Marco Rubio Jumps To The Head Of The Line Of Ignorant Fools Pushing Dumb Social Media Regulation Bills

from the sit-down-marco dept

It seems like we can't have even a peaceful week go by without yet another grandstanding fool in Congress introducing yet another terrible bill to destroy the internet. The latest comes from Senator Marco Rubio, who, last week, excitedly released a ridiculous bill that he claims will "crackdown on big tech algorithms and protect free speech." Of course, cracking down on algorithms is, itself, an attack on free speech. And the rest of his bill is nothing but an attack on free speech.

The actual bill is a clusterfuck of bad ideas. It's called the "Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression" or "DISCOURSE" Act, and the only thing clever about it is the name.

So what does the bill do? It says big internet companies can no longer moderate "viewpoints." Specifically, it says you no longer get Section 230 protections if you're a firm with a "dominant market share" who...

... engages in a content moderation activity that reasonably appears to express, promote, or suppress a discernible viewpoint for a reason not protected from liability under subsection (c)(2), including reducing or eliminating the ability of an information content provider to earn revenue...

In other words, YouTube, Twitter, and Facebook are no longer allowed to kick Nazis off their platform or even to demonetize them. This is basically "the Marco Rubio wants to make sure Nazis get free services Act."

And from there it gets worse. It says you don't get 230 protections for anything an algorithm recommends. You lose 230 if your firm with a dominant market share...

... amplifies information provided by an information content provider by using an algorithm or other automated computer process to target the information directly to users without the request of a sending or receiving user...

So, Facebook or Twitter trying to make your feed more relevant means they have to take on liability for everything in your feed.

For all the talk of how this is protecting "free speech," it's the opposite. It's an out and out attack on the free speech of these companies to recommend to their users what they think is most relevant to them and not to be associated with assholes, trolls, Nazis and the like.

Believe it or not, the bill gets even worse and becomes an even bigger attack on free speech. It also says that if you comment upon some other content, you lose 230 protections over that content. I mean, that's just a blatant violation of the 1st Amendment, as the entire purpose is to disincentivize companies from adding their own commentary, fact checking, and the like. The bill says you lose 230 protections if a market dominant firm...

... solicits, comments upon, funds, or affirmatively and substantively contributes to, modifies, or alters information provided by an information content provider...

Got that? Fact checking now makes you liable for the underlying thing you fact checked. That's... both unconstitutional and ridiculous at the same time.

And it gets worse. It would only exempt a very narrow class of content, by limiting it to a revised version of (c)(2)'s classifications -- taking away the subjective ability of a platform to decide what is objectionable on their platform and limiting it to:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected

The wider net of "otherwise objectionable" is removed, and a few new categories are added ("promoting terrorism or violent extremism, promoting self-harm, or unlawful"). Of course, locking it to just these categories is problematic. Unless you consider Nazism to be "promoting violent extremism" then you probably can't ban Nazis. Spam... totally allowed under this bill. Being an asshole, as long as it's not "objectively" deemed to be harassing... must be allowed.

The bill also has a transparency clause whose only real purpose is to allow Nazis and trolls to insist they were treated unfairly, by insisting that their harassment of someone was nothing of the sort, and that they were treated unfairly.

Finally, it makes a huge additional change by saying that Section 230 is no longer an immunity, but rather "an affirmative defense." This may not sound like much, but it gets rid of the main procedural benefit of Section 230 as an immunity. As an immunity, it means you get cases dismissed much faster. As an affirmative defense, in many cases you don't get to assert that until much later in the case, after you've gone through expensive discovery. So this takes away the most useful part of Section 230 and makes it an expensive burden.

It's hellishly weird to see someone like Marco Rubio, who pretends to be a traditional "conservative," pushing a bill that will be a massive boon to tort lawyers, and will clog up the courts with vexatious lawsuits. But, hey, it seems that Marco has realized the only way for him to stay relevant these days is to culture war with the best of them, and thus he has to pretend that social media really is out to get conservatives (it is not) and that he has to pass an unconstitutional law to attack the 1st Amendment rights of websites. It's a pitiful move by an increasingly pitiful politician.

Filed Under: bias, content moderation, marco rubio, section 230, social media, transparency

New Jersey Supreme Court Says Attorney General Can Publish The Names Of Cops Who Committ Serious Misconduct

from the flow-my-tears,-said-the-now-disgraced-policeman dept

Last year -- following the murder of George Floyd by Minneapolis police officer Derek Chauvin (and following the protests that followed this unconscionable killing) -- New Jersey's top cop said there would be more transparency and accountability in his state.

Attorney General Gurbir S. Grewal today ordered all law enforcement agencies in New Jersey to begin publicly identifying officers who commit serious disciplinary violations. Under the order, going forward every state, county, and local law enforcement agency in New Jersey will be required to annually publish a list of officers who were fired, demoted, or suspended for more than five days due to a disciplinary violation, with the first list to be published no later than December 31, 2020.

This move -- one that finally aligned New Jersey with several other states' transparency rules -- resulted in immediate legal action from the state's police unions. According to them, this was unfair -- an unlawful clawback of promises made to cops disciplined in the past, who were assured their names would not be published.

Well, part of that still sort of holds, but only on a case-by-case basis. The state's Supreme Court has sided with the Attorney General and his power to create new rules that apply to law enforcement officers. The ruling [PDF] says the new mandate is good and lawful and definitely affects all officers who commit serious misconduct after the announcement of the rule.

Directive 2020-5 applies to all law enforcement agencies in the State, including local police departments; Directive 2020-6 applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.

As the court notes, this completely upends the state's standard operating procedure.

The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.

But even though it's a big change, it's still the sort of thing a state Attorney General can do. And law enforcement agencies must comply.

The Attorney General had the authority to issue the Directives, which satisfy the deferential standard of review for final agency decisions. The Directives are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.

So, suck it, bad cops who don't want to have their names made public going forward. However, cops who received assurances their names would not be made public no matter how egregious their misconduct still might be able to keep their names buried. But this is not a blanket order. The officers will need to make their case to the court to determine whether or not the AG's office can still be (sort of) sworn to secrecy.

Officers subjected to major discipline for the past twenty years say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years. To resolve that serious issue, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met for disciplinary matters settled before the Directives were announced.

The court also reminds law enforcement officers that this sort of thing is considered acceptable by many professionals in many fields.

The Directives implement a practice that is common in other professions. When doctors, lawyers, judges, and other professionals are disciplined for misconduct, their names are made public. The New Jersey Division of Consumer Affairs lists the results of disciplinary actions against accountants, architects, dentists, electrical contractors, engineers, nurses, pharmacists, plumbers, real estate appraisers, and others on its website.

And it's also the sort of thing that's expected by the people who pay these public servants' salaries, i.e. the state's residents.

That practice is routine in other professions and shines light on both the overall disciplinary process and individual wrongdoing.

So, cops who don't want their names made public when they've committed serious misconduct have a few options. Well, really just one: don't commit serious misconduct. That will keep the officer's name out of the Attorney General's proverbial mouth.

Of course, the officers affected by this have concerns…

They contend the Directives will embarrass officers and make them and their families targets for retribution; undermine the integrity of the investigatory process; chill cooperation from officers; discourage officers from seeking treatment for alcohol or drug dependencies; undermine the command structure in law enforcement agencies; have a negative effect on public safety; and reveal the identities of victims and witnesses in domestic violence and other matters.

But those concerns aren't enough to nullify the new mandate, says the court. Plenty of other professions deploy the same sort of accountability measures and, while they may result in the same sort of side effects, have never been declared unlawful or a violation of due process rights.

The top court affirms the lower court's ruling and with this ruling, the Attorney General's rule stands going forward. And it likely will apply to most officers who've committed serious misconduct during the last 20 years. Of course, the police unions still have complaints. And that leads to this gobsmacking lie that would be hilarious if it weren't coming from the source of the multitude of problems plaguing US police departments.

Patrick Colligan, the president of the state Policemen’s Benevolent Association, New Jersey’s largest police union, called the ruling “both frustrating and disappointing.”

“The NJSPBA does not and will not protect bad officers who violate the public trust and, yet, the 99.9% of good men and women serving in law enforcement continue to find themselves under attack,” he said in a statement.

The Attorney General's transparency directive stands. If officers don't want to subject themselves to all the negative effects of having their names published, well… maybe they should avoid committing serious misconduct.

Filed Under: new jersey, police misconduct, transparency

Newly-Released Body Cam Footage Shows Louisiana State Troopers Beating A Man To Death

from the followed-by-months-of-lies-and-obfuscation dept

Two years after cops killed Ronald Greene following a car chase, the Louisiana State Police have finally released the recordings. Greene led officers on a high-speed chase before being stopped, subdued, and ultimately killed. Here's how the State Police described it two years ago when it still had control of the narrative.

Greene allegedly sped away, and a chase continued for over 20 miles until Green wrecked near the intersection of Louisiana 2 and Highway 143 in Union Parish.

After the wreck, troopers allegedly attempted to take Greene into custody. An altercation with troopers allegedly followed until Greene was handcuffed.

According to LSP, Greene became unresponsive after emergency responders arrived on the scene and died on the way to the hospital.

Lots of really passive writing here, with an altercation "allegedly following" and Greene magically "becoming unresponsive" but not until after emergency responders arrived.

But the LSP said something completely different to Greene's family.

Greene’s family has said that police initially told them he died on impact when his car crashed on May 10, 2019, after a police pursuit.

And the officers told the coroner's office roughly the same thing:

An initial crash report from state police did not mention there was a struggle between Greene and the officers.

The final report from the coroner's office noted the injuries were inconsistent with those sustained from a car crash. It noted Greene had a fractured sternum and multiple contusions. It also noted the LSP seemed uninterested in helping the office perform an accurate autopsy.

The autopsy, prepared by the Union Parish Coroner's Office, states in its opinion section that lacerations of Greene's head were "inconsistent with motor vehicle collision injury and most consistent with multiple impacts from a blunt object."

The report notes that "no written incident report was provided despite requests," and that "no detailed information regarding the motor vehicle collision ... was provided. It also notes that "no emergency services medical records were provided" to the coroner's office.

The fix was already in. The coroner's office ultimately decided there was no one to blame for the death other than the injuries and the substances in Greene's system, ultimately chalking it up to cardiac arrest. But now that the recordings have been released, it's pretty clear Greene might have survived the encounter with LSP officers if they hadn't been so enthusiastic about beating him.

Louisiana state troopers were captured on body camera video stunning, punching and dragging a Black man as he apologized for leading them on a high-speed chase -- footage of the man’s last moments alive that The Associated Press obtained after authorities refused to release it for two years.

“I’m your brother! I’m scared! I’m scared!” Ronald Greene can be heard telling the white troopers as the unarmed man is jolted repeatedly with a stun gun before he even gets out of his car along a dark, rural road.

That was just the beginning. The entire ordeal lasted almost 45 minutes. For much of the recording, Greene and the officers can't be seen. When they do reappear, Greene is covered in blood and already pretty much unresponsive. And he's surrounded by people who have no interest in keeping him from dying.

The 46-minute clip shows one trooper wrestling Greene to the ground, putting him in a chokehold and punching him in the face while another can be heard calling him a “stupid motherf---—.”

Greene wails “I’m sorry!” as another trooper delivers another stun gun shock to his backside and warns, “Look, you’re going to get it again if you don’t put your f---—- hands behind your back!” Another trooper can be seen briefly dragging the man facedown after his legs had been shackled and his hands cuffed behind him.

Instead of rendering aid, the troopers leave the heavyset man unattended, facedown and moaning for more than nine minutes, as they use sanitizer wipes to wash blood off their hands and faces.

“I hope this guy ain’t got f------ AIDS,” one of the troopers can be heard saying.

The fine public servants of the Louisiana State Police, wondering whether the beating they've just inflicted might possibly injure them. And there's more. One trooper, Chris Hollingsworth, can be heard in a separate recording telling other troopers at the station that he "beat the everliving fuck" out of Greene.

There should be more recordings. But of course there aren't. Another trooper, Kory York, was suspended without pay for failing to activate his body cam. Six troopers responded to the scene but only one appears to have activated his camera. At one point during the sole recording, the microphone is deactivated, leading to even less information being captured.

The LSP may claim no coverup took place but that's hard to square with the initial reports handed to Greene's family and the coroner's office -- both of which suggested a car accident was to blame for Greene's injuries and death. And it took the LSP 474 days to even bother opening up an investigation into the incident, suggesting LSP officials either didn't want to know what they'd find or, more likely, didn't want to give the public any way of discovering what had actually happened that night.

If you want the public to trust you, you can't lie to them for months and let a questionable incident go uninvestigated for a year-and-a-half. The Louisiana State Police has proven itself unworthy of trust -- both in its inaction and its officers' actions, which needlessly ended a man's life and went mostly undocumented because the troopers knew better than to record their own excessive force and rights violations. It shouldn't take two years for the truth to come out.

Filed Under: body cam, louisiana, louisiana state police, ronald greene, transparency

DC Court Says Recordings Of Capitol Rioters Must Be Made Public, But Only On A Case-By-Case Basis

from the getting-prejudiced-by-your-own-livestream dept

Here's a small victory for the First Amendment and presumption of openness that's supposed to apply to court proceedings. A recent opinion [PDF] by the DC Circuit Court will give everyone more access to recordings covering the dozens of prosecutions of insurrectionist cosplayers who raided the Capitol on January 6th. The court comes down firmly on the side of openness and transparency, but has hung a rather large asterisk on that statement.

ProPublica is the entity that made the request for an administrative order, but it's the in-court figurehead for a group of fourteen journalistic concerns. The US Attorney's Office hasn't exactly been proactive when releasing recordings entered as evidence in the Capitol raid cases. It has even (temporarily) withheld recordings that were pulled from social media services and YouTube -- something that indicates these recordings were public before the government made them private.

While these recordings are viewable during court proceedings, limited access has prevented some journalists from accessing them. And once the proceedings are over, they're no longer viewable. The DC Circuit Court has made some permanently accessible but only on a case-by-case basis. Considering the volume of criminal cases being handled by the court -- combined with limited access prompted in part by the COVID pandemic -- this no longer appears to be acceptable.

In the pending petition, the group of fourteen media organizations express frustration with the case-by-case approach to providing media access to video exhibits, explaining that petitioning for the release of video exhibits in individual cases has led to delayed release of those exhibits, and objecting to the absence of a platform to provide broad and convenient public access to video exhibits in the numerous Capitol Cases in which such exhibits have been presented to the court but are not available to the public. Consequently, they seek a standing order directing the government to contemporaneously release copies of video exhibits admitted in pretrial proceedings in the Capitol Cases to a designated press representative, ProPublica, for further distribution to news organizations and to the public at large.

The government doesn't necessarily disagree. It would prefer to handle things its way -- giving press members access through a shared "drop box." Recordings would be placed there after being reviewed for any necessary redactions. But that would mean a 72-hour delay between their presentation in court and their accessibility by outsiders.

On the other side, the defendants' legal reps are arguing that releasing recordings during the pre-trial phase would potentially prejudice their clients, decreasing their chances of receiving a fair trial. This includes possibly tainting jury pools or giving the government the upper hand with edited footage that might mislead members of the public.

Given these three conflicting interests, the court decides the records are definitely public. But how public and how quickly can't necessarily be resolved with a broad order. It's not that anyone isn't aware of the January 6th Capitol raid or the arrests stemming from this. But there's still a small chance defendants might lose access to a fair trial if selectively edited recordings are released.

Certainly, the events at the U.S. Capitol on January 6, 2021, generally, and the Capitol Cases in particular, have already been the subject of extraordinary attention both nationally and even globally. Given this context, disclosure of video exhibits in individual Capitol Cases may not generate any more prejudicial attention than already attaches to this event. Nevertheless, disclosure of particularly egregious or inflammatory conduct associated with an individual defendant or a particular video clip that “does not contain the whole event but rather a deliberately chosen or edited clip to support a certain argument or narrative,” FPD Resp. at 3, may present sufficient unfair prejudice at this stage that the presiding judge may decide to delay or limit access in some way. Evaluation of such risks must be carried out on a case-by case basis.

For the first time in a long time, the government agrees with the press. It argues the risk of prejudice is so low as to be speculative and supports ProPublica's request for a blanket order affecting all recordings entered as evidence. Of course, this has nothing to do with supporting free speech protections and everything to do with getting as much damaging info about the Capitol raid suspects out there as possible, even if it means utilizing the Fourth Estate.

In the end, the press (and its new buddy, the government) wins. But only barely. And with a handful of stipulations.

For these reasons, petitioners’ request for issuance of a standing order to provide a streamlined means in this Court for making video exhibits in Capitol Cases accessible to the media will be granted but, in accordance with applicable law and rules, access to these video exhibits may be authorized after the presiding judge has the opportunity to consider the positions of the parties.

Yes, with a but. That's probably all we can expect at this point in the judicial process. But it's good to see the DC Circuit reiterate its belief in the presumption of openness. This is the circuit that hosts the highest percentage of sealed cases and dockets -- something that has earned it a lot of justified criticism over the years. Hopefully it will maintain its support of this presumption when it's the government arguing that filings and evidence should be withheld from the public.

Filed Under: 1st amendment, insurrection, january 6th, journalism, transparency

EFF Sues California Law Enforcement Training Entity Over Its BS Use Of Copyright Law To Deny Public Records Requests

from the conveniently-invoked-IP-rights dept

Following the passage of a law that finally made lots of documentation related to police misconduct publicly accessible in California, the requests for information began pouring in. Some law enforcement agencies complied. Others sued. The state Attorney General showed the public how much they mattered by siding with the secretive agencies.

The entity behind the standards for law enforcement training in the state -- Police Officers Standards and Training (POST) -- was supposed to post its training materials publicly in response to the new law. But it found a convenient out: copyright law. It claimed the company that produced its training materials on everything from ALPR readers to deployment of facial recognition tech refused to allow its copyrighted material to be posted publicly.

This was obviously a load of crap. Copyright law does not forbid the publication of public interest documents by the agencies that utilize them. Allowing the public to view and download the documents does not destroy the market for law enforcement training materials. This was obviously nothing more than a convenient way to avoid complying with the new public records law.

Making this even stupider was the fact the EFF had already obtained a copy of POST ALPR training materials through a public records request. That copyrighted material had already been "distributed" to outsiders, all without putting POST or the EFF on the wrong side of IP law.

This bullshit is probably going to end up costing the state's taxpayers. The EFF is suing POST over this convenient kowtowing to meaningless copyright claims.

The Electronic Frontier Foundation (EFF) sued the California Commission on Peace Officer Standards and Training (POST) to obtain materials showing how police are trained in the use of force, after the organization cited third-party copyright interests to illegally withhold them from the public.

The lawsuit, filed under California’s Public Records Act (PRA), seeks a court order forcing POST to make public unredacted copies of outlines for a number of police training courses, including training on use of force. As the country struggles to process the many painful-to-watch examples of extensive and deadly use of force by police, Californians have a right to know what officers are being trained to do, and how they are being trained.

As the lawsuit [PDF] points out, the state has directly -- through legislation -- ordered the release of this material. And that mandate contains nothing saying "unless copyright protections are invoked."

SB 978 mandates that, as of January 2020, “the Commission on Peace Officer Standards and Training and each local law enforcement agency shall conspicuously post on their Internet Web sites all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the California Public Records Act.”

And who is the private entity invoking copyright law to avoid complying with the law? Well, it's none other than the state's largest pro-police lobbying group, the California Peace Officers' Association. When not misapplying the law to prevent the public from knowing more about their public servants, the CPOA is acting against the public's interest by opposing legislation affecting everything from marijuana legalization to sentence reductions for nonviolent crimes to facial recognition tech bans.

Even if the CPOA is right about copyright law (and it isn't), fair use covers both the distribution of the material by POST and any further publications by recipients like the EFF.

First, the purpose of POST’s use—to comply with the CPRA’s transparency requirements—would be a non-commercial, transformative use in service of the public interest. Second, the ECO is a primarily factual work, subject to thinnest copyright protection. Third, sharing the complete, unredacted ECO is necessary to achieve meaningful transparency and educate the public. Fourth, POST’s use of the ECO would not harm the market for CPOA’s training materials.

Once again, it's copyright acting as a convenient censor. Hopefully, the court will see it for what it is and direct POST to stop screwing around and hand over the training materials to the EFF and publish them to the POST website. If the EFF succeeds (and it should), it will be the public sector forced to pay for the CPOA's censorial actions. While CPOA may be a private entity, it's the state's law enforcement training entity that's being sued. Maybe the state's residents will realize POST could have blown off the lobbying association without worrying about being sued for copyright infringement and respond accordingly -- possibly by stripping the funding headed to the CPOA to produce training materials or rerouting it to another agency that's not going to pretend federal copyright law mandates non-compliance with state transparency laws.

Filed Under: california, copyright, foia, law enforcement, training, transparency
Companies: eff, police officers standards and training, post

California City Drops Lawsuit Against Journalists; Admits It Failed To Secure Files Supposedly Accessed Illegally

from the unfortunately-this-now-leaves-the-taxpayers-exposed dept

The city of Fullerton, California spent nearly two years trying to turn some local journalists into criminals. Bloggers, who contributed to the digital publication Friends for Fullerton's Future, dug into files posted publicly by the city and got sued for doing nothing more than anyone with a link to the city's shared folder could have done.

Here's the beginning of this ridiculousness, via the EFF.

The city sued two journalists and Friends for Fullerton’s Future based on several claims, including an allegation that they violated California’s Comprehensive Computer Data and Fraud Act when they obtained and published documents officials posted to a city file-sharing website that was available to anyone with an Internet connection. For months, the city made the file-sharing site available to the public without a password or any other access restrictions and used it to conduct city business, including providing records to members of the public who requested them under the California Public Records Act.

The city obviously expected records requesters to only access the records they requested. But the city made almost no effort to restrict access, so anyone with a link could access other unprotected files and folders. That some people chose not to limit themselves to the files they requested was a problem the city could have handled without getting accusational and litigious. But that's not the route Fullerton chose. And now it's paying for this blown judgment call.

In the settlement, the city abandoned its Section 502 claims and admitted that its allegations did not accurately reflect its security practices for the Outbox folder. The settlement states “[t]he City acted on its belief that access controls were in place” when it filed its lawsuit and “that its primary goal was to retrieve confidential documents for the protection of city employees, residents and those doing business with the City.”

[...]

The settlement also requires the city to pay Ferguson and Curlee $60,000 each as well as $230,000 for their attorney’s fees and costs.

The settlement [PDF] is quite a read. It does what so few settlements do: admit fault. The city makes it clear none of the journalists did anything wrong and that any unexpected access was due to lax security, rather than any attempt to circumvent (apparently nonexistent) protective measures.

In the process of gathering and reviewing documents in response to PRA requests, city staff began placing large volumes of records in the file sharing account for attorney review and redaction, believing these files and folders placed therein were secure and that access was restricted to city staff and the City Attorney's office. However, due to errors by former employees of the City in configuring the account, the files and folders were in fact accessible and able to be downloaded by the public.

Once downloaded, some of the files placed on the shared drive required passwords to open, but due to lax password controls, Defendants, and possibly others, would have been able to open (unzip) many of the files without bypassing access controls because the same passwords may have been re-used for multiple files and/or were disclosed in public records.

There's more. Here's the "this is on us" admission:

Based on the City's additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now understands that documents were not stolen or illegally taken from the shared file account as the City previously believed and asserted. Rather, the documents were made inadvertently available by the City in response to PRA requests.

And, finally, this sort of exculpatory anti-climax:

The City wishes to acknowledge its misunderstanding of the situation…

Well, it's better than nothing, even if its "misunderstanding" involved more than $200,000 in legal fees and claims that the state's CFAA-analogue (the Comprehensive Computer Fraud and Data Act) was broken by people who did nothing more than access files the city left accessible.

Better than that is the stipulation that all of these admissions by the city be posted in a "conspicuous location" on the city's website for at least the next six months. That will make it a little more difficult to sweep this "misunderstanding" under the rug with a broom made of $350,000 of tax dollars. Hopefully, it will also discourage other future "misunderstandings" by other government agencies that fail to erect even the most basic security measures.

Filed Under: california, ccdfa, cfaa, fullerton, journalism, transparency

Florida City Officials Spend $50,000 To Find Out Who Gave Journalists A Public Record

from the pettiest-cash-of-all dept

The city government of Tamarac, Florida has found a novel way to spend taxpayers' money: paying someone to find out who handed public records to someone entitled to receive public records. (h/t Peter Bonilla)

The cost to Tamarac taxpayers will be as much as $50,000 for the city to hire a private investigator to figure out who gave public records to a reporter, according to records released Friday.

City leaders are scheduled to approve hiring the law firm of Kim Vaughan Lerner on Wednesday to conduct a “forensic” search to try to find who gave the South Florida Sun Sentinel a memo that is a public record in Florida.

$50,000 from taxpayers to hire someone taxpayers likely don't believe needs to be hired to discover the source of records taxpayers are entitled to have access to. An investigation so self-serving the city can barely be bothered to defend it. But since the city holds the power and the taxpayers' purse strings, the investigation will continue.

Why are city leaders so hot and bothered they're willing to chase the paper trail of a presumptive public record that ended up in the hands of journalists? Well, it sure as shit isn't because they're concerned in any way about the public they're supposed to be serving.

No, this expensive paper chase is the result of city leaders being embarrassed by their own misuse of public funds. The budget amendments handed to the Sun Sentinel included plenty of perks for city employees -- several of which directly benefited the people approving the amendments. This $50,000 will just be more ill-spent taxpayer "revenue," joining other public expenditures that have done nothing but reward city legislators for being bad stewards.

The city memo in dispute had outlined several budget amendments that would benefit the city commissioners themselves, including new retirement, full health benefits, and stipends for technology and education.

Those budget amendments, which have since been scrapped from being placed on a city agenda, came within months of other forms of spending that leaders passed for themselves to do their part-time job. That included a $25,000 personal initiative fund and a $15,000 local travel fund, on top of their salary, car and phone allowances, and out-of-town travel money.

The $50,000 will be spent interviewing officials and staffers to determine who "leaked" presumptively-public information to the public. This includes reviewing communications sent and received by everyone currently under this super-weird form of suspicion, which apparently includes anyone with access to the budget documents. There's no word yet whether this internal investigation will manifest outwardly, but one suspects city officials willing to spend $50,000 investigating the source of public info won't shy away from targeting the journalists who published the information.

No commissioner expressed any dismay with the outsized set of perks being handed to them or the willingness to waste money investigating a non-existent breach/leak. But one commissioner mistook her public platform for a mirror, issuing this… um… statement:

Commissioner Debra Placko chastised whoever gave out the information, saying at last week’s meeting, “Shame on you for being despicable.”

LOL. "Despicable" is spending $50,000 to find and punish the person who embarrassed you using nothing more than public records anyone could have obtained. Good luck with that. And good luck with your next election run, charlatans A-D (the decision to hire an investigator passed 4-1). This is not just stupid. It's expensive. And it does nothing more than show the public who their servants are actually serving.

Filed Under: florida, foia, private investigator, public records, tamarac, transparency

Groups Worry New Text Message Spam Filters Aren't Being Built Transparently, Could Harm Legit Outreach Efforts

from the i-don't-trust-your-trust-score dept

As we noted recently, the wireless industry has been developing a new "trust score" to determine who is or isn't worthy of being able to send text message spam. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of. The problem: a growing roster of groups are worried about the transparency of the process, noting that the Milan-based company (Kaleyra) running this new "Campaign Registry" hasn't been forthcoming or consistent when it comes to details of the system, launching in June.

Text messaging campaigns remain hugely effective, with 90 percent of text messages are read within 3 minutes. But a chorus of groups from Sierra Club to Planned Parenthood are growing increasingly worried that the overall system, dubbed 10DLC, could result in many of them losing their ability to engage in outreach:

"In recent weeks, a coalition of liberal and progressive advocacy groups have mounted a campaign to put the brakes on 10DLC, rejecting the characterization of their messages as spam and raising concerns that the blunt 10DLC rules will hamper one of their most effective organizing tools. The opaque registration and vetting process, the groups warn, could lead to discrimination against smaller organizations with less-established track records, as well as overwhelm them with new and higher fees."

With companies like AT&T at the helm of decision making on the issue, you should be able to understand their concern given AT&T's long, dodgy history. Particularly when it comes to the process being non-transparently hijacked to limit communications on issues not particularly near and dear to AT&T and friends hearts, like labor organizing:

"Though AT&T and T-Mobile claim 10DLC is intended to reduce unwanted text messages, these restrictions in actuality will quash grassroots advocacy, labor union organizing, and progressive movement building,” the letter states. “We strongly urge AT&T and T-Mobile to reconsider the damage that 10DLC will cause. We are also calling on leaders in Washington to exercise your executive and legislative authority to defend citizen engagement and call on AT&T and T-Mobile to reverse these restrictions."

The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and were even more heavily embraced by the Trump campaign.

Ideally you'd like a government agency like the FCC or Congress to transparently develop rules in open collaboration with consumers, stakeholders, and experts adequately represented. Instead, you've got a coalition of private companies with dodgy track records working on non-transparent "trust scores" that could limit the impact and outreach of countless organizations, regardless of party. For example, if the trust score is dictated by arrest records, would that mean activist groups whose members are often arrested at peaceful protests would suddenly find themselves labeled too problematic to verify?

"While the details of the trust scoring system are not well understood, it’s been likened to running a credit score on each group. “They could be looking at things like a group’s personal tax history, members’ criminal histories, they could also be googling to find groups associated with people they deem unsavory,” said Don Calloway, founder of the National Voter Protection Action Fund, which uses peer-to-peer messaging to combat voter suppression. “Grassroots orgs have members who get arrested all the time in peaceful protests."

The fact that many of these groups don't know how this trust score is being calculated just months before launch speaks for itself.

This being the wireless industry, there's also the threat that they could view this entire system as yet another revenue model, unfairly saddling less affluent organizations with fees and surcharges they won't be able to afford. As such, you can see how letting the wireless industry lead the show could result in its two major concerns (avoiding liability, generating revenue) driving most decision making processes. While it's certainly possible many of these worst-case scenarios won't come to pass, given the history of the telecom industry, and the total lack of regulatory oversight at the moment, it's definitely worth keeping an eye on.

Filed Under: political outreach, spam, text messaging, transparency, trust score
Companies: at&t

Court Says Two Cops Who Deployed Deadly Force Can Use Florida's Victims' Rights Law To Hide Their Names From The Public

from the good-intentions,-awful-outcomes dept

Laws written with good intentions are being used in bad faith by public servants hoping to shield themselves from public scrutiny. Multiple states have passed versions of "Marsy's Law" -- legislation that grants more rights to victims of crime, including blocking the release of personal info under the theory this will protect victims' privacy and head off abuse and harassment.

Law enforcement officers have discovered this law and legislators' seeming unwillingness to exempt public employees from these protections. And, since officers are often able to claim every violent act they've engaged in was predicated by a criminal act by the suspect they've deployed force against, they're able to claim they were "victims" of crimes, even if the crime was nothing more than the grab bag of charges commonly known as "contempt of cop."

We saw this law put to work a few years ago in South Dakota. An officer, who shot an arrestee two times, was able to keep their name private despite being engaged in public service and presumably putting their name on official reports about the incident -- reports that would be considered public records.

It has happened again, this time in Florida. Two officers who deployed deadly force against arrestees -- represented by their police union -- have successfully sued to keep their names secret. The Florida Court of Appeal says the victims' rights enacted by the law are constitutional and the withholding of these officers' name is completely justified. (via Volokh Conspiracy)

The lower court's decision coming down on the side of transparency and accountability has been reversed. Here's how the lower court summed it up:

The Court finds that the explicit language of Marsy’s Law was not intended to apply to law enforcement officers when acting in their official capacity.

[...]

The officers do not seek protection from the wouldbe accuseds, instead they apparently seek protection from possible retribution for their on-duty actions from unknown persons in the community. This type of protection is outside the scope of Marsy’s Law and is inconsistent with the express purpose and language of the amendment. This Court cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions.

Unfortunately, this court can interpret the law this way. It says the lower court misread the conflict between the state's victims' rights law and the public's right to "inspect or copy records of any state of local agency." The Appeals Court [PDF] says the newer law (the victims' right law) supersedes the older public records law (emphasis in the original).

Article I, section 16 can be construed in harmony with article I, section 24(a)—without excluding from the definition of crime victim any person entitled to protection under article I, section 16. Article I, section 24(a) describes the broad right to inspect or copy public records in Florida:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted under this section or specifically made confidential by this Constitution.

The Appeals Court says older laws can be altered by newer laws, and residents' overwhelming support of the state's Marsy's Law (61% of voters) suggests the state as a whole desired the new law to protect every criminal victim, even public servants charged with arresting suspected criminals.

The court says the police can police themselves. It does not need the assistance of the public that has been locked out by this use of the victims' rights law.

This does not mean that the public cannot hold law enforcement officers accountable for any misconduct. Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If a prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protections…

But these are all state and local actions that -- while nominally performed to benefit the public -- rarely involve direct public participation or result in outcomes that approach any widely understood definition of "accountability."

This may be the correct ruling inasmuch as that's what the law says. But it's certainly not keeping with the spirit of the law, which was supposed to protect crime victims, not shield public employees from accountability. Legislators who've enacted these laws around the nation need to amend them to ensure this sort of abuse ceases.

Filed Under: florida, hiding names, police brutality, transparency, victims rights

Ajit Pai Should Not Still Have His Government Twitter Account

from the left-the-agency-but-kept-his-followers dept

You are probably familiar with Ajit Pai, the former head of the Federal Communications Commission (FCC) famous for killing net neutrality rules, doing the Harlem Shake in a Daily Caller video, and drinking from an oversized coffee mug to appear funny and relatable.

You may be less familiar with Ajit Pai’s work on Twitter. Pai is proud of his Twitter use, and he likes to brag that he was the “first [FCC] Commissioner on Twitter” (he set up @ajitpaiFCC the day he joined the FCC). Pai has sent over 31,000 tweets since creating his account in 2012.

But there’s something different about his account recently. Pai’s FCC account was created when he joined the FCC, and he used it to discuss his FCC work. After Pai resigned on January 20, 2021, the common practice at other agencies would be for Pai to stop using @AjitPaiFCC, since he was no longer Ajit Pai at the FCC. But instead, Pai removed “FCC” from his handle and kept tweeting.

Pai isn’t the first former FCC commissioner to do this. Former Commissioners Mignon Clyburn and Mike O’Rielly also seem to have kept the accounts they created at the FCC.

That may not be legal. Let’s use Pai as an example:

Ajit Pai Created His Twitter for Government Work

While Ajit Pai was at the FCC, his Twitter account was his official persona. He created his account on his first day at the FCC and put “FCC” in his handle. His profile listed his position and linked to his FCC webpage. He tweeted about FCC work while sitting in the FCC building during FCC business hours. And the FCC linked his Twitter account on the FCC website next to his other government accounts, like his FCC email address and blog.

Source: January 18, 2013 capture from the Wayback Machine

When government officials use social media for government work, they have to follow rules around public records preservation and limits on what they can say. The National Archives issued guidance on this way back in 2013. Some officials use personal accounts to tweet about sports or food and go out of their way to emphasize when the account is personal, like “tweets my own” or “not an official account.”

Pai didn’t do that: this was his work account. He tweeted about the FCC “making progress” on 911 dialing from hotels, shared his official FCC remarks about the FCC’s Lifeline program, and criticized an FCC decision he disagreed with. Not every tweet was about the FCC (he wished Bob Barker a happy birthday), but it was pretty clear that a tweet from @ajitpaiFCC was from the Ajit Pai appointed to the FCC by the president and not Ajit Pai the fun dad.

Instead of closing his FCC Twitter account (@AjitPaiFCC) when he left the FCC and moving to his existing personal one (@AjitPai), he kept both and changed their names. His government account, with 83,000 followers, became @AjitPai, and his personal account with fewer than 3,000 followers became @AjitPai_.

There are two problems with that. First, when Pai used the FCC account, his tweets were public records, subject to the Freedom of Information Act (FOIA). The FCC has to preserve the tweets for a set time period to comply with the law. With Pai controlling the account, the FCC can’t stop Pai from deleting old tweets whenever he wants. Second, because the account was created on government time for government use, it is government property. It was not Pai’s to take.

Ajit Pai’s Tweets Are Public Records, and You Have a Right to See Them

When government employees create material for government business, like emails or reports, those documents are federal records. Under the Federal Records Act, records must be saved for a set time period. An email from a low-level government employee might be saved for a few years, but communications from high-level officials are special and may need to be saved forever by the National Archives. The five FCC commissioners run the agency, so you would expect their official statements on social media to be treated as important records.

Most agencies deal with this by controlling the official’s Twitter account after that person leaves. This preserves the official communications from the then-public official to the public about their public service. That’s why if you look at Twitter accounts from former federal leaders, you’ll see that almost all of them are inactive.

Except Pai’s.

One of these things is not like the others (it’s @AjitPai)

Ajit Pai, now a private citizen, still has control over the records he created while serving as a public official. Usually, the First Amendment prevents government accounts from blocking social media critics. If you want to interact with his old FCC tweets, you better hope he didn’t block you for disagreeing with him in the past.

Or, if you’re me, two weeks after filing a FOIA request for Pai’s tweets you’ll see this:

It is harder to write about federal records when you are blocked from seeing them.

This isn’t how federal records law works. Pai’s tweets are public records and belong under FCC control. But judging from the FCC’s response to my FOIA, the FCC has decided that Pai can keep his account as long as the FCC can download copies of his old tweets.

The FCC is wrong: (A) if you download your own Twitter data, you’ll see it doesn’t include information like the text of tweets Pai responded to or which accounts he blocked, and (B) federal records are the original documents created by public officials, not copies. If Ajit Pai wanted to keep his tweets, the law allows him to download his FCC Twitter data as copies of his records (subject to approval by the agency). The law does not allow the public to be left with inferior downloaded copies while Pai keeps the originals.

Fun fact: when I filed a FOIA request for Pai’s tweets, the FCC responded that it was building a webpage to host Pai’s old tweets on the FCC website. So instead of the FCC keeping the @AjitPaiFCC account and leaving it up for the public (which is free), it is spending taxpayer money to build new website so Pai can capitalize on his 83,000 followers.

Pai Does Not Own His Official Twitter Account and Should Not Profit From It

Most federal agencies(other than the FCC) recognize that when government officials create Twitter accounts to communicate in their official role as public servants, those accounts are government property. For example, the Defense Department has clear rules warning that social media account created for government use, including accounts with the name and position of an official (say, @AjitPaiFCC), are federal property and belong to the agency. The Department of Interior also has social media rules warning federal employees that social media accounts for “official personas” used for “official business and maintained using government resources (staff time, devices, etc.) are the property of the federal government.” The National Archives specifically says the best practice is to create “create unique agency-administered accounts when an employee begins using social media for official purposes.” Pai did just that, creating a second handle when he joined the FCC and using it for FCC business.

Wow some of these highlighted details sound very familiar. Source: Department of Defense

When something belongs to the government, you can’t take it for yourself. There are regulations that prohibit government employees from misusing government property, and there are other regulations that prohibit using a public position for private benefit.

Why are those rules important? Well, imagine if a former official wrote a book and wanted to plug it to journalists who followed their government work. Ajit Pai’s FCC Twitter account is pretty valuable: it has 80,000 more followers than his personal one. That’s a lot of people to profit from.

If you wanted to announce a book, which follower count would you use?

Or take former FCC Commissioner Clyburn, who kept her account after she left the FCC in 2018. Her account still hosts her FCC tweets, like her dissent on Pai’s final decision to kill the net neutrality rules. A few months after Clyburn left the FCC, T-Mobile hired Clyburn to lobby in favor of its acquisition of Sprint, which required approval by … the FCC. And now Clyburn tweets favorably about T-Mobile’s corporate work on the same account she once used for FCC business.

These tweets should not be on the same account.

Not every FCC commissioner has done this. Former FCC Chair Tom Wheeler did the right thing and closed his account. He then directed interested followers to his personal account.

Source: https://twitter.com/TomWheelerFCC

But the other three former commissioners face the constant temptation to use accounts created for public service for personal profit. These three commissioners — Pai, O’Rielly, and Clyburn — should not have kept their FCC Twitter accounts. And the FCC, which knows about this issue and allowed it to fester, should have created policies to prevent this from happening in the first place.

Your right to see statements by FCC commissioners should not depend on whether they block you after changing jobs.

Mark Gray is a lawyer in Washington, D.C. who writes about technology policy issues in his spare time. He is available on Twitter at @Mark_T_Gray. The views in this piece are entirely his own and do not reflect the views of his employer, the United States, or any of its agencies.

Filed Under: ajit pai, archives, fcc, government property, mignon clyburn, mike o'rielly, tom wheeler, transparency, twitter accounts
Companies: twitter