Is NYC’s new gunshot detection system recording private conversations?

As Tyrone Lyles lay dying from a gunshot wound on an East Oakland street in 2007, he let out a few last words that would ultimately help authorities convict his killer.

“Why you done me like that, Ar?” he pleaded. “Ar, why you do me like that, dude?”

The exchange, which was used in court, was recorded by ShotSpotter, a gunshot detection system that has been installed in over 90 cities across the country. By placing a series of microphones around high-crime neighborhoods, the system is able to pinpoint the location of where a gunshot took place with surprising accuracy, leading to faster response times from police.

This week, 300 of the microphones were activated in Brooklyn and the Bronx as part of a citywide pilot program.

“Today, we are rolling out cutting edge technology to make the city safer, to make our neighborhoods safer, to keep our officers safer,” NYC Mayor Bill de Blasio said in an appearance with police commissioner William J. Bratton to announce the initiative. “This gunshot detection system is going to do a world of good in terms of going after the bad guys.”

But cases in which microphones have picked up incriminating evidence have raised the eyebrows of privacy advocates, who note that there could be Fourth Amendment implications.

“We are always concerned about secondary uses of technology that is sold to us for some unobjectionable purpose and is then used for other purposes,” Jay Stanley, a senior policy analyst at the American Civil Liberties Union’s Speech, Privacy and Technology Project, told Take Part. “If [ShotSpotter] is recording voices out in public, it needs to be shut down.”

A 2013 investigation of ShotSpotter devices in Newark, NJ, found that 75 percent of the gunshot alerts had been for false alarms. — WNYC

On its website, ShotSpotter claims that its microphones “do not have the ability to overhear normal speech or conversations on public streets,” and says that it does not offer an audio livestreaming service for police departments. Only two seconds before a gunshot and four seconds after a gunshot are recorded, the company claims.

“In all cases [where voices have been recorded], the words were yelled loudly, in a public place, at the scene of a gunfire-related crime, and within a few seconds of that event,” the company writes. “The simple fact is that there has never been a case of a private conversation overheard or monitored by any ShotSpotter sensor anywhere at any time. Period.”

However, the company’s microphones have a history of not being as precise as the company claims. A 2013 WNYC investigation of ShotSpotter devices in Newark, NJ, found that 75 percent of the gunshot alerts had been for false alarms, meaning that audio clips were taken when there is likely no crime in progress. In those instances, police were still deployed to the area.

In the most recent case of a ShotSpotter voice recording being used in a criminal trial, the microphones picked up parts of a street argument just before a murder in New Bedford, Connecticut. “No, Jason! No, Jason!” someone could be heard in the recording before shots were fired. Two men—Jason Denison and Jonathan Flores were arrested and convicted of the murder. Though other evidence was presented at trial, the audio recording was used to corroborate the witness testimony.

It’s hard to argue with that outcome, but the case does bring some troubling questions to mind. If there was never gunfire, would law enforcement officials still have had access to that audio recording of the argument? How would they have used or acted upon it? And if such a large amount of ShotSpotter calls are for false alarms, how much ambient noise from the neighborhood are police at headquarters listening in to?

At the time, ShotSpotter spokeswoman Lydia Barrett emphasized how rare it was that the devices had picked up an argument.

“This is a very unusual circumstance if (the sensors) actually picked up any voices,” Barrett said. “In particular, I can’t ever remember in the history of our technology the sensors ever hearing a fight or some kind of argument going on.”

“There is no expectation of privacy on the street when you’re outside yelling on a public street,” Former Bristol County District Attorney C. Samuel Sutter (who is now the city’s Mayor) said about the New Bedford case, noting that the confrontation woke up neighbors even before shots rang out.

In New York City, Letitia James, the city’s public advocate, has introduced a bill to the city council to require quarterly reports on the data gathered by the new systems in Brooklyn and the Bronx. There has not been any legislation looking at the privacy implications of the technology.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.