Lawyers Launch Effort To Track Policing Of Social Distancing

By Emma Whitford
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Law360 (April 28, 2020, 10:03 AM EDT) -- Attorneys and law students across the country can help file records requests to learn if and how police departments are using surveillance technology to monitor social distancing, the Surveillance Technology Oversight Project announced Tuesday.

Albert Fox Cahn, who directs the New York City-based nonprofit, part of the Urban Justice Center, said that his team hopes to better understand the scope of law enforcement surveillance efforts in order to target potential Fourth Amendment violations as localities work to contain the spread of COVID-19.

"I was really alarmed when we started to see reporting that federal, state and local agencies were using technology to monitor social distancing without any public engagement, without any disclosure of how these tools work, without the usual democratic safeguards that we expect," Cahn told Law360.

STOP on Tuesday launched a website with guidelines for filing records requests, and a portal to submit them for analysis. It is the organization's largest-scale public records request effort to date, according to Cahn.

The organization, which aims to highlight and challenge discriminatory surveillance, has previously sued under New York's Freedom of Information Law to learn how the New York City Police Department uses tools to download and decrypt cell phone data, according to its website.  

Cahn and his team were inspired by reporting in The Wall Street Journal in late March that the Centers for Disease Control and Prevention is sharing cellphone location data with state and local governments to track areas of dense congregation, like parks. Cahn also noted the New York City Police Department's use of drones to monitor social distancing.

Police departments demonstrated after Sept. 11 that surveillance tools can be used to police a wide range of crimes, including misdemeanors, disproportionately against communities of color, Cahn added. 

Health and privacy experts and attorneys have already begun to consider how governments might balance efforts to protect the public from COVID-19, with concerns about invasive technologies.

At STOP, Cahn says there is urgent interest in defending recent precedent in the Supreme Court case Carpenter v. United States , which in 2018 found that the federal government generally needs a warrant to access historical cellphone location records.

"We're quite nervous that government agencies will effectively set a new norm for warrantless location tracking during this public health crisis," he said.

"Before we get to the point of deciding how to respond and potential litigation," he added, "we have to understand what is being done."

STOP has enlisted help from Rights Over Tech, a civil rights group of New York University Law School students. The organization is also in talks with students at the Cardozo School of Law and Fordham University, and hopes to make a flurry of New York requests before pushing the project nationwide.

"We are hoping to leverage the interest from students to take on civil rights work at a time when a lot of traditional forms of legal practice are sidelined," Cahn said.

Cassi Carley, co-founder of Rights Over Tech at NYU, said the project is a good opportunity for remote learning.

"The thing here is not necessarily saying that the surveillance is bad or not. But just being part of collecting the information to know how it is being used is important to make sure there aren't disparate outcomes, especially for marginalized groups," Carley said.

--Additional reporting by RJ Vogt and Allison Grande. Editing by Katherine Rautenberg.

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