California Cops Continue To Pretend New Public Records Law Allows Them To Erase Years Of Past Misconduct From The Record

from the and-yet,-people-continue-to-distrust-cops.-it's-a-mystery. dept

On January 1st, a California law went into effect turning long-shielded police misconduct records into public records. Prior to its enactment, at least one law enforcement agency executed a mass purge of older records, preemptively stunting the law's effectiveness.

The law has also faced legal challenges from California police unions and law enforcement agencies seeking a declaration that the law is not retroactive and PDs should only have to release misconduct records created past the date of the law's effectiveness. The state Supreme Court declined an invitation to review the law, but three police unions in Contra Costa County have managed to secure a temporary restraining order while this aspect of the law is sorted out.

The law doesn't contain any language suggesting it does not apply retroactively. But it also doesn't contain any language specifically stating it applies retroactively and that's the wedge law enforcement agencies are trying to drive between themselves and their new obligations to the public. But the lawsuits aren't just coming from the law enforcement side. Agencies are now being sued for failing to turn over documents the new law says the public can obtain.

In a legal test of a new state law requiring the release of police records in shootings and other cases, The Sacramento Bee and the Los Angeles Times jointly sued the Sacramento Sheriff’s Department Friday, charging that the department is refusing to follow the statute that requires the release of records on deputies who fired their weapons or engaged in misconduct on duty.

The papers sought records of officer-involved shootings dating back to 2014. The Sheriff's Departments responded by saying it had no obligation to turn over records created prior to January 1, 2019 and would not do so until it had "clear legal authority" to release them. This lawsuit [PDF] forces the issue, putting it on the court's timetable, rather than the Sheriff's.

As the plaintiffs point out, it's not just transparency activists reading the law as retroactive. It's also one of California's largest police unions.

Respondent has taken the position that Senate Bill 1421 does not apply to the records requested “so only records of covered events occurring on or after January 1, 2019 will be disclosed.” (See Exhibit B; Exhibit D.) Respondent is mistaken. Indeed, even an opponent of Senate Bill 1421, the Los Angeles County Professional Peace Officers Association (“LACPPOA”), admitted, “Moreover, our reading of Senate Bill 1421 is that making the records of an officer’s lawful and in policy conduct is retroactive in its impact. In other words, notwithstanding that the officer’s conduct was entirely in policy, his or her records are available for public inspection irrespective of whether or not they occurred prior to the effective date of SB 1421.”

The state's courts are going to be filling up with similar filings from both sides over the coming weeks. This should hopefully expedite erasing the supposed ambiguity from the law. Hopefully, the courts will consider the intent of the law's crafters, which was to give the public access to police misconduct records to better the police/public relations. This is clearly stated in the legislation itself:

SECTION 1.

The Legislature finds and declares all of the following:

(a) Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority — the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as significant public unrest.

(b) The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.

Nothing in that language suggests legislators wanted to reset the clock on January 1st, giving all law enforcement officers a clean slate going forward. The intent of the law is not to erase past misconduct. That doesn't serve its ultimate purpose, which is to restore the "public's faith in the legitimacy of law enforcement." Reading the law the way police unions want it read will only further deteriorate this ailing relationship.

Filed Under: california, discipline, foia, police, records, transparency

The FBI Says It Can Neither Confirm Or Deny Social Media Monitoring Programs It Publicly Secured Contracts For

from the who-are-you-going-to-believe,-us-or-your-lying-search-results? dept

It's no secret the FBI engages in social media surveillance. It has a contract with Dataminr to sift through tweets directly from Twitter's firehose. For years it has engaged in suspicionless pre-investigation "assessments," which compile every publicly-available piece of information the agency can gather without a warrant or subpoena. (Assessments also allow the agency to gather info from law enforcement-only databases, but that's not the issue at hand here.) From this starting point, the FBI can decide whether or not the person it targeted in its non-investigation investigation is worth investigating.

Public posts on social media services have zero expectation of privacy. All the same, one likes to believe the government has better things to do with its limited resources than scour the public-facing web for unlawful tweets or whatever. Clearly, the software the agency uses limits manpower expenditures while allowing the feds to act as unseen followers/friends of thousands of people's social media timelines, but it's still haystacks someone needs to make sense of.

The FBI's social media surveillance is an open secret. Of course, now that it's being pressed for details by the ACLU, it's trying to pretend it has no idea what everyone -- including the FBI -- is talking about.

In recent years, the federal government has significantly ramped up its efforts to monitor people on social media. The FBI, for one, has repeatedly acknowledged that it engages in surveillance of social media posts. So it was surprising when the bureau responded to our Freedom of Information Act request on this kind of surveillance by saying that it “can neither confirm nor deny the existence of records.”

The six other federal agencies we submitted the FOIA request to haven’t produced a single document. The request, filed last May, seeks information on how the agencies collect and analyze posts from Facebook, Twitter, and other social media sites.

It's been more than eight months since the ACLU asked for records. All it's received is categorical non-denial. So, the ACLU is suing the agency (and a few others) to force the release of these records. The FBI's public acknowledgment of its surveillance really isn't going to help it keep these records hidden. Here are a few publicly-available resources that suggest the FBI should be able to do far more than pretend it can't say anything at all about its social media surveillance programs. From the lawsuit [PDF]:

DOJ and its component agencies use social media surveillance for law enforcement purposes. In 2012, the FBI sought information from contractors on a planned automated tool that would enable the FBI to search and monitor information on social media platforms. The FBI also revealed in November 2016 that it would acquire social media monitoring software that would give it full access to Twitter data, searchable using customizable filters “tailored to operational needs.” Federal Bureau of Investigation, Requisition Number DJF17-1300-PR00000555, Limited Source Justification at 1 (Nov. 8, 2016).

News reports further indicate that the FBI has established a social media surveillance task force. See Chip Gibbons, “The FBI Is Setting Up a Task Force to Monitor Social Media,” The Nation, Feb. 1, 2018. The purpose and scope of the task force remain unclear.

Why should we care if the government is sweeping up content from our public social media accounts? Well, because of the side effects, which include damage to First Amendment protections and the possibility of finding yourself in the custody of government agents thanks to their innate inability to consider comments in context.

Online speech is generally subject to the full protections of the First Amendment and should not serve as the basis for surveillance, investigation, or other adverse government actions, like placing people on watchlists. Government surveillance and retention of online speech without any connection to the investigation of actual criminal conduct makes it more likely that innocent people will wrongly be investigated, surveilled, or watchlisted. Additionally, public awareness that the government systematically monitors social media discourages the expression of disfavored or potentially controversial speech, which the First Amendment protects.

The FBI -- and other federal agencies -- need to let the public know what they're doing with all this "public" information. If they feel the lack of privacy protections makes it ok to engage in widespread monitoring of social media accounts, the least they can do in return is explain how this information will be used and what safeguards, if any, are in place to deter abuse or erroneous investigations.

Filed Under: fbi, foia, media monitoring, social media, transparency
Companies: aclu

Intelligence Agencies Sued For Refusing To Turn Over Documents Related To Jamal Khashoggi's Brutal Murder

from the letting-the-passage-of-time-do-the-dirty-work dept

The shocking and brutal murder of Washington Post journalist Jamal Khashoggi by members of the Saudi Arabian government late last year was breathtaking in its audacity and execution. Lured to the Saudi consulate in Turkey by Saudi government officials, Khashoggi was strangled and dismembered by a team of Saudi security operatives.

Khashoggi was a legal resident of the United States, in self-imposed exile from Saudi Arabia as a result of the government's treatment of dissidents. As a lawful resident, Khashoggi was technically protected by the many of the same laws and rights US citizens are. While the US government limits those rights and protections when legal residents (but not citizens) travel out of the country, the US intelligence community still bears a "duty to warn" lawful residents of any violent threats against them.

The IC knew Khashoggi was a target of the Saudi government. It knew Riyadh had "something unpleasant" waiting for Khashoggi should he return to Saudi Arabia. A plan to lure Khashoggi back to Saudi Arabia was intercepted by US intelligence. No one knows whether Khashoggi was ever warned by US intelligence of these plans.

The Committee to Protect Journalists -- along with the Knight Institute -- wants to know if any attempts were made to inform the murdered journalist of Saudi Arabia's plans. So far, the Office of the Director of National Intelligence has refused to publicly comment on the IC's "duty to warn." These two entities have filed FOIA requests seeking info about the IC's duty to warn Jamal Khashoggi, asking each of the IC's five components to release documents detailing their actions/inactions. These were filed shortly after news broke of Khashoggi's murder. So far, none of the agencies have handed over any documents.

As the Knight Institute points out, there definitely should be documents related to Khashoggi and the government's "duty to warn."

Intelligence Community Directive 191 provides that, when a U.S. intelligence agency acquires information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person, the agency must “warn the intended victim or those responsible for protecting the intended victim, as appropriate.” The directive further obligates the agencies to “document and maintain records” on any actions taken pursuant to that duty.

"Document" is a key part of "document and maintain," but so far, the IC agencies haven't turned over any documents, or even admitted they have any. All five agencies have rejected the request for expedited processing and most haven't even gotten around to deciding whether or not a fee waiver applies. So, the two entities have sued [PDF], hoping to jolt the Intelligence Community out of its complacency.

Documents pertaining to the IC's duty to warn are extremely newsworthy... right now. The IC knows this just as much as the plaintiffs know this. But the IC has much more to gain by stonewalling these requests. If these agencies failed to pass on information to Khashoggi -- in effect allowing him to end up in the hands of people who wanted him dead -- it's not going to reflect well on the IC. The longer it takes for the news to get out, the greater the chance a new obscenely-disturbing incident will grab the attention of the American public and allow it to walk away from any dereliction of duty unscathed.

If it does have documents and it did warn Khashoggi of the Saudi government's plans for him, it would make little sense to withhold these facts and allow public perception to fill the void. But the IC tends to indulge in secrecy for secrecy's sake, viewing frustrated requesters, Senators, and Congresspersons as a reward in itself.

Filed Under: duty to warn, foia, jamal khashoggi, journalism, state department, transprarency, us government
Companies: committee to protect journalists, knight institute

Oregon Lawmaker Wants Public Records Requesters To Tell Gov't Agencies What They Plan To Do With Released Documents

from the we'll-decide-what's-acceptable-use dept

As if government agencies needed any new ways to thwart accountability and transparency. Oregon legislators are introducing a host of alterations to the state's public records law, but one of those looks like nothing more than an easily-abusable tool to be wielded against public records requesters. Jessie Gomez of MuckRock has more details:

Senate Bill 609, sponsored by Senator Betsy Johnson (D-Scappoose) at the request of former Representative Deborah Boone, would require requesters to disclose the intended use for records being requested with any state agency. Boone believes the bill would help eliminate requests that [seek] personal information.

“There are so many requests for emails and texts, sometimes tens of thousands, that require hours of someone’s time to research and at present the requestor does not have to disclose what they intend to do with the information,” said Boone via email to MuckRock.

What Boone appears to be concerned about is public records requesters obtaining documents containing personal info and using this info to… well, it's kind of left up to the imagination Here's another quote from Boone that doesn't do much to clear up the bill's purpose.

It seems reasonable to ask that the requestor to disclose what they intend to do with the information, some of which can be of a personal nature.

It actually isn't reasonable to ask this question. There may be an extremely tiny subset of records requesters who seek to extract personal info from public records to engage in harassment or some other form of criminal activity. But it seems someone doing this wouldn't be honest about their intentions even if required to inform a government agency about their plans for the requested documents.

What it will do is allow agencies to unilaterally refuse to release documents to requesters who give them reasons they don't like. The bill doesn't even hint at what would be considered unacceptable use for public records, which means agencies are free to explore the outer limits of the undefined term, leaving requesters with little recourse but lengthy appeals and expensive litigation.

Even better (from the perspective of public servants who dislike serving the public), agencies will be able to compile secret blacklists from which to serve up request rejections, claiming the requester's stated reason for seeking documents is not one of the ones they find acceptable.

Rep. Boone is leaving her office so this is a parting gift for the government she's leaving behind. Don't think it will survive a Constitutional challenge if it ever becomes law, but for now, it's a turd floating in legislative stream.

The stream's not completely ruined, though. There's some good news for records requesters as well.

Other bills include reducing request fees by 50 percent for news media, prohibiting the use of personal email for official business, and awarding attorney fees when agencies fail to respond to record requests.

The best thing the legislature could do is send Boone's bill to her home address postage-due.

Filed Under: betsy johnson, deborah boone, foia, intended use, journalism, oregon, public records, research

Dept. Of Interior Wants To Rewrite FOIA Law To Make It Easier To Reject Requests

from the fully-committed-to-screwing-the-general-populace dept

The US Department of the Interior wants to do all it can to comply with recent changes to FOIA law. It wants transparency and accountability just as much as US citizens want it. In the comments preceding its proposed changes [PDF] to FOIA response procedures, it has this to say:

The Department is fully committed to an equitable FOIA program that ensures compliance with the statutory requirements of transparency, accountability, and prompt production.

Here's how it's planning to "ensure compliance" and produce all the good stuff compliance would bring. (h/t Steve Reilly)

The bureau will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.

Hmm. This doesn't sound like compliance at all. This sounds like an agency rewriting FOIA law to limit the number of FOIA requests it will respond to. This determination will be made solely by the agency, which is giving itself a brand new exception to FOIA requirements. Sure, requesters can challenge this determination, but it's probably going to take a lawsuit to dislodge documents held by an agency so very committed to "transparency, accountability, and prompt production."

The DOI says this new limitation is necessary because it's seen a surge in requests and litigation. These are inextricably linked, thanks to the agency's inability/unwillingness to respond to requests in a timely fashion.

The problem goes deeper than the backlog. Government agencies don't throw much money or manpower at responding to FOIA requests, preferring instead to spend taxpayer dollars fighting taxpayers in court over requested documents.

The DOI's recent leadership has contributed to this problem by making a relatively uninteresting department highly FOIA-able. Ryan Zinke's departure from the Department at the end of last year won't do much to slow the bleeding. Zinke's 21-month stint was marked by controversy after controversy, including shady real estate deals, abuse of travel privileges, $139,000-worth of office doors, and a long list of attacks on animal conservation efforts. The paper trail he leaves behind is of considerable public interest, and the surge in FOIA requests his agency is facing is evidence of that.

The good news is the public can comment on this proposed change. The bad news is, of course, the change could be implemented over the objections of the American people. The suggestion box is open but it's not like anyone's counting votes for and against.

If this does get codified, other federal agencies will certainly push for their own exception -- one that grants them the power to unilaterally reject FOIA requests. This will result in a self-fulfilling justification for increased restrictions on FOIA responses as agencies will always experience an uptick in FOIA litigation with rules like these in place.

Filed Under: department of interior, foia, transparency

The Ajit Pai FCC Often Battles FOIA Requests For No Reason, Showcasing Its Hostility To Transparency

from the ill-communication dept

You might recall that FCC boss Ajit Pai promised to operate the "most transparent" FCC ever. Initially, Pai lived up to that promise by changing FCC policy so that FCC orders would be released before they were voted on; a pretty obvious improvement of benefit to both consumers and ISP lobbyists alike. But in the year or two since, Pai has shown that genuine transparency is the very least of the chairman's priorities.

For example, Pai's FCC has actively refused to aid law enforcement inquiries into who was behind the millions of bogus comments that polluted the net neutrality repeal public comment period. Similarly, the Pai FCC's general response to FOIA requests has been to stall, delay, and ignore said requests whenever possible, resulting in numerous lawsuits by media outlets attempting to get to the bottom of all manner of bizarre FCC policy decisions (like that fake DDOS attack emails show they made up to try and downplay public anger over the net neutrality repeal).

This stonewalling extended to more mundane subject matter, like media inquiries into that giant Reeses mug Pai believes is eccentric. Or inquiries into who was behind that aggressively lame Harlem Shake video that featured Pai and some pizzagate conspiracy theorists trolling net neutrality supporters.

Hip, man, yeah.

As with other, more serious inquires, reporters that filed FOIA requests related to this video were met with stonewalling by the FCC, which tried to claim that numerous FOIA exemptions prevented it from complying. In this case, reporters say they were told by Pai's FCC they couldn't release any emails related to the video's creation because of FOIA exemption b(5) (affectionately referred to as the "Withhold It Because You Want To" exemption by FOIA nerds). That is, you might recall, the same exemption the Pai FCC used when people tried to find out if he worked with Verizon on another, similarly lame video making light of his cozy ties to industry.

All of that said, MuckRock Executive Editor JPat Brown persisted, filing numerous appeals stating that the FCC was engaged in a bad faith interpretation of b(5)’s deliberative process privilege. After the FCC spent months denying requests or trying to provide everything but the email bodies, the FCC was finally forced to comply last month, and released at least some internal emails related to the video's creation.

What did they say? Bupkis. Several simply highlighted how the Pai FCC has worked with Trump-friendly outlets like the Daily Caller on the video's production and circulation, which we already knew. Other emails the FCC fought to avoid releasing said nothing of note at all:

Which is all a long way of showcasing how, as Brown notes, the FCC's aggressive hostility to transparency (even if there's nothing actually at stake) is its default mode of operation:

"Look, I’ll be the first to say that Pai dusting off some dated memes is far from the agency’s worst crime, and if the FCC had just released these records when I asked from them last December, I would have struggled to string together a couple of work emails into an article of any substance. But the fact that the agency felt the need to fight me on such a stupid issue, for as long as they did, all the while taking care to make sure they don’t lose any ground to fight stupid fights in the future, is alarming, and an important reminder that some agencies are fundamentally opposed to being held accountable for anything.

Pai's blind fealty to incumbent broadband monopolies like Comcast isn't unique; we saw much of the same behavior during the tenure of former FCC Boss Mike Powell, now the top lobbyist for the cable industry. But Pai's FCC is different in that it doesn't just engage in the normal up is down, black is white rhetoric normally reserved for industry sycophants. Pai's current staffers seem to actively enjoy making critics (often the bipartisan majority of ordinary Americans) angry. They're having fun being misleading and aggressively contentious assholes (for lack of a more apt technical term).

But the Pai FCC also differentiates itself by being aggressively hostile to transparency almost to a comical fault. There was no reason to fight against the release of the above emails so vehemently, and the fact Pai's agency did so shows that, even at the risk of costly lawsuits and wasted taxpayer dollars, this FCC sees truth and transparency as mortal enemies in dire need of conquering, not essential axles in the healthy functioning of a democracy.

Filed Under: ajit pai, fcc, foia, transparency

EFF Wins FOIA Lawsuit Against DEA, Forces The Release Of More Info About Its Hemisphere Program

from the creeping-transparency dept

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.

AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.

More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.

The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.

Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

Operation Hemisphere was initiated after 9/11 and is the name of an AT&T pointing mechanism to give the requester telephonic information that crosses through AT&T towers/switches. When all other means are exhausted in trying to locate a replacement number, a Hemisphere request may be submitted. Similar to ETS information, Hemisphere information is not to be used in 6s, affidavits, etc.

When such information is needed, the requestor submits a special subpoena issued to AT&T and send it to the Op. Hemisphere POC, who then forwards it to the Hemisphere representative in Los Angeles. The response often determines whether or not the agent or analyst will perform a parallel construction.

It also shows the DEA attempting to disavow ownership of the program it spearheaded and recommended to local law enforcement agencies. In response to Rep. Darrell Issa's inquiries about the program -- prompted by the 2013 New York Times reporting -- the DEA tried to claim it had no control of the program and could not discuss it with Congressional oversight.

However, I would note that we will NOT be able to brief on Hemisphere-this is NOT a DEA program. It was created by and is currently managed by ONDCP. I don't want to push you oft: but Hemisphere is not in our wheelhouse.

This is from Erik Akers of the DEA, making the incredulous assertion a program used hundreds of times by the DEA is not "in the DEA's wheelhouse." Akers pushes it back on the Office of National Drug Control Policy, which doesn't appear to be empowered to create and deploy surveillance programs. Here's what the ONDCP can do, according to the federal government's own website.

A component of the Executive Office of the President, ONDCP was created by the Anti-Drug Abuse Act of 1988. The ONDCP Director is the principal advisor to the President on drug control issues. ONDCP coordinates the drug control activities and related funding of 16 Federal Departments and Agencies. Each year, ONDCP produces the annual National Drug Control Strategy, which outlines Administration efforts for the Nation to reduce illicit drug use, manufacturing and trafficking; drug-related crime and violence; and drug-related health consequences. ONDCP also leads the development of the consolidated Federal drug control budget, which is published annually in the National Drug Control Strategy: Budget and Performance Summary.

The ONDCP is advisory. It may provide legal guidance when crafting programs, but there's nothing in the office's duties that includes creating and engaging in surveillance/collection programs. It may serve as the administrative body above the nation's HIDTA (High-Intensity Drug Trafficking Area) activities, but it's not the agency that approaches telcos and demands call records. The DEA does that. To pretend it doesn't is laughable, but that's exactly what the DEA did when its program was exposed by journalists.

The Los Angeles HIDTA -- which oversees roughly a third of the nation -- put out this statement to participants in the Hemisphere program, again in response to 2013's exposure of the program. In it, the HIDTA claims the program is legal, super-powerful, nothing like the NSA, and somehow entitled to secrecy because the DEA and US law enforcement have nothing to hide.

IF HIDTA in general decides to put out some edict to not allow your agents/detectives to utilize this ''tool" it would give the impression to the "common man" .. . jury standards ... that we collectively did something WRONG ... which as we all know is the furthest from the truth.

Hemi is nothing more than AT&T's "Super Search Engine" ... "Google on Steroids" as it were .. . A software record search system developed to reach into AT&T's numerous stove-piped databases; coupled with Analysts who knows what we (law enforcement) is asking for as well how to interpret their confusing raw record data once retrieved ... And all is done through legally approved documents (Admin Subpoena for Feds, Court Orders by State/Locals). That's it ... Nothing more, nothing less ... Period.

Additionally, from a legal perspective ... this system was scrutinized by Corporate Attorneys, Local, State and Federal Prosecutors, US DOJ, FBI and DEA General Counsel Attorneys, and Judges as well ... ALL OF WHOM concur that Hemi is a legal tool ... and nothing MORE than just a "tool."

As far as "keeping it a secret" per se (an issue raised in the articles based on one of the slides) ... Our rational has been simple and truly hasn't changed since the beginning of Sir Robert Peel and the origins of today's "Modern Day Law Enforcement" ... we were attempting to NOT educate the Cartel Attorneys et al on the systems and practices we law enforcement professionals legally have available at our disposal (Key word LEGALLY!)

The article "likens" the Hemisphere Project with the NSA Project ... In short, they're apples & oranges. To access Hemisphere a law enforcement officer/agent must have PC specific to their search request, then must provide either a Federal Admin Subpoena or have a judge sign a Court Order in the case of state/local investigators. This is in total contrast to the blanket Patriot Act search methods used by NSA.

To sum up: the DEA doesn't want to talk about a program it claims it doesn't control. The DEA redacted tons of info about a program that's completely legal and it shouldn't have to justify to the American public, while simultaneously hiding the use of the program from criminal defendants and judges. It is not the NSA, the DEA claims, while engaging in many of the NSA's tactics, like parallel construction and Glomar-esque non-denial denials of the program's existence.

Over in the private sector, AT&T decided it was more DEA than telco to engage in the program, turning a decent profit on unchecked surveillance and benefiting from the legal immunity extended to private sector participants in government surveillance programs. More details will likely emerge, but it's unlikely to uncover some previously-withheld justification that makes the DEA's use of "Google on steroids" phone record searches acceptable.

Filed Under: dea, foia, hemisphere, parallel construction, surveillance
Companies: at&t, eff

FBI Swept Up Info About Aaron Swartz While Pursuing An Al-Qaeda Investigation

from the stocking-the-back-room-for-a-rainy-day-of-searches dept

The FBI has the power to collect massive amounts of data and communications during its investigations. This power periodically ingests NATSEC steroids, pumping the FBI's data stores full of stuff not relevant to the NSA's work, but possibly relevant to the FBI's crime-fighting duties.

You would think the FBI would toss anything not relevant to an investigation. Just in terms of storage and haystack-sorting, it would only make sense to discard data/communications not needed for ongoing investigations. But you'd be wrong. The FBI holds on to everything it gets because you never know: the irrelevancies you hoovered up yesterday might be useful today.

That's pretty much what happened to Aaron Swartz, according to documents published by Dell Cameron of Gizmodo.

Nearly two years before the U.S. government’s first known inquiry into the activities of Reddit co-founder and famed digital activist Aaron Swartz, the FBI swept up his email data in a counterterrorism investigation that also ensnared students at an American university, according to a once-secret document first published by Gizmodo.

The email data belonging to Swartz, who was likely not the target of the counterterrorism investigation, was cataloged by the FBI and accessed more than a year later as it weighed potential charges against him for something wholly unrelated.

The data collected -- most likely obtained with an NSL -- came from Pittsburgh University. It was part of a data haul associated with the FBI's terrorism investigation. Swartz was never the target of this Al-Qaeda investigation but the information obtained remained in the FBI's data stores even though the FBI had no reason to hold onto non-hit data.

When the FBI did start looking in Swartz's activities, it found his email address in the stored data it had obtained from the university in 2007. This apparently happened in 2008, around the time the FBI was trying to determine if Swartz had violated any laws by freeing millions of court documents from PACER.

The FBI targeted a foreign terrorist entity but ended up with an untold amount of email metadata originating from US persons' accounts. The only reason we're seeing any evidence of the FBI's backdoor domestic searches come to light is Aaron Swartz's inadvertent involvement. If it hadn't been for a high-profile prosecution and Swartz's tragic suicide, public interest in the FBI's investigative activities surrounding Swartz would likely have minimal public interest. But Swartz's prosecution and death have put more eyes on the case, including those of transparency group Property of the People, which obtained this document through an FOIA lawsuit against the agency.

This document is more evidence the FBI abuses its investigative privileges. The agency engages in foreign-facing terrorism investigations, hoovering up as much "relevant" data as it can. Rather than discard everything not related to the investigation, the FBI stores it indefinitely. When the FBI opens a domestic investigation, it can give itself a head start by digging through its data stores for info it has "inadvertently" gathered on American citizens. The information the FBI already has on hand -- info it really can't justify keeping -- helps build cases against Americans while depriving them of their right to challenge the evidence against them. Americans don't know about this evidence because it's laundered by NSLs, warrants, and whatever else the FBI needs to deploy to duplicate the results of data store searches the agency has already performed.

Filed Under: aaron swartz, al qaeda, backdoor searches, fbi, foia, nsa, terrorism

FCC Commissioner Accuses Her Own Agency Of A Net Neutrality Cover Up

from the ill-communication dept

We've long discussed how the Pai FCC's net neutrality repeal was plagued with millions of fraudulent comments, many of which were submitted by a bot pulling names from a hacked database of some kind. Millions of ordinary folks (like myself) had their identities used to support Pai's unpopular plan, as did several Senators. Numerous journalists have submitted FOIA requests for more data (server logs, IP addresses, API data, anything) that might indicate who was behind the fraudulent comments, who may have bankrolled them, and what the Pai FCC knew about it.

But the Pai FCC has repeatedly tried to tap dance around FOIA requests, leading to several journalists (including those at the New York Times and Buzzfeed) suing the FCC. Despite the Times' lawyers best efforts to work with the FCC to tailor the nature of their requests over a period of months, the agency continues to hide behind FOIA exemptions that don't really apply here: namely FOIA exemption 6 (related to protecting privacy) and 7E (related to protecting agency security and law enforcement activity).

And while the Times and Buzzfeed had appealed the FCC's ruling, the FCC this week released a memorandum and order formally denying those requests. In it, the FCC doubles down on the claims that it's simply blocking the release of this data because it's super worried about the privacy of FCC commenters (though again, if you actually read the Times lawsuit, you'll note the FCC was utterly inflexible in terms of narrowing down the scope of requests).

FCC lawyers also try to make the amusing claim that the press really doesn't need this data because there's other investigations (including one at the GAO) trying to get to the bottom of the scandal:

"Confessore proffers a putative public interest in understanding the integrity of the Commission’s comment process. This question, however, is being or has already been examined by other press outlets,51 Commission staff, and the Government Accountability Office, among others. Confessore has not provided us with any reason to believe that his review of this data would significantly advance any public interest beyond the investigations that are already underway."

Of course this is the same FCC that has also actively blocked law enforcement efforts to get to the bottom of the scandal, refusing nine inquiries from the NY AG over a period of five months for additional data. So while the Pai FCC breathlessly claims it's all about transparency and integrity, their actions on this subject (and that whole fake DDOS attack they concocted in a weird bid to downplay public backlash) tend to undermine these claims.

Meanwhile, Pai's fellow Commissioner, Jessica Rosenworcel, has certainly taken off the gloves in recent weeks. She hit Twitter and issued a statement that effectively accused her own agency of engaging in a cover up of fraudulent activity:

Her full statement (pdf) is also worth a read, and doesn't pull any punches:

"Instead of providing news organizations with the information requested, in this decision the FCC decides to hide behind Freedom of Information Act exemptions and thwart investigative journalism. In doing so, the agency asserts an overbroad claim about the security of its public commenting system that sounds no more credible than its earlier and disproven claim that the system was the subject of distributed denial of service attack. It appears this agency is trying to prevent anyone from looking too closely at the mess it made of net neutrality. It is hiding what it knows about the fraud in our record and it is preventing an honest account of its many problems from seeing the light of day.

Pai's justification for the FOIA blockade tries very heavily to insist this is all just unfair partisan gamesmanship. But at this juncture his FCC's record when it comes to transparency, blatant telecom sector cronyism, and bizarre scandals has pretty much been established. This is an agency that not only used bullshit telecom lobbyist data to undermine policies that had broad, bipartisan public support, it has been rocked by scandal after scandal, fought tooth and nail against real transparency on numerous fronts, and has refused to give any real weight to the will of the tech-savvy public.

Pai comes off as an unwavering ideologue who truly seems to believe he's doing an incredible job of "unleashing innovation" despite every shred of evidence to the contrary (not unlike the man who appointed him to the position). Unfortunately for Pai, whose post-FCC political ambitions couldn't be any more obvious, his legacy will likely be the giant middle finger he's given to tech-savvy Millennials. As for the fake comments specifically, they're likely to play a starring role in next February's net neutrality lawsuits, which will look to prove the agency violated the Administrative Procedure Act by ignoring the will of the public as it rushed to give AT&T, Verizon, and Comcast a sloppy kiss for the ages.

Filed Under: ajit pai, comments, fake comments, fcc, foia, jessica rosenworcel, net neutrality, public records, transparency

Public Records Law Reforms Still Haven't Made Massachusetts Any Less Of A Hellhole For Records Requesters

from the appears-the-massholishness-goes-all-the-way-to-the-top dept

Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they're in for when tangling with the state's agencies.

The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency -- the Medford Police Department -- that appears, for the most part, to simply ignore requests it doesn't feel like fulfilling.

MuckRock records show that the agency consistently fails to acknowledge and fulfill requests, sometimes for years and despite appeals to the Massachusetts Supervisor of Public Records. Its failure to comply with even the updated legislation highlights the shortcomings that remain in enforcement mechanisms for citizens entitled to government information.

This means the nonprofit is burning up man hours attempting to communicate with the MPD's brick wall.

The oldest pending request, dating back to April 2013, had 112 email follow-ups that were sent to an officer who, at some point since initial submission, had left the department; these were followed by 14 fax follow-up messages to a currently valid office fax number.

If there's an exemption that can be used, it will be used. Up until recently, the state had the worst public records laws in the nation. And it looks like they're still the worst. This has allowed a state agency to claim a 63-year-old murder case investigation was still ongoing, despite the lead suspect having died years ago. In another case, the State Police took $180 from a requester and then refused to hand over the records requested.

The recently instituted public records law reforms don't seem to be having much of an effect on state agency responsiveness. MuckRock is reporting law enforcement agencies continue to be the main offenders, upholding the proud police tradition of ignoring laws officers and officials don't like.

This leads to insane, if not illegal, responses to records requests. Todd Wallack of the Boston Globe requested a photo of an officer and detective employed by the Boston Police Department. It rejected his request citing public records exemption f, which claimed the staff photos were "investigatory materials." When Wallack challenged this determination, the BPD responded with ¯\_(ツ)_/¯.

BPD couldn’t explain exactly how this exemption applied to the records in question. And so, the Supervisor of Public Records ordered the Department to fulfill the request. But with a lack of enforcement options from the SPR, it is still to be determined if the Department will comply or not.

The Supervisor of Public Records is an especially useless position, but one that meshes well with the state government's antagonistic take on transparency. The SPR makes the initial call on disputed records requests, but cannot, as a matter of law, force an agency to turn over records if the SPR determines the government agency is in the wrong. All the SPR can do is kick it up to the Attorney General for another determination. This escalation is completely at the discretion of the SPR, who is required by law to escalate reports of non-compliance by state agencies.

In essence, state and local agencies are being told "wait til your dad gets home" when they lose appeals, but without any estimate on when dad will be home or if he's even interested in handling these issues whenever the hell he actually gets back.

Here's how the state suggests requesters deal with Massachusett's effed-up public records laws. This comes directly from Secretary of State spokesperson Debra O'Malley.

“Sometimes requesters opt to sue because they might be more successful and it’s faster,” said O’Malley.

I'm sure O'Malley means well and is probably accurately portraying the near-farcical situation. But the government shouldn't be pushing citizens into lawsuits over public records. The presumption is supposed to be openness, not schoolyard taunts of "make me." But that's where the state remains, even after public records reform: a drain on taxpayers both ways, whether screwing them out of records or paying legal fees with taxpayer funds at the end of the apparently inevitable lawsuits.

Filed Under: boston police department, foia, massachusetts, medford police department, public records