Last week, the New York Police Department demanded that Waze, the hugely popular navigation app, remove users’ ability to report DUI checkpoints. In a letter to Google, Waze’s parent company, NYPD threatened to take legal action against the company and outlined why it thought the reports could be unlawful. This isn’t the first time that a city agency has complained about—or threatened to sue—Waze. According to some, the app is to blame for unsafe driving, congestion, and crime. But NYPD’s legal justifications for going after the app are dicey, while Waze appears to be in the clear.
Waze, which has more than 100 million users, is unlike most other wayfinding apps. Its main selling point is the app’s crowdsourced features, which allow users to share information about traffic, road conditions, and accidents. As Waze describes it, its users not only share information, but also share a “common goal: to outsmart traffic.” Waze users can report road hazards, red-light cameras, and the location of police vehicles—which police have complained about for years.
NYPD has taken issue with one of Waze’s new user-reporting features: DWI checkpoints. The department says that individuals who report DWI checkpoint locations might be trying to impair the enforcement of traffic and drunken driving laws. There’s only one problem: Publishing the location of a DWI checkpoint is not a crime—far from it. DWI checkpoints are quintessential police searches, intended to prevent the crime of drunken driving. Like other types of government activity, police searches are matters of public record.
Reporting or publishing information about government conduct is First Amendment–protected activity. As a result, any attempt by NYPD—a government actor—to halt that publication faces serious barriers. Government efforts to prevent the lawful publication of information by Waze users are presumptively unconstitutional. And NYPD’s letter is doubly questionable because the city is currently fighting a federal lawsuit that alleges it has a history of using illegal checkpoints that are disproportionately located in communities of color. The coincidence raises questions about whether NYPD is more interested in protecting public safety or saving its own hide.
Of course, NYPD ostensibly isn’t trying to stop individual Waze users from reporting the location of DUI checkpoints. Rather, it’s trying to cut off their microphones—their ability to use the platform to broadcast to the community of Waze users in New York City and beyond. The NYPD letter speculates that users who post DWI checkpoint locations on Waze might be intentionally trying to help others evade DWI laws, but evidence suggests that publicity regarding DWI checkpoints is helpful, not harmful. The reason, as described by the Centers for Disease Control and Prevention, is that checkpoints aren’t actually intended to catch drunken drivers in the act, but rather to deter drunken driving by “increasing the perceived risk of arrest.” Several studies have confirmed that “highly publicized checkpoint programs” effectively reduce the incidence of drunken driving accidents. DWI checkpoints are more effective at stopping drunken driving when they are public than when they are secret.
In any event, the law is clear that NYPD can’t force Waze to deactivate this feature. The reason is Communications Decency Act Section 230, the statute that makes it virtually impossible to hold websites or internet platforms liable for what their users post. Even sites that are designed to publish and host the most offensive material—revenge porn, for example—have successfully escaped liability because of CDA 230’s broad immunity. In order to hold Waze responsible as a publisher of its users’ reports of DUI checkpoints, NYPD would have to demonstrate both that those reports are actually unlawful and that the platform actually requires users to submit the unlawful information.
NYPD’s letter is a classic instance of what legal scholars call “jawboning.” The term describes when government knows it can’t force an actor to do what it wants, so it seeks to persuade it informally. Precisely because CDA 230 and the First Amendment pose such hurdles to legal action, jawboning is a particularly appealing strategy for governments seeking ways of holding internet companies accountable. That’s exactly what’s happening here. NYPD knows that it has no authority to actually compel Waze to deactivate this feature, so it’s choosing to fight a public relations battle instead.
This isn’t the first time that a police agency has threatened to take action against the app. In 2015, Los Angeles Police Chief Charlie Beck sent a similar letter to Google asserting that the ability to report police presence in the app—largely so users can avoid speeding tickets—“poses a danger to the lives of police officers.” The letter cited the tragic assassination of two NYPD officers, Rafael Ramos and Wenjian Liu, and claimed that their killer had used Waze to track the police. But the app was never explicitly connected to the killing, and judging by posts on the /r/Waze subreddit, the capability has remained one of Waze’s most popular features.
Nor are Waze’s woes limited to police. In 2018, a Los Angeles City Council member asked the city to sue the company for creating “dangerous conditions” on L.A. roads. Councilman David Ryu complained that the company—which claimed about 2 million users in and around Los Angeles—was causing congestion on neighborhood streets that had not been intended as arterial routes. Residents on one of the steepest streets in Los Angeles have said that the supposed “shortcut” is totally unsuitable and should be removed from the navigational algorithm. During massive wildfires in 2017, navigation apps reportedly directed users toward road closures and fires, not away from them, leading LAPD officials to warn residents not to use navigation apps at all.
Notably, none of these many complaints have given rise to legal action. In spite of the posturing, even cities that blame the app for intractable congestion, traffic, and safety issues know that suing Waze is a waste of time and resources. Instead, agencies appear eager to partner with the company on free data-sharing initiatives, allowing law enforcement to get a direct feed of real-time information from Waze users. While data sharing is unlikely to appease NYPD in this instance, it’s likely the best solution cities have for resolving their safety concerns in light of the protections for Waze and its users.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
