Comcast Tells The FCC It Should Be Able To Charge Broadband Users A Premium For Privacy

from the stop-trying-to-help dept

A few years back, we noted how AT&T had begun charging broadband users a significant premium if they wanted to opt out of the company's Internet Essentials advertising program. Under that program, AT&T uses deep packet inspection to track consumer browsing behavior around the Internet -- down to the second. By default, AT&T users are opted in to the program. If they want to opt out of this data collection, consumers need to not only navigate a confusing array of options, but they also need to pay $44 to $62 more per month. AT&T, in typical fashion, has actually claimed this is a "discount."

With the FCC's Title II and net neutrality rules upheld, the agency is now considering new basic broadband privacy protections primarily focused on two things: ensuring ISPs properly disclose what's being collected and sold, and ensuring that ISPs provide customers with clear, working opt-out tools. But the agency is also considering banning ISPs from turning your privacy into an expensive luxury option.

Needless to say, Comcast isn't too pleased with this decision. In a new filing with the FCC (pdf) documenting a meeting at the agency, everybody's least liked cable company argues that stopping them from charging more for privacy would, amusingly, hurt consumers by making services more expensive:

"We also urged that the Commission allow business models offering discounts or other value to consumers in exchange for allowing ISPs to use their data. As Comcast and others have argued, the FCC has no authority to prohibit or limit these types of programs. Moreover, such a prohibition would harm consumers by, among other things, depriving them of lower-priced offerings, and as FTC Commissioner Ohlhausen points out, “such a ban may prohibit ad supported broadband services and thereby eliminate a way to increase broadband adoption."

Yes, that's Comcast actually trying to argue that charging customers more money for privacy is a good thing because it will lower rates and improve broadband adoption. Except as we all know, it's the lack of competition in the broadband space that sets broadband pricing and adoption. And there's yet to be an ISP that has seriously embraced the idea of offering a lower-priced service if consumers agree to have their behavior monetized. All AT&T is doing is taking an already expensive broadband service and tacking a very steep privacy surcharge on top of it.

In addition to trying to argue that the FCC doesn't have the authority to police such behavior (not true, it's simply updating existing Title II privacy rules governing phone network CPNI and applying them to broadband), Comcast said that making privacy a luxury option is simply a "bargained-for exchange of information for service":

"A bargained-for exchange of information for service is a perfectly acceptable and widely used model throughout the U.S. economy, including the Internet ecosystem, and is consistent with decades of legal precedent and policy goals related to consumer protection and privacy."

Again though, the implementation of this idea at AT&T is unique because in the broadband market, users can't switch providers if they don't like their privacy practices. Meanwhile, AT&T not only makes opting out expensive, it makes it incredibly cumbersome and confusing -- ensuring that the least number of users actually take the option. These ISPs consistently argue that they should be treated just like Google and Facebook when it comes to privacy regulations, intentionally ignoring the lack of competition in last mile broadband.

As they push harder into content and ads, Comcast, AT&T, and Verizon have all repeatedly tried to argue that there should be absolutely no privacy rules governing broadband because they can self-regulate in the absence of meaningful competition. But as we saw when Verizon was busted for covertly modifying wireless packets to track consumers (one of the things that drove the FCC to take this route to begin with), it's abundantly clear that's simply not the case.

Filed Under: charges, fcc, fees, privacy
Companies: comcast

Supreme Court Makes It (Slightly) Easier To Award Attorneys' Fees For Bogus Copyright Lawsuits

from the a-little-bit dept

You may recall the Kirtsaeng case that we covered a few years back, in which a student, Sudap Kirtsaeng, had been sued for copyright infringement by publishing giant John Wiley for buying English-language textbooks in Thailand (that were cheap) and then reselling them to students in the US. It was a classic arbitrage situation. Wiley insisted that this was infringing, while Kirtsaeng pointed to the First Sale doctrine, allowing people to resell physical products they've legally purchased, even if they include copyright-covered content. Wiley's argument against first sale is that it only applied to content that was "legally made under this title." Thus, since the textbooks were made in Thailand and not under US copyright law, First Sale didn't apply. The Supreme Court, thankfully, rejected that argument 6 to 3, and said that first sale does apply. That was good.

The case then went back to the lower courts where Kirtsaeng sought to have Wiley pay his legal fees. The lower court and the appeals court both rejected this request, arguing that the standard for assigning attorneys' fees in copyright cases was whether or not the plaintiff bringing the case had an "objectively reasonable" argument -- and noting that with 3 of the 9 Justices eventually siding with Wiley, the case was likely "objectively reasonable," even if it failed in the end. This argument also reached the Supreme Court and on Thursday, the Justices decided to tweak the standard.

Very similar to the case it decided earlier in the week concerning patent damages (and, in fact, it cites that case in this ruling), the Supreme Court rejects the purely "objectively reasonable" standard test as being too "rigid." It's pretty clear that the court thinks that lower courts should have some leeway in determining the appropriate remedies, rather than sticking to a set of strict guidelines.

All of that said, objective reasonableness can be only an important factor in assessing fee applications—not the controlling one. As we recognized in Fogerty, §505 confers broad discretion on district courts and, in deciding whether to fee-shift, they must take into account a range of considerations beyond the reasonableness of litigating positions.... That means in any given case a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones). For example, a court may order fee-shifting because of a party’s litigation misconduct, whatever the reasonableness of his claims or defenses.... Or a court may do so to deter repeated instances of copyright infringement or overaggressive assertions of copyright claims, again even if the losing position was reasonable in a particular case. See, e.g., Bridgeport Music, Inc. v. WB Music Corp., 520 F. 3d 588, 593–595 (CA6 2008) (awarding fees against a copyright holder who filed hundreds of suits on an over-broad legal theory, including in a subset of cases in which it was objectively reasonable). Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.

Based on this, the court sent the case back down to the lower court to reconsider, since it originally rejected the request for fees by saying the original claims were "objectively reasonable." So now the court has to consider "other stuff" not clearly laid out by the Supreme Court to see if it could award attorneys' fees for other reasons -- such as the fact that the case was useful in settling an important, but until then, unsettled bit of law: whether or not first sale applied to foreign made goods.

This is probably, mostly, a good thing. Rigid tests can fail in unique circumstances, so granting flexibility is good. But of course, there's also a downside to flexibility, in that it leads to greater uncertainty, and that may scare off certain worthwhile activities. Either way, the court seems to have made the right decision here, and now Kirtsaeng gets another shot at getting attorneys' fees from Wiley.

Filed Under: copyright, fee shifting, fees, sudap kirtsaeng, supreme court
Companies: john wiley

Appeals Court Tells Government It Must Extend Educational Institution FOIA Fee Price Break To Students

from the you-can-always-make-it-up-with-student-loan-interest dept

The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall.

Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration.

The Department of Defense has fought this the whole way. It wanted a clear-cut delineation between students and staff for reasons only it comprehends, as that would mean saddling those with fewer financial resources (students) with higher fees.

The decision starts out by noting that FOIA fees -- if high enough -- are an effective deterrent to requesters. It then goes on to examine the government's assertion that the category of "educational institution" does not include these institutions' student bodies.

We thus must decide whether the statutory term “educational institution” is properly read, as the Government reads it, to include teachers but exclude students from the category of preferred requesters who are eligible for reduced fees. We conclude that the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all.

[...]

It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.

The government -- in making its nonsensical argument that students are not part of educational institutions -- relies on two different pull quotes. One is from a statement Sen. Charles Leahy made way back in 1986 during his legislative push to amend the FOIA to reduce fees for schools.

“A request made by a professor or other member of the professional staff of an educational or noncommercial scientific institution should be presumed to have been made by the institution.”

The government has chosen to believe this excludes students. The court, however, points out that Leahy was actually expanding the definition from what was originally assumed: that only top-level representatives of education institutions (presidents, chairpersons, etc.) could benefit from the lowered fees. The amendment, as written, makes no delineation between staff and students, no matter what the government feels Leahy must have meant when he made that statement.

The second pull quote is from an OMB (Office of Management and Budget) FOIA guideline.

“A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify” as a request made by an educational institution.

With this, you'd figure the DoD has a point. But it doesn't, as the court explains. There are questions that need to be answered and one of them is, "How does the OMB arrive at this conclusion without a single statutory leg to stand on?"

In our view, OMB’s rule for student requests is inconsistent with the statute. FOIA refers broadly to an “educational institution.” As we have explained, we see no good basis in the text or context of FOIA to draw a line here between the teachers and students within the educational institution. The Guideline’s ipse dixit distinction of students from teachers is entirely unexplained and unpersuasive. The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student.

As the court sees it, the OMB's diversion from the statutory mean may be more motivated by its position (the "Budget" part of OMB) to seek higher fees from more requesters -- allowing it to make more money while deterring a certain percentage of FOIA requesters. If so, that's its own problem and one it fixes immediately. The FOIA isn't supposed to be a profit-making enterprise, much less a reliable revenue stream.

But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students. The statutory text and context lead us to this simple conclusion: If teachers can qualify for reduced fees, so can students.

The court cautions that its take on the "educational institution" price break is not meant to be read as FOIA: Student Edition and used by attendees to obtain cheap documents for personal or commercial use. It says the government can take steps to prevent abuse by requiring things like copies of student IDs, letters from instructors, etc. That being said, the court is similarly not granting agencies the power to follow the letter of ruling while doing everything they can to break its spirit.

We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests.

This is a win for student Kathryn Sack and for all others similarly situated. It returns a fee exemption to a more logical place, rather than leaving it in the shape it was, where it could be used to deter requesters with limited means.

Filed Under: education, fees, foia, information, prices, students

Sony Thinks It Can Charge An 'Administrative Fee' For Fair Use

from the not-how-it-works dept

Mitch Stoltz, over at EFF, has been writing about a ridiculous situation in which Sony Music has been using ContentID to take down fair use videos -- and then to ask for money to put them back up. As Stoltz notes, the videos in question are clearly fair use. They're videos of lectures put on by the Hudson Valley Bluegrass Association, teaching people about bluegrass music. They're hourlong lectures in a classroom setting, that do include snippets of music here and there as part of a lecture, with the music usually less than 30 seconds long.

HVBA’s use of clips from old bluegrass recordings is a clear fair use under copyright law. The clips are short, the purpose of the videos is educational, and the group does not earn money from its videos. Plus, no one is likely to forego buying the complete recordings simply because they heard a clip in the middle of an hour-long lecture.

Nonetheless, like so many others, HVBA had its videos disappear thanks to a ContentID match on some Sony music. Here's where the story gets much worse than the standard version of this story. HVBA reached out to Sony Music, asking it to release the claim, but Sony Music demanded money, saying it was an "administrative" fee.

When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.

As the EFF post notes, this highlights (yet again) what a dangerous disaster "notice and staydown" would be. It would open up the ability for shakedowns and censorship like what happened above.

Of course, once EFF publicized the story, Sony Music quickly backed down, but not everyone will be able to have their story told by EFF.

Even worse, even in backing down, Sony Music refused to concede the point, and indicated it still believed that fair use needed to be paid use.

A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.

It does make you wonder if Sony Music has been successful in charging this $500 fair use "administrative fee" to others, in a move that would be pure copyfraud.

Either way, imagine how copyright trolls would react to this kind of situation if it were more global on the internet with a mandated notice and staydown provision. We've already written about cases where people falsely claim copyright on works to get stuff taken down on other sites, but if there's a way to not just censor with that, but also make money, you know it's going to get widely abused. Hell, we've even had a similar situation here, where a small publication in another country (which does not have a fair use regime) sent us a letter objecting to our linking and quoting them without reaching "an agreement." Giving more power to folks like that is a recipe for widespread censorship and shakedowns.

Filed Under: administrative fee, bluegrass, contentid, copyright, fair use, fees, lessons
Companies: hudson valley bluegrass association, sony music, youtube

Lawsuit Filed Over PACER Fees

from the about-time dept

For many years we've pointed out that the fees charged by PACER were clearly outside what the law allows. If you don't know, PACER is the electronic filing system for the federal court system. It is great that all filings in federal cases are available online, but the interface looks like it was designed in 1998, the search is ridiculous, and (worst of all) the system charges you 10 cents per page of download -- excluding judicial opinions, but including HTML pages including search results and docket reports. There is a cap of $3 per document, but that means that every time I call up PACER on a big case -- say the Apple/DOJ encryption battle, there are so many filings that just to look at the docket is basically $3. That adds up.

And, as we noted all the way back in 2011, this appears to violate the law that authorizes PACER to exist. The law makes it clear that the Judicial Conference can only charge "reasonable fees" and that those fees should only be for the purpose of operating PACER itself. Yet PACER makes a lot more money than it takes to maintain the system. The courts do actually use this revenue for good purposes -- such as updating technology in courtrooms -- but it's still troubling that it's violating the law to get that money, and putting many of the fees on the back of the public (and reporters who are trying to inform the public).

A few years ago Aaron Greenspan filed a pro se lawsuit about this issue, and while I appreciate where his heart is, he always seemed to have trouble managing the various pro se lawsuits he had filed (some of which I still argue were just downright nutty). Earlier this year, we highlighted another lawsuit over PACER, arguing that when it charges "per page" fees for HTML results (search, dockets, etc...) that it was overcharging.

But now it looks like we finally have a real lawsuit over the fees themselves, filed by a few different legal advocacy groups: the National Veterans Legal Services program, the National Consumer Law Center, and the Alliance for Justice.

Despite this express statutory limitation, PACER fees have twice been increased since the Act’s passage. This prompted the Act’s sponsor to reproach the AO for continuing to charge fees “well higher than the cost of dissemination”—“against the requirement of the E-Government Act”—rather than doing what the Act demands: “create a payment system that is used only to recover the direct cost of distributing documents via PACER.” Instead of complying with the law, the AO has used excess PACER fees to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access.

This noncompliance with the E-Government Act has inhibited public understanding of the courts and thwarted equal access to justice. And the AO has further compounded those harms by discouraging fee waivers, even for pro se litigants, journalists, researchers, and nonprofits; by prohibiting the free transfer of information by those who obtain waivers; and by hiring private collection lawyers to sue people who cannot afford to pay the fees.

It's good that the court system is investing in technology, but it should (1) do so within the law and (2) figure out a way to make PACER information free to the general public already. These documents are critical for the public to understand the judicial system that impacts them on a daily basis. There have been many suggestions for better ways to do this, including making the filing fees for lawyers higher (with exemptions for plaintiffs without means to pay for such lawsuits). You could easily cover the cost of PACER with slightly higher filing fees for corporate plaintiffs, and then still make the overall PACER system better and faster. We have seen companies stepping into this space trying to make better interfaces for the awful PACER system -- companies like PacerPro, Plainsite and Sqoop -- but all of them still rely on the fee-based PACER on the backend.

Filed Under: fees, pacer

As ISPs Push Harder On Usage Caps, House Pushes Bill Preventing The FCC From Doing Anything About It

from the stripping-the-fcc-of-its-power-to-protect-consumers dept

In recent weeks, we've noted how ISPs are now moving beyond broadband usage caps and overage fees, and have begun charging users a $30-$35 premium if they want to avoid usage caps entirely. While the industry often dresses this up as everything from "improved flexibility and choice" to something necessary for the sake of fairness, it is, quite simply, an aggressive rate hike on uncompetitive markets. Users are being socked with dramatic new limits and fees -- simply because most have no real competitors to flee to.

Entirely uncoincidentally, the House is now pushing for new legislation that would hamstring the FCC's ability to regulate broadband rates. The "No Rate Regulation of Broadband Internet Access Act" (pdf) is set to be debated this week in Congress, and would, according to a press release by the Energy and Commerce Committee, prevent the FCC from regulating rates charged for broadband Internet, "just as the administration promised when they reclassified access to the Internet as a utility under Title II of the Communications Act."

Except according to a Medium post by attorney Harold Feld, the bill tries to use a special definition of "rate regulation" to ban the FCC from, well, doing much of anything:

"H.R. 2666’s language would protect broadband providers from any “review” or “enforcement” of their prices, and prevent the FCC from even “declaring” — let alone addressing — any broadband prices or fees as even “unreasonable.” To make this even more clear, the bill prohibits the FCC from reviewing any prices, fees, or overages “regardless of any other provision of law.” That goes way beyond the FCC’s traditional rate setting authority. “Any other provision of law” includes the FCC’s mandate to promote competition and its consumer protection authority."

So basically, the House, at the behest of large ISPs, is looking to further neuter the FCC. Not only so it can't protect consumers from usage caps and price gouging, but to try and derail the FCC's plan to expand consumer broadband privacy protections, or say, open up the cable set top box to additional competition.

It should probably be reiterated that while the FCC says it does have the authority to regulate some rates under Title II and its net neutrality rules (preventing "paid prioritization," for example), the agency so far has shown no interest in really doing so. Whether it's a $300 million national broadband map that fails to show broadband prices (at industry behest), to the agency's continued blind eye to hidden fees, usage caps and zero rating, the FCC has made it abundantly clear that it finds a large amount of the broadband industry's current price gouging just "creative experimentation."

But while the FCC hasn't done much about broadband prices directly, it has tried to shore up competition in the market so prices drop organically, including support for municipal broadband. Between this, the agency's push for privacy rules, and net neutrality, the House has made it abundantly clear it plans to punish the FCC for standing up to giant ISPs like AT&T, Verizon and Comcast. As such, if it isn't a series of pointless, FCC "fact finding" hearings, it's yet another bill like this one that aims to tie the FCC's arms securely behind its back.

As it stands, there remain just two serious ways to roll back net neutrality and the FCC's decision to reclassify ISPs as common carriers under Title II: win the election and gut the FCC and its decision, or win the ongoing lawsuits against the FCC (a ruling on that front is expected soon). The House likely knows this, but is apparently keen to try and earn its telecom campaign contributions by putting on one hell of a taxpayer-funded show.

Filed Under: congress, consumer protection, fcc, fees, isps, rate regulations, regulation, scams

AT&T Follows Comcast's Lead, Now Charging Users $30 More To Avoid Usage Caps

from the what-competition? dept

Last fall, Comcast added a new wrinkle to its plan to impose arbitrary and unnecessary usage caps on the company's broadband customers. It began charging users a $30-$35 premium if users wanted to avoid caps, effectively turning the idea of unlimited data into a luxury option many could no longer afford. Caps continue to be a great way to impose price hikes on uncompetitive broadband markets, charge more money for the same service, with the added bonus of both curtailing -- and cashing in on -- the growing use of Internet video.

And because the broadband market is so uncompetitive, AT&T this week effectively just came out and decided it would follow Comcast's lead. In a blog post, the company announced that it's bumping the usage caps on its U-Verse broadband customers, but it's also going to be following Comcast's lead and charging users a $30 premium if they want to avoid them entirely. That is, unless you sign up for AT&T or DirecTV (now owned by AT&T) TV services:

"On May 23 we will introduce a new unlimited data option for our U-verse home Internet customers. Customers who subscribe only to our home Internet service who anticipate they will use more data than their new higher monthly data allowance – or who don’t want to think about how much data they are using – can sign up for unlimited home Internet data for $30 more a month. If you have AT&T U-verse Internet and DIRECTV® or U-verse TV service and pay for your services on a single bill you will automatically get unlimited home Internet data at no additional charge – a discount worth $30 a month.

What sweethearts! To soft sell the idea, AT&T emphasizes that they're raising the company's previous caps, but it forgets to mention (and most news outlets aren't noticing) that it had never bothered to enforce caps on U-Verse previously, effectively making these new caps. And like other ISPs before it, AT&T tries to argue that the caps aren't a big idea because most of its customers won't run into them:

"Today, our home Internet customers use just over 100 GB of data per month on average. So even with our smallest U-verse Internet data allowance of 300 GB the average customer has plenty of data to do more...If you don’t have unlimited home Internet data and you exceed your data allowance at any point during the billing cycle, you will receive increments of 50 GB of additional data for $10 each. The usage of approximately 4% of AT&T U-verse Internet customers currently exceeds our new higher data allowance.

The fact that the majority of your customers won't hit the caps now doesn't mean they won't in a year or two. It also doesn't magically explain away the reality that usage caps on fixed-line networks simply aren't necessary. They exist solely as a way to take advantage of uncompetitive markets, charging users more money for the same product. They're also an ingenious, anti-competitive way of protecting legacy TV revenue from Internet video. But an ISP can't come out and just say that, so AT&T sells it as a way for consumers to have "more choices":

"We want to continue providing a great experience for our Internet customers so we’re giving U-verse® Internet customers more choices and more data, including an unlimited data option available to any U-verse Internet customer."

Again, forcing customers to pay more money for the same service isn't giving consumers more choices. All AT&T's doing is imposing a glorified price hike. That's after the company announced it would be charging users a different $30 fee to opt out of AT&T snoopvertising, making privacy a luxury option just like unlimited data. It's yet another example of how the only real competition in the broadband industry -- is a competition over who can screw a captive market the hardest while with a straight face proclaiming they're improving the "customer experience."

Filed Under: broadband, fees, usage caps
Companies: at&t, comcast

Defense Department Tells MuckRock It Will Need To Come Up With $660 Million To Cover FOIA Request Fees

from the in-other-words,-the-GDP-of-Switzerland dept

Nothing quite tells the public to mind its own business like attaching a ridiculous fee demand to an FOIA response. It's pretty easy to price the public out of the transparency market, seeing as it doesn't have access to the monetary resources its tax dollars are paying for.

We've covered a few of the more ridiculous FOIA fee demands here at Techdirt, like:

The City of Ferguson charging $135/hour for FOIA response work -- a rate roughly 10 times the hourly wage of entry-level city clerk's office employees.

The City of McKinney telling Gawker emails related to a police misconduct investigation would run 9,000 hours and cost $79,000.

The Florida State's Attorney's Office demanding $180,000 to turn over records on a questionable suicide.

The FBI telling MuckRock that it would cost $270,000 to respond to an FOIA request about Booz Allen -- and that's with an electronic file "discount" of over $6,000 applied.

MuckRock has now topped that last number… exponentially. Martin Peck's FOIA request for information on the Dept. of Defense's use of "HotPlug" systems (a portable power pack that keeps seized devices from powering down) has resulted in an FOIA fee estimate exceeding a half-billion dollars.

Mr. Robert R. Jarrett, Director of Operations, Defense Procurement Acquisition Policy, and a FOIA Initial Denial Authority, stated that it is possible that contracts that acquired the requested items are present in the Electronic Documents Access (EDA) system; however, there are more than 30 million contracts in EDA, consisting of more than 45 million documents. No method exists for a complete text search of EDA, as some documents are scans of paper copies. The estimated time required to perform the necessary redactions of proprietary data, assuming 20 minutes per document, is estimated to be 15 million labor hours at an estimated cost of $660 million.

While this amount may be couch change for the DoD (0.1% of its $573 billion budget), it's ridiculously out of reach for any US citizen without billions of dollars to their name. Then there's the question of feasibility. Even if every man, woman and child in America tossed MuckRock a couple of bucks to push this request forward, the estimate of 15 million labor hours suggests the DoD will never fulfill it. If the DoD throws 30 people at the problem 24 hours a day without a day off, Peck still shouldn't expect a response until 2073 at the earliest.

This astronomical estimate says two things about the DoD, though. One, it apparently uses these forensic devices frequently enough that searching for responsive documents will be a massive undertaking. Two, it says the Electronic Document Access system is not nearly as useful as its name would suggest, what with document scans not being searchable. This is a government-wide problem and one that no one's too interested in fixing.

Many FOIA responses contain documents scanned at skewed angles using the worst hard copy available. It happens often enough that it almost appears the government is seeking to maintain a level of obfuscation while still paying lip service to transparency. Sure, a released document is better than no response at all, but the insistence on releasing documents capable of defeating OCR software prevents collation of similar documents and thwarts search efforts for relevant info -- both on the government's end and the public's.

This decision will be appealed and the request narrowed significantly, but I imagine the DoD's database will continue to thwart both its FOIA response team and requesters like Peck, for years to come.

Filed Under: defense department, fees, foia

NYPD Tells Public Record Requester It Will Cost $36,000 To Process A 'Sampling' Of Body Camera Footage

from the ransomware dept

The NYPD is once again in the middle of a transparency/accountability controversy. The law enforcement agency has achieved the dubious distinction of being more difficult to obtain public records from than federal three-letter agencies like the CIA and NSA. The latest news does nothing to improve its reputation.

Some of this is due to its in-house classification system, which allows it to arbitrarily declare potentially-responsive documents "secret" -- something it does quite often with no apparent oversight. Some of it is due to the department's general antagonism towards transparency and openness, which keeps documents not marked secret out of the public's hands just because. Its steadfast belief that the only entity truly entitled to information is the NYPD has seen this attitude carried over to discovery requests in civil lawsuits and criminal cases, much to the general disgruntlement of presiding judges.

With the NYPD's court-ordered body camera program going into effect, the recorded footage is the latest target of FOIL (Freedom of Information Law) requests. TV station NY1 asked for a "sampling" of body-worn camera footage from five weeks of recording. In return, the NYPD has given it nothing but delays… and a high-dollar estimate.

When the NYPD first rolled out its body camera pilot program, the idea was increased transparency and accountability. But last spring when NY1 requested five weeks worth of footage under the state’s Freedom of Information Law, known as FOIL, the NYPD said it would cost NY1 $36,000 so that an officer could first review and edit the video, to address privacy and other concerns.

After a couple rounds of appeals, the TV station has taken the next step. It sued the NYPD, citing a number of FOIL violations.

The NYPD denied NY1's request for unedited footage without specifying what material it plans to redact, how much material will be excluded from disclosure, or how the redaction will be performed. Instead, Respondents suggested that they may provide with edited footage, but only on the condition that remit $36,000.00, the alleged cost to the NYPD of performing its unidentified redactions.

FOIL does not permit public records to be withheld absent a full explanation of the materials that are exempt from disclosure. FOIL also does not permit agencies to levy any charge for review and redaction of records (let alone a $36,000.00 charge). As a result, the response to NY1's request violates FOIL.

Indeed, the response to NY1's request for footage runs counter to both the public policy of openness underlying FOIL, as well as the purported transparency supposedly fostered by the BWC program itself.

Redacting footage isn't necessarily inexpensive, but the NYPD has provided no justification for the $36,000 fee. The FOIL request doesn't ask for anything more than a "sampling" of the recorded footage. The NYPD responses don't specify whether the agency considers this to be every minute of footage recorded during those time periods, or something considerably more limited.

It is true that the footage will have to be redacted, at least in part. But without further information, the "reasonableness" of the NYPD's fee demand can't be assessed. This FOIL paywall runs contrary to the law's purpose, as well as the presumption of disclosure stressed in comments made by NYC Mayor Bill de Blasio, who lauded the new body-worn camera program as a step forward in transparency and accountability. If the footage remains solely in the possession of the NYPD, there will be no additional transparency or accountability.

On the other hand, NYPD Commissioner Bill Bratton seems to feel the state's public record law only applies to other government agencies. The NYPD currently ranks at the bottom of the list for city agency FOIL responsiveness. That seems unlikely to change if this is how the department responds to requests for footage.

"We have never released 911 calls, and video recorded by these officers, I think, would be under the same protection of not being released, even to FOIL requests," said Police Commissioner William Bratton.

Unfortunately, this response from the NYPD -- despite effectively pricing NY1 out of the market for these public records -- directly contradicts the commissioner's beliefs. Obviously, the NYPD FOIL team feels these documents are responsive to public records requests. However, it's more than willing to do whatever it takes to ensure this responsiveness remains in the realm of the theoretical.

Filed Under: body camera, fees, foia, nypd, public records

Happy New Year From Comcast: Price Hikes And Misleading Fees For Everybody

from the more-of-the-same dept

Comcast certainly had quite a year. When it wasn't busy failing to justify its latest attempted mega merger or criticizing bloggers for calling its top lobbyist a lobbyist, the company continued to deliver what's statistically the worst customer service of any company in the United States. This is before you consider the company's latest efforts to expand usage caps, and use those usage caps to give their own streaming services a leg up, while payrolling the industry's attempt to kill net neutrality protections.

As a bow on the shit show that was Comcast in 2015, the company is spreading good cheer for the new year in the only way it knows how: major rate hikes for nearly all of the company's services. The company is not only jacking up the costs of most of its TV services, it's raising the rates on most Comcast installer "services", from installing a new coax jack to the fees charged for upgrading or downgrading your service packages. Also being hiked is the company's relatively-recent (and aggressively misleading) "broadcast TV fee":

"Comcast also will hike a "broadcast TV fee" by 66 percent to $5 a month from $3. This relatively new fee covers the cost of retransmission fees that over-the-air broadcast TV networks - CBS, NBC, ABC, and Fox - charge cable companies for distributing their networks on pay-TV systems. Retransmission fees and sports are the two biggest inflationary-costs pressures in TV bills, according to industry observers and Comcast executives."

Except, as the report fails to note, these programming costs are simply the cost of doing business -- and should be included in the advertised rate. Instead, companies like Comcast tuck this bogus fee below the line to covertly jack up the advertised price post sale. Of course, cable operators are quick to proclaim that programmers are solely responsible for users' soaring cable bills, but as you'll note the cost of everything is going up at Comcast/NBC, from the cost you'll pay for installer service to the $4 (previously $3) you have to pay for digital adapters.

Clinging to one of the stalest and most insulting price hike justifications in the industry, Comcast claimed the cost increases were necessary to provide that amazing "customer experience" its customers consistently complain they don't get:

"Comcast spokesman Jeff Alexander said the company continues to invest in its network and technology "and to give customers more for their money - like faster Internet service and more WiFi hot spots, more video across viewing screens, better technology like X1, and a better customer experience."

Right. That's the same "customer experience" that's so consistently awful, the company's dysfunction goes viral on almost a weekly basis. Some companies are content just aggressively milking the legacy markets they've dominated quietly. Comcast's a different animal entirely, aggressively pushing the barrier on new and amazing anti-competitive ideas with relentless aplomb. The company's political muscle ensured regulators turned a blind eye for much of the last decade, but Comcast's attempt to protect this legacy empire with usage caps, overage fees, and zero rating its own streaming services -- may finally gift the company with a 2016 run in with the FCC.

Filed Under: broadband, fees, price hike
Companies: comcast