Arizona Legislator Wants To Strip Platforms Of Section 230 Immunity If They're 'Politically Biased'

Free Speech

from the good-luck-with-that-[stares-at-bio]-'Constitutional-Legislator' dept

Another bill containing some bad ideas is being floated in the Arizona legislature. Rep. Bob Thorpe thinks social media companies are biased against conservatives and feels the best way to address this is to steamroll the Constitution and Section 230. (via Eric Goldman)

Thorpe’s bill [PDF] says it will turn platforms into publishers at the drop of a bias accusation:

Specifies a person who allows online users to upload publicly accessible content on the internet and who edits, deletes or makes it difficult for online users to locate and access the uploaded content in an easy or timely manner for politically biased reasons is:

a) Deemed to be a publisher;

b) Deemed to not be a platform; and

c) Liable for damages suffered by an online user because of the person’s actions, including damage for violations of rights guaranteed to the online user by the Federal or State Constitutions.

To be clear, there are no enshrined rights guaranteeing unimpeded use of private companies’ platforms or access to “uploaded content.” Writing a bill that proclaims there are doesn’t make the false assertion any more true. If platforms are perceived to be engaging in politically-motivated moderation, the bill allows the affected user (or state Attorney General) to engage in litigation that’s doomed to fail.

For someone so concerned about walled gardens of the political variety, Rep. Thorpe doesn’t seem all that interested in practicing what he’s preaching to his voter base. Thorpe’s Twitter account is protected, which means most constituents don’t have access to it and it allows him to pick and choose who gets to see his tweets.

This is only Thorpe’s latest attempt to adversely affect protections and rights while claiming to be very concerned about rights violations. Journalists and activists have already pointed out Thorpe’s tendency to block critics, all while claiming his account (@azrepbobthorpe) is for personal use, rather than for his legislative work. His bio points claims he’s a “Christian Constitutional Legislator,” but his account is an ongoing Constitutional violation.

In 2017, he introduced a bill that would violate First Amendment under the theory it would somehow make public universities more protective of the rights he’s undermining. Thorpe has a problem with any “divisive” speech — especially the kind that might come from teachers and professors who might — as the bill put it — “promote division, resentment or social justice toward a race, gender, religion, political affiliation, social class or other class of people.” As Fire noted then, Thorpe’s proposed government interference in classroom instruction would only harm the First Amendment, not save it.

Prohibiting instructors from teaching particular perspectives or topics is precisely the kind of content- and viewpoint-based restriction forbidden under the First Amendment. This does not change even if someone on campus might deem those perspectives or topics likely “to promote social justice, division, or resentment.” In practice, this legislation would confer unfettered discretion on campus administrators to shut down discussion on nearly any subject.

During the next legislative session, Bob Thorpe proposed another free speech-threatening bill that suggested free-market capitalism should be shielded from criticism.

This week, Arizona Rep. Bob Thorpe (R – Flagstaff) introduced a bill that would designate “American free-market capitalism” the state’s official “political-economic system”, and declares the legislature’s intent “that taxpayer dollars not be used to promote or to provide material support for any political-economic system that opposes the principles of free-market capitalism.”

Thorpe thinks he’s a free speech warrior. But all he does is try to erect content-based restrictions on speech — the kind of thing no court has been sympathetic to. As Reason noted, the bill was stupid political point-scoring bullshit that had zero chance of surviving even the most cursory Constitutional glance..

For starters, the bill contains a naked content-based restriction on the use of taxpayer dollars to promote something other than “free-market capitalism”. From what activities Thorpe would want to yank state support is not entirely clear; his bill says only that it would include the promotion of “socialism, communism, and fascism.”

Over at the Phoenix New Times, Antonia Noori Farzan notes that “taken to an extreme, it could potentially mean that state universities would be banned from providing any resources to campus chapters of the Democratic Socialists of America.” Depending on your definition of free-market, the bill could be used to deny resources to college Democrat and Republican chapters too.

The good times roll on. Bob Thorpe is finally winding down his state house career, exiting his unstoried seven-term career with another stupid bill that ignores the Constitution in favor of allowing people who don’t understand Section 230 or the First Amendment feel like their grievances are being redressed.

Filed Under: 1st amendment, arizona, bias, bob thorpe, cda 230, free speech, intermediary liability, platform, publisher, section 230

Appeals Court Rules That People Can't Be Locked Up Indefinitely For Refusing To Decrypt Devices

Legal Issues

from the all-writs-v.-5th-amendment-v.-throwing-away-the-key dept

The Third Circuit Court of Appeals has finally decided — after more than four years — that the government can’t keep someone locked up indefinitely for contempt of court charges.

Former Philadelphia policeman Francis Rawls has been locked up since 2015 for refusing to decrypt external hard drives the government claims contain child porn images. The government’s claims are based on Rawls’ sister’s statements. She said Rawls showed her “hundreds” of child porn images that were located on these drives.

The government obtained an All Writs Order demanding Rawls decrypt the devices. This was challenged by Rawls, but unfortunately he did not preserve a Fifth Amendment challenge, so the Appeals Court let the government have its victory. It was a limited victory. It still had two locked drives Rawls claimed he could not remember the passwords for. But it also had Rawls jailed on civil contempt charges.

Rawls will be a free man again, but probably not for long. He challenged the indefinite incarceration, asserting that the law only provides for a maximum of 18 months in jail for civil contempt charges. The court [PDF] agrees:

On September 30, 2015, Rawls was incarcerated for civil contempt after he failed to comply with a court order that he produce several of his seized devices in a fully unencrypted state. Since that day, more than four years ago, Rawls has been held in federal custody. Rawls seeks release arguing that 28 U.S.C. § 1826 limits his maximum permissible confinement for civil contempt to 18 months.

Because we conclude § 1826 applies to Rawls, we will reverse the order of the District Court and order Rawls’ release.

The government argued this statute does not apply to Rawls, since he is the one charged with crimes, rather than a witness to a crime, as 1826(a) states:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

Rawls pointed out he is a witness in this case. The government wants him to give up passwords to hard drives likely containing evidence to be used against him. That makes him both a witness and a criminal suspect. Production of these passwords would be testimonial — information Rawls may know (the passwords) that the government does not. The simple act of producing passwords is itself testimonial. It allows the government to infer Rawls had control of the drives and knowledge of their contents.

The precedent the government relies on here isn’t on point:

There is a significant difference between a contempt confinement for failure to provide information and confinement for failure to stop actively harassing court personnel. Unlike the contemnor in Harris, Rawls is being asked to provide information in a proceeding and is therefore a witness under § 1826(a).

Furthermore, as the concurring opinion points out, the government’s insistence these hard drives be unlocked and that Rawls remained jailed until they are, appears to be completely redundant and unnecessarily cruel.

[B]ased on the evidence in the record (as briefly summarized by Judge Fuentes), it appears that the Government is insisting that Rawls’ incarceration for contempt be continued even though it already possesses sufficient evidence of Rawls’ possession and production of child pornography to obtain a conviction under various subsections of 18 U.S.C. §§ 2251 and 2252. In fact, Rawls’ own sister’s testimony regarding Rawls’ possession of a video of his two nieces, aged four and six, may very well be sufficient to convict him of possession and/or production of child pornography involving a minor in his custody or control.

The government appears to want to punish Rawls simply for being uncooperative and to continue this punishment as long as possible before he faces an even longer sentence for the alleged crimes.

I therefore cannot fathom why the Government is so insistent upon further gilding the lily with the evidence that may well be in the encrypted files on the disputed hard drives and demanding his imprisonment until he “coughs up” that evidence. There may well be some justification for insisting that Rawls be imprisoned on contempt charges before his all but certain prosecution for child pornography and the very severe sentences he would be exposed to if convicted for the latter offenses, but such justification for the Government’s conduct here certainly escapes me.

This isn’t a case where evidence necessary for a conviction remains out of reach. The government already has enough to pursue a decades-long sentence. Starting Rawls off with four years in jail before even bringing the case to trial is punishment for punishment’s sake. It does not weaken the government’s case if the drives remain encrypted. All it does is prevent the government from stacking counts as high as it apparently wants to, forcing it to work with the illegal images it has already recovered.

The Fifth Amendment question remains undisturbed for now. But at least in cases like these, where the government uses a 200-year-old law to compel decryption, it will only be able to lock up unwilling (but presumptively innocent) “witnesses” for 18 months, rather than for the rest of whatever.

Filed Under: 4th amendment, 5th amendment, contempt, decryption, francis rawls, indefinite confinement, passwords

CBP Employees Obtain New Accountability Shield With 'Security Agency' Designation

Failures

from the everyone's-pr dept

Our nation’s border security agencies want to be national security agencies. ICE and CBP both made it clear they expected to be treated as Intelligence Community equals and given a seat at the grown-ups’ surveillance table. They got their wish. Trump’s “extreme vetting” wishes opened the door for the agencies’ access to NSA collections late last year.

The CBP’s addition to the long list of Intelligence Community agencies gives it another layer of opacity. As Ken Klippenstein reports for The Nation, being added to the OPM’s list of exemptions will make it even more difficult to obtain information via FOIA requests.

On Friday, the Trump administration quietly designated the entire Customs and Border Protection (CBP) agency, which polices US borders, as a “Security Agency,” according to an internal memo obtained by The Nation.

This puts CBP on the same playing field as secretive agencies like the FBI, DEA, and ATF. While ostensibly only concerned with border protection, the CBP’s reach has been extended by its access to NSA collections and its personnel more insulated from accountability by this designation.

The memo states: “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

Every CBP employee is now shielded from public scrutiny, no matter how much “security” work they’re actually involved in. The memo obtained by The Nation came from a CBP contractor who blew the whistle on this bullshit designation. According to the unnamed source, they came forward to inform the public about an “absurd” designation that gives CBP employees a new layer of opacity they haven’t earned.

The memo says this new designation is a reaction to supposed “doxing” of CBP employees via a Twitter account that may have been run by an OPM employee. But it wasn’t really “doxing.” The information released was pulled from publicly-accessible OPM databases. If this is the case, this doesn’t seem to justify unilaterally declaring CBP employees to be more equal than other federal employees not fortunate enough to work for one tasked with bringing President Trump’s anti-immigration fantasies to life.

CBP employees aren’t special. And they’re only “security” personnel in the loosest sense of the word. Just because they’re involved in border security doesn’t mean any exposure of their personal info would result in decreased employee safety or harm intelligence gathering. For that matter, the CBP isn’t really in the intelligence gathering business and it’s not known for operating extensive investigations utilizing undercover personnel who could suffer from being “outed” by publicly-available info. This is just opacity creep — one that spreads from agency to agency like black mold. And it will make holding the agency accountable for its actions even more difficult when the public isn’t able to pinpoint who’s behind the latest string of abuses.

Filed Under: accountability, cbp, foia, intelligence agency, law enforcement, transparency

Clearview Looking To Expand Its Market To Problematic Countries Known For Human Rights Abuses

(Mis)Uses of Technology

from the a-cop's-a-cop,-right? dept

It appears no one’s thrilled facial recognition upstart Clearview is scraping their photos to build a facial recognition database to sell to cops. But what can they do about it? Not much more than write angry letters.

Twitter was the first to send a C&D to the troubling developer over this troubling development. It was presumably ignored. Google also issued a C&D, only to be not-so-gently reminded by Clearview that Google does the same thing to build its search engine database. (Of course, web site owners and developers can opt out of being crawled by Google bots — something that’s not an option with Clearview.)

Added to the list of pissed scrapees are Venmo and LinkedIn, the latter known for actually suing people who have scraped its site. Facebook, however, has not done this and it’s by far the largest repository of face photos and personal information on the web. Facebook claims to be asking Clearview some tough questions about its scraping and database compilation but it has not sent a formal cease-and-desist.

Maybe Zuckerberg’s just disappointed he didn’t think of this first. Or, as Aaron Mak speculates for Slate, maybe it has something to with Peter Thiel’s early investment in Clearview and his position as a Facebook board member. Thiel likes surveillance and Clearview’s scraping of Facebook to compile a facial recognition database may be just the sort of vertical integration he’s looking for.

But the bad news gets worse. Clearview’s aggressive pursuit of law enforcement agency customers — combined with its questionable database construction methods — hasn’t won it very many friends. Not even from the law enforcement community, which has been forced to offer rebuttals to exaggerated (or downright false) claims made by Clearview in its marketing materials.

Clearview isn’t going to limit itself to the United States. Documents obtained by BuzzFeed show Clearview is pitching its facial recognition app to abusive governments around the world.

A document obtained via a public records request reveals that Clearview has been touting a “rapid international expansion” to prospective clients using a map that highlights how it either has expanded, or plans to expand, to at least 22 more countries, some of which have committed human rights abuses.

The document, part of a presentation given to the North Miami Police Department in November 2019, includes the United Arab Emirates, a country historically hostile to political dissidents, and Qatar and Singapore, the penal codes of which criminalize homosexuality.

So far, Clearview says it only has “partnerships” in the US and Canada. But no developer flogging surveillance tech has ever been willing to limit themselves to the “good guys.” Even Israeli tech companies have been willing to sell products to their country’s direct enemies, presumably assuming the profits will outweigh the collateral damage when these are inevitably turned against their nation’s people.

Clearview may find more opposition if it attempts to sell its products to European law enforcement agencies. Unlike here in the US, privacy protection laws are extremely restrictive. The unholy mess that is the GDPR makes it untenable for US sites to use cookies or serve ads. Trying to push a product built on non-consensual scraping of personal data from dozens of websites is a non-starter.

Potentially more problematic is Clearview’s inclusion of nine European Union countries — among them Italy, Greece, and the Netherlands — on its expansion map. These countries have strict privacy protections under the General Data Protection Regulation (GDPR), a 2016 law that requires businesses to protect the personal data and privacy of EU citizens. Joseph Jerome, a policy counsel for the Center for Democracy and Technology, said it was unclear whether Clearview AI’s technology would violate the GDPR.

Then again, there may be almost no trouble at all. Like almost every privacy protection law created anywhere in the world, law enforcement and national security services enjoy some very large carve outs, which makes it possible for them to do the things the law says is illegal if anyone with a lot less power to destroy lives does it. In this case, Clearview’s data collection process may be illegal, but government use of the end result won’t be. Funny how that works.

Filed Under: facial recognition, governments, privacy, scraping, surveillance
Companies: clearview, clearview ai

Michigan County Sued For Stealing Cars From Innocent Car Owners Via Civil Forfeiture

Legal Issues

from the someone-did-some-crime-somewhere-maybe-so-we're-taking-your-stuff dept

A 1996 decision by the Michigan Supreme Court set the precedent for the widespread abuse of civil asset forfeiture in the state. The ruling said being an innocent owner of property seized is no defense and any forfeiture predicated on the illegal acts of others could result in the actual owner being deprived of property without violating their Constitutional rights.

The state’s law enforcement agencies took this ruling and ran with it. To ensure minimum legal hassle, cops are “fighting” crime by taking small amounts of cash and 20-year-old vehicles from people they imagine might have committed a crime, were thinking about committing a crime, or happened to wander into an area where crime exists.

The city of Detroit and Wayne County prosecutors are the busiest of the state’s busy kleptomaniacs.

In an ongoing crackdown, Wayne County has seized more than 2,600 vehicles and collected more than $1.2 million in revenue from civil asset forfeiture over the past two years.

A proposed class action has been filed challenging the city’s forfeiture program which deprives the owners of their property due to other people’s actions. The lawsuit [PDF], filed with the assistance of the Institute for Justice, tells just two of these 2,600 stories. Both involve vehicle owners losing their cars because of someone else’s alleged criminal acts — even when no criminal charges were ever filed.

The first involves a woman who had to file for bankruptcy and now takes the bus because the city decided to take her car from her.

Melisa Ingram, a plaintiff in the lawsuit, knows the many abuses of Detroit’s system firsthand. Last summer her car was seized by Wayne County sheriff’s deputies after she lent it to her then-boyfriend so he could drive to a friend’s barbeque. Later that day, police pulled him over for slowing down in an area known for prostitution. Although he was never charged with a crime, police nevertheless seized Melisa’s 2017 Ford Fusion.

Ingram paid $1,355 to get her car back. Six months later, she again loaned the vehicle to her boyfriend while she attended a barbecue. As he was pulling away from the house, the same Wayne County deputies pulled him over and seized the car again, claiming the house he was leaving was supposedly connected to drugs or prostitution. Just like the previous incident, the car was seized immediately and no criminal charges were filed. Ingram could not afford the $1,800 the police said she had to pay to release her car.

A similar thing happened to another plaintiff — only this time cops yanked the car out right from underneath him. His story is even stranger, but it had the same end result: law enforcement had one more car in its possession than it did prior to the stop.

In July 2019, a man with whom Robert [Reeves] sometimes works asked him to visit a job site where he was clearing rubbish. The man had a skid-steer loader at the site and wanted to know if Robert knew how to operate it. Robert demonstrated how to use the equipment and the two men planned to meet the next day to begin their work.

Robert then drove to a nearby gas station and went inside to purchase a bottle of water. As he was leaving, officers surrounded him and demanded to know what he knew about a skid steer that was allegedly stolen from Home Depot. Robert knew nothing other than that the other man had rental paperwork from Home Depot, which was consistent with Robert’s understanding that the equipment had been rented. After several hours of detention in the back of a police car, Robert was let go without being arrested. He has not been charged with anything.

Police seized Robert’s Camaro on the spot, along with two cell phones and $2,280 that he had in his pocket.

More than six months have passed since this seizure and Wayne County prosecutors have yet to move forward with forfeiture proceedings. With no proceedings, there’s no way to challenge the seizure. Meanwhile, his car sits in an impound lot racking up fees. Reeves was told by the Vehicle Seizure Unit that he would need to hire a lawyer if he wanted to get any answers at all about his car and how to get it back. But all this did was force Reeves to spend more money getting nowhere.

Robert then hired an attorney, but employees of the Vehicle Seizure Unit and Wayne County Prosecutor’s Office refused to speak with his attorney, too. No one will take their calls, despite dozens and dozens of attempts to learn more.

Since the agencies involved in the seizure can keep up to 100% of proceeds from forfeited property, there’s zero incentive for them to work with the victims of these programs, much less move forward quickly with forfeiture proceedings. And agencies appear to make it more difficult than the process already is by serving notification — seemingly deliberately — to parties other than the owners of the property. In Ingram’s case, the first notice went to her boyfriend who was driving the seized car. In Reeve’s case, he was never served at all.

These experiences aren’t unique. They can’t be. A single county doesn’t seize more than 3 cars a day if it’s not profitable. But unless the law is changed — or state precedent overturned — police will continue to take property from innocent owners because being innocent isn’t enough to prevent a forfeiture. That’s what the plaintiffs are hoping to change. The lawsuit seeks a ruling declaring the state’s forfeiture policies unconstitutional — a violation of the Fourth, Eighth, and Fourteenth Amendments. It’s an uphill fight, given state court precedent, but a federal challenge may finally upend the terrible laws that ruin state residents’ lives and deprive them of their property without any finding of criminal wrongdoing.

Filed Under: asset forfeiture, legalized theft, melisa ingram, michigan, robert reeves, wayne county

Breathalyzer Manufacturer Under Criminal Investigation For Falsifying Maintenance Records And Calibration Results

(Mis)Uses of Technology

from the watched-over-by-machines-of-questionable-aptitude dept

In 2018, a report came out that added even more doubt as to the reliability of breathalyzers. A number of factors — including incorrect calibrations and ambient air temperature — could turn innocent breath into guilty breath. Cops value breathalyzers since they’re easy to deploy and don’t have the warrant impediments of blood tests. But they’re often relying on faulty equipment.

The 2018 discoveries were reaffirmed in 2019 when a New York Times investigation uncovered more problems with breathalyzers. Equipment used in the field was rarely recalibrated and active chemical agents rarely replaced. One breathalyzer used by Michigan police was found to have rats nesting inside of it.

Faulty equipment is only one of the problems. The bigger problem is that it’s almost impossible to challenge in court. The private companies behind breathalyzer equipment have inserted themselves into court proceedings, claiming any examination of devices and source code could result in the exposure of proprietary information that (they imagine) could harm their market position and future sales.

Manufacturers are partially correct, but not for the reasons they’ve stated. The more these devices and their deployments are examined, the less they seem to be a gold standard for detecting intoxication. And now it’s the producers of this equipment that might be facing criminal charges, as Blake Montgomery reports for The Daily Beast. (h/t BentFranklin via the Techdirt chat window)

A major breathalyzer manufacturer is under criminal investigation for possible forgery. Police forces nationwide have been using the same company’s machines to turn alleged drink-drivers into convicted ones—seizing licenses, imposing fines, and, in some cases, imprisoning people.

The manufacturer is Intoximeters, which produces the Datamaster DMT used by the Michigan State Police. An investigation into the vendor uncovered a great deal of concerning misconduct, according to this report by The Detroit News.

State police director Col. Joseph Gasper said in a statement his department also has launched a criminal investigation into the alleged fraud by the St. Louis, Missouri vendor, Intoximeters, Inc.

“Based on new information learned over the weekend, the Michigan State Police … is aggressively investigating potential fraud committed by contract employees of Datamaster vendor, Intoximeters, and also moving today to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated,” Gasper said.

State police will now have to use blood draws to obtain evidence of intoxication. This reverses the MSP’s first response, which was to perform recalibration of all the devices itself, rather than allow the apparently-untrustworthy employees of Intoximeters to do it.

This will likely trickle down to other Michigan law enforcement agencies currently using Intoximeters equipment. And it will trickle down to the state’s courtrooms where defense attorneys are expected to start filing challenges to current prosecutions and past convictions that relied on evidence obtained with these devices.

This may mean Intoximeters may finally have to divulge information it has so far successfully managed to keep out of court. This sort of reasoning isn’t going to fly if it’s proven the company’s employees falsified records.

[T]he company has resisted at least three Minnesota court mandates that police furnish the source code of its breathalyzer software to defendants, court records and interviews show. Instead of cooperating, Intoximeters has submitted documents saying it is open to police doing so—contingent on various conditions—and then opposed requests to actually follow through.

It’s an intentionally-designed catch-22. Law enforcement agencies can hand over the source code to courts, except they really can’t because their contracts with Intoximeter make it clear the source code belongs to the company, not the cop shop. The cops can’t turn over what they don’t own. And even when a court order directly targets the manufacturer, the Missouri-located company can dodge compliance –like it has in Minnesota — by being out of the court’s reach due to jurisdictional limits.

Preventing successful evidence challenges in court has allowed Intoximeters to operate with almost no accountability. And when that happens, things like the malfeasance currently under criminal investigation is pretty much guaranteed to follow. Every device maker bills its product as the evidentiary gold standard. But, as multiple investigations have shown, this standard is more tin than gold.

Filed Under: accuracy, breathalyzer, calibration, falsifying records

Since The National Archives Can't Keep Up With Incoming Records, Agencies Have Been Given Permission To Rewrite Their Own Histories

Failures

from the build-your-own-Greatest-Hits-collection-on-the-public-dime dept

The federal government’s recent past is disappearing alarmingly quickly. And the only thing that can stop this from happening is a collection of legislators who’ve collectively shown for years they just don’t care. The National Archives has been given the monumental task of housing billions of records. It has no more room to store paper documents and has demanded federal agencies only send it digital records going forward.

This has only created more problems. Federal agencies aren’t being given extra funds or staff to convert existing paper documents and the National Archives has seen its budget cut by Congress for three straight years. The amount of incoming material has tripled since 1985 but the National Archives has fewer employees than it did more than three decades ago and its budget has not even kept up with inflation.

So, what’s the end result? Evidence of government wrongdoing is being purged, as Matthew Connelly reports for the New York Times.

In 2017, a normally routine document released by the archives, a records retention schedule, revealed that archivists had agreed that officials from Immigration and Customs Enforcement could delete or destroy documents detailing the sexual abuse and death of undocumented immigrants. Tens of thousands of people posted critical comments, and dozens of senators and representatives objected. The National Archives made some changes to the plan, but last month it announced that ICE could go ahead and start destroying records from Mr. Trump’s first year, including detainees’ complaints about civil rights violations and shoddy medical care.

Thanks to an unwillingness to treat archiving as essential, Congress is encouraging future abuses by federal agencies. If agencies know there’s no room in the archives, records of their actions will simply vanish once they hit the federally-approved expiration date. Given the stonewalling that tends to greet records requests for evidence of government wrongdoing, some of the government’s sins may never be exposed. All agencies have to do is make it to the destruction date without being hit with a preservation order. Very few public records requesters have the means to take the government to court and without any significant modification to destruction protocols, the government has the Archives’ blessing to whitewash its past.

ICE is only one agency directly benefiting from an underfunded and overworked agency. Other agencies engaged in questionable behavior are being allowed to rewrite their own history by excising the worst parts.

The Department of the Interior and the National Archives have decided to delete files on endangered species, offshore drilling inspections and the safety of drinking water. The department even claimed that papers from a case where it mismanaged Native American land and assets — resulting in a multibillion-dollar legal settlement — would be of no interest to future historians (or anyone else).

If any agency has particularly troublesome documents on hand, it can seek “temporary” designation for them, removing its obligation to archive them. As it has become evident over the years, Congress (for multiple sessions under multiple presidents) doesn’t really care what happens to these public records. Consequently, federal agencies have been destroying more and archiving less.

Connelly’s report says the CIA has released fewer than 10% of its estimated 160 million paper records to the National Archives and the percentage released each year has been decreasing steadily. The report also notes the State Department is attempting to do more with less — turning over the whole process to machine learning which will perform a nuanced task of designating files with “historic” interest mechanically. This may eliminate any employee’s personal interest in vanishing documents, but just as easily could make it worse by introducing new biases that result in increased purging.

The Archives can’t reverse this trend on its own. It needs the backing of Congress and the President. But it’s unlikely a regime change will change anything. This downward trend is nearly four decades old at this point and the appointment of new department heads only seems to result in additional “temporary” designations, piling new exemptions on top of those that already exist. History may be written by the winners, but at the National Archives, history just simply isn’t being written by anyone.

Filed Under: archives, congress, destruction of records, funding, ice, lost history, national archives, records, rewriting history

Google Says Clearview's Site Scraping Is Wrong; Clearview Reminds Google It Scrapes Sites All The Time

(Mis)Uses of Technology

from the twospidermans.jpg dept

Clearview’s business model has resulted in some mutual finger pointing. The most infamous of facial recognition tech companies outsources its database development. Rather than seeking input from interested parties, it scrapes sites for pictures of faces and whatever personal info accompanies them. The scraped info forms the contents of its facial recognition database, putting law enforcement only a few app clicks away from accessing over 3 billion images.

The companies being scraped have claimed this is a violation of their terms of service, if not actually illegal. It’s not clear that it’s actually illegal, even if it does violate the restrictions placed on users of these services. Twitter has already sent a cease-and-desist to Clearview, but it will probably take a court to make this stick. Unfortunately, Clearview’s actions could lead to some damaging precedent if Twitter forces the issue. Given the number of sites affected by Clearview’s scraping efforts, it’s probably only a matter of time before this gets litigious.

But the finger pointed by Google at Clearview hasn’t obtained the reaction Google may have hoped for. As CBS News reports, Clearview has returned fire by comparing its business model to Google’s business model.

Google and YouTube have sent a cease-and-desist letter to Clearview AI, a facial recognition app that scrapes images from websites and social media platforms, CBS News has learned.

[…]

[Clearview CEOP Hoan] Ton-That also argued that Clearview AI is essentially a search engine for faces. “Google can pull in information from all different websites,” he said. “So if it’s public and it’s out there and could be inside Google search engine, it can be inside ours as well.”

He’s not wrong. Google’s bots crawl the internet non-stop, building a database for its search engine. But there is one key difference: website owners can opt out of Google’s indexing.

“Most websites want to be included in Google Search, and we give webmasters control over what information from their site is included in our search results, including the option to opt-out entirely. Clearview secretly collected image data of individuals without their consent, and in violation of rules explicitly forbidding them from doing so,” [YouTube spokesperson Alex Thomas] said in the statement to CBS News.

There’s no way to opt out of Clearview’s “service,” other than just not existing on the internet. Ton-That is correct in assuming there’s very little legal exposure in scraping publicly-available images from the net, but these statements don’t make him or his company any more sympathetic. Ton-That is serving up untested AI to as many law enforcement agencies as possible, encouraging them to test drive the app using faces of friends and family even as the company states the software should only be used for approved law enforcement purposes.

It also claims an accuracy rate of 99.6% for searches, but that number hasn’t been rigorously tested. What appears to be happening is a mass rollout of untested AI to law enforcement agencies via demo/trial accounts. Clearview claims to be working with over 600 law enforcement agencies but very few agencies have stated publicly they’ve used Clearview to perform investigations.

Clearview’s packaging of public information into a law enforcement app is unpleasant, but likely legal. The same thing goes on behind the scenes of multiple data aggregators that sell info and analytics directly to government agencies. The main difference here is Clearview hasn’t been shy about its desire to pitch a cheap app/database to law enforcement even as its product remains unproven and untested. And it puts cops a lot closer to their dystopian dream of being able to demand identification from anyone they run into on the streets.

Filed Under: ai, cease and desist, facial recognition, scraping, terms of service
Companies: clearview, clearview ai, google, twitter

Transparency Report Shows Ancestry.com Rejected A Warrant Demanding Access To Its DNA Database

Legal Issues

from the PREMISES-TO-BE-SEARCHED:-the-whole-thing dept

Third-party DNA services have become one of law enforcement’s new investigative tools. Companies like Ancestry.com and 23andMe have collected massive amounts of DNA data and personal info, and cops have used these databases to solve cold cases and identify suspects they may have overlooked during investigations.

As this use of private DNA databases has become more widespread, some services have tightened up their access. Law enforcement started pushing and it was finally time to start pushing back. In addition to creating fake profiles to upload DNA samples to match against databases, law enforcement officers have also obtained court orders demanding full access to these databases to peruse at will.

One company, FamilyTreeDNA, has welcomed this new interest from non-customers, allowing government agencies to treat its database as one of their own. Most other DNA companies have gone the other way, restricting access to personal info and DNA matches by requiring legitimate, narrowly-crafted court orders and warrants before turning over info to law enforcement.

Ancestry.com is one of the more restrictive companies. Its “Guide for Law Enforcement” makes it clear it will challenge any court order or warrant it believes is overly-broad. The wording may seem a bit antagonistic, but it’s probably the only language law enforcement understands. Law enforcement prefers to communicate vaguely and exoneratively, which lowers its exposure to harmful things like the rights of others and personal accountability. So, if Ancestry’s language is brusque, it’s only because it’s necessary.

Ancestry does not voluntarily cooperate with law enforcement. To provide our Users with the greatest protection under the law, we require all government agencies seeking access to Ancestry customers’ data to follow valid legal process and do not allow law enforcement to use Ancestry’s services to investigate crimes or to identify human remains.

Some unnamed law enforcement agency recently experienced this lack of cooperation firsthand, as Peter Aldhous reports for BuzzFeed.

Ancestry.com, the largest DNA testing company in the world, was served a search warrant to give police access to its database of some 16 million DNA profiles, but the company did not comply.

“Ancestry received one request seeking access to Ancestry’s DNA database through a search warrant,” the company revealed in its 2019 transparency report released last week. “Ancestry challenged the warrant on jurisdictional grounds and did not provide any customer data in response.”

There are no further details in the transparency report, but comments given to BuzzFeed by Ancestry suggest the warrant sought open-ended access to the company’s database. That’s definitely something companies shouldn’t be offering to law enforcement agencies. The unnamed law enforcement agency will have to take its fishing line to a competitor more willing to abuse the trust of its customers.

Filed Under: dna, law enforcement, privacy, transparency, warrant
Companies: ancestry.com