European Commission Denies EU Public Right To Express Views On TAFTA/TTIP And CETA

from the something-rotten-in-the-state-of-Europe dept

One of the most glaring problems with TAFTA/TTIP is the lack of input from the public in whose name it is being negotiated. The great interest in providing feedback on the agreement can be seen from the one occasion when it was possible to voice an opinion -- the European Commission's consultation on the inclusion of a corporate sovereignty chapter. And yet, even though an unprecedented 150,000 responses were received -- the vast majority of which were against any kind of investor-state dispute settlement (ISDS) measures -- a top European politician recently announced that there are no plans to take ISDS out of CETA, the almost-finished trade agreement between the EU and Canada that represents a kind of warm-up for TAFTA/TTIP.

Since the European Commission refuses to take into account the public's views directly, people have turned to another mechanism to make their voices heard: a special kind of EU-wide petition called a European Citizens' Initiative (ECI). If sufficient signatures are obtained from around the EU, the European Commission is obliged to respond, but the bar to make that happen is set quite high:

One million signatures must be gathered within one year. Additionally, in seven EU states a specific minimum of supporters must be achieved, e.g. 72,000 signatures in Germany, 55,500 in France, or 54,750 in the United Kingdom. If the initiative succeeds in doing this, then the EU Commission organises a hearing in the EU Parliament, and concerns itself with the matter. The ECI citizen's committee then finally receives a written response from the Commission. If the Commission decides to present a legal act, then this is is passed on to the European Council and to the European Parliament.

That information comes from a new site set up by the Stop TTIP Alliance, a pan-EU coalition that aims to seek support for the following petition:

We invite the European Commission to recommend to the Council to repeal the negotiating mandate for the Transatlantic Trade and Investment Partnership (TTIP) and not to conclude the Comprehensive Economic and Trade Agreement (CETA).

Before signatures can be solicited, an ECI must first be registered with the European Commission. As a precaution, the Stop TTIP Alliance took legal advice to ensure that its petition met the requirements of the ECI. Despite that, the European Commission has just refused the registration request, which means the petition cannot go ahead as planned. Although that came as a complete surprise, the organizers of the ECI certainly aren't giving up -- on the contrary:

"Now the battle really begins," said Michael Efler, contact person of the ECI, which currently represents almost 230 organizations from 21 EU countries. "The rejection of the ECI only confirms the Commission's strategy to exclude citizens and parliaments from the TTIP and CETA negotiations. Instead of paying attention to citizens, it is just lobbyists that are being listened to."

The group offered some comments on the contrived legalistic justification offered by the European Commission for refusing to allow the petition to proceed. For example, the Commission claimed that the negotiating mandates for both TTIP and CETA were not "legal acts", as required for a petition, but "internal preparatory acts". Efler says:

"If the Commission’s legal opinion had any substance, then in plain English this would mean that Europe's population is excluded from participation in the development of any kind of international agreements -- information that is as frightening as it is scandalous."

The European Commission also tried to claim that it couldn't make "negative ratification proposals", but the Stop TTIP group points out:

"this means that citizens can only applaud international negotiations carried out by the Commission, but not criticize them,” said Efler.

Against this background, the Stop TTIP group is considering whether to begin legal action against the European Commission, including taking its case to the EU Court of Justice. After, all, this is not just about a European petition, but about European democracy, as one of the main organizers of the Stop TTIP ECI, John Hillary, writes:

There is something rotten in the state of Europe when an unelected, unaccountable EU body can glibly inform millions of us that we no longer have the right to question its most dangerous and unpopular policies.

...

The ruling is a slap in the face for the 230 civil society organisations from across Europe that have lined up behind the initiative, and the millions of European citizens they represent. The ECI is the only vehicle available to us to challenge the shadowy bureaucrats of the European Commission. Now even this seems to be too much scrutiny for them.

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Filed Under: ceta, eci, eu, eu commission, european citizens initiative, petition, public, public comment, tafta, trade agreements, ttip

European Commission Consultation On Copyright Reveals Chasm Between Views Of Public And Publishers

from the now-they-can't-deny-it,-but-will-they-act-on-it? dept

In January of this year, we urged Techdirt readers to express their views on copyright by participating in the European Commission's consultation on the subject. It seems that many of you did, judging by the final numbers, which have just been published by the Commission (pdf):

The public consultation generated broad interest with more than 9,500 replies to the consultation document and a total of more than 11,000 messages, including questions and comments, sent to the Commission's dedicated email address. A number of initiatives were also launched by organized stakeholders that nurtured the debate around the public consultation and drew attention to it.

Some 5600 response came from the public, 2400 from authors/performers, and a thousand or so from companies. The European Commission has published an analysis of the comments on a question-by-question basis. This makes it slightly hard to get an overall sense of what the various sectors are saying, but fortunately Leonhard Dobusch has tackled that problem in an illuminating post on the Governance Across Borders blog:

I tried to have a look at the bigger picture here: what do we learn about the state of copyright at large? And what overall direction should copyright reform take?

Here's how he addressed those questions:

What I have done is to check for each of the 24 issue sections whether one of the respective stakeholder groups sees a need for copyright reform or is content with the current copyright system (for details check out a public Google spreadsheet with original quotes). The results are not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

He then turned that information into two striking graphics:

For those that can't view those images, they show the public massively in favor of reforming just about every aspect of copyright, and publishers massively against doing so. As Dobusch writes:

the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations.

This is what Techdirt and many others have been urging for years. What's important here is that with this significant response to the consultation, it is now impossible for the European Commission to ignore the chasm between the views of the public, hugely unhappy about the current imbalance of copyright, and those of the publishers, desperately trying to keep things as unfair and as profitable as they are currently. Whether the Commission does anything about it is quite another matter.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, copyright reform, eu, eu commission, europe, public, public interest, publishers

VP Of EU Commission On Copyright Reform: 'I'd Sing You Happy Birthday, But I Don't Want To Have To Pay The Royalties'

from the copyright-problems dept

Neelie Kroes, the VP of the European Commission, recently gave a speech about rethinking copyright in Europe, which kicks off with a little joke about the ridiculousness of Happy Birthday still being covered by copyright:

Happy birthday to you all at the Institute for Information Law.

I would sing you "Happy Birthday". But technically I think the song is still under copyright — I don't want to have to pay the royalty.

Of course, whether or not Happy Birthday is truly under copyright is at the heart of a big legal fight, with significant evidence suggesting that the song is clearly in the public domain.

However, Kroes is making a larger point about the way we view copyright today, and how that does not fit with how the world works. As such, she suggests rethinking how a copyright system should work:

I start from principles. What should a sound EU copyright system do?

First, it needs to promote creativity and innovation. To encourage and stimulate innovative new works, new opportunities, new channels, new models. To enable the research that leads to new discoveries.

This is a great start, and it highlights a key point of copyright law: it is supposed to encourage those kinds of things. The problem is that very little research has actually been done to determine if it actually does that. Instead, it's often taken on the basis of faith that it must do that, without considering whether it really does, or if there are other limiting downsides to how it's currently done. Some people claim that I am somehow "against" copyright. Nothing could be further from the truth. I am happy to support a copyright system that has been shown to actually promote creativity and innovation. I've just seen very little evidence to suggest our current system really does that.

Unfortunately, Kroes' next point seems a bit off to me, though I understand why she's making it:

Second, it must remunerate and reward creators. That's not just about fairness. We expect creators to invest their time and talent. Of course reward, recognition, remuneration are essential: without them, the creative tap would fast stop flowing. I have always believed that.

But the current copyright system does not do it well. Not nearly well enough. Many creators scrimp by on a pittance, unable to find their full audience, unable to share or sell their works as widely or creatively as they want. Limitations and obstructions do nothing for creativity.

A few points on this. First, it seems to come from the incorrect assumption that copyright is a sort of "welfare" system for artists. That's not its purpose, nor how it was designed. Copyright itself has never "remunerated or rewarded creators." You can create all you want, and if no one likes it, all the copyrights in the world won't get you paid. It's the market that decides if you'll be rewarded for your creativity, and sometimes the market is cruel. It's possible that copyright can, in some cases, help create such a market, but to argue that copyright's job, alone, is to help get artists paid is misleading, as it leaves out the basic fact that that's never been the job of copyright. It may be an offshoot of the first point -- creating the incentives for creativity and innovation -- but to elevate the "help people get paid" point, dangerously positions copyright as more of a welfare system for artists, rather than as a tool for incentives in the market.

At the same time, the argument that "the creative tap would fast stop flowing" also does not seem supported by the data. At a time when artists keep complaining that it's harder and harder to get paid, we've seen an astounding explosion in new content being created. Part of the issue is, in fact, that the money being spent today is spread much more widely -- thus you have a lot of artists making that said "pittance," but it does not appear to have resulted in any decrease in creativity.

That said, I'm all for figuring out more ways for there to be more creativity, and if we can figure out ways to get more artists paid, that's a great idea. It's why I'm excited about new innovative services that helps drive that process forward. Platforms like Kickstarter, Patreon, YouTube, Bandcamp and more have created entirely new ways for artists to make money from their artwork. But, there's something important to note in all of that: almost none of those really are reliant on "copyright," and pretty much all of them would function in nearly the identical fashion without copyright.

Again, this is not to say that copyright is not important. It's to point out that it's faulty and dangerous to assume that copyright alone is the tool by which to get artists paid. It leads to poor policy choices that often ignore more interesting (and potentially lucrative) methods being developed in the market.

Third – it should enable a digital single market. Removing the barriers that get between artists and their audience, that prevent innovation, that shatter economies of scale. The EU's leaders are signed up to a full, vibrant digital single market. So is President-designate Juncker. Now they need to act on their ambitions – copyright is a major, essential part.

I'll leave this aside for the moment because it's a messy and complex issue in Europe that isn't quite as simple as some would like it to be. I agree that taking down barriers would help, but there is a lot of nuance at play in this particular issue.

And last: perhaps most importantly, the legal framework needs to take account of the needs of society. Users' interest and expectations matter alongside creators' rights. Rules cannot be impractical, uncertain, or unreasonable for ordinary users.

Indeed, this is the most important, but I think it also goes hand in hand with the first item on the list. If you take into account the needs of society, and make sure that copyright really does focus on incentives for creativity and innovation, then everything else in the system works out nicely.

But still, Kroes is absolutely right to note that today's copyright laws don't function well under these current principles, and because of that copyright itself is at risk of becoming irrelevant:

Every day citizens here in the Netherlands and across the EU break the law just to do something commonplace. And who can blame them when those laws are so ill-adapted.

Every day, startups, small businesses, scientists abandon innovative ideas because the legal fees are too great.

Every day, people bypass the copyright system using alternatives like open source: something which can lead to huge creativity, innovation, and richness.

Copyright risks becoming an irrelevance.

And Kroes further points out how it's not just that copyright is out of touch, but it may actively be harming the principles she states above:

The Internet gives enormous opportunities for artists and consumers. More direct access to a wider audience, and a wider range of content. New ways to share, spread, sell. New ways to reward and recognise. New ways for audiences to appreciate – getting what they want, when they want it. A good copyright system would help us achieve that. Today's does not.

Some examples.

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?

When teachers are afraid to share teaching materials online, how does that help our society?

When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?

When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?

When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?

When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?

When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?

When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.

I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.

As she then notes, it's basically impossible to explain copyright to the average "man on the street." Many now see copyright as "a tool for obstruction, limitation and control" rather than "openness, innovation and creativity." The speech is well worth reading, and has some very good points. I just fear that the focus on that second point -- of pretending that copyright is a tool for guaranteeing payments in a kind of welfare system, is part of what leads to the current problems of the system, and takes it away from those other key goals of benefiting the public. If the system is designed properly to benefit the public, it should automatically create incentives that help artists, whose work is in demand, get paid.

Filed Under: copyright, creativity, eu, europe, incentives, innovation, neelie kroes, progress, public

IRS To Public: You Need To Hold Onto Your Records For 2-7 Years; We'll Just Trash Ours Whenever We Feel Like It

from the hire-an-accountant-and-marvel-at-our-lack-of-accountability dept

How long should I keep my records?

Note: Keep copies of your filed tax returns. They help in preparing future tax returns and making computations if you file an amended return.

1. You owe additional tax and situations (2), (3), and (4), below, do not apply to you; keep records for 3 years.
2. You do not report income that you should report, and it is more than 25% of the gross income shown on your return; keep records for 6 years.
3. You file a fraudulent return; keep records indefinitely.
4. You do not file a return; keep records indefinitely.
5. You file a claim for credit or refund* after you file your return; keep records for 3 years from the date you filed your original return or 2 years from the date you paid the tax, whichever is later.
6. You file a claim for a loss from worthless securities or bad debt deduction; keep records for 7 years.

Keep all employment tax records for at least 4 years after the date that the tax becomes due or is paid, whichever is later.

Source: IRS

How long should the IRS hold onto emails that are considered part of public records?

Answer: until the hard drive is recycled.

Ex-IRS official Lois Lerner's crashed hard drive has been recycled, making it likely the lost emails of the lightening rod in the tea party targeting controversy will never be found, according to multiple sources.

"We've been informed that the hard drive has been thrown away," Sen. Orrin Hatch of Utah, the top Republican on the Finance Committee, said in a brief hallway interview.

Citizens, the burden of proof lies on you when the IRS starts asking questions. You retain these records or bear the consequences. When the IRS loses two years of email, it simply rehashes what happens, shrugs its shoulders and waits for the NSA's Glomar on Lois Lerner's email metadata.

On one hand, at the point it was thrown away, those currently being investigated by Congress probably had no idea the emails contained would be requested two years later. On the other hand, the agency has the specific duty to retain this information to remain in compliance with federal public records regulations. Scrapping a hard drive doesn't sound like the move of an agency interested in maintaining public records.

Lerner's crashed hard drive was subpoenaed by Darrell Issa and computer forensics experts were fairly certain they could recover the data from the drive. But the drive no longer exists and it appears the IRS never made an effort to recover anything IRS-related from the drive.

Lerner, however, seemed greatly concerned about the recovery of certain items unrelated to the public records she was supposed to be maintaining. Here's a screenshot of an email discussing the crash, posted by John Hinderaker at Power Line.


If you can't see this screenshot, it says the following:

It was nice to meet you this morning -- although I would have preferred it was under different circumstances. I'm taking you up on your offer to try and recapture my lost personal files. My computer skills are pretty basic, so nothing fancy -- but there were some documents in the files that are irreplaceable. Whatever you can do to help, is greatly appreciated…

As Hinderaker points out, Lerner seems dismayed to have lost some personal files, but is completely unconcerned that years of emails may have been destroyed as well.

It is remarkable that Lerner does not say: "Oh no! My hard drive crashed, and the IRS's only copy of two years' worth of my highly important work has been lost!" No: she is concerned about "my lost personal files," because "there were some documents in the files that are irreplaceable." That is a clearly stated and entirely reasonable concern, but it has nothing to do with losing the agency's only record of two years of work.

As more details come out, the IRS is looking worse and worse. But these additional details are pushing the perception more into the "expected bureaucratic incompetence" area, rather than towards "large-scale conspiracy to destroy evidence."

Still, the agency's long-standing practice of taping over previous backups and pitifully small amounts of email storage doesn't exactly evoke confidence in the IRS's ability to maintain public records. That whatever effort was actually made to recover data from Lerner's crashed computer seems to have revolved around "personal" files makes this situation even worse. The IRS requires hard copy backups of any email that could conceivably be part of the "public record," but it appears that no one involved followed that rule. The rash of coincidental crashes only adds to the negative perception.

The IRS -- and the government -- demands so much from its citizens with pages and pages of federal regulations but it can't even be bothered to follow the few rules it sets for itself. Pathetic.

Filed Under: emails, hard drive, irs, lois lerner, public, records

A General Reminder For Policymakers: Don't Muck Up The Public's Ability To Use The Internet

from the a-reminder dept

I know that it's become a bit too tempting for lots of people to declare this or that tech policy issue "the next SOPA," but the response over the last few weeks to the FCC's upcoming rulemaking on "the open internet" and net neutrality certainly feels a lot closer than pretty much any previous issue. David Carr has a writeup over at the NY Times that explains the situation most succinctly -- with a truly key point being buried deep in the middle, in which he recaps the SOPA story. I'll bold the key line:

In the debate between the Beltway vs. the Valley, my money is on the Valley. Remember in 2012 when a clueless Congress lumbered into Internet regulation by coming up with SOPA and a companion bill in the Senate (the Protect I.P. Act)? The entertainment companies that backed the legislation thought it was no big deal, but then a group of Silicon Valley players — many of the same ones who are now coalescing to oppose new Internet regulations — unleashed their user base and a huge wave of protest erupted. Both bills went down hard.

In the weeks after the SOPA debacle, I was at the Sundance Film Festival and then in Hollywood, talking with entertainment executives. They looked like extras from “The Walking Dead,” with bite marks all over them. They didn’t know what hit them because they did not understand the intimate relationship that the Valley has with its customers.

Way too much digital (and real) ink has been spilled that totally missed the point concerning the SOPA battle, arguing that it was the "tech industry" or "Silicon Valley" taking on Hollywood. But, as we noted many times, that was never the situation at all. It was the users of those internet services who led the way, with the companies joining in after the fact. Many people on the other side of these battles still don't realize how much has to do with the users first. They assume, incorrectly, that it's all about lobbying dollars, but miss out on the simple fact that a large public outcry beats lobbyists every time.

In the end what matters is votes. Lobbyists win on issues where there is no public outcry because in those situations its easier to keep the lobbyists happy. But when the wider public gets activated, politicians know that votes come first, and lobbying can't stop the tidal wave of public support on an issue. And that's where those not paying attention get confused. They don't realize that many people really, really love the services that the tech industry has built. People have very positive emotional attachments to them -- and that's often because those services provide amazing connections and interactions and do so without giving people the feeling of being ripped off.

That's usually not true with things like entertainment and it's especially not true with broadband.

Yes, some people argue that because users "don't pay" for many internet services, the services don't actually have their best interests in mind, but that's just wrong. The reason these internet services are so successful is that they build great products that users love -- and they often give them away for no monetary exchange, based on alternative business models. You can argue about whether or not those business models are fair, but to argue that these companies don't try to build great products for their users is simply incorrect.

And, because of that, when there are issues where the interests of the public and these tech companies align -- those on the other side may discover just how difficult it is to play the same old lobbying game. When the public gets moving on an issue, old style lobbying games get steamrolled. Whether or not that happens with net neutrality remains to be seen, but many of the same initial ingredients are certainly in place.

Mucking with a functioning internet is just not a good idea.

We don’t want two Internets — a good one and a bad. We want the money and investment to flow toward a single infrastructure that works rapidly and efficiently, as it does in so many other countries. It should be a medium in which videos of your niece dancing to Beyonce, streaming coverage of Occupy Wall Street and “House of Cards” all play smoothly when you hit a button.

Given the mounting opposition, the F.C.C. commissioners would be well advised to delay any changes this Thursday. And if they don’t, they may end up starring in a sequel: “SOPA II: When Nerds Bite Back.”

Filed Under: broadband, fcc, net neutrality, public, sopa, tech industry

Lancaster, California Rolls Out Law Enforcement Surveillance Tech The Right Way -- By Involving The Public

from the you-know,-the-little-people-who-pay-your-salaries dept

Recently we covered another example of law enforcement's "deploy first, check with public later" attitude towards new surveillance technology. The Los Angeles Sheriff's Dept. had partnered with Persistent Surveillance Systems to keep an eye on the entire city of Compton utilizing a plane armed with a cluster of high-powered cameras. Rather surprisingly, the LASD offered no defense of its decision to run this by the public it serves. Instead, it simply informed the public that their input was hardly conducive to its widespread surveillance plans.

“The system was kind of kept confidential from everybody in the public,” (LASD Sgt.) Iketani said. “A lot of people do have a problem with the eye in the sky, the Big Brother, so in order to mitigate any of those kinds of complaints, we basically kept it pretty hush-hush.”

That's the LASD's public-facing policy, apparently. If it thinks you might have a problem with new surveillance, it just won't tell you until after it's in use. On the bright side, the powerful cameras aren't quite powerful enough… yet. This pilot program has been discontinued, not out of privacy concerns, but because the resolution just isn't high enough to be useful.

The cameras, despite a total 192 million pixels of resolution, sweep such a wide area that each individual appears as a single pixel - not nearly discerning enough to detect race, sex or other distinguishing characteristics, [Persistent Surveillance Solutions president Ross] McNutt said.

In its stead, the LASD is rolling out more cameras at ground level.

Compton rejected the aerial observation, in part, because it had already been satisfied with the results it got from video cameras it had installed in nine city parks, said City Manager Harold Duffey. The 15 cameras helped thwart crime enough that the city is in the midst of planning a program to install about 75 cameras along major thoroughfares at a cost of $2.7 million.

The previously-installed cameras were deployed as yet another excuse for not telling the public about the high-flying camera cluster.

"Citizens weren't notified because cameras were already installed in Compton on the ground," said Nicole Nishida, a Sheriff's Department spokeswoman.

Got it. Any new surveillance tech can now be rolled out without notifying the public because surveillance tech already exists. Perhaps the new camera system is being installed by Recursive Surveillance Solutions.

But it doesn't have to be handled this way. Obviously, law enforcement is like nearly every other entity: the path of least resistance is usually the one most traveled. If cutting out the public means deploying the technology you'd like to have in place, then all apologies and privacy considerations can be handled weeks, months or years down the road. As the DOJ itself has stated, civil liberties are nothing more than Get Out of Jail Free cards for criminals.

Lancaster, CA also instituted some new aerial surveillance. But the city decided a more open process might be welcomed by those on the receiving end of law enforcement's new capabilities.

Lancaster Mayor R. Rex Parris said that the city was happy with its system and that alerting the public led to more acceptance.

"Initially, there was a lot of concerns of Big Brother in the sky. But now the feeling is it is reassuring when it is up there. People got quite upset when it was down for a time for technical problems," he said.

"It's important to be as transparent as possible with these decisions," he said.

Lancaster's system covers a much narrower area and is only deployed by local law enforcement under certain conditions. It's not persistent and is usually deployed to accidents or crime scenes. This limited scope and usage is likely a direct result of including the public as stakeholders in their own surveillance. The natural tendency of law enforcement is to gravitate towards a wider scope and fewer limitations.

Cutting the public out may have resulted in something more resembling Compton's pilot project. Instead, it became a system many of the citizens view as useful, helpful and at least indirectly related to their safety. The only way Lancaster can lose now is if the Sheriff's Dept. abuses its technology. But it's less likely to do so now that it's had public input, a process that humanizes those who have concerns about persistent surveillance. It ensures they are treated with more respect, rather than just assumed to be either a.) criminals or b.) crazy.

This also works in the other direction, humanizing those deploying the surveillance, most of whom are probably good people who just want to do their job well. Transparency does truly work both ways, and those charged with protecting the public are better off having them on their side, rather than simply pushing forward with pervasive surveillance and generating more antagonism.

Filed Under: california, lancaster, police, public, surveillance

After Pledge Of Sunlight, Gov. Cuomo Officials Keep Their Email In The Shadows

from the transparency-is-only-for-when-you're-trying-to-get-elected dept

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.

I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

The tactic appears to be another item in the toolbox of an administration that, despite Cuomo's early vows of unprecedented transparency, has become known for an obsession with secrecy. Emailing from private accounts can help officials hide communications and discussions that are supposed to be available to the public.

"Government business should never be conducted through private email accounts. Not only does it make it difficult to retrieve what is a government record, but it just invites the suspicion that a government employee is attempting to evade accountability by supervisors and the public," said Christopher Dunn of the New York Civil Liberties Union, a frequent requester of records under the state's Freedom of Information Law.

Emailing from private accounts also may violate state policy. State employees are not to "use a personal email account to conduct State business unless explicitly authorized," according to a policy bearing the governor's name published by the Office of Information Technology Services.

The Cuomo administration declined to comment on whether any employees are authorized to use private accounts.

Back when he was running for governor, Cuomo pledged, "We must use technology to bring more sunlight to the operation of government."

The governor himself uses a Blackberry messaging system that does not save messages to communicate with aides, the Daily News reported in 2012. Under the Freedom of Information Law, those records would typically not have to be released because there is an exemption for internal deliberative material.

But emails with anyone outside of the administration – such as lobbyists, company executives, or reporters – usually have to be made public upon request. It is for those communications, with people outside the administration, that private email accounts have been used.

Last year, I was poking around on a possible story and filed some public records requests that sought emails from Director of State Operations Howard Glaser, a top Cuomo adviser. One day in October, just hours after filing a request with the governor's office, an email appeared in my inbox from Glaser himself.

The email, inquiring what I was working on, was sent from a @glasergroup.net address rather than a government account. The note had a signature line about not using the email address for official business (even though it appeared to be doing just that). My interest was piqued.

So I filed a request under the state's Freedom of Information Law, asking for all records sent to and from Glaser's private account. It is not supposed to matter if an email is sent from an official account or a private one: If it pertains to government business, it typically has to be released.

A couple of months later, the Cuomo administration responded with a terse denial: "Please be advised that the New York State Executive Chamber has conducted a diligent search, but does not possess records responsive to your request."

I appealed, noting that I had in my possession a record responsive to the request – Glaser's email to me – and included it as an attachment.

The administration upheld its original denial, now citing a retention issue.

"[T]he fact that this record is in your possession does not mean that the Chamber failed to produce a responsive record in its possession. Emails and certain other correspondence are not required to be preserved indefinitely," the March letter said.

When I asked about the email this month, Cuomo spokesman Rich Azzopardi took a different tack, now disputing that Glaser was emailing me in his official capacity at all and calling the email "informal." "It would be inaccurate to characterize Howard's email as official business – as he noted, your official business was being handled by the FOIL office, not him," Azzopardi said.

But I have no personal relationship with Glaser, and my Freedom of Information Law requests focused only on his activities as a state official. When I recently asked Glaser about his email practices, he said, "I don't use personal email to conduct official business." He would not say how he defines "official business."

In its letter denying my request for emails from Glaser's private account, the administration cited the general retention policy of the State Archives. That policy says that "many email communications are not records and are therefore suitable for immediate destruction" but also that those emails which are records must be preserved.

So how does one determine which emails are "records"?

The governor's office seems to take a particularly narrow view. The governor's policy says that emails are only "records" if they are formal documents like press releases and nominations. Azzopardi, the Cuomo spokesman, said: "Official email is not required to be retained unless it meets the definition of a particular kind of record (eg – contract), consistent with the State Archives policy."

But the Archives, which Cuomo's office itself cited, takes a more expansive view, even as state law gives the governor leeway to determine which records should be kept.

Quoting the official definition of records, Archives spokeswoman Antonia Valentine said an email is a record if it is created "in connection with the transaction of public business (and provides) … evidence of the organization, functions, policies, decisions, procedures, operations, or other activities (of an agency)."

In practice, Glaser seems to be either eschewing his official email account or promptly deleting messages of substance. When I asked for a 10-day sample of emails from Glaser's official account, I got back little actual communication: 147 pages that are largely filled with newsletters, press releases, and the occasional terse email to set up a phone call.

The use of private accounts can result in even more roadblocks when an official leaves the government. (Glaser is reportedly leaving the administration in June.)

The issue has come up before.

In 2007, executives from the insurance giant AIG filed a public records request with the Office of the Attorney General, seeking, among other things, former Attorney General Eliot Spitzer's communications with the press from the period when he had sued the insurance giant. That request was resisted for years by Spitzer's successor as attorney general: Andrew Cuomo.

While Cuomo's office eventually released emails sent from official accounts, it maintained that Spitzer's use of a private account put any of those emails beyond its reach.

"[T]he reality is that the Office of the Attorney General lacks access to this account and possession of whatever e-mails it may contain, thus rendering them beyond the scope of petitioner's FOIL request both practically and legally," Cuomo's office said in a 2009 court filing.

A judge ruled against the attorney general's office, which has appealed. Seven years since the original request, the case is still in the courts and Spitzer's private email account – which he was known to use in his capacity as a state official – has never been searched for records.

Lawyers for Spitzer joined the case this year, arguing in a March filing that because Spitzer is now a former employee and a private citizen, the Freedom of Information Law doesn't apply.

Beyond the governor's office, the state is reportedly moving toward an email system that would automatically delete emails after 90 days except for those marked by users to save.

It's not clear how that process would work or how the state will ensure that records are not destroyed. The Office of Information and Technology Services declined to provide the memo describing the new policy, requiring that I file a formal public records request to get it.

Transparency advocates have criticized 90 days as too short a period because emails may only become relevant months later after a scandal or other event.

A document on the IT office's website references the possibility in a state email system for "recovery of deleted mailbox contents for the length of the retention period" – another capability that would not exist for officials using private accounts.

Across the river in New Jersey, private email accounts are at the center of the Bridgegate scandal.

The infamous "Time for some traffic problems in Fort Lee" email was sent from a Christie aide's Yahoo account to another official's Gmail account. That tactic held off public access to the email for a time.

In December, the Christie administration claimed it did not have records in response to a request from the Record of Bergen, N.J. The emails became public later, only after the officials were subpoenaed by the state Assembly.

If you have gotten emails from the private account of an official in the governor's office or other state or city agencies, email me at justin@propublica.org.

Reposted from ProPublica via its Creative Commons (BY-NC-ND) license.

Filed Under: andrew cuomo, email, howard glaser, new york, public, public records, transparency

Those Who Insist Aereo Ruling Won't Impact Cloud Computing Don't Seem To Understand Cloud Computing

from the or-copyright-law,-for-that-matter dept

A few weeks ago, we wrote about how the Aereo case, which will be heard by the Supreme Court in a few weeks, is likely to have a huge impact on the future of cloud computing, and went into detail to explain why. The primary issue is that, under copyright law, what Aereo is doing is effectively indistinguishable from what most cloud computing services do. However, a number of folks who really seem to dislike Aereo continually insist that the case will have no impact whatsoever on cloud computing. Variety's Todd Spangler recently wrote a typical version of this argument, basically waving off the issue based on the idea that Aereo more or less feels different from Dropbox. But that fundamentally ignores the actual copyright issues at stake.

Matt Schruers has a blog post up at the Project Disco blog pointing out why this "cloud denialism" by the anti-Aereo crowd is both dangerous and misleading. It includes the money line that a bunch of folks have been quoting:

The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services.

Indeed, a bunch of companies and organizations that actually are involved in cloud computing businesses have weighed in on the case, warning how a ruling against Aereo might create serious problems for their businesses. The issue, again, is very narrowly focused on what is a "public" performance when transmitting a single copy of a file to an individual in their home. The problem with the broadcasters' position is that they want to declare that transmitting multiple copies of a single work magically makes something "public," even if each transmission is a unique copy that is transmitted only to the requesting subscriber. But that's the same way cloud computing works, and it would create a massive headache.

And, honestly, while Schruers has that wonderfully quotable line above, what's much more scary about the "cloud denialists" is they fundamentally don't seem to understand copyright law, and are trying to twist it because they just hate what Aereo is doing. I am reminded of law professor Eric Goldman's comment from a few years ago, that there are really two different copyright laws -- normal copyright law and "file sharing copyright law," where what's actually stated in copyright law gets thrown out the window because OMG EVIL PIRATES! As Goldman points out, "it's a mistake to think those two legal doctrines are closely related."

As Schruers notes in his piece, it seems pretty clear that everyone recognizes Aereo is architected to create a private performance, not a public one, it's just that folks on the copyright maximalist side of the scale don't like that, and that leads them to want to just pretend the law says something different than it does:

Ultimately, when Spangler and others deniers dismiss the cloud-related issues and condemn Aereo’s complex technology as “a Rube Goldberg-like contrivance,” it strikes me as an implicit concession: ‘yes, Aereo’s technology is indeed designed to facilitate private performances, but since Aereo could also be engineered other ways, where the performance would be public, we’re just going to expand the definition of what’s public in order to sweep in Aereo too.’

This is a chillingly activist interpretation of copyright law. The boundary between public performances and private performances determines what copyright does and does not regulate. It’s why you don’t need a license to sing in the shower, but you do to sing on stage. It’s why you don’t need a license to put your music collection in the cloud, but you do if you want to launch a commercial streaming service. Redrawing that boundary in real time to ensure that Aereo doesn’t disrupt the way consumers now receive free over-the-air television is not a prescription for economic success.

Of course, this sort of issue has been present throughout the Aereo case. Pretty much everyone concedes that Aereo's technical setup is insane -- but it's insane because that's what the law requires to stay within its bounds. We've seen many, as described above, try to use this against Aereo. Multiple comments on various Aereo posts have people insisting that the convoluted setup of Aereo's technology (individual antenna for each subscriber, distinct copies of the same programming for each user) shows that they're trying to skirt around the law. However, it seems rather obvious that it's the exact opposite. There is no logical reason to have this kind of setup except to be within the law. Aereo's "insane" technological setup is much an indication of why it's legal -- and how screwed up copyright law is that this is the only legal way to build such a system.

Furthermore, for those who insist that Aereo is unrelated to cloud computing because it doesn't look like what they think cloud computing looks like, Schruers points out that one of the most important rulings for cloud computing -- the Cablevision remote DVR case -- didn't "look" like a cloud computing case either, but it helped spur massive investment in cloud computing by clarifying some key legal issues -- much of which an anti-Aereo ruling might now destroy.

Notably, the “remote DVR” system in Cablevision, a 2008 case upon which much of the reasoning in Aereo has been based, and which provided legal certainty that ushered in a wave of extraordinary investment in cloud computing, didn’t look anything like Dropbox either.  Even though Cablevision’s remote DVR didn’t look like a cloud storage service, however, investors quickly concluded that the decision’s reasoning had legitimized storing users’ files in the cloud, and streaming them back.

The broadcasters and their supporters don't want people to associate Aereo with cloud computing mainly because they hate what Aereo stands for. But their failure to understand both cloud computing and basic copyright law might seriously hinder important innovations well into the future.

Filed Under: cloud computing, copyright, public, transmission
Companies: aereo

British Library Says It's Copyright Infringement To Take Photos Inside The Library; Demands Person Delete Tweet

from the you-have-to-be-kidding-me dept

Update: The British Library has now apologized, noting that a staff member presented inaccurate info. The no camera rule is still there, but they admit it has nothing to do with copyright.

On the whole, librarians tend to be really good on copyright issues, understanding the deeper nuances better than most. Apparently, however, the British Library -- or whoever runs their Twitter feed -- leans in the other direction. There was a bizarre exchange on Twitter today, kicking off with reporter Mathew Ingram, who is in NYC for a conference, tweeting a photo of the Periodicals Room at the NY Public Library, and noting that it was his "office this morning." Another reporter, John Gapper, amusingly tweeted back a photo of his own "office" for the day, which happened to be the Humanities Reading Room at the British Library. All in all, a little slice of life moment that's often kind of fun to see on Twitter -- two reporters noting how they're working from public libraries, separated by an ocean, at the same time. Cool. Except... along comes the British Library with a ridiculous freakout. Its Twitter feed jumped into the conversation to demand that Gapper delete the photo as being against the conditions of use. As a bunch of others started asking why, whoever handles the Twitter account for the British Library Reference Service started tweeting out a bunch of nonsensical claims about copyright and other random arguments that make no sense.

Mathew first asked if the library was serious, and was told yes, and then when Jeff Jarvis asked why, the Library first said "all the more reason for not taking photos then!" which makes no sense at all, and then followed up with two ridiculous claims:

For collection items: copyright issues; for readers: they haven't given their permission to be photographed.

Mathew pointed out that the copyright claim was absurd and that the people were in a public place. The UK isn't Hungary after all. The British Library then tried to defend the copyright statement with a series of tweets:

@mathewi @jeffjarvis @johngapper Why is it absurd? Copying all of a book in copyright is against the law

— BL Reference Service (@BL_Ref_Services) March 21, 2014

@mathewi @jeffjarvis @johngapper Regs permit 5% or 1 chapter or 1 article only to be copied. So photographing more than this is a real issue

— BL Reference Service (@BL_Ref_Services) March 21, 2014

@mathewi @johngapper @jeffjarvis Theoretically possible. But a twitter account was recently closed down for tweeting Top Gun frame by frame

— BL Reference Service (@BL_Ref_Services) March 21, 2014

The argument is ridiculous. Gapper wasn't taking photos of books. It's likely that the Library was explaining why it had the rules in the first place, but even that doesn't make sense. If someone is violating the copyright, then you have copyright laws to go after them and you don't need separate terms of use that block the use of photos -- because, such rules would clearly (as here) also serve to ban photography that doesn't violate copyright law. Similarly, the Library points to the "regulations" for researchers making copies of books, though fails to note that those are what the library advises people stay within to avoid copyright issues. And, once again, none of that has anything to do with the question of whether or not photography itself should be allowed at all, especially to just take a photo of the room, in which no actual books are seen.

All too often in debates about copyright issues, people get high and mighty about something they naturally assume to be true, using a sort of "because... copyright" argument. You'd hope that libraries and the people who work there would be more careful and knowledgeable, but apparently that doesn't apply to the British Library. Either way, point taken. Next time I'm in the UK, I'll find a friendlier "office for the day" than the confused British Library.

Filed Under: copyright, john gapper, libraries, library, mathew ingram, photos, public
Companies: british library

Obama's Response To NSA Was To Appease The Public, Not Reduce The Spying

from the total-failure dept

We've spent much of the afternoon detailing some of President Obama's statements concerning his response to the NSA surveillance revelations, combined with some of the documents released by the administration. But a key point in all of this is highlighted in the Associated Press's coverage of the press conference: President Obama flat out admitted that this was about appeasing a public that doesn't trust the administration, not about reducing the surveillance.

President Barack Obama made it clear Friday he has no intention of stopping the daily collection of American phone records. And while he offered "appropriate reforms," he blamed government leaks for creating distrust of his domestic spying program.

In an afternoon news conference, the president acknowledged the domestic spying has troubled Americans and hurt the country's image abroad. But he called it a critical counterterrorism tool.

Even more to the point, his comments represent a fundamental misunderstanding of why the public doesn't trust the government. That's because he keeps insisting that the program isn't being abused and that all of this collection is legal. But, really, that's not what the concern is about. Even though we actually know that the NSA has a history of abuse (and other parts of the intelligence community before that), a major concern is that scooping up so much data is considered legal in the first place. So, when President Obama says that we should blindly trust the government not to abuse the data, that's missing the point:

"Understandably, people would be concerned," the president said. "I would be, too, if I weren't inside the government."

That's not particularly comforting.

Filed Under: barack obama, bulk collection, concerns, ed snowden, nsa, nsa surveillance, public, trust