Brennan Center for Justice v. New York Police Department
On December 20, 2016, the Brennan Center filed an Article 78 action against the New York Police Department (NYPD) for failing to respond adequately to a Freedom of Information Law (FOIL) request for records.
The request, originally filed in June 2016, was for records regarding the acquisition and use of predictive policing technology. Predictive policing employs computer modeling to try to anticipate crime and to inform deployment of police resources. Algorithms analyze various datasets to predict where, what, and sometimes even who may be involved in a future crime, but there are significant concerns that they may also replicate existing patterns of discrimination.
Publicly available purchase orders showed that the City of New York had paid over $2.5 million to Palantir Technologies since 2012 for software, maintenance, and support. Palantir markets its technology as a platform designed to allow law enforcement to pull in data from a wide range of sources to assist with case management. Palantir also offers a predictive policing feature that suggests geographic areas where crimes are more likely to occur. The design and implementation of this technology could materially affect the civil rights of New Yorkers, but there is little public information about the actual costs and parameters of the NYPD’s implementation of predictive policing technology.
The original request was denied in its entirety in late June. The Brennan Center appealed the decision, and NYPD issued a blanket denial of the appeal on August 15, 2016. The Brennan Center sought to have the court compel the NYPD to disclose the documents required by FOIL and/or to comply with FOIL’s requirement that it describe in more detail that documents that it is not disclosing.
Read the Verified Petition.
Read the Memorandum of Law.
On April 7, 2017, the NYPD responded to the Brennan Center’s lawsuit and agreed to provide some documents in response to the Brennan Center’s request, including some vendor agreements and email communications with predictive policing software vendors (which were mostly redacted), a set of privacy protection guidelines from 2009, and a copy of an article on the department’s Domain Awareness System. They also disclosed that they do not use Palantir for this purpose, and instead use a predictive policing system that was developed in-house, after testing products from three different vendors. NYPD maintained, however, that they should not be required to produce any documents about their actual testing of commercial products or their current use of predictive policing software; they argued that information about tests of commercial products could reveal vendor’s trade secrets, while information about inputs and algorithms in use in the department would potentially allow criminals to replicate the results and predict police movements.
The Brennan Center does not believe that the information it is seeking would implicate vendor trade secrets or allow criminals to replicate the NYPD’s results. Nevertheless, it narrowed its request in its May 18, 2017 reply to focus on records reflecting testing and utilization of the predictive policing system, as well as the historical inputs and outputs of the model. Release of this information would not implicate current or future investigations without the underlying code, but could provide a basis from which to understand how the tools are generally being employed at the NYPD. The Brennan Center also renewed its request for audits of the system and up-to-date governing policies and procedures. Finally, the Brennan Center requested that the NYPD produce relevant vendor communications and redact trade secrets information, if any, rather than withholding them entirely. Disclosure of these communications would significantly contribute to transparency regarding the NYPD’s goals for and use of the software.
Read the Brennan Center’s Reply.
Read the Transcript of Oral Argument.
The Brennan Center is represented on this matter by Quinn Emanuel Urquhart & Sullivan, LLP.
Citizens deserve to know how their police department is allocating resources to fight crime. The Brennan Center will continue to fight for public release of information about technologies that implicate civil liberties.