GOP Hollowly Threatens To 'Shut Down' Telecom Companies For Cooperating With Legal January 6 Inquiries

from the good-luck-with-that dept

If you've spent any real time digging into Trump GOP era tech policies, you've probably noticed they're a jumbled mess of contradictions and inconsistencies, cloaked in a lot of performative propaganda. The same party that thought net neutrality (the FCC holding telecom giants vaguely accountable) was a government hellscape, pivoted on a dime to try and force the FCC into regulating social media companies. The same GOP that whines incessantly about "big tech" via performative populism, routinely runs for the hills any time somebody actually tries to rein in corporate power or implement genuine antitrust reform.

Of course in the mainstream press (in this context usually The New York Times, Axios, The Washington Post, Politico, and friends), the inconsistency of the GOP's policy platforms is never really explained. It's part of the "view from nowhere" disease that has infected mainstream U.S. political coverage, where everything is portrayed in a "he said, she said" frame of perfect symmetry, leaving your readers completely uncertain where the truth actually lies. It's driven by a fear of upsetting sources and advertisers, and results in a media that simply refuses to call a duck a duck (or bullshit bullshit) when urgently required.

That bubbled up again this week as the GOP bristled at the fact the committee investigating the January 6 attack on the Capitol by a pro-Trump mob has been asking telecom and tech companies to retain relevant communications between lawmakers and organizers. Facebook, Google, Microsoft, Twitter, Signal, Verizon, AT&T, and T-Mobile have all received requests. As Mike has noted there are concerns that the requests are worryingly broad, including troves of internal communications at the companies' themselves.

At the same time, many of the requests (especially those looking at the text message and call logs from telecom companies) are perfectly legitimate, and if investigators can find text messages showing coordination between the violent Capitol-assaulting mob, its organizers, and the GOP, that kind of seems arguably important in terms of a functioning democracy and avoiding even worse scenarios down the road. After all, guys like Jim Jordan are nervously babbling in interviews like this one for a reason:

Several GOP members seem particularly nervous about text messages and phone logs, and are now taking to television threatening to "shut down" telecom companies if they cooperate with the probe in any way whatsoever:

This is, of course, utterly nonsensical, zero calorie, idiot theater. Congress as a whole worships the ground companies like AT&T walk on, and the GOP in particular has never stood up to AT&T on any issue of substance. Ever. Why? Because AT&T's extremely politically powerful (thanks in large part to its cozy relationship with the NSA), and a major GOP campaign contributor. There's legitimately a 0.0% chance that AT&T or Verizon see any meaningful penalties for cooperating with legal requests, especially from a party with a thirty year track record of mindlessly kissing telecom's ass.

The GOP for years has opposed privacy protections and embraced expansive government surveillance. And its entire brand has been built on the worship of purportedly "free markets" without the imposition of government intervention. And the entire Trump GOP has been to take "political norms" in the alleyway and beat the ever loving piss out of them, repeatedly. Yet this morning we saw the Rupert Murdoch editorial pages pretending to care about both telecom privacy and (gasp!) "political norms":

House Minority Leader Kevin McCarthy also took to Twitter to threaten to shut down private companies for complying with legal information requests (you know, "free markets!" and all that):

Nobody's violating federal law. It's a valid inquiry into an extremely dangerous, precedent setting event. And "federal law" on privacy is weak in the first place largely courtesy of forty years of DC policy choices. There's just layers of gibberish here, particularly the pretense that the GOP gives two flying shits about rampant government surveillance or "political norms." If Congress is doing something illegal that violates privacy, anyone can sue to stop them. Instead, the GOP is having yet another toddler moment, engaging in hollow bullying to shut down private businesses they know they'll never actually follow through on.

As Ken White notes, one could argue that this kind of behavior, while likely not prosecutable, qualifies as corruption and obstruction of justice:

Granted, this most likely ends (like the mythical GOP support for "antitrust reform") with zero penalties for telecom companies, because there's nothing to penalize. Still, letting a bunch of mindlessly ambitious authoritarians try to overthrow elections with zero meaningful penalty sets a clearly dangerous precedent. As does threatening companies for complying with perfectly valid legal requests.

Shutting down AT&T is a non-starter, so what is the GOP going to do to "punish" telecom companies? Re-establish the FCC's ability to hold telecom monopolies accountable? Stop blocking efforts to impose broadband privacy rules? Finally start holding them accountable for fraud? Rein in their overly enthusiastic participation in our domestic surveillance program? Force AT&T and Verizon to close up shop and go home? Give me a break.

It's just empty-headed bullying by GOP lawmakers clearly nervous about what these requests could reveal about one of the dumbest yet most dangerous days in recent U.S. history. And yet courtesy of DC beltway press' "he said, she said" framing of the situation, a reader walks away from most terrible coverage of this dispute with the impression that the GOP's position here could be perfectly reasonable. ("Bob the authoritarian says a valid investigation into him is illegal, but his colleague Jane says that's not true. Who's right? Who knows?" ¯\_(ツ)_/¯).

U.S. press outlets need to dramatically improve their ability to call out bullshit or this stuff is all going to get significantly worse. Bad faith bullshit only works when you refuse to identify it as clearly bad faith bullshit. Corruption thrives when your press is too timid to clearly call it corruption when required. And by and large the nation's biggest media outlets continue to fail painfully at the task of highlighting the GOP's hard right authoritarian swerve, or the bullshit faux-populist propaganda they're using to make it happen.

Filed Under: due process, empty threats, evidence, gop, investigation, january 6th, jawboning, kevin mccarthy, marjorie taylor greene, obstruction of justice, subpoena, telcos
Companies: at&t, verizon

DOJ Announces Investigation Of Phoenix PD's Use Of Excessive Force And Abuse Of Homeless People

from the information-and-belief-on-top-of-patterns-and-practices dept

With a new Attorney General in charge and a new President in the White House, the Department of Justice is getting back to taking care of the uncomfortable business of investigating local law enforcement agencies. This part of the DOJ's responsibilities was largely abandoned under Trump, who opened up his presidency by declaring he would "end" the "dangerous anti-police atmosphere."

Trump actually made it worse. His enthusiastic support for police and police violence did nothing to discourage the sorts of actions that create "anti-police atmosphere." Concurrently, the DOJ -- under AGs Sessions and Barr -- looked the other way as law enforcement agencies engaged in activities that violated the rights of the public.

The latest law enforcement agency to under the DOJ's scope is the Phoenix, Arizona police department. The Phoenix PD last made news here at Techdirt after its union offered cops access to paid service that would "scrub" social media services of their posts. This was deployed in reaction to multiple investigations opened all around the nation after transparency activist group Plainview Project was able to link bigoted and violent social media posts to current law employment officers.

There are some specifics to this investigation that indicate some parts of the Phoenix PD's enforcement efforts are more problematic than others.

This investigation will assess all types of use of force by PhxPD officers, including deadly force. The investigation will also seek to determine whether PhxPD engages in retaliatory activity against people for conduct protected by the First Amendment; whether PhxPD engages in discriminatory policing; and whether PhxPD unlawfully seizes or disposes of the belongings of individuals experiencing homelessness. In addition, the investigation will assess the City and PhxPD’s systems and practices for responding to people with disabilities. The investigation will include a comprehensive review of PhxPD policies, training, supervision, and force investigations, as well as PhxPD’s systems of accountability, including misconduct complaint intake, investigation, review, disposition, and discipline.

The city is also being investigated to see what culpability it carries for the PD's anti-homeless actions. It appears the city (and the PD it employs) has been unwilling to obey court precedent finding certain policies unlawful.

A 2018 ruling by the 9th Circuit Court of Appeals banned cities from arresting or imposing fines on people sleeping in public places in the absence of meaningful housing alternatives.

As a result, local governments in western states have begun to reassess their urban camping ordinances. Among them are cities in Arizona like Glendale and Tempe, which have stopped enforcing urban camping laws.

But little has changed in Phoenix, said Elizabeth Venable, treasurer for the Fund for Empowerment.

Despite the court decision, the Phoenix Police Department is “doing the same thing they’ve always done,” said Venable.

The state appears to believe the proper solution to being on the wrong end of court decisions is to change the law. A new proposal would create sanctioned "camps" for homeless people while still allowing the state to punish homeless people for sleeping in public areas without permission.

The bill would authorize the state to create designated camping areas on state land with access to water, electricity and bathrooms where people experiencing homelessness could stay. Residents of the designated camping area may be required to attend substance abuse treatment or mental health services.

He said the camps would be similar to the temporary parking-lot shelters opened by Maricopa County last year to prevent the spread of COVID-19. Security would be provided at all camping areas.

The bill would prohibit homeless encampments anywhere else on state property.

Yes, this would create other options for temporary housing of homeless people. But it won't do much to prevent police officers from harassing and arresting homeless people for simply existing in the wrong place at the wrong time. And it's this leeway that appears to have led to this investigation -- the encouragement of heavy-handed enforcement by city reps, which has manifested as the abuses the DOJ is now digging into.

Unfortunately for the DOJ, it may soon discover it doesn't have a whole lot of information to work with. As was discovered by Justin Price of AZCentral last year, the city's contract with the police union allows misconduct records to be destroyed almost at will.

Over 500 of the city's 3,000 officers have had their pasts memory-holed by the union contract, covering over 600 misconduct incidents ranging from failure to complete reports to deployments of excessive force.

The purging prevents even internal investigators from discovering patterns of misconduct that should result in harsher discipline or termination. It also prevents plaintiffs suing officers over violated rights from obtaining key background info that could indicate an officer is a longtime abuser of citizens. In one case cited in Price's report, the PD began purging an officer's records as soon as the officer had been served.

Beyond the impediments posed by a lack of documentation, there's the question of how much the DOJ can actually change by performing an investigation. At best, it prevents law enforcement agencies from claiming any abuses uncovered are just a matter of perception. At worst, it just forces agencies to keep their heads low for a while and wait for the DOJ (and the public's interest) to head elsewhere.

It should be noted, however, that every closed DOJ investigation finds evidence of wrongdoing, usually of the "substantial" and "pervasive" varieties. By the time the DOJ decides to step in, the problem is generally too big to ignore. This means the agency being investigated is already aware of the problem but has done nothing to correct it. That mindset -- one that views bad cops as victims of public perception -- tends to stick around long after the DOJ has dropped off a consent decree and blown town.

Filed Under: doj, excessive force, homeless, investigation, police

Oversight Report Says DC's Metro Police Can't Be Bothered To Investigate Serious Crimes

from the why-fight-crime-when-you-can-just-shuffle-papers dept

Police, v. : maintain law and order

Police, n.: responsible for the prevention and detection of crime and the maintenance of law and order

Given these definitions, how is it that Washington, DC's Metro Transit Police Department still has the word "police' in its name?

Metro Transit Police can’t demonstrate that officers investigated thousands of reported robberies, assaults, sex offenses and property crimes over a span of several years, according to the agency’s internal watchdog.

In the case of 1,200 reported crimes, “investigative case files lacked any documentation of investigative activity,” according to a report released Thursday by the agency’s Office of Inspector General. More than 1,600 other case files were missing or withheld from the inspector general, according to the report.

Don't let the name "transit" fool you as much as the word "police" has. The Transit Police "investigate" all crimes that occur on city transit property. Some of these are serious crimes. And they're treated with way less enthusiasm than officers deploy against fare jumpers.

909 cases were open robberies (4.89%)
108 cases were open felony assaults (.58%)
471 cases were open misdemeanor assault (2.53%)
3 cases were open felony sex offenses (.02%)
66 cases were open misdemeanor sex Offenses (.36%)
48 cases were open indecent exposure cases (.26%)
1514 cases were open crimes against property (8.15%)

This is part of the long list of crimes that MTPD isn't solving or even, apparently, investigating. The Inspector General's report [PDF] is an entertaining read, but for all the wrong reasons. It details a distressing amount of incompetence or lack of cooperation. Or possibly both.

OIG began its investigation in August 2020 and has made multiple attempts to recover all 3,110 investigative files. OIG has provided MTPD numerous opportunities to produce all investigative material associated with these complaints, but MTPD’s production, to date, has been incomplete. After six months, multiple suspense deadlines, and given the significant decrease in the volume of investigative case files being produce by MTPD, the OIG closed its investigation with MTPD’s limited production of investigative files.

[...]

An analysis of the documentation provided revealed that approximately 84.1% (1,215 cases) of what MTPD described as investigative case files lacked any documentation of investigative activity. MTPD staff’s failure to properly and accurately maintain investigative files, evidence, and/or associated judicial records obstructed OIG’s ability to determine if CID Detectives ignored victim complaints between 2010 and 2017.

You know, obstruction is a crime. Obviously, someone other than the MTPD should investigate this.

Maybe it's not just incompetence. The OIG notes it opened an investigation in 2012 after receiving an allegation that Transit detectives were falsifying investigations. In that investigation, the OIG found discrepancies between what was documented by CID (Criminal Investigations Division) detectives and what the OIG was told by crime victims it interviewed.

The obstruction/incompetence was present then, too.

As in this current investigation, in 2012, the OIG requested to review 2011 and 2012 CID case files; however, MTPD could not produce 88 out of 134 randomly selected suspended case files.

Corrective actions were ordered and supposedly implemented. But the Inspector General says nearly a decade later, some of what it recommended still has yet to be completed by the MTPD.

From what's seen in this report, it appears the MTPD just isn't interested in investigating crimes. The investigation files seen by the Inspector General contained almost no evidence any investigation occurred. Instead, it appeared CID detectives were simply checking boxes until the case could be closed, in most cases without any resolution.

Out of the 1,445 case files provided, 82.1% (1,186 cases) contained only a one-page closing document without any evidence that an actual investigation was ever conducted. Moreover, 2% (29 cases) contained only two documents, a closing document and the ER [End Report], which is a document generally prepared based on information gathered by the responding MTPD officer. In these 29 cases, however, there was still no evidence that an actual investigation was ever conducted.

Even though these one-page closing documents did not contain investigative activity, they were nonetheless used to change the status of these investigations from open to suspended, which signifies that no further investigative activity was warranted. Most closing documents were signed by CID management officials who justified the suspension status change of these investigations based solely on a written claim that the statute of limitations to bring charges against a suspect had passed along with a statement indicating they were unable to locate the original report and case file.

Sure, the statute of limitations can prevent some cases from being investigated further, but the MTPD had no idea if the statute of limitations had run because it often had no idea what specific crime was alleged. The cases were "suspended" by CID supervisors, who never bothered to speak to detectives to see what investigative activity had occurred or obtain further details about the alleged crime.

The whole system -- bought and paid for with the tax dollars of underserved DC residents -- sucks. It starts at the top, gets worse in the middle, and by the time it reaches the bottom, the only thing that does "work" is the perverse incentives.

OIG interviewed numerous other individuals who were current and/or former CID supervisors from 2010 through 2020. None of these individuals could definitively state that all 3,110 victim and general complaints were investigated. They all expressed concern over the discovery of 3,110 complaints that still appeared to be in an open status in the CID database. They generally attributed the lack of accountability and oversight of CID cases to a variety of factors, including lack of supervisory knowledge of CID’s duties and responsibilities; insufficient supervisory staff; lack of administrative case oversight; high caseloads; nonexistence of policies and procedures; and lack of a case tracking system. In addition, the interviews uncovered that performance evaluations of case work only focused on closure rates, which did not account for suspended cases and/or disposition of previously open cases from past fiscal years.

This investigation by the Inspector General is yet another MTPD-related investigation that can never be considered properly closed. The IG says it is forced to conclude that records related to 1,500 investigations simply no longer exist.

As the IG points out, this is abysmal and it will result in a host of negative side effects. The OIG says (again) the MTPD obstructed its ability to carry out this investigation properly. The large number of missing investigative files make it impossible to determine whether or not CID detectives ignored complaints from victims -- another allegation of misconduct that cannot fully be resolved. The missing documentation will also put past prosecutions in jeopardy of being overturned. Finally, there's the blow to public confidence the MTPD can't possibly absorb -- not with its history of tagging minorities for minor offenses while ignoring more serious criminal acts occurring in its jurisdiction.

Filed Under: crimes, dc, investigation, metro police, police

ICE Spent Your Tax Dollars Dragging A Journalist Through The Internet Sewer Over A Mistake She Apologized For

from the fine-people dept

Law enforcement officers protect their own. Even when they shouldn't. They are quick to react when one of them is slighted and they do so knowing their position as arbiters of law affords them more protection against internet randos than the little people they're supposed to be serving.

But something that gets lost in these far-too-common reactions is that this is how taxpayers' money is being spent: on vindictive actions that could have been handled with a 30-second statement or a press release that might take all of 20 minutes to compose.

But instead of letting things go and realizing their position of power is probably all the response that's needed, tax dollars are spent converting hurt feelings into investigations of private citizens who managed to offend the powers that be. Ken Klippenstein has obtained documents from a FOIA request (and the de rigueur FOIA lawsuit) that shows ICE decided to get all investigatory when someone mistook a tattoo on one of its officials for a racist symbol. That this person was a journalist makes it all that more problematic.

In June of 2018, Talia Lavin, then a fact-checker for The New Yorker, found herself in an unusual position for a journalist: She personally became the target of a government agency. She had come under the scrutiny of ICE’s Office of Public Affairs, the public face of the agency that played a central role in President Trump’s crackdown on undocumented migrants.

[...]

When Lavin saw a tweet from ICE featuring one of its officials, Justin Gaertner, with a cross-shaped tattoo, she wondered if it was the Iron Cross familiar to Nazi iconography. She posted a tweet comparing them. When people began pointing out that it could be another symbol, like a Maltese cross, Lavin promptly removed the tweet. But it was already too late.

ICE first responded with a press release. It was not your normal press release. It accused Lavin (mentioning her name [but misspelled as "Levin") of "baselessly slandering" the "American hero" who worked for the agency. It demanded an apology and a retraction from Lavin and The New Yorker. Following ICE's public flogging of Lavin, she became a target for vitriol and abuse by white supremacists and alt-right figureheads. Fox News called her a "little journo terrorist."

Eye for an eye and all that, I guess. You'd think ICE would have been satisfied with the shitstorm it had stirred up. It provoked a response and got some of what it wanted. Lavin not only apologized but she resigned from The New Yorker.

ICE's main focus -- according to the documents obtained by Klippenstein -- was securing the future of the official pointed out in Lavin's since-deleted tweet. The Public Affairs office began burnishing the official's war record and claimed to have evidence of credible threats to the official's life. But the only "threat" detailed in email threads was one from someone responding to Lavin's tweet, stating that the person wished whoever had wounded the official in combat "would've finished the job." Cue a whole bunch of government gears, all grinding tax dollars into salve for skin-deep scratches.

“HSI Tampa will be carefully assessing the twitter based threats and will take appropriate action,” an HSI official replied. “Looping in AD [Assistant Director] Ip for C3 [ICE Cyber Crimes Center] support. HSI Tampa will be submitting a SIR [Significant Incident Report] shortly.”

More remarkably, the email communications indicate ICE may never have seen Lavin's tweet before it was deleted. ICE's press office -- for all the time it spent making sure its official remained unslighted -- didn't bother preserving the tweet it found so offensive that it issued a press release decrying the person who had published it.

One tweet by a journalist containing one innocent mistake (it's no secret white supremacists are drawn to law enforcement positions) led to multiple DHS agencies being apprised of non-credible threats while ICE's public affairs office decided it was in the best interest of the public to publicly attack a journalist for screwing up. It got what it wanted -- a retraction, an apology, and a resignation -- but at what cost?

Certainly ICE took a hit to its credibility. It may have been correct about the innocuous nature of the tattoo, but it made its point by turning a journalist into a target for internet pitchforks. This is called "punching down." It could have issued a statement in support of the official and left it at that, but instead, it felt compelled to turn this into a public flogging and an internal investigation handled so sloppily the multi-billion dollar agency couldn't even search the Wayback Machine for the tweet prompting its deluge of unprofessional behavior.

Filed Under: dhs, foia, hsi, ice, intimidation, investigation, journalism, justin gaertner, talia lavin, the new yorker

Senator Loeffler's COVID-Related Stock Trades Looking Even Worse, While Feds Start Investigating Senator Burr's

from the insider-trading dept

As we noted just a few weeks ago, two Senators -- Kelly Loeffler from Georgia and Richard Burr from North Carolina, both of whom were publicly trying to play down the risks associated with COVID-19 -- were quietly engaging in stock trades that suggested they had a different viewpoint (while five different Senators sold stock during this period, only Loeffler's and Burr's look particularly suspicious). Burr's stock sell-off was revealed first, and got the most attention, in part because he's also the Chair of the Senate Intelligence Committee and was getting classified briefings about COVID-19. The latest news on that front is that the Justice Department has supposedly opened an investigation:

Senate Intelligence Committee Chairman Richard Burr sold off a large amount of stocks before the coronavirus market crash, and now the Justice Department is looking into his statements around this time period, NPR can report.

Others have reported that the FBI has been in contact with Burr. That doesn't mean much for now, and the investigation may turn up nothing. But it's worth noting that it's happening.

The other Senator, Kelly Loeffler, has some more bad news, as new reports suggest even more stock trading that at least looks suspicious. As was noted in the original report, Loeffler had sold off a bunch of retail stock, and bought into a company that does videoconferencing. The original reports suggest that she sold off somewhere between $1.3 million and $3.1 million in stock right before the US economy went south. Turns out it was way more. The new report shows that she also sold off nearly $19 million in stock of Intercontinental Exchange, the company that owns the New York Stock Exchange. It is worth noting that Loeffler's husband is the chair and CEO of Intercontinental Exchange, and the sales took place between February 26th and March 11th. That means at least some of those sales were happening while she was insisting that the US had everything under control.

Perhaps even more damning, though? Beyond buying into a videoconferencing software company, Loeffler and her husband, Jeff Sprecher, also purchased a bunch of stock in DuPont, a major supplier of the personal protective gear that hospitals are all now desperate for:

Sprecher bought $206,774 in chemical giant DuPont de Nemours in four transactions in late February and early March. DuPont has performed poorly on Wall Street lately, but the company is a major supplier of desperately needed personal protective gear as the global pandemic strains hospital and first responders.

So, to recap: they sold somewhere in the range of $20 million worth of mostly stock market and retail companies -- and bought into videoconferencing and protective health gear. All while telling the public that the government she's a part of has everything under control.

Filed Under: congress, covid-19, fbi, insider trading, investigation, kelly loeffler, richard burr, stock trades

Should Doxxing Be Illegal?

from the questions,-questions dept

There has been a debate over the past few years about the legality of "doxxing," which would loosely be defined as identifying individuals and/or their personal information which they'd prefer to remain secret. This is coming up in a variety of contexts, including effort to unveil the whistleblower who first called attention to President Trump's questionable call with Ukraine's President. However, we also noted in passing, last week, that the new privacy bill from Reps. Zoe Lofgren and Anna Eshoo contained an anti-doxxing clause, which states:

Whoever uses a channel of interstate or foreign commerce to knowingly disclose an individual’s personal information—

(1) with the intent to threaten, intimidate, or harass any person, incite or facilitate the commission of a crime of violence against any person, or place any person in reasonable fear of death or serious bodily injury; or

(2) with the intent that the information will be used to threaten, intimidate, or harass any person, incite or facilitate the commission of a crime of violence against any person, or place any person in reasonable fear of death or serious bodily injury,

shall be fined under this title or imprisoned not more than 5 years, or both.

At a first pass, you can certainly understand the thinking here. If you're looking to disclose someone's personal information in order to "threaten, intimidate, or harass" someone, that feels problematic. But, then again, what is meant by "intimidate or harass" in this situation could matter quite a bit. What got me thinking about this again was another news report, about people doxxing members of a defunct neo-nazi online forum:

The metadata of a now-defunct neo-Nazi message board that is considered the birthplace of several militant organizations—among them the U.S.-based terror group Atomwaffen Division—was dumped onto the internet by what appears to be anti-fascist activists.

The site, IronMarch, is widely associated with the rise of the new wave of white supremacist accelerationst groups advocating for armed insurgency against society. The site ran from 2011 to 2017 and garnered more than 150,000 posts while active. The dump of its inner workings includes the login names of its former members and their associated emails and IP addresses.

For fairly obvious reasons, many would likely argue that we should want those people identified. And while the report notes that efforts are underway to try to track down the identities of people who were active on this forum, and it could be argued that the intent behind figuring out who was on this forum is to "intimidate or harass" those individuals (for being Nazis), I think many people who might otherwise support these kinds of privacy laws might take issue with the idea that revealing these individuals as Nazis and/or Nazi sympathizers should be illegal.

And that, again, gets at part of the issue with legislating privacy. Context matters quite a bit, and it's pretty difficult to write context into the law. Yes, doxxing is often used in negative ways to harm, intimidate or silence people. But it can also be used to reveal people who are doing crazy stuff hidden behind a shield of anonymity.

Filed Under: doxxing, investigation, privacy, privacy laws

Phoenix Cop Sues Department To Block Investigation Of Officers' Questionable Social Media Posts

from the sometimes-good-things-happen-to-bad-people dept

Free speech doesn't mean speech free of consequences. A person can be fired for saying things their employer doesn't agree with or feels reflects badly on it Things get a little more complicated when the employer is the government, but the end result of the added complexity is generally that government employees have fewer protections for their speech, rather than more. That's a direct side effect of being employed by the government, which gives employees the power to control private citizens' lives through laws, policies, and regulations.

A Phoenix cop, whose bigoted social media posts were swept up in the Plain View Project's database, is unhappy that his questionable posts have resulted in him possibly suffering from the consequences of his actions. Sergeant Juan Hernandez of the Phoenix PD believes he shouldn't be disciplined for his posts, which included sharing anti-Muslim content on multiple occasions. Meg O'Connor of the Phoenix New Times has more details.

"The most common name for a convicted gang rapist in England is... Muhammed," reads a Facebook post once shared by Phoenix Police Sergeant Juan Hernandez.

The post was one of 11 made by Hernandez that ended up being published this past June as part of a database of bigoted Facebook posts made by police officers nationwide.

[...]

Hernandez has shared numerous anti-Muslim memes on Facebook, including posts from conspiracy websites titled "The End of the Christians in the Muslim World" and "Young Christian Girl Repeatedly Raped by 15 Muslims Then Murdered [READ HERE]."

Sergeant Hernandez doesn't want to be punished by his employer for these posts. In fact, he doesn't even want to be investigated. His lawsuit [PDF] has been filed mid-investigation in hopes of receiving an injunction blocking him -- and other police officers -- from being investigated for their social media posts. It's somewhat of a class action complaint as well, with Hernandez attempting to sue on behalf of all other members of his union (Arizona Conference of Police and Sheriffs).

Hernandez alleges the investigation is improper and suggests (probably correctly) the only reason he's being investigated is because of the Plainview Project's database.

Despite the fact that the Facebook posts were online for years, prior to the Plain View Project publication, no one from the Phoenix Police Department or the City of Phoenix ever identified Plaintiff Hernandez’s postings as alleged violations of any PPD or Phoenix policy.

If he's correct, it says more about the Phoenix PD's inability or unwillingness to keep tabs on its officers' social media posts than it does about the alleged impropriety of the investigation. Like many other law enforcement agencies around the nation, the Phoenix PD appears to have been caught off guard by its officers' online behavior. This doesn't necessarily make the investigation improper. It just makes it extremely belated.

As the lawsuit notes, the PD claims the posts "brought discredit" to the agency and it was for this reason -- not the PD's social media policy -- that it was seeking to punish him. Hernandez claims he's been an exemplary officer -- something backed up by the PD's inability to specify any other time where he failed to be a good cop.

Defendant Disotell and other PSB personnel present at the investigative review process meeting were unable to provide any examples of any situations in which Plaintiff Hernandez acted without “moral integrity” or failed to “work cooperatively, courteously, but firmly with all segments of the public” (quotations from the discipline investigation) other than the Facebook posts that were the focus of the investigation.

This is another failure by the Phoenix PD. Meg O' Connor of the New Times appears to know more about Sergeant Hernandez than the PD's investigators.

As Phoenix New Times previously reported, Hernandez was added to the Maricopa County Attorney's Brady list back in 2004 (the Brady list is a list of police officers who are so notoriously unreliable and dishonest that prosecutors must disclose the officer's reputation to defense lawyers).

Hernandez claims the PD's social media policy is impermissibly vague. It may be, but it does appear to clearly state that officers will be held responsible for any speech the department considers improper.

When using social media, Department personnel should be mindful their speech becomes part of the worldwide electronic domain. Therefore, adherence to City and Department policies is required in the personal use of social media. Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.

"Embarrassment" is an incredibly vague term, one that could be used to punish critics and whistleblowers, as well as cops who engage in hateful speech. This part is a bit more specific, but still remains pretty vague.

Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.

The policies are problematic. And Sergeant Hernandez -- Brady list member and incautious social media user -- may ultimately prevail. He's asking for a restraining order preventing the Phoenix PD from continuing its investigations of officers found in the Plain View Project's database. He has a good chance of securing this.

While free speech protections are more narrow for public employees, they're not completely erased. A bigoted cop's Facebook posts are protected speech. Even with the social media policy applied, they're likely still protected from the department's attempt to punish him. Vague wording generally tends to result in findings of unconstitutionality, and a policy that would similarly prevent good cops from criticizing government agencies and policies won't hold up under judicial scrutiny.

This doesn't mean cops should be allowed to harm the department's relationship with the public by engaging in hateful behavior online. It just means the department will have to be far more specific about what sort of online behavior it won't tolerate. Matters of public concern are pretty much off limits, and the Phoenix PD might have a hard time convincing the court Hernandez's posts weren't at least somewhat related to topics of national debate like immigration and international terrorism.

I don't like to defend bad cops but I'm far more averse to policies that threaten free speech protections. The public can draw its own conclusions about Sergeant Hernandez's character from the content he chooses to share. But can he be punished or fired for it? That's not nearly as certain. If the Phoenix PD doesn't want to be the employer of bigots, perhaps it should start firing cops when they're deemed too untrustworthy to testify in court, rather than offer up an internally-incoherent response to a negative news cycle.

Filed Under: free speech, investigation, juan hernandez, phoenix, phoenix police department, police, social media

NY Investigates Frontier Communications As US Telcos Slowly Implode

from the ill-communication dept

We've long explored how the nation's phone companies don't really even want to be in the broadband business. They routinely refuse to upgrade their networks despite millions in subsidies, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. US telcos have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second broadband option.

This dynamic often results in some absurd dysfunction. Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest.

Things haven't been much better for the telco in states like Minnesota, where it's under investigation for failing to upgrade -- or even repair -- its shoddy networks. The same thing is also going on in New York, which just opened a renewed investigation after being inundated in complaints about terrible service:

"NY Public Service Commission (PSC) staff reported "that several Frontier Communications subsidiaries have significant service-quality problems, including escalating complaint rates, lengthy repair durations, and localized network reliability issues," a PSC announcement Thursday said. PSC staff is seeking more detailed information from Frontier on customer trouble reports and "will work with Frontier to develop and implement a plan to improve poor localized network reliability conditions," the announcement said.

You may be detecting a theme here. Things are so bad for Frontier, the company refused to even answer questions from analysts or the press during its latest earnings call. Most analysts think the company will ultimately teeter into bankruptcy, something that may also be in the cards for similarly large, dysfunctional telcos like CenturyLink. And while this kind of market failure is bad for consumers who already lack competitive broadband options, it's great for cable giants like Charter and Spectrum which are exploiting the US telco collapse to enjoy bigger regional monopolies than ever before.

Less competition means higher prices and no incentive to fix the cable industry's abysmal customer service. Throw in regulatory capture at the FCC and the steady erosion of broadband consumer protections into the equation, and you should be able to see how this is recipe for even bigger problems.

Filed Under: broadband, investigation, ny
Companies: frontier

Judge Unseals, Tosses Warrant Used By The San Francisco PD To Obtain A Journalist's Phone Records

from the have-fun-sleeping-in-the-fucked-up-bed-you-made,-SFPD dept

Back in May, the San Francisco Police Department raided the home of a local "stringer," hoping to discover who had leaked a sensitive police report to the journalists. This raid violated the state's journalist shield law and the First Amendment. Since it was obvious the source of leaked document was an SFPD officer or employee, the raid was also incredibly stupid… unless the real point of the show of force was to discourage journalists from publishing leaked documents.

It took a few days before the SFPD police chief was willing to condemn the raid. According to the chief, the still-unseen affidavit glossed over the target's occupation -- an omission that likely would have seen the warrant application tossed if it had been included.

Speculation about the contents of at least one of the warrants is about to come to an end. The judge overseeing stringer Bryan Carmody's challenge of the warrant has ordered the affidavit to be unsealed.

“The search warrant will be unsealed with the exception of one portion,” San Francisco Superior Court Judge Rochelle East said in court.

One paragraph of the 11-page warrant must be blacked out to protect the identity of a confidential police informant. The unsealed file will be released by July 23 at 10 a.m. to attorneys for three press advocacy groups and a freelance journalist whose home was raided by police.

The same judge has also declared the warrant invalid. Matthew Keys has more details at the California Globe:

A judge in San Francisco tossed a search warrant she issued against a freelance journalist in May, saying police did not disclose to her that the target of the warrant worked in the news media industry.

The ruling, handed down in San Francisco County Superior Court, means materials gathered from the home and office of journalist Bryan C. Carmody cannot be used as evidence against him or anyone else as police continue their investigation into the leak of documents and photographs related to the death of former San Francisco Public Defender Jeff Adachi.

Unfortunately, this only takes care of one of the warrants targeting Carmody. This one sought phone records linked to the numerous cellphones Carmody owns. The other warrants -- targeting Carmody's home and office -- are still being challenged.

The good news is those warrants are likely to meet the same fate. It's highly unlikely the affidavits attached to those search warrants included the fact that the target was a journalist. Two more hearings are set to discuss those warrants, but it seems pretty clear from the ruling here that SFPD officers lied to a judge (or judges) to get around the state's shield law.

If those hearings go the same way, the SFPD will lose all the evidence it collected during its bullshit raid. It won't have anything to use against Carmody, but it seems unlikely a prosecution would even be pursued at this point. But a stack of bad warrants also invalidates anything it might have wanted to use against the employee who leaked the document. The SFPD probably should have kept its internal investigation internal, rather than bring it to the doorstep of a journalist's house.

Filed Under: 1st amendment, 4th amendment, bryan carmody, investigation, journalism, phone records, san francisco, sfpd, warrant

Sinclair Faces Expanded Probe For Shady Behavior During Tribune Merger

from the shell-games dept

Back when Sinclair was trying to acquire Tribune Broadcasting, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.

To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations. Some of the deals involved offloading stations to relatives and friends, for example:

"Under Sinclair’s plan, flagship Tribune station WGN in Chicago would go to a car dealer who is a business associate of a top Sinclair executive, while outlets in Dallas and Houston would be sold to a company formerly controlled by the estate of the executive’s mother."

The efforts were so transparently shady, even the industry-cozy Pai FCC was forced to balk despite having spent the better part of a year trying to help the deal succeed. Ultimately the FCC took administrative steps that effectively killed the deal. Tribune then sued Sinclair for what it called an "unnecessarily aggressive" sales pitch.

And the fun isn't over for Sinclair just yet. The company is also now facing an expanded probe by the FCC into whether the company intentionally misled regulators when it detailed plans to divest stations:

"The so-called “sidecar” deals arranged by Sinclair in order to effect the divestitures involved entities without broadcast TV experience and with business ties to Sinclair. In at least one case, the valuation given for the station was far below the going market rate, raising questions about the process."

When even Ajit Pai thinks a major media and telecom company has gone too far, you know you've screwed up. That said, the FCC's inquiry here may not entirely about a genuine interest in transparency and accountability. FCC Commissioner Jessica Rosenworcel, for example, seemed to imply that one benefit of the FCC conducting a non-transparent investigation is that the real scope of Sinclair's behavior isn't likely to be made public:

As it stands, law prohibits any one broadcaster from reaching more than 38% of U.S. homes, a rule designed to protect local reporting, competition and opinion diversity from monopoly power. The Sinclair deal would have given the company ownership of more than 230 stations, extending its reach to 72% of U.S. households. And while Sinclair wasn't able to consummate this deal, this sort of mindless media consolidation was already a problem, as that viral Deadspin video from last year made pretty clear:

And it's more than this kind of homogenized, consolidation "news" being rather creepy and teetering toward disinformation. There's data to suggest that when you obliterate nuanced local journalism and replace it with monolithic, partisan crap from the likes of Sinclair, you wind up with a more divided and less informed populace. That populace is far less likely to think independently, and far more likely to just double down on partisan viewpoints, which can actually swing elections.

So while the idea of protecting the diversity of local media is often viewed as something that's "partisan" in and of itself, the protection of quality, truly local journalism is something that benefits everybody. It's not clear that's a lesson that has truly gotten through to many Americans, whether this particular merger succeeded or not.

Filed Under: divest, fcc, investigation, merger, ownership, ownership rules, sidecar
Companies: sinclair, tribune