Hochul Wants More Police Surveillance. Legislators Want Boundaries.

Legislators are taking aim at a host of police surveillance tools, from undercover social media accounts to facial recognition to aerial drones.

Chris Gelardi   ·   January 24, 2023
State lawmakers announced a package of bills to rein in police surveillance. | Surveillance Technology Oversight Project

EARLIER THIS MONTH, more than a dozen New York state lawmakers and several watchdog organizations launched a years-in-the-making legislative campaign to rein in police surveillance. Attempting to catch up to what they describe as unchecked civil liberties violations by law enforcement, they announced plans to introduce 10 bills taking aim at a host of police surveillance tools, from undercover social media accounts to facial recognition to aerial drones.

“It’s long past time for New York to draw a line,” Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, said at the campaign’s onset, calling out “some of New York’s leaders” who are “excited to play big brother.” That was partially a reference to one of the legislative push’s biggest hurdles: Governor Kathy Hochul, who has sought to funnel more and more state resources into police intelligence and surveillance.

As New York Focus has reported, Hochul slipped millions of dollars into last year’s state budget to boost the New York State Police’s intelligence and surveillance capabilities, as well as those of the state’s little-known network of police intelligence hubs — both of which use technology and practices in the campaign’s crosshairs. The governor doubled down on those efforts throughout the year, funneling additional millions into social media monitoring, license plate readers, drones, and more. And this month, as part of her State of the State address, she announced plans to boost police information-sharing and further expand the intelligence hubs. She’s cited gun violence and hate crimes as her main motivation.

“We’re watching you now, we know what you’re up to, and we’ll be coming after you,” Hochul said after a mass shooting in Buffalo in May.

The governor’s and legislators’ dueling priorities are setting up a showdown that could set the course for the future of police oversight in New York — and reverberate nationwide. Like most states, New York has almost no state-level privacy protections against prying government eyes. Some of the state laws currently acting as boundaries for police intelligence practices predate the internet.

“It’s a moving target,” said Senator Brad Hoylman-Sigal, who will introduce a bill to restrict the use of government DNA databases. “We need action at the legislative and executive levels.”

THE LEGISLATORS HAVE aimed their campaign at some of the tools most ripe for police abuse.

One bill would ban law enforcement from monitoring social media using fake accounts, which cops have used to surveil and prosecute racial justice protesters and attack critics. Others would eliminate most government DNA databases across the state and prohibit the use of “phenotyping,” a scientifically contested practice through which authorities infer someone’s race by analyzing their DNA — as the New York City Police Department has done to profile hundreds of Black men.

Another bill would ban most state agencies from collecting biometric data — for instance, with facial recognition algorithms, which can closely track people’s whereabouts and which misidentify Black and Asian people many times more frequently than white people. Yet other legislation would restrict the deployment of police drones, which have been used to monitor and intimidate activists; ban “cell site simulators,” which have been used against protesters and can sweep up data from thousands of phones within a geographic area; and prohibit surveillance of people’s internet use by their location and search history, a practice watchdogs warn prosecutors could use against people seeking abortion in states where they’re newly illegal.

As Hochul expands state intelligence bodies absent greater regulation, they’ll likely have more to spend on these technologies.

Hochul has repeatedly increased the surveillance budget of the New York State Police — and specifically the State Police’s New York State Intelligence Center, or NYSIC, one of dozens of secretive and controversial intelligence-sharing hubs known as fusion centers created during the post-September 11, 2001 expansion in domestic surveillance. As New York Focus has reported, NYSIC uses dummy accounts to monitor social media. It also collects and maintains biometric information, including fingerprints, DNA, retinal scans, and facial recognition data, and has a Stingray cell site simulator, which accesses mobile data by masquerading as a cell tower and tricking phones into connecting with it. And the State Police have more active drone registrations — more than 120 — than any government agency in New York.

The New York State Police did not respond to questions about whether the department employs DNA phenotyping or monitors internet activity by location and search terms. Spokesperson Beau Duffy sent a generic statement about investigative tools only being used by “specially trained” staff. Duffy declined to comment on the legislative campaign.

“The State Police is sensitive to privacy concerns and takes steps to protect personal information in accordance with the law,” Duffy said. “We follow all laws when gathering evidence to ensure anything relevant to a prosecution can withstand legal scrutiny and be used in court.”

In addition to the State Police, Hochul has also sought to expand New York’s Crime Analysis Center Network, a series of local intelligence-sharing hubs that resemble fusion centers. Last year, she nearly tripled state funding — adding $15 million — for the 10 existing crime analysis centers, and this year, she has proposed expanding the network to include New York City.

Kirstan Conley, a spokesperson for the Department of Criminal Justice Services, which oversees the Crime Analysis Center Network, declined to comment on the legislative campaign and sent a lengthy statement asserting that “all work performed by [crime analysis center] staff is in response to requests from law enforcement agencies and connected to new or ongoing criminal investigations.” She did not answer repeated questions about location and keyword searches, fake social media accounts, and cell site simulators.

According to DCJS, the crime analysis centers do not perform DNA analysis, but Conley said they do use facial recognition technology, license plate readers, and social media surveillance.

THE ANTI-SURVEILLANCE campaign is broad, but with so much new surveillance tech on the market, it isn’t all-encompassing.

None of the 10 forthcoming bills address police use of automatic license plate readers, which are prolific in New York and can track the movements of virtually anyone with a car. Software used by the Crime Analysis Center Network processes millions of automatic license plate records a week.

As New York Focus has reported, the State Police — and likely crime analysis centers — have used powerful tools that can monitor large swaths of social media and have been used to surveil Black Lives Matter protesters. Those aren’t touched by the legislative campaign.

Nor are the powerful hacking tools that the State Police has sought to purchase from the Israeli company Cellebrite, as New York Focus recently uncovered. Since that report, the State Police published yet another solicitation for phone-cracking products and services, this time from the Connecticut-based Teel Technologies.

Technology moves faster than law and politics. So we’re sort of catching up to what the technology can and cannot do.

—Assemblymember Jessica González-Rojas

That more recent ask includes trainings for a technique to circumvent a phone’s security by forcing it to boot it into a more vulnerable state. According to Emma Weil, policy analyst at the technology research and advocacy organization Upturn and co-author of an expansive 2020 report on law enforcement’s use of the technology, that suggests that the State Police are hoping to build up their in-house phone-cracking capacity — as opposed to having to engage outside experts or companies to conduct more complicated jobs. “And from our position, that’s not a good thing,” Weil said. “When these capabilities have a lower bar to access, they are more likely to be used against people in more situations.”

Police departments can only legally use the phone-cracking tech if they get a warrant or if the device’s owner consents to having their phone probed — though civil liberties advocates argue that so-called “consent searches” are far from consensual, since few realize just how powerful the technology is. It doesn’t help that New York’s search warrant statute was written more than 50 years ago, before the proliferation of modern computers, giving cops considerable leeway to interpret how the law applies to the tech.

But lawmakers see the recently announced legislative campaign as an important step in cutting down on the legal gray areas.

“Technology moves faster than law and politics,” said Assemblymember Jessica González-Rojas, who will introduce the legislation aimed at banning most government use of biometric data. “So we’re sort of catching up to what the technology can and cannot do.”

And they hope that their legislative push can pave the way for the rest of the country. “I want us to be proactive,” said Kristen Gonzalez, recently appointed head of the state Senate’s internet committee and sponsor of a forthcoming bill to modernize New York’s four-decade-old Personal Privacy Protection Law. “Yes, technology is rapidly changing and developing, but we can also think right now about what protections we’ll need in the future, and really set a strong foundation for our own data privacy and digital rights.”

The politics of police surveillance — a topic statehouses often ignore — are changing, the lawmakers say, as younger, more diverse, and, at least in New York, more left-leaning residents run for office. González-Rojas pointed out that most of the sponsors of the anti-surveillance campaign’s bills entered office in the last four years — “coming out of George Floyd, attacks against BLM, Trayvon Martin” — and from areas in New York City where the NYPD has aggressively surveilled Muslim and Black communities.

Despite funneling resources toward police surveillance, the governor hasn’t indicated where she stands on these changing debates. Asked about the legislative campaign, a spokesperson for her office only said that “Governor Hochul will review all legislation that passes both houses in the Legislature.”

The legislators haven’t been in contact with Hochul’s office, according to Hoylman-Sigal. But they are eager to engage the governor.

“I am excited to work with [Hochul] on defining what public safety means: safeguarding and protecting the data and personal information of our city and state,” said Gonzalez.

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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