked in better concert with the public and they have not.”
  • Legal Responsibility and Private Right of Action: e.g. “The names of vendors, software firms, and contractors, as well as their roles in developing and deploying the surveillance technology, should be disclosed.”

The final three pages addressed our concerns about what additional information should be disclosed about the use and impact of some of the individual surveillance technologies, like how many cell-site simulators are deployed in each zip code, whether or not images extracted from police body cameras are used in the facial recognition database, and the fact that "DAS comprises more than 20,000 CCTV cameras, police-worn body cameras, license plate readers, radiation scanners, drones, 911 calls, and unknown commercial and interagency intelligence databases, and has real-time tracking capabilities – what oversight is in place for such a mass surveillance system?"

Download our final report and check back for updates and developments on the NYPD’s policies on the use and impact of surveillance technology tools, due to be finalized and released by April 11, 2021.

Final Report: NYPD Surveillance Technology Public Comments [PDF]

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