As protests of the murder of George Floyd and police brutality continue across New York City, the NYPD is very likely using a bevy of wide-reaching digital surveillance techniques to track demonstrators and record their information.
The NYPD refuses to disclose the full extent to which it is using digital surveillance. Despite numerous public records requests from attorneys, journalists, and activists over the years, the Department remains secretive. The level of technology at the NYPD’s disposal, and guidelines regarding how that advanced technology is used to police communities, are plainly unknown. While protesters ready themselves for the physical threats of standing against the NYPD, they may not be prepared for the digital threats that could follow them for years to come.
The NYPD has routinely used digital surveillance against protesters, as far back as the Occupy movement in 2011, through the Eric Garner and Black Lives Matter protests of 2014 to today. The Department is clear about some of these techniques, so we do have an idea of what will be deployed against this spring’s protesters.
Facial recognition systems use surveillance cameras, still photos, officer body cameras and other devices throughout the city to identify individuals and track them. Those images and identifications are stored in NYPD databases for years on end. In 2016, a group of Black Lives Matter activists filed a series of Freedom of Information Law requests to the NYPD, suspecting the police had marked them. They learned that the NYPD filmed and took photos of them at earlier protests, and saved those images and identifications indefinitely.
Relying on this technology only exacerbates existing biases in policing, says Ángel Díaz, counsel at the Brennan Center For Justice’s Liberty & National Security Program. Because “the line into criminal activity is pretty thin,” he explains, the NYPD can easily justify the use of facial recognition. Protesting after a curfew, as thousands of New Yorkers have this week, could be enough lawlessness to warrant the NYPD tracking your identity. With the FBI calling on Americans to send them images and footage of looting and other crimes, some are worried that facial-recognition technology could be used to identify peaceful protesters who also appear in the images.
Last night, at a protest near Central Park, reporter Matthew Chayes observed officers from the NYPD’s Technical Assistance Response Unit filming protesters shortly before arrests began occurring. (The TARU division also uses drone surveillance to “record police action at large-scale demonstrations and arrest situations; and provide crucial live video to incident commanders during ongoing emergency situations,” according to a press release issued when the drone program was unveiled in 2018.) TARU’s video monitoring is notable, because in 2017 an investigation by The Verge found 400 instances, from 2011 to 2016, in which the unit’s video team attended and sometimes filmed Black Lives Matters and Occupy Wall Street protests. The Verge asked the NYPD to produce records indicating that the department’s deputy commissioner of legal matters had pre-approved the filming requests, as required by NYPD guidelines, but the NYPD couldn’t locate any.
Once your image is captured in this way, says Díaz, “it’s hard to really know that you’re [in] there, and how to get out.” If the NYPD investigates a crime in the future, they can use the images captured at protests to help them identify suspects. That’s especially a problem for people of color, since facial recognition technology routinely misidentifies people with darker skin tones. Misidentifications only lead to further policing of black and brown communities, giving police legal justification to stop and arrest people who incorrectly match through the database. San Francisco and Oakland both banned the use of facial recognition technology by police and other agencies in 2019, fearful of its potential for abuse.
Another surveillance technique particularly concerning for protesters is the NYPD’s use of cell site simulators, or “Stingrays.” In the most basic sense, when you normally make a call or text, your phone sends out a signal, which is received by the nearest tower. That signal then gets re-routed to the other phone you’re aiming to communicate with, and a connection is established.
But Stingrays interrupt that process. These devices imitate cell towers, so nearby phones try to connect with them instead. It’s a trick; once your phone connects to the Stingray, it shares crucial location information. The NYPD can use Stingrays to track the present and past locations of a particular phone at particular times. They’re even precise enough to determine when a phone moves in and out of particular spaces, including private ones that might typically require a warrant to search. Stingrays are also capable of intercepting messages and phone calls, although there is no evidence that the NYPD is using this function.
Even if the NYPD uses a Stingray to target an individual phone or a small group of people, the device still captures the information of everyone in its immediate vicinity, according to Díaz. The NYPD could easily capture the location information of protesters’ phones, placing participants at the demonstrations. “We don’t know what they’re doing with that information,” says Díaz.
Police can also get this same location information through issuing ”reverse location” warrants to tech companies. The Supreme Court has determined that law enforcement typically needs a warrant to search for a particular person’s cellphone location data. But police have found a loophole. With a reverse location warrant, “they can go to Google and say, tell us every person that was within a minimum radius” of a certain location and time, says Liz O’Sullivan, a tech activist and technology director of the NYC based Surveillance Technology Oversight Project (STOP). Just like stingrays, the information police receive from these warrants is indiscriminate. “If you’re in the wrong place, wrong time, you could very easily be included in this dragnet.”
Then there’s the technology we know the NYPD is using, but have little information on, like millimeter wave machines hidden in unmarked vans. Think of these devices as something like Superman’s X-Ray vision, directed at buildings and crowds. “It’s the same kind of machine that works at airports. So it can see through clothes, it can see through walls,” explains O’Sullivan. “We don’t know how many there are. We don’t know when they use them.”
In 1995, when the US Supreme Court ruled, in McIntyre v. Ohio Elections Commission, to strike down an Ohio law that prohibited anonymously published campaign literature, Justice John Paul Stevens wrote, “Anonymity is a shield from the tyranny of the majority.” The NYPD’s surveillance techniques chip away at this shield, fighting to rip away what protects demonstrators from retaliation. But protesters are still working to keep their anonymity. Over social media, advocates are giving instructions on how best to avoid digital surveillance while protesting, like disabling data and location services on cell phones. Downloads for encrypted messaging apps like Signal are exploding, and the society-wide imperative to wear masks in public is a helpful excuse to shield faces from cameras. But those measures aren’t enough to completely hide your identity. “In the absence of good privacy laws,” says O’Sullivan, “it’s impossible to stay completely obscured if you’re doing something like expressing dissent.”
Oversight may be on the way. The NYC City Council just announced it would hold a vote on the POST Act, partially due to the recent protests. The legislation would bring “civilian review to NYPD policies, letting elected lawmakers know the types of surveillance conducted on New Yorkers and how that information is kept safe from federal agencies, including ICE,” according to STOP Spying, one of the bill’s supporters. There’s a pending state senate bill, introduced in January, which would ban the NYPD from using facial recognition technology. STOP is the leading advocate for a bill to ban geolocation tracking.
But as Mayor de Blasio’s city budget proposal allocates nearly $6 billion to the NYPD’s budget this year, surveillance is bound to continue for now. “Our elected officials haven’t taken seriously the risk that they’re allowing by giving the NYPD free reign to monitor people’s movements, using digital technology without any oversight,” warns Ángel Díaz.
“We could be entering an era of digital Stop and Frisk.”