Pentagon Offered 'FOIA Terrorist' Jason Leopold A Stack Of Documents To Just Shut Up And Go Away Forever

from the citing-exemption-'for-the-love-of-god-leave-us-alone'-[(b)404] dept

Jason Leopold has so thoroughly aggravated naturally-secretive government agencies that he has earned the nickname "FOIA terrorist." He routinely files two dozen FOIA requests a week, along with MDRs (Mandatory Declassification Reviews), which force the government to more closely examine documents it has previously withheld in full.

In the course of these activities, Leopold has also filed numerous FOIA lawsuits against government agencies for withholding documents, not performing thorough searches or exceeding the statutory time limits for responses.

Several government agencies hate him. One government agency hates him so much it offered him a one-time deal bordering on illegality.

In his testimony in front of the House Committee on Oversight and Government Reform, Leopold gave up both the agency and its questionable offer.

Leopold: The Office of Net Assessment (ONA) is the Pentagon’s in-house think tank. They spend millions and millions of dollars putting together reports — reports that they contract out about perhaps some futuristic warfare, or what the situation in the Middle East is going to look like with regards to oil. I asked for those reports. I filed a FOIA request; they refused to comply with my FOIA request. They said it was too broad. I narrowed it, they still said it was too broad. I sued them. Recently they said that ‘We’ll give you some documents as long as you promise to never file a FOIA request again and don’t have anyone else file a FOIA request on your behalf.’

Rep. Mark DeSaulnier (D-Calif.): How is that legal?

Leopold: I don’t know but they put this in writing and I’m really looking forward to the day when I write this story up.

This is what one agency was prepared to do just to keep Leopold out of its file cabinets.

But it's not just overt actions like these. It's the little things agencies do to frustrate FOIA requesters, especially journalists like Leopold who are looking for timely information rather than just information. In his testimony, Leopold points out that agencies routinely stonewall journalists in hopes of discouraging them from making further inquiries. If they can delay a release past the point of relevance, it's a PR win for them, especially if the information requested is less than flattering.

As you know, FOIA requires an agency to make a determination on releasing records within 20 business days. An extension of 10 business days is available in “unusual circumstances.” I have submitted thousands of FOIA requests to dozens of different agencies, and in my experience, fewer than one percent of my requests have been decided within the timeframe required by FOIA. My colleagues have had similar experiences.

I routinely experience delays of several years...

Case in point: Leopold's FOIA request for information related to incoming DOJ head Loretta Lynch.

My request to the Executive Office of the United States Attorneys for records about Loretta Lynch illustrates the problems that investigative journalists face in using FOIA. I submitted my request the day that Loretta Lynch’s nomination was announced by President Obama. I sought expedited processing because the records I was requesting relate to Lynch’s performance of her duties as United States Attorney for the Eastern District of New York. When the agency did not rule on my request for expedited processing within the time period allowed by FOIA, I immediately filed suit. The agency conceded that the topic of my request is a “matter of widespread and exceptional interest,” but insisted that it should not have to even begin releasing records for several months. My attorney filed several emergency motions requesting that the Department of Justice process my request and produce records before Lynch’s confirmation hearing, but the judge presiding over the case indicated that he would not have time to rule on the motions for more than a month.

After Lynch was confirmed, my request for expedited treatment became moot. To date, the agency has still not processed the documents I requested.

As he points out, this sort of behavior achieves exactly what the foot-dragging agencies hope it will: it discourages journalists from using FOIA requests in their news gathering. And every journalist persuaded to look elsewhere is one more chance to keep information out of the public's hands.

Then there are the loopholes. Some of these abused exemptions have been addressed by amendments to FOIA laws, but there are still plenty of exploitable areas.

Congress deliberately chose the words “records or information” when it amended Exemption 7 in 1974. Prior to that time, investigatory files compiled for law enforcement purposes were exempt. The problem was that agencies could simply place documents that they wanted to withhold from disclosure inside an investigatory file, and then treat the document as exempted simply because of its location. The 1974 amendment was designed to fix this problem by eliminating the blanket exemption for government records simply because they were found in investigatory files compiled for law enforcement purposes.

Notwithstanding Congress’s clear intention and the plain language of FOIA after the 1974 amendment, the FBI continues to withhold information where the record requested “is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. 552(b)(7)(A)” (emphasis added). I have received dozens of denial letters from the FBI based on this erroneous interpretation of FOIA, and the Department of Justice’s Office of Information Policy has affirmed the FBI’s decision in every administrative appeal I have filed. The FBI has not defended its position in court, but instead conducts a new review applying the proper standard once litigation has commenced. As a result, the issue becomes moot.

According to Leopold, the worst agencies to deal with in terms of FOIA requests are the usual suspects: the FBI, the DOJ and the US Southern Command. Thanks to Snowden's prompting of additional interest in the "intelligence community," the NSA has been added to that list.

The oversight committee has its eye on FOIA reform and the government could use a swift kick right in the exemptions. But whether or not a so-called "terrorist's" assertions about near-bribes and SOP stonewalling will push it in that direction remains to be seen.

Filed Under: defense department, foia, intimidation, jason leopold, transparency

Google Fiber Says It's Passing On Rightscorp Settlement-O-Matic Demands For 'Transparency'

from the transparent-bullying dept

As Rightscorp continues to explore its legally-dubious efforts to shake down broadband users for cash, the company is finding itself with its hands full across multiple, costly legal fronts. Earlier this month, the company was beaten back in court by a tiny ISP by the name of Birch Communications, after the courts rejected the use of DMCA subpoenas for ISP subscriber data. Rightscorp's also doing battle with Cox Communications, trying to drum up user identities while claiming the DMCA gives it the authority to threaten users with account termination.

Despite all the noise Rightscorp makes in the media and in the courts, it's not very good at being a copyright troll. The company's latest earnings report suggested the company is losing more money than ever, spending $1.24 million on legal fees and other costs last quarter to collect just $308,000.

ISPs are under no obligation under the DMCA to forward copyright infringement notices, though most ISPs do so anyway. However, on principle many ISPs (like Comcast) refuse to pass on Rightscorp's early settlement notices, which demand users pay an upfront payment of $20 to avoid legal escalation (which usually never comes). On behalf of its client Rotten Records, Rightscorp is now suing two Comcast users for sharing an album each and ignoring hundreds of settlement notices:

"Distancing themselves from any accusations of wrongdoing, the lawsuits state that neither Rotten Records nor Rightscorp were the original ‘seeders’ of the album and at no point did Rightscorp upload the albums to any other BitTorrent users. However, the company did send warnings to the Comcast users with demands for them to stop sharing the album.

"Rightscorp sent Defendant 288 notices via their ISP Comcast Cable Communications, Inc. from December 14, 2014 to May 12, 2015 demanding that Defendant stop illegally distributing Plaintiff’s work. Defendant ignored each and every notice and continued to illegally distribute Plaintiff’s work," the complaint reads."

Rightscorp is seeking an injunction forbidding further online infringement in both cases, deletion of both works, statutory damages of up to $150,000 for each album, and attorneys' fees. It's a one-two punch; trying to reveal the names of the offenders while attempting to punish Comcast for refusing to pass on settlement demands. If it wins, Rightscorp hopes the ample press will scare other settlement notice recipients to pay up.

Oddly, while the cable company everybody loves to hate is standing up for users, an ISP that's been a bit of a hero for bringing some much needed competition to the broadband market has been playing along with Rightscorp. Google Fiber has been taking some heat the last few weeks for the news that it's passing on Rightscorps' full settlement demands to users. When pressed for comment as to why companies like Comcast strip out the demands to protect its customers and Google doesn't, the company claimed it was just trying to be as transparent as possible:

"When Google Fiber receives a copyright complaint about an account, we pass along all of the information we receive to the account holder so that they’re aware of it and can determine the response that’s best for their situation," a Google spokesperson tells TF...."Although we think there are better solutions to fighting piracy than targeting individual downloaders, we want to be transparent with our customers,” Google’s spokesperson adds."

Of course, if Google truly wants to be "transparent" with users, it might consider adequately informing them they're being shaken down by a particularly hairy copyright troll.

Filed Under: copyright trolling, google fiber, notices, shakedown, transparency
Companies: comcast, google, righscorp, rotten records

Court Follows Shutdown Of Jason Leopold's Torture Report FOIA Request By Denying Same To ACLU

from the (b)5:-for-when-you-absolutely,-positively-have-to-hide-every-motherfuckin'-d dept

The ACLU is suing the CIA over its withholding of CIA Torture Report-related documents, including the so-called Panetta Review. The CIA, so far, has managed to withhold the requested documents in their entirety, citing multiple FOIA exemptions. The ACLU isn't taking no for an answer and has challenged the CIA's refusal to turn over any of the documents the ACLU has requested. But this effort has now been shut down by the DC District Court.

The decision starts by noting that if the SSCI report (Torture Report) had remained solely in the hands of the Senate, it would have been unobtainable via FOIA requests. The ACLU had argued that its transfer to the CIA has released it from this clearly delineated restriction. ("For purposes of FOIA, the definition of an “agency” specifically excludes Congress, legislative agencies, and other entities within the legislative branch.")

The court finds otherwise:

The Court’s inquiry, therefore, is a streamlined one: do there exist “sufficient indicia of congressional intent to control,” id., the Full SSCI Report? [...] Although this case is no slam dunk for the Government, the Court answers that question in the affirmative.

The decision quotes from a SSCI letter from 2009 referring to the still in-the-works Torture Report.

In its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation “remain congressional records in their entirety and disposition,” such that “control over these records, even after the completion of the Committee’s review,” would “lie[] exclusively with the Committee.” June 2, 2009, SSCI Letter, ¶ 6. Making its wishes even more explicit, it continued, “As such, these records are not CIA records under the Freedom of Information Act, or any other law.”

The ACLU pointed out that this letter from 2009 was both outdated and irrelevant to the issue at hand, as it only pertained to the use of documents shared with the Senate by the CIA, rather than the resulting report. The court disagrees, stating that the language in the 2009 letter is broad enough to cover the finished product, rather than just the documents contributing to it. But it also points out the CIA's arguments in defense of its secrecy are also inconsistent.

One final point bears mention. Defendants’ own characterizations of the scope of the letter vary somewhat in their submissions. Compare, e.g., Higgins Decl., ¶ 12 (“One key principle necessary to this inter-branch accommodation . . . was that the materials created by SSCI personnel on [the] segregated shared drive would not become ‘agency records’ even if those documents were stored on a CIA computer system or at a CIA facility.”) (emphasis added), with Def. Reply at 5 (explaining that the language of the June 2009 letter “covers the Full Report” as a “final . . . report[] or other material[] generated by Committee staff or members,” even though it did not reside on the network drive).

The ACLU also argued that Dianne Feinstein's letter from 2010 is a better indicator of whether or not the report and its supporting documents are FOIA-able.

As its pièce de résistance, the ACLU seizes on the December 10, 2014, transmittal letter from Senator Feinstein, claiming it represents “direct evidence of the SSCI’s intentions for the Final Full Report.” Id. That letter, to recap, states:

"[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve this result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit." December 10, 2014, Feinstein Letter.

“By encouraging the use and dissemination of the Final Full Report among the executive branch, and by leaving to the executive branch the decision as to how ‘broadly’ the report should be used within the agencies,” claims Plaintiff, “SSCI relinquished its control over the document.”

The court rebuts this argument as well. Rejecting the ACLU's "refinement" of the entirety of SSCI-related communication between the Senate and the CIA to a single letter, the court declares that Feinstein's instructions must be considered in context.

The Court, therefore, need not confine its consideration to the moment of transmission. On the contrary, SSCI’s 2009 letter sets the appropriate backdrop against which Senator Feinstein’s 2014 letter can be properly understood.

So teed up, her letter does not evince congressional intent to surrender substantial control over the Full SSCI Report. While it does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless. Most significantly, the dissemination authorized by the letter is limited to the Executive Branch alone. It plainly does not purport to authorize the agencies to dispose of the Report as they wish – e.g., to the public at large.

The court also adds that Feinstein's statement accompanying the public release of the report summary further declares the documents off-limits -- at least until further notice.

SSCI’s deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff’s theory that Congress intended to relinquish control over the document only days later.

It finds similarly for the "Panetta Report" documents, citing its rejection of Jason Leopold's FOIA request. The CIA continues to assert that these documents are "deliberative" in nature and out of the reach of FOIA requests, despite the fact that what's being deliberated has already been made public (in the summary report) and handed over to the executive and legislative branches (via the full report). The court upheld the CIA's exemption (b)5 declaration, stating that it doesn't matter whether or not portions of the sought documents are in the public domain, but rather that the documents are part of an agency's "deliberative process." (This is why exemption (b)5 is the most-abused FOIA exemption.)

As it had already shot down Leopold's request, the court finds no reason to alter its course, despite some "novel" arguments advanced by the ACLU -- including quoting Sen. Udall's assertion that the Panetta Review is a complete work of critical importance (a "smoking gun") that far exceeds the CIA's portrayal of it as an unfinished pile of somewhat related deliberative works-in-progress. The CIA's motion to dismiss is granted.

With this decision (and many preceding it), government agencies are being given even more reason to declare anything they don't want released "deliberative" and trust the courts to uphold their declarations.

Filed Under: cia, cia torture report, foia, jason leopold, panetta review, secrecy, transparency
Companies: aclu

Wikileaks Releases Transcript Of German Inquiry Into Growing NSA Spy Scandal

from the not-dead-yet dept

Compared to its early days, when releases of material like Collateral Murder dominated public discourse for weeks, Wikileaks is now only a shadow of its former self, eclipsed largely by Snowden's leaks. That's understandable, perhaps: Julian Assange has been holed up in the Ecuadorian Embassy in London for nearly three years, and it has been hard for the organization to raise funds to pay Wikileaks' running costs. However, that reduced visibility and activity doesn't mean it's not still releasing valuable material, particularly in the area of trade agreements. Today, it has published another interesting set of documents, this time from the field of surveillance:

WikiLeaks releases ten months of transcripts from the ongoing German Parliamentary inquiry into NSA activities in Germany. Despite many sessions being technically public, in practice public understanding has been compromised as transcripts have been withheld, recording devices banned and reporters intrusively watched by police.

WikiLeaks is releasing 1,380 pages of transcripts from the unclassified sessions, covering 34 witnesses – including 13 concealed witnesses from Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND). The transcripts cover from the start of the inquiry in May 2014 through to February 2015.

WikiLeaks has also written summaries of each session in German and English as the inquiry, due to its subject matter, is of international significance.

This underlines an important aspect of Wikileaks' work: the fact that it seeks to make the documents it releases useful by providing commentary, summaries and indexes. Those valuable additions are often overlooked, but can play a crucial role in helping people understand the raw material provided.

The German parliamentary inquiry has been rumbling on for a year now, but has gained renewed importance with the recent revelations that the German spy service, the BND, has been searching through its databases using "selectors" (keywords) provided by the NSA, with apparently no oversight. Not only were many of the targets for those selectors EU citizens, but they included senior politicians and industry figures, too. Here's Wikileaks' summary:

One of the biggest scandals to emerge from the inquiry so far is the recent "selector" spy target list scandal where a BND official revealed that the agency was expected to spy on thousands of targets at the instruction of the NSA. These targets included members of the French government and European industry. This put into question Germany's suitability in taking a leadership role in the European Union. It also showed that international co-operation on mass surveillance, which has been marketed in public as a counter-terrorism measure, is in practice also used by the United States for the purposes of industrial espionage and geopolitical advantage vis-a-vis members of the European Union. The committee requested the full "selector" list of targets provided to the BND by the NSA. The committee was told that the US would first need to be asked permission for the list to be revealed to the committee (even in confidence). Last Wednesday, 6 May 2015, when the answer was meant to be delivered, stalling tactics were used, leaving the German public, and the Parliamentary inquiry, without any ability to understand what their own secret services are up to.

The "selector" scandal has now reached the highest political echelons in Germany, with Angela Merkel's earlier outrage over NSA spying -- not least against herself -- looking hypocritical at best, or dangerously naive at worst. Wikileaks' latest release therefore comes at just the right moment for those seeking to understand what has been going on in Germany. It's also a timely reminder that Wikileaks is still able to perform an important service in this respect, despite its straitened circumstances.

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

Filed Under: germany, interviews, leaks, nsa, surveillance, transparency, wikileaks
Companies: wikileaks

The FBI's Stingray Secrecy May Be Aimed At Preventing Law Enforcement From Overusing A Key 'Exploit'

from the running-the-wheels-off-a-Stingray dept

An interesting angle on the FBI's Stingray secrecy has emerged from -- of all places -- a Princeton gathering of cryptographers that included Edward Snowden via his "Snobot."

Generally speaking, the FBI is a very secretive agency, as can be readily gleaned from its tendency to answer FOIA requests with page after page of fully-redacted documents. That it has managed to rope so many law enforcement agencies -- including prosecutors and states' attorneys' offices -- into highly-restrictive non-disclosure agreements is somewhat of a surprise, considering its position as a partner in law enforcement, rather than an overseer of local agencies like the DOJ.

These NDAs keep almost all information about Stingray device usage out of our nation's courts. The desire to protect these specifics is all-encompassing, resulting in prosecutors and police departments cutting suspects loose (including those who have already pled guilty) rather than allowing information to make its way into the public domain.

But there could be more to it than just a naturally-secretive agency being secretive. It may be that it fears law enforcement agencies -- if left to their own devices -- will destroy the effectiveness of IMSI catchers by deploying the devices too often and with too little care.

In a discussion about the NSA's use of exploits, the following observations were made.

FBI operations can be opaque because of the care they take with parallel construction; the Lavabit case was maybe an example. It could have been easy to steal the key, but then how would the intercepted content have been used in court? In practice, there are tons of convictions made on the basis of cargo manifests, travel plans, calendars and other such plaintext data about which a suitable story can be told. The FBI considers it to be good practice to just grab all traffic data and memorialise it forever.

The NSA is even more cautious than the FBI, and won’t use top exploits against clueful targets unless it really matters. Intelligence services are at least aware of the risk of losing a capability, unlike vanilla law enforcement, who once they have a tool will use it against absolutely everybody.

IMSI catchers are "top exploits." While there's plenty of information out there on its capabilities, very little of it has been confirmed by the FBI or other law enforcement agencies. What makes the "exploit" better is that almost every deployment has been successfully hidden… from everyone. Parallel construction, abuse of pen register orders, dismissal of cases -- all of it works together to keep actual usage details out of the public's hands.

Because of this, there's very little anyone can do to avoid being swept up by Stingray devices other than avoid using cell phones. Most criminal enterprises require communication and cell phones are the cheapiest, easiest way to maintain contact. While spoofers can be sussed out with tools and apps, it requires the sort of proactive effort that often isn't present -- or practical -- in many criminal ventures. Yeah, you can sweep a hotel room for bugs, but you can't stop anyone from parking nearby and hoovering up call data and communications.

If this assessment is accurate, the FBI may be applying this intense pressure simply to prevent "vanilla" law enforcement agencies from using Stingrays as often and as carelessly as possible. Every deployment increases the risk of exposure. Tying cop shops up in NDA strings keeps dissemination to a minimum and encourages at least some form of risk analysis before deployment. It's the FBI saving law enforcement agencies from themselves, and protecting itself and its tool of choice at the same time.

[Or not. The Baltimore PD deploys its Stingrays around 600 times a year, so there are exceptions to this theory… or some agencies simply just don't care whether the effectiveness of this "exploit" suffers from diminishing returns.

And definitely click through to read the entire piece by Ross Anderson. It also discusses how intelligence agencies work around crypto they can't crack -- very germane to the discussion of the FBI's current decrypt-or-else complaints.]

Filed Under: enforcement, fbi, imsi catcher, law enforcement, overuse, secrecy, stingray, transparency

DOJ Apparently Last To Know About Widespread Stingray Usage/Secrecy; Vows To Look Into It

from the 'what-is-the-deal-with-all-these-Stingrays?'-no-longer-rhetorical dept

Considering the number of documents confirming the FBI's stranglehold on Stingray device information that have been made public in recent months (including the FBI's nearly-blank 5,000-page FOIA response), this move by the DOJ is a surprising development.

The Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology, according to Justice officials.

Senior officials have also decided they must be more forthcoming about how and why the devices are used—although there isn’t yet agreement within the Justice Department about how much to reveal or how quickly.

So… caveats, obviously. There's more on the way, but we don't know when we'll get it, or how much it will actually be, but at least the DOJ will finally be taking a look at a technology that's being deployed by law enforcement agencies -- often without warrants. And when they do use warrants, they're often obtained with misleading affidavits so as to comply with the non-disclosure agreements the FBI forces them to sign before deploying the devices.

This is also surprising, considering the FBI wrote itself a large enough loophole to ensure it never needed to bother with this sort of paperwork.

In recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices, which hunt criminal suspects by locating their cellphones, the officials said. For years, FBI agents didn’t get warrants to use the tracking devices.

One wonders how the Wall Street Journal knows this, considering the FBI is the last agency that would publicly confirm or deny anything about its Stingray usage. Perhaps some more documents are on the way whether the FBI likes it or not…

But it appears outside scrutiny has finally forced the DOJ to confront the all-encompassing secrecy surrounding Stingrays -- something that routinely excludes defendants and judges and sometimes stretches far enough to lock out other "good guys," like prosecutors and states' attorneys.

For the first time ever, legislators are beginning to ask uncomfortable questions about the technology. While the FBI can apparently blow off a majority of the US population -- including the judicial system -- it's not going to have nearly as much luck fending off determined lawmakers. The technology it loves could become the technology it can no longer have -- or at least see it subjected it to a number of requirements that would make it much less enjoyable to deploy.

Congressional scrutiny is never comfortable. But another contributing factor is the entities directly and indirectly involved with tracking cell phones: service providers. They're unhappy and they've got a pretty good idea how often requests for data are heading their way and how specious or redundant the requests are.

Federal law-enforcement and phone-company officials also have expressed concerns that some local police authorities were abusing a legal shortcut by submitting an inordinate number of requests for cellphone information, according to people familiar with the matter.

Some of this is parallel construction. Some of this is abuse of an avenue previously used to acquire specifically-targeted information: pen register/trap and trace orders. It's already public knowledge that law enforcement agencies -- backed by the FBI's own legal rationalizations -- are using these to cover Stingray usage and/or bypass warrant requirements.

On top of this, law enforcement agencies are busy ensuring that the words "exigent circumstances" become as meaningless as "relevant" or "probable cause."

About a year ago, Baltimore police officials began deluging some phone companies with requests for customer cellphone information, claiming it couldn’t wait for a judge’s order, according to people familiar with the matter. Normally, police need a court order to get that kind of information about a phone customer. But there is an exception for emergency requests. Phone companies’ rules vary, but they generally allow emergency requests to be fulfilled in missing-persons cases or when there is a risk of death or serious injury. Typically, the phone company employee doesn’t ask questions to verify the nature of the emergency.

No doubt the Baltimore PD used the hell out of this loophole, what with its 4,300 Stingray deployments over a seven-year period.

Whether this examination by the DOJ will result in any meaningful changes is debatable. It could easily decide that everyone's following all the rules, at least as far as the FBI's interpretation of statutes governing pen register orders. That it's actually securing warrants is a positive sign, but it would be nice to see if the affidavits actually specify the devices used to perform the "search." It's one thing to gather data on phone calls. It's quite another to lock down where that phone is located by sifting through everyone's data while pretending to be a cell tower -- especially considering the devices also have the capability to intercept certain communications.

Filed Under: doj, imsi catcher, secrecy, stingray, surveillance, transparency

Patent Reform Bill A Good Step, But Still Falls Way Short Of Fixing A Broken System

from the it's-a-start dept

As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done.

That's all good. The bill is a good start. But, unfortunately, it's not nearly enough. It does target some of the symptoms of the problems of the patent system, but does little to fix the underlying causes. The bill targets the worst of the worst: the patent trolls who thrive on shaking down companies. Specifically, the bill aims to do a few key things:

1. Fee shifting on ridiculous lawsuits: It would allow for attorneys' fees to be awarded if the patent holder was not "objectively reasonable" in filing the lawsuit. The Supreme Court has already made it easier for courts to award attorneys' fees, but this would slide the scale over a bit in a helpful way. This certainly increases the risk for patent trolls who have no real case.
2. Limiting discovery: Defending a patent lawsuit is crazy expensive. We often hear stories of it costing like a million dollars just to get to trial. And one big expense is "discovery," in which the patent holder gets to ask for all sorts of information from the company its suing -- emails, plans, source code, etc. This process is super expensive and there's not much you can do about it. It often starts pretty quickly after a lawsuit is filed as well. This new bill would put limits on early discovery, allowing those sued to seek motions to dismiss the case altogether or to transfer venues. That could decrease the early cost, taking away some of the pressure on defendants to just settle, and giving them more ability to fight back against bogus claims.
3. Limits vague demand letters: The patent troll's weapon of choice is often to send totally vague demand letters, insisting companies infringe without telling them how. It also makes it easier for the FTC to go after those who send such bogus threat letters.
4. Protecting some end users: We've highlighted plenty of cases where patent holders sue those who make devices or software, and then sue a variety of end-users as well. This bill, in a fairly limited way, would put those kinds of lawsuits on hold until the manufacturer can fight the infringement in court. But this only counts if the troll also has sued the manufacturer. So it's a bit limited.
5. Transparency: The bill would make it harder for trolls to hide behind shell companies. This is a fairly big deal, as many patent trolls have a series of shell companies, and often you have no idea who really owns the patent. The bill will also require actual lawsuits to be a lot more clear in terms of what they're actually suing over and why the defendant infringes (and what it infringes).

These are all good things, but it's unlikely to truly be enough. Missing, unfortunately, is the expansion of a program that would allow the patent office to do a faster review of crappy patents, known as the covered business method (CBM) process. This is too bad -- as this was an idea that Schumer had been a strong champion for, but which Microsoft and IBM pushed back very hard on, as they HATE the idea that the USPTO might start invalidating their crappy patents with a quick review.

Yet, as Schumer knows well, this CBM tool has proven tremendously effective in dumping a bunch of crappy financial services patents. Hell, just this week, DataTreasury, a massive trolling operation that has received over $350 million in settlements had its key patents invalidated via a CBM review. It's too bad that program couldn't have been expanded. Blame Microsoft and IBM.

But there are a lot of other problems that the new bill doesn't touch at all. Yes, it may shut down the worst of the worst in trolling, but will still allow plenty of bad situations to flourish. Bad patents will still get through and be used to hinder innovation. The new bill does absolutely nothing to address the situation with independent invention either, and that's a major problem in the patent space.

Either way, even with this incremental fix, it's likely we'll see a bunch of ridiculous claims that the above changes in patent law will somehow harm inventors, though, I can't see how that's true. As long as you're transparent and upfront with how the infringement happens, and don't file "objectively unreasonable" lawsuits, it seems like patents are still a powerful tool to demand money from companies.

Filed Under: cbm, chuck grassley, chuck schumer, covered business method, fee shifting, john cornyn, patent act, patent reform, patent trolls, patents, patrick leahy, transparency
Companies: datatreasury

UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.

Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:

It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.

No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.

I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.

...

The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").

One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:

Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.

That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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Filed Under: alfred de zayas, human rights, secrecy, tpp, trade agreements, transparency, ttip, un

Seattle PD Hires Coder Who Demanded It Hand Over Every Video Produced By Its Body Cameras

from the we-need-more-of-this,-please dept

Back in December, an anonymous person requested pretty much every report the Seattle PD generates daily, along with all footage from its newly-instituted body camera program. Today, that man is no longer anonymous and was recently hired by the Seattle PD.

The Seattle Police Department is taking the unconventional step of bringing a programmer who bombarded it with public records requests in-house. Chief Operating Officer Mike Wagers has led efforts to hire 24-year-old self-taught programmer Tim Clemans—initially, at least, on a three-month trial basis to work on redaction and disclosure of data.

He'll make $22.60 an hour and start on May 6. If all goes well, Clemans will stay on as a full-time staffer.

Seattle's police department has been mired in bad news for a few years now, but it does seem to actively be trying to change its culture (read: being responsible for 20% of the city's homicides) and relationship with the public. Additional scrutiny from the DOJ has nudged it in this direction, but Tim Clemans' request almost killed the body camera program before it got off the ground.

Fortunately, some reconsideration of the issue resulted in the PD attempting to make transparency and technology its ally, rather than its enemy. It has started its own YouTube channel and uploads body cam footage frequently. It held a hackathon to address the issue of en masse redaction -- something no other police force seems to have considered when facing the same nexus between accountability and privacy. Most have simply opted to withhold the footage from 99.9% of the public.

But not the Seattle PD. Not only did it host a hackathon, but it hired Clemans, despite his admittedly vexatious FOIA request and despite him having posted dash-cam footage of an incident where he was hassled by one of Seattle's finest.

The police department is hiring Clemans despite a tense March 27 encounter with Officer Jason Bender at Westlake Center. Clemans said he was filming police that day and pointed his camera at the officer during a benign interaction with two young men—one black and one white. "My filming just demonstrates what the police are doing," he said when asked why he was filming them in particular. "Both the good and bad."

But, he said, Bender was annoyed at being filmed. A dash-cam video (obtained by Clemans and posted on his YouTube account, of course!) only recorded garbled audio of a lengthy argument that ensued. Bender, who identifies himself as a member of the department's Crisis Intervention Team, asks Clemans pointedly, "Do you videotape criminals? No, you don't. You know why? Because the criminals are not"—but here the audio becomes difficult to make out. "Enjoy your safety that's provided to you."

It should be noted that Seattle has been much more proactive in considering the concerns of its citizens, rather than in deferring to whatever law enforcement officials say is best for everybody. The mayor's office evicted the Seattle PD's two drones, citing the need to "focus" on "community building," rather than simply keeping an eye on as much of the community as technologically possible. (The drones ended up with the LAPD, which shares none of these concerns.)

The good news is that Clemans is viewed as someone who can help the Seattle PD reach its goals. He'll be working on more auto-redaction solutions -- targeting the removal of personally-identifiable information on citizens from police documents. His auto-redaction work for body cam footage is still being fine-tuned. Most of what's been uploaded to date is blurry and unintelligible, but this recently-uploaded video tries a new approach -- one that's visually striking, even if it's still mostly useless as a tool of accountability.


Considering how most law enforcement agencies value their privacy over that of the general public's, it's kind of nice to see an agency take a much more balanced approach to this sort of situation. Body cameras are headed towards being as ubiquitous as dash-cams, so there will need to be processes in place to prevent privacy violations. While most have opted at this point for maximum obfuscation, the Seattle PD actually seems to want to be ahead of the transparency curve.

Filed Under: body cameras, foia, redactions, seattle, seattle police, tim clemans, transparency

President Obama Demands Critics Tell Him What's Wrong With TPP; Of Course We Can't Do That Because He Won't Show Us The Agreement

from the most-transparent-administration-in-history dept

President Obama is apparently quite annoyed by the fact that his own party is basically pushing against his "big trade deals" (that are not really about trade). Senator Elizabeth Warren has been pretty aggressive in trashing the TPP agreement, highlighting the fact that the agreement is still secret (other than the bits leaked by Wikileaks). In response, President Obama came out swinging against the critics of TPP arguing that "they don't know what they're talking about."

He insists that it's unfair to compare TPP to NAFTA because they're different deals:

“You need to tell me what’s wrong with this trade agreement, not one that was passed 25 years ago.”

Well, Mr. President, I would love to do that, but I can't because you and your USTR haven't released the damn text. It takes an insane lack of self-awareness for the guy who once declared his administration "the most transparent in history" to demand people tell him what's wrong with his trade agreement, when that agreement is kept entirely secret.

Furthermore, multiple experts concerning things like the corporate sovereignty ISDS provisions and the intellectual property chapters have gone into great detail as to why the leaked versions have problems. They're not complaining about NAFTA. They're actually complaining about the latest drafts -- but the USTR won't acknowledge them because they're talking about leaked versions.

In fact, the only real complaints I've seen relating to NAFTA concern the fact that the government says one thing about these big agreements, but the reality is something different.

Of course, he attacks the fact that people are complaining about the secrecy as well, by arguing (misleadingly) that the deal is not at all secret:

“The one that gets on my nerves the most is the notion that this is a ‘secret’ deal,” Obama said. “Every single one of the critics who I hear saying, ‘this is a secret deal,’ or send out emails to their fundraising base saying they’re working to prevent this secret deal, can walk over today and read the text of the agreement. There’s nothing secret about it.”

I'm a critic. I can't walk over today and read the text of the agreement. Obviously, President Obama is only talking about elected members of Congress. But that's not what they're complaining about. They're complaining about the fact that the American public cannot see the text of the document or discuss the specifics of what's in there. And that's absolutely true.

And even the fact that members of Congress can actually see the document is tremendously misleading. Yes, members of Congress are allowed to walk over to the USTR and see a copy of the latest text. But they're not allowed to take any notes, make any copies or bring any of their staff members. In other words, they can only read the document and keep what they remember in their heads. And they can't have their staff members -- the folks who often really understand the details -- there to explain what's really going on.

And it all comes back to the point that Senator Warren has been making for a long time: that former USTR Ron Kirk has admitted that a big reason why they keep the document secret is that when they tried being more transparent in the past, the agreement failed. As Warren says, if being transparent with the American public means the agreement will fail, then the problem is with the agreement, not the public.

“When I keep on hearing people repeating this notion that it’s ‘secret,’ I gotta say, it’s dishonest,” Obama continued. “And it’s concerning when I see friends of mine resorting to these kinds of tactics.”

Here's a little test: can we see the current TPP documents today? No? Then it's secret. Claiming otherwise is what's dishonest.

Filed Under: barack obama, elizabeth warren, president obama, secrecy, tpp, transparency, ustr