Ohio Supreme Court Says There’s Nothing Wrong With Cops Seizing A $31,000 Truck Over An $850 Criminal Offense

Legal Issues

from the guess-it-all-depends-on-what-'excessive'-means dept

In 2019, the Supreme Court of the United States resolved a long-running lawsuit over asset forfeiture. Indiana resident Tyson Timbs had his $42,000 Land Rover seized by law enforcement following his sale of $260 of heroin to an undercover officer.

The basis of his challenge were the 8th and 14th Amendments of the US Constitution, both of which have been long-adopted by the state of Indiana. The Eighth Amendment’s Excessive Fines Clause came into play here, folded in by the 14th Amendment’s Due Process Clause. The Supreme Court held that seizing a $42,000 vehicle was excessive (in terms of fines) when the criminal offense maxed out at $10,000 in fines.

That decision has been pretty much ignored by Ohio’s top court, which has decided $31,000 is not an excessive fine when the underlying offense tops out at $850 in fees.

After being convicted of drunk driving for the third time in 10 years, the government took away Medina County resident James O’Malley’s 2014 Chevy Silverado, which was worth $31,000 and was his only significant asset.

O’Malley challenged the state law that allows the government to seize vehicles used in crimes. He argued it violated the Eighth Amendment to the U.S. Constitution by requiring him to pay an excessive fine and vehicle owners face forfeiture while non-owners don’t face the same penalties.

A divided Ohio Supreme Court on Thursday upheld the state’s forfeiture law.

Three DUIs is serious business. That much cannot be argued, even if they were spaced out over the course of ten years. Following his no contest plea, O’Malley sought the return of his vehicle. O’Malley’s challenge was likely inspired by the Timbs case, which resulted in a decision finding some forfeitures unconstitutional.

The trial court said the fine was not “excessive” because the vehicle was involved in the crime, O’Malley had previous criminal convictions for the same violation, that his current situation would not be made worse by lack of access to a car (he was unemployed at the time), and that he had a good chance of re-offending, something that would be minimized by removing the vehicle from the equation. It said the fact that the value of the vehicle was more than 11 times the total maximum fine still didn’t make it excessive, given the other factors in play. The state appeals court arrived at pretty much the same conclusion.

Unfortunately for O’Malley, his seizure occurred about eight months before the Supreme Court delivered its decision. Even more unfortunately, the state Supreme Court has its own ideas about what is or isn’t “excessive,” in terms of constitutional rights.

The decision [PDF] says the end justifies the means, what with so much public safety being at stake. What’s a $31,000 truck when there’s plenty of justification for the government to do pretty much whatever it wants to get drunk drivers off the road?

It appears that the General Assembly meant to deter vehicle owners from engaging in drunk driving or furnishing their vehicles to those who would engage in drunk driving—the thought being that the loss of a vehicle would be a significant deterrent that would keep more drunk drivers off the road. It was also reasonable for the General Assembly to think that taking away a repeat offender’s vehicle would make it harder for those inclined to drink and drive on a regular basis to commit those offenses in the future. […] Accordingly, there are many sound policy reasons for the classification, and the statute thus survives a rational-basis analysis.

But the state also suspends drivers licenses, fines people, and imprisons them for multiple violations. All of those are deterrents as well, but none of those are 11 times more excessive than the maximum penalty for a third violation.

The court at least agrees some forfeitures of this sort could violate the Excessive Fines Clause. But it says this isn’t one of them. The state Supreme Court notes the US Supreme Court’s decision, acknowledging that some sort of balancing test is needed to determine whether a fine is excessive. Since the US Supreme Court didn’t actually craft rules of its own, but rather provided a list of factors to be considered, the state Supreme Court is free to craft its own reasonableness test. Except that it chooses not to do that.

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus. Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood. While we appreciate the allure of a seemingly airtight checklist that ideally would—but in practice may not—address all future contingencies, we do not believe—for both practical and principled reasons—that it is necessary or appropriate for us to establish the multifactor test sought in this case.

The state court says it won’t be setting a standard, which means it’s free to pick and choose whatever factors it wants to recognize on a case-by-case basis, turning constitutional questions into a roulette wheel. All forfeiture victims can do is put their money down and spin the wheel.

O’Malley loses here.

In balancing the value of the forfeiture and the gravity of the offense, we conclude that O’Malley has not proven by clear and convincing evidence that the forfeiture is grossly disproportional to the gravity of the offense. The legislature chose to punish repeat OVI offenders with the forfeiture of the vehicle that was used in the offense. The legislature’s choice of punishment is entitled to significant weight. O’Malley chose to engage in drunk driving for a third time in ten years on one of the busiest travel days of the summer. This too is entitled to weight. Further, although his vehicle was clearly of value and was important to him, he did not demonstrate that the loss of this vehicle would be significant. Though O’Malley was unemployed during the duration of his trial, he is, by all accounts, a young, able-bodied adult. And at the time of the trial court’s forfeiture order, O’Malley had few expenses, given that he lived with his grandmother. The value of the vehicle and its importance to O’Malley are simply not enough to overcome the gravity of the offense. Therefore, O’Malley has not demonstrated that the forfeiture of his $31,000 vehicle was grossly disproportional to his offense.

The court does, at least, point out that limiting a balancing test to the value of seized property in relation to the criminal penalties imposed lends itself to a two-tiered justice system where poorer people with cheaper vehicles would more often find seizures of their vehicles declared reasonable while richer people with more expensive vehicles could see themselves retain possession because their value is far greater than the severity of the crime.

And, while that’s a good point, that’s not the only factor to be considered. There’s the financial impact it will have on the arrested person, which lends itself to better protecting poor people from excessive fees. That’s why it’s a multifactor test. But the biggest factor in this court’s decision appears to be the government’s interest: the legislature authorized mandatory seizures of vehicles on a third offense, and, because it addresses a public safety concern, that’s pretty much all that needs to be discussed.

The dissent calls out the contradictory reasoning of the majority:

Judging from the historical pedigree of the Excessive Fines Clause, I conclude that the confiscation of a defendant’s sole financial asset in O’Malley’s circumstances is an automatic violation of that provision. It recalls England’s “ ‘forfeiture of estate’ ” of 300 years ago, when the Crown confiscated all the real and personal property of a felon. Fried, Criminal Law: Rationalizing Criminal Forfeiture, 79 J.Crim.L. & Criminology 328, 329 (1988), fn. 1. But here, O’Malley has not committed a felony.

[…]

Surely, if the Excessive Fines Clause means anything, it means that the government cannot confiscate a defendant’s entire net worth when the maximum fine set by the legislature is less than one-tenth of the value of the forfeited asset.

O’Malley can still appeal this, sending it to the same court that gave Tyson Timbs a victory. If this lightning strikes twice, the US Supreme Court may have to suss out a multi-factor test to be applied in lower courts. Otherwise, state courts will continue to cherry pick factors that lend themselves to the desired outcome.

Filed Under: asset forfeiture, civil asset forfeiture, james o'malley, legalized theft, ohio

Warner Brothers Discovery Merger Continues To Be A Shitshow For The Ages

Failures

from the synergies,-yo! dept

Remember when AT&T spent more than $200 billion to acquire Time Warner and DirecTV in the belief it would help the telecom dominate video advertising? Then remember when company leadership was so monumentally incompetent they had to run to the exits in terror? Good times.

After AT&T’s gambit fell apart, the company returned to what it’s best at (lobbying the government to crush broadband competition), and spun off Time Warner into an entirely new company, Warner Media. Warner Media then immediately turned around and announced a blockbuster merger with Discovery, creating the creatively named Warner Brothers Discovery. 

And it’s all going just about as well as most major media mergers go. As in, not well at all. At least not for consumers, employees, and creators, anyway. I’m sure lawyers, bankers, executives and investors are all pleased as punch by this cavalcade of colorful misery.

Hoping to prove the amazing synergies of the deal, the freshly merged company has been consistently cancelling shows and pulling any show from its streaming catalog (like many episodes of Sesame Street) because it’s too cheap to pay residuals.

They’re also super excited to sock their customers with a wide array of price hikes, given the company’s CFO believes services like HBO Max and Discovery+ are “underpriced”:

Wiedenfels suggested the company had ample room to raise prices given the strength of content on the services, which will be merged into one next year.

And then of course there are the inevitable layoffs, which pre-merger executives usually insist aren’t going to happen, right before they do. Axios, in its usual “he said, she said” approach to journalism, notes that the company is preparing for yet another round of head-lopping thanks to inflation:

Hundreds of people are expected to be laid off on the business side of Warner Bros. Discovery, via a round of layoffs that will begin Tuesday, sources tell Axios.

Why it matters: Executives have warned for months that the merger between WarnerMedia and Discovery would yield roughly $3 billion in synergies. Rising interest rates and a weak macro-economic climate has put pressure on media companies to be more disciplined about costs.

Of course it’s not really inflation, it’s that US media megamergers are often completely fucking pointless, outside of short-term stock fluffing, tax write offs, and preposterous boosts to executive compensation. Axios forgets to mention that this is pretty much what always happens with a major US telecom or media megadeal, despite pre-merger claims that deal synergies will border on the Utopian.

Remember, this all began with AT&T’s $200 billion disaster (which came with plenty of its own layoffs, axed projects, and chaos), which the press has already forgotten about. Since then, the whole pointless series of mergers has simply gotten more pointless. Yet if you dig through US press coverage, you’d be hard pressed to find many outlets willing to call this giant, pointless turd of a deal what it is.

You have to head over to smaller, independent news outlets to find anybody being honest about what a shitshow this deal is. Ironically, busted journalism and the merger itself are both in large part thanks to our mindless obsession with consolidation and megadeals that make no coherent, practical sense. It’s all one problem, and Americans are violently dedicated to doing absolutely nothing about it.

Filed Under: cable tv, hbo max, layoffs, media consolidation, megamergers, mergers, price hikes, show canceled, streaming, synergies
Companies: at&t, discovery, warner bros.

Florida Courts Agree To Respect First Amendment, Allow Journalists Immediate Access To Filings

Legal Issues

from the well-well-well-if-it-isn't-the-consequences-of-our-actions dept

Courthouse News Service takes home another win in the ongoing fight for the respect of the First Amendment.

For years, courts received filings printed on paper. Those filings were routinely made available to journalists almost immediately. Whatever processing needed to be done could be interrupted long enough to make copies for reporters. Nothing slowed down and the presumptive openness of the courts was preserved.

Then came the digital revolution. Receiving and creating digital copies should have made access even more immediate. For some reason, this, instead, created an excuse for courts around the nation to withhold documents for hours, days, or weeks, supposedly because some sort of intensive “processing” of 1s and 0s was occurring behind the scenes.

Converting near-instantaneous processing into delayed access has resulted in plenty of legal action. Courthouse News Service — obviously heavily reliant on timely access to court documents — has engaged in legal action in several states over this obvious bullshit perpetrated by court clerks.

The government (meaning the needlessly recalcitrant clerks) isn’t winning. In court-on-court action, courts are siding with the First Amendment and against court clerks who’ve turned their offices into unconstitutional fiefdoms.

Clerks in the state of Florida fucked around and found out. A settlement agreement presented to the court in the middle of last month has been approved by a Florida federal court, bringing an end to one of several Courthouse News lawsuits, and restoring a right to access filings to journalists.

With a population of 21 million, Florida joins the biggest state in the nation, California, and the fourth biggest, New York, in returning traditional access to the public record of the courts in the electronic era. A related First Amendment action is now pending in the second biggest state, Texas, with 29 million people, also seeking to reclaim the First Amendment right taken away under the cover of modernization.

The terms of the deal between this news service and Florida’s e-filing authority calls for Florida to give public access to new court filings “on receipt.” In exchange, Courthouse News agreed to give up its claim for attorney fees.

This settlement applies to the entire state, so even if fiefdoms crop up, they won’t last for long. Journalists and other members of the public seeking access to court documents won’t have to wait for long either. Various clerks may have erected arbitrary time frames for the release of filings, but the settlement the state of Florida agreed to mandates near-real time access:

The key language in the underlying agreement states: “In consideration for the time and expense incurred by counsel for CNS, the Florida Courts E-Filing Authority will implement a statewide public access system in the E-Filing Portal for nonconfidential circuit civil complaints to be publicly accessible upon receipt, but in no circumstances to exceed five minutes.”

This is a huge win for everyone who isn’t a court clerk harboring delusions of grandeur. It follows a decision in favor of Courthouse News Service delivered in June by this same court — one that said the “right to access is foundational to the function of our judicial system.”

This decision (and the settlement that followed it) may seem like obvious outcomes. But it took Courthouse News six years and an unknown amount of its own money to force the government to respect rights it promised American citizens it would not violate. Unfortunately, government entities prefer spending money to pay government employees to violate rights and force citizens to fund attempts to convert these rights violations into legally acceptable government behavior. Every step of the process requires citizens to pay governments to argue against what’s best for the (supposedly) represented.

That’s not what we were promised when this nation was founded. But a couple hundred years later, it’s what we’ve ended up with.

Filed Under: 1st amendment, access, court filings, e-filing, florida, public access, transparency

No, The Solution For Criminal Defendants Is Not More Clearview AI

Legal Issues

from the two-wrongs-don't-make-a-constitutional-right dept

The problems with Clearview AI’s facial recognition system, particularly in the hands of police, are myriad and serious. That the technology exists as it does at all raises significant ethical concerns, and how it has been used to feed people into the criminal justice system raises significant due process ones as well. But an article in the New York Times the other day might seem to suggest that it perhaps also has a cuddly side, one that might actually help criminal defendants, instead of just hurting them.

But don’t be fooled – there is nothing benign about the facial recognition technology pushed by Clearview AI, and even this story ultimately provides no defense for it. It was not the hero here, because the problem it supposedly “solved” was not the problem that actually needed solving.

In the article, Kashmir Hill told the story of how Clearview AI’s facial recognition system apparently helped exonerate someone criminally charged with causing the single-car accident he had been in, which had killed the person he was with. The survivor defendant insisted he hadn’t been the one driving, but he was charged anyway. Proving his innocence was going to require finding the Good Samaritan witness who had pulled him from the burning car and could verify which seat he had been pulled from.

In November 2019, almost three years after the car accident, Mr. Conlyn was charged with vehicular homicide. Prosecutors said that Mr. Conlyn had been the one recklessly driving Mr. Hassut’s Mustang that night and that he was responsible for his friend’s death.

Mr. Conlyn vehemently denied this, but his version of events was hard to corroborate without the man who had pulled him from the passenger seat of the burning car. The police had talked to the good Samaritan that night, and recorded the conversation on their body cameras.

“The driver got ejected out of one of the windows. He’s in the bushes,” said the man, who had tattoos on his left arm and wore an orange tank top with “Event Security” emblazoned on it. “I just pulled out the passenger. He’s over there. His name is Andrew.”

The police did not ask for the man’s name or contact information. The good Samaritan and his girlfriend, who was with him that night, drove off in a black pickup truck.

Yet how could the defendant track down the witness? He had no idea himself who had helped him, and the police had not bothered to fully document what they observed at the scene. The only identifying data was the footage the police bodycams captured while they had been talking to the witness. Which led the defense to wonder, what if there was some sort of way to identify who was pictured in the footage. So defense counsel wrote to Clearview AI and asked for access to its facial recognition system to see if it could identify the person in the picture. And Clearview said yes, apparently smelling a PR opportunity by asking that that the defense “talk to the news media about it if the search worked.” And it turns out that it did work: the identity of the witness was readily found, the witness then located, and, with their testimony, the charges were consequently dropped.

The company would like the takeaway from this particular happy ending to be that Clearview AI’s facial recognition system might at least be a double-edge sword, offering some good and important benefits to the accused that might somehow counterbalance the tremendous threat it poses to all putative defendants (aka everyone), especially insofar how facial recognition technology in the hands of police tends to lead to people finding themselves in the crosshairs of the criminal justice system in the first place, often unaware and even by mistake.

Civil liberty advocates believe Clearview’s expansive database of photos violates privacy, because the images, though public on the web, were collected without people’s consent. The tool can unearth photos that people did not post themselves and may not even realize are online. Critics say it puts millions of law-abiding people in a perpetual lineup for law enforcement, which is particularly concerning given broader concerns about the accuracy of automated facial recognition.

But the story actually supports no such conclusion: Clearview AI was no way the solution to the problem presented here, because the problem here was not that the defense couldn’t find its witness. The problem was that there was obviously reasonable doubt as to his guilt, which prosecutors chose to ignore in deciding to charge him anyway. Which then meant that instead of the prosecution having the burden to prove his guilt, the defendant now had the burden to prove his innocence, which is how he found himself needing Clearview at all.

But he never should have had that need because that is not how things are supposed to work in our criminal justice system, where the accused are supposed to be presumed innocent and it is the prosecution’s job to prove beyond a reasonable doubt that they are not. True, to simply bring charges the prosecution may have needed to meet a lesser standard than reasonable doubt, but the problem here was that the prosecution gladly chose to pick this fight even though it knew that it should ultimately not be able to win the war.

Because think about how much evidence the prosecution already knew about that cast doubt on the suspicion the defendant had been driving. As the article lists, there was the defendant’s own denial, plus forensic evidence that was at best inconclusive to support that he had been the driver (and then there was also the fact that the passenger side door had been blocked by a tree, which would have meant that anyone in the car would need to leave by the driver’s side, even if they hadn’t been driving).

The body-camera footage did not seem to hold much weight with the prosecution.

“There was contradicting evidence,” said Samantha Syoen, the communications director for the state attorney’s office.

Witnesses who had arrived late to the scene saw Mr. Conlyn pulled out of the driver’s side of the car. Mr. Conlyn said, and police body camera footage appeared to confirm, that the passenger’s side door had been against a tree, which was why he’d had to be rescued from the other side. The police found his blood on the passenger’s side of the car but also on the driver’s side airbag.

An accident reconstruction expert hired by the prosecution said the injuries to the right side of Mr. Conlyn’s body could have come from the center console, not the passenger door. After Mr. Hassut’s father sued Mr. Conlyn in civil court in 2019, for the wrongful death of his son, Mr. Conlyn’s insurance agency settled the suit, unable to prove that Mr. Conlyn had not been driving the car.

But even if none of that contrary evidence had been compelling, THERE WAS ALSO A WITNESS! That the prosecution knew about! Because the police had spoken to him! AND THAT’S WHY THERE WAS EVEN A PICTURE TAKEN ON THE BODY CAM!

There should have been no need for the defense to ID the witness, because the mere fact that there was a witness, whose contemporaneous statement had cast doubt on the prosecution’s theory, should have been enough reasonable doubt to put an end to the prosecution. That the prosecution nevertheless continued, in spite of this contrary evidence, is the true problem that this story reveals. And it is the problem that Clearview AI in no way solves. The failure here is much more systemic, that overzealous prosecutors can go after defendants with such weak hands, and force defendants to have to do what may be impossible to prove their innocence (especially thanks to inexcusably poor documentation practices by investigating police).

That something like Clearview AI may make a defendant’s task slightly less impossible does not solve the ultimate problem, nor does it redeem technology as troubling as Clearview AI just because in this particular case it may have helped even the odds.  The issue is that the odds were ever so uneven in the first place. And Clearview AI ultimately just helps make sure they will stay uneven by so cavalierly dismissing the significant privacy rights that should be protecting citizens from exactly this sort of overzealous policing.

The article quotes the NACDL’s Jumana Musa accurately noting that offering defense counsel access to Clearview isn’t going to solve the problems with it:

Jumana Musa is the director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers, where she works to keep defense lawyers informed about the newest surveillance tools used by law enforcement.

“[Giving defendants access to the system] is not going to wipe away the ethical concerns about the way in which they went about building this tool. [I]t’s not going to do is make us feel comfortable with the secrecy around how this tool works.”

As she continued, “You don’t address issues in a broken criminal legal system by layering technology on them.”  Which is exactly the issue.  Technology is not the solution to all our failings. Sometimes the thing we need to do is just fail less, but that requires recognizing what has actually gone wrong and what therefore needs addressing.

So, no, Clearview AI is not the solution here because the problem is not that not enough people don’t have access to facial recognition systems. Rather, the problem is that our system of justice railroads people even in the face of reasonable doubt. That it does is the problem we should be fixing, but it is not one that something so invasive like Clearview AI could ever do for us because it is not like its own existential problems can somehow cure or cancel out the current constitutional infirmities of our criminal justice system. Instead each will only make the other worse.

Filed Under: evidence, facial recognition, presumption of innocence, prosecutors, reasonable doubt
Companies: clearview, clearview ai

Daily Deal: Microsoft Surface Laptop (Refurbished)

Deals

from the good-deals-on-cool-stuff dept

The Microsoft Surface Laptop (refurbished) delivers incredible performance with its 2.5 GHz Intel Core i5 processor and 8GB of RAM. It offers an improved 13.5″ PixelSense display. It has either a 128GB or 256GB hard drive capacity. You can be productive anywhere you go. Its compact size makes it perfect for travel or taking to meetings at conferences and tradeshows. The 128GB laptop is on sale for $320 and the 256GB laptop is on sale for $400.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

DC Court Shuts Down Common Law Access End-Around, Says Congress Doesn’t Need To Release Full CIA Torture Report

Legal Issues

from the opacity-with-multiple-judicial-blessings dept

Legal battles have been fought for most of a decade now over access to the full CIA Torture Report. A limited release at the tail end of 2014 — the 525-page, heavily redacted “Executive Summary” — is all the general public has been given access to.

What was in the summary was horrifying enough. But the CIA has managed to keep the full report away from the public, utilizing rulings that have declared it a “congressional record.” Congress is exempt from FOIA law, which means as long as this report is considered something belonging to Congress, FOIA requesters have no legal means to force its release.

Not that they haven’t tried. Judicial Watch sued Rep. Adam Schiff, hoping that an opportunistic suit targeting House Intelligence Committee subpoenas would create a wedge that would make Congress responsive to requests for documents. FOIA was out of the question, so Judicial Watch went to work with a “common law access” theory to elude Congress’ omnipresent FOIA exemption.

That case ended up going with nowhere, ultimately dismissed by the DC Circuit Appeals Court in June 2021. However, that ruling did say some interesting things about common law access, and how it could theoretically be used to force Congress to hand over certain documents.

The ruling said the Speech and Debate Clause did not automatically create a presumed right to access congressional records. However, as the concurrence pointed out, this does not mean the right to access does not exist. Common law access under this legal theory should be subject to a balancing test that weighs the public’s concerns against congressional concerns and decides whether a record might be accessible via a common law claim.

That ruling prompted journalist Shawn Musgrave to make his own request for the CIA Torture Report, utilizing the common law access theory discussing in the Appeals Court ruling. Unfortunately, this attempt has met its first road block at the district level, as Sarah Wire reports for the LA Times.

District of Columbia District Court Judge Beryl Howell ruled that the report “does not qualify as a public record subject to the common-law right of public access” because while it was part of the committee’s investigation, it did not make recommendations or propose legislation.

The government interest in keeping the information secret outweighs public interest, Howell wrote.

“The Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure,” Howell said in her opinion dismissing the case.

The ruling [PDF] (which the LA Times inexplicably failed to post with its report) wraps up with Judge Howell deciding on behalf of the public that the public has already seen plenty and has no desire to access the full report.

As plaintiff acknowledges, see Pl.’s Mem. at 20, the Report contains highly classified information about the CIA’s detention and interrogation policies and procedures that would compromise national security if released, far outweighing the public’s interest in disclosure. Plaintiff also unpersuasively argues that the already-disclosed 500 pages of the Report are insufficient to bolster the public’s interest in reviewing more.

The DC court says no more Torture Report for you lot. You’ve got all the Torture Report you need and/or deserve.

This will, of course, be appealed. The DC Appeals Court was the court that first recognized this right to common law access. And there’s always a chance its application of the balancing test will side with the public, here represented by Shawn Musgrave. But, for now, another quest for the full report has dead-ended.

Filed Under: cia, cia torture report, common law access, freedom of information, shawn musgrave, torture report

There Have Been Decades Of Broadband Policy And Subsidies And We’re Only Just Now Accurately Measuring Their Impact

Broadband

from the can't-fix-what-you-can't-measure dept

This FCC this week formally announced it had finally started gathering more accurate broadband mapping data from U.S. ISPs after more than a decade of complaints about mapping accuracy.

“On June 30, the Federal Communications Commission opened the first ever window to collect information from broadband providers in every state and territory about precisely where they provide broadband services,” FCC boss Jessica Rosenworcel stated in a press release.

“For the first time ever, we have collected extensive location-by-location data on precisely where broadband services are available, and now we are ready to get to work and start developing new and improved broadband maps,” she added.

Think about that for a moment. Decades of broadband policy and programs, and countless billions in taxpayer subsidies, and we only just started accurately trying to figure out if those efforts actually made a difference. It’s not a landmark the gadget and gossip obsessed tech press will give much attention to, but it matters all the same.

We’ve noted many times how there’s an historic amount of money being thrown at the U.S. broadband “digital divide” this year. The broadband infrastructure bill alone designates $42 billion to expanding broadband access. Billions more in COVID relief money started flowing this week courtesy of the Treasury Department.

The problem: the government still doesn’t actually know where broadband is or isn’t available because U.S. broadband maps “stink,” as one senator put it a few years ago. They overstate speeds, availability, and competition, helping U.S. telecom monopolies obscure the market harms of mindless consolidation and the corruption that historically protects it.

The FCC only in the last few years finally started fixing its shitty mapping after Congress demanded it as part of the Broadband DATA Act. It demands the FCC use more crowdsourced data, do a better job confirming data delivered by ISPs, and utilize better methodology (the FCC long declared an entire census block “served” with broadband if an ISP claimed it could provide broadband to just one home in that census block).

There’s still plenty of work to be done. States tell me the FCC hasn’t yet really provided an effective way to let states challenge ISP data they know to be false (though the FCC is working on it). Big ISPs lobbyists are also working overtime doing everything they can to ensure looming subsidies go to them and not to smaller competitors or community broadband efforts.

Because the telecom lobby has successfully gridlocked the appointment of third Democratic Commissioner Gigi Sohn to the FCC, the agency may not be able to finalize a confirmation vote for the new maps, putting funding at risk. They also will lack the voting majority needed to meaningfully hold ISPs accountable should it be found they’re not cooperating with accurate data.

Still, given we’ve gone decades making policy and subsidy funding decisions based on little more than delusion and pipe dreams, the fact that government is even trying to take this seriously is a step in the right direction for broader broadband access and increased competition. You can’t fix a problem you can’t measure, and for decades U.S. broadband policymakers were in the dark.

Filed Under: access, affordable, broadband mapping, digital divide, dsl, fcc, high speed internet, telecom