Police Union's Proposed Contract Looks To Whitewash Officers' Disciplinary Records

from the revisionist-history dept

Touched on briefly during our rundown of police unions demanding better pay for better behavior and accountability was the San Antonio Police Officers Association's (SAPOA) demand that the city should be willing to raise wages if it really expected its officers to perform their duties without veering into abuse or misconduct.

Part of what's keeping a deal from being struck between the city and the union is the amount of money on the table. This gives the union the appearance of holding the city's safety hostage until its demands are met. That may not be an entirely fair characterization (there's some "hostage-taking" on the other side as well), but there's something far more worrying in the proposed contract that's keeping this from being resolved.

The San Antonio police union wants changes to disciplinary procedures that would effectively whitewash past misconduct by officers. Michael Barajas, writing for the San Antonio Current, takes a close look at the controversial clause, and how it's likely to allow bad officers to not only stay employed longer, but possibly rise through the ranks as well.

At issue is the deal SAPOA and Mayor Ivy Taylor’s office negotiated this past summer to put an end to years of litigation over an evergreen clause in the union’s previous contract, which the city in court had argued was unconstitutional. Only recently, however, has police reform come to dominate discussions around the deal. As the Express-News first reported, Saldaña explained in an email to Taylor’s office last month why he wouldn’t vote on a negotiated contract that contained disciplinary procedures he called unacceptable.

[...]

Saldaña’s opposition to the agreement is rooted in disciplinary procedures outlined in Article 28 of the contract, which is set to go before council for approval next week. Under those rules, department officials and arbitrators hearing a case of officer misconduct won’t always get to consider an officer’s full disciplinary history when deciding what punishment to give. As it currently stands, if Chief William McManus wants to discipline an officer, he can’t cite as justification any drug- or alcohol-related violations more than 10 years old; infractions involving “intentional violence” only follow a cop for five years; any other disciplinary action only shows up for two years. If an officer is suspended for three days or less, the department, per the contract, automatically lowers the suspension to a “written reprimand” after a couple of years. Local activists calling for police reform say the policy amounts to government-sanctioned falsification of records.

The passage of time may alter perceptions, but it shouldn't be allowed to alter facts. That's what the union's proposal would do: rewrite disciplinary records after the fact. There will be no such thing as a "permanent record" for the city's officers. With enough years on the force, every disciplined officer will morph into someone better-behaved than they actually are.

Of course, union president Mike Helle thinks this is a perfectly acceptable way to handle misconduct issues. He claims this clause levels the disciplinary playing field. He wonders why a 10-year officer with a few minor infractions should be treated more harshly than a rookie with no prior incidents when punished for identical acts of misconduct.

It should go without saying (but apparently Helle actually needs to hear it) that those with more seniority should be screwing up less and should receive harsher punishments than those without as much experience. It's not as though the current disciplinary process prevents supervisors from considering multiple factors and exercising personal discretion when handing down punishments. Helle just wants to ensure that the longer someone's on the force, the more likely they are to escape severe punishment.

In practice, the union's suggested change would play out like this:

As Express-News columnist Brian Chasnoff wrote last week, Saldaña has seized on the case of one former SAPD officer convicted of raping a teenager on duty to highlight the disciplinary policy’s troubling implications. More than two years before Jackie Neal pleaded no contest to “improper sexual activity with a person in custody,” he was reprimanded for having sex with an 18-year-old high school student he was tasked with supervising in the department’s youth police explorer program. For that, he received a three-day suspension—which, if you follow the department’s disciplinary policies, would have been changed to a written reprimand by the time he was accused of pulling someone identified only as Jane Doe in court records over on the south side, handcuffing her and raping her in the back of his police SUV.

The officer ended up being convicted and having to surrender his peace officer's license. But what about those whose misconduct investigations are handled completely internally? If the union's plan was in place, the officer's file would have shown nothing more than a written reprimand -- hardly indicative of past issues with sexual misconduct.

Helle calls the councilman's opposition to the whitewashing clause the "tantrum" of a "spoiled child." But he glosses over the fact that the union is still threatening to hold its breath until it gets its way. Helle claims he can't change the clause without undoing current negotiations and possibly ending up in court. That seems unlikely to be the only outcome of removing the stipulation. Occam's Razor (and columnist Michael Barajas) says the union boss just doesn't want to remove the clause as it gives the union much more leverage when representing officers during disciplinary hearings.

What it doesn't do, however, is any favors for the public, which will be asked to pay the salaries of bad officers and underwrite the retconning of their permanent records.

Filed Under: accountability, police, police unions, records, transparency

ICE Denies FOIA Request From Lawyer Because It Might Help Her Better Defend Her Client

from the government-now-just-making-up-FOIA-exemptions dept

The government doesn't care much for a level judicial playing field. That whole checks and balances thing? It's just getting in the way of speedy prosecutions. Federal and state prosecutors have engaged in routine Brady violations -- the withholding of exculpatory evidence from defendants.

Immigration and Customs Enforcement (ICE) is taking this to a whole new level. It's refusing to turn over FOIAed records to a defendant's lawyer expressly because they could be used to mount a defense against the government's charges. Of course, ICE doesn't say so in those exact words, but the words it does use leave that distinct impression.

The ACLU of Colorado notes that defense lawyers in immigration cases are even more hamstrung than most when going up against the government.

Jennifer Smith, an immigration attorney, filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients. Immigration attorneys have limited discovery options and can generally gain access to a client’s immigration file only by filing a FOIA request.

From the FOIA lawsuit [PDF]:

In order for Ms. Smith to determine what steps, if any, needed to be taken on behalf of Ms. Sanchez, on or around May 22, 2013, Ms. Smith submitted a FOIA request to USCIS.

Specifically, Ms. Smith’s FOIA request sought Ms. Sanchez’s “Complete Alien File (A-File)” and “any and all records of entry into the United States or departures from the United States after January 1, 2005” and “any and all records of I-94s pertaining to this person after January 1, 2005.” This information was necessary for Ms. Smith to properly analyze how best to advocate on behalf of Ms. Sanchez.

ICE doesn't want Smith's client to be advocated for with any sort of skill or competence or even with documents the agency has no right to withhold. It withheld the records in full. ICE stated no applicable FOIA exemption when doing so. Instead, it simply claimed it's standard procedure for it to prevent defendants in immigration proceedings from being defended properly. And it delivered this FOIA GFY after a delay of more than two years.

When USCIS produced documents to Ms. Smith, the 18 pages that had been referred to ICE were blank except for the words “Referred to Immigration and Customs Enforcement” printed at the top. USCIS provided no basis for withholding the 18 pages of documents under any of the FOIA exceptions enumerated above, or for any reason at all. Instead, USCIS apparently takes the position that it satisfied its FOIA obligations by “referring” the documents and FOIA request to ICE for further handling.

[...]

On September 3, 2015 (more than two years after the FOIA request was submitted to USCIS), ICE responded to Ms. Smith as follows:

ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.

ICE doesn't want the defendant to "evade" justice. That's why it's decided it won't allow the defendant's lawyer to view any documents related to her. This is ICE's "practice:" to withhold documents possibly vital to a suspect's defense under the theory -- but not under any actual FOIA exemption -- that the information sought might somehow be used to defend against enforcement efforts. To ICE, files helpful to the defense are little more than getaway cars for fugitive aliens.

By refusing to hand over these documents, ICE hopes to prevent its prosecutions from being slowed by the adversarial process. Smith's lawsuit points out that the agency's "practice" erects obstacles that become almost insurmountable when combined with language barriers and the plethora of federal agencies involved in securing our nation's borders.

ICE’s “practice” of denying access to the FOIA process imposes significant burdens on lawyers who represent non-citizens in connection with immigration issues. In many cases, lawyers cannot effectively represent their non-citizen clients—or even determine whether there is a way to help them—without access to information or records the client may be unable to provide.

Many non-citizens lack familiarity with the immigration system and U.S. law enforcement in general, and do not know or understand the difference between various agencies with which they might interact. The Department of Homeland Security, for example, has several branches that a non-citizen may encounter, but with different roles within the system. These agencies include, among others, Customs and Border Patrol, ICE, and USCIS. Often, noncitizens (and citizen non-lawyers, for that matter) may simply know they are talking to an officer wearing a badge, without understanding what jurisdiction and/or authority that person represents. Thus, anon-citizen’s understanding of a contact with government agents is often insufficient to inform an immigration attorney as to what occurred and the outcome of any agency investigation.

Furthermore, the client may not remember events that occurred long ago, or may not have received mailings or notices from USCIS and/or ICE. In other cases, the non-citizen might be unaware of proceedings that occurred where the non-citizen was not present, or if present, where the non-citizen failed to understand what happened, or the significance of what happened. Or there may be procedural irregularities that a lawyer could discern from the government’s documents that her client, as a layperson, might not recognize. Or, in some cases it is possible that a deportation order issued in absentia that the non-citizen knows nothing about. Or a non-citizen may not know whether a claim of asylum was properly acted on, or was even presented to the proper agency.

As a result, immigrants seeking legal advice may be unable to explain to their attorney which agency they met with, and what type of interaction transpired, and what the legal issues may be. In these circumstances the only way the non-citizen’s lawyer may obtain this kind of information is through a FOIA request. Without access to the FOIA process, a lawyer may have literally no place to start in assisting her client.

"No place to start" is exactly where ICE likes opposing lawyers. Smith and the ACLU are hoping to change this. They're seeking not only a judgment that will force ICE to turn over the requested files, but also prevent it from using its wholly-madeup FOIA "practice" to deny records in the future.

Filed Under: foia, ice, transparency

DMCA Takedown Company Thinks It's Making A Point With 'Transparency Report' -- Really Just Looks Like A Jackass

from the what-point-are-they-making-really dept

Over the weekend, TorrentFreak picked up on yet another weird case of some copyright extremists trying to "make a point" but really just coming across as jackasses instead. It involves one of a group of wacky companies that promise to help issue DMCA takedown notices for copyright holders. In this case, it's an outfit called "Remove Your Media" (creative!) which put up a Tumblr site and a tweet pretending that it was "turning the tables" on the famous and useful Lumen Database (formerly known as the Chilling Effects database): If you went to that website, for at least a little while, Remove Your Media was posting full details of people who filed counternotices to some of its DMCA takedowns. These postings made no effort whatsoever to redact personal information such as emails and phone numbers (TorrentFreak has an image where it redacted the info itself).

The "point" that Remove Your Media is so weakly trying to make is that there is a tiny group of copyright extremists who think that Lumen / Chilling Effects is itself a source of piracy because in posting DMCA notices, it leaves the links that copyright holders are demanding be taken down (it's noteworthy that Lumen does redact personal information, though). Of course, these are apples to oranges differences. The reason that Lumen leaves up those links is because the whole point of Lumen is to act as a clearinghouse of data for people to understand how the DMCA is used. And, in fact, it's been an invaluable tool for us and other researchers in finding examples of DMCA abuse. That would be significantly more difficult if the links in the notices were redacted. In fact, it would take away nearly all of the value of the database.

In response to the TorrentFreak article, it appears that Remove Your Media has taken down the information that it posted, and replaced it with a link to the head cheerleader of the anti-Lumen/Chilling Effects crowd, Ellen Seidler. Seidler has spent many, many, many years tilting at windmills complaining about piracy, which she blames for the poor performance of her poorly reviewed film (which, amusingly, borrowed its title from a much more famous movie). Just a few months ago, at the Copyright Office hearings in San Francisco, Seidler again raised this issue of Lumen itself being some sort of "rogue site" for posting DMCA notices.

However, as was pointed out at the time, there is basically no evidence whatsoever that Lumen is used as a source to find pirated links to any extent that matters at all. Without any evidence of pirate hordes searching an academic database of DMCA takedown notices, this hardly seems like a worthwhile thing to bitch about. And, besides, what Remove Your Media did in "turning the tables" doesn't even make the point it wanted to make. There's a world of difference between posting the details included in a DMCA notice in such a database, and deliberately revealing someone's private info. One is a legitimate attempt to collect useful data on how DMCAs are being used.

The other is just acting like a complete jackass.

Filed Under: database, dmca, ellen seidler, takedowns, transparency
Companies: lumen database, remove your media

NYPD Dodges Another Legislative Attempt To Inject Accountability And Transparency Into Its Daily Work

from the the-teflon-army dept

Law enforcement officers are pretty used to being able to stop nearly anyone and demand to know who they are and what they're doing. Sure, there are plenty of laws that say they can't actually do that, but the public is generally underinformed about their rights, and this works in cops' favor. As a recent Appeals Court decision pointed out, citizens are "free to refuse to cooperate with police before a seizure."

Obviously, this perfectly legal act of noncompliance just won't do, and it certainly won't be cops pointing out to citizens the rights they have available to them. New York City legislators thought they could force this transparency on the NYPD.

The bills, known as the Right to Know Act, require officers to identify and explain themselves when they stop people, and to make sure people know when they can refuse to be searched. These are timely, sensible ideas, echoing recommendations made by President Obama’s task force on 21st-century policing. Though the Right to Know Act has been bottled up in the Council for two years, it has broad support among Council members and community organizations, and sponsors say it would pass easily if it ever came to a vote.

It may have "broad support," but it didn't have support where it counts. Police Commissioner Bill Bratton expressed his displeasure with the idea of his officers having to respect the rights of citizens.

Mr. Bratton has denounced the Right to Know Act as an “unprecedented” intrusion into his domain.

As Scott Greenfield points out, Bratton could have dialed back his righteous indignation and applied these changes on his own.

Of course, there is nothing to prevent New York Police Commissioner Bill Bratton from telling his cops to do this anyway. But he didn’t. He won’t. It’s not as if he serves at the pleasure of New York’s most progressive mayor ever. But the big issue for Bratton isn’t that the ideas incorporated in the law are so dangerous and counterproductive, but cops just don’t like being told what they have to do.

"Broad support." "Would pass easily." None of this matters. The person in charge of routing pending legislation made this decision for the rest of the legislators who support the bill in its unaltered form.

But there has been no vote. The Council speaker, Melissa Mark-Viverito, essentially derailed it this month. She told members that she had quietly struck a compromise with the Police Department to adopt some, but not all, of the act’s reforms administratively. Under the deal, officers who want to search people but have no legal basis to stop them must ask permission and wait to hear “yes” or “no.” They have to explain that a person can refuse to be searched, and give a business card to people who are searched or stopped at a checkpoint or to anyone who asks.

Waiting for the NYPD to "adopt" reforms is like waiting to adopt a child. Days become weeks become months become years. Three years after Judge Shira Scheindlin ordered the NYPD to alter its unconstitutional stop-and-frisk program, officers still weren't fully informed of the new guidelines. The NYPD's "quiet adoption" of the agreement is more in line with dumping it into a foster home run by negligent caretakers.

The government has long depended on the ignorance of the citizens to maintain control. The killing of this legislation -- and Bratton's agreement to make it watered-down internal policy rather than actual law -- is more of the same. The less the public knows about what the police can or cannot demand from them, the more often this ignorance will be exploited by people with power.

Filed Under: bill bratton, nyc, nypd, right to know, transparency

'Most Transparent' President Signs Into Law FOIA Reform Bill That Won't Affect His Administration

from the 'I'll-take-the-credit-but-not-the-responsibility.' dept

At long last -- after annual assaults on entrenched government secrecy interests -- FOIA reform has finally been signed into law.

Nearly a half-century to the day after President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (FOIA) into law, granting the public the right to access federal government records, President Barack Obama signed into law a historic FOIA reform bill that aims to make it easier for the public to file FOIA requests and obtain government documents.

While this is cause for some celebration, let's not overlook what's actually happened here. Obama has signed a bill he can saddle his successors with. Neither leading candidate seems particularly amenable to openness and transparency -- not Donald Trump with his big ideas on how to change laws to make things better for him rather than for the nation, and not Hillary Clinton, who set up her own email server to route around FOIA requests.

While touting his administration as the Openest Place on Earth, FOIA responsiveness actually took several steps backward during his tenure. His administration also spent several years fighting FOIA reform, something that was ironically uncovered by documents obtained via a FOIA request.

What this one-foot-out-the-door signing does is provide the Obama Administration with a last-minute burnishing of its transparency record -- a brief hat tip to openness as he exits office with a largely-unearned reputation for government accountability.

Moving past the negatives, the new law institutes some interesting new measures, including the somewhat controversial "release to one, release to all" policy. This will provide for the public release -- via agency websites -- of any documents obtained by any FOIA requester. This is good news for the public, which won't have to rely on news agencies for controlled release of FOIAed documents. For news agencies, and the journalists putting in the effort to ask the right questions and push agencies into compliance with requests, this undercuts any level of "exclusivity" they may have used to attract more readers.

"In addition to the feedback OIP [Office of Information Policy] received directly, several journalists wrote about the pilot and voiced their potential concerns with the adoption of this policy," the report said. "The thrust of many of the journalists' concerns, although not always exactly the same, was an unease that posting the records requested by journalists without giving them any lead time with sole access to the records, could take away their 'scoop' or 'exclusive' story. Additionally, there were concerns that routine posting of FOIA- processed records would act as a disincentive for journalists to use the FOIA given that they often invest considerable time and resources into building a story and those efforts would be impacted by loss of the ability to be the first with access to the requested records. At the same time, there were others in the community of journalists who applauded the idea of agencies posting all FOIA responses."

FOIA warrior Jason Leopold is one of many who have commented on this policy, requesting a "lead time" of one week between the requester obtaining the documents and full release to the public. This is not an unreasonable request -- especially when Leopold works for sites like Vice which posts documents it receives when it reports on them. Other news agencies -- far too many to count/name-and-shame -- do not publish the documents they obtain, forcing readers to accept their interpretation of the content.

In terms of the greater public good, the new policy is the better policy, even if it contains the potential to strip away exclusivity. The Freedom of Information Act's purpose is to make the government more transparent and accountable, not act as a lead generator for news agencies. Journalistic agencies are also a huge contributor to holding the government accountable, so it's difficult to flatly state that FOIA enthusiasts like Leopold should just suck it up and deal with the new reality. But it's also impossible to ignore the fact that windowed releases of FOIA docs is just another form of gatekeeping that separates the public from its public servants, even if the separation is only temporary.

Also of note is the law's revamping of Exemption B(5), which is a current government favorite:

The bill radically overhauls one of the FOIA's most abused and overused exemptions: B5, referred to by open government advocates as the "withhold it because you can" exemption. Currently, when government agencies cite B5, which applies to internal deliberations and attorney-client privileged communications, government agencies can withhold records under that exemption forever. Under the FOIA Improvement Act, however, government agencies can withhold records pertaining to internal deliberations for only 25 years. Attorney-client privilege records, which also fall under B5, will not be part of the reform.

And, because the process of filing a FOIA request is often less than straightforward, the law provides for the creation of a single FOIA request portal -- one that will hopefully streamline the process and allow for easier tracking of submitted requests.

Undoubtedly, agencies are already working on ways to comply with the new law without actually being more open and transparent. Certain agencies -- like the Office of the Director of National Intelligence and the DOJ -- will be sure to use the new "release to all" policy to "scoop" journalists who have spent years (and possibly thousands of dollars in fees/litigation expenses) forcing embarrassing documents out of their hands by dumping these into the public's lap prior to news agencies' publication dates. This is a net win for the general public, but it also creates a route for agencies to act out of sheer vindictiveness.

Filed Under: foia, obama, transparency

State Dept. Press Briefing Video Had Tough Fox News Questioning Excised, Streisand Effect Takes Over

from the hmmm dept

We have covered all kinds of Streisand Effect type stories here at Techdirt, but I don't recall a whole ton of them featuring the actual United States federal government. Typically, those stories mostly deal with individuals and companies trying to keep something hidden and instead mega-upping the interest in that very would-be-hidden thing. This is different, as this story consists of the State Department apparently attempting to disappear some tough questioning by a Fox News employee. And, man, is it stupid.

Some background is in order. Back in 2013, the State Department held regular media briefings on the Iran nuclear deal. During one of those briefings, Fox News' James Rosen pressed then State Dept. spokeswoman Victoria Nuland as to whether the negotiations had begun in 2013, as the administration indicated, or in 2011, as some reports were indicating. The reason why the question is important is because the Obama administration has always portrayed this deal as having coincided with the ouster of former Iranian President Mahmoud Ahmadinejad, considered a hardliner, and the introduction of new Iranian President Hassan Rouhani, considered a moderate. If it was found that Obama's State Department was actually negotiating with the hardliner, well, that's a story of public interest. Nuland denied to the press that any such previous negotiations had taken place.

Fast forward to later that same year, where we have another press briefing conducted by new spokeswoman Jen Psaki. Rosen, having continued to hear reports of previous negotiations, recited the previous exchange with Nuland for Psaki and then posed the same question to her. She didn't answer directly, prompting Rosen to then ask if it is the State Department's view that lying to the press to facilitate this kind of foreign affairs negotiation was kosher. Psaki's response was illuminating.

James, I think there are times where diplomacy needs privacy in order to progress. This is a good example of that. Obviously, we have made clear and laid out a number of details in recent weeks about discussions and about a bilateral channel that fed into the P5+1 negotiations, and we’ve answered questions on it, we’ve confirmed details. We’re happy to continue to do that, but clearly, this was an important component leading up to the agreement that was reached a week ago.

That's as close as it gets to a State Deparment official admitting that, yes, they're happy to lie to the press when it suits them. Now, fast forward again to the present, with a recent profile of Ben Rhodes, Deputy National Security Advisor for Strategic Communication, by the New York Times' David Samuels. In his piece, Samuels again accuses the Obama administration of lying to the press and the public about when these negotiations took place, stirring all this up once more. That prompted Rosen and Fox News to go back to the State Department video archives to review the briefing Psaki had conducted.

Rosen's questions and Psaki's answers had been deleted from the video recording. To blame? Well, first the State Department said it was a glitch in the video, one which apparently only removed the exact recording time of a tough question and answer exchange. But shortly after, Assistant Secretary for Public Affairs John Kirby admitted the footage was removed deliberately.

A portion of the State Department’s December 2nd, 2013 press briefing was missing from the video that we posted on our YouTube account and on our website. That missing portion covered a series of questions about U.S negotiations with Iran. When alerted to this, I immediately directed the video to be restored in its entirety with a full and complete copy that exists and had existed since the day of the briefing on the Defense Video and Imagery Distribution system website otherwise known as DIVIDS. I also verified that the full transcript of the briefing which we also post on our website was intact and had been so since the date of the briefing. I asked the office of the legal advisor to look at this including a look at any rules that we had in place. In so doing, they learned that a specific request was made to excise that portion of the briefing. We do not know who made the request to edit the video or why it was made. To my surprise, the Bureau of Public Affairs did not have in place any rules governing this type of action therefore we are taking immediate steps to craft appropriate protocols on this issue as we believe that deliberately removing a portion of the video was not and is not in keeping with the State Department’s commitment to transparency and public accountability. Specifically, we are going to make clear that all video and transcripts from daily press briefings will be immediately and permanently archived in their entirety. In the unlikely event, that narrow compelling circumstances require edits to be made such as the inadvertent release of privacy protected information, they will only be made with the expressed permission of the Assistant Secretary of Public Affairs and with an appropriate level of annotation and disclosure. I have communicated this new policy to my staff and it takes effect immediately.

Laudible aims, but the damage has been done. In predictable fashion, the original exchange that was supposed to be buried is now not only unearthed but is making headlines once again, three years after it originally occurred. All because someone in the State Department wanted it covered up. And that someone will likely not be found, as the State Department appears to be uninterested in investigating this any further.

It's exactly the wrong thing to do. First, nothing is gained by the attempted coverup. In fact, the story is more widely known now than it would have been otherwise. And now we can add a dash of intrigue to this mix, by adding the story of the video edit on top of it. For a subsection of the population, this will confirm their paranoia and mistrust. And, looking at this story, it's tough to blame them.

But, thanks to the Streisand Effect, at least we know that the State Department is perfectly happy to lie to the press to achieve its goals, and then attempt to cover it up. I wonder if there are any current politicians running for office that this might reflect poorly on?

Filed Under: iran, james rosen, jen psaki, nuclear deal, state department, tough questions, transparency, victoria nulan, video editing

Yahoo First Company To Publicly Acknowledge It Has Received National Security Letters

from the doxing-the-feds dept

Given its history of battling gag orders from the government, there's some cosmic justice contained in the fact that Yahoo is the first company to publicly disclose the contents of National Security Letters it has received. Before the passage of the USA Freedom Act, NSLs came bundled with a presumptive lifetime ban on disclosure. This wasn't statutorily-required. It's just the way things worked out when the FBI was allowed to decide if and when it was going to allow NSL recipients to publicly discuss them.

The surveillance reform law requires the FBI to "periodically" assess its NSL nondisclosure demands, which appears to have led directly to the first publication of these letters by any company. Yahoo's accompanying statement notes it will continue to publicly disclose whatever it's allowed to in the future.

Yahoo has always maintained a strong commitment to protecting our users’ safety, security and privacy. The release of these documents and information regarding NSLs today is consistent with our commitment to sharing as much information as we legally can regarding government data requests. We believe there is value in making these documents available to the public to promote an informed discussion about the legal authorities available to law enforcement. They also demonstrate the importance of hard-fought reforms to surveillance law achieved with passage of the USA Freedom Act.

The letters [PDF] are redacted but some information had still managed to seep out between the black bars. For one, it appears the FBI asks for everything Yahoo could possibly have collected about targeted users, tracing all the way back to the creation of the accounts.

In preparing your response to this National Security Letter, you should determine whether your company maintains the following types of information which may be considered by you to be an electronic communications transactional record in accordance with Title 18 United States Code § 2709.

Subscriber name and related subscriber information

Account number(s)

Date the account opened or closed

Physical and or postal addresses associated with the account

Subscriber day/evening telephone numbers

Screen names or other on-line names associated with the account

All billing and method of payment related to the account including alternative billed numbers or calling cards

All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and or user names identified by you as belonging to the targeted account in this letter

Internet Protocol (IP) addresses assigned to this account and related e-mail accounts

Uniform Resource Locator (URL) assigned to the account

Plain old telephone{s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account

The names of any and all upstream and providers facilitating this account's communications

The above-listed information from "inception of the targeted account to the present" if this request cannot be processed as presently written

And, while the FBI requests this information to be sent to it in electronic form, it demands any challenges to its gag orders be handled via fax machines or snail mail.

This disclosure allows Yahoo to update its previous transparency reports with real numbers, rather than the fake numbers demanded by the government.

Prior to this, Yahoo hadn't even been allowed to disclose the fact that it had received NSLs, even under the very broad disclosure range of 1-499. This is a small step towards government transparency -- one that will hopefully continue to undermine its secrecy-by-default stance.

Filed Under: doj, fbi, national security letters, nsls, transparency
Companies: yahoo

EU Commission Releases Plans To More Directly Regulate Internet, Pretending It's Not Regulating The Internet

from the this-is-an-issue dept

Well, this isn't a surprise. After all, we warned you that it was likely to happen, and we helped get together folks to warn the EU Commission that this was a bad idea, but the EU Commission has always seemed dead set on a plan that they believe will hold back big successful American internet firms, while fostering support for European ones. This week they made their first move by releasing details of some of their plans. This is all part of the "Digital Single Market" plan, which, in theory, makes a ton of sense. The idea is to knock down geographical regulatory barriers on the internet, such as geoblocking. And the first part of the EU's plan is right in line with that idea and makes perfect sense. It talks about getting rid of geoblocking and also making cross-border delivery of packages easier and less expensive -- basically making e-commerce work better. That's all good.

But it's the second part that is concerning, and that's where they start talking about updating "audiovisual rights" and the regulation of "online platforms." The audiovisual rights stuff is getting most of the press attention, because of silly rules like requiring video platforms to promote more European-created content.

Currently, European TV broadcasters invest around 20% of their revenues in original content and on-demand providers less than 1%. The Commission wants TV broadcasters to continue to dedicate at least half of viewing time to European works and will oblige on-demand providers to ensure at least 20% share of European content in their catalogues.

This is a silly protectionist measure that we've seen in various countries for TV for ages and it's a joke. If you want more people viewing European content have them make better content. Forcing content on people because it's "from Europe" isn't going to make anyone want to watch it if it sucks. It will also, of course, make life more difficult for new entrants who will have to make sure that enough of their content meets this arbitrary standard.

But the much more concerning stuff involves the regulation of the internet. Now, yes, the EU Commission basically tries to bend over backwards to say that this isn't about creating new regulations for the internet. And also to claim that they're not changing the "intermediary liability" regime as laid out in the E-Commerce Directive that is a decent, if unfortunately weaker, version of US intermediary liability protections, saying that platforms aren't responsible for actions of their users. But... there's a big "but" after those claims, and it basically undermines those claims. You can read the following and see them swearing no new regulations and no changes, but the four bullet points and the details buried in them suggest something entirely different:

Today's Communication on platforms does not propose a new general law on online platforms, nor does it suggest to change the liability regime set by the e-Commerce Directive.

The aim is to make sure that platforms can be created, scale up and grow in the European Union. To reach this goal we need a functioning Digital Single Market where online platforms (both startups and established market operators) are not hampered by heavy regulation.

Online platforms are already subject to EU legislation such as consumer and data protection rules, and competition law. New initiatives will only be taken to tackle any specific problems identified and only if it is established that better enforcement of existing rules is not sufficient to address these.

In our approach to online platforms, we will be guided by the following principles:

• a level-playing field for comparable digital services
• responsible behaviour of online platforms to protect core values,
• transparency and fairness for maintaining user trust and safeguarding innovation,
• open and non-discriminatory markets in a data-driven economy.

Let's go one by one. First the "level playing field." This is a popular line, but it's kind of meaningless. What does it even mean? Some companies are going to be more successful than others, or use different business models or strategies. And those, by their very nature, create a different kind of playing field. We should be worried when the government is arguing for tilting the playing field one way or the other. For example, in earlier discussions about this, there were arguments that YouTube's model was unfair, but Spotify's model was fine. Why should the government favor one over the other?

Also, within the details, they make it clear that, despite what was said above, this is about extending new censorship regulations to platforms. "Data protection" regulations include things like "the right to be forgotten." Recognize that when reading this:

In the new e-Privacy Directive the Commission will consider, for example, extending data protection obligations currently applicable only to telecoms companies to platforms.

The next one is the big concern, because it's so... broad: "Ensuring that online platforms behave responsibly." What does that mean? Who determines what's "responsible?" Because you have the RIAA and MPAA insisting that "responsible" means vast censorship of platforms to block anything that might even remotely be infringing. Or you have the FBI insisting that "responsible" means keeping log files for a really long time and not encrypting stuff (or encrypting it with holes in it). There's a lot of wiggle room within "behaving responsibly" that should be a cause for concern.

And, indeed, it looks like the EU Commission is buying the MPAA/RIAA's view of what "behaving responsibly" means:

In the third quarter of 2016, the Commission will propose a copyright reform package aiming to achieve a fairer allocation of value generated by the online distribution of copyright-protected content by online platforms providing access to such content.

This is a fairly loud dog whistle to the RIAA. In the past few months the RIAA has been going on and on about what they're ridiculously calling the "value gap" in online platforms. In short that "value gap" is that internet companies are making lots of money... while record labels are not. To them, that's because of some sort of unfairness in the law. To most everyone else it's because the markets have shifted, and the record labels failed to adapt. And, really, if we're talking about unfair markets and "fair allocation of value" why didn't anyone complain through the 70s, 80s and 90s when the laws were so tilted that the labels basically got all of the "allocation of value" while the actual artists got stiffed?

And, of course, despite the EU Commission initially saying that there would be no impact on the intermediary liability protections in the E-Commerce Directive, they pretty quickly walk that back in the details:

In relation to the liability regime of online intermediaries established by the e-Commerce Directive, the Commission will assess:

• the need for guidance on the liability of online platforms when putting in place voluntary measures to fight illegal content online [starting in the second half of 2016], and
• the need for a formal notice-and-action procedures [after taking due account of the updated audiovisual media and copyright frameworks].

Got that? So now the government will be pushing for "voluntary measures" to take down content. But since it's the government looking into it, it's not so voluntary, is it? And then a "notice and action procedure" which means "notice and takedown." In the US, obviously, we have that for copyright, which has created a massive censorship regime, but we don't have such a setup for other kinds of content. The EU, generally, does have a sort of notice-and-takedown for things like defamation, and it looks like that may expand.

Oh, and then the ever amorphous censorship of "hate speech," which no one ever seems to define clearly:

In addition to revised audiovisual media rules, the Commission will further encourage coordinated EU-wide self-regulatory efforts by online platforms in tackling illegal content online. The Commission is currently discussing with IT companies on a code of conduct on combatting hate speech online.

Sure, I dislike hate speech as much as the next guy, but attempts to suppress hate speech tend to lead to straight up government censorship or as a way to attack speech governments don't like.

Next up, we've got: "Fostering trust, transparency and ensuring fairness." Yup, there's that "fairness" again. Obviously, fostering trust and transparency are actually things I'm very, very supportive of. But I'm not clear on what the government needs to be doing here, when there are often good ways for the market to do that itself. Companies that are more transparent generate more trust by themselves. And many new platforms rely on public trust to actually provide any value. So, sure, I don't want fake reviews online either, but isn't that something that platforms can handle by themselves?

The Commission will encourage industry to step up voluntary efforts, which it will help in framing, to prevent trust-diminishing practices (in particular, but not limited to, tackling fake or misleading online reviews) and monitor the implementation of the self-regulatory principles agreed on comparison websites and apps.

So, while we applaud the idea of doing away with geoblocking, as well as the general principles of fairness, trust and transparency, it's extremely frightening to think about what the government has to do in this arena at all, since almost all of the suggested ideas are wide open to abuse in the form of just attacking platforms the government or legacy industries don't like, rather than focusing on what actually creates the most value for the public.

Filed Under: content, copyright, eu, fairness, intermediary liability, internet, openness, platforms, regulations, transparency

Appeals Court Shoots Down ACLU, Says Full CIA Torture Report Is Beyond The Reach Of FOIA Requesters

from the 7,000-pages-of-compiled,-edited,-heavily-reviewed-'work-product' dept

Unless the Supreme Court chooses to get involved, it looks like we'll never get to see the full "Torture Report." We'll just have to make do with the Executive Summary, which was released at the end of 2014. The summary is just 500 pages out of ~7,000 total. The rest of these pages remain in the hands of the Senate and the CIA, and neither is willing to part with them.

FOIA enthusiast Jason Leopold's request for the full document has already been shut down. The ACLU's request was similarly denied by the DC District Court. The Appeals Court has reached its decision, and it agrees with the lower court.

The denial hinges on the court's determination that the full report is nothing more than a collection of Congressional communications and documents, rather than being in the possession of the CIA where they could (theoretically) be accessed via FOIA requests. The court cites a 2009 letter from the Senate Committee to the CIA that spells this out explicitly.

Any . . . notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee . . . . These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law.

In other words, the Senate Committee -- with a single letter -- managed to convert not only the finished Torture Report, but all of the documents it used to compile the report, into Congressional "work product," making it completely inaccessible by the general public.

According to Appellants, when an agency has been given possession of a document created by Congress, the document is presumptively an agency record unless Congress has clearly expressed its intent to control the document. In Appellants’ view, Appellees cannot establish a clear assertion of congressional control with respect to the Full Report because it was disseminated to Appellees without any restrictions. We disagree. The June 2009 Letter manifests a clear intent by the Senate Committee to maintain continuous control over its work product, which includes the Full Report. Therefore, the Full Report always has been a congressional document subject to the control of the Senate Committee.

The court finds that the only entity with the power to release the full Torture Report is the Senate Committee controlling the "work product." Considering there were attempts to bury the much smaller Executive Summary, it's safe to say the current committee, along with any successive committees, aren't going to be interested in releasing the full report, not as long as there is a compelling interest (read: the CIA, administration, etc.) in keeping it a secret.

Based on Feinstein's 2009 letter, and a communication accompanying its release to the Executive Branch in 2012 solely for the purpose of eliciting comments, the court declares the Torture Report to be completely exempt from the FOIA.

When Senator Feinstein transmitted the draft of the Full Report to the Executive Branch on December 14, 2012, her transmittal letter made it clear that the Committee would determine if and when to publicly disseminate the Full Report. Nothing changed as the final edits and corrections were made to the Full Report. The limited transmittal of the Full Report to Appellees in 2014 certainly did not vitiate the command of the June 2009 Letter or otherwise authorize public dissemination.

[...]

On the record before us, the Senate Committee’s intent to retain control of the Full Report is clear. The Full Report therefore remains a congressional document that is not subject to disclosure under FOIA.

This decision, while logical in its determination of the Committee's intent, exposes a glaring hole in the FOIA -- one which allows agencies to drive truckloads of documents through into the darkness beyond. "Work product" can be almost anything, even completed reports. All it takes to move something out of the public's reach is a government employee declaring that the documents they don't want to release are somehow still in a nascent, "deliberative" state. Feinstein's 2009 letter makes it clear she wanted the full report to stay out of the public's hands, so she declared the documents unfinished and "removed" them from the CIA's control. The courts don't always buy the government's "work product" arguments, but there's the rub: it takes a lawsuit to reach this point, something that's not always an option for FOIA requesters.

Filed Under: cia, executive summary, foia, torture report, transparency
Companies: aclu

James Comey Still Trying To Blame Increase In Violent Crime On 'Viral Videos'

from the pitching-woe dept

FBI Director James Comey says we're "going dark" as more platforms move towards encryption. Nobody's buying it. Not Congress. Not NSA officials. Definitely not those who have actually researched the subject.

He also says people with cameras are causing spikes in crime rates by making police officers so self-conscious they can't do their job. Comey blamed citizens with cameras for escalating crime rates last October. He was immediately contradicted by Attorney General Loretta Lynch. Having learned nothing from the experience, Comey has dusted off his 2015 talking points for redeployment in 2016.

FBI Director James Comey said Wednesday he believes a "viral video effect" causes weak police work and could be "at the heart" of a spike in violent crime in some American cities.

“There’s a perception that police are less likely to do the marginal additional policing that suppresses crime—the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters at FBI headquarters.

This is a guy with access to some of the best intelligence and advice your tax dollars can buy. And yet he'd rather tuck his thumbs into his suspenders, lean towards reporters and aw-shucks at them with his "I may just be a simple director of the most powerful law enforcement agency in the United States, but…" pitches.

He sounds like a small town local running for sheriff, rather than a top government official with his finger on the pulse of criminal activity and law enforcement technology.

Comey spoke to reporters after being briefed on crime statistics from 40 major cities, most of which saw an increase in murders, he said.

"I was very worried about it last fall and I am in many ways more worried," Comey told reporters at FBI headquarters. "The numbers are not only going up, they're continuing to go up faster than they were going up last year. And I worry very much it's a problem that most of America can drive around. ... I don't know what the answer is, but, holy cow, do we have a problem."

That's classic Comey: You've got problems? I don't have answers.

Encryption got you down? I'm sure the "smart people" in tech can deliver unicorns on command. No, I'm sorry. I don't have any technical details but, you know, those guys at Apple and Google are so damn smart. They'll think of something.

Crime rates spiking in major cities? "Holy cow, do we have a problem?" Any ideas, Mr. Top of the Law Enforcement Food Chain? "I don't know what the answer is."

OK. Well… um… keep on earning that paycheck... I guess.

Not for nothing has James Comey earned a petition calling for his removal. Comey claims criminals are somehow exploiting a "tech gap" the FBI can't seem to close, despite its hundreds of millions of dollars. I don't know how many criminals are staying one step ahead of the FBI in a tech arms race anyone can participate in. (The fact that the FBI can buy/obtain/hoard exploits and malware, along with other high-tech tools the general public can't purchase, somehow always gets lost in law enforcement's portrayal of this so-called "race.") But it can certainly be said criminals are one step ahead of the FBI's top man, who often seems genuinely baffled by the issues confronting his agency.

It may be that Comey is playing dumb because he believes it's the best way to advance his agency's agenda. But he's been doing this for more than a year and there's been no forward movement. If anything, the FBI is less likely to receive Congressional assistance than it was before Comey began running his mouth on these two subjects.

Not only has he lost the support of Congress, but he's not winning any powerful friends within the law enforcement community.

“He ought to stick to what he knows,” James O. Pasco Jr., executive director of the National Fraternal Order of Police, told the New York Times. “He’s basically saying that police officers are afraid to do their jobs with absolutely no proof.”

Unfortunately, this -- and "going dark" -- appears to be all Comey knows.

Filed Under: blame, crime, fbi, james comey, law enforcement, transparency