Homeland Security Ignores Own Guidelines To Make It Prohibitively Expensive For Media Companies To Obtain FOIA Docs

from the say-what-now? dept

I currently have a FOIA request in to the Department of Homeland Security, and the fee waiver request was initially denied because DHS told me that I was considered a "commercial requester" since I was using Muckrock's platform to make the request. We're currently appealing this designation (and DHS seems to be ignoring our appeal, as it's been months...), but in another such situation, DHS has once again, declared Muckrock a "commercial requester" in order to demand fees -- on the basis of the fact that people might actually read the documents, and that somehow advances Muckrock's "commercial" interests.

Now, some background is important here. The whole point of waiving fees for "commercial" requesters is to avoid companies doing things like building up private databases by use of FOIA requests and then selling them. It's not for the purpose of blocking commercial media properties from doing journalism with the documents. In fact, Homeland Security's own FOIA guidelines make it clear that for-profit media operations using FOIA for reporting purposes are not commercial requesters:

A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.

Seems simple enough, but apparently the DHS wants to ignore its own guidelines when it comes to Muckrock. Here's what DHS told Muckrock:

Regarding the "commercial requester" classification, the Agency has also properly determined that the requested records would be used for commercial purposes. Although you assert that any responsive documents would be made available to the public for free on MuckRock's website, the Agency must balance the commercial interest against the public interest. Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes. Your request does not provide any information that would allow the Agency to determine that the public interest outweighs this commercial interest.

But, that kind of argument makes no sense, and would effectively mean that basically all news media organizations who post the relevant source documents from FOIA requests are no longer considered "news media" requesters, but rather "commercial requesters." Because, of course, part of the media function of posting any such document is to "drive traffic." As Muckrock points out in response to this news, there are over 300 media organizations who contribute such documents to DocumentCloud (and we're among them). Many of those organizations are for-profit and clearly media operations. The attempt to claim that Muckrock is a "commercial requester" is clearly ignoring both the clear intent of the commercial requester status and DHS's own guidelines in how to deal with media requests from for-profit media properties.

It's almost as if Homeland Security is looking for bogus excuses to make it prohibitively expensive for media sites, reporting in the public interest, to actually get the documents they request.

Filed Under: commercial requester, dhs, foia, guidelines, homeland security, journalism, media
Companies: muckrock

Guidelines On Who Might Be Suspicious: Too Nervous? Too Calm? Blending In? Standing Out? It's All Suspicious

from the everyone-is-a-suspect dept

The ACLU FOIA'd up some guidelines for Amtrak staff concerning how they judge whether or not passengers are "suspicious" in terms of being "indicative of criminal activity" and the list seems fairly broad:

• Unusual nervousness of traveler
• Unusual calmness or straight ahead stare
• Looking around while making telephone call(s)
• Position among passengers disembarking (ahead of, or lagging behind passengers)
• Carrying little or no luggage
• Purchase of tickets in cash
• Purchase tickets immediately prior to boarding

Radley Balko takes this list and then compares it to a list put together by James Bovard concerning what the courts have said is conduct that shows "reasonable suspicion" for law enforcement to dig deeper:

• Being the first person off a plane
• Being the last person off a plane
• Someone authorities believe has tried to blend in to the middle of exiting passengers
• Booking a nonstop flight
• Booking a flight with a layover
• Traveling alone
• Traveling with a companion
• People who appear nervous
• People who appear “too calm”
• Merely flying to or from a city known to be a major thoroughfare in the drug pipeline

The message is pretty clear: everyone is a suspect. And anything you might do to look not like a suspect is also suspicious. In fact, you're going to be pretty hard pressed not to look suspicious under these kinds of rules, which is kind of the point.

Part of the problem is the myth out there that there's a legitimate ability to spot "suspicious" people. Sure, there are some extreme cases where people act strange before committing a criminal act, but the idea that you can scan a group of people and spot the people planning out some sort of criminal activity is a concept greatly exaggerated (often by Hollywood), but it inevitably leads to this situation where law enforcement can more or less pick and choose when they suddenly think you're "acting suspicious."

Filed Under: behavioral monitoring, criminal activity, guidelines, law enforcement, reasonable suspicion
Companies: amtrak

Police Officers' Suing The DOJ For Violating Their 'Right' To Deploy Force Without Restrictions Shot Down By Federal Judge

from the internal-eyerolls-omitted dept

The 125 members of the Seattle Police Department who sued the Dept. of Justice for violating their "right" to deploy force on their own terms (in order to "make it through work safely") have received their answer from a federal district court judge. In short, the response is, "You're wrong," along with the addedum, "and please stop asking."

A federal judge has thrown out a lawsuit brought by more than 100 Seattle police officers who said new guidelines on using force jeopardized their safety.

The officers' arguments were unsupported by the Constitution or case law, Chief U.S. District Judge Marsha Pechman said in an opinion issued Monday.

The crowdfunded lawsuit sloppily rewrote the Second Amendment as a "right" to self-defense. Any restrictions on use of force infringed on this imaginary "right." Not only did the Dept. of Justice's remedies -- prompted by years of excessive force deployment and biased policing -- somehow violate these officers' rights, but they apparently also granted "criminals" (which basically means anyone who isn't a cop in this context) extra rights.

The officers who signed on to the lawsuit, without the support of the police guild, objected, saying the policy elevates the rights of criminal suspects over those of police.

And they weren't too happy with the additional oversight, either.

They argued that Merrick Bobb, the court-appointed monitor overseeing the reforms, refused input from the police department in the drafting of the new policy, and that it violates their constitutional right to defend themselves.

As to the creative interpretation of the Second Amendment, Judge Pechman had this to say [pdf link]:

Plaintiffs can point to no case establishing that the Second Amendment codified a free-standing right to self-defense, as opposed to case law interpreting the textual Second Amendment rights to “keep and bear arms” in light of their purposes (which the Supreme Court has held include the facilitation of self-defense)...

In the criminal context, the Ninth Circuit rejected the idea that recent Supreme Court cases confirmed a Second Amendment right to use a weapon in any particular way: “[N]either [Heller nor McDonald] concerned the use of a weapon, as distinct from mere possession. . . .” United States v. Morsette, 622 F.3d 1200, 1202 (9th Cir. 2010). Similarly, nothing in the Supreme Court’s recent Second Amendment jurisprudence lends support to Plaintiffs’ novel theory that a police department policy outlining expectations for an officer’s use of force can burden conduct protected by the Second Amendment.

Instead, the Supreme Court has been clear that “the right secured by the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. Plaintiffs selectively quote historical sources cited in Heller to suggest that so long as self-defense is a purpose for the individual claiming a Second Amendment right, the Second Amendment forbids “unreasonable” restrictions on the manner a weapon is used.

[...]

Here, the Policy represents an effort by an employer, the Seattle Police Department, to regulate the use not only of (employer-issued) weapons but of the force its employees are specially sanctioned to wield on behalf of the city government. This scenario has no relation to the Second Amendment guarantees for individuals recognized in Heller, McDonald, and Peruta.

The officers' other complaints were similarly dismissed.

Nor did she agree with the officers' insistence that the policy violated a "right of self-defense as embedded in the Fourth Amendment," which protects against unreasonable search and seizures. Pechman said the argument grossly misconstrued Fourth Amendment law.

As the Fourth Amendment argument went (which is "terribly"), so did the officers' arguments claiming violations of due process and equal protection.

In a rather amusing and slightly ironic turn of events, the officers' complaints about the court-appointed monitor (Merrick Bobb) were rebuffed by every bad cop's best friend:

Because Defendant Bobb exercised discretion in resolving a dispute at the request of a district judge, he is entitled to absolute quasi-judicial immunity from suit and the charges against him must be dismissed.

Pechman further points out that not liking a monitor's determinations isn't the same thing as them being "unjust" or "one-sided."

The suit has been dismissed with prejudice, meaning the 125 officers who filed a suit so baseless even the local police union wouldn't offer its support will now have to return to work and follow the same rules as the rest of their fellow officers. I suppose it's a good thing this case wasn't dragged out any longer than the past five months, considering its legal warchest crowdfunding effort stalled out slightly past the $3,000 mark.

Filed Under: guidelines, law enforcement, rights, rules of engagement, seattle, use of force

DOJ Pretends No Fly Guidelines Haven't Been Leaked, Claims 'State Secrets' To Avoid Revealing Them To The Judge

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:

[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:

With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course.

The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.

The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the appropriate legal standard for substantive due process.

Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

Filed Under: doj, guidelines, gulet mohamed, leaks, no fly list, state secrets, watchlist

DOJ's New 'Less Likely To Spy On Press' Rules Only Apply To Whoever DOJ Feels Is Really 'News Media'

from the seems-like-a-big-loophole dept

We recently mentioned that the DOJ has put out its revamped guidelines in which the organization promises to be a little more careful before spying on journalists and their sources (and friends, colleagues and family...). However, as some are pointing out, the guidelines appear to be pretty careful about defining "the press" to only mean "people who work for big media organizations." Everyone else is fair game.

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

This kind of issue keeps coming up with the discussions around a "media shield" law, in which politicians keep suggesting that we need an official designation for who is and who is not a journalist. Of course, as we've been saying for years, that's silly and antiquated. You could easily write such a shield law to be about protecting journalism rather than journalists. That's because, these days, almost anyone can do journalism, if the opportunity presents itself. If someone is trying to bring important information to the public, that's a journalism role, and those actions should be protected, no matter who the employer might be.

The government's continued insistence that it somehow needs to define who is and who is not a journalist seems like it's not just a mistake from a policy perspective, but also something that (perhaps on purpose) leaves open a giant loophole to spy on lots of people the government probably shouldn't be spying on.

Filed Under: doj, guidelines, journalism, journalists, shield law

DOJ: Now That We've Been Embarrassed For Spying On Journalists, We'll Be A Little More Careful

from the until-congress-says-otherwise dept

Right before the Snowden leaks came out, you may recall there were some other controversies, involving the DOJ spying on reporters, including claiming that reporter James Rosen was an "aider, abettor or co-conspirator" in order to get access to his emails and phone records. In response to this controversy, President Obama... put Attorney General Eric Holder in charge of investigating these efforts, despite the fact that it was under Eric Holder's watch that these things happened.

In response, the DOJ is apparently revamping its guidelines to make it slightly more difficult for them to do what they already did:

The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.

They would also make it harder — though not impossible — for prosecutors to obtain a journalist’s calling records from telephone companies without giving news organizations advance notice...

According to that report at the NY Times, the DOJ also said that it can't do any more unless laws are changed:

“This is as far as the department can go on its own until Congress passes the media shield legislation,” the Justice Department official said

That's simply not true. The DOJ's guidelines are just that: guidelines. They can set pretty clear guidelines for themselves that make it clear that the DOJ will not spy on reporters' communications with sources. But they're choosing not to do so. Either way, all of this seems (yet again) like a reaction to them being called out on questionable behavior. They made no effort to fix these guidelines until what they were doing came out in the news. It's difficult to take the DOJ seriously when they promise to change after they've been caught.

Filed Under: doj, eric holder, guidelines, james rosen, journalists, privacy, shield law, spying

DailyDirt: Science Policies For The US

from the urls-we-dig-up dept

We're generally interested in government policies that affect the discovery of information or the creation of new works. Usually this means we focus on copyright issues, but science policies are also important to us -- so here are just a few gov't policies that have been released.

• US research in synthetic biology isn't subject to a lot of new government regulations (yet), but there will be an exhaustive evaluation of current government funding for synthetic biology projects. That exhaustive report should be available to the public in a few more months... [url]
• The National Science Foundation (NSF) is trying to make it a bit easier to be a scientist by allowing for some flexibility for budding scientists -- such as cutting back on the demands to travel to NSF headquarters for renewals/applications. The new rules will also allow grant recipients to defer their projects for up to a year to raise children. [url]
• The US government's policy for isolating scientific research from politics was released last year. The guidelines set "minimum standards" for federal agencies to meet, and didn't really spell out many specifics. [url]
• To discover more interesting science-related stuff, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: grants, guidelines, policy, regulations, science, synthetic biology
Companies: nsf

ESPN Writer Suspended From Twitter

from the careful-what-you-tweet dept

Earlier this year, we noted that ESPN had come out with rules on how its staff could (and could not) use Twitter. Apparently, Bill Simmons broke those rules, and has been suspended from Twitter for two weeks. His crime? Apparently calling radio station WEEI, a partner of ESPN, deceitful scumbags. That does seem a bit over the top, but why should ESPN have a say in how Simmons uses a totally unrelated service in which he speaks his mind? If he's going to say something dumb, isn't that his decision?

Filed Under: bill simmons, guidelines, twitter
Companies: espn

Associated Press's Continued Delusion: Social Networking Guidelines Require Employees To Delete Other People's Content

from the hello,-let-me-explain-to-you-the-web dept

It's no secret that the Associated Press has had a rather difficult time figuring out its place in the online world, often resorting back to weak attempts to re-enact the old walls and scarcities that simply don't exist in the internet world. Lately, it's been having a lot of trouble figuring out how to have its own employees interact on social networks -- first reprimanding an employee for stating his personal opinion about an AP-member newspaper in his Facebook account. Now, however, the AP has released "staff guidelines" for how to use social networking sites like Twitter and Facebook, and there are some highly questionable rules there. The one getting the most attention -- for good reason -- is the bizarre and troubling demand that those who use Facebook not only have to watch their own language, but the language of any friend that posts a comment on their Facebook "wall." Seriously. They want AP employees to comb through any comments that friends/family/etc. post on their wall -- and if they "violate AP standards: any such material should be deleted." It's difficult to fathom how this could possibly make sense and isn't a huge burden for AP employees as well as obnoxious to their friends and family. Does the AP also tell its employees that when out to dinner with friends, they must "shush" them if their friends say anything not up to "AP standards"?

Filed Under: guidelines, reporters, social networks
Companies: associated press

UK Press To Create Guidelines About Using Social Networking Info In News Stories

from the public-info-is-public dept

You may have noticed lately that whenever a story breaks about a young person doing something bad (say, shooting up a school or losing a bank billions of dollars), one of the first things the press does is rush to MySpace, Facebook or other social networks to see what they can learn about the person in question. Apparently, that's ticking off some of the people whose profile info is being used. Thus, a media industry watchdog in the UK is trying to come up with guidelines for the use of such info. This seems a little odd, of course. The info you put on your public profile is just that: public. So getting upset that it's being used in the press seems a bit questionable. Instead of setting guidelines for the media, why not just remind people that public info is public?

Filed Under: guidelines, press, social networks