Proposed “Right to Know Act” Would Empower Users of Digital Devices to Decline NYPD Searches

New York City is considering a range of legislative measures to increase civilian control over the New York Police Department (NYPD). Earlier this year, EFF endorsed the proposed Public Oversight of Surveillance Technology (POST) Act to increase transparency into the NYPD’s acquisition of surveillance technology, such as license plate readers and cell site simulators. Now EFF also supports the proposed Right to Know Act to guard the digital rights of New Yorkers and visitors impacted by so-called “consent” searches of their digital devices during stop and frisks.

The NYPD is the nation’s largest police department, with global operations and an unfortunately long history of acting outside its authority. Given its size and presence among domestic law enforcement agencies, NYPD policies can set national norms, which are why its abuses—and policies enacted to curtail them—are important not only to New Yorkers but all Americans.

In New York, the frequency of racially disparate detentions and searches of innocent New Yorkers exploded under an era of “broken windows policing” championed by former police commissioner Bill Bratton. (Bratton also worked in similar capacities in Boston and in Los Angeles, where his record prompted sustained criticism from local residents and communities.) “Broken windows policing” encourages police to aggressively pursue low-level crimes, driving NYPD officers to issue 1.8 million summonses between 2010 and 2015 for quality-of-life misdemeanors and infractions such as public drinking.

The “broken windows” paradigm often places police in a position to challenge, or even violate, constitutional limits on their authority.

This has grown especially apparent in the stop-and-frisk program used by the NYPD.  The constitutional authorization for stopping and frisking individuals dates to 1968, when the Supreme Court in Terry v. Ohio allowed brief detentions of civilians based on reasonable suspicion of crime, and pat-down frisks of detained civilians based on reasonable suspicion of concealed weapon possession.

Until 2011, the Department’s stop-and-frisk practices escalated dramatically, attracting widespread criticism from figures including the current Mayor, the city’s Public Advocate, and even a former New York State Attorney General. In 2013, a federal judge ruled that the NYPD’s stop-and-frisk practices reflected impermissible racial bias, and ordered an end to the Department’s disregard for constitutional limits on its authority.

Included in the items searched by NYPD officers during stops and frisks are portable electronic tools including cellular phones, tablets, and laptops. The rising tide of digital device searches around the country prompted the Supreme Court in 2014 to decide Riley v. California, limiting law enforcement authority to search cell phones without a warrant (even incident to arrest, when the state’s power over an individual stands at its zenith). The Riley court was clear that a judicial warrant is required for a mandatory search of a cell phone because they can reveal massive quantities of an individual’s most sensitive information, including communications, associations, locations, and photographs.

Even though Riley prohibited compulsory warrantless searches of digital devices incident to arrest, warrantless searches of electronic devices still continue, enabled by waivers of Fourth Amendment rights prompted by police requests for