New York City Police Department documents obtained by The Verge show that police camera teams were deployed to hundreds of Black Lives Matter and Occupy Wall Street protests from 2011–2013 and 2016. Originally acquired through a Freedom of Information Law request by New York attorney David Thompson of Stecklow, Cohen & Thompson, the records are job reports from the NYPD’s Technical Assistance Response Unit (TARU) that document over 400 instances in which the unit’s video team attended, and sometimes filmed, demonstrations. More important than the records the NYPD turned over, however, are those that it claims it cannot find: namely, any documents demonstrating that legal reviews and authorizations of these surveillance operations took place.
While NYPD cameras have been regularly spotted at protests over the last six years, the frequency of their deployment and the departmental practices governing their use have remained unknown. Since mass protests broke out in New York City over the deaths of Mike Brown and Eric Garner at the end of 2014, Black Lives Matter activists have pointed to the constant presence of cameras as one of the NYPD’s primary means of spying on the movement, in addition to the presence of undercover officers.
According to Interim Order 22, the NYPD’s guidelines for the filming of public activities, the department’s deputy commissioner of legal matters is supposed to review police requests for the filming of demonstrations, which include the operational objective of the recording, and forward approved requests to NYPD higher-ups. But in response to Thompson’s requests for these approved requests, the NYPD responded that no such records were located.
“This process is intended to be a control to ensure there’s an adult in the room, a legally trained adult in this case, who is able to understand whether or not the filming conforms to police guidelines or not,” says Thompson, who worries that the apparent lack of authorizations is allowing NYPD officials to order protest surveillance without providing clear reasons for doing so. (Thompson says his law firm has taken civil cases on behalf of Black Lives Matter activists, but that this request arose from professional and personal concern over “how the NYPD follows or fails to follow the law regarding protest.”)
The department’s failure to produce authorized request records suggests top department officials are deciding either to not follow departmental rules or to not hand over sensitive records, says Joseph Giacalone, a retired NYPD Detective Sergeant and professor at John Jay College’s Law, Police Science and Criminal Justice Administration Department. “If an officer sends something to the legal bureau, it gets a number and gets recorded, then it’s forwarded to whoever and gets another number,” says Giacalone. “No captain is going to take it upon himself to request a filming without any record because otherwise they’re asking for a lot of trouble from the ACLU. So let’s put it this way, those things shouldn’t get lost.”
Thompson’s request only asked for video surveillance records related to Black Lives Matter and Occupy Wall Street, so the documents do not show whether the department exercises the same degree of monitoring for other social movements. Police are allowed to film demonstrations if they have reason to suspect that some crime may occur, and, according to Giacalone, this makes the department most focused on the groups deemed to be the most “radical,” and most likely to commit criminal acts at demonstrations. “No one is videotaping old geezers on wheelchairs protesting about trees or Roe v. Wade activists standing outside a clinic,” notes Giacalone. “The same folks in Occupy Wall Street turned into Black Lives Matter and now into anti-Trump — they’re radicals, so we can make a pretty strong argument that something criminal may happen.”
Activists and civil liberties advocates, however, fear a lack of robust regulation could enable police to spy on activists they personally don’t like with little concern for the chilling effects such operations may have.
Elsa Waithe, a New York City comedian and Black Lives Matter activist, recalls a period in which she felt she could no longer fully participate in the movement because of constant video surveillance. Toward the end of 2014, Waithe joined one of the city’s most outspoken Black Lives Matter groups, NYC Shut It Down, and marched along with thousands of other New Yorkers to protest the deaths of Michael Brown and Eric Garner. But her movement work came to an abrupt halt after one action in April 2015 when she says a police officer shoved her to the ground, allegedly for trying to film an arrest. In the months after that incident, Waithe stopped showing up to the weekly protests at which she had been a fixture, fearing the NYPD’s video surveillance could make her an identifiable target.
“I thought, ‘If they are surveilling me, and knew I was recently hurt, would they try to target me again to try to permanently deter me?’” says Waithe. “Knowing they constantly have cameras on us, it created a sense of fear.”
Jethro Eisenstein, an attorney who litigated for the rules governing NYPD political surveillance, known as the Handschu guidelines over four decades ago, says that while the department’s apparent lack of authorizations may violate departmental protocol and make activists feel like unwarranted videotaping is taking place, opponents of such activity have little legal recourse. “When you violate an internal NYPD rule, everyone becomes sad, but there’s no remedy,” says Eisenstein, whose legal challenges pushed the NYPD to create the internal rule Interim Order 22 in 2007, after allegations surfaced that the NYPD had been filming peaceful Iraq War protesters for political purposes.
Giacalone argues that filming protesters out in public is fair game, and should not be equated with the spying on political groups that the department carried out in the 1960s that eventually led to the Handschu guidelines. “There’s a difference between filming people in public and infiltrating their groups,” says Giacalone. “People can’t go out and do whatever they want — otherwise we’d have anarchy, which is what I think a lot of these groups actually want.”
But activists argue that the little-regulated retention and cataloging of protest footage could expose them to retroactive repression. One record from May 19th, 2016, for example, shows that Deputy Inspector Andrew Lombardo requested copies of NYPD videos of “mass arrests” at a December 4th, 2014 Black Lives Matter protest. The review request seems unusual because Lombardo is not a member of the NYPD’s Legal Bureau; he is a high-ranking officer within the Strategic Response Group, the department’s specialized protest and counterterrorism response unit. Lombardo has been frequently accused in the past of personally targeting and interrogating protesters, using techniques from his past experience overseeing detainees in Iraq.
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About The Author:
George Joseph
The Verge
George Joseph is a a reporting fellow at Demos focusing on surveillance, immigration, law enforcement, and the entry of big data in criminal justice systems.