Sunday, 5 May 2024

Did the Police Spy on Black Lives Matter Protesters? The Answer May Soon Come Out

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The first time Vienna Rye noticed her cellphone acting up was at a 2014 protest march against the police killings of Eric Garner and Michael Brown. The device shut down abruptly as she was filming, even though the battery was fully charged.

She and other activists who had similar experiences at subsequent Black Lives Matter protests — cellphones suddenly switching off or losing reception, messaging apps going haywire — began to suspect the police were monitoring their telephones with Stingrays, devices that mimic cell towers and intercept communications.

Ms. Vienna and two other activists filed a public records request for information about police surveillance of the Millions March, a local group affiliated with the Movement for Black Lives. The Police Department rejected the request with a blanket statement that it “could neither confirm nor deny” whether the records existed, relying on what is known as the “Glomar response,” which is usually invoked only by defense or intelligence agencies in cases of national security. The activists sued the department with the help of the New York Civil Liberties Union.

On Monday, a state judged ruled the police had to acknowledge whether or not they had used devices to monitor or interfere with the protesters’ cellphones, rejecting the Police Department’s argument that releasing the information would compromise its counterterrorism and criminal investigations.

Justice Arlene Bluth of State Supreme Court said that if the police are using the cell-site simulator technology on protesters then it is violating the law and “cannot hide exposure of that fact through a Glomar response.”

The Glomar response, she wrote, “contradicts the purpose of disclosure” under the state Freedom of Information Law.

The department had successfully used the same legal tactic in 2017 to block two open-records requests for documents about its secret surveillance of people in Muslim neighborhoods. The state’s highest court sided with the Police Department in that case, but said the Glomar response can be used only in a narrow category of cases involving counterterrorism investigations.

Three years ago, the police acknowledged after a separate open-records lawsuit that it had used Stingray technology more than a thousand times between 2008 and 2015 to locate suspects in a wide range of crimes, from murder to calling 911 too many times.

For the past four decades, the Police Department’s ability to spy on political organizations and protesters has been curtailed under a court settlement known as the Handschu Agreement, which is overseen by a federal judge. That settlement put limits on the investigation of political organizations, creating an oversight panel and requiring that the police have “specific information” that a crime was in the works before investigating.

But the department has violated the Handschu guidelines at times while investigating left-wing political activists.

In court filings, the Police Department argued that disclosure of the department’s methods of monitoring cellphones would compromise counterterrorism operations and place New Yorkers at risk. In a sworn affidavit, John J. Miller, the city’s deputy commissioner for intelligence and counterterrorism, said that releasing information about cellphone surveillance technology would help terrorists carry out an attack and “successfully evade detection.”

The department released a written statement on Monday stating that it would review the decision. It has 30 days to appeal.

“The N.Y.P.D. uses the Glomar response exceedingly sparingly and only after careful consideration of the interests involved, including transparency, the need to protect the integrity of criminal investigations and public safety,” the statement read.

Bobby Hodgson, a staff attorney at the civil liberties union who argued the case, said in an interview that Justice Bluth’s ruling was a firm rejection of the Police Department’s legal tactic.

“This is the N.Y.P.D.’s attempt to massively expand the scope of Glomar and the cases to which it applies,” Mr. Hodgson said. “It’s trying to deny public access to basic information about how the department monitors protesters.”

The department’s sophisticated arsenal of surveillance technology extends beyond cellphone surveillance devices to license plate readers, facial recognition software and drones. Officials have kept the department’s capabilities largely shrouded in secrecy, civil liberties advocates said.

Some city lawmakers have begun to push back. This year, Councilwoman Vanessa Gibson, a Bronx Democrat, said she plans to reintroduce a bill that would force the police to disclose their surveillance tools. A similar bill failed in 2017 after the Police Department and Mayor Bill de Blasio came out strongly against it.

Christopher Dunn, the associate director of the civil liberties union, said the department’s handling of the Black Lives Matter request demonstrated the need for outside oversight.

“This ruling shows that the N.Y.P.D. cannot be trusted when it comes to disclosing technology that it’s going to use against the public,” Mr. Dunn said. “That’s exactly why there has to be legislative reform.”

Follow Ali Winston on Twitter: @awinston

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