As part of Ashoka’s ongoing series on Tech and Humanity, I spoke with Albert Fox Cahn, founder and Executive Director of Surveillance Technology Oversight Project (STOP) about his work and recent legal wins at the intersection of civil rights, privacy, and technology.

Konstanze Frischen: Congratulations, Albert, STOP celebrated another victory this month!

Albert Cahn: Yes, we just helped end the “hijab removal” policy in New York City – now suspects will not be forced to remove hijabs or other religious attire for mugshots when their face is visible. Our plaintiffs included a survivor of domestic violence who was traumatized by the New York Police Department (NYPD) when she was forced to undress in front of male arrestees and officers. Part of why we believe the NYPD pursued this practice for so long was that the police continues to seek to expand its facial recognition database, and used to feed more and more mugshots – including those that should have been deleted under state law – into their growing database. 

Frischen: Give us a sense for the dimension of digital surveillance in NYC.

Cahn: It’s huge. I wish more people knew about that. When the city was forced to stop unconstitutional pat downs, they simply switched to digital stop and frisk, building up a database of tens of thousands of New Yorkers, 99% of them people of color. In New York City alone, there were 22,000 facial recognition searches in the last three years. Overwhelmingly, the ones targeted are communities of color — there’s over-surveillance, over-policing, and discriminatory harassments. There are numerous fusion centers that share information between state, local authorities, and the federal government, despite claims of being a sanctuary state and a sanctuary city. Billions of dollars have been invested in the NYPD’s counterterrorism surveillance, including thousands of automated license plate readers, drones, an expanding array of biometric tracking tools. 

Frischen: So the right to privacy is being constantly undermined – especially when you are not white.

Cahn: Yes. Police departments operate in a space where what they’re doing hasn’t been outlawed, but it also hasn’t been authorized. And so in the absence of legal rules and in the absence of civilian control, the police officers are rewriting elements of the social contract. And they’re doing it in ways that really undermine those core values of an open society. 

Frischen: Your work is about setting new legal rules and bringing back civilian control. STOP has successfully initiated new legislation to enable more citizens to defend their rights in court.

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Cahn: Yes. What happens is that oftentimes, digital surveillance programs evade court challenge and constitutional review, because so many of those who are subjected to them never know that they’ve been in NYPD cross hairs. They are given zero indication. This is part of why we built a coalition of over 100 citizen organizations, and together led the legislative campaign to enact the Public Oversight of Surveillance Technology Act. The POST Act was passed in June this year. In about two months, it will require the NYPD to disclose every single spy tool it uses, as well as the privacy policy for those tools, and information on how data from those systems is shared with federal officials, including immigration enforcement officials. And as a result of that, we’ll be able to actually go to court to litigate this. And we’re going to be able to go and argue for these tools to be outlawed.

Frischen: The underlying argument you’re making here is that our legal system has not kept up with the pace of change in technology, and we need to update our social contract for the digital age. 

Cahn: Yes. For instance, in the analogue world, the 4th Amendment was upheld up by the fact that surveillance was so expensive. And now the economics changed. Let me explain: Under the Fourth Amendment, we require particularized evidence to justify a search. And for a long time, economics enforced a level of particularity beyond what our precedent, our case law required. Because police departments had to choose, is it worth spending thousands of dollars to install this wiretap? Is it worth hours and hours of overtime to send a rotating surveillance team to track someone’s movement? To have officers trying to eavesdrop on your conversations and follow you around? All that costs a huge amount. But now, it’s possible to use facial recognition or a geofence warrant or information from rideshare accounts, to completely surveill someone for the act of graffiti, for the act of shoplifting. And because there is no marginal cost to scaling surveillance up, it becomes more and more prevalent. 

Frischen: To help us update the social contract for the digital age, you’re betting on litigation and legislation, and you drive both together with the communities most affected. How is support for your work shaping up?

Cahn: Communities have been indispensable to our work. When I founded STOP, it was in partnership with our community advisory board: I wanted to ensure that the organization is held structurally accountable to the communities we serve. We have leading public intellectuals, academics, grassroots community organizers and activists who are setting our priorities as an organization, and doing the work of choosing what we focus on, making sure that we remain accountable to those who have been most oversurveilled for so long. 

We got over $1.2 million in free legal services from law firms in our first year alone, and are hoping to more than double that this year. Many lawyers feel deeply alarmed and see the need to defend the basic safeguards of civil rights. And it’s indeed something particularly potent right now due to COVID-19. There are invasive COVID-19 contact tracing technologies, being deployed in the name of public health, but oftentimes with no proof that they work, no proof that they work without significant risk of bias, and no safeguards against misuse by law enforcement. All that goes to the core of our constitutional rights. What does freedom of religion mean if attending a mosque is going to potentially get you into a database? What does freedom of assembly mean when participating in an anti-Trump protest might get you put in a database? When the names of everyone at a public protest can be instantly obtained by serving a court order on Google? Let’s assume you have parents who are undocumented.  The fact that you’re in a database – might that make ICE prioritize your parents for deportation?  These are the sorts of horrifying questions that people, especially communities of color, face every day in the age of mass police surveillance, and it undermines the very concept of our being an open society. 

Albert Fox Cahn is S.T.O.P.’s founder and executive director, and an Ashoka social entrepreneur. Albert serves on the New York Immigration Coalition’s Immigrant Leaders Council, the New York Immigrant Freedom Fund’s Advisory Council, is an editorial board member for the Anthem Ethics of Personal Data Collection, and a Fellow at the Engelbert Center at NYU School of Law. He received his J.D. from Harvard Law School (where he was an editor of the Harvard Law & Policy Review), and his B.A. in Politics and Philosophy from Brandeis University. He previously served as legal director for a statewide civil rights organization, and as an associate at Weil, Gotshal & Manges LLP, where he advised Fortune 50 companies on technology policy, antitrust law, and consumer privacy. 

You can follow Albert and his work on Twitter via @FoxCahn and @StopSpyingNY

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