Government Sues Sprint For Overcharging For Wiretaps Under CALEA

from the everybody-loses dept

As we just got done discussing, AT&T, Verizon and Sprint recently were able to dodge a long-running lawsuit alleging the companies have been dramatically overcharging the government for wiretaps for more than a decade. The lawsuit was filed by former New York Deputy Attorney General John Prather, who spent thirty years in the AG's office (and six years on the Organized Crime Task Force in NY) helping to manage wiretaps and invoices for wiretap provisioning. Prather filed the suit on behalf of the U.S. government, but telco lawyers were able to have the suit dismissed by arguing that Prather couldn't technically sue the telcos under the False Claim Act as a whistleblower, because he filed the original complaint while working for the government.

Now it appears that at least one of the telcos is being focused on for round two, with the news that the government is suing Sprint for overcharging for wiretaps under CALEA. Under CALEA phone companies are allowed to recoup "reasonable expenses," but the lawsuit claims that Sprint overcharged the government to the tune of $21 million, overinflating charges by approximately 58 percent between 2007 and 2010. The Prather case claimed the telcos overcharge for taps in general, but have historically dodged culpability by simply hitting the government with large bills that don't itemize or explain why a wiretap should magically cost $50,000 to $100,000.

Sprint appears to have been specifically nabbed by the Justice Department’s Inspector General because it wasn't clever enough about passing on the costs of modifying its network to adhere to CALEA back to the government, something the law prohibits:

"Despite the FCC’s clear and unambiguous ruling, Sprint knowingly included in its intercept charges the costs of financing modifications to equipment, facilities, and services installed to comply with CALEA. Because Sprint’s invoices for intercept charges did not identify the particular expenses for which it sought reimbursement, federal law enforcement agencies were unable to detect that Sprint was requesting reimbursement of these unallowable costs."

It should be interesting to see if AT&T and Verizon face similar lawsuits down the road, or if their lawyers and accountants were simply better at obscuring overbilling. It's kind of a lose-lose scenario for you and me either way. Not only do we get to be spied on, we likely paid for these wiretaps both on the taxpayer side and on the telco side as the companies passed on both real and imaginary wiretap costs to you.

Filed Under: calea, john prather, new york, wiretap
Companies: at&t, spring, verizon

NYPD Decides To Ape FBI's Tactics And Cite The 'Mosaic Theory' As The Reason It Won't Disclose Budget Data

from the NYPD-forces-NYC-to-secede-from-nation,-run-as-martial-state dept

The NYPD apparently feels it's one of the Big Boys. Presiding over a city of 8 million citizens and given free rein to operate outside the confines of the Constitution (while being tirelessly defended by the mayor and police chief) has given the department an outsized sense of self-worth. Now, it's deploying fed-level talking points to further deny access to public records via freedom of information requests.

The New York City Police Department is invoking a concept frequently employed by intelligence agencies like the FBI and CIA to deny a request for financial records on the unit that surveils Muslim communities.

Even to release a budget for the secretive Zone Assessment Unit, the NYPD claimed in a letter to HuffPost, would allow someone to "form a mosaic that depicts covert public safety activities that would be jeopardized."

Observers will note this is the same excuse given by the FBI to turn down perfectly legal FOIA requests from Ryan Shapiro, a former punk rocker turned animal rights activist. Shapiro utilized privacy waivers to make multiple requests for the same documents. Multiple versions of the same documents uncovered anomalies in the redactions, allowing Shapiro to access info that he wouldn't have received with a single request. The FBI's argument was basically that it sucked at consistent censoring, therefore Shapiro shouldn't be allowed to receive any documents as the result of FOIA requests.

As Matt Sledge at the Huffington Post points out, this "mosaic theory" has been deployed by administrations as far back as Reagan's in order to avoid complying with FOIA requests. But this is the first time a local law enforcement agency has used the theory to block access to public documents.

[Bob] Freeman, one of the state's leading authorities on FOIL law, said he has never seen a local law enforcement agency deny a records request on the basis of the mosaic theory. Nor has Jeffrey Light, a lawyer who litigates both federal FOIA lawsuits relating to intelligence agencies and Washington, D.C., police public records requests.

The NYPD also denied HuffPost's requests for information on policies relating to its cooperation with foreign governments under the International Liaison Program, which has placed NYPD officers in a dozen foreign countries to report on terror attacks. The NYPD stated that it had no records of such policies. The department also rejected requests for records on financial support from the New York City Police Foundation and federal agencies like the White House's High Intensity Drug Trafficking Area program. The Associated Press revealed last year that White House funds had been used to pay for Zone Assessment Unit vehicles and computers.

In addition to the mosaic theory, the NYPD also cited a slew of reasons why it couldn't release the records, ranging from the fear that they might reveal confidential sources and information, to ongoing litigation against NYPD spying, to a public records law exemption for intra-agency privilege. It did not cite which exemptions were being applied to which records requests.

The first issue here is the "mosaic theory" itself. The fear that dedicated requesters could piece together classified information by requesting multiple documents is an indictment of the system itself. Routine overclassification has made it impossible for those charged with vetting and releasing requested documents to do their job effectively. The bar for declaring something classified has been set so low that its use is almost entirely subjective. Instead of having verifiable standards that span each agency, every FOIA request is turned over to a variety of fiefdoms. Classified info leaks because there's no standard being applied. Everyone deploys the black marker differently, largely based on self-interest.

The other issue is the NYPD itself, which has been described as worse than the CIA, FBI and NSA when it comes to responding to FOIA requests. The department deploys every tactic possible to refuse requests and that's often following weeks of stonewalling. Just recently, the department went so far as to refuse public access to precinct police blotters, a staple of public information that it has shared without issue for decades. And this latest affront to open government and accountability is over budget documents of all things, and yet the PD claims it will expose methods and operational data.

Freedom of Information laws are specifically in place to thwart government agencies' natural tendency to obscure and obfuscate. The NYPD has never been much for sharing info with the public, dating all the way back to Giuliani's mayoral reign. Under Chief Kelly, the antagonistic attitude towards the public has only increased, along with the NYPD's secretiveness. Now, it's deloying the sort of anti-FOIA rhetoric normally reserved for federal investigative agencies and presidential administrations. New York City may be the largest city in the nation, but this is still a police department -- albeit one that insists on punching above its weight.

Filed Under: fbi, freedom of information, mosaic theory, new york, nypd

'Lawyer' For Wang-Handled Santa Tries To Stifle Reports About Santa's Wang-Handling

from the everybody-wang-chung-tonight dept

If there is one single lesson to be learned from the Streisand Effect, it's that the cover up is always worse than the crime. This comes into play often when people or companies turn to their legal teams to stifle news and speech about their transgressions. What ends up happening is that news about the original sin spreads in supercharged fashion by being in the news twice while simultaneously making the attempted speech-stifler look all the more evil and/or petty. We saw this when media members went after parody Twitter accounts, when professional sports leagues attempted to stifle documentaries about how dangerous their sport is, and when famous people have attempted to erase online reports of their less-than-stellar acts. So, what's worse than someone attempting to stifle speech by threatening legal action via their attorneys? How about when there is no attorney and the legal threat comes from the subject of the articles impersonating an attorney?

Hey, everyone, it's Christmas time, which in various cities apparently means that there is something called SantaCon where a bunch of people with too much time on their hands occasionally dress up as Kris Kringle and then start drinking heavily with others dressed like Santa. Sometimes those Santa-clones have a bit too much of the old Irish eggnog and attempt to get their North Pole cleansed in public by the woman who agrees to date said Santa-clone. And then, sometimes, that Santa-clone gets embarrassed and an online news publication (in this case, Gawker) gets a letter threatening legal action if the post is not taken down. The letter was signed by a Tyler Van Buren, Esq. (Esq. means practicing lawyer -- and also that you're pompous), and it included this threat:

My client is a successful New York business man who was simply trying to get home with his girlfriend who had a little bit too much to drink while at SantaCon. The articles that have been posted are extremely hurtful, derogatory, and are simply a defamation of character. The accusations being made have no merit and no basis and are not only inappropriate, but damaging for my client and his girlfriend's reputation and their respective careers.

I am drafting up a lawsuit as we speak and I will pursue several charges against the Huffington Post for the untrue, damaging, and hurtful article that has been posted about my client and his girlfriend. Unless this article is removed within the next 24 hours I fully expect to seek damages for my client and his girlfriend. I imagine that this is something your legal team does not want to deal with, but I have been retained by my client and I am fully prepared to seek corrective actions.

Please give me a call at [REDACTED] at any time to discuss this matter or confirm that the posting will be removed.

Regards,

Tyler Van Buren, Esq.

Here's where this gets fun. Gawker, being the hilariously antagonistic fun-bags they are, decided to do a little digging on Tyler Van Buren, Esq. What they came up with is initially quite confusing. Checking the Google+ page associated with the email account from which they got the threat, as well as searches for Van Buren's name in LinkedIn, suggest Van Buren is not a lawyer at all. Instead, he's almost certainly a biology graduate from UCSD who works as a Specialty Pharmaceuticals Analyst for Cowen & Company, headquartered in New York City. Checks in various states' directories of attorneys also did not turn up a Tyler Van Buren.

So what's the deal? Gawker then reveals their final card:

Lastly, while we initially didn't post a second (since removed) video from "Peeping John" Wilson's Instagram page showing a much clearer image of Tyler Van Buren, Esq.'s client, we now feel it's worth a closer look:

That sure looks like the same dude to me. Which means that the Santa getting a handy and Tyler Van Buren are likely the same person and Van Buren misrepresented himself as an attorney threatening legal action. That's going to be a problem, since New York law is pretty clear that you're not allowed to do that. Impersonating a lawyer is a fairly serious offense. So I guess we'll have to open up a new category in our Streisand Effect Hall Of Fame for people who not only made their situations worse by going legal, but may actually have brought legal action on themselves as a result. Golf claps for you, Santa jerk!

Filed Under: impersonating a lawyer, new york, santacon, streisand effect, tyler van buren

Public Service Commission Orders Verizon To Cough Up Cost Data On Its New York Copper Lines

from the not-so-much-about-how-expensive-copper-is,-but-how-cheap-wireless-is dept

At the tail end of October, we brought you the story of Verizon's attempt to subvert New York's Freedom of Information Law by releasing hundreds of fully-redacted pages. Information on costs related to the buildout, repair and support of copper lines versus the inferior (and capped) replacement (Voice Link) Verizon was pushing was being sought by consumers who felt (understandably) that the company was overstating its claims in order to abandon copper line customers.

Verizon delivered page after fully-redacted page of "info" on costs, stating that revealing these "trade secrets" would give its competition an unfair advantage. While there is undoubtedly some truth to that claim, the fact is that the company had plenty of other reasons to keep the numbers hidden -- especially if it had been overstating the amount of money it would have to spend to restore copper service to areas knocked out by Hurricane Sandy.

Somewhat surprisingly, the New York Public Service Commission has sided with those seeking the information.

Last Wednesday, the New York Public Service Commission ordered Verizon to provide the public with un-redacted cost information about providing phone service on Fire Island, New York. The directive denied Verizon’s request to be exempt from disclosing cost documents…

Consumer advocates complained Verizon was simply hiding the fact they were looking to get rid of those users anyway in order to focus on more profitable wireless service, and that Sandy itself was a red herring. Verizon ultimately dropped the request amid protests and said FiOS would be run to Fire Island after all.

The commission addressed Verizon's "trade secret" claims with this statement.

“The information claimed by Verizon to be trade secrets or confidential commercial information does not warrant an exception from disclosure and its request for continued protection from disclosure is denied,” it said in Monday’s ruling.

State officials wrote there “is no present or imminent contract award that could be impaired by the disclosure” and that the state Freedom of Information Law is based on a “premise that the public is vested with an inherent right to know and official secrecy is anathematic to our form of government.”

Verizon plans to appeal the decision, which means the cost data will still be locked up while that process is underway. This decision, while a win for those seeking to verify Verizon's "it costs too much" claims, could possibly be exploited by companies who may being seeking competitors' proprietary data via proxy FOI requests. The Commission will need to be wary of the unintended consequences it just set in motion.

As for Verizon's New York customers, they're still not entirely happy with Verizon's earlier capitulation, which saw the provider decide to run FIOS to Fire Island rather than force customers into a shoddy wireless service with voice and data caps. Even with FIOS, Verizon is still failing to provide reliable phone service, something they say the law requires it to provide. Unlike copper lines, FIOS may not work during power outages.

Verizon (along with AT&T) has made little secret of its desire to ditch copper lines and move its customers towards higher margin wireless services. If Verizon is ultimately forced to turn over cost data to the public, it could make for some very interesting reading.

Filed Under: copper, costs, fiber, new york, public services, telephony
Companies: verizon

Verizon Responds To Freedom Of Information Request With Hundred Of Fully Redacted Pages

from the could-have-sworn-the-word-'information'-was-in-there-somewhere... dept

Verizon has learned plenty from its close relationship with government intelligence agencies. Its recent response to a FOIL (Freedom of Information Law) request in New York is almost completely composed of black ink. Full pages, three hundred of them, are redacted, with little more than headers and descriptions remaining.

As Elise Ackerman points out at Forbes, this might be a violation of the state's Freedom of Information law.

As the court ruled in a 1996 case known as Gould versus the New York City Police Department, the Freedom of Information Law imposes a broad duty on government to make records available. All government records are thus “presumptively open for public inspection” unless they fall into specific exemptions which must be “narrowly construed.”

The ruling continues: “In keeping with these settled principles, blanket exemptions for particular types of documents are inimical to the Freedom of Information Law’s policy of open government. Instead, to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents.”

The documents are currently under review to see if the redacted information falls under protections governing trade secrets. It might. A large part of what's being sought here is information that many other telcos and wireless providers would find very interesting.

In September, a group of consumer advocates interceded in a proceeding Verizon had initiated with the New York Public Service Commission to shut down its traditional network, known as the “wireline” network. The advocates were interested in reviewing documents Verizon had filed with the commission about its wireline and wireless build-outs.

Under the state Freedom of Information Law, advocates requested that Verizon provide information about the actual costs and expenses associated with the repair, upkeep and maintenance of the traditional wireline network on the resort community of Fire Island. Among other things, advocates also wanted to know the location of any planned or active offering of Verizon’s wireless Voice Link service in other parts of New York.

Verizon has redacted almost everything requested. While its claims that this information would be extremely beneficial to its competitors are undoubtedly true, that's likely not the only motivation.

Ever since Hurricane Sandy, Verizon has been extremely reluctant to restore services to prior levels. Karl Bode at DSLreports has collected story after story detailing Verizon's efforts to dodge the demands of its paying customers.

Verizon has slowly been expanding the number of Sandy victims they're informing will never see their DSL lines repaired. Fire Island, New York residents who lost service during Sandy haven't had broadband service since last October, and only recently were told that these lines simply won't be repaired…

Instead of power-outage-resilient copper voice and DSL lines, users are pushed toward Verizon's Voice Link, which offers voice service over Verizon's wireless network -- but no data connectivity of any kind.

Before capitulating in September and offering FIOS service on Fire Island (where the most service was lost), Verizon used the damage caused by Hurricane Sandy as an out to switch users to the wireless service it (along with AT&T) would rather be selling anyway -- one with both data and voice caps.

Understandably, New York residents would like to know just how much it's costing Verizon to roll out FIOS, as well as how much it's receiving in insurance payouts compared to the cost of restoring service to its previous levels. Unfortunately, it seriously looks as though these groups will never get the answers they're seeking.

But it's not just costs and insurance details that Verizon's redacting. It's also other, less sensitive, information.

Among other documents, Verizon claimed as a “trade secret” a list of Voice Link deployments, a Voice Link leader’s guide and a document about overcoming customers’ objections to Voice Link and responding to requests to return to copper.

While this may be proprietary information, there's nothing in those documents that couldn't be disseminated with a small amount of redaction. But Verizon is in no hurry to make this info public, considering it would reveal the same talking points it deployed against those behind the FOIL request.

Richard Brodsky, the lawyer representing the many groups seeking this information, claims the data requested is vital to verifying Verizon's statements concerning its decision to not repair existing copper lines.

“We believe that Verizon has substantially misstated the economic realities of both the wireline and the wireless service in order to make the wireline service seem economically damaged,” Brodsky said. “And we believe that the wireless service that they want to substitute does not give telephone consumers what they are legally required to get and what they expect.” Specifically, Brodsky said, Voice Link, which continues to be offered to customers in parts of New York and New Jersey, is voice-only, when many customers need both voice and data services.

That Verizon has a vested interest in pushing people to a service that's cheaper to build out and maintain won't have any bearing on the commission's consideration of its "trade secrets" claim. Unfortunately, in order to prevent FOI laws from becoming tools for corporations to acquire information from their rivals, the commission will probably have to side with Verizon. Verizon knows this and has been busy using the "trade secret" clause as leverage to press the state to allow it to provide even less information in response to requests than it already does.

As it stands now, Verizon will probably be able to walk away from this request with its "trade secrets" intact, much to the detriment of those who suspect the service provider is simply exploiting Hurricane Sandy to push preferred services on customers who have no choice in the matter. This allows the company to both maximize its profits by routing existing customers to a higher margin (and lower utility) service and drastically cut its outlays by allowing it to walk away from repairing damaged lines.

Filed Under: foil, freedom of information, new york, redacted
Companies: verizon

The War On Fake Reviews Ramps Up: NY Fines Companies For Fake Yelp Reviews

from the this-could-get-interesting dept

It would appear that there's finally a bit of a war on fake reviews. Just a few weeks ago, we noted how Yelp had sued a law firm for posting fake reviews. And a few days ago, NY's Attorney General announced $350,000 in fines against 19 companies for writing fake reviews.

Attorney General Eric T. Schneiderman today announced that 19 companies had agreed to cease their practice of writing fake online reviews for businesses and to pay more than $350,000 in penalties. "Operation Clean Turf," a year-long undercover investigation into the reputation management industry, the manipulation of consumer-review websites, and the practice of astroturfing, found that companies had flooded the Internet with fake consumer reviews on websites such as Yelp, Google Local, and CitySearch. In the course of the investigation, the Attorney General's office found that many of these companies used techniques to hide their identities, such as creating fake online profiles on consumer review websites and paying freelance writers from as far away as the Philippines, Bangladesh and Eastern Europe for $1 to $10 per review. By producing fake reviews, these companies violated multiple state laws against false advertising and engaged in illegal and deceptive business practices.

NY actually set up a whole sting operation, posing as a Yogurt shop in Brooklyn, asking SEO companies how to deal with negative reviews. Some of the companies offered to write up fake reviews, and suddenly NY had some targets to investigate. While many of the companies NY went after were SEO/digital marketing companies, some were the companies who hired astroturfers themselves (and the NY AG even calls them astroturfers). This includes US Coachways, a big charter bus company and Laser Cosmetica, a laser hair removal place in the NYC area.

Given just how frequently astroturfing seems to happen these days, it could be interesting to see if there's a bigger crackdown by consumer protection agencies, arguing that astroturfing is a form of false advertising. Still, as some are pointing out, there are many reasons for fake reviews that have nothing to do with a business paying people to write them good reviews -- and that's why fake reviews may be difficult to really stop.

Filed Under: astroturfing, fake reviews, new york
Companies: yelp

District Attorney And Major TV Network Sued Over Stupid Reality Show

from the campaigning-through-reality dept

The most tragically stupid decision was greenlighting a reality show about lawyers. No one cares about watching real-life lawyering. That’s why Nancy Grace exists — to boil salacious cases down to sound bites so viewers don’t have to watch real lawyers.

But almost as stupid was greenlighting a show about a district attorney on the eve of an election and not expecting to run afoul of campaign finance laws.

Imagine running against an incumbent armed with a glossy, major network reality show constantly hyping his effectiveness in office. In the context of a district attorney election, imagine having to run against Adam Schiff after everyone watched a Law & Order marathon.

If that seems unfair, one challenger agrees with you…

The Kings County D.A. election is coming up in September. Well, technically, the Democratic primary is coming up in September, but this is Brooklyn, so that’s really the only election that matters — the Democratic nominee got 99.98% of the vote in the general last time.

Incumbent Charles Hynes is set to star as a real-life Adam Schiff in the upcoming CBS reality show, “Brooklyn D.A.” Basically, watch Cops and then this show and you’ve made yourself a crass, exploitative, reality show version of Law & Order. Since half of the “stars” of this new reality show — based on the tip of Long Island — will be defendants facing time in the state pen, it brings new meaning to being “voted off the island.” It’s kind of “Survivor: Borough Hall”

The show is described in CBS press materials thusly:

“Created by veteran CBS News producer Patti Aronofsky, ‘Brooklyn D.A.’ follows the men and women of the Kings County District Attorney’s Office as they juggle more than 1,000 cases a week,” a press release states. “These hard-charging prosecutors have larger-than-life personalities both inside the courtroom and out. They’re eccentric and living right on the edge. They’re the people living the lives that Hollywood loves to write about.”

Well, that sounds gag-inducing. The promise of “larger-than-life personalities” is going to flop when the audience has to watch 40 minutes of jury selection.

Challenger Abe George does not like it one bit. He’s sued Hynes, the Hynes campaign committee, and CBS in New York County Supreme Court. Hynes is already preparing the “Abe George doesn’t even trust Kings County courts for his own lawsuits — how can we trust him as Kings County D.A.?” ad. George argues that the series is an improper gift to Hynes, granting him free advertising on a major network in advance of the election.

CBS countered:

CBS News spokeswoman Sonya McNair told Courthouse News that George should brush up on the Bill of Rights.

“We are surprised that this candidate would not know about the First Amendment,” McNair said in a statement. “This is obviously a publicity push by a politician.”

This is a poor PR move. The snarky tone and derisive statements about George as a candidate don’t do CBS any favors in a lawsuit where the network is trying to prove that they are NOT willing cheerleaders for the Hynes campaign.

Speaking of poor PR decisions, according to the complaint, Hynes described the impact of the show on the election to Reuters, saying, “if they couldn’t take me out then, boy, you’ll never take me out now.” *Facepalm*

CBS argues that the program is a news documentary and therefore escapes NY campaign finance laws that might apply if the program were a reality show produced for entertainment. And CBS has carefully marketed the show as a news program:

George claims that reply was disingenuous, given how CBS marketed the show on March 27.

“A new reality show will give us an inside look into the Brooklyn District Attorney’s Office,” the press release stated, according to the complaint.

“CBS also expressly categorized its announcement on the website under ‘Entertainment.’ This website is still available as of the date of this complaint.

*Double facepalm*

CBS and Hynes may still be able to escape NY campaign finance laws based on Citizens United, which set the table for invalidating the journalistic exception in the new corporate free-for-all of electioneering. If drawing lines between media corporations and regular corporations violates equal protection, then CBS is free to campaign all it wants for Hynes.

And if that’s the case, might I suggest CBS can get started on a reality show following newly announced NYC mayoral candidate Anthony Weiner. They can call it, “Look At My Weiner.”

District Attorney Candidate Claims Incumbent’s ‘Reality Show’ Is a Gift [Courthouse News Service]
Campaigning as the Press: Citizens United and the Problem of Press Exemptions in Law [Nexus]

More stories from Above The Law

• How A Tech Giant Proposes To Charge You For Having Friends
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• Paranoid Attorneys Ask Prudence For Advice

Filed Under: campaigns, new york, reality tv

Bloomberg Defends Stop-And-Frisk, Decries Critics 'Pointing Fingers From City Hall' By Pointing Fingers From NYPD Headquarters

from the pot-decries-kettles'-blackness;-NYPD-books-same,-citing-'public-blacknes dept

Everything questionable that Bloomberg has overseen in his position as mayor of New York -- all the civil rights violations, all the increased surveillance, all the the dubious actions and policies that sent the message that Bloomberg was very interested in crafting a hybrid nanny/police state -- is coming home to roost.

With the police force under attack from multiple lawsuits and his soda ban overturned by a NY judge for being "arbitrary and capricious" (name a ban that isn't), Bloomberg is on the defensive -- and he sounds it. Rather than addressing concerns with thoughtful answers, the mayor has decided to respond by lashing out at his critics and backing up his dubious claims with even worse rationale.

Bloomberg pointed fingers and threw out the obligatory 9/11 card during his speech/diatribe delivered from the friendly confines of the NYPD headquarters. Bloomberg's comments hold everyone accountable for the current unpleasantness (and future theoretic unpleasantness) -- everyone but Bloomberg and the NYPD. The arguments Bloomberg uses are so abysmal it's almost possible to believe this is a very broadly played satire, rather than an actual event that actually happened. Just take a look at this statement.

“God forbid terrorists succeed in striking our city because of a politically driven law that undermines the N.Y.P.D.’s intelligence gathering efforts,” he said.

"Terrorists." "God forbid." Someone needs to find a new rhetorical device.

Believe it or not, this is Bloomberg's argument against appointing an independent Inspector General to review police policies. The argument has two parts, both equally awful. The first uses the tired "but terrorism" threat/excuse/cliche. The second part actually makes the claim that an Inspector General would result in other agencies being less willing to share info with the NYPD. That may be true, but why is it true and why is this an "acceptable" truth? To put it in words frequently directed towards US citizens: what do they have to hide?

Bloomberg's words play to the home crowd (NYPD) , but holy shit is that an ugly bit of truth to (inadvertently) drop in the middle of a loaded sentence. If NYPD intelligence gathering is "undermined" by the presence of independent oversight, the problem is with the NYPD and every agency that decideds to cut them out of the loop, willfully endangering the public in favor of CYA opacity.

Bloomberg said more, but this statement is just terrible. It indicates there's an acceptable level of corruption within the police force and that the mayor has no interest in addressing that issue. Everything else becomes so much banality aimed at satiating his audience, a collection of NYPD police chiefs. There's terrorism (again):

“Look at what’s happened in Boston,” Mr. Bloomberg said. “Remember what happened here on 9/11. Remember all of those who’ve been killed by gun violence and the families they left behind.”

OK. And what? Honor their memories by giving the police carte blanche to shove any citizen up against the nearest wall and pat them down? Cover every inch of the city with cameras, microphones and facial recognition software in hopes of "preventing" a statistically anomalous event (and proclaiming victory when the more statistically probable nothing continues to happen)?

To top this all off, Bloomberg steps past the empty rhetoric and defense of shady police "business as usual" to hypocritically deride others for "playing politics with people's lives."

“The attacks most often come from those who play no constructive role in keeping our city safe, but rather, view their jobs as pointing fingers from the steps of City Hall,” he said.

Said the man who is City Hall, pointing fingers from NYPD headquarters.

Bloomberg's statements are ugly, but at least they were delivered out in the open, rather than in a closed-door meeting with the "home team." All of Bloomberg's finger pointing and cheap rationale is a matter of public record. This is a small, inadvertent, victory. Bloomberg wants his constituents' lives to be open books, but wants the NYPD to remain an inscrutable, unassailable means of enforcement and "security." That's a load of crap and Bloomberg seems to be having trouble shoveling it correctly. If he keeps feeling this sort of heat, we may see him slipping into full blown opacity or devolving even further into a ranting apologist for systemic failure.

Filed Under: new york, nypd, stop and frisk, surveillance

New York State Starts Walking Back On Transparency; Grants Gun Owners Exemption From Disclosure Of Public Records

from the first,-they-came-for-my-interactive-map... dept

The backlash against the publication of gun owner data by the Lower Hudson Journal News late last month has turned into a backlash against "freedom of information" laws. Putnam County officials started this regressive ball rolling by refusing to comply with the Journal News' request, breaking a state law in the process. No matter, Sen. Greg Ball was there to share the limelight and offer to rewrite the state law to limit gun owner date to prosecutors and law enforcement.

As was noted then, making exceptions to freedom of information requests on the basis of public outcry is a giant step in the wrong direction. Holding back public records or granting disclosure exceptions simply because the information might be used in an unpleasant way just makes it easier to make more exceptions and withhold more information down the road. This is the direction the state of New York is now headed with the passage of its gun control bill, the NY SAFE Act of 2013, an exemption for gun owners that flies in the face of Governor Cuomo's earlier transparency promises.

Last week, New York Governor Andrew Cuomo laid out an ambitious open government agenda in his state of the state address, declaring his commitment to provide "easy, single-stop access to statewide and agency-level data, reports, statistics, compilations and information." This week he carved out his first exemption: gun owners.

The anonymity exemption, which requires gun owners to provide a reason they wish to remain out of the public record, is a response to the controversy that followed the Journal News' publication last month of the names and addresses of over 33 thousand hand gun permit holders in Rockland and Westchester counties, north of New York City.

The problems with this exemption are obvious. If one set of individuals can effectively "opt out," what's to stop others from claiming they too should be exempted?

"It sets a dangerous precedent," says Noel Hidalgo, Code for America's New York Program Manager, "where special interest groups can exempt their communities." If firearm owners can create an exemption from public disclosure, than why couldn't licensed livery car drivers, healthcare workers, sellers of pesticide or lawyers?

For that matter, what's to stop those in power from crafting even broader exemptions for favored lobbying groups, colleagues or for any other data they wish to keep hidden from the public? It's not so much that this exemption is a slippery slope -- that slope has long since been descended -- it's that placing arbitrary limitations on requested data, especially in response to an isolated incident, compounds an existent problem: the ongoing lack of transparency in many government agencies.

Even worse, there were better ways to handle the gun owner data that would not have required altering existing laws by adding an exploitable exemption:

"Some of the concern with the Journal News dataset is the fact that they put an individual's name and address with a gun," says Hidalgo. According to him, listing gun permit holders by name and zip code or census tract could better satisfy the competing demands the personal privacy and public disclosure, than simply exempting data from public record.

The law gives gun owners a chance to opt out using one of two reasons: belief that publication of their data would put their life at risk (police officers, former witnesses/jurors in criminal cases, etc.) or the wish to avoid "unwarranted harassment." Bob Freeman, the executive director of New York's Committee on Open Government, says this wording is way too vague.

"We're all involved in 'unwarranted harassment' every day of our lives," he continues, referring to his full e-mail box in the morning, and unsolicited calls from journalists as potential examples.

Meanwhile, Sen. Greg Ball's legislation is still in motion, looking to exempt pistol purchasers from FOI disclosure. Those registering for a pistol permit will be automatically opted-in under his proposal. Ball lays part of the blame on modern technology, suggesting that if the information were only a bit harder to attach to a Google map, he'd leave the law unchanged.

When initially established the Freedom of Information Law couldn't possibly be written to factor in modern technology including social media tools (Twitter, Facebook, etc) or advanced mapping technologies like Google Maps. These social media advancements emerged as commonplace tools to access personal information after many public information laws were passed. The advent of the Internet must be considered when working to ensure every citizen of New York has both their privacy and safety protected, guaranteed by law.

Like many lawmakers, Ball only wants to update laws to reflect the "advent of the internet" when it aligns with his agenda. We've seen resistance to update laws that operate favorably for those benefitting from the lack of timeliness, including outdated gems like the Computer Fraud and Abuse Act or various copyright laws that proponents want stretched past their expiration date in order to treat file sharing like selling bootleg DVDs out of the trunk of a car. Ball's desired update of the FOI law isn't about reflecting the current reality; it's political opportunism that dovetails nicely into the government's natural tendency towards opacity.

The state of New York has taken several steps in the right direction in terms of transparency. Now it's allowing the prevailing winds to push it a step back.

UPDATE(S):

Some last-minute additions, tacked on to the bottom, as this post has already been "put to bed," as they say in places where ink still hits paper.

The Lower Hudson Journal News has decided to take down its "gun map," claiming that it wished to follow the "spirit" of the newly-passed NYSAFE gun law exemptions. Here's the paper's full statement:

With the passage this week of the NYSAFE gun law, which allows permit holders to request their names and addresses be removed from the public record, we decided to remove the gun permit data from lohud.com at 5 pm today.

While the new law does not require us to remove the data, we believe that doing so complies with its spirit. For the past four weeks, there has been vigorous debate over our publication of the permit data, which has been viewed nearly 1.2 million times by readers. One of our core missions as a newspaper is to empower our readers with as much information as possible on the critical issues they face, and guns have certainly become a top issue since the massacre in nearby Newtown, Conn. Sharing as much public information as possible provides our readers with the ability to contribute to the discussion, in any way they wish, on how to make their communities safer.

We remain committed to our mission of providing the critical public service of championing free speech and open records.

And, from the if-you-don't-have-time-to-do-it-right,-how-will-you-find-time-to-do-it-twice department, the rushed NYSAFE bill failed to include exemptions for law enforcement.

A New York lawmaker says that the state’s recently passed gun control law stunningly fails to include any exemptions for law enforcement officers, and technically prohibits police from ever bringing guns on school grounds or possessing extended ammo magazines.

Of course, no one really has to do it twice. A Cuomo spokesman has already verbally exempted police officers from the new law, allowing it to join the many other laws police officers are free to ignore. (Jab!) Presumably, amended language will join the rest of the passed bill early next week. 

Filed Under: gun control, guns, new york, transparency

Developer Of Bookmaking Software Gets Full Kim Dotcom Treatment For 'Promoting Gambling'

from the ridiculous dept

The government's war on online gambling is really ridiculous in a variety of ways. Initially, it was driven by a weird mix of moralist groups, backed by offline casinos who didn't want the competition -- all leading to a bill that effectively (through convoluted means) banned online gambling as a part of a law to protect our ports. The casinos are now regretting their initial support for this law, because they want to get into the online gambling world themselves. But the law is in place, and US (both federal and state) law enforcement has supported it and related laws with ridiculous fervor; arresting execs of off-shore gambling sites and even execs of financial institutions that provide payment systems for online gambling sites. As with the over-aggressive enforcement of copyright law, the Justice Department has also seized many websites, sometimes even seizing the wrong websites.

However, this latest story shows just how ridiculous some of these efforts are, and just how far they can go in creating chilling effects. It's the story of the arrest and criminal charges against Robert Stuart, his wife and his brother-in-law for the work they did for their company, Extension Software. The company provides infrastructure to companies that do sports bookmaking, but they were careful to only license the software to companies in countries where such things are legal.

For their troubles they got "the full Kim Dotcom treatment" according to a writeup in Wired:

The case began in February 2011, when Stuart says he and his wife got the Kim Dotcom treatment after about 30 local Arizona law enforcement agents wearing SWAT gear and camouflage dress — some of them with bushes attached to their shoulders to blend into the woods around his house — descended on his home and threatened to send him and his wife to prison for 35 years if he didn’t cooperate.

The search warrant used in the raid said Stuart and his wife were engaged in money laundering, operating an illegal enterprise and engaging in the promotion of gambling. Stuart has tried to obtain a copy of the affidavit used to get the search warrant, but it’s currently sealed.

Yup. They sent in a SWAT team to deal with... a software developer. Because some companies who use his software might possibly have used it to allow gambling in New York (the state that's behind the charges against him). And the warrant itself is sealed, so he doesn't even know why. Then the story gets even worse. In typical law enforcement fashion, they pressured him into doing a plea deal, in which he would have been forced to install backdoor code into his software, and then hack into his own customers to retrieve information on their users any time law enforcement wanted it. He initially agreed to the plea bargain based on bad advice from what he calls "rent-a-lawyers" he found on the internet. However, before it could go before a judge, he wisely backed out.

The NY's DA has defended this effort claiming that it was all perfectly aboveboard and legal to send a SWAT team to threaten a software developer into hacking into his own customers' data for the sake of law enforcement:

Although Daniel R. Alonso, chief assistant in the Manhattan District Attorney’s Office, was reluctant to discuss the terms of the confidential plea agreement or how his office planned to implement them, he insisted there was nothing unlawful about what was proposed.

“The provision you have questioned is perfectly consistent with the obligations of all law enforcement officials to follow state and federal law to secure evidence of criminal conduct,” Alonso said in an e-mail statement. “The staff of the Manhattan District Attorney’s office involved in this case, both prosecutors and investigators, have behaved ethically and consistent with their obligation to seek justice in every case.”

Eighteen months went by... and then last fall he was criminally indicted -- though all of the original charges used in his initial threat had disappeared (because they were bogus) and all the NY DA could come up with was a single charge of "promoting gambling in the first degree." Yes, because he supplies software in places where it's completely legal.

If you think secondary liability issues are important (and I do!), this case should be a major concern. The guy here just developed some useful software and sold it where it was legal to do so. That should not lead to a SWAT team descending on your house, or facing criminal charges and possible jail time. Blame the users of the software if they broke the law, but nothing that these guys did involved "promoting gambling" in areas where it was illegal. It was about providing legal infrastructure (not promotional) software. The whole thing is a shame, and shows how law enforcement's aggressiveness in trying to show themselves as being "tough on crime" can have serious implications.

Stuart notes that he's lost a bunch of his customers since the indictment, which may destroy his business entirely. And this can only lead to greater concern for other software developers as well. If they license software for completely legal purposes, but the software is then used in commission of a crime, are they suddenly (1) going to be threatened at gunpoint to hack into their customers' accounts and (2) then charged on trumped up charges as well?

Filed Under: casinos, gambling, hacking, law enforcement, new york, robert stuart, secondary liability, software development, sports bookmaking
Companies: extension software