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


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  • This comment has been flagged by the community. Click here to show it
    icon
    Patterson25 (profile), 17 Jan 2019 @ 8:55pm

    Great post

    I am inspired by the nature of data on this site. There is a great deal of good assets here. I am certain I will visit this place again soon. Welcome! Much obliged to you for welcoming me appropriate here. I found such a considerable measure of exciting thoughts here. The offended parties are looking for records identified with the NYPD's utilization of reconnaissance tech focusing on cellphones. It is notable the NYPD possesses and approaches Stingray gadgets. What these records would indicate is the utilization of Stingrays in an untargeted way - either to accumulate cellphone identifiers aimlessly or basically to upset telephone benefit. nd let me check whether I can get this straight - the portrayed arrangement of cell tower spoofers against nonconformists would damage the law. I don't know how the NYPD envisioned this hindered, deformed contention may work in court, yet I'm certain it didn't figure it would just additionally undermined its Glomar reaction. Here's the court's reaction to whatever the hellfire this affirmation

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  • identicon
    Anonymous Coward, 17 Jan 2019 @ 9:14pm

    Nice!

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  • identicon
    Pixelation, 17 Jan 2019 @ 10:26pm

    NYPD says, "Drats, FOILed again!"

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 17 Jan 2019 @ 11:16pm

    Rotten to the core

    But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

    Given the many articles on TD alone covering the group paints what could at best be described as a 'not very flattering picture', at this point I suspect that the only way to reform them would be to fire every last person on the NYPD and start from scratch, as the corruption has almost certainly reached the point that nothing less would do.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 18 Jan 2019 @ 1:33am

      Re: Rotten to the core

      It has been done and it worked well enough from what I read: https://www.npr.org/templates/story/story.php?storyId=4849472

      Sounds like a plan.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jan 2019 @ 4:33am

        Re: Re: Rotten to the core

        Unfortunately Police Unions make doing this a nonstarter because of all the contracts. Public unions especially the police unions are cancer.

        reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 18 Jan 2019 @ 5:29am

          Re: Re: Re: Rotten to the core

          I hear you. I wouldn't generalize though. Unions have their purpose.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jan 2019 @ 6:02am

            Re: Re: Re: Re: Rotten to the core

            Public Unions do not have a purpose because there is not enough of an adversarial opponent from the government to control costs. In private unions the bottom line is that the unions need to work with the business so everyone stays employed and the business stays profitable otherwise the business will close and everyone is out of a job. The government will survive no matter, so there is no incentive for cooperation and compromise

            reply to this | link to this | view in chronology ]

            • icon
              Thad (profile), 18 Jan 2019 @ 7:41am

              Re: Re: Re: Re: Re: Rotten to the core

              Public Unions do not have a purpose because there is not enough of an adversarial opponent from the government to control costs.

              I'ma go out on a limb and say you don't know many teachers.

              reply to this | link to this | view in chronology ]

              • identicon
                Annonymouse, 18 Jan 2019 @ 8:23am

                Re: Re: Re: Re: Re: Re: Rotten to the core

                Most of them I know don't run around in as much hardware than a GI on patrol in hot zone.

                reply to this | link to this | view in chronology ]

                • icon
                  Thad (profile), 18 Jan 2019 @ 1:03pm

                  Re: Re: Re: Re: Re: Re: Re: Rotten to the core

                  Indeed.

                  I'm not defending police unions; I'm merely agreeing with Ninja's statement: "I wouldn't generalize though. Unions have their purpose."

                  There's plenty to criticize about police unions. That doesn't mean all public unions are pointless.

                  reply to this | link to this | view in chronology ]

            • icon
              R.H. (profile), 18 Jan 2019 @ 4:44pm

              Re: Re: Re: Re: Re: Rotten to the core

              To name one specific counter-example, the Buena Vista School District in Michigan, closed down because it couldn't control costs. That's certainly a case of a government unit not being able to survive even with an incentive to control costs.

              reply to this | link to this | view in chronology ]

        • icon
          stderric (profile), 18 Jan 2019 @ 8:41am

          Re: Re: Re: Rotten to the core

          And now we've got prosecutors trying to join police unions.

          reply to this | link to this | view in chronology ]

        • identicon
          Bruce C., 18 Jan 2019 @ 10:07am

          Re: Re: Re: Rotten to the core

          Police (and other) unions acting as advocates for their members in disciplinary actions is necessary to prevent abuse like being fired because you're the wrong political party.

          Police unions having so much control over the process that effective disciplinary actions are impossible -- there's your cancer.

          reply to this | link to this | view in chronology ]

    • icon
      Anton Sherwood (profile), 20 Jan 2019 @ 10:23pm

      Re: Rotten to the core

      It's reckless to throw the bad apples out with the bathwater – er wait ...

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 18 Jan 2019 @ 4:32am

    Is that the stench of corruption, or the aroma of Glomar?

    Well, it's nothing that a Judicial dose of bleach won't fix.

    reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 18 Jan 2019 @ 8:47am

    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...

    Were they maybe going for some sort of half-witted 5th Amendment dodge here?

    reply to this | link to this | view in chronology ]


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