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Surveillance and the City: Tracked Until Proven Innocent?


one police executive

NYPD tabletop meeting (photo: Edwin J. Torres/ Mayoral Photography Office)


As advocates of mass incarceration slowly realize they are losing their grip on political power, they are flailing to find new strategies to undermine the state’s recent bail reforms. Under the media-driven, police union-inspired, fear campaign against reform, many advocates of the carceral state are pushing a new form of confinement: perpetual GPS monitoring. This techno-solutionism may sound like progress, but GPS monitoring carries the same presumption as cash bail: that some New Yorkers are guilty until proven innocent.

New York is not alone in seeing increasing pressure to replace physical incarceration with new and increasingly invasive forms of electronic monitoring. These surveillance systems can track every place you go, everything you say, and even those around you.

Forget the fact that the businesses cashing in on electronic monitoring have little evidence that it prevents recidivism. Forget the fact that the costly technology is often error prone. You are still left with the mindset of mass incarceration, the presumption that New Yorkers should be stripped of their rights and dignity simply for being charged with a crime.

Thankfully, City Hall has proven to be an unlikely ally in this fight. Don’t misunderstand, Mayor de Blasio hasn’t gone through some criminal justice reformation. The one-time Park Slope progressive didn’t rediscover the principles he seemingly shed on Gracie Mansion’s stoop. No, City Hall is delaying the expansion of electronic monitoring through bureaucratic delays and mismanagement. 

Under New York’s recent reforms, private bail firms can no longer make a profit from renting electronic shackles. Instead, the City itself must take charge of the electronic monitoring program. This delay gives us a crucial window to push back against the wholesale tracking of New Yorkers waiting for their day in court.

The potential scale of electronic monitoring is staggering. In 2018, more than 77,000 people were arrested in New York City for felonies that qualify for electronic monitoring under the new state law. But that number is actually an undercount, since it doesn’t include the thousands arrested on qualifying misdemeanor charges. Yes, New York’s law is so broad that even those accused of certain misdemeanors might soon be forced to wear tracking devices while they await their next day in court.

To understand why that prospect is so daunting, you have to understand the power and perils of modern-day monitoring devices, which have become increasingly invasive and sophisticated. Some devices can turn wearers into walking wiretaps—recording themselves and anyone nearby. Devices can capture sensitive conversations with attorneys or doctors. Some jurisdictions even use this capability to record children.

And then there is the medical impact. It should surprise few that having an electronic device physically attached to your body can cause severe injuries. Complaints range from mild injuries, like bruises, hair loss, and headaches to more serious complications like electrical shocks, and impaired breathing and blood circulation. Many choose electronic monitoring rather than having to endure the horror of jail, but no New Yorker should be forced to choose between their health and freedom.

A new class of electronic monitoring devices spares users the injuries and indignities of traditional GPS anklets. Instead, some electronic monitoring firms install tracking software on users’ smart devices. These applications use the same location tracking that companies use to track phone users and target them with ads.

These products can be less stigmatizing than highly visible tracking devices, but they can have significant privacy and economic impacts. Many phone-based applications record users’ biometric information without disclosing how that data is saved or shared. Applications may access other information saved on users’ devices, and they can exhaust their data plan allowance and battery life. These impacts are quite substantial, especially for low-income individuals, and are a completely inappropriate way to punish New Yorkers who have not yet had their day in court.

Whatever form of electronic monitoring we use, the truth is that we won’t use it equally. Electronic monitoring is disproportionately targeted at low-income communities and communities of color. This should come as little surprise, since these are the exact same communities that bear the brunt of every aspect of the criminal justice system. Poorer New Yorkers are more likely to be arrested, more likely to be charged, and more likely to be subjected to invasive monitoring.

Electronic monitoring is particularly dangerous for undocumented New Yorkers. Despite our claims of being a “sanctuary city,” there is no law that would prevent Immigration and Customs Enforcement (ICE) or any other federal agency from getting a court order to force the city to provide users’ location history. This not only endangers undocumented defendants, but their neighbors, families, and faith communities. This is yet another reason why location tracking must not become the norm for those awaiting trial.

The bail reform backlash has shown that many New Yorkers are deeply uncomfortable with living up to the values we preach. But even some who support bail reform also buy into the false promise of electronic monitoring, propping up the broken logic of mass incarceration and the belief that poor defendants of color are entitled to less due process than their wealthy neighbors. We have to do better, and we have to continue to fight for a city where no New Yorker is tracked until proven innocent.

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Albert Fox Cahn is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn & @STOPspyingNY.

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New York’s Wrongly Open Skies


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helicopters in Manhattan (photo: Julia Vitullo-Martin)


Helicopter crashes in the skies of New York City — two in 2019 —temporarily bring renewed attention to the odd situation by which hundreds of vehicles weighing up to 12,000 pounds each fly low every day over the country’s densest city, a city that was attacked from the air in 2001.

Precisely how many flights there are, by whom, and for what purpose are secrets kept by New York City’s Economic Development Corporation, which oversees three heliports on behalf of their owner, New York City.

Manhattan Borough President Gale Brewer says that complaints about helicopter noise and pollution are constant, and have been for years. And even though we are all now subject to time-consuming and sometimes intrusive searches to board planes at airports, passengers and pilots on helicopters undergo only the most cursory security procedures.

The recent helicopter crash that killed Kobe Bryant and eight others occurred north of Los Angeles, on the other side of the country, yet the catastrophe holds several sobering parallels for New York.

Dangerous Terrain
Burdened with the nation’s busiest airspaces, both L.A. and New York City also have dangerous, sky-high terrain that helicopters must avoid. LA has mountains, New York has skyscrapers.

Bryant’s helicopter lacked a Terrain Awareness and Warning System (TAWS), as do many, perhaps most, helicopters flying over New York. Even though the National Transportation Safety Board (NTSB) has long urged that warning systems be mandated, the Federal Aviation Administration (FAA), the federal agency regulating helicopters, has resisted, saying that because helicopters fly so close to buildings a TAWS would produce too many false alarms. Both L.A. and New York are also subject to the thick marine layer and dense fog that were factors in the Bryant crash.

Frequent Commuting
Bryant was commuting by helicopter, a practice that is increasingly common in New York, and for the same set of reasons: clogged and unpleasant ground transportation.

As the LA Times noted recently, the customer base for heli-commuting “skews rich, famous and traffic-averse.” Private entrepreneurs have eagerly responded to demand. As Jeff Holden, Uber’s Chief Product Officer, said, “So far we’ve been focused on ground-based transportation, but then we asked ourselves: Why can’t we fly today? Why can’t we take to the air? It’s not a matter of if, but when,” which was July of last year.

And not just Uber. “There isn’t gridlock in the sky,” says Rob Wiesenthal, the founder and chief executive of Blade, the vanguard company flying luxurious helicopters to the airports, the Hamptons, and Nantucket told the Wall Street Journal. Voom CEO Clément Monnet claims to be improving “people’s lives by giving them access to the air.”

Lightly Regulated
The twin-engine Sikorsky S-76B, a familiar vehicle to sky-watching New Yorkers who can see the big white helis regularly power across Manhattan, is owned by charter company Island Express Helicopters. Like all L.A.-based charter companies, Island’s FAA operating certification limits its pilots to flying under visual flight rules, which require a half-mile of daytime visibility and the ability to see the ground. The company lacked certification for its pilots to fly with instruments, the system for operating in fog or clouds. But the FAA seldom penalizes this violation, letting helicopter companies operate on a self-regulatory basis.

And it’s worth remembering that the above factors were also central to New York’s June 10, 2019 horror when a helicopter burst into flames after smashing into the fog-shrouded roof of a 7th Avenue office building. That pilot was also not authorized to fly using only instruments. He shouldn’t have been flying at all in the rainstorm.

Worse, the helicopter company whose March 2018 doors-off flight crashed into the East River, killing five tourists, is still flying, unimpeded — unchallenged even — by federal regulators. A report by the National Transportation Safety Board in mid-December of this year placed the blame for the accident on the company, which had bypassed strict standards for sightseeing tours by falsely categorizing its flights as photographic in purpose, which has far looser regulations. And it had installed deficient harnesses, said the NTSB, that locked each tourist in place, pinning them helplessly as the helicopter turned over in the frigid water.

There’s a fundamental reason New Yorkers should be concerned about what’s happening in the skies of Los Angeles: like all American cities, neither L.A. nor New York controls its own skies. Skies are the purview of the federal government, which might in itself be OK, except that regarding helicopters and other low-flying aircraft the federal government has simultaneously asserted its authority and refused to regulate on any significant level. If any kind of serious reform — and that includes serious regulation — is to come to the helicopter industry it will have to begin in the big cities.

Yet despite a few rhetorical flourishes from Mayor Bill de Blasio denouncing commercial helicopter flights, City Hall has taken no recent steps to curtail flights.

Basically, anyone can fly through New York skies unless the federal government intervenes and says they can’t. But the federal government now and pretty much forever has been loath to restrict flights — even in the aftermath of 9/11. And even the city’s occasional attempts to control quality-of-life issues like noise and pollution have been restricted, originally by Supreme Court Justice Sonia Sotomayor in 1997, when she was a district judge.

In National Helicopter v City of New York, she permanently enjoined the city from imposing a mandatory 47% reduction in helicopter operations at the East 34th Street Heliport, designating tourist sightseeing routes, excluding Sikorsky S-58Ts from sightseeing flights, and mandating that all helicopters be marked for identification. A federal appellate court subsequently allowed the city to restrict operations, but permitted the ban on markings to stand.

This alone is a huge issue, and one that Borough President Brewer has been fighting for years. Federal regulations require that helicopters be individually identified, but the city (and Brewer) wanted the identification to be visible, painted in large digits — much like NYPD patrol cars or MTA buses — so that New Yorkers would know what was flying above them, hovering over Shakespeare in the Park performances or racing up and down West End Avenue on Sunday mornings.

Are these flights for tourism? Corporate commuting? Paparazzo? Government? Media? Police and emergency? We can’t know. Central Park, so precious to New Yorkers as a peaceful haven, is to the FAA a helicopter corridor. The FAA’s Central Park Route runs from West 72nd Street to the northern tip of Roosevelt Island, thus the many complaints Brewer’s office receives from Upper West and Upper East Siders.

What’s to be done?
The simplest, most direct solution would be for the FAA to issue Temporary Flight Restrictions forbidding flights over New York City, as it has done for Disneyland, of all places. But this is unlikely to happen. The FAA is what political scientists call a “clientele agency,” meaning their main mission is to protect rather than regulate the clientele industry.

Led by Rep. Jerry Nadler, New York’s congressional delegation has repeatedly introduced legislation to ban nonessential flights over New York City, the most recent being the Helicopter Safety Act. But what is nonessential? The FAA has repeatedly ruled that any transportation use, including commuting, is valid, and under the bill helicopter flights deemed essential would still be allowed, including law enforcement, emergency response, disaster response, medical services, or “for the public interest,” which is undefined.

It’s possible that even if Nadler’s bill passes, New York will be left with tens of thousands of flights deemed essential.

Technology can help. Flight tracking services, like FlightRadar24, provide real-time data on thousands of flights around the world, but also in your neighborhood, telling you which aircraft models are flying, as well as their origin and destination. At peak hours, the FlightRadar24 map of Manhattan looks like it’s infested with insects, as the tiny helicopter emoji crowd one another all over the borough.

The app is not yet sophisticated enough to catch every flight, especially for the low-flying aircraft that especially distress New Yorkers. But you’ll often see helis on the app hovering over city parks, monuments, and waterfront areas where taxpayers have invested billions of dollars. As former New York City Parks Commissioner Adrian Benepe says, “Taxpayer investment in parks is being ruthlessly undermined by the ongoing blight of helicopter flights.”

The first step in reform is to get the information: how many flights, by whom, in what aircraft models, for what purpose? What are their routes? How low are they flying?

NYCEDC keeps some generic data, which it publishes reluctantly and rarely, on its three city-owned heliports. But no agency releases data on the thousands of flights coming in from outside New York City’s borders, mainly New Jersey and Long Island, but increasingly upstate New York and New England. And if the on-demand flight services get their way, soon there will be more flights from more distant points.

Government agencies refuse to release their data, but a citizens’ brigade of heli watchers, armed with flight tracking apps, could provide enough of the data to demonstrate the extent and precise geographic locations of the issues.

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Julia Vitullo-Martin is a writer and planner. On Twitter @JuliaManhattan.

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Will the MTA Really Turn Its Back on Disabled New Yorkers Yet Again?


mta purchased access

(photo: Patrick Cashin/Metropolitan Transportation Authority)


Although accessibility is a hot topic of late, is government truly willing to partner in the multifaceted effort required to increase positive outcomes and general quality of life for our city’s residents and visitors with disabilities?

People seem to enjoy theorizing about its necessity and how long overdue universal design has been, but once the discussion reaches implementation, the ideals suddenly are not as indispensable as they once were.

I am a Brooklyn-based blind New Yorker who has been using Access-A-Ride since 2003. In 2017 I applied for and was selected to participate in the On-Demand E-Hail Pilot Program with Access-A-Ride and the city’s Taxi and Limousine Commission. In total, there are 1,200 users in the program who were all selected from a waiting list.

As the pilot program is now set to be severely restricted in the coming months, I am concerned with the future of Access-A-Ride service and the rights of our city’s residents with disabilities who cannot ride the subways and/or buses.

This program has greatly enhanced my level of independence and productivity as a professional person who is blind and juggles two jobs. Putting a cap on the number of rides I can utilize with on-demand service is the equivalent of putting a cap on my potential success as a blind person.

Traditional Access-A-Ride service does not give an individual with a disability the same level of autonomy and access to opportunity that straphangers typically enjoy. Having to schedule trips before 5 p.m. a day or two in advance, enduring the number of late pickups and the often-circuitous rides of the five boroughs made it very frustrating to use at best.

Traditional carriers have been making an exorbitant amount of money at over $80 per trip. In comparison, the on-demand e-hail trips average $36 per trip for a superior service at less than half the cost, allowing disabled citizens to live our lives with some autonomy and dignity. Despite multiple audits, exposed inefficiencies, and ties to unsavory crime elements over the years, the MTA still thinks it viable to utilize traditional Access-A-Ride carriers who are more than willing to overcharge to provide horrendous service for people with no other means of transport.

Although all of these issues were solved in one fell swoop with the inception of the e-hail program, the MTA has announced that due to the increased ridership (based on a biased user sample) use of on-demand service will be restricted to 16 rides per month with a subsidized cap of $15 per ride. I wonder if MTA Board members, Access-A-Ride management, and Governor Cuomo, who effectively runs the MTA, understand that disabled folks are not porcelain dolls, just living our lives on a glass shelf somewhere. Paratransit costs are projected to surpass $600 million this year; is that massive sum being invested wisely? Is there any awareness as to why this amount of taxpayer dollars is being invested in a necessary resource that is supposed to level the playing field? Or to some at the MTA, might the paratransit discussion be analogous to an unpleasant mundane task such as figuring out trash removal?

Plans for more elevators, improved wayfinding, and tactile navigation strips in the subway are all welcomed enhancements when they do arrive, but Access-A-Ride service must evolve as well.

We must all better understand a difficult and frustrating situation and identify and pursue the steps to fix it. We need to raise awareness, arrive at equitable solutions, and hold the MTA accountable. If we are properly enabled, those of us with blindness and other disabilities can and will contribute so much more to our city.

Access-A-Ride must be a key piece of the equation. The MTA claims increasing ridership makes the on-demand pilot unsustainable, but that is a sign of success and we should embrace the fact that this service is needed, and that it allows New Yorkers with disabilities to live fuller lives and contribute to our city’s fabric in so many ways. Not only do individuals with disabilities contribute socially, helping to raise awareness and promoting tolerant and inclusive attitudes, we are making economic contributions as viable workers and consumers.

The Access-A-Ride pilot program has been life-changing for many of us who contend with a disability. It has enabled me to accept a promotion as an itinerant supervisor of teachers of the blind/visually impaired. My main office is in Manhattan, while I supervise teachers in Staten Island, Queens, and Brooklyn. Without the autonomy and flexibility that on-demand Access-A-Ride service facilitates, I would not be able to competently perform my job at the highly proficient and efficient level that allows me to professionally compete with my non-disabled colleagues, as traditional Access-A-Ride service makes it impossible to move around in a reasonably efficient and timely manner.

Governor Cuomo and MTA Chair/CEO Foye, I ask you to consider how you would compensate if you had newly found autonomy and mobility and then they were going to be restricted; how would you deal with all the issues that I am now confronted with?

My fellow taxpayers, this is a civil rights issue, as our governor and the MTA have clearly decided that disabled citizens who need to utilize Access-A-Ride are not entitled to the same rights, autonomy, and access to opportunity as non-disabled citizens. And the reason? Because they’ve deemed e-hail is too expensive after it showed success? Is it equitable or ethical that a person who needs to use Access-A-Ride has to live their life in such a predetermined and scheduled fashion, allowing for no spontaneity or flexibility? This does not sound like a level playing field to me, nor is it the right investment of over 600 million of our tax dollars.

Governor Cuomo, you should never mistake disability for inability. Disabled or not, it’s about time that all people are treated fairly. Let’s invest in true equal access, improving outcomes for all. Let’s enable disabled New Yorkers, helping people to live the lives they want and deserve, facilitating more contributing taxpayers and thriving New Yorkers throughout our great city.

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Gian Carlo Pedulla is a member of the MTA’s Advisory Committee for Transit Accessibility and a supervisor for Educational Vision Services at the New York City Department of Education (all opinions here are his own and do not represent the ACTA or DOE).

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