New York City Council Enters the Anti-Surveillance Fray

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On Thursday, June 18, 2020 the New York City Council overwhelmingly approved the Public Oversight of Surveillance Technology Act (or “POST Act”) to institute oversight regarding the New York City Police Department’s use of surveillance technologies. The measure, first introduced in February 2018, was approved by a significant enough majority (44-6) to make it veto-proof and ensure that it will become law.

Covered Technology

The Post Act defines surveillance technology as “equipment, software, or systems capable of, or used or designed for, collecting, retaining, processing, or sharing audio, video, location, thermal, biometric, or similar information, that is operated by or at the direction of the department.” Excepted technologies include routine equipment used for administrative purposes, internal department communication technologies, parking ticket devices and cameras used to “ monitor and protect the physical integrity of city infrastructure.”

Reporting Requirement

The POST Act requires the NYPD to publicly (on its website) publish a “surveillance impact and use policy” at least 90 days prior to adopting any surveillance technologies, and within 180 days following adoption of the POST Act with respect to currently deployed technologies. The policy must contain:

  • A description of the technology and the collected information,

  • Information about the rules, policies and guidelines the department will adopt around use of the technology,

  • A listing of other entities that may have access to the collected information (including any public access),

  • A description of policies, protections and safeguards adopted to protect and secure the collected information,

  • Specifics on required personnel training required for use of the technology, and

  • Copies of disparate impact/and health safety evaluations and reports relating to the technology.

Following publication of each surveillance impact and use policy, the public has 45 days to provide comments. The NYPD Commissioner is then tasked with reviewing the public comments and issuing a final report to the City Council Speaker and the NYC Mayor, as well as performing annual audits of existing surveillance technologies to uncover any misuse of such technologies and offer revisions to the applicable surveillance impact and use policies.

Conclusion

In approving the POST Act, New York City joins the growing number of municipalities legislating police use of surveillance technologies. As reported in my 2019 article, San Francisco instituted the first restriction by banning the police from using facial recognition technologies. According to the ACLU, which tracks municipal surveillance control legislation, several other California cities followed suit, as well as Seattle, WA, Nashville, TN, Yellow Springs, OH and several communities around Boston, MA. While the POST Act does not ban the use of any particular technologies, it does set a higher administrative bar for the NYPD to use any form of surveillance technology. It also requires greater transparency by the police while giving the public a role in oversight and feedback.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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