Proposed Bill Would Exempt Customs And Border Protection From FOIA Compliance [Updated]

from the who-needs-laws-when-you-operate-in-the-constitution-free-zone? dept

[Update: Thanks to reporting by the Tuscon Sentinel, Rep. Martha McSally has stripped this exemption from the bill and added language clarifying the law should not be construed as exempting CBP from its FOIA duties.]

To build a wall, you've got to break a few laws. That's the message being sent by a new bill, which helps pave the way for the eventual construction of a border wall by exempting the CBP and US Border Patrol from a large number of federal laws.

H.R. 3548 [PDF] would give the CBP a free pass to ignore all sorts of federal restrictions when engaging in its enforcement activities. All the things citizens can't legally do on federal land, the CBP and Border Patrol would be allowed to. This would keep the federal government from getting in its own way in the event wall construction actually takes place, as well as keep CBP agents from worrying about polluting, killing endangered species, or violating sacred grave sites while pursuing undocumented aliens.

The authority is so broad that CBP and its officers are given exemptions from the requirements of 36 different federal laws, including but not limited to, the National Environment Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Fish and Wildlife Act, the Eagle Protection Act, the Native American Graves and Repatriation Act, AND "Subchapter 5, and chapter 7 of title 5, United States Code (commonly known as the 'Administrative Procedure Act')."

The last one listed is why the American Society of News Editors is commenting on the bill. The Administrative Procedure Act covers federal FOIA law. If this goes through unaltered, it could easily be read to exempt the CBP and Border Patrol from responding to open records requests pertaining to their activities... pretty much everything these entities do. The bill covers everything from tactical infrastructure efforts to detainments to patrol efforts.

ASNE isn't quite sure what to make of this exemption being included, but knows there's no way the law should be passed with this part intact.

It's unclear whether this reading is accurate, or intended, but unless someone asks, we might not know until it is too late. Unfortunately, there has been little to no stated opposition to this bill, so it could very well pass the House Committee on Wednesday, and later the entire House, unchecked.

The risk of leaving this stone unturned is clear: The public and press would be in the dark with regard to CBP activities near the border. We wouldn't have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall.

It could have been a mistake with legislators wishing to exempt CBP from something else, but if it can be read as excusing ICE from its FOIA duties, you can be sure that's exactly how the agency will read it. Alerting representatives is the only way this will receive any attention, considering it's just a few words in the middle of a 102-page bill seeking expanded powers for the agency.

Filed Under: cbp, customs and border patrol, dhs, foia, transparency

Police Chief Takes To Facebook To Complain About A Journalist Committing Journalism

from the a-new-era-of-beef-is-upon-us dept

Cops and the press can be best friends. In some cases, they are. Anytime an officer shoots or beats someone, at least one obliging outlet steps up to publish the department's statement as well as any criminal history they've been able to dig up on the shooting/beating victim. And if the police aren't willing to turn over criminal records, some outlets will do the heavy lifting for them.

But they can also be antagonists. Generally speaking, law enforcement is a closed shop. It usually takes diligent efforts by journalists to pry loose documents pertaining to misconduct or misbehavior. State laws tend to make this more difficult than it should be by granting law enforcement agencies tons of public records exemptions.

It's this strained relationship being highlighted in an incredibly ill-advised Facebook post by the Aurora (IL) Police Department, penned by police chief Kristen Ziman. As Washington Post reporter Wesley Lowery pointed out on Twitter, it's not every day you witness a police department berate a journalist for practicing journalism.

The department's Facebook post opens up with some speculation about the journalist's intentions:

For six months, a reporter at a local newspaper has been seeking essentially the complete case file of the tragic incident where a young man took his own life after exchanging gunshots with an Aurora Police officer in October, 2016. Both the reporter and the publication were especially interested in the officer’s dash cam video of the traffic stop that began the entire episode in an apparent attempt to disprove its justification. (The publication wrote an editorial on March 26, 2017, calling into question the officer’s actions and our explanation of events.) You can see the stop and events that led up to it on this post.

After pausing to note the state attorney general ruled in the department's favor in the dispute over the unreleased documents (and to praise the officer involved for his bravery and clearance of wrongdoing by the Illinois State Police investigation), Chief Ziman goes on to gripe at length about pesky journalists and public records requests. (Emphasis added.)

Aside from the video of the traffic stop, the reporter’s voluminous FOIA request included requests on all past contacts we had with Mr. Martell; past contacts we had with the driver of the car from which the original traffic stop initiated and that Mr. Martell had run from; and other detailed information on witnesses or other parties in the case. We denied the release of much of the information because doing so would have possibly identified witnesses or other bystanders--- something I find unacceptable as Chief of Police.

[...]

This is not the first request from this particular reporter that requires dozens and dozens of employee hours to fulfill. In fact, this is a regular practice for her--- many of which consist of hundreds of pages. When a FOIA request is filed, there is certain information we cannot release by law. Each FOIA filed with the police is reviewed by at least three people: the FOIA officer who assures the request is within legal parameters, a trained records clerk who redacts information that cannot be released, and an investigations supervisor who reviews the documents to assure nothing is released that shouldn’t be.

While I understand FOIA’s enhance openness and public transparency, many of the FOIA’s this reporter files don’t result in published articles. The hours the city has worked to fulfill her FOIA requests has cost taxpayers and resulted in police supervisors devoting their time on FOIA requests rather than concentrating on our crime fighting initiatives. The demand for trust between the community and the police is prolific. At some point, there has to be a trusting relationship between the media and the police.

There's a lot to unpack in this statement -- one Chief Ziman defended on Twitter by claiming she's still all about accountability... except in the case of this one reporter.

First off, while it may be a pain to fulfill requests, the law allows citizens to file them. The state is obligated to fulfill them. Listening to someone complain about a singular aspect of their job directly related to accountability doesn't exactly affirm a stated commitment to accountability.

Further, the post insinuates records requests by this reporter are resulting in less crime fighting. This post invites the public to view the reporter as an impediment to efficient law enforcement, rather than someone simply doing her job as a journalist using tools the state has given her.

More statements made by Chief Ziman on Twitter distance her further from her supposed embrace of accountability. She mentions she doesn't care for the "fishing expedition mentality," but that's exactly what journalism is. It's seeking documents and info until enough is compiled to put an article together. The fact that some requested documents are never used by journalists does not make those requests any less valid.

Finally, the Facebook post says "there has to be a trusting relationship between the media and police." No, there absolutely does not. This is completely wrong. Journalism is nothing more than stenography if it allows government agencies to steer narratives and coverage. Chief Ziman seems to think reporters should accept every statement made by police officials at face value, rather than seek underlying documents. That's not trust. That's obeisance. It's worthless in the context of transparency and accountability.

Chief Ziman would rather be allowed to release only the documents she wants to release on a schedule that's convenient to her and her department. The problem is journalists, like the one she publicly berates here, keep getting in the way of her idealized trusting relationship with the press. The government needs more outside skepticism, not less, to keep it in line. Law enforcement officials complaining about lawful activity is always a bad look, especially when they're not being given the trust they're so obviously willing to undermine.

Filed Under: anthony martell, aurora, dash cam, foia, illinois, journalism, kristen ziman, law enforcement, police, public records, transparency

Members Of Trump's Admin Team Using Private Email Accounts Because Of Course They Are

from the winning-streak-continues dept

Making American Political Hypocrisy Great Again:

President Trump's son-in-law and senior adviser Jared Kushner has used a private email account to conduct and discuss official White House business dozens of times, his lawyer confirmed Sunday.

Kushner used the private account through his first nine months in government service, even as the president continued to criticize his opponent in the 2016 presidential election, Democrat Hillary Clinton, for her use of a private email account for government business.

And, because once is never enough:

Ivanka Trump used a personal email account to communicate with a member of President Trump’s administration, a watchdog group said Monday.

American Oversight obtained documents through the Freedom of Information Act (FOIA) that show Ivanka Trump, a senior White House adviser to her father, used a personal email account to contact Small Business Administration Administrator Linda McMahon in February.

It's not as though anyone isn't aware of their responsibility to use official government email accounts for official government business. There's a duty to preserve records that goes hand-in-hand with FOIA law. Those who choose to do business this way are either lazy or devious. And it doesn't necessarily have to be one or the other.

At this point, the criticisms that paved the way to Trump's win can almost all be levied against the new administration. All we're really waiting for is someone to show up with a birth certificate showing Donald Trump isn't a natural-born US citizen.

Clinton's excuse for her continuous use of a private email account was "convenience." Guess what Kushner's is:

Once in the White House, Kushner used his private account for convenience from time to time — especially when he was traveling or using a personal laptop, according to two people familiar with his practice.

As innocuous as the use appears to be -- at least according to obtained documents and unidentified sources' statements -- the point is people in government positions know better than to continue using private email accounts for government business. There's no excuse at this point -- not with more than 25 years of mainstream email use and a half-century of federal public records law.

That officials continue to do this highlights a flaw in public records laws: the fact that they're written by people with the most interest in keeping some communications secret. Private email accounts are used because there's a good likelihood courts won't force every email to be turned over in the event of a records request lawsuit. Even better, since the chance of an actual lawsuit being filed is low enough, many public figures feel these dice are safe to roll.

This isn't solely a Trump Administration problem, but it's definitely a case of double standards. We expect those from our politicians, sadly. But we don't expect them on the level we've seen over the past several months, where political opponents are savaged by administration officials (including the president) for behavior Trump's own team engages in.

Filed Under: convenience, email, foia, hillary clinton, ivanka trump, jared kushner, private email, transparency

More Government Agencies Filing Lawsuits Against Public Records Requesters

from the Exhibit-A:-photo-of-extended-middle-finger dept

Gritted-teeth lip service to freedom of information laws continues in the public sector. If stonewalling and/or outrageous fee demands aren't enough to dissuade requesters from seeking documents, more and more government agencies are deploying Plan C.

Government bodies are increasingly turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.

The lawsuits generally ask judges to rule that the records being sought do not have to be divulged. They name the requesters as defendants but do not seek damage awards.

All well and good no damages are being sought, but what happens to the requesters-turned-defendants? The records they originally sought might have been had for little to nothing, in terms of out-of-pocket expenses. But now, thanks to the actions of government agencies, they're obliged to rack up expenses fighting the lawsuit, or otherwise cede the battle to the government and never get their hands on the requested records.

Those deploying this tactic say there's nothing wrong with proactive lawsuits against records requesters. According to these entities, the courts can make the best determination whether requested records are eligible for release.

But they're wrong.

Records requesters have the option to sue when records are denied and the court can make the determination then. This leaves the power in the hands of the people, who can choose whether or not they want to make the time/money investment of filing a public records lawsuit. If they succeed, the government can be forced to pay their legal fees.

Skipping this step puts the burden solely on the requesters. They have to front their own legal costs and, because the government is the moving party, they have zero chance of recouping legal fees even if the court finds in favor of the records requesters.

If nothing else, the tactic greatly increases the delay between the request and the delivery of records. In newsworthy cases, the preemptive lawsuit option can least put some time and distance between government misconduct and records revealing the misdeeds. It's nothing more than a low-risk cheap shot that that makes a mockery of public records laws.

Fortunately, the AP reports, changes are being made to public records laws to prevent the government from engaging in these transparency-thwarting efforts.

In Michigan, the state House voted 108-0 earlier this year in favor of a bill that would make it illegal for agencies to sue public records requesters. The proposal came in response to a county’s lawsuit against a local newspaper that had sought the personnel files of two employees running for sheriff. A judge dismissed the lawsuit, saying the county had to approve or deny the request.

The documents, ultimately released days before the election, showed that one of the candidates had been disciplined for carrying on an affair while on-duty in 2011. That candidate lost.

But there are only a couple of exceptions to the rule. And the bill in Michigan has yet to be signed into law. For the most part, the government only risks some reputational damage when suing records requesters. Most don't have much to spare, but are more than willing to part with it if it means keeping the public in the dark.

Filed Under: chilling effects, foia, lawsuits, public records, transparency

EU Buried Its Own $400,000 Study Showing Unauthorized Downloads Have Almost No Effect On Sales

from the but-the-truth-is-finally-out-now dept

One of the problems in the debate about the impact of unauthorized downloads on the copyright industry is the paucity of large-scale, rigorous data. That makes it easy for the industry to demand government policies that are not supported by any evidence they are needed or will work. In 2014, the European Commission tried to address that situation by putting out a tender for the following research:

to devise a viable methodology and to subsequently implement it in view of measuring the extent to which unauthorised online consumption of copyrighted materials (music, audiovisual, books and video games) displaces sales of online and offline legal content, gathering comparable systematic data on perceptions, and actual and potential behaviour of consumers in the EU.

The contract was awarded to Ecorys, a "research and consultancy company" based in the Netherlands that has written many similar reports in the past. The value of the contract was a princely €369,871 -- over $400,000. Given that hefty figure, and the fact that this was public money, you might expect the European Commission to have published the results as soon as it received them, which was in May 2015. And yet strangely, it kept them to itself. In order to find out what happened to it, a Freedom of Information (FOI) request was submitted by the Pirate Party MEP, Julia Reda. It's worth reading the to and fro of emails between Reda and the European Commission to get an idea of how unhelpful the latter were on this request. The European Commission has now released the report, with the risible claim that this move has nothing to do with Reda's FOI request, and that it was about to publish it anyway.

The 304-page document (pdf), made available on the netzpolitik.org site, contains all the details of the questions that were put to a total of 30,000 people from Germany, France, Poland, Spain, Sweden, and the UK, their answers, and exhaustive analysis. The summary reveals the key results:

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content, with higher piracy rates in Poland and Spain than in the other four countries of this study. In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements. That does not necessarily mean that piracy has no effect but only that the statistical analysis does not prove with sufficient reliability that there is an effect. An exception is the displacement of recent top films. The results show a displacement rate of 40 per cent which means that for every ten recent top films watched illegally, four fewer films are consumed legally.

That is, there is zero evidence that unauthorized downloads harmed sales of music, books and games. Indeed, for games, there was evidence that such downloads boosted sales:

the estimated effect of illegal online transactions on sales is positive -- implying that illegal consumption leads to increased legal consumption. This positive effect of illegal downloads and streams on the sales of games may be explained by the industry being successful in converting illegal users to paying users. Tactics used by the industry include, for example, offering gameplay with extra bonuses or extra levels if consumers pay.

The research did find evidence that there was some displacement of sales in the film sector. Another result of the Ecorys work provided an explanation of why that might be:

Overall, the analysis indicates that for films and TV-series current prices are higher than 80 per cent of the illegal downloaders and streamers are willing to pay. For books, music and games prices are at a level broadly corresponding to the willingness to pay of illegal downloaders and streamers. This suggests that a decrease in the price level would not change piracy rates for books, music and games but that prices can have an effect on displacement rates for films and TV-series.

In other words, people turn to unauthorized downloads for films and TV because they feel the street prices are too high. For books, music and games, by contrast, the prices were felt to be fair, and therefore people were happy to pay them. This is exactly what Techdirt has been saying for years -- that the best way to stop unauthorized downloads is to adopt reasonable pricing. A new post on the EDRi site points out something rather noteworthy about the research results concerning video and TV series:

Interestingly, these results concerning the film industry found their way to a publication of an academic paper by Benedikt Hertz and Kamil Kiljański, both members of the chief economist team of the European Commission. Yet the other unpublished results, showing no negative impact of piracy in the music, book and games industry, were not mentioned in the paper. Beyond that, the original study itself is not referred to either.

This seems to substantiate suspicion that the European Commission was hiding the study on purpose and cherry-picked the results they wanted to publish, by choosing only the results which supported their political agenda towards stricter copyright rules.

The European Commission was quite happy to publish partial results that fitted with its agenda, but tried to bury most of its research that showed industry calls for legislation to "tackle" unauthorized downloads were superfluous because there was no evidence of harm. This is typical of the biased and one-sided approach taken by the European Commission in its copyright policy, shown most clearly in its dogged support for the Anti-Counterfeiting Trade Agreement -- and of the tilted playing field that those striving for fair copyright laws must still contend with on a regular basis. Sadly, it's too much to hope that the European Commission's own evidence, gathered at considerable cost to EU taxpayers, will now lead it to take a more rational approach to copyright enforcement, and cause it to drop the harmful and demonstrably unnecessary upload filter it is currently pushing for.

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

Filed Under: copyright, eu, eu commission, piracy, sales, studies, suppression, transparency

FCC Sued For Ignoring FOIA Request Investigating Fraudulent Net Neutrality Comments

from the ignore-a-problem-and-it-goes-away,-right? dept

For months now we've noted how somebody is intentionally filling the FCC's net neutrality comment proceeding with bot-generated bogus comments supporting the agency's plan to kill net neutrality protections. Despite these fake comments being easily identifiable, the FCC has made it abundantly clear it intends to do absolutely nothing about it. Similarly, the FCC has told me it refuses to do anything about the fact that someone is using my name to file comments like this one falsely claiming I support killing net neutrality rules (you may have noticed I don't).

While nobody has identified who is polluting the FCC comment system with fake support, it should be fairly obvious who this effort benefits. By undermining the legitimacy of the public FCC comment proceeding (the one opportunity for transparent, public dialogue on this subject), it's easier for ISPs and the FCC to downplay the massive public opposition to killing popular net neutrality rules. After all, most analysis has shown that once you remove form, bot and other automated comments from the proceeding, the vast, vast majority of consumers oppose what the FCC and Trump administration are up to.

Attempts to dig deeper into this mystery haven't gone well. Freelance writer Jason Prechtel filed a Freedom of Information Act (FOIA) request on June 4 asking the FCC for data on the bogus comments, the API keys used, and how the FCC has worked to address the problem. But while the FCC acknowledged the FOIA request, it wound up giving Prechtel the runaround throughout the summer -- stating on June 14 that it would be extending the deadline for responding to his request from July 3 to July 18 -- before ultimately deciding to ignore his request altogether.

As a result, Prechtel has filed a lawsuit against the FCC (pdf), stating the agency is breaking the law by sitting on its hands. From a Medium post written by Prechtel explaining the suit:

"As the agency is legally obliged to respond to my request, and as the underlying questions behind my request still haven’t been answered, I have filed a lawsuit against the FCC for their refusal to conduct a reasonably timely search for the records, and have demanded the release of these records. Even now, over three months after my FOIA request, and even after I’ve filed a lawsuit, this request is still listed as “under agency review”.

If you're playing along at home, this is just one of several lawsuits that have been filed against the agency for its Keystone Cops-esque handling of the network neutrality proceeding to date. The FCC has been sued for obfuscating details on its meetings with major ISPs in regards to net neutrality, and also faces a lawsuit over the agency's apparently completely fabricated DDoS attack it claimed occurred conveniently at the exact same time John Oliver told his viewers to file comments with the agency. Perhaps the more observant will notice a trend at Ajit Pai's FCC?

Again, nobody knows who's behind this effort to pollute the public discourse, and the FCC is making it pretty clear it doesn't want to make it any easier to find out. Having covered the sector for twenty years, this sort of thing is well within the behavioral norms of the wide variety of "non profit," "non-partisan" groups hired by ISPs to pee in the discourse pool. Whoever's to blame, it's pretty clear the FCC is playing a role in not only making it harder to understand what happened, but in undermining the value of the public comment period.

As the FCC moves to formally vote to kill the rules in a month or two, expect Ajit Pai and friends to increasingly use the dysfunction they helped cement to downplay legitimate public opposition to its plan. After that, you can expect all of this dysfunction to play a starring role in the multiple, inevitable lawsuits that will be filed against the agency in the wake of the vote. Again, how was this blistering shitshow a better idea than simply listening to the will of the public and leaving the existing, popular net neutrality rules alone?

Filed Under: fcc, foia, net neutrality, transparency

EFF Resigns From W3C After DRM In HTML Is Approved In Secret Vote

from the disappointing dept

This is not a huge surprise, but it's still disappointing to find out that the W3C has officially approved putting DRM into HTML 5 in the form of Encrypted Media Extensions (EME). Some will insist that EME is not technically DRM, but it is the standardizing of how DRM will work in HTML going forward. As we've covered for years, there was significant concern over this plan, but when it was made clear that the MPAA (a relatively new W3C member) required DRM in HTML, and Netflix backed it up strongly, the W3C made it fairly clear that there was no real debate to be had on the issue. Recognizing that DRM was unavoidable, EFF proposed a fairly straightforward covenant, that those participating agree not to use the anti-circumvention provisions of the DMCA (DMCA 1201) to go after security researchers, who cracked DRM in EME. The W3C already has similar covenants regarding patents, so this didn't seem like a heavy lift. Unfortunately, this proposal was more or less dismissed by the pro-DRM crowd as being an attempt to relitigate the question of DRM itself (which was not true).

Earlier this year, Tim Berners-Lee, who had the final say on things, officially put his stamp of approval on EME without a covenant, leading the EFF to appeal the decision. That appeal has now failed. Unfortunately, the votes on this were kept entirely secret:

So much for transparency.

In Bryan Lunduke's article about this at Network World, he notes that despite the W3C saying that it had asked members if they wanted their votes to be public, with all declining, Cory Doctorow (representing EFF) says that actually EFF was slapped on the wrist for asking W3C members if they would record their votes publicly:

“The W3C did not, to my knowledge as [Advisory Committee] rep, ask members whether they would be OK with having their votes disclosed in this latest poll, and if they had, EFF would certainly have been happy to have its vote in the public record. We feel that this is a minimal step towards transparency in the standards-setting that affects billions of users and will redound for decades to come.”

“By default, all W3C Advisory Committee votes are ‘member-confidential.’ Previously, EFF has secured permission from members to disclose their votes. We have also been censured by the W3C leadership for disclosing even vague sense of a vote (for example, approximate proportions).”

It was eventually revealed that out of 185 members participating in the vote, 108 voted for DRM, 57 voted against, and 20 abstained.

And while the W3C insisted it couldn't reveal who voted for or against the proposal... it had no problem posting "testimonials" from the MPAA, the RIAA, NBCUniversal, Netflix, Microsoft and a few others talking about just how awesome DRM in HTML will be. Incredibly, Netflix even forgot the bullshit talking point that "EME is not DRM" and directly emphasized how "integration of DRM into web browsers delivers improved performance, battery life, reliability, security and privacy." Right, but during this debate we kept getting yelled at by people who said EME is not DRM. So nice of you to admit that was all a lie.

In response to all of this, Cory Doctorow has authored a scathing letter, having the EFF resign from the W3C. It's worth reading.

The W3C is a body that ostensibly operates on consensus. Nevertheless, as the coalition in support of a DRM compromise grew and grew — and the large corporate members continued to reject any meaningful compromise — the W3C leadership persisted in treating EME as topic that could be decided by one side of the debate. In essence, a core of EME proponents was able to impose its will on the Consortium, over the wishes of a sizeable group of objectors — and every person who uses the web. The Director decided to personally override every single objection raised by the members, articulating several benefits that EME offered over the DRM that HTML5 had made impossible.

But those very benefits (such as improvements to accessibility and privacy) depend on the public being able to exercise rights they lose under DRM law — which meant that without the compromise the Director was overriding, none of those benefits could be realized, either. That rejection prompted the first appeal against the Director in W3C history.

In our campaigning on this issue, we have spoken to many, many members' representatives who privately confided their belief that the EME was a terrible idea (generally they used stronger language) and their sincere desire that their employer wasn't on the wrong side of this issue. This is unsurprising. You have to search long and hard to find an independent technologist who believes that DRM is possible, let alone a good idea. Yet, somewhere along the way, the business values of those outside the web got important enough, and the values of technologists who built it got disposable enough, that even the wise elders who make our standards voted for something they know to be a fool's errand.

We believe they will regret that choice. Today, the W3C bequeaths an legally unauditable attack-surface to browsers used by billions of people. They give media companies the power to sue or intimidate away those who might re-purpose video for people with disabilities. They side against the archivists who are scrambling to preserve the public record of our era. The W3C process has been abused by companies that made their fortunes by upsetting the established order, and now, thanks to EME, they’ll be able to ensure no one ever subjects them to the same innovative pressures.

This is a disappointing day for the web, and a black mark on Tim Berners-Lee's reputation and legacy of stewardship over it.

Filed Under: copyright, cory doctorow, drm, eme, security, tim berners-lee, transparency
Companies: drm, eff, mpaa, nbc universal, netflix, riaa

Vermont State Police Rewrite Press Rules To Withhold As Much Information As Possible

from the close-to-the-vest dept

Various authority figures have attempted to define journalism, usually excluding their critics. A recent post here covered a police chief who decided he could determine a journalist's credibility based almost solely on their web presence. Trimming down the definition of "journalist" allows government officials to limit their accountability by treating only certain outlets as credible.

So, we already have government authorities attempting to define what is or isn't a "real" news outlet. Jonathan Peters of the Columbia Journalism Review reports a government authority is attempting to define what is or isn't news. In this case, it's the Vermont State Police.

It recently revised a “Press Release and Public Information Policy” that provides guidance for police officers regarding how, what, and when information should be given to the press and public. The revisions came in July, and local journalists aren’t happy.

“The policy leaves it up to individual state troopers to determine what is news and what isn’t,” Michael Donoghue, the executive director of the Vermont Press Association, tells CJR. “Crimes, including sexual assaults, armed robberies, arsons, burglaries, embezzlements, drugs, and more are not required to be disclosed. Vermonters want to know if they are safe in their homes and out on the streets.”

The new policy [PDF] prefers ambiguity to clarity and transparency. Worse, it allows officers and police officials to make subjective calls on newsworthiness, which is obviously going to make policing the police that much more difficult. This part is particularly problematic, as it restricts dissemination of information to that which is subjectively defined as "significant public interest."

Press releases will be issued as soon as practicable for significant incidents of public interest, including, but not limited to arrests, citations, road closures, hazardous scenes and motor vehicle crashes.

Beyond that, VSP will withhold all info that "could identify" victims of crimes. This would include those who are on the receiving end of criminal activity by law enforcement officers. As Peters points out, this may nod to privacy, but does very little for public safety. (Not to mention accountability…) This would allow officers to withhold information that might be actually useful to the public, like the areas where repeated criminal activity is being observed.

Even as it places more limits on dissemination, the State Police is playing up its supposed "consultation" with local journalists when revising its policy. That's as much of a sham as the new policy.

While the police say they consulted the press (the state public-safety head wrote in a July letter-to-the-editor that the police “met with and had several discussions with and solicited input from” local journalists), the press association didn’t receive a final draft of the revisions before they were implemented.

Donoghue says the formal consultation amounted to one meeting with two officials. Another press association leader then asked to meet with the public-safety head, who hadn’t attended the meeting except to offer a brief welcome. That request wasn’t granted, and there was no follow-up meeting involving the press.

When asked directly about the changes (and their tendency to make dissemination of information even less likely), the Police spokesman offered up some talking points, but little in the way of clarity. He told Waterman the policy tries to strike a balance between the public's right to know and individual privacy and the integrity of criminal investigations. The spokesman also pointed to the department's 14 press releases a day as evidence that it's all over this transparency thing. But, as is pointed out by the policy's critics, 14 releases a day isn't much when there are more than 300 officers on staff. The VSP issues press releases for things like driving with a suspended license and other misdemeanors. If this minutia is supposed to be evidence of transparency, what are the other 300 officers doing with their time?

The faux consultation and the broad language attempt to disguise the self-interested policy rewriting. Law enforcement agencies are rarely paragons of transparency. The new rules the State Police wrote itself with almost zero consultation will only serve to keep more information out of the public's hands.

Filed Under: foia, police, transparency, vermont

Comcast Continues To Insist Its Sneaky, Misleading Fees Are Just The Company's Way Of Being 'Transparent'

from the false-advertising-is-good-for-you dept

We've noted for years now how broadband and cable providers have created a high art out of bogus, misleading fees. Such fees, ranging in name from Comcast's "broadcast TV fee" to CenturyLink's "internet cost recovery fee" -- allow these companies to falsely advertise one price, then sock consumers with a much higher rate once the bill comes due. This allows these companies to not only jack up prices while claiming the don't, but it has the added bonus of making direct price comparisons with competitors almost impossible.

Comcast initially charged $1.50 when its broadcast TV fee first appeared back in 2013, but now charges upwards of $6.50 more per month in many markets -- a 333% increase in just three years. With the occasional exception, regulators and lawmakers tend to turn a blind eye to this practice as little more than pricing creativity. Comcast was however sued for the practice last year, plaintiffs claiming that this practice is not only false advertising, but is primarily designed to let the company raise rates on customers it convinced to sign long-term contracts.

For its part, Comcast has spent the last few years insisting that sneaky, misleading fees are just the company's way of being "transparent" with its users:

"Beginning in 2014, we will itemize a portion of broadcast retransmission costs as a separate line item to be more transparent with our customers about the factors that drive price changes," he said. “In 2014, we will not increase the price of Limited Basic or Digital Preferred video service, and adjustments to other video service prices will be lower than they would have been without the Broadcast TV Fee."

Yes, nothing says "transparency" quite like an advertised price that suddenly jumps due to a completely manufactured, sneaky fee. In Oregon, customers were just informed that Comcast will be hitting users there in October with a $1.50 increase in the broadcast fee, a $2 increase in the company's regional sports fee (also a focus of the recent lawsuit), and a $1 increase in the cost of modem rental. And again, Comcast is attempting to tell locals this is all part of the company's quest to be more transparent with its users:

"We continue to make investments in our network and technology to give customers more for their money - like faster Internet service and more WiFi hotspots, more video across viewing screens, better technology like X1 and a better customer experience," Comcast Oregon spokeswoman Amy Keiter said in a written statement. The sports and broadcast fees, she wrote, "allow us to be more transparent with our customers about the factors driving price changes, and represent only a portion of our costs of carrying broadcast and regional sports networks."

Apparently, Comcast would have you believe that it's necessary to tack these fees on to your bills to help emphasize the fact that programmers are demanding higher and higher rates for the same service. But even if broadcaster demands are often ludicrous -- that's simply the cost of doing business -- and should be included in the overall cost of service. Comcast also apparently believes its subscribers are stupid enough to not realize Comcast NBC Universal is itself one of the biggest broadcasters in America, and owns most of the regional sports networks it's charging an additional fee for.

Eventually, a regulator or lawmaker somewhere will realize this is a predatory and misleading practice that harms consumers. Until then, Comcast customers not only get a heaping dose of false advertising, but also get to hear that this misleading pricing is for their own good. Enjoy!

Filed Under: sneaky fees, transparency, tv fee
Companies: comcast

California's Top Court Says Cops Have To Hand Over Automatic Plate Reader Records

from the no-more-hiding-behind-abused-exceptions dept

The EFF and ACLU have achieved a victory in an acronym-heavy public records case. The California Supreme Court has ruled the Los Angeles Police Department (LAPD) and Los Angeles Sheriff's Department (LASD) will have to turn over data acquired by their automatic license plate readers (ALPRs).

Both entities tried to keep these records from the EFF and ACLU by claiming every single one of the millions of plate records were "investigatory records," exempt from disclosure under California's public records law. This apparently included the millions of "non-hit" records never utilized in any LAPD/LASD investigation. With the plate readers collecting 1.5-2 million records per week, they were basically arguing every driver passing by an ALPR was under investigation.

That's not how the state's Supreme Court sees it [PDF]. The "investigatory records" exemption pertains to targeted, ongoing investigations. The public records law cannot be stretched to cover indiscriminate mass surveillance.

Accordingly, we hold that real parties’ process of ALPR scanning does not produce records of investigations, because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes. The scans are conducted with an expectation that the vast majority of the data collected will prove irrelevant for law enforcement purposes. We recognize that it may not always be an easy task to identify the line between traditional “investigation” and the sort of “bulk” collection at issue here. But wherever the line may ultimately fall, it is at least clear that real parties’ ALPR process falls on the bulk collection side of it.

The court also says the fact that the database of records is routinely searched during current investigations does not make everything in it immune from public records requests. If the law were interpreted this way, all it would take to exempt every one of the millions of plate records from disclosure would be the inclusion of a targeted plate in every batch of ALPR records requested.

The law enforcement agencies also claimed any release of the data would harm law enforcement interests, supposedly by giving criminals the info they needed to avoid plate readers. The Supreme Court finds this far less persuasive than the lower court did.

The trial court appears to have placed significant weight on the possibility that a criminal could use ALPR data to identify law enforcement patrol patterns. The court did so based on the declaration of LAPD Sergeant Daniel Gomez. In pertinent part, Sergeant Gomez claimed that an individual requesting ALPR data “could use the data to try and identify patterns of a particular vehicle.” (Italics added.) However, Sergeant Gomez also seemed to cast doubt on the likelihood that an individual could do so successfully, explaining that “[u]nlike law enforcement that uses additional departmental resources to validate captured [A]LPR information, a private person would be basing their assumptions solely on the data created by the [A]LPR system . . . .” Nevertheless, we will assume, as the trial court found, that a person could at least roughly infer patrol patterns from a week’s worth of plate scan data.

The problem with this aspect of the trial court’s analysis is that, even assuming patrol patterns can be inferred from ALPR data, there is little reason to believe that this possibility points meaningfully toward “a clear overbalance on the side of confidentiality” with respect to all the records sought. (Michaelis, supra, 38 Cal.4th at p. 1071.) For one thing, fixed ALPR scanners are just that—fixed— so concerns about patrol patterns are inapplicable to the data they collect. For another, the record does not appear to indicate that knowledge of where law enforcement officers were during a particular week is a reliable guide to where they will be at some precise moment in the future. The trial court did not find, for example, that real parties conduct law enforcement in the same way that they might operate a bus service—moving from point to point at particular times on particular days, never deviating to attend to other business or emergencies. We are not aware of substantial evidence that would have supported such a finding.

The court, however, does find one thing to be concerned with, and it's an issue the LAPD/LASD generally doesn't take into consideration until they're being asked to hand over bulk collection records: privacy.

Although we acknowledge that revealing raw ALPR data would be helpful in determining the extent to which ALPR technology threatens privacy, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned plate. Given that real parties each conduct more than one million scans per week, this threat to privacy is significant. We therefore conclude that the public interest in preventing such disclosure “clearly outweighs the public interest served by disclosure of” these records.

This means the ACLU and EFF will end up with the data they seek, but in anonymized form. It's unclear at this point how this will be anonymized, or if the data, in its abstracted form, will show anything interesting. And there's still more discussion to be had on remand before the ACLU/EFF can actually take possession of the one week of ALPR data they requested. But it's still a significant precedent -- one that narrows the scope of an often-abused public records exemption.

Filed Under: alpr, automatic license plate reader, california, california supreme court, la, lapd, lasd, license plate readers, public records, transparency
Companies: aclu, eff