Smart Meter Company Landis+Gyr Now Using Copyright To Try To Hide Public Records

from the what-they-don't-want-you-to-see dept

Back in 2016 we wrote about how Landis+Gyr, a large multinational company owned by Toshiba, completely freaked out when it discovered that documents about its smart energy meters, which the city of Seattle had contracted to use, were subject to a FOIA request. As we noted, Landis+Gyr went legal and did so in perhaps the nuttiest way possible. First it demanded the documents be taken down from Muckrock -- the platform that makes it easy for journalists and others to file FOIA requests. Then it demanded that Muckrock reveal the details of anyone who might have seen the documents in question. It then sued Muckrock and somehow got a court to issue a temporary restraining order (TRO) against Muckrock for posting these public records.

Eventually, with help from EFF, Landis+Gyr agreed to a settlement that stated that these documents were (a) public records and (b) the company would no longer attempt to take down the copies that Muckrock had obtained. From the settlement agreement posted on the public docket in the case:

Plaintiffs agree that they will take no further action against Defendants Mocek, Muckrock.com, and Morisy with respect to two public records previously released by the City to Muckrock.com on behalf of Mocek and automatically published on MuckRock.com.

This all ended in the summer of 2016. And, indeed, you can still find the documents hosted on Muckrock's website today. Here is the Managed Services Report 2015 and the Security Overview. Even though Landis+Gyr went to court over this and then agreed via its settlement that (1) these were public records that (2) could be left online, the company apparently doesn't want you reading them.

Last week, we received a notice from DocumentCloud -- which we use to host various documents as part of our reporting efforts -- that it had received a DMCA notice from lawyer Heather McNay of Landis+Gyr, demanding that it take down the copies of those very same public records that we had uploaded as part of our reporting on this story. It seems fairly clear to us that our posting of these public records as part of our reporting and commentary on a dispute created by Landis+Gyr itself was quintessential fair use for news reporting. And, of course, there a number of court rulings in various locations noting that copyright law cannot be used to prohibit the copying of public records (notably, that case involves a very similar situation involving a public records request in Washington State).

Either way, given that Landis+Gyr has promised in its settlement with Muckrock not to take any actions at all against Muckrock for hosting these public records, we'll note the incredible futility of the company then sending DMCA notices targeting those same public records, and scratch our collective heads over what the company is thinking when all it's doing is reminding everyone that (1) these documents exist online and (2) apparently the company would prefer you not look at these public records about its own systems.

Filed Under: censorship, copyright, fair use, foia, free speech, public records, seattle, smart meters
Companies: landis+gyr, toshiba

EFF Heads To Court To Fight Off Smart Grid Company That Can't Wrap Its Mind Around Section 230 Protections

from the internal-logic-failure dept

Apparently the legal battle between a bunch of contractors providing "smart meter" equipment to the city of Seattle and FOIA clearinghouse MuckRock isn't over. The last time we checked in, a judge had overturned his own hastily-granted injunction, relieving MuckRock of the impossible demands placed on it by miffed tech provider Landis+Gyr -- which included handing over the details of everyone who might have seen Landis+Gyr's documents and "retrieving protected information that may have been downloaded" from the site.

MuckRock was allowed to reinstate the documents and Landis+Gyr walked away from a debacle of its own making. Another contractor utilized by Seattle Power and Light (Ericsson) had pursued a similar injunction but dropped MuckRock from its complaint, following Landis+Gyr into battle against the entity that had released the documents to requester Phil Mocek: the city of Seattle.

But there's still one company pursuing a case against MuckRock. The EFF, on its way back into court to fight the tenacious litigant, points out that Elster Solutions, LLC is still hoping to hold MuckRock accountable for publishing documents received from the city of Seattle. But it's impossible to ascertain why it's going after MuckRock.

First off, Section 230 shields MuckRock from this sort of litigation.

Section 230 provides broad protections for online platforms such as MuckRock, shielding them from liability based on the activities of users who post content to their websites. Given that broad immunity, MuckRock cannot be sued for hosting public records sought by one of its users regardless of whether they contain trade secrets.

MuckRock isn't the correct target because it only hosts the documents. It did not demand them itself, nor did it actively participate in the posting of the documents. MuckRock's system is automated. Default user settings will, without addtional input or control, post all correspondence and responsive documents pertaining to public records requests routed through the site. This makes Mocek's request and published documents third party, user-generated content.

The other reason why Elster's decision to name MuckRock as a defendant is completely misguided is this simple fact:

MuckRock currently does not host any documents from the company, Elster Solutions, LLC, that are subject to the public records request.

Even if MuckRock were able to obtain these documents, it wouldn't be doing so directly -- which is exactly what Elster claims has happened or might possibly happen. It wants to prevent the release of unredacted documents to the site (via requester Phil Mocek), but its litigious attention should be solely focused on the entity releasing them, rather than the site hosting them. At this point, MuckRock doesn't have anything Elster wants to argue about, and yet, it's doing so anyway. Its complaint is not only seemingly unfamiliar with Section 230 protections, but also severely deficient. From the EFF's motion to dismiss [PDF]

The Court should dismiss MuckRock from the lawsuit due to the obvious deficiencies in in Elster’s allegations in the Complaint. With respect to MuckRock, the Complaint contains precisely the type of bare, conclusory, or formulaic allegations the Court said were insufficient in Iqbal. See Yates, 2014 U.S. Dist. LEXIS 71077, at *8 (“[b]are, conclusory and formulaic allegations of involvement do not state a claim for relief against a particular defendant”). The Complaint mentions MuckRock in only three paragraphs, and in all three instances fails to specify any conduct by MuckRock that underlies any purported claim against it. (See Complaint ¶¶ 2, 6, 18.) Paragraph 6 references MuckRock’s domicile and state of incorporation. Paragraph 18 merely recites that Phil Mocek made a request for certain documents. And paragraph 2 is an introductory paragraph vaguely alleging that Mocek “and/or” MuckRock submitted a records request.

This lawsuit shouldn't last for much longer. What's surprising is that it's lasted this long already.

Filed Under: cda 230, documents, foia, hosting, seattle, section 230, smart meter
Companies: eff, elster solutions, landis+gyr, muckrock

Court Dumps Hastily-Granted Restraining Order, Says MuckRock Can Publish Smart Meter Documents

from the prior-restraint-much? dept

It took a little less than a week, but the EFF, with the invaluable assistance of Venkat Balasubramani of FOCAL PLLC, has persuaded a Washington state judge to strike down the temporary restraining order against MuckRock he hastily granted back on May 27th.

Landis+Gyr, a multinational corporation owned by Toshiba, recently secured a contract to upgrade Seattle's "dumb" meters to smart meters. Privacy activist Phil Mocek requested information on the city's smart meter plan through MuckRock and was handed two Landis+Gyr documents in unredacted form by the city.

These documents worth suing over spent a month uploaded to MuckRock before Landis+Gyr took notice. Once it had secured the city contract, L+G then demanded -- via a request for a temporary restraining order -- that MuckRock take the documents down, turn over info on site users who may have seen/downloaded them, and somehow help L+G shove its smart meter genie back into the bottle.

Fortunately, the judge has now struck down the restraining order he issued earlier in the week.

Agreeing with EFF, King County Superior Court Judge William Downing ruled that the previous order amounted to a prior restraint on speech that violated the First Amendment, and rescinded it along with denying plaintiffs’ request to extend it.

Not that Landis+Gyr didn't try to keep its restraining order alive -- despite openly acknowledging that one of the two documents contained nothing worth withholding. In its final attempt to salvage its request, L+G claimed that an internet full of evildoers now has access to sensitive information that could place citizens in danger.

Defendants knowingly posted Landis+Gyr’s protected information on its publicly-accessible website, where Landis+Gyr’s competitors, as well as hackers and saboteurs, had access to the information. In fact, internet traffic surrounding the disclosure reveals the danger caused by Defendants’ refusal to remove the information. See Second Supplemental Declaration of Eric Lee Christensen in Support of Motion for Preliminary Injunction, ¶¶ 2, Exhs. A. (“I read all your secret information, you [expletives deleted]”), ¶ 4, Exh. C, p. 8 (“visit the link below to download disputed documents”).

Without access to the exhibits, I can only assume the deleted expletives were "censorious asshats" and that "visit the link below to download disputed documents" is internet code for "seize the means of production, starting with the power grid."

Landis+Gyr's fears of terrorism are overblown, if these are the best pull quotes it could find to illustrate its "hackers n' saboteurs" theory. It may be that its trade secret claims are more based in reality, but that still doesn't explain its attempt to silence a third-party FOIA clearinghouse for doing nothing more than publishing documents handed to it by a government body.

Filed Under: foia, prior restraint, seattle, smart meters, streisand effect
Companies: eff, landis+gyr, muckrock

Court Says MuckRock Must Take Down Smart Grid Company's Documents Because Judge Has 'No Time' To Review Case Properly

from the ain't-nobody-got-time-to-consider-free-speech-implications dept

Last week, we covered a multinational corporation's attempt to force MuckRock to take down documents supplied by the city of Seattle to Phil Mocek. Landis+Gyr, which was awarded the contract to supply the city with "smart meters" in conjunction with the publicly-owned utility, claimed the documents released -- along with documents the city was planning to release -- would be a boon to competitors and terrorists, although it didn't specify which of these it was more worried about.

The company also demanded MuckRock turn over information on site users who may have seen or downloaded the documents. It also (hilariously) demanded MuckRock assist it in the "retrieval" of disseminated documents.

The company's request for an injunction against MuckRock and the city of Seattle went before a judge on Thursday. It has been (partially) granted. Ansel Herz of The Stranger says, after speaking to Landis+Gyr reps, that the judge granted its request -- not on its merits but because there just aren't enough hours in the day.

At a King County court hearing yesterday, Commissioner Carlos Velategui granted the companies' request for a temporary restraining order, lawyers for the companies told me. "There's no way that I can spend the time to look at all this," Velategui said. Neither Mocek nor the city showed up to defend themselves.

The request was filed on the 23rd and granted on the 26th. That's an impressive turn radius for government machinery. This compressed timeframe likely explains the court's harried decision, as well as the lack of defendants in the courtroom.

MuckRock will be fighting the order, but it will now have help. The EFF has stepped in to represent MuckRock and Mocek against Landis+Gyr (Update: Mocek notes in our comments that EFF has only offered to help MuckRock so far). The documents MuckRock is currently unable to provide to the public can be found here: L+G Managed Services Report and L+G Security Overview (in case you want a copy).

Landis+Gyr may have achieved the first step in its plan to herd its PDF cats back into the bag, but its complaint should have been limited to the government organization that released the documents it claims are sensitive, rather than the FOIA requester and clearinghouse that received them. And, trade secrets or not, the company is working in conjunction with a city government to install devices with possible privacy implications on every home -- so more transparency, not less, is exactly what's needed.

Filed Under: carlos velategui, foia, injunction, phil mocek, prior restraint, seattle, smart grid, smart meters
Companies: landis+gyr, muckrock

'Smart Grid' Company Demands MuckRock Turn Over Info On Anyone Who Might Have Seen Public Records Docs Involving It

from the because-trade-secrets-and-terrorism dept

Earlier this year, FOIA enthusiast/privacy activist Phil Mocek requested documents from Seattle City Light, the city's public-owned utility. Mocek was seeking info on the utility's proposed "smart meter" system, which carried with it some obvious privacy implications.

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Plans for, schedules of, policies dictating the performance of, requests for proposals to, contracts for, discussion of, and results of all security audits performed of "smart meter" devices (remotely-addressable electrical meters sometimes referred to as "advanced metering infrastructure"), along with metadata. These devices are designed to replace traditional electric meters. They contain sensors that monitor activities inside subscribers' premises and automatically communicate information collected by those sensors to machines in remote locations.

The replacement of regular meters with potentially-invasive "smart meters" is due to begin in 2017, despite concerns about health and privacy. As the EFF points out, the power company's ability to record pinpoint data on customers' power use may seem innocuous, but it's not nearly as benign if that information is shared, either purposefully or inadvertently.

It’s not just utilities who will have access to your data.   It’s potentially a series of third party corporations including (but not limited to) the utility’s contractors and government agencies. Law enforcement agencies in particular are very keen to be able to see this information. There have already been a lot of cases where utility records have been provided to police who use them to bust marijuana growing operations, and this is simply using the raw energy use data.

[...]

Insurance companies and employers might also be interested in your personal energy usage information. Smart meters crack open this door into your private life, making available a huge amount of very personal data.

And that's not even factoring in the unauthorized uses that smart meters may inadvertently lead to if not secured properly.

Multiple documents were provided to Mocek by Seattle City Light, including documents related to the company awarded the smart meter contract: Landis+Gyr. Landis+Gyr isn't happy the city of Seattle has made these documents public, so it's logically responded by suing MuckRock. Yes, it's also suing the city and the utility, but for some reason has decided MuckRock (and Phil Mocek) should be included in the litigation, despite them only being the recipients of documents Landis+Gyr wants to keep out of the public's hands.

It's seeking to have future planned responses from the city involving its "trade secrets" blocked. (Seattle plans to release another batch of documents to Mocek on May 26.) But it's also making requests pertaining to MuckRock that are both chilling and completely ridiculous. Not only does Landis+Gyr want the documents taken down, but it also wants info on every MuckRock reader who may have viewed them.

[A]fter receiving certain unredacted documents through inadvertent, accidental, or improper release by the City in circumstances demonstrating that Defendants knew or should have known the documents contain sensitive network security information and trade secret information, Mocek nonetheless allowed the information to be posted publicly and in unredacted form on the internet site of Defendant MuckRock.com. Plaintiff Landis+Gyr notified Mocek, MuckRock.com, and Defendant Michael Morisy of the apparent error and requested that Landis+Gyr’s sensitive and proprietary information be removed from the MuckRock.com website and that MuckRock.com provide reasonable assistance to allow Landis+Gyr to identify entities that may have obtained access to is sensitive information.

Michael Morisy refused Landis+Gyr's first request. Now, it's upped the ante by petitioning the court to force MuckRock to assist it in the ultimate fool's errand: the removal of information from the internet.

Immediate relief is needed to require Plaintiffs’ protected information to be immediately taken down from the MuckRocks website, to require MuckRock.com to provide assistance to Plaintiffs to identify and retrieve protected information that may have been downloaded from the MuckRocks website…

If that wasn't enough, the multinational corporation would like the government to engage in a little prior restraint on its behalf.

[...] enjoin Mocek and MuckRock.com from posting Plaintiffs’ protected and sensitive information in the future.

Landis+Gyr seems to be most concerned about the pending release of documents containing pricing info and details about its "smart grid" technology. But, it's also demanding the removal of the two documents already released, both of which are fairly innocuous (and can be viewed below!) As MuckRock's Michael Morisy points out, it should be under no obligation to remove the documents as it's received no notice from the city of Seattle that the documents it has in its possession weren't supposed to be released.

Morisy and MuckRock don't plan to back down.

We believe that these legal threats are a chilling attack on free speech and we will not be complying with their demands.

We also believe people have a broad right to understand the security implications of technology purchased by their governments, particularly if, as is the case with the smart electrical meter systems provided by Landis+Gyr, that technology monitors the activities of people in their homes.

At this point, the injunction doesn't appear to have been granted, which means MuckRock can still (for the time being) host the docs it has already obtained as well as anything else Landis+Gyr-related Seattle sends to Mocek while its request is being reviewed.

Filed Under: foia, phil mocek, seattle, smart grid, smart meters, threats
Companies: landis+gyr, muckrock