[Updated] Ancestry.com Employees Caught Throwing Away Thousands Of Records They Were Supposed To Be Archiving For The US Government

from the file-under:-wastebasket dept

[Update: Amy Rubenstein of Ancestry.com has pointed out a few inaccuracies within this post and I have corrected information as needed. Some claims made are still open for debate, so rather than strike statements that are less than wholly resolved, I have added Rubenstein's statements directly after these sentences.]

Ancestry.com has long been a government contractor, converting millions of hard copy records into electronic files. In conjunction with the National Archives & Records Administration (NARA), it has performed monumental tasks like indexing and scanning all US Census records from 1790 through 1930. Or has it?

The private company operates with minimal oversight and its relationship with the NARA is a "closely-guarded secret." [Rubenstein says Ancestry.com's archival work is overseen by "government employees and monitors." This would suggest more oversight than Matthew M. Aid -- intel historian and NSA expert -- asserts there is in his introduction to the news article quoted here. Rubenstein made no statement concerning the "closely guarded" secrecy of Ancestry.com's relationship with the NARA.] This lack of accountability has naturally resulted in, shall we say, lackluster efforts from its employees. (via Unredacted)

An employee of ancestry.com who was working at the federal records center in north St. Louis County was fired for allegedly throwing out draft-card information, a federal administrator said.

Bryan McGraw, director of the National Personnel Records Center, said Friday that his staff recovered all the papers, some of them from a trash can. The incident on March 12 prompted the federal agency to halt contract work by Ancestry Inc., which operates as ancestry.com, at St. Louis and four other sites.

The currently-on-hold project involved scanning in 49 million draft records. Apparently, an employee found it easier to satisfy his/her supervisor to hit quotas by dumping files in the nearest trashcan… or glove? [Rubenstein says ancestry.com does not "hand out quotas." It monitors employee efficiency by "tracking average scanning output," but does not issue quotas directly to its employees.]

McGraw said the employee apparently had been warned about productivity by his supervisor and tried to dispose of a pending stack of supplemental papers that had been attached to individual draft cards. McGraw said another person found some of the records on the employee’s desk and others stuffed into a latex glove in a trash can.

This isn't the first time ancestry.com's been caught destroying files it's supposed to be archiving. [Ancestry.com's Rubenstein points out that the company did not take over the archival efforts at this location until August 26, 2014. The incidents discussed here occurred in 2012, with the investigation finally wrapping up in 2014. I have amended the article title to reflect the fact that ancestry.com employees did NOT dispose of "thousands of records." According to Rubenstein, the number of records trashed in this recent incident was "slightly over 100. My apologies to ancestry.com for stating both incidents happened under ancestry.com's purview.] Last year, employees at the same location were caught disposing of thousands of records.

National Personnel Records Center workers here dumped, stashed or otherwise destroyed 4,000 records of individual federal employees, the head of the National Archives revealed in a memo this week.

That alone would be bad enough, but the documents the St. Louis Post-Dispatch acquired suggested that the problem had been ongoing for years.

A July 30, 2012, letter from the Office of Inspector General said that as the old records center facility in Overland was being decommissioned in 2011, employees found documents hidden in pillars and stuffed in the space between the floors and the lowest shelves.

This finding -- along with the recovery of supposedly-archived documents in the woods [!] outside of Alton, Missouri, led to the NARA contacting 132 veterans to inform them that their personal information may have been exposed. It did not, however, lead to the pulling of contracts from ancestry.com. [See above note about ancestry.com's takeover date.] Sentences were handed down to two employees -- one of whom threw away or destroyed 850 of the 1,200 records he'd been assigned. Others were allowed to resign rather than face punishment for their actions. The exposure of ancestry.com's carelessness resulted in little more than the NARA's Inspector General suggesting someone should do something about maintaining the integrity of the records entrusted to the commercial service.

This isn't the full extent of ancestry.com's abuse in relation to its federal archival efforts. Despite not being the true "owner" of the documents and the information contained therein, the company has done everything from issuing bogus DMCA takedown notices on by-default public domain records to locking up US government-produced records behind paywalls. As to the latter, it claims it was done for "security reasons," in order to prevent Social Security numbers of the recently-deceased from being exploited by identity thieves. What ancestry.com's spokesperson failed to mention in public statements is that Congressional pressure forced the redaction of Social Security numbers. Moving the records behind a paywall was just a fortuitous byproduct of its earlier careless exposure of SSNs -- a decision made for purported "security" reasons but one that allowed it to monetize publicly-funded, public domain records.

The issue here is the lack of oversight. Private companies often provide essential services to the government, often at a fraction of the cost of the government performing the work itself. But these government agencies need to be closely watching their hired help and to react more quickly, and with more severity, when the relationship is abused -- on either end. Ancestry.com's work is essential to the establishment of a permanent home for indexed government records. Unfortunately, the oversight needed to prevent the sort of behavior exhibited here isn't in place and that's going to create holes in the public record and prevent ancestry.com from being considered a trustworthy repository of public information. [As noted in updated sections above, ancestry.com is monitored by government employees. Obviously, the oversight has a few flaws, but there is some form of oversight in place.]

Filed Under: archives, nara, national personnel records center, records
Companies: ancestry.com

Copyright Law Is Eating Away At Our Cultural History: And It's Time To Fix That

from the archiving-history-is-great dept

If you weren't under a social media-less rock a few weeks ago, you hopefully heard about the Internet Archive releasing over 2,000 MS-DOS video games, playable in the browser. As I noted to someone on Twitter, it was like half of my childhood on the screen. What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game. For me, it was things like Oregon Trail, Pole Position, Lode Runner and Championship Baseball (and also some college memories of avoiding studying by playing Scorched Earth -- hey, at least it sorta felt like I was learning physics). But for others it was something entirely different. Each person seemed to latch onto their own moment in history (and a new chance to procrastinate or waste time by reliving that experience).

This, of course, was only the latest in an ongoing effort by the Internet Archive, led by Jason Scott (who has been involved in all sorts of archival efforts of internet content and video games and made a documentary about text adventure games called Get Lamp). Andy Baio has a great post up discussing this work and how important it is that it's being done by the Internet Archive, rather than a giant corporation. As he notes, while Google used to really focus on similar archival projects, in the recent past, it seems to have let that focus fade, which is quite disappointing.

Of course, in discussing the possible reasons why Google's archival efforts have stagnated, Baio tosses out a few suggested reasons, including the lack of profitability, but also, the potential legal liability. After all, Google is still fighting in court about the Google book scanning project, and the focus of that project seems much more about pushing people to buy books, rather than being able to do useful searches through that huge corpus of knowledge.

Baio is (quite reasonably) thrilled that the Internet Archive has been willing and able to step up, and notes that the video game archive shows how Archive.org is a lot more than just saving old websites: it's about preserving our cultural history.

But, other than that one offhand mention of the risk of legal liability to explain Google's dropping the ball on similar stuff, Baio leaves out the related issue of copyright and the DMCA (which he knows about all too well from personal experience). This isn't a fault of Baio's article, he's just focused on something else. But the copyright aspect is really important -- especially right now.

That's because the main reason why the Internet Archive is allowed to do this kind of thing is because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it's not entirely clear that what the Internet Archive is doing is fully protected today. Furthermore, as we saw a few years ago with unlocking mobile phones, the Librarian of Congress can simply delete those exemptions on a whim.

And, right now, we're in the middle of the DMCA exemption process yet again, with a bunch of requests on tap -- including an important one from the EFF [pdf] to allow such activities:

Proposed Class: Literary works in the form of computer programs, where circumvention is undertaken for the purpose of restoring access to single-player or multiplayer video gaming on consoles, personal computers or personal handheld gaming devices when the developer and its agents have ceased to support such gaming.

Baio's article talks about how projects like the one at the Internet Archive are magical in preserving history and giving us access to "all of computing history... accessible from a single click." This is incredibly important -- but copyright law is standing in its way. This isn't about "piracy" in any real sense. The games and software being discussed are not being sold anywhere. The hardware that it worked on is long gone. This is about preserving our cultural history -- something that industry appears to have no interest in doing, in part because copyright law itself makes it so risky.

If you think things like this are important too, I also suggest heading over to the Digital Right to Repair site where they've made a really easy form for you to share your thoughts with the Copyright Office as it considers the latest exemption requests. The Copyright Office also has its own form, but it's government-level cumbersome. The Digital Right to Repair site is much easier to use. It has some pre-selected text for the various exemptions being debated, but also (very easily) allows you to write your own thoughts (which you should).

One of the key factors in the decision over what to exempt and what not to exempt is a demonstrated "market need" and you can help make the case by sharing your story with the Copyright Office.

Filed Under: 1201, anti-circumvention, archives, archiving, copyright, copyright office, dmca, dmca 1201, drm, exemptions, jason scott, librarian of congress, libraries, triennial review, video games
Companies: internet archive

This Week In Techdirt History: January 4 - 10th

from the history-repeating-itself dept

Five Years Ago:

Bono thought that Chinese internet censorship was a good example of how the US should deal with music piracy. Viacom was in the thick of its lawsuit with YouTube, asking the court of summary judgment, but redacting nearly the entire argument because apparently the reasons were secret. Sony Pictures was refusing to send out some screener DVDs to promote its own films for the Oscars, because it was worried about piracy. A Finnish indie label claimed that it wouldn't sign any new bands unless the government magically stopped piracy. After that got some attention the company deleted that statement, and appears to still be releasing music. An analysis of the impact of the leak of the Wolverine film suggested that the leak may have actually helped at the box office. We were, once again, pointing out how there's basically no punishment for filing bogus DMCA claims -- and this was in the days before millions were sent every few days.

France was looking to put in place a right to forget law, while also floating an idea to just tax internet companies to fund record labels. France really, really hates the internet, huh? Meanwhile there was a good proposal in the UK to require copyright holders to have to demonstrate actual damages from infringement (unfortunately, that didn't go anywhere). UFC announced that it was going to sue individual downloaders even though the company knew that the cost of suing was more than any "loss." Speaking of copyright infringement, we wondered how some people could argue that inline linking was infringement, seeing as it's little different than deeplinking, which is legal. Of course, this fight lives on today over embedding. Meanwhile, in Singapore, remote DVRs were declared infringing, the opposite of the Cablevision case in the US.

Some guy sued his neighbors for refusing to turn off their WiFi. The FCC's very first attempt at net neutrality rules weren't faring well in court (just like the second ones, though hopefully they get it right the third time). We were rightly predicting that there was a coming fight between cable TV and the internet. Chris Dixon wrote a great piece talking about how the next big thing will start out looking like a toy -- something that I often still reference today. We discussed how, for all the promise of the Obama administration being the first "internet" Presidential administration, the reality was that once elected, the administration basically gave up on the public that helped it get elected. Cisco was realizing that patenting everything was a waste of time.

We were pointing out how more surveillance makes us less safe (yes, years before Snowden). We were concerned about the TSA sending subpoenas to some bloggers who wrote about some TSA directives.

Ten Years Ago:

As you may have heard, ten years ago I uttered the phrase "the Streisand Effect" for the first time, and that may be the most popular thing I've ever done. Yet another court told the RIAA that it can't subpoena info on downloaders without first filing a lawsuit (something some copyright trolls still don't believe). In response, the BSA asked Congress to change the law to force ISPs to hand over info (thankfully, that didn't happen). Someone conducted a whole study to point out that the entertainment industry was worried about file sharing.

Bill Gates argued that people trying to reform copyright laws to make them less draconian were just Communists, because, apparently, he understands neither the economics of intellectual property, nor Communism. An appeals court panel ruled that ESPN could, in fact, call Evel Knievel a "pimp" (in response, Knievel called the judges "bimbos."). We were already pointing out problems with red light cameras. A law professor "with three doctorates" fell for a Nigerian scam.

Fifteen Years Ago:

This was the week that AOL announced it was buying Time Warner, and the entire internet landscape shifted. But not necessarily in a good way (though I still argue the idea was sound, the execution was dreadful). Fifteen years ago, Steve Jobs also dropped the "interim" part of his "interim CEO" title that he'd taken upon his return to Apple. With the failure of any doom and gloom scenarios post Y2K, some were angry at those who predicted the end of the world. Meanwhile, the SF Chronicle was predicting what would happen if tech stocks crashed (which they did 3 months later).

There was some discussion about the idea of using GPS to automatically slow down cars that were speeding (bad idea). I was excited about MP3 watches at CES (I even had one for a few years, and it was great).

One Hundred And Twenty One Years Ago:

A 47-frame film of Fred Ott sneezing, created by WK Dickson (working for Thomas Edison), was filmed and given a copyright, making it "the earliest surviving copyrighted motion picture" thus kicking off the movie industry's over-infatuation with copyright that lives on to this day.

Filed Under: archives, history, look back

This Week In Techdirt History: December 28th - January 3rd

from the new-year's-edition dept

Five Years Ago:

Movie studios started planning how to stop Netflix from showing their films (which is why Netflix still has a limited selection of streaming movies). This was also the week that Viacom realized that of all the videos it had sued YouTube over, it had actually uploaded over 100 of them itself -- meaning both that they were fully licensed and proving the point that if Viacom can't even tell which videos are licensed and which are not, it's ridiculous to think that YouTube should just magically know which ones are which. Record label Interscope was trying to get people to buy CDs by offering you a copy of Tweetdeck software "for free!" if you bought a CD. Except, of course, Tweetdeck has always been free. The MPAA ratings people gave "It's Complicated" an R rating for showing movie watchers that pot can make you giggle. Nina Paley made a key point in noting that the problem has never been middlemen, but monopolies.

One court totally overreacted and ordered an entire website taken down because of some defamatory comments on them, while another court correctly rejected a lawsuit against a consumer complaint site (ConsumerAffairs) properly noting that Section 230 protected the site from liability over actions of its users. Meanwhile, the Canadian government sought to take down a parody site by the Yes Men, and it resulted in the ISP actually taking down 4,500 sites. Censorship at its finest.

We wrote about how automakers were abusing copyright law to force you to pay more for repairs. FCC boss Julius Genachowski's Facebook account spammed all his friends with a "make money now!" offer. And a court tossed out a silly class action lawsuit against Apple from people who said the iPod resulted in hearing loss.

Finally, we're only looking back five years here, but five years ago we wrote about how the blog MusicAlly was looking back at the major labels' "online strategies" from 2001. They weren't pretty, though the strategies were fairly amusing -- mostly focusing on proprietary formats and DRM. As we noted at the time, all of the strategies were focused on trying to recreate the old retail world where scarcity ruled. That's a really dumb strategy in an age of digital abundance.

Ten Years Ago:

It was (not surprisingly) a bit of a slow week. Minnesota kept trying to tax VoIP companies despite FCC rules saying that VoIP shouldn't be taxed like regular phone lines. Verizon's anti-spam system went haywire and just started blocking all foreign emails (that's one strategy...). Some music labels were apparently experimenting with sneaking spyware into media files (a bit of foreshadowing for the Sony rootkit scandal, which went public the following year).

We were also talking about early ride sharing programs, whether or not the internet was good or bad for social relationships, and musicians who realized it was good to give fans what they want. Oh yeah, we also discussed how you couldn't name your kid with a .com in his name in China.

Fifteen Years Ago:

Our final post of 1999 pointed out that the Y2K bug scare didn't actually result in that much business. Some had been predicting that "fixing" the Y2K bug would be a boost to some tech companies' bottom lines. Wired Magazine, which had bizarrely sold off its entire digital arm, including the wired.com domain name was trying to buy it back -- a deal that wouldn't actually be completed until 2006. ABC was getting (rightfully so) nervous about dot com bubble startups buying Superbowl Ads, asking those companies to pay cash up front. And just to show you how different things were in 1999, people were excited about the fact that DVDs were catching on, after some had expressed skepticism that they'd find a real market. Things have changed....

Thirty One Years Ago

AT&T was broken up as a monopoly by the US government. And, today, it's almost all the way back to a monopoly. Watch that pendulum swing...

Filed Under: archives, history, look back

This Week In Techdirt History: December 21 - 27

from the history-at-christmas dept

Five Years Ago

A federal Anti-SLAPP law was introduced in Congress, and went nowhere. It's something we desperately need, and it's ridiculous that Congress hasn't taken up the issue. Various online publications were still whining about Google sending them traffic. Meanwhile, as the recording industry was whining about piracy, we noted that it would likely be blaming something else within a decade (I think streaming sites are the current obsession). IsoHunt lost a key ruling in court, saying that the site "induced" infringement by showing what was popular -- and also because the court took some statements by the site's founder out of context.

China took unending Hollywood-funded pressure to ramp up its efforts to stop copyright infringement... and used it as an excuse to censor more of the stuff on the internet that the Chinese government didn't like. Meanwhile, a German court decided that TV schedule information was covered by copyright. Demi Moore's lawyers thought that it was defamation to suggest that her images had been photoshopped. And the NBA was fining players for happily tweeting about victories too soon after the game was done.

There are two other interesting stories, just because nearly identical issues have cropped up this week, five years later. First, we had a discussion on whether or not sites should be forced to take down content if a court rules against the user -- if the user can't be found or is unable to do anything about the content. The sites are protected by Section 230 and don't need to do anything -- but some are suggesting otherwise. In fact, a judge in NY was suggesting that a Right To Be Forgotten might be a good remedy in this situation. The second was a story out of Chicago, done by the Chicago Tribune, noting that red light cameras seemed to be leading to more accidents. We've been reporting on this exact thing for many, many years, but this past week the very same Chicago Tribune reported on the very same issue again after doing a more detailed look at the numbers. Turns out its story from five years ago still held true: red light cameras increase crashes.

Ten Years Ago:

Do you remember when Cablevision thought that it was going to get into the satellite TV game and compete with DirecTV and Dish? It was called Voom and it failed miserably. Blockbuster (remember that company?) was realizing that Netflix was real competition. During this holiday season -- but years before smartphones were really a thing -- we were discussing the issue of bringing your email on vacation.

Despite all the fears about kids learning "texting speak," studies were showing that kids can understand the context and know they have to write differently in formal settings rather than sending a text to a friend. And yet some people still don't believe this. Trust me: kids are smarter than you think. Finally, we were learning about more and more documentaries that could never be shown again, because original licenses for archival footage and/or music wouldn't allow them to ever be shown again.

Fifteen Years Ago:

While most people were correctly predicting that the shift from 1999 to 2000 would not result in the Y2K bug ending the world, MTV was still pulling a publicity stunt and sending six people into a bunker to repopulate the world after everything fell apart. I wonder if they're still down there. Speaking of bad predictions, some were saying that Amazon.com was finished. In 1999. Oops. But, more seriously, online shopping was having some trouble delivering Christmas gifts on time.

Fifteen years ago, there were some early attempts to monitor driving traffic by looking at mobile phone data. The idea seemed perplexing to us -- and we wondered about the privacy implications. Of course, fifteen years later, we're all tracked everywhere we go... but we have pretty decent information about the traffic when we're driving. Finally, in those early days on the web, you could still put up fake job listings and convince people they were interviewing for a job at CBS.

Thirty Two Years Ago

Time Magazine named "the personal computer" as its "Person of the Year" -- the first time it went to a non person.

Filed Under: archives, history, look back

This Week In Techdirt History: November 23 - 29

from the looking-back dept

Five Years Ago:

ESPN suspended Bill Simmons (from Twitter) for calling someone deceitful. Huh. That sounds familiar. ACS:Law, which was the UK version of Prenda before Prenda existed was just ramping up. Spam King Alan Ralsky was sent to jail. Microsoft was trying to shut someone up after they revealed some "flaws" in Microsoft's plan to bribe users to use Bing instead of Google. Speaking of Bing, Rupert Murdoch was toying with the idea of taking News Corp. sites out of Google's search results if Microsoft paid him enough. And Hulu was furious that people were actually embedding its videos, despite the fact that Hulu provided tools to embed.

We looked at how Hollywood was really at fault for a significant part of movie piracy, by not giving users what they wanted. Similarly, we looked at how the recording industry spent so much on payola to get people to hear their music for free -- and yet were so angry about piracy, which got people to hear their music for free. Speaking of Hollywood, the heads of the big studios had pretty much all settled on a new talking point: that they were really concerned about the independent filmmaker, rather than big studios when ti came to piracy. Of course, more indie films were being made than ever before, and those indie filmmakers now have many more ways to get supported than ever before, so that rang pretty hollow. And, a record label exec was arrested for not using Twitter to ask Justin Bieber fans to disperse.

We were celebrating Wil Wheaton saying people should "get excited and make things" rather than griping about how business models and such were changing online. Meanwhile, we highlighted some research about how copying and imitation are actually quite good for society, even if people think they're bad.

Ten Years Ago:

We were talking about how there were over 400 companies selling "VoIP" offerings, and wondering how they could possibly survive (spoilers: they didn't). The first case we'd heard of where scammers were trying to sneak malware through banner ads on popular sites. Unfortunately, this remains an issue today. People were starting to realize that stores like Best Buy were really showrooms for Amazon. And a court told the MPAA that it couldn't lump a bunch of unrelated file sharing lawsuits into the same case.

Also, ten years ago, Perfect 10 sued Google for showing thumbnails of some of its porn images hosted on other sites. That case would result in one of Perfect 10's many courtroom losses, and also set a good precedent concerning fair use. Also, ten years ago Congress started pushing for a new job in the White House, the IP Enforcement Coordinator -- a role they finally pushed through as part of the ProIP Act in 2008 (with the job coming into existence in 2009).

Fifteen Years Ago:

Ah, such a quaint time. We were excited about the possibility of paying bills online (seriously). This was the era of the "free ISP," though the catch was that if you used them, you had to deal with ads from them. So we found it interesting that a new one was launching, and its main selling point was that it was a free ISP with no ads. Instead, they hoped you'd buy stuff from their e-commerce store. Media merger potential is always in the news, so fifteen years ago, Time Warner as looking to buy NBC. Oh, and remember when AOL was so powerful that it could be evil without consequence? In order to ramp up its business of spamming its own users, AOL claimed that all of the opt-outs from spam had "expired" and users had to re-opt-out to avoid being spammed by AOL partners in the future. How nice. No wonder people started leaving in droves soon after.

Forty two years ago:

Atari released Pong, the first "commercially successful video game" kicking off the start of the video game revolution. Two years ago, on the 40th anniversary, Buzzfeed published an astoundingly wonderful history of Atari and Pong. Go read it.

Filed Under: archives, history, look back, techdirt

Senators Hoping To Keep CIA From Destroying Most Of Its Employees' Emails

from the agency-replacing-'delete'-buttons-faster-than-ever dept

The CIA and Senate have found more to fight about. With the "Torture Report" mostly in the hands of the White House at this point, the two are now battling over the CIA's planned alterations to its email retention policies.

Key senators are pushing back against a CIA plan to destroy older emails of “non-senior” agency officials.

The heads of the Senate Intelligence Committee on Wednesday sent a letter opposing the proposal, under which only the highest ranking CIA workers would have their email correspondence permanently saved.

The plan “could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public and the courts to know,” Chairwoman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) wrote to the National Archives...

The senators are asking the National Archives to step up and somehow prevent this from happening -- most likely by declaring "non-senior" emails to be retainable records that must be turned over rather than destroyed. The CIA would prefer to destroy the emails of all but the top 22 employees three years after they leave, or when "no longer needed, whichever is sooner." Unfortunately for the senators making this request, the National Archive has already signaled its agreement with the CIA's proposed retention schedule changes.

In tentatively approving the request, the National Archives noted that the emailed information “is unlikely” to exist in other forms that will be marked for permanent storage.

Any information not found in those other files likely “has little or no research value,” it added.

Senators Feinstein and Chambliss -- in rare agreement with transparency and government accountability activists -- disagree with the National Archives' assessment.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” Feinstein and Chambliss wrote.

Longer retention is needed, especially for an agency as secretive as the CIA. The standard wait period for sensitive document declassification is 25 years. Correspondence related to declassified documents will be long gone by that point.

Even in terms of normal FOIA requests, three years is cutting things close. Rarely does an FOIA-worthy event come to light within days or weeks of its occurrence. It's generally weeks, months or years down the road. By the time documents are requested, ignored by the CIA's FOIA staff and finally pried free by a federal lawsuit*, responsive documents may already have been destroyed. Without a doubt, the CIA knows this is a distinct possibility and any trimming of retention periods only makes it more likely that relevant communications will be permanently removed from circulation.

*YMMV

Filed Under: archives, cia, email, email retention, foia, history, records, senate, torture report

Small Change To National Archivist's Powers May Keep Government Agencies From Destroying Embarrassing Documents

from the keeping-information-secure-until-it-can-be-freed dept

There may be some better news on the way for those of us who like free-as-in-FOIA information and an accountable government. Professor and attorney Douglas Cox points out that an amendment to the statutes governing the National Archive may give that agency the power to keep records of public interest from being deleted, destroyed or otherwise hidden.

Having passed every step but presidential approval, H.R. 1233 (Presidential and Federal Records Act Amendments of 2014) [pdf link], makes the following small, but important, change to the Archivist's powers and duties. Here's the portion Cox highlights at Document Exploitation:

DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.

As Cox explains, this single paragraph allows the Archivist to determine what is or isn't a record -- something that must be retained -- and makes it binding across all federal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.

[T]his authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation.

Cox goes on to note that this isn't a theoretical harm. It's something that has happened time and time again over the past several years.

[F]rom the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

The loophole isn't in the "record" language. That's still very broadly defined and (unfortunately) rather malleable. The loophole is which records are "appropriate for preservation," something that has been left up to each agency to determine. And "determine" they did, right up to the point that DC circuit court judges pointed out that government agencies have a "built-in incentive" to destroy records related to "mistakes."

Cox notes that while this amendment is promising, it doesn't fix everything -- especially some records-related circular reasoning that has made its way into the definition of "records" with the assistance of the National Archives and Records Association itself. But it is a step forward.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

Cox recommends the first action it should take with its new powers (should the President sign it into law) is ensure the Panetta Review is designated a permanent federal record to keep the CIA from performing any extra "editing."

Filed Under: archives, documents, foia, history, national archives, public access

This Week In Techdirt History: November 2nd - 8th

from the looking-back dept

Five Years Ago

We were looking at what it would take to really reform copyright law thanks to a great paper from Jessica Litman. Meanwhile, one of our readers argued that there was actually a moral argument in favor of file sharing (I found it interesting, but didn't fully agree). Speaking of sharing, the White House was trying to claim that you couldn't modify its official photos, but that's not what copyright law says, since federal government works are public domain. In more bizarre government copyrighting, we discovered that Canada and Europe actually claim a copyright on the design of their currency. A court found that answers to textbook questions were a derivative work of the original, and thus potentially infringing.

The MPAA got some propaganda on 60 Minutes while we were wondering if any of this anti-piracy activity would actually make people buy. The MPAA was also claiming that if piracy wasn't stopped, the internet would die. And, of course, the FCC was looking at letting the MPAA break your TV and DVR because piracy. I was personally annoyed at Hulu for telling me I couldn't watch if I used my VPN.

In other news, Glenn Beck was not allowed to seize the domain name GlennBeckRapedAndMurderedAYoungGirlIn1990.com, despite his attempts. Venezuela was blaming video games for violence. A court said that using a domain registration privacy service was "material falsification and David Brooks claimed that mobile phones were destroying courtship (I wonder what he thinks of Tinder).

Comcast was sure that the solution to customer complaints was to change customers' behavior, rather than its own business model. Retailers wanted a law blaming eBay for shoplifters selling stolen goods. Germany was already looking for blame Google copyright laws to "save newspapers." Oh, and the Obama administration broke out its first attempt to use a "state secrets" claim to kill a lawsuit about warrantless wiretapping.

And finally, we posted some results on our first experiment with asking you, our community, to support us.

Ten Years Ago

Time shifting TV was just catching on while voicemail was dying. Also, AOL was losing customers by the millions, which was funny for those of us who remembered its frequent press releases about each new million signups. Qualcomm spent nearly a billion dollars on a special TV system for mobile phones that absolutely no one wanted. Meanwhile a price war was breaking out in the DVD-by-mail space (remember that?). Oh and the broadband guys were already doing everything possible to block muni broadband competition.

We were wondering if virus writers deserved jailtime while some spammers were getting many years in jail. Meanwhile the feds were trying to track down the fax.com spammers who had been fined many times and just ignored it over and over again.

Bad patents were a big thing, with some company claiming a patent on international e-commerce and another on product recommendations. It was also one of the first times we'd seen a lawsuit over a negative review (and companies still don't seem to realize you can't really sue over that). Oh, and of course, the MPAA was copying the RIAA's bad strategy of suing file sharers.

Fifteen Years Ago

A court ruled that Microsoft was a monopoly while Webvan -- one of the classic dot com bubble startups -- had its IPO right at the height of the bubble era, just as competitor, HomeGrocer raised $100 million. Another classic of the bubble era was the online pet store category. While Pets.com was the most famous there were half a dozen or so competitors. One of them, Petopia, raised $66 million before launching and claimed its "differentiating factor" was it had more money than everyone else. And then, fifteen years ago this week two other online pet stores raised much more money, each breaking $100 million for unproven businesses in a highly competitive market. Think about that when people claim we're in a bubble today. Over in Europe, some folks were trying to copy Silicon Valley's bubble with the infamous boo.com -- and it wasn't going well (for the investors, at least).

Back in 1999, Microsoft was already looking at ebooks while Barnes & Noble bought books.com, which had been an attempt to take on Amazon by Cendant (which, at one time, had been considered an up-and-coming internet company) as well as a big stake in a publishing on demand company.

Fifteen years ago was also the week when we got one of the first absolute nutty web-meme/internet celebrities with the rise of Mahir, the "I Kiss You!!!" guy. His original web page has been moved, but you can see it here, and for you young kids who missed the Mahir phenomenon, you may immediately notice the resemblance to the later Sascha Baron Cohen character Borat -- something that apparently angered Mahir.

Twenty Six Years Ago:

The infamous Morris worm was unleashed on the internet, by Robert Morris -- who was just trying to measure the internet. Instead, it ended up taking down much of the internet, and Morris has the unfortunate claim to fame of being the first person convicted under the Computer Fraud and Abuse Act (CFAA). This represented the first of many abuses of the CFAA law, which still is in desperate need of fixing, and which Congress still refuses to fix. On a somewhat related note, years later, Morris went on to cofound YCombinator. Also, in the very first YCombinator class, one of the entrepreneurs was Aaron Swartz, who (as you well know) went on to kill himself while facing criminal charges under the CFAA for downloading too many journal articles from a website he had legal access to. Today would have been Aaron Swartz's 28th birthday (yes, he was born two years to the day before the Morris worm), and there are a bunch of hackathons in his honor going on.

Filed Under: archives, history, look back

This Week In Techdirt History: October 19th - 25th

from the sweet-reminiscence dept

Five Years Ago

It seems like there were a lot of shifting opinions this week in 2009. Media analysts began to realize that charging for online news was almost surely a losing proposition; Gartner was finally realizing that social networking at work isn't so bad; despite an anti-piracy "education" campaign, people in Sweden were becoming less and less concerned about file sharing — and, indeed, talk about the "death of file sharing" at the time was clearly exaggerated, while several musicians were beginning to realize that it's not as evil as they thought. And Europeans were being a bit confusing, supporting the idea of digitizing books as long as Google wasn't the one in charge.

Of course, we also saw plenty of the usual: Monster Energy Drink started bullying a beverage review website and a harmless actor. The Sex Pistols were also getting in on the trademark game. Hollywood was trying to contractually stop stars from connecting with fans, copyright holders were targeting university copy shops, PRS went after a shop assistant for singing at work, and the Wall Street Journal's managing editor called those of us who believe in free content neanderthals.

We were also in the middle of the Shepard Fairey/Associated Press dust-up, with Fairey foolishly destroying evidence and sacrificing good will — though we also wondered whether you could really trust the AP's coverage of the lawsuit.

Ten Years Ago

Remember that time in 2006 when the internet collapsed under its own weight and died an ignominious death? No? Well, in 2004, that's what one researcher was predicting. Not all the predictions ten years ago were bad though: people were cluing in to the future of device convergence and the need to ease up on brand management (I don't think Monster Energy got that message).

In the world of television, there were a few things going on. Work began on getting mobile HDTV ready to launch even though nobody seemed interested in mobile TV at standard definition; there was lots of chatter about devices that let you shut down any TV nearby by cycling through remote control codes; HBO was locking down the ability to copy programs, with flagrant disregard for fair use; and one man's TV caused a bizarre stir by broadcasting an international distress signal for some reason.

Today, it's almost impossible to imagine Christmas shopping without the internet — but in 2004, people were still wondering whether e-commerce could thrive without extreme holiday promotions. Publishers, meanwhile, were still worried about BugMeNot, and lots of people were worried about cyberbullying. One European Commission lawyer was not even a little bit worried about using his fax machine properly, and that cost 100 million euros when he put a document in upside-down and sent the court 100 blank pages.

Fifteen Years Ago

It's a shame that so many links from 1999 are now broken. Fifteen years ago, we pointed to an article by Tim Berners-Lee on the future of the web — but sadly, the link now just puts you on the MSNBC home page. I haven't been able to track down the exact article, but I suspect it was related to his book Weaving The Web, released the same year.

Two years ago, Encyclopaedia Britannica stopped publishing in print — but back in 1999 it had just launched its website, only to see it knocked out by high traffic. Technical difficulties also plagued the online chess match between Kasparov and the world.

Amazon's one-click purchase patent is among the most infamous "bad web patents", and this week in 1999 the company sued Barnes & Noble over it. A less high-profile web battle also broke out, with funeral directors fighting against online casket sellers. And a bunch of software companies discovered that nobody cared about their No Piracy Day.

Today it's assumed that basically everyone has a working knowledge of the internet — but in 1999, companies were just realizing that "internet experience" is an important qualification for a CEO. A lot of companies were also planning millennium parties, since they wanted their employees around in case Y2K really turned out to be a disaster. And the state of Massachusetts was trying to brand itself the ".commonwealth" to compete with Silicon Valley.

1999 was a post-Playstation world, and a new big console war was brewing. At the time, the X-Box was a "mysterious" tease, the GameCube was still codenamed "Dolphin", the PS2 was gearing up for release in Japan, and the Sega Dreamcast was still considered a serious contender.

153 Years Ago

October 21st, 1861 was a landmark day in the history of telecommunication: the First Transcontinental Telegraph was completed, connecting the small existing networks on the east and west coasts, and ushering out the Pony Express (which shut down two days later). The overland line would play a major role in America for the next eight years before being replaced by a new set of lines running along the Transcontinental Railroad route.

Filed Under: archives, history, look back