Well, this isn't much of a surprise, but following the ridiculous last minute attempt to block the IANA transition by four state attorneys general (who have absolutely no standing or argument), a judge has flatly denied their request for an injunction meaning that the transition is a go for midnight tonight, barring any really last minute unforeseen methods to block it (or a desperate leapfrog to an appeals court).

Having spent part of the morning responding to clueless conspiracy theorists on my earlier post, I'm sure you're going to hear the standard ridiculous lizard people warnings about how this is enabling "the UN" or "leftists" and "globalists" to "takeover" the internet and how it will allow China to build the "Great Firewall" into the core functioning of the internet. None of that is even remotely true. What happens tonight at midnight is... nothing, basically. ICANN, which has managed the IANA function through its multistakeholder process for almost two decades... will continue to do so. Nothing changes. The only "change" is that the US Commerce Dept. no longer has to issue a contract to ICANN for the IANA functions. And that's it.

But, at a larger scale, what this does is preserve the way internet governance currently works, and makes sure that governments are not the one running the show. Under the ICANN setup, things are not decided at the whim of any government, but through a much more involved process, that allow lots of non-government players -- including the engineers who built the internet and keep it functioning -- to have a major say in what happens. This is good. ICANN is far from a perfect vehicle for internet governance, but this change is a good one.

I'm not sure what this says about government transparency. Maybe it doesn't say anything useful. Maybe it's just the mixed signals we can expect from agencies only willing to make the most minimal transparency efforts. Or maybe it says something about the momentum of even slowly-moving large objects. A bureaucracy has a large turning radius and asking it to suddenly change its ways means you have to lower your expectations as to how "suddenly" should be defined. Whatever it says, it's nothing good.

Overclassification is a government-wide problem. Legislation has been passed to fix it. While the government expects the private sector to get right on it when laws are passed, it obviously cuts itself a lot more slack when faced with internal legislative redirection.

Recognizing the threat posed by over-classification, Congress passed legislation in 2010 to counter the pervasive problem of bureaucrats making benign government records secret. One of the most highlighted provisions of the Reducing Over-Classification Act (ROCA) was a new tool for agencies: cash incentives for employees who accurately classify (and declassify) documents.

Congress hoped that by offering a proverbial carrot to the line-level employees making initial classification decisions within federal agencies, it could increase transparency and allow greater information sharing between federal agencies and local law enforcement.

Not even the dangling of cash money can push agencies towards more transparency, as the EFF's Dave Maass and Aaron Mackey report.

Based on the FOIA responses EFF has received, it does not appear that a single federal agency with the power to classify documents has ever taken advantage of ROCA’s cash incentives program. EFF’s FOIA request sought a variety of records related to the ROCA incentive program, including guidelines for issuing bonuses and the amount of bonuses given out.

Of the agencies we queried, 16 agencies responded that they either had no responsive records or that they do not operate a ROCA incentive program. Three other agencies denied our request, while the remaining eight have yet to provide a determination.

Congress has declared overclassification should be corrected by government agencies. The agencies have shrugged... for a half-decade straight. But hey, transparency! More than half the agencies responded and only three outright denied the EFF's request. That's… something.

Tellingly, two agencies that oversee a ton of classified info responded negatively. James Clapper's office (ODNI) couldn't find anything that suggested it had scaled back its black marker use, and the National Archives and Records Administration first said the law didn't apply to it, before changing its mind and stating it had never implemented the program.

Other agencies that cherish their secrecy and fully-redacted FOIA responses also had made no moves towards scaling back overclassification. The FBI, DEA, and ATF all responded that no one in their agencies had ever claimed ROCA's cash prizes. The same thing goes for the DHS, Defense Department, and the Federal Bureau of Prisons. The State Department offered two "no files found" responses, with the first implying it had trouble understanding the question.

"You have not reasonably described the records you seek in a way that someone familiar with Department records and programs could locate them."

and

"Some or all of the records you have requested do not appear to be State Department records.

The good news is the FOIA process works, at least in this small sampling. The bad news is there's apparently no effort being made to live up to the demands of ROCA, six years after its passage into law. The end result may look more promising, what with agencies (for the most part) amping up their FOIA response capabilities. But if they're not handing over documents because they've gone wild with the "CLASSIFIED" stamp, then they may as well just go back to ignoring FOIA requests.

The worst news, though, is that government agencies feel directives issued via legislation are entirely optional. Their employers, however, are not given the luxury of ignoring laws they don't like. Taxpayers are expected to follow every stupid law forced on them by their representatives while subsidizing entire agencies that shrug off their responsibilities to the public.

We talk about porn filters occasionally here at Techdirt. Usually those discussions revolve around how useless and easily circumvented those filters are, even as the more clueless in government insist that we need more of this non-filtering filtering. This is not one of those stories. Instead, it is the story of one of the most tone-deaf individuals with a penchant for excuse-making I've ever come across.

We start with Gizmodo, a website that used to be owned by Gawker Media until a rich guy decided to show America exactly what a rich guy with a lot of money could do and had Gawker shut down, presumably then diving into a pile of gold coins and rubbing hundred dollar bills on his nipples. Gizmodo recently filed an FOIA request to get at documents involving the misuse of computer equipment with the Department of Homeland Security. The site was hoping to see if there were any cases of overreach and abuse of technology by the department. Instead, it uncovered four cases of people watching porn, including one really special case involving a border patrol agent that simply would not stop looking at porn while on the job.

According to the report obtained by Gizmodo, this particular case, where names have been redacted to protect the privacy of the agent, involves thousands of attempts to access porn on government computers in 2015.

The government says the unnamed agent tried to access porn 644 times in just a two-day span in July of 2015. The DHS internet software filters denied him access 467 times during those two days. Some of the porn was accessed simply because it was hosted on sites that weren’t recognized as exclusively for porn, like Flickr and Tumblr.

644 instances of watching porn while at work is the kind of dedication one likes to see out of an employee actually doing his or her job. That kind of relentless drive to jacking it while on the clock, however, isn't generally smiled upon. An investigation was conducted, which included an interview with the man caught loving himself. The agent had an excuse, however, and it's glorious.

He said that he knew he shouldn’t have been accessing porn at work, but that part of the blame was really with the Customs and Border Protection (CBP) office for not having “adequate web filters.”

Just drink that in for a moment. A border agent, part of an organization that is essentially a filter for those traveling across our borders, has said that part of the blame for his constant porn-viewing rests with the fact that the internet filter used didn't do a good enough job blocking his attempts to look at pornographic material. One immediately wonders if this excuse might be ported to the analog world of illegal immigration. Should an illegal immigrant caught by INS be able to simply shrug and say the blame for his or her illegal entry is really on the CBP for not stopping them? One might even imagine a caught illegal immigrant suggesting that CBP agents clearly didn't mind their entry if they spent so much time watching porn rather than, you know, catching those attempting to illegally cross the border. After all, if the filter isn't catching them, let's just blame that, right?

Are porn filters easily circumvented? Yes. Is that to blame for a CBP agent trying to find porn at work at a rate of near Olympic proportions? Mmm, no.

Earlier this week, when I explained how basically all audience metrics are garbage both online and off, I trimmed the specifics on several platforms since knocking them all down in detail would have made that already-hefty post even longer. But, recent revelations about Facebook's long-running inflation of a key video metric call for a deeper look at the world of Facebook video content and why, yet again, nobody has any idea how many people really see something (and this time, advertisers are unhappy):

Several weeks ago, Facebook disclosed in a post on its "Advertiser Help Center" that its metric for the average time users spent watching videos was artificially inflated because it was only factoring in video views of more than three seconds. The company said it was introducing a new metric to fix the problem.

... Ad buying agency Publicis Media was told by Facebook that the earlier counting method likely overestimated average time spent watching videos by between 60% and 80%, according to a late August letter Publicis Media sent to clients that was reviewed by The Wall Street Journal. ... Publicis was responsible for purchasing roughly $77 billion in ads on behalf of marketers around the world in 2015, according to estimates from research firm Recma.

What happened here is actually pretty subtle, so bear with me. Facebook distinguishes "plays" from "views" -- with the former being every single play of the video, including those auto-plays that you scroll straight past and never even look at, and the latter being only people who actually watched the video for three seconds or longer. Of course, there are still a million ways in which this metric is itself broken (I've certainly let plenty of videos play for more than three seconds or even all the way through while reading a post above or below them) but the distinction is a good one. All of the more detailed stats are based on either plays or views (mostly views) and are clearly labeled, but the one metric at issue was the "Average Duration of Video Viewed." This metric could be fairly calculated as either the total amount of time from all plays divided by the total number of plays, or the same thing based only on time and number of views -- but instead, it was erroneously being calculated as total play time divided by total number of views. In other words, all the second-or-two autoplays from idle newsfeed scrollers were being totalled up, and that time was being distributed among the smaller number of people who stayed on the video for more than three seconds as part of their average duration, leading to across-the-board inflation of that figure.

Now, in some ways this error is minor: it had no impact on billing for promoted videos, since average view time is not a factor there, and all the other more-detailed metrics about view duration were accurate, including a per-second graph of viewer drop-off for each video. But, indirectly, it's a pretty big deal, because average view duration is a top-line metric for publishers figuring out which content is the most engaging. Beyond that, it's the key metric for determining whether Facebook Video is truly engaging as a whole, and given the massive explosion of both publishers and advertisers putting all their focus on video recently, it's worrying to think they might have been doing so at least in part based on a broken, inflated metric.

Of course, none of that changes the fact that even when the metrics are working properly, they most likely still suck. Much of the Facebook video boom has been in the live streaming arena, where publishers like BuzzFeed have been, well, buzzing about "peak concurrent viewer" numbers that rivaled the ratings of major cable networks. But television ratings represent something entirely different from this "peak" figure, and a similar system would likely peg these streams' audiences at closer to zero. But then again, what we're talking about here is Nielsen ratings, and I don't need to reiterate just how many problems those have. All we're doing is comparing a bunch of vague, hard-to-support and impossible-to-confirm numbers with each other, and ending up with almost no new insight into the reality of audiences.

Still, if the system is going to run on bullshit, it should at least be internally consistent bullshit -- so it's good that this latest Facebook error has been caught and fixed.

Curious about what criteria the CIA have for determining if they "can neither confirm nor deny" something? So did Jason Smathers, who back in 2010 filed one of MuckRock's earliest requests for exactly that. Six years later, he still doesn't know.

Smathers first filed in October 2010 - to the agency's credit, they only took a mere two months to get back to him.

Which was followed by two and a half years of radio silence. A follow-up in June of 2013 was finally responded to with reassurances that the request was still processing ... which apparently served as a reminder to the agency to finally send the rejection letter collecting dust in the corner.

Ultimately, the CIA cites no fewer than three separate exemptions, including what appears to be a "Schrödinger's b(5)," all for what should be some basic FOIA processing manuals.

How do we know that? Well silver lining/insult to injury, Smathers filed the same request with the NSA, and though they too took three years to process it, they actually delivered.

But you know what they say - one agency's basic documentation is another agency's matter of national security. Not to mention a FOIA requester's complete waste of time.

Republished from Muckrock.com

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The Intelligence Community is looking to reward whistleblowers for "speaking truth to power." No, seriously. Steven Aftergood of Secrecy News has posted a recent Intel Community announcement [PDF] that looks to fold a whistleblower honor into the community's existing awards program.

This is part of the intel community's cautious foray into the harsh sunlight of transparency -- itself a response to a presidential directive that our nation's spies head outside for a bit and expose themselves a bit.

The award may as well be called the "Snowden." But the wording makes it explicit Snowden himself will never be eligible to receive the honorific fruits of his whistleblowing.

“The intelligence community has […] committed to establishing a National Intelligence Professional Awards program to recognize superior service by an intelligence professional in effectuating change by speaking truth to power, by exemplifying professional integrity, or by reporting wrongdoing through appropriate channels,” according to a new Self-Assessment Report on the Third Open Government National Action Plan that was released by the White House last week.

It could be argued Snowden's leaks "spoke truth to power," but it's going to be a bit hard to get past the "through appropriate channels" clause, which seems to be the last refuge of anti-Snowden scoundrels: "Yes, his leaks lead to much-needed changes, but he should have used the proper channels where he would have been ignored/retaliated against!" Then again, the award stipulations has an "or" before "reporting wrongdoing through appropriate channels," so being told to shut up and mind your own business by Congressional intelligence committees may not be required to land this new award.

It will be interesting to see how receptive the intelligence committee actually is to whistleblowing. This award may end up being handed out to whistleblowers whose complaints result in the least amount of internal turmoil. Aftergood notes surveillance agencies haven't historically been receptive to constructive criticism… or any criticism, really.

Professional integrity may be welcome everywhere, but “speaking truth to power” is rarely welcomed by “power.” Often it is not even acknowledged as “truth.” (Apparently, the IC envisions itself here as the domain of truth, and not of power. Or will those who challenge the IC leadership itself be eligible for the new award?) Meanwhile, “reporting wrongdoing” often seems to end badly for the reporter, as the frequency of whistleblower reprisal claims indicates.

If the IC moves forward with this award in an honest fashion, it will be a refreshing change from the longtime policy of "bullets for messengers" that has been implemented with particular fervor by this administration. Aftergood believes there may be reason to believe this may not just be the Intelligence Committee looking busy for the boss. Presidential directives come and go but honorifics last forever. Nothing like this would be instituted if it didn't actually reflect values the IC wants to promote.

Whether or not the IC intends to celebrate its own internal critics, it seems to want to encourage and now incentivize them, providing improved channels for dissent and whistleblowing that will not inevitably be career-enders or needlessly disruptive in other ways.

I guess we'll see where this goes. It would be nice if the New Transparency resulted in a livestream of a James Clapper-hosted awards show, broadcast from an undisclosed location in a room draped in American flags and the low hum of server farms. Failing that, a mostly-unredacted document dump on a Friday afternoon preceding a holiday weekend would be an adequate substitute, I suppose.

You may recall that roughly a year ago, a federal judge struck down a New Hampshire law that made "ballot selfies" illegal. The state had essentially updated its laws revolving around limiting the ability to sell votes or influence the public through depicting who a person voted for to include criminalizing anyone that took a picture of their completed ballot and shared it on social media. The state had said that allowing that sort of thing encouraged voter corruption, with the idea that ballot selfies would be used as a form of proof that a bought vote had been completed, or might otherwise be used to influence other members of the public as to how to vote. It was a strange theory, given how unlikely it would be for a corrupted voter to post evidence of his or her corruption on Facebook, not to mention that stating that a person essentially couldn't engage in a form of political speech via a picture was flatly unconstitutional. The federal judge agreed.

But, for reasons I cannot begin to fathom, New Hampshire appealed this ruling. And so it went before the U.S. Court of Appeals for the 1st Circuit... which found the law to be flatly unconstitutional as well.

The court held this statute violated the First Amendment; whether or not it’s viewed as content-based (and I think it should be), the statute is unconstitutional because it fails even the “intermediate scrutiny” applied to content-neutral speech restrictions.

From the ruling itself:

Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation...But even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.

The ruling goes on to detail the two reasons. First, the court points out that none of the fears the state raises as its reasons for enacting this law have been realized and that curtailing the free speech rights on an entire population over a theoretical problem ain't a thing that the state can do. Second, should those fears actually come to reality, the court points out that there are already laws on the books to address them and, again, limiting free speech rights on an entire population when that's the case isn't going to fly.

The point is that political speech is about as sacred a thing as a secular republic like ours has. That New Hampshire is going to such lengths to keep people from being able to proudly show that they voted, and who they voted for, seems strange for a state with a motto of "Live free or die."

Back in February the FCC proposed a new plan to bring competition to the cable box. Under the plan, cable providers would need to provide their programming to third party hardware vendors without the need for a CableCARD. The goal? Bring some competition to bear on a stagnant, captive market, resulting in cheaper, more open, and higher quality cable boxes. But because the plan would demolish $21 billion in rental fees while eroding sector control, the cable industry launched one of the most unprecedented lobbying and disinformation efforts I've ever seen in 16 years of covering the sector.

Politicians loyal to the cable industry wrote letters lambasting the FCC for "jeopardizing the incredible evolution of video distribution services," falsely comparing the idea to Popcorn Time. A flood of editorials magically began appearing in newspapers country wide claiming the FCC's plan would boost piracy, hurt consumer privacy, and even "steal the future." The cable sector even trotted out Jesse Jackson, who claimed in a horribly misleading op-ed that increased cable box competition was akin to the "snarling dogs, water hoses and church bombings" of America's racist history. Seriously.

Of course given our news outlets don't think it's particularly important to highlight financial conflicts of interest, most of these editorials were presented as purely objective insight into the FCC's proposal. Even the US Copyright Office joined the festivities, falsely claiming the FCC's plan would "interfere with copyright owners' rights to license their works as provided by copyright law" despite IP experts stating it would do nothing of the sort.

And this cavalcade of lobbying, disinformation, and hand-wringing worked absolute wonders.

Apparently informed by all the wrong people, FCC Commissioners Jessica Rosenworcel and Mignon Clyburn began waffling after voting yes on the original proposal. That forced FCC boss Tom Wheeler to scrap his original plan, releasing a revamped, weaker app-based alternative proposal based largely on the cable industry's recommendations. Despite this new plan effectively being their idea, cable companies like Comcast still complained, falsely claiming the FCC's plan would "stop the apps revolution dead in its tracks by imposing an overly complicated government licensing regime and heavy-handed regulation in a fast-moving technological space."

Yes, because when I think about "fast moving" innovation, the dusty old cable box with its circa-1998 GUI is usually the first thing to come to mind.

As a result of this collective feigned hysteria, when the FCC's latest plan for cable box competition went up for a vote yesterday morning, the agency found it no longer had the votes to move forward. Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issued a joint statement that goes out of its way to avoid noting that Wheeler lost his fellow commissioners' support:

"We have made tremendous progress—and we share the goal of creating a more innovative and inexpensive market for these consumer devices," Chairman Tom Wheeler and fellow Democrats Mignon Clyburn and Jessica Rosenworcel said today in a joint statement. "We are still working to resolve the remaining technical and legal issues and we are committed to unlocking the set-top box for consumers across this country."

By "technical and legal issues" the FCC means it no longer had the votes to move forward after Commissioners buckled under the pressure of a tidal wave of bullshit. And while the FCC says the plan will "remain under consideration," it's entirely possible that the entire effort just died a quiet death in committee. That's not the end of the world given the cable industry (and the cable box) will likely implode on its own in the face of streaming competitors, and it might make more sense for the FCC to use its regulatory calories on things like broadband competition and usage caps anyway.

That said, the cable industry's ability to manipulate the public, press, and regulators in this fashion isn't our nation's finest hour. And while it's possible the FCC could revisit the vote, the end product may be so watered down as to be useless for consumers. Believing they've done yeoman's work in defending the cable industry's walled garden empires, some politicians took to applauding Rosenworcel's expected decision to "stand up for content creators" in voting down the FCC plan:Comcast also was quick to applaud the FCC for heeding the call of the sound wall of "respected third parties" opposed to the FCC's plan:

"The FCC made the right decision this morning to delay its vote on the set-top box item. It is now critical that the Commission heed the bipartisan calls of dozens of Members of Congress and respected third parties and release its new proposal and associated rules to allow the public to provide comment...Based on the limited information available from the Chairman’s Fact Sheet and op-ed, a broad range of content creators, civil rights organizations, labor unions, and others have concluded that the Chairman’s new approach does not solve the copyright, privacy, innovation and other significant concerns that were implicated in his discredited original proposal – and suffers from the same legal infirmities."

Right, but again, that's bullshit. Most of the opponents listed by Comcast were paid by the cable, broadcast and entertainment industries in one form or another to falsely malign the plan. The plan doesn't hurt copyright, it doesn't hurt privacy, and it certainly doesn't harm racial diversity. What it would harm is the cable and entertainment industry's monopoly over cable hardware, and the $21 billion in captive revenues it enjoys annually. It would also most certainly harm the walled garden that consistently protects the cable sector from pesky things like consumer choice.

While Wheeler today proclaimed that the delayed vote was "simply a matter of running out of time," it was notably more than that. It was another disgusting example of how the US Copyright Office frequently fights against the best interest of the public, regulators aren't getting sound advice, media outlets are thrilled to regurgitate pay-to-play industry garbage as objective insight, and Congress remains happy and willing to prioritize campaign contributions over consumer welfare. Wonderful job, everybody. Kudos all around.

Okay, this is really dumb. What is it about state attorneys general making totally bullshit claims? It seems to happen with fairly consistent frequency. The latest is that four state AGs (from Arizona, Texas, Oklahoma and Nevada) have filed a lawsuit to stop the IANA transition. If you don't recall, we've written about this a bunch. A bunch of people are up in arms over something they don't seem to understand. The IANA transition is a good thing. It's not the US government handing over the internet to Russia and China as you may have heard. It's the Commerce Department severing an almost entirely symbolic link between it and a very specific internet governance capability concerning top level domains. And it's important to complete the transition because other countries (including Russia and China) keep pointing to this symbolic link as a reason for why they should have more say in internet governance. Getting rid of the link keeps the internet functioning as it has for decades -- and takes away a weapon from Russia and China. More importantly, going back on the transition now actually gives even more ammo to Russia and China, allowing them to point to unilateral actions by the US gov't to block a process that everyone had agreed upon earlier.

Anyway, to the actual lawsuit. It's dumb. It's really dumb. If you live in Arizona, Texas, Oklahoma or Nevada, you should be embarrassed for your Attorneys General. Elect better ones next time, please. First of all, they have no standing whatsoever to file this lawsuit. The IANA/top level domain system is not those states' property. They have no claim here other than "HEY LOOK! POLITICAL FOOTBALL THAT WE CAN GRANDSTAND OVER!" That does not give them standing. The best they can come up with for claiming standing is... uh... "hey, we have some websites." No, really.

Plaintiffs operate multiple websites, including those that use the .gov and .com generic top level domains, to conduct their business and communicate with their citizens.

Yeah. That's not enough to get standing here, buckos. Also, in filing a lawsuit they don't allege any actual harms. That's kind of a big no no when filing a lawsuit. Instead, they sorta maybe kinda speculate that maybe possibly there could (sorta, maybe) be some (possible, maybe, not really) harm in the theoretical future. Maybe.

Second, the entire crux of the lawsuit is that the authoritative root zone file and the internet domain name system itself are somehow "property" of the federal government, and that this transition is, in effect, the giving away of government property without an act of Congress, violating the Property Clause of the Constitution. Except, as we just discussed recently, the Government Accountability Office studied this issue earlier this month and came to the conclusion that "nope, it's not property." In case you missed it then:

It is unlikely that either the authoritative root zone file—the public “address book” for the top level of the Internet domain name system—or the Internet domain name system as a whole, is U.S. Government property under Article IV. We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.

Others have walked through some of the other charges and find them all totally lacking. A judge is set to review this request for an injunction later today, and you never know how any individual judge might rule. So it's entirely possible that this will muck up the timing of the transition, but long term, this filing is not just a joke, but it's an embarrassment and a waste of taxpayer money in those four states.