Federal Judge Charles S. Haight Jr. banned the police's ability to routinely videotape demonstrations yesterday. Haight found the NYPD violated Handschu v. Special Services Division, a 1971 decision that established "consent decree"; Haight wrote in his decision, "Solely politically based investigations are flatly prohibited by the guidelines. In other words, there must always be a legitimate law enforcement purpose - having a purpose of investigating political activity exclusively for its own sake is never allowed." In other words, just because it's a demonstration doesn't mean it has to be videotaped.
The NY Times described Haight's decision as a "rebuke" of the NYPD's post-September 11 surveillance practices. And Haight himself apologized for a 2003 ruling where he gave the police "greater authority" to observe various groups. From the NY Times:
In yesterday’s ruling, Judge Haight, of United States District Court in Manhattan, found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.
Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the home of Mayor Michael R. Bloomberg — the judge said the city had offered scant justification for videotaping the people involved.
“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.”...
...The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.
“No reasonable person, and surely not this court, is unaware of the perils the New York public faces and the crucial importance of the N.Y.P.D.’s efforts to detect, prevent and punish those who would cause others harm,” Judge Haight wrote.
So, that means the police can videotape protests or events where they feel the law is being broken like Critical Mass, but in the recent instances where the NYPD has taped them, the police didn't actually follow guidelines when they went "undercover" to tape them. The police must get permission from the the police deputy commissioner for intelligence, David Cohen, but Cohen told the judge he's never received any requests "to use photographic equipment for the purpose of monitoring political activity at demonstrations or other public events"! Judge Haight, though, said that police didn't have to destroy its surveillance tapes.
The NYCLU has been fighting this issue for a while. The NY Times has text of the ruling (PDF). And here's video of police surveillance during a police-brutality march in the wake of the Sean Bell shooting.
Photograph from the 2004 Republican National Convention by Bluejake