Facebook's Threat To NYU Researchers Is A Mistake, But It's The Inevitable Follow On To Overreaction To Cambridge Analytica

from the research-v-abuse dept

Late on Friday news came out that Facebook had sent a cease and desist letter to researchers at NYU working on the Ad Observatory project. At issue was that the project had asked people to install a browser extension that would share data back to NYU regarding what ads they saw. Facebook -- responding to significant criticism -- has put forth an ad library that allows researchers to search through what ads are being shown on Facebook and who is behind them (which is good transparency!), but it does not show how those ads were targeted. This is what the researchers at NYU were trying to collect data on. And that is a reasonable research goal.

Facebook has argued that this is a breach of Facebook's terms of service -- though it does seem notable that this is coming out right around the same time that these very same researchers discovered that Facebook's promise to properly label political ads isn't working so great (it's a tangent, but this is why promising to label political ads may be problematic in the first place: you're going to miss a bunch, especially on a platform this big).

The Knight 1st Amendment Center at Columbia is representing the researchers and is condemning this move (and the researchers are refusing to comply with the cease-and-desist). Here's the Knight Center's litigation director Alex Abdo:

“Frankly it’s shocking that Facebook is trying to suppress research into political disinformation in the lead-up to the election. There’s really no question more urgent right now than the question of how Facebook’s decisions are shaping and perhaps distorting political discourse. It would be terrible for democracy if Facebook is allowed to be the gatekeeper to journalism and research about Facebook.”

This is not the first time that the Knight Center and Facebook have clashed over research. Two years ago, the Center had asked Facebook to create a special safe harbor for journalists doing research on the platform, to avoid having them face CFAA claims. Facebook declined.

I think this is a bad move by Facebook and a huge mistake. I think it's a mistake on multiple levels: political, technological, legal and just on general PR. However, I will give one sliver of a defense to Facebook: it likely feels somewhat forced into this because of the years-long over-reaction to Cambridge Analytica. Cambridge Analytica did a bunch of bad stuff, and it started out as an "academic" claiming (misleadingly) that he was merely doing "academic research" on Facebook users -- creating a Facebook app that would get users to basically cough up data about their entire social graph. The "academic" then gave the data over to the company (violating the rules), which then became part of a political advertising machine. Eventually, Facebook was pretty significantly fined, in part because of Cambridge Analytica's ability to extricate and share that data.

You may note some similarities. Ostensibly academic researchers asking users to install something to collect some data about Facebook users, and then collecting that data for "research." Given what happened with Cambridge Analytica, you might see why some folks within Facebook would be reasonably gunshy about letting this happen again -- and that may explain the company's aggressive legal response. And, you and I can say "but NYU is a respected institution -- they're not going to abuse this data" but the guy who did the data for Cambridge Analytica was initially at Cambridge, also a respected university.

You might also argue that since Facebook has been dinged by the FTC, in part over this, and the consent decree doesn't really specify that this there are separate rules for "legitimate" research, it has to do this. Indeed, that's kind of what Facebook itself is now arguing in response to this:

However, I believe the scenario here is quite different for a few key reasons. The original data used (eventually) by Cambridge Analytica was created via a Facebook app, for which the developer had to sign an agreement with Facebook that promised not to use the data in this way. And he was using the setup of Facebook's own tools to extract this data. That is, it was Facebook's API making this information available.

This is very, very different from what the NYU researchers are doing. They're asking users to install a browser extension (i.e., outside the Facebook ecosystem and not using the Facebook API or signing any kind of agreement with Facebook) in order to extract data from their own computers (again, not via the Facebook API, or the Facebook servers). And while Facebook may not like it, it's problematic that the company is arguing that it can step in and argue that end users can't -- by their own choice -- install an app they want on their own computers to capture the data that is on their own computers.

So, I think there's a pretty strong argument that me on my computer installing software to collect data in my own browser is not "unauthorized access" in any sense of the term, no matter what Facebook or the FTC might think. In fact, I'd argue that thinking that me collecting data out of my own browser and willfully handing it over to someone I chose to is, frankly, none of Facebook's business -- and it suggesting that this is a form of "unauthorized access" (which has a specific meaning under the CFAA) is crazy.

Indeed, this gets back to the infamous (and dangerous) lawsuit between Facebook and Power, in which Facebook won a CFAA claim, in part because it had sent a cease-and-desist. I still think this case was wrongly decided and the ramifications are huge, and are one of the reasons why Facebook remains so dominant today. But, in that case, again, it involved a third party offering a service to end-users who willingly chose to use the software, in order to gain access to their Facebook data in order to interact with it in a different way (in Power's case via a universal social media dashboard).

Unfortunately, I fear that the similarities to the Power case make this dangerous for the NYU researchers -- though they make a much more sympathetic defendant than a for-profit startup. And, the facts here are somewhat distinguishable from the Power case (the app here is simply collecting data in a user's browser, rather than doing an independent login and sucking out data).

We should be able to install whatever software we want -- even if Facebook doesn't like it -- to access data on our own computers. Facebook should have no say in that, and shouldn't be able to reach into our computers with a legal effort to block it. If the services were somehow damaging Facebook's technology, I could understand the issue. But this is just about reading the information on your own computer sent by Facebook and collecting and sharing that information, and it's done entirely outside the Facebook ecosystem. Facebook should not only drop the threat, but it should actually support this kind of important research.

Filed Under: academic research, ad observatory, consent decree, political advertising, privacy, research, threats
Companies: facebook, nyu

Oversight Board Calls Out Austin PD For Revamping Policies To Minimize Citizen Complaints

from the [PD-divests-trustworthiness] dept

The Austin (TX) police department barely avoided being hit with a DOJ consent decree a little over a decade ago. The sheer number of recommendations makes you wonder where the consent decree bar sits at the DOJ.

The U.S. Department of Justice has made 160 recommendations to improve Austin Police Department policies and procedures, as part of the ongoing federal investigation of department practices. APD Chief Art Acevedo said Jan. 5 that his department has implemented, or is in the process of implementing, the majority of the recommendations, outlined in a 50-page letter of "technical assistance" delivered to city officials late last month.

If the name Art Acevedo rings a bell, it's because he's now the head of another problematic police department. Acevedo runs the Houston Police Department -- now mostly known for being the home of corrupt cops, who strung together a bunch of lies to engage in a drug raid that resulted in the senseless killing of two residents.

The DOJ also recommended the APD make it easier for citizens to file complaints.

A majority of the DOJ recommendations involve policies governing police use of force. The DOJ also makes substantive suggestions on how citizen complaints should be classified and reviewed by Internal Affairs and recommendations that emphasize the need for comprehensive and ongoing police training.

The city did set up an Office of Police Oversight to facilitate the filing of complaints against police officers. The Office is supposed to provide a layer of independent oversight. But investigations are still performed by the Austin PD personnel, which makes this a bit of a closed loop.

Grits for Breakfast reports the Austin PD is looking to close the loop even further by revamping the complaint process. Nothing about the alterations will make it easier for citizens to file complaints or for the PD's independent overseers to, you know, actually oversee the process. Maybe it's just bureaucracy rather than malice, but the re-categorization of complaints seems geared towards making it more difficult for everyone (outside of the PD, that is) involved.

Without getting too deep into the weeds, the new orders… changed how complaints submitted to the OPO are classified by the department. Previously, there were three complaint categories at the OPO: formal complaints, supervisor referrals, and citizen concerns. Now, "citizen concerns" will be recorded as "external information," and may be closed by IA upon initial categorization with no investigation required.

Supervisor referrals, bizarrely, will now be categorized as "citizen concerns," while a new category called 'Minor Policy Violations' will now be labeled "supervisor referrals." Got that?

Finally, incoming complaints historically are categorized A, B, C, or D, depending on an initial assessment of their validity/severity by either IA or the officer's supervisor. Another big change is that only those classified A or B will now be considered "formal" complaints.

The weeds are indeed very deep. This nonsensical reclassification of complaints is listed towards the end of a 783-page PDF. (The section on "Administrative Investigations" starts at page 548.) The new designations seem designed to obscure the origin of the complaints and to facilitate the wrist-slapping of misbehaving officers.

This hasn't escaped the attention of the Office of Police Oversight. A letter [PDF] to the PD from its director, Farah Muscadin, calls the PD out for needlessly complicating the complaint review process.

The OPO asserts that this unnecessary change and filtering of complaint data will mislead the public and continue to feed a false narrative that complaints filed with the OPO against APD are not rigorously assessed. More importantly, it will leave complainants without any meaningful resolution or sense of procedural justice. Furthermore, the OPO contends that this new category is detrimental to the established process and attempts to minimize complaints from the public. The OPO recommends that “minor policy violations” continue to be handled through the OFCA process already outlined in APD policy.

And that's not all. It's more than just making the process complicated for the apparent purpose of making citizen complaints more difficult to identify and track. The PD also ignored recommendations from the oversight committee even though it specifically asked the Office of Police Oversight for its input. The letter points out the Department's Internal Affairs office has been particularly resistant to Oversight suggestions, refusing to sign a joint agreement that would have made the complaint process an actual collaboration between the OPO and APD. Instead, the PD has decided it can handle citizen complaints on its own without outside input. Without this, the APD becomes its own oversight and literally any police department in the nation can demonstrate why allowing law enforcement agencies to self-police is a terrible idea.

The Austin PD is not alone in its thwarting of its oversight. It's a longstanding law enforcement tradition that reaches all the way up to the agencies the DOJ directly oversees. That's a shame. But law enforcement agencies have proven themselves shameless. When given the opportunity to restore trust and repair relationships with the communities they serve, they opt for obfuscation and opacity almost every time.

Filed Under: austin, austin police department, citizen complaints, consent decree, doj

Federal Court Approves Reforms Targeting The Chicago Police Department

from the but-there's-no-federal-backup-to-come-to-the-rescue dept

It's not much but it's a start. Chicago's police force has spent several years vying for the title of "Worst PD in America." Between its routine deployment of excessive force to its off-the-books "black site" where arrestees are separated from their humanity and their Constitutional rights, the Chicago PD has been a horrific mess for several years.

A federal judge has approved a consent decree that would enact reforms aimed at repairing the trust the PD has damaged for decades.

In a 16-page motion, U.S. District Judge Robert Dow stated that while it’s not perfect, the historic decree is “an important first step toward needed reforms of the Chicago Police Department and its policies.”

“As noted above, the Court is under no illusion that this will be an easy process,” Dow wrote. “It took a long time to get to this place, and it may take a long time to get out of it. With that said, there are good reasons to think that the conditions and incentives may be in place to start making progress right away.

The consent decree contains a long list of reforms that cover everything from enhanced use of de-escalation techniques to breaking the PD's unofficial "code of silence." The numerous changes will be overseen by a federal monitor to ensure they're being followed.

The consent decree was met with the expected resistance from the Chicago PD and its union. A bit more unexpectedly, the consent decree was met with very vocal opposition from the federal government. Former Attorney General Jeff Sessions repeatedly claimed the decree would result in more dead bodies piling up in Chicago, pointing to a single study with questionable findings of increased violent crime following the imposition of consent decrees. Sessions termed this violent crime increase the "ACLU effect," attempting to portray greater respect for communities and their residents' Constitutional rights as the flash point of upticks in criminal activity.

The City of Chicago disagreed with Sessions and stated it was uninterested in rolling back the proposed changes. It pointed out the DOJ agreed with the proposed consent decree all the way up until Sessions took office and didn't see any reason to back out of it just because the new AG was more enthralled with locking people up than respecting their rights.

Opponents of the consent decree claim the city can't afford to have better cops. In his order [PDF], Judge Dow says this is nonsense.

Other commenters have focused on the financial burden of the decree going forward, as evidenced by the $2.85 million maximum annual budget for the monitoring team. This is a large expenditure of public money by any measure. Yet is is a tiny fraction of what the City has spent paying out judgments and settlements, not to mention lawyers (both outside and inside counsel), for civil rights litigation over the past few decades. See [158] at 9. Indeed, had a monitoring team been billing the City at the rate of $2.85 million per year since 1790, when Jean Baptiste Point du Sable first set up camp at the mouth of the Chicago River, the total bill of $652.65 million would not equal the City’s litigation-related payouts in civil rights actions since 2004.

Will these changes be sustained and result in better policing in Chicago? That's tough to say. The people it affects most (police officers) want it the least and, historically, PD brass has been slow to roll out changes and extremely reluctant to hold officers accountable for violating internal policies, much less federally-ordered consent decrees. This time around, the city will have zero support from the DOJ, which, as a matter of policy under this administration, will not act as an enforcer for federal consent decrees or open investigations of law enforcement agencies found to be perpetually violating the rights of the people they're supposed to be protecting.

Filed Under: chicago, chicago pd, chicago police, civil rights, consent decree, doj, jeff sessions, robert down

Philly Cops Skirting Forfeiture Restrictions By Seizing Cars As 'Evidence'

from the any-port-in-a-shitstorm dept

A couple of months ago, a consent decree drastically restructured Philadelphia's severely-abused asset forfeiture program. It didn't eliminate the program entirely, but it did eliminate the small-ball cash grabs favored by local law enforcement. The median seizure by Philly law enforcement is only $178, but it adds up to millions if you do it all the time. Small seizures like this now need to be tied to arrests or the property needs to be used as evidence in a criminal case.

Other restraints will hopefully eliminate local law enforcement's worst practices -- like seizing someone's house because their kid sold $40 of drugs to a police informant. It also should slow down seizures of whatever's in a person's pockets by forbidding forfeitures of under $250 entirely.

The consent decree obviously won't solve everything, and part of the problem is the consent decree itself. It forbids seizures of less than $1,000 unless the property is evidence in an ongoing case. Guess what local law enforcement is doing.

In November 2017, Iyo Bishop of Philadelphia was arrested on assault charges after a boyfriend, who she said was abusive, accused her of striking him with an SUV. City police picked her up after spotting the vehicle parked on the street weeks later. Bishop maintained her innocence but was cuffed and thrown in a squad car. She then watched in disbelief as an officer hopped in her 2002 Jeep Liberty and drove off.

Although the charges against Bishop were eventually dropped, she never saw her vehicle again. Police sold the Jeep at auction for $1,155 in storage fees they had assessed while the case made its way through the court system.

As this report by Ryan Briggs of The Appeal shows, the consent decree basically codifies this behavior. Cops seize vehicles when making arrests, ticking one of the requirement boxes. Then they claim the vehicle is evidence, ticking the other box.

Older vehicles worth less than $1,000 simply sit in impound lots racking up fees while the accused's case languishes in the court system. The vehicle can't be returned until the criminal case is processed, so it doesn't take long for impound fees to outweigh the vehicle's value. All of this is completely beyond the control of the person's whose car has been seized.

Even if charges are dismissed or the accused is cleared of wrongdoing, the car's owner still owes these fees. Every day they can't pay it, the total increases. Sooner or later, the vehicle will be auctioned. Now the innocent person has no vehicle and is still ultimately liable for uncollected fees.

This allows cops to make money on seized vehicles even if the vehicle isn't seized from someone suspected of criminal activity. It can happen to crime victims as well.

In 2014, Karin Foley and her husband, Willis, were moving from New York State to South Carolina when their vehicle blew a tire in Pennsylvania. When Willis Foley pulled the car over and got out to change the tire, a semi struck and killed him. Pennsylvania State Police later determined that the truck driver had been at the wheel for nearly 30 hours straight.

But the state troopers who responded to the accident impounded the Foleys’ diesel pickup and a horse trailer packed with their possessions as evidence. Like Bishop, Karin Foley never saw the truck, the trailer, or any of her belongings again.

The criminal case against the trucker dragged on for three years but never made it to trial. In May, he pleaded guilty to involuntary manslaughter. State police called Foley a few months later to tell her that she had one week to travel to Pennsylvania—hundreds of miles from her South Carolina home—or they would auction her truck and trailer.

And auction it they did. The seized evidence was never used in court and local law enforcement immediately flipped the seized vehicle for unearned profit. To top it off, the coroner billed the widow $175 for her husband's body bag.

While it's understandable some property will be seized as evidence in criminal cases, fees shouldn't be charged to those found innocent or to victims of criminal activity. This is just another form of forfeiture that provides almost no avenue of recourse to property owners other than paying the government to give them back their stuff.

Filed Under: asset forfeiture, civil asset forfeiture, consent decree, legalized theft, philadelphia

Judge Says Memphis PD's Surveillance Of Protesters Violated 40-Year-Old Consent Decree

from the and-the-Constitution,-duh dept

Spying on people engaged in First Amendment-protected activity is a time-honored government tradition. The FBI, NSA, and CIA pioneered unconstitutional surveillance in the 1960s, leading eventually to the Church Committee's smackdown and a series of reforms aimed at preventing the casual abuse of surveillance powers.

It worked. A little. The DHS has picked up where the other agencies left off, portraying its surveillance of protesters as part of its national security purview. The NYPD has also done this regularly, violating both the Constitution and agreements it made following civil rights lawsuits.

The Memphis Police Department is another law enforcement agency that can't keep its nose out of the public's First Amendment business. A decision handed down by a Tennessee federal court will hopefully put an end to the Memphis PD's long-running violation of a 40-year-old consent decree.

The ACLU of Tennessee -- the other partner in the 1978 consent decree -- sued the City of Memphis over unconstitutional police activity. The decision [PDF] summarizes the numerous violations engaged in by Memphis law enforcement.

The Court finds that the ACLU-TN has shown by clear and convincing evidence that the City:

1) Conducted “political intelligence” as specifically defined and forbidden by the Consent Decree;

2) Operated the Office of Homeland Security for the purpose of political intelligence;

3) Intercepted electronic communications and infiltrated groups through the “Bob Smith” Facebook account;

4) Failed to familiarize MPD officers with the requirements of the Decree;

5) Did not establish an approval process for lawful investigations into criminal conduct that might incidentally reveal information implicating First Amendment rights;

6) Disseminated information obtained in the course of an investigation to individuals outside of law enforcement; and

7) Recorded the identities of protest attendees for the purpose of maintaining a record.

The fifth one on the list is especially interesting, given recent events. Last month, Facebook sent a letter to Mike Rallings, the director of the MPD, reminding him and his officers that its "real name" policy forbids impersonation and fake accounts. This isn't a practice limited to the Memphis PD, but it is the agency Facebook chose to call out publicly for violating its policies.

The 1978 Consent Decree laid this all out very clearly:

The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.

Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.

Despite this, the PD engaged in everything listed above, which clearly violates the limitations placed on it forty years ago. After deciding the ACLU has standing to pursue this lawsuit, the court says the PD cannot invoke its "public safety" mantra to excuse surveilling protesters, even if public safety was actually its true objective. Trying to dodge culpability by claiming forbidden surveillance is just good police work is a non-starter. The consent decree does not give the MPD the wiggle room it thinks it has.

The Consent Decree... is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation. The City has agreed that it will not engage in certain activity and is bound by that agreement.

The details of the violations run several pages. This is just the beginning of the MPD's wrongdoing.

MPD’s Real Time Crime Center (“RTCC”) conducted political intelligence when an officer searched its social media collator for all instances of the term “Black Lives Matter,” because the information gathered related to First Amendment Rights. MPD officers gathered and circulated social media posts about potential boycotts and boycotts are squarely within the protection of the First Amendment. MPD gathered information on journalists based on their associations with Black Lives Matter. (Testimony of Eddie Bass, ECF No. 138 at 5736-37; Ex. 120 “Below are three twitter accounts for two freelance journalist[s] and one Commercial Appeal journalist who apparently have the trust of the BLM protesters. These accounts seem to provide good real-time information during a protest event.”) MPD indexed information relating to the leadership of lawful protests. Major Lambert Ross ordered social media monitoring for a “BLM Rally” and a “Community Organizers Cookout.” Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.

In addition, the MPD converted its "Office of Homeland Security" into a clearinghouse for unconstitutional surveillance, gathering "political intelligence" on everyone from Black Lives Matters to pro-Palestinian activists to people pushing for a $15/hr minimum wage. The PD's "Bob Smith" Facebook account was used to track political activists and surveill their activities.

All of these violations stemmed from the MPD's failure to train its officers to comply with the consent decree. It's not so much of a failure as it is decades of just not caring. The PD dedicated one page to the decree in its "voluminous policy and procedural manual." Officers engaged in violations were often not aware they were violating the decree. This ignorance was also displayed by department supervisors and officials. As the court points out, this isn't a new problem. It's a continuous problem directly traceable to "inadequate training over a sustained period of time."

Here's what the city will be doing to remedy this. First, the PD will be forced to stop gathering "political intelligence" because there's no possible way for it to do this and still comply with the consent decree. It will also prevent any misunderstandings of what's forbidden by the consent decree. The PD will also need to train its command staff on decree compliance, quite possibly for the first time. Guidelines will be developed and put in place to govern the MPD's social media activities. All social media search terms used by officers or investigators will need to be turned over to the court every three months. And, as a capper, the city will be paying the ACLU's legal fees.

This may eventually upend some deep-seated problems in the department. Then again, the MPD has had 40 years to perfect its compliance with the consent decree and has steadily moved farther away from the crystal-clear restrictions it contained. If nothing else, a federal court has publicly aired the department's dirty laundry. This may not push the MPD into admitting and accepting it has a problem. But it does prevent it from remaining in denial.

Filed Under: consent decree, memphis, memphis police, protestors, surveillance

DOJ, Trump Decide The Federal Government Needs To Give Chicago The Police Department It Doesn't Want

from the Judge-Dredd-appointed-to-advisory-role dept

In a move that's tone deaf if nothing else, the DOJ is going to court to block a consent decree put in place to overhaul Chicago's unconstitutional policing. This announcement comes days after a jury convicted Chicago police officer Jason Van Dyke of second-degree murder for killing 17-year-old Laquan McDonald. He was also convicted of 16 counts of aggravated battery -- one count for each bullet he fired at the teen as the teen walked away from him.

This also follows more tone-deafness from the "law and order" presidency. Trump's speech to a law enforcement convention contained several comments about Chicago and its perceived police problem. But the problem Trump sees is police not policing hard enough. Trump wants stop-and-frisk brought back -- one of the key modifications contained in the consent decree.

Stop-and-frisk programs encourage unconstitutional stops. Just ask the NYPD, which saw its program changed drastically following a lawsuit brought against the city. Police officials and then-mayor Mike Bloomberg promised a dramatic spike in crime if officers weren't allowed to engage in suspicionless stops/frisks. This never materialized. Crime went down across the board.

Trump thinks a return to unconstitutional practices will solve Chicago's violent crime problem, but there's no evidence out there that provides a basis for this belief. Violent crime is already declining in Chicago, even without unconstitutional stops. What Trump wants is something people in Chicago don't want. And that includes the people who matter -- like Mayor Rahm Emanuel.

Mayor Rahm Emanuel said he welcomes federal reinforcements — in the form of more ATF, DEA and FBI agents — to “take down gang leadership” and stop the “drug trade.”

But that’s not the kind of help Donald Trump is offering. Returning to the more intensive “stop-and-frisk” procedures would run contrary to Chicago’s ongoing effort to repair shattered public trust between citizens and police, the mayor said.

“The failed policies he’s talking about have no place for a city that’s working together with communities about how to build — not only trust, but a collaborative and cooperative relationship,” the mayor said Monday.

“So, while resources are always welcome, the idea of what President Trump is talking about is not only not welcome — it’s antithetical to what we’re working on, and that is about a strong, pro-active, professional police department.”

Nonetheless, the DOJ will try to block the consent decree that might rebuild some of the trust the Chicago PD has thoroughly destroyed over the past several years. Why? Because the president said so.

Following an order from President Trump, Attorney General Jeff Sessions today announced that he is providing more resources for law enforcement in Chicago and filing a brief opposing a proposed consent decree on Chicago police.

The rationale is even worse. According to AG Jeff Sessions, the spike in violent crime in Chicago (which, again, has declined 20% over the last year) is due to police being hampered by the Constitution and not enough respect being shown by the general public.

There is one government institution, and one alone, that has the ability to make Chicago safer—that is the Chicago Police Department. Our goal should be to empower it to fulfill its duties, not to restrict its proper functioning or excessively demean the entire Department for the errors of a few. Make no mistake: unjustified restrictions on proper policing and disrespect for our officers directly led to this tragic murder surge in Chicago.

At a fundamental level, there is a misperception that police are the problem and that their failures, their lack of training, and their abuses create crime. But the truth is the police are the solution to crime, and criminals are the problem. The results of the ACLU settlement in November 2015, as revealed by Judge Cassel’s study, established this fact dramatically, conclusively, and most painfully for the City of Chicago. When police are restrained from using lawfully established policies of community engagement, when arrests went down, and when their work and character were disrespected, crime surged. There must never be another consent decree that continues the folly of the ACLU settlement.

"Unjustified restrictions on proper policing" apparently includes the Fourth Amendment. That's just the beginning of this garbage. From there, Sessions moves on to cite the only study on policing he agrees with -- one that decides correlation equals causation and ties increases in violent crime to a civil rights lawsuit settlement. The study has nothing to say about similar cities undergoing similar modifications to police programs that have not experienced violent crime increases. It's almost as if its authors started from their conclusion and worked backwards.

Sessions loves this faulty study and thinks it provides some sort of scientific basis for encroaching on civil liberties under the guise of making the city safer. But he's wrong about this, just like he's wrong about everything else in his statement.

Zachary Fardon, a former US attorney working in Chicago, says the DOJ's plan to block the consent decree will make things worse for the city and the Chicago PD. The problem isn't Constitutional restraints on policing. The problem is the relationship the PD has with the people it's supposed to protect.

What’s at stake here is not just constitutional policing. Lives are at stake. People are dying. Children are dying. Our city suffers, year after year.

Law enforcement is not the entire solution, but it’s a big part. A consent decree will give our cops support, training and the credibility they need to engage in effective and constitutional policing. A consent decree will give our South and West side citizens greater trust in our officers and institutions, and greater safety in their neighborhoods.

If Sessions spent more time in violence-afflicted neighborhoods, he would know that we still have kids who are growing up more afraid of police than of gangs. When that changes, we mark the beginning of a new Chicago.

The Chicago Tribune's editorial board is even more scathing in its assessment of Jeff Sessions' bumptious interloping:

Thank you for your interest in Chicago’s police consent decree, now in its final stages of development. We are confident your “statement of interest” will be given due consideration by U.S. District Judge Robert M. Dow Jr., who will hold public hearings on the draft agreement later this month.

We have just one question: Where were you in early 2017, when Chicago Mayor Rahm Emanuel pledged to follow through on the consent decree prescribed by the U.S. Department of Justice you took over when the White House changed hands?

Oh, now we remember: You wanted no part of it. You believed then, as you do now, that worrying about the civil rights of suspects gets in the way of fighting crime. Instead of doubling down on the hard work that had been done in Chicago, you tried (unsuccessfully) to torpedo Baltimore’s consent decree, which was then at this same public hearing stage.

If citizens don't trust the police, they won't report crimes, provide testimony, or supply evidence. All of this exacerbates the city's violent crime problem. When they see officers unwilling to do their jobs at all, let alone Constitutionally, they see there's no point in asking them for help. And when they see officers routinely escape punishment for misconduct and excessive force deployment, they begin to believe the cure might be at least as bad as the disease.

As the editorial points out, if Sessions really wanted to solve Chicago's problems, he wouldn't be trying to block a consent decree crafted with an eye on rebuilding destroyed trust. It ends with this extended middle finger.

Chicago doesn’t need or appreciate your drive-by assessment.

Trump and Sessions both believe the problem with American policing is that officers aren't being given the respect that is their God-given right. That's the beginning and end of it. The Constitution is just standing in the way of enforcing the law. Both are telling law enforcement agencies what they want to hear: that they're persecuted and misunderstood. Not a single member of this administration is willing to tell them what they need to hear: that destroyed trust takes time to rebuild and it can never be restored by engaging in the same behavior that destroyed it.

Filed Under: 4th amendment, chicago, consent decree, doj, donald trump, jeff sessions, policing, stop and frisk

Police Unions Head To DC To Ask New President, Attorney General To Stop Making Cops Respect The Constitution

from the what's-best-for-cops-vs.-what's-best-for-the-nation dept

Here it comes -- the exact sort of response Trump was looking for when he issued his "Standing Up for Our Law Enforcement Community" edict during his first couple of days in office.

One of the fundamental rights of every American is to live in a safe community. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

This is Trump's invitation to law enforcement agencies to come to him with their grievances. A promise that they will be heard, ABOVE the voices of the people they're supposed to be serving. And here they come, right on cue.

Steve Loomis, president of the Cleveland Police Patrolmen's Association, had a blunt message for Donald Trump during a meeting in September: court-ordered reforms aimed at curbing police abuses in the midwestern city are not working.

Loomis and two other attendees said Trump seemed receptive to Loomis's concerns that federally monitored police reforms introduced during the Obama administration in some cities in response to complaints of police bias and abuse are ineffective and impose an onerous burden on police forces.

Police unions want DOJ consent decrees rolled back, heavily-altered, or done away with altogether. A review of DOJ consent decrees shows law enforcement agencies hit with them have participated in years of unconstitutional policing, engaging in everything from discrimination to routine deployment of excessive force.

The decrees -- while seldom completely effective -- target pervasive mass violations of citizens' civil liberties. They address the symptoms and attempt to apply a cure. But the problems are deep-seated, based on years of us v. them policing and a culture that actively protects its worst members.

Unions are part of the problem. They are definitely not part of the solution. In Philadelphia, the police union managed to derail an officer-involved-shooting investigation board recommended by the DOJ, removing all independent outside investigators and replacing them with police officers and police officials.

The DOJ's long, thoroughly-damning report on what may be America's worst police force -- the Chicago PD -- notes that police unions have long stood in the way of improving the department.

Here’s a list of other CBA (Collective Bargaining Agreement) provisions that the feds said hamper investigations of police misconduct and should be change:.

• The contracts allow officers accused of misconduct or involved in shootings to delay interviews.
• The agreements mandate disclosure of a complainant’s identity to an accused officer before questioning, which is problematic because many complainants fear police retaliation.
• The agreements limit investigations into misconduct complaints filed more than five years after an incident, and requires the destruction of most disciplinary records older than five years.

“The City fails to conduct any investigation of nearly half of police misconduct complaints,” the report said. “In order to address these ignored cases, the City must modify its own policies, and work with the unions to address certain CBA provisions, and in the meantime, it must aggressively investigate all complaints to the extent authorized under these contracts.”

The last thing most police unions want is more accountability. This is why union heads are in DC, talking to Trump. Consent decrees attempt to force law enforcement agencies to act constitutionally, which is apparently something officers (or at least their reps) are unwilling to do.

The police groups want to discuss the decrees with Jeff Sessions, Trump's designee for attorney general who has voiced criticism of them, although any renegotiation would be legally complicated because all parties as well as a federal judge must approve any changes.

"There are certainly decrees that are inartfully applied that we'd like to see revisited," said Jim Pasco, the head of the Fraternal Order of Police, the nation's largest police union with 330,000 members. It endorsed Trump in September and has worked with Sessions, a Republican senator from Alabama, for years while lobbying Congress for pro-police policies.

"We've always found him a man who's willing to listen to alternatives to a previously charted course," Pasco said of Sessions.

"Inartfully applied" just means "applied." The DOJ has "inartfully" attempted to get officers in numerous police departments to stop beating and tasing individuals simply because they weren't immediately compliant or responded disrespectfully. It has attempted to set a reasonable suspicion standard for police stops and searches. It has attempted to prevent officers from acting in a retaliatory manner against people exercising their First Amendment rights. It has attempted to scale back excessive removals of citizens' life and liberty by law enforcement officers. It has largely failed to do so because it encounters massive amounts of resistance, much of it led by police unions.

And here come the unions to undo what little good has been done. The union reps say things like "inartfully applied decrees" and "wastes of money" but what they're really saying is they would rather not have to be limited by the rights of others. And, according to Trump's own statement, the President himself has little respect for the rights of non-badge-wearing individuals.

The only good news is that -- despite Trump's "law and order" pitch and AG Sessions' general contempt for Americans and their rights -- it will take much more than some union sales pitches to undo consent decrees already in force. The Attorney General may be able to prevent the DOJ's Civil Rights division from pursuing nearly as many agreements in the future, but it's likely any attempt to scale back in-place agreements would face an uphill battle in federal court.

But this very likely means the DOJ isn't going to be nearly as interested in investigating law enforcement agencies for the next four years. The DOJ handed out 24 consent decrees during the eight years Obama was in office. It issued less than half as many while Bush was president. A president who believes not liking the police is "wrong" isn't going to be too interested in having a government agency find even more reasons for people not to like police officers.

Filed Under: civil liberties, civil rights, consent decree, law and order, police, police abuses

Policing For Dummies: DOJ/Baltimore PD Edition

from the things-they-know-but-choose-to-ignore dept

Apologies to everyone in America. The Department of Justice can't fix what's wrong with the nation's police departments. It's up to those departments to make the changes and stick to them. There has to be a desire to change, otherwise all we'll end up with is better documentation of police misconduct and excessive force.

A police department has to fall pretty far before the DOJ is willing to step in. Consent agreements follow reports -- all of which can be described as "scathing". These follow DOJ investigations in which it's routinely discovered the officers employed by the police department either don't know the first thing about constitutionally-compliant policing… or just don't care.

Reason's Scott Shackford has read through the DOJ's consent agreement [PDF] with the Baltimore PD -- one that follows its extensive investigation/scathing report. In amongst all the new reporting requirements are passages that indicate Baltimore might be better off firing its entire force and hiring new recruits. The rot growing from within the department has destroyed everything, starting with the Constitution and working its way down to basic communications skills.

It's completely depressing that all of this is included in the consent decree.

The agreement includes things like requiring police officers have reasonable suspicion to detain and search people, and not engage in warrantless searches; only arrest people for suspicions of crimes (no really, this is explained); stop using "boilerplate" language in reports to explain reasons behind stops and searches; not engage in racial profiling; not use information they know is not true to justify searches or arrests; attempt to de-escalate encounters before using force; not use force to punish people for resisting or attempting to flee (what the rest of us refer to as "police brutality"); don't use Tasers on elderly people, pregnant women, and small children, or just to stop people from fleeing; use seatbelts or restraining devices on people being transported (remember this is all partly due to the Freddie Gray case); respect the rights of citizens to both criticize police and observe and record public police behavior without retaliation; not retaliate against people who file complaints against police conduct; and so many, many, many other things. A read through the consent decree feels like the documentation of how most citizens expect their police to behave already.

These are the things Baltimore's police must be told to do, under the color of law and with the threat of federal sanctions backing it up. This is all stuff officers already should know -- things they should have learned on their way to earning the right to be trusted with badges, guns, and power.

And in the middle of all the constitutional instructions, there's a whole lot of common sense -- like not retaliating in response to complaints. Or not tasing pregnant women, children, or the elderly. To be told this would be a slap in the face to a good police officer. When the department's full of "bad apples," however, basic instructions and handholding are apparently a necessity. The DOJ has to remind an entire law enforcement agency that they're public servants, rather than uniformed thugs.

A consent decree will follow the investigation that just wrapped up in Chicago -- and a report that may secure the Chicago PD the "Worst Cops in America" trophy it's apparently been trying to earn for the last couple of decades, if not longer. In it will be reminders that officers aren't allowed to haul suspects off to ad hoc "black sites" or use deadly force on people who don't pose a threat to officers or other citizens.

And in another decade or two, the DOJ will roll back into town and start the process all over again. There are very few officials willing to do the difficult, unpleasant work of changing law enforcement culture by rooting out those who have either engaged actively in the rotting process or stood idly by while it happened.

Filed Under: baltimore, baltimore pd, consent decree, doj, police

DOJ Makes Smart Decision On Music Licensing... Music Publishers Completely Lose Their Shit

from the calm-down-people dept

For the past couple of years now, the Justice Department has been exploring the so-called "consent decree" around music publishing. This was an agreement, first made in 1941, and then reviewed in 2001, on how music performing rights organizations (mainly ASCAP and BMI) could operate without violating antitrust rules. Without such consent decrees, there was a quite reasonable fear that the performing rights organizations (PROs) would abuse their monopoly positions. This is not a theoretical argument. If you look around the globe, there are many, many, many, many, many stories of these organizations behaving badly.

In this case, ASCAP and BMI had been whining that because of those darn internet companies not paying enough, they need to get rid of the consent decree, mainly so that they can do more to jack up rates (there's more to it, but the end result is they want to be able to withhold rights to force rates up). Of course, in opening up this can of worms, they also got the DOJ to start looking more closely at other practices, including an exploration into so-called split works or "fractional licensing." The details here can get confusing, but in short: when a work has multiple copyright holders, many have argued that you need to get a license and/or approval from every copyright holder. But if you look at the legislative history of the 1976 Copyright Act, legislators made it clear that under the act, they intended to make it clear that any copyright holder in a work with multiple authors had the right to license the whole work.

And now... the DOJ has agreed. It issued an announcement with two key points: it would not take away the consent decree and it said that the law requires "full work" licenses, meaning a single copyright holder can grant a license for the entire work. This is a good thing. It's a very good thing. The DOJ's explanation for this is pretty straightforward:

In the end, the Division concluded that only full-work licenses could fulfill the purpose and meaning of the requirement in the consent decrees that ASCAP and BMI offer blanket licenses that provide users the ability to play all the songs in the PROs’ repertories. Importantly, this does not mean that ASCAP and BMI are required to provide a full-work license to a work when their members cannot grant them the ability to offer such a license. That is, we do not suggest an interpretation of the blanket license that is inconsistent with the Copyright Act. Rather, if the members of ASCAP or BMI are unable to grant to their PRO the rights to license their works on a full-work basis, those works are ineligible for licensing by ASCAP or BMI.

Both sides in this debate pointed to past practices they believed supported their view of whether ASCAP and BMI licenses were full-work or fractional. We think the evidence favors the full-work side. Our determination begins with the language of the consent decrees themselves, which unambiguously require ASCAP and BMI to offer licenses to all works or compositions in their repertories, and not to interests in works. For example, in the case of ASCAP, it must provide a license to perform “all of the works in the ASCAP repertory.”

Our view is also based on what is required for all participants in the industry to enjoy the substantial procompetitive benefits of the PROs’ blanket licenses – benefits that differentiate the PROs from joint price-setting entities that often present significant problems under the antitrust laws. The Supreme Court described blanket licenses in the BMI case as providing “unplanned, rapid, and indemnified access” to the songs in the PROs repertories. Fractional licenses would not offer the benefits the Supreme Court described.

A full-work blanket license from ASCAP or BMI allows the music user to publicly perform, without risk of copyright infringement liability, all works in the licensing PRO’s repertory. Particularly for music users – such as bars and restaurants – that cannot meaningfully control in advance the music they play in public, this feature of the PROs’ licenses benefits both the licensees as well as music creators in that it ensures that users can and will continue to play the creators’ music.

Fractional licensing would not offer the same benefits to users. If a PRO’s license granted a user something less than a license to play a particular song, music users seeking to avoid infringement liability would face the daunting task of identifying and ensuring they obtained licenses from all fractional owners – a challenge made more difficult by the lack of a comprehensive, reliable, and transparent catalog of rights. Under those conditions, even music users with control over the music they perform would have to curtail their performance of music until they were certain they had obtained licenses from all fractional owners. As BMI itself argued in a recent rate-court filing, a BMI license grants to a music user “insurance against copyright infringement . . . and immediate access to more than 10.5 million works in BMI’s repertoire.” A fractional license could not provide these benefits.

A lot of this was rumored a month or so ago, and a bunch of songwriters and publishers freaked out about it. They shouldn't be freaking out about it. This is actually good for them. Back when the expected result was leaked to the press, even Digital Music News, which frequently sides with the legacy industry, said directly that the songwriters' freak out was wrong and that this was a good thing for the music world -- and also notes that this could help finally create the holy grail in the music industry of a single database of published songs.

This should also help create more useful services that will get consumers to use authorized music sources, rather than unauthorized ones. As we've covered, ASCAP played some ridiculous tricks on music services like Pandora, and got slammed for it. But with full work licensing, such gaming will be even less possible, creating more openings for new music services to thrive.

Of course, the PROs, ASCAP and BMI, immediately lost their shit over this announcement and promised to fight back. BMI also announced that it will go to court to try to overturn this decision, while ASCAP has decided to focus on getting Congress to fix it through the legislative route (there's a reason for this bifurcated approach: in the cases involving both organizations, both BMI and ASCAP recognize that BMI has a judge that seems more willing to accept BMI's version of the story, whereas ASCAP's slimy behavior was so egregious that the judge covering its case actually understands the issues at play).

The end result, though, is the same old story: ASCAP and BMI want to abuse their monopoly position to try to jack up rates. Meanwhile, by not allowing that to happen, most songwriters will actually be better off, allowing more useful services to thrive, creating more opportunities for revenue. It's kind of insane that we have to point this out over and over again, but the legacy industry always fights against new innovations in the false belief that it will harm revenue -- yet when they learn how to embrace the opportunities, it turns out that a larger audience has been created and there are even more ways to make money. But ASCAP and BMI, like the RIAA on the recording side, are so focused on controlling their turf rather than seeing the big picture that they miss this entirely.

Filed Under: antitrust, consent decree, doj, fractional licensing, full work licensing, licensing, music publishing, songwriting
Companies: ascap, bmi

BMI Records Record Revenue... While Whining To DOJ That It Can't Function Under Antitrust Agreement

from the something-doesn't-add-up-here dept

As we've been discussing, the two big music collection societies in the US, ASCAP and BMI, are desperately fighting to get the DOJ to alter (or end entirely) the "consent agreement" that they operate under. The consent agreement, in various forms, has been in place for decades, after the DOJ properly recognized that in licensing songwriters' and publishers' public performance rights, they had something of a monopoly. And monopolies can be dangerous when abused. Thus the consent decree to keep the organizations in line. However, both are really angry about this, in large part because they believe that without the consent decree, they could create a world in which they could force everyone to have to pay much higher fees (you can see some of how they tried to collude with publishers to jack up rates to Pandora).

So far, the attempt to get rid of the consent decree has not been going well. It has resulted in more investigations into the publishers for collusion for one thing. The DOJ has also apparently realized that the collection society's treatment of songs with multiple copyright holders may be another anti-trust violation.

And, yet, ASCAP and BMI keep trying to convince everyone that they're suffering under this "obsolete" consent decree, and they need to have it modified greatly. BMI, in comments to the DOJ, has claimed that it's suffocating under the current system, which it says is "broken":

The digital revolution in information processing and communications has completely transformed the way music performances are heard by the public and equally changed the way in which information about music performances is collected and processed. In particular, the rise of Internet streaming as a principal way the public hears performances of music has created market needs that are now not being met because of inefficient and anticompetitive restrictions in the BMI consent decree that serve no sound purpose today.

There is an urgent need for action now. BMI agrees with the Register of Copyrights’ recent testimony characterizing music licensing as “broken,” and certain aspects of the BMI consent decree have contributed to that breakdown. The decree creates rigidities and restrictions in the way BMI must operate that undermine BMI’s efficiency as a resource for both music users and music copyright owners in the digital world. The existing rate court mechanism has proven too slow, too expensive, and too legalistic to keep up with the speed of change in real-world markets today. The need is so dire that, rather than press for comprehensive reform at this point, in these public comments BMI urges the Department to prioritize particular changes that address these immediate needs.

Things must really suck for BMI and all the songwriters who get paid via BMI, right? Oh... wait. BMI has just announced a new record in revenue collection and pay out to artists.

BMI, whose full name is Broadcast Music Inc., collected $1.013 billion for the 12 months that ended in June, up almost 4 percent from the year before. That is slightly more than the $1.001 billion that its competitor Ascap took in last year.

In the number that will be scrutinized most closely by musicians — royalties — BMI paid slightly less than its rival. After deducting its operating expenses, BMI distributed $877 million to its thousands of members, including songwriters like Taylor Swift, Nile Rodgers and Adam Levine of Maroon 5. Last year, Ascap paid its members $883 million.

Why is it paying less than ASCAP? BMI doesn't blame the broken consent decree, but rather "significant legal costs" made up mainly of its lawsuit against Pandora. In other words, something that BMI had control over. The article also notes this little fact:

Since 2005, BMI’s collections have increased about 40 percent.

So, uh, can we hear again about how "dire" the situation is and how BMI can't function, even as its revenue has grown 40% in the last decade and it's setting all kinds of new records? Did BMI think the DOJ would just ignore that bit?

Filed Under: anti-trust, antitrust, collection societies, consent decree, doj, pros, publishers, revenue, songwriters
Companies: ascap, bmi