NYPD Screws Up Again; Hands Out Even More 'Secret' Facial Recognition Docs To Researchers

from the 'the-more-we-suck,-the-more-you-know'-rainbow.gif dept

The inadvertently great thing about the New York Police Department is its random inability to keep its secrets. Journalists have referred to the agency as being more opaque than redaction masters like the CIA and FBI. Its perpetual efforts to thwart public records requesters have led to insanity like refusing to release the department's public records response guidelines or years of stonewalling over innocuous information.

So, when the "fuck you, citizens" facade inadvertently crumbles, we are: All. Over. It. Back in April, Georgetown researchers received documents the NYPD surely did not mean to release. Included in the NYPD's release was a presentation on facial recognition software that it swore up and down (often in front of a judge!) was too sensitive to release to the public. This despite the fact the presentation was from a conference where any member of the public with $1,700 could view this super-sensitive slide deck.

The NYPD managed to talk a court into the ordering the impossible: the post facto memory-holing of documents researchers had already seen. The court said the researchers could not talk about the presentation's content and ordered them to "return" the PDF they had received, however the hell that works.

Well, fool themselves once, shame on the NYPD. Fool themselves two or more times, the court says, "You're on your own." The New York Daily News reports the NYPD has screwed the facial recognition pooch yet again. Unbelievably, it has made the same mistake twice while dealing with the same public records requesters.

For the second time in three months, city lawyers have mistakenly turned over documents about the NYPD’s facial recognition program to academic researchers and are asking a judge to order the information returned.

The NYPD paperwork recently handed over to the Georgetown Center on Privacy and Technology included names and case numbers of people who were run through the facial recognition system, city attorney Jeffrey Dantowitz said in a hearing Tuesday. The documents were marked for redaction but accidentally sent to the researchers.

The NYPD engaged in redaction failure. Not the kind where someone uses a PDF tool they clearly don't understand, but rather the kind of failure where redactions are never made. The NYPD's lawyer called the black bar omission "embarrassing." The court used different words to describe this failure.

“One was too much. Two is more than I can tolerate at this time,” [Justice Shlomo Hagler] said.

If the NYPD was hoping another irrational decision would be handed down, its hopes were dashed by an exasperated judge. Georgetown gets to keep the end result of the NYPD's inadvertent transparency. Even better, it gets to publish the things the NYPD somehow forgot to redact. And there will be none of this "return the PDF" bullshit.

Still, the NYPD's public-facing rep is apparently hoping if he says enough stuff to local press outfits, the judge will see fit to build a time machine for the malfunctioning NYPD. In an extended (given the circumstances) statement to the Daily News, NY Law Department spokesperson said such redaction failures occasionally occur. They apparently occur more frequently "in litigation" (as they have done twice!) and that there "exists a legal process" for getting the unredacted documents back from the inadvertent disclosees.

Good talk, but it seems the court has already shut that argument down. If the NYPD can't competently redact documents, it has no business asking the court to fix its fuck ups. That much seems clear from the judge's short, pointed statement.

Filed Under: foia, foil, nypd, public records
Companies: daily news

NYPD Oversight Report Confirms NYPD Not Interested In Being Overseen

from the take-all-you-can,-give-nothing-back dept

New York City's Department of Investigation can only do so much. The rest is up to the NYPD. The DOI made 145 recommendations in 2018 -- covering everything from use of force reporting to sex crime investigations. To date, the NYPD has implemented less than half of those. It has completely rejected 31 recommendations, a third of those covering proposed changes to its use of force reporting.

Oversight is only as good as the agency being overseen. The NYPD doesn't care much for accountability. So, it's chosen to ignore the things it doesn't like and half-ass its way towards compliance with recommendations it feels it might be able to live with.

Most of the rejections come from changes to use of force reporting. The NYPD would prefer no use of force reporting. The DOI would prefer 100% accountability in this area. A "compromise" has been reached. From the report [PDF]:

Separate from T.R.I. forms, officers are also required to indicate the use of force on arrest reports. OIG-NYPD found that in at least 30% of the arrest reports with resisting arrest charges in the 2016 study period (and 55.9% in a 2017 sample), officers stated that “No” force was used but still filed a T.R.I. form affirming that the officer indeed used reportable force during the incident. This means that officers are underreporting force on arrest reports. This accuracy issue not only undermines the efficacy of future oversight audits, but risks engendering a false sense of compliance.

As was detailed in last year's report, this resulted in the NYPD claiming officers only used force in 1.3% of arrests, when it was clear the number was actually much higher.

The NYPD rejected completely any public reporting on use of force statistics, including the demographics of officers deploying force and of those who force was used against.

The bad news continues. The NYPD's sex crime division remains too understaffed to handle investigations. On top of that, the limited resources are prioritized badly, resulting in too little attention being paid to larger problems.

In late 2016, OIG-NYPD began tracking a troubling trend. While reported sex crimes—especially those where the perpetrator was known to the victim—were trending up, arrests were trending down. In early 2017, OIG-NYPD received credible complaints regarding dysfunction at the NYPD Special Victims Division (SVD) squads that investigate adult sex-crimes. OIG-NYPD then launched a full investigation of SVD, focusing on the units’ staffing resources.

[...]

the investigation also found that NYPD had understaffed and under-resourced SVD for at least the last nine years. As a result of understaffing, OIGNYPD’s investigation also found that NYPD had prioritized so-called “stranger rapes” and other more high-profile cases, while “acquaintance rape” and other investigations received less attention.

Many New Yorkers might like to know how much NYPD misconduct is costing them. The NYPD has vowed to be of no help on that issue, preferring to remain ignorant of the monetary damage its officers cause.

OIG-NYPD also found that, despite NYPD’s prior acknowledgement of the benefits of analyzing litigation data, NYPD had abandoned plans to use its early intervention system to track the number, types, and monetary outcomes of lawsuits filed against individual officers.

The middle finger to the public is extended further by the NYPD's rejections: any public reporting of lawsuits filed against the department or tracking of litigation to see what officer behavior problems might need to be addressed.

The shafting of the public continues with the NYPD's handling of complaints against officers and supervisors. If the NYPD isn't slow-walking investigations itself, its software will pitch in with the foot dragging.

On February 7, 2017, OIG-NYPD released a review of how NYPD tracks OG complaints as they move from NYPD’s Internal Affairs Bureau to the Office of the Chief of Department (OCD)’s Investigation Review Section (IRS). The investigation found inefficiencies and inconsistencies in the process, including outdated technology that is incompatible with other NYPD systems, and which slows the process for completing investigations.

The good news is the NYPD is using new software to track investigations as they move through the system. The bad news is everything else.

The NYPD claims it can process investigations in the 90-day timeframe allotted, rendering a papertrail for extended investigations unnecessary. As proof of this expeditious handling, the NYPD handed its oversight… nothing at all.

NYPD further asserts that allowing investigators to request extensions invites the possibility investigators may request such extensions more routinely and unnecessarily delay completion of the investigation within 90 days. However, when OIG-NYPD asked NYPD to run a report of how many 2018 cases were closed within 90 days, NYPD could not do so.

The NYPD is still "undecided" whether or not the public gets to know how many complaints have been filed against officers. Periodic reporting is still "under discussion" and it seems unlikely it will be moving past that point anytime soon.

The NYPD also promises to continue to surveil people participating in First Amendment-protected activity, like frequenting their house of worship or participating in protests. It rejected three of the DOI's five recommendations: written justification of investigations impacting First Amendment rights, documentation on confidential informants placed in Constitutionally-sensitive locations, and written guidelines setting standards for all phases of these investigations.

The NYPD argues the Handschu guidelines -- the ones it ignored for years while surveilling Muslims -- are more than up to the task of policing the police agency that won't police itself. Very reassuring.

The agency that has strongly resisted every attempt to control it continues to view itself as the final arbiter of police work. Outside opinions aren't welcomed, even as the NYPD insists its opinion on policework should be respected around the world. Without change, the aspects of the agency that are bad can only trend towards worse. It's clear from this report the NYPD feels it should answer to no one, not even the public signing its checks.

Filed Under: department of investigation, doi, nypd, oig, oversight

NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

Filed Under: foil, freedom of information, glomar, nypd, transparency

New York Police Union Says More Reporting On Stops/Frisks Will Hurt The NYPD's Effectiveness

from the 'we're-at-our-best-when-we're-not-held-accountable' dept

If anything might make police-community relations better, the Patrolmen's Benevolent Association (PBA) -- the union representing NYPD officers -- is against it. PBA President Pat Lynch has come out against body cameras, community policing, and even his own union members.

The battle over the court-ordered revamping of the NYPD's stop-and-frisk program rages on five years after Judge Scheindlin found it to be unconstitutional. So does the PBA, which is now arguing keeping data on stops is throwing sand in the NYPD's gears.

The Patrolmen’s Benevolent Association swiftly condemned an order issued Nov. 20 by a Federal Judge concerning stop-and-frisk data that it said would further discourage “proactive policing in New York City.”

The directive from U.S. District Judge Analisa Torres requires the NYPD, in consultation with an outside monitor, to submit for approval a plan to implement “a program for systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements.”

The NYPD has been ordered to document its stops numerous times since the 2013 decision. And it has continued to fail to do so. Officers blame a lack of instruction and/or clarity from upper management. Upper management blames multiple court orders and outside oversight for its inability to deliver clear instructions. And the PBA blames the whole mess on officers being forced to engage in Constitutional policing, which apparently is the opposite of "proactive" policing.

What the PBA is agitating for is the return to halcyon days of stop-and-frisk when NYPD officers performed hundreds of thousands of stops a year, a majority of them targeting the city's minorities. Constitutional policing would trim hundreds of man hours from the production of mandated reports, but the PBA wants nothing to do with keeping officers on patrol, rather than tied up doing internal bookkeeping for the DA's office.

Judge Torres said she was requiring that the plan to provide extensive information on the program include “(a) declinations of prosecutions by the District Attorneys in New York City; (b) suppression decisions by courts precluding evidence as a result of unlawful stops and searches; (c) court findings of incredible testimony by police officers; (d) denials of indemnification and/or representation of police officers by the New York City Law Department; and (e) judgments and settlements against police officers in civil cases where, in the opinion of the New York City Law Department, there exists evidence of police malfeasance.”

The PBA's response? To deride the accountability mandates as "unnecessary" -- an abuse of the court's "narrow authority" that will somehow wreak havoc on the NYPD's rank-and-file. This production of information will "end proactive policing in New York City," according to PBA president Pat Lynch.

Fortunately, Pat Lynch has long been recognized as a blowhard who seldom has the full support of the officers he represents. According to this report, the PBA was "quietly critical" of the PD's stop-and-frisk program when it was being abused to its fullest extent. Now that it's being deployed in a more Constitutional fashion -- resulting in a severe decline in stops -- the PBA wants to pretend the same program it criticized as "overused" is now a critical aspect of New York law enforcement.

Filed Under: 4th amendment, data, nypd, oversight, police, police unions, stop and frisk
Companies: patrolman's benevolent assocation

NY Legislators Introduce Bill That Would Seriously Curb Law Enforcement's Surveillance Collections

from the take-what-you-want-but-only-keep-what-you-need dept

A bipartisan group of New York assembly members has introduced a bill that doesn't appear to have much of a chance at becoming an actual law. But what a bill it is. If it does receive the governor's signature, it would drastically revamp how the NYPD (and other agencies) handle the massive amount of video and data they collect daily.

A bill introduced in the New York Assembly would prohibit the state from creating any database containing aggregate surveillance data including ALPR, audio, video and facial recognition records. Passage would not only protect privacy in New York; it would also put major roadblocks in front of federal surveillance programs.

Assm.Tom Abinanti (D-Greenburgh/Mt. Pleasant), along with a bipartisan coalition of six assembly members, introduced Assembly Bill 11332 (A11332) on Sept. 19. The proposed law would bar state agencies and departments, and contractors engaged in business with the state, from using any database as a repository of, a storage system for, or a means of sharing facial recognition functionality. I would also prohibit the creation of any permanent repository or storage system for aggregate license plate reader data records, aggregate audio surveillance recordings, aggregate video surveillance images, or aggregate driver license photographs.

In effect, A11332 would prohibit the creation of any comprehensive database storing surveillance data.

It's an anti-haystack bill. And law enforcement loves its haystacks. The NYPD -- believing itself to be a globetrotting intelligence agency -- loves them more than most. Law enforcement agencies have obtained massive boosts in collection power over the years, thanks to omnipresent surveillance cameras, automatic license plate readers, and cheap digital storage. Biometric data has recently been added to the mix, promising to turn dumb cameras into suspect-spotting field agents.

The tech has advanced ahead of best practices or privacy impact assessments. The new hardware is presumed legal until proven otherwise and is often obtained and deployed with minimal oversight and zero public input.

This bill doesn't outlaw the continued hoovering of data points/camera footage but it does ensure the massive amount collected will have to be quickly sorted into hay and needles by restricting stored collections to stuff pertinent to ongoing investigations.

The immediate local impact would be immense. But expect the feds to start inserting themselves into local legislating. This bill would make it impossible for federal agencies to accomplish their dream of connected, nationwide databases of license plate photos and biometric data.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of A11332 would hinder the creation of federal surveillance databases. Information that is never retained by the state cannot be shared with the feds.

If the bill passes unamended, law enforcement may be able to retain more than it should by making broad claims about everything in its collections being somehow relevant to investigations. If these legislators are serious about making this law do what it says it does, they will need to tack on some reporting requirements that will force agencies to go on the record about their data retention practices.

While it's true law enforcement agencies can't possibly know what data/footage will prove useful in future investigations, that shouldn't be used as an argument for retaining everything collected. Legitimate privacy concerns should not be subordinated to New York law enforcement's fear of missing out.

Filed Under: data, databases, new york, nypd, privacy, surveillance, video

Documents Show IBM Pitched The NYPD Facial Recognition Software With Built-In Racial Profiling Options

from the facial-profiling-amirite dept

Documents obtained by The Intercept show the NYPD and IBM engaged in a long-running facial recognition tech partnership from 2008 to 2016. While some of this deployment was discussed publicly, details about the extent of the program -- as well as it's more problematic elements -- haven't been.

As the article's title informs the reader, camera footage could be scanned for face matches using skin tone as a search constraint. Considering this was pushed by IBM as a tool to prevent the next 9/11, it's easy to see why the NYPD -- given its history of surveilling Muslim New Yorkers -- might be willing to utilize a tool like this to pare down lists of suspects to just the people it suspected all along (Muslims).

There are a number of surprises contained in the long, detailed article, but the first thing that jumps out is IBM's efforts and statements, rather than the NYPD's. We all know the government capitalizes on tragedies to expand its power, but here we see a private corporation appealing to this base nature to make a sale.

In New York, the terrorist threat “was an easy selling point,” recalled Jonathan Connell, an IBM researcher who worked on the initial NYPD video analytics installation. “You say, ‘Look what the terrorists did before, they could come back, so you give us some money and we’ll put a camera there.”

From this pitch sprung an 8-year program -- deployed in secrecy by the NYPD to gather as much footage as possible of New Yorkers for dual purposes: its own law enforcement needs and to serve as a testing ground for IBM's new facial recognition tech. Needless to say, New Yorkers were never made aware of their lab rat status in IBM's software development process.

Even though the software could search by skin tone (as well as by "head color," age, gender, and facial hair), the NYPD claims it never used that feature in a live environment, despite IBM's urging.

According to the NYPD, counterterrorism personnel accessed IBM’s bodily search feature capabilities only for evaluation purposes, and they were accessible only to a handful of counterterrorism personnel. “While tools that featured either racial or skin tone search capabilities were offered to the NYPD, they were explicitly declined by the NYPD,” Donald, the NYPD spokesperson, said. “Where such tools came with a test version of the product, the testers were instructed only to test other features (clothing, eyeglasses, etc.), but not to test or use the skin tone feature. That is not because there would have been anything illegal or even improper about testing or using these tools to search in the area of a crime for an image of a suspect that matched a description given by a victim or a witness. It was specifically to avoid even the suggestion or appearance of any kind of technological racial profiling.”

It's easy to disbelieve this statement by the NYPD, given its long history of racial profiling, but it may be those handling the secret program deployment actually understood no program remains secret forever and sought to head off complaints and lawsuits by discouraging use of a controversial search feature. It also may be the NYPD was super-sensitive to these concerns following the partial dismantling of its stop-and-frisk program and the outing of its full-fledged, unconstitutional surveillance of local Muslims.

The thing is IBM is still selling this tech it beta tested live from New York. The same features the NYPD rejected are used to sell other law enforcement agencies on the power of its biometric profiling software.

In 2017, IBM released Intelligent Video Analytics 2.0, a product with a body camera surveillance capability that allows users to detect people captured on camera by “ethnicity” tags, such as “Asian,” “Black,” and “White.”

And there's a counter-narrative that seems to dispute the NYPD's assertions about controversial image tagging features. The IBM researcher who helped develop the skin tone recognition feature is on record stating the company doesn't develop features unless there's a market for them. In his estimation, the NYPD approached IBM to ask for this feature while the 8-year pilot program was still underway. The NYPD may have opted out after the feature went live, but it may have only done so to steer clear of future controversy. An ulterior motive doesn't make it the wrong move, but it also shouldn't be assumed the NYPD has morphed into heroic defenders of civil liberties and personal privacy.

What's available to other law enforcement agencies not similarly concerned about future PR black eyes is "mass racial profiling" at their fingertips. IBM has built a product that appeals to law enforcement's innate desire to automate police work, replacing officers on the street with cameras and software. Sure, there will be some cameras on patrol officers as well, but those are just for show. The real work of policing is done at desks using third-party software that explicitly allows -- if not encourages -- officers to narrow down suspect lists based on race. In a country so overly concerned about terrorism, this is going to lead to a lot of people being approached by law enforcement simply because of their ethnicity.

An additional problem with IBM's software -- and with those produced by competitors -- is a lot of markers used to identify potential suspects can easily net a long list of probables who share nothing but similar body sizes or clothing preferences. Understandably, more work is done by investigators manning these systems before cops start rounding people up, but the potential for inadvertent misuse (never mind actual misuse) is still incredibly high.

The secrecy of these programs is also an issue. Restrictive NDAs go hand-in-hand with private sector partnerships and these are often translated by police officials to mean information must be withheld from judges, criminal defendants, and department oversight. When that happens, due process violations gather atop the privacy violation wreckage until the whole thing collapses under its own audacity. Nothing stays secret forever, but entities like the NYPD and IBM could do themselves a bunch of favors by engaging in a little proactive transparency.

Filed Under: facial recognition, new york, nypd, racial profiling
Companies: ibm

After Repeatedly Failing To Document Stops/Frisks, NYPD Ordered To Record All Encounters

from the 'unpossible,'-says-department-unwilling-to-try dept

The NYPD's stop and frisk program was declared unconstitutional in 2013. As deployed by the NYPD, the program involved high numbers of suspicionless stops disproportionately targeting the city's minorities. Judge Shira Scheindlin heavily modified the program to steer it back in the direction of the Constitution, resulting in claims of a criminal apocalypse that completely failed to materialize.

One of the modifications was the deployment of body cameras. These were supposed to record stops, preserving a record of these incidents. Officers were also given additional paperwork to fill out for each stop/frisk to provide evidence of the perceived suspicion supporting the stop.

Neither of these mandates worked out particularly well. The number of stops was already decreasing rapidly before Judge Scheindlin issued her order. The stops that were still being made, however, weren't by the (new) book. A court monitor report suggested plenty of unconstitutional stops were still being made by officers without filling out the mandated form.

That's where the cameras could have helped, theoretically. The NYPD's body camera program is in full effect, but it appears officers believe certain stops don't need to be recorded. Once again -- a decade into this litigation -- the stop and frisk program is being modified, as Zuri Davis of Reason reports.

[T]he court wants to bring "the NYPD's stop-and-frisk policies and practices into compliance with federal and state law." To that end, [Judge Analisa] Torres has ordered both the NYPD and those who have brought suit over the practices to design a "pilot program" that would record "low-level" police interactions, referred to as "Level 1 and 2 investigative encounters."

Until this modification, the NYPD's body cam mandate only required recordings of Level 3 and 4 stops. Those are stops in which a person is detained (either by force or suggestion) and/or an arrest is likely to occur. Since the NYPD's documentation of the stops central to the lawsuit (low-level stops based on minimal -- if any -- suspicion) has been subpar, this order should result in at least some form of documentation for these stops.

Or not.

The plaintiffs in the stop-and-frisk case have largely supported supported the facilitator’s recommendations, with some minor tweaks, while the NYPD has rejected them, saying that they are “neither practical nor feasible.”

That's the initial reaction: the pride of US law enforcement finds camera deployment during most police/citizen interactions unfeasible. The NYPD has issued this same reaction to almost every modification of its stop and frisk program: everything's impossible until the department actually starts to make an effort to comply.

It may be difficult to record every stop initiated by an officer, but it's not unfeasible. If the NYPD finds it burdensome, perhaps it should have made sure its officers kept up with their stop/frisk paperwork back when it was only paperwork. Instead, NYPD brass didn't make this a priority for low-level officers so now their body-mounted ride-along buddies will have to provide the documentation officers have avoided filling out for much of the last two years.

Filed Under: 4th amendment, body cameras, civil rights, nypd, police, stop and frisk

NY Appeals Court Gives NYPD Even More Opacity By Upholding Its 'Glomar' Powers

from the sure,-there's-nothing-in-the-law-that-supports-this,-but-whatever dept

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.

The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.

C.J. Ciarmella sums up the majority's opinion for Reason.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York's Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called "Glomar response" made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD's argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

This is a dangerous decision [PDF], one that will make an agency already belligerently indifferent to its obligations to the public even more secretive. The NYPD is not a national security agency, so its reliance on a national security-related response granted solely to federal agencies is misplaced. Or it was misplaced. Now it's perfectly fine for the NYPD to act like its the CIA or NSA, despite the fact its investigations and prosecutions are all routed through normal courts, rather than the FISA variety. The dissent (there are two dissenting opinions] points out that denying the NYPD the Glomar response does not mean it has to reveal sensitive information to requesters. But the NYPD has little to offer in support of its supposed "need" for a national security exemption previously utilized only by federal agencies.

The majority’s reliance on federal Glomar doctrine is misplaced. Yes, FOIL was structurally modeled on FOIA. However, as the dissent explains, the Glomar doctrine arises not from FOIA’s law enforcement exemption, but from FOIA’s exemption of documents “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy,” which has no analog in FOIL. The Constitution arrogates national defense and foreign policy to the federal government; the NYPD is not searching for a lost Soviet submarine or worried about the foreign policy consequences thereof. Both the majority and dissent tar their FOIL analysis by referring to the NYPD’s response as a “Glomar” response.

[...]

Those foreign-policy insecurities have no place in New York State’s excellent unified court system. Our government features neither a unitary executive tasked with the national defense nor an elaborate system of classified information to which courts routinely defer. Most CIA endeavors will never see the light of day, let alone that of a courthouse; the destiny of every successful NYPD investigation is to appear before a judge.

The dissent also calls out the majority for its extreme deference to the NYPD's national security hand-waving. There's nothing the NYPD does that is so far beyond the comprehension of the court that it is not qualified to even discuss the underlying issues in FOIL lawsuits.

Regardless of federal courts’ competence to evaluate foreign countries’ changing political climates, we are not similarly handicapped in judging the soundness of FOIL exemptions based on police, privacy, or other justifications. Our courts are fully capable of scrutinizing an agency’s “response on a case-by-case basis to ensure it is warranted under the particular circumstances presented” (majority op. at 16).

As it stands now, the NYPD has been given a gift of federal-level secrecy -- one with zero state-level statutory basis. The NYPD can, in essence, do more than the state's public records law permits. Its national security claims will rarely be challenged successfully because FOIL requesters (who often become FOIL lawsuit plaintiffs) will be hard-pressed to assert standing when they can even prove the requested documents exist.

Filed Under: foia, foil, glomar, neither confirm nor deny, nypd, transparency