Immigration Board Says You Can Be Deported For Copyright Infringement

from the moral-turpitude dept

While we still wait to see if Kim Dotcom can be taken against his will from another country into the US for "copyright infringement" claims, apparently the DOJ has also decided that it can work the other way. The Justice Department's Board of Immigration Appeals has said that people can be deported for copyright infringement. Apparently the law (the Immigration and Nationality Act) says that non-citizens can be deported if they commit crimes "involving moral turpitude" but had never weighed in on whether or not copyright infringement counted. But now they have:

On Friday, leaning heavily on precedent that previously declared criminal trademark infringement a CMT, the board said criminal copyright violations “must also be a crime involving moral turpitude.”

“Like the use of a spurious trademark ... respondent’s copyright infringement also involves significant societal harm,” BIA member Hugh Mullane wrote in Friday’s ruling. “Congress has made clear that copyright infringement enforcement is an important priority and that the risks and costs associated with intellectual property crime are significant.”

To be fair, this was a case of criminal copyright infringement, and not civil copyright infringement -- and the board noted that because criminal copyright infringement requires the showing of "willfulness," it suffices for the "moral turpitude" question. The person in question, Raul Zaragoza-Vaquero, had been arrested for selling 800 copied CDs to an RIAA investigator. He received 33 months in prison and had to pay $36,000... and was then told he had to leave the country.

The fact that it's only for criminal copyright infringement is certainly better than it being for any copyright infringement, but we've seen some bizarre attempts to turn what clearly should be civil copyright infringement cases into criminal ones (the Kim Dotcom case being but one example).

Filed Under: copyright, deportation, doj, infringement, moral turpitude

DOJ Tells Forensic Experts To Stop Overstating The 'Scientific Certainty' Of Presented Evidence

from the directed-to-use-air-quotes-when-saying-'science'-or-'certainty' dept

The DOJ is finally addressing some long-ignored problems with the forensic evidence its prosecutors rely on. For two decades, FBI forensics experts handed out flawed testimony in hundreds of criminal cases, routinely overstating the certainty of conclusions reached by forensic examination. Of those cases, 28 ended in death penalty verdicts.

An earlier attempt to address issues with flawed science and flawed testimony swiftly ran aground. Federal judge Jed S. Rakoff very publicly resigned from a committee formed to examine these issues after he was informed by the attorney general's office that he wasn't actually supposed to be examining these issues.

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery -- i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court -- is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.

[...]

Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission -- and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth -- I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.

Caleb Mason of Brown, White & Osborn (the "White" is Popehat's Ken White) reports that the DOJ appears to be taking these problems more seriously. It has issued a directive [PDF] forbidding forensic experts from making claims about "scientific certainty" when presenting evidence.

Directive Number 1 provides that agencies must now “ensure that forensic examiners are not using the expressions ‘reasonable scientific certainty’ in their reports or testimony.” Yes, you read that right. The Department of Justice is telling its forensic expert witnesses to stop claiming “scientific certainty.” Why? Because for most forensic disciplines, there never was any, and DOJ is—after decades of resistance—admitting it.

One of the forms of evidence is fingerprints, the thing every law enforcement agency makes sure to obtain when booking suspects because it's supposedly so infallible. But like almost everything else law enforcement forensic experts claim are reasonably certain, scientifically-speaking, examination of prints no more guarantees a match than examining bite marks.

Fingerprint examiners look for “matching points” in prints, but believe it or not, there are no general standards for which points to look at, how many points to look at, or even what counts as a “point.” Not only are there no established standards, there isn’t even general agreement within the forensic analysis community. Some people like eight points, others ten, others twelve. Many examiners insist they can make an identification with just a single point.

Even more amazingly, in stark contrast to DNA matching, no one knows what the statistical likelihood is of two fingerprints sharing particular points, or whether that likelihood is different for different regions or features of the print. This is the crucial question for any identification methodology, because while each person’s fingerprints may be unique, the examiner doesn’t look at every molecule—the examiner looks at whatever five (or eight, or ten) “points” he or she chooses to look at.

Why is this process still so vague even after decades of reliance on it for identifying suspects? Well, it's because the DOJ won't allow anyone other than the government to take a look at the collected records. Researchers who may have been able to make better determinations on how many points are needed for more definitive matches (or how often false positives are returned by the database) have been locked out by the DOJ.

But the big fingerprint databases are controlled by DOJ, and DOJ has steadfastly refused to let researchers use them for the types of analyses geneticists do with DNA. That’s what makes print analysis so frustrating: the data exists, so fingerprint analysis could be a genuine scientific discipline, with publicly-available databases, peer-reviewed research, known error rates, and accepted methodologies. It could be a real body of knowledge about the differential rates of occurrence among populations of particular physical features of our fingerprints. Hopefully one day it will be. But it’s not now, as the DOJ directives finally acknowledge.

The DOJ's not offering to open up its fingerprint database for outside examination. But at least it's admitting it hasn't let anyone without a vested interest in successful prosecutions take a good look at the methods used by its forensic examiners or the collected evidence they're working with.

[As a bonus, here's another fantastic read by Caleb Mason: a Constitutional examination of Jay-Z's hit track, entitled "JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS."]

Filed Under: doj, evidence, forensics, prosecutors, science

Another Judge Declares FBI's Playpen Warrant Invalid, Suppresses All Evidence

from the playing-fast-and-loose-with-the-Fourth-Amendment dept

Cyrus Farivar of Ars Technica reports that another federal judge has found the warrant used by the FBI to deploy its Tor-busting malware is invalid. This finding isn't unique. Multiple judges in various jurisdictions have found the warrant invalid due to Rule 41, which limits execution of warrants to the jurisdiction where they were issued. But only in a few of the dozens of cases stemming from the FBI's child porn investigation has a judge ruled to suppress the evidence obtained by the FBI's NIT.

A federal judge in Iowa has ordered the suppression of child pornography evidence derived from an invalid warrant. The warrant was issued as part of a controversial government-sanctioned operation to hack Tor users. Out of nearly 200 such cases nationwide that involve the Tor-hidden child porn site known as "Playpen," US District Judge Robert Pratt is just the third to make such a ruling.

In other cases, judges have found the warrant invalid, but have granted the FBI the "good faith" exception or found that the information harvested by the agency's hacking tool isn't protected under the Fourth Amendment. In one particularly memorable case, the presiding judge wandered off script and conflated security and privacy, suggesting that because computer hacking is so commonplace, the FBI should be allowed to peek into compromised computers (and compromise them!) and extract whatever it can without worrying about tripping all over the Fourth Amendment.

With hundreds of cases all over the nation (and many more handed off to foreign law enforcement agencies) stemming from a single warrant, this collection of rulings is far from coherent. But, more often than not, judges have found that the reach of the FBI's NIT deployment far exceeded its Rule 41 grasp. That all could change by the end of the year, making future investigations handled in this manner (running seized websites to deploy hacking tools) much less likely to be successfully challenged in court.

Judge Pratt's ruling [PDF], however, did at least shut down the government's Third Party Doctrine arguments.

There is a significant difference between obtaining an IP address from a third party and obtaining it directly from a defendant’s computer.

[...]

If a defendant writes his IP address on a piece of paper and places it in a drawer in his home, there would be no question that law enforcement would need a warrant to access that piece of paper—even accepting that the defendant had no reasonable expectation of privacy in the IP address itself. Here, Defendants' IP addresses were stored on their computers in their homes rather than in a drawer.

Analogies to physical objects are seldom perfect, but Pratt's does better than most.

"Judge Pratt correctly interpreted the NIT's function and picked the correct analogy," Fred Jennings, a New York-based lawyer who has worked on numerous computer crime cases, told Ars. Jennings continues:

[Pratt] correctly points out that the usual analogies, to tracking devices or IP information turned over by a third-party service provider, are inapplicable to this type of government hacking. A common theme in digital privacy, with Fourth Amendment issues especially, is the difficulty of analogizing to apt precedent—there are nuances to digital communication that simply don't trace back well to 20th-century precedent about physical intrusion or literal wiretapping.

The evidence suppression will likely result in charges being dropped, as anything located on the defendant's devices would have stemmed from the invalid NIT warrant. Outcomes like these don't do much to appease the general public, as the actions alleged are often viewed as indefensible. But the ugliness of the crime has no bearing on the Constitution and the rules governing search warrants.

The FBI can't play by different rules just because the targets are less sympathetic. That's why the push back against the proposed Rule 41 changes is important, because alterations to jurisdictional limits won't solely be used to chase down the worst of the worst. It will greatly expand the reach of questionable search warrants and investigative tools and encourage magistrate shopping by law enforcement to lower the level of scrutiny their deficient affidavits might otherwise receive.

Filed Under: doj, evidence, fbi, nit, playpen, warrant

AP, USA Today, Vice Sue FBI Over Refusal To Release Information About Contractor Who Cracked iPhone For It

from the exemption-(b)ecause-shut-up dept

USA Today, the Associated Press, and Vice News have joined forces to sue the FBI over its refusal to release even the most minimal amount of information on the hack it purchased to crack open the iPhone seized during its San Bernardino shooting investigation.

The DOJ certainly seemed adamant that Apple disclose all sorts of inside info to the government during the heated litigation. It turned down offers of assistance from hackers and security researchers before finally shelling out an unknown amount of money to an Israeli firm to gain access to the phone's contents. It also ensured it would never have to discuss the technical details of the hacking by not demanding this information be included in the purchase price.

Now, it refuses to even discuss the purchase price. Educated guesses that put it north of $1 million are based on a James Comey comment in which he said it was several times his annual salary. Somehow, the actual amount paid -- if revealed -- would somehow prevent the FBI's investigation from reaching its conclusion.

This FOIA lawsuit [PDF] targets other innocuous information the FBI refuses to release: contractor info on the party used to open up the seized iPhone (and discover nothing of investigative use on it).

This action is brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq., for basic contracting information from the Federal Bureau of Investigation (“FBI”) regarding one of its most publicly-discussed and controversial acquisitions: a technological tool openly purchased from a third-party vendor that was used to circumvent the need for a court order to access the locked iPhone of Syed Rizwan Farook, one of the perpetrators of the mass killings in San Bernardino, California.

As the lawsuit cleverly points out by using FBI director James Comey's own words against him, the public's interest in this information should easily outweigh the FBI's stated reasons for withholding it.

[T]he News Organizations seek to compel the FBI to provide records of the publicly-acknowledged business transaction that resulted in the purchase this March of the so-called iPhone access tool. The public interest in receiving this information is significant. The FBI’s purchase of this tool allowed government access to Mr. Farook’s phone, providing new information about one of the deadliest attacks on American soil in recent years, but also apparently failing to reveal any evidence of links between Mr. Farook and foreign terrorists or terrorist organizations...

FBI Director James Comey has himself stressed the essential importance of a nationwide “adult conversation” about whether and when law enforcement should be able to access encrypted devices because, “‘We’ve got to get to a point where we can reach [wrongdoers] as easily as they can reach us and change behavior by that reach-out.’” Mr. Comey also noted the need for increased information sharing with the public, an acknowledgment particularly critical given the potential of future legislative action on this issue, noting, “‘We need to understand in the FBI, how is this exactly affecting our work, and then share that with folks.’”

Moreover, the FBI’s purchase of the technology – and its subsequent verification that it had successfully obtained the data it was seeking thanks to that technology – confirmed that a serious undisclosed security vulnerability existed (and likely still exists) in one of the most popular consumer products in the world. And in order to exploit that vulnerability, the FBI contracted with an unidentified third-party vendor, effectively sanctioning that party to retain this potentially dangerous technology without any public assurance about what that vendor represents, whether the vendor has adequate security measures, whether the vendor is a proper recipient of government funds, or whether it will act only in the public interest.

The complaint points out the FBI has offered up zero information on this mysterious contractor, leaving several questions unanswered. The agency has refused to turn over anything on the vetting process used to select this vendor, raising the possibility that the FBI's chosen hacking entity may also be aiding blacklisted governments, terrorist groups, or criminals with accessing communications and data.

The news agencies participating in the lawsuit have been seeking this info since the All Writs Order was vacated back in March. Every request has been denied. The lawsuit seeks an order compelling the release of this information.

The DOJ will obviously fight this but it should be an interesting case to watch… if there's anything to be seen from the outside. Despite the hack being specific to one iPhone make running one specific version of iOS -- and there being nothing of interest found on the cracked phone -- the DOJ is sure to claim that any disclosure, however minimal, will do serious damage to national security and law enforcement means and methods.

Filed Under: cracked, doj, encryption, fbi, foia, going dark, iphone, san bernardino, transparency
Companies: ap, usa today, vice

Congressman In Charge Of OPM Hacking Report Announces Plan To Investigate Stingray Use Next

from the a-stingray-sting dept

Representative Jason Chaffetz, fresh off his bombshell report on the OPM hacking, is promising to drop another explosive report in the future. This one will deal with law enforcement's dirty little secret -- one that's not that much of a secret anymore.

The Stingray, a controversial cellphone tracking device used by the U.S. government and law enforcement, will be the subject of a forthcoming investigation from the House Oversight Committee, according to Committee Chairman Jason Chaffetz (R-Utah).

"You will be shocked at what the federal government is doing to collect your personal information," Chaffetz said on Wednesday morning. "And they can't keep it secure, that's the point."

It's a good point, one fresh in the mind of millions thanks to the just-delivered OPM report. The government appears willing to take security seriously if it means doling out tax dollars to dozens of agencies with cyberstars in their eyes and crafting bad legislation, but not so much when it comes to actually ensuring its own backyard is locked down.

Chaffetz was one of the legislators behind the 2015 attempt to turn the DOJ's Stingray guidance into law, laying down a warrant requirement for US law enforcement. Unfortunately, the bill went nowhere. Presumably, a thorough investigation into law enforcement use of this repurposed war tech might prompt more legislative cooperation in the future.

Chaffetz has done little to endear himself to security and law enforcement agencies since his arrival on the Hill. In addition to the failed Stingray warrant bill, Chaffetz also partnered with Ron Wyden to attempt to add a warrant requirement for law enforcement GPS tracking -- something the Supreme Court almost addressed in its US v. Jones decision.

He also made new friends with the Secret Service while grilling officials over an incident where drunken agents arrived on the scene of a "suspicious package" report in spectacular fashion, crashing the vehicle they were driving into a White House barricade. Almost as soon as the hearing had begun, Secret Service employees were accessing Chaffetz's personal info (generated by his attempt to join the Secret Service in 2003), hoping to find something embarrassing they could use to discredit him.

This new report will further alienate law enforcement agencies and personnel, starting with the FBI -- which has acted as Stingray Overlord since the introduction of the equipment -- and trickling all the way down to the local level, where agencies have relied on secrecy, lies, and case dismissals to keep information about the cell phone-tracking devices from being made public.

Filed Under: doj, investigation, jason chaffetz, law enforcement, oversight, stingray

Pressure Mounts to Punish Russia For Hacking Without Evidence And Before Investigations Are Concluded

from the evidence-is-for-sissies dept

While it's certainly possible Russia has been busy using hackers to meddle in (or at least stoke the idiot pyres burning beneath) the U.S. elections, we've noted how actual evidence of this is hard to come by. At the moment, most of this evidence consists of either comments by anonymous government officials, or murky proclamations from security firms that have everything to gain financially from stoking cybersecurity tensions. Of course, transparent evidence is hard to come by when talking about hackers capable of false flag operations while obfuscating their footprints completely.

Granted that hasn't stopped people from demanding a cyber or real world attack on Russia, both idiotic ideas for what should be obvious reasons. But with no hard evidence forthcoming, those looking for perceived justice are apparently getting a little punchy. The Washington Post notes that the government continues to conduct an investigation into the DNC hacks, but the whole "obtaining actual evidence before doing anything stupid" thing is clearly frustrating the 1980's action movie sect of the intelligence community:

"The White House’s and some Cabinet officials’ insistence on awaiting the probe’s results has frustrated some officials at the FBI, the Justice Department and within the intelligence community, who favor holding Moscow accountable. The White House’s continued requests for more evidence, said one official, is “to delay — purposely delay” a public attribution."

Again, it's not like you're going to find a goddamned memo linking Russia to the DNC hacks, and any hacker worth his or her salt isn't going to leave evidence of the hack or their ties to a nation state. There's also the ongoing reality that the leading country when it comes to nation state hacking has generally been the United States, making any vocal moral repudiation kind of laughable. Still, that doesn't seem to be stopping folks like Senator Ben Sasse, who insists that we should just skip the whole actual evidence thing and proceed to lambasting Russia for doing what the United States has done for decades:

"Sen. Ben Sasse (R-Neb.), a member of the Homeland Security committee, said President Obama should publicly name Russia and do so before the November election. A failure to do so will only encourage further cyber intrusions and meddling in the U.S. election, he said.

“If the Obama administration has a reason for not clearly attributing these hacks to Russia, it contradicts their own cyber strategy,” Sasse said. “If they’re silent because it would invite response, that suggests that we’re operating from a position of weakness — in other words, we know that we need to aggressively deter cyberattacks, but we are too vulnerable to do it. Neither scenario is reassuring."

But again, what good is publicly shaming Russia for hacking when you've spent decades doing the same thing -- or worse? The only net outcome is you wind up looking like a giant, blithering hypocrite to the global community. The entire article stumbles on like this, quoting various officials on and off the record demanding we do everything from impose sanctions to start leaking Putin's dirty laundry:

"The National Security Agency, for instance, could disrupt a Russian computer system in a way that leaves no doubt who did it and that warns the Russians “to knock it off,” one former intelligence official said. Or the CIA could leak documents that are embarrassing in some way to Russian President Vladi­mir Putin."

Attack! Attack! Who needs evidence? Who needs the moral high ground? Generally, the press-driven public dialogue on cybersecurity and intelligence is so far from what's actually happening in the wild (as intelligence whistleblowers illustrate every few years) that one really should treat press reports on the subject as creative fiction. Combine that with the way nationalism leads to hypocrisy and the fact that most of these "former intelligence officials" don't even know what a gigabyte is, and you've got a recipe for keystone-cops-esque high comedy.

Again, none of this is to suggest that Russia isn't hacking the United States. But to ignore that all nation states are hacking each other all the time is myopic, and suggesting the DNC attack constitutes some rare breach of international ethics is hysterically naive given what we know about the States' own hacking attacks. The real danger here remains the threat of false flag hacking attacks and misinformation campaigns designed to prompt countries to dramatic action without substantive proof. The smarter path is to focus this energy on securing, upgrading and patching government systems to protect against intrusion, even though that's certainly a lot less fun than starting a new world war just because you think hard evidence is for sissies.

Filed Under: cybersecurity, dod, doj, hacking, politics, response, russia, us government

DOJ To Researchers: First Amendment Does Not Protect Violating Websites' Terms Of Services

from the SRO-only-in-the-court-and-not-much-here-to-grab-floor-space dept

The woefully out-of-date CFAA -- the product of panicked early-80s legislating in response to underdeveloped hacker fears -- continues to hold back research (both of the security and non-security kind) when not being wielded like the prehistoric weapon it is by the DOJ and multiple entities who prefer bludgeoning the messenger to fixing their broken systems.

Because of the ongoing misuse and abuse of a badly-written law (aided and abetted by some terrible court decisions), a group of academic researchers has decided to proactively sue the government over its terrible legislation, rather than wait around to get sued/indicted for attempting to determine if individual websites exhibit bias against certain users.

They've enlisted the help of the ACLU, which filed its suit against Attorney General Loretta Lynch back in June. The DOJ has responded with a motion to dismiss [PDF] that claims everything is wrong with the lawsuit, from the issue of standing to multiple failures to state a claim under the First and Fifth Amendments.

Plaintiffs fail to allege an injury in fact sufficient to meet the constitutional minimum of standing. Standing to assert pre-enforcement statutory challenges under the First and Fifth Amendments may exist where the statute in question regulates constitutionally protected conduct and a credible fear of prosecution exists. The challenged provision of the CFAA, however, does not facially regulate protected conduct, and the conduct in which plaintiffs intend to engage—deploying information-gathering software on the websites of non-consenting private entities—is not activity that the First Amendment protects. Moreover, plaintiffs fail to provide any facts indicating a credible threat that the challenged provision will be enforced against them: plaintiffs do not allege to have been investigated by law enforcement or threatened with an enforcement action; plaintiffs do not identify any cases in which the government has sought to enforce the CFAA for harmless terms of use violations that were not in furtherance another crime or tort; and the government has affirmatively stated that it has no intention to enforce the CFAA under the circumstances alleged here. Accordingly, plaintiffs are unable to assert an objectively credible threat of prosecution and, as a result, their complaint must be dismissed on standing grounds.

It is indeed difficult to sue to prevent things from happening, rather than suing to seek recourse after damage has been done. Speculating about future Constitutional violations is even less likely to succeed, as many courts tend to avoid tangling with any civil liberties questions not directly implicated by the case at hand. These two issues alone may find the court agreeing with the DOJ's assertions.

However, other assertions made by the government aren't as solid. While it is true the DOJ tends not to prosecute simple CFAA violations without a connection to other criminal activity, when it does choose to do so, it tends to respond with zealous, fear-based prosecution and incredibly severe sentence recommendations.

That the DOJ has magnanimously offered to not enforce the CFAA against the researchers at this point is heartening, as far as that promise goes. The DOJ may have no intention of doing so now, but if the researchers roll up on the wrong website and set some influential wheels to squeaking, that could change.

The DOJ is on less solid ground when it argues the CFAA does not create a chilling effect. It may be that the research effort (deploying bots to simulate job seekers, home buyers, etc.) is not a form of protected speech, but that doesn't mean speech -- and research efforts -- aren't being deterred by the badly-written and vaguely-interpreted law.

The government doesn't contend, however, that the results of the research won't be protected under the First Amendment -- just that the method of gathering the data isn't.

Here, plaintiffs allege that the challenged provision of the CFAA has chilled their desire to deploy software technology designed to gather information from the websites of private corporations without the permission of those corporations and in a manner that the relevant website terms of use expressly prohibit. The systemic collection of information from the websites of non-consenting private entities is not conduct the First Amendment protects, and thus plaintiffs are unable to assert a reasonable First Amendment chill with respect to that conduct.

[...]

Thus, just as there is no First Amendment right to gather information by personally travelling to a sanctioned country, and no First Amendment right to gather information by visiting a jail without the permission of the warden, and no First Amendment right to access information in electronic form rather than paper form, there is likewise no First Amendment right to gather information controlled by private entities by deploying a data-scraping computer program on the websites of those entities without their permission and in a manner that the entities explicitly prohibit.

And there's the chicken-egg problem with the First Amendment, which follows after the other chicken-egg dilemma of having to wait to be prosecuted (or threatened with prosecution) before being granted standing to challenge the government's enforcement efforts. To use the DOJ's cited equivalents, delivering the news is protected under the First Amendment. Gathering it, however, may not be.

What the DOJ doesn't spend any time explaining is why researchers might get the idea the government would come after them for performing this research. The DOJ has explicitly stated in the past that violating a website's terms of use violates the CFAA, making criminals of millions of pre-teens with Facebook or Twitter accounts. And the DOJ's own suggested rewriting of the CFAA looks to turn previous misdemeanors into felonies, including the sort of activity the researchers are proposing.

...knowingly and willfully traffics... in any password or similar information, or any other means of access, knowing or having reason to know that a protected computer would be accessed or damaged without authorization in a manner prohibited by this section…

The rewrite removes a key phrase: "with intent to defraud." This excision turns the researchers' plan to search for bias in websites into an admission of felonious intent.

That being said, there's a good chance this lawsuit will be tossed quickly. The route to CFAA reform still flows (slowly and sometimes, stupidly) through Congress. Unfortunately, the stakeholders with the loudest voices are those who prosecute under the law, rather than those punished by it. Because of that barrier to true reform, efforts to attack the law from oblique angles are likely to appear periodically until the law is overhauled… or replaced with something worse.

Filed Under: cfaa, chilling effects, doj, first amendment, hacking, research
Companies: aclu

DOJ Proudly Trumpets Its Completely BS 91% FOIA Response Rate

from the transparency-through-statistical-manipulation dept

Lies, damned lies, and the DOJ's FOIA fulfillment rate.

Tom Susman, a member of the FOIA Advisory Committee, emailed the heads of the Justice Department’s Office of Information Policy (OIP) and Office of Government Information Services (OGIS) on the discrepancy between the misleading 91 percent FOIA release rate commonly cited by OIP – and repeated by the rest of the government – and the more accurate release rate calculated by the Archive and others of between 50 and 60 percent.

The only entity that believes the DOJ has fulfilled 9 out of 10 FOIA requests is the DOJ. Anyone on the receiving end of its "responses" finds this number laughable.

First off, the DOJ's apparently including the thousands of requests it fulfills years after they've been requested. It's also including partial responses. And its hit rate is greatly padded by "releases" in which nothing was actually released.

[M]y experience has been that including released in part in the overall “disclosure rate” is likely to be very deceptive. In one recent example from the Department of Education, the agency “released” 200 pages of documents to a FOIA requester, only two of which were not totally redacted, and those two were correspondence from the requester. This, of course, would be counted as “released” under the 91 percent tally, but not in my universe.

Also likely included in the DOJ's inflated sense of self-worth:

- Fulfillments where "no responsive documents can be found," even when it's clear there are documents to be found

- Responses where the DOJ has claimed it can't find documents it has already released publicly

- Responses where the DOJ has been forced to turn over documents by court decisions

The number released by the DOJ is just plain dishonest. It gives the "most transparent administration" a win it clearly hasn't earned and misrepresents the FOIA experience to the general public. It gives the DOJ something to further ward off FOIA reform attempts and implies that those who do complain about its general unresponsiveness are probably blowing things out of proportion.

As Lauren Harper of Unredacted points out, the touting of this bogus success rate only makes it less likely the federal government will seriously address its constant FOIA shortcomings.

When the White House, DOJ, or others cite a 91 percent “success statistic” their aim is to present a view to the public that FOIA is working 91 percent of the time. Anyone that has looked at the stats – including the blanket denials, redactions, decades long waits – or has filed a FOIA request, knows that this “statistic” is far from the truth. A better track for the administration would be to candidly acknowledge the problems facing FOIA and work openly to fix them.

Let's face it: the DOJ isn't going to change until forced to -- "presumption of disclosure" or not. This administration has done almost nothing to push for greater transparency and neither of the incoming presidential candidates -- Hillary "Homebrew" Clinton or Donald "I Can Make My Own Laws, Right?" Trump -- are likely to have a positive effect on government accountability going forward.

Certainly, there are still legislators who are pushing for better transparency, but they're stymied by powerful agencies like the DOJ -- and, often, the administration itself. The DOJ presides over agencies which have done everything but order a hit on prolific FOIA requesters like Jason Leopold. And, while the move towards a "release to one, release to all" policy on FOIA responses is better for the public in general, it's also likely intended to discourage journalists from chasing down obscure government secrets by removing the possibility of "scooping" competitors.

The worst part is the DOJ likely doesn't care whether the general public believes its inflated response numbers. Like far too many federal agencies, it has long since shrugged off any pretense of acting in the public's interest. Its "91%" whitewash of its FOIA responsiveness covers up a 50-60% response rate -- one that's likely good enough for government work. Especially the sort of work few in the government show any interest in performing.

Filed Under: doj, foia, transparency

AT&T's Already Happily Tap Dancing Around Its DirecTV Merger Obligations

from the ye-olde-merger-condition-two-step dept

If you've followed the telecom sector for any amount of time, you've probably noticed that the merger conditions affixed to its rotating crop of mega-mergers are usually hot garbage. Frequently the ankle-height goals are proposed by the companies themselves, and are usually something the companies planned on doing anyway. Telecom companies also know full well that regulators historically can't be bothered to check their math on such promises, letting them essentially trot out a rotating crop of feel good, but totally hollow "obligations" before they get to work laying off redundant employees and raising rates.

It's a win-win relationship of dysfunction, where giant companies get to grow ever larger, and regulators score cheap political points for "toughness" thanks to a media that can't be bothered to actually read the fine print of such deals, lest readership get bored.

When Comcast was pushing for its 2011 acquisition of NBC Universal it crafted a new wrinkle in this old story. It proposed offering $10, 5 Mbps broadband to low-income homes if regulators signed off on the deal. And while regulators were happy to promote this as yeoman's work in bridging the digital divide, it didn't take long before low-income families began protesting in the streets, pointing out the plan was hard to find, hard to qualify for, and difficult to sign up for. Still, Comcast's "Internet Essentials" plan has been a PR bonanza, with the cable giant holding an endless barrage of PR junkets advertising its selfless altruism.

To get regulators to sign off on its $69 billion DirecTV acquisition, AT&T proposed a similar $10 low-income broadband program it calls "Access." Under Access, low-income homes can get discounted, slow DSL service for an unspecified limited time -- provided they are in AT&T territory, have no outstanding debt with AT&T, and have at least one resident who participates in the US Supplemental Nutrition Assistance Program (SNAP). Under the program, users can get 5 Mbps or 10 Mbps DSL for the $10 price point, or 3 Mbps for $5 a month, which certainly sounds promising.

But the National Digital Inclusion Alliance this week issued a report noting that the company oddly omitted homes that can only get speeds of 1.5 Mbps. Given ISPs' tendency to refuse to upgrade many low-income areas, this naturally exempted a significant number of inner city applicants that might otherwise qualify for the service:

"You might think we're talking about a few isolated rural areas here. Think again. According to data published by the FCC from its Form 477 surveys of providers, AT&T's fastest reported download connection for VDSL (its current version of Digital Subscriber Line service) was 1.5 mbps or less for households in about 21% of all Census blocks in the cities of Cleveland and Detroit. Those blocks are mostly in inner-city neighborhoods with many low income households."

In a city like Cleveland, where AT&T has had little competitive incentive to upgrade its low-income urban networks, you're ultimately talking about a significant number of the poorest communities being unable to get speeds much faster than 1.5 Mbps: So the group asked AT&T if they wouldn't mind, you know, actually offering the discounted service to these slower-lines, and found their request flatly refused:

"About two months ago, NDIA contacted senior management at AT&T and proposed a change in the program to allow SNAP participants living at addresses with 1.5 Mbps to qualify for Access service at $5/mo. Yes, we know we were asking for the minimum speed to be lower than it should be, but paying $5/mo is better than paying full price and in many neighborhoods, both urban and rural, Access is the only low-cost broadband service option.

I'm sorry to report that, after considering NDIA's proposal for over a month, AT&T said no. “AT&T is not prepared to expand the low income offer to additional speed tiers beyond those established as a condition of the merger approval."

That shouldn't be too surprising. These low-income programs sound great upon shallow inspection, but once you've weeded out consumers that already have service, or owe their phone or cable company money (kind of common when you're struggling to pay the bills), you've already eliminated a huge swath of qualified applicants. AT&T apparently thought they could shave off another few million qualified households countrywide by refusing to provide service to its slower 1.5 Mbps DSL customers, hoping nobody would notice.

Of course, it's possible that AT&T will buckle should this story gain some mainstream media attention (unlikely), and promote its inclusion of 1.5 Mbps as just another generous act of altruism in the company's neverending quest to protect the poor.

AT&T's other "major" DirecTV merger condition was that it would deploy fiber to millions of additional homes, but as we've long noted, the company has a long history of fiddling with numbers to falsely inflate its deployment projections for such services. When it comes to fiber deployments, AT&T's often just lighting up some existing, already buried fiber at high-end housing developments, then crowing in a rotating crop of press releases that it has "launched" yet another market -- despite the fact that few can actually get the service.

After more than a generation, AT&T is the master of the merger condition two-step, having effectively tap danced around conditions affixed to most of its previous acquisitions, including BellSouth. For that deal, AT&T promised stand alone DSL at a discounted rate, then went out of its way to hide the offer from consumers. Regulators often don't bother to fact check or enforce such flagrant middle fingers after the fact since it would be an admission that the conditions -- and the mega-mergers they help prop up -- quite often actively harm the consumers regulators are supposed to be looking out for.

Filed Under: broadband, doj, fcc, low income, merger, requirements
Companies: at&t, directv

ACLU Challenges Gag Orders Issued To Tech Companies By The DOJ

from the hey,-we-notified-SOMEBODY...-that-counts-for-something dept

The ACLU is hoping to intervene in Microsoft's legal battle against the government, challenging gag orders attached to warrants and subpoenas issued under the Electronic Communications Privacy Act (ECPA). Microsoft sued the DOJ back in April, arguing for the right to notify customers that their communications and data have been handed over to the government.

Microsoft didn't have a problem with the government's gag orders in every case. It's just that the demand for secrecy accompanied more than half of the ~300 orders per month Microsoft receives. And nearly 70% of those gag orders arrived with no fixed end date.

The ACLU petitioned the court to intervene in the case on its own behalf, citing its position as a Microsoft customer. The DOJ filed a motion to dismiss Microsoft's lawsuit, hoping the court will find Microsoft has no standing to challenge gag orders on its customers' behalf. The ACLU is trying to prevent this from happening until the DOJ addresses the issues raised by the ACLU's (attempted) intervention. In its opposition [PDF] to the DOJ's motion, the ACLU points out that the government's "no standing" argument pretty much nullifies any sort of due process for Microsoft customers (including the ACLU) who've been targeted by the DOJ's super-secret warrants, relegating them to a Kafka-esque legal purgatory.

The government attempts to insulate its refusal to provide notice from judicial review, arguing that neither Microsoft nor the ACLU has standing to raise these important constitutional questions. By the government’s logic, Microsoft does not ever have standing to defend its customers’ right to notice, and Microsoft’s customers, including the ACLU, may not defend their own right to notice until after they receive the primary relief they would seek—that is, notice. In the government’s view, the only plaintiffs who have standing to sue for notice are those who have already gotten it, and those deprived of notice forever have no ability to seek a remedy at all. That is not the law.

The hope here is to not only find the open-ended gag orders unconstitutional, but also the law granting this secrecy -- the ECPA -- unconstitutional as well. The shift from physical "papers" to digital files was addressed by legislators in the worst way possible. The ECPA did away with the notification requirement attached to searches of physical places. When a home or business is searched, the owner or resident is served with a warrant. For electronic communications, a third party is approached. Legislators apparently felt as long as someone was notified, that was good enough -- even if that someone isn't the target of the search warrant.

That's basically the government's argument: notice is served to the site of intrusion. If the affected parties don't actually reside there (but their "papers" do), too bad.

The government’s argument conflates a historical anachronism with a constitutional principle. The government is correct that officers traditionally provided Fourth Amendment notice at the physical site of the intrusion. But that is so because, for the first 175 years of the Fourth Amendment’s application, it was understood to cover primarily physical trespasses. See Katz, 389 U.S. at 353. As a result, notice provided at the site of the intrusion was notice to the individual whose Fourth Amendment rights were at stake. It is no surprise, therefore, that Federal Rule of Criminal Procedure 41 reflects that historical context. Under Rule 41(f), an officer executing a warrant must “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.”

The ECPA is the DOJ's argument committed to paper. Notice only needs to be provided to the third party where communications and documents are held. To ensure the party whose documents/communications are being taken is kept out of the loop, the DOJ takes the wording of the law to heart and ignores the intent behind the Fourth Amendment protections granted to citizens.

The ECPA does not require the government to provide notice when it relies on a warrant, and so the government now routinely searches and seizes individuals’ electronic communications without providing any notice—delayed or otherwise—to those whose private information it has obtained. According to Microsoft’s Complaint, nearly half of the federal demands it has received under ECPA in the last eighteen months were accompanied by gag orders, the majority of which contained no time limit. Accordingly, a substantial portion of the individuals whose electronic communications the government demands from Microsoft receive no notice whatsoever, from either the government or Microsoft.

The law undercuts the Fourth Amendment by preventing those affected from challenging the lawfulness of the search or seeking redress through the judicial system for violations. Gag orders that run indefinitely allow the government to avoid being held accountable for any wrongdoing. In addition, the service of warrants to third parties is done without any meaningful oversight, putting the DOJ in the position of policing itself -- something it does with no particular enthusiasm or effectiveness.

Filed Under: doj, ecpa, gag order, standing, subpoena, surveillance, warrants
Companies: aclu, microsoft