NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

Filed Under: foil, freedom of information, glomar, nypd, transparency

Amazon Dash Buttons Ruled Illegal In Germany For... Making It Too Easy To Buy Stuff

from the can't-have-any-of-that-now dept

You can count me among those who don't see the value in those Amazon Dash buttons that got plenty of attention a few years back, allowing those who had the little single-button devices to re-order some consumable product with the push of a single button. Even if lots of people made fun of them at launch, Amazon has expanded them to many more brands. So, even if I don't see the value, it appears plenty of people do. Except, in Germany, they're now illegal, because apparently some people are upset that they make things too easy to order.

The ruling came after a regional consumer protection watchdog brought a case against Amazon, arguing that the Dash buttons violate laws that say shoppers should know what they are paying at the time of any transaction.

“We are always open to innovation. But if innovation means that the consumer is put at a disadvantage and price comparisons are made difficult then we fight that,” Wolfgang Schuldzinski, head of the consumer body, said in a statement.

Huh? If users decide to buy a button that lets them reorder, then... what's the problem here. Yes, they may end up paying more than other retailers, but it's the consumers who are making that decision, suggesting that they value the convenience more than the ability to hunt for the best deal.

This fits with other European legal trends, in which courts and regulators really don't seem to think the public ought to be able to make any decisions themselves about what they prefer online, and must be "protected" from their own decisions. What, exactly, is the benefit here? How are consumers better off if the solution they appear to want, which they had to pay for, is no longer considered legal?

I could (maybe?) understand if the argument was that Amazon was somehow leveraging its market position to push people into using these things, but I've seen no evidence that that's true at all. Indeed, I basically forgot these little buttons existed after hearing about them at launch. I get that European courts (and German ones, in particular) like to think they're protecting consumers more than the US, but in this case it makes no sense. If consumers feel ripped off by the buttons, they won't buy them (or they'll stop using them). Why do we need a court to make them illegal?

Filed Under: convenience, dash, dash button, germany, purchasing, transparency
Companies: amazon

Dept. Of Interior Wants To Rewrite FOIA Law To Make It Easier To Reject Requests

from the fully-committed-to-screwing-the-general-populace dept

The US Department of the Interior wants to do all it can to comply with recent changes to FOIA law. It wants transparency and accountability just as much as US citizens want it. In the comments preceding its proposed changes [PDF] to FOIA response procedures, it has this to say:

The Department is fully committed to an equitable FOIA program that ensures compliance with the statutory requirements of transparency, accountability, and prompt production.

Here's how it's planning to "ensure compliance" and produce all the good stuff compliance would bring. (h/t Steve Reilly)

The bureau will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.

Hmm. This doesn't sound like compliance at all. This sounds like an agency rewriting FOIA law to limit the number of FOIA requests it will respond to. This determination will be made solely by the agency, which is giving itself a brand new exception to FOIA requirements. Sure, requesters can challenge this determination, but it's probably going to take a lawsuit to dislodge documents held by an agency so very committed to "transparency, accountability, and prompt production."

The DOI says this new limitation is necessary because it's seen a surge in requests and litigation. These are inextricably linked, thanks to the agency's inability/unwillingness to respond to requests in a timely fashion.

The problem goes deeper than the backlog. Government agencies don't throw much money or manpower at responding to FOIA requests, preferring instead to spend taxpayer dollars fighting taxpayers in court over requested documents.

The DOI's recent leadership has contributed to this problem by making a relatively uninteresting department highly FOIA-able. Ryan Zinke's departure from the Department at the end of last year won't do much to slow the bleeding. Zinke's 21-month stint was marked by controversy after controversy, including shady real estate deals, abuse of travel privileges, $139,000-worth of office doors, and a long list of attacks on animal conservation efforts. The paper trail he leaves behind is of considerable public interest, and the surge in FOIA requests his agency is facing is evidence of that.

The good news is the public can comment on this proposed change. The bad news is, of course, the change could be implemented over the objections of the American people. The suggestion box is open but it's not like anyone's counting votes for and against.

If this does get codified, other federal agencies will certainly push for their own exception -- one that grants them the power to unilaterally reject FOIA requests. This will result in a self-fulfilling justification for increased restrictions on FOIA responses as agencies will always experience an uptick in FOIA litigation with rules like these in place.

Filed Under: department of interior, foia, transparency

California Supreme Court Rejects Sheriffs' Union's Attempt To Block New Open Records Law

from the take-your-fear-of-accountability-somewhere-else dept

There have been some pretty garbage responses to California's amendment of its open records laws, which rolls back the extreme level of opacity shielding police misconduct records. The City of Inglewood gave its police force a zero-accountability parting gift by granting it permission to destroy hundreds of officer-involved shooting files just prior to the new law taking effect.

Over in San Bernardino County, law enforcement -- or at least their union reps -- responded to the new law by petitioning the state Supreme Court for an injunction. The Sheriff's Employees' Benefit Association wanted the law blocked until it could be determined whether or not the law was retroactive. The union claimed making pre-2019 records available to the public would "violate [its] members' rights."

This ran contrary to the assessment of the actual Sheriff and the county's legal counsel, both of whom felt the law applied to old misconduct files.

“In anticipation of SB 1421 taking effect, the Sheriffs Department has been diligently reviewing the changes to the law and carefully considering how to implement these changes,” Blakemore wrote. “Based on this review, and on the advice of counsel, the Department intends to apply these changes retroactively.”

The union can't be thrilled about the new layer of accountability it will be facing going forward. But it seemed particularly aggrieved the new records law would affect old records it assumed would never be turned over to the public. The law doesn't state it only applies to records going forward, so it's reasonable to assume what was once considered non-public is now publicly-accessible.

The union has already heard back from the state's highest court and it's not getting the answer it wanted.

The California Supreme Court on Wednesday denied a sheriff union’s request to block a new state law that provides public access to past police-misconduct and use-of-force records.

The San Bernardino County sheriff’s deputies’ union sought an emergency intervention from the California Supreme Court to block the new law before the New Year.

This won't stop the legal challenges to the law -- not as long as it's not crystal clear whether retroactivity applies. But this at least allows the law to move forward, ensuring that any records generated past the point of enactment are truly public records. Anything prior to January 2019 is going to be hit-and-miss, as it appears state law enforcement agencies don't have a unified take on the law. This will probably be resolved sooner than later, as requests for these previously-secret records are already flowing in.

Filed Under: california, california supreme court, open records, police, police misconduct, police misconduct records, transparency

Irony Alert: Wikileaks Sends Reporters A List Of 140 Things Not To Say About Julian Assange; Tells Them Not To Publish

from the i-mean,-come-on dept

Either Julian Assange is the least self-aware person in the British Isles (currently), or Wikileaks is playing some sort of weird joke on the press. The organization, whose entire reason for being is publishing documents whose authors don't wish them to be published has bizarrely sent a list of 140 things reporters are not supposed to say about Assange (if this is a troll by Assange, you have to wonder if the 140 -- Twitter's original character limit -- is somehow on purpose). We'll get to the list in a moment, but first, the list included this hilarious statement:

CONFIDENTIAL LEGAL COMMUNICATION
NOT FOR PUBLICATION.

Ha, ha. Good one, Julian. Very funny. First of all, you don't send "confidential legal communications" to the media. That's not how it works. Second, unless there's already a pre-agreed upon deal not to publish certain materials, you don't get to email reporters willy nilly and insist that they can't report on it. That is also not how it works. Finally, this is Wikileaks we're talking about. I mean, come on.

Incredibly, Reuters, who first wrote about the existence of this list did not publish the list. Instead, that was initially left to FOIA/transparency/national security guru Emma Best who published the full list on her site. A few other publications followed later.

It is entirely possible that this is some sort of reverse Streisand Effect attempt, in which Assange purposefully put the idiotic "not for publication" line atop the email knowing that would make it more likely that the document would get attention, but no matter where you sit, for reporters, this now seems like a list of 140 things that Julian Assange is now calling for everyone to investigate. Of course, some of them are really just silly. For example:

It is false and defamatory to suggest that Julian Assange stinks.
It is false and defamatory to suggest that Julian Assange has ever tortured a cat or dog.
It is false and defamatory to suggest that Julian Assange does not use cutlery or does not wash his hands.
It is false and defamatory to suggest that Julian Assange lives, or has ever lived, in a basement, cupboard or under the stairs.

Um... what? Why even bring up any of these? Of course, much of the list involves some of the more serious claims that people have made against Assange over the years, especially regarding any connection with Russian Intelligence and or any attempt to influence the US election. And, while these don't necessarily break new ground, for investigative reporters, it seems like there could be some interesting breadcrumbs in the list of things Julian Assange really, really doesn't want the press to say about him.

Also, it appears that in a later version of the list that was posted to Pastebin, Wikileaks removed the line about Assange stinking and living in a cupboard under the stairs (that was Harry Potter, you see...). Emma Best set up a comparison of the two "leaked" copies of the list, if you're interested in delving into the details of what I guess is now up for discussion (does Assange have a scar in the shape of lightening bolt?).

Separately, each of the items on the list begin "it is false and defamatory to...." At the very least, this suggests that Assange has a fairly limited understanding of what "defamatory" actually means. Defamation requires a bit more than saying that Julian Assange stinks. Others may be false, but would hardly be "defamatory." For example:

It is false and defamatory to deny that Julian Assange co-founded the Freedom of the Press Foundation with John Perry Barlow.

I mean, it is a false statement since Assange did not co-found the Freedom of the Press Foundation with JPB (he was just one of their first beneficiaries). But, what is possibly "defamatory" about that sentence?

Either this is all an elaborate troll by Assange, or he's so freaking full of himself that he doesn't realize how petty and immature this whole thing looks (oops, is that on the list of things we can't say?).

Filed Under: defamation, emma best, julian assange, leaks, secrecy, streisand effect, transparency
Companies: wikileaks

The Ajit Pai FCC Often Battles FOIA Requests For No Reason, Showcasing Its Hostility To Transparency

from the ill-communication dept

You might recall that FCC boss Ajit Pai promised to operate the "most transparent" FCC ever. Initially, Pai lived up to that promise by changing FCC policy so that FCC orders would be released before they were voted on; a pretty obvious improvement of benefit to both consumers and ISP lobbyists alike. But in the year or two since, Pai has shown that genuine transparency is the very least of the chairman's priorities.

For example, Pai's FCC has actively refused to aid law enforcement inquiries into who was behind the millions of bogus comments that polluted the net neutrality repeal public comment period. Similarly, the Pai FCC's general response to FOIA requests has been to stall, delay, and ignore said requests whenever possible, resulting in numerous lawsuits by media outlets attempting to get to the bottom of all manner of bizarre FCC policy decisions (like that fake DDOS attack emails show they made up to try and downplay public anger over the net neutrality repeal).

This stonewalling extended to more mundane subject matter, like media inquiries into that giant Reeses mug Pai believes is eccentric. Or inquiries into who was behind that aggressively lame Harlem Shake video that featured Pai and some pizzagate conspiracy theorists trolling net neutrality supporters.

Hip, man, yeah.

As with other, more serious inquires, reporters that filed FOIA requests related to this video were met with stonewalling by the FCC, which tried to claim that numerous FOIA exemptions prevented it from complying. In this case, reporters say they were told by Pai's FCC they couldn't release any emails related to the video's creation because of FOIA exemption b(5) (affectionately referred to as the "Withhold It Because You Want To" exemption by FOIA nerds). That is, you might recall, the same exemption the Pai FCC used when people tried to find out if he worked with Verizon on another, similarly lame video making light of his cozy ties to industry.

All of that said, MuckRock Executive Editor JPat Brown persisted, filing numerous appeals stating that the FCC was engaged in a bad faith interpretation of b(5)’s deliberative process privilege. After the FCC spent months denying requests or trying to provide everything but the email bodies, the FCC was finally forced to comply last month, and released at least some internal emails related to the video's creation.

What did they say? Bupkis. Several simply highlighted how the Pai FCC has worked with Trump-friendly outlets like the Daily Caller on the video's production and circulation, which we already knew. Other emails the FCC fought to avoid releasing said nothing of note at all:

Which is all a long way of showcasing how, as Brown notes, the FCC's aggressive hostility to transparency (even if there's nothing actually at stake) is its default mode of operation:

"Look, I’ll be the first to say that Pai dusting off some dated memes is far from the agency’s worst crime, and if the FCC had just released these records when I asked from them last December, I would have struggled to string together a couple of work emails into an article of any substance. But the fact that the agency felt the need to fight me on such a stupid issue, for as long as they did, all the while taking care to make sure they don’t lose any ground to fight stupid fights in the future, is alarming, and an important reminder that some agencies are fundamentally opposed to being held accountable for anything.

Pai's blind fealty to incumbent broadband monopolies like Comcast isn't unique; we saw much of the same behavior during the tenure of former FCC Boss Mike Powell, now the top lobbyist for the cable industry. But Pai's FCC is different in that it doesn't just engage in the normal up is down, black is white rhetoric normally reserved for industry sycophants. Pai's current staffers seem to actively enjoy making critics (often the bipartisan majority of ordinary Americans) angry. They're having fun being misleading and aggressively contentious assholes (for lack of a more apt technical term).

But the Pai FCC also differentiates itself by being aggressively hostile to transparency almost to a comical fault. There was no reason to fight against the release of the above emails so vehemently, and the fact Pai's agency did so shows that, even at the risk of costly lawsuits and wasted taxpayer dollars, this FCC sees truth and transparency as mortal enemies in dire need of conquering, not essential axles in the healthy functioning of a democracy.

Filed Under: ajit pai, fcc, foia, transparency

California Town OKs Destruction Of Police Shooting Records Days Before They Could Be Obtained By The Public

from the cops-and-the-people-that-serve-them dept

California has long protected police officers from accountability. Most police misconduct records are impossible to obtain via public records requests. The restrictions covering these personnel files even prevent defense attorneys and prosecutors from accessing them, allowing cops with lousy track records for telling the truth present testimony as if they've never committed a misdeed or told a lie.

After years of legislative surrender to police union pressure and an overall deference to all things law enforcement, this year's model finally managed to get a records reform bill to land on the governor's desk. The new law goes into effect January 1, 2019, opening up access to a number of records Californians have never seen.

Under SB-1421, law enforcement agencies are required to provide public access to records related to use of force, sexual assault complaints, and dishonesty in investigations and reporting of a crime.

Faced with impending accountability, police departments are readying themselves for mass releases of previously withheld data. Oh, wait. The opposite of that.

Inglewood City Council approved the destruction of records that have been in the police department’s possession — more than 100 cases — longer than required by law. The city staff report and council resolution describing the action makes no mention of the new police transparency law. Instead it says the affected records are “obsolete, occupy valuable space, and are of no further use to the police department.” It added the traditional method of destroying such records is to shred them.

Yes, it's merely a coincidence that records the Inglewood PD has held onto for years -- "longer than required by law" -- are being destroyed days before the new transparency law goes into effect. It's all so innocent and devoid of subterfuge the city council did it in secret with zero public notice or input.

No video or audio of the Dec. 11 council action is available on the city’s website and neither are meeting minutes or any record of the decision.

It affects far more than records the PD has retained for years. The authorization from the Inglewood council will allow the PD to destroy all Internal Affairs investigations from 2004-2012 and all Use of Force reports from 2015-2016.

The mayor continues to argue this is all routine city business and has nothing to do with the mandatory transparency going into effect January 1.

“It’s actually quite routine for us to do records destruction,” [Mayor James T. Butts Jr.] told ABC 7’s Eyewitness News. “The Finance Department, the Police Department and other entities — whenever they want to destroy records that exceed a time limit — they submit a staff report to the City Council and the City Council approves or disapproves the records destruction.”

No doubt this statement is true. But this move, with this timing, does nothing to restore years of shattered trust. The Inglewood PD has stonewalled the public for two years, refusing to release info about the killing of two residents by police officers who encountered them passed out in a parked vehicle. The PD was also investigated by the DOJ, which found officers routinely deployed excessive force and were overseen by department management that often cleared officers of wrongdoing after little or no investigation.

The PD's decision to destroy records it has held onto for years only days before they may have become publicly-accessible only further adds to the "bunker mentality" perception noted in the DOJ's investigation. The PD wishes to remain a closed shop despite the new law. This move -- and the city's approval -- lets residents know the city isn't interested in accountability or transparency, no matter what the new law says.

Filed Under: california, inglewood, inglewood city council, inglewood police department, police shootings, public records, record destruction, sb-1421, transparency

Mystery Lobbying Group Using Huawei Security Hysteria To Target Sprint, T-Mobile Merger

from the ill-communication dept

So a few months back, a group mysteriously calling itself "Protect Amerca's Wireless" popped up on the internet and began attacking the Sprint, T-Mobile merger. The campaign, which has all the usual signs of astroturf, takes particular aim at both companies' use of Huawei network hardware -- gear that the organization insists "could give countries like Saudi Arabia, China, Germany, and Japan direct access to our networks through the use of foreign-made networking equipment and billions of foreign money."

In short, the mystery group is piggybacking on the recent hysteria surrounding Huawei to try and scuttle the merger, which is certainly a problematic merger, but largely for employment and competition reasons.

Like most policy and political influence efforts, the campaign doesn't list its funders on its website, simply insisting it's an organic coalition of a few think tanks and some "foreign policy and national security professionals." I reached out to the group for more details on its financing, and was told (falsely) that the group couldn't tell me who finances it because as a 501(c)(3) it's prohibited by law from doing so.

So we've noted for a while that while some of the criticism of Huawei has been justified, much of it has been manufactured by Huawei competitors like Cisco.

And while recent allegations that Huawei may have tap-danced around Iranian sanctions may or may not be true, the claims that the company routinely spies on Americans for the Chinese government has never been publicly proven. In fact, an 18 month study by the White House in 2012 (the last time this hysteria crested) found no evidence supporting such allegations. Germany just this week stated it wouldn't join the Huawei vilification party until somebody provides, you know, actual evidence.

US press coverage of the Huawei story usually fails to mention any of this. Nor is it mentioned that the United States has routinely been busted doing far worse. The Snowden docs, for example, showed how the NSA broke into Huawei, stole source code, and implanted backdoors, something that seems kind of important in conversational context. It's a solid example of how the US tech press isn't particularly keyed into its own nationalistic myopia. It also exemplifies the States' bad habit (both by government and the press) of pushing the idea that dubious and unethical behavior is only okay when we do it.

I'm still digging into who runs Protect America's Wireless (it's worth at least noting that former Rep. Mike Rogers, now an AT&T consultant, was at the outfit's launch). In the interim, it looks like both Sprint and T-Mobile believe are being told by the government that they'll likely have their competition-eroding merger approved if their owners (Deutsche Telekom and Softbank) are willing to remove all Huawei gear from their network and stop using the supplier moving forward:

"T-Mobile US Inc and Sprint Corp believe their foreign owners’ offer to stop using Huawei Technologies equipment will help with the United States clearing their $26 billion merger deal, sources said, underscoring the lengths to which Washington has gone to shut out the Chinese company."

Having watched the Trump FCC's other efforts to help blacklist Huawei, I'd be willing to bet that one of their only meaningful conditions affixed to their gushing approval of the deal will be promises by T-Mobile and Sprint that they won't use Huawei gear (omitted: the fact that neither currently does). This will help the FCC pretend that it hasn't abdicated its role as watchdog, with national security chatter obfuscating many of the terrible aspects of the deal (like the 30,000 potential job losses or the dramatic reduction in overall competition).

The duo get their unpopular merger, Cisco gets more business thanks to facts-optional protectionism, and consumers get bupkis. See how this game works?

Given all of the legitimately dubious things China routinely does, defending Huawei isn't exactly a hill I'm excited to die on. Still, I've been absolutely fascinated by the selective reasoning and hypocrisy as Huawei is increasingly blacklisted. It's particularly odd since the lax security in the internet of things and consumer network hardware space -- arguably just as big of a threat to national security -- receives only a tiny fraction of the same breathless attention by many of these same folks.

Huawei gets oddly singled out as some kind of unique bogeyman. In reality most major telecom operators, including US operators like AT&T, are every bit as sketchy as the allegations levied at Huawei. Dubious lobbying efforts? Check. Illegal and unethical efforts to screw consumers? Check. Massive corruption scandals? Check. Massive, legally-dubious wholesale domestic spying operations? You betcha. Most major telecom operators are government-pampered natural monopolies that don't have to play by the rules and more often than not win the most lucrative government contracts, thanks to their cozy relationship with intelligence.

Huawei may or may not have actually been involved in spying. Maybe someday somebody will actually provide public evidence proving they do. In the interim, it's pretty clear a sizable chunk of the current Huawei hysteria is being generated by the same companies that don't want to compete with Huawei, a layer of protectionism the press should at least mention in passing during the next round of pearl clutching.

Filed Under: astroturf, mergers, michael rogers, secrecy, transparency
Companies: huawei, protect america's wireless, sprint, t-mobile

FCC Commissioner Accuses Her Own Agency Of A Net Neutrality Cover Up

from the ill-communication dept

We've long discussed how the Pai FCC's net neutrality repeal was plagued with millions of fraudulent comments, many of which were submitted by a bot pulling names from a hacked database of some kind. Millions of ordinary folks (like myself) had their identities used to support Pai's unpopular plan, as did several Senators. Numerous journalists have submitted FOIA requests for more data (server logs, IP addresses, API data, anything) that might indicate who was behind the fraudulent comments, who may have bankrolled them, and what the Pai FCC knew about it.

But the Pai FCC has repeatedly tried to tap dance around FOIA requests, leading to several journalists (including those at the New York Times and Buzzfeed) suing the FCC. Despite the Times' lawyers best efforts to work with the FCC to tailor the nature of their requests over a period of months, the agency continues to hide behind FOIA exemptions that don't really apply here: namely FOIA exemption 6 (related to protecting privacy) and 7E (related to protecting agency security and law enforcement activity).

And while the Times and Buzzfeed had appealed the FCC's ruling, the FCC this week released a memorandum and order formally denying those requests. In it, the FCC doubles down on the claims that it's simply blocking the release of this data because it's super worried about the privacy of FCC commenters (though again, if you actually read the Times lawsuit, you'll note the FCC was utterly inflexible in terms of narrowing down the scope of requests).

FCC lawyers also try to make the amusing claim that the press really doesn't need this data because there's other investigations (including one at the GAO) trying to get to the bottom of the scandal:

"Confessore proffers a putative public interest in understanding the integrity of the Commission’s comment process. This question, however, is being or has already been examined by other press outlets,51 Commission staff, and the Government Accountability Office, among others. Confessore has not provided us with any reason to believe that his review of this data would significantly advance any public interest beyond the investigations that are already underway."

Of course this is the same FCC that has also actively blocked law enforcement efforts to get to the bottom of the scandal, refusing nine inquiries from the NY AG over a period of five months for additional data. So while the Pai FCC breathlessly claims it's all about transparency and integrity, their actions on this subject (and that whole fake DDOS attack they concocted in a weird bid to downplay public backlash) tend to undermine these claims.

Meanwhile, Pai's fellow Commissioner, Jessica Rosenworcel, has certainly taken off the gloves in recent weeks. She hit Twitter and issued a statement that effectively accused her own agency of engaging in a cover up of fraudulent activity:

Her full statement (pdf) is also worth a read, and doesn't pull any punches:

"Instead of providing news organizations with the information requested, in this decision the FCC decides to hide behind Freedom of Information Act exemptions and thwart investigative journalism. In doing so, the agency asserts an overbroad claim about the security of its public commenting system that sounds no more credible than its earlier and disproven claim that the system was the subject of distributed denial of service attack. It appears this agency is trying to prevent anyone from looking too closely at the mess it made of net neutrality. It is hiding what it knows about the fraud in our record and it is preventing an honest account of its many problems from seeing the light of day.

Pai's justification for the FOIA blockade tries very heavily to insist this is all just unfair partisan gamesmanship. But at this juncture his FCC's record when it comes to transparency, blatant telecom sector cronyism, and bizarre scandals has pretty much been established. This is an agency that not only used bullshit telecom lobbyist data to undermine policies that had broad, bipartisan public support, it has been rocked by scandal after scandal, fought tooth and nail against real transparency on numerous fronts, and has refused to give any real weight to the will of the tech-savvy public.

Pai comes off as an unwavering ideologue who truly seems to believe he's doing an incredible job of "unleashing innovation" despite every shred of evidence to the contrary (not unlike the man who appointed him to the position). Unfortunately for Pai, whose post-FCC political ambitions couldn't be any more obvious, his legacy will likely be the giant middle finger he's given to tech-savvy Millennials. As for the fake comments specifically, they're likely to play a starring role in next February's net neutrality lawsuits, which will look to prove the agency violated the Administrative Procedure Act by ignoring the will of the public as it rushed to give AT&T, Verizon, and Comcast a sloppy kiss for the ages.

Filed Under: ajit pai, comments, fake comments, fcc, foia, jessica rosenworcel, net neutrality, public records, transparency

EFF, ACLU Petition Court To Unseal Documents From DOJ's Latest Anti-Encryption Efforts

from the talk-to-us,-DOJ dept

Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.

Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.

Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.

The EFF and ACLU are hoping to change that.

In our petition filed today in the United States District Court for the Eastern District of California, EFF, the ACLU, and Riana Pfefferkorn of Stanford Law School’s Center for Internet and Society seek to shed light on this important issue. We’re asking the court to release all court orders and related materials in the sealed Messenger case.

Given the importance of encryption in widely used consumer products, it is a matter of public interest any time law enforcement tries to compel a company to circumvent its own security features.

The petition [PDF] points out the First Amendment guarantees access to courtroom proceedings and the courts are supposed to adhere to this by operating with a presumption of openness. Only in rare, rare cases should they side with the government and allow the public to be cut out of the loop by sealing documents.

This is doubly true in cases of significant public interest. Any time the DOJ is in court agitating for broken encryption, it's safe the say the public will be affected by the case's outcome. At this point, we don't know anything more than the DOJ didn't get what it wanted. What we don't know is why, or what impact the ruling here will have on similar cases in the future. And we should know these details because, if nothing else, the FBI has proven it cannot be trusted to deal with device encryption honestly.

Filed Under: breaking encryption, compelled access, doj, encryption, facebook messenger, fbi, going dark, ms-13, public records, sealed court documents, transparency
Companies: facebook