City seeks to block Memphis PD monitor’s criticism as federal court sets public comment period
04 March 2020
City of Memphis lawyers late yesterday filed a motion to keep negative information about police surveillance tactics under seal and out of the public eye.
Meanwhile, U.S. District Court Judge Jon P. McCalla has set April 3 through May 4, 2020, as a period to receive public comments about the city’s proposal to weaken the 1978 Kendrick Consent Decree. The Kendrick order forbade the city from gathering political intelligence on citizens who were exercising First Amendment rights but not breaking any laws.
Independent Monitor Edward Stanton III wrote a letter to the court Feb. 28 in which he complained that the city was not complying with the court’s order to provide the Monitor with search words and terms used by police when they stalk social media.
Stanton’s complaint apparently focused on police skirting the judge’s orders through MPD’s usage of the Multi-Agency Gang Unit (MGU) and undercover officers. Lawyers for the city of Memphis objected to the letter and Stanton’s associated exhibits or documents being made public. McCalla, senior judge for the Western District of Tennessee, has set a March 17 hearing on the city’s motion and the merit of Stanton’s concerns. U.S. District Court is at the Clifford Davis/Odell Horton federal building at 167 North Main Street; entrance to the building is on Front Street.
In the court’s Oct. 29, 2018, order, Sanction 5 states:
“5) The City shall maintain a list of all search terms entered into social media collators or otherwise used by MPD officers collecting information on social media while on duty. This list shall be filed under seal every three months until the Court orders otherwise. The first filing shall be submitted no later than January 14, 2019 and shall reflect all such social media searches conducted from November 1, 2018 through December 31, 2018.”
SLIPPERY SLOPE AND MORE
This was not the first time Stanton had called the city out. In a January 8 letter to the court, Stanton warned that the city’s proposed social media policy was a “slippery slope” that would lead to violations of the Kendrick Decree.
In a closed-door meeting with McCalla and city attorneys on Aug. 27, 2019, Stanton raised the problem of the city taking citizens’ photographs when they entered City Hall. The city now has discontinued that practice. McCalla ordered the transcript of that in-chambers meeting to be made public – but it was not publicly available on PACER, the federal court filing system, until after we beseeched the deputy court clerk earlier this month.
The city seeks to modify the Kendrick Decree, claiming it is outdated and hampers police work. A trial will be held June 17. McCalla says he expects the trial to last three days, and he has set a schedule for the city and the plaintiff ACLU to reach certain thresholds, such as naming expert witnesses and conducting depositions.
FOCUS GROUPS AND LAW ENFORCEMENT SPIES
McCalla’s order confirming the public comment period follows last week’s four days of focus groups, designed for citizens to air their feelings about police surveillance of citizens. Fisk University Associate Professor Dr. Sheila Peters, assisted by about 10 of her psychology students, conducted the focus groups. Dr. Peters said focus groups for members of law enforcement would be held later this month.
One member of law enforcement, Shelby County Sheriff’s Office attorney and chief policy advisor Debra Fessenden, apparently sought to infiltrate one of the citizen focus groups Feb. 26. Fergus Nolan, whose discovery of Mayor Strickland’s so-called “black list” in February, 2017, sparked the ACLU lawsuit, saw Fessenden’s name on a sign-in sheet when he went to attend the focus group session at Lester Community Center. Nolan told group facilitator Peters he knew that Fessenden was the Sheriff’s chief policy adviser, and Fessenden left – but not before asking Nolan who he was.
The focus groups were conducted with a promised level of confidentiality. The Kendrick Decree pertains to the Memphis Police Department, not the Sheriff’s department or other agencies which join Memphis officers in the Multi-Agency Gang Unit. A complaint by citizens and civil rights attorneys is that MPD will use the Sheriff’s department and other agencies, such as the FBI and ATFE, as proxies to circumvent the Kendrick order.
Particulars of how citizens may provide those comments, from print to video, are contained in McCalla’s order adopting public comment procedure.
SPY SOFTWARE
The “collator” to which the Monitor refers is a software system used by police to scan social media for certain words and terms. NC4 corporation’s Street Smart apparently is the collator used by MPD. NC4’s program seemingly replaced MPD’s use of Geofeedia, which law enforcement nationwide used to track a person’s whereabouts through social media. After a public and legal outcry, Facebook, Twitter and Instagram pulled their cooperation with Geofeedia in 2016. NC4 was acquired last year by Everbridge Inc. (Nasdaq EVGB), although the Street Smart product remains under NC4’s control.
“With NC4, we are adding the industry leader in threat intelligence, making Everbridge one of the largest providers of data for enterprise security and operations in the world,” said David Meredith, CEO of Everbridge in the Aug. 1, 2019, acquisition announcement. “NC4 offers the most comprehensive threat data in the industry and this acquisition dramatically expands the overall situational awareness Everbridge will provide organizations, from incident identification to response, mitigation or ultimately, avoidance and prevention.”
“Verified sources and analysis eliminate the noise and enable us to generate the most impactful information while eliminating false positives,” said Karl Kotalik, President and CEO of NC4, which is based in El Segundo, CA.
“It takes the best of both worlds, machine learning and AI-enabled incident collection and human analysis, to generate the most meaningful intelligence.”
Do those CEOs’ comments sounds a little freaky, or is it just me?
ECF 296 City of Memphis motion to seal documents:
https://drive.google.com/file/d/1Z8toca08WELQ-_97FK3qTdK9JLFyD4Pt/view?usp=sharing
ECF 295 Order adopting public comment procedure
https://drive.google.com/file/d/1gbC2blpNgUYi1v2pIAK_KPHycK0TUQxn/view?usp=sharing
Links to our most recent stories on ACLU v. City of Memphis and the 1978 Kendrick Consent Decree.
Gary Moore operates Moore Media Strategies, founded nonprofit Citizens Media Resource, makes films about social justice issues and writes about First and Fourth Amendment issues in Daily Kos.