Judge Skewers NYC Lawyer on Surveillance-Tech Secrecy

MANHATTAN (CN) – A lawyer for New York City resisted pressure from a judge Tuesday to confirm or deny that the NYPD targeted protesters with cellphone-surveillance technology.

A cartoon by the Electronic Freedom Foundation on StingRay technology, also known as cell-site simulator surveillance.

The hearing this morning in Manhattan Supreme Court stemmed from a public records request filed in October 2016 by activists from Millions March NYC, an offshoot of the Black Lives Matter movement. In addition to accusing police of interfering with protesters’ cellphones with secret StingRay systems, the group says the city monitored social media accounts and otherwise spied on protest and organizing activities.

The New York City Police Department denied a significant portion of the request, however, on the grounds that it could “neither confirm nor deny the existence of records” — a departure from the standard protocol where an agency either produces responsive records or identifies them and explains in detail why they are exempt under the state’s Freedom of Information Law.

Glomar responses, as such refusals are known, are seldom used in state court proceedings. They get their name from a federal records battle over CIA salvage ship called the Hughes Glomar that was used to rescue a Soviet submarine during the Cold War.

Setting the stage for the 35-minute proceeding today, the New York Civil Liberties Union brought a challenge last year to what it termed as the city’s “extreme response of secrecy” to a routine FOIL request.

Judge Arlene Bluth showed little patience this morning meanwhile for the city’s conduct.

“Why don’t you say it in your response, ‘We didn’t do it,’” Bluth bluntly asked New York City Law Department attorney Jeffrey Dantowitz.

“I really don’t get it,” Bluth added.

Dantowitz insisted, however, that any admission about the scope of the city’s StingRay cellphone-tracking devices would undermine the effectiveness of such technology.

“We shouldn’t have to disclose everything,” he said.

Dantowitz maintained that since the StingRay surveillance equipment is used primarily for kidnappings and terrorism, any incidental or inadvertent surveillance of protesters would not be responsive to the New York Civil Liberties Union’s request for documents related to the NYPD’s alleged “targeted or blanketed interference” of protesters’ cellphone service.

Dantowitz said that the city is careful about invoking the legal Glomar doctrine, remarking that he could only remember four times that the city employed the response.

The NYCLU argues, however, that it creates a slippery slope if the NYPD is permitted to use the Glomar doctrine to shield itself from these types of FOIL requests: “there would be no limit to the NYPD’s ability to cloak its conduct in secrecy,” the group said in its petition.

Hodgson said in court this morning that the city’s Glomar responses go “against the meaning and purpose of FOIA, which is about transparency.”

The proceedings here are distinct from a separate case that the NYCLU brought last year to learn how much the state had spent on StingRay technology.

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