Police use of X ray vans in New York and privacy

October 22, 2015 |

The US Supreme Court in KYLLO v. UNITED STATES found that the use of a thermal imaging van to scan a building to determine whether the heat emanating from it was consistent with lamps used for cultivating marijuana indoors constituted a search under the Fourth Amendment which required a warrant.  The Court held:

Where… the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant

According to the Atlantic in The NYPD Is Using Mobile X-Ray Vans to Spy on Unknown Targets the New York City Police Department is using military vans to look through walls and sides of trucks.  How this does not fall into the same category of warrantless search will be interesting to see.

Just because the technology exists that doesn’t mean it should be used by law enforcement.  The X-ray vans were developed for use in a theatre of war, Afghanistan.  There is a world of difference between deploying an intrusive form of technology in a war zone than policing the streets of New York.

The New York Civil Liberties Union has filed an application seeking leave to file an amicus brief in support of a claim by Michael Grabell for information about the program.

Privacy laws must be sufficiently robust, flexible and technologically neutral to consider the rapidly developing technology and its inventive and subtle (or less so often involving government or police) use.  In Australia the common law and equity may be technology neutral but is poorly developed to deal with the challenges to privacy.  It is not particularly robust and quite inflexible.

The article provides:

Dystopian truth is stranger than dystopian fiction.

In New York City, the police now maintain an unknown number of military-grade vans outfitted with X-ray radiation, enabling cops to look through the walls of buildings or the sides of trucks. The technology was used in Afghanistan before being loosed on U.S. streets. Each X-ray van costs an estimated $729,000 to $825,000.

The NYPD will not reveal when, where, or how often they are used.

“I will not talk about anything at all about this,” New York Police Commissioner Bill Bratton told a journalist for the New York Post who pressed for details on the vans. “It falls into the range of security and counter-terrorism activity that we engage in.”

He added that “they’re not used to scan people for weapons.”

Here are some specific questions that New York City refuses to answer:

How is the NYPD ensuring that innocent New Yorkers are not subject to harmful X-ray radiation?
How long is the NYPD keeping the images that it takes and who can look at them?
Is the NYPD obtaining judicial authorization prior to taking images, and if so, what type of authorization?
Is the technology funded by taxpayer money, and has the use of the vans justified the price tag?

Those specifics are taken from a New York Civil Liberties Union court filing. The legal organization is seeking to assist a lawsuit filed by Pro Publica journalist Michael Grabell, who has been fighting New York City for answers about X-ray vans for 3 years.

“ProPublica filed the request as part of its investigation into the proliferation of security equipment, including airport body scanners, that expose people to ionizing radiation, which can mutate DNA and increase the risk of cancer,” he explained. (For fear of a terrorist “dirty bomb,” America’s security apparatus is exposing its population to radiation as a matter of course.)

A state court has already ruled that the NYPD has to turn over policies, procedures, and training manuals that shape uses of X-rays; reports on past deployments; information on the costs of the X-ray devices and the number of vans purchased; and information on the health and safety effects of the technology. But New York City is fighting on appeal to suppress that information and more, as if it is some kind of spy agency rather than a municipal police department operating on domestic soil, ostensibly at the pleasure of city residents.

Its insistence on extreme secrecy is part of an alarming trend. The people of New York City are effectively being denied the ability to decide how they want to be policed.

“Technologies––from x-ray scanners to drones, automatic license plate readers that record license plates of cars passing by, and ‘Stingrays’ that spy on nearby cell phones by imitating cell phone towers—have brought rapid advances to law enforcement capacity to monitor citizens,” the NYCLU notes. “Some of these new technologies have filtered in from the battlefields into the hands of local law enforcement with little notice to the public and with little oversight. These technologies raise legitimate questions about cost, effectiveness, and the impact on the rights of everyday people to live in a society free of unwarranted government surveillance.”

For all we know, the NYPD might be bombarding apartment houses with radiation while people are inside or peering inside vehicles on the street as unwitting passersby are exposed to radiation. The city’s position—that New Yorkers have no right to know if that is happening or not—is so absurd that one can hardly believe they’re taking it. These are properly political questions. And it’s unlikely a target would ever notice. “Once equipped, the van—which looks like a standard delivery van—takes less than 15 seconds to scan a vehicle,” Fox News reported after looking at X-ray vans owned by the federal government. “It can be operated remotely from more than 1,500 feet and can be equipped with optional technology to identify radioactivity as well.”

In her ruling, Judge Doris Ling-Cohan highlights the fact that beyond the privacy questions raised by the technology are very real health and safety concerns. She writes:

Petitioner states in his affidavit, and respondent does not dispute, that: backscatter technology, previously deployed in European Union airports, was banned in 2011, because of health concerns; an internal presentation from American Science and Engineering, Inc., the company that manufactures the vans, determined that the vans deliver a radiation dose 40 percent larger than delivered by a backscatter airport scanner; bystanders present when the van is in use are exposed to the radiation that the van emits… moreover, petitioner maintains, and it is not disputed by the NYPD, that ‘there may be significant health risks associated with the use of backscatter x-ray devices as these machines use ionizing radiation, a type of radiation long known to mutate DNA and cause cancer.

Finally, petitioner states, again without dispute, that, on August 2011, the United States Customs and Border Protection Agency, which used the vans to scan vehicles crossing into and out of the United States, despite repeated testing and analysis of the amount of radiation emitted by such devices, nevertheless, prohibited continued use of the vans to scan occupied vehicles, until approval was granted by the United States Custom and Border Protection Radiation and Safety Committee…

And since the technology can see through clothing, it is easy to imagine a misbehaving NYPD officer abusing it if there are not sufficient safeguards in place. Trusting the NYPD to choose prudent, sufficient safeguards under cover of secrecy is folly. This is the same department that spent 6 years conducting surveillance on innocent Muslims Americans in a program so unfocused that it produced zero leads—and that has brutalized New York City protestors on numerous occasions. Time and again it’s shown that outside oversight is needed.

Lest readers outside New York City presume that their walls still stand between them and their local law enforcement agency, that isn’t necessarily the case. Back in January, in an article that got remarkably little attention, USA Today reported the following:

At least 50 U.S. law enforcementagencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of houses to see whether anyone is inside, a practice raising new concerns about the extent of government surveillance. Those agencies, including the FBI and the U.S. Marshals Service, began deploying the radar systems more than two years ago with little notice to the courts and no public disclosure of when or how they would be used. The technology raises legal and privacy issues because the U.S. Supreme Court has said officers generally cannot use high-tech sensors to tell them about the inside of a person’s house without first obtaining a search warrant. The radars work like finely tuned motion detectors, using radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. They can detect whether anyone is inside of a house, where they are and whether they are moving.

The overarching theme here is a law enforcement community that has never seen a technology that causes it to say, “We’d better ask if the public wants us to use this or not.”

Instead, the usual protocol is not only to adopt new technology without permission—regardless of the privacy, health and safety, or moral questions that it raises—but to keep having done so a secret as long as possible, and to hide the true nature of the technology in question even after the public has been alerted to its existence. The fact that this pattern has held in regards to a device that can look through walls while emitting radiation on the streets of New York City raises questions including “What’s next?” “What else don’t we know about?” and “Will any technology on the military-to-police pipeline ever cause cops to ask permission first?”

One Response to “Police use of X ray vans in New York and privacy”

  1. Police of X ray vans in New York and privacy | Australian Law Blogs

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