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NYPD Should Reveal Protester Surveillance Tactics, Lawsuit Says

By Noah Hurowitz | May 24, 2017 1:55pm | Updated on May 25, 2017 9:11am
 Activists want more transparency around what they describe as police surveillance of protests.
Activists want more transparency around what they describe as police surveillance of protests.
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DNAinfo/Irene Plagianos

NEW YORK CITY — The NYPD is attempting to conceal its surveillance tactics against protesters by citing a law typically used by federal law enforcement that claims that revealing their methods would be a threat to national security, advocates charge in a new lawsuit.

The New York Civil Liberties Union on Tuesday filed suit against the NYPD on behalf of three activists from the group Millions March NYC, arguing that the department’s invocation of national security to deny records requests is really an unlawful effort to shield police from open records laws, according to the complaint.

See Also: Pols Seek Greater Transparency of NYPD Surveillance Tech
 
The lawsuit concerns alleged surveillance of activists during Black Lives Matter protests, at which the plaintiffs, Vienna Rye, Arminta Jeffryes, and Nabil Hassein, suspect the department used high-tech surveillance devices to interfere with their cellphones, according to Mariko Hirose, a senior staff attorney at the NYCLU.

“New York City should be doing what it can to protect people’s right to engage in political protests,” Hirose said in a statement. “The last thing the police department should be doing is finding new loopholes to conceal from activists whether or not they are interfering with protests and organizing.”

According to the activists, they experienced issues with their cellphones during marches and received strange messages that indicated possible interference with their devices, including their use of the secure-messaging app Signal.

“The NYPD has a documented history of using surveillance as a tool of repression against political organizers, from the Young Lords to the Black Panthers,” said Rye, one of the organizers. “State surveillance is a form of psychological warfare. We want to shed as much light on the NYPD’s behavior as possible.

Tools currently in use by the NYPD include the Stingray, which gathers cellphone data; "military-grade" X-ray vans that can see through walls and vehicles; automatic license plate readers on public roads and patrol cars and the ShotSpotter gunfire detection system, according to sponsors of a recent City Council bill designed to increase transparency.

The new lawsuit stems from a request the group filed under the Freedom of Information Law in October for records related to the department’s use of surveillance technology against activists.

In response to the request, the NYPD in February denied the motion by refusing to confirm or deny the existence of the records in question and arguing that to do so could hamper law-enforcement investigations and put lives at risk, court documents show. 

The justification used by the NYPD is referred to as the Glomar doctrine, which has historically been used by federal government agencies — not city or state law enforcement — to deny records requests on the grounds of protecting national security interests, advocates say. 

But the group’s lawyers argued that the department’s use of Glomar in this case — as well as an earlier case in which the department cited Glomar to deny records concerning surveillance of the city's Muslim community — would help set a precedent that could prevent current and future access to information that they argued should be accessible under open records laws, according to the complaint, filed in Manhattan Supreme Court on Tuesday.

“If the NYPD’s Glomar invocation were accepted in this case, there would be no limit to the NYPD’s ability to cloak its conduct in secrecy, in contravention of FOIL’s promise of transparency and government accountability,” lawyers wrote.

Glomar has been used to deflect records requests under the federal Freedom of Information Act, but an NYCLU spokesman said the group was not aware of it having been previously invoked by the NYPD to deny requests under New York state's Freedom of Information Law.

The lawsuit is part of a broader effort to shed light on the NYPD’s use of surveillance technology, including legislation sponsored by councilmembers Dan Garodnick and Vanessa Gibson that would require the department to provide information to the City Council about its use of high-tech spy tools. That bill, dubbed the Public Oversight of Surveillance Technology, or POST Act, was introduced in March and is still in committee.

A representative of the NYPD referred questions to the city's Law Department, which did not immediately respond to a request for comment. But the department has been critical of such efforts in the past. In March, Larry Byrne, the department's deputy commissioner for legal matters, blasted Garodnick's bill as a potential "boon to terrorists," 
 

NYCLU Lawsuit Against NYPD by DNAinfoNewYork on Scribd