The Spying Game

New York cops and civil libertarians resume their fight over political surveillance

If you've seen or attended a recent protest in New York City about the war or the president or even rent guidelines, you have probably seen the cops with the video cameras. They aren't making home movies. Instead, what they're likely filming is political speech that, in an earlier day, might have been off-limits to police snooping thanks to the First Amendment. They are also staking out ground in a 34-year-old legal battle between the NYPD and civil libertarians—a dispute that is probably headed back to court yet again early next year.

The argument this time is about Interim Order 47, a police department directive issued in September 2004 setting out new rules for when officers can videotape and photograph political demonstrations.

The order tells cops that they can use cameras to make training tapes or analyze police procedures, as well as "when a reasonable belief exists that unlawful activity, terrorist activity, or arrest activity will occur." No problem there. That language is in line with the 2003 version of the NYPD's "Guidelines for Investigations Involving Political Activity." A federal court approved those guidelines after the NYPD, citing "changed circumstances, based on the attacks and activities of international terrorists" after 9-11, asked to be freed from stricter rules that were part of the 1985 settlement in Handschu v. Special Services Division.

Camera action: Cops film an arrest at a 2002 anti-globalization protest.
photo: Julie Xanthos
Camera action: Cops film an arrest at a 2002 anti-globalization protest.

Details

See also:
  • Tales of the Tape: The Bigger Picture
    by Jarrett Murphy
  • Handschu was a 1971 suit by activists who'd been targeted by the NYPD Intelligence Division; the case was named for one of the plaintiffs. It required cops who wanted to spy on political groups to get approval—within 48 hours of beginning their investigation—from a commission made up of two police officials and a mayoral appointee. Officers had to provide some rationale for why the surveillance was necessary.

    Although NYPD brass did not cite an instance in which Handschu hamstrung an investigation of potential criminality, the city in 2002 went back to federal court to claim that the rules were too tight for the fight against terrorism. A judge agreed, and allowed the NYPD to adopt a new set of rules that still requires some "reasonable indication" of criminal activity or terrorist plotting before a probe can be launched, but gives police commanders—not the Handschu commission—the authority to green-light any inquiry into political groups.

    Months after the 2003 rules were accepted, it emerged that the NYPD was questioning people arrested at demonstrations about things like their political party affiliation and their views on George W. Bush and Al Gore. So the judge formally included the new NYPD guidelines in his court order to make them enforceable.

    Which brings us to what happened a couple weeks back when the lawyers who've shepherded Handschu for three decades asked U.S. District Judge Charles S. Haight to enjoin the NYPD from using Interim Order 47. Their beef is that the NYPD has unilaterally expanded the circumstances under which cops can videotape protesters, how long they can keep the tapes, and what they can do with them.

    Interim Order 47 allows police to video- tape demonstrators not just when cops suspect criminal activity or need to make a training film, but also "during special events, disorder events, arrests, public assemblages or any other critical incident in which such accurate documentation is deemed potentially beneficial or useful."

    Whereas the 2003 guidelines allow the NYPD to retain material it has gathered from political events only if there's suspected criminal or terrorist activity, Interim Order 47 requires that videotapes from demonstrations be retained for a year and allows the tapes to be kept indefinitely—not only if they become evidence, but merely if they are "deemed valuable for other purposes." And the order also calls for the tapes to be summarized "to assist in indexing and retrieval."

    Rights lawyers shudder. "A consciousness on the part of demonstrators that dossiers are being made out of the films and the photos that are taken is extremely chilling," says Paul Chevigny, one of the lawyers who has shepherded Handschu. He points to past cases where pictures of "known activists" have been erroneously linked to crimes, triggering investigations. "The second thing is it shows an assumption on the part of the police department that ordinary demonstrators that they're dealing with may well be terrorists and that is an assumption that isn't consistent with the guidelines. And I don't think it's consistent with the First Amendment."

    "I might also add it is an outrageous waste of resources," Chevigny, a professor at NYU School of Law, tells the Voice.

    Ever since the big anti-war protests of early 2003, city lawyers and Handschu plaintiffs have held a back-and-forth through the mail over the meaning of the 2003 guidelines. To the lawyers trying to quash it, Interim Order 47 seemed like a reaction to civil liberties complaints about videotaping and an effort to force the issue back into court. (Neither the NYPD nor the city's law department responded to requests for comment.)

    After the order emerged in 2004, there were even more letters. In one early this year, the city said it was willing to compromise on some—but only some—of the language. In another, city lawyer Gail Donoghue said the arguments of the civil liberties lawyers would "totally undermine the authority given to the NYPD to gather information for the purpose of preventing or detecting terrorism when there is not yet a basis for an investigation."

    It's worth remembering that the issue here isn't whether the cops can surreptitiously investigate terrorist groups or potential plans for criminal activity by violent protesters like the window-smashing anti-globalization crowd. That's all fair game under the rules approved by the court in '03. Police may also film arrests at a demonstration or crimes in progress, as well as install closed-circuit cameras to patrol high-crime areas.

    Interim Order 47 is about something else entirely: the filming and photographing of constitutionally protected protests.

    Marching in a demonstration is different from voting, or reading political literature, or even sending a letter to your member of congress. Stepping out into the streets in political protest means that friends, neighbors, or co-workers could see you on the evening news. The media can film you doing it. But while a protester gives up his or her right to be strictly anonymous, "you're not giving up the right to be free from being in a police file for the rest of your life," says Jethro Eisenstein, another one of the Handschu lawyers.

    It's not clear that the police are creating such files. But it is clear that they are making videotapes. In one example, the cop cameras were present two weekends ago at a small protest in front of the mayor's townhouse, where people were advocating that the city seek more control from Albany over rent control laws.

    Of course, bigger protests also get taped. A report by the NYCLU contends that during the 2004 Republican National Convention, "countless numbers of police officers with video cameras filmed tens of thousands of people who were engaged in wholly lawful and peaceful activity."

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