Court Says ISPs Can't Use Net Neutrality Repeal to Dodge Lawsuits For Shitty Service

from the foxes-watching-the-henhouse dept

The Trump FCC's rollback of federal net neutrality rules didn't just kill net neutrality. The repeal also gutted FCC authority over ISPs, shoveling any remaining authority to an FTC that's ill-equipped to actually police ISPs (the entire point and why ISPs lobbied for it). This comically-misleading "Restoring Internet Freedom" order also tries to ban states from protecting consumers. The language, included in the repeal after heavy lobbying by Comcast and Verizon, attempts to "pre-empt" state authority over ISPs.

ISPs quickly got to work trying to use the language to dodge accountability.

Charter Spectrum, for example, has been trying to use the FCC's pre-emption language to dodge a lawsuit for shoddy service. New York State sued Charter last year for falsely advertising speeds company e-mails show execs knew it couldn't deliver. The suit also highlighted how Charter execs routinely gamed a regulator speed test system (comprised of volunteer routers with custom firmware) in an attempt to falsely represent the company's network performance. The company was also accused of artificially inflating congestion to cash in on interconnection disputes.

But Charter's efforts aren't going particularly well. Late last week, The First Department of the Supreme Court, Appellate Division of the State of New York ruled (pdf) that Charter could not lean on the FCC's net neutrality repeal to have the case thrown out, and that it will be proceeding to trial. The ruling found that no, the FCC neutrality repeal did not legally pre-empt states from their right to enforce laws "that prevent fraud, deception and false advertising" in regards to broadband service. Consumer groups were quick to applaud the ruling:

"This is great news for broadband users in New York, and it bodes well for state efforts to protect broadband users generally. Such efforts are especially important given the current FCC’s decision to abdicate many of its consumer protection responsibilities with respect to broadband."

Ironically, some legal experts (like Stanford Law Professor Barbara van Schewick) have argued that when the FCC rolled back Title II and neutered its own authority over ISPs, it also dismantled much of the already-limited authority it had to tell states what they can do. ISPs have promised to sue states that try to protect consumers, but it's not clear their legal footing is particularly sound. Meanwhile, the effort to hold ISPs accountable in the wake of Ajit Pai's industry earlobe nibbling has cultivated a newfound appreciation on some fronts for the importance of state rights.

Obviously this will be a fight that plays out on a state by state level, and ISPs are likely to have better luck in some states than others. It's a story that's going to be worth paying attention to, as it will highlight another angle of consumer harm most people aren't even thinking about when they consider the impact of the extremely unpopular repeal of net neutrality.

Filed Under: broadband, false advertising, fcc, jurisdiction, net neutrality, new york
Companies: charter, charter spectrum

NY Senate Passes Bill That Would Make It A Crime To Publish Photos Of The Elderly Without Their Consent

from the still-trying-to-bypass-that-whole-First-Amendment-thing dept

The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment.

The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law.

Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse.

An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

The law makes this a Class A misdemeanor, which can be redeemed for a full year in jail if the prosecutor can get a judge to agree on handing out the maximum sentence. That law protects only minors from a variety of protected speech because everyone knows cyberbullying ends once victims turn 18.

The new law that's looking to steamroll protected speech addresses the other side of this generational gap. Eric Turkewitz was again the first person to spot the bad bill, pointing out it would criminalize the posting of photos of grandparents to social media if the photo's subjects suffer from any form of incapacitation and have not given explicit permission for their photos to be posted publicly. His post takes on the First Amendment ramifications of the NY Senate's latest oblique assault on free speech.

Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

[...]

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

Here's what's being criminalized by this law:

A PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR DUTY OF CARE FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED TO FACEBOOK, YOUTUBE, TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON'S CONSENT.

So, like the law says, if you act as a caretaker for an elderly person -- someone who might be your parent, grandparent, or close friend -- you can be charged with a misdemeanor for posting photos of them without their consent. "Vulnerable" in this bill simply means about the age of sixty and "suffering from a disease or infirmity" which prevents them from providing for their own health or personal care. That's a whole lot of gray area to cover with a vaguely-worded bill. As Turkewitz points out in his post, this would criminalize a wide swath of social media sharing simply because someone in the photo did not explicitly consent to publication. He also notes it does not simply criminalize sharing photos of elderly people in incapacitated states. It criminalizes the publication of any photos taken at any point in time.

[L]et’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor.

The bill's supporters will almost certainly claim they never intended the law to be read that way. But the best way to prevent laws from being read this way is to craft them carefully, rather than just toss word salad on the senate floor and hope for the best.

But it's all cool with the senators who voted (again!) for an unconstitutional bill that criminalizes protected speech, because one time this bad thing happened.

Recent media reports have highlighted occurrences of a caretaker taking unauthorized photographs or video recordings of a vulnerable elderly person, sometimes in compromised positions. The photographs are then posted on social media networks, or sent through multimedia messages.

There's no better way to craft a bad law than typing something up quick to criminalize a thing you saw on Facebook. Jesus Christ. This is almost too stupid to be true. [Sobs into tattered copy of US Constitution.] You cannot use the First Amendment as a doormat just because some people are assholes.

Filed Under: elder abuse, first amendment, free speech, new york, publicity rights, social media

NY State Legislators Unanimously Pass A Cyberbullying Bill That Can't Be Bothered To Define Cyberbullying [Update]

from the passed-without-an-ounce-of-credibility-or-sincerity dept

Update: Eugene Volokh points out (via email) that there is a definition of cyberbullying on the books in New York state. The bill does not reference it, however. This bill appends Section 12a to Section 12, which is part of the state's consolidated education law. Section 12 says "no student will be subjected to harassment or bullying by employees or students on school property or at a school function." There's still no definition here of bullying or cyberbullying, nor is there anything pointing to the state's definition of these terms. To find a definition, readers must look to Section 11 (again, not mentioned anywhere in the new bill), which is another part of the state's education laws. This is how that section defines cyberbullying:

“Harassment” and “bullying” shall mean the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being;  or (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety;  or (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student;  or (d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.  Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.  For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

This definition helps, but it's still an unconstitutional proposal. What might have been limited to acts on school property or those resulting in disruption is now being spread to cover the act (as defined here) anywhere it takes place. Criminalizing the act takes it a step further than it should be taken, and in doing so, infringes on protected speech. Volokh's post give several examples of protected speech that would be considered a criminal act if the law goes into effect. Here are just a couple of them:

[3.] A popular local blogger harshly condemns an under-18-year-old accused of crime, calling him a thug or other words that are viewed as "verbal abuse." The blogger knows that opinion among high schoolers about the accused criminal is sharply divided (perhaps on ethnic, racial, or religious lines), with some people stridently defending him and others condemning him. The article is foreseeably read on school property, as students pull it up on their phones or computers. The article also foreseeably leads some students to again condemning the accused criminal, and others to defend it; foreseeably, a fight breaks out, or threatens to break out, which means the article "foreseeably create[d] a risk of substantial disruption within the school environment." The blogger is a criminal.

[4.] An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

Tl;dr: I screwed up. It is defined elsewhere in the state's statutes. Unfortunately, there's no acknowledgment of that fact in the bill's wording. It simply assumes everyone knows what cyberbullying is and what is covered under that definition. I can assure you many of those voting for the bill are likely unaware of how much protected speech this bill targets.

New York state legislators are back at it, attempting to tackle cyberbullying with a "new" law. In reality, this would be the legislature's fifth attempt to enact an anti-cyberbullying law. New York attorney Eric Turkewitz was the first to catch the New York's Senate's self-congratulatory tweet. The tweet touted the bill's unanimous passage (a 56-0 vote). But "widespread support" isn't synonymous with "well-crafted law." No state senator wants to appear "soft" on bullying, so the law passes without anyone bothering to ascertain its effectiveness, much less its constitutionality.

For an anti-bullying law to survive a constitutional challenge, it must be exceedingly well-crafted and narrowly-defined. This bill -- with 56-0 support -- has none of that. From Turkewitz's post on the bill:

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

It doesn't. Once you get past the full page of preamble explaining why such a law is needed, you run into this, which defines nothing but who would be protected by the law.

S 12-A. CYBERBULLYING. 1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

A. MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF CYBERBULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.

This act shall take effect immediately.

Up to one year in prison based on a definition apparently to be determined post-arrest by prosecutors or presiding judges. And, apparently, cyberbullying ends once the victim turns 18, so there's no need to extend this dubious protection to adults.

State lawmakers should know better. First, they should know laws attempting to regulate speech must be particular and explicit in their definitions of the prohibited speech. Second, the justification for regulating speech must clearly and heavily outweigh the negative repercussions of the government's act of censorship. All this law has is a statement saying schools are powerless to stop cyberbullying that occurs off campus. That's not nearly enough justification to start handing out misdemeanor charges to mean people.

There have been better-defined bills passed in the state of New York. The county of Albany actually took the trouble to define the terms central to the law.

1. "any act of communicating … by mechanical or electronic means,”

2. “including posting statements on the internet or through a computer or email network,”

- “disseminating embarrassing or sexually explicit photographs;”

- “disseminating private, personal, false or sexual information,”

- “or sending hate mail,”

3. ”with no legitimate private, personal, or public purpose,”

4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

This definition is 73 words longer than the state senate's definition of "cyberbullying" and it still couldn't beat a Constitutional challenge. The state's highest court shut down enforcement of the law, noting that its definitions would "criminalize a broad spectrum of speech outside the popular understanding of cyberbullying."

On its fifth attempt to push through anti-cyberbullying legislation, the state senate can't even be bothered to craft a definition narrow enough to be rejected by the state's courts, much less one that would survive even the most cursory challenge.

A bill like this -- one that's seen four previous attempts -- serves one purpose. And it's got nothing to with the children we're always supposed to be thinking about. Here's Scott Greenfield's take:

[T]his law is just a cynical attempt to game the emotions of the electorate, as it has absolutely no chance of passing constitutional muster. The senators didn’t even give it a try, and as much as they may not be the sharpest knives in the legislature, even they know that you can’t criminalize cyberbullying by defining it as cyberbullying.

The proposed law is electioneering dressed up to look like empathethic legislation. It's multiple campaign efforts being funded by taxpayers who not only pay the salaries of legislators who can't be bothered to do their job properly, but will also be on the hook for legal fees if the bill becomes law and has to be defended in court. When one of these partners in unanimous useless ask for donations during the next election run, point to bullshit like this and tell them you gave at the office.

Filed Under: cyberbullying, definitions, new york

Charter Claims NY Lawsuit Over Crappy Broadband Speeds Just An Evil, Netflix 'Cabal'

from the everybody's-to-blame-but-me dept

Early last year, Charter Spectrum was sued by New York State for selling broadband speeds the company knew it couldn't deliver. According to the original complaint (pdf), Charter routinely advertised broadband speeds executives knew weren't attainable -- while simultaneously refusing to upgrade their network to handle added consumer demand (a problem that only got worse in the wake of its merger with Time Warner Cable and Bright House Networks).

Buried in the suit were all manner of interesting allegations, including claims that Charter executives discussed via e-mail how they hoped to manipulate congestion to drive up costs for companies like Netflix (you'll recall this was part of the whole interconnection slowdowns Netflix and companies like Level3 complained about a few years ago). The suit also highlights how Charter gamed the results of a program the FCC has traditionally used to measure real-world broadband speeds using custom-firmware embedded routers in consumer volunteer homes.

Charter has since been trying to tap dance out of the suit by flinging pretty much every legal argument against the wall to see what sticks. Most recently, the company tried to claim that the FCC's recent net neutrality repeal contains language banning states from trying to protect consumers. And while that was certainly the hope of Ajit Pai's FCC, legal experts have argued that the agency's claims don't hold water. More specifically, when the FCC rolled back its Title II authority over ISPs, it also ironically dismantled its legal authority to tell states what to do.

Amusingly, Charter has now shifted its argument to the claim that the entire lawsuiit is somehow part of an unholy cabal orchestrated by Google and Netflix. You might recall that ISPs (and Ajit Pai) have long tried to claim that the entrenched telecom monopolies are innocent daisies, and that net neutrality is simply a conspiracy concocted by Google and Netflix to ruin AT&T, Verizon, Comcast and Charter's livlihood. This narrative has been routinely driven by ISP policy folks despite the fact net neutrality is very much a bipartisan, grassroots consumer welfare issue.

New York State brought in Tim Wu, the Columbia Law Professor who coined the term "net neutrality," to consult on the case. And because Wu had at points talked to both Google and Netflix (who were concerned that Charter was abusing its last-mile monopoly to drive up costs), Charter hopes to use this "unclean hands defense" to try and scuttle the lawsuit by claiming it was a vast conspiracy against Charter:

"Charter's unclean-hands defense is that Plaintiff actively conspired with private parties through Tim Wu (a leading critic of ISP business practices) to investigate and sue Time Warner Cable Inc.," he wrote. "Thus, Plaintiff delegated what should have been an objective law enforcement investigation to third parties whose pecuniary and political interests are adverse to TWC's, and who had preconceived notions of how and why to penalize TWC."

The letter then goes on to talk about documents produced by the other side that allegedly show how Wu and third parties "manufacture[d] fraud claims" and how his "co-conspirators boasted of having orchestrated Mr. Wu's work."

The names of the individuals who allegedly were in cahoots with Wu include Google's Meredith Whittaker, who in a 2015 email to a colleague, discussed having gotten off the phone with Wu about the NY AG consumer protection complaint and how it would frame interconnection as a consumer harm issue."

Of course since interconnection was a consumer harm issue that's not really substantive or damaging. Charter, a company that routinely uses its own funded think tanks to pollute public discourse and erode accountability is also upset that Wu happened to (gasp) talk to a think tank partially funded by Google:

"Charter is taking the notion of a "cabal" seriously, also pointing to communications with several individuals at the New America Foundation, a Washington, D.C.-based think tank."

Ironically, both Google and Netflix's interest in standing up for consumers on this subject has waned proportionally with their growing power over the years. Still, Netflix and Google had every right to be concerned about what Charter and other ISPs were up to, since they were effectively trying to use their last-mile broadband monopoly to unfairly jack up costs for consumers, content creators, and transit operators alike. That Wu corresponded with companies with legitimate anti-competitive concerns over what broadband monopolies are up to isn't likely to scuttle the case and has the faint whiff of desperation.

Charter's other legal efforts to derail the case haven't gone well so far, and it's unclear whether this latest gambit will work. But it's abundantly clear that Charter is particularly worried about the ramifications of this case, given they appear to have been caught on e-mail routinely lying to the public and regulators. As we've been noting, uncompetitive monopolies like Charter are working together to demolish FTC, FCC, and state authority over their businesses, and they're using every trick in the book to do so.

Filed Under: broadband speeds, cabal, consumer protection, new york, tim wu
Companies: charter, google, netflix

Charter Uses Net Neutrality Repeal To Claim States Can't Hold It Accountable For Shoddy Service, Failed Promises

from the zero-accountability dept

While people remain exclusively fixated on the telecom industry's attacks on net neutrality, the reality is companies like Comcast, Charter, AT&T and Verizon are busy trying to eliminate nearly all federal and state oversight of their businesses. And while deregulation has its uses in healthy markets as part of an effort to protect innovation, you may have noticed that the telecom market isn't particularly healthy. As such, the end result of eliminating most meaningful regulatory oversight without organic market pressure in place is only likely to make existing problems worse.

This battle is getting particularly heated on the state level. After the Trump administration dismantled net neutrality and consumer privacy protections, states began flexing their muscle and attempting to pass their own privacy and net neutrality rules. ISP lobbyists, in turn, tried to head those efforts off at the pass by lobbying the FCC to include (legally untested) language in its net neutrality repeal "pre-empting" states from being able to protect broadband consumers in the wake of federal apathy.

And in the wake of the net neutrality repeal, companies like Charter (Spectrum) are trying to claim that states have no legal authority to hold them accountable for failed promises, slow speeds, or much of anything else.

For example, Charter is already trying to use the FCC net neutrality language to wiggle out of a lawsuit accusing it of failing to deliver advertised speeds. And the New York Public Service Commission also recently stated it found that Charter has been effectively lying to regulators about meeting conditions affixed to its $89 billion acquisition of Time Warner Cable and Bright House Networks. As part of the deal, Charter was supposed to deploy broadband to a set number of additional homes and businesses, but regulators found (pdf) several instances where Charter actively misled regulators.

Last week Charter replied to these allegations by again claiming that states have no authority over them. As part of that effort the company is already citing the FCC's pre-emption language buried in its net neutrality repeal:

"The Commission does not have the authority to compel broadband providers to offer service to particular customers at particular speeds or at particular locations, or to establish any other obligations in a cable television and telecommunications service merger related to the provision of broadband services. Indeed, it has been established for years that Internet access services are interstate, and accordingly subject to exclusive federal jurisdiction.

The FCC has made abundantly clear that states may not impose “any so-called ‘economic’ or ‘public utility-type’ regulation[]” on broadband services and that federal law flatly preempts such requirements. Requiring a provider to expand the geographical range in which it offers broadband services and to offer it at specific speeds—as the Expansion Condition does—is a quintessential public utility obligation that could never lawfully be imposed by a state, as such a requirement would blatantly violate federal law.

There's several things wrong with this claim. One, NY State and the NY PSC absolutely does have authority over Charter -- because this is a merger agreement signed off on by the company that also currently holds a franchise agreement in the state. Two, the FCC's pre-emption effort was already on shaky and untested legal ground. But as Stanford Law School Professor Barbara van Schewick recently pointed out, ironically when the Ajit Pai's FCC rolled back Title II classification of ISPs, it also abdicated its own authority allowing it to tell states what they can do:

"While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

Still, it will take years to hammer this all out in the courts, and in the interim efforts to erode oversight on numerous other fronts (as we saw on net neutrality and privacy) has so far been a smashing success. As we've already noted several times, cable operators like Charter are enjoying larger broadband monopolies than ever before thanks to telcos that have no interest in upgrading aging DSL lines at scale. If you really enjoy the high prices and comical shitshow that passes for cable customer service, by all means let's make sure nobody on the state or federal level can ever hold them accountable.

Filed Under: fcc, net neutrality, new york, oversight, state laws
Companies: charter

ICE Performs Warrantless Raid Of Private Farm; Draws Heat From State And Federal Officials

from the 'rule-of-law,'-my-ass dept

A recent ICE raid of a New York farm made national headlines thanks to the agency's apparent disregard for the Fourth Amendment, among other things. The show of force, coupled with the lack of Constitutional compliance, presented ICE as ruthless enforcers of the law. But there's not much respect for the "rule of law" contained in these actions, no matter how the current administration -- with its emphasis on expelling foreigners from the US -- presents itself.

John Collins was standing outside the milk house at his dairy farm this morning when he heard yelling coming from inside. He ran in, he says, and saw his worker, Marcial de Leon Aguilar, pinned up against the window by armed men.

The men did not identify themselves and were screaming at Aguilar, Collins said.

"I run and say, 'What the hell is going on in here?'" Collins said.

Then the men told Collins they were officers with Immigration and Customs Enforcement. He asked them for a warrant or some paperwork to explain what they were doing. They had none, he said, so he ordered them to get off his property and leave Aguilar alone.

As this happened, Collins said, Aguilar's children watched. They were waiting nearby for the school bus to come. Collins said the officers put Aguilar in handcuffs and took him across the rural road to their vehicles. At least seven officers had come onto the small farm, Collins said.

This resulted in immediate backlash from prominent New York government officials. Governor Andrew Cuomo sent an angry letter [PDF] to the agency chastising it for its apparent refusal to respect Constitutional protections.

Your agency's aggressive claims of upholding the rule of law belie the fact that the pattern of conduct and blatant constitutional violations committed by both agents in the field and regional leadership actually reflect a readiness to sink to lawlessness.

[...]

The persistent failure of your agents to properly identify themselves or produce required documentation to conduct lawful searches and arrests is illegal and creates significant risk of harm to all New Yorkers, including law enforcement who have also been left unaware of your activities within the communities they are entrusted to protect.

NY Senator Kirsten Gillibrand followed the governor's letter with a demand for a federal investigation.

Unbelievably, ICE thinks its actions -- a warrantless raid conducted on private property -- are Constitutional.

Agents were within their rights to be on the farm and did not need a warrant, ICE spokesperson Khaalid Walls told [Vice Media's Eoin Higgins] in an email. The agency said that its actions were justified because de Leon-Aguilar's wife Virginia, who is enrolled in the Alternatives to Detention program, which allows her to stay out of immigration detention while she goes through immigration court proceedings, had missed a number of appointments.

"After having missed several scheduled reporting dates," said Walls, "the resident was deemed to be out of compliance with the terms of the program, necessitating a home visit, which does not require a judicial warrant."

This is wrong. First of all, the raided farm was private property. Even if a home visit was in order, the home resided on property owned by someone else. This wasn't a rental property with only a door separating residents from the outside world. And this was no "home visit." The plainclothes ICE officers showed up, trespassed on private property, and effected an arrest. No permission to enter was sought and no warrant was presented.

ICE can't honestly say it doesn't need warrants to perform these actions. Its own training manual (published by Unicorn Riot) stresses the need for warrants. Searches still require warrants, even if they're looking for illegal activity. ICE can search businesses for illegal workers, but it still needs "Blackie's" warrants (named after a 1981 case brought against the INS), which allow the government to search for people, rather than property. There is no known warrant exception to intrude on private land to search for illegal workers. ICE may feel the Alternatives to Detention program gives it the right to search homes occupied by members of the program (and it does), but when the home resides on property owned by a US citizen, the barrier to entry remains a search warrant. The immigrant arrested in this case had proper documentation to work and resided in a house owned by John Collins on the Collins' property. To reach the house, ICE had to enter private property owned by someone ICE had zero interest in: a legal resident and American citizen.

The lawsuit that's certain to follow this intrusion will sort out the Constitutionality of ICE's actions. At this point, they appear completely unconstitutional, but qualified immunity and the good faith exception may allow the agency to escape liability for the actions of its officers.

Filed Under: 4th amendment, andrew cuomo, ice, immigration, john collins, kirsten gillibrand, marcial de leon aguilar, new york, private property, warrants

Verizon Forced To Briefly Give A Damn About Its Neglected Broadband Networks

from the almost-accountability dept

Several years back Verizon paused all serious residential fiber deployment to shift its focus to slinging video ads at Millennials, an effort that isn't going all that well. While Verizon was busy attempting to pivot from stodgy protectionist telecom monopoly to sexy new media brand, one of its core legacy businesses (fixed line broadband) was simply allowed to wither and die on the vine. As such, the company has spent the last few years bombarded with complaints up and down the east coast about how it neglected repairs and upgrades across a massive swath of its telecom empire.

One one hand, Verizon's disinterest in residential broadband has resulted in a growing cable broadband monopoly as frustrated users flee to their only option for current-generation speeds. That in turn results in less competitive pressure than ever, resulting in higher prices, worse service, and the slow but steady deployment of arbitrary and punitive usage caps across the board. Meanwhile, customers on aging DSL lines who stick with Verizon face repair delays and higher prices as Verizon literally tries to drive away customers it simply no longer has a genuine interest in serving.

Despite the fact that many of these lines were taxpayers subsidized, occasionally Verizon's behavior results in something vaguely resembling a wrist slap. Case in point: after highlighting the massive state of disrepair of Verizon's network in New York, the Communications Workers of America this week managed (with the help of the NY Public Service Commission) to force Verizon to upgrade a notable chunk of its neglected networks across the state. An announcement by the CWA notes that Verizon not only has to repair neglected infrastructure, but expand real, fiber broadband in New York City:

"In a big victory for New York consumers, the Communications Workers of America has reached a settlement with Verizon that will require the company to repair 54 central offices across the state, replace bad cable, defective equipment, faulty back-up batteries, and to take down 64,000 double telephone poles. The agreement also includes increased broadband buildout to major apartment buildings in New York City and more than 30,000 homes across the state."

That last bit is of particular note, given that New York recently sued Verizon for taking taxpayer subsidies for fiber deployments only partially completed, something that's also an undeniable trend for the telecom giant. As they did in Pennsylvania, the union simply had to share photos showcasing the abysmal disrepair across Verizon's network, part of a three-year effort to hold the company accountable:

"The settlement is the result of a CWA campaign to pressure the New York Public Service Commission (PSC) to require Verizon to upgrade and repair the legacy telephone network and to expand consumer access to broadband. In 2015, CWA, 20 allied organizations, and 70 legislators filed a request for an investigation, providing substantial documentation of Verizon’s failure to maintain its copper network. In April 2016, the PSC opened a formal proceeding with extensive discovery and evidence collection. CWA and Verizon agreed to a settlement, which has been endorsed by the PSC staff. The PSC must approve the final settlement."

Granted in most states, Verizon has so much political power that complaints about failing infrastructure or subsidized-yet-unfinished deployments have been largely ignored. Verizon's response has generally been to make fun of these users, or promise them that wireless broadband will somehow make all of these concerns moot-- ignoring that the company's wireless network is more expensive, frequently unavailable, and often less robust than the fixed, taxpayer-subsidized infrastructure it's supposed to be replacing.

Filed Under: broadband, fiber, neglect, new york
Companies: communications workers of america, cwa, verizon

Charter Spectrum Fails To Wiggle Out From Under State Lawsuit For Crappy Service

from the fat-lady-has-yet-to-sing dept

Early last year, Charter Spectrum was sued by New York Attorney Eric Schneiderman for selling broadband speeds the company knew it couldn't deliver. According to the original complaint (pdf), Charter routinely advertised broadband speeds executives knew weren't attainable -- while simultaneously refusing to upgrade their network to handle added consumer demand (a problem that only got worse in the wake of its merger with Time Warner Cable and Bright House Networks despite promises of ample "synergies"):

"The AG’s investigation also found that Spectrum-TWC executives knew that the company’s hardware and network were incapable of achieving the speeds promised to subscribers, but nevertheless continued to make false representations about speed and reliability. The investigation further revealed that while Spectrum-TWC earned billions of dollars in profits from selling its high-margin Internet service to millions of New York subscribers, it repeatedly declined to make capital investments necessary to improve its network or provide subscribers with the necessary hardware."

But the lawsuit also exposed how Charter was gaming an FCC program that uses routers with custom firmware to track real-world ISP performance. The lawsuit also hints at the fact that Charter executives toyed with intentionally creating congestion at peering points in order to extract additional money out of content and transit companies, something you'll recall was at the heart of an industry battle with Netflix a few years ago. Those problems miraculously disappeared with the passage of net neutrality rules that governed interconnection (read: expect this problem to resurface with the elimination of the rules).

Charter, unsurprisingly, has argued that the lawsuit is without merit. It also tried to have the lawsuit dismissed, claiming that the FCC's recent repeal of net neutrality includes a provision (lobbied for by ISPs) that prohibits states from trying to hold ISPs accountable for service shortcomings, be they privacy infractions or net neutrality violations. Fortunately for broadband users stuck under cable's growing U.S. broadband monopoly, New York State's Supreme Court last week shot down that argument (pdf) in a ruling.

The court argued repeatedly that despite the FCC attempts to pre-empt state authority over broadband ISPs, both the FCC repeal and existing federal law make it clear states still have a role to play in holding ISPs accountable for consumer protection:

"Spectrum-TWC fails to identify any provision of the FCA (Federal Communications Act) that preempts state anti-fraud or consumer-protection claims, or reflects any intention by Congress to make federal law the exclusive source of law protecting consumers from broadband providers' deceptive conduct."

Schneiderman's office was quick to applaud the ruling in a statement:

"This decision ensures that our office can continue to hold Charter-Spectrum to account for its failure to deliver the reliable internet speeds it promised consumers. The allegations in our lawsuit confirm what millions of New Yorkers have long suspected — Charter-Spectrum has been ripping you off, promising internet speeds it simply could not deliver."

As we've been noting, Charter, Comcast, AT&T and Verizon lobbyists have been busy trying to gut all state and federal oversight of broadband ISPs in an effort that goes well beyond just killing net neutrality. That should be an obvious problem, given that the combination of limited competition and regulatory capture tends to not end particularly well for American consumers historically (Comcast being exhibit A). But with this ruling and the 26 states busy passing their own net neutrality rules in the wake of the federal repeal, that's going to be a steeper and more expensive uphill climb than many ISP lobbyists anticipated.

Filed Under: broadband, competition, consumer protection, eric schneiderman, false claims, new york
Companies: charter spectrum

New York State Appellate Court Says Cell Site Location Records Have No Expectation Of Privacy

from the may-our-children-look-back-at-these-decisions-and-laugh-over-their-avocado-toast dept

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.

Filed Under: 4th amendment, cell site location info, csli, expectation of privacy, location info, new york, privacy