Police practices came under intense public scrutiny in 2014, as citizens raised further questions about the use of mass surveillance technologies and deadly force. From Ferguson to New York City, from Alameda County to Tucson, watchdogs have sought records to hold law enforcement agencies accountable for abuses. As one might expect, many of these local and federal police agencies have shunned sunlight, often citing absurd excuses to withhold documents.
For Sunshine Week, EFF began collecting transparency horror stories for The Foilies, our new “awards” to highlight problems citizens face in the Freedom of Information Act and other public-records request processes. So many of the nominations involved secrecy within law enforcement agencies that we decided to compile them together for today’s Round 2 of the Foilies.
EFF has been engaged in a years-long battle over various surveillance technologies, including lawsuits against Los Angeles law enforcement agencies over automatic license plate readers (ALPRs) and against the U.S. Department of Justice over cell-phone tracking devices on planes. We’re glad that we’re not the only ones working to shine light on these issues.
Special Achievement in Battery Draining, Mass Surveillance Category
City of Lansing/Lansing Police Department’s Automatic License Plate Readers
The Lansing Police Department purchased a set of automatic license plate readers, little cameras that cops mount on the trunks of their cars to capture the license plate of any other car nearby. Yet, when a local resident filed a records request for ALPR data, he was told it didn’t exist due to “malfunctioning of the automated LPR technology.”
A few weeks later, the Lansing City Attorney sent a second letter admitting that a few months of ALPR data did exist and that it was all an “internal misunderstanding.” The letter further explained that the police were using ALPR less and less due to myriad problems, including the devices “draining the car batteries” and “hot sheets not downloading automatically.”
Nevertheless, the city refused to hand over the limited data in their possession. In earlier justifications for using ALPR, police had cited case law to claim “that a person traveling on public roads has no expectation of privacy in his movements.” Now, however, the city is claiming that data must be withheld because “disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”
Most Egregious Nationwide Conspiracy to Hide Surveillance Technologies
Federal and local law enforcement agencies across the United States
We received scores of nominations regarding law enforcement use of “Stingrays,” also known as IMSI catchers, devices that emulate cell towers to track mobile phone users. In San Diego, the city attorney refused to turn over documents related to Stingrays, even ones already available on the city's website. The Tacoma Police Department responded to a request for non-disclosure agreements with that same company with four completely blacked out pages. We received similar stories from Erie County in New York and the city of Charlotte, but perhaps the FBI’s secrecy was the worst.
The FBI told Muckrock it couldn’t locate a log of non-disclosure agreements with police departments regarding Stingrays, only to later find it and claim that document would be withheld in full. In Daniel Rigmaiden’s FOIA battle over Stingrays, the FBI tried all sorts of tricks to withhold the records, including arguing that “the stigma of working with the FBI would cause customers to cancel the companies’ services and file civil actions to prevent further disclosure of subscriber information” and that releasing the information would result in “economic retaliation against the United States.” The FBI has also butted into local public-records cases to keep the information from becoming public. In one affidavit, the FBI even claimed that any official who released Stingray details to a media organization could face 20 years in prison and a $1 million fine.
These cases may just be the tips of a field of icebergs.
Most Dubious Delay in Providing Police Use of Force Records
Corpus Christie Police Department
A Texas woman made a selfie-style video as she was put in a chokehold by a police officer in a Whataburger parking lot. After the YouTube clip went viral, Mike Rekart of Photographyisnotacrime.com put in a public records request for the department “use of force” policy.
Corpus Christie police stalled release of the document, claiming it was “copyrighted” and required special authorization. That delay gave the department enough time to amend the policy so that the version they eventually gave the requester was not the version in place during the controversial chokehold.
Most Outrageous Argument for Withholding Police Use of Force Records
Victoria Police Department
In Victoria, Texas, a police officer was caught on dashcam video throwing a senior citizen to the ground and zapping him with a Taser. When Rekart tried to obtain the policy related to use of force and weapon discharges, the police asked [PDF] the Texas Attorney General to rule that these could be kept secret, because release “could impair an officer’s ability to arrest a suspect by placing individuals at an advantage in confrontations with police.”
Citizens have a right to know what to expect when interacting with police, so they can behave in a way that won’t get them choked, Tased, or shot. Similarly, citizens should know what to expect in terms of surveillance technologies, so they can participate in crafting policing policies and priorities in their communities. Yes, transparency gives the public an advantage, but that’s also an advantage for law enforcement, through trust-building and mutual understanding. Sunshine makes us all safer.
For other posts from The Foilies:
The Foilies Round 1: Foiled by the Process
The Foilies Round 3: Ridiculous Redactions and Records Errata