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NYPD's Propos February 25, 2021 Commissioner Dermot Shea New York City 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 Domain Awareness System 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/.
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