morning and morning there please the court i'm calling west of white in case together with the legal aid society we were present the appellant's the issue before the court today is whether to issue a short temporary stay of the district court's order authorizing the new york city department of correction to operate surveillance cameras in prearrangement attorney client interviews the first thing i want to know before i address the merits and before i address irreparable harm is that the cameras are currently off and the city is apparently in no hurry to turn these cameras back on judge daniels issued his decision lifting the injunction he originally enjoined the use of the cameras entirely he issued his and his decision lifting the injunction three months ago the city has taken no steps to turn the cameras back on and most recently has agreed to voluntarily stay the use of the cameras pending the resolution of this motion your concern is just the presence of be inhibited if they were actually functioning it is very much a concern of ours the presence of the cameras and we did ask judge daniels to order the removal of the cameras both for the reasons your honor mentioned and as a remedy for  the city's contempt of court these cameras pick up visually interactions from which one could determine what is said there is no evidence one way or the other but you can see originally this was a question judge daniels raise which as you can see you can see the individuals face now the city with its revised proposal has proposed to use masking technology that would supposedly obscure a small portion of the middle of the room and at least in theory according to the city would obscure the the defendants face however if the court reviews i believe it's exhibit one to the declaration that submitted in connection with this motion which attaches an affidavit of a department of correction officer there is a still photograph that shows the mast area as it's proposed to be used and there's no expert testimony one way or the other but just from a lay person looking at that small masked area it certainly appears to me anyway that any slight movement of the criminal defendants head would leave that or that even if the person is just slightly taller than the person in the sample photograph would allow  the department of correction to see and record the plaintiffs believe the city will monitor these conversations and try to determine walk people are saying or is the concern more that they're inhibited from a full conversation it's really both concerns the first concern is we have had a history here and it is a history of material misrepresentations to the court about the use of the cameras and history of material violations of the district court's order so we counsel frankly the appellant's representing these people don't frankly trust the city's representations of those misrepresentations as you call them go to the question of whether the city as it were eavesdropped yes yes that they did using sound not using sound the misrepresentation goes to the question i'm sorry eavesdropping to the extent that means sound yes but to the extent of surveilling in secret these attorney client interviews it up saluted and i think the key example and the best example is on is the city represented to the court to judge daniels when it was opposing the original of injunction that if they were allowed to use these cameras that the sea would monitor the cameras in real time only and that no one would have access to the to the recordings absent a court order judge daniels enjoying the use of the cameras so the cameras weren't supposed to be on in the first place we know that they were and not only that we know that in violation of the representation you know that they were left on or was that done intentionally the testimony from the city is that it was inadvertent we simply as the appellants and the plaintiffs in the the criminal defendants have no way of testing that assertion but i will know that what was not inadvertent and what i don't think can be described as inadvertent is that eight separate department of correction officers logged in at a time when the cameras were supposed to be off and viewed recorded footage from these from one of these cameras so in light of that there are credibility issues that we have a legitimate concern that  might pass contraband i don't think frankly that it is and from what i understand that the the mesh partition between the and i believe this testimony on the record it's a it's a fine mesh partition and it allows the the transaction of documents the exchange of documents but i don't believe that the city has even argued that this is about attorneys passing contraband and i believe the lawyers know it's not about the safety of the lawyers at all the lawyers are truly on the other side of a partition i see my time is up if i may you can finish if i can finish we believe that the policy here is to point a camera directly at the criminal defendants face to say to that criminal effectively to say that criminal defendant we have the ability to monitor your entire attorney client interview with sound with and visually you'll never know it if we do but please go ahead and have a candid conversation with your attorneys we believe that that is unnecessary in light of the distance the cameras are moved how can how can  criminal defendant who might very well feel paranoid in that situation be reassured you know well we certainly have asked and will ask on appeal for the cameras to be removed but we will we will no that from what i understand there is a light that one of the lines is that there is a light that comes on when the cameras are on and our attorneys are at least able to advise the criminal defendant that the light is off and that theoretically means that the good morning your honors may please the court jonathan popolo for our police there's no genuine dispute here that these cameras do not capture audiotape so the conversations for the pretrial detainees have with their attorneys are not being audio recorded what's the purpose of the purpose of it is to address security concerns that the is that contraband that is one of many of the concerns yes thank you lawyer safety of the lawyer safety of the less lot of defendants don't necessarily like you know that's correct your honor i mean i think that's that stephanie could be one of the the concerns i think also the safety of the detainees themselves i mean because this from other detainees and to have a record of what occurs in in the both the interview with and the broader arraignment pan there was a massive march issue and address contraband and safety in terms of lawyers it  probably does your honor i guess i mean i'm not i'm not i'm an area where there are multiple individuals in one area or are they separate it's a common area it's an arraignment pad the interviews are located within an arraignment pen that can hold i think the male pen can hold up to about twenty five detainees at a time when will the cameras put the cameras i believe when the new courthouse was that was at stake in the initial loss in the lawsuit there were no private meeting areas in the judges the lawyers had to communicate with their clients through through the bars of the cell with in full view of  of the other detainees and guards which is what the terms of the settlement that resolve the sixth amendment claim among others said that the city department of correction had to create a interview booth that allowed private consultation what i'm trying to get at is was there were problems with your members were installed to address yeah i think what he'd be speaking broadly i think one of the issues that had to be addressed is given the configuration of how this was built and it was built by the state not the city there are certain visibility and sightline issues with respect to the arraignment and the and the interviews that necessitate having the correct and why i can't just keep him off during the pendency essentially because it would put a lot of a lot of them and off they have been off well except for the instances when they were in a virtually activated during the application to be allowed to do this work granted that application and this result this is been the result of a years long process that reflects the considered judgment of the g o c authorities of what they need for security purposes and management purposes and it's been granted and i mean we're not arguing that this is like an absolute emergency that they had to be turned on the next day or something like that but we've we've waited a considerable period of time in there could be another considerable instances of contraband there have not been any sort of violent incidents is that this was addressed by judge daniels that sort of like you don't necessarily have to wait until you have the first one or a certain quantum of them before hand i mean there's a a legitimate concern about the effectiveness of security provisions within the absence of these cameras were ever serious described on march room presumably long tables detainees side of the booth or three individuals and is it recording all of the detainee's at once or the cameras in the booth i think are just covering what's in the booth on one booth at a time the other three count three booth three cameras you both will reserve decision