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

NYPD Raises Middle Finger To Public, Oversight In Inspector General's Year-End Roundup

from the NO-ONE-polices-the-police dept

The NYPD's Office of the Inspector General has just released its year-end report summarizing its 2015 oversight work. We covered its use of force report late last year -- a report which found the NYPD completely uninterested in policing itself. The report noted the NYPD has "historically… failed to discipline officers who use force without justification."

This report points to the OIG's investigation of chokehold use by NYPD officers -- the tactic that ended Eric Garner's life during his arrest. As is the case with most other excessive uses of force, this tactic -- which has been forbidden by department policy -- tended to be greeted with shrugs from PD supervisors and a middle finger raised to the general public.

CCRB [Civilian Complaint Review Board[ generally believed that severe penalties were warranted in chokehold cases. CCRB recommended Administrative Charges, the most serious level of discipline within NYPD, in nine of the ten cases where it found an NYPD officer had used a chokehold.

The CCRB is another oft-ignored element of the NYPD's oversight. It investigates complaints and recommends discipline. The CCRB is also part of the problem, as the earlier report on use of force points out:

The total number of substantiated force allegations represents approximately 2.0% of the more than 10,000 allegations of force received by CCRB from 2010 to 2014.

But in the ten cases the OIG examined, the CCRB recommended severe penalties. This, of course, resulted in next to nothing happening to officers who deployed the banned form of restraint.

NYPD, by contrast, believed that lesser penalties were warranted in substantiated chokehold cases. NYPD’s Department Advocate’s Office (DAO) is the NYPD unit that prosecutes NYPD disciplinary matters and, until April 11, 2013, was responsible for prosecuting all substantiated use-of-force cases that resulted in Administrative Charges. In those cases where CCRB substantiated chokeholds, recommended Administrative Charges, and DAO became involved, none of the substantiated cases ever went to trial before a NYPD Trial Commissioner. Instead, DAO departed from CCRB’s recommendation every time. Rather than pursue the more serious Administrative Charges, DAO recommended lesser penalties or no discipline whatsoever.

The NYPD won't fix its chokehold problem. End of sentence. Those at the very top are no different than those in NYPD middle management.

The Police Commissioner has the authority in all cases to make a final determination about discipline. In those substantiated chokehold cases presented to the Police Commissioner, he rejected CCRB’s disciplinary recommendation, imposing a less severe penalty than that recommended by CCRB or deciding that no discipline was warranted at all.

The NYPD does not want to discipline its officers for force-related misconduct. It just doesn't. It has rejected the OIG's recommendations on two critical matters related to force-related complaints.

The OIG has recommended that a separate penalty be attached to each count in multiple-count disciplinary actions. The NYPD, on the other hand, feels this is too punitive. Apparently, every use of force incident needs to be weighed against all the small moments during an incident where the officer didn't apply excessive force.

NYPD reports that it examines the totality of the actions of each officer in a given situation to determine the appropriate penalty.

The NYPD has also rejected the recommendation that it perform better tracking of use of force incidents.

According to NYPD, the factors that result in a police officer’s use of force, and the determination of the question of whether that force was proportional or excessive, are impacted by several variables. NYPD states that attempting to measure the Department-wide impact of excessive force penalties on new excessive force incidents would not be a useful endeavor.

Depends on what you mean by "useful." NYPD brass apparently feel tracking use of force incidents, their frequency and compiling data on repeat offenders is a waste of resources. The OIG says it is "concerned" with the department's lack of interest in transparency and accountability, but unfortunately, all it can do is "continue to review and report on systemic use of force issues."

Also of note is the fact that most of the NYPD's responses to OIG recommendations are that the department "agrees in principle." Otto von Bismarck had something to say about that line of thinking:

When a man says he approves of something in principle, it means he hasn't the slightest intention of putting it into practice.

The NYPD won't change because no one who could propel change has any interest in doing it. NYPD officials aren't even willing to make incremental improvements. They resist the OIG's recommendations and undercut the CCRB decisions habitually. Some of this can be chalked up to a long, mutually-beneficial relationship with the city's previous mayor, who found the NYPD to be the embodiment of all that is right and good. There's been a regime change -- both within the mayor's office and the police commissioner's -- but the same problems have carried over. And they won't change if no one's willing to hold those at the top responsible for everything they've permitted and fostered under their supervision.

Filed Under: ccrb, law enforcement, nypd, oig

Report: FBI's PATRIOT Act Snooping Goes Beyond Business Records, Subject To Few Restrictions

from the 'just-metadata'-means-whatever-the-FBI-can-obtain dept

A report by the FBI's Office of the Inspector General (OIG) on the agency's use of Section 215 collections has just been released in what can only be termed as "fortuitous" (or "suspicious") timing. Section 215 is dying. It was up for reauthorization on June 1st, but the Obama administration suddenly pushed that deadline up to the end of this week. Sen. Mitch McConnell took a stab at a clean reauth, but had his attempt scuttled by a court ruling finding the program unauthorized by existing law and the forward momentum of the revamped USA Freedom Act. And, as Section 215's death clock ticked away, Rand Paul and Ron Wyden engaged in a filibuster to block any last-second attempts to ram a clean reauthorization through Congress.

The report focuses mainly on the FBI's 2007-2009 use of the program in response to previous OIG recommendations and alterations ordered by the FISA court. As is to be expected in anything tangentially-related to the NSA, it's full of redactions, especially in areas where a little transparency would go a long way towards justifying the FBI's belief that the program should continue in a mostly-unaltered state.

Redactions like this do absolutely nothing to assure the public that the program is useful and/or considerate of citzens' rights.

Areas dedicated to discussing controls of the obtained data are similarly obscured. Whatever policies the FBI adopted in terms of minimization, dissemination and oversight at the recommendation of the OIG are covered in black ink.







What information does actually make its way past the redactions shows that what's collected (and turned over to the FBI) goes far beyond the "just" telephone metadata often claimed to be the primary target of the program's collections.

Far from being just business records -- something the public supposedly has no 4th Amendment-related privacy interest in -- the Section 215 program also allows the FBI to obtain "non-public" records and data.

In the 2008 report, we recommended that the Department implement minimization procedures for the handling of nonpublicly available information concerning U.S. persons in response to Section 215 orders…

More sentences scattered throughout the report hint at expansive collections going far beyond the business records covered by the Third Party Doctrine. As noted in the report, reauthorizations of the Patriot Act expanded the program's reach far beyond what was allowed in its earliest iterations -- from business records from certain approved sources to "any tangible thing." This, combined with a continually-lowered threshold for "relevance" has resulted in the following:

We found that [redacted] of [redacted] applications submitted to the FISA Court on behalf of the FBI requested materials related to Internet activity. [p. 7]

Materials produced in response to Section 215 orders now ranges from hard copy reproductions of business ledgers and receipts to gigabytes of metadata and other electronic information. [p. 8]

We reviewed [redacted] related Section 215 applications that requested subscriber and transactional information for [redacted] e-mail accounts from U.S. providers. [p. 40]

The report also notes that minimization procedures do not apply to "publicly-available information," possibly indicating that the FBI's interpretation of the Third Party Doctrine allows it to retain and search non-relevant information on US persons, as well as disseminate it freely without fear of breaching its internal policies. The FBI's "Final Procedures" -- adopted in the wake of the FISA court's smackdown of the NSA, as well as on the recommendation of the OIG -- only applies to "nonpublicly available information."

The OIG also cautions that technological advances have blurred the line between communications and metadata and warns the FBI that vigilance will be needed to keep the two separate. This statement points to the eventual development of further minimization procedures, but if it's anything like the last set of OIG recommendations, it will be years before the FBI gets around to putting anything in motion.

We found the Supplemental Orders significant because the practice began almost 3 years after the Department was required by the Reauthorization Act to adopt specific minimization procedures for material produced in response to Section 215 orders, and over a year after we found that the Interim Procedures implemented by the Department in September 2006 failed to meet the requirements of the Reauthorization Act. The Department and FBI ultimately produced final minimization procedures specifically designed for Section 215 materials in 2013. The Attorney General adopted the FBI Standard Minimization Procedures for Tangible Things Obtained Pursuant to Title of the Foreign Intelligence Surveillance Act on March 7, 2013 (Final Procedures), and in August 2013 the Department began to file Section 215 applications with the FISA Court which stated that the FBI would apply the Final Procedures to the Section 215 productions.

Given the significance of minimization procedures in the Reauthorization Act, we do not believe it should have taken 7 years for the Department to develop minimization procedures or 5 years to address the OIG recommendation that the Department comply with the statutory requirement to develop specific minimization procedures designed for business records…

The report also contained details on numerous instances of potential abuse of the Section 215 collections. Most of these discussions are redacted, but one reveals enough information to indicate the FISA Court was used to obtain information pertaining solely to a US person, as well as other intriguing (but mostly censored) incidents where FBI agents apparently felt FISA Court orders were more useful and expeditious than National Security Letters -- something of an anomaly for an agency that has so thoroughly abused its administrative privileges.

What is clear from these heavily-redacted recountings is that the FBI uses court orders designed for foreign intelligence gathering for domestic investigations, as well as to aid the agency in its cyberwar efforts.

The report also takes note of the severe restrictions imposed by the FISA court in 2008 after uncovering widespread abuse of the metadata collections by the NSA. It points out that several of these restrictions were lifted after an end-to-end review showed no instances of abuse by the agency during the period examined. In addition to confirming that the NSA collects from providers (plural) -- despite the government's arguments to the contrary when disputing plaintiffs' standing in Section 215-related lawsuits -- the report also points to the FBI and NSA obtaining records they shouldn't have had access to by an overly-helpful telco.

[N]SD reported to the FISA Court in March 2011 that in December 2010 and January 2011 NSA technical personnel discovered that the telephony metadata produced by a telecommunications provider included [redacted]. NSA contacted the carrier and was informed that a software change made in October 2010 resulted in this occurrence. According to the NSD's compliance notice filed with the Court, beginning on or about January 14, 2011, the telephony metadata did not include [redacted]. The NSA subsequently provide updates to the FISA Court describing the methods taken to purge the [redacted] from its databases.

And, as is the case with nearly every FBI document release, there's some over-redaction that serves no purpose other than to make the agency look foolish.

In June 2013, former NSA contract employee Edward Snowden caused to be publicly released documents relating to the bulk collection of telephony metadata and the Office of the Director of National Intelligence has since declassified aspects of this program. We have included a description of the NSA program, [redacted] in the body of this report.

The Department relied on [redacted] to obtain FISA Court orders [redacted].

So much for the transparency push. Despite leaks and declassification in response, the FBI withholds information already in the public domain.

Additionally, the document could have shed some light on the FBI's current Section 215 activities, but instead the agency has chosen to hide every last bit of discussion on its ongoing efforts. [pp. 68-72]


FBI head James Comey continues to insist there needs to be a discussion about the respective weighting of security and privacy, but heavily-redacted documents like these do not add to that discussion. How is the public supposed to weigh these two factors if it can't access the FBI's arguments in favor of Section 215's continued existence? The only purpose this document serves is to give legislative true believers something to wave around as they defend the Patriot Act's perpetual, unaltered renewal.

Filed Under: business records, doj, fbi, inspector general, nsa, oig, patriot act, section 215, surveillance

DOJ Still Can't Do Math: Terrorist Statistics Inflated, Double Counted And Badly Organized

from the $5-billion-can't-buy-you-a-usable-database-these-days dept

Of all the unsurprising news of inflated numbers and double-counting contained in the Office of Inspector General's (OIG) audit of the DOJ's reported terrorism statistics, this sentence from the introduction of the report is the least surprising -- and by extension, the most damning.

Department resources devoted to preventing terrorism and promoting the nation’s security have increased from approximately $737 million in fiscal year (FY) 2001 to approximately $5.26 billion in FY 2012, an increase of 614 percent.

Despite the exponentially-increased budget and the fact that the EOUSA (which provides terrorism numbers to the DOJ) has had more than six years to get its case tracking system under control, the audit finds there has been little to no improvement. In fact, there's evidence the EOUSA (Executive Office for United States Attorneys) may be getting worse.

We found that although EOUSA revised its procedures for gathering, classifying, and reporting terrorism-related statistics based on the recommendations from our 2007 audit, EOUSA's implementation of the revised procedures was not effective to ensure that terrorism-related statistics were reported accurately. Specifically, we found that EOUSA inaccurately reported all 11 statistics we reviewed during this follow-up audit. Most of these 11 statistics were inaccurately reported by significant margins…

The continued inaccurate reporting by significant margins indicates that EOUSA needs to strengthen its implementation of controls for gathering, verifying, and reporting terrorism-related statistics.

Great, except that it's had since 2007 to improve and simply hasn't. The OIG's report shows that the EOUSA has trouble performing even the most basic of tasks, like updating numbers annually or attaching supporting documentation for the numbers in its reporting.

Because the log and corresponding support were not previously maintained as required, EOUSA had difficulty providing us accurate lists for 5 of the 11 statistics selected for testing. An official of the Data Analysis Staff told us that, as the result of an oversight, the FY 2010 U.S. Attorneys' Annual Statistical Report was not recorded in the FY 2011 log. The official subsequently showed us that this oversight was corrected by updating the FY 2011 log to reflect the FY 2010 U.S. Attorneys' Annual Statistical Report.

The official believed that the schedules listed in the annual report were the support for the reported statistics. However, the schedules in the annual reports only show the numbers reported for each statistic, but do not show necessary supporting details such as case numbers, defendant names, and disposition dates.

Further complicating the matter is the fact that the EOUSA entered case info into the NLIONS (National Legal Information Office Network System) in a completely arbitrary manner, which resulted in inaccurate case counts.

[A]n EOUSA official told us that while the defendant filed an appeal on June 23, 2007, the appeal was not entered into LIONS by the applicable USAO until January 22, 2009, and therefore the appeal was counted as filed in FY 2009. For the other eight cases, the official explained that these were the first appeals filed in FY 2009 for these cases.

When asked how this explanation was consistent with the NLIONS business rules, which state that an appeal should only be counted if it is the first appeal filed in the case, the official told us that a new methodology was used to count the appeals by which EOUSA had selected the defendant with the best disposition, first filing date, latest close date, and the highest participant identification or defendant number.

However, we noted that in a case with multiple defendants there is no guarantee that these criteria will be sufficient for EOUSA to identify a single defendant - for example, the defendant with the "best disposition" may not have the "first filing date." Therefore, this methodology appears likely to produce arbitrary results and therefore does not appear sufficient to us. Moreover, the official had no documented procedures to show the methodology had been changed from that described in the NLIONS business rules.

This isn't the only way the EOUSA screwed with/screwed up the NLIONS database. It also decided that the "smartest" way to track closed cases was by the date it was entered in the system.

We discussed these discrepancies with an EOUSA official who said that EOUSA's terminated statistics are based on the date that USAO personnel enter the disposition into LIONS instead of the date when the case was actually terminated. The official told us that the system disposition date is used for reporting purposes because this date cannot be changed, whereas the actual termination date can be changed in the system, and therefore using the system disposition date improves the accuracy of the reported statistic.

While relying on a static, unchangeable date might protect the integrity of the data, the delays between case closure and entry in the system completely undermines the data's accuracy, especially in terms of determining annual budget outlays.

[W]e found that the time lag between the date the 13 cases were actually terminated and the date the terminations were entered into the system by the USAOs ranged from 10 to 483 days, and averaged 266 days with a median of 314 days...

Because of this discrepancy (which is putting it nicely), the OIG expanded its spot check to cover all 258 cases listed as terminated in 2010.

As a result, we concluded that EOUSA overstated by 32, or 14 percent, the reported number of cases actually terminated during FY 2010. We consider this amount of deviation to be significant. The time lag between the date these 32 cases were actually terminated and the date the cases were entered into the system by the USAOs ranged from 1 to 706 days, and averaged 201 days with a median of 176 days.

That's just this one instance dealing with these specific cases. More examples are scattered throughout the report. Looking at pending cases, the OIG cross-referenced NLIONS with PACER and uncovered some truly lengthy delays.

PACER showed that one case was disposed of on June 25, 2008, but the USAO did not enter the disposition into LIONS until May 2, 2011, which was 1,041 days after the district court terminated the case.

PACER showed that one case was disposed of on December 19, 2007, but the USAO did not enter the disposition into LIONS until February 11, 2011, which was 1,150 days after the district court terminated the case.

PACER showed one case involving six defendants was disposed of on August 6, 2007, but as of February 1, 2013, the USAO had not entered a disposition for any of the six defendants into LIONS, and therefore the case was still shown as pending in LIONS.

When auditing the numbers provided for suspects charged under the National Security Infrastructure statute, the system lag ran right off the charts.

Three defendants' cases were filed in FY 2008, 1 case was filed in FY 2001, and 2 cases were filed in FY 2000. For each of these cases, USAO personnel entered case data into LIONS during FY 2009. Data entry delays ranged from 323 to 3,391 days and averaged 1,848 days with a median of 1,743 days.

This lack of timely data entry not only skewed annual numbers but has also resulted in double counting. In addition, a dozen or so cases were found to have been miscoded as "terrorist-related," including those covering such non-terrorist activities like animal fighting, narcotics possession and bank robbery.

As the OIG states early in the report, the accuracy of these numbers is crucial to making "informed operational and budgetary decisions." Unfortunately, it appears a truly informed decision hasn't been made for nearly the entire lifetime of the DOJ's War on Terror. If a report in 2007 found similar problems and nothing's changed over the past six years, it's safe to assume the problem runs all the back to the initial post-9/11 response.

Thirteen straight years of running a crooked game using ever-increasing amounts of taxpayer funds. In the private sector, this sort of thing would put someone out of business, if not at the receiving end of a class action suit or fraud charges. But here in our government, it's just one of those things -- the endless cycle of audits and corrective actions, neither of which have propelled the EOUSA to anything approaching excellence, much less mediocrity.

Filed Under: abuses, audits, doj, oig, terrorism