Court Says Portland, Oregon City Government Can No Longer Screw Public Records Requesters With Excessive Fees

from the gently-reminding-the-public-who's-paying-whose-salary dept

It's a small win for the plaintiff -- probably less than $100 in total -- but it's a bigger win for the residents of Portland, Oregon. The Multnomah County Court says the city has been routinely overcharging public records requesters for fulfilling routine public records requests. (via Merrick Law, LLC)

The brief ruling [PDF] contains enough detail to show how city employees inflated costs they passed on to requesters who were made to pay up front before document searches would commence. In this case, the requester (Alan Kessler) sought metadata from four government email accounts. The city first gave him an estimate of $205.61, based on an estimated two hours of search and prep time with a 39% markup for "overhead costs."

As the court notes, the city admitted the overhead costs collected rarely went to cover employee overhead. On top of that, the hourly rate used was calculated using the hourly wages of the employees performing the search. This sounds reasonable, but it actually isn't. In this case, the search was performed by two of the city's higher-paid employees, both of whom appear to be overqualified for the work they'd been tasked to do.

Mike Nichols, an Information Systems Technical Analyst V, conducted the search of relevant email accounts. The City's estimate for Nichols wage rate was $78.15 per hour. This rate was incorrect. The actual wage rale plus 39% should have been $66.09 per hour. Nichols' actual time billed for the search was 1.25 hours. Nichols' time record attributed 1 hour to the search.

[...]

Paul Rothi, the City Enterprise Architect Manager, conducted the oversight and record keeping at a rate of $91.92 per hour for 0.5 hours, Rothi's records show the time he billed to plaintiff's request totaled 37 minutes, rather than 30.

Once this search was completed, it was handed off to a third person. This person, the city's Public Records Coordinator, did everything but coordinate public records once she received the request. First, she added another 2.5 hours to the estimate, raising the cost by $106. Then she devoted her partial attention to it over the next month while suffering an illness, attending a funeral, and spending six days covering someone else's job.

As the court notes, this estimate process has almost nothing to do with actual costs and artificially inflates them by handing the job over to some of the city's highest-paid employees.

Here, the City presented testimony and evidence of the hourly rates (including the 39% mark-up for benefits) for two employees involved in responding to plaintiff's public records request along with the City's fee schedule established by City ordinance. The City also presented testimony that no study had been done relating to the fees charged by the Bureau of Technology Services, rather the City occasionally brought in consultants to review rates and overhead costs.

Rothi testified that when preparing an estimate for a public records requester, he prepared a "worst case" estimate. Rothi and Nichols are two highly paid members of the BTS department. The City presented no evidence of the rates charged for other members of the department who may have been available to conduct the records search. The City presented no evidence of the rates charged for Baribeau's records review.

The city argued this was okay because it gave refunds to requesters who had been overcharged. But the court points out that there's actually no mechanism in place to challenge fee assessments or demand refunds. Requesters just have to hope the city is being honest in its assessment of costs and that they will see a refund check if the city decides it has overcharged a requester.

Since this request resulted in litigation, there's no reason to believe the city reviews request fees it has collected and issues refunds voluntarily. The plaintiff was refunded $52.00, but this happened more than a month after he filed his lawsuit. That appears to have been the motivating factor.

That's not nearly good enough, the court says. The city needs to change the way it assesses fees and handles refunds. The order gives the city a list of things to correct while blocking it from overcharging for routine document searches in the future.

The City's current method for determining fees for routine email and document search, including providing a "worst case estimate" IS NOT reasonably calculated to reimburse it for its actual cost of making the records available and results in overcharging the public records requester without providing a method to refund of any overcharges.

The City is hereby enjoined from charging excessive fees for routine email and document searches.

The City must recalculate the time spent responding to Plaintiff's public records request at the lowest hourly rate charged by any department personnel who could be responsible for responding to public records requests, plus any overhead factor, and refund Plaintiff the difference, if any, over and above the $52.00 already refunded to Plaintiff.

The city is also responsible for part of the requester's legal fees since he partially prevailed in his lawsuit. The final total won't be in the thousands of dollars, but this small win for Kessler is a bigger win for other Oregonians. The city can't continue to hand public records work to people at the top end of the wage scale and assume that follows the spirit and letter of the law.

Excessive fees deter requesters -- something that only benefits governments opposed to accountability and transparency. Deterrence may not have been the goal here, but it's a fortunate side effect. Now that option is gone, at least for public records requests determined to be "routine."

Filed Under: excessive fees, foia, journalism, oregon, portland, public records, transparency

Judge Says The FBI Can't Keep Refusing To Confirm Or Deny The Existence Of Social Media Monitoring Documents

from the that-thing-we're-all-doing...-we-can't-really-say-we're-doing-it dept

The ACLU is one step closer to obtaining documents detailing the FBI's use of social media monitoring tools. The FBI replied to the ACLU's FOIA request with a Glomar and a denial.

First, it neither confirmed nor denied it had responsive records. Then it said even if it did have some, it still wouldn't release them. According to the FBI, releasing documents about the government's well-known use of social media monitoring software would somehow allow criminals to take a peek at super-secret law enforcement tools. It made these assertions despite the fact it publicly secured contracts for social media monitoring tools.

The ACLU sued. And now, it's obtained at least a partial victory. The court says it's not quite accurate to say the DOJ has already publicly acknowledged use of social media monitoring tools. Citing the ACLU's victory in an FOIA lawsuit over drone strike documents, the court points out the bar to clear first is whether it can be said the DOJ -- not the FBI -- has made it clear it's in the social media monitoring business. From the decision [PDF]:

[ACLU v. CIA] does not suggest that the known use of a technique by one agency creates public knowledge of use by a different agency, unless it is publicly known that the agency’s parent agency utilizes that technique. Here, the FBI’s parent agency is the Department of Justice, and the ACLU presents no evidence that it is publicly known that the Department of Justice utilizes the social media monitoring techniques in question.

But that's not the end of the discussion. The FBI works with several other federal agencies and the documents requested would cover any secondhand use of monitoring tools. So, is it public knowledge other federal agencies engage in social media monitoring?

Given the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI. The ACLU presents extensive evidence that the Department of Homeland Security (“DHS”), U.S. Customs and Border Patrol (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and the Department of State (“DOS”) engage in social media monitoring.

Following this are six straight pages detailing these agencies and their monitoring programs, all of which have previously been discussed publicly. But that still isn't enough.

[T]he Court finds that the weight of authority suggests that the ACLU cannot seek disclosure of the FBI’s policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI.

If this seems to be going the government's way, it actually isn't. The Glomar and the attached exemption don't pair as well as the government would like. The Glomar, at least, is a step too far in the direction of unjustified opacity.

The problem for Defendants is that disclosure of social media surveillance—a well known general technique—would not reveal the specific means of surveillance. Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations. Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI.

The government then argued denying a Glomar might expose the FBI's lack of social media monitoring. The court says the FBI can't have its Glomar and its FOIA exemption if it wants to make that argument.

[T]he language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of “risk of circumvention” of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant’s negative inference argument is cognizable under Exemption 7(E).

In the end, it's the level of perceived harm that gives the ACLU a shot at obtaining these records. The FBI and DOJ claim any release of info would result in criminal mayhem due to criminals suddenly being made aware of the existence of social media monitoring programs. The court says that's just not going to happen.

[T]he risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts. First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.

This kills the FBI's Glomar. It will now have to at least confirm or deny it has records relevant to the ACLU's request. And once it's done that, it can start arguing about whether or not it can use Exemption 7(e) to keep them out of the ACLU's hands. Given the previous paragraph, it's difficult to see how the FBI can possibly justify a refusal to release any of the documents it may (or may not lol) have on hand. Social media monitoring efforts are well-known in the public and private sectors. If the FBI is doing something new and interesting with this, it might have a point. But if it's just doing the same thing other agencies are doing, it really can't justify rejecting this request.

Filed Under: doj, fbi, foia, glomar, social media monitoring, transparency

A Decade Later, AT&T Pays A Pittance For Lying About Its Unlimited Data Plans

from the ill-communication dept

Back in 2014 the FTC sued AT&T for selling "unlimited" wireless data plans with very real and annoying limits. The lawsuit noted that starting in 2011, AT&T began selling "unlimited" plans that actually throttled upwards of 90 percent of your downstream speeds after using just two or three gigabytes of data. AT&T spent years trying to wiggle out of the lawsuit via a variety of legal gymnastics, including at one point trying to claim that the very same net neutrality and FCC Title II rules AT&T was trying to kill prevented the FTC from holding it accountable.

Nearly a decade after AT&T's molestation of the dictionary began, the company has finally agreed to a $60 million settlement with the FTC without actually admitting any wrongdoing. That $60 million, after lawyers get a cut, will be split among millions of customers who signed up for AT&T unlimited data plans before 2011. Moving forward, AT&T also has to clearly disclose any limits on its "unlimited data plans" in a conspicuous manner (read: not hidden via fine print or embedded in a hyperlinked asterisk).

For a company that pulled down $46 billion in revenues in the last three months that's not much of a penalty. And because the FTC's ability to rein in telecoms is restricted only to policing offenses that are very clearly "unfair and deceptive" under the FTC act, AT&T is, of course, still imposing all manner of restrictions on its unlimited data plans, it's just being marginally more clever about it. For example. AT&T's latest "unlimited" plans, released just last month, include all manner of restrictions on how you can use them and how much bandwidth you can use, AT&T's just marginally more up front about it.

The problem is the government has been doling out wrist slaps on this subject for the better part of a decade without much to show for it. New York's Attorney General forced Verizon to dole out $100 million in refunds as long ago as 2007 in a bid to get the company to stop lying. Fast forward to 2019, and Verizon's still selling unlimited data plans with limits; in fact it now charges its unlimited data users extra if they want to actually view movies in HD. Sprint has also experimented with throttling video, music, and games on its unlimited data plans unless you pony up more cash.

Regulators have generally looked the other way while carriers use their dominance to impose arbitrary nickel-and-diming limits. But because they inform users of the restrictions in a 400 page EULA, the FTC lacks the authority to really crack down on the behavior (assuming it had the resources or bandwidth to even do so in the first place) because it's not crystal clear they're being "unfair and deceptive." The FTC's Rohit Chopra issued a statement making it clear that a lack of competition is the primary culprit here:

"AT&T’s bait-and-switch scam is a good window into the many harms that result from dominant companies operating without the discipline of meaningful competition,” he said. ”Their market power, financial resources, and one-sided information gives them license to ignore their own contractual obligations while aggressively enforcing every little clause in the fine print."

This sort of stuff is only going to get worse. While the FTC's authority is limited, the FCC was built from the ground up to hold telecoms accountable. But the FCC's recent decision to self-immolate at lobbyist request not only gutted net neutrality, it eliminated much of this authority over ISPs. It also eliminated transparency rules requiring ISPs be transparent about the types of connections they're selling. Eroding the FCC's power and shoveling oversight to a resource and authority constrained FTC was always the entire point of the gambit, something many folks still don't seem to understand.

In other words, unless states get involved (unlikely in more than half of them given AT&T's immense regional lobbying power), there's really not much stopping ISPs from misleading consumers about the type of connections they're buying, proving they're just modestly clever about it. And with the looming T-Mobile Sprint merger eroding 25% of existing competition, there's less incentive to compete on price or much of anything else. Guess what happens when you combine lobbyist-neutered regulatory oversight with limited competition?

Filed Under: competition, false advertising, ftc, settlement, transparency, unlimited, wrist slap
Companies: at&t

Caifornia Governor Vetoes Law That Would Have Mandated Retention Of State Government Emails

from the passing-the-savings-on-to-you! dept

California Governor Gavin Newsom has signed off on some significant wins for state residents. He approved a bill banning the use of facial recognition tech in law enforcement body cameras -- the first such statewide ban in the United States. Well… I guess that's it really. To be fair, he hasn't been in office all that long.

He also signed off on a mostly-worthless police use of force reform bill and Hancocked a bill that will prevent "hollowing out the middle class" by hollowing out the middle class -- namely, freelance writers who will find it almost impossible to make a living under the state's gig economy law.

To sum up, Governor Newsom may be doing more harm than good this year. Let's hope things improve. One week after signing a bill that would eliminate (some) excessive public record duplication fees by allowing residents to take pictures of documents with their cellphones (rather than pay a public servant an exorbitant amount of money to run a copier), Newsom has restored a bit more opacity to the halls of power. Matthew Keys has the details:

California Gov. Gavin Newsom vetoed a measure last weekend that would have required local governments to preserve copies of email records for disclosure under the state’s public records law.

The measure, Assembly Bill 1184, would have required local and state agencies to preserve communications sent by email for at least two years so that members of the public may inspect and copy them.

California government agencies have been arguing for years now that emails are not subject to the state's two-year retention period. Since they're not going to voluntarily retain records that many residents would certainly consider to be public records, the bill would have erased the faux confusion over government agency emails.

Instead of providing clarity, Governor Newsom went the other way, leaving it to individuals at individual agencies to make personal judgment calls on email retention… all in the interest of "striking a balance."

Expressing concern for the taxpayers he just screwed out of records, Newsom claims email retention is cost prohibitive.

Gov. Newsom said he was concerned that codifying a preservation requirement for email could require additional personnel and data management policies, the costs of which would be passed on to taxpayers.

But of course taxpayers would be expected to absorb the costs. This much taxpayers understand. They fund the agencies creating the records. They fund public records response efforts. They fund the creation of these emails -- the ones the governor has now decided they can't have access to.

With this veto, agencies have the official blessing to delete emails whenever they feel like it. They can alter policies and practices to ensure as many emails as possible are destroyed, putting them permanently out of reach. Transparency and accountability are great... but maybe they're just too expensive? This isn't logic. It's post hoc rationalization by a governor who's decided there should be a bit more distance between the government and governed.

Filed Under: california, emails, foia, gavin newsom, retention, transparency

More Than 50 Federal Watchdogs Sign Letter Condemning OLC Decision That Allows White House Counsel To Unilaterally Block Whistleblower Reports

from the administration-consolidating-power dept

The whistleblower report implicating President Trump in a quid pro quo exchange of US military aid for promises to investigate a political rival has been very illustrative of the dangers of whistleblowing. Laws and policies mean next to nothing when the proper channels are willing to bury reports and possibly the reporter.

The president himself has called for the whistleblower to be unmasked. The Office of the Director of National Intelligence unilaterally decided this whistleblower report didn't need to go any further than its unfriendly confines. This decision was made despite the allegations containing matters of "urgent concern:" foreign interference in a US election.

The ODNI got the back up it needed from the White House. The Office of Legal Counsel sided with the administration and claimed the content of Trump's call with Ukraine president Volodymyr Zelensky wasn't "concerning" enough to be forwarded to Congressional oversight by the ODNI.

The Inspectors (plural) General disagree. A letter [PDF] sent to the Office of Legal Counsel -- signed by more than 50 IGs from dozens of federal agencies, including the DOJ, NSA, CIA, and State Department -- says the OLC's opinion is not only wrong but potentially seriously damaging.

We… share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct. Whistleblowers play an essential public service in coming forward with such information, and they should never suffer reprisal or even the threat of reprisal for doing so.

How does the OLC's opinion make things more dangerous for whistleblowers? By taking away the IG's authority to independently review complaints containing "urgent concerns" and forward those to Congress if they involve members of the Executive Branch. The OLC wants to place itself between the IG and Congress, and to make the final call on whistleblower reports, which shifts all the power to the Executive Branch and makes it highly unlikely anything targeting White House officials will ever make its way into the hands of Congressional oversight.

It would be wholly inconsistent with the IG Act, and undermine IG independence, if the agency head – instead of forwarding the IG’s concerns to Congress as the law requires – sought OLC’s advice so that OLC could consider, and then potentially secondguess, the IG’s determination (a) that the problem, abuse, or deficiency was a “serious” or “flagrant” one, or (b) that it related to the administration of agency programs and operations.

The letter points out allowing the OLC's determination to stand creates a closed loop where the Executive Branch polices itself. This was undoubtedly the OLC's intention because it's highly unlikely it simply made a mistake of law.

In this matter, OLC did not find that production to Congress was limited due to a valid constitutional concern. Rather, OLC substituted its judgment and reversed a determination the statute specifically entrusted to the ICIG because of its independence, objectivity, and expertise to credibly assess the information. [...] Further, the opinion potentially creates space for agency heads across government to make their own determinations related to IG jurisdiction or reporting. Such a result would be contrary to IG independence and congressional intent in requiring IGs to maintain independent legal counsel and may impede the ability of Congress and taxpayers to obtain the objective and independent oversight they rely on from IGs.

When the most powerful part of the government becomes a law unto itself, everyone loses.

[T]his concern is not limited to the intelligence community but will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong.

If this had only been signed by a couple of IGs who worked regularly with the ODNI, it might have been easy to write this off as the efforts of a few aggrieved watchdogs whose toes had been stepped on. But it's signed by IGs from all over the federal government, indicating that almost everyone this OLC opinion effects disagrees with it. If it stands, whistleblowing will become more difficult than it already is. When the power shifts in DC, it won't improve things for whistleblowers. It will only change the party affiliation of the administration benefiting from this decision.

Filed Under: congress, inspectors general, odni, olc, transparency, whistleblowers, whistleblowing

Anti-Safe Space Crusader Bret Stephens Apparently Needs A Safe Space: Backs Out Of Bedbug Debate

from the i-thought-bedbugs-were-reslient,-not-melty-little-snowflakes dept

IN 2017, NY Times columnist Bret Stephens gave a commencement address at Hampden-Sydney College that he then repurposed as one of his NY Times columns entitled: "Leave Your Safe Spaces." The entire theme was that college students are way too soft intellectually, and they've been coddled and are too afraid to debate difficult and dangerous ideas. He mocks the concept of safe spaces, and suggests that it diminishes ones ability to truly seek the truth. Near the end, it states:

So here’s my advice to you: Get out of your own safe spaces. Define what your intellectual comfort zone is — and leave it. Enhance your tolerance for discordant voices. Narrow your criteria for what’s beyond the pale. Read the authors or watch the talking heads with whom you disagree. Treat those disagreements as a whetting stone to sharpen your own arguments. Resist the temptation to call people names.

And then it concludes:

Safe spaces, physical and intellectual, are for children. You are grown-ups now. If your diplomas mean anything, it’s that it is time you leave those spaces behind forever.

And last year, he wrote a column (which was also actually a speech given at a university) entitled "Free Speech and the Necessity of Discomfort", which concludes:

As each side gathers round in their respective echo chambers and social media silos, the purpose of free speech has become increasingly more obscure.

Its purpose isn’t, or isn’t merely, to allow us to hear our own voices, or the voices of those with whom we already agree. It is also to hear what other people, with other views, often anathema to ours, have to say.

To hear such speech may make us uncomfortable. As well it should. Discomfort is not injury. An intellectual provocation is not a physical assault. It’s a stimulus. Over time, it can improve our own arguments, and sometimes even change our minds.

In either case, it’s hard to see how we can’t benefit from it, if we choose to do so. Make that choice. Democracy is enriched if you do. So are you.

He also wrote a column that was also a speech, entitled "The Dying Art of Disagreement", which also whines about kids at universities being unwilling to debate those they disagree with.

So here’s where we stand: Intelligent disagreement is the lifeblood of any thriving society. Yet we in the United States are raising a younger generation who have never been taught either the how or the why of disagreement, and who seem to think that free speech is a one-way right: Namely, their right to disinvite, shout down or abuse anyone they dislike, lest they run the risk of listening to that person — or even allowing someone else to listen. The results are evident in the parlous state of our universities, and the frayed edges of our democracies.

By now you should get a sense of Stephens' general style. Those crazy universities with their safe spaces and unwillingness to debate difficult ideas in the light of day.

Of course, we all know that Stephens is a bit hypocritical in all of that. Back in August, somewhat famously, he turned a little-noticed jokey tweet from media professor David Karpf that suggested bedbugs at the NY Times offices were "a metaphor" for Bret Stephens, into a massive phenomenon, by first misunderstanding the tweet, and then getting so worked up and angry about it that he not only emailed the professor, but also emailed the professor's boss in an obvious attempt to intimidate him. It soon came out that he'd done similar things to others as well. Stephens then made things even worse by thinking he was clever in subtly comparing Karpf to the Nazis in his NYT column, which accidentally revealed that he'd just done a Google Book search of "jews as bedbugs" and then twisted the results to pretend that it was common for Nazis to call jews bedbugs.

When Karpf was on our podcast he revealed that Stephens had actually agreed to go to come to George Washington University (where Karpf is a professor) and debate the whole incident. Except... that's now off. And the reason it's off appears to be that it wouldn't have been enough of a safe space for Stephens, because the University (and Karpf) refused to block the public from attending. As Karpf told Ashley Feinberg at Slate:

“The thing that I can share is that he had decided that he was only willing to come if we made it not a public event,” Karpf told me over the phone. “Students could be in the room, but he didn’t want to allow this story to continue anymore. They talked with him, and what it came down to was, the only way he’d do the event is if the public wasn’t allowed to see it. I said, ‘I think that’s really unreasonable.’ They came back to him and said, ‘Karpf thinks that’s unreasonable.’ And he said, ‘OK, we’re not doing it.’ ”

As Karpf has shown over and over again in this whole saga, he's the one who should have a column at the NY Times or somewhere where lots more people can read his insights, as he so succinctly sums up the craziness of the situation:

Karpf, for his part, said that if Stephens had never written the column comparing Karpf to Nazi propaganda ministers, he might have relented. “If he’d just said, ‘You know I’ve been teased a lot about this because of that one email that I sent you—I’m willing to talk with you, but I don’t want it to be public,’ then I probably would have been OK with that,” Karpf explained. “But if you’re going to go full Godwin against me in the New York Times, I don’t think you then get to say, ‘Oh, by the way, it’s all off the record from here on out.’ That’s just creating a safe space for him so that he could talk about how the Bretbug affair felt for him, but not in a way that anyone would be able to cover. It didn’t seem reasonable or appropriate to me.”

GWU’s School of Media and Public Affairs does occasionally hold private, off-the-record events, but according to Karpf, “it’s not like we were bringing in a diplomat who was going to tell us secrets about what it’s like to be a diplomat. This is a New York Times columnist who writes two columns a week for the New York Times. If a broader public wants to hear what he says there, then I think they get to hear it.”

Ah well. Bedbugs never really do like the light, do they?

Filed Under: bedbugs, bret stephens, david karpf, debate, safe space, transparency
Companies: george washington university

California Police Department Wants Five Days Notice And The Personal Info Of Requesters Before Turning Over Misconduct Records

from the another-set-of-extra-rights dept

The thing California cops never thought would happen happened. On January 1, 2019, a new law took effect that opened up police misconduct and use of force records to the public for the first time in ever. Needless to say, cops were not pleased.

Multiple lawsuits were filed in an attempt to block the law from taking effect -- or at least prevent the public from accessing records created prior to January 2019. Multiple lawsuits and legal challenges were rejected by California courts, which read the law as being retroactive.

As those efforts failed, the state's district attorney, Xavier Becerra, decided to go against the courts and the law's author to claim it was not retroactive. Of course, he was no more correct about this than the law enforcement unions being handed losses by the state's courts.

The "smart" law enforcement agencies read the writing on the wall, took the wall down, and ran it through the shredder before the law took effect. There were a few cooperative standouts following the law's enactment, but most law enforcement agencies decided to comply with the new law as antagonistically and slowly as possible.

The Long Beach Police Department is the latest to flip the bird to the public over public records. As Tony Saavedra of the Orange County Register reports, the PD is preemptively buying time. Or, more accurately, it's hoping to steal it. What the PD wants is nearly a week's-worth of heads up if the city plans to release officers' misconduct and use of force records.

Long Beach police officers want five days advance notice before the city releases their individual misconduct and use-of-force records to the public under a new state transparency law.

The city, being the subservient ass it is, has acquiesced. And it's made this five-day advance notice policy even worse.

City contract negotiators have recommended the notification provision, along with the requirement that officers receive the names of individuals and organizations requesting their files.

How's that for a chilling effect? Officers whose files have been requested will know who has been requesting their files. That's going to make things uncomfortable for requesters, who may suddenly find themselves interacting with law enforcement officers far more often than they'd like to.

The boss of the local police union has of course showed up to say something stupid in defense of this heinous bullshit.

James Foster, president of the Long Beach Police Officers Association, said the provision is merely an effort to even the field for police officers.

Foster said officers often don’t know the contents of the administrative investigations done on them.

“It would be grossly unfair for the officer to see this for the first time on the front page of the newspaper,” he said.

"Even the playing field?" Your guys have badges, guns, and a whole lot of power. The playing field is nowhere close to even. Accessing public records doesn't suddenly put citizens on equal footing with people with the force of the law behind them. Let's see how well a cop responds to a citizen stopping him for no reason, insisting the officer explain where he's going, what he's doing, and why he's in such a shady neighborhood, all while checking the contents of his pockets and groin area. Let's see a peace officer sit through a pretextual traffic stop while the citizen kills time with probing questions in hopes of getting a free pass on a vehicle search, with or without Officer Paws and his magical nose.

And, if officers are concerned about appearing on the front page of the newspaper, maybe they shouldn't engage in the sort of misconduct that creates paper trails. Just a suggestion.

This is a bad policy and it's bad news for Californians. No doubt other police unions are asking for the same special treatment, hoping to deter people from obtaining records they're now allowed to obtain.

Filed Under: california, long beach, long beach pd, misconduct, police, transparency, xavier becerra

US Courts Rep Ignores Everything About The Internet, Says PACER Access Can Never Be Free Because It Costs Money To Operate

from the LOGICAL-FALLACY-BONANZA dept

Open access to court documents is something we still don't have, thanks to PACER. The creation of PACER was supposed to increase public access, but the government erected a paywall between the public and the documents. To make things worse, the PACER's front end is an antiquated nightmare. The system isn't consolidated, so people seeking documents need to know exactly where it was filed before they can even start paying $0.10/page for unhelpful search results.

No one who uses PACER likes it. But it's the government's monopoly, so everyone who uses PACER has to use PACER because there is no alternative. The US Court system rakes in $150-200 million a year in fees, but hardly any of that money is being put towards fixing a system that only barely works and does so in the most begrudging way possible. Lawsuits have been filed and legislation proposed that would give the public free access to court documents, but so far, nothing has changed. PACER is still expensive. And it still sucks.

The sad state of PACER was discussed during a recent Congressional hearing. And it was defended in the worst way possible by the Judicial Conference's speaker.

Judge Audrey Fleissig of the U.S. District court for the Eastern District of Missouri also said in testimony for the House Judiciary Committee’s Subcommittee on Courts, IP, and the internet that shifting costs away from users without another funding plan would burden courts with new costs.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig said. “That money must come from somewhere.”

Everything about Fleissig's statement is ridiculous.

First and foremost, just because something costs money to operate doesn't mean it can't be free. To use a government example, interstate highways are free to use, yet they cost billions to construct and maintain. ($96 billion in 2014 alone.) The money does come from "somewhere," as Fleissig correctly notes. It's called taxes. The thing about PACER is its funded by both tax dollars and fees. The documents people pay to access are created with tax dollars that pay judges, clerks, and every other government employee involved in creating, processing, and posting documents citizens are then expected to pay $0.10/page to download.

Stepping outside the government, there are countless examples of free services that cost money to run, like Google's search engine… or the numerous browser options people use to run Google searches. Every search engine (and I'm including Bing here) runs better than PACER's internal search engine. And none of those charge users $0.10/page for search results. And then there's email, cloud storage, social media platforms, web-based apps, job-hunting services, classified ad sites, blogging platforms, mobile games, YouTube... a whole internet full of free services that cost money to create and support -- all at no cost to the user.

But that's only part of the ridiculousness. Insisting that it takes $100 million to run PACER is bogus. The US Courts system may spend $100 million doing it but that doesn't mean it couldn't be done more efficiently for less money. A bureaucracy claiming it spends every cent of its budget doing something shouldn't be taken as evidence said thing actually requires that much funding to accomplish. Government budgets are things to be spent, not areas of concern where less-costly options might be explored. The process does not lend itself to efficiency since the only thing that accomplishes is less money being appropriated in the next fiscal year.

While there are the salaries of support staff to consider, the bulk of the claimed expense is processing and hosting of PDFs and digital court dockets. The internet is built for this kind of thing and there are any number of options that would reduce costs and increase user-friendliness… all while giving away PDFs and docket listings for free. The system doesn't necessarily need to be privatized, but perhaps it should be outsourced to vendors that specialize in all the problems PACER has failed to solve for nearly two decades.

And here's another partial solution -- one inadvertently stumbled upon by the US Courts itself:

Approximately “87 percent of all PACER revenue is attributable to just 2 percent of users—large financial institutions and major commercial enterprises that aggregate massive amounts of data for analysis and resale,” the Administrative Office of the U.S. Courts said.

Well, if that's the case, the largest users can subsidize everyone else. Set a monthly cap of 5,000 pages and let those who need more pay for unlimited access. It seems like the top 5% of users could easily guarantee free access for everyone. And if anyone else wants "value-added" access to the court document system (maybe with some sort of fire hose feed), they can pay for it. Those that just want to find relevant case documents can still muddle their way through PACER's broken system to find them, all without having to pay the government for documents they still haven't managed to find yet.

Filed Under: courts, fees, internet services, pacer, public access, transparency, us courts

Content Moderation At Scale Especially Doesn't Work When You Hide All The Rules

from the getting-twitchy dept

For quite a while now, we've pointed out that doing any serious content moderation on major internet sites is laughably difficult, if not impossible. Whether done in a purely automated format, or with real human oversight, everything ends up boiling down to just how much collateral damage are we all willing to accept when sites attempt to enforce moderation rules. Even when sites attempt to communicate the rules to the public in a somewhat transparent fashion, such as Facebook, it all inevitably goes to the kind of hell that includes nixing accounts for sharing what is purely art.

But when sites don't bother to tell their users what the rules are, even after exacting punishment for violation of those rules? Well, that's when you have a bunch of Twitch streamers wondering what the hell is going on.

Earlier this week, Twitch suspended a streamer named Quqco for wearing a cosplay of Street Fighter heroine Chun-Li on stream, deeming her outfit “sexually suggestive.” This took Quqco—and many others—by surprise, given that the outfit was not overtly risqué. But this was not an isolated incident. In the past few days, Twitch has been cracking down on so-called “sexually suggestive” content more aggressively than usual, and picking some questionable targets for its crusade.

The whole post is long and very detailed and should absolutely be read in full. The article lists numerous examples of Twitch streamers being handed out warnings and suspensions under any number of circumstances that range from cosplaying as Street Fighter characters, to wearing a sports bra and baggy shorts on a stream, to drawing clothed cartoon characters. All those interviewed for the post that were on the receiving end of these warnings or suspensions were completely flummoxed.

Especially when their own inquiries into their punishment were being responded to like this.

For example, Fareeha’s warning specifically accused her of wearing “underwear or lingerie,” when she was, in reality, wearing baggy gym clothes in a setting where you’d expect to see them. Twitch’s guidelines around what streamers can and cannot wear are vague and contextual; the sort of attire Fareeha was wearing might not have cut it if a streamer was broadcasting from their bedroom, but streamers regularly wear gym clothes in the gym. Some men even go shirtless. It’s not clear why Twitch singled out Fareeha.

Fareeha specifically believes she may be the victim of another aspect of the internet that makes content moderation at scale impossible: trolls. It turns out that there are dedicated Discord channels out there where people get off on doing mass-reports of Twitch streamers they don't like for any number of reasons. Obviously, those many numbers of reasons often fall into categories that include "they're women doing things we don't like" and "they're people that don't look like us doing things we don't like." The theory goes that whatever automation Twitch has built into its moderation system -- and there surely must be something of that sort of thing -- it's likely to be sensitive to mass reporting of ToS violations. This is being gamed by trolls to get the system to punish Twitch streamers who otherwise would never have been punished.

Is that what's happening? Nobody knows, mostly because Twitch is being frustratingly opaque on the matter.

Saruei, who was suspended for drawing “nude” characters, declined to speak to Kotaku out of concern that she could face further repercussions from Twitch. However, prior to her recent suspension, she spoke out against what she feels is “hypocrisy” on Twitch’s part. Suggestive poses apparently aren’t allowed in her drawings, she said, but it’s fine when some people do them IRL.

“These are suggestive poses, right?” she said of her own art while discussing her Twitch warning during a recent (now-unavailable) stream. “We agree with that, right? Why I can’t draw waifus like this when there is fucking Twitch girls that can do it?” She went on to express frustration about the lack of clarity that she, like others, has had to deal with. “I hope it won’t happen again, because I asked them ‘What is the problem with these drawings?’” she said. “Is it the clothing or the pose? What is against Twitch guidelines? I need to know.”

Those last two sentences are all you need to hear to recognize the massive problem that is Twitch attempting to do content moderation at a scale that is largely impossible while not being transparent as to how to stay on the right side of that moderation. There is entirely too much gray area, too much room for gaming the moderation, and too much stupid collateral damage to make any of this worth it.

Meanwhile, the Twitch streamers who make Twitch's product attractive are stuck trying to figure out what the rules are. Until they decide to go somewhere else, that is.

Filed Under: content moderation, content moderation at scale, quqco, rules, transparency
Companies: twitch

Investigation Uncovers Mass Purging Of Phoenix Police Department Misconduct Records

from the clean-slates-for-all! dept

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.

Police unions have defended such things as tossing flashbang grenades into rooms containing infants and the elimination of drug testing for officers. They've repeatedly tried to thwart legislation that would provide more public access to police misconduct records and have often verbally attacked anyone who questions the actions of law enforcement.

What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.

Justin Price's report on the whitewashing powers of the Phoenix (AZ) PD's union contract is a jaw-dropping read. But it's not an anomaly. There are contracts like this in place all over the nation. But AZ Central's investigation shows just how much has been swept under the rug to "protect" cops from the people they serve.

Phoenix Police Sgt. Philip Roberts was suspended from the force for 30 days after an internal investigation concluded he failed to properly manage a 2015 incident where officers shot and killed a mentally ill man.

Lt. Dalin Webb received a written reprimand for his 2013 arrest on domestic violence charges in which he reportedly shoved his wife and choked his teenage son.

Officer Joshua Wayne Beeks was suspended for 15 days when the Department discovered he was involved in three unauthorized high-speed pursuits in a single year that killed two people.

But there's little indication in Phoenix Police Department personnel and internal investigations records that those officers were ever disciplined.

That's because Roberts, Webb and Beeks, like hundreds of other Phoenix police officers in recent years, were allowed to erase records of their misconduct from files kept by the Police Department.

The practice, which the Department refers to as "purging," has been standard for more than two decades under the police union's contract, but the public has been unaware of it.

The contract also prohibits misconduct detailed in the purged records from being considered in future disciplinary investigations or performance evaluations.

If the goal is to keep bad cops employed indefinitely, it's been super-effective. Over 500 of the city's 3,000 officers have had their pasts memory-holed by the union contract, covering over 600 misconduct incidents ranging from failure to complete reports to deployments of excessive force.

The purging prevents even internal investigators from discovering patterns of misconduct that should result in harsher discipline or termination. It also prevents plaintiffs suing officers over violated rights from obtaining key background info that could indicate an officer is a longtime abuser of citizens. In one case cited in Price's report, the PD began purging an officer's records as soon as the officer had been served.

The lack of a paper trail results in things like this happening:

Purged records don't appear in a file review.

Those records also don't show up during annual performance evaluations.

Officer Kevin McGowan, for example, earned top marks in his 2015 evaluation despite being disciplined for serious misconduct during the previous year.

An internal investigation concluded McGowan used excessive force when he stomped on an 18-year-old man’s neck, driving his face into the tile floor of a convenience store and knocking out three of the man's teeth.

The incident was captured in surveillance footage taken from the store.

McGowan was initially fired, but the union interceded and he ended up with only a 30-day suspension. A few years later, the disciplinary files were purged, resulting in this cop being commended for being such a great cop. Phrases like "positive attitude" and "community contributor" were tossed around by supervisors unaware of McGowan's recent past.

AZ Central's investigation involved comparing the list of disciplinary files sent to the city's Human Resources Department by the Fiscal Management Bureau with the list of misconduct records maintained by the PD's Professional Standards Bureau. What's considered to be an officer's "permanent record" is maintained by the city's HR department. "Maintained" is definitely overstating things.

By cross-referencing the two sets of records, The Republic identified hundreds of disciplinary cases that had been hidden from internal affairs and the Department's leadership.

Over five years, records of 90% of all sustained misconduct investigations had been erased.

Some of these records are supposed to be maintained for at least five years, according to the contract language. But AZ Central found multiple cases where files had been memory-holed ahead of schedule. Files detailing incidents that resulted in suspensions of over 80 days are never supposed to be purged, but the investigation discovered many of those were missing as well.

The PD explains away all this opacity by saying it increases officer morale. And of course it would. Many employees in many different fields would feel better about themselves and their jobs if they knew their misconduct would never be used against them. But the PD doesn't serve itself. Or at least, it shouldn't. It serves the public. And nothing about this union contract shows any concern about the public or its morale.

Filed Under: phoenix, police, police misconduct, public records, purging, transparency