FBI To Replace Terrible Voluntary Police Shooting Reporting System With NEW Voluntary Police Shooting Reporting System

from the unrecognizable-'changes'-ahead! dept

Back in October, the FBI very belatedly admitted it had been doing an abysmal job tracking the number of people killed by law enforcement officers. For nearly 15 years, the DOJ has been charged with collecting this data, but so far has only managed to produce totals that are half of those compiled by citizens and journalists.

The FBI admitted it hadn't done a very good job collecting this data and vowed to improve things in the future. But it didn't say how it would accomplish this. It didn't appear to be considering changing the one factor contributing the most to its yearly under-count: the system is entirely voluntary. As a result, less than 3% of the nation's 18,000 law enforcement agencies have regularly reported their shootings to the FBI.

More details have emerged on the FBI's new use-of-force tracking initiative. The former program -- which none other than FBI director James Comey called a "travesty" -- is being overhauled. The voluntary reporting system will be replaced with a revamped, more detailed… completely voluntary reporting system.

The new database will continue to rely on the voluntary reports of local police departments; FBI officials said they lack the legal authority to mandate reporting.

Cynics/critics will be delighted unmoved to hear the FBI thinks this voluntary system will work better than the last one, which was a federal embarrassment (again, Comey's own words). Why? Because they've been promised that everyone will try harder to turn over information this time.

But [FBI Assistant Director of Criminal Justice Information] Stephen Morris said the leaders of the nation’s largest police organizations have agreed for the first time to lobby local departments to produce the data. The Justice Department is also looking to offer federal grants to local departments that may need additional resources to comply.

“We will be relying on peer pressure and financial incentives,” Morris said.

Well, peer pressure definitely has improved the nation's law enforcement agencies by ridding them of "bad apples" and internal corruption… oh, wait, none of that ever happened. Financial incentives may work better than peer pressure. A nation full of asset forfeiture abuse can attest to that. But if the money can only be spent on complying with a voluntary effort that might make agencies/individual officers "look bad," it's unlikely this "carrot" will work better than the stick the FBI can't wield.

The FBI may not be able to make this reporting mandatory, but Congress can. So far, legislative efforts aimed at doing exactly that haven't gone anywhere. But despite FBI officials publicly wringing their hands over the results of the agency's multiple years of indifference, the agency has yet to offer any public support for this sort of legislation.

If this effort ever approaches large-scale participation, the stats gathered will be much more in-depth than anything the DOJ's collected to date.

The new effort will go beyond tracking fatal shootings and, for the first time, track any incident in which an officer causes serious injury or death to civilians, including through the use of stun guns, pepper spray and even fists and feet.

[...]

Morris said the data will also be “much more granular” than in the past and will probably include the gender and race of officers and suspects involved in these encounters, the level of threat or danger the officer faced, and the types of weapons wielded by either party.

What will likely produce more and better results sooner is this effort -- which is already in progress.

Change is also underway at the Bureau of Justice Statistics, another Justice Department agency that has kept a separate count of civilians who die in police custody.

The bureau scrapped its old database and this year created a pilot program that relies on The [Washington] Post’s database and other open-source data-collection efforts to identify deaths that are not being reported. Then, BJS officials contacted police, medical examiners and other local officials to check the accuracy of the information and to gather additional facts.

The government doesn't always need to bootstrap its data gathering. The private sector tends to produce solid results. Plus,it's motivated -- at least in this case -- to collect as much data as possible and make it publicly-available. Law enforcement agencies are generally motivated to do the opposite, unless otherwise instructed. And it generally takes more than a "Would you kindly?" from the federal government to generate changes in mindset.

Anything would be better than what the FBI has delivered for the past several years. But it will take more than the FBI's public dismay to overcome law enforcement's natural instinct to bury anything that remotely resembles a questionable use of force.

Filed Under: database, fbi, police shooting, records, tracking, voluntary

Hollywood Keeps Breaking Box Office Records... While Still Insisting That The Internet Is Killing Movies

from the because-if-the-story-sounds-good,-why-bother-with-the-facts dept

Hollywood is still 100% focused on trying to blame the internet for any of its woes, mostly with bogus attacks on internet companies it doesn't like. And yet... it seems to keep on setting box office records. The latest is that Universal Pictures has broken a new record in bringing in $2 billion in box office revenue faster than any other studio in history, pushed over the top by the successful opening weekend of "Straight Outta Compton" (a movie that seems to have some big fans in Silicon Valley).

Thanks to the overperformance of N.W.A biopic “Straight Outta Compton,” Universal Pictures is tracking to cross the $2 billion mark at the domestic box office on Saturday, setting a new speed record in doing so.

Universal’s historic climb will break Warner Bros.’ previous record of reaching $2 billion by December 25, 2009. The studio is also extremely likely to break the record for all-time domestic box office high, which was set by WB in 2009 with $2.1 billion.

That does not sound like an industry that is having a problem getting people into the theaters, even if the movies are available via infringement. But, people will argue, these services are actually harming the "home video" revenue stream. But that's questionable as well. First off, it was Hollywood that angrily fought against ever allowing a home video market in the first place (remember that?). And, more to the point, we've seen over and over again that when the industry actually adapts and offers content in a reasonable format at a reasonable fee, people will pay at home, just like they do in theaters.

But, of course, due to continued Hollywood confusion and jealousy, it's still holding back lots of movies from Netflix streaming -- one successful service that has shown that it's totally possible to "compete" with infringing content.

So, again, it's confusing as to what Hollywood's real complaint is. It's shown that if it makes good films, people will go out to the theaters to see them, rather than just watch them online. And if it offers them in a reasonable manner for a reasonable price online, people will pay for that as well. And yet, it doesn't do a very good job of this and then blames the internet for its own failures to adapt. Seems like a weird strategy. If I were an investor in those companies, I'd wonder why they've spent the better part of two decades so focused on "stopping piracy" rather than doing a better job delivering what the public wants.

Filed Under: adapting, box office, business models, hollywood, internet, movies, records
Companies: netflix, universal pictures

City Claims It Will Take 9,000 Hours And $79,000 To Fulfill Gawker's Request Emails Related To Abusive Police Officer

from the we'll-open-our-records-if-you'll-open-your-wallet dept

The McKinney (Texas) Police Department is under lots of outside scrutiny, thanks to the racially-tinged antics of its police force -- namely the since-departed Officer Eric Casebolt, who barrel rolled into infamy in a cell phone-captured video that culminated in him pinning down a 14-year-old girl while waving a gun at two teens.

Since that point, multiple entities have filed public records requests with the police department. An interim response given to MuckRock's Shawn Musgrave lists 61 requests as of June 19th, a number that has certainly increased since that point. One of the early requesters was Gawker's Andy Cush, who sought "[Officer Eric] Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees."

Cush just received a response from the city's legal representatives claiming it will cost nearly $80,000 to compile this information.

The city arrived at that extraordinary figure after estimating that hiring a programmer to execute the grueling and complex task of searching through old emails would cost $28.50 per hour, and that the search for emails about Casebolt would take 2,231 hours of said programmer’s time. That only comes to about $63,000; the bill also includes $14,726 “to cover the actual time a computer resource takes to execute a particular program.” In other words, the operating cost of the computer used to search the emails is nearly 15 grand on its own.

Perhaps in an effort to make this stratospherically-high fee appear more reasonable, the law firm broke it all down in table form.


According to the city's lawyers, this exorbitant estimated fee is due to the police department switching over to a new email system on March 1, 2014. Apparently, every email created before then can't be searched without hiring a programmer to create a new program from the ground up. Whatever email software the city used prior to this apparently created email in an "unsearchable" format.

This estimate reeks of… well, several things (arrogance, obfuscation...), but mainly of bullshit. I find it hard to believe city personnel are unable to search older emails, especially considering "older" only means "slightly more than a year old," rather than "stored on punchcards." It boggles the mind that a move to a new email system would cut several years of emails irrevocably adrift from the rest of the city government's computing system -- or that the city would be fine with a lack of basic search options post-upgrade.

The city is claiming it will take a year of 40-hour work weeks for a programmer to create a search system for pre-2014 emails. Worse, it claims the same even if "an existing system" is used. That may just be boilerplate language for fee estimates, but it also could be closer to the truth than its "one year of programming" claim. No matter which system is used -- the "existing" or the bespoke -- the city still claims it will still take an unreasonable amount of time to search the system. According to the estimate, it will take roughly three years of 40-hour work weeks to "execute a particular program."

This appears to be nothing more than an attempt to dissuade requesters from pursuing information about Eric Casebolt or the McKinney Police Department. This "make 'em pay" strategy is as old as open records laws themselves. The city of Ferguson hit a number of journalists with exorbitant fees in the wake of the Michael Brown shooting. The Florida State Attorney's office told a requester seeking information on the alleged (and highly suspicious) suicide of her daughter that it would cost nearly $180,000 to fulfill her request.

Gawker's options here are pretty limited. It can either limit its request to post-March 2014 emails as suggested by the city's lawyers (pretty much useless if seeking a full representation of Eric Casebolt's career) or it can petition the state attorney general to take a look at the city's claims.

A person who believes the person has been overcharged for being provided with a copy of public information may complain to the attorney general in writing of the alleged overcharge, setting forth the reasons why the person believes the charges are excessive. The attorney general shall review the complaint and make a determination in writing as to the appropriate charge for providing the copy of the requested information.

This particular avenue of recourse has been used frequently in the past. A 2012 examination of Texas open records requests by the Center for Public Integrity found McKinney ranked highest in the state in the number of fee complaints to the state attorney general (per 100,000 residents). Not all of these were fee-related, but the ratio of referred requests suggests the local government is more reluctant to turn over responsive documents than its neighbors. A spokeswoman for the city notes in the article that requests related to the police department are treated with "an overabundance of caution." This response to Gawker, however, seems not so much cautious as confrontational -- a "shut up and go away" response in the form of a thoroughly ridiculous $79,000 price tag.

I have reached out to the city employees listed in the letter to Gawker, asking for details on the current and pre-2014 email systems, as well as any methods used by city employees to access older emails. I'm not expecting an answer, but if one should materialize, it will be passed on.

Filed Under: eric casebolt, foia, mckinney, records, texas
Companies: gawker

Court Orders Halt To New York Law Demanding Online Access To Pawn Shop Acquisition Records

from the best-I-can-do-is-a-couple-of-lawsuits-for-your-heavily-used-general-warrant dept

Pawn shops -- like scrap metal dealers and junkyards -- are "closely regulated" businesses. What this means is they are compelled to track acquisition information and make it available for law enforcement to view without a warrant. The nexus of these businesses to criminal activity is undeniable. But that doesn't necessarily mean everything law enforcement demands, it gets. Some demands exceed the diminished Fourth Amendment protections afforded to these businesses.

The "closely regulated" language comes from the US Supreme Court. In a decision affecting a New York junkyard owner, the Supreme Court found that:

A business owner's expectation of privacy in commercial property is attenuated with respect to commercial property employed in a "closely regulated" industry. Where the owner's privacy interests are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises, if it meets certain criteria, is reasonable within the meaning of the Fourth Amendment.

A decision in the New York Supreme Court (People v. Keta) seemingly went against the US Supreme Court's precedent. It narrowed the broad exceptions to the Fourth Amendment somewhat, with the presiding judge (Vito J. Titone) noting:

"Our responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for Constitutional rights."

But "advancing the goals of law enforcement" still seems to be the goal. Officers are free to inspect acquisition records without a warrant, as well as seize stolen goods in plain sight, but most other actions (including searches of safes, etc.) still require additional paperwork.

In order to expedite police inspections of pawnbrokers, New York legislators passed a law making it even easier for law enforcement check in on "closely regulated" businesses.

RCNY §21-03(a) and (b), §21-04(a) and (c), §21-07(a)-(f), and § 21-08, promulgated as a result of Local Law No. 149 require pawnbrokers and dealers in second-hand merchandise to create electronic transaction records and upload the same to a web-based electronic transfer service designated by the NYPD known as Leads Online, who then makes those records available to the NYPD.

Because this law compels (sort of…) the upload of information to a database that can be accessed at will by law enforcement and other entities, it does not conform to the standards set by the NY Supreme Court's Keta decision.

[T]he foregoing statutes fail to prescribe limits for the review of the records required to be disclosed and, in fact, in requiring the daily disclosure of those records seem to vest with the NYPD the unbridled discretion which even the court in Glenwood TV, Inc., would invalidate a statute authorizing warrantless searches (103 AD2d, 322, 330).

[...]

Specifically, at this stage, it is hard to fathom how the foregoing statutes - bereft of any standards on the frequency of searches, setting virtually no limit on how said searches will be conducted and thus, conferring unfettered discretion upon the defendants suffer from the very afflictions the court in Keta held afflicted VTL § 415-a(5) - can, in light of their facial unconstitutionality born by this record, be constitutionally applied.

The court mentions the "means to an end" approach the NYPD is rather fond of. Simply having on-demand, warrantless access to on-site inspection of "closely regulated" businesses' records wasn't enough. It wanted to enjoy the same privileges without leaving the office. Now, these "inspections" -- along with others permitted under the same set of statutes -- have been halted until further notice.

This compelled database of acquisition information is the centerpiece of another lawsuit against the city and the NYPD. It appears from the allegations made in this suit that the NYPD expresses a certain irritation with those that don't opt-in to the online database. (The law requires creation and storage of electronic records, but does not actually mandate the use of Leads Online by affected businesses, stating only that "such electronic record may include real-time sharing or accessing of such records in an electronic format and/or through use of an internet website designated by the police commissioner.")

Plaintiff here alleges that Defendants have “effectively singled out Gem from other pawnbrokers and secondhand dealers and have done so with malice and bad faith.” (Am. Compl. ¶ 152.) Plaintiff further alleges that pawn brokers who choose not to use Leads Online are subject to additional onsite inspections for “administrative purposes,” and that Plaintiff has experienced continual visits to its stores, warrantless searches, holds on jewelry, criminal summonses and over all harassment. (Id. ¶¶ 36–133.) Defendants raise no argument as to this element of Plaintiff’s selective enforcement equal protection claim, instead relying on the fact that the NYPD is permitted to perform administrative inspections. The Court finds that Plaintiff’s detailed description in its Amended Complaint of the actions taken beyond mere administrative inspections, including various in-store visits from the NYPD, statements made to Gem employees, subsequent requests for jewelry holds, and the seven misdemeanor summons received, (see id.), are adequate to demonstrate at the pleadings stage a malicious or bad faith intent to injure Plaintiff. The Court therefore finds that Plaintiff has stated a plausible claim for violation of the Equal Protection Clause and Defendants’ motion to dismiss is, therefore, denied.

This lawsuit was filed before Local Law 149 was passed and enacted, suggesting there was a pre-legislation push by the NYPD to move these records to an online database. As of this point, the lawsuit is still ongoing, having survived the city's motion to dismiss.

The codes cited in the lawsuit don't specify anything more than the sort of records to be maintained. In accordance with the new law, these records are to be maintained electronically, but nothing specifically mandates the use of an online database.

As the court sees it here, this demand to participate in the online collection of these records -- which can be perused at the sole discretion of law enforcement officers and others with access to the database -- falls dangerously close to being a "general warrant." Compelled production of records during periodic inspections and/or suspicion of illegal activity is one thing. Providing at-will "inspections" with no corresponding guidelines turns "close regulation" into a prime fishing spot for law enforcement, who will no longer be participating in periodic inspections and searches, but rather trolling databases simply because they have unfettered access to the information.

Obviously, this has its parallel in the recent incident involving Motel 6's faxing of guest information to local law enforcement nightly. Motels and hotels are businesses that are subject to routine inspection of collected records, but nothing about this sort of regulation demands proactive measures on the part of the businesses involved, other than the collection and maintenance of the required records. The rest is dependent on law enforcement not abusing these privileges, which wander outside the protections of the Fourth Amendment -- supposedly in the "public interest," i.e. fighting crime.

The necessary limitations -- and there are only a few -- are subverted by instantly-accessed, central collections of this information. The Supreme Court may have lowered the Fourth Amendment standards for these businesses, but New York's highest court stills sees at least a minimal amount of privacy implications in this sort of regulation. These are in place to help law enforcement combat theft, but these noble ends are not a justification for "by any means necessary" approaches.

Filed Under: new york, pawn shops, police, records, surveillance

Supreme Court Says Motel Owners Must Be Allowed To Challenge Warrantless Searches Of Guest Registries

from the that's-kind-of-the-way-the-system-was-supposed-to-work-all-along dept

A smallish victory for Fourth Amendment protections comes today as the Supreme Court has struck down a Los Angeles ordinance that allowed police warrantless, on-demand access to hotel/motel guest records. This win is very limited, and the court's discussion of the issue at hand pertains solely to the Los Angeles statute and doesn't address the potential unconstitutionality of other, similar records sweeps granted by the Third Party Doctrine. Nor does it address the potential Fourth Amendment violations inherent to "pervasive regulation" of certain businesses -- like the records legally required to be collected and handed over on demand to law enforcement by entities like pawn shops, junk yards and firearms dealers.

The 5-4 decision focuses on the specifics of the Los Angeles statute, and it's those specifics that are problematic. The court finds that merely accessing these records without a warrant isn't necessarily unconstitutional, but rather that any demand for records cannot be challenged and that any challenging party can be fined or jailed.

The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.

Because there is no reasonable avenue to challenge these searches, business owners are really only given one option: comply. This has the potential to lead to abusive behavior.

A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.

In the end, there's no warrant requirement. All that's needed is for the city's statute to provide an avenue for searches to be challenged. The court suggests administrative subpoenas but notes that it could take any form that similarly allows business owners to challenge the records search before the search occurs and helps prevent police from using the statute as a "pretext for harassment."

The dissent, written by Justice Scalia, claims that even this very narrow decision is too expansive. Scalia argues that the new requirement places an undue burden on law enforcement officers by potentially forcing them to obtain ex parte search warrants for every motel they visit, simply because they won't know in advance which owners will challenge the search. In a city with over 2,000 hotels, the dissent sees this as unreasonable and untenable.

The prevailing opinion refers to the dissent's fears as "overblown," stating that a vast majority of businesses will still be compliant with law enforcement requests. In both Scalia's and the government's eyes, any alteration of the existing statute can only lead to a majority of motel owners refusing instant access to registry information, but this narrow view turns rare exceptions into the rule and fails to consider the numerous options still available to law enforcement to perform unchallenged searches.

The decision doesn't demand warrants or subpoenas for every motel registry check. It only orders these measures be in place for when they are needed, giving business owners the chance to challenge warrantless searches without facing jail time or fines. This is more consistent with the Fourth Amendment, and it still provides the LAPD plenty of leeway to perform motel spot checks without worrying about extra paperwork. It's a small, extremely narrow win for the Fourth Amendment rights of Los Angeles motel owners, but beyond that, it's of very limited use elsewhere.

Filed Under: 4th amendment, motel, privacy, records, supreme court, warrantless searches

[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

State Dept. Employees Only Retained .01 Percent Of Emails As FOIA-Able 'Official Records'

from the lol-'accountability' dept

With uncanny timeliness, the State Department's Office of the Inspector General has released a report on the State Department's email retention -- or lack thereof. Not covered in the report is Secretary of State Hillary Clinton's email retention -- or lack thereof. High-ranking State Department officials use a different email system (when not using personal accounts) that isn't covered in this report.

Unfortunately, the lower-level officials and rank-and-file are abysmal at retaining emails subject to open records requests. In fact, they're so far under abysmal as to not even register on the Excellent-to-How-do-these-people-still-have-jobs? scale.

First, we have this:

A 2009 upgrade in the Department of State’s system facilitated the preservation of emails as official records.

Then we have this:

In 2011, employees created 61,156 record emails out of more than a billion emails sent.

Then… we have this:

Employees created 41,749 record emails in 2013.

Assuming around a billion emails for both the years quoted, State Department employees have managed to retain only .01% of emails created as FOIA-able "official records." Some of this is due to the lack of training or guidance on their responsibilities as public officials. But most of it is likely due to this, which is also related to the ongoing lack of training or guidance.

Some employees do not create record emails because they do not want to make the email available in searches or fear that this availability would inhibit debate about pending decisions.

"Inhibit debate." What a bunch of cowards. So scared of the American public that they shirk their responsibilities to the people who put roofs over their heads, gas in their cars and pension checks in their mailboxes. It's no surprise they haven't received the necessary training and guidance. Everyone from the Secretary of State on down suffers from the same fear of accountability. If they're not retaining records at the top level, those middle-managing aren't going to feel too compelled to make sure every employee takes care to retain emails as official records. "Lead by example," as the saying goes, and the example is… Hillary Clinton, etc.

The OIG discovered that, while every State Dept. office was pretty terrible about following retention rules, some were much worse than others.

The OIG team’s review of the Department’s records on record email use by missions and bureaus shows great variations (see Appendices C and D). For example, Embassy Singapore created 1,047 record emails in 2013; Embassy Islamabad created 121; and Embassy Beijing, only 47. Consulate General Lagos created 4,922 record emails, the most of any post in 2013.

The Department’s bureaus also vary widely in their use of record email. The Bureau of East Asian and Pacific Affairs created 736 record emails in 2013; the Bureau of International Organizations, 311; the Bureau of South and Central Asian Affairs, 26; and the Bureau of International Narcotics and Law Enforcement Affairs, only 22. IRM created 1,630 record emails, more than any other bureau in 2013.

Some bureaus increased usage when the OIG informed them that email retention could also work to their advantage. Not all paper trails are damning. Some are exculpatory. Certainly there are more of the former than the latter, hence the State Department's general reluctance to keep any more than .01% of its emails in any given year.

The OIG also noted that there is no centralized oversight of this system. Unsurprising, considering no one seems to want the job. Even when given a system that makes retention easy, the State Dept's staff -- from top to bottom -- has gone out of its way to avoid doing that very thing.

The OIG suggests further training, but that's not going to make much of a dent in the ingrained culture of secrecy common to many government agencies. It also suggests a handful of other bureaucratic fixes, many of which will likely be listed as "in the works" or "unstarted" when the next OIG report rolls around.

As for the report itself, it's quite possible this would never had been made public if not for recent events. It's marked "Sensitive but Unclassified" and carries this since-stricken warning in the opening pages.

IMPORTANT NOTICE: This report is intended solely for the official use of the Department of State or the Broadcasting Board of Governors, or any agency or organization receiving a copy directly from the Office of Inspector General. No secondary distribution may be made, in whole or in part, outside the Department of State or the Broadcasting Board of Governors, by them or by other agencies of organizations, without prior authorization by the Inspector General. Public availability of the document will be determined by the Inspector General under the U.S. Code, 5 U.S.C. 552. Improper disclosure of this report may result in criminal, civil, or administrative penalties.

In other words, the secretive agency's internal report about its transparency-thwarting was supposed to remain a secret. The OIG blows the lid off the agency's willing failure to retain email records, and the State Department -- with the OIG's tacit approval -- elects to keep constituents from learning how its government is actively working to keep them separated from records they have every right to demand.

Filed Under: email, foia, inspector general, records, retain, state department, transparency

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

'Trusted Third Parties' Add One More Link In The Supply Chain Between Your Data And Government Requests

from the a-new-wave-of-data-brokers dept

Just how many entities have their hands on your data when the NSA makes requests? Well, it's not just the service providers and any number of analysts at the NSA. There's a whole industry subset of third parties that actually handle requests, implement wiretaps, direct searches for communications/data and deliver this information to the intelligence agency.

ZDNet's Zack Whittaker has the details.

With permission from their ISP customers, these third-parties discreetly wiretap their networks at the behest of law enforcement agencies, like the Federal Bureau of Investigation (FBI), and even intelligence agencies like the National Security Agency (NSA).

By implementing these government data requests with precision and accuracy, trusted third-parties — like Neustar, Subsentio, and Yaana — can turn reasonable profits for their services.

Little is known about these types of companies, which act as outsourced data brokers between small and major U.S. ISPs and phone companies, and the federal government. Under the 1994 law, the Communications Assistance for Law Enforcement Act (CALEA), any company considered a "communications provider" has to allow government agencies access when a valid court order is served. No matter how big or small, even companies whose legal and financial resources are limited do not escape federal wiretapping laws.

Subpoenas, search warrants, court orders -- even those from the FISA court -- run through these trusted third parties. From the information Whittaker has gathered, this market seems to have evolved out of limited legal resources retained by smaller ISPs and service providers. Incoming requests are forwarded to these companies, which vet them for legal issues and determine what exactly needs to be done to satisfy them. Some of this is just CYA -- an extra insulating layer to serve as a buffer between the service provider and the possibly aggrieved customer(s). Some of it is due to practicality. Smaller ISPs and service providers do not retain lawyers with the security clearance needed to inspect/challenge certain orders.

One of those attorneys, who declined to be named for the story because the person holds top-secret security clearance, explained that although hundreds of lawyers have the same clearance — including those serving terror suspects in Guantanamo Bay — very few have been in front of the FISA Court to defend their clients. These clearance-holding lawyers have been in high demand over the past year representing major Silicon Valley companies implicated in the NSA's surveillance programs.

For the majority of smaller companies (as well as larger ones, who have refused to comment on challenging such warrants), complying with data demands may be their only option. The vast majority, however, do not have the resources to handle such requests.

"If they don't have an internal lawyer [reviewing FISA warrants], they could use a third-party service. That third-party can't provide legal advice, but it can create a system for reviewing the data, pulling, and processing the data," the security clearance-holding attorney said.

Because these companies have the sort of clearance the ISPs lack, smaller ISPs are often nothing more than dumb terminals for government agencies to manipulate. The trusted third parties are often the only entities that see certain court orders and requests, and ISP participation in the approval and response processes is often non-existent. In many cases, the ISP cannot even see the court order it's being directed to comply with.

"Of what worth is our permission when we don't even know what we're being asked to give access to?" a senior staffer at [ISP] Cbeyond admitted.

In the unlikely event that a request is rejected, it's usually done by the third parties, again without the participation of the ISP itself. The trusted third parties are better equipped -- in terms of legal team security clearance -- to do this than smaller ISPs are, but that additional expertise is of little use should ISPs decide to directly challenge a court order.

If the ISP or phone company decides to fight a warrant, the third-party can stand back and wash its hands of it.

Burr said Neustar "has and will" reject subpoenas that are inadequate for one reason or another. But should its clients choose to fight a FISA warrant or court order it believes to be overbroad, Neustar will not join the battle in court.

Other trusted third-parties take a similar approach.

"We're out of the picture," said Marcus Thomas, chief technology officer at Subsentio, another trusted third-party company, founded in 2004, and based out of Littleton, Colorado.

While the third parties may be collecting money from ISPs for handling data and intercept requests, their desire to stay in the government's good graces appears to outweigh any loyalty to the businesses that retain their services.

"It's the provider's problem," [Yaana Executive VP Tony] Rutkowski said. "The nice part about the trusted third-party business is that just from a liability standpoint, we don't want to be left holding the bag here." [Yaana CTO David] Grootwassink agreed. "We provide the gears. We don't get involved in fights between the governments and our clients."

And therein lies part of the problem. While it may be easier to turn over what is largely a compliance function to third parties, there's very little oversight into these companies' actions and processes. Even the ISPs that hire them seem to have limited insight into what's actually being done. These go-betweens have carefully dodged liability by refusing to be involved in legal challenges, leaving underequipped ISPs to fight their own battles. While some trusted third parties have issued transparency reports detailing the requests they've facilitated, this basically leaves the public to perform the oversight, something of very limited use. About all the public can do is switch providers, which, if even an option, only puts them in the hands of another company using the same practices.

Filed Under: 4th amendment, data, isps, phones, records, surveillance, third parties

PACER Deleting Old Cases; Time To Fix PACER

from the down-the-memory-hole dept

For years, we've talked about the many problems with PACER, the horribly designed and managed electronic court records system that the federal court system uses here in the US. Beyond being clunky, buggy, horribly designed and slow -- it's also expensive. With some exceptions, it's 10 cents per page you download, and also 10 cents per search. As many have noted, this almost certainly violates the law concerning PACER, which says that the Judicial Conference can only "prescribe reasonable fees… to reimburse expenses incurred in providing these services." And yet the fees go way, way beyond what's needed to maintain the (again, horrible) system which they refuse to update. Instead, it's used for lots of other things. And, as many people note, it's something of a travesty that all of these public records are locked up, rather than being made available. Even more ridiculous is that when people hack around this system, such as with the open RECAP project to free up PACER documents, courts freak out. Or, when people like Aaron Swartz try to use free access to PACER to free up its documents, they end up being the subject of an FBI investigation for computer hacking.

Aaron Greenspan, who runs an open court records site called Plainsite (and who is currently engaged in an unlikely-to-succeed lawsuit arguing that PACER should be free), has noticed that PACER is also shoving old cases down the memory hole so they will no longer be available. In a brief announcement on August 10th, PACER's website announced that a bunch of cases would "no longer be available." Now, there have always been some cases not on PACER, but to actively start removing a bunch of cases, including many that are fairly recent (CAFC cases from just two years ago?!?) seems ridiculous and excessive. Yes, PACER is horribly designed and managed, but it's not like the storage costs for some old PDFs is that high. Especially as storage keeps getting cheaper and cheaper. Does someone down at the Administrative Office of the US Courts want me to send them an external 2 TB hard drive? They run about $100 these days...

Filed Under: aaron greenspan, cases, pacer, public records, records
Companies: plainsite