Office Of Legal Counsel Sued For Refusing To Turn Over Legal Memos Congress Said Aren't Exempt From FOIA Law

from the OLC-runs-a-tight-memory-hole dept

Another lawsuit has arisen from the Office of Legal Counsel's ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute "deliberative" documents and/or are protected by attorney-client privilege.

But they're not "deliberative." In some cases -- if not many cases -- the OLC's guidance tells government agencies what they can and can't do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.

In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.

Once in a long while, a FOIA lawsuit forces a legal memo out of the office's hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.

The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

In 2016... Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old.

[...]

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request.  

Since Congress has said older opinions can't be considered "deliberative" any longer, it's assumed the OLC will now claim these documents are protected by attorney-client privilege. The problem for litigants is the OLC's unending relationship with the government agencies it advises. These attorneys and clients are eternally inseparable.

The OLC can't even be bothered with half-assed compliance. This goes hand-in-hand with its barely-there transparency efforts over the past few decades.

As the lawsuit [PDF] points out, the OLC has been (very selectively) releasing decades-old legal opinions. But even with 40+ years lead time, the OLC still can't bring itself to release more than a small percentage of its secret law stuff.

In 1977, the OLC began to publish a volume of selected opinions given “their value as precedents and as a body of executive law on important matters.” According to the foreword to the first volume, however, approximately 75 percent of the 1977 opinions were excluded from publication.

After 1977, the OLC stopped revealing how many opinions were excluded from its volumes. Some OLC volumes note that a “significant” number were excluded. These statements are consistent with the views of at least one former OLC official, who has stated that the “published opinions are only the tip of the iceberg.” For example, the same OLC official noted that the office “gave 625 opinions to outside agencies in 1991.” But the 1991 volume of OLC opinions published only 13 opinions, or about 2%.

More recently, the Sunlight Foundation obtained the OLC’s internal list of OLC opinions issued between 1998 and 2012. Comparing the list with the OLC opinions that the office had made public either through its volumes or through FOIA productions, the Sunlight Foundation found that the OLC kept almost 40 percent of the office’s opinions secret over that period.

Hopefully, this litigation will force the agency to take a bright line approach to its legal opinions. They're given the full weight of the law by the agencies that comply with them, and yet the OLC continues to claim these are just suggestions and attorney-client conversations. But they're far more than that. They're laws the public can't read, can't comply with, and can't seek to have changed if they disagree with them.

Filed Under: congress, foia, office of legal counsel, olc
Companies: knight institute

Former Hotel Exec Gets Elected To Congress, Decides First Order Of Business Is To Destroy Airbnb

from the really,-now? dept

Ed Case represents Hawaii's 1st district in Congress. He was just elected in 2018, though he actually was in Congress once before, when he represented Hawaii's 2nd district from 2002 to 2007. He left Congress last time to run for the Senate, but that flopped. And he lost another attempt at rejoining Congress in 2010. In 2013 he announced that he was joining a Hawaii-based hotel operator, Outrigger Enterprises Group, as Senior Vice President and Chief Legal Officer. At the time, he said that doing so "likely ends any further political career." In 2016, he joined the board of directors of the American Hotel & Lodging Association, a large hotel trade group. AHLA has been among the leading hotel industry groups pushing to kill Airbnb. The hotel industry, as a whole, seems to have spent much of the last decade looking for any possible way to attack and kill Airbnb rather than improve its own products.

And now Case is back in Congress -- and apparently an early order of business is to continue to push for AHLA and his former employer's goals. As sent to me by a few people, Case has sent a letter around to his House colleagues, asking them to support and cosponsor a new bill that he has not yet released, that would strip Section 230 protections from any short-term rental platform like Airbnb:

Dear Colleague:

Is your community one of a multitude throughout our country suffering from the negative effects of illegal vacation rentals? Effects that include unavailability of affordable housing, avoidance of standard consumer protections and loss of state and local government revenue?

If so, please join me as an original cosponsor of the Protecting Local Authority and Neighborhoods (PLAN) Act. This bill would end abusive litigation by internet-based short-term rental platforms attempting to avoid accountability for profiting from illegal rentals and strike down local regulations aimed at curbing this illegal activity and its widespread negative impacts.

Over the past decade-plus, the short-term vacation rental industry has exploded through the internet-based marketing platforms of Airbnb, HomeAway, VRBO, Flipkey and others. While some communities welcome this activity, which is largely conducted in residential neighborhoods, many others are concerned with several negative consequences.

These include the loss of affordable housing as residential units are converted to transient accommodations for tourists, and the failure of many unit owners and rental operators to comply with basic consumer safety, public accommodations and tax requirements as must the legal lodging industry. A survey of related news also makes clear that commercial lodging activity in otherwise residential neighborhoods gives rise to serious community safety and disruption issues.

As a result, from Hawai‘i to Maine state and local governments are updating their land use laws to put parameters around short-term rental activity, tailored to reflect local concerns and as always has been the case with land use regulation. However, the short-term rental online platforms have repeatedly gone to court to strike down these laws, claiming Section 230 of the federal Communications Decency Act (CDA 230) preempts local efforts to stop the listing and booking of illegal rentals by these platforms. They have sued cities large and small – including New York City, Boston, Miami, Anaheim, San Francisco, Portland, Ore., Chicago, Miami Beach, Palm Beach and Santa Monica – to protect a business model they know relies in large part on concealing the illegal activity of their third-party operators.

The PLAN Act would amend CDA 230 to make clear the statute does not shield platforms when they facilitate illegal rental bookings. Platforms would also be accountable if they fail to stop booking rentals after receiving notice from a private property owner that short-term rentals are prohibited at that location.

This is a narrow, targeted change to the statute to ensure short-term rental companies and internet platforms comply with state and local planning, zoning, rental, labor and tax laws and end their abusive stretching of CDA 230’s original intent. State attorneys general, mayors, and local officials have called for similar updates to CDA 230 to enable them to uphold their local laws and protect citizens living and working in their communities.

This is yet another attack on Section 230. As we've discussed in the past, Section 230 absolutely should protect these businesses -- even as the 9th Circuit has ruled the other way -- because it's a classic Section 230 issue, in which city governments are holding platforms liable for the speech of their users. If cities want to limit small, local businesses and block short-term rentals, that's their business -- but they shouldn't get to leverage sites like Airbnb to be their enforcers (which is all these laws really do).

But it's seems highly questionable for Case to go from being an exec at a hotel company and a board member of the big hotel trade group (that has long attacked Airbnb and similar sites) to wasting little time in Congress to push for a law that directly helps his former employers. I'm sure he truly believes that this is the right thing to do, but it certainly stinks of the kind of "soft corruption" that makes people not trust their government at all. It's not illegal, but it sure looks sketchy. Case has done other good things in Congress, including trying to get the intelligence community to pay attention to basic civil liberties (which sure would be nice). But this new plan to modify Section 230 to help his former colleagues is not that.

Filed Under: cda 230, congress, ed case, hawaii, hotels, section 230, short term rentals, vacation rentals
Companies: ahla, airbnb, outrigger

The Attorney General Who Doesn't Respect Or Comply With His Oversight Wants Citizens To Respect And Comply With Cops

from the enforcing-hypocrisy-from-the-top-down dept

The "law and order" administration is flexing its muscles. New Attorney General William Barr has been particularly vocal since his appointment, going after device encryption and the supposedly-dangerous "disrespect" for police.

Barr's public statements -- the latter of which was delivered to a very receptive audience composed of police union reps -- have made it clear his DOJ is going to carry out Trump's back-the-blue mandates. Law enforcement officers will receive the federal government's seal of endless approval, as well as its benefit of a doubt when things go badly.

Things go badly quite often. Cops are still killing more than 1,000 people (and nearly 10,000 dogs) every year, even as crime rates remain at historic lows. Barr's message to America was: comply, shut up, stop complaining. If you do somehow still feel your rights have been violated, you're welcome to lawyer up and attempt to sue your way past layers of immunity and multiple, ultra-flexible warrant exceptions.

But while this administration talks a good game about respect for law and order, it certainly doesn't show the respect it believes is owed to the nation's law enforcement officers. Marcy Wheeler points out this hypocrisy to devastating effect in her post dissecting (and recasting) Barr's pro-police, anti-everyone else rant.

Barr wants the public to comply immediately and without question when interacting with government employees empowered to enforce the law. But that's something he's not interested in doing himself. Replace "police" with entities empowered to police the Executive branch -- as Wheeler does here -- and Barr starts looking like the Great Unwashed he's complaining about. (Wheeler's alterations to Barr's original speech are in bold.)

The anti-oversight narrative is fanning disrespect for the law. In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight.

Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive. For that reason, virtually all jurisdictions have made resistance a serious crime.

Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust. “Comply first” and, if you think you have been wronged, “complain later.”

But we don’t hear this much anymore. Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary. Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention.

There's a bit more in Wheeler's post, so definitely click through and check it out. Or just grab almost any part of Barr's speech and play Executive branch mad libs with it. The end result is lengthy rant condemning people like William Barr for doing the things Barr is currently doing. Sad!

Filed Under: attorney general, congress, doj, respect police, rule of law, subpoenas, william barr

Explainer: How Letting Platforms Decide What Content To Facilitate Is What Makes Section 230 Work

from the Congress-got-this-right dept

There seems to be some recurrent confusion about Section 230: how can it let a website be immune from liability for its users' content, and yet still get to affect whether and how that content is delivered? Isn't that inconsistent?

The answer is no: platforms don't lose Section 230 protection if they aren't neutral with respect to the content they carry. There are a few reasons, one being constitutional. The First Amendment protects editorial discretion, even for companies.

But another big reason is statutory, which is what this post is about. Platforms have the discretion to choose what content to enable, because making those moderating choices is one of the things that Section 230 explicitly gives them protection to do.

The key here is that Section 230 in fact provides two interrelated forms of protection for Internet platforms as part of one comprehensive policy approach to online content. It does this because Congress actually had two problems that it was trying to solve when it passed it. One was that Congress was worried about there being too much harmful content online. We see this evidenced in the fact that Section 230 was ultimately passed as part of the "Communications Decency Act," a larger bill aimed at minimizing undesirable material online.

Meanwhile Congress was also worried about losing beneficial online content. This latter concern was particularly acute in the wake of the Stratton Oakmont v. Prodigy case, where an online platform was held liable for its user's content. If platforms could be held liable for the user content they facilitated, then they would be unlikely to facilitate it, which would lead to a reduction in beneficial online activity and expression, which, as we can see from the first two subsections of Section 230 itself, was something Congress wanted to encourage.

To address these twin concerns, Congress passed Section 230 with two complementary objectives: encourage the most good content, and the least bad. Section 230 was purposefully designed to achieve both these ends by providing online platforms with what are ultimately two complementary forms of protection.

The first is the one that people are most familiar with, the one that keeps platforms from being held liable for how users use their systems and services. It's at 47 U.S.C. Section 230(c)(1).

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's important to remember that all this protection provision does is say that the platform cannot be held liable for what users do online; it in no way prohibits users themselves from being held liable. It just means that platforms won't have to be afraid of its users' online activity and thus feel pressured to overly restrict it.

Meanwhile, there's also another lesser-known form of protection built into Section 230, at 47 U.S.C. Section 230(c)(2). What this protection does is also make it safe for platforms to moderate their services if they choose to. Because it means they can choose to.

No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Some courts have even read subsection (c)(1) to also cover these moderation decisions too. But ultimately, the wisdom of Section 230 is that it recognizes that to get the best results – the most good content and also the least bad – it needs to ensure platforms can feel safe to do what they can to advance both of these things. If they had to fear liability for how they chose to be platforms, they would be much less effective partners in achieving either. For instance, if a platform had to fear legal consequences for removing user content, they simply wouldn't. (We know this from FOSTA, which, by severely weakening Section 230 has created disincentives for platforms to try to police user content.) And if platforms had to fear liability for enabling user activity on its systems, they also wouldn't do that either. They would instead end up engaging in undue censorship, or cease to exist at all. (We also know this is true from FOSTA, which, by weakening Section 230, has driven platforms to censor wide swaths of content, or even cease to provide platform services to lawful expression.)

But even if Section 230 protected platforms for only one of these potential forms of liability, not only would it not be nearly as effective at achieving Congress's overall goal of getting both the most good and least bad online as protecting them in both ways would, but it wouldn't be nearly as effective for achieving even just one of those outcomes as a more balanced approach would. The problem is that if ever platforms find themselves in the position of needing to act defensively, out of fear of liability, it tends to undermine their ability to deliver the best results on either of these fronts. The fear of legal liability forces platforms to divert their resources away from the things they could be doing to best ensure they facilitate the most good, and least bad, content and instead spend them on only what will protect them from whatever the threat of legal liability is causing them to spend outsized attention on.

As an example, see what happens under the DMCA, where Section 230 is inapplicable and liability protection for platforms is so conditional. Platforms are so fearful of copyright liability that this fear regularly causes them to overly delete lawful, and even often beneficial, content, despite such a result being inconsistent with Congress's legislative intent, or waste resources weeding out the bad takedown demands. It's at least fortunate that the DMCA expressly does not demand that platforms actively police their users' content for infringement. Because if they had to spend their resources policing content in this way it would come at the expense of policing their content in a way that would be more valuable to the user community and public at large. Section 230 works because it ensures that platforms can be free to devote their resources to being the best platforms they can be to enable the most good and disable the most bad content, instead of having to spend them on activities that are focused only what protects them from liability.

To say, then, that a platform that monitors user content must then lose its Section 230 protection is simply wrong, because Congress specifically wanted platforms to do this. Furthermore, even if you think that platforms, even with all this protection, still don't do a good enough job meeting Congress's objectives, it would still be a mistake to strip them of them of what protection they have, since removing it will not help any platform, current or future, from ever doing any better.

What tends to confuse people is that curating user content appearing on a platform does not turn the content into something the platform should now be liable for. When people throw around the imaginary "publisher/platform" distinction as a basis for losing Section 230 protection they are getting at this idea that by exercising editorial discretion over the content appearing on their sites it somehow makes the content become something that the platforms should now be liable for.

But that's not how the law works. Nor how could it work. And Congress knew that. At minimum, platforms simply facilitate way too much content for them to be held accountable for any of it. Even when they do moderate content, it is still often at a scale beyond which it could ever be fair or reasonable to hold them accountable for whatever still remains online.

Section 230 never required platform neutrality as a condition for a platform getting to benefit from its protection. Instead, the question of whether a platform can benefit from its protection against liability in user content has always been contingent on who created that content. So long as the "information content provider" (whoever created the content) is not the "interactive computer service provider" (the platform), then Section 230 applies. Curating, moderating, and even editing that user content to some degree doesn't change this basic equation. Under Section 230 it is always appropriate to seek to hold responsible whomever created the objectionable content. But it is never ok to hold liable the platform they used to create it, which did not.

Filed Under: balance, cda 230, congress, content moderation, free speech, section 230

Ajit Pai May Have Lied To Congress About FCC's Failure To Address Wireless Location Data Scandals

from the ill-communication dept

So we've talked a bit about how the FCC has done absolutely nothing to seriously address the rise of wireless industry location data scandals. That's despite story after story showing how wireless carriers were selling this data to an endless line of companies and organizations. Those organizations, in turn, failed utterly to protect this data from being misused by everybody from law enforcement to bail bondsman and even random stalkers posing as law enforcement. Despite this being on scale with the Facebook Cambridge Analytica scandal, the silence from the Pai FCC has been deafening.

Last week during a Congressional FCC oversight hearing, several lawmakers criticized Pai for failing to hold carriers accountable or even publicly mentioning the scandal. And while the FCC has supposedly been conducting an investigation for the better part of the last year, Pai's fellow commissioners say they've been stonewalled when they've asked about the progress of the inquiry. When Representative Anna Eshoo pressed Pai on whether he was withholding information from his fellow commissioners, he refused to answer the question:

"Can you tell us today that you’re going to share information with two full-fledged members of the commission?” Eshoo asked at one point. “You’re saying you can’t tell us, but will you tell them?”

“Congresswoman, this is not a ‘yes or no’ question,” he said.

Cute. Again, both of Pai's fellow Democratic Commissioners (Geoffrey Sparks and Jessica Rosenworcel) say they requested the “letters of inquiry” sent out by the FCC’s Enforcement Bureau at the investigation’s outset but were repeatedly stonewalled by Pai and his leadership team. But when pressed by Congress, Pai stated he was "not aware" of any such requests, suggesting the FCC boss lied to Congress:

"Sources with knowledge of the requests told Gizmodo that they were baffled by the chairman’s response, for one reason in particular: At an FCC Open Commission Meeting on January 30, Rosenworcel told a group of reporters while live-streaming on the agency’s website: “I’ve been told there’s an investigation, but I’ve asked the enforcement bureau for the letters of inquiry that start investigations, and they have not yet been provided to me. I’d like to see them."

Given Pai's refusal to hold giant telecom carriers accountable for pretty much anything (ranging from telco taxpayer fraud to hurricane recovery failures), most of the consumer activists and lawyers I've spoken to believe Pai is just running interference for industry until the statute of limitations runs out, and the reason he doesn't want to talk much about the FCC's investigation is because it's not much of one. Some consumer groups were particularly gobsmacked by Pai's attempt to throw Commissioner Starks (who just started work) under the bus for the agency's failures on this front:

Again, Pai's decision to be a rubber stamp for the telecom industry's biggest companies isn't much in dispute at this point, though Pai and his staffers like to insist (and may even actually believe) this is all just unfair partisan posturing. Pai has repeatedly stated that the industry can self-regulate, but when it comes to privacy they've shown themselves to be incapable of the task. So while carriers say they've ceased the collection and sale of your location data to every Tom, Dick, and Harry on the internet, with their history of falsehoods on the privacy front, the only way to actually confirm this is a transparent, third party inquiry.

Filed Under: ajit pai, congress, fcc, lying to congress

Broad Coalition Tells Congress To Bring Back The Office Of Technology Assessment

from the about-freaking-time dept

For many, many years now we've been talking about why Congress needs to bring back the Office of Technology Assessment that existed from 1972 until 1995 when Newt Gingrich defunded it as part of his "Contract with America" which apparently (who knew?) included making Congress more ignorant and less informed about technology. Year after year, some in Congress have proposed bringing back the OTA, but it keeps getting voted down. Just recently, we had two Congressional Representatives -- Rep. Mark Takano and Rep. Sean Casten -- write a piece here at Techdirt arguing why we need to bring back the OTA.

And it might actually be happening. While Gingrich defunded the OTA in 1995, the law creating it is still on the books. Congress doesn't need to pass any new law to bring it back, it just needs to fund it again. And, perhaps surprisingly, the House put forth an appropriations bill that includes $6 million towards reviving the OTA.

Earlier today, a very broad coalition of organizations and individuals (including our sister organization, The Copia Institute) sent a letter to the Senate urging it to support this small level of funding to better educate themselves on technology and technology policy issues. This is not a partisan issue in the slightest (as should be obvious from the coalition of signatories on the letter). This is an issue about spending a very small amount of money to make sure that our legislators actually know what the fuck they're talking about when they're trying to understand and regulate around technology issues.

On behalf of the undersigned organizations and individuals, we write to express our concern that Congress does not have sufficient capacity to tackle 21st century science and technology policy challenges. Accordingly, we urge you to prioritize efforts to augment this institutional capacity, including providing funding for the Office of Technology Assessment (OTA), as part of the fiscal year 2020 Legislative Branch Appropriations bill.

The Senate has played a leading institutional role in promoting science and technology capacity in Congress. We note with favor the recently created Science, Technology Assessment and Analytics (STAA) team inside the Government Accountability Office, and its expanding capabilities to serve Members of Congress with expert advice and analysis. We also look forward to the forthcoming report from the National Academy of Public Administration later this year.

But OTA and STAA have different comparative advantages: the former in foresight and emerging technologies, and the latter in oversight and evaluating federal government programs and expenditures. Congress must have both these capabilities to meet the ever-increasing demands on its oversight and legislative responsibilities.

Hopefully, this time, Congress will pay attention, and proactively choose to better educate themselves.

Filed Under: congress, ignorance, ota

Why Congress Needs The Office Of Technology Assessment More Than Ever

from the bring-it-back dept

In 2015, following a tragic shooting in San Bernardino, California, Congress faced a difficult issue. The Federal Bureau of Investigations (FBI) was in possession of a locked iPhone that belonged to one of the shooters, and it wanted to gain access to that phone as part of its investigation. Members of Congress found themselves in the middle of a contentious debate over whether Apple should be required to unlock the phone to give the FBI access to its contents. During this pivotal time, Congress did not have an unbiased source of information to turn to for an explanation of the technical feasibility and societal implications of requiring Apple to enable the FBI to bypass those protections. In the absence of such a source, we were forced to rely solely on the input of the FBI and of Apple—two players who had strong, conflicting interests at play in the debate.

But that wasn’t always the case. For more than twenty years we had the Office of Technology Assessment (OTA), an independent, bipartisan agency set up to provide unbiased information on technology and its potential impacts. However, in 1995 the agency was defunded, stripping Congress of the ability to access unbiased tech advisors as we entered the digital age. Today, as Americans are feeling the effects of emerging technologies—including issues around data privacy and artificial intelligence—we are experiencing the repercussions of the decision to defund this vital piece of the Congressional support system.

Although some have suggested that the Government Accountability Office (GAO)’s new Science, Technology Assessment, and Analytics (STAA) team should fulfill the role of the OTA, or that the combination of GAO and the Congressional Research Service (CRS) can meet Congress’ technology expertise needs, relying solely on GAO and CRS for all of our technology assessment needs is a short-sighted solution. Despite the potential of GAO’s new STAA team and the fine tradition of CRS, neither of these two organizations—independently or combined—fill the void left by the shuttering of the OTA. In the ecosystem of Congressional support agencies CRS summarizes; GAO evaluates; and the OTA anticipates.

During the encryption debate following the San Bernardino shooting, CRS generated a report outlining the debate and summarizing existing knowledge and laws on encryption and law enforcement investigations. GAO could have initiated a study focused on analyzing what happened and how the situation could be handled in the future. However, only the OTA is set up to anticipate this issue and have the foundational expertise to inform Congress about both the technological and policy questions at play when the issue arose.

Americans are starting to take notice of the lack of effective lawmaking following some of the biggest technology scandals in recent times. Without the OTA’s forward-thinking approach, Congress’ ability to address the technological challenges of the present, and of the future, will fall short of what effective lawmaking during the ever-evolving digital age demands. A well-funded agency whose sole purpose is advising Congress on technology issues, free from the influence of corporate and special interests, is absolutely necessary.

Congress’ technology assessment needs will only continue to grow as we work to anticipate the potential benefits and effects of emerging technologies. As we consider the use of technologies such as AI, facial recognition, quantum computing, and emerging energy storage and generation in both the private and public sectors, it is increasingly important that Congress have unbiased assessments of what is on the horizon. While CRS and GAO are well equipped to look at what is known and what has already happened, and to identify questions and gaps, the OTA’s role is to chart the way forward by generating new knowledge that answers those questions and fills those gaps.

We must make strategic investments in our ability to encourage innovation, understand its benefits, and help constituents be best equipped for the challenges emerging technologies may bring. Technology is transforming our daily lives. We should not fear it; we should be well-prepared to deal with the changes it will create—the Office of Technology Assessment will help us do just that.

Filed Under: congress, office of technology assessment, ota, politicians, tech literacy

TurboTax Did Everything It Could To Hide The Free-Filing Its Supposed To Offer

from the hide-and-seek dept

For years, advocates for the non-wealthy public have put forward plans to simplify the tax-preparation process by having the IRS pre-prepare a tax filing with the information it already has, sending it to citizens, and allowing those citizens to either sign and return it or do their own tax preparation if they think there are errors. Several politicians have put versions of this plan forward, including Elizabeth Warren. The idea is that, for the vast majority of Americans, the IRS already has all the information it needs for the tax filing. Why make most people do tax prep when they don't have to?

Well, for just as many years, the companies that make money by doing this tax prep work have lobbied heavily in Congress to keep this from becoming law. Intuit, makers of TurboTax software, has been particularly active on this front, with novel arguments that amount to, "But if you make this law, then we'll make less money." When that messaging became a PR disaster, the company tricked a bunch of mouth-pieces to say all this for it.

Now, if all of that seems like shady shit, you ain't seen nothing yet. One of the ways companies like Intuit hand-wave concerns that its lobbying efforts are coercing the poor and middle class to pay for tax prep that is so simple it should be free is by pointing out that it entered into an agreement with the IRS to offer their own free-to-file programs for anyone that makes less than $66k in a given year. While that's true, ProPublica has a nice write up of just how far Intuit in particular goes to hide this program from the very public it's supposed to be serving.

Intuit and other tax software companies have spent millions lobbying to make sure that the IRS doesn’t offer its own tax preparation and filing service. In exchange, the companies have entered into an agreement with the IRS to offer a “Free File” product to most Americans — but good luck finding it.

Here’s what happened when we went looking.

Our first stop was Google. We searched for “irs free file taxes.” And we thought we found what we were looking for: Ads from TurboTax and others directing us to free products.

Spoiler alert: those products didn't end up being free. Despite ads that mentioned "free" several times over, the researchers that created a profile of a house cleaner making $29k for the year, TurboTax's site declared that free to file wasn't an option because the fictional citizen was an independent contractor. Instead, the tax prep would cost $119.99. ProPublica continued:

Then we tried with a second scenario. We went back to TurboTax.com and clicked on “FREE Guaranteed.” This time, we went through the process as a Walgreens cashier without health insurance, entering personal information and giving the company lots of sensitive data.

Again, TurboTax told us we had to pay — this time because there’s an extra form if you don’t have insurance. The charge? $59.99.

Per the article, both instances are not kosher based on the agreement with the IRS. That agreement is quite simple: if you make less than $66k in the year, you get to file for free, period. From there, the researchers dug into TurboTax's source code.

Even though we clicked on the “FREE Guaranteed” option and met all the requirements to file for free, the company had tagged us as a potential paying customer. In the source code, TurboTax had branded us as “NONFFA.” That stands for “Non Free File Alliance.” In other words, we were not on track to file for free after all. Even though TurboTax could tell we were eligible to file for free, the company never told us about the truly free version.

It turns out that if you start the process from TurboTax.com, it’s impossible to find the truly free version. The company itself admits this.

So, despite that site being laced with as many "free"s as could be mustered, you can't actually get to free filing at all. How many folks using the site to file for free do you think make it all the way to the FAQ page and realize their mistake compared with how many accept what the site tells them and pay up to file instead? Especially when "free" appears all over the sites on which you cannot file for free, but the actual free filing site is called, sigh, TurboTax Freedom?

But let's pretend most people do get to that FAQ. The researchers threw "turbotax freedom" into Google to see what popped up.

The first link was from TurboTax and said “Free File Program” right in the text. We clicked, and it brought us to this new page. While the orange “See If You Qualify” link did take us to the real Free File program, the blue “Start for Free” link brought us back to the version of TurboTax where we ended up having to pay.

Whatever this is, it clearly isn't Intuit comporting with the spirit of the agreement it signed with the IRS. All of these shady tactics are quite obviously designed to keep people from ever finding the free to file site, to trick the lower classes into paying for tax prep work when they should not be, and depressing the number of people that actually use it as much as possible.

The reward for all of that shady behavior are calls from the same Congress that receives Intuit's lobbying dollars to end the program as it's not achieving its goals. And, it seems Congress is also considering legally barring the IRS from offering any free to file program itself, because that certainly serves common people.

Congress is now moving to put the Free File program into law, including its restriction on the IRS creating its own free service. We wrote about that earlier this month and the opposition to this provision by freshman Democratic Reps. Katie Hill, Katie Porter, Alexandria Ocasio-Cortez and others. The House ultimately passed the bipartisan Taxpayer First Act, which also contains some provisions that consumer advocates support, such as restrictions on private debt collection of unpaid taxes.

Now the Senate is considering the bill. Its sponsors have argued that it doesn’t tie the IRS’ hands, but outside legal experts we’ve spoken to disagree. The text in the bill codifying the Free File program has long been sought by lobbyists for Intuit.

In addition to all of this, to make matters way, way worse, more information has come to light since the original ProPublica post and the original writing of this piece. In a follow up post, ProPublic has unearthed that Intuit specifically and actively de-indexed the free-to-file website from Google's search engine with the robot.txt file.

The code on TurboTax’s Free File site says “noindex,nofollow” — instructions for it not to show up in search results.

In contrast, the TurboTax page that puts many users on track to pay signals to Google that it should be listed in search results.

Sen. Ron Wyden, the ranking Democratic member of the Senate Finance Committee, said in a statement that he plans to raise Intuit’s misleading marketing with the IRS. “Intuit’s tactics to reduce access to the Free File program and confuse taxpayers are outrageous,” he said.

Don't expect Wyden to be the only member of Congress to get into the act. Several of the Democratic Presidential candidates are members of Congress as well, and you can bet that this is the kind of subject many of them will be all over. Elizabeth Warren in particular, as one of those pushing the IRS to do its own free to file program via legislation, should be an interesting watch here.

What the end result of all of this is unknown at the moment, but it looks very, very bad for Intuit. Again, Intuit signed an agreement with the IRS not only to offer free to file itself, but to take action to increase the use of it. Delisting the website where it can be done is about as counter to that promise as can be had.

Filed Under: congress, free tax filing, free taxes, irs, low income, search engines, tax prep, taxes, turbotax
Companies: intuit