Privacy researchers obtained documents about the New York City Police Department’s use of facial recognition technology through a public records lawsuit. Now, the NYPD claims some of the records were released inadvertently and is trying to claw them back.
A Manhattan judge ordered the records returned in April, and is preventing the Georgetown Center on Privacy and Technology researcher from referencing them — a dangerous order for freedom of information and publishing rights. The Center appealed the order on April 29.
Courts have generally held that court orders prohibiting the publishing of information are an unconstitutional violation of the First Amendment.
“The April 3 Order is an unconstitutional prior restraint on the Center's speech,” the appeal reads. “Although the Center is not prohibited from discussing the content of the returned records, it is permanently enjoined from referring to the source of that content. ‘Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity.’”
NYPD initially claimed it had no records responsive to the original request, filed years ago by the Georgetown Center on Privacy and Technology. An ongoing lawsuit, though, has produced nearly 4,000 documents and revealed the agency’s widespread use of facial recognition technology — including that it is likely used in every NYPD arrest.
“The documents released through this lawsuit as a whole — around 3,700 so far — definitely have painted a much clearer picture of NYPD’s use of facial recognition than we had before,” Center Attorney Clare Garvie said.
Garvie reviewed a new batch of documents from the suit last December, but 20 days later, the city informed her that numerous pages — around 150 total — were “confidential,” released only “inadvertently”, and must be destroyed. Eventually, that number was whittled down to around 12 pages the NYPD claims must be destroyed, and around 20 more that must be redacted.
Under the judge’s order mandating the return of the documents, Garvie can speak about the information but cannot reference the documents.
“The court allowed us to discuss the information that resides in our brains,” she said. “This renders those pages essentially useless. It’s very hard from an academic and advocacy perspective to be able to use information that I cannot source.”
Any time a government agency orders documents that were obtained legally to be returned or destroyed is a threat to freedom of information and constitutional rights of reporters everywhere. Journalists and researchers rely on government records in their accountability and investigative work, and they should never face threats of legal action or gag orders for publishing or discussing information received legally.
NYPD is not the only law enforcement agency attempting to block the publication of released information.
In January, the California Attorney General’s office threatened two reporters with criminal charges if they did not destroy a list of police officers that were convicted of crimes, also obtained through a public records request. In that case, Attorney General Xavier Becerra’s office said that the documents were also released “inadvertently” and called the mere possession of the legally-obtained document a crime.
David Snyder, an attorney at the First Amendment Coalition, told Freedom of the Press Foundation in February that “...the Supreme Court has made clear that if a journalist or anyone else lawfully receives information, they are protected from civil liability for publishing it.”
Government agencies do occasionally release documents to journalists by mistake, but once they do, they generally have little legal recourse to get them back. In 2015, The New York Times obtained documents through a public records lawsuit against the National Security Agency. After releasing them, NSA informed The Times that one of the records had been released inadvertently and asked for it returned. The Times declined and published the document with redactions, which formed the basis for important reporting on the NSA’s mass domestic phone record collection program.
Aaron Mackey, an attorney at the Electronic Frontier Foundation, noted that it is not just government agencies that attempt to block the disclosure or spread of legally obtained information. Corporations all too frequently attempt to suppress information about themselves, such as when several companies sued a privacy activist in Seattle in 2016 after he received documents through a public records request.
“The bottom line is that any order that prohibits someone from discussing anything they've seen or obtained is unconstitutional, particularly if it is a blanket order preventing someone from speaking or publishing,” Mackey said.
It is the work of journalists and researchers to access and cite documents in their possession, whether those documents are obtained through a public records request, a lawsuit, or the court record database PACER. A failure by a government agency to properly do its job redacting and releasing documents should not stop members of the public from doing their job reporting on them.