FCC Falsely Declares Community Broadband An 'Ominous' Attack On Free Speech

from the bullshit-factory dept

Absent any hard data to support their claims, you may have noted that the Trump FCC often just makes up some shit.

Like that time FCC boss Ajit Pai tried to claim that net neutrality somehow aids dictators. Or that time Pai's office just made up a DDOS attack to try and downplay massive public backlash to his historically unpopular policies. There's often no real-world data that can defend blindly kissing the rings of widely-loathed telecom monopolies, so bullshit tends to be the weapon of choice when Pai's FCC embraces whatever handout to Comcast and friends is on the menu this week.

The latest case in point: during a speech at the ISP-backed and scientifically-sounding Media Institute, FCC Commissioner Mike O’Rielly took a moment to broadly declare that community owned and operated broadband providers are an "ominous" threat to free speech:

"I would be remiss if my address omitted a discussion of a lesser-known, but particularly ominous, threat to the First Amendment in the age of the Internet: state-owned and operated broadband networks."

We've long noted how community broadband networks are often an organic response to the expensive, slow, or just-plain unavailable service that's the direct product of a broken telecom market and regulatory capture. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such networks (there's 750 and counting now in the States) offer cheaper, faster service than many incumbents. This direct threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in more than 21 states trying to block your town's ability to even consider the option.

If you thought O'Rielly would provide hard evidence of these networks' "ominous" affront to free speech, you'd be mistaken. The closest O'Rielly gets to evidence is a 2015 white paper crafted for an ISP-funded think tank claiming that because these ISPs' TOS include routine language restricting harassment and hate speech (language every private ISP also includes in their TOS and AUP), community-run ISPs' are more likely to censor user speech:

"The closest O’Rielly gets to supporting evidence appears to be a 2015 white paper written by Professor Enrique Armijo for the ISP-funded Free State Foundation. That paper similarly alleges that standard telecom sector language intended to police “threatening, abusive or hateful” language somehow implies community-run ISPs are more likely to curtail user speech."

Of course the implication is that government-run networks must be bad because hey, it's the government. Forgotten in this false narrative is the fact that on the local level, the government is obviously you and I, and these networks are a direct, democratic response to decades of frustration at the obvious failures of the telecom market. And if you talk to folks that actually have some expertise on this subject (like I did over at Motherboard), they'll tell you that because these ISPs actually have a vested interest in the communities they serve, they're far more responsive to user complaints:

"Municipal broadband experts say the argument has no basis in fact.

"There is no history of municipal networks censoring anyone's speech,” Christopher Mitchell, a community broadband expert and Director of the Institute for Local Reliance, told Motherboard.

“In our experience, the Terms of Service from municipal ISPs have been similar to or better than those of for-profit ISPs in terms of benefiting subscribers,” he added. “And when concerns have been raised about related issues...the municipal ISPs have listened to public sentiments far more than any large cable or telephone company has."

O'Rielly also fails to mention that incumbent ISPs like Comcast routinely argue that absolutely everything the public demands of it (from expanding broadband to adhering to net neutrality) violate its First Amendment rights (an argument new Supreme Court Justice Brett Kavanaugh has already supported). Whereas municipally-run ISPs likely won't be allowed to tap dance around First Amendment lawsuits as government-linked entities mandated to avoid speech regulation.

But the biggest irony here is that one of the ISPs targeted by O'Rielly for non-existent free speech violations is EPB broadband in Chattanooga, which was just ranked by Consumer Reports as one of the best ISPs in the nation in terms of value, speed, and service quality. Comcast tried to unsuccessfully sue EPB out of existence. And as long as we're getting vexed about your rights, both AT&T and Comcast also lobbied legislators to pass a law in Tennessee restricting voter-approved broadband networks like these from expanding, even if voters approve it at the ballot box.

Ultimately, Chattanooga's service forced these ISPs to do the one thing they had been hoping to avoid: compete on both service speed and price. That's not to say local-government owned broadband should be the only solution embraced, but it's obviously one of several ways you can actually prod lumbering, pampered mono/duopolies to actually give a damn.

And of course that's the real problem in O'Rielly's mind: that locals would dare impede on Comcast's god-given right to buy itself a geographical monopoly over an essential service, nickel-and-diming consumers until they grew so frustrated they're forced to get into the broadband business themselves.

Of course ISPs could prevent this by simply offering better, faster, and cheaper service. But it's far easier and cheaper to try and buy laws restricting consumer rights, and to have your favorite public official mindlessly demonize something that is, at the end of the day, a legitimate, organic public response to a broadband competition and availability problem ISPs like AT&T, Verizon, and Comcast would prefer regulators ignore.

Filed Under: ajit pai, competition, first amendment, free speech, government, mike o'rielly, muni broadband, municipal broadband

Tech Employees Revolting Over Government Contracts Reminds Us That Government Needs Tech More than Tech Needs Government

from the don't-be-complicit dept

While we were still in the middle of the heat storm over Donald Trump's decision to enact a zero tolerance border policy that resulted in children being separated from their parents at the border in far greater numbers than previous administrations, there was some interesting background coverage about the employees and customers of big tech companies like Microsoft receiving backlash for contracting with ICE. While much of that backlash came from outside those companies, there was plenty coming from within as well. Microsoft in particular saw throngs of employees outraged that the technology they had helped to develop was now being turned on the innocent children of migrants and asylum-seekers.

In an open letter to Microsoft CEO Satya Nadella sent today, employees demanded that the company cancel its $19.4 million contract with ICE and instate a policy against working with clients who violate international human rights law. The text of the employee letter was first reported by the New York Times and confirmed by Gizmodo.

“We believe that Microsoft must take an ethical stand, and put children and families above profits,” the letter, signed by Microsoft employees, states. “We request that Microsoft cancel its contracts with ICE, and with other clients who directly enable ICE. As the people who build the technologies that Microsoft profits from, we refuse to be complicit. We are part of a growing movement, comprised of many across the industry who recognize the grave responsibility that those creating powerful technology have to ensure what they build is used for good, and not for harm.”

The 300 employees that signed the open letter represent a fraction of Microsoft's total work force, of course, but you can bet that those willing to sign such a letter also represent a fraction of the staff that share the letter's viewpoint. For its part, Microsoft condemned the Trump separation policy (how brave!), but the company has also refused thus far to acknowledge whether the ICE contract includes facial recognition software or AI. Such powerful tools would seem to be in the wheelhouse of what ICE would want as it carries out this ridiculous policy and Microsoft's refusal to say such tools are not included in its contract with the agency sure seem to suggest that they are.

Of course, Microsoft is niether the only tech company going through this, nor the company that has had the largest in employee backlash. That distinction likely goes to Google, where employees not only voiced displeasure over the company's contract to provide AI technology for the Pentagon's drone warfare program, but where many people actually up and quit.

The resigning employees’ frustrations range from particular ethical concerns over the use of artificial intelligence in drone warfare to broader worries about Google’s political decisions—and the erosion of user trust that could result from these actions. Many of them have written accounts of their decisions to leave the company, and their stories have been gathered and shared in an internal document, the contents of which multiple sources have described to Gizmodo.

Google has long had a culture that encouraged employee feedback on the products it produces, in some cases such influence resulting in real policy shifts. The employees protesting Google's drone contract say that has changed recently, with upper management far less transparent about what work the company is doing and far more deaf to the opinions of the employees that actually carry that work out. Combine it all with the growing distrust of Google in the public and it can appear that Google is trying to pantomime the caricature it is so often painted to be: faceless corporate greed-hounds without soul or morality.

And then there is Amazon, where the company's AI contracts with the government and its granting of access to data-mining company Palantir also resulted in anger from within.

Amazon employees objected to the Trump administration’s “zero-tolerance” policy at the U.S. border, which has resulted in thousands of children being separated from their parents.

“Along with much of the world we watched in horror recently as U.S. authorities tore children away from their parents,” the letter, distributed on a mailing list called ‘we-won’t-build-it,’ states. “In the face of this immoral U.S. policy, and the U.S.’s increasingly inhumane treatment of refugees and immigrants beyond this specific policy, we are deeply concerned that Amazon is implicated, providing infrastructure and services that enable ICE and DHS.”

Amazon employees want the company out of the policing and immigration business, and have gone further by calling on the company to boot customers working with ICE off of its platform. Leadership at Amazon, as elsewhere, has been mostly silent, but it's worth noting that Amazon shareholders actually kicked off the angry protests even before its employees did so. Whatever shakes out of this, this isn't something Jeff Bezos is going to be able to ignore.

This is a good time to remind people that companies, including big tech companies, are not comprised of the steel and glass that makes up their offices, but of the people that run and work within them. It's also worth acknowledging that the government has been after big tech firms for some time over the very tools that are likely in this contract. The lesson in this is that the government needs tech companies to carry out this disaster of a policy more than tech companies need the government for anything at all.

In other words, if these companies decided to put some moral courage on display en masse, it would have an effect. If they elect to do otherwise, their employees may force their hand. After all, the people signing these government contracts are certainly not the ones fulfilling them. That work is being done by the very employees revolting in protest. Given that there is pressure coming from not just within these companies to get out of the immigration business, but from outside as well, business interests may be lining up to give these companies an excuse to show a little backbone.

Filed Under: drones, employees, facial recognition, government, ice, protest, surveillance, tech
Companies: facebook, google, microsoft

Court Says Gov't Can't Claim Testimony That Undermines Its Criminal Case Is 'Privileged' When It's Used It In Other Cases

from the decks-undergo-destacking dept

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.

In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.

The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.

The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

The DEA’s determination that a substance is an analogue is made by its Drug and Chemical Evaluation Section (DRE). During the process of determining if UR-144 is an analogue, the DRE solicited the views of Dr. Arthur Berrier, a Senior Research Chemist with the DEA’s Office of Forensic Sciences. Dr. Berrier concluded that UR-144 is not substantially similar in chemical structure to JWH-018, which would mean that it is not outlawed by the Analogue Act.

This means the distribution was only half as illegal as the government asserts. Or, possibly, not illegal at all, as this footnote portrays the government's assertions.

All of the expert testimony in this case agreed that XLR-11 and UR-144 are indistinguishable, and the Government treats them as the same substance.

If they're similar, and UR-144 isn't "substantially similar" to controlled substance JWH-018, the government doesn't have much of case left to prosecute. The charges hinge on the defendants' knowledge that the substances they manufactured were illegal analogues. But the DEA's chemist is on record stating that the substance Zencense emulated isn't actually a controlled substance.

Upon learning this, the defendants sought to obtain the chemist's testimony. The government refused their request.

The Government opposed the motion to compel, arguing that “some of the information sought [was] part of the deliberative process and is therefore privileged.” (J.A. 673). The district court denied the Defendants’ motion, “find[ing] that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena”.

As the court points out, this is a ridiculous position for the government to take. While the government made a proper claim of privilege, there's nothing privileged about the DEA chemist's assertions.

Applying this framework, we readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it. The Government has, by its own admission, provided Dr. Berrier’s opinion as Brady material in criminal cases involving XLR-11 and UR-144. See United States v. $177,844.68 in U.S. Currency, 2015 WL 4227948, *3 (D. Nev. 2015) (cataloguing cases). Moreover, Dr. Berrier recently testified in open court pursuant to a motion to compel in an analogue case involving the distribution of UR-144. See United States v. Broombaugh, 2017 WL 2734636 (D. Kan. 2017) (ordering the unsealing of Dr. Berrier’s testimony). Finally, Dr. Berrier’s opinion that UR-144 is not an analogue of JWH-018 is freely available online. See Federal Judicial Center, Litigating Synthetic Drug Cases, http://fln.fd.org/files/training/April%202015%20Handout.pdf, pp. 37-41 (last visited May 16, 2018). Therefore, Dr. Berrier’s opinion was accessible to everyone but the jurors in this case.

As the court notes, compelling testimony is limited to that which is "favorable" and "material" to the defense. Clearly, Dr. Berrier's testimony is favorable, as it shows the analogue produced by the defendants was not identical to a controlled substance. As for the materiality of the testimony, the appeals court will let the district court decide. It seems extremely material, as the government's case rests on its accusations of manufacture of a controlled substance analogue, which is at odds with its own expert's assertions.

Unfortunately, this isn't the end of the road for the defendants. Having already faced two trials (one mistrial, one resolved with an Allen charge delivered to a deadlocked jury), the convictions are vacated and the government now has a chance to potentially put the defendants on trial one more time. Even when the government apparently has it wrong, it's still given multiple chances to obtain a conviction.

Filed Under: dea, evidence, government, privilege

Facebook Allowing Israeli Security Forces To Shape The News Palestineans See

from the sporadic-pushback-coupled-with-routine-acquiescence dept

Facebook continues to increase its stranglehold on news delivery, reducing pipelines of info to a nonsensically-sorted stream for its billions of users. Despite the responsibility it bears to its users to keep this pipeline free of interference, Facebook is ingratiating itself with local governments by acting as a censor on their behalf.

While Facebook has fought back against government overreach in the United States, it seems less willing to do so in other countries. The reporting tools it provides to users are abused by governments to stifle critics and control narratives. And that's on top of the direct line it opens to certain governments, which are used to expedite censorship. That's what's happening in Israel, as Glenn Greenwald reports:

[I]sraeli officials have been publicly boasting about how obedient Facebook is when it comes to Israeli censorship orders:

Shortly after news broke earlier this month of the agreement between the Israeli government and Facebook, Israeli Justice Minister Ayelet Shaked said Tel Aviv had submitted 158 requests to the social media giant over the previous four months asking it to remove content it deemed “incitement.” She said Facebook had granted 95 percent of the requests.

She’s right. The submission to Israeli dictates is hard to overstate: As the New York Times put it in December of last year, “Israeli security agencies monitor Facebook and send the company posts they consider incitement. Facebook has responded by removing most of them.”

This is especially troubling given the context of the Palestinian-Israeli relationship. By favoring Israel's view of "incitement," Facebook is censoring news streams read by Palestinians, giving them a government-approved view of current events. While Facebook is apparently reluctant to take down pro-Israeli calls for violence, it's been moving quickly to delete almost everything Israeli security forces deem "incitement." The info Palestinians see -- filtered through Facebook -- provides a mostly one-sided depiction of ongoing unrest.

What makes this censorship particularly consequential is that “96 percent of Palestinians said their primary use of Facebook was for following news.” That means that Israeli officials have virtually unfettered control over a key communications forum of Palestinians.

This isn't just a "war-torn Middle East" problem. It's everyone's problem. As Greenwald points out, the company -- which was willing to fight for the rights of US citizens -- seems far less willing to do so when the government's target is a foreigner.

Facebook now seems to be explicitly admitting that it also intends to follow the censorship orders of the U.S. government. Earlier this week, the company deleted the Facebook and Instagram accounts of Ramzan Kadyrov, the repressive, brutal, and authoritarian leader of the Chechen Republic, who had a combined 4 million followers on those accounts. To put it mildly, Kadyrov — who is given free rein to rule the province in exchange for ultimate loyalty to Moscow — is the opposite of a sympathetic figure: He has been credibly accused of a wide range of horrific human rights violations, from the imprisonment and torture of LGBTs to the kidnapping and killing of dissidents.

But none of that dilutes how disturbing and dangerous Facebook’s rationale for its deletion of his accounts is. A Facebook spokesperson told the New York Times that the company deleted these accounts not because Kadyrov is a mass murderer and tyrant, but that “Mr. Kadyrov’s accounts were deactivated because he had just been added to a United States sanctions list and that the company was legally obligated to act.”

That's all it takes: being placed on a list by a government. It's not that Facebook should become a platform for evil people to spread their message, but that it should take more than a government saying it doesn't like someone for Facebook to start deleting accounts. On top of that, Facebook is handling this in classic Facebook moderation mode:

Others who are on the same sanctions list, such as Venezuelan President Nicolas Maduro, remain active on both Facebook and Instagram.

Sanctions list members should be punished by governments, not private companies. If the US government wants to claim an Instagram account equates to a sanction violation, it's welcome to make that argument in court. The problem with Facebook is its actions are consistently inconsistent. It points to a sanction list it's not even following. It battles overbroad warrants in court, fighting back against baseless intrusions by the government, but grants the government enough credibility to disappear anyone nominated for sanctions by the administration,

Around the world, it continues to treat some governments as more equal than others, and it stills seems to prefer access to users to protecting users, especially in countries where censorious actions are the norm. Facebook wants to be all things to all people, but mainly it just wants all people. Sacrificing a few ethical standards is the most expedient choice. While Facebook is welcome to inconsistently apply its moderation standards on its own, it's extremely troubling it's willing to do the same on behalf of world governments. While both may look like censorship, only the latter actually is. And in the long run, it will be the latter that does the most permanent damage.

Filed Under: activism, censorship, government, israel, official news, takedowns
Companies: facebook

Iceland Forms A New Government... Without The Pirate Party

from the keep-sailing dept

Last month, we recognized that while it was still a long shot, it was interesting that the Iceland Pirate Party actually had a chance to form the new government there. A few previous efforts had failed and the job had fallen to the Pirate Party. However, it didn't take long for reports to leak out that the Pirate Party was having trouble building a coalition that would form the new government. And now a new government has been formed without the Pirate Party as part of the coalition:

Iceland's center-right Independence, Reform and Bright Future parties have agreed to form a coalition government and will give parliament a vote on whether to hold a referendum on joining the European Union.

Together, the coalition will hold 32 of the 63 seats in parliament. The Independence Party will have 21 seats, making it the largest party in the coalition.

This was always the most likely result -- as these groups also got the first crack at trying to form a coalition, and couldn't make it work at the time. That was part of what left an opening for the Pirate Party to try. It certainly would have been interesting to see what a Pirate Party-led Iceland would have been able to do -- especially in a time where we really could use a haven for freedom of expression, internet freedom and privacy. But, alas, it didn't happen this time around.

Filed Under: governance, government, iceland, pirate party

ACLU Dumps Docs On Social Media Monitoring Firm Geofeedia; Social Media Platforms Respond By Dumping Geofeedia

from the if-access-is-the-only-thing-you're-selling,-what-happens-when-it's-gone? dept

Surveilling citizens engaged in First Amendment-protected activity? That's just how Geofeedia rolls.

Records obtained by the ACLU show the private company pitched its "firehose" connection to Facebook, Twitter, and Instagram as a way to monitor the situation in Ferguson (during the 2014 protests) and "stay one step ahead of the rioters."

Geofeedia itself didn't do anything illegal. It simply provided a one-stop shop for social media monitoring of public posts. It's the way it was pitched that was a problem. Rather than sell it as a way to keep law enforcement informed of criminal activity, its sales team highlighted its usefulness in monitoring protestors and other First Amendment activity.

The documents the ACLU obtained show the company paid these three social media services for "firehose" attachments -- beefed-up API calls that allowed Geofeedia to access more public posts faster than law enforcement could do on its own.

Instagram had provided Geofeedia access to the Instagram API, a stream of public Instagram user posts. This data feed included any location data associated with the posts by users. Instagram terminated this access on September 19, 2016.

Facebook had provided Geofeedia with access to a data feed called the Topic Feed API, which is supposed to be a tool for media companies and brand purposes, and which allowed Geofeedia to obtain a ranked feed of public posts from Facebook that mention a specific topic, including hashtags, events, or specific places. Facebook terminated this access on September 19, 2016.

Twitter did not provide access to its “Firehose,” but has an agreement, via a subsidiary, to provide Geofeedia with searchable access to its database of public tweets.

Of all of these companies, only Twitter took proactive steps to prevent API calls from being used for proxy surveillance.

In February, Twitter added additional contract terms to try to further safeguard against surveillance. But our records show that as recently as July 11th, Geofeedia was still touting its product as a tool to monitor protests. After learning of this, Twitter sent Geofeedia a cease and desist letter.

Well, it's all over now. It's not just Twitter demanding Geofeedia stop turning its service into an extension of law enforcement's worst urges. It's everyone. The ACLU dumped its documents and, shortly after, the companies dumped Geofeedia.

After reviewing the report, Facebook cutoff Geofeedia’s access to commercially available data from its social platform and from Instagram, which it owns.

On Tuesday, Twitter said they were also cutting off the Chicago social media company’s access.

So much for the business model. Twitter cited its long-standing policy of preventing its service from being used as a surveillance tool -- a policy it exercised earlier this year when cutting off Dataminr's access to its APIs for selling its collected communications to US intelligence agencies.

Facebook simply stated that Geofeedia's API use was "unauthorized," something it probably should have realized well before the ACLU shamed it into cutting off the company's access.

Geofeedia, meanwhile, has stated it will meet with all "stakeholders," which apparently means Twitter, Facebook, and various government agencies. Users of these services haven't been invited to do anything more than vote with their digital feet.

For all the call-and-response, the underlying fact is that Geofeedia didn't have access to anything any individual user didn't. It may have had more of it faster and a front end that made surveillance/monitoring easier, but it wasn't gathering tweets or posts from private accounts or otherwise accessing anything not already viewable by the public.

But its sales tactics were a bit concerning. The company pretty much encouraged law enforcement agencies to engage in some very questionable monitoring.

Using Geofeedia’s analytics and search capabilities and following the recommendations in their marketing materials, law enforcement in places like Oakland, Denver, and Seattle could easily target neighborhoods where people of color live, monitor hashtags used by activists and allies, or target activist groups as “overt threats.” We know for a fact that in Oakland and Baltimore, law enforcement has used Geofeedia to monitor protests.

Geofeedia claims to be interested in protecting the civil liberties of Americans, while at the same time nudging law enforcement agencies towards undermining those protections. Because of that, it's now probably looking at handing out some refunds, seeing as its all-seeing-APIs have been cut off and all it can really offer at this point is part-owner positions in a fast-growing pariahship.

Filed Under: apis, government, monitoring, social media, surveillance
Companies: aclu, facebook, geofeedia, instagram, twitter

Government Agencies Apparently Not Interested In Following Congressional Directives On Overclassification

from the you-literally-couldn't-pay-us-enough-to-do-our-jobs dept

I'm not sure what this says about government transparency. Maybe it doesn't say anything useful. Maybe it's just the mixed signals we can expect from agencies only willing to make the most minimal transparency efforts. Or maybe it says something about the momentum of even slowly-moving large objects. A bureaucracy has a large turning radius and asking it to suddenly change its ways means you have to lower your expectations as to how "suddenly" should be defined. Whatever it says, it's nothing good.

Overclassification is a government-wide problem. Legislation has been passed to fix it. While the government expects the private sector to get right on it when laws are passed, it obviously cuts itself a lot more slack when faced with internal legislative redirection.

Recognizing the threat posed by over-classification, Congress passed legislation in 2010 to counter the pervasive problem of bureaucrats making benign government records secret. One of the most highlighted provisions of the Reducing Over-Classification Act (ROCA) was a new tool for agencies: cash incentives for employees who accurately classify (and declassify) documents.

Congress hoped that by offering a proverbial carrot to the line-level employees making initial classification decisions within federal agencies, it could increase transparency and allow greater information sharing between federal agencies and local law enforcement.

Not even the dangling of cash money can push agencies towards more transparency, as the EFF's Dave Maass and Aaron Mackey report.

Based on the FOIA responses EFF has received, it does not appear that a single federal agency with the power to classify documents has ever taken advantage of ROCA’s cash incentives program. EFF’s FOIA request sought a variety of records related to the ROCA incentive program, including guidelines for issuing bonuses and the amount of bonuses given out.

Of the agencies we queried, 16 agencies responded that they either had no responsive records or that they do not operate a ROCA incentive program. Three other agencies denied our request, while the remaining eight have yet to provide a determination.

Congress has declared overclassification should be corrected by government agencies. The agencies have shrugged... for a half-decade straight. But hey, transparency! More than half the agencies responded and only three outright denied the EFF's request. That's… something.

Tellingly, two agencies that oversee a ton of classified info responded negatively. James Clapper's office (ODNI) couldn't find anything that suggested it had scaled back its black marker use, and the National Archives and Records Administration first said the law didn't apply to it, before changing its mind and stating it had never implemented the program.

Other agencies that cherish their secrecy and fully-redacted FOIA responses also had made no moves towards scaling back overclassification. The FBI, DEA, and ATF all responded that no one in their agencies had ever claimed ROCA's cash prizes. The same thing goes for the DHS, Defense Department, and the Federal Bureau of Prisons. The State Department offered two "no files found" responses, with the first implying it had trouble understanding the question.

"You have not reasonably described the records you seek in a way that someone familiar with Department records and programs could locate them."

and

"Some or all of the records you have requested do not appear to be State Department records.

The good news is the FOIA process works, at least in this small sampling. The bad news is there's apparently no effort being made to live up to the demands of ROCA, six years after its passage into law. The end result may look more promising, what with agencies (for the most part) amping up their FOIA response capabilities. But if they're not handing over documents because they've gone wild with the "CLASSIFIED" stamp, then they may as well just go back to ignoring FOIA requests.

The worst news, though, is that government agencies feel directives issued via legislation are entirely optional. Their employers, however, are not given the luxury of ignoring laws they don't like. Taxpayers are expected to follow every stupid law forced on them by their representatives while subsidizing entire agencies that shrug off their responsibilities to the public.

Filed Under: bonuses, classification, government, overclassification

Vox: If The Clinton Email Scandal Has Taught Us Nothing Else, It's That Email Should Be Exempt From FOIA Requests

from the wat dept

You don't often see a journalist argue for more government secrecy. In fact, you never see this. This makes Matt Yglesias' piece for Vox more than an oddity. His argument for a broad FOIA exemption covering the single most-used form of government communications appears to be motivated by two things:

1. His belief that nearly anything critical of Hillary Clinton is overblown.

2. He doesn't like talking on the phone.

When Yglesias seeks a comment from a public official, they often want to call. Why? Because a phone call doesn't create a permanent record of the conversation. This is exactly why journalists would much rather take comments in the form of an email. Or should want to. It's a much better reason than Yglesias', which is that he just doesn't want to be hassled by phone calls. Yglesias feels the real problem here isn't public officials not wanting to go on the record, but the Freedom of Information Act's supposedly inconsistent take on communications.

The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can.

This argument might make some sense if Yglesias had ever advocated for the alteration of federal statutes like the Electronic Communications Privacy Act or the Third Party Doctrine that have been abused for years by government agencies with complete disregard for wholesale changes in personal communication preferences. (Under the Yglesias theory, phone calls = emails, so the government should need a wiretap warrant to access the contents of these communications, rather than just regular search warrants.)

Furthermore, he's simply wrong about the FOIA's treatment of phone calls and emails. If a public record is generated by a phone call, it too can be accessed with a FOIA request. One example would be 911 calls, which are always recorded and are considered public records.

This was pointed out to Yglesias by USA Today journalist Steve Reilly. Yglesias responded once, indicating he was making a point, rather than aiming for accuracy.

But searching through the hundreds of pieces Yglesias has written won't uncover anything that indicates he feels the American public should also be a beneficiary of updated laws that better reflect the shift away from phone calls as a primary communications method. It's too late for Hillary Clinton to benefit from this proposed alteration, but presumably other politicians Yglesias cares deeply for will find themselves freed from the tyranny of transparency.

Part of Yglesias' argument for a blanket email exception is that these are often informal communications -- not really the sort of thing the government should feel compelled to hand over. Yglesias says there's "no public interest" in documents that don't contain official policy directives, etc. But he's wrong. There's an incredible amount of public interest in government communications, as these often provide glimpses of the government's inner workings that just aren't visible when boiled down to policy memos and talking points.

His next justification, however, is baffling in its inadvertent self-contradiction.

Under current law, if Bill Clinton wants to ask his wife to do something wildly inappropriate as a favor to one of his Clinton Foundation donors, all he has to do is ask her in person. But disclosure laws sit as a constant threat to the adoption and use of efficient communications tools. Your smartphone isn’t primarily for making phone calls, but the stuff you do on your “phone” — communicating with other human beings in your life — is the social and economic equivalent of a phone call. It ought to be legally treated that way too.

In other words, public figures have a number of ways to avoid generating public records about questionable activities. The solution, according to Yglesias, is to GIVE THEM ANOTHER ONE.

Yglesias says there are all sort of communications government officials should never need to worry about being made public. This will supposedly give us a more "effective" government, unconstrained by worries about what the public might think.

There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook:

• Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.
• A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized.
• Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind.
• Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion.
• If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.

It's as if Yglesias is completely unaware that there are existing FOIA exemptions that cover the sort of "deliberative documents" that these conversations -- if handled via email -- would generate.

Not that it ultimately matters. Yglesias' argument is in service of Hillary Clinton and those like her, rather than journalists, the public, or anyone else not so wholeheartedly engaged in supporting this particular presidential candidate.

But in the context of the Clinton email scandal -- which Yglesias himself says can't be "ignored" when discussing a shift away from government transparency -- this proposal would have prevented the public from learning the following about the leading presidential candidate:

- She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements.

- She handled classified information carelessly and incompetently.

This is stuff the public needs to know, but Yglesias apparently feels anything contained in a public official's inbox should be treated as the ephemeral contents of a phone call or a whispered conversation. And he offers up this proposal with seemingly complete unawareness of how combative the FOIA process already is -- and how often the government stalls, levies fees, abuses exemptions, performs deliberately inadequate searches, etc. to further distance requesters from the records they not only seek, but federal law says they're entitled to.

And, if you think I'm being too harsh on Yglesias for taking an implicit pro-Clinton stance in his call for less government transparency, his track record speaks for itself. This is why we steer clear of partisanship here at Techdirt. This makes advocating for greater transparency, changes in law, etc. sincere, rather than motivated by how it will affect various writers' "teams."

Yglesias has dug himself into a hole with this article. He'll presumably keep his head down when politicians he doesn't care for start making noise about "too much transparency." This post shows he's not quite the journalist he believes he is and his ignorance of the reality of the FOIA process is on full display. In support of god-knows-what, Yglesias is calling for the most common method of government communication to become the government's most-used FOIA dodge. That's a dangerous proposal, especially when issued by a self-professed member of the Fourth Estate, whose job it is to help rein in the government and hold it accountable -- not give it more ideas on how to hide stuff from the people paying for it.

Filed Under: emails, foia, government, journalism, matt yglesias, phone calls, transparency
Companies: vox

Appeals Court Says Government Email Stored On Private Servers Is Still Subject To FOIA Requests

from the not-really-about-Clinton,-but-pretty-much-about-Clinton dept

A recent decision by the DC Circuit Court of Appeals may not directly reference the Hillary Clinton email fiasco, but the conclusion reached set off irony detectors all over as it arrived the same day FBI director James Comey announced that Clinton's private email server may have been a stupid idea, but not a criminally stupid one.

There were indications that Clinton's use of a private email address was an attempt to route around FOIA requests. As her server was being set up, communications from both her staff and the State Department's noted that an account in her name existed already, but would be subject to FOIA requests.

This has been a problem elsewhere. Several government officials have conducted an inordinate amount of government business using private email accounts or personal devices in hopes of skirting public records requests. The DC Circuit Court's case deals with a little-known government agency, but an all-too-familiar dodge by public officials.

In a decision Tuesday in a case not involving Clinton directly, the U.S. Court of Appeals for the D.C. Circuit held that messages contained in a personal email account can sometimes be considered government records subject to Freedom of Information Act requests.

The case ruled on by the D.C. Circuit focused on a relatively obscure White House unit: the Office of Science and Technology Policy.

The Competitive Enterprise Institute FOIA'ed work-related emails sent to and from the administration's science advisor, John Holdren. Holdren demurred, leading to this lawsuit that has worked its way up to the Appeals Court. The lower court decided the government was under no obligation to search private email accounts for responsive communications. The Appeals Court -- while not necessarily saying the government IS obligated to do this -- found that the lower court had been too hasty in its dismissal of CEI's complaint. From the decision [PDF]:

As relevant here, we held in Burka, that the agency must search and disclose records that were not on its premises but were under its “constructive control.”

[...]

In other words, an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.

This seems to us to be the only resolution that makes sense. If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced.

[...]

If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.

A solid conclusion, and one that hopefully discourages officials from playing keepaway with public documents by hosting them anywhere other than on government servers. But here's the caveat: this still may not result in any additional emails making their way into CEI's hands.

We make clear that we are not ordering the specific disclosure of any document. It may be that OSTP has valid exemption claims, or even that no document found among the jholdren@whrc.org email falls within the definition of “agency records.” However, those questions are for litigation in the district court in the first instance.

It's good to know where the DC Circuit Court of Appeals stands on the issue, seeing as nearly every federal FOIA lawsuit is handled in this jurisdiction. And if Clinton hoped to use the "private email account" excuse to withhold communications from FOIA requesters, it would appear to be a far less effective tactic than it was prior to this decision.

Filed Under: foia, government, private email