New York City Surveillance Program and Individual Freedoms

By Caitlin Barbas

The Constitution of the United States protects a person and their possessions from unjust search and seizure by the government and law-enforcement officers; however, does this protection of privacy extend to American citizens in the case of surveillance and telecommunications monitoring as well? As multiple organizations come under scrutiny for their surveillance practices, the dividing line between an individual’s privacy rights and the government’s intelligence gathering rights becomes blurred.

            The New York City Police Department (NYPD) is still facing strong criticism following an Associated Press (AP) investigation in 2011 which revealed high levels of surveillance upon American Muslims and Islamic Organizations both in and around New York City.[1] Due to the high volume of Muslim organizations and individuals monitored by the NYPD following the September 11 attacks, many have argued that these intelligence gathering efforts are ethnically and religiously driven and thus violate the First Amendment of the Bill of Rights.

            As the issue of privacy rights grows, the application of laws, as well as the new interpretation of these laws in regards to technological innovation becomes a key issue. We will look into the case study of the New York City Police Department’s surveillance policy, briefly explained above, in order to further analyze the changes in legislation and policy following the September 11 attacks and the introduction of new multi-media technology. This paper will begin by providing a brief description of the actions of the New York Police department in their surveillance, examining the legal changes which allowed for the increase in surveillance by the NYPD, and analyzing the reaction to the surveillance policies and the legal possibilities of the cases against the city and police department.

            The New York Police Department greatly increased the scope of their intelligence collecting unit following the September 11, 2001 attacks. The creation of the Demographics Unit with the help of the Central Intelligence Agency (CIA) helped to expand the investigations of the New York Police Department.[2] The information gathered by the Demographics Unit often led to further investigations by undercover detectives and agents of the NYPD. Muslim Student Associations, ethnic community centers, and Muslim mosques were the most commonly monitored areas, through means of recordings, undercover operations, and social media discussion, as a result of the definition of Locations of Concern.[3] The release of the New York City and Newark, New Jersey police department’s joint investigation revealed the criteria of Locations of Concern. These include high crime areas but also, a “center of activity for a particular ethnic group, location that persons of concern may be attracted to, location that individuals may frequent to search for ethnic companionship, [and] a popular hangout or meeting location… for listening to neighborhood gossip.”[4] The Muslim Student Associations, monitored by police both on campus, who reportedly gained cooperation of university security by explaining the police were conducting a gang and drug-ring infiltration[5] and through the student associations websites, included the MSA at Buffalo, NYU, Rutgers, Albany, Columbia, Stony Brook, LaGuardia Community College, Brooklyn College, the University of Pennsylvania, Queens College, Baruch College, Clarkson University, and SUNY Potsdam.[6] Throughout these surveillance investigations, the NYPD found no leads into terrorist plots and organizations.[7]

            The surveillance and intelligence gathering carried out by the New York Police Department was made possible by the reduction of laws limiting the extent to which government agencies and police departments could monitor the actions of American citizens. Following 9/11, which increased domestic fears of violent jihad and home-grown terrorist plots, the restrictions were eased.[8] In New York City, police officers and city agencies were limited in their powers by the Handschu Consent Decree of 1985. Initially, the Handschu Decree required officers conducting investigations of a political organization to report to the Handschu Authority, comprised of 2 police officers and one non-police affiliated appointed official. The Handschu Authority oversaw all investigations in order to ensure that the organizations were only being investigated as a result of evidence linking the group to a criminal act which had occurred or was threatened to occur.[9] In 2002, New York City appealed to the Federal District Court to remove the Handschu Decree from the investigation process; however, they were unable to prove that it interfered with investigations vital to apprehending those with terrorist motives.[10] As a result, the restrictions placed upon law officers by the Handschu Decree were weakened but not removed. In September 2002, Senior District Judge Charles S. Haight Jr. allowed for modification of the Decree in the vicinity of the FBI guidelines regarding investigations. These guidelines gave officers the right to investigate public meetings and access public information provided they had reason to suspect criminal activity, contrary to previously needed evidence of criminal activity. Furthermore, the new policy removed the relatively independent Handschu Authority, instead allowing investigators to obtain permission from commanding officers within the intelligence department.[11] The police department was not permitted to retain any non-incriminating information.[12] Furthermore, the New York City Police Department’s Demographics Unit created joint investigations with various cities in the surrounding area, including Newark, NJ and Nassau and Suffolk Counties in New York State, thus providing the department with access to a greater amount of information and intelligence collection.

            These changes in the laws regarding privacy and investigation rights following the September 11 attacks allowed the New York City Police Department to rapidly extend its intelligence collection program. While the city did see changes in the policy regarding investigations, many still believe that the NYPD was unjustified in its surveillance of Muslim Americans. Most recently, the American Civil Liberties Union, the New York Civil Liberties Union, and the CLEAR Project have “filed a lawsuit challenging the New York City Police Department's discriminatory surveillance of innocent Muslim New Yorkers.”[13] The plaintiffs of this case are Imam Hamid Hassan Raza, the Masjid Al-Ansar Mosque, Asad (“Ace”) Dandia, Muslims Giving Back Non-Profit, the Masjid At-Taqwa Mosque, and Mohammad Elshinawy.[14]

            When looking at this case from a solely legal standpoint, the question of right-wrong/ guilty-not guilty becomes highly subjective depending on what one would consider to be suspicion of criminal acts. Due to the wording of the modified Handschu Consent Doctrine, the NYPD intelligence committee needs only to prove that they had suspicion of criminal activity. Whether or not the New York Police Department overreached their boundaries, thus, does not become the central question. The central question becomes whether the NYPD had reasonable suspicion to lead to the investigations of a widespread number of innocent American residents and citizens. The New York Police Department explains its action as being necessary in the case that a tip regarding terrorist intent was brought to the attention of the department. In this situation, the officers would have a clear understanding of the culture of the suspect and where this cultural attachment may lead him to stay or organize his plans, as a result of their previous surveillance and knowledge of the neighborhood.[15] Furthermore, the police department argues that the Muslim Student Associations which were surveyed and infiltrated were targeted due to the fundamentalist speakers invited to speak on campus, which prompted concern over radicalism.[16] The problem emerging with this argument is that it assumes all members of a particular faith will act in a certain manner, assuming what many New York Muslims are calling “guilt by association,” arguing that this fear of association infringes upon the First Amendment right of religious freedom. Plaintiffs argue that the locations of concern provide further questioning of the justification of the NYPD investigations. For instance, in New Jersey nearly all the areas of concern were Muslim owned or used.[17] The requirements often only involved groups of similar ethnicities meeting, regardless of whether they were connected to crimes, therefore, giving the appearance of being ethnically and religiously motivated.[18] These two sides of the same action, help to show the subjectivity of the issue and how this subjectivity will hinder the plaintiffs’ attempt to show the New York Police Department did not have any reasonable suspicion to investigate, regardless of whether they actually did or not.

            A further point of legality issues emerges when analyzing the construction of the Demographic Unit. The CIA, which provided the NYPD with assistance in the creation of this intelligence unit, is legally is unable to spy on Americans, thus, furthering the controversy over this program, as it applies foreign spying techniques within the homeland.[19] However, as the CIA was technically not conducting the surveillance on the citizens of New York, the Demographic Unit did not defy jurisdictional boundaries.

            This complex issue has caused must concern over the rights of citizens in contrast to the rights of the governmental agencies. The highly focused surveillance of American Muslims in New York and the surrounding communities has created great controversy, as the New York Police Department faces criticism for allegedly discriminating against all Muslims due to the actions a few. However, when looking though a legal perspective, we see that it is very difficult to prove the New York Police Department was infringing upon American privacy rights due to the vagueness of the requirement of suspicion to justify an investigation.

---

[1] Hawley, Chris, Adam Goldman, Eileen Sullivan, and Matt Apuzzo. Associated Press. Accessed November 19, 2013. http://www.ap.org/media-center/nypd/investigation.

[2] Goldman, Adam, and Matt Apuzzo. "NYPD: Muslim Spying Led to No Leads, Terror Cases." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-no-leads-terror-cases.

[3] Associated Press. Accessed November 19, 2013. http://hosted.ap.org/specials/interactives/documents/nypd/nypd_newark.pdf.

[4] Ibid.

[5] Hawley, Chris, and Matt Apuzzo. "NYPD Infiltration of Colleges Raises Privacy Fears." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2011/NYPD-infiltration-of-colleges-raises-privacy-fears.

[6] Ibid.

[7] Goldman, Adam, and Matt Apuzzo. "NYPD: Muslim Spying Led to No Leads, Terror Cases." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-no-leads-terror-cases.

[8] Apuzzo, Matt, and Adam Goldman. "With CIA help, NYPD moves covertly in Muslim areas." Associated Press. Accessed November 19, 2013. http://www.ap.org/Content/AP-in-the-News/2011/With-CIA-help-NYPD-moves-covertly-in-Muslim-areas.

[9] New York Civil Liberties Union. "Testimony: Police Surveillance of Political Activity -- The History and Current State of the Handschu Decree." http://www.nyclu.org/content/testimony-police-surveillance-of-political-activity-history-and-current-state-of-handschu-de.

[10] Ibid.

[11] Ibid.

[12] The New York Times. "Spying on Law-Abiding Muslims." Accessed November 19, 2013. http://www.nytimes.com/2013/02/10/opinion/sunday/spying-on-law-abiding-muslim-citizens.html?_r=1&

[13] American Civilian Liberties Union. "Raza v. City of New York - Legal Challenge to NYPD Muslim Surveillance Program." Accessed November 19, 2013. https://www.aclu.org/national-security/raza-v-city-new-york-legal-challenge-nypd-muslim-surveillance-program.

[14] Ibid.

[15] Goldman, Adam, and Matt Apuzzo. "NYPD: Muslim Spying Led to No Leads, Terror Cases." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-no-leads-terror-cases.

[16] Hawley, Chris, and Matt Apuzzo. "NYPD Infiltration of Colleges Raises Privacy Fears." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2011/NYPD-infiltration-of-colleges-raises-privacy-fears.

[17] Associated Press. Accessed November 19, 2013. http://hosted.ap.org/specials/interactives/documents/nypd/nypd_newark.pdf.

[18] Goldman, Adam, and Matt Apuzzo. "NYPD: Muslim Spying Led to No Leads, Terror Cases." Associated Press. Accessed November 20, 2013. http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-no-leads-terror-cases.

[19] Apuzzo, Matt, and Adam Goldman. "With CIA help, NYPD moves covertly in Muslim areas." Associated Press. Accessed November 19, 2013. http://www.ap.org/Content/AP-in-the-News/2011/With-CIA-help-NYPD-moves-covertly-in-Muslim-areas.