February 25, 2021

Commissioner Dermot Shea Police Department 1 Police Plaza New York, NY 10038

RE: NYPD’s Proposed surveillance technology impact and use policies

Dear Commissioner Shea,

Brooklyn Defender Services submits these comments to the NYPD’s proposed surveillance technology impact and use policies, published January 11, 2021. For the reasons set forth below, we strongly oppose adoption of the proposed policies, which fail to comply with the POST Act.

New York City enacted the POST Act last summer amidst history’s largest public uprising against the racism endemic to American policing. Although the protests arose out of the murder of George Floyd, they targeted fundamental issues with policing that extend far beyond the failures of the Minneapolis Police Department. Across the country, the protests highlighted the connection between police departments’ racism, violence, and lack of accountability and the failure of public institutions to oversee the police, to exercise responsible financial oversight of police budgets and spending, and to ensure that the police are accountable to communities.

Here in New York, one local consequence of leaving the NYPD to govern itself was the Department’s development and operation of a secretive, sophisticated, and vast surveillance network. Though largely operating in the dark, the breadth of the NYPD’s domestic surveillance apparatus could be glimpsed periodically through public information request litigation, investigative reporting, and occasional inadvertent disclosures. Those intermittent insights point to a decades-long project to develop technologies in New York with two distinguishing features: (1) the ability to indiscriminately aggregate all available information about New Yorkers paired with (2) a concentrated effort to use that information to surveil, arrest, and prosecute predominately Black and brown people.

The City Council’s adoption of the POST Act was a first step toward bringing the NYPD’s surveillance network out of the shadows. The Act imposes a straightforward requirement that the NYPD produce a surveillance impact and use policy for each of the surveillance technologies it operates. The surveillance policies must include basic information about the NYPD’s surveillance tools and the information they gather about New Yorkers, including how the Department uses the

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

technology, who has access to the information the technology collects, and the policies that have been put in place to eliminate the racially disparate impacts that have become synonymous with police surveillance. Armed with this information, the City Council and the public can begin the process of deciding whether the NYPD’s surveillance programs are consistent with our communities’ values.

Against this backdrop, it is deeply concerning that the NYPD has chosen not to comply with the POST Act. Brooklyn Defender Services submits these comments in response to the NYPD’s proposed surveillance impact and use policies, published on January 11, 2021. For the reasons set forth below, we believe the proposed policies are a blatant effort to evade democratic accountability, maintain power, and avoid addressing the NYPD’s racist history of using unregulated technologies to surveil Black and brown New Yorkers. We call on the NYPD to redraft and resubmit its policies for public comment, and we urge the City Council to hold a public hearing and insist that the Department meet its obligations under the POST Act. Furthermore, it is abundantly clear that the NYPD cannot be trusted with the surveillance technologies at its disposal, and steps must be taken to prohibit their use by police. I. The NYPD’s proposed “policies” do not comply with the POST Act. The NYPD’s proposed surveillance impact and use policies do not come close to providing the information mandated by the POST Act. The POST Act could not be clearer in requiring the NYPD to provide certain specific categories of information about its surveillance technologies. Yet rather than meet those simple requirements, the NYPD has failed to produce policies for all of its technologies and has published a set of proposed policies for its remaining surveillance tools that are filled with copied-and-pasted stock language, misleading and false information, and easily disproven platitudes about the Department's commitment to racial equality. The proposed policies do little to inform New Yorkers about the surveillance programs carried out in their name, undermining the City Council’s effort to bring the NYPD’s surveillance apparatus out of the shadows and under democratic control. a. Key technologies are missing.

The NYPD has failed to produce proposed surveillance impact and use policies for all of its surveillance technologies. We know of at least three critical surveillance technologies or tools that are entirely absent from the NYPD’s disclosures.

First, the NYPD has not submitted a proposed policy for its Rapid DNA Testing platform, despite telling the New York Commission on Forensic Science’s DNA Subcommittee more than two years ago that the Department was developing and implementing such a platform.1 Relatedly, almost exactly one year ago, the New York City Council held a hearing on the operation of the NYPD’s rogue local DNA database and its DNA collection policies. In partnership with the Office of Chief Medical Examiner, the NYPD acknowledged using the database as an investigative tool. The NYPD’s proposed POST Act policies make no mention of DNA: no mention of Rapid DNA testing, no mention of the database, no mention of NYPD’s DNA collection practices including dragnet searches, and no mention of the NYPD’s tracking within the of whether an individual is included in the database or not.

1 Kevin Deutsch, Exclusive: NYPD Plans to Use Controversial “Rapid DNA” Technology as Early as 2019, Bronx Justice News (Feb. 22, 2019), https://bronxjusticenews.com/exclusive-nypd-plans-to-use-controversial-rapid-dna- technology-as-early-as-2019/.

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

Second, the Department has not submitted a proposed policy for the Organized Crime Database that it told the City Council it used to track groups such as the Proud Boys, Ku Klux Klan, and Hells Angels.2 Expressly questioned about its gang database and its racialized definition of “gang,” the NYPD asserted that it tracked groups like the mafia in an Organized Crime Database due to the group’s interstate ties. Leaving aside the NYPD’s non sequitur about interstate operation, the failure to include the Organized Crime Database here raises larger concerns about the absence of tools the NYPD uses through or in conjunction with federal authorities amongst its disclosed technologies.

Third, the Department has not submitted a proposed policy for its access to Securus Technologies’ Investigator Pro, THREADS, Guarded Exchange, or ICER. The City of New York’s Department of Correction clearly has a contract with Securus for the provision of phone services on Rikers Island and in the other city jail facilities. Through that contract, the City purchased a voice biometric telephone system. It is also clear that the NYPD’s “Fusion Team” has access to those Securus tools and technologies. However, none of the Department’s proposed policies discuss voice recognition, jail call monitoring, or any of Securus’s other capabilities like location monitoring for external callers. Similarly, the Department does not mention other private corporate partners, like Vigilant Solutions, Palantir, Elucd, or Clearview AI, in their proposed policies.

Under the plain terms of the POST Act, the NYPD was required to submit proposed surveillance policies for all of its surveillance technologies—even those used through or in conjunction with local or federal partners or private vendors. The NYPD must immediately release policies for these and any other surveillance technologies that do not yet have a surveillance impact and use policy. b. The proposed policies that have been issued are—at best—incomplete and misleading copy-and-paste jobs that fail to comply with the spirit and intent of the POST Act.

Of the proposed surveillance policies that the NYPD has submitted, nearly every one is filled with copied-and-pasted, boilerplate stock language that fails to provide the City Council or the public with any meaningful information about the Department’s surveillance capabilities or activities. In fact, one could be forgiven for mistaking the NYPD’s 36 proposed policies for one policy that has been published 36 separate times. This form drafting process has multiple deleterious effects: first, it elides the substantial differences amongst technologies; second, it promotes sloppiness and allows for troubling errors; and third, it omits context and ignores connectedness to avoid dealing with the true threat of big data itself.

Across widely divergent surveillance technologies, the NYPD’s policies recycle the same copied- and-pasted language. Regardless of whether the policy is for a simple handheld tape recorder or a more sophisticated Stingray cell-site simulator, the “External Entities,” “Policies and procedures relating to public access or use of the data,” “Training,” and “Disparate impacts of the impact & use policy” sections all consist of largely the same generalized language that fails to account for the technology being discussed. It defies common sense to think that the NYPD’s decision of whether to share an image taken from a CCTV camera should be guided by the same policy as its decision whether to share the far more invasive and personal information taken from a person’s

2 Nick Pinto, NYPD Added Nearly 2,500 New People to its Gang Database in the Last Year, The Intercept (June 28, 2019), https://theintercept.com/2019/06/28/nypd-gang-database-additions/.

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

cellphone, but that is exactly what the NYPD’s proposed policies suggest. The NYPD’s decision to ignore significant differences in its surveillance technologies and the rules that should govern their use speaks to the Department’s deeply troubling failure to meaningfully engage with the POST Act.

Moreover, the NYPD’s proposed policies contain a substantial amount of misleading or incomplete information. Perhaps most shockingly, the Facial Recognition, License Plate Reader, and Domain Awareness System policies each claim not to “use artificial intelligence, machine learning, or any additional biometric measuring technologies.” These statements are either false or display a strange use of language, and the NYPD must know it. Indeed, the NYPD has become one of the leading proponents of these technologies precisely because of their artificial intelligence and machine learning capabilities.3 Facial recognition and license plate readers’ reliance on complex and often opaque algorithms have also led to numerous academic studies, complaints, and proposed legislation highlighting their racial bias.4 It is simply unbelievable that the NYPD does not understand how its own facial recognition software, license plate readers, and Domain Awareness System operate, particularly in light of the concerns and criticisms that have been raised in response to the Department’s use of the technologies and the NYPD’s own public claims.5 Either the NYPD failed to catch these obvious and basic errors—or, worse, it chose to lie about three of its most troubling surveillance tools. In either case, the Facial Recognition, License Plate Reader, and Domain Awareness System policies cannot be relied on and must be rewritten and recirculated for public comment.

Incredibly, the Facial Recognition policy contains an additional error that suggests the NYPD’s proposed surveillance policies were written to check a box rather than guide and properly guide the Department’s surveillance efforts. After making the dubious claim that facial recognition software does not use artificial intelligence or machine learning, the policy goes on to state that “when an investigator obtains an image depicting the face of an unidentified suspect, victim, or witness, and intends to identify the individual using facial recognition technology, the investigator must submit a request for facial recognition analysis.” While this statement may reflect the NYPD’s nominal policy, it does not reflect the Department’s practice. As numerous media investigations and our own case experiences have demonstrated, there have been multiple instances in which NYPD officers have used backdoors to access facial recognition software without going through the process outlined in the proposed policy.6 The policy does not address

3 See 2016 Edelman Finalist NYPD, YouTube (Feb. 1, 2017), https://www.youtube.com/watch?v=dOwu4SMbVl4 (NYPD explaining at 1:30 how the Domain Awareness System uses artificial intelligence); Ryan Mac, Caroline Haskins, & Logan McDonald, Clearview’s Facial Recognition App Has Been Used by the Justice Department, ICE, Macy’s Walmart, and the NBA, BuzzFeed (Feb. 27, 2020), https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement (reporting that the NYPD “have run more than 11,000 searches, the most of any entity” despite having no policy to govern the use of the technology). 4 See Georgetown Law Center on Privacy & Technology, The Perpetual Line-Up: Unregulated Police Face Recognition in America (Oct. 18, 2016), https://www.perpetuallineup.org/findings/racial-bias (“The research that has been done [on facial recognition algorithms] … suggests that these systems do, in fact, show signs of bias.”); S. Bill S79 (Sen. Hoylman), available at: https://www.nysenate.gov/legislation/bills/2021/S79. 5 New York City Algorithms Management and Policy Officer, Implementing Executive Order 50 (2019) Summary of Agency Compliance Reporting (CY 2020), https://www1.nyc.gov/assets/ampo/downloads/pdf/AMPO-CY-2020- Agency-Compliance-Reporting.pdf. 6 See Ethan Geringer-Sameth, The NYPD’s Facial Recognition Policy Leaves A Lot of Leeway the Department Says It’s Not Using, Gotham Gazette (July 22, 2020), https://www.gothamgazette.com/city/9608-nypd-facial-recognition-

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

these incidents or explain how the Department will prevent similar incidents from happening in the future. By failing to do so, the policy makes clear that it does not reflect the realities of the NYPD’s surveillance practices.

Other policies include false or misleading statements of another dimension. The proposed ShotSpotter policy, for example, claims that ShotSpotter “collects information on the precise time, location, and acoustic data of a potential gunfire incident.” As reports have made clear, however, the technology’s accuracy is questionable as to location, acoustic data, and even the identification of a gunshot.7 Ignoring these caveats, the NYPD’s proposed policy suggests a level of precision and accuracy beyond ShotSpotter’s current capabilities.

In addition to these easily disproven misstatements, the proposed policies also omit critically important information that the City Council and the public need in order to evaluate other claims the NYPD makes throughout its policies. For example, nearly every proposed policy claims that the NYPD does not share information collected through its surveillance tools with federal immigration enforcement, but none of the policies address what information the Department shares through its data-sharing agreements with the Department of Homeland Security’s fusion centers.8 More broadly, the POST Act requires the NYPD to disclose who the Department shares its surveillance data with, but only three policies—the CCTV; Cell-site Simulators; and License Plate Reader policies—actually provide any meaningful information about the recipients of the NYPD’s data, leaving the City Council and the public to guess who else has access to our location information, social media activity, and other highly personal information the NYPD routinely collects from all of us. The NYPD cannot be allowed to pick and choose which portions of the POST Act it will honor.

The issues outlined above are not an exhaustive list of the problems with the NYPD’s proposed surveillance policies, but rather illustrations of the Department’s concerning and unacceptable rejection of the POST Act. At every turn, the NYPD made the conscious decision to disclose the least amount of information it believed it could provide without running afoul of the POST Act. In doing so, the NYPD has undermined the POST Act’s purpose of informing the legislature and the public about the surveillance activities the Department is carrying out in our name, while also asserting that the courts have a nonexistent role in oversight as well.9 And even more troubling, the NYPD demonstrated its belief that the City Council’s effort to bring transparency and democratic accountability to the Department’s vast and troubling surveillance network is illegitimate and unworthy of a serious response. The NYPD must address these failures by rewriting its proposed surveillance policies to comply with the POST Act.

policy-leeway-department-not-using-black-lives-matter-protests. See generally Clare Garvie, Georgetown Law Ctr. on Privacy & Technology, Garbage In, Garbage Out: Face Recognition on Flawed Data (2019), https://www.flawedfacedata.com/. 7 See Matt Drange, “ShotSpotter Alerts Police To Lots Of Gunfire, But Produces Few Tangible Results,” Forbes (Nov. 16, 2016), https://www.forbes.com/sites/mattdrange/2016/11/17/shotspotteralerts-police-to-lots-of-gunfire- but-produces-few-tangible-results/#729e5b13229e. 8 Department of Homeland Security, Fusion Center Locations and Contact Information, https://www.dhs.gov/fusion- center-locations-and-contact-information. 9 In 70% of the NYPD’s proposed policies, the NYPD claims: “Court authorization is not necessary in order to use [the disclosed technology].”

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

II. The NYPD’s refusal to engage with the true threat of technologically encoded racism is unacceptable.

As a public defense organization that has witnessed firsthand the devastating impacts of the New Jim Crow era’s mass incarceration and the systemic racism of America’s criminal legal system specifically on the communities we serve in Brooklyn, we are particularly troubled by the proposed surveillance policies’ complete failure to engage with the threat that the NYPD’s surveillance technologies pose to Black and brown New Yorkers.

Every proposed surveillance policy contains the same unpersuasive boilerplate claim that the policy will “mitigate the risk of impartial and biased law enforcement” and that “[t]he NYPD is committed to the impartial enforcement of the law and to the protection of constitutional rights.” The NYPD’s repetition of this claim does not make it true. Not only does the claim fail to meet the POST Act’s requirement that the NYPD address the racial inequities created by its surveillance technologies, but it also demonstrates the Department’s failure to think critically about how it will address, reduce, and eliminate the racism inherent in its current surveillance practices.

The NYPD’s professed commitment to so-called impartial law enforcement is insufficient under the POST Act because it fundamentally misunderstands the necessity of the anti-racist lens and the meaning of disparate impact.

The Department’s proposed policies ignore the different ways surveillance technologies are racially biased.10 For example, one form of racial bias associated with surveillance technologies occurs because the technology’s programming and development itself has rendered it inherently biased against Black and brown people. This bias can either emanate from the invisibility of Black and brown communities or the hyper-visibility of those same communities. A prime example of the invisibility effect has been facial recognition software. Study after study has demonstrated that the facial recognition systems used in the United States are least accurate when used on young Black women and most accurate when used on older white men.11 The reason for this bias lies in the choices made in developing the facial recognition system itself: the data sets used to train the facial recognition algorithms fail to include a diversity of images resulting in algorithmic bias.

Another dimension of racial bias infecting surveillance technologies is the impact of data sets biased the other direction: hyper-visibility. A prime example of this hyper-visibility effect has been predictive policing algorithms. Given the NYPD’s racist track record, such as its ongoing use of stop-and-frisk primarily against Black and Latinx New Yorkers, the data sets used to train and develop any predictive policing system will inevitably reproduce racially biased outcomes.12 The reason for this garbage-in-garbage-out bias lies in the choices made in developing the predictive policing system itself: the data sets used to train the predictive policing algorithms were collected in a biased manner to begin.

10 For a more comprehensive discussion of the ways in which law enforcement surveillance technologies may replicate, mask, transfer, and exacerbate racial bias, see Laura M. Moy, A Taxonomy of Police Technology’s Racial Inequity Problems, 2021 U. Ill. L. Rev. 139, 154–75 (2021). 11 Brendan F. Klare et al., Face Recognition Performance: Role of Demographic Information, 7 IEEE Transactions on Information Forensics and Security 1789, 1789 (2012); see also Perpetual Line-Up. 12 See, e.g., Rashida Richardson, et al., Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice, 94 N.Y.U. L. REV. ONLINE 192 (2019).

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

Beyond the development of the surveillance technology, another common racial justice concern arises in the deployment of the technology post-development. Specifically, the threat presents itself that the racism present within police departments will lead officers to use surveillance technologies in racially biased ways. A police department may, for instance, choose to deploy license plate readers in predominately Black and brown neighborhoods, leading it to gather huge amounts of information on some neighborhoods but not others. This form of bias helps explain the state of the NYPD’s “Gang Database,” which consists almost entirely of Black and Latinx New Yorkers.13

The NYPD’s proposed surveillance policies deploy boilerplate language that glosses over these important distinctions amongst infection points for racial bias, making it impossible for the policies to actually address these persistent and obvious forms of racial bias. 14 At a moment of profound reckoning in America, these proposed policies’ abject failure to engage with the racism inherent in police surveillance—and even the outright denial of its existence—unmasks the falsity of the NYPD’s professed “protect and serve” mission. And it demonstrates the NYPD’s dangerous refusal to engage with the racial equity concerns raised in academic literature and popular press and voiced at rallies across the country this past summer.

III. Conclusion

The NYPD failed to meet its obligations under the POST Act in nearly every respect. It did not submit policies for several of its surveillance technologies. It submitted policies that are devoid of meaningful information. It lied and misled about the core characteristics of some of its most controversial technologies, including its facial recognition software, license plate readers, and domain awareness system. And it insisted, against all documented knowledge and experience, that its surveillance apparatus operates in a racially neutral and unbiased manner.

These failures reflect the troubling state of policing in New York City. While the POST Act imposed only modest reporting requirements on the NYPD, the Act represented an opportunity for the Department to engage with the concerns raised by the City Council and the communities that took to the streets to voice their frustration with policing this past summer. The NYPD could have used this opportunity to bring transparency to its surveillance program, demonstrate a commitment to developing surveillance policies that meet the needs of the communities the Department is meant to serve, and begin a dialogue with our democratic representatives about the future of policing in New York City. Rather than seize that opportunity, the NYPD deliberately chose to do less than the bare minimum required of it, producing 36 false, misleading, and incomplete proposed surveillance policies that do almost nothing to educate our communities about the surveillance the NYPD subjects them to on a daily basis.

The NYPD’s failures are unacceptable and must be immediately addressed. The NYPD should redraft each policy to meet the POST Act’s requirements. Given the NYPD’s mockery of this process and clear abuse of its authority, the City should cease to fund the use of these unreported and unregulated surveillance technologies and prohibit their use altogether. If the NYPD continues not to comply with the POST Act, it will have silenced the voices of the thousands of New Yorkers who took to the streets and demanded a voice in how their communities are policed. We are committed to doing everything that we can to ensure that does not happen and call on the City

13 Nick Pinto, NYPD Added Nearly 2,500 New People to Its Gang Database in the Last Year, The Intercept (June 28, 2019), https://theintercept.com/2019/06/28/nypd-gang-database-additions. 14 See Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (2019).

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders

Council and the public to join us in making sure that the New York Police Department is accountable to the people and communities it is called on to serve.

Sincerely,

Elizabeth Daniel Vasquez Special Forensic Science Counsel Forensic Science Practice / Science & Surveillance Project

Brooklyn Defender Services 177 Livingston Street 7th Floor T (718) 254-0700 www.bds.org Brooklyn New York 11201 F (718) 254-0897 @bklyndefenders