Uber & Lyft As An Extension Of... Or Replacement For... Public Transit

from the well-that's-interesting dept

Lyft just announced an interesting partnership with MARTA, the Metropolitan Atlanta Rapid Transit Authority to basically help get more people to and from MARTA stations. It's an interesting approach to try to help make public transit more convenient:

Partnering with transit agencies like MARTA is a core part of our vision to build a sustainable transportation network. By helping fill the first and last miles between a passenger’s home and a MARTA station, we’re making it easier than ever to ride transit. We believe that when transit is within reach of everyone, our cities are more liveable, connected, and prosperous.

Of course, it's not entirely clear what's really involved in the "partnership" beyond marketing. Yes, Lyft is offering discount vouchers, but only for 10 rides. And you could already use Lyft or Uber to do this without the partnership.

Where this potentially gets more interesting is the decision of Dublin, California, to look to Lyft and Uber as a substitute for public transportation by subsidizing rides via those companies instead of taking a bus.

In a first for California, a public transit agency next month plans to begin subsidizing fares of people who take private Uber and Lyft cars to local destinations rather than riding the bus.

Passengers ordering Uber or Lyft car trips within two test areas of Dublin will be eligible to get door-to-destination service at a big discount under a partnership between the ride-hailing companies and the Wheels public bus system in Dublin, Alameda and Pleasanton.

The local transit authority is even suggesting that this might change the way they set up routes and serve certain communities. In fact, they've already killed off one (little used) bus route, suggesting that this new partnership can help replace that route more efficiently.

I can see why this might annoy some people -- and certainly those who don't trust big private companies like Uber and Lyft are going to complain. Similarly the bus driver's union rep is apparently pissed off. But this is still a really interesting experiment. If it allows municipalities to truly offer better, more efficient transportation and it's cheaper overall, then is it really a problem that some companies might also make some profits from it? It will be interesting to see how this experiment in Dublin works out and if other cities follow suit. And it seems like a much better idea than what's happening in Massachusetts, where the government has instituted a special tax on Lyft and Uber... and giving that money to the taxi companies who didn't innovate.

Filed Under: atlanta, california, car hailing, dublin, marta, massachusetts, public transit, ride sharing
Companies: lyft, uber

Government Lawyers Think Open Records Reform Proposal Hands Over Too Much Power To The People

from the more-darkness-and-denials,-please dept

The state of Massachusetts has some of the worst open records laws in the nation, which have not been updated since the 1970s. The main problem is the statutes provide no deterrence for abusive behavior by government agencies and very little in the way of recourse for public records requesters.

The laws -- as they stand now -- operate on the presumption of secrecy, which is completely antithetical to the purpose and spirit of the statutes. There's really no reason the state's public record laws should contain this much secretive bloat. Here's Allison Manning of Boston.com detailing just one of the many problems with the laws.

Our public records laws are abysmal, especially compared to those elsewhere.

There are 19 pages of exemptions alone in the 60-page guide to Massachusetts public records. How does this supposedly progressive state have such backwards open government laws?

What hasn't been shielded from the public by existing exemptions has been given a fresh coat of opacity by government officials supposedly tasked with ensuring maximum public access.

[A]fter the Globe challenged State Police for withholding the arrest record of one of its troopers, [t]he state’s supervisor of public records, Shawn Williams, ruled in favor of the police, finding that police had “the discretion to withhold records” that were covered under rules meant to protect criminal rap sheets from being misused; such discretion meant that the Globe could not obtain the names of the five Massachusetts police officers charged with drunken driving. A far more rational interpretation of the criminal-records rule would protect information about criminal proceedings, not the arrest records themselves. After all, the criminal-records law was never intended to open up a memory hole to conceal unflattering information about the police.

The state has also withheld records from a 63-year-old murder case, claiming (via the Secretary of State) that the investigation was still ongoing, despite police representatives stating they weren't pursuing any new leads and the lead suspect having expired years ago.

The state's House pushed through a set of open records law reforms late last year. It was a decided improvement (what wouldn't be?), but advocates still expressed concern the legislation didn't go far enough. Like many reform efforts, it started out robust and full-figured but was hacked to death by legislators and agencies who preferred to operate in as much darkness as possible.

“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”

“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.

The Senate has introduced its version of the reform bill, and it's already receiving complaints from government entities which feel it swings the needle too far in the direction of accountability. The Massachusetts Municipal Lawyers Association doesn't like much of the Senate's proposed legislation and has issued a five-page memo to its members detailing its concerns. (h/t Michael Morisy)

For one thing, the MMLA wants government agencies to be given the discretion to ignore filers if they believe someone is requesting records too frequently, or simply requesting too much.

S. 2120 provides no protection to a municipality from the frequent and harassing requestor. Considerable staff time is wasted in responding to overly broad and frequent requests. The municipality should not have to respond to someone abusing the system.

The memo does not detail how agencies would determine what constitutes "abuse" of the system, nor what they would have to offer as proof that they are being "harassed" by an open records requester. It appears the MMLA would prefer to have this left solely to the discretion of responding agencies, giving them one more way to refuse to hand over documents.

The MMLA also doesn't like the fact that the legislation would dial back the amount of money agencies can charge requesters or that it would make requests fulfilled in under a certain amount of hours automatically free. It believes all efforts made should be billed to requesters no matter what.

Considering state agencies are well-known for their extreme reluctance to respond to requests in a timely fashion, it's rather rich to see this government body demand that open records requesters have as little time as possible to pursue litigation over delayed responses or refusals.

There is no time period or statute of limitations within which the requestor must appeal to court. As in the House bill, there should be a 30-calendar day time period, from the date of receipt of the SPR’s order, within which a civil action must be filed, whether by the requester or by the municipality.

Statutes of limitations are generally in the one-year range. The MMLA wants one month. The singular purpose of this demand is to allow the state to dodge as much litigation as possible. Thirty days to engage representation and file a lawsuit is an incredibly tight time frame. Open records requesters had better hope everyone's schedule is clear. The MMLA may look like it's acting in fairness when it applies the same time limit to government agencies, but it doesn't point out the head start they'll have: in-house representation.

Other parts of the MMLA memo veer into sheer vindictiveness, as if open records requesters were a pestilence inflicted on honorable government employees. The Senate's bill -- having just been introduced and still sheltered from the carving knives of transparency opponents -- contains an automatic fee award for open records requesters who prevail in litigation against the government. In the interest of "fairness," the MMLA wants this to be a two-way street.

Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.

The MMLA's take on this conveniently ignores the truth of the matter: the only reason this stipulation exists is because state agencies have proven they cannot be trusted to comply with the law. The longstanding problem with open records laws everywhere in the nation has never been an epidemic of frivolous or overburdensome requests. It has been the ongoing exploration of the outer limits of open records laws by dozens of government agencies who have repeatedly refused to reply to requests in a timely manner. Agencies ignore requests, set up massive "paywalls," abuse exemptions, knowingly perform inadequate searches for records and otherwise do anything they can to avoid transparency.

The MMLA wants fee shifts to affect requesters -- a move that would do nothing to improve the state's horrendous laws or response track record. It's just a form of bullying being sold as fairness. The entity with deeper pockets and control of the records wants to have the right to smack around citizens for daring to ask for the "wrong" information.

Filed Under: accountability, massachusetts, open records, public, public records, reform

After A Decade Of Waiting For Verizon, Town Builds Itself Gigabit Fiber For $75 Per Month

from the if-you-build-it-they-will-come dept

Like many broadband black holes, Western Massachusetts has spent years asking regional duopolies for broadband. Towns like Leverett, Mass. literally took to hanging signs around town begging Verizon to install even the slowest DSL. Of course Verizon not only refused to install Western Massachusetts, they froze deployment of effectively all FiOS fiber upgrades, leaving a large number of towns and cities (including Boston, Baltimore, Alexandria, Buffalo) without next-gen broadband -- or in some cases broadband at all.

But, unlike many areas, Western Massachusetts decided to do something about it. In 2012 Leverett voters approved borrowing $3.6 million -- or roughly $1,900 per resident -- to deliver fiber to 800 premises. The initiative would be part of the Massachusetts Broadband Institute's MassBroadband 123 "middle mile" network, a stimulus-funded project that spent the last few years running 1,200 miles of fiber-optic network connecting 123 communties. That project feeds the town of Leverett's new, community owned ISP LeverettNet, giving a town that once didn't have DSL gigabit speeds for $75 a month:

"LeverettNet currently charges $24.95 per month for an internet-only, 1 gigabit per second connection. There’s also a $49.95 monthly cost to cover the maintenance for the Leverett Municipal Light Plant (LMLP), the governmental entity that builds and operates the town’s fiber infrastructure, bringing the cost to about $75 for internet-only subscribers, a cut above Google Fiber’s $70 monthly price for its 1 gigabit service.

However, the Leverett Broadband Committee notes that the LMLP maintenance costs are divided between the number of subscribers, and could be lowered as more households subscribe, meaning it could one day reach a price that’s equal to or less than Google Fiber."

And while most incumbent ISPs are abusing the lack of competition to raise rates in January, Leverettnet (alongside Crocker Communications, which helps run the ISP business itself) has announced it's dropping the cost of broadband and phone services starting next month. Uptake rate has been phenomenal, with eighty-one percent of households signing up for service. And what's more, despite all of the hand-wringing on some fronts (read: AT&T, Verizon, Comcast) about community broadband being an irresponsible fiscal nightmare, locals will actually see lower taxes than expected:

"The median residence will also see a lower-than-anticipated impact on property taxes, with $219 per year for the financing bond to build the network, much lower than the original estimate of close to $300 per year. The light plant, along with Holyoke Gas and Electric, which provides network operation and maintenance, and Crocker Communications of Greenfield, providing the high-speed Internet and phone service, collaborated to review the finances and usage and determined that the adjustments could be made."

Granted in twenty states, your town or city wouldn't be able to do this, since incumbent providers have quite literally paid state legislatures to write laws banning this kind of effort, even if incumbent ISPs have refused to service the area. This is also the sort of thing Presidential candidates like Marco Rubio hope to put an end to, without offering an alternative solution for broadband coverage gaps. But as Leverettnet shows, there's an obvious role for private/public partnerships in shoring up broadband coverage gaps -- especially in areas incumbent providers couldn't care less about.

Filed Under: broadband, gigabit internet, leverett, massachusetts, municipal broadband
Companies: leverettnet

Law Enforcement Wants To Be Able To Seize The Cars And Homes Of People Convicted On Child Porn Charges

from the good-intentions,-but-some-bad-implementation dept

Some odd news out of Massachussetts. Legislators and law enforcement are teaming up to push legislation that would give agencies permission to seize and sell property belonging to people convicted of sexual crimes against children.

A local sheriff and state representative are awaiting the review of a bill that would allow prosecutors at the conclusion of a child-exploitation case to seize and sell assets used by predators, using the proceeds for victim rehabilitation and therapy, education programs for children, or bringing the funds back into law enforcement.

Middlesex Sheriff Peter Koutoujian and Rep. James Arciero testified Tuesday before the Joint Committee on the Judiciary on the House bill. They are waiting for a favorable recommendation to move the bill forward.

"We feel that it's important to make sure that we have a zero tolerance when it comes to protecting our children," said Arciero, a Westford Democrat.

The bill would allow the court to seize and sell items, excluding hard drives, that are used to entice minors or to produce or disseminate child-pornography crimes. The proceeds of the sales would fund programs for Internet safety education, victim rehabilitation and therapy, and the purchase of technical equipment for law-enforcement agencies.

On one hand, what's being discussed here isn't the far more nefarious civil asset forfeiture, in which property is deemed "guilty" and seized without corresponding convictions. This would be criminal asset forfeiture, which can only move forward once the defendant is convicted.

The resulting funds would be narrowly dispersed, with some going to participating agencies but the bulk of it directly to the special investigative units that handle these crimes.

But there are some concerning aspects to it, not the least of which is the use of the phrase "zero tolerance," which tends to shut down all further critical thinking by those uttering it. For one, the list of items that can be seized is fairly broad. Even though the article notes hard drives will not be permitted to be sold, the statements issued don't specify whether other storage media will be put on the "not for resale" list. In fact, it appears other devices (cameras, cellphones) that formerly stored illegal material will be sold to the general public.

In front of the Joint Committee on the Judiciary, Koutoujian testified, "Massachusetts authorities can already obtain warrants and seize cameras, computers, cellphones, vehicles used by perpetrators in child pornography and enticement cases. But this legislation would allow prosecutors at the conviction of the case, with the court's permission, to dispose of the seized property and generate funds that could be put into three narrowly tailored areas."

While officials claim the devices will be "wiped" before resale, it's not difficult to imagine this eventually leading to someone ending up with an auctioned item that still contains illicit material. That's just human nature. Sooner or later, the wipe job won't be done as well as it should have been. Or at all. That alone is problematic.

Further problems present themselves in the expanded list of seizable/sellable items. Law enforcement will also take vehicles "involved" in "enticement." A narrow reading would only allow the seizure of a vehicle that has been used in the commission of the crime. But the bill doesn't lend itself to a narrow reading. It would also permit the seizure of property in "dissemination" cases, which means little more than using a torrent service to obtain the illegal material. Downloads and uploads are intertwined, making every illicit file sharer a participant in "dissemination" of child porn, even if that person did not create the images being trafficked or specifically intend to distribute them further.

So, this bill could be used to seize cars from people who've never molested a child, much less used their car to "entice" a child into participating in illegal sexual activity.

The bill also provides for the seizure of houses and bank accounts, using this same tenuous connection. While it is not uncommon for some forms of property to be seized as a means of providing retribution to victims of criminal acts, it's not always applied to criminals who have only viewed child pornography. Restitution orders have been granted to those whose pictures have been distributed, but this hasn't been explicitly tied to the forfeiture of assets.

The bill would effectively cut victims out of the loop, routing seized assets to the agencies participating in the arrest and prosecution. The only caveat that may allow for victim restitution is the fact that the agency performing the seizure needs to seek the court's permission before selling seized items and distributing funds.

The bill does provide a safety valve for families who are unaware of a family member's criminal behavior, hopefully preventing them from losing their houses or vehicles because of another person's activities. But it's very limited. Law enforcement wouldn't be able to seize these assets without it being shown that other owners of these items were aware (or should have been aware) of the defendant's behavior. But it doesn't say where the burden of proof lies, suggesting it might be wrapped up in the petition for property return process, which would place it on the other owners of the property, rather than on the state. (Other homeowners can also ask the court for a "homesteading" exception to prevent residences from being seized, which is probably a better route than challenging the seizure head-on. But this exception doesn't apply to other seized property like vehicles or bank accounts.)

It's also limited solely to owners, so spouses/children/relatives who aren't listed on titles can't challenge the seizure. It also sets a very low bar for government agencies when it comes to "proving" other property owners were "aware" of illegal behavior.

Proof that the conveyance or real property was used to facilitate the unlawful dissemination of visual material or the enticement of a child under the age of 16 on 3 or more different dates shall be prima facie evidence that the conveyance or real property was used in and for the business of unlawfully disseminating such visual material or enticing a child under the age of 16.

Houses are where computers are almost always found and one resident torrenting child porn on three different dates is apparently all it will take for state agencies to render unaware family members homeless.

While I can appreciate the Sheriff's complaint that funds seized are often routed towards the expensive upkeep of more glamorous drug interdiction units, SWAT teams and "task forces," this proposal still has a lot of flaws that need to be addressed. The narrow set of criminal acts it applies to, along with the conviction requirement, limits the potential abuse. But adding vehicles and houses to the list of seizable goods is problematic, especially when the underlying crime may be nothing more than possession of illicit images and the use of file sharing software.

Unfortunately, none of these questionable elements can fully be explored until the law has gone into effect. The bill still needs work, especially in terms of determining other property owners' culpability. Because, seriously, something happening three times in the same location is somehow "proof" that other property owners were aware of criminal activity -- criminal activity that is hidden from everyone because it's morally unacceptable everywhere?

Filed Under: asset forfeiture, asset seizure, child porn, criminal asset forfeiture, homes cars, massachusetts

Cops Dodge Warrant Requirement By Grabbing Two Weeks Of Data, But Entering Only 6 Hours Of It As Evidence

from the too-clever-by-much-more-than-half dept

Today's novel legal argument: take a ruling on cell site location info warrant requirements and make it fit the warrantless data haul obtained earlier by submitting only the "quantity" the court has previously OKed.

To get a sense of where we're going with this, here's a bit from the opening paragraphs of the opinion:

The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.

The CSLI was sought twice. This is the first sign that something's not quite right. Historical cell site location information doesn't change. That's the thing about history. And yet, the police obtained it twice: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).

You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state's interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.

The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week's worth using only a subpoena. But the officers had an angle…

In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.

That's a very opportunistic reading of the court's intentions. If the police were so inclined, they could subpoena a year's worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.

The court points out the flaw in this logic, which, let's face it, the cops knew all along.

It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.

The warrant requirement is for the "asking," not the "telling," to put it elementary school terms.

Fortunately for the police, the twice-obtained CSLI didn't harm their case too much. The defense argued that other evidence -- including statements made to the police -- should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.

The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn't overly-reliant on the already-acquired CSLI info. The court doesn't offer any speculation as to what actually happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.

While this obtain-twice, admit-once method of cell site evidence acquisition didn't pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant.

Filed Under: 4th amendment, adam bradley, cell site location info, csli, data, jason estabrook, location info, massachusetts, seizure, warrants

Massachusetts Supreme Court Strikes Down Unconstitutional Law Restricting Political Speech

from the and-The-Man-shows-up-to-declare-the-law-perfectly-fine! dept

If anyone thought a bad law was going to keep Massachusetts' politics out of the mud, the state's Supreme Court has given campaigning parties official permission to get waste deep in the sludge.

The law in question seemed like a good thing -- an attempt to put political campaigning on higher moral ground. The problem is that it criminalized protected speech. So, even if you were won over by more polite politicking, the 1946 statute that made it a criminal act to publish certain false statements about political candidates was the sort of the sort of law that lends itself to abuse far worse than the lying it was put in place to prevent.

The origin of the court's unanimous overturning of the 1946 statute was a flyer published by a political action committee about an opponent. It included these phrases:

"Brian Mannal chose convicted felons over the safety of our families. Is this the kind of person we want representing us?";

"Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals. Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders"

"Brian Mannal is putting criminals and his own interest above our families."

Mannal was unhappy with the PAC's statements, so he invoked the nearly-seventy-year-old law to shut down his critics. He filed a criminal complaint and -- as one does in his position -- followed it up with a press conference stating his desire to put the author (Melissa Lucas) "behind bars." Lucas challenged both the charges and the law itself. As Lucas noted in her filings, Mannal's actions had chilled her protected speech by making any further statements from the PAC on Mannal possibly subject to additional criminal charges.

The state entered its own motions in the case, asking for the court to bypass discussion of the constitutionality of the statute. The court, fortunately, declined to do so. It notes in its opinion that ignoring this important question would only lead to further abuse of a questionable law.

The Commonwealth recites the familiar rule that we decline to consider the constitutionality of a statute that does not criminalize a defendant's conduct. See, e.g., Commonwealth v. Robertson, 467 Mass. 371, 381 (2014). Yet, in some contexts, resolving a case on narrower grounds may serve to perpetuate the chilling of speech protected by the First Amendment to the United States Constitution and art. 16, as amended by art. 77 of the Amendments.

As it points out, the constitutionality of this law is especially germane, given the type of speech it aims to restrict.

Assuming, arguendo, that § 42 proscribes only statements of fact as opposed to opinion and the statements at issue constituted opinion, a political candidate was nonetheless able to use those statements as the basis for an application for a criminal complaint (and ultimately for its issuance). The candidate then used the application as a political tool not only to discredit the statements but also to persuade the PAC to refrain from airing a political advertisement shortly before the election. Although Lucas filed a motion to dismiss the application, Mannal already had won the election by a narrow margin by the time of the probable cause hearing. Thus, even if the application had been dismissed, the damage was already done.

Dodging the constitutional question (as requested by the state) would only result in exactly this sort of thing returning to the courts in perpetuity, with no resolution in sight.

Importantly, this precise scenario is capable of repetition yet constantly evading review on the Commonwealth's theory that § 42 does not apply to the particular facts of a given case. This is so because anyone may initiate a complaint under § 42 and, in so doing, create lingering uncertainties of a criminal investigation and chill political speech by virtue of the process itself.

The decision points the state towards other legal remedies for noxious campaigning that would not tread on areas of protected speech, like fraud and defamation statutes. There's no reason for this particular law to exist when other remedies are available to handle unprotected speech. And, as for the protected speech, it can easily be countered by remedies available to every candidate from every party.

[T]he Commonwealth has not established that § 42 actually is necessary to serve the compelling interest of fair and free elections. Suppose, for example, that a candidate makes the following false statement at a pre-election debate: "I received the Congressional Medal of Honor." This constitutes (1) a false statement, (2) made about a candidate, (3) designed to aid that candidate win an election, and therefore a crime pursuant to 21 § 42. Such a result raises serious doubts about the constitutionality of § 42 in light of Alvarez, 132 S. Ct. at 2551 (striking down on First Amendment grounds Federal statute criminalizing false Medal of Honor claims). Alvarez teaches that the criminalization of such falsehoods is unnecessary because a remedy already exists: "the simple truth."

Furthermore, political figures generally have any number of outlets available to them to address false statements made by opponents -- more so than the average citizen. The court says what any good free speech advocate would when presented with the suppression of protected speech simply because Party A doesn't like what Party B says:

Courts in other jurisdictions have applied this same principle to conclude that statutes broadly suppressing false statements about candidates or ballot questions cannot withstand strict scrutiny for the simple reason that "[o]ur constitutional election system already contains the solution to the problem that [such statutes are] meant to address." Rickert v. Public Disclosure Comm'n, 161 Wash. 2d 843, 855 (2007) (en banc). That solution is counterspeech.

Attempting to lock up a political opponent isn't counter-speech. It's wielding the government's power for proxy censorship. And as such, this statute can't live up to the state's own Declaration of Rights, much less the First Amendment.

We conclude that § 42 cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the Commonwealth's interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system. For all of these reasons, we hold that § 42 is antagonistic to the fundamental right of free speech enshrined in art. 16 of our Declaration of Rights and, therefore, is invalid.

It's a solid win for speech, which means politicking in the state may now be uglier than it used to, but only in terms of words, rather than attempts to lock up political opponents. The word "politician" is often synonymous with "liar," so it's rather surprising this statute made it all the way to 2015 before being struck down. Legislators aren't really known for humoring laws restricting their words or deeds.

That the state would speak up in an effort to retain its power to limit the speech of its citizens is incredibly disheartening. Was it just putting up token resistance to maintain some sort of prosecutorial street court cred? Or did it truly want an unconstitutional law to remain unexamined, and allow its citizens to face potential jail time for certain kinds of political speech? Either way, it acted as an apologist for a truly terrible law and its terrible arguments in favor of limiting political speech are now part of its permanent record.

Filed Under: free speech, massachusetts, political speech

The Drug War Is Creating Problems Too Big To Fix

from the in-which-warning-signs-are-greeted-with-praise,-enthusiasm-and-blinders dept

David Colarusso, a public defender turned data scientist, has a fascinating post at Law Technology Today describing the many issues arising from the abusive activities of a single chemist at the Massachusetts state drug lab. The starting point of his post -- and his problems -- trace back a few years.

In 2012, it was discovered that a chemist working at the Massachusetts state drug lab in Jamaica Plain had been falsifying drug tests (e.g., claiming that samples contained narcotics without testing them and even adding cocaine to samples to get a positive result when prior testing came back negative). She had worked at the lab for nearly a decade, and these revelations called into question the outcomes in tens of thousands of cases.

Obviously, this sort of tampering means there are convictions waiting to be overturned. But two years later, little progress has been made. It isn't that the state is obstructing efforts to make the falsely-convicted whole again (there may be some of that, but Colarusso's post doesn't indicate there is), but that nearly a decade's-worth of bogus lab work potentially infects thousands of convictions. Narrowing down this list to those directly affected is an enormous task, one that Colarusso was tasked with making more manageable. Narrowing down "The List" to a single link in the evidence chain -- the drug receipt -- still returned far too many potential matches to be of use. Additional restrictions trimmed the possible matches a bit more, but still left far too many potential victims of the chemist's work.

Staff attorneys take only a small fraction of indigent cases. The majority are handled by private attorneys. So only a subset of defendants on The List would be in our client files. However, given The List contained nearly 40,000 names, this subset was still rather sizable. So we used some nice open source software to look for matches between our clients’ names and those found on the list (this involved some data wrangling in Python and Pandas along with the creation of a nice IPython Notebook or two). This gave us a rough list of clients on The List, and we used these names to create a list of their co-defendants.

The narrowing of the field only did so much. The List remained sizable, thanks to inconsistencies inherent in the system itself.

This gave us a rough list of clients on The List, and we used these names to create a list of their co-defendants. We then checked The List for the co-defendant names. Unfortunately, a lot of these were missing. If we assumed the same rate of missing names across all cases, it seemed The List was missing somewhere between 0 and 9,600 names. Wait, what? That’s right, thousands of potentially missing names. The uncertainty came from the fact that we had to match names. The List did not come with dates of birth, addresses, or Social Security Numbers—just names. So occasionally, we could not find a name we were looking for because the Commonwealth and CPCS disagreed on the spelling of a name or someone made a transcription error.

By this point in the investigation, the master list was still huge and it was obvious the list itself was missing hundreds of names, which meant hundreds of possibly wrongly-convicted citizens. The reality of this situation was this: to track down those missing names and to finally set the wheels of justice in motion, thousands of police reports would need to be read and cross-referenced against those on the master list. But who will do this? And with what funds? That's still unclear. It all depends on who feels justice should be served and who feels justice should be served, but only up to a certain dollar amount.

So, the problem -- which was one person in one lab falsifying thousands of test results -- has become something so unwieldy that it may never result in the exoneration of everyone chemist Annie Dookhan managed to wrongly put behind bars. The problem is too big to solve, and much of that has to do with the efficiency of drug prosecutions versus the much less efficient wheels of bureaucracy. Data wrangling helped determine the size of the problem and point a way towards a solution, but the solution is still hundreds, if not thousands, of hours away.

But Colarusso points to one aspect that should have been noticed and would have kept this from becoming a 40,000-file catastrophe (and that's without counting the undetermined number of omissions).

The real promise is in catching the next scandal early. This means listening to data and looking for patterns. The rogue chemist had a throughput three times that of the next “most productive” chemist. That should have been a red flag. Data science offers the promise of mining data for signals such as these and sounding the alarm.

But they weren't looking for a problem at the drug lab. They were looking for productivity. Dookhan's suspiciously-fast output wasn't greeted with suspicion. It was greeted with praise and an increased workload.

The report shows that the Hinton lab leaned heavily on Dookhan’s productivity. Supervisors lauded her work ethic and assigned her an increasing share of tests.

“From January 1, 2004, through December 31, 2011, Dookhan was assigned 25.3% of all analyses in the Drug Lab and completed 21.8% of all tests conducted by staff,” the report said.

There's a point when a problem is still manageable and there's a point when it becomes too big to correct within the confines of the system that helped create it. The drug lab itself pushed it from solvable to impossible. What happened here isn't an isolated incident. Similar abuses have occurred at the nation's top labs -- those belonging to the FBI. Results of forensic testing were overstated to prosecutors, who then put these experts on the stand to help convict hundreds of thousands of people using the questionable results. It's only because of outside pressure that the FBI and DOJ are even looking into this, and it's easy to imagine "The List" of possibly wrongly-convicted persons here far exceeds the 40,000+ Colarusso tangled with.

In addition to the problem begin ignored for two decades, the effort to right the FBI's wrong isn't being pursued with nearly the same enthusiasm as the bogus prosecutions. And yet, there were early warning signs that were ignored. Information about the FBI's evidence issues was passed on to prosecutors -- but this information, including exculpatory evidence, was never passed on to defense attorneys.

The time to handle a problem is before it negatively affects thousands by depriving them of their liberty. But the desire to fight a drug war led to the cover up of exculpatory evidence by US prosecutors working with the FBI and the opportunity to fake even more test results in Annie Dookhan's case. Caught in the middle of all of this are thousands who may never see justice done because the problem was ignored until it no longer could be.

Filed Under: drug war, falsified results, massachusetts

Massachusetts SWAT Teams Claim They're Private Corporations To Get Out Of Transparency Requests

from the sell-swords dept

I'm no conspiracy theorist, generally speaking, but I have to admit the apparent systematic militarization of domestic police forces throughout the country scares the hell out of me. You've seen it, too. Officers, once clad in powder blue uniforms, are suddenly dressed in blues that are so dark they might as well be black. Small-town police forces are gobbling up military-style equipment for god-knows-why. Regulatory agencies are sending out armed forces to rescue wildlife. Whatever your politics, it's pretty clear that there is some kind of imbalance on display here.

The good news, however, is that these are public servants we're talking about here, so they're subject to a certain degree of transparency and information requests from John Q Public. Right? Right!?! Wrong, at least according to SWAT teams in Massachusetts, which are bizarrely claiming protection from such requests due to Massachusetts SWAT teams now being part of a private corporation.

As part of the American Civil Liberties Union's recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response. As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments...Some of these LECs have also apparently incorporated as 501(c)(3) organizations. And it’s here that we run into problems. According to the ACLU, the LECs are claiming that the 501(c)(3) status means that they're private corporations, not government agencies. And therefore, they say they're immune from open records requests.

Yes sir, law enforcement just went private. It makes no sense, of course, because these LECs are in charge of oversight for local law enforcement agencies, LEC employee lists include all manner of public servants, and LEC SWAT teams are used to conduct raids on the citizenry. All of this is funded, by the way, with public money. Our money. That this money is funneled in from the public coffers of local police agencies doesn't make a lick of difference. The argument is essentially that if an LEC uses our money to set up its own oversight authority and then slapps a 501(c)(3) label on it, it no longer has to respond to public records laws. And, per the ACLU, this ain't some small-time problem we're discussing here.

Approximately 240 of the 351 police departments in Massachusetts belong to an LEC. While set up as “corporations,” LECs are funded by local and federal taxpayer money, are composed exclusively of public police officers and sheriffs, and carry out traditional law enforcement functions through specialized units such as SWAT teams. Police departments and regional SWAT teams are public institutions, working with public money, meant to protect and serve the public's interest. If these institutions do not maintain and make public comprehensive and comprehensible documents pertaining to their operations and tactics, the people cannot judge whether officials are acting appropriately or make needed policy changes when problems arise.

Which, of course, is the entire point. They're hiding from public scrutiny behind the veil of incorporation, which may rank right up there among the most cynical things a government organization has ever done. It's a move one might find in the corporate republic of some dystopian novel. I say that because it's truly not as though the police departments in question are attempting to claim some kind of exemption within public records law. They're just putting up a stone wall.

“You can’t have it both ways,” Jessie Rossman, a staff attorney for the Massachusetts ACLU, told me in a phone interview. “The same government authority that allows them to carry weapons, make arrests, and break down the doors of Massachusetts residents during dangerous raids also makes them a government agency that is subject to the open records law. “They didn’t even attempt to claim an exception,” Rossman says. “They’re simply asserting that they’re private corporations.”

Now, the ACLU is suing, claiming that these LECs have received both local and federal funding from government tax coffers, but others are suggesting this attempt to claim privatization is not without its pitfalls for those same law enforcement organizations. Pretending to be a private corporation to avoid freedom of information requests is one thing, but wouldn't that also mean giving up other things as well?

The claim by the Massachusetts LECs in response to the ACLU's demand under Freedom of Information laws is a cute attempt to twist corporate law with public authority law, but it is sheer, unadulterated nonsense. They can be one or the other. They cannot, by definition, be both.

The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he’s right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He stripped himself of immunity, as well as authority.

You can already hear the tortured back peddling that would be on display should such a situation arise, can't you? But that's just trying to get some fun out of what is clearly a claim by public institutions that cannot be allowed to stand. Allowing this move to be successful would only open the door to every other public institution that desired private oversight status to employ the same technique, the result of which would be public tax money propping up an officially private corporate government in which transparency is granted at that same corporate government's pleasure and never otherwise. It's the germination of an unholy mixture of corporatocracy and fascism and it would be the undoing of the very concept of the American government.

Filed Under: freedom of information, law enforcement councils, lecs, massachusetts, militarized police, swat teams, transparency
Companies: aclu

Massachusetts Ignores 5th Amendment; Says Defendant Can Be Forced To Decrypt His Computer

from the that's-unfortunate dept

For many years, courts have struggled with the legal question of whether or not law enforcement can force a defendant in a lawsuit to decrypt encrypted files. All the way back in 2007, we wrote about a judge in Vermont finding that such forced decryption represented a Fifth Amendment violation, as it could be considered a form of self-incrimination. However, that was just one court. Other courts have ruled the other way. Not surprisingly, the Justice Department doesn't believe the Fifth Amendment should apply in these situations, but courts still seem to be divided as judges go back and forth on the issue.

Unfortunately, it appears that Massachusetts' highest court has now gone over to the wrong side of the debate, finding that there is no Fifth Amendment violation in forcing people to decrypt their computers. In this ruling, the court said that there was "an exception" to the Fifth Amendment, if the results are a "foregone conclusion." As Cyrus Farivar at Ars Technica summarizes:

That exception, the MSJC said, can be invoked when “an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government's information.’”

Of course, that seems like a fairly dangerous "exception." Prosecutors can just claim that such facts are "already known." Furthermore, if the information adds little or nothing, then... why is it even needed? It's difficult to see why anyone should be forced to decrypt information on the basis that... it's not really needed. Here's the key paragraph from the ruling:

When considering the entirety of the defendant's interview with Trooper Johnson, it is apparent that the defendant was engaged in real estate transactions involving Baylor Holdings, that he used his computers to allegedly communicate with its purported owners, that the information on all of his computers pertaining to these transactions was encrypted, and that he had the ability to decrypt the files and documents. The facts that would be conveyed by the defendant through his act of decryption—his ownership and control of the computers and their contents, knowledge of the fact of encryption, and knowledge of the encryption key—already are known to the government and, thus, are a "foregone conclusion." The Commonwealth's motion to compel decryption does not violate the defendant's rights under the Fifth Amendment because the defendant is only telling the government what it already knows.

Given the back and forth nature of so many of these rulings, you have to imagine that it'll eventually end up before the Supreme Court. Hopefully that Court's renewed belief in the Fourth Amendment will extend to the Fifth as well.

Filed Under: 5th amendment, decrypt, encryption, massachusetts, self incrimination

Legislators Rush To Patch Hole In 'Secret Photography' Law; 'Succeed' In Making It Make It Much, Much Worse

from the fixitfixitfixitfixitfixitfixitfixit! dept

The law is an ass. This has been true since well before Charles Dickens cranked out Oliver Twist in order to fulfill his four-book contract with Penguin Classics. We also hear quite frequently how the law's ass-ish gears (sorry, some metaphors are going be forcibly combined here) grind slowly, eventually birthing justice itself or, far more frequently, suffering a miscarriage.

Sometimes, however, the law is like an ass operating a second-rate rollercoaster for a third-rate traveling carnival in a fourth-rate town. It lurches forward and backward like a carny with a .28 BAC (also known as "cruising altitude"), with one hand lazily manipulating the rusty throttle/brake on this metaphorical coaster, giving every rider the opportunity to lose their lunches while simultaneously suffering whiplash.

Here's how everything went down.

On March 5th, the Massachusetts state supreme court found that "upskirt" photography was perfectly legal according to state law. The law, as (was) written, offered no protection for clothed individuals in public places. Dressing rooms, bathrooms, etc. were off-limits, clothed or not, but nothing in the law specifically protected the (clothed) public from people like Michael Robertson, who was caught by police holding his phone at waist-level to capture upskirt photos of fellow subway passengers.

Needless to say, outrage ensued. Instant outrage that ensnared several lawmakers, all of whom immediately rewrote the statute governing "secret photography" in order to prevent the state's pervert contingent from instantly turning every subway car into an (ultimately disappointing) sausage/camera fest.

When I say "immediately," I actually mean it. The rewrite was voted and passed March 6th and signed into law by the governor on the morning of March 7th. Within 48 hours, "upskirting" had gone from "presumably illegal" to "legal" to "very certainly illegal."

As is the case with any law based on instant reaction (you know, rather than a deliberative legislative process), it's problematic in its expansive terminology, as Jay Wolman of The Legal Satyricon points out.

Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Here's what's being inserted into the state's law governing "Photographing, videotaping or electronically surveilling partially nude or nude person(s):"

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both fine and imprisonment.

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child’s clothing to view or attempt to view the child’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 2½ years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

That's a lot of area being covered and none of it very specifically. It relies on a "reasonable person's" view of the intent of the photographer. When that "reasonable person" is a prosecutor, the obvious unintended collateral damage becomes apparent.

The law practically invites bystanders to point and scream like pod people whenever someone operates a cellphone or camera from lower than eye level. And while it attempts to address the previous law's shortcomings, it seems to leave decolletage enthusiasts free to do their thing (like shooting photos from above passersby, rather than under or around).

But it also turns anything merely questionable (photography-wise) into something potentially actionable. Any "secret" (read: "surveillance") photography could easily become an issue simply because the person being photographed is unaware of the camera's existence.

To expand on Wolman's example: you catch your nanny stealing using your home's camera system, but he or she spins it as "secret photography" and points out the frames that seem to catch him or her in positions that are "revealing." Good luck proving that you didn't set up the camera solely in hopes of catching a nude or nearly-nude nanny at some point in time. For that matter, good luck proving that the above wasn't merely one of the reasons you set up the camera.

And if your nanny is under the age of 18 (or substitute "babysitter" for "nanny"), you're in even more trouble. The prosecutor's not going to hit this law and stop. You'll also be looking at potential child pornography charges.

The state has to prove intent to make charges stick, but all that truly means is that it has to drop these accusations in front of a grand jury (the misdemeanor becomes a felony if the captured images are "distributed") and you're as good as convicted. An indictment looks a lot like a criminal sentence, especially if legislators are breathing (heavily) down prosecutors' necks, urging them to pursue maximum sentences and bail.

So, once again, we see legislative whiplash turning a questionable law into a terrible law. This isn't ever going to change. The only hope is that, once time and distance take their toll, the law will be revisited and repaired. In the meantime, citizens of Massachusetts will need to keep their cameras up high, completely visible and miles away from children, women in skirts, and anyone else whose clothing might reveal something if approached from lower/oblique angles.

Filed Under: massachusetts, michael robertson, photography, privacy