Austin Police Officer Tries To Paint Police Accountability Groups As 'Domestic Extremists' In FOIA'ed Emails

from the sovereign-citizens-more-ridiculous-than-threatening,-honestly dept

An activist is a terrorist, at least according to Senior Police Officer Justin Berry of the Austin Police Dept. While the terms aren't mutually exclusive, a person can be one without being the other. In Berry's mind, they're both, and he feeds off the FBI's paranoia to reach his conclusion.

If you can't read it, it basically says that Berry has come across some information on a "national domestic extremism trend" that is echoed by local activist groups. He claims to have found "mirror warning signs" in "FBI intel." From there, his own report follows, naming such unlikely domestic extremists as CopBlock, CopWatch and Peaceful Streets. Also included are sovereign citizens groups and government accountability activists. [pdf link]

A nationwide movement has begun against the United States Government and all government officials including those at the local level and the police officers employed by these agencies (Anonymous, 2012). Locally, numerous activists have combined their programs to work together towards the same agenda, which seems similarly in line with that of the national revolution movement…

Here's the list of groups Berry believes are an imminent threat.

Peaceful Streets Project Austin, TX- Leader and Founder Antonio Buehler

Cop Block- Austin, TX

Cop Watch- National and Local

Texans for Accountable Government Austin, TX (State and Local legislative front) - Leader and Co-Founder John Bush

Occupy Austin- Austin, TX (Political)

Lone Star Sovereign Mutual Aid Response Team Austin, TX (legal aid and blanket calling) - Leader and Founder John Bush

Anonymous- Global (Computer Hacking and obtaining of personal and banking information)- Unknown

Oath Keepers- A first responder and military organization supporter group- National (Police Information Source)- Unidentified Members, one known member within the Austin Police Department

Institute for Justice- National. Texas Chapter Headquarters in downtown Austin, TX (Legislative Arm)- Unidentified at this time

His report goes on to say that these disparate groups share common members and acknowledges that the operations themselves are often peaceful -- or at least, not directly violent. But he calls out individual members for social media posts containing broad threats or other antagonistic behavior as being indicative of these groups' latent potential for violence.

Below is several screen shots that show these organizations intentions, statements, and goals that should not be discredited as mere chatter, but considered an active threat until after November 5, 2012...

Unfortunately, the screenshots are not among the documents posted at antimedia.org [which also include discussion of an online impersonation charge that likely went nowhere], but anyone who's perused a few comment threads or Facebook posts can probably imagine what was included. In any group, there are always a few commenters who will advocate for violence in response to police misconduct and abuse. These are generally not indicative of the group in total, but do tend to skew higher in certain activist groups. Rather than address the threats as words of individuals, Berry tries to tie the whole thing together as a revolutionary force composed of sovereign citizens, police accountability activists and Anonymous itself. Then he uses a movie to illustrate the severity of the situation.

A good visual of what they are hoping for can be seen in the movie for V for Vendetta. basically what they are basing all their movements off of. At time marker 1 hour 42 minutes a detective is heard telling the plan which is basically hoping one police officer will make a mistake and poor decision, in the case of the movie killing an unarmed child committing a minor offense. They then used that event to bring out regular people to support their cause. Though in real life they do not have numbers needed to pull anything like that off, which is why they will have to create a problem by claiming one-thing ahead of time, then forcing police to take a certain action. My concern is that John Bush has already stockpiled up weapons…

… and so on. Fortunately, Justin Berry's hysteria (possibly prompted by some recorded run-ins with members of these groups) falls mostly on deaf ears. Much more measured responses are given by other law enforcement officers and supervisors.

Following the notification that Peaceful Streets was planning to hand out free cameras to citizens to record police activity, Lt. Robert Richman had this to say.

Please see Tom's email below. It summarizes a very good approach to use while discussing the recent "video" activist movement with our officers. If our officers encounter any problems with the activists. please have them bookmark the incident via DMAV and send me a copy of the case number.

Although we don't anticipate any issues, officers should always be cognizant of their officer safety and the safety of the citizens on scene. If problems do arise. officers should be well versed on the various tools available within the law that may assist them. A few examples are:

Texas Penal Code 38.15 Interference with Public Duties
Texas Transportation Code. Section 552.006 Use of Sidewalk (Le. Pedestrian in Roadway)

Calming, but with a hint of authority behind it. He references "Tom's email," which is even more forthright in its assertion that recording police officers is perfectly acceptable behavior.

I have reminded my officers that there is nothing wrong with citizens recording us while we work. Don't let someone bait us into a negative confrontation.

The would-be camera-persons are to keep their distance and not interfere with the Incident. I have told my guys that 30' is a fair guideline for acceptable distance, since any closer and the subject becomes a potential immediate threat, which causes an officer to divide their attention. However this will be up to the officer to reasonably articulate if they decide to enforce this. Ultimately, maintain officer safety and if the person attempting to records us legitimately interferes with a police incident, arrest them.

I have encouraged my officers to welcome the recordings and present a pleasant professional image for the cameras. "Smile and wave, gang. Smile and wave" - The less our officers respond to the baiting, the more quickly they will tire of their game.

Lt. Tom Sweeney's advice is sound, although he's a bit wrong to belittle recording police officers as a "game." To some, it undoubtedly is, but to many others, it's one of the only forms of officer accountability available to average citizens.

As to Justin Berry's breathless statements that activists are endangering police officers by posting their personal information online, Lt. Richman chills his heated assertion with obvious facts.

Additionally. some officers have complained about the activists posting links on Face Book tothe officer's pay and other personal data. Officers should be reminded that our pay is actually public record and easily found as is many other bits of information via a simple Google search. Officers should be reminded to lock down the security settings on their Face Book accounts and to cleanse any personal data they find on the internet by contacting the site which shows the data.

Antimedia.org portrays this as a wholesale libeling of these activist groups, but what's released here appears to be nothing more than the fruits of one officers' personal, um, vendetta. As was briefly mentioned earlier, Berry has had multiple run-ins with one of these activist groups -- Peaceful Streets -- and appears to be hoping to find a "legal" way to mute their presence (note how it's listed first and explained in the greatest detail). The other cops in the thread appear to be much more pragmatic, even up to the point of feeling citizen recordings are a "game" that activists will tire of if officers refuse to rise to the "bait." Berry's inferences are objectionable but he seems to be finding little support. Without that, there's not much he can do.

Filed Under: accountability, austin, extremists, foia, texas

LAPD Blames Predictive Software For Misconduct And Abuse, Rather Than Its Own Disinterest In Holding Officers Accountable

from the it's-never-a-cop's-fault dept

As long as we're heading into an age of predictive policing, it's good to know that some police departments are willing to turn the ThoughtCrime scanner on their own employees.

Police departments across the U.S. are using technology to try to identify problem officers before their misbehavior harms innocent people, embarrasses their employer, or invites a costly lawsuit — from citizens or the federal government.

Of course, some of this is just "insider threat" detection that ousts whistleblowers before they can blow the whistle and punishes employees for not adhering to the prevailing mindset. Nothing about this software is anywhere close to perfect, but it's still being used to (hopefully) head off police misconduct before it occurs. But what the system flags doesn't seem to be stopping cops before they do something regrettable.

The systems track factors such as how often officers are involved in shootings, get complaints, use sick days and get into car accidents. When officers hit a specific threshold, they're supposed to be flagged and supervisors notified so appropriate training or counseling can be assigned.

Proponents of the system point out that its largest value is as a deterrent. Even so, it's still relatively worthless.

The Los Angeles Police Department agreed to set up their $33 million early warning systems after the so-called Rampart scandal in which an elite anti-gang unit was found to have beaten and framed suspected gang members. The system was then implemented in 2007.

The LAPD's inspector general found in a recent review that the system was seemingly ineffective in identifying officers who ultimately were fired. The report looked at 748 "alerts" over a four-month period and found the agency took little action in the majority of cases and only required training for 1.3 percent, or 10 alerts, of them.

The LAPD presents this as a software failure -- and some of it is. What's being flagged isn't necessarily indicative of potential misconduct. But beyond the algorithm, there's this integral part which is being ignored.

Experts say the early warning system can be another powerful tool to help officers do their jobs and improve relations, but it is only as good as the people and departments using it… "These systems are designed to give you a forewarning of problems and then you have to do something."

Even the IG's report notices nothing's being done. 748 "alerts" only resulted in action on 10 of them. The LAPD is trying to portray this as a software failure, most likely in hopes of ditching the system that was forced on it by its own bad behavior. (The irony here is that police departments will argue that predictive policing software doesn't work on cops but does work on citizens.)

But it's not just the software. It's the LAPD. Long before the Rampart Scandal of the late 90s uncovered massive corruption in the force, the LAPD's Internal Affairs department was doing absolutely nothing to hold officers accountable for misconduct.

The Christopher Commission (1991) in Los Angeles found that the Internal Affairs Division (IAD) of the LAPD had sustained only 2 percent of the excessive force complaints and stated: "Our study indicates that there are significant problems with the initiation, investigation, and classification of complaints." It called the IAD investigations "unfairly skewed against the complainant."

More recent reports [pdf] still show that public complaints are almost never sustained (3.5%). Even factoring in the much higher rate given to complaints from other officials and officers (45%), the overall rate still routinely sits near 10%.

This isn't just Los Angeles. Overall, the nation's law enforcement agencies are only sustaining 8% of complaints. Officers have seemingly unlimited "strikes" before misconduct costs them their jobs. Combine that with the low sustain rate and officers know they can get away with a lot before they receive any discipline.

And if that isn't enough, these flagging systems create their own perverse incentives:

A 2011 Justice Department report found the New Orleans Police Department's system, adopted roughly two decades ago, was "outdated and essentially exists in name only." Investigators said information was included haphazardly and flagged officers were put into essentially "bad boy school," a one-size-fits-all class seen by some as a badge of honor.

No doubt more than a few New Orleans residents received a few extra nightstick swings/Taser shots just so Officer X could hang with the big boys. Fun stuff.

But on the other side of the coin lies the LA Sheriff's Department -- at least in terms of predictive software.

The sheriff's department has an early warning system. "Our diagnostic systems were fine," said the department's Chief of Detectives, Bill McSweeney, who advised his agency on creation of the warning system. "Our managerial and supervision response was not fine. It's that simple."

The LASD is finally acknowledging that it let its officers (and prison guards) act with impunity for far too many years. The system could have worked -- at least in its limited capabilities -- but no one wanted to follow up on flagged officers. The situation there has deteriorated to the point that the LASD is looking at a few years of federal supervision.

Predictive policing is still a bad idea, even for policing police. While data may help pinpoint problem areas, the flagging systems are far too inaccurate to guarantee hits. But the problem within law enforcement agencies is the lack of accountability, not faulty software. Unless the first problem is addressed, it won't matter how much the software improves in the future.

Filed Under: abuse, accountability, lapd, police abuse, predictive software

The Judicial System's Blessing Of Police Use Of Excessive Force Makes It Nearly Impossible To Hold Bad Cops Accountable

from the the-courts-have-cops'-backs,-but-who-has-yours? dept

It's not just the thin blue line insulating bad cops from accountability, it's the entire judicial system. From lower-level judges treating statements from police with amazing amounts of credulity even in the face of past misconduct or contradictory recordings to the nation's top court, the judiciary branch, giving police officers built-in defenses that far exceed those available to the public.

An op-ed by Edwin Chemerinsky (lawyer and Dean of Law at the University of California, Irvine) notes that recent decisions by the Supreme Court have put even more distance between bad cops and accountability. Earlier this year, the nation's top court essentially gave police officers permission to open fire on anyone deemed a threat and not stop firing until they determined the threat to be neutralized.

A suspect that led police on a 100-mph chase met his end when police officers fired 15 bullets in his vehicle, killing him and his passenger. Although other methods may have ended this chase without resulting in the suspect's death, the Supreme Court found nothing about this use of force was "excessive."

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

While the police have access to a wide variety of tactics and less-lethal weapons when dealing with "public safety risks," there's really no need for them to use anything but their guns. (Which they do… with gusto.) The Supreme Court's decision turns any perceived threats to "public safety" (practically speaking, "officer safety") into blank checks for excessive force.

Federal courts aren't much better than the Supreme Court when it comes to prosecuting excessive force. Amanda Taub at Vox, writing about the ongoing investigation into Ferguson police officer Darren Wilson's killing of unarmed resident Mike Brown, notes that while officers can find themselves facing both local and federal charges, Officer Wilson's chances of walking away from this situation intact are still very high.

Simple murder is not a federal offense, but it is a federal crime for a police officer to deprive someone of his rights under the Constitution. If a victim dies, the perpetrator can be sentenced to life in prison or even the death penalty. That means the DOJ could prosecute Wilson under federal law for violating Brown's civil rights, if the evidence supports that charge.

Federal civil rights prosecutions are rare, though, and convictions are even rarer. A study from Syracuse University's TRAC program found that between 1986 and 2003, fewer than 2 percent of civil rights matters referred to the DOJ were ever prosecuted. Out of 43,331 referrals, 690 were actually prosecuted — and of those, 423 resulted in a conviction.

If pursuing criminal charges seems futile, Wilson could still face a civil lawsuit, with only a slightly greater chance of success. This, too, can be traced back to the Supreme Court.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

We already know the Ferguson Police Dept. believes Wilson's actions to be defensible. Statements released by the department claim that Mike Brown got into an altercation with Officer Wilson and tried to grab his gun. It has also claimed that Officer Wilson suffered injuries from Wilson's attack (although it has released no photos or medical information to back up these claims). The courts have repeatedly shown that officers claiming to fear for their safety are fully justified in deploying deadly force. In the absence of any start-to-finish recordings of the incident, it becomes the police department's word against the words of Mike Brown's legal representatives. And the department will have some form of immunity as well as "officer safety" to deploy in its defense.

With all of this in play, it seems unlikely that there will be a satisfactory resolution to the Ferguson situation. And, despite all appearances otherwise, Officer Wilson may truly be justified in his shooting of Mike Brown. But the legal roadblocks erected by every level of the judicial system makes it extremely difficult to combat the use of excessive force. Even when the system comes together to punish officer wrongdoing, it's rarely the officer that bears the burden. Whether it's a settlement or a prison sentence, it's still the public footing the bill.

Filed Under: accountability, bad cops, courts, excessive force, police brutality, safety, supreme court

Putting Body Cameras On Cops Won't Fix Misconduct, But It's A Good Start

from the the-other-option-is-business-as-usual,-which-is-completely-unacceptable dept

Prompted by the fatal shooting of Ferguson resident Mike Brown, a We the People petition asking the federal government to require body cameras for all law enforcement officers has roared past the 100,000 signature threshold required for a White House response. (Theoretically.)

The petition asks for the creation of the "Mike Brown Law," which would mandate the use of body cameras and ensure agencies are supplied with funding needed to comply. The usual caveat about bad laws being named after deceased persons aside, the use of body cameras by police officers is nearing inevitability, what with police misconduct now being a mainstream media topic.

It's not a complete solution, but it is a very valuable addition. Dash cams, which have been in use for years, only capture a small percentage of interactions with civilians. While the use of body cameras will prompt new privacy concerns, the presence of the unblinking eye has been shown to make both police and the public behave better.

The problems with body cameras are both human and technological. Currently, almost every camera system is controlled by police officers. Guidance on what does and doesn't need to be recorded isn't always clear. What may seem to be a deliberate effort to conceal something may just be an actual malfunction. And, like any other system meant to create greater accountability, it can be gamed.

In New Orleans, Armand Bennet, 26, was shot in the forehead during a traffic stop by New Orleans police officer Lisa Lewis. However, the police department did not reveal until much later that Lewis turned off her body camera just before shooting Bennett. Bennett survived and has now been charged under prior warrants for his arrest. It also reviewed that Lewis had had a prior run in with Bennet who escaped about a week earlier.

At first glance, it has all the appearance of a deliberate coverup. But there could be dozens of legitimate reasons this encounter wasn't recorded.

The obvious reaction is that she turned it off to conceal the fact that she was about to plug Bennet in the forehead in a moment, and had the presence to do so without creating a conclusive record. But we easily see that because of what happened afterward. Post hoc rationalizations are easily deconstructed.

Perhaps she turned it off when she thought the confrontation was over. Perhaps she turned it off by accident. Perhaps she desperately wishes now she had kept it on, to prove Bennet took some action to justify her shooting him in the forehead. Or, as appears most likely, perhaps she turned it off so that there would be no video of what she was about to do.

This solution won't -- and can't -- solve everything. Beyond the actions of police officers, there's the technology itself, which is far from perfect. Unfortunately, efforts to improve are being hamstrung by those most resistant to police officers being watched.

When an officer presses record, the camera saves the 30 seconds of images that led up to that moment, but not the audio. The manufacturer designed the buffer to protect the privacy of police officers — and to appeal to resistant police unions — but it also means the cameras may miss crucial noises or words that trigger an incident.

Even a more-complete version of the events (compared to gathering eyewitness statements and weighing those against police reports) may still be missing crucial evidence, thanks to the efforts of police unions. As we've noted here earlier, legislators and government officials are becoming more receptive to the use of body cameras. Those raising the loudest objections are the erstwhile mouthpieces of the officers themselves.

The mayor of Miami-Dade sees the potential benefits of body cameras.

Miami-Dade Mayor Carlos Giménez is calling for hundreds of the county's police officers to be equipped with video cameras, weeks after after a police involved shooting in the Midwest triggered days of violence.

As national outrage about alleged police misconduct in Ferguson, Mo. continues, Giménez is pushing to make body cameras mandatory for all county patrol officers. His proposed budget is calling for 500 cameras, which would cover about half of Miami-Dade's patrol force.

"The body cam is a way to assure that there's confidence in the police department, that if they had been wearing a body cam, say, in the incident that happened in Missouri, there would be no debate as to what exactly happened," said Giménez...

Next year's Miami-Dade County budget calls for $1 million for the body cameras, with an additional $400,000 in operating cost and for the data storage required.

But Miami-Dade's police union wants none of it.

In a written grievance filed with the county’s police chief, a union lawyer wrote that wearing the cameras “will distract officers from their duties, and hamper their ability to act and react in dangerous situations …”

The one-button operation of most cameras would seem to be something most officers will swiftly become accustomed to, rather than the huge impediment the police union portrays it as. But according to the union, nearly anything at all -- even a quick tap of the "RECORD" button -- could mean the difference between life and death (of police officers, that is…).

[T]he Miami-Dade police union [also] cited the distraction caused by officers having to activate the camera before approaching a traffic stop or potential arrest. “As anyone with knowledge of police training and tactics knows, if an officer hesitates for even a second in a life threatening situation, it can cost that officer his or her life, and/or put the lives of others at risk,” the complaint reads.

I don't think anyone believes this hyperbole, not even the unions themselves. The only reason they're against body cameras is because they firmly believe police officers shouldn't be held accountable for their misconduct. They completely ignore the results shown by law enforcement agencies that have put body cameras into use -- that they reduce both the use of excessive force and allegations of police misconduct.

Body cameras aren't a cure-all, but they're much more beneficial than resistant police officers and unions give them credit for. It's the direction our nation's law enforcement agencies need to be headed. It's ridiculous that we're still almost wholly reliant on something as malleable as police statements and eyewitness interviews. A camera isn't completely neutral, but it's a hell of a lot better than what we're normally given to work with.

Filed Under: accountability, body cameras, police, police misconduct, privacy

Specially-Designated 'FOIA Denial Officers' Are Handling The Dept. Of Education's Rejected Requests

from the we've-got-some-bad-news-and-some-bad-news dept

While you would think this position exists at multiple agencies (NSA, FBI, CIA, the NYPD), it's never been captured in stark black-and-white. Morgan Smith, reporter for the Texas Tribune, recently tweeted out a photo of a rejected FOIA request. A rejected FOIA is not necessarily newsworthy. But it is when it's been rejected by someone bearing the unlikely title of "FOIA Denial Officer."

Here's to transparency in job titles! #foia pic.twitter.com/x3nxnDL29a

— Morgan Smith (@MorganSmith) August 12, 2014

Taylor D. August, of the Dept. of Education's Office for Civil Rights, is also a FOIA Denial Officer. Considering the government's general antipathy towards transparency, you'd think several agencies would have a full-time request denier on staff. But while many agencies spend more time stonewalling and denying requests, only the Dept. of Education actually has designated employees on hand solely to reject requests.

A look at the DOE's FOIA FAQ gives us the first clue:

10. Who has the authority in ED to withhold documents (in part/whole)?

The FOIA Officers, the Office of Inspector General and the Regional FOIA Denial Officers have the authority to withhold documents.

It appears this agency is extremely well-equipped to handle numerous rejections. Three tiers of rejection are available to requesters, running all the way up to the OIG. There's no reason given as to why the DOE would need regional "denial officers," but this position traces back to 2006.

In a section titled (of all things) "Customer Service," the DOE details its FOIA response automation, which routes through the Office for Civil Rights. Citing the "significant number" of requests it receives (at that point averaging around 900 per year), the agency detailed its efforts to keep up with the paperwork.

To further customer service with respect to FOIA and Privacy Act requests, OCR has been a significant participant in the Department’s initiative to automate case management under these laws. Executive Order 13392, “Improving Agency Disclosure of Information,” issued on Dec. 14, 2005, emphasizes the need for more efficient and effective processing of FOIA and Privacy Act requests.

What most of us would believe was an order intended to increase the release of responsive documents, the DOE read it as an indication it wasn't rejecting requests efficiently enough.

In addition, in FY 2006, consistent with Executive Order 13392, OCR established new FOIA procedures, including delegation to the 12 OCR office directors of the authority of FOIA denial officers. This allows FOIA requests to be processed in a more efficient and timely manner, and establishes clear accountability for FOIA processing.

As of 2006, the DOE had 12 more officials dedicated solely to rejecting FOIA requests than all other government agencies combined. (Unofficial numbers obviously impossible to obtain, much less verify, but the term "FOIA denial officer" produces search results that indicate only the DOE has such a position.)

More details on the "Denial Officers" can be found in the agency's FOIA policies and procedures (embedded below.) Here's the definition of the term:

Denial Officers. The FOIA Officers, the Secretary's Regional Representatives, or officials designated by them (Regional FOIA Review Officers), and the Office of Inspector General (OIG) who are authorized to withhold records, in whole or in part, that fall within one (1) or more of the nine (9) exemptions or three (3) exclusions of the FOIA.

Initial determinations are made by regular FOIA officers who look for possible withholding exemptions and consider fee waivers. This is handled regionally and requests possibly eligible for rejection are passed on to one of the 12 regional denial officers.

In each instance in which it is recommended that record(s) or portion(s) thereof be withheld, carefully separate materials to be withheld from those to be released, redact (e.g., remove) all exempt information from the records, and forward a copy of the redacted materials, along with an unredacted version for comparison, to the appropriate denial official. Indicate where in the records the redactions occur and why the relevant exemption(s) apply;

In each instance where "no responsive records" are located, forward (a) a memorandum to the appropriate denial official describing with particularity what records (both electronic and hard copy) were searched, search times (differentiating between computer search times and manual searches since there is a different fee rate assessed for each of these searches), and who conducted the search, and stating that the search results were negative together with (b) a draft denial letter to the requestor to be signed by a FOIA Officer;

Denial officers will always be the be the bearer of bad news.

If the denial official agrees with the recommendation to deny the request, the denial official notifies the requestor in writing of the decision to withhold the information, in whole or in part, and informs the requestor of his/her appeal rights.

However, the denial officer isn't solely limited to writing rejection letters. He or she can also push back.

If the denial official disagrees with the recommendation to deny the request, he/she notifies the FOIA Coordinator and the PO Action Office and directs the FOIA Coordinator to provide the records to the requestor.

At which point, the requester receives the responsive documents thanks to a denial officer, but from someone whose title is less resolutely negative. As much fun as it might be to press the REJECT button, denial officers will never know the joy of making a requester happy. It's a thankless job with a brusque title… unless you're the sort of person who enjoys doling out rejection or simply takes pride in your work, no matter what that work might mean.

It seems odd that the DOE would stand alone in its creation of a FOIA Denial Officer. So many government agencies are more than happy to reject request after request (and appeal after appeal), but none have been so brutally honest as to create a position solely for this purpose. The DOE's system may actually be more streamlined than those at comparable agencies, but only the DOE has the strength of character to let requesters know that a fully and specifically trained expert is behind their request's rejection.

Filed Under: accountability, department of education, foia, foia denial officers, taylor august, transparency

Copyright Alliance Attacks ChillingEffects.org As 'Repugnant,' Wants DMCA System With No Public Accountability

from the stop-publishing-legals-forms-and-sworn-statements! dept

Sandra Aistars of the Copyright Alliance issued a statement during the recent DMCA-related hearing in front of the House Judiciary Committee. As was noted earlier, a bunch of effort was made to turn the "notice and takedown" system into a "notice and stay down" system, and weirdly, the word "free" was thrown about as if it was synonymous with "infringement."

Her statement details the shortcomings of the DMCA system from the expected position, citing the personal travails of creators like Kathy Wolfe, who for some reason has chosen to spend half her profits battling infringement. In general, it painted a bleak picture for future creativity, claiming that unless infringement is massively curbed, creators will stop creating. (There seems to be no place in this argument about the lowered barriers to entry, and the swell of creation that has enabled.)

But where her statement really goes off the rails (even for the Copyright Alliance) is with the attack on the popular copyright notice clearinghouse, Chilling Effects.

The activities of chillingeffects.org are repugnant to the purposes of Section 512. Data collected by high-volume recipients of DMCA notices such as Google, and senders of DMCA notices such as trade associations representing the film and music industries demonstrate that the overwhelming majority of DMCA notices sent are legitimate, yet the site unfairly maligns artists and creators using the legal process created by Section 512 as proponents of censorship. Moreover, by publishing the personal contact information of the creators sending notices (a practice which Chilling Effects only recently discontinued), it subjects creators to harassment and personal attacks for seeking to exercise their legal rights. Finally, because the site does not redact information about the infringing URLs identified in the notices, it has effectively become the largest repository of URLs hosting infringing content on the internet.

How publishing an unaltered takedown notice "maligns" the sender isn't explained. All Aistars says about it is that it's "unfair" because the site name links takedown notices with "censorship." But she glosses over the DMCA's status as the go-to tool for censorious entities -- something's that cheaper and easier than hiring a lawyer to draft a C&D.

She also glosses over the fact that the site is purely voluntary and far from comprehensive. In trying to paint the entire DMCA process as deeply flawed (which it is, but not in the ways she claims…), Aistars cordons off the "Google" side of the internet and attempts to portray it as harmful to creators… by doing exactly what they've asked it to do.

Her argument (if it can even be called that) makes as much sense as those griping about the fact that YouTube notes the party issuing the takedown when it grants requests to remove infringing videos. According to those advancing the "it's not fair" argument, this information is irrelevant and only serves to make rightsholders "look bad." Well, if everything about the statement posted on the deleted videos is true, why is there so much complaining? You don't like the way the facts were delivered?

As for the claims of being harassed for issuing takedowns, those who issue bogus takedowns deserve whatever they get. Legitimate takedowns are generally free from abuse. And if legitimate takedowns are resulting in "harassment" and "criticism," those siding with Aistars need to ask themselves why they care about the opinions of infringers.

Redacting the links makes no sense either. Infringers who use Chilling Effects as a piracy "address book" are probably so far down the scale as to be completely nonexistent. Not only is it a highly ineffective way to infringe, but, as noted above, Chilling Effects is purely voluntary and far from comprehensive.

It seems Aistars (and others) want a powerful anti-infringement tool but none of the responsibility that comes with it. Takedowns should just be honored (and content should "stay down) and filed away in the back of a cabinet somewhere. The public apparently isn't a stakeholder in this particular discussion (as is usually the case in IP-related debates). The Copyright Alliance is stumping for opacity, something that would be warmly received by censorious entities and shoddy copyright fighters whose mass takedowns have taken down tons of legitimate content over the years.

Filed Under: accountability, chilling effects, copyright, dmca, notice and takedown, takedowns, transparency
Companies: chillingeffects.org, copyright alliance

John McCain Now Pretends He Didn't Say Keith Alexander Should Resign; Gives Nonsensical Explanation

from the accountability-how? dept

We just wrote about Senator John McCain calling for NSA boss Keith Alexander to either be fired or resign -- though for the exact wrong reasons. Specifically, he wants him fired for letting little people like Ed Snowden and Chelsea Manning have access to important documents and also for having embarrassing facts (like that we spy on McCain's friends in high places, like Angela Merkel) revealed. Let's be clear. Here is McCain's exact quote:

SPIEGEL: Should Keith Alexander, head of the NSA, resign?

McCain: Of course, they should resign or be fired.

While a bit odd that McCain would refer to Alexander as plural, it's hard to say that he didn't say that. But, guess what? His press people are now trying to walk this back, and saying that McCain did not say what he actually said.

“Senator McCain believes that there needs to be accountability for the Snowden leaks, but he is not calling for the resignation of General Alexander, who is retiring soon,” McCain spokesman Brian Rogers told POLITICO. < ?i>

Actually, he did call for his resignation (or firing). Quite directly, as noted above. Separately, just what kind of "accountability" is he calling for? In the interview, he clearly said those responsible should be fired or resign. Of course, perhaps someone reminded him that Alexander is an "important person" like himself, Merkel and other top politicians, and he realized that "accountability" only applies to the little people.

Filed Under: accountability, ed snowden, john mccain, keith alexander

NSA's Latest Euphemism For Security Lapses That Allowed Snowden Leaks: The Leaks Were 'Masked By His Job Duties'

from the in-other-words,-it-was-not-secure dept

We've already covered a few times how, despite the NSA's (and its defenders') repeated claims that its systems can't be abused because of its vaunted "auditability," the fact that Snowden got access to all those documents without anyone being able to figure out what he took shows that the audits don't work. It became clear that the audits appear to only apply to analysts, but not sys admins like Snowden, and there are around 1,000 of those, leading to the obvious question: how many others also got classified info without anyone noticing it? One officials has tried to make it out that Snowden was "too brilliant" to work for the NSA, since he covered his tracks. While every indication is that Snowden was, in fact, quite good at his job, and able to cover his tracks well, it's not at all clear that what he did was particularly unique or special.

In fact, the latest spin from the NSA is to claim that he wasn't that "gifted" at all, but rather than the leaks were "masked by his job duties."

"His job was to do what he did. He wasn't a ghost. He wasn't that clever. He did his job. He was observed [moving documents], but it was his job."

That report also quotes the NSA's CTO as saying that now, about four months later, the NSA finally has a "good idea" of what Snowden got:

"We have an extremely good idea of exactly what data he got access to and how exactly he got access to it," says the NSA's chief technology officer, Lonny Anderson.

Only took four months. Of course, all of this, once again, raises all sorts of questions. It shows that the NSA's audits were basically non-existent for a very large number of people. It shows that the NSA has almost no legitimate way to go back and see if there were widespread abuses among others with similar "job duties." If it was his "job" to do these kinds of things, and there was no real way to track him without many months of work (and even then, only to the degree that the NSA has a "good idea" of what he did), then there's no real accountability there at all. At this point, it seems reasonable to use this to assume that the NSA's systems aren't even remotely secure, and have regularly been abused, without anyone at the NSA even knowing about it. After all, the NSA itself is admitting that someone doesn't even need to be "that clever" to abscond with tens of thousands of classified info on top secret programs and leave an almost non-existent trail.

Filed Under: accountability, audits, ed snowden, lonny anderson, nsa, nsa surveillance

Shooting The Messenger: SF Fire Dept. Officials Attack Firefighter, Helmet Cam After Asiana Airlines Crash

from the the-camera-isn't-the-problem dept

One of the firefighters responding to the Asiana Airlines crash wore a helmet-mounted camera to the scene. This wouldn't have been a big deal (many firemen wear helmet cams), except for the fact that a fire department truck ran over and killed an injured crash victim, 16-year-old Ye Meng Yuan. Despite the fact that this was an accident (Ye was completely covered in foam and no one knew she was there until she was run over), San Francisco Fire Chief Joanne Hayes-White felt this could have been avoided by not having a camera on the scene.

Of course, she doesn't phrase it that way, but she is scapegoating the camera (and the cameraman) for what was caught on film.

San Francisco's fire chief has explicitly banned firefighters from using helmet-mounted video cameras, after images from a battalion chief's Asiana Airlines crash recording became public and led to questions about first responders' actions leading up to a fire rig running over a survivor.

Chief Joanne Hayes-White said she issued the order after discovering that Battalion Chief Mark Johnson's helmet camera filmed the aftermath of the July 6 crash at San Francisco International Airport. Filming the scene may have violated both firefighters' and victims' privacy, Hayes-White said, trumping whatever benefit came from knowing what the footage shows.

"There comes a time that privacy of the individual is paramount, of greater importance than having a video," Hayes-White said.

Given the timing of the "new" ban on cameras, Hayes-White's decision was met with incredulity, both from within the fire department and without, most notably from the Ye family's lawyer.

"Why would anybody not want to know the truth?" he told the Chronicle. "What's wrong with knowing what happened? What's wrong with keeping people honest? That's what the helmet cam did, in effect, in this case."

Hayes-White, however, pointed to the fact that the ban was already on the books.

Hayes-White said Friday that helmet cameras were covered by a 2009 ban on video cameras "in any department facility." The Fire Department could be held liable for violating federal medical-privacy laws if firefighters use the footage in unauthorized fashion, the chief said.

Hayes-White also went after Battalion Chief Mark Johnson for filming the footage.

“He violated the rules,” department spokeswoman Mindy Talmadge said. “He is not allowed to use any kind of recording device and not allowed to film anyone without their permission.”

This statement was made even as Hayes-White equivocated and promised to "discuss" lifting the camera ban. Tom Connor, the firefighters' union rep, questioned the language in the camera ban, which prevents the use of cameras in a "departmental facility."

“So now they’re saying that the airport is a departmental facility? That the streets of San Francisco are a departmental facility?” O’Connor said.

Hayes-White explained that away, too.

Hayes-White said her 2009 ban on video cameras in facilities was meant to include emergency scenes...

Meant?

Hayes-White should take a long look at what is and isn't permitted before shooting the messenger. Mark Johnson filmed the scene, including his call to move in a foam sprayer, a decision which proved to be fatal for Ye. Rather than cover this up and dump the footage, he voluntarily turned over his recording so it could be used in the investigation. Johnson had a lot of options, considering he was using an unapproved personal camera, but he chose to aid investigators who were looking into his actions at the crash scene. Instead of being respected for his honesty and his contribution to the investigation, he's now facing possible disciplinary action for recording the scene, all because the fire chief would apparently be happier if Ye's death was relegated to the controlled narrative of a back-of-the-filing-cabinet incident report.

Hayes-White keeps stressing "privacy," but it's not privacy she looking for, it's control. While the ban of helmet cameras may have some privacy implications, nothing about the timing, actions or statements made indicates this is really about privacy. Something happened that shouldn't have and the chief's first instinct is to attack the source: Mark Johnson and his "unapproved" helmet cam.

Fortunately, the fire department is planning to revisit its 2009 camera ban, prompted by the backlash to its earlier statements. There's no word whether the disciplinary actions levied against Johnson will be rescinded and the statement itself is loaded with ambiguous terminology.

Department spokeswoman Mindy Talmadge told reporters on Monday that the battalion chief's actions violated a 2009 prohibition on unauthorized recordings.

But she says that in recognition of the valuable information the video provided, the department would revisit the issue and possibly update the policy. Talmadge says there is no timeline for completing the review.

So, the SF Fire Department can expect a possibly updated policy at some point between now and never. This isn't exactly a turnaround for the department -- more of a conciliatory sidestep. If nothing else, footage shot by responding units can be used as a training tool. More importantly, it can be utilized as an impartial witness.

While Hayes-White and Talmadge are right to be concerned about safety, the answer is to put policies in place that protect citizens, not issue (or reinforce) blanket bans in order to protect the fire department.

Filed Under: accountability, asiana crash, fire department, helmet cameras, joanne hayes-white, mark johnson, sffd, sfo

The Real Reason Janet Napolitano Doesn't Like Email -- Accountability

from the don't-make-me-back-up-my-statements dept

We've already detailed the cognitive dissonance created by DHS head Janet Napolitano's statements on email usage. Last September, she blithely pointed out that she doesn't use email "at all," and in fact, "avoids many online services." She went on to say that some would call her a "Luddite" and seemed to present the incongruous situation as comical. Hilarity ensued. Powerful government official says, "What, me internet?" LOLS at 11.

So, we all had a good, if disbelieving laugh at her our own expense (we're still paying her salary), and Janet Napolitano went back to not checking the email account she doesn't have and not internetting with any regularity -- the sort of thing that might be considering endearing if it weren't for the fact that so many politicians openly brag about their lack of computer skills, while simultaneously crafting, amending, voting on a variety of computer-related laws.

Napolitano broached the email subject again recently at a breakfast organized by the Christian Science Monitor. She restated her view on email as a non-essential annoyance, rather than, say, an extremely useful communication tool.

Ms. Napolitano said she cut the email cord while governor of Arizona “because I was just getting — you know, you get hundreds and hundreds of things all the time.”

In her current job, “which has a hundred thousand different things that happen on any given day, [not using email] allows me to focus on where I need to focus,” she added.

I can understand feeling overwhelmed by incoming email, but many other people have to deal with the overflowing inboxes and, while they may not like the tedium of dealing with the incoming traffic, they also realize it's an important part of their job and a byproduct of changes in the way people communicate. I'm also fairly sure Napolitano has a staff at her disposal and the power to delegate much of email busywork to others.

So, there's the "it's too much" angle. But her followup comment seems to indicate the real reason she's abandoned email.

“I also don’t like the process where people could send you an email, then say, see, you were told, or you know this. And then it comes back two years later to say, hey, you got this email — among the thousands you get every day.

“I want to be a little more selective on how that goes,” she concluded.

Oh, I see. Napolitano doesn't want to be accountable. That's interesting bullshit. Once again, she has a staff to use. She has any number of resources available to help her organize her incoming mail. She has a lot more tools at her disposal than most, and yet she'd rather just turn the switch to OFF in order to avoid any accountability for statements made, answers given or issues ignored.

Cutting off a heavily-used communication form isn't being "selective." It's willful exclusion, and it places Napolitano's self-interest above the interests of the public and the responsibilities of her position. Would anyone cut her any slack if she had announced she took her phone off the hook back when she was governor of Arizona and STILL HASN'T REPLACED THE HANDSET? "I don't like this process where people call you, then say you were told or you know this. And it comes back two years later, hey, we spoke on the phone -- among the thousands of phone calls I get every day." Would that be acceptable?

There are people out there who think Napolitano should be excused for abandoning email. I would imagine many of these people find this form of communication just as tiresome as she apparently does, but their personal antipathy (and hers) doesn't excuse this sort of exclusionary behavior. Many people hate the demands this accessibility places on them. But they just can't ignore it, especially if they're in the sort of position Napolitano's in.

It was already irritating when she was just doing her "I'm a Luddite LOL" schtick. By openly admitting she's not thrilled that stored electronic communication can be used to hold her responsible for statements or actions, she's crossed the line from obtuse into contemptuous. Our leaders are supposed to be accountable for their actions, and yet many of them do everything they possibly can to avoid it. The DC motto has become "With great power comes selective responsibility," and Napolitano's statement is sadly, unsurprising.

Filed Under: accountability, government, homeland security, janet napolitano, transparency