Criminal Defendants Sue State Of Utah For Blowing Off The Sixth Amendment

from the the-best-lawyers-$0-can-buy dept

So much for those "inalienable rights." The Sixth Amendment -- among other things -- guarantees representation for criminal defendants. This guarantee has been declared null and void in two states: Utah and Pennsylvania.

The problem isn't that these states aren't willing to comply with both the Sixth Amendment and the Supreme Court's Gideon v. Wainwright decision. It's just that they're not going to spend any of their money doing it. In these states, funding for indigent defense is left up to local governments, with no additional support coming from the state level.

This causes problems for smaller locales, which often don't have the revenue to fully fund the legal defenders the accused are (supposedly) entitled to. But it's not just a matter of funding. It's also a matter of priorities. The state of Utah is currently being sued because of its unwillingness to ensure public defenders are properly funded. There's money available, but lawmakers have shown an unending willingness to only fund half of the criminal justice equation.

Utah is one of only two states nationwide that provide no state funding for indigent defense. It ranks 48th in the nation in per capita funding of indigent defense, according to the complaint.

Nor has the state set standards for contracted indigent defenders, or ensured that counties provide "constitutionally adequate" legal representation, the men say. Utah counties design and administer their own indigent defense programs.

Washington County uses fixed-price contracts to pay local attorneys for indigent defense, and budgeted $760,688 for indigent defense in this year. The county budgeted $2.8 million for prosecution this year, and the state has budgeted $18.6 million for criminal prosecution, and not a dime for defense.

The lawsuit points out that the lack of funding has hampered both of their cases. For one of the two defendants bringing the suit, the lack of funding resulted in his public defender's contract not being renewed, basically leaving him without capable representation.

At the time this lawsuit was filed, Plaintiffs were being represented by public defenders. During that representation, Washington County did not renew the public defender contract for Mr. Paulus’ public defender which makes it impossible for him to continue to his currently scheduled trial date.

Mr. Paulus faces 25 years to life in the Utah State Prison if he is convicted of his crimes. Mr. Paulus had a previous public defender, Ed Flint, who had obtained a private investigator interview a number of witnesses, but Mr. Flint had not retained any expert witnesses because of the contract issues with the Defendants as it relates to the public defender system in Washington County. As of the date of the filing of this action, Aric Cramer, who had two contracts and subcontracted with Ed Flint, did not have these two contacts renewed. Mr. Cramer would also subcontract with Ariel Taylor. On information and belief, one of those contacts are still unfilled.

On information and belief, attorney Ariel Taylor has been awarded one of those two vacant contacts. However, Mr. Taylor has no knowledge or involvement in the Mr. Paulus’ case prior to the non-renewal of Mr. Flint and Mr. Cramer’s contracts.

And it's not just that defendants are in danger of losing lawyers familiar with their cases if contracts aren't renewed. Years of underfunding and neglect by local governance has led to an ad hoc public defense network which does little to ensure defendants receive competent assistance.

Defendants exercise no supervision over the county indigent defense programs. They have also failed to establish, require, or enforce any practice standards or gridlines for the portions of noncapital indigent defendants receive constitutionally adequate representation.

National standards pertaining to the administration and provision of indigent defense programs have been in existence for decades . State and local entities across the country have adopted many of these practices standards. Washington County has refused to do so.

The lawsuit is aiming for class status, which would draw in many other criminal defendants -- either imprisoned or still awaiting trial.

The numbers cited in the suit aren't anomalous. The complaint that defenders' offices are underfunded can be heard all over the nation. It's just that two states have further tipped the scales in favor of prosecutors by passing all costs on to local governments. And when there's a limited amount of money to spend, it plays better with voters to hand it to the law enforcement side, rather than a system that helps "guilty" people "escape" punishment. Yes, I'm aware our justice system is predicated on the presumption of innocence, but that's the ideal, not the prevailing perception.

A system that is routinely a travesty at best is a complete debacle in Utah, quite possibly to the point of being unconstitutional. But that's the way the accused are treated. The system prefers plea bargains to trials and convictions to exonerations by a large margin -- something that can be immediately confirmed by taking a glance at government balance sheets.

At best, this case will force the state to start funding indigent defense. But much more needs to be done before the system can be considered equitable.

Filed Under: public defender, sixth amendment, utah

The Great Dirty Soda War In Utah Is Trademark Gone Stupid

from the ever-heard-of-a-dirty-martini? dept

On matters of trademark, a law I hate much less than other forms of intellectual property, I tend to think of its administration as needing to be built on a basis of trust. The purpose of trademarks are chiefly to benefit the public, in that they are designed to keep the consumer from being fooled into thinking one brand is another. With that in mind, the USPTO has the power to grant exclusivity to certain brand identifiers in order to help the public consumer identify brands and companies. For this arrangement to work, the USPTO must be trusted not to screw it all up by granting marks on common terms or by limiting customer options by being too exclusive and stifling business.

The damage done when the USPTO fails at this can be seen easily, but perhaps no better example exists than what's going on in Utah at the moment, where several soda shops are engaged in a battle over the word "dirty." The New York Times calls it the Soda War of 2015 and it's primarily being waged by two businesses, Sodalicious and Swig. Because of Utah's Mormon population, which tends to eschew alcohol and coffee, but will readily imbibe sugar, shops selling so-called "dirty-soda" are becoming quite popular. Dirty-soda is a term for cocktails of common soda products along with taste enhancers, such as syrup or other ingredients. Anyone who has ever ordered a dirty martini will be familiar with the term and its common use in making cocktails. But for some reason the USPTO granted a trademark to one of the businesses on the use of the term "dirty" for their drinks and you already know what happens because of it.

As the shops have proliferated, a fight has broken out between Sodalicious and Swig, two of the larger chains, over the use of the word “dirty.” Nicole and Todd Tanner, who started Swig in 2010, say they own the right to use the word to refer to flavor-infused drinks — they trademarked the idea in 2013 — and they are suing Sodalicious for taking their idea.

Sodalicious, which opened three years after Swig, responded to the lawsuit by saying that “dirty” had been used to refer to flavor-added drinks long before Swig employed it, and that the trademark should be canceled. Lawyers pointed to the dirty martini as evidence that Swig did not own the idea.

Lawyers are involved in Utah over the use of the word "dirty" being trademarked and locked up for the purposes of making drinks. If that isn't a clear example of the trademark office's inability to properly assign unique identifiers, then I can't imagine what is. As the article notes, there is no issue here of customer confusion. The fans of both companies are lining up on social media circles to vehemently defend their preferred brand. Everyone knows who's who in this game. Yet, there's a legal battle, all because a common term was trademarked.

It should be noted that the use of "dirty" isn't the only contention in Swig's lawsuit, which also accuses Sodalicious of using bubbles in its logo and serving cold cookies with pink frosting, because that's apparently something worth a lawsuit nowadays. Still, without the trademark on the word "dirty", the suit likely doesn't happen.

“It’s turning people against Swig,” she said of the lawsuit. “Which is a shame, honestly, because they’re trying to do business, and I’m sure they’re very nice people.”

But five minutes down the road, at a Swig shop surrounded by its own circle of minivans, a shift leader, Bronwyn Varner, 18, insisted that her customers were as loyal as ever — and that Swig would win the legal battle.

Fantastic, except its all that brand loyalty, completely lacking in any consumer confusion, that is the very reason why no lawsuit, and no trademark on the word "dirty", should ever have happened in the first place.

Filed Under: dirty soda, trademark, utah
Companies: sodalicious, swig

Prominent Salt Lake City Residents Sue The NSA Over Mass Warrantless Surveillance During The 2002 Olympics

from the statute-of-limitations-may-be-a-problem dept

All the cool kids are suing the NSA these days. The EFF and ACLU led the way, suing the NSA before suing the NSA was cool. Others followed as a series Snowden/Greenwald split releases gained popularity (culimating in Greenwald leaving The Guardian to start his own label website). Most recently, those abused by the NSA for their whistleblowing efforts enlisted the help of the frequently more-entertaining-than-effective Larry Klayman to sue the NSA (and many others) for the retaliatory actions that followed their whistleblowing efforts.

The AP reports (without attaching the relevant filing, because information wants to be free omitted) that former Salt Lake City mayor Rocky Anderson is suing the NSA for "mass warrantless surveillance" conducted during the 2002 Winter Olympics, which were held less than six months after the 9/11 attacks.

Rocky Anderson may be suing the NSA, but it appears he's only doing so by hitching his name to a pre-existing lawsuit. Anderson's name isn't found among the listed plaintiffs, which basically makes him a "similarly situated party" -- indistinguishable from the average Salt Lake City resident except that the press is willing to publish his statements.

"I was outraged by this," Anderson said Wednesday. "Fundamentally, we want to get to the truth and expose what our government is doing."

Anderson says he learned about the program from a 2013 report in the Wall Street Journal and has since confirmed it with an unnamed agency source.

The suit names the NSA, FBI, George W. Bush, Michael Hayden, Dick Cheney and 50 "Does." What's alleged in the filing is the interception of data and communications in the Salt Lake City area for the duration of the Winter Olympics.

The NSA, in conjunction with the FBI, planned and implemented a mass warrantless program—for which there was no probable cause, completely outside the Constitution and outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the Games, from February 8, 2002 (Opening Ceremony) through February 24 (Closing Ceremony), over everyone within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.

That surveillance included the interception and key-word spotting analysis of the contents of every text message sent and received, every email sent and received, and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance. In some instances, people or telephone numbers were targeted by the NSA and FBI and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis, without a warrant and without probable cause.

In support of these allegations, it cites the exposure of the "Stellar Wind" program in 2005, as well as other confirmations of the warrantless wiretapping authority granted after the 9/11 attacks.

The plaintiffs' standing relies on very simple assertions: that they made phone calls and sent text messages/emails during the Winter Olympics. Given what we know about the NSA's bulk collection programs, this is all that's really needed to make these allegations. Ex-mayor Rocky Anderson says he knows "about 200 others" who could make similar claims, but the barrier of entry for this class is low enough that thousands of residents and non-residents could join the proceedings, if granted class action status by the court. Here are the class stipulations:

All individuals in the United States who sent or received a phone call, text message, or email from or to a location within Salt Lake City or within an area including and adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of the defendants were engaged in warrantless surveillance of communications by telephone, text messaging, or email during the time of December 1, 2001 to February 24, 2002 (or whenever it is established the warrantless surveillance took place).

The lawsuit alleges First and Fourth Amendment violations, as well as violations of FISA, the Wiretap Act and the Stored Communications Act. It also cites similar violations of Utah's Constitution.

I'm not sure this suit has any chance of surviving a motion to dismiss by the government. While standing is easier to achieve now that leaked documents have verified the specifics of the NSA's collection programs, the courts have generally granted more deference to the government's "national security" arguments. What is (slightly) helpful is that the Second Circuit found the Section 215 bulk collection isn't actually authorized by the Patriot Act. While Utah resides outside of that Circuit, decisions that question the legitimacy of bulk surveillance still may prove useful to the plaintiffs' claims.

If there's going to be any retribution for the NSA's abuses, it will probably have to wait until the Supreme Court takes a swing at it. And by the time it does, the question about the legality of its bulk collection program (under Section 215) will be largely moot, thanks to the passage of the USA Freedom Act. While lawsuits like these have been mostly fruitless in their pursuit of favorable judgments, they have proven useful for shaking loose previously-hidden documents and legal justifications for warrantless, domestic surveillance.

Filed Under: fbi, mass surveillance, nsa, olympics, surveillance, utah

Zenefits Allowed Back Into Utah After Insurance Brokers Tried To Kill The Innovative Startup

from the killing-rather-than-competing dept

Late last year, we wrote about the ridiculous situation in which the state of Utah effectively banned Zenefits, the innovative HR software service provider that tons of companies now use. As we noted, Zenefits came up with a creative way to build a real business by giving away its (really useful) HR software for free: coupling it with an insurance brokering business. You get to use its software for free, and Zenefits also makes it easy for businesses to get insurance and takes a cut of those deals. Zenefits started out by first just building the software, but then realized that it could tack on this business model after it found that most insurance brokers collect huge fees without really doing anything all that useful. So here, Zenefits could provide a more useful service, offer it to companies for free, and have a really successful business model. A win for everyone. Well, except traditional insurance brokers who found it more difficult to compete.

And thus, the Utah Insurance Department, run by former insurance broker Todd Kiser, declared that Zenefits broke a bunch of rules in Utah by daring to give out its software for free. Kiser determined that this violated rules against "inducements" or "rebates." This was from the ruling against Zenefits last year:

Zenefits' providing free software use of its electronic platform and dashboard violates Utah's inducement and indirect rebate insurance laws. By Zenefits offering clients the free use of its electronic platform and dashboard, by which employers can control and coordinate payroll functions and manage tax-related elections; generate tax forms; access FSA, HSA, and accounts; and administer 401k retirement savings plans and stock options; Zenefits has created a significant free inducement for clients to purchase insurance products through Zenefits. This software use is neither part of the insurance contract nor directly related to the insurance contract. Also, Zenefits connecting of the various HR benefits and insurance together creates advantages for customers to have a single internet access site to manage all HR and insurance needs; however, again, because Zenefits does all of this for free, it creates an violating inducement and indirect rebate for clients to purchase insurance through Zenefits.

Thankfully, Utah policymakers appeared to realize fairly quickly just how backwards and anti-innovation this made the state appear. A bill -- HB 141 -- was quickly produced, modifying the state insurance code to make it clear that software like Zenefits was not considered an inducement or rebate. The bill overwhelmingly passed out of both legislative houses. And, as of this morning, Utah's governor Gary Herbert signed the bill allowing Zenefits to operate freely in Utah once again.

It's good that the state reacted quickly to make this possible, but it still seems ridiculous that it had to get to this stage in the first place. Innovation shouldn't be dependent on incumbents not getting upset and/or having to convince an entire legislative body and executive branch to change the rules just to let you provide a better service that people like.

Filed Under: competition, hr software, innovation, insurance, insurance brokers, todd kiser, utah
Companies: zenefits

New Utah Law Instructs Cops To Seize Uninsured Vehicles

from the good-intentions,-bad-law dept

Does the government really even need excuses to seize the assets of its citizens, especially for relatively minor crimes? Apparently it does, at least according to the state of Utah.

A new law that went into effect on Jan. 1 changes the wording and adds provisions to a law that has been in effect since 2008 allowing officers to impound a vehicle that isn’t insured. The crucial verb that was changed, raising sides between those in favor and those opposed to the revised law, is the shift from the law previously stating that an officer “may” seize a vehicle without warrant if it’s being operated without insurance to the fact that now an officer “shall” seize said vehicle.

The wording change makes it mandatory. What was always an option is now expressly a command. The senator behind the new law feels this is necessary despite uninsured drivers really not being much of a problem in his home state.

Even though the sponsor of SB 72, Sen. Lyle Hillyard, estimates Utah’s current rate of uninsured drivers at 3 percent, much less than the national average of 12.6 percent, he says it's still enough of a problem to address.

No problem is too small. That's your government at work, Utah citizens. Will this new law lead to the sort of abuse witnessed in other areas of the country? Well, maybe. The low uninsured driver rate is one of the few things preventing this from becoming the full-blown, corrupt mess it is in other jurisdictions. The other factor is the restrictive language in the law, which provides for a surprising amount of protections for the public.

Officers are supposed to make a "reasonable, independent effort" to verify the vehicle is uninsured before seizing it. This means they can't simply seize it because the driver isn't carrying an insurance card. The claimed insurance company will need to be contacted before the vehicle can be seized, along with the owner of the vehicle (if said owner isn't the one driving). The amendment also authorizes an account for funds to be set aside to repay towing and storage charges incurred for vehicles wrongly impounded. (Of course, this requires the affected person to prove that the vehicle was wrongly impounded, but hey, at least there's some sort of due process, even if it occurs after the vehicle has already been seized.)

That's the good news. The bad news is that it gives law enforcement yet another way to take property away from citizens. It encourages trolling for seizures by turning the Uninsured Motorist database into a shopping list.

Then there's this. What if the driver's insurance agent isn't available at the time of the incident?

Another commenter unhappy with the new law said how she had been pulled over previously and had shown up as being uninsured. Because it was Saturday, the officer couldn’t reach her insurance agent but was kind enough to let her go with a warning. By the new wording in the law, unless there is reason to believe the woman’s safety is in question, the officer “shall seize” her vehicle.

There's still no due process involved (pre-seizure) and vehicles are automatically deemed to be "guilty" of being driven without insurance. As far as criminal acts go, driving without insurance is on the low end of the spectrum, but the consequences are on par with drug trafficking or fraud.

Sure, every driver should have insurance, but this isn't a perfect world. There are very few good reasons why someone might drive without insurance, but the real world sometimes gets in the way. Payments might be missed and the reinstatement amount might be too high to pay in a lump sum. Some people are simply uninsurable due to their driving record -- or even solely because of their credit record.

This law seems about as close to abuse-proof as any asset forfeiture law, but it still has several problems, not the least of which is the demand that vehicles be seized (rather than left to officer discretion) and the reliance on law enforcement to carry through on "reasonable, independent verification." The nod to the "safety" of those whose vehicles can be seized ultimately means nothing. Past incidents have shown officers are more than willing to seize vehicles and leave drivers stranded on the side of the road. "Public safety" is generally invoked to assist in civil liberties violations -- like skirting warrant requirements or seizing recording devices -- not to actually ensure the "public" is any "safer."

As with any law that authorizes the seizure of property by the government, there's a potential for abuse. For a state with such a low uninsured driver rate, this law is overkill.

UPDATE: Eric Holder recently announced decision to eliminate states' participation in asset forfeiture programs is a move forward -- one that closes a loophole used by law enforcement agencies to bypass states' restrictions on seizures. However, it will have no effect on this program as this doesn't involve federal participation. So, there's still significant room for abuse in many states' programs, ones that will need to be closed at the local level.

Filed Under: cars, insurance, seizures, uninsured vehicles, utah

Utah Wants To Kill Zenefits For Giving Away HR Software For Free

from the no-disruption-allowed dept

Another day, another example of regulators protecting legacy businesses and trying to shut down quite useful disruptive innovations. Zenefits is an incredibly fast growing company that has become the rather de facto standard for HR software for startups in Silicon Valley. Part of the key? It gives away the software for free -- software that, from competitors, costs quite a lot (to the point that many startups don't adopt HR software until much later in their lifecycle). A great NY Times profile from a few months ago detailed the rise of Zenefits and how its business model developed. In short, Zenefits had started building some online HR software, and was trying to figure out a business model, when it realized that it could give away the software for free and just get commissions by also acting as an insurance broker. The full story is much longer (and fascinating), but here's a snippet from that profile:

When businesses buy health coverage for their workers, they often go through brokers, who play the role that travel agents once did for the airlines. They are middlemen who figure out the best fit between buyers and sellers of health care, then take a percentage of the sale. And the commissions can be quite hefty. After connecting a small business with a health care provider, a broker collects a monthly fee of about 4 to 8 percent of a company’s health premiums.

The commission rates are set by care providers and aren’t usually disclosed to the small-business purchasers. But the fees amount to several hundred dollars or more per employee annually, and they generally continue for as long as a business keeps its health coverage. The broker collects the monthly fee from the care provider even if the business never talks to its broker again.

“I was thinking, wait a minute, that is a ton of money, and these guys don’t do very much for it,” Mr. Conrad said. This presented an obvious business model for Zenefits. It would become a broker itself. Thanks to the Affordable Care Act, health insurance providers now publish set rates. This meant that Zenefits could offer brokerage online, letting small businesses buy health insurance pretty much the same way people shop for airline tickets.

From there, the "software" just became a hook and a selling point. Yes, it's still the core of the actual "business," but it's just an insanely effective promotion for the insurance brokerage part, which the company has also made super simple. Businesses pay the same exact price they would normally pay for their health insurance -- but they get this great HR software as part of the deal (and Zenefits collects the commissions that traditional insurance brokers would have collected for doing much, much less). Of course, as the article also notes, it's not easy to become a brokerage, but Zenefits put in all of the effort to become a registered insurance broker in various states to make this work -- and it's made the company grow like gangbusters.

And... of course, traditional insurance brokers absolutely hate it. The NY Times article noted that brokers have complained to regulators in four states, including Utah. And that brings us to the latest story. While the investigations in Texas and Washington went nowhere, in Utah, the Utah Insurance Department -- which is run by a former insurance broker named Todd Kiser (founder of Kiser Insurance Agency) -- has told the company that it has violated a bunch of rules for daring to give its software away for free. Specifically, the Insurance Department calls out [pdf] the fact that the free software somehow violates rules against "inducements" or "rebates" for insurance.

The full letter is an astounding example of regulations designed to protect incumbents over innovators. First it attacks the use of free software, despite the fact that the end result is better for companies:

Zenefits' providing free software use of its electronic platform and dashboard violates Utah's inducement and indirect rebate insurance laws. By Zenefits offering clients the free use of its electronic platform and dashboard, by which employers can control and coordinate payroll functions and manage tax-related elections; generate tax forms; access FSA, HSA, and accounts; and administer 401k retirement savings plans and stock options; Zenefits has created a significant free inducement for clients to purchase insurance products through Zenefits. This software use is neither part of the insurance contract nor directly related to the insurance contract. Also, Zenefits connecting of the various HR benefits and insurance together creates advantages for customers to have a single internet access site to manage all HR and insurance needs; however, again, because Zenefits does all of this for free, it creates an violating inducement and indirect rebate for clients to purchase insurance through Zenefits.

Nowhere does the Insurance Department appear to recognize that it's basically saying "offering a better product is illegal." Instead, later in the document, it flat out admits that its goal here is to protect the legacy players who didn't innovate:

Concerning Utah's insurance public policy and State interest, the Utah Insurance Department has the important responsibility to maintain a fair, competitive insurance business environment for all licensees. Some of the main purposes of the Utah Insurance Code are to ensure not only that insurance consumers are protected and treated fairly, but that licensees are also treated fairly within a financially healthy and adequate insurance market that is not only characterized by innovation, but also by fair conditions of competition for all insurance licensees. See Utah Code Sec. 31A-1-102. For these reasons, Utah's specific unfair inducement and rebating laws are strongly enforced.

In short, disrupting the old way of doing business is illegal, because the non-innovators can't keep up. The Utah Insurance Department further makes it clear that innovation that offers a better solution for companies who buy insurance is flat out not allowed under Utah law:

Insurance Department Bulletin 2010-7 emphasizes that a licensee that provides a benefit that is not specified in an insurance contract offered to an insured or potential insured is a violation of state law. This includes offering benefits not specified in the insurance contract at no cost or at a cost below fair market value. Also explained is the fact that providing other value added services not specified in an insurance contract are also insurance violations.

In short: offering insurance buyers a better deal is illegal. The state then says it will fine Zenefits and that the company needs to stop "violating" these rules, and instead come up with a "compliance plan." Of course, for Zenefits, the only really sensible solution is to not do business in Utah, meaning that Utah-based businesses are objectively (and significantly) worse off. That's crazy -- but it's the sort of ridiculous regulatory attacks presented to disruptive businesses all too frequently.

Filed Under: competition, disruptive innovation, incentives, innovation, insurance, rebates, regulations, todd kiser, utah, utah insurance department
Companies: zenefits

Bill Aimed At Shutting Off NSA's Water Starts Moving Forward Again

from the firing-the-customer dept

The attempt to nerf the NSA's new data center in Utah continues. As we covered here at the beginning of this year, legislators and activists began pushing a bill that would cut off the NSA's water supply if it continued to gather data on American citizens. It's an interesting move, one that leverages the states' abilities to combat overreaching federal laws, but one that has gone nowhere so far. The bill was discussed and then tabled indefinitely, supposedly for "further study."

Apparently, some sort of studying has gone on during the intervening months, because it appears the bill is moving forward again.

On Wednesday, the Public Utilities and Technology Interim Committee discussed the bill that "prohibits cooperation between a federal agency that collects electronic data and any political subdivisions of the state."

The Salt Lake Tribune has more details.

Committee members expressed some concerns with the bill but no outright opposition. They asked the bill’s sponsor, Rep. Marc Roberts, R-Santaquin, to better define who would be impacted by the bill.

The members also asked questions on whether Utah taxpayers are supporting the NSA.

"I just don’t want to subsidize what they’re doing on the back of our citizens," said Rep. Roger Barrus, R-Centerville.

As is par for the course in legislative discussions, the prevailing public wind was checked. Apparently, it still blows in the direction of shutting down the NSA's water supply. Rep. Barrus' stated concerns about taxpayer subsidies are admirable, if a bit on the tardy side. As it stands now, the NSA is receiving cut rates on both electricity and water -- both of which are expected to be used heavily. (The data center is projected to use four times as much electricity as the entire town of Bluffdale and over a million gallons of water a day.)

If the bill does pass, the effect won't be felt immediately.

Roberts’ bill would grandfather in Bluffdale’s financial agreements with the Utah Data Center, but when those agreements expire, his bill would prohibit further cooperation with the NSA. It also would prohibit any other cities or water districts from signing new agreements with the NSA.

Not that grandfathering in old agreements would ultimately matter if the bill passes. Uprooting a large-scale data center doesn't happen overnight. The NSA would be back out shopping for real estate while simultaneously attempting to have the new law overturned. It buys the agency some time but doesn't eliminate a possibly waterless future.

Jokes were made during the meeting that the NSA had not only read the bill but was listening in to the session, something that seems to indicate a new-found wariness of the agency's power -- something that obviously wasn't present when Bluffdale approved the data center… or any time prior to Snowden's leaks.

Pete Ashdown, the founder of the Internet service provider XMission, toured the Utah Data Center before the leaks from Edward Snowden. He said an NSA administrator told him the data center came to Utah because of low energy prices and people who were patriotic.

Ashdown believes the latter implied Utahns would not question what the NSA does.

Whether or not that was the NSA rep's insinuation, there can be no question that many surveillance apologists believe the same thing: patriotism means unquestioning support of your government. This attitude completely ignores the founding of this country: the violent overthrow of the standing government and the installation of principles based on the government deriving its power from the people -- not just demanding it, along with the public's devotion.

Filed Under: bluffdale, nsa, surveillance, utah, water

EFF, Greenpeace Fly Blimp Over NSA's Utah Datacenter; Launch Campaign To Stop Illegal Internet Spying

from the taking-it-to-the-skies dept

Earlier this week, EFF's Parker Higgins noted that he was about to head on a secretive "adventure to Utah" -- and now it's come out that he was actually there to fly a blimp over the NSA's infamous datacenter in Bluffdale, Utah. You know the one. It's received plenty of attention over the past few years, as it was designed to store a ton of electronic data that the NSA previously didn't have room for. Either way, EFF and Greenpeace teamed up to launch a new campaign called Stand Against Spying, and took to the skies in the blimp to get it some attention. You can also see a brief video of the blimp taking off. If you look closely, you'll see the big arrow pointing downward from the blimp saying "NSA Illegal Spying Below." The blimp -- technically a thermal airship called the A.E. Bates, apparently flew over the center for about an hour. In an interview with the Guardian, Higgins noted just how enormous the datacenter appears to be from above:

"The data center is this massive, sprawling complex. I've seen pictures of it, but it's different from the air. You get a sense, really, for the scope of this, the scale of what they're doing there."

Check out the Stand Against Spying website, and, in particular, its new Congressional scorecard rating our elected officials on how good of a job they're doing (or not doing) in protecting our privacy against the NSA. The list, unfortunately, shows how polarized this debate is. There are a lot of "A"s on the list, and a ton of "D"s and "F"s. There are very few "B"s and "C"s in between. The methodology explains how the grades were awarded. Improving grades is pretty straightforward: sponsor or co-sponsor good privacy bills and then vote for them. Simple? Simple. Now, it's time to move more people into the "A" category.

Filed Under: bluffdale, data center, nsa, protests, spying, surveillance, utah
Companies: eff, greenpeace

Utah State Records Committee Orders City Of Bluffdale To Reveal Data On NSA's Water Usage

from the water,-water-everywhere,-and-nary-a-drop-publicly-accounted-for dept

The NSA's new home in Utah is increasingly looking like a bad idea. While local politicians were likely delighted to have a federal money funnel set up shop in state, that initial euphoria has faded in the wake of the Snowden leaks.

Multiple legislative attempts have been mounted by various states to basically nullify the NSA's programs, either directly or indirectly. In Utah, the leverage point has been the public utilities. There is no doubt that the NSA's new data center consumes massive amounts of electricity. But it also goes through water like… water. Not much is known about how much the data center uses (estimates place it at about 1.2 million gallons a day), but one fact that has emerged so far is that the NSA is paying far less ($2.05 vs. $3.35) per thousand gallons than other high-volume businesses.

The Tenth Amendment Center has been pushing for the adoption of legislation aimed at cutting off public support (meaning "public utilities") for the NSA's domestic surveillance programs. While this legislative battle has been moving forward, attempts to gain more insight into the NSA's utility usage have been stonewalled by both the City of Bluffdale and the NSA itself.

Fortunately, the state has stepped up and ordered Bluffdale to release the NSA's water usage records.

This month, the Utah State Records Committee ruled that the City of Bluffdale must release water records pertaining to the massive NSA data center located there.

Salt Lake City Tribune reporter Nate Carlisle pursued the information, and his success shows how a series of small, seemingly insignificant actions can lead to a major victory.

The committee voted unanimously to require the city to make details of the NSA’s water use public last week.

The City of Bluffdale was a major combatant, insisting on collecting a $45/hour fee for compiling responsive documents. All told, the total stood at $767.45 when the reporter brought this to the attention of the State Records Committee.

The agency itself was no better. It refused to release info on its water usage by relying on the same excuse it uses for everything: terrorism.

By computing the water usage rate, one could ultimately determine the computing power and capabilities of the Utah Data Center. Armed with this information, one could then deduce how much intelligence NSA is collecting and maintaining, and this clearly relates to one of NSA's core missions, which is the collection of foreign intelligence.

Robert McMillan at Wired calls bullshit on this argument.

The reality is that Sherman's argument requires a pretty big leap of logic. Data center engineers can get rough ideas of compute power based on how much power a building consumes, but figuring this out on water is another matter. Some data centers, like Facebook's facility in Prineville, Oregon, use custom-made swamp coolers to mist the air and cool down servers. Others push hot air into evaporative cooling towers, which are kept cold by running water.

"There are many different ways to cool a data center," says Jonathan Koomey, a research fellow at the Steyer-Taylor Center for Energy Policy and Finance at Stanford University."Without knowing more about the actual facility then I don't think anyone's going to give you solid [computing capability] numbers."

Without access to all of this water, the NSA's shiny new home can't function. That it consumes over a million gallons a day (at least) should be of concern to Utah's residents, especially considering the ongoing water management issues the state is facing. Early in 2013, water experts met to discuss the problems inherent in the nation's second-driest state -- one which also sports the nation's highest birth rate.

Among the many suggestions were removing the tax subsidies from water that kept prices artificially low and starting to meter secondary usage. Nowhere in the discussion was a suggestion to funnel 400+ million gallons a year into a surveillance agency's data center.

This cut rate on top of an already artificially low water price would explain the attractiveness of the locale to the NSA, but in the end, it's the rest of Utah's citizens who will be screwed. When its water usage details are finally revealed, one can safely expect there to be more public support for the Tenth Amendment Center's attempt to literally drain the agency of resources.

Filed Under: bluffdale, foia, nsa, surveillance, utah, water

Broadcasters Get Aereo Shut Down In Salt Lake City and Denver

from the you-can't-win-'em-all dept

A string of Aereo legal wins has come to an end, with US District Judge Dale Kimball of Utah imposing a preliminary injunction (pdf) on Aereo's existing operations in both Utah and Colorado. The injunction covers all of the 10th circuit, so it will technically prevent any future Aereo operations in all of Wyoming, New Mexico, and Oklahoma as well. Aereo currently operates in ten markets, but in recent weeks has bumped into some unspecified capacity issues in both New York and Atlanta (I've asked, they won't get specific about what kind of capacity issues they've faced).

Kimball wasn't particularly receptive to Aereo's claims that their tiny OTA antennas -- one rented to each Aereo subscriber -- allow the live streaming TV company to bypass the "Transmit Clause" of the 1976 Copyright Act:

"Based on the plain language of the 1976 Copyright Act and the clear intent of Congress, this court concludes that Aereo is engaging in copyright infringement of Plaintiffs’ programs. Despite its attempt to design a device or process outside the scope of the 1976 Copyright Act, Aereo’s device or process transmits Plaintiffs’ copyrighted programs to the public."

Similar legal assaults by the broadcast industry had proven unsuccessful in Boston and New York. Needless to say, broadcasters like Fox were pleased by the result, calling the ruling "a significant win for both broadcasters and content owners" that will "prohibit Aereo from stealing our broadcast signal." Riding on Aereo's New York win by using the Cablevision precedent, the battle now heads to the Supreme Court for the real showdown on April 22. Should Aereo win that, broadcasters could face a number of similar services offered by cable operators eager to bypass soaring retransmission fees.

Filed Under: broadcast, colorado, new mexico, oklahoma, retransmission, television, utah, wyoming
Companies: aereo