Digidog the Knightscope K5 Autonomous Security Robot, Starchase GPS tracking, and augmented reality-enhanced policing––sound Orwellian? Maybe, but this is not dystopian fiction. These are just a few of the many surveillance technologies adopted by the New York City Police Department (“NYPD”) in recent years. More specifically, these technologies mark the end of any good-faith attempts by NYPD to comply with the Public Oversight of Surveillance Technology (“POST”) Act. As the POST Act nears its five-year mark, a brief retrospective on the Act reveals how NYPD’s increasing evasion of its requirements signals what may be in store for the Act’s future.
History of the POST Act
The POST Act, passed in 2020, amended the city’s Administrative Code to require NYPD to comply with specific requirements when adopting surveillance technology or enhancing existing surveillance tools[1]. In particular, NYPD must build and distribute an Impact and Use Policy (“IUP”) for each new or enhanced surveillance technology, disclosing critical information to the public such as how the technology will be used, what safeguards will be put in place to protect citizens’ privacy, and how the technology may have disparate impact on protected groups[2].
While progressive in spirit, the Act’s legal potency has proven limited. The history of NYPD’s compliance with the POST Act is captured in annual compliance reports produced by the Office of the Inspector General (“OIG”).[3] NYPD’s initial departure from compliance with the Act started in 2022. In 2022, the terms used in NYPD’s IUPs started to become “general and generic” with “similar language used in many of them.”[4] NYPD slipped further in 2023, and the OIG’s May 2024 report highlighted that NYPD was shoehorning new technologies, including the aforementioned three, into existing IUPs for other technologies, and failing to adequately update risk disclosures in the existing IUPs. This “create[d] a risk that individual technologies may be shielded from public scrutiny and oversight, limiting the transparency about these technologies that the POST Act sought to create.”[5]
Drones
Turning to the main focus of the OIG’s 2024 report, NYPD’s drone usage (also known as Unmanned Aircraft Systems, or “UAS”) practices have demonstrated a reckless disregard for compliance with the POST Act’s requirements and, without follow-up action, set a precedent completely stripping the POST Act of its substantive requirements. Among other findings, the report identifies the following: “multiple units within NYPD have operated their own UAS programs” despite the IUP committing to consolidating drone programs under the Technical Assistance Response Group (“TARU”); the “UAS IUP does not disclose several capabilities of the UAS”; and that “OIG-NYPD was unable to… assess compliance with its IUPs, as it only provided records related to the Transit Bureau’s deployments.”[6] Put simply, NYPD has not preemptively disclosed which units will use UAS, how those undisclosed units will be using UAS, and has even failed to adequately disclose this information to the OIG during the office’s annual compliance investigation.
The POST Act is intended to put the public on notice about surveillance technology usage. But as it stands, it does not. Take the Drone as First Responder (“DFR”) program for example. Despite its implementation being announced on November 13, 2024, the program was responsible for 1,715 flights through the Third Quarter of 2024––approximately 60% of all NYPD drone flights during that period––all before the program was formally announced.[7] What exactly were these deployments and what risks did they entail? We don’t know, unfortunately, as we only have a watered-down UAS IUP from NYPD.
Moving Forward
The vices of surveillance technology need little repetition here. Instead, it’s worth pausing on three excerpts from the UAS IUP to illustrate the degree of ambiguity and surveillance risk incumbent in the policy:
(1) “When UAS are used to conduct aerial surveillance of areas exposed to public observation, court authorization is not required prior to their use.”[8] Yes, NYPD is legally asserting its right to fly drones over any spaces exposed to public observation.
(2) “NYPD UAS do not use facial recognition technologies and cannot conduct facial recognition analysis. However, a still image can be created from the recorded video images and may be used as a probe image for facial recognition analysis.”[9] Yes, NYPD is saying, confusingly, that while the UAS itself will not be used for facial recognition, the stills captured by UAS are fair game.
(3) “UAS must be used in a manner that is consistent with the requirements and protection of the Constitution of the United States, the New York State Constitution, and applicable statutory authorities.”[10] This is good, but how? Questions abound regarding the constitutionality of drones in applications across society. Will anyone actually hold NYPD accountable as to the constitutionality of UAS deployments?
It’s not clear whether a better outcome for the public is to have NYPD water down IUPs for surveillance technology or put terms into surveillance technology that they completely disregard. In any case, the unfortunate reality is that we’ve receded into a pre-POST Act world of not knowing what’s coming down the pike for NYPD surveillance.
[1] See N.Y.C. Dep’t of Investigation, An Assessment of NYPD’s Compliance with the POST Act (December 18, 2024), at: https://www.nyc.gov/assets/doi/reports/pdf/2024/49PostActRelease.Rpt.12.18.2024.pdf (last accessed February 17, 2025).
[2] See N.Y.C. ADMIN. CODE §§ 14-188(b), (e), & (f)
[3] See generally NYC DOI 2024 Post Act Compliance Report, Supra note 1 at 5-6.
[4] Id. at 9.
[5] See N.Y.C. Dep’t of Investigation, An Assessment of NYPD’s Compliance with the POST Act (May 30, 2024), at 5, available at: https://www.nyc.gov/assets/doi/reports/pdf/2024/25PostActRelease_Rpt_05_30_2024.pdf
[6] NYC DOI 2024 Post Act Compliance Report, Supra note 1 at 5-6.
[7] Id. at 16.
[8] See N.Y.C. Police Dep’t, Unmanned Aircraft Systems Impact and Use policy (Sep. 22, 2023), at 5, available at: https://www.nyc.gov/site/nypd/about/about-nypd/policy/post-act.page
[9] Id. at 4.
[10] Id.