Op-Ed: The NYPD-Clearview Scandal Shows Only Oversight Will Stop the Spying and the Coverups

Albert Fox Cahn & Lindsay Greyerbiehl Jan 28, 2020

In New York, a city whose recent surveillance scandals range from a juvenile DNA database to dangerous body scans for pregnant women, it’s hard to be shocked when new spy tools come to light. But when news surfaced last week about the NYPD’s connections to the controversial facial recognition firm Clearview, the public took note. 

Clearview made international headlines for using billions of photos without permission, creating near-universal facial recognition. But here in New York, one of the most galling aspects wasn’t the spying. It was the coverup.

When Buzzfeed first-reported on the NYPD’s dubious links to Clearview, the NYPD denied any connection. Again and again, the NYPD claimed it had no “institutional relationship” with Clearview. The denial was reassuring until the cover story evaporated four hours later.

As soon as the ink was dry on the NYPD denials, the New York Post exposed that the NYPD has dozens of active accounts using Clearview, running thousands of searches. One officer used Clearview just two hours before Buzzfeed published the NYPD’s cover story. 

If the NYPD is willing to say one thing in public and do another behind closed doors, it hasn’t earned our trust.

The NYPD continues to massage the facts, insisting it has no official connection to Clearview, but admitting that it gave officers access to the Orwellian startup’s software during a trial period — a trial period that used unsuspecting New Yorker’s digital identities to run searches of our location data, social media history, and so much else. 

If the NYPD had no official connection to the software, does that mean that the department placed any limitations on where and how the application could be used? Were officers’ accounts audited to make sure they only used the software for official police purposes? It only takes one officer fixated on a romantic partner to transform terrifying technology into a stalking nightmare.

This danger is present with many forms of technology, but it’s particularly potent with Clearview. The startup claims to have scraped billions of photos from Twitter, Facebook, Venmo, Instagram, YouTube and other platforms, all without our consent. Tech giants that have harvested our data for a profit for years are none too happy that Clearview is trying to cut in on their cash cow, and Twitter has even sent a cease-and-desist letter demanding Clearview delete the collected data.

But we can’t rely on the behemoths of surveillance capitalism to be our privacy watchdogs, protecting the public’s privacy from the police. Copyright rules and terms of service were designed to protect against copycat creators, not to draw the line on how the police harness our digital identities.

 This entire scandal points to a far-deeper dilemma: the failure of localities to provide oversight on how their police departments monitor the public. The situation with the NYPD is particularly problematic.

For too long the NYPD has operated with free reign. Using federal grants and private donations, the department has adopted disturbing new technologies without any review by the elected officials entrusted with their oversight. This surveillance loophole is why a bipartisan coalition of reformers has fought for nearly three years to enact the Public Oversight of Surveillance Technology (“POST”) Act, which would require the NYPD to create privacy protections for every spy tool it uses. 

City Council members agree. Thirty-three of the 51 elected officials have already signed onto the bill, as has Public Advocate Jumaane Williams. With a super-majority in place and passage guaranteed, the only question is whether Speaker Corey Johnson will allow the measure to come up for a vote.

The NYPD has fought the bill. It has said that the public needs to simply “trust us” to do the right thing. But if the NYPD is willing to say one thing in public and do another behind closed doors, it clearly hasn’t earned our trust. How many times does the NYPD have to get caught in a lie before we make clear that public oversight is not optional?

 Albert Fox Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law.

Lindsay Greyerbiehl is a civil rights intern at the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, and a second-year law student at Northeastern University School of Law.