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May 23, 2017

The New York Civil Liberties Union today filed a lawsuit against the NYPD on behalf of the activist group Millions March NYC and its organizers Vienna Rye, Arminta Jeffryes and Nabil Hassein in response to the department’s new approach -- the so-called “Glomar doctrine” -- of refusing public records requests about its surveillance activities and technology. The organizers of Millions March NYC, whose mission is to build and strengthen the movement for Black lives in New York City, are seeking information about whether the NYPD is using technology to infringe on the protest rights of activists.

“New York City should be doing what it can to protect people’s right to engage in political protests,” said Mariko Hirose, senior staff attorney at the NYCLU. “The last thing the police department should be doing is finding new loopholes to conceal from activists whether or not they are interfering with protests and organizing.”

 “We’ve seen more and more New Yorkers become politically engaged, so it’s disappointing that the NYPD is opting for less instead of more transparency when it comes to surveillance of political activities,” said Donna Lieberman, executive director at the NYCLU. “It’s a critical moment to check the NYPD’s extreme secrecy and protect the right to protest.”

Millions March NYC activists grew concerned after experiencing strange and unexplained problems with their phones while attending and organizing protests, similar to those reported by many Black Lives Matter protesters in other parts of the country. For example, some organizers experienced their phones shutting down during marches or received messages indicating possible interference in their messages sent and received on Signal, a secure messaging tool. Represented by the NYCLU, Millions March NYC filed a Freedom of Information Law request last October asking for records on interference with the use of cell phones by protestors, monitoring of their social media accounts, and surveillance of other protest and organizing activities.

However, the NYPD denied the vast majority of the request on the grounds that it could “neither confirm nor deny the existence of records” -- a troubling sign that the NYPD has begun invoking the “Glomar doctrine” broadly to avoid disclosing its surveillance activity.

The Glomar doctrine has historically been used in highly unusual national security circumstances involving federal agencies, not state or local law enforcement. Throughout the NYCLU’s long history of sending FOIL requests to the NYPD, including regarding its use of military-grade Stingrays, the NYPD has never before hidden behind the Glomar doctrine. In fact, whether or not the Glomar response is even permitted under state law is a question currently pending before the highest court of the state, in a case where the NYPD rejected FOIL requests by two Muslim men following the department’s widespread surveillance of the New York Muslim community.

But it is clear that while the appeal in that case is pending, the NYPD has begun using the Glomar doctrine as a new tool to keep people in the dark about its activities.

In its lawsuit, the NYCLU argues that if the NYPD is able 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 NYPD has a documented history of using surveillance as a tool of repression against political organizers, from the Young Lords to the Black Panthers,” said Millions March organizer Vienna Rye. “State surveillance is a form of psychological warfare. We want to shed as much light on the NYPD’s behavior as possible.”

 “The NYPD should not be allowed to engage in unaccountable monitoring of protesters,” said Millions March organizer Arminta Jeffryes. “We want the department to own up to what it’s doing.”

“Given the well-documented, decades-long history of NYPD spying on organizers and protestors, it is unacceptable for this already unaccountable police force to further decrease its level of transparency,” said Millions March organizer Nabil Hassein. “We hope this lawsuit helps to increase public knowledge of what the NYPD is up to.”

Though the NYPD response to Millions March NYC represents an escalation in its attempts to hide information, the department has been far from transparent about its use of surveillance technologies for some time. In March, Council Member Dan Garodnick and Council Member Vanessa L. Gibson introduced the POST Act, legislation that would for the first time establish a system of public oversight and input prior to NYPD implementation of surveillance technology. The NYCLU was a partner in drafting the bill.

In addition to Hirose, the NYCLU staff who worked on this lawsuit include Robert Hodgson, Maria Rafael and Chris Dunn. 

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