For over 40 years, it has been illegal for police in New York state to access a person’s sealed arrest records. Details of arrests of people who were charged but not convicted or whose cases were dismissed ― as well as juveniles or people who completed drug treatment programs or committed noncriminal offenses ― aren’t supposed to influence law enforcement in any way should police encounter those people again.
But new court documents obtained by HuffPost show that the New York City Police Department has been breaking that law for years, on a massive scale that has been previously unreported.
According to the documents, the NYPD has digitally warehoused more than 6.9 million sealed arrest records of more than 3.5 million New Yorkers. Worse, every cop on the street has instant access to those records through their smartphones.
The court documents are part of a 2018 class-action lawsuit against the NYPD. That lawsuit alleges the police department has violated the state law, which is supposed to protect people from being harassed by police based strictly on past interactions — a matter that primarily affects Black people and other people of color.
The revelations are particularly explosive and damaging for the NYPD in light of the anti-racist protests that have occurred nationwide following the killing of George Floyd in Minneapolis.
Instead of destroying or returning arrest records to the accused if a case is terminated in their favor, as is required by law, the NYPD admitted it has kept millions of them. The filing revealed that sealed records are housed inside the department’s Domain Awareness System, or DAS, a vast system of databases developed by the police department and Microsoft that is installed on each officer’s phone for easy access.
According to the NYPD’s court filing, the DAS “can access a copy of each sealed arrest report that exists in the Crime Data Warehouse.”
Instead of destroying or returning arrest records to the accused if a case is terminated in their favor, as is required by law, the NYPD admitted it has kept millions of them.
It’s a “horrifying” admission, said Jenn Rolnick Borchetta, an attorney from Bronx Defenders who represents the plaintiffs in the case.
“The court already said the NYPD isn’t allowed to use these documents and share them with its officers,” Borchetta said. “Yet they’re still sharing them and on a mass scale.”
The NYPD’s “Crime Data Warehouse contained 6,908,699 sealed arrest reports containing the arrest information of 3,576,113 unique individuals, as of November 20, 2019,” according to the court filing.
Experts believe this will be hard to defend in court. Hermann Walz, a criminal justice professor at John Jay College and former prosecutor in Brooklyn and Queens, told HuffPost, “The law is clear. Sealed is sealed.”
“The black letter of the law seems to support the Bronx Defenders’ case,” Walz said.
The NYPD has defended its policy of maintaining these millions of records, claiming in a motion to dismiss the lawsuit that the sealed records law only meant to shield a person’s information from “stigma in employment, education, licensing, and insurance,” while still allowing law enforcement to access the records.
A New York state judge rejected that argument from the NYPD in 2019, calling it “strained” and “without precedence.” The judge ruled that any NYPD officer who wishes to access a sealed record must get a court order.
The case is currently in the discovery phase and the plaintiffs are seeking more information from the NYPD on the sealed records.
Borchetta, the Bronx Defenders attorney suing the department, says that the NYPD just doesn’t want to follow the law. “The NYPD is acting as if the law doesn’t apply to them,” she said.
The NYPD and New York City Mayor Bill de Blasio’s office declined to comment since the litigation is pending.
A Troubling History Of Abuse
In 1976, the New York state legislature passed a law that says if a case “is terminated in a person’s favor or results in a non-criminal violation,” the records of the case shall be “sealed” and any photographs or fingerprints destroyed or returned to the accused.
When the law went into effect, the legislators were considering fingerprints and mug shots stored in manila folders in filing cabinets. They had little to no concept of computerized data. When it comes to this digitized content that the police are collecting, Walz said, “Obviously the police are just doing what they want.”
“Here’s the ultimate problem ― The law is from 1976. I had a rotary phone then. The world has changed dramatically. The law needs to be updated,” he said.
The NYPD has claimed it can maintain a fair process in which police and prosecutors responsibly share relevant sealed records from investigations to seek a criminal conviction. However, in 2018, the NYPD leaked sealed records to the New York Post of Saheed Vassel, a man with a bipolar diagnosis, after police shot and killed him when he was spotted waving a metal pipe on a Brooklyn street.
The month Vassell was killed, Bronx Defenders filed its lawsuit, claiming the NYPD is violating the sealing statute in the 1976 law. In the initial complaint, the plaintiffs estimated that between 2014 and 2016, the NYPD maintained hundreds of the thousands of sealed records — more than 80% of which involve Black and Latinx people. But this latest admission from the NYPD brings into focus how many millions of sealed records the department actually has in its possession.
“Part of what’s scary about the NYPD’s use of these records is that they’re being used in all different kinds of databases, crunched in algorithms,” Borchetta said, referencing the NYPD’s statement in its filing that the sealed records can be accessed in the department’s Domain Awareness System.
“Someone can become a suspect simply by virtue of this data being in the system,” she said.
‘They Can Do Whatever They Want’
In April 2015, two men held up a livery car driver in the Bronx.
Initially, the victim was unable to identify a suspect. But two weeks later, the victim was shown a second photo lineup of suspects. This time, the victim identified a 21-year-old man from the Bronx named R.C. (HuffPost has withheld the man’s full name at his and his attorneys’ request.)
At the time of the robbery, R.C. was living upstate, and on that night, he was at a friend’s house in Danbury, Connecticut. But in the early hours of May 21, while he was sleeping at his mother’s house, the cops arrived to arrest him for robbery.
Over the next year and half, R.C. traveled back and forth from upstate New York to the Bronx to attend court at least 10 times. He said he lost his job and that the frequent trips to court started “making me feel like I’m a person that I’m not.”
The people who are supposed to be protecting us, the same people who are arresting us, are the ones breaking laws. R.C.
During discovery in R.C.’s case, the prosecutors for the Bronx DA’s office revealed that police had used a photo from a sealed arrest record from a more than four-year-old case that the DA’s office had declined to prosecute R.C. on. He told HuffPost that he thought the photo had been deleted because his lawyer in the previous case had made a point to request that those records be erased and he had received assurances that it had happened.
In November 2016, the charges against R.C. were ultimately dropped. He said he felt relief and has since started to get his life back on track. However, according to the lawsuit, R.C. and his lawyers believe the NYPD is still keeping his sealed records, which could open the door to police yet again accessing them and targeting him as a suspect.
“I guess the police, they can do whatever they want,” R.C. told HuffPost. “The people who are supposed to be protecting us, the same people who are arresting us, are the ones breaking laws.”
How Big Tech And Police Set Up A Vast Surveillance System
The NYPD arrest records are part of a vast surveillance system for the nation’s largest police department that is now used by police departments around the country and world.
In 2012, Microsoft and the NYPD publicly announced the creation of a Domain Awareness System, initially billed as a tool to fight terrorism — “a sophisticated law enforcement technology solution that aggregates and analyzes public safety data in real time.” The NYPD now refers to the DAS as “one of the world’s largest networks of cameras, license plate readers, and radiological [sensors], designed to detect and prevent terrorist acts, but also of great value in criminal investigations.”
Since unveiling the DAS, Microsoft and the NYPD have marketed the technology to other police departments around the country and the world. According to a report from the Brennan Center for Justice, they have sold it to police departments in Brazil, Singapore, and Washington, D.C. This month, the Intercept reported that the Atlanta Police Department has been using the DAS since 2019. Microsoft and the NYPD share the profits from these deals, with the NYPD getting 30%.
The system’s surveillance tools, particularly facial recognition, have been particularly controversial. Under pressure from employees, Microsoft and a handful of other companies recently declared they would no longer sell facial recognition technology to police unless there’s a federal law regulating its use that is “grounded in the protection of human rights.”
Microsoft received plenty of positive media coverage for its pledge to stop selling facial recognition technology. However, cases like this lawsuit reinforce the idea that police are utilizing many different types of data — like sealed records — to create the most robust system to track people possible.
Microsoft didn’t respond to a request to comment for this story.
The true extent of the NYPD’s technological power should come into clearer focus soon under New York City’s newly implemented POST Act — or the Public Oversight of Surveillance Technology Act — which mandates that the police department disclose to the city what technological tools it uses.
But it may not shed more light on the NYPD’s use of sealed records. The POST Act is focused on providing a mechanism for the police to share with the public what surveillance systems it is using, but the new law focuses on the systems themselves rather than what data those systems use.
“So the fact that the NYPD’s surveillance systems — all of them — use sealed arrest information might not get captured by the reporting required under this law,” Borchetta said.