SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of, NEW YORK CIVIL LIBERTIES UNION, Index No. 10078 8/ 16 IAS Part 17 Petitioner, (Hagler, J.) ~against- NEW YORK CITY POLICE DEPARTMENT, Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. REPLY IN SUPPORT OF THE VERIFIED PETITION Respectfully submitted, Mariko Hirose Christopher Dunn NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 Telephone: (212) 607?3300 Facsimile: (212) 607-3329 mhirose@nyclu.org Counsel for Petitioner DATED: August 31, 2016 TABLE OF CONTENTS INTRODUCTION .. 1 ARGUMENT .. 2 I. THE NYPD DISREGARDS THE LIMITED NATURE OF THIS PETITION AND FAILS TO JUSTIFY WITHHOLDING RECORDS IN THEIR ENTIRETY. .. 2 II. THE NYPD CANNOT WITHHOLD RECORDS ON THE BASIS OF THE EXEMPTIONS CLAIMED. .. 6 A. The Information Technology Exemption Does Not Apply. .. 6 B. The Law Enforcement Exemption Does Not Apply. .. 8 C. The Public Safety Exemption Does Not Apply. .. 14 THE NYCLU IS ENTITLED TO FEES. .. 16 CONCLUSION .. 17 TABLE OF AUTHORITIES Cases Am. Civil Liberties Union vDept. of Homeland Sea, 973 Supp 2d 306 2013] ..15 Am. Civil Liberties Union vFed. Bur. of Investigation, 2013 WL 3346845 Cal, Jul 1, 2013, No. 12-03728] ..11, 15 Am. Civil Liberties Union of N. California vDept. of Justice, 2014 WL 4954277 Cal, Sept. 30, 2014, Capital Newspapers Div. of Hearst Corp. Albany, 15 759 [2010] Capital Newspapers Div. of Hearst Corpv Burns, 67 562 [1986] ..7 Commonwealth ofPuerto Rico United States, 490 F3d 50 [lst Cir 2007] ..8 Crawford New York City Dep ?t of Info. eeh. Telecom, 43 Misc 3d 735 [Sup Ct, NY County 2014] ..6 Doolan Bd. of Co?op Educ. Servs., Second Supervisory Dist. of Su?olk County, 48 341 [1979] ..8 Florida Star 491 US 524 [1989] ..10 Friedlandv Maloney, 148 814 [3d Dept 1989] . .16 Gould New York City Police Dept, 89 267 [1996] ..11, 14, 15 Grabell New York City Police Dep 139 477 [lst Dept 2016] ..12, 13 Markowitz Serio, 11 43 [2008] ..7, 11 Matter of Asian Am. Legal Defense Educ. Fund New York City Police Dep 125 531 [lst Dept 2015] .. 12 Matter ofCity ofNewark Law Dept ofCity ofNY, 305 28 [lst Dept 2003] ..9 Matter ofJoknson NYPD, 257 343 [lst Dept 1999] ..8 Muniz Meese, 115 FRD 63 1987] ..11 New York State Defenders Assn. New York State Police, 87 193 [3d Dept ii NY CLU Erie County Sheri??is? O?ice, 47 Misc 3d [Sup Ct, Erie County 2015] ..4, 9 New York City Police Dept, 2009 NY Misc LEXIS 2542 [Sup Ct, NY County 2009] ..6, 12, 13 NY CLU New York City Police Dept. [Sup Ct, NY County Oct. 15, 2010, No. 112145/08] ..13 Schenectady County Soc ?32 for Prevention ofCruelty to Animals, Inc. Mills, 18 42 [2011] ..4, 6 State vAndrews, 2016 WL 1254567 [Md Ct Spec App, Mar 30, 2016, No. . Town of Waterford NY State Dept. of Envtl. Conservation, 18 652 [2012] ..6 ofNew York, Inc. Dept ofTaxation Fin, 89 239 [3d Dept United States Caraballo, 2016 WL 4073248 [2d Cir Aug 1, 2006 No. ..16 United States Lambis, 2016 WL 3870940 July 12, 2016, No. 150r734]. ..2 Washington Post Co. New York State Ins. Dept, 61 557 [1984] ..9 Winters vNew York, 333 US 507 [1948] ..10 Statutes and Regulations Public Of?cers Law 87 ..6, 8 22 121 ..10 5 USC 552 ..11 18 ..10 Miscellaneous Complaint, In re Baltimore City Police Dept. ed. Communications Comm. ?led Aug 16, 2016] . .2 David Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale L.J. 628 [2005] ..11 INTRODUCTION The opposition loses sight of the limited nature of what the NYCLU is seeking here: documents that show how much money the NYPD has spent over the years on what models of Stingray products. Model names ?StingRay,? ?StingRay ?KingFish,? or ?HailStorm?) indicate the basic capabilities of the product. Some models are used to locate people. Some models, as the NYPD acknowledges, have the capability of eavesdropping on conversations or intercepting text messages. Others can be mounted in an aircraft and used for aerial surveillance. Public disclosure of this information, and the amount of taxpayer funds spent to buy the devices, directly advances the Freedom of Information Law?s purpose of informing a robust public debate about government actions. The NYPD has not, on the other hand, met its burden of proving that these records are exempt from FOIL?much less that they are exempt in their entirety. Local police departments across the country own Stingray products and have publicly released the same types of documents requested here, some in the regular course of seeking legislative approval for funding. As Dr. Christopher Soghoian, a technologist who holds a in Informatics and has been researching Stingrays for over six years explains in an affidavit submitted in support of this reply, release of the information requested here would not cause the harms claimed in the conclusory af?davits filed by the NYPD. Although the NYPD dedicates much of its opposition to terrorism, its own documents show that Stingrays are everyday law enforcement tools that it has used over a thousand times since 2008 in investigations ranging from drug cases to robberies to criminal contempt of court (petition ex. B2). The opposition, at its core, is nothing more than the assertion that acknowledging that it owns any type of equipment will reveal what resources the NYPD has or does not have. This argument applies to guns, police cars, drones, and smart phones just as much as it does to Stingrays, and, if accepted, it would undermine the text of the FOIL and its intent to make the government more accountable to the people. The Court should grant the Petition.1 ARGUMENT I. THE NYPD DISREGARDS THE LIMITED NATURE OF THIS PETITION AND FAILS TO JUSTIFY WITHHOLDING RECORDS IN THEIR ENTIRETY. The Court should reject the attempt to mischaracterize this Petition as a request for ?sensitive records showing the technical speci?cation and limitations of [Stingrays]? (NYPD brief at 3). Rather, the NYCLU is seeking through Request 1 and 3 of its FOIL Request purchase orders and contracts relating to the acquisition of Stingrays. These documents primarily reveal only how much the NYPD has paid, when, for what models of Stingray products?Hie, dates of purchase, product names (?StingRay,? ?KingFish,? ?HailStorm,? etc.), and prices. These are the types of records and information that government agencies across the country regularly release to the public. The federal Government Services Administration has made the list of Harris product names and their prices public (Hirose aff, ex 3). In 2007, the GSA also posted a notice announcing that the Drug Enforcement Administration intends to purchase a 1 The NYPD also loses sight of the limited nature of this proceeding. This case is not about prohibiting the NYPD from using Stingrays or even about requiring the NYPD to obtain a warrant before using the devices. Those questions will be decided in other venues (see, e. United States Lambis, 2016 WL 3870940, at *3 July 12, 2016, No. lScr734] [holding that warrantless use of Stingrays is unconstitutional]; State Andrews, 227 Md App 350, 394-95 [Md Ct Spec App Mar 30, 2016] [same]; Complaint, In re Baltimore City Police Dept. [Fed Communications Comm. filed Aug 16, 2016] [requesting action against the use of Stingrays in part because they cause widespread disruption to the cellular network and prevent innocent bystanders from being able to make and receive calls], It is worth noting, however, that the practice is to obtain a pen register order under Criminal Procedure Law 705, not a warrant, in order to use Stingrays (petition ex. B2). The NYPD declares that such orders are ?based on a probable cause ?nding? (Gregory Antonsen aff 16), but CPL 705 does not require probable cause for the issuance of an order (CPL 705 [authorizing issuance of an order based on reasonable suspicion]). 2 ?Porpoise system? and a ?StingRay system with FishHawk GSM Intercept upgrade? (which allows intercept of communications) from the Harris Corporation as a sole source distributor of these systems (af?davit of Christopher So ghoian 11 12, ex. The City of Anchorage, Alaska, approved in a public meeting its police department?s $119,200 purchase of ?KingFish Dual? Mode Cellular Phone Surveillance and Tracking System from Harris Corporation? (Hirose reply aff, ex. A at 3).3 The Virginia House of Delegates documented the distribution of $558,7 52 to a local police department ?to fund training to four of?cers for the HailStorm Training in Florida? and to purchase particular models of Stingrays in a document posted on its website ex. In Santa Clara County, California, the Board of Supervisors publicly debated Whether to accept a $502,889 Homeland Security grant for Stingrays, which would cost $42,000 annually to maintain.5 (The County Executive later explained that the County turned down the grant because the secrecy demanded by the Harris Corporation, the Stingray manufacture, was ?not something we could live with as a public agency.?6 In addition, a number of law enforcement agencies have disclosed purchasing documents in response to public records requests?including the Department of Homeland Security (Soghoian aff, 11 8 ex. [showing purchase of an ?Airborne Flight Kit? that allows StingRay II to be operated aerially]), Chicago Police Department (Hirose 2Available at b3&tab=core&tabmode=list&=. 3 Available at 4 Available at 5 See NBC, Santa Clara County Supervisors Approve Controversial ?Stingray? Cell Phone Tracking Devices, Feb. 24, 2015, 83 0161 .html. 6 Cyrus Farivar, In Rare Move, Silicon Valley County Gov ?t Kills Stingray Acquisition, ArsTechnica, May 7, 2015, (Hirose reply aff, ex. C). 3 reply aff, ex. the Florida Department of Law Enforcement (id, ex. the Jacksonville Sheriff?s Office (id, ex. the New York State Police (Hirose aff, ex 11), Erie County Sheriff?s Of?ce (Hirose aff, ex. 10), and the Rochester Police Department (Hirose aff, ex. 14). As these disclosures confirm, the type of records requested in this Petition do not come close to revealing any ?sensitive . . . technical specifications? (NYPD brief at 3). For example, the Erie County Sheriff? purchase order for Stingrays, which the Supreme Court in Erie County ordered disclosed under FOIL, reveals little beyond the fact that, on December 12, 2008, the office paid $82,849 for a KingFish system and $181,244 for a StingRay system (Hirose aff, ex. 10 at 3).10 The only information it reveals ?concerning training programs for employees? (NYPD brief at 6) is that the office paid $18,900 for training classes of unspeci?ed length and content. Moreover, even if the records contain technical specifications that could cause the type of harm FOIL protects against (a showing that the NYPD has not made), the NYPD has failed to justify withholding the responsive records in their entirety instead of simply redacting the exempt material (Schenectady County Soc ?y for Prevention of Cruelty to Animals, Inc. Mills, 18 42, 45 [2011] [holding that a FOIL respondent ?may not withhold a record solely because some of the information in that record may be exempt from disclosure? but ?[w]here it can do so Without unreasonable difficulty, . . . must redact the record to take out the exempt For example, the NYPD speculates that disclosure of the records may cause 7 Available at 8 Available at 9 Available at 10 This document contains some redactions because, despite the court?s order to disclose the document without redaction, the Sheriff?s Office represented that the original could not be located (NYCLU Erie County Sheri??s O?ice, 47 Misc 3d *3 [Sup Ct, Erie County 2015] [?Erie County Stingray 4 people to choose carriers that are not detected by the Stingrays in its possession (NYPD brief at 15). But they neglect to explain that the model names themselves ?StingRay,? ?StingRay etc.) do not reveal what cell phone networks can be detected; that information is determined by whether the models are used in combination with the or add-ens (Soghoian aff 15?17). Although nothing in the papers indicate that this information is part of the withheld records, and even though the Department of Homeland Security released this information publicly without litigation (id. 1] 17), the NYCLU voluntarily agrees to the redaction of this limited information the phrases etc). In addition, the NYCLU voluntarily consents to the redaction of any information in the records about speci?c software updates that the department has installed, which the NYPD argues would make the devices vulnerable to hacking by exposing security ?aws (Antonsen aff 34). As DI. Soghoian explains, however, it is not the model name of Stingrays that reveals this type of information?just as records revealing that an agency has purchased iPhones for its officers do not reveal which particular security updates the agency has or has not installed (Soghoian aff 1i 21). In fact, Dr. Soghoian states that he has never seen this type of information in any of the invoices or purchase records for Stingrays that he has reviewed from across the country Nevertheless, to the extent that the purchasing records include this information, the NYCLU agrees to its redaction. The FOIL does not permit the NYPD to rely on the type of blanket and unsubstantiated characterizations of the records asserted here (see Capital Newspapers Div. ofHearst Corp. Albany, 15 759, 761 [2010] [rejecting police department?s invocation of the 50-a exemption where it merely asserted, without providing any evidentiary support, that it would use the withheld records to evaluate the officers? performance]). The Court should require the production of the responsive documents with the redactions agreed to above by the petitioner (Mills, 18 at 46 [admonishing agencies to ?comply with their FOIL obligations in a more ef?cient way? by applying redactions rather than litigating the withholding of entire records]). II. THE NYPD CANNOT WITHHOLD RECORDS ON THE BASIS OF THE EXEMPTIONS CLAIMED. Abandoning the majority of the nine exemptions that it had claimed in administratively denying this FOIL request, the opposition focuses only on three exemptions. None of the exemptions, construed narrowly as required by FOIL (Town of Waterford 12 NY State Dept. of Envtl. Conservation, 18 652, 656?57 [2012]), justify withholding the records responsive to Request 1 (agreements and orders relating to the purchase of the Stingrays) or redacting the non? disclosure agreement between the NYPD and the Harris Corporation responsive to Request 3. A. The Information Technology Exemption Does Not Apply. As explained above and in the Soghoian affidavit, the NYPD has not shown that anything in the purchasing records at issue here presents ?risks of electronic attack? to the information technology assets such that Public Officers Law 87 applies to the documents (TJS of New York, Inc. 12 NY State Dept. of Taxation (Si: Fin, 89 239, 243 [3d Dept 2011] [explaining intent of exemption]; NYCLU v?New York City Police Dept, 2009 NY Misc LEXIS 2542, *8 [Sup Ct, NY County 2009] [?Lower Manhattan Security Initiative (LMSI) [agreeing with the NYCLU that its requests for documents relating to funding and operational details of the network of security cameras in lower Manhattan did not implicate the information technology exemption]; see also NYCLU brief at 16?17). Crawford New York City Dept. of Info. Tech. Telecom. (43 Misc 3d 735 [Sup Ct, NY County 2014]), the case in which this Court denied access to documents revealing the location of conduits containing ?ber?optic cables in New York City is readily distinguishable. Revealing the ?xed location of information 6 technology assets within the city is vastly different from merely revealing that the city owns the assets. The Court should reject the unsupported and unreasoned assertions that even merely acknowledging that it owns certain models of Stingrays will cause harm because it will make those Stingrays, as well as the Stingrays owned by others, vulnerable to hacking (Antonsen aff 11 34; Veri?ed Answer 1} 67). As Dr. Soghoian explains, knowing that someone has a piece of equipment does not facilitate hacking?just as public knowledge that the department has issued Panasonic FZ-GI Toughpad tablets to every squad car does notleave those tablets vulnerable to hacking (see Soghoian aff 1l 21).11 It also follows that knowing that someone has a tablet certainly does not facilitate hacking into someone else?s tablet, as the NYPD mistakenly suggests (Veri?ed Answer 1] 67 [alleging that disclosure of information about which Stingrays the NYPD owns ?could permit enterprising criminals or terrorists to hack into other agencies? devices and defeat their systems,? and citing to the Chapman af?davit which does not contain this assertion]). Cybersecurity is about designing secure products?not about keeping the existence and name of an equipment secret (Soghoian aff 1] 22). As Dr. Soghoian suggests, it would be a serious problem of public interest if the Stingrays, on which the NYPD likely spent hundreds of thousands of dollars, were so insecure that they could be hacked because of disclosure of model names (Soghoian aff 11 22). The assertion that this is so is far too conclusory to establish a FOIL exemption (see Mar/cowitz Serio, 11 43, 51 [2008] [rejecting claim of harm to trade secrets where it ?merely rest[ed] on a speculative conclusion,? even where the af?davit detailed steps that could be taken for the harm to occur]; Capital Newspapers Div. ofHearst Corpv Burns, 67 562, 11 See Thomas Tracy, NYPD Squad Cars to Get Tablet Computers, Smartphones Funded by Wrongdoer Banks, NY. Daily News, Oct. 24, 2014, smartphones?article? 1 . 1984467. 7 570 [1986] [rejecting privacy exemption where argument that release of requested records would cause ?economic or personal hardship? was not supported by any facts]). B. The Law Enforcement Exemption Does Not Apply. In citing to the ?law enforcement privilege? (NYPD brief at 10-11), which is rooted in federal common law, the NYPD fundamentally misunderstands the law enforcement exemption in Public Of?cers Law 87(e). Commonwealth of Puerto Rico United States (490 F3d 50 [1st Cir 2007]), quoted by the NYPD, is a law enforcement privilege case and not a federal Freedom of Information Act case as the NYPD claims.12 This privilege is irrelevant to New York?s explicit statutory scheme, which comes with a presumption of disclosure (see Doolan 12 Bd. of Co-op Educ. Servs., Second Supervisom/ Dist. of Su??olk County, 48 341, 347 [1979] [?The public policy concerning governmental disclosure is fixed by the Freedom of Information Law; the common?law interest privilege cannot protect from disclosure materials which that law requires to be Matter of Johnson NYPD, 257 343, 349?50 [1st Dept 1999] [rejecting application of common law ?privilege? and holding that the ?public safety provisions of FOIL are quite explicit and it is by these provisions that a FOIL request is to be The Court should apply this presumption of disclosure here. 1. The Disclosure of Withheld Records Would Not Reveal Con?dential Information. The NYPD invokes the ?confidential information? exemption in Public Officers Law but ignores that the exemption protects only records ?compiled for law enforcement purposes? that contain ?con?dential information relating to a criminal investigation? (id. [emphasis added]; see also NYCLU brief at 14). This exemption does not apply as an initial 12 The First Circuit did state that FOIA informs the appropriate scope of the privilege, but also made clear that FOIA was not at issue in the case (see Puerto Rico, 490 F3d at 63). 8 matter because the NYPD has failed to show that the withheld records were compiled for law enforcement purposes as opposed to ordinary business purposes, or that they will reveal information about any particular criminal investigation (see Erie County Stingray FOIL, 47 Misc 3d at *8 [holding that purchase orders were not compiled for law enforcement purposes]; see NYCLU brief at 14). Moreover, the invocation of the ?con?dential information? exemption relies on a string of arguments, each without merit. First, the NYPD argues that the withheld records are confidential because the government has treated it as such (NYPD brief at 15). One piece of evidence offered for this argument is excerpts from the non-disclosure agreement (NDA) between the FBI and the NYPD (Chapman aff very document that the NYPD had said that it could not locate in response to this FOIL request (petition, ex D3 [referencing production of the NDA between the NYPD and the Harris Corporation but stating that ?[t]he search failed to locate a copy of [the between the NYPD and the FBI regarding The NYCLU objects to the reliance on a document that the NYPD represented that it could not locate and continues to refuse to produce in full,13 but in any event it is well- established that ?promises of confidentiality? by an agency do not affect the applicability of any exemption (Washington Post Co. New York State 1115. Dept, 61 557, 567 [1984]; see also Matter of City ofNewark Law Dept of City of NY, 305 28, 32 [lst Dept 2003] [stating that ?none of the statutory exemptions empowers a govermnent agency to immunize a document from FOIL disclosure by designating it as con?dential, either unilaterally or by agreement with a private 13 The NYCLU has renewed its request for the non?disclosure agreement given the reliance on the document in its opposition papers, but the NYPD has continued to refuse production. (Hirose reply aff 11 2.) Second, the NYPD asserts that technical data about Stingrays is protected under the Arms Export Control Act, Category without offering any facts or legal analysis in support. Neither the FBI nor the NYPD have the authority to simply claim that this is so; it is the US. Department of State that designates items for protection under that Act (22 CFR 121.1 As the legal analysis shows, Stingrays are not a Category item and in any event this FOIL does not seek technical data under that Act (NYCLU brief at 19?22). Third, the NYPD declares that 18 USC 2512 prohibits ?distribution of information contained in advertising relating to devices useful for surreptitious interception of communications? (NYPD brief at 16). But more accurately stated, this law criminalizes disseminating by electronic means ?any advertisement? of devices used for ?surreptitious interception of wire, oral, or electronic communications? (18 USC 2512 This text thus prohibits the advertising of devices for sale, not the dissemination of underlying information that might be contained in advertising materials. The NYPD reads too much into this law, even going so as far as accusing the NYCLU of violating it by posting on its website product descriptions of Stingrays that the Rochester Police Department had released to the NYCLU with approval of the FBI (Hirose reply aff, ex [af?davit of Aadhithi Padmanabhan, Aug. 23, 2016]). There is no support for such a broad reading of the law. 14 Fourth, the NYPD contends that ?[d]isclosure of even minor details about cell site simulators may cause harm because, much like a jigsaw puzzle, each detail may aid together If the law were to be read to reach the conduct, it would Violate the First Amendment and the Due Process Clause (see Florida Star B.J.F., 491 US 524,536-40 [1989] [holding that state law that allows imposition of damages on truthful publication of the rape victim?s name, which was obtained lawfully, violated the First Amendment]; Winters New York, 333 US 507, 509?10 [1948] failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute?s inclusion of prohibitions against expressions, protected by the principles of the First Amendment violates an accused?s rights under procedural due process and freedom of speech or 10 other bits of information even when the individual piece is not of obvious importance itself? (NY PD brief at 16 [emphases added]). What the NYPD attempts to do here is to import from the federal Freedom of Information Act the ?mosaic theory.? This theory was developed in the limited context of national security law, including in analyzing FOIA exemption 1 which do es not exist under FOIL (see 5 USC 552 [exemption relating to national defense or foreign policy]), and has been criticized for being applied in ways that are ?deeply susceptible to abuse and overbreadth.?15 The Court should reject the application of the mosaic theory under FOIL, especially here where the equipment at issue is being used for everyday law enforcement investigations (petition ex. B2). (See e. g. Am. Civil Liberties Union ed. Bur. of Investigation, 2013 WL 3346845, *9 Cal, July 1, 2013, No. 12-03728] [?Occupy [rejecting application of the mosaic theory to documents relating to surveillance of the Occupy movement]; Mum'z Meese, 115 FRD 63, 65 1987] [rejecting as not credible the assertion that ?anyone possessing the employment histories of DEA agents could piece together a mosaic of that agency?s worldwide structure, capabilities, and enforcement If the speculation of harm that some minor detail about a police equipment combined with some unspeci?ed information that may be public now or that may be disclosed in the future is adequate to establish a FOIL exemption, there would be nothing left to New York?s long?held requirement that agencies provide a ?particularized and specific justification? for withholding records (Gould 12 New York City Police Dept, 89 267, 275 [1996]). The Court should reject the mosaic theory as a mere speculative assertion (Markowitz, 11 at 51 [rejecting claim to an exemption that ?merely rest[ed] on a speculative 15 See David Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale LI. 628, 63 6-645 [2005] [describing the development of the mosaic theory in national security cases]. 1 1 Finally, the NYPD argues that this exemption should apply because the Harris Corporation is, ?upon information and belief,? reluctant to sell such equipment in the future to local law enforcement agencies because ?local laws do not adequately protect the information? (NYPD brief at 16; Antonsen aff. 1} 37). This is ironic given that Harris Corporation itself chose to make much information about Stingrays, including technical specifications, available to the public by applying for patents on this technology (see Soghoian aff obtaining the grant of equipment authorization from the FCC, which details the frequency ranges on which their devices operate (Chapman aff, exhibit). In any event, if FOIL and other local public records laws do not permit the level of secrecy that the NYPD and the Harris Corporation desire that debate belongs before the Legislature, not before this Court. 2. The Disclosure of Withheld Records Would Not Reveal Non?Routine Techniques and Procedures. The invocation of the non?routine techniques and procedures exemption fails for the reasons described in the opening brief. The three cases cited at length by the of Asian Am. Legal Defense Educ. Fund New York City Police Dept, 125 531 [lst Dept 2015] Intelligence Division LMSI FOIL, 2009 NY Misc LEXIS 2542,16 and Grabell New York City Police Dept, 139 477 [lst Dept 2016]??are inapposite. The LMSI FOIL and the NYPD Intelligence Division FOIL are inapposite because they denied access to a different type of records than the limited records at issue here. (NYPD Intelligence Division FOIL, 125 at 531 [requesting 13 categories of documents, including documents on surveillance or pro?ling of certain communities]; LMSI FOIL, 2009 NY Misc 16 The NYPD mistakenly refers to this case as af?rmed by the First Department. There was no appeal in the case. 12 LEXIS 2542, at *12 [denying request for records disclosing operational details and assessments]). This case is only about documents relating to the purchase of Stingrays, which are more similar to the records that the court ordered disclosed in the Lower Manhattan Security Initiative FOIL litigation (id. at *12 [ordering for in camera review ?documents relating to funds which the NYPD was reported to have received from the DHS and from the City for use in the system? as well as ?documents sent to and received from entities such as Vendors?]; Hirose reply aff, ex. [Order, NYCLU New York City Police Dept. [Sup Ct, New York County Oct. 15, 2010] [No 112145/08] [ordering in a subsequent ruling, disclosure of documents submitted for in camera review except for those that are inter?agency and intra-agency communicationsD. Grabell, for which there is a motion to appeal pending before the Court of Appeals, is inapposite because it involved a different type of technology. There, the Deputy Commissioner of Counterterrorism had asserted, and the court accepted, that the X?ray vans that were the subject of that FOIL were ?highly specialized and nonroutine technology used to combat terrorism in New York City.? Grabell, 139 at 478. Here, although Inspector Antonsen of the Technical Assistance and Response Unit spends paragraphs describing the general threat of terrorism against New York City and the use of ?various technologies in protecting the City from crime and from terrorist attacks? (Antonsen aff 7?11), he does not assert that Stingrays are highly specialized counterterrorism tools. He cannot do so, as the NYPD has admitted that it has used the equipment over a thousand times in routine criminal investigations (petition ex B6-3 0). Moreover, in Grabell the court accepted the assertion that revealing the number of X-ray vans that the NYPD owns would hamper counterterrorism operations (Grabell, 139 AD 3d at 478). But here, Dr. Soghoian explains that revealing the number of Stingrays owned by the 13 NYPD does not, as the NYPD claims, ?permit terrorists to determine locations at which [the Stingrays] are likely to be used? (Antonsen aff 1t 35). Even if a sophisticated party were able to detect that a Stingray was being used in a particular location, it says nothing about whether the Stingray belongs to the NYPD or any of the other agencies in the area that might be operating the device (FBI, DEA, State Police, etc.) or even to those who are building and operating their own device (Soghoian aff 24, 31). Thus, it also says nothing about the locations of Stingrays or the capacity of other law enforcement agencies to aid the NYPD with their own Stingrays in the unlikely event of the multiple, simultaneous hostage hypothetical posed by Inspector Antonsen in which sophisticated wrongdoers execute their plan using cell phones because of their knowledge of the number of Stingrays in the possession (id. 1} 25). While it is true that revealing the model of Stingrays that it owns and the number of Stingrays ?reveal[s] the speci?c resources available to the police department (as well as those not available to it? (Chapman aff 1] 22 Category 2 this could be said of any police equipment. Publicly disclosing the particular model of a drone, a body camera, or a police car also reveals resources of the police department. This generalized concern is not enough to meet the burden of establishing a FOIL exemption (see Gould, 89 at 275). - C. The Public Safety Exemption Does Not Apply. The NYPD invokes the public safety exemption by asserting that the disclosure of the withheld records will threaten public safety and demanding deference to its determination ?in cases involving terrorism? (NY PD brief at 18). But, as the NYPD has conceded, Stingrays are not specifically counterterrorism tools. They are everyday investigation tools that might also be useful for counterterrorism, in the same way as smart phones, guns, and patrol cars can both be used in routine investigations and in the pursuit of a suspected terrorist. If this is a case involving 14 terrorism, so is every case involving any equipment used by the NYPD. If deference is required in all those cases, the presumption of disclosure in FOIL (Gould, 89 at 274-75) will become meaningless. The Court should reject the plea for deference. As Dr. So ghoian explains, the release of the information implicated by this Petition?model names, dates of purchase, prices?? will not allow wrongdoers to develop countermeasures, hack the devices, determine the locations where Stingrays are likely to be used, develop heat maps, or construct and operate their own Stingrays (Soghoian aff 19?22, 24?25, 27?34). The fact of the matter is that the technical information that is required to build and operate Stingrays is already public, not the least through Harris Corporation?s publicly filed patent applications and through academic studies on the subject (see Soghoian aff 30?31). So is the awareness tyat the most effective countermeasure to avoid being tracked by a cell phone, regardless of which Stingray the NYPD owns, is to turn off the phone (Soghoian aff 1i 20; Am. Civil Liberties Union ofN. California 12 Dept. of Justice, 70 Supp 3d 1018, 1038 Cal 2014] [noting that the public is ?already aware that I minimizing . . . cell phone usage will allow them to evade That so much information about Stingrays is already public heightens, rather than lowers, the burden of showing why this particular public disclosure presents a new risk to public safety (see id. at 103 7?38 [rejecting the conclusory declaration that wrongdoers could evade detection as a result of disclosure of records relating to Stingrays where there is much public information available already from media reports and from the government itself], appeal docketed.; Occupy FOIL, 2013 WL 3346845, at *9 [rejecting FBI af?davit stating that records ?may? reveal an investigative technique, because it ?fails to delineate how, in this case, a technique unknown by the public will be revealed?]; Am. Civil Liberties Union vDept. of Homeland Sea, 973 Supp 15 2d 306, 318?19 2013] [rejecting law enforcement exemption where the government?s procedure at issue is public and available in federal regulations]). The secret is out already on Stingrays as well as on the numerous other methods that law enforcement has to track cell phones.17 The NYPD has not shown that the documents that the NYCLU seeks here is exempt under FOIL. THE NYCLU IS ENTITLED TO FEES. The Court should not engage with the argument that the NYCLU cannot ?substantially prevail? in this lawsuit as a matter of law because the NYPD responded within the statutory time frame, conducted a search, and released a number of records prior to the lawsuit (NYPD brief at 22). The NYPD does not satisfy its obligation under FOIL through partial compliance. Whether the NYCLU substantially prevailed is measured by what the ?ling of this lawsuit achieved (see New York State Defenders Assn. New York State Police, 87 193, 195?96 [3d Dept 2011] [holding that the petitioner substantially prevailed because of the records that it received in response to the FOIL litigation]). In Friedland Maloney, 148 814, 815?16 [3d Dept 1989], cited by the NYPD, the court af?rmed the denial of fees because of a factual dispute about whether the records were produced in response to the lawsuit. Here, if this Court grants the petition, there is no question that the records will be produced in response to the lawsuit. This Court should also reject the argument that it had a reasonable basis for denying the records. In its denial of the administrative appeal, the NYPD listed nine exemptionswincluding many like the trade secrets exemption and a FCC regulation that were 17 Stingrays are not the only way to track a cell phone. For example, in a recent Second Circuit case, officers were able to discover the GPS location of a person from Sprint in an exigent circumstance. United States Caraballo, 2016 WL 4073248, at *2?3 [2d Cir Aug 1, 2006 No. l6 entirely irrelevant and not reasonably explained. The approach forced the NYCLU to expend time and resources on researching and brie?ng exemptions that the NYPD abandoned in response to this Petition. The denial was not reasonable. CONCLUSION For the foregoing reasons, the NYCLU respectfully requests that the Court order the NYPD to produce records responsive to Request 1 (with redactions to the extent that they contain add?on designations relating to the cellular network for which a Stingray is being used and to the extent that they re?ect software security updates) and the unredacted non?disclosure agreement responsive to Request 3, and to award the petitioner its attorneys? fees and litigation costs. To the extent that the Court relies on the af?davits of Gregory Antonsen or William Chapman to deny any portion of this Petition, the petitioner asks for an evidentiary hearing as the petitioner has raised triable issues of fact with respect to the applicability of the assertions made in the af?davits to the records withheld or redacted. Mariko Hirose Christopher Dunn NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, NY 10004 Telephone: (212) 607-33 00 Facsimile: (212) 607 ?33 8 mhirose@nyclu.org DATED: August 31, 2016 Counsel for Petitioner 17