Brooklyn Court: NYPD’s Use of Cellphone Trackers Unconstitutional

From so-called ‘Stingray’ devices that collect call data and can disrupt service, to x-ray vans that can scan any unlucky passerby, the NYPD has acquired a range of high level surveillance technologies, with little or no oversight from the courts, the City Council, or the public. These technologies allow the NYPD to watch, listen, and track New Yorkers like never before. But last month, a New York State court in Brooklyn ruled that the NYPD’s use of Stingrays without a warrant was unconstitutional. This was a first and necessary step towards maintaining the privacy rights of all New Yorkers, but more must be done.

Stingrays mimic cell phone towers, enabling the NYPD to track a cell phone’s location down to a specific apartment within a building, retrieve data from the phone, and even disrupt service. The recent ruling in People v. Gordon finally challenges the NYPD’s right to use these devices free from oversight. Justice Martin Murphy held that a Stingray, “[b]y its very nature,” “intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping, and requires a separate warrant supported by probable cause.”

Since 2009, police officers in New York State have been required to get a warrant to use a GPS device for monitoring an individual’s whereabouts. Stingrays largely achieve the same effect, but the NYPD never sought a similar warrant and refused to disclose its policies regarding Stingrays or even to acknowledge their use. According to New York’s Legal Aid Society, this case was the first in which prosecutors directly told defense attorneys and their clients about the approval to use a cell-site simulator. This follows a pattern of secrecy regarding the use these technologies – according to the New York Times, “[i]n Baltimore, where the police have used cell-site simulators thousands of times, defense lawyers have pressed for details about how the police found certain subjects, only to have prosecutors drop charges to avoid answering questions.” The ruling in Brooklyn constitutes important progress towards protecting the privacy and due process rights of all New Yorkers. While court oversight is an important element, the NYPD must do more.

Warrantless collection of data isn’t the only problem associated with these technologies – there are also important concerns about how the data is used once its already gathered. To date, the NYPD has not provided policy guidelines for its use of this surveillance technology, or for the holding or destruction of terabytes of additional data incidentally collected on innocent New Yorkers. This contrasts with the published policies of the Departments of Justice and Homeland Security, both of which require warrants for the use of many of these technologies. The District of Columbia Court of Appeals has also held that such a requirement is appropriate to protect individual security.

The city council has proposed a solution: the Public Oversight of Surveillance Technology (POST) Act. The POST Act would increase public and city council oversight of the NYPD’s policy on the use of surveillance technologies, and its participation in information sharing networks. Following similar bills introduced or passed in Seattle, San Francisco, Santa Clara, and Oakland, the POST Act requires the NYPD to publicly disclose the acquisition of new surveillance technology, provide a broad description of how the technology works, and outline the policy regulating its use. Once the information is published, the public would have the opportunity to submit comments, to which NYPD leadership would be required to respond.

The NYPD opposes this bill because they maintain that disclosing such information would empower those engaging in criminal behavior to circumvent surveillance. However, the bill does not require the NYPD to provide operational details, and does not prevent the police department from acquiring and using the technology. Instead, it aims to provide the public and their representatives on the city council with the information necessary to oversee the practices of the department. Through this oversight, public trust in the police can be rebuilt, and the rights of those living in New York City can be better protected.

In many ways, the Brooklyn Supreme Court ruling raises more questions than it answers. Will the NYPD implement the practices called for by the court even though they dispute the court’s reasoning? What will happen to the unknown number of people who were arrested after police relied on a Stingray device without proper authorization from the Court? What about the other invasive surveillance technology used in secret by the NYPD? Privacy protection needs to be proactive, not reactive. New Yorkers need a police department whose commitment to both privacy and protection is evident through published policies and a willingness to accept oversight by elected officials. Passage of the POST Act would be a huge step forward towards achieving this goal.