Today brings us one of the most important surveillance debates in years, but it won’t take place in Washington. The fulcrum point in the national surveillance fight has moved outside of the beltway to a secluded New York City Council hearing room. A seemingly obscure NYPD reform bill called the POST Act will have national consequences, not just because of the changes it enacts, but because of what it could mean for decades of accelerating local surveillance.
In the beginning, when the CCTV cameras multiplied throughout our cities, police and lawmakers told us it was for our own good. And, for a time, the public believed them. We desperately wanted to think that we could find an easy fix for the omnipresent specter of crime in the late ’80s and ’90s. Rather than look at the role of poverty and discrimination, many wanted technology and policing to be the answer.
So many hoped that the ever-watching state would fend off the nightmarish crimes that politicians invoked. And so the cameras expanded. And when the towers fell in New York, and we faced down this new, mortal terror, we turned again to the same surveillance.
We embraced policies inspired by the narratives of 24 and other TV shows that promised if we just knew enough information, if we just had enough leads, we could prevent the next attack. Life imitated art, as police departments aggregated alarming new databases, such as the NYPD’s sprawling Domain Awareness System, which integrates a constant data stream from thousands of cameras, sensors, and other tracking systems.
The backlash started as a whisper, a barely audible murmur of discontent. But over time the voices grew louder and more numerous. A privacy scandal would come, one after another, and with each violation of the public trust a new surge in dissent. With each new threat to our communities, people found a new willingness to speak out against the transformation of our once-open society into the visage of Huxley’s authoritarianism.
Today, the cameras almost seem quaint compared to emerging tracking tools. But they now contain something new. Artificial intelligence that targets biometric data, like facial recognition, gait detection, and iris scans, is turning CCTV into something more powerful than we ever imagined. Powerful algorithms now transpose our bodies into mathematical constructs that can be automatically tracked. Our every movement logged, our every decision judged, our every choice subject to algorithmic analysis.
POWERFUL ALGORITHMS NOW TRANSPOSE OUR BODIES INTO MATHEMATICAL CONSTRUCTS THAT CAN BE AUTOMATICALLY TRACKED.
And this latest iteration of the surveillance state, the biometric tracking state, has become the tipping point; the moment when the protests became just too loud to ignore—at least outside of Washington. Federal lawmakers promptly responded to the threat by bravely . . . holding hearings. They listened to both sides. They took in the evidence. And then they did what Congress does best: absolutely nothing.
But cities and states haven’t had that luxury. As lawmakers saw a grassroots revolt against the expansion of perpetual tracking systems, they started to take action, even where Congress failed. Many of the early victories in this movement came from Oakland, where activists blocked their own proposed Domain Awareness System in 2013. Then they truly took over in January 2016, establishing the Oakland Privacy Advisory Commission, a civilian body overseeing every form of police surveillance in the city.
Other cities followed as part of the national Civilian Control Over Police Surveillance (CCOPS) campaign, which installed surveillance oversight bills in more than a dozen cities across the country. Some ordinances have gone even further, banning controversial surveillance tools like facial recognition. Each one of these cities is important, but New York is different.
No other city faces a surveillance apparatus quite like the NYPD, which operates the largest police force in the country. Not only is the NYPD the largest department, three times the size of the next closest, it’s also the most technologically sophisticated. Automated license plate readers? We’ve got them. Drones? You bet. Social media monitoring? Without a doubt. And let’s not forget the most invasive tool of all—facial recognition.
Last year, the NYPD’s facial identification program was used in more than 7,000 cases. And the number is growing. This year it’s expected that the department will scan New Yorkers’ faces in more than 8,000 cases. The NYPD is seen as a leader by police departments around the country, and the regulatory tone we set in New York will reverberate around the country. But more importantly, New York is uniquely impacted by the national security narrative of the 9/11 attacks, which nearly two decades later are seen by many as an insurmountable barrier to regulation. But the reality is, they’re not.
The POST Act’s terms are deceptively modest: The NYPD must publish a privacy policy for every surveillance tool they use and undergo an annual privacy audit. But context is everything. And here, the unique historical and political context mean that the country’s eyes will turn to the city council chamber today, watching to see if surveillance regulation is possible even in New York. After all, if you can regulate here, you can regulate it anywhere.
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.