Judge Tells Research Center To Give Back Facial Recognition Documents The NYPD Forgot To Redact
from the was-'lol-gfy'-not-an-option? dept
The NYPD, that paragon of opacity, screwed up. And now it wants its stuff back.
The Georgetown Center on Privacy & Technology has been engaged in a public records lawsuit against the NYPD since 2017. It's seeking records on the department's use of facial recognition technology. The NYPD has fought hard, but has been forced to hand over almost 3,700 pages of relevant info to date. This after initially telling the Center it had "no responsive documents."
Contained in the steady drip of documents handed over to the Center was something the NYPD wasn't supposed to release in unredacted form. It took almost a month for the department to realize it had screwed up. Rather than let uncensored bygones be bygones, the NYPD took it up with the judge presiding over the case. The NYPD's legal rep wasn't too thrilled with the department's inadvertent transparency.
City attorney Jeffrey Dantowitz conceded that the disclosure was a fiasco.
“That a few documents were inadvertently produced without the intended redactions, while careless, was neither an intelligent nor voluntary disclosure," he wrote in court papers.
So what? Why should this be the Center's problem? Especially when the NYPD didn't realize what it had done for more than 20 days, which allowed the security researchers to peruse the unredacted documents. You can't claw back what's contained in people's minds. In this era of digital duplication, you can't really claw back documents at all.
Nevertheless, a Manhattan judge has agreed to let the NYPD engage in this exercise in futility.
A Manhattan judge has ordered academics researching the NYPD’s facial recognition technology to return documents the police cops accidentally turned over.
Justice Shlomo Hagler said the NYPD “should be more diligent” but that it was clear the 20 pages of confidential information were shared with the Georgetown Center on Privacy and Technology due to an “inadvertent error.”
The judge says Clare Garvie, the Center's attorney, can speak about the documents publicly, but cannot specifically reference which documents she's talking about. As Garvie points out, this effectively neuters this knowledge. Garvie can make assertions based on the documents she's seen, but she can't back those assertions up by referencing the documents.
Even more ridiculously, the NYPD has publicly discussed the information it now claims is too sensitive to remain in Center's hands. A presentation on the NYPD's facial recognition systems was given to conference attendees in 2018 -- a conference anyone with $1,700 on hand could attend, including non-law enforcement members of the public.
And yet the order stands resolute, ignoring logic, common sense, and the NYPD's willingness to share this same "sensitive" info with deep-pocketed randos. This reeks of vindictiveness, rather than actual concern about leaking law enforcement tools of the trade. The Center has already forced 3,700 pages out of the hands of an agency that claimed it had zero pages to turn over prior to being sued. It seems like the NYPD just wants to make the Center pay -- in one form or another -- for anything else it can no longer pretend it doesn't have.
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Filed Under: clare garvie, leaks, new york, nypd, public records, releases, shlomo hagler
Companies: georgetown center on privacy and technology
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'Your mistake should not be my problem.'
It seems like the NYPD just wants to make the Center pay -- in one form or another -- for anything else it can no longer pretend it doesn't have.
And unfortunately found a judge either clueless or similarly vindictive to back them up on it.
'You can talk about what you inadvertently got, but you can't actually present evidence to support anything you say' is beyond ridiculous, and smacks of a judge either really trying to stick it to the researchers, or desperately trying to make their order look less absurd and present it as something other than punishing the researchers for the NYPD's screw-up.
I would hope that the researchers can and will appeal this, and that if they do the next judge up the chain rightly places the blame squarely on the NYPD, such that they don't get to punish the researchers(more) for their mistake.
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Re: 'Your mistake should not be my problem.'
I'd expect that they can appeal. Though they might get lucky and have the judge vacate the order before it goes to appeal. While reading this article, it seemed to me that I had read good legal analyses of cases where someone asked the court to put the horse back in the barn...
In the Balian case, a plea agreement that was to be released under seal was accidentally released unsealed. The LA Times was able to get the plea agreement and published an article based on information that should have remained sealed. A judge initially ordered the LA Times to redact their article and stop using the information that should have been sealed but then the same judge vacated his own order days later.
Ken White wrote about it:
https://www.popehat.com/2018/07/16/federal-judge-issues-illegitimate-prior-restraint-order-again st-los-angeles-times-in-federal-criminal-case/
https://www.popehat.com/2018/07/17/federal-court-vaca tes-prior-restraint-order-against-la-times-but-blasts-press-in-attempt-to-justify-it/
And so did Eugene Volokh:
https://reason.com/2018/07/15/judge-orders-la-times-to-alter-story-abo
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Prior restraint is a high bar to pass
Let's see what an appeals court thinks
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You can keep the Pentagon Papers, but you can not mention them or refer to them.
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I'm wondering...
...what those 20 pages out of almost 4,000 contained.
They can't reference them in court, but they could release them to the media.
What are the chances that they simply should have been redacted? Home addresses, names, etc. that have little or no bearing on the request?
If that's the case, the Judge's Order makes sense.
If they're pertinent and contain no "automatic redaction" information, it's a farce.
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So, what, Georgetown Center was just sitting on a pile of paper or keeping files secured on their server?
Why weren't the documents, scanned if necessary, uploaded to archive.org or one of the other (preferably non-US) archive sites? Or even a few torrents?
These Georgetown people don't sound like the sharpest sporks in the dishwasher.
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can speak about documents, but cannot specifically reference
As opposed to insert Voldemort reference here court cases in the Antipodes.
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ReDigi, digital files, and the tangible property issue
The unanswered question is whether digital files are legally considered tangible property or not. Last month ReDigi, which claims the right to resell MP3s under the 'first-sale' doctrine, appealed its nearly decade-long case to the Supreme Court.
https://www.digitalmusicnews.com/2019/03/06/redigi-v-capitol-supreme-court/
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Please return my spider drawing
This attempt at clawing back documents after they've already been released reminds me of this exchange between David Thorne and some one who was trying to collect money from him. But where David Thorne asked for the return of his spider drawing in jest and to waste some one's time, it seems this court has no sense of the absurdity of what they are asking.
http://www.27bslash6.com/overdue.html
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Re:
If GC were the only ones the unredacted content was given to, then GC would presumably be instantly liable for any such leak. Depending on what's actually in those pages, it really might not be worth the automatic penalty they'd face for doing that.
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Re: Re:
If the Center did that now, after the judge handed down the return/gag order, then yes, I could see a contempt-of-court issue being discussed. Grandparent was advocating that the Center should have, immediately upon receipt of the documents, taken steps to make any future attempt to return them futile - before any potentially legally enforceable return order was issued. If they had done so, then their lawyer could now go to the judge and with a straight face inform the judge that, while the Center will do what it can to comply with this gag order, that the information is already very public, is likely in the hands of parties that will not respect the court order and cannot be bound by it (due to jurisdiction issues), and that as such any attempt to confine the information is likely futile.
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Re: Re:
I think that depends on when they got published or leaked. Before the recall order they had public documents, and could have done what they wanted with them. After the order that's another thing but they can't be held liable for leaks between the release and the recall.
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Re: Please return my spider drawing
But did jane make sure to destroy all copies of the spider on her email server and local system after sending it back to David? ;p
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Re: 'Your mistake should not be my problem.'
It's also unenforceable outside that judge's jurisdiction. If she delivered a speech on the topic in California, the judge's gag order would have no effect there.
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Re: Re:
Not if it happened before the judge's gag order. They had the docs for nearly a month. That's plenty of time for people to have made copies, emailed them around, etc.
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Trying to reclaim digital information is kinda like trying to reclaim Herpes so you can continue denying you have an STD. Once you've passed it on, it's out there.
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... and this is why...
... if you happen to get your hands on a government document that's of any public interest, and that document even might be slightly embarrassing to anybody in the government or anybody who might have the ear of anybody in the government, you publish it instantly, widely, and in its entirety.
If that's inconvenient for government agencies, well, they've brought that on themselves with this kind of behavior.
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Re: ... and this is why...
Hmm. I know somebody is going to miss the point of that, so just to clarify, the point of publishing is to get it out there before they can get an order like this, not to defy an order.
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