SURVEILLANCE STATE RAP

How a Drake concert put NYPD’s ‘arsenal’ of surveillance technologies under the spotlight

Alex Woodward

THE INDPENDENT
Mon, 30 January 2023

(Getty/iStock)

As Drake fans streamed out of Harlem’s historic Apollo Theater on January 21, they were greeted by a New York City Police Department officer with an iPhone. Holding the phone aloft at head height, the officer captured the faces of hundreds of people leaving the concert.

The incident, captured by a reporter for The New York Times and shared widely on social media, drew immediate criticism and a furious public backlash. To critics, the image serves as a reminder of the growing scale of everyday surveillance in the nation’s largest city under the eyes of the nation’s largest police force.

Over the next several days, police officials gave statements and television interviews to reassure the public that officers were not using the footage to surveil the crowd but instead, apparently, to shoot a promotional video. New York City Mayor Eric Adams even lauded the operation at his State of the City address, while dismissing the expressed fears and criticism from other New Yorkers.

But those New Yorkers had credible reasons to be alarmed – not only because they’re being watched, but watched in ways that are newer, more invasive and largely untested, watchdogs told The Independent.

The footage “serves as an unsettling reminder of the NYPD’s widespread surveillance practices that threaten the privacy of New Yorkers,” according to Daniel Schwarz, senior privacy and technology strategist at the New York Civil Liberties Union.

“NYPD has a vast arsenal of invasive technologies, including facial recognition and other video analytics, which it’s used for more than a decade to surveil and target New Yorkers – especially Black and brown communities,” he said. “People have every right to be alarmed, and we must demand real transparency and accountability.”

NYPD has the ability to track millions of people in Manhattan, Brooklyn and the Bronx with more than 15,200 cameras and facial recognition software that disproportionately targets neighbourhoods of color, according to Amnesty International. Police relied on facial recognition technology in at least 22,000 cases between 2016 and 2019.

“You are never anonymous,” Amnesty researcher Matt Mahmoudi said in a statement accompanying the report. “Whether you’re attending a protest, walking to a particular neighbourhood, or even just grocery shopping – your face can be tracked by facial recognition technology using imagery from thousands of camera points across New York.”

Last fall, New York Governor Katy Hochul announced a state programme for two cameras inside each of the city’s more than 6,400 subway cars, adding to a growing list of hundreds of existing cameras throughout the city’s subway system. “You think Big Brother’s watching you on the subways?” the governor asked during a press conference in September. “You’re absolutely right.”

A $3bn surveillance operation

A statement from the NYPD said that the officer who filmed the Drake event was a “community affairs officer involved with the 28th Precinct’s social media team” who was filming for a social media video to “highlight local community events”. The video “will not be utilized for any other reason,” according to the statement.

Mayor Adams hailed the incident as a “creative” way for police to engage the public, dismissing criticism coming from constituents on social media as “not real”.

“Twitter is not real and those little people that [go] back and forth all the time talking to themselves,” he said during an unrelated press conference the day after the concert. “When you have those that are sitting at home in the corner of the room, trying to find a reason to divide NYPD from everyday New Yorkers, then they are going to say that.”

The mayor gave a “thumbs up to that great captain up in the 28th precinct,” where precinct commander Captain Tarik Sheppard has taken credit for the operation. “We have to talk about how public safety is the backbone of being able to do these types of events,” Mr Sheppard told New York’s PIX11. “This has nothing to do with a facial recognition programme or anything like that … Never would I think an officer with a selfie stick and an iPhone 10 would be considered facial recognition.”

Addressing the footage in his State of the City address inside the Queens Theatre on 26 January, the mayor told New Yorkers to “stop starting off hating each other and start embracing each other”. But mounting scrutiny into the Apollo incident “highlights just how on edge New Yorkers are about the ways that the NYPD already is engaging in surveillance,” according to Albert Fox Cahn, founder of watchdog organisation Surveillance Technology Oversight Project.

“Every time we see people being subjected to these sorts of efforts, the response is just a litany of concerns and questions about, ‘What are you doing with this footage? How long are you keeping it? Who has access to it?’ And I think that comes because of so many scandals in the past where footage was used in ways that shouldn’t be,” he told The Independent.

New York City’s Police Department spent nearly $3bn growing its surveillance operations and adding new technology between 2007 and 2019. That included roughly $400m for the Domain Awareness System, built in partnership with Microsoft to collect footage from tens of thousands of cameras throughout the city, according to a recent analysis from STOP and the Legal Aid Society.

The NYPD has failed to comply with public disclosure requirements about what those contracts – from facial recognition software to drones and license plate readers – actually include, according to the report. Until 2020, that money was listed under “special expenses” in the police budget until passage of the Public Oversight of Surveillance Technology Act. The following year, more than $277m in budget items were listed under that special expenses programme, the report found.

In its review of NYPD’s compliance with the POST Act, NYPD’s own internal watchdog raised similar concerns. Though it is legally obligated to share information about its surveillance technologies with the public, the NYPD used such vague language in its reporting that it is hard to tell what exactly the police are using it for, according to a report from the Office of the Inspector General. That report found that disclosures do not contain “sufficient detail” for the office to perform annual audits or provide “full transparency” to the public. The NYPD’s statement responding to the report said the agency “remains committed to working collaboratively toward our shared goal of enhancing public safety as we build stronger relationships with the communities we serve.”

One firm, listed with the city as operating from an apartment in the East Flatbush neighborhood of Brooklyn, reportedly received a $2m contract for “Various Cameras, Recorders, and Accessories”. But when The New York Daily News tried to reach the person listed as the firm’s executive director, he said he had never heard of it. “I have no idea what you’re talking about,” he said. “This is very upsetting. I can barely pay my bills and my rent. I have nothing to do with any of this.”

In 2021, Amnesty International and STOP sued NYPD over public records disclosures about the use of surveillance tools. That case is ongoing. Amnesty International and STOP also have filed a lawsuit seeking records about the use of surveillance technologies before and during Black Lives Matter protests throughout 2020 after the NYPD denied a public record request. That case also is ongoing.

‘Dangerous, expensive, clearly unconstitutional’

Technological advances in police surveillance are the latest chapter in the NYPD’s long history of surveillance operations, from monitoring the Black Panthers in the 1970s to post-9/11 surveillance of Muslim communities and Black Lives Matter demonstrations. The Apollo incident also has echoes of the NYPD’S Enterprise Operations Unit, a group derided as the “hip hop police” that patrols the insides of clubs and other performance venues.

“One of the things that’s most frustrating about all of this is these technologies aren’t just unconstitutional. They’re not just bad for democracy. They oftentimes don’t work,” Mr Fox Cahn told The Independent.

A programme that relies on a network of always-recording microphones has faced widespread scrutiny from oversight authorities over false reports of gunshots. Such false reports can end up sending officers into crime scenes that don’t exist by responding to reports of gunfire that never happened, putting both police and civilians in harm’s way.

Mr Fox Cahn said that ShotSpotter technology, in use in dozens of cities across the US, is powerful enough to pick up nearby conversations, with the potential to operate as a warrantless wiretap across communities of color. In other words, it gives police unprecedented abilities to intrude into people’s private spaces. A recent investigation from the Associated Press discovered that human employees are given broad discretion to decide if a sound is a gunshot, fireworks, thunder or something else. A single human error made by someone who isn’t even present at the scene can therefore have widespread — potentially even catastrophic — consequences.

Another controversial law enforcement tool – a “geofencing” warrant – compels companies like Google to provide mobile device information from a particular time within a geographic area. If police suspect a crime was committed within that “fence”, they can collect that information to produce a suspect. Of course, collecting such information means that anyone within the “fence” will also have their data collected and provided to the police, simply for being in the wrong place at the wrong crime.

A handful of court rulings have found digital dragnets from geofence warrants unconstitutional. A federal court judge said they “plainly” violate the Fourth Amendment. But they have become a routine investigatory tool, including by federal law enforcement to identify people who stormed the US Capitol on January 6, 2021.

“A geofence warrant is such a broad tool, something which allows police to get thousands of people’s data through a single warrant,” Mr Fox Cahn told The Independent. “It’s something that is so dangerous, it’s so expensive, it’s clearly unconstitutional, and while the courts are slowly beginning to recognize that, we don’t have to wait the years it will take to litigate those to the Supreme Court, and New York stands poised to outlaw that particular type of surveillance. … It seems clear that lawmakers aren’t willing to stand by and let this continue much longer.”

Equipping police with facial recognition software and artificial intelligence pulling from databases across social media platforms “can potentially create a tool to track anyone, anywhere, at any time, across the city, obliterating any anonymity, and really transforming an open democratic city into a place of authoritarian control,” he added.
‘What recourse is there for the average New Yorker?’

In November, a personal injury lawyer seeing a Christmas Spectacular show at Radio City Music Hall in Manhattan was pulled out of the venue by security guards who had identified her with a facial recognition system linking her to an “attorney exclusion list”. The list – created by MSG Entertainment, the company that also operated Madison Square Garden and the Beacon Theatre – targets lawyers from more than 90 law firms representing clients engaged in litigation against the company. They are prohibited from entering the venues, some of New York’s most prominent performance spaces.

MSG Entertainment has justified the list by arguing that their presence “creates an inherently adverse environment.” The company’s billionaire chief executive, James Dolan, also threatened to shut down alcohol sales at a future New York Rangers hockey game and quoted The Godfather in his defense of the building’s use of facial recognition technology against perceived legal adversaries, saying in a rare, bizarre interview with New York’s Fox 5 that “it’s not personal, it’s strictly business.”

“Our values are important to us, too,” he said. “The Garden has to defend itself.” State Senator Brad Hoylman-Sigal, who has introduced legislation restricting facial recognition technology, called the interview a “public meltdown of a petulant, petty and vindictive billionaire”. The office of New York Attorney General Letitia James also is investigating the practice, suggesting that the company may be engaged in human rights violations.

In a letter to MSG Entertainment last week, Ms James requested information about the use of facial recognition technology used to “identify and deny entry” to lawyers representing clients in pending litigation against the company. Ms James said the allegations raise a number of red flags over violations of “local, state, and federal human rights laws, including laws prohibiting retaliation,” according to a statement from her office on January 25. “MSG Entertainment cannot fight their legal battles in their own arenas,” she added. “Madison Square Garden and Radio City Music Hall are world-renowned venues and should treat all patrons who purchased tickets with fairness and respect. Anyone with a ticket to an event should not be concerned that they may be wrongfully denied entry based on their appearance, and we’re urging MSG Entertainment to reverse this policy.”

STOP’s Mr Fox Cahn told The Independent that increasingly powerful technologies utilising burgeoning facial recognition technology are “simply too powerful” to wind up in the hands of police and private firms surveilling public spaces. “For years, we’ve let the police police themselves when it comes to mass surveillance, so elected officials have often abdicated their role in overseeing the agency allowing officers to choose what technologies are best,” he said.

New York state Senator Kristen Gonzalez, chair of the Senate’s Internet and Technology Committee, said she is “alarmed” by the lack of oversight of such technologies used by both “private and public” entities in the state.

“If Madison Square Garden can use biometric technology to ban an attorney from its premises, what recourse is there for the average New Yorker?” she in a statement. “It’s far overdue for the state to step in and enshrine regulations to protect our right to privacy and against discrimination.”