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The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

What you’ll read today

  • Spotlight: The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

  • Secretly recording police officers is protected by First Amendment

  • A punitive turn looms on Florida Supreme Court

  • Philadelphia law enforcement derived millions from selling seized properties, including to police officers

  • Indiana police chief fired over disciplinary failures and police assault of handcuffed man

In the Spotlight

The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

Last Tuesday, the NYPD announced that it will deploy 14 drones and train 29 police officers to operate them. The NYPD now joins a rapidly growing list of police agencies around the country that have drone programs. The announcement has triggered concerns about unauthorized surveillance, given the department’s history of spying programs. [Ashley Southall and Ali Winston / New York Times] See also Our July 20 newsletter looked at the vast and unregulated field of law enforcement drone use.

In a statement after the announcement, the New York Civil Liberties Union (NYCLU) argued: “The NYPD’s drone policy places no meaningful restrictions on police deployment of drones … and opens the door to the police department building a permanent archive of drone footage of political activity and intimate private behavior visible only from the sky.” The department insists it will not engage in warrantless drone surveillance, but that is far from reassuring given its history of spying on mosques and Black Lives Matters protests. The NYCLU saw an early draft of the drone policy and provided feedback. Though the department incorporated some of the organization’s input, it ignored the bulk of it. [Kay Wicker / Think Progress]

The NYCLU is concerned that the department will use drones “to spy on protesters legally exercising their constitutional rights.” Surveillance is far more feasible with drones because they are small and relatively inexpensive. The NYPD policy provides for the use of drones to monitor “large scale events” but does not clearly define what a “large scale event” is. Also, though the policy forbids equipping drones with real-time facial recognition technology or, after the NYCLU’s feedback, the use of the technology on drone footage, it creates an exception for footage in the “case of a public safety concern,” potentially “an exception so big it swallows the rule.” The technology, known for being error-prone when identifying people of color, could therefore be applied to footage of “the movements of hundreds of thousands of New Yorkers.”

The NYCLU had also recommended that footage be retained for no longer than 24 hours to prevent its misuse. However, footage will instead be automatically kept for 30 days, and that period can be extended if needed for “civil litigation, subpoena production, FOIL [Freedom of Information Law] requests or other legal process”—creating another easy-to-abuse loophole. [New York Civil Liberties Union]

Joo-Hyun Kang, the director of Communities United for Police Reform, criticized the city for not seeking wider public input and oversight. The decision to adopt the drone program and the failure to solicit greater community input, she said, “reflects a dangerous anti-democratic pattern of the de Blasio administration and the NYPD that disregards the perspectives of communities most impacted by police abuses.” [Ashley Southall and Ali Winston / New York Times]

The New York chapter of the Council on American-Islamic Relations (CAIR-NY) also condemned the drone program. It pointed to a 2016 report by the NYPD inspector general which, while focusing on consistent noncompliance with court orders regarding investigations into political activity, also found 95 percent of intelligence investigations targeted the Muslim community. As the Brennan Center for Justice put it, “American Muslims bore the brunt of these violations by a staggering ratio.” CAIR-NY contrasts the NYPD’s heavy surveillance of the Muslim community with its failure to take seriously the threat posed by right-wing extremists and white supremacists. The group’s legal director argued that it is “wrong of the NYPD to take to the skies before tackling ground-level privacy concerns.” [CAIR-NY]

As of May of this year, over 900 law enforcement and emergency services agencies around the country had acquired drones, according to the Center for the Study of the Drone at Bard College. The center estimates that agencies have been buying drones at a rapid rate, with the number acquiring drones going up by 82 percent between 2017 and 2018. Nor is this a full accounting of agencies that have used drones, since one department can use the drone services of another nearby or even contract the services of a drone operator. [Center for the Study of the Drone]

There has been mixed success in fighting the use of drones by domestic law enforcement agencies. Seattle’s police department became one of the first in the country to receive permission to do so but sustained outcry from residents led to the city abandoning the drone program in 2013. [Dante D’Orazio / The Verge] Our July 20 newsletter looked at an ordinance adopted in May in Oakland, California, which the Electronic Frontier Foundation described as the “new gold standard in the movement to require transparency and community engagement before local police departments are permitted to acquire or use surveillance technology.” [Nathan Sheard / Electronic Frontier Foundation] In Illinois, a bill that would have rolled back protections against surveillance of protesters was defeated this year. [Shahid Buttar / Electronic Frontier Foundation]

Seattle’s drones were packed off to Los Angeles in 2014 and remained in storage there until last year when the LAPD started a yearlong pilot program. Now the nation’s two largest police departments, NYPD and LAPD, have drone programs. Though the LAPD pilot placed substantial restrictions on the use of the drones, Engadget reported that, “critics … are worried that what the police say they’ll do and what they’ll actually do are two different things.” [Jon Fingas / Engadget] Hamid Khan, an activist with the Stop LAPD Spying Coalition told Gizmodo that law enforcement agencies have a track record of mission creep. “The capacities and capabilities [of drones] need to be seen not just in that single tool, but in how it fits into larger architectures of surveillance and information gathering.” [Sidney Fussell / Gizmodo]

Stories From Around the Country

Secretly recording police officers is protected by First Amendment: A Massachusetts judge has ruled that state law “may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces,” subject to reasonable restrictions. The ruling came in two challenges to the state’s wiretap statute. In one of the two cases, activists represented by the ACLU argued that they were afraid to secretly record police due to a “credible fear of arrest and prosecution under the state’s wiretap statute.” While the activists have previously recorded police openly, the ACLU said secret recordings would “both protect their safety and more accurately document police behavior.” The other challenge to the statute was brought by Project Veritas, a group founded by the conservative activist James O’Keefe, that releases covert recordings meant to show media bias. [Danny McDonald / Boston Globe]


A punitive turn looms on Florida Supreme Court: The Florida Supreme Court signaled in 2016 that it would grant relief to hundreds who were sentenced as minors and have no realistic prospect of release. But the court reversed itself this year. In November, it affirmed the lengthy sentences received by a petitioner named Arthur Franklin. “There is no indication that Franklin has even a chance of being released before the end of his natural life expectancy,” Justice Barbara Pariente wrote in her dissent. The flip was due to Justice James Perry’s replacement with Justice Alan Lawson. And more retirements are coming: Three of the court’s seven justices must leave next month, and Governor-elect Ron DeSantis will choose their replacements. The Appeal: Political Report explored the impact that this rapid transformation could have on sentencing, especially on cases involving juvenile justice and the death penalty. Indeed, most of the justices who have voted to restrict the death penalty’s application are leaving. [Daniel Nichanian / The Appeal: Political Report]

Philadelphia law enforcement derived millions from selling seized properties, including to police officers: In parts of Philadelphia’s Kensington neighborhood, it became a common sight to see properties seized after police raids. Philadelphia had the highest rate of property seizures in the state and within the city, they were further concentrated in certain neighborhoods.  On one block in Kensington, the district attorney’s office attempted to seize nearly one-quarter of the properties between 2011 and 2015 alone, according to reporting by PlanPhilly. The office then auctioned off these properties. The city’s asset forfeiture program brought in millions of dollars, divided between the district attorney’s office and the police department. And despite claims that asset forfeiture would improve neighborhoods, a PlanPhilly analysis of 1,682 deed records linked to properties auctioned by the district attorney’s office since 1993 revealed that many of the properties lie vacant years later. Furthermore, at least 11 properties were bought by Philadelphia police officers “trying their hands at real estate investment.” [Ryan Briggs / PlanPhilly]

Indiana police chief fired over disciplinary failures and police assault of handcuffed man: The police chief of Elkhart, Indiana, was asked to resign Monday over disciplinary issues in the department and his inaction over the beating of a handcuffed man by officers. Chief Ed Windbigler was suspended without pay for 30 days last month after video obtained by the South Bend Tribune and ProPublica showed officers repeatedly punching a handcuffed man in the face at the police station and the man eventually leaving the station on a stretcher. The officers were charged with misdemeanor battery after the Tribune requested a copy of the video of the incident. The publications reported that disciplinary actions had dropped significantly since Windbigler took the position in 2016. The mayor has said he will ask for an independent review of the police department, looking at the use of force and disciplinary matters. He also said he had made three requests to the Department of Justice to conduct a review, but received no response. [Christian Scheckler and Ken Armstrong / South Bend Tribune and ProPublica]

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