By Heather Mac Donald
A bill in New York’s city council would require the New York Police Department to reveal crucial details about every surveillance technology that the department uses to detect terrorism and crime. Ninety days before the NYPD intends to implement a new surveillance technology, it would have to post on the Internet a technical description of how the new tool works, and how the department plans to use it. The public would have 45 days to comment on the proposed technology; the police commissioner would then have 45 days to respond to the public comments before he could actually start using the new capacity. Existing technologies would also have to be retroactively submitted to public review.
Perhaps aware that this moment may not be ideal for promoting what would be, in effect, a terrorists’ manual on how to evade discovery in New York City, the bill’s supporters have hilariously taken to casting it as a pro-illegal alien, anti-Trump gesture. New York is a “sanctuary city, now in open resistance to the Trump administration,” two members of the Brennan Center for Justice wrote in an op-ed advocating for the so-called Public Oversight of Surveillance Technology (POST) Act. (The Brennan Center wrote the POST Act for council members; the center has pushed similar bills across the country, including in Seattle and Oakland, two cities that have been particularly vulnerable to “anti-fascist” violence.) The city council press release claims that the bill “strengthens New York City’s commitment as a sanctuary city . . . as the Trump administration seeks to increase surveillance across America.”
In fact, the proposed law has nothing to do with New York’s deplorable status as a sanctuary city. Criminal illegal aliens avoid lawful deportation in New York because city and police officials release them back to the streets in defiance of Immigration and Customs Enforcement detainer requests, not because of sophisticated surveillance technologies. But though the bill would have no effect on the city’s campaign to thwart immigration enforcement, it would impede the city’s ability to stay one step ahead of terrorist planning. Memo to the council: counterterrorism is not a leisurely activity compatible with lengthy public review and administrative red tape. It requires nimbleness and speed in the face of a rapidly evolving threat. And disclosing to the enemy the extent of, and details about, your surveillance capacities provides an invaluable blueprint for foiling those capacities.
Supporters of the bill are playing the race card as well, claiming that the bill is necessary to counter the NYPD’s historic tendency to oppress minorities. The managing director of the Bronx Defenders claims, without evidence, that the NYPD has illegally surveilled Black Lives Matter activists. Council members Dan Garodnick and Vanessa Gibson argue that “Surveillance technology often has a disproportionate, harmful impact on communities of color.” This claim is ludicrous. The radiation detectors that ring the city looking for nuclear threats, say, or the network of public cameras that protect critical infrastructure and sensitive buildings, have no disproportionate impact on minorities or any other group, other than on someone looking to do the city harm.
As for privacy concerns, the anti-surveillance Left has never grasped the constitutional principle that the Fourth Amendment has no bearing on activities conducted in the open. A police officer does not need a warrant to observe a suspicious individual on a street casing a target; the police department does not need a warrant to erect a camera in a public space capturing activities visible to other members of the public. The NYPD does need to persuade a court that it has probable cause to surveil any activity involving a legitimate expectation of privacy, such as a cell-phone conversation, and the department complies with those warrant requirements. Any surveillance that could implicate political activity already is subject to extensive judicial and civilian oversight.
Pretending to have expertise on terror tactics, the Brennan Center declares that none of the information disclosed through the POST Act will be of value to a potential terrorist or criminal. The chance that Brennan Center lawyers understand better than the NYPD’s counterterrorist experts how terrorists leverage information is zero.
The council press release frankly acknowledges that the bill is just a “first step” toward “limiting the unchecked use of surveillance technologies that . . . feed into a broader national surveillance state.” In other words: If we get this bill, we’re coming for more. Many of the law’s supporters, such as the Electronic Frontier Foundation, oppose all government secrecy, no matter how essential to public safety. But the agenda of the POST Act is broader even than shutting down lawful surveillance. It is the latest outgrowth of the movement to eviscerate all policing, a movement that encompasses the council’s ongoing effort to end public-order enforcement (also known as broken-windows policing). That movement now drapes itself in anti-Trump fervor. If it succeeds, the public will have much more to fear than the fictitious “national surveillance state.”