California Supreme Court Says Cops Must Turn Over Info On Misconduct To Prosecutors

from the inching-towards-accountability dept

Another layer of opacity shielding bad cops from accountability has been lifted in California. Accountability and transparency hasn't exactly been welcomed by the state's law enforcement agencies, but recent developments have forced it upon these unwelcoming recipients.

As of the first of this year, police misconduct and use-of-force records are now obtainable via public records requests. For years, these have been locked away by statute, freeing California cops from the unimaginable horror of public accountability. This new law has raised several legal challenges from cops and their representatives, but so far, none of those have found courts willing to grant them their injunction requests.

Now, some of these same cops are going to find themselves even more exposed. The state's top court has just ruled that prosecutors must be informed about officers' past misconduct. The ruling may only discuss a single department, but it will affect every law enforcement agency in the state, as Maura Dolan reports for the L.A. Times.

The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who is slated to testify in a criminal case has a history of misconduct.

The decision overturned a Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.

The misconduct law enforcement agencies were previously allowed to keep secret is directly tied to exculpatory evidence owed to defendants. Anything that might diminish the credibility of a witness is supposed to be fair game. Unless, of course, it's a long history of abuse and misconduct by the officer on the stand. That's when cops start claiming these are confidential employment records rather than litanies of perpetrated abuse.

These lists of questionable officers are called "Brady lists," after the court decision establishing defendants' right to obtain exculpatory evidence from the government. In many states, these lists are still secret. That is no longer the case in California.

The Los Angeles Sheriff's Department has about 300 deputies on its Brady list. It sought an injunction blocking the disclosure of these names, claiming they were private "personnel records" that shouldn't make their way into open court. The lower court agreed. The state Supreme Court does not [PDF].

First, the new public records law removes some misconduct and use-of-force records from the state's personnel records exception. It doesn't remove everything but it does make it clear that any information the public can obtain with records requests cannot be declared "confidential" simply because it's being used in court.

Second, the ruling doesn't make Brady lists available to the general public. It only makes them available to prosecutors. Judges will view these submissions in private and decide what information is owed to defendants. This is not a blanket lifting of confidentiality, but rather a more limited approach guided by the court. But it does mean more information will make its way to defendants and, obviously, into open court.

The deputies' union makes several arguments as to why these officers should never have their misdeeds discussed in court, but the state's top court isn't buying it. Law enforcement agencies might be separate from prosecutors' offices, but they share some of the same obligations.

The Fourteenth Amendment underlying Brady imposes obligations on states and their agents — not just, derivatively, on prosecutors. Law enforcement personnel are required to share Brady material with the prosecution. (See, e.g., Carrillo v County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223 & fn. 12.) The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.

The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play.

Unfortunately, the ruling stops short of creating an obligation to share this information with the defense, but it does make it clear law enforcement agencies can no longer withhold it from prosecutors. It does at least establish a review process to handle defense requests for Brady list info so at least some of what's been turned over can be used to challenge the credibility of the prosecution's witnesses. It's not a massive step forward, but it's far better than the opacity California law enforcement agencies have grown accustomed to. Considering the number of deputies in the state with, shall we say, job performance issues, the flow of Brady info should be steady... and perpetual.

Filed Under: bad cops, california, police misconduct, prosecutors, transparency

EFF Sues CBP, ICE Over Refusal To Hand Over Its GPS Tracking Device Policies

from the Garmins-in-boxes-marked-'CLASSIFIED' dept

Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.

The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.

The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.

During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.

If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.

According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.

It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.

The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.

The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.

The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

Filed Under: cbp, foia, gps, ice, policies, public records, tracking, transparency
Companies: eff

The Conflict Between Social Media Transparency And Bad Privacy Laws Is Going To Get Worse

from the what-a-mess dept

For years I've been arguing that we're bad at regulating privacy because too many people think that privacy is a "thing" that needs to be "protected," rather than recognizing that privacy is always a series of tradeoffs. As I've pointed out a few times now, part of the problem that many people reasonably have about how internet companies are dealing with our "privacy" is the lack of transparency from those companies, making it difficult (or impossible) to accurately weigh the costs and benefits of the tradeoff choices.

It often comes down to a question of "is it worth sharing this data, in order to get this service." But to make that determination, it helps to know which data exactly, how it's being used, how it's being secured, what the likelihood is of it getting spread more widely and what the potential downstream impacts might be to me if that data does get spread more widely. If there was an accurate way to understand that, then we'd have a better sense of whether or not it's worth giving up that data in exchange for the service. But, many internet companies (from the big ones on down) are notoriously bad about providing that information, meaning that we can't make an informed decision about whether or not the tradeoffs are worth it.

And that's a big part of the reason users get so concerned whenever there's a privacy scandal. It's because that information wasn't provided to us. People didn't realize that Facebook would be enabling people to share the data of all of our friends with a sketchy corporation who might use it to suppress votes. People didn't realize that Facebook would take phone numbers provided for security purposes and use them to push advertisements and friend notifications to our phones.

But... since very few people seem to recognize that privacy is a "set of tradeoffs," too many of the regulations try to treat it as "a thing" and require companies to "protect" it -- even if that doesn't mean very much. And, even worse, trying to force companies to "protect" privacy can actually interfere with the necessary transparency that would allow individuals to better understand their privacy tradeoffs.

Case in point: a year and a half ago, Facebook agreed to support a new scholarly project to share a bunch of data with a bunch of academics in the interest of transparency. The project was dubbed Social Science One, and was funded by a bunch of big philanthropic foundations. Yet, a recent article in Buzzfeed points out that a year and a half later, Facebook still hasn't delivered most of the promised data to the waiting academics. Indeed, a follow up article notes that the big list of powerful foundations funding the whole project have now threatened to pull their funding if Facebook doesn't share the data by the end of September.

A key issue? Various attempts to regulate privacy.

A Facebook spokesperson acknowledged that some data originally promised will not be delivered, but said this is due to concerns about privacy, security, and the need to comply with regulations such as Europe’s GDPR privacy legislation. They said useful data has already been provided to researchers, and some teams are using it.

And this makes sense. Given how everyone (perhaps reasonably!) beat up on Facebook for sharing data in the past, you know that if it provides data for the Social Science One project, and somehow some of that data becomes public or is misused, Facebook will be vilified again (and, perhaps, held liable by various regulators. If it wants to provide transparency, it might have to violate privacy. But, of course, that does harm to our actual privacy, because then the public doesn't get to learn about the actual tradeoffs.

And, indeed, if anything bad happens with this data, you know that many media outlets will quickly blame Facebook, even if they're the same people now yelling about Facebook failing to deliver this data to researchers.

That's not to say that Facebook is entirely blameless here. It seems to have left everyone -- funders and academics alike -- pretty much in the dark over what was happening. That, alone, seems like a real lack of transparency on an issue where the company should have been very transparent. And some may rightly argue that there could be ulterior motives as well. If Facebook realized that this level of transparency was going to make the company look bad (as it very well might!) perhaps that's contributing to the stalling as well.

Either way, it's a no win situation. Facebook's failure to share the data after promising to, is a problem and it deserves to be criticized over it. At the same time, the privacy concerns are quite real as well. And, honestly, the very same journalists who are mocking Facebook over failing to live up to this promise, are likely the first in line who will attack the company should the data sharing lead to some sort of leak of private info.

This is why I'm so concerned with almost every current legislative approach to dealing with privacy. Over and over again it seems to set up conditions that are actually worse for real privacy and transparency, and which put the companies in much greater control. Setting up situations where you put transparency and privacy into conflict when they don't need to be, is not going to lead to good solutions for anyone. It puts both transparency and privacy at risk.

Filed Under: data sharing, gdpr, privacy, trade-offs, transparency
Companies: facebook, social science one

Court Rejects Plaintiff's Attempt To Seal His Entire Lawsuit Against A Website That Publishes Court Documents

from the burial-failure dept

Eugene Volokh has come across another attempt by a litigant to bury his own court proceedings. This isn't a malicious or underhanded attempt to remove embarrassing info from the court system in order to... say... scrub a client's reputation. This is simply a pro se litigant perhaps misunderstanding what he was getting into when he decided to start filing lawsuits.

As Volokh points out, knowing very little about the court system you're engaging with as your own lawyer tends to result in very strange requests.

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it.

In this case, the plaintiff asked for pretty much every public document his lawsuit had created to be sealed. He did this with a letter to the court [PDF] that closes with:

Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source.

This letter was (of course) added to the docket and made accessible, just like everything else in his 2017 lawsuit against his former school. The letter asks for the judgment to not be published by the court and the only copies distributed to him and the defendant. He also wanted the defendant to be blocked from publishing the judgment or sharing it "with anyone or website or other conduit."

This was construed as a motion to seal. Volokh spotted it and filed a motion to intervene to argue on behalf of the public's right to access documents created by public courts. The natural course of things -- the generation of documents by courts that then end up on third-party websites -- resulted in a second lawsuit from the same plaintiff. This was filed against Justia, a site that publishes thousands of court documents.

Volokh's intervention is noted by the court, which comes to the conclusion that it probably would have reached anyway. But, as Volokh noted earlier, sometimes trial courts head to left field and grant some really strange stuff to plaintiffs. Hence the outside input meant to steer the court back in the direction of the presumption of openness.

The decision [PDF] here hits all the right notes. Documents filed in public courts are public. Not wanting them to be public is understandable in some cases, but that's not the standard the court uses when dealing with motions to seal. Even for pro se plaintiffs, who are given as much leeway as possible by courts, the standards are higher than can be met by the plaintiff's letter.

The party seeking to seal must provide “legitimate public or private reasons for the documents to be kept from the public” and must identify “a clearly defined and serious injury that would result if the motion is not granted.” Celgene Corp. v. Abrika Pharm., Inc., 2007 WL 1456156 at 5 (D.N.J. May 17, 2007). Plaintiffs request to seal the Appellate Division’s Opinion has numerous deficiencies:

1. He has not filed any affidavit, declaration, certification, or other document along with his request.

2. He has not presented any compelling reason that would justify the Court granting the request.

3. He has not suggested any lesser restrictive measures or why one is not available.

4. He has not set forth a significant reason that would warrant sealing these documents and restricting public access.

5. Plaintiff merely expresses his wish that the order on his motion to dismiss not be “reported, copied, distributed, shared, or by any other means used by anyone or any website.” (ECF No. 26).

6. Plaintiff has failed to establish what adverse consequences would occur, unless sealing has occurred.

On top of this denial, the court also dismisses the lawsuit against Justia. And again, the ruling rests on court system's presumption of openness.

The amended complaint is substantively meritless, as was the original complaint. Plaintiff is essentially attempting to seal the Appellate Division’s Opinion, which — like federal court documents — are open to the public. N.J. Ct. R. 1:38-1. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret.

And, finally, the court addresses the claims the plaintiff actually made in his lawsuit against Justia. And they're as creative as they are unsupported.

[T]here is no cognizable legal theory to support the allegations set forth herein. The documents alleged to have been stolen and embezzled are public records with access for the public. In addition, even assuming that the records were not public, there are no allegations to support a claim for theft or embezzlement — the Appellate Division’s Opinion is not Plaintiff's personal property.

Away goes the lawsuit in a brief opinion that's as public as everything else in the case.

I'm sure it sucks for the plaintiff to be shot down again. And in public. (Again.) But that's how the system works. The plaintiff probably should have quit when he was behind -- after his failed attempt to seal documents from his first lawsuit. As courts have pointed out in the past, the best way to keep your name out of court documents is to stop filing lawsuits.

Filed Under: courts, public documents, sealed records, transparency

Missouri Attorney General Claims The First Amendment Allows Him To Withhold Public Records

from the I'm-not-familiar-with-the-type-of-thing-I'm-seeing dept

Missouri's government is flexing the weirdest right now. The state's Attorney General is currently in court trying to keep public records out of the public's hands. This doesn't actually stem from a public records lawsuit, but from a discovery request in a defamation lawsuit filed by a former mayor against a state representative.

Ex-Scott City mayor Ron Cummins is suing state rep Holly Rehder for defaming him while he was still in office. His discovery request has been greeted with this baffling assertion by the Attorney General. (h/t Peter Bonilla)

Cummins' attorney requested communications from constituents making complaints to Rehder’s office.

Schmitt's office, which is representing Rehder, argued last week that turning over those records would “violate the First Amendment rights of the constituents that made complaints.”

That's… not something the First Amendment protects. It protects their right to make complaints, but doesn't protect the state's right to withhold documents. In fact, the state has no First Amendment rights. Those belong to the people, like those Schmitt disingenuously is pretending to shield from someone suing a politician over allegedly-defamatory statements.

The governor's office backed this dubious assertion by saying something weird about chilling effects.

The governor’s office defended the policy, saying citizens would not reach out to their elected officials if they believed information like email addresses and phone numbers could become public.

I don't think that's how this works. For one, most people realize that communicating with government entities turns those communications (in most cases) into public records. For another, citizens cannot create chilling effects. Some people may be wary of communicating with the government for many reasons, but if there's any chill, it comes from the government's obligations to the public, not from public records requests.

That the governor would back this baffling gambit isn't surprising considering the governor himself has some pretty strange ideas about how the First Amendment works. This happened earlier this year:

As state lawmakers continue their push to carve out new exemptions in Missouri’s open records laws, Gov. Mike Parson has seized on a new strategy.

His office is redacting information from public records citing the First Amendment of the U.S. Constitution.

TIL: those black markers are called "First Amendments."

Steele Shippy, Parson’s communications director, said the office uses the First Amendment to redact telephone numbers, addresses and email addresses of private citizens who have reached out to the governor’s office.

Such is the state of the First Amendment in the Missouri state government. The First Amendment gets used to withhold public records and make unjustifiable redactions. And then I guess it gets put back in the drawer until the next time the government needs to use the First Amendment for something. The same incomprehensible claims were made about the chilling of speech in this case, too.

There is some good news, though. The state AG has officially withdrawn his insane First Amendment assertions.

Missouri Attorney General Eric Schmitt has withdrawn a legal brief he filed arguing that the First Amendment allowed him to withhold some public records concerning private citizens involved in a lawsuit.

Schmitt said in a statement Tuesday that his office determined after further review that the assertion should be withdrawn.

"Upon further review" says the AG, implying it ever received a first one. As was pointed out by people who actually understand the First Amendment, the legal brief cited no case law to support this peculiar free-speech-by-redaction argument because no such case law exists. Perhaps the AG should rush these findings to the governor's office before any more public records are subjected to the state's First Amendment scalpel.

Filed Under: 1st amendment, attorney general, discovery, eric schmitt, holly rehder, missouri, public records, ron cummins, transparency

WIPO Now Gets Into The Extrajudicial, Zero Due Process, Censorship Act Over Sites It Declares 'Infringing'

from the not-this-again dept

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."

These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.

That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.

WIPO, which is part of the United Nations, was founded more than 50 years ago with the aim of protecting intellectual property. This includes combating online piracy, something it hopes to facilitate with its ‘BRIP’ Database, short for “Building Respect for Intellectual Property.”

So, uh, what's the process to get on the list? Surely it must involve a court of law determining that a site is engaged in copyright infringement, right? Oh, of course not.

The goal of the project is simple: allow stakeholders from member states to report problematic sites and share this list with advertisers, so they can block bad apples. This will result in less money going to pirate sites, making it harder for them to generate profit.

"Stakeholders"?

“The BRIP Database is now open for the acceptance of Authorized Contributors from WIPO Member States and Authorized Users from the advertising sector,” WIPO writes.

“It comprises a secure, access-controlled online platform, to which authorized agencies in WIPO Member States may upload lists of websites which deliberately facilitate the infringement of copyright.”

Ah. So, it's "Authorized Contributors" and "Authorized Users from the advertising sector" and the entire list is secret. It's "secure, access controlled." I'm sure that won't be abused at all.

Not answered:

• What is the process to make sure sites on the list are actually engaged in ongoing infringement?
• Are sites notified?
• Do sites have any due process by which they get to plead their own case?
• Is there any appeals process?
• How are "authorized contributors" vetted and approved?
• Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?
• Is there any way for the public or NGOs to review the list for accuracy?

I've sent these questions to WIPO, which has not yet responded at the time of publication.

What's fairly stunning about all of this is that anyone who knows anything about these issues and how they've been treated over the last few decades would recognize the pitfalls of WIPO's approach with BRIP. And yet... no one at WIPO even seemed to bother to care about some fairly fundamental issues regarding due process and proper adjudication of accusations of infringement. Honestly, it raises significant questions about WIPO's own understanding of copyright law.

Filed Under: advertising, blacklist, censorship, due process, transparency, un, wipo

Voting Machine Makers Claim The Names Of The Entities That Own Them Are Trade Secrets

from the yeah-this-makes-you-all-look-way-less-shady dept

Recently, the North Carolina State Board of Elections asked suppliers of electronic voting machines a simple question: who owns you? (h/t Annemarie Bridy)

On June 14, 2019, the State Board of Elections requested that your companies disclose any owners or shareholders with a 5% or greater interest or share in each of the vendor’s company, any subsidiary company, of the vendor, and the vendor’s parent company.

This seems like very basic information -- information the Board should know and should be able to pass on to the general public. After all, these are the makers of devices used by the public while electing their representatives. They should know who's running these companies and who their majority stakeholders are. If something goes wrong (and something always does), they should know who's ultimately responsible for the latest debacle.

It's not like the state was asking the manufacturers to cough up code and machine schematics. All it wanted to know is the people behind the company nameplates. But the responses the board received indicate voting system manufacturers believe releasing any info about their companies' compositions will somehow compromise their market advantage.

Hart Intercivic said letting the public know that the company is owned by H.I.G. Hart, LLC and Gregg L. Burt is a fact that would devalue the company if it were made public.

Hart InterCivic, a corporation that derives independent actual value from this information not being generally known or readily ascertainable and makes reasonable efforts to maintain the secrecy of this information, requests that it be designated as a trade secret pursuant to G.S. § 132-1.2(1)d. and G.S. § 66-152(3).

Election Systems & Software (ES&S) said basically the same thing, claiming this information is "proprietary and confidential information:"

The following individuals and/or entities own 5% or more of the shares of Government Systems, Software & Services, Inc.:

McCarthy Group, LLC
Tom Burt
Tom O'Brien

Clear Ballot also claimed its list of owners was a trade secret:

Hello, per your request please see below for a list of our shareholders with a 5% or greater share of Clear Ballot Group, Inc. We have no other parent companies or subsidiaries:

1. Larry Moore
2. Tim Halvorsen
3. Steven Papa
4. Raging Capital Opportunity Fund V, LLC

Even this minimal amount of transparency had to be extracted at Board-point. While it's true private companies such as these are under no obligation to inform the public about the details of their ownership, they're all involved with providing goods and services to government agencies. Government agencies hooking up with private companies that treat ownership details as trade secrets isn't a good idea -- not when the government has certain transparency obligations.

Even with the release of these details, there's still plenty of secrecy to go around. Election security advocate Lynn Berstein says the ownership of voting machine companies is a deliberate, multi-layered mess designed to obscure who's running these shops -- and to possibly hide a bunch of stuff that looks like corruption, fraud, or general financial malfeasance.

One of ES&S's subsidiaries (and there are at least 39 of those) -- Meritage Homes Corp. -- shuffled some securities ownership the same day the North Carolina election board asked it to provide information about the company's ownership. Maybe it's a coincidence. Or maybe ES&S was offloading a politically-inconvenient owner. Whatever the case is, it certainly doesn't look good.

The government can't do everything itself. It will need vendors to supply goods and services. But these vendors need to operate under the same transparency the government is forced to, if they want to secure these lucrative contracts. Voters aren't given a choice in voting machine providers. They're stuck with whatever their government gives them. But when the government actually decides to perform a little vetting, the makes of the machines trusted to deliver accurate vote counts want to hide behind trade secret exceptions to prevent the public -- and their elected officials -- from knowing exactly who they're dealing with when they head into the voting booth.

Given the abhorrent track record of so many voting machine companies, it's no surprise they're extremely reluctant to share any details with the voting public. But that doesn't make them right. It just makes them a little bit more evil.

Filed Under: elections, north carolina, trade secrets, transparency, voting machines

Months After The Law's Enactment, California Law Enforcement Agencies Are Still Blowing Off Public Records Requests

from the it's-like-they-think-they're-above-the-law-or-something dept

It's been more than six months since a new law in California opened the books on police misconduct and use of force records. And there are still agencies stiff-arming public records requests. Law enforcement agencies aren't known for their transparency and accountability, which is why laws like California's are needed to force these obligations on them. But while violations of state law might get a resident arrested, they seem to be a bit powerless when it comes to making law enforcement behave in a legal fashion.

The Desert Sun reports it still hasn't heard back from a number of agencies it's sent requests to. In some cases, it appears an effort is being made but the responding agencies are just understaffed.

Los Angeles County Sheriff Alex Villanueva acknowledged earlier this year that public records requests were "stacking up." He has said he's asked the county Board of Supervisors for funding to hire more people to handle requests.

This excuse would be a hell of a lot more legitimate if the Sheriff's Office hadn't had months of advance notice. It had a chance to staff up prior to the law's enactment date, but it chose to wait until several months after that to start asking for help.

Thus ends the roundup of quasi-legitimate excuses for dodging accountability obligations. And even this one is still mainly horseshit. The Desert Sun reports the "we're doing what we can!" Sheriff has refused to search for records in response to requests, demanding requesters identify the specific cases they're seeking -- something that, in most cases, they can't possibly know until after they've gained access to records.

What follows from there is a list of non-compliant agencies:

Both the Orange County Sheriff's Department and the Long Beach Police Department have yet to release any records to KPCC/LAist, the Los Angeles Times, the Orange County Register or KQED.

The Los Angeles County Probation Department, which supervises youths held in detention, has declined to release records, claiming disclosure of records about cases involving minors is prohibited by law. Records from the department, which also supervises adults, could be redacted to remove names of protected individuals.

This is no longer a question of law. Courts have repeatedly held the new law is retroactive, making records generated prior to the beginning of this year responsive to requests. The state's Attorney General, Xavier Becerra, has apparently decided to see how much of this year he can spend with his head up his ass. He's appealing a decision by a judge granting access to records involving the state's DOJ… which still has yet to release the records it was ordered to release.

Other agencies have been a bit more compliant. The San Francisco PD has released a handful of records on four shootings by officers and the LAPD is continuing to release files on a rolling basis. In both cases, these agencies have upped their staffing to handle the influx of requests -- all without complaining publicly about their obligations.

Other agencies have chosen to go the route of antagonistic compliance -- following the letter of the law while making it very clear they hate everything about the law and every requester taking advantage of it.

The Los Angeles Sheriff's Department charged KPCC/LAist $1,655 to redact audio from shooting investigations [...]. The department has yet to provide the tapes.

The city of Bakersfield estimated that reviewing the audio and body camera footage related to a single shooting would cost about $6,621.60. Footage related to cases from the past five years, when Bakersfield Police shot 28 people, would cost an estimated $185,000.

West Sacramento estimated it would cost $25 per minute to redact its footage, meaning the material from five shootings would cost $25,000 in total.

The best way to close a marketplace you've been forced to enter is to price everyone out of it. This is an old school public records tactic, one designed to dissuade the general public from holding their public institutions accountable for their misbehavior.

And this doesn't even include the list of agencies who saw the legislative writing on the wall last year and started destroying old records before the public could start asking for them.

All of this adds up to a very ugly display of arrogance and disdain for the general public by the state's law enforcement agencies. There are a few standout agencies fully complying with the letter and the spirit of the law, but for the most part, law enforcement agencies are operating in go-fuck-yourself mode when it comes to public records requests. The end result will be an even greater divide between the police and the policed.

Filed Under: california, foia, police, police misconduct, transparency

WSJ Op Ed Warns: Killing Section 230, Kills The Internet

from the good-to-see dept

Rupert Murdoch and his Wall Street Journal have frequently attacked Google and other internet services, often in ways that suggest little understanding of how things actually work. Sometimes this has dipped into conspiracy theories and totally bullshit news stories whose sole purpose seems to be to attack Google in a misguided way. So, it's actually nice to see that the WSJ at least agreed to publish the latest Andy Kessler op-ed about the importance of Section 230 of the Communications Decency Act to keeping the open internet. The title, while a bit hyperbolic, is important: Kill Section 230, You Kill the Internet.

Should Section 230 be repealed? Heck no. We don’t want politicians, as Missouri Sen. Josh Hawley suggests, forcing private companies to host content they find objectionable—a slippery slope. Facebook and others will likely end up neutral on their own, invoking the Michael Jordan rule: Republicans buy sneakers too. Leave Section 230 alone.

Kessler highlights how most of the "proposed" ways of dealing with the power of big tech won't actually solve any of the problems they're targeting. Instead, he suggests much greater transparency in how these companies operate -- which I agree is a good start, but not nearly far enough. He also suggests a slightly odd "ratings system" using user voting to determine if content is trustworthy. That's a creative idea, but would be gamed so fast that it would almost certainly be useless about 30 seconds after launching.

Either way, it's good to see that the WSJ isn't so on board with the "kill Section 230" nonsense that it wouldn't publish Kessler's op-ed...

Filed Under: andy kessler, cda 230, intermediary liability, internet, section 230, transparency
Companies: wsj