By Albert Fox Cahn and Matt Mahmoudi
In recent weeks, the NYPD took the extraordinary step of appealing a court order to disclose documents about its surveillance of the historic Black Lives Matter protests of 2020. For Amnesty International and the Surveillance Technology Oversight Project, it was a disappointing delay after two years of fighting to release these documents. But above all, it prompted us to ask: “What is the NYPD hiding?”
New York law is supposed to make it easy for the public to see how the government conducts business in our name. New York’s Freedom of Information Law puts to practice the adage that “sunlight is the best disinfectant.” But when it comes to NYPD surveillance of BLM protesters, One Police Plaza appears unconcerned by the law. An appeal just continues the opaque status quo.
A FOIL process that lawmakers hoped would be quick and easy for all New Yorkers has turned into an endless labyrinth of red tape. It took years of requests and litigation by Amnesty, STOP and our partners at the law firm Quinn Emanuel Urquhart & Sullivan, LLP to get a decision.
Why? Sometimes, rarely, secrecy can make sense. But telling New Yorkers about the ways that dissent is policed is indispensable to the functioning of a free society. Without knowing what steps the NYPD can take to target those who speak out against police violence, we’ll effectively let them rewrite the First Amendment to their own ends.
Previously, NYPD surveillance was so blatantly unconstitutional that the city entered into the decades-long Handschu consent decree, limiting how surveillance can target political activity and religious communities. But Handschu’s an agreement for the analog age, and it’s failed to keep up with the ways police use digital surveillance.
Refusing to disclose this information in the context of Black Lives Matter protests is especially devastating in that it gives freer rein for cops to monitor supporters of racial justice. Facial recognition, especially when abused, exacerbates discriminatory policing and prevents the free and safe exercise of peaceful assembly. Amnesty International’s research from earlier this year proved that across all boroughs of NYC, New Yorkers of color are at greater risk of exposure to facial recognition; even more problematically, those targeted for stop-and-frisk by the NYPD are also the group most at risk of discriminatory surveillance by the technology.
So when a police department with a record of racial discrimination withholds crucial information such as this, it behaves as though it is above the law. It behaves as though it is at liberty to surveil historically marginalized communities without the need to stand to account on why, when, how and with what products it did so.
The decision is even more disturbing given the NYPD’s own statements in court. When asked why the department couldn’t turn over 2,700 documents, the department claimed that it would simply take too long to review. But that argument simply doesn’t hold water; in the ruling judge’s own words, these claims were “utterly refuted” by the petitioner. By spending years opposing this request, filing endless motions, seeking to obstruct advocates at every turn, the NYPD is spending more time than it would ever take to review the documents in the first place.
Of course, the NYPD doesn’t get the final say on how long it should fight transparency. As Mayor Adams often reminds us, he ultimately decides now New York City is policed. No one expects Adams to review every single document requested by the public, but when the department goes to lengths to hide the truth, it’s time for his honor to get involved. The mayor must act now to halt the NYPD’s appeal and release the requested documents.
Meanwhile, his colleagues on the City Council must take a more active role in holding the NYPD accountable, not simply passing laws, but holding oversight hearings on how the NYPD follows the law and (more importantly) when it doesn’t. Even as the Police Department’s surveillance infrastructure has expanded, even as its secrecy has grown the Council has yet to hold a single oversight hearing on NYPD surveillance technologies.
And even when the Council has taken action, like passage of 2020′s Public Oversight of Surveillance Technology (POST) Act, the NYPD has largely ignored the law.
The Council may not be able to order the department to comply with FOIL. But they can ask urgent questions about how New Yorkers and particularly protesters are being surveilled. And they can make sure that the agency answers under oath.
We can’t know for sure what the NYPD’s 2,700 documents will show, and it may take years more of litigation to find out. But we know this much already: If the NYPD is fighting this hard to hide these records, they are records the public needs to see.
Cahn is the founder and executive director of the Surveillance Technology Oversight Project (STOP). Mahmoudi is a researcher and adviser on Artificial Intelligence & Human Rights at Amnesty International.