Last week we noted how the FCC was acting incredibly suspicious in regards to its May claim that a DDOS attack, not annoyed John Oliver viewers, brought down the agency's website shortly after Oliver's latest rant on net neutrality. Despite pressure from journalists and several Senators, the FCC is simply refusing to release any data providing the existence of the attack, resulting in many media outlets not so subtly implying that the agency was lying:

"The FCC’s refusal to produce records of any true relevance reflects pressure from the agency’s upper echelon to limit the disclosure of information about the incident to a handful of carefully crafted public statements...It would be hard for a government agency to do more to give off the impression that it was engaged in a cover up. That’s troubling given the rise of questions over the FCC’s integrity.

As we noted last week, there are really only two options here. One, the FCC was attacked coincidentally at the same time John Oliver's program aired, it just failed to do any meaningful written analysis of the attack, and has zero interest in being transparent about it. Two, the FCC made up the attack completely to try to deflate all the talk about the "John Oliver effect" in the press, a misguided continuation of the agency's clear desire to downplay the massive public opposition to Pai's plan to kill net neutrality.

Based on the FCC's other recent behaviors in regards to ignoring comment fraud to this same purpose, it's fairly obvious the latter is a very real possibility. But with the FCC refusing to comply to FOIA requests, it's going to take some notable outside pressure to get to the truth. That's not going to be easy given that despite broad bipartisan support for the rules, ISPs have successfully convinced the public this is a partisan issue, which helps them stall meaningful discourse by bogging the entire process down in thinking-optional partisan patty cake.

Under the din of this dysfunction, Senator Ron Wyden was quick to highlight at the hearing that the FCC doesn't look particularly good here regardless of your political leaning:

"Senator Ron Wyden...stated in an email to Gizmodo that the agency’s response to Gizmodo’s FOIA request raised "legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline."

The Oregon senator said it was critical that the agency produce evidence of the attack, if only so independent experts could verify and learn something from it. He continued: "If the FCC did suffer a DDoS attack and yet created no written materials about it, that would be deeply irresponsible and cast doubt on how the FCC could possibly prevent future attacks. On the other hand, if FCC is playing word games to avoid responding to FOIA requests, it would clearly violate Chairman Ajit Pai’s pledge to increase transparency at the FCC."

The FCC's contention is that for fifteen hours after the attack, nobody sent an e-mail, wrote a memo, or documented this supposed attack in any fashion. And again, this lack of transparency about any of this is in stark contrast to FCC boss Ajit Pai's repeated, breathless claims that he was going to bring a new wave of transparency to the agency. This lack of transparency will become increasingly stark as the agency continues to gut popular, meaningful consumer protections -- leaving the only thing standing between you and your carrier's bullshit an unelected bureaucrat that believes anti-competitive behavior in the telecom sector isn't a real problem.

As most of you probably noticed, last week saw a massive, online protest against FCC boss Ajit Pai's plan to completely ignore consumer welfare and gut popular net neutrality protections. Giant ISPs like AT&T, Comcast and Verizon responded to the protest in the way they've always done: by comically insisting that the press somehow got it wrong, and these companies actually really love net neutrality -- despite a decade of documented anti-competitive behavior, and the fact they've spent millions upon millions of dollars trying to kill any meaningful neutrality protections.

AT&T took things a bit further by hysterically saying the company loved net neutrality so much, it too would be participating in the protest -- a PR ploy that was pretty soundly ridiculed by ourselves and others. But a deeper look at AT&T's "participation" in the protest found that AT&T used the opportunity to trick its customers into opposing real net neutrality protections -- and convinced many to root against their own self interests.

The Verge was the first to notice that AT&T spent the day sending e-mails and other notifications to customers professing the company's dedication to net neutrality. These missives even showed up on AT&T set top boxes, as several users noted on Twitter:

These notifications have several variations. But all of them directed AT&T customers to this AT&T website where they were informed that AT&T really loves net neutrality (narrator: they don't), and were told to fill out a form letter AT&T said it would forward on to "the FCC and your officials." But the letter doesn't actually support net neutrality. What it supports is the gutting of the existing popular protections and replacement with a Congressional law:

"Simply put, it is time to stop this regulatory see-saw. Consumers need a set of basic online protection and competition rules put in place that will last longer than the next Presidential administration. Congress should pass a law to ensure consumers are always protected and all internet companies compete on a level playing field under a single set of rules."

So in an ideal world, having Congress craft a net neutrality law makes sense -- especially since it would end the game of partisan patty cake that occurs every time a new administration takes office, potentially ending fifteen years of net neutrality debate. The problem, as we've noted several times, is that we don't live in an ideal world. We live in a world where Congress is bogged down in immense partisan dysfunction, and companies like AT&T, Verizon and Comcast have immense control over both federal and state-level lawmakers.

Their control is so complete, they're often the ones writing awful, anti-competition, protectionist state and federal telecom law. There's a reason AT&T wants to gut the existing, popular rules and replace it with a new law: it knows it will be the one writing it. As such, you can be certain the law -- assuming it got passed at all (not at all likely) would be filled with so many loopholes as to be utterly useless. Despite this grotesque corruption and dysfunction being fairly apparent to anybody with eyes, many reporters have bought into this argument for a new law.

Fortunately a few reporters have been able to see through AT&T's bullshit on this front:

This is all cleverly worded bullshit from people who actually want to dismantle a responsive regulatory agency and cede responsibility back to Congress, which is much slower to act and, where the ISPs are concerned, can be easily bought. All of these ISPs continue to say they love net neutrality with fingers crossed behind their backs.

Make no mistake: AT&T doesn't care about healthy internet competition, level playing fields, or consumer welfare. Its goal is to gut all meaningful oversight of one of the least liked, and least competitive industries in America, and replace it with the policy equivalent of fluff and nonsense. And while there's still many folks that somehow believe that blindly deregulating companies like Comcast will magically result in good ISP behavior and telecom utopia, history has shown us time and time again that logic only tends to make the problem worse.

There's a far simpler way to settle the issue and protect consumers and startups, and that's to leave the existing net neutrality rules alone.

Last year, the cable industry quietly launched one of the most misleading and successful lobbying efforts in the industry's history. The target? A plan concocted by the former FCC that would have let customers watch cable programming without having to rent a cable box or use a CableCARD. Given the industry makes $21 billion annually in rental fees off of this entrenched hardware monopoly, the industry got right to work with an absolute wave of disinformation, claiming that the FCC's plan would confuse customers, increase piracy, and was (with a little help from Jesse Jackson) somehow even racist (seriously).

At one point, the industry even managed to grab the help of the US Copyright Office, which falsely claimed that more cable box competition would somehow violate copyright. Of course the plan had nothing to do with copyright, and everything to do with control, exemplifying once again that for the US Copyright Office, public welfare is often a distant afterthought.

As part of this stage show, the cable industry also created a group specifically tasked with attacking the proposal. Dubbed the Future of TV Coalition, the group set forth to not only attack the FCC's plan, but to propose its own counter proposal it claimed made any cable box reform efforts at the FCC unnecessary. Dubbed the "ditch the box" proposal, the cable industry and the Future of TV Coalition breathlessly stated the industry (pdf) was already cooking up ways to help consumers avoid rental fees have greater choice, and that these efforts were already well underway:

"This new “Ditch the Box” approach calls for binding, enforceable obligations for major TV providers to allow customers to ditch their set-top boxes and access live and on demand programming via boxless apps compatible with a wide range of retail devices, including smart TVs, game consoles, streaming devices, laptops, tablets, phones, and more...Providers will have two years to fully implement the new requirements – and many are already racing to do so sooner."

That was then, this is now. Shortly after Trump's election win, the new Ajit Pai led FCC quickly moved to scuttle the plan. And not too surprisingly, the cable industry's counter plan to make lives better for consumers never actually materialized, and appears to have been mothballed:

"The Future of TV Coalition has gone silent — it last tweeted Nov. 28 — the cable industry’s trade group NCTA hasn’t had much to say about it either. NCTA spokesman Brian Dietz wrote in an e-mail that Ditch the Box was pitched as “an “alternative” to the Wheeler’s original proposal. Without the FCC’s acceptance of Ditch the Box, that plan got ditched."

So without somebody actively pressuring an uncompetitive sector to stop being uncompetitive, they continue to be uncompetitive. Who could have possibly predicted that? Of course the cable industry continues to pay empty lip service to the idea of choice and freedom, all the while continuing efforts to make actual consumer choice on this front as difficult and expensive as ever (see Comcast's decision to charge users a completely unnecessary fee just to use a Roku as a cable box, or cross-industry efforts to use unnecessary broadband usage caps and overage fees to drive up the cost of streaming via their competitors).

The cable industry falsely believes this is all an ingenious plan to keep its traditional cable TV cash cow alive indefinitely. But as the continued and accelerating rate of TV cord cutting illustrates, the cable sector isn't going to be nearly as impervious to market evolution as it likes to believe.

The Santa Maria (CA) Police Department -- like the FBI -- is in the fake news business. Last February, it issued a bogus press release via online service Nixle, falsely stating it had apprehended two suspects. This was picked up by local news sources and redistributed. It wasn't until until December that the ruse was uncovered. The Sun -- which hadn't released a story on the bogus press release -- discovered this fact in a pile of court documents. (h/t Dave Maass)

Police allege in the court documents that members of the local MS-13 gang planned to kill the two men, referred to in court documents as John Doe No. 1 and John Doe No. 2. Police had gleaned this information from telephone surveillance on several suspects in the case, according to the documents. The police acted by putting out the false press release, expecting local news media to report the fake story and the MS-13 gang members to stop pursuing the John Does.

The police chief confirmed the PD had issued the fake press release knowingly. He also remained unapologetic, stating that misleading journalists served a greater good: keeping two gang targets alive. He has yet to remove the bogus press release from Nixle, even though it violates the service's terms, which forbid knowingly publishing "fraudulent, deceptive, or misleading communications."

[S]anta Maria Police Chief Ralph Martin wasn’t aware what the terms of service were or that they existed when initially asked by the Sun. At first, Martin said he’d more than likely take the press release down, but then he changed his mind.

“I don’t have any plans to take it down,” Martin said, adding that he has yet to be notified by Nixle. “If it violates their policy then it’s Nixle’s policy to contact us.”

The department has also refused to apologize to the news services it misled, most of which rightly feel this diminishes the public's trust in its public servants.

According to Chief Martin, it was a "moral and ethical" decision to lie to the public. He also says this is the first time in his 40 years as a cop he's seen this sort of thing done. Of course, it's now much more difficult to take this assertion at face value, especially when Martin's refusing to remove fake news from a site after it's already served its purpose.

This may be the first time the Santa Maria PD has deceived the press, but it's certainly not the first time it's deployed fake "facts" as a means to an end. The Sun reported earlier the PD had -- on multiple occasions -- presented fake sworn affidavits and statements to criminal suspects in hopes of provoking confessions or securing plea bargains.

Police reports obtained by the Sun verified [Jesus] Quevedo’s claims, showing SMPD Gang Task Force officers had indeed presented Quevedo with a search warrant issued by Judge Beebe on April 15, with a false document included.

“I had previously prepared a ruse affidavit,” [Detective David] Cohen wrote in his report in Quevedo’s case. “The ruse affidavit contained details of two crimes for which Quevedo was being investigated. Many of the details were true, and many were fabricated.”

The ruse highlights several actual unsolved robberies, including a home invasion in Santa Ynez, where an eyewitness describes a man matching Quevedo’s characteristics fleeing the scene. A mugshot of a smiling Quevedo is circled with a “100%” marked over his name, indicating the victim of the invasion also had positively identified Quevedo as the robber.

Other fabrications include an anonymous neighbor seeing a car matching Quevedo’s parked outside the scene of one of the robberies, as well as statements from confidential citizens alleging Quevedo’s strong ties to the Mexican Mafia.

Other convicts have contacted The Sun claiming to have been subjected to the same ruse. Those claims are probably as trustworthy as the police chief's, but evidence appears to show this ruse has not only been used more than once, but that the District Attorney's office feels it's a perfectly legal strategy.

Asked to comment, the Santa Maria Police Department referred all questions regarding Quevedo’s case—and the ruse tactic in general—to Chief Deputy District Attorney Steve Foley and Deputy District Attorney Bramsen. Bramsen did not return phone calls from the Sun, though Foley confirmed Cohen had met with Bramsen before employing the ruse.

“Our office was consulted by the police department on this particular ruse,” Foley said. “The police did in fact say, ‘Would this be a legal ruse?’ and [Bramsen] researched it and felt, based on her legal research, it was a legal ruse.”

The DA's office clarified it had simply said the fake affidavit plan was legally in the clear, but it had never told the PD to follow through with it… as if there were really any distance between those two stances. The office maintains this is all part of its "ethical" prosecution of lawbreakers.

It also said, ridiculously, that attempting to trick people into confessions or plea agreements with fake witness statements and fake evidence isn't actually an attempt to trick people into confessions or plea agreements.

In a written opposition to the motion, the DA argued there was nothing improper about the use of the ruse affidavit in Quevedo’s case, because prosecutors and police never intended the document to be used in court, either to obtain a search warrant or to coerce a false confession.

Ah. The PD was only interested in coercing a true confession. I guess that makes it ok.

Or not. The judge presiding over Quevado's case didn't find it quite as legally-acceptable as the DA did.

While the judge stopped short of issuing any sanctions against Cohen, Parker, or the DA’s office, she ruled all evidence obtained through the use of the ruse affidavit would be inadmissible in Quevedo’s case.

“The police can do a lot of things,” she said. “But when they use a false affidavit, intending for it to be believed as true, with the judiciary’s signature, that conduct cannot be tolerated.”

If the PD feels the ends justify the deceptive means, how exactly does it justify making its own evidence inadmissible? If the "end" is to get criminals off the street, how does undercutting the prosecution achieve that end?

The public isn't just being deceived by fake press releases. It's being deceived about the effectiveness of its law enforcement agencies, who are willing to damage their own cases in their hurry to file charges and commence prosecutions.

We've already made our views clear on the horrible nature of the Trump administration's ban on travelers who were born in seven predominantly Muslim countries. The administration has been trying to defend the program, but its talking points are (once again) falling apart. For example, the idea that this only "inconvenienced" a tiny percentage of people and was only temporary — government lawyers have now revealed that over 100,000 visas were permanently revoked. Permanently.

But the story that's gotten a lot more attention is how Trump aide Kellyanne Conway went on TV last night and tried to back up another talking point: that this is no different than what President Obama did with Iraqi visas. That's not true, but we'll get to that. Even if it were true, Conway seemed to literally make up a terrorist attack that didn't happen, calling it the "Bowling Green Massacre."

Of course, there was no such massacre. This has resulted in lots and lots of social media mocking about the "massacre" that didn't exist. Some of the mocking is actually quite funny. And, of course, you might want to go donate to the Bowling Green Massacre Fund to support the victims.

Conway, of course, has said that she merely misspoke and had meant to say "Bowling Green terrorists" and then further pointed to a 2013 article about the two arrested Iraqis, claiming that it was a sign that "dozens" of terrorists could live in the US as refugees.

Even ignoring the ridiculous massacre claim, and accepting the idea that she just meant to say "terrorists", absolutely everything about this story fails to make her point unless you actively distort it. Let's dig in:

• The two Iraqis were "terrorists" set to carry out a bombing plot. Nope. It turns out that the two guys arrested were involved yet another of the FBI's "own plots." If you're new to this, for years we've covered how the FBI (rather than actually taking on criminal activity) has been inventing its own fake terrorist plots, and then using undercover agents and informants to bully dupes into "joining" the non-existent, FBI-created, FBI-financed, FBI-supplied "plots." We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again (so don't go in the comments and ask why this story is on Techdirt...)

  And the "Bowling Green Terrorists" story is the same exact thing all over again:

  From that fall through the following spring, the FBI informant invited Alwan to participate in 10 operations to send weapons or money to Iraq.

• There was no bombing plot against Americans. The FBI's "own plot" here didn't even involve attacks on America. It was just about sending (non-existent) money and weapons to Iraq:

  ...throughout their interactions with undercover FBI agents in 2010 and 2011, Alwan and Hammadi never discussed plans to attack anyone or cause destruction on U.S. soil. And while they were found guilty of attempting to provide material support to al Queda militants back in Iraq, the men never indicated that they were personally in contact with any militants, attempted to procure weapons for such individuals, or attempted to provide any of their own money to such individuals. Rather, they showed up when and where the FBI informant told them to and helped physically load decoy supplies into whatever they were allegedly being shipped from.

• There was never any support for the claim that they were part of a larger cell of terrorist refugees: Again, this was a tiny "plot" manufactured by the FBI to send weapons and money to Iraq, not to attack the US. And while Conway has been blowing up Twitter by claiming this ABC story proves that other refugee "terrorists" were here, that article is from 2013, and not a single other person has been arrested, no other terrorist plots associated with refugees (real or fake) have been found or (more importantly) taken place.

  Hell, even former DOJ spokesperson Matthew Miller pointed out that the ABC story "is garbage":

• Conway claimed that the media didn't report on the Bowling Green situation... but her proof that it happened is pointing to an article from ABC. Enough said on that.

• What Obama did in response to that was different: This has been a key talking point for those supporting the ban. They claim that no one complained about Obama "ban" for six months on people from Iraq in response to the Bowling Green "terrorists." Except that's simply false. As has been carefully reported in a ton of places, what President Obama did in 2011 was entirely different. There was no ban. There was no stoppage. A single type of visa just had more stringent vetting put in place that briefly slowed the throughput of applications. If you want the most thorough explanation I've seen for just how different the two situations are, read the analysis at Foreign Policy Magazine.

• Even if President Obama had done the same thing, people should still be upset: Because banning all people from a certain country or set of countries without a specific reason or threat, and (in the process) wreaking havoc on the lives of tons of people, including permanent residents and American citizens, deserves to be condemned as simply cruel.

In summary, Kellyanne Conway is using a non-existent "Bowling Green Massacre" to defend an inhumane policy, based on falsely arguing that two refugees, who were ensnared in a plot created by the FBI to send fake money and fake weapons back to Iraq (and not to attack America), were the tip of the iceberg of a bunch of refugee terrorists (who didn't actually exist) planning to attack America (which never happened) and because of that fake plot, fake massacre and fake terrorists, President Obama similarly banned people from Iraq -- which was something he didn't do. Is that about the sum of it?

Over the years, we've noted how AT&T has a nasty habit of lying to sell the public, press and regulators on the company's neverending attempts to grow larger. Whether it's promising broadband expansions that never arrive, or using astroturf to try and argue anti-consumer mergers are good for toddlers, AT&T's lobbyists, lawyers, and policy tendrils work tirelessly to argue that up is down, black is white, and any skepticism of its claims are unfounded hysteria. As we saw with the blocked T-Mobile merger, this sort of behavior doesn't work quite as well as it used to.

Enter AT&T's latest $85 billion planned acquisition of Time Warner. Consumer advocates worry AT&T could use its size and leverage to make content more expensive, while the usage caps and zero rating give AT&T's own upcoming streaming video service an unfair market advantage. Wall Street hasn't exactly been bullish on the idea either, noting how AT&T's $69 billion acquisition of DirecTV, followed by its $85 billion acquisition of Time Warner is not only a giant risk on the eve of the cord cutting revolution, but it saddles AT&T with an absolute mountain of debt that will potentially damage the company's credit rating.

But AT&T being AT&T, the telco is already busy trying to claim the merger will create all manner of amazing consumer benefits. One of the top early claims is that buying a massive media empire will somehow speed up AT&T's fifth-generation (5G) wireless deployments:

"Stephenson this week tried to claim that the $85 billion acquisition of a broadcaster will somehow speed up the company's deployment of fifth generation (5G) wireless broadband. "We would probably have a desire to move faster on 5G, certainly not slower," Stephenson claimed on the company's earnings call this week. AT&T CFO John Stevens agreed, claiming that the massive deal "brings us a lot more financial flexibility... or revenue enhancements and growth that will allow us to fund 5G."

Except that 5G is an evolutionary step up for wireless, one AT&T was unquestioningly-dedicated to before this merger was even announced. AT&T doesn't really have a choice in working toward 5G, which doesn't even have an official standard yet -- and likely won't see any meaningful commercial deployment until 2020. As for "financial flexibility," buying a massive media empire, saddling yourself with debt, having your credit downgraded and potentially hamstringing your ability to participate in current spectrum auctions -- doesn't magically make your wireless network appear more quickly.

AT&T also appears to be trying to convince the press, public and regulators that the deal is somehow making it possible for AT&T to launch its new "DirecTV Now" streaming service, which is expected to launch this Friday. AT&T executives have been claiming repeatedly that the service's $35 per month price point is somehow thanks to a merger that technically doesn't even exist yet:

"AT&T CEO Randall Stephenson today defended his company's proposed acquisition of Time Warner, saying that critics who claim the merger will raise prices are "uninformed." As proof, he said the AT&T-owned DirecTV will soon launch a $35-per-month streaming service called DirecTV Now.

"I'm not surprised [by the criticism]. They're uninformed comments," Stephenson said in response to a question from Wall Street Journal editor Rebecca Blumenstein at the newspaper's WSJDLive Conference. "Anybody who characterizes this as a means to raise prices is ignoring the basic premise of what we're trying to do here, again a $35 product we bring into the market."

Right, except this new streaming service was actually first announced eight months ago. And the licensing contracts supporting this $35 price point (which you know won't be anywhere near $35 once AT&T saddles it with fees and caveats) were already in place long before the merger was even announced. While AT&T is surely going to get better rates for content now that it owns the cow, there's absolutely no historical evidence to suggest that savings will be passed on directly to the consumer. If anything, consumers could pay more as AT&T uses its broadband mono/duopoly power to try and hamstring streaming alternatives.

This is just AT&T getting warmed up. Over the next few months, media outlets will be hammered with op-eds from lawyers, lobbyists, politicians, policy wonks, "consultants" and think tankers (all with undisclosed financial ties to AT&T) happily claiming that this new merger will cure cancer, protect toddlers, and keep the nation's puppies warm and happy. And while it's understandable that ISPs want to get into content and ads as broadband growth slows, the $150 billion spent on DirecTV and Time Warner could have brought fiber optic connections to American homes several times over.

For the better part of the last decade, wireless carriers have had an often vicious, adversarial relationship with the dictionary. More specifically, they've struggled repeatedly with the definition of the word "unlimited," often pitching data services that proclaim to be unlimited, only to saddle users with onerous, often confusing restrictions. For the last decade, regulators have tried to cure them of this behavior, from Verizon paying $1 million to New York's Attorney General in 2007, to the FCC fining AT&T $100 million last year.

Yet despite repeated warnings, the problem persists. Case in point: this week the FCC announced it had struck a $48 million settlement with T-Mobile (pdf) for advertising unlimited data plans without making it clear the limitations of these connections. More specifically, the FCC says T-Mobile didn't clearly inform consumers that these "unlimited" lines would be throttled during periods of network congestion, or after users consumed 17 GB of data in any given month:

"The FCC’s investigation found that company policy allows it to slow down data speeds when T-Mobile or MetroPCS customers on so-called “unlimited” plans exceed a monthly data threshold. Company advertisements and other disclosures may have led unlimited data plan customers to expect that they were buying better and faster service than what they received. The Commission’s 2010 Open Internet transparency rules require broadband Internet providers to give accurate and sufficient information to consumers about their Internet services so consumers can make informed choices."

All told, T-Mobile will pay a $7.5 million fine and dole out $35.5 million in "consumer benefits" (mostly just minor discounts on select hardware and plans) from T-Mobile and its prepaid subsidiary MetroPCS. This will, the FCC insists, surely teach T-Mobile a lesson about marketing unlimited data tiers that aren't:

"Consumers should not have to guess whether so-called ‘unlimited’ data plans contain key restrictions, like speed constraints, data caps, and other material limitations,” said FCC Enforcement Bureau Chief Travis LeBlanc. “When broadband providers are accurate, honest and upfront in their ads and disclosures, consumers aren’t surprised and they get what they’ve paid for. With today’s settlement, T-Mobile has stepped up to the plate to ensure that its customers have the full information they need to decide whether ‘unlimited’ data plans are right for them."

While this sounds superficially nice, there are a few problems with the FCC's move here. For one thing, the FCC has been making it abundantly clear that it's ok to sell "unlimited" plans with all manner of misleading limits -- you just have to make sure your marketing fine print makes those limitations clear. And while that's good, these kinds of wrist slaps clearly aren't working. And just ensuring transparency is not the end of this particular conversation.

For example, T-Mobile's and Sprint's newest plans, which the FCC hasn't raised a peep about, offer users "unlimited" connections, but throttle all games, video and music unless users shell out a monthly premium if they actually want these services to work as intended. That's a fairly obvious violation of net neutrality principles and an abuse of the word "unlimited," yet the FCC has made it abundantly clear it thinks this sort of behavior is perfectly ok. In other words, you can be a misleading cheat. You just have to make it clear you're a misleading cheat via fine print in your three-hundred page terms of service.

We've noted repeatedly how the FCC simply refuses to acknowledge how usage caps and zero rating are causing significant problems, and it doesn't look like it's an issue that's going to get fixed anytime soon. While current FCC boss Tom Wheeler's pro-consumer bent was a surprise to many (especially given his cable and wireless lobbying past), there are growing signs that his tenure will be up at the end of the year. And given the particular leanings of both Trump and Clinton, there's certainly no guarantee his replacement will have the political courage to stand up for consumers and finish what Wheeler started.

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As we pointed out earlier this week, it's pretty obvious that the Justice Department lied to a federal magistrate judge in saying that it had exhausted all possible opportunities to get into the work iPhone of Syed Farook, given that it has now put the case about it on hold to test out a "new way" to get into the phone. The DOJ had made a filing claiming that Apple's help was the only way to get into the phone, yet now is saying that's probably not true. However, the FBI is insisting that the DOJ wasn't lying. In a letter to the Editor at the Wall Street Journal, FBI Director James Comey reacts angrily to a similar opinion piece at the WSJ suggesting the DOJ lied:

You are simply wrong to assert that the FBI and the Justice Department lied about our ability to access the San Bernardino killer’s phone. I would have thought that you, as advocates of market forces, would realize the impact of the San Bernardino litigation. It stimulated creative people around the world to see what they might be able to do. And I’m not embarrassed to admit that all technical creativity does not reside in government. Lots of folks came to us with ideas. It looks like one of those ideas may work and that is a very good thing, because the San Bernardino case was not about trying to send a message or set a precedent; it was and is about fully investigating a terrorist attack.

James B. Comey

It's difficult to take much of that at face value -- especially as the government continues to push for similar court orders in other cases. And especially as Comey has been whining on and on about "going dark" for well over a year and a half now. At the very least, it does seem clear that the FBI failed to truly explore all possible options. As some iPhone forensics folks have noted, if this were truly a brand new solution, the FBI would need a hell of a lot more than two weeks of testing to make sure it really worked.

In the meantime, I'd heard from a few folks, and now others are reporting as well, that the assumptions that many had made about the Israeli company Cellebrite providing the solution are simply not true -- along with the idea that the solution involves reflashing the chip. The FBI itself now says it's a "software-based" solution.

FBI Director James Comey, in response to a reporter's question at a briefing, said making a copy of the iPhone’s chip in an effort to circumvent the password lockout “doesn’t work.” Comey wouldn't identify the company that's helping it or discuss details of the technique.

[....]

Law enforcement officials speaking on background debunked another report that had named Israeli forensics firm Cellebrite as the mystery firm helping it break into the phone.

Of course, this is after Cellebrite got a ton of free publicity from press reports claiming that it was the company (all of which was based on a few rumors from within the forensics world): At this point it's not clear that you can trust the FBI or DOJ on anything about these issues, as they've managed the messaging very, very carefully, and at times have made statements that are somewhere in that gray zone between "misleading" and "outright lies." But Comey's actions over the last year and a half make it quite clear that this is not just about this one iPhone and he very, very much wants a precedent that will effectively stop the possibility of encryption that the FBI can't easily circumvent.

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Remember the Senate Intelligence Committee's massive CIA torture report, that details how the CIA conducted a vast program of torturing people, which had no actual benefit, and then lied to Congress (repeatedly) about it? The same report that, when the heavily redacted executive summary was released, ex-CIA officials insisted would result in attacks on America that never actually happened?

This was also the same CIA torture report that the CIA vehemently disagreed with. Even prior to the (again, heavily redacted) executive summary being released, CIA Director John Brennan had responded to the report, insisting that it was full of lies and misleading claims. That initial response, which happened in the summer of 2013 took issue with many of the claims in the report. When the redacted executive summary of the report was finally released, the CIA apparently publicly posted a "correction" about its claims concerning the report, in which it noted that many of the statements the CIA had made in attacking the torture report were actually... not true.

And here's the real kicker: while the CIA "released" this "correction" on its website as a "note to readers" it didn't actually tell anyone about it. Instead, just as everyone was talking about the release of the executive summary of the terror report, and claiming that the CIA was contesting a bunch of key findings in the report, the CIA had actually posted a document on its own website detailing how its own denials were basically wrong. And some of them were big denials -- including about the effectiveness of the torture program on Khalid Shaykh Muhammad (KSM). A key part of the Senate's report was that KSM was repeatedly tortured, but didn't cough up anything particularly useful. The CIA vehemently denied this and insisted that what KSM gave them was useful. But in this "note to readers" (again, which was never revealed to anyone), the CIA admits that it clearly overstated the value of KSM:

Rather than "the individual managing the plot," we should have written "the individual who was in a position to advance the plot." This terrorist had raised Canary Wharf as a potential target and was tasked by KSM to conduct surveillance of Heathrow Airport's security, but the plot was shelved after KSM's arrest....

... Instead of "KSM provided information on an ai-Qa'ida operative named Zubair. .. ," we should have written that "KSM provided information that led us to understand the significance of a Jemaah lslamiya operative named Zubair." We acknowledge that in various representations, including President Bush's 2006 speech, CIA introduced a sequencing error regarding Majid Khan's arrest/debriefings, and KSM's arrest/debriefings. We repeated that error here and on page 26 of Tab C (see next erratum). However, despite that error, our description of the impact of the information acquired from KSM in the Hambali case remains accurate. It was the combination of information from both terrorists that caused us to focus on Zubair as an inroad to Hambali....

... In our review of this case, we correctly acknowledged that CIA allowed a mistaken claim that KSM played a role in Majid Khan's capture to appear in the Inspector General's 2004 Special Review, and we correctly wrote that this claim was a one-time error. However, our effort to provide an example of a more accurate "typical representation" of the relationship between KSM's information and Khan ran afoul of the sequencing error noted in the previous erratum. Although information from KSM was used to elicit further details from Khan, by then Khan already had provided the information that, together with what we learned from KSM, enabled us to advance our search for Hambali....

...We incorrectly stated that KSM's information preceded Majid Khan's information. We stand by our overall conclusion regarding the value of KSM's information.

In other words, a bunch of things the CIA insisted were inaccurate in the Senates Torture Report were actually quite accurate, and it was the CIA that was being inaccurate. And, sure, the CIA "admitted" this in its "note to readers" but then failed to actually tell anyone about this "note to readers." In fact, while the document was available on the CIA website no one even seemed to notice it until a few days ago. And that includes the Senate Intelligence Committee.

The document, entitled “Note to Readers,” was not formally provided or flagged separately for the Senate Intelligence Committee, which only became aware of its existence in the last week — more than a year since the document was publicly posted.

The “Note” was also noticeably absent from the CIA website’s swath of December 2014 releases related to the Intelligence Committee study, and was not mentioned in either of the agency’s archived press releases on the subject.

Not surprisingly, Senator Ron Wyden, who has been one of the leading voices in getting this report out to the public, was not at all pleased to find out about all of this:

“The CIA justified this program by claiming that it produced otherwise unobtainable information. CIA officials have now admitted their go-to example was wrong,” Sen. Ron Wyden, a prominent Democrat on the Intelligence Committee, told BuzzFeed News.

“These are significant admissions by the CIA that should not have been hidden in an obscure endnote,” Wyden said. “Director Brennan has tried to insist that the CIA did not provide policymakers with false information about torture, but these corrections seem to be an admission that they did so, and did so repeatedly.”

It still seems worth asking why President Obama continues to allow CIA Director John Brennan to retain that role. He appears to have no problem letting him get away with lying and purposeful obfuscation over activities of the CIA to the Senate Committee that is in charge of overseeing the CIA.

The recent Snowden documents published by the New York Times and ProPublica confirm the close relationship between AT&T and the NSA, which would explain the deafening silence the company issued in response to the first few months of leaks. (Such "partnerships" likely exist with Verizon and other providers, although nothing has been directly confirmed by leaked documents, and such partnerships may have done a bit of "dissolving" shortly after the leaks began.)

But the documents also highlighted the difference between what NSA officials claimed they were getting and what they were actually getting from telcos. In early 2014, officials claimed they were only obtaining between 20-30% of domestic call records. According to unnamed "current and former officials," the explosion of cellphone use was leaving the NSA's bulk collection programs in the dust.

These documents show there's a huge discrepancy between the unofficial "official" statements and the NSA's actual capabilities, as the ACLU's Kade Crockford points out.

The New York Times reports on documents disclosed by former NSA contractor and whistleblower Edward Snowden:

"In 2011, AT&T began handing over 1.1 billion domestic cellphone calling records a day to the N.S.A. after “a push to get this flow operational prior to the 10th anniversary of 9/11,” according to an internal agency newsletter. This revelation is striking because after Mr. Snowden disclosed the program of collecting the records of Americans’ phone calls, intelligence officials told reporters that, for technical reasons, it consisted mostly of landline phone records."

I must quibble a bit with the New York Times excellent reporting here, only to suggest that what's "striking" about the discrepancy between what journalists reported and the truth isn't the fact that the NSA would lie to journalists. What's striking is that journalists continue to print official, often anonymous claims about government surveillance programs without a shred of evidence that those claims are true.

This has long been the problem with journalists' reliance on "unnamed government sources." Without a name to attach the statement to, no one can be held accountable for lying to the American public. While many sources would not comment at all without the protection of anonymity, the statements issued are seldom questioned by entities with an obligation to challenge anonymous assertions.

On the other hand, emptywheel's Marcy Wheeler points out these claims may have an element of truth, but only because Snowden's leaks and problematic cell location data (which isn't specifically covered by Section 215) was preventing the agency from collecting all it wanted to, or perhaps all it used to.

We know from the Congressional notice AT&T was willing to strip [location data]. For a lot of reasons, it’s likely Verizon was unwilling to strip it.

This is one of the possible explanations I’ve posited for why NSA wasn’t getting cell data from Verizon, because any provider is only obliged to give business records they already have on hand, and it would be fairly easy to claim stripping the cell location data made it a new business record.

Which is another important piece of evidence for the case made against AT&T in the story. They were willing to play with records they were handing over to the government in ways not required by the law.

Though who knows if that remain(ed) the case? To get to the 30% figure quoted in all the pieces claiming NSA wasn’t getting cell data, you’d probably have to have AT&T excluded as well. So maybe after the Snowden releases, they, too, refused to do things they weren’t required to do by law...

So, it could very well be that the NSA wasn't getting all the cell records it wanted to, making these claims mostly factual. But the Wall Street Journal and New York Times both attribute quotes to "former officials" as well, which would include officials in place prior to the Snowden leaks. If the leaks resulted in a sudden reluctance to provide these records, it would only have occurred after June 2013. The questionable statements were made in the first few months of 2014. That's not much of a gap, especially if former officials are speaking from their personal experience.

Maybe the NSA was only getting 20-30% of what it was seeking. Or maybe it only wanted to give that impression. Nothing about the statements reflect a sudden downturn in collections. Instead, they portray it as an ongoing problem. The underlying issue is the secrecy of surveillance programs, which leads to statements that can't be confirmed (or refuted) until evidence is provided. And these officials aren't going to hand out this info. It has to come from whistleblowers and leakers. The government can skate by on lies and misperceptions, especially when national security is involved.