Yesterday morning, things kicked off with a ridiculous tweet from the NY Police Department, announcing that it "stood with" the Manhattan DA in calling for "encryption" legislation. Of course, that's inaccurate. What it was really calling for was anti-encryption legislation.
But, suddenly we discovered that not only was Manhattan District Attorney -- and proudly technologically ignorant -- Cyrus Vance continuing to push his dangerous anti-encryption views, but he had somehow created a hashtag and a logo for it (I've sent in a FOIA request to see how much tax payer dollars were spent on the logo, though I doubt I'll get a response). Vance held quite the grandstanding press conference over this, in which he repeated the same misleading claims as in the past about how horrible encryption is, and then trotted out some sob stories of cases where law enforcement failed to do their job, and then blamed it on encryption.
You can watch the half-hour press conference below if you have the stomach for it:
Of course, just about everything about this is ridiculous. It took place just a few days after Patrick O'Neill, over at the DailyDot, revealed some details of a FOIA request he'd made with Vance's office about all those cases he claimed he needed to get into phones for -- and found that, of the ones that were listed all had resulted in convictions anyway, even without getting into the phones. And most didn't appear to be for really serious crimes.
Meanwhile, as is often the case, an attempt by law enforcement to co-opt whatever "the kids these days" are doing by setting up a hashtag failed spectacularly. First off, Vance's office just happened to pick a hashtag that was already in use. Even worse, it was in use by the Quakers to push for criminal justice reform that would "start to reverse the failed 40-year 'war on drugs.' Ooops.
Then, of course, the folks who actually understand technology took the hashtag and ran with it, explaining why Vance's campaign was idiotic.
Remember: encryption protects the families of police too. If you break it, you put them at risk. #unlockJustice
After going through lots and lots of tweets, I have to admit that I couldn't find any -- outside of those from the DA's office and various law enforcement people that were actually supportive of the campaign. It really makes you wonder, just who does Cyrus Vance think he's protecting?
Abusive conduct by police officers -- up to and including killing someone for, say, holding a plastic bucket -- has always flown under the "your word against ours" radar. But now everyone has a camera, even the cops.
The push for body-worn cameras is still a good idea, but it has many, many flaws. It won't save the nation from police misconduct but it will put a dent in it. Back when the NYPD was ordered to begin a body camera pilot program, then-Mayor Bloomberg said the devices would become nothing more than another way to play "gotcha" with good cops.
A camera on the lapel or hat of a police officer... He didn't turn the right way. My god, he DELIBERATELY did it. It's a solution that's not a solution…
Bloomberg was prescient, but not in the way he imagined it. He felt cops would be accused of covering something up by failing to get the best angle when recording an arrest. But it looks like the limitations of the cameras themselves are capable of covering up bad behavior even without the active involvement of the officers wearing them.
The ACLU's Jay Stanley pointed this out last year in a post that echoes Bloomberg's complaint, but with the view that cops could use cameras to defeat transparency, rather than participate in it. We already know cameras operated by police officers seem to develop technical issues during controversial interactions. Some are switched off. Some produce video but no audio. Some develop intermittent problems that can't be replicated by tech support, but always seem to have captured everything but potentially damning footage.
Even when they're left on, they can still be used to control the narrative, as Stanley points out.
A stellar example of what I’m talking about can be found in the case of a man named Marcus Jeter, who was pulled over, beaten, and arrested by a Bloomfield, New Jersey officer in 2012. The officer who is beating Jeter can be heard on video yelling, “Stop resisting! Stop resisting! Why are you trying to take my fucking gun! Get off my gun!” In the officer’s dashcam video, it is unclear whether Jeter was, in fact, resisting and/or trying to take the officer’s gun, and Jeter was charged with a number of criminal counts including assault. Internal affairs cleared the involved officers of any wrongdoing and prosecutors offered Jeter a plea deal of 5 years in prison.
Fortunately for Jeter, a second video surfaced showing the incident from another angle. The video was from the dashcam on another patrol car that arrived at the scene as backup, and which prosecutors said was not initially provided to them by police. In the second video, it is clear that Jeter had his hands in the air from the beginning before being attacked by the officer. (The police officer was charged with aggravated assault, and he and another officer also faced charges including conspiracy and falsifying reports. A third officer pleaded guilty to tampering and retired. All charges against Jeter were dropped.)
By falsely shouting that Jeter was resisting and trying to take his gun, even as he beat the motorist, the officer was clearly acting for the cameras, aware that he was playing a role in a public drama where later interpretations of what took place would be contested. And his aggressive physical behavior was matched by an equally aggressive attempt to define how his own actions would be interpreted. He almost succeeded.
Officers are actors and directors in their own scenes. Even when performances are captured by bystanders and their cell phones, there's still plenty of "drama." Multiple cops swarm the same suspect, blocking the body from view. Officers shout "Stop resisting!" even when subjects are prone with hands behind their back and under the weight of four or five cops. This allows officers to deliver extra amounts of force, instantly justified by the repeated shouts about resistance.
This scenario has played out again. Footage captured by police body cameras appears to show a tough, physical struggle to subdue a suspect. Shouts of "stop resisting" continue throughout the recording. The up-close-and-personal body cam footage gives every appearance that officers are wrestling with a highly-combative suspect. But footage captured by another camera shows an entirely different scenario.
It’s hard to imagine what more a suspect could do to avoid being beaten by the police. Derrick Price not only puts his hands high in the air, he then proceeds to lie spread-eagle on the pavement before any of the Marion County sheriff’s deputies reach him. And yet the deputies beat him. What appears to be taking place in this video (as in many others, including the granddaddy of them all, the Rodney King video) is that police officers, angry at a suspect for fleeing (and perhaps disobeying previous orders to stop), have taken it upon themselves to punish the suspect for that disobedience.
Compare that to the "official" footage (which starts at 1:42 in the video above) captured by the officer's body camera. (There's a side-by-side comparison of the footage available here.)
[T]he difference between the two videos is… a result of intentional manipulation by the officers beating Price, who repeatedly yell “stop resisting!” as they kick and punch his unmoving body. And the body camera never properly captures the beating of Price, actually facing fully away from the action at some points. It is hard to tell how intentional this was on the part of the officer wearing the camera, but it’s easy to imagine that the officer knew that what his colleagues were doing was not acceptable, and intentionally sought to avoid videotaping them.
The devices that were supposed to result in better policing are becoming complicit in their abusive behavior. Stanley notes the camera was turned on far too late (after the officers had already swarmed the suspect) and turned off far too early (before the suspect was actually in custody). If this had been the only recording available, "our word against yours" would have been completely unassailable. After all, the police department had footage of a highly-physical struggle with a combative suspect. Without the footage captured by an impartial surveillance cam, everything about the arrest would have appeared justified.
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."
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.
The NYPD has lightened up on its use of stop-and-frisk, but unconstitutional stops persist because cops don’t know about reforms, according to a federal monitor’s report released Tuesday.
“Many police officers, including supervisors, are not well informed as yet about the changes underway or the reasons for them and, therefore, have yet to internalize them,” said monitor Peter Zimroth in court papers to Manhattan Federal Judge Analisa Torres.
“Many appear not to understand what is expected of them,” wrote Zimroth, who was appointed in August 2013 to oversee stop-and-frisk reforms. He called for better communication throughout the department.
The NYPD is more in its element when it's creating terrorism/dissent-focused task forces or shipping its officers halfway around the word to get in the way of local investigators. What it's less interested in doing is ensuring its officers live up to the Constitutional expectations of Judge Shira Scheindlin's order from nearly three years ago.
While it's true that the number of SQFs (Stop, Question and Frisk) is down considerably since its pre-lawsuit heyday, NYPD officers are still performing searches that don't live up to the constraints of the court order, thanks to the hands-off approach apparently deployed by their superiors.
The court-appointed monitor also noted the Citizen Complaint Review Board isn't providing much in the way of accountability, despite its moniker.
“One issue identified by the monitor is that allegations of racial or other profiling allegations made to the CCRB but not the NYPD are not being investigated by either the CCRB or the department,” the report said.
The more things are ordered to be changed, the more they stay the same. Those defending the NYPD's newfound, court-enforced "respect" for the Fourth Amendment often point to the precipitous drop in stops as evidence officers are following the new rules. The problem is, those numbers don't mean what the defenders claim they mean. Lower numbers aren't necessarily reflective of successful reform efforts, as Brooklyn attorney Ken Womble points out at Mimesis Law.
The declaration that from 2011 to 2014, “street stops” by the NYPD went from almost 700,000 down to 46,000 is a bit tough to swallow. Don’t get me wrong, I wish this were true. But quite honestly, I feel like I would have noticed long before the New York Times brought it to my attention.
Where did these numbers come from?
Data Sources: Division of Criminal Justice Services for Felony and Misdemeanor Arrests, New York City Police Department for Stops, and Office of Court Administration for Criminal Summonses.
Is it possible that the numbers provided by the NYPD to John Jay College were accurate? Technically, yes. But a look deeper into the actual data shows that it is much more likely (almost certain) that the NYPD’s reported rates of stop and frisk over the last ten or so years have had little connection to reality.
As Womble notes, the steepest drop in stops occurred while Mayor Bloomberg and Commissioner Ray Kelly were still running the show -- both of whom dissolved into apoplexy when Judge Scheindlin declared the program mostly unconstitutional.
If the stop and frisk numbers are accurate, then Kelly and the NYPD slashed stop and frisk from a high of 203,500 in the first quarter of 2012, down to 99,788 in the first quarter of 2013, all the way down to a paltry 21,187 in the 3rd quarter of 2013, well before Judge Sheindlin told them to stop.
So, despite there being no ruling in place, stops were already dropping. And they have continued to drop, even without clear guidance being handed down from above. Womble points out that while the number of stops has fallen off a cliff, the NYPD's arrest numbers have stayed steady. Considering the number of nearly-suspicionless stops has dropped from nearly 600,000 a year to less than 46,000 (in 2014), one would expect a dramatic drop in arrests. But that hasn't happened. Womble speculates the stops are still occurring. The only thing that's changed is the paper trail.
The NYPD counts “stop” data via “Unified Form 250” which should be filled out any time an officer has a “street encounter” with a civilian that involves stop, search or arrest. So, what happens if a cop stops someone and doesn’t fill out one of these forms? Nothing. Nothing at all.
Zimroth cited NYPD internal audits at 19 precincts that found “a number of instances where it appeared likely that a stop was conducted but there was no or improper documentation,” he wrote.
And, again, the problem was the NYPD's apparent reluctance to issue clear guidance for its officers.
The monitor referenced conversations with beat cops and their supervisors indicating some officers opted to abandon the approach because they were “not confident or have been misinformed about... what they are authorized to under the law,” he wrote.
Add this to the toothless Complaint Review Board -- one that refuses to perform its sole function -- and New York citizens are likely still being unconstitutionally stopped and saddled with bogus arrests. The problem may express itself at the street level, but the real problem is way above beat cops in the organization chart. The Center for Constitutional Rights, which represented the plaintiffs in the stop-and-frisk lawsuit, points out that change starts at the top -- and so far, there's no evidence that's happening.
“We have long argued that you can write the best policies in the world and have the best training in the world, but unless and until there is commitment to reform at all levels of leadership, little will change,” CCR said.
The lack of guidance suggests those up top are staying the course and leaving it up to individual officers to interpret the stop-and-frisk order as they see fit. For some, this simply means performing fewer stops. For far more, it appears standard operating procedure is to not fill out paperwork if the stop seems borderline. And with little to no guidance from above, the drop in recorded stops suggests a majority of stops performed are still on the wrong side of the Constitution. But with stop documentation being a closed loop guarded by the NYPD, the only evidence anyone has is a steep drop in stops that only suggests rules no one has issued are being followed.
Look, let's face facts here. For all the talk coming from the law enforcement community that they need backdoors into encryption to stop crime, they absolutely know that the reverse is true: strong encryption prevents crime. Lots of it. Strong encryption on phones makes stealing those phones a lot less worthwhile, because all the information on them is locked up. As we noted back in 2014, the FBI had a webpage advocating for mobile encryption to protect your phone's data:
Of course, after that started to look inconvenient for the FBI, they quietly removed that page. I have a FOIA request in asking why, but the FBI has told me I shouldn't expect an answer for another year or two.
But it's not just the FBI. Trevor Timm alerts us to the amazing fact that just a couple of years ago, the New York City Police Department (NYPD) was literally roaming the streets, giving people fliers telling them to upgrade their iPhones to enable greater security features to protect against crime. Michael Hoffman tweeted a picture of the flier he received:
As of Wednesday, September 18, 2013 the new iOS7 software update available for your Apple product brings added security to your devices.
By downloading the new operating system, should your device be lost or stolen it cannot be reprogrammed without an Apple ID and Password.
The download is FREE from Apple.
In other words, law enforcement in NYC absolutely knows that stronger security on phones prevents crime. And yet, Manhattan District Attorney Cyrus Vance is running around pretending that these phones have created a crime wave in NY?
And, it appears that the data absolutely supports what the FBI and the NYPD apparently used to know, but are now pretending to forget. An article last summer by Kevin Bankston, laid out the details, noting that phone theft is a massive epidemic, with criminals swiping millions of phones -- and many of them then seeking to get access to the data on those phones. While the introduction of remote kill switches has helped reduce some of that, encryption is a much better solution.
So what happened? Did the FBI and NYPD really "forget" everything they knew two and a half years ago about encryption and how it stops crime?
It's hard to imagine in the depths of this frigid New York winter, but last summer the city seemed to be in the grips of a Times Square Problem. Costumed characters -- and the relative newcomers, painted topless women -- were declared a public enemy, begriming the otherwise idyllic tourist mecca of midtown. But the NYPD, tasked with enforcing this mandate, had a problem: with only about one crime reported per day in Times Square, there's not a lot to actually enforce.
So, as Techdirt and others reported at the time, the Department tried to get IP law to step in. Posessed of a legal theory that wouldn't have survived much scrutiny, Commissioner Bill Bratton (or one of his employees) approached Disney and Marvel, asking them to sue the costumed performers for copyright infringement. The companies declined. We know all this because Bratton confirmed it to media outlets last August. In CNN:
The NYPD confirmed to CNNMoney that Commissioner Bill Bratton asked Disney and Marvel to sue for copyright infringement. But according to the NYPD, the companies aren't biting.
I should not have expected much. After all, NYPD was given an "F" grade for its FOIL compliance by then Public Advocate Bill de Blasio in a 2013 survey of New York agencies. At least at that time, nearly a third of FOIL requests to NYPD simply went unanswered. Over a quarter took more than 60 days to process.
And when my request was acknowledged, I was told a review for the records would take 90 business days. Already, that's an outrageously long time for an agency to take. FOIL allows some flexibility in response times, but 90 business days is about four months -- too long for the records to be useful to a follow-up story, and far too long to allow me to refine my request and send in for more information.
Alas, this wasn't a top priority for me, and I accepted the 90-day timeline without appeal. So a little more than three months later, I got the word: "this unit is unable to locate records responsive to your request." In other words, no responsive documents; I get nothing.
What could this mean? As I see it, there are just a few possibilities.
First, maybe I phrased my request in a way that doesn't describe the records they do have. I think I was pretty accurate with my description, but you be the judge:
Communications and/or records of communications from January 1, 2012 to August 28, 2015 between the New York City Police Department and representatives of Disney, Marvel, The Jim Henson Company, Sesame Workshop, Sanrio, Viacom, Nickelodeon, DC Comics, Warner Brothers, Lucasfilm, or Nintendo of America, pertaining to or addressing the use of costumed characters in or around Times Square. Such communications, in the form of encouragement to Disney and Marvel to initiate copyright litigation, have been acknowledged by the NYPD to CNN in an August 28 story titled, "NYPD to Disney and Marvel: Get Minnie Mouse and Spider Man out of Times Square"
Maybe there are no communications at all, despite Bratton and Disney confirming there were to the media. I don't really see what anybody has to gain by doing this.
Maybe the department has responsive records and chose not to give them to me. The agency didn't cite an exemption or provide any indication that this was the case, but we're talking about an agency that made up its own bogus "classification" scheme. It may be in violation of FOIL, but it doesn't seem beyond the pale for the NYPD.
Finally, it's possible NYPD conducted these communications in a way that did not generate any records. This is just speculation, but if this is the case, it's hard to imagine this happening by accident. The NYPD asking Disney and Marvel to bring lawsuits, and there's no paper trail at all?
Unfortunately, the nature of frustrated transparency efforts is that we don't really have the answers. If the NYPD had promptly responded that it had no such records or would be withholding them according to a particular exemption, or even if it had given me a limited set, we could close this case. As it stands, we don't really know anything more about the NYPD's bizarre efforts to jam its "quality-of-life" issues into an ill-fitting copyright enforcement box.
from the admits-law-enforcement-will-never-solve-crimes-again dept
Manhattan DA Cyrus Vance can't stop griping about phone encryption. He's basically a one-issue politician at this point. His creaky platform is the coming criminal apocalypse, currently being ushered in by smartphone manufacturers. The only person complaining more about phone encryption is FBI Director James Comey, but in Comey's defense, his jurisdiction is the whole of the United States. Vance has only his district, but it encompasses the NYPD -- a police force that often seems to view itself as the pinnacle of American policing.
Manhattan District Attorney Cyrus R. Vance Jr. said at a news conference that investigators cannot access 175 Apple devices sitting in his cybercrime lab because of encryption embedded in the company’s latest operating systems.
“They’re warrant proof,” he said, adding that the inability to peer inside the devices was especially problematic because so much evidence once stored in file cabinets, on paper, and in vaults, is now only on criminals’ smartphones.
Tough luck, that. But considering the information inside is encrypted, it's a bit bold to declare that whatever's contained there that the NYPD hasn't seen would be useful to investigators. The assumption seems to be that if it's encrypted and on a device seized by law enforcement, then it must be composed of smoking guns and signed confessions in PDF format.
Even if we buy the assumption that the phones contain massive amounts of useful data, there are other pathways to this data. It doesn't have to run through the smartphone provider. And the efforts made to lock out cops (as it's always presented) also keeps criminals from accessing the personal data and communications of others. So, there's that.
Vance claims investigations are being hindered by encryption. Supposedly, the NYPD is sitting on 175 uncracked devices -- some of which were displayed during the press conference. But other than this number being cited, very little was offered in the way of further detail. Instead, Vance photo-opped a pile of supposedly inaccessible devices and let the press draw its own conclusions. Police Commissioner Bill Bratton was on hand to back up Vance's assertions with the sort of jailhouse hearsay Detective Vincent Hanna would find patently ridiculous.
Bratton said criminals are increasingly aware of the protection offered by their devices. He said a prisoner in a city jail was recently recorded saying in a phone call that iPhone encryption was “another gift from God.”.
It's a shame the Vance-Bratton loop doesn't seem to be interested in hearing from other law enforcement representatives about whether the government should be forcing companies out of the encryption business or a locked-up phone should be treated as an investigative brick wall.
The Associated Press said in its report, “The dispute places Apple, one of the world’s most respected companies, on the side of protecting the digital privacy of an accused Islamic terrorist.”
Well, no. Apple is protecting its product for the hundreds of millions who possess Apple iOS devices, and it is protecting its own corporate interests. The company’s market position could be jeopardized by taking away one of the elements to its product that is most appealing to consumers (privacy and encryption) and thereby put the shareholders in financial jeopardy. As CEO, it is Cook’s responsibility to resist that.
Furthermore, the FBI may be using terrorism as leverage to secure Apple's assistance, but its insistence that key info is held on a dead suspect's phone suggests it's reading too much into things it can't actually see, as well as short-circuiting its own investigative processes.
The fact is that the probability that a terrorist would keep sensitive information about his plot/plans on his government-issued mobile phone is pretty preposterous. In the unlikely event that there is information relevant to the investigation on that device, the possibility exists that it resides elsewhere as well, such as with mobile carrier network records, or another person’s phone who spoke or exchanged messages with Farook. Consequently, the FBI should:
Vigorously pursue all of the other avenues of investigation.
Work to develop better decryption capabilities for future investigations.
Withdraw its petition to the court to force a private company to damage its products.
This is coming from the editor of a site that's so much of a law enforcement echo chamber that you're not even allowed to see comments unless you can prove you're a law enforcement officer or official.
When another closed, pro-law enforcement loop can see both the forest and the trees, it clearly exposes Vance's efforts here as little more than grandstanding. What Vance and Bratton want -- along with James Comey -- is for every impediment to investigations to be removed, either by courts or by legislators. Because they've chosen to focus on encryption, they're ignoring scalable fences while wringing their hands over the padlock on the gate.
And, once more it must be pointed out that the FBI and other law enforcement agencies solved plenty of crimes before smartphones -- much less smartphone encryption -- became the norm. They claim everything that used to reside in file cabinets and bedroom drawers now resides in encrypted devices. While many people's "lives" are contained in their phones, their lives encompass far more than their Companion Rectangles™. They still have computers and laptops that aren't encrypted, third party social media services/email providers, as well as friends, relatives and co-conspirators who may be able to offer more insight or access. But all people like Vance see is iNcriminating Device 5S standing between them and justice, even when multiple paths around it still exist.
from the no-surprises-here-(other-than-the-document-release-itself) dept
The New York ACLU has obtained documents from the NYPD -- a feat on par with prying paperwork away from the FBI, CIA or NSA -- showing the department has been deploying Stingrays without a warrant since 2008. This puts them on the same timeline (and with the same lack of legal paperwork) as the Baltimore Police Department, although the BPD was much more proactive with their deployments: over 4,300 since 2008, as compared to the NYPD's relatively restrained 1,016.
Not only does the NYPD deploy Stingrays without warrants, it apparently does so without any official guidance at all. (The better to keep paper trails from developing, I would guess. This also allows it to choose its own scapegoat when the political hammer falls, rather than there being a bunch of inculpatory signatures on internal policies/permission slips.)
The NYPD also disclosed that it has no written policy for the use of Stingrays but that, except in emergencies, its practice is to obtain a “pen register order” – a court order that is not as protective of privacy as a warrant – prior to using the device.
The use of pen register orders suggests major police departments all had the same idea when they got their hands on the repurposed military technology: it's a phone, so why not pen register orders? Well, to begin with, Stingrays capture a whole lot more than a pen register would -- like everyone connecting to the faux cell tower, rather than just the target. Pen registers also can't be used to track someone in motion. All they can do (in the historical sense) is generate phone records of calls made and received. Utilizing this paperwork lowers the amount of proof needed to obtain permission as well as obscures the technology behind the collection of "phone records."
That the NYPD is using Stingrays is no surprise, considering how many other law enforcement agencies in the country use them. The NYPD has always considered itself to be an extension of federal intelligence services and a bit of a standing military force, so it follows that it would be ahead of the curve when it comes to both surveillance equipment and repurposed military gear.
What is surprising is that these documents are in the ACLU's hands at all. The NYPD is notoriously resistant to FOIL (Freedom of Information Law) requests, having gone so far as to deny requesters copies of its FOIL response procedures.
And, as usual, the Stingrays went into use without any sort of public comment period or any information being passed on to affected citizens (which would be anyone with a cell phone) by the city representatives who signed off on the purchase orders. No doubt these were pushed through with maximum secrecy while NYPD officials chanted their "terrorism" mantra and spritzed the passing documents with holy water redactions.
"Terrorism" is the most frequently cited reason when law enforcement agencies seek to obtain military technology -- which Stingrays are -- but the documents obtained show no deployments for terrorist-related activity. Instead, they've been used to tackle all sorts of "normal" crime, from the violent (rape, homicide, armed robbery) to more mundance illegal activities -- like bail jumping, fraud, drug possession, suicide [?] and the location of material witnesses. For the most part, the NYPD's Stingrays seem to be effective in tracking people/phones down, but that's hardly any excuse for brushing past the Fourth Amendment with a minimum of paperwork or internal accountability.
The NYPD is once again in the middle of a transparency/accountability controversy. The law enforcement agency has achieved the dubious distinction of being more difficult to obtain public records from than federal three-letter agencies like the CIA and NSA. The latest news does nothing to improve its reputation.
Some of this is due to its in-house classification system, which allows it to arbitrarily declare potentially-responsive documents "secret" -- something it does quite often with no apparent oversight. Some of it is due to the department's general antagonism towards transparency and openness, which keeps documents not marked secret out of the public's hands just because. Its steadfast belief that the only entity truly entitled to information is the NYPD has seen this attitude carried over to discovery requests in civil lawsuits and criminal cases, much to the general disgruntlement of presiding judges.
When the NYPD first rolled out its body camera pilot program, the idea was increased transparency and accountability. But last spring when NY1 requested five weeks worth of footage under the state’s Freedom of Information Law, known as FOIL, the NYPD said it would cost NY1 $36,000 so that an officer could first review and edit the video, to address privacy and other concerns.
After a couple rounds of appeals, the TV station has taken the next step. It sued the NYPD, citing a number of FOIL violations.
The NYPD denied NY1's request for unedited footage without specifying what material it plans to redact, how much material will be excluded from disclosure, or how the redaction will be performed. Instead, Respondents suggested that they may provide with edited footage, but only on the condition that remit $36,000.00, the alleged cost to the NYPD of performing its unidentified redactions.
FOIL does not permit public records to be withheld absent a full explanation of the materials that are exempt from disclosure. FOIL also does not permit agencies to levy any charge for review and redaction of records (let alone a $36,000.00 charge). As a result, the response to NY1's request violates FOIL.
Indeed, the response to NY1's request for footage runs counter to both the public policy of openness underlying FOIL, as well as the purported transparency supposedly fostered by the BWC program itself.
Redacting footage isn't necessarily inexpensive, but the NYPD has provided no justification for the $36,000 fee. The FOIL request doesn't ask for anything more than a "sampling" of the recorded footage. The NYPD responses don't specify whether the agency considers this to be every minute of footage recorded during those time periods, or something considerably more limited.
It is true that the footage will have to be redacted, at least in part. But without further information, the "reasonableness" of the NYPD's fee demand can't be assessed. This FOIL paywall runs contrary to the law's purpose, as well as the presumption of disclosure stressed in comments made by NYC Mayor Bill de Blasio, who lauded the new body-worn camera program as a step forward in transparency and accountability. If the footage remains solely in the possession of the NYPD, there will be no additional transparency or accountability.
On the other hand, NYPD Commissioner Bill Bratton seems to feel the state's public record law only applies to other government agencies. The NYPD currently ranks at the bottom of the list for city agency FOIL responsiveness. That seems unlikely to change if this is how the department responds to requests for footage.
"We have never released 911 calls, and video recorded by these officers, I think, would be under the same protection of not being released, even to FOIL requests," said Police Commissioner William Bratton.
Unfortunately, this response from the NYPD -- despite effectively pricing NY1 out of the market for these public records -- directly contradicts the commissioner's beliefs. Obviously, the NYPD FOIL team feels these documents are responsive to public records requests. However, it's more than willing to do whatever it takes to ensure this responsiveness remains in the realm of the theoretical.
from the suing-the-cops-back-into-compliance-with-the-Constitution dept
The NYPD considers itself to be the finest police force in the nation, if not the world. But its track record says otherwise. It lost a lawsuit over its "stop and frisk" program, thanks to its unconstitutionality and appearance of racial bias. It is currently in the middle of a lawsuit related to illegal summons quotas -- one in which it destroyed documents it was ordered to preserve. And now, it has just lost another lawsuit related to its biased policing.
The NYPD's pervasive surveillance of the city's Muslim population violated civil liberties on a massive scale. Despite being given an incredible amount of leeway to pursue its counter-terrorist activities, the so-called "Demographics Unit" did useless things like pressure informants into making stuff up to justify surveillance efforts and designate entire mosques as terrorist entities. What it didn't do, however, is generate any useful intelligence.
The proposed settlement includes modification of the guidelines along two principal lines: incorporating new safeguards and installing a civilian representative within the NYPD to reinforce all safeguards.
A civilian representative will be a welcome change from the internal "oversight" performed by the NYPD -- which has been pretty much nonexistent. The program was started by an ex-CIA officer who seemingly assumed he could treat US citizens with the same disregard as foreign nationals.
A long list of stipulations could bring about much-needed changes in NYPD counter-terrorist program.
Prohibiting investigations in which race, religion, or ethnicity is a substantial or motivating factor
Requiring articulable and factual information regarding possible unlawful activity before the NYPD can launch a preliminary investigation into political or religious activity
Requiring the NYPD to account for the potential effect of investigative techniques on constitutionally protected activities such as religious worship and political meetings
Limiting the NYPD’s use of undercovers and confidential informants to situations in which the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means
Putting an end to open-ended investigations by imposing presumptive time limits and requiring reviews of ongoing investigations every six months
Installing a civilian representative within the NYPD with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities. The civilian representative must record and report any violations to the police commissioner, who must investigate violations and report back to the civilian representative. If violations are systematic, the civilian representative must report them directly to the judge in the Handschu case.
Removing from the NYPD website the discredited and unscientific “Radicalization in the West” report, which justified discriminatory surveillance, and affirming that the report is not and will not be relied upon to open or prolong NYPD investigations
These reforms aren't set in stone yet. A still-pending class action suit over violations of the NYPD's Handschu Agreement (an agreement that was subverted by the CIA officer heading the Demographics Unit, who used post-9/11 terrorism fears to carve huge holes in the stipulation, which forbade the surveillance of First Amendment-protected activity) must be resolved before the proposed settlement can go into effect. Fortunately, the remaining hearing in that case involves comments from the plaintiffs, rather than an attempt by the city to dial back the proposed reforms.
The NYPD has a chance to salvage its reputation. The problem is, it doesn't see it that way, despite losing major lawsuits over two of its biggest programs. Without a doubt, the next few weeks will see plenty of criticism from the usual sources: District Attorney Cyrus Vance, NYPD Commissioner Bill Bratton and, because there's apparently no way to shut him up, NYPD union boss Pat Lynch. Any statements will only make these officials look worse as they'll be arguing on behalf of the wholesale violation of civil liberties.