by Christopher Dunn and Donna Lieberman — Invoking the threat of international terrorism, the Bloomberg Administration has asked a federal judge to scrap a seventeen-year-old court order that limits spying by the New York City Police Department on political and religious activity in New York City. While concerns about terrorism plainly require that law-enforcement officials be more vigilant and aggressive, those concerns do not justify allowing the NYPD to engage in unchecked surveillance of advocacy organizations, political and community groups, and churches, synagogues, and mosques. Indeed, the City’s sweeping request illustrates the risks that the understandable reaction to the threat of terrorism poses to civil liberties in our society.
In a 1971 federal lawsuit, various individuals and groups charged that the NYPD for years had engaged in widespread surveillance of political groups in the City and in some instances had infiltrated groups and encouraged them to engage in unlawful activity as a tactic to foment division and ultimately to prompt the destruction of the groups. In addition the suit charged that the NYPD had compiled files on the political activities of thousands of law-abiding New Yorkers and then had shared those files with academic officials, other law-enforcement agencies, employers, and the military, thereby smearing the reputations and destroying the careers of those engaged in lawful but controversial political advocacy.
Fourteen years later the case was settled with the City agreeing to modest restrictions on its surveillance activities. Known as the “Handschu Agreement,” the settlement centralized NYPD surveillance activity into a single unit of the Department, created a board controlled by the Police Department to receive complaints about improper surveillance and to issue periodic reports about surveillance, limited the retention of information gathered through political surveillance, and regulated the dissemination of such information outside the NYPD.
The central component of the Handschu Agreement, however, was the one addressing the situations in which the NYPD could spy on political and religious activity in the first place. Under the Agreement, the Department can investigate political activity only if “specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime.”
Along with most of the Agreement, the City wants to eliminate this restriction entirely, thereby freeing the NYPD to engage in unlimited political surveillance and to maintain political dossiers even when there is no reason to suspect that the person or group being spied on of unlawful activity. In other words, the NYPD wants to be able to spy on and infiltrate any group it chooses for any reasons it wants, regardless of legitimate law-enforcement concerns.
This is unnecessary and reopens the door to abuse. The NYPD of course should be free to investigate suspected terrorist activity, but nothing in the Handschu Agreement prevents it from doing so. All the agreement does is stop the Department from spying on and infiltrating lawful political and religious groups. In a City with a rich tradition of political diversity and a troubling history of overzealous policing of political groups, this is a sensible line that must be preserved.
Dunn is the associate legal director of the New York Civil Liberties Union; Lieberman is the NYCLU Executive Director.