Gotham Gazette

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Surveillance and the City: Past Time for the POST Act

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(photo: William Alatriste & John McCarten/City Council)

What’s a majority of  51? It should be simple math, but in the world of City Council politics, the numbers don’t always add up. Take the Public Oversight of Surveillance (POST) Act, an NYPD reform bill that has been pending before the Council for over two-and-a-half years.

Twenty-nine of the 51 Council members and the Public Advocate support it. No, they don’t just support it, they’ve gone further and fully co-sponsored the long overdue NYPD spying reforms. But the bill still isn’t law.

That’s because none of those 29 members have voted for the POST Act -- they haven’t been given the chance. Despite the clear majority support and long delay, we’re still waiting on Speaker Corey Johnson and Public Safety Committee Chair Donovan Richards to hold a hearing on the bill. If we can’t get a hearing, we can’t get a vote. And if we can’t get a vote, it doesn’t matter how many New Yorkers and Council members are crying out for reform. 

The POST Act is modest, but vital. At a time when the NYPD is buying invasive and discriminatory tools to track and spy on communities of color, the POST Act simply demands transparency. Tell the public what you bought and what the privacy safeguards are, and undergo an annual audit. That’s it, that’s all this simple bill requires, and, mind-bogglingly, it’s still not law.

The truth is that out of a Council of 51 members, there are only two that matter in getting you to a vote: the committee chair and the speaker. There isn’t a mysterious force that magically chooses which bills move forward, though of course there is vocal opposition from the NYPD and police unions. There isn’t some anonymous assembly of bureaucrats that decides: it’s two people. Which is why after years of campaigning for passage of the POST Act we’re turning to Speaker Johnson and Chair Richards. We’re speaking to them directly and demanding a hearing and full Council vote before the end of the year.

Maybe the police unions will be upset. Maybe Fox News will push back. The maybes are endless. This is what we do know for sure: it is time to act. As New York City drags its feet on digital civil rights, cities across the country are stepping up to go further. Cities have passed versions of the POST Act that are far more aggressive than what we demand. Do they demand information? Yes. Do they have audits? Yes, but then they also require lawmakers to approve each and every spy tool their police forces buy. Some cities like San Francisco have gone farther still and started banning popular forms of surveillance like facial recognition.

San Francisco lawmakers acted because of the risk that this Orwellian technology might be used on their streets, but facial recognition has already been used to digitally profile tens of thousands of New Yorkers, and our own lawmakers have done almost nothing. How is it that our neighbors are being arrested and convicted on the basis of this racist and unproven technology, 998 just last year, and our response is to do nothing?

Recently, Speaker Johnson was asked if he would commit to passing the POST in 2019. Even though he co-sponsored the bill in 2017 and said he supports the “aims and the goals of POST Act,” he refused to give a timeframe. This is why a coalition of 70 civil rights and community-based organizations recently spoke up, sending a letter to Speaker Johnson. We made it clear that delay is not an option and that evasion will not be tolerated. No, we will keep fighting and we will keep pushing until we get our long-delayed hearing and vote.

Let’s be clear, the POST Act isn’t the end of the fight for surveillance reform, but it’s an indispensable first step. For years, the NYPD has thwarted the tools used to hold police accountable for discriminatory surveillance. They fight discovery, freedom of information law requests, and every other mechanism that could provide us insights on our communities are being surveilled. 

In a low point last year, the de Blasio administration fought in the state’s highest court to create a new legal doctrine. Taking a page out of the CIA’s Cold War playbook, the NYPD now will no longer confirm nor deny if they have records about certain types of surveillance. This means that even where these tools are used to racially and religiously profile New Yorkers, we simply can’t get the data to show it.

With every other form of governmental transparency cut off, we need the POST Act. We need it to understand what systems are on our streets, but also how the data is being used. We need to know what safeguards are in place for innocent bystanders, and how we prevent information from being shared with federal agencies like ICE. In short, we need rules of the road, and we need them now.

Albert Fox Cahn is the executive director of The Surveillance Technology Oversight Project at the Urban Justice Center, a New York-based civil rights and privacy organization. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn

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