FBI Sues To Block Disclosure Of Surveillance Cameras Locations Because It Would Violate The Privacy Of Those Surveilled

from the we-don't-negotiate-with-(FOIA)-terrorists dept

Another injunction request has been filed in response to a Phil Mocek public records request pertaining to Seattle's power utility. This time, Mocek and MuckRock (through which Mocek's requests have been routed) are not named as defendants. It's only the city of Seattle and its public utility (Seattle City Light) being named as defendants, but Mocek's public records request is specified in the federal court filing [PDF]. (h/t Mike Scarcella)

This time, the plaintiff isn't a multinational corporation. It's the Federal Bureau of Investigation. The nexus for the FBI's attempt to block further disclosures to Mocek (and other requesters like local new station KIRO) is its remora-esque relationship with Seattle's public utility. After a long paragraph utilizing terms like "tradecraft," "concealments," and "advanced electronic surveillance," we finally get to the real reason the FBI wants the court to keep the city of Seattle from handing out any more public utility documents to requesters.

Among other types of video surveillance techniques and methods, the FBI may lawfully install a video camera on an existing utility structure, such as a power pole (“pole camera”), in furtherance of an authorized investigation, when use of the method is reasonably likely to achieve investigative objectives.

The FBI then goes on to argue that despite the cameras being attached to publicly-owned property, they're still sensitive and secret -- unlike countless other cameras serving pretty much the same purpose.

The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s).

It also restyles its anti-FOIA "mosaic" theory into something a bit more relatable.

Disclosure of even minor details about them may cause jeopardy to important federal interests because, much like a jigsaw puzzle, each detail may aid adversaries in piecing together information about the capabilities, limitations, and circumstances of equipment’s use, and would allow law enforcement subjects, or national security adversaries, to accumulate information and draw conclusions about the FBI’s use of this technology, in order to evade effective, lawful investigation by the FBI.

If the location of these cameras were disclosed, suspects would seek to avoid being recorded by them. This is a logical argument. But it's followed by one that's much harder to accept at face value. The FBI claims -- engage your paradox-absorbing crumple zones now -- that disclosing the location of the cameras would result in the violation of privacy of suspects the FBI alread has cameras aimed at.

Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged.

The FBI can watch anyone 24/7, but if a citizen works their way backward from a camera's location to speculate on who might be the target, that person's privacy will have been invaded.

But this sort of math has a low probability of arriving at the correct conclusion. Hence, the FBI also points out that location disclosure would violate the privacy of everyone in the general vicinity.

It can also reasonably be expected to constitute an unwarranted invasion of the privacy of innocent third parties not under investigation but geographically near the current or past location of the camera, who may falsely be assumed to be the subject of an FBI investigation.

Because the FBI doesn't want Seattle City of Light employees removing its concealed cameras, it has shared the locations of its extra eyeballs with the utility. But the FBI wants the city to withhold more than just the location of FBI cameras. It wants everything related to the FBI blocked from release in order to prevent jigsaw assembly by public records recipients. The city, so far, has refused to do so and appears to be challenging the FBI's secrecy demands.

In January 2016, the City informally notified the U.S. Attorney’s Office that, following the City’s release of the partially redacted FBI information to KIRO, City Light had received a second PRA request from Phil Mocek, challenging the City’s withholding of the redacted information. Shortly thereafter, the City formally notified the FBI of this request by letter. In the same notice, the City also stated that it did not intend to withhold any of the confidential and sensitive information which it had redacted in connection with the earlier request, and that it would release all FBI information at issue unless the FBI obtained an injunction prohibiting such release.

The city did agree to give the FBI time to seek an injunction. This may look like deference, but it could very well be that the city is hoping to have the court more clearly define the limits of public records disclosure exemptions. If this moves far enough ahead, the FBI will be forced to justify its demands for the redaction of all information related to its use of city property to conduct surveillance.

As a result of previous "unauthorized" disclosures, the FBI has stopped sharing the locations of its cameras with the city's light utility. The theoretical destruction of its cameras by utility employees is the basis for the FBI's "we've already been injured by records releases" claim. The FBI then goes on to claim that challenging federal agency demands for secrecy isn't in the public's interest.

[T]he absence of communications with City Light has placed FBI equipment at risk of inadvertently being removed or destroyed by City Light personnel. Such lack of coordination and communication between state and federal government entities is contrary to effective law enforcement and otherwise contrary to public interest in good government.

All the FBI wants is the complete control of any public records request response that might somehow involve it.

On the Fifth cause of action, for an Declaratory Judgment that any similar Protected Information the FBI has shared in the past or may in the future share with the City or City Light for law enforcement purposes is:

a. exempt under the PRA;

b. subject to the federal law enforcement privilege;

c. subject to a federal common law duty of confidentiality;

d. subject to a common law property interest; and

e. that the Protected Information may not be disclosed by the City for any other secondary purpose, without the express permission of the FBI.

The FBI, it would appear, wants the federal court system to put its weight behind an ad hoc non-disclosure agreement, a la the Stingray-related demands it places on every law enforcement agency that acquires this surveillance tech.

It's looking to have federal FOIA exemptions (along with some made-up stuff like "duty of confidentiality") override local public records statutes even as it's using city property as tripods for its cameras. Rather than try to have it all, it could simply cut the city out of the loop (as it's doing now) and run the risk of losing a few cameras. Instead, it's seeking to make the city of Seattle a wholly subservient "partner" in its surveillance efforts.

A judge has already granted a temporary injunction. If it's made permanent, it will give the FBI final say on public records responses in Seattle -- and presumably elsewhere in the same federal district.

Filed Under: fbi, foia, seattle, surveillance cameras

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

Seattle PD Hires Coder Who Demanded It Hand Over Every Video Produced By Its Body Cameras

from the we-need-more-of-this,-please dept

Back in December, an anonymous person requested pretty much every report the Seattle PD generates daily, along with all footage from its newly-instituted body camera program. Today, that man is no longer anonymous and was recently hired by the Seattle PD.

The Seattle Police Department is taking the unconventional step of bringing a programmer who bombarded it with public records requests in-house. Chief Operating Officer Mike Wagers has led efforts to hire 24-year-old self-taught programmer Tim Clemans—initially, at least, on a three-month trial basis to work on redaction and disclosure of data.

He'll make $22.60 an hour and start on May 6. If all goes well, Clemans will stay on as a full-time staffer.

The police department is hiring Clemans despite a tense March 27 encounter with Officer Jason Bender at Westlake Center. Clemans said he was filming police that day and pointed his camera at the officer during a benign interaction with two young men—one black and one white. "My filming just demonstrates what the police are doing," he said when asked why he was filming them in particular. "Both the good and bad."

But, he said, Bender was annoyed at being filmed. A dash-cam video (obtained by Clemans and posted on his YouTube account, of course!) only recorded garbled audio of a lengthy argument that ensued. Bender, who identifies himself as a member of the department's Crisis Intervention Team, asks Clemans pointedly, "Do you videotape criminals? No, you don't. You know why? Because the criminals are not"—but here the audio becomes difficult to make out. "Enjoy your safety that's provided to you."

Filed Under: body cameras, foia, redactions, seattle, seattle police, tim clemans, transparency

Seattle PD Holds Hackathon To Solve Body Cam Footage Redaction Problem

from the putting-privacy-back-into-'no-expectation-of-privacy?' dept

Behold. The future of law enforcement.

The Seattle Police Department (SPD) held its first-ever hackathon on Friday. The event was focused on a single problem: How to redact the video streams recorded by police officers from their dashcams and (soon) body-worn video cameras.

Clemans… stated that most of the work done by police officers is saving lives through CPR or calmly working with drunken or angry citizens, yet the public rarely sees that on video. He also urged a report where all video would be initially over-redacted – essentially the whole frame is blurred – and then the news media or activists could ask for less redacted versions of the video of interest.

Seattle Police officials… admitted that about 90 percent of the video officers create probably needs no redaction at all. That’s because members of the public have no right to expect privacy in their interactions with police, unless they are juveniles or a witness or victim whose safety might be at risk if their identity is known.

Filed Under: body cams, bodycams, hackathon, police, privacy, redaction, seattle

Seattle Privacy Activist Attempts To Kill Accountability With Transparency

from the it-was-the-requester-in-the-basement-with-the-gmail-address dept

You'd think that accountability and transparency would never get this screwed up. But theoretical good can sometimes become a practical nightmare.

The Seattle police department -- one of several police departments around the nation to have spent some time under the DOJ's microscope -- is only weeks away from starting their body cam pilot program. This is good.* Or was, right up until the unlikeliest of wrenches was thrown into the works: a Freedom of Information request.

*Caveats apply.

Now that plan may get put on ice, due in part to an overly broad public records requests. The Seattle Times reported this morning that an anonymous man, known only by the email address policevideorequests@gmail.com, has made an official request for "details on every 911 dispatch on which officers are sent; all the written reports they produce; and details of each computer search generated by officers when they run a person’s name, or check a license plate or address."

The requestor also wants all video from patrol car cameras currently in use, and plans to request video from body cams once they are implemented. He has requested the information "every day, in spreadsheet form."

“I think what we need is some sort of balance between transparency and privacy,” the requestor said.

The man, who runs a YouTube channel of police video and audio, also spoke to Reuters, stating his belief that "state law is simply too liberal when it comes to privacy."

The programmer agreed to drop his requests if given videos in a deal that would then see him advise the department on thorny tech issues related to public-records requests for videos, such as how to more quickly redact footage and how to store it online for easy access by the public, media and lawyers.

"Under the law, they get requests regardless of whether or not I go away, and they view what I do as part of the solution," the programmer, a man in his 20s, told reporters at a joint news conference with police in which he declined to reveal his identity.

Filed Under: body cameras, body cams, foia, police, privacy, seattle

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 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.

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.

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.

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.

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.

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

Seattle Cops Crowdsourcing Legal Battle Against DOJ-Imposed Excessive Force Remedies

from the cops-ask-public-to-front-money-in-return-for-gunshot-wounds-later dept

A Seattle police officer suing to block new use-of-force policies has set up an Internet fundraising page to help pay for the legal fight, calling the federally mandated reforms "the greatest threat to the city's public safety in our time."

Robert Mahoney, the lead plaintiff in a lawsuit brought by 113 officers, created the crowdfunding page Saturday on the website GoFundMe.

We would prefer to just be doing our jobs rather than having to also wage a legal battle for our rights. However, as well as being public servants, we are also fathers and mothers, sons and daughters, brothers and sisters, friends and neighbors. We have the right and the duty to go home at the end of each watch. Requiring us to take unnecessary risks that will inevitably prevent this is not only unreasonable, it is immoral.

The Supreme Court has long acknowledged that self-defense is a natural individual right possessed by every citizen, regardless of profession, i.e. "the rules which determine what is self-defense are of universal application, and are not affected by the character [of a person's] employment."

Being a cop has never been more complicated, unpredictable, and dangerous. We work in a city, like many American cities, faced with increasing criminal violence…

Filed Under: crowdfunding, doj, excessive force, police, police brutality, seattle