New York County Defender Services

Testimony of

Sergio De La Pava

Legal Director

New York County Defender Services

Before the

Committee on Public Safety

Intro. 487-2018

The Public Oversight of Surveillance Technology (POST) Act

December 18, 2019

My name is Sergio De La Pava and I am the Legal Director at New York County Defender Services (NYCDS), a public defense office that represents tens of thousands of New Yorkers in Manhattan’s criminal courts every year. I have been representing clients accused of crimes in this city for more than twenty years. Thank you to Chair Richards for holding this hearing on the POST Act, a critical piece of legislation that NYCDS strongly supports.

Police are surveilling all of us using invasive new technologies to an extent previously unimagined.[1] Defense attorneys stand as the front line of defense for our clients against the state. Yet what we currently receive in terms of disclosure from prosecutors and NYPD about existing technology and its use is, we believe, merely the tip of the iceberg. In order for people accused of crimes to fully understand and dispute the charges against them, we must have transparency about the kinds of technology that exist and how they are used. The POST Act would require the NYPD to publicly disclose this information to the benefit of our entire society, not just those accused of crimes.

We believe the POST Act is a critical first step in protecting communities from surveillance overreach.  But it should not be the last. The City Council must also investigate other city entities that are using public money to surveil residents, such as the Department of Correction, and fund technology upgrades for defenders to create a more level-playing field between police and accused people.

Here are the kinds of surveillance technology we do know exist[2]:

• Facial recognition technology
• Video analytics
• Social media monitoring
• Gang database
• Predictive policing
• Stingrays, also known as “cell site simulators” or “IMSI catchers”
• Automated license plate readers
• Domain awareness system
• Drones
• X-ray vans
• Cameras located all over the city

We know these types of surveillance technology are used against our clients and their communities, but we do not know how they are implemented by the NYPD. We do not even know how frequently these technologies are involved in a given criminal case because we receive limited pre-trial discovery. While we hope to have a better sense of the extent of their use after the new discovery reform goes into effect in January 2020, we still will not have access to the underlying policies and procedures without passage of this bill.

New technology: Voice recognition technology

We recommend the Council consider amending the POST Act to require that other city offices or agencies disclose their use of surveillance technology as well.  In particular, we recently learned that our clients detained on Rikers Island are now required to record their voice to enroll in a voice surveillance system if they want to make phone calls to their attorney or loved ones.

This voice recognition technology is being used against our clients and members of the public alike:

In New York and other states across the country, authorities are acquiring technology to extract and digitize the voices of incarcerated people into unique biometric signatures, known as voice prints. Prison authorities have quietly enrolled hundreds of thousands of incarcerated people’s voice prints into large-scale biometric databases. Computer algorithms then draw on these databases to identify the voices taking part in a call and to search for other calls in which the voices of interest are detected. Some programs, like New York’s, even analyze the voices of call recipients outside prisons to track which outsiders speak to multiple prisoners regularly.[3]

We fear that this technology is being used by DOC, in conjunction with NYPD, for law enforcement investigative purposes, without a warrant and without consent from our clients and their loved ones. The POST Act should be amended to ensure that all law enforcement technology, whether used by NYPD, DOC, or any other government agency, is fully disclosed to the public.

Increase access to technology for accused people 

As the NYPD ramps up its reliance on technology to surveil New York City residents, the City Council must ensure that defenders are equipped with the technology we need to defend our clients’ rights and serve as a check on governmental overreach.

The Legal Aid Society has a digital forensics unit that was recently highlighted in the New York Times.[4] The unit has invested $100,000 in technology that allows defenders to make precise copies of computer drives or a person’s phone in a format that holds up in court. This technology is critical to preserve evidence that may exonerate an accused person. But smaller defender offices like ours, who still represent thousands of clients every year but operate on a far lesser budget, do not have access to such tools.

Example:

The NYPD is increasingly relying on facial recognition to identify people alleged to have committed crimes on the subways. They take a still photo of someone on the train and attempt to “match” that photo with a photo of someone already in their database. Facial recognition technology has a 20-30% error rate for people of color, according to some studies.[5] Imagine our client is accused but insists they are innocent. There is evidence on their phone that they were not anywhere near the subway at the time of the alleged crime, but it is trapped in their phone.

In a situation like this, we need to not only know the algorithms and science that underlie the facial recognition technology that police relied on to make the match, but we also need to have tools to aggressively challenge those allegations in court. In short, we strongly support the passage of the POST Act, but we recommend that it be extended to include other city agencies and that the Council begin to study the other ways that technology is being improperly used against communities of color and how best to fight back.

If you have any questions about my testimony, please contact me at sdelapava@nycds.org.

[1] Jon Schuppe, Amazon is developing high-tech surveillance tools for an eager customer: America’s police, NBC News, Aug. 8, 2019, available at https://www.nbcnews.com/tech/security/amazon-developing-high-tech-surveillance-tools-eager-customer-america-s-n1038426.

[2] See Brennan Center, New York City Police Department Surveillance Technology, Oct. 4, 2019, available at https://www.brennancenter.org/our-work/research-reports/new-york-city-police-department-surveillance-technology.

[3] George Joseph & Debbie Nathan, Prisons across the U.S. are quietly building databases of incarcerated people’s voice prints, The Intercept, Jan. 30, 2019, available at https://theintercept.com/2019/01/30/prison-voice-prints-databases-securus/.

[4] Kashmir Hill, Imagine Being on Trial. With Exonerating Evidence Trapped on Your Phone. N.Y. Times, Nov. 22, 2019, available at https://www.nytimes.com/2019/11/22/business/law-enforcement-public-defender-technology-gap.html.

[5] See, e.g., Steve Lohr, Facial recognition is accurate, if you’re a white guy, N.Y. Times, Feb. 9, 2018, available at https://www.nytimes.com/2018/02/09/technology/facial-recognition-race-artificial-intelligence.html.