by Mike Masnick
Wed, Aug 6th 2014 3:36pm
by Mike Masnick
Thu, Jul 31st 2014 7:51am
from the not-so-fast-with-that-'network-optimization' dept
I am deeply troubled by your July 25, 2014 announcement that Verizon Wireless intends to slow down some customers' data speeds on your 4G LTE network starting in October 20 14. Your website explained that this was an extension of your "Network Optimization" policy, which, according to your website, applies only to customers with unlimited data plans. Specifically, Verizon Wireless "manage[s] data connection speeds for a small subset of customers - the top 5% of data users on unlimited data plans" in places and at times when the network is experiencing high demand. Verizon Wireless describes its "Network Optimization" as "network management."The letter then has a list of questions it is expecting Verizon to answer concerning this program. The third question may be the most important:
"Reasonable network management" concerns the technical management of your network; it is not a loophole designed to enhance your revenue streams. It is disturbing to me that Verizon Wireless would base its "network management" on distinctions among its customers' data plans, rather than on network architecture or technology. The Commission has defined a network management practice to be reasonable "if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service." Such legitimate network management purposes could include: ensuring network security and integrity, including by addressing traffic that is harmful to the network; addressing traffic that is unwanted by end users (including by premise operators), such as by providing services or capabilities consistent with an end user's choices regarding parental controls or security capabilities; and reducing or mitigating the effects of congestion on the network. I know of no past Commission statement that would treat as "reasonable network management" a decision to slow traffic to a user who has paid, after all, for "unlimited" service.
How does Verizon Wireless justify this policy consistent with its continuing obligations under the 700 MHz C Block open platform rules, under which Verizon Wireless may not deny, limit, or restrict the ability of end users to download and utilize applications of their choosing on the C Block networks; how can this conduct be justified under the Commission's 2010 Open Internet rules, including the transparency rule that remains in effect?This is, in some ways, a follow up to Wheeler's letter last week, in which he reminded access providers of those transparency rules. Wheeler has shown, a few times, that he's willing to speak up against the actions of some of the broadband companies, which is a shift from previous FCC chairs. Of course, many are still reasonably skeptical about how much bite there is behind the bark, but it's at least a marginally good sign that he's paying attention and worried about this plan.
Still, remember, that the "open internet rules" leave out wireless networks, a massive loophole that many of us warned about all along. However, in the current proposal, Wheeler did ask about whether the rules should extend to mobile operators as well, and this letter is a pretty clear signal that he sees very clear reasons to include such networks in the final rules.
by Tim Cushing
Wed, Jul 30th 2014 3:39am
DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts
from the seriously,-stop-being-assholes-about-this dept
With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.
City officials who conduct public business on personal email accounts must turn their personal emails over in response to a Freedom of Information Act request, according to a recent, first-of-its-kind ruling in D.C. Superior Court.The district's attorneys tried to argue that the neighborhood advisory commission's emails (at least those routed in and out of Commissioner Dianne Barnes' personal account) were exempt from FOIA requests because the account used wasn't a district-owned account, but the judge wasn't buying it.
The July 9 order by Judge Stewart Nash brings the District into line with the majority of states that have addressed the issue, signaling an emerging trend in favor of government transparency—if not an end to efforts to work around disclosure laws.
"This argument requires the Court to ignore Ms. Barnes’s position as Commissioner of the ANC," the judge wrote. "To the extent that Ms. Barnes is acting in her capacity as Commissioner of the ANC, then communications made or received by her would be communications of the ANC, irrespective of whether such communications were associated with her personal e-mail account."Public officials (like former New York City mayor Mike Bloomberg) have tried to keep certain communications out of the hands of the public by using personal devices and email accounts. To a certain extent, this has worked. But many states have established policies in order to close this loophole, basically stating that it doesn't matter where the communication originates but what the subject matter is.
As that view has been challenged, states have increasingly found that the content, not the ownership of the device or account, is the determining factor of whether a communication about public business is subject to FOIA disclosure laws, according to the peer-reviewed journal Communication Law and Policy.Which is as it should be. The Freedom of Information law was created to help the public hold their representatives and public servants accountable, as well as to provide insight to the how and why of government activity. Routing around this by using personal devices cuts the public out of the loop. A government that often argues "nothing to hide" means "nothing to fear" certainly seems to be doing a lot of hiding, leading directly to people questioning what exactly it has to fear. Considering these are people in seats of power, these deliberate attempts to hide public communications is, at the very least, misconduct, if not actual cowardice.
Judge Nash's earlier verbal order for the district to turn over the requested emails was ignored. Now, it's in writing. Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.
by Tim Cushing
Tue, Jul 29th 2014 7:51am
CIA Tells FOIA Requester That He Needs To Know Everything About The Emails He's Requesting Before He Can Request Them
from the using-the-rarely-seen-tautology-exemption dept
More FOIA-related nonsense, this time from the CIA. Michael Morisy, co-founder of MuckRock, sent a request for internal emails discussing (rather ironically) the fact that the CIA's "FOIA Portal" seems to suffer from extended periods of downtime.
This is a request under the Freedom of Information Act. I hereby request the following records:Given the agency's disdain for the FOIA process (second only to the NYPD), I'm sure this sort of outage is viewed as a feature, not a bug. But whatever internal musings the CIA had about its FOIA portal issues will apparently be staying internal for the time being.
A copy of emails sent to or from the CIA's FOIA office regarding the FOIA Portal's Technical Issues.
According to the CIA's current FOIA website: "FOIA requests cannot currently be made online due to technical issues. Requests can still be submitted via the US Postal Service and facsimile."
Please also include any attachments to these emails.
The CIA rejected Morisy's request in full, basically stating that searching for emails is hard work and that the requester could have at least bothered to know exactly who was talking about the portal issues and exactly when they were doing it before making the request.
The FOIA requires requesters to "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement. We require requesters seeking any form of "electronic communications" such as emails, to provide the specific "to" and "from" recipients, time frame and subject. We note that you have provided the subject only. Therefore, we must decline your request.Obviously, a FOIA requester isn't going to know these sorts of specifics beforehand, hence THE REQUEST FOR INFORMATION. As MuckRock's JPat Brown points out, Twitter user Mythosopher had perhaps the best response to this refusal...
You can't see any emails or know who sent or received them. But you must request the exact email and who sent and received it.... along with this graphic:
The CIA has pretty much ensured many requests will be found too cumbersome to comply with. It used 2013's brief sequester as an excuse to shut down its office in charge of declassifying historical documents and fold it in with the FOIA department's steady stream of extension requests and denials. And the CIA joins an ever-lengthening list of federal agencies completely mystified by internal email systems. Oddly, this same government expects the US public to trust that agencies like the FBI, CIA, NSA and countless law enforcement entities will be able to find the needles in your personal email haystacks -- obtained in bulk with FISA court orders, NSLs or old-fashioned open-ended, non-specific warrants.
The CIA itself has already raided internal networks to root out Senate staffers and whistleblowers, but no one heard anyone complain about the lack of specifics making the job too tough to do. It's only when the public asks to dip into the government's business that these agencies suddenly start acting like the impossible is being demanded.
by Mike Masnick
Fri, Jul 25th 2014 12:12pm
EU Regulators Want Google To Expand Right To Be Forgotten Worldwide And To Stop Telling What Links Have Been Forgotten
from the worldwide-censorship dept
Either way, once Google started removing the requested stories, it did the right thing, alerting the websites that links were being removed. Of course, that just resulted in many of those publications writing about it, and bringing the original news back into the public eye.
In response to all of this, European regulators are apparently quite angry again, summoning representatives from Google, Yahoo and Microsoft (but mainly Google) to argue that the removals should be global, not just for Europe and that the companies should stop informing websites if their stories were removed. One hopes that these three companies would fight strongly against either such proposal. The idea that Europe can dictate how search engines in other parts of the world work is dangerous. We've already noted that a Canadian court seems to think it has similar powers, and that's going to create a huge mess. Any time courts and regulators in one country think they can dictate how websites work in other countries, that is creating a massive jurisdictional mess (where contradictory rulings may run into each other), as well as allowing oppressive states to claim they, too, have the right to dictate how the web works in more open countries.
As for blocking sites from being informed, that would clearly go against basic transparency principles, and lead to yet another huge mess for websites which will (quite reasonably) wonder why their stories have gone totally missing from Google searches (especially if forced to extend it around the globe).
Of course, the real problem here is with the original ruling. The idea that public information that is widely disseminated already can magically be made private because someone thinks it's embarrassing and that it's no longer important is simply a ridiculous assertion in the first place. All of the problems that have come in implementing this are because the initial premise -- trying to disappear public information -- is so messed up.
by Mike Masnick
Fri, Jul 25th 2014 12:35am
from the toothless dept
So, in theory, it might be nice if the FCC stepped in and told the broadband providers that they were clearly violating the transparency requirements by letting its border routers clog without revealing what they're really doing. But is there any chance that the FCC will pick up on that? Hell no.
As Karl Bode over at DSL Reports notes, the FCC has a very long history of letting broadband access providers be incredibly opaque in screwing over subscribers.
Yet as I've noted numerous times over the last decade, ISPs consistently are allowed to bury all manner of nonsensical fees below the line, allowing them to covertly jack up consumer broadband bills while leaving the advertised price the same. This is technically false advertising, but I've never seen the FCC (or any other regulator) seriously address the practice.Bode goes even further highlighting more fees, something we've discussed in the past as well. From there, he concludes:
The practice not only fools consumers into paying more for service, it skews telecom policy debate and discussion. Most international and domestic price analysis comparisons use the advertised price. The United States already has some of the most expensive broadband in the world (OECD data); imagine how we rank were one to include fees?
These days of course there's numerous activation, installation, router and modem rental fees, fees for paying your bill in person, fees for paying your bill via credit card over the phone, etc. These fees, usually communicated "transparently" via mouseprint, are all used to jack up the already-high price of US broadband and television services, but at least some of them are tied to actual costs incurred by the ISP. There's numerous other fees charged that involve companies doing absolutely nothing, and exist solely to pad the advertised price post sale.
Is letting these kinds of fees continue for a decade the kind of tough enforcement the FCC and Tom Wheeler are talking about? Before anybody can take FCC threats of tough transparency enforcement seriously, they'll need to address the fact they've let ISPs engage in aggressive false advertising on price for almost as long as broadband and television have existed.For pretty much as long as I've followed the FCC, it's bark has been much worse than its bite. It rarely does anything that it should actually be doing to protect consumers. It frequently talks a good game, but action rarely happens. And that's been true through at least the last four bosses. So it seems rather unlikely that any of the broadband guys are actually worried about the FCC's latest "warning."
by Mike Masnick
Tue, Jul 15th 2014 12:07pm
White House Spokesperson Insists Obama Is The Most Transparent President In History, Because... Visitor Logs!
from the you-said-what-now? dept
Of course, as many folks have been documenting for years, the reality has been anything but. The Obama administration has been ridiculously secretive for years, when it comes to FOIA requests, literally setting records in denying them. The NYT's former executive editor, who has covered many administrations, has directly noted that the Obama administration was the most secretive she could recall. Even federal judges have regularly dinged the administration for refusing to hand over documents required by law. As Stephen Colbert has noted, the administration is really only good at the most transparent bullshit legally allowed.
In fact, just as Mr. Earnest was insisting that the Obama administration was so damn transparent, Mother Jones had a good article about how often the Obama administration was making use of the "state secrets privilege" to get lawsuits tossed out, such as in various no fly list challenges. In 2008, then candidate Obama insisted that the use of the state secrets privilege by the government was dangerous. But, now that he's in charge, he's quick to use it himself:
In 2008, Obama griped that the Bush administration invoked the state secrets privilege "more than any other previous administration" and used it to get entire lawsuits thrown out of court. Critics noted that deploying the state secrets privilege allowed the Bush administration to shut down cases that might have revealed government misconduct or caused embarrassment, including those regarding constitutionally dubious warrantless wiretapping and the CIA's kidnapping and torture of Khaled el-Masri, a German car salesman the government had mistaken for an alleged Al Qaeda leader with the same name. After Obama took office, his attorney general, Eric Holder, promised to significantly limit the use of this controversial legal doctrine. Holder vowed never to use it to "conceal violations of the law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency of the United States Government."So, given all this evidence that the Obama administration is incredibly secretive, what could Earnest's reasoning possibly be? Well, you see, President Obama has released his visitor logs at the White House. Because, you know, that's what everyone really means when they talk about White House transparency.
Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list.
Earnest noted that previous administrations had “gone to the Supreme Court” to prevent the release of White House visitor information, but that the Obama administration “releases it voluntarily on the Internet on a quarterly basis.”So, the President has made a few tiny concessions to transparency on issues that really don't matter at all, but has doubled down on secrecy on the things that do actually matter.
“Reporters for years clamored to get access to fundraisers the president hosted or attended that were hosted in private homes,” Earnest continued. “Reporters now have access to those when this president goes to a private home.”
Sure, I know that the Press Secretary's job is to basically cover for the President and do whatever possible to defend the White House's claims, no matter how bogus, but wouldn't the world be better off if there were actually a tiny bit of honesty from such folks? They could admit that they've tried and failed. They could say that transparency promises seemed easier from the outside, but turned out to be more difficult in reality. They could admit that it's still a work in progress. Any of those would at least acknowledge reality. Pretending reality isn't reality doesn't convince anyone. In fact, it just appears to be yet another example of the very non-transparency that everyone's complaining about in the first place.
by Glyn Moody
Wed, Jul 2nd 2014 12:33am
As All Its Big Trade Agreements Grind To An Awkward Halt, Canada Aims To Make TPP Even More Secretive
from the frightened-of-sunlight dept
Techdirt has commented many times on the unduly secretive nature of the Trans-Pacific Partnership (TPP) talks. Despite earlier claims that everything would definitely be wrapped up last year, things are still dragging on, with the next round of negotiations taking place in Canada. Although it seems hardly possible, the government there apparently wants to make the meeting even less transparent than its predecessors, as this post on the Council of Canadians reports:
The only information that has been publicly released is a one-sentence notice posted June 24 on the Department of Foreign Affairs, Trade and Development website stating that "Negotiators, subject matter experts and other officials will meet in Ottawa, Canada, from July 3-12. No ministerial meeting is being scheduled on the margin of the officials meeting in Ottawa."
We can only assume Canada is worried that the public might learn either that the talks are in trouble, or that really bad deals are being cut in a desperate attempt to sew things up. A fascinating article in the Canadian title Maclean's offers some insight into why the Canadian politicians are so keen to keep everything under wraps:
New Zealand law professor Jane Kelsey has attended many of the rounds as a registered stakeholder, and, when that process ended without any explanation, as an observer. She describes Canada's secrecy as "unprecedented.”
"There can only be one reason for withholding the details: to shut down the remaining minimal access we have to negotiators, a number of whom are happy to meet with us," Kelsey says. "When governments are so afraid of informed public debate, they clearly do not believe they can sell the merits of what they are negotiating."
"Everyone is indulging in a charade where [the TPP] negotiations are going forward. It’s the biggest game in town, but I’m not convinced TPP will see the light of day," says Lawrence Herman, a Toronto-based trade lawyer formerly with Cassels Brock.
Putting those facts together, and you have an embarrassing inability of the Canadian government to close any of its high-profile trade agreements, which it has set such great store by. Clearly, the last thing it wants is any leak that might make achieving that even harder for TPP. Of course, if such a total lock-down on the talks is necessary to have even a slim hope of concluding them, that suggests support for the agreement among the TPP nations is extremely precarious. If it weren't, TPP could stand a little public scrutiny of the kind that the Canadians are doing their utmost to avoid.
The situation is not much more clear with Canada’s agreement-in-principle reached with Europe last October. Officials say CETA is taking longer than anticipated to render into legal text, but observers believe the deal has run into substantive roadblocks.
Also perplexing is why Canada has not ratified the foreign investment protection agreement with China, called FIPA, when the two sides signed the treaty almost two years ago.
Fri, Jun 27th 2014 11:21am
from the sell-swords dept
I'm no conspiracy theorist, generally speaking, but I have to admit the apparent systematic militarization of domestic police forces throughout the country scares the hell out of me. You've seen it, too. Officers, once clad in powder blue uniforms, are suddenly dressed in blues that are so dark they might as well be black. Small-town police forces are gobbling up military-style equipment for god-knows-why. Regulatory agencies are sending out armed forces to rescue wildlife. Whatever your politics, it's pretty clear that there is some kind of imbalance on display here.
The good news, however, is that these are public servants we're talking about here, so they're subject to a certain degree of transparency and information requests from John Q Public. Right? Right!?! Wrong, at least according to SWAT teams in Massachusetts, which are bizarrely claiming protection from such requests due to Massachusetts SWAT teams now being part of a private corporation.
As part of the American Civil Liberties Union's recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response. As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments...Some of these LECs have also apparently incorporated as 501(c)(3) organizations. And it’s here that we run into problems. According to the ACLU, the LECs are claiming that the 501(c)(3) status means that they're private corporations, not government agencies. And therefore, they say they're immune from open records requests.Yes sir, law enforcement just went private. It makes no sense, of course, because these LECs are in charge of oversight for local law enforcement agencies, LEC employee lists include all manner of public servants, and LEC SWAT teams are used to conduct raids on the citizenry. All of this is funded, by the way, with public money. Our money. That this money is funneled in from the public coffers of local police agencies doesn't make a lick of difference. The argument is essentially that if an LEC uses our money to set up its own oversight authority and then slapps a 501(c)(3) label on it, it no longer has to respond to public records laws. And, per the ACLU, this ain't some small-time problem we're discussing here.
Approximately 240 of the 351 police departments in Massachusetts belong to an LEC. While set up as “corporations,” LECs are funded by local and federal taxpayer money, are composed exclusively of public police officers and sheriffs, and carry out traditional law enforcement functions through specialized units such as SWAT teams. Police departments and regional SWAT teams are public institutions, working with public money, meant to protect and serve the public's interest. If these institutions do not maintain and make public comprehensive and comprehensible documents pertaining to their operations and tactics, the people cannot judge whether officials are acting appropriately or make needed policy changes when problems arise.Which, of course, is the entire point. They're hiding from public scrutiny behind the veil of incorporation, which may rank right up there among the most cynical things a government organization has ever done. It's a move one might find in the corporate republic of some dystopian novel. I say that because it's truly not as though the police departments in question are attempting to claim some kind of exemption within public records law. They're just putting up a stone wall.
“You can’t have it both ways,” Jessie Rossman, a staff attorney for the Massachusetts ACLU, told me in a phone interview. “The same government authority that allows them to carry weapons, make arrests, and break down the doors of Massachusetts residents during dangerous raids also makes them a government agency that is subject to the open records law. “They didn’t even attempt to claim an exception,” Rossman says. “They’re simply asserting that they’re private corporations.”Now, the ACLU is suing, claiming that these LECs have received both local and federal funding from government tax coffers, but others are suggesting this attempt to claim privatization is not without its pitfalls for those same law enforcement organizations. Pretending to be a private corporation to avoid freedom of information requests is one thing, but wouldn't that also mean giving up other things as well?
The claim by the Massachusetts LECs in response to the ACLU's demand under Freedom of Information laws is a cute attempt to twist corporate law with public authority law, but it is sheer, unadulterated nonsense. They can be one or the other. They cannot, by definition, be both.You can already hear the tortured back peddling that would be on display should such a situation arise, can't you? But that's just trying to get some fun out of what is clearly a claim by public institutions that cannot be allowed to stand. Allowing this move to be successful would only open the door to every other public institution that desired private oversight status to employ the same technique, the result of which would be public tax money propping up an officially private corporate government in which transparency is granted at that same corporate government's pleasure and never otherwise. It's the germination of an unholy mixture of corporatocracy and fascism and it would be the undoing of the very concept of the American government.
The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he’s right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He stripped himself of immunity, as well as authority.
by Tim Cushing
Thu, Jun 26th 2014 3:37pm
from the a-bit-more-patch-than-fix,-but-still... dept
If anything useful has been redacted from documents obtained with by a FOIA request, chances are the b(5) exemption has been invoked. Theoretically narrow in scope, the exemption has expanded to cover everything from a historical recounting of the CIA's involvement in the Bay of Pigs to someone's hand-scrawled commentary ("What a bunch of crap!") on a bill asking for Pakistan to be designated as a state sponsor of terrorism.
Here's the entirety of the exemption according to FOIA statutes.
Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agencyThe reality of the situation is that nearly every agency has deployed the exemption to redact information at one point or another. Almost prophetically, the b(5) exemption claims the withheld information can only be released to "agencies in litigation" with the withholding party. And there are certainly plenty of "agencies" engaged in litigation with these government entities, albeit mainly in the form of FOIA lawsuits.
Two senators are hoping to fix this and, at the same time, force the government to start following up on its promised FOIA reform.
Senate Judiciary Committee Chairman Leahy and Cornyn, the ranking Judiciary Republican, introduced the FOIA Improvement Act of 2014, which would strengthen Obama administration transparency mandates and reform one of the most abused FOIA exemptions.On the indisputable plus side, documents over 25 years old are no longer subject to this exemption, meaning long-withheld documents like the previously mentioned Bay of Pigs recounting will no longer be withheld for bogus "deliberative" reasons.
President Barack Obama and U.S. Attorney General Eric Holder directed federal agencies in 2009 to update their FOIA guidelines and operate with a presumption of openness. However, many agencies ignored the directive.
The bill would codify the administration's reform directives and force responsive agencies to limit use of the b(5) exemption to only information that would cause "foreseeable harm" if disclosed. Granted, that still leaves government agencies with plenty of room to maneuver, but it should trim down the number of b(5) redactions applied to documents like a Presidential Policy Directive ordering the State Department to be more transparent.
If this bill passes the Senate, it will likely be merged with a House FOIA reform bill being shepherded by Darrell Issa and Elijah Cummings. From that point, it will need to emerge mostly unscathed from the sausage-making on its way to the President. If it does survive intact, longtime FOIA offenders may have to find new reasons to apply black bars and withhold pages. Hopefully, this will cut down on the number of FOIA responses containing nothing but page-after-full-page of redactions.