Six Republican AGs Try To Pretend OAN Was ‘Censored’ By DirecTV

Politics

from the traditional-conservative-values dept

Last January DirecTV finally decided to kick fantasy and conspiracy channel One America News (OAN) off of their satellite TV lineup, likely dooming the “news” channel. It’s a channel relatively few people watch, and the company simply didn’t figure the controversy to income ratio was worth it, so DirecTV simply didn’t renew OAN’s carriage agreement when the time came.

OAN, of course, quickly tried to spin itself as a victim of censorship, first by attacking a Black AT&T board member in “news” coverage that pretended DirecTV’s business decision was politically and racially motivated. And last week, the company filed a lawsuit claiming that DirecTV was leveraging its “unchecked influence” to stifle a “family-run business”:

“This is an action to redress the unchecked influence and power that Defendants have wielded in an attempt to unlawfully destroy an independent, family-run business and impede the right of American television viewers to watch the news media channels and programs of their choice.”

Trying to claim DirecTV, which itself is losing subscribers hand over fist to streaming, has “unchecked influence and power” is fairly amusing. In reality, DirecTV made a fairly boring business decision to not renew a channel very few people, despite all the sound and fury, actually watch:

Now Texas Attorney General Ken Paxton has, for some bizarre reason, injected himself into the dispute. In a letter (pdf), Paxton and the GOP AGs of Mississippi, Louisiana, Missouri, Montana, and South Carolina demand DirecTV renew its carriage agreement with OAN, and insist the decision to kick the conspiracy channel to the curb is “clearly viewpoint discrimination and an attempt to silence conservative voices”:

“My fellow attorneys general and I strongly recommend that you reconsider your present course and renew your contract with OAN in April. Your failure to do so will not only cause you to lose millions of dollars in business, but also drive many millions of Americans to simply cancel your services outright, as President Trump and other leading figures have already called for.

I’m old enough to remember that a core GOP platform used to be that government shouldn’t involve itself in routine business decisions without exceptional cause. Yet here, six AGs took the time to take DirecTV to task simply for booting a channel from its lineup that not many people watched.

As with most modern GOP claims of this type, it’s largely performative victimization porn to keep the base angry. What the Trump GOP routinely calls “censorship” is usually just baseline levels of accountability for dumb behavior (like, say, falsely claiming in “news reports” that COVID was created in a South Carolina lab). The real goal here, as it is with the Section 230 fracas, is really to mandate that the internet and cable programming be inundated with alternative reality propaganda favorable to the GOP.

As we’ve noted previously, while AT&T originally funded and came up with the idea for OAN, the company was forced to spin DirecTV off in partnership with TPG Capital, which was likely less interested in catering to conspiratorial GOP gibberish — at least when it wasn’t making them money. Cable and broadcast executives will air anything that makes money if they can legally get away with it.

Even if this was a viewpoint-based decision by DirecTV, there’s absolutely nothing requiring that DirecTV maintain anything resembling “viewpoint neutrality.” There’s just no foundation for any complaint here. There’s nothing illegal. Again, it was a boring business decision made because the channel wasn’t making DirecTV money in ratio with the headaches (like the lawsuits over bogus claims of election fraud).

Paxton and his friends are clearly upset that the ongoing effort to create an entire alternate reality news ecosystem saw a minor setback with OAN being dumped from DirecTV, relegating the channel out of the mainstream and back into a highly competitive scrum of conspiratorial influencers and other gibberish-spewing Trump orbit hopefuls.

Of course, the Trump base will never see alternative viewpoints pointing out Paxton’s involvement here is self-serving, performative bullshit, which is the entire point of the propaganda ecosystem folks like Trump and Paxton are hoping to embolden and protect as they foist their authoritarianism on the planet.

Filed Under: disinformation, gop, ken paxton, lawsuit, propaganda, radicalization, speech, trump
Companies: directv, oan, oann

Google's Efforts To Be Better About Your Privacy, Now Attacked As An Antitrust Violation

Privacy

from the wait,-what? dept

We’ve talked a lot in the past about how almost no one seems to actually understand privacy, and that leads to a lot of bad policy-making, including policy-making that impacts the 1st Amendment and other concepts that we hold sacred. Sometimes, it creates truly bizarre scenarios, like the arguments being made by Texas’s Attorney General in the latest amended antitrust complaint against Google.

As you’ll likely recall, back in December, Texas’s Attorney General Ken Paxton — along with nine other states — filed an antitrust lawsuit against Google. There were some bits in the laws that suggested some potentially serious claims, but the key pars were heavily redacted. Of the non-redacted parts there were really embarrassing mistakes, including claiming that Facebook allowing WhatsApp users to backup their accounts to Google Drive was giving Google a “backdoor” into WhatsApp communications.

That makes the latest amended complaint even more bizarre. It attacks Google for doing more to protect its users’ privacy. As you remember, a couple weeks ago, Google noted that as it got rid of 3rd party cookies in Chrome, it wasn’t going to replace it with some other form of tracking. This is, clearly, good for privacy. It is, also, good for Google, since it’s better positioned to weather a changing ad market that doesn’t rely on 3rd party cookies tracking you everywhere you go.

So the new amended complaint takes a move that is clearly good for everyone’s privacy and whines that this is an antitrust violation.

Google?s new scheme is, in essence, to wall off the entire portion of the internet that consumers access through Google?s Chrome browser. By the end of 2022, Google plans to modify Chrome to block publishers and advertisers from using the type of cookies they rely on to track users and target ads. Then, Google, through Chrome, will offer publishers and advertisers new and alternative tracking mechanisms outlined in a set of proposals that Google has dubbed Privacy Sandbox. Overall, the changes are anticompetitive because they raise barriers to entry and exclude competition in the exchange and ad buying tool markets, which will further expand the already dominant market power of Google?s advertising businesses.

Google?s new scheme is anticompetitive because it coerces advertisers to shift spend from smaller media properties like The Dallas Morning News to large dominant properties like Google?s. Chrome is set to disable the primary cookie-tracking technology almost all non-Google publishers currently use to track users and target ads. A small advertiser like a local car dealership will no longer be able to use cookies to advertise across The Dallas Morning News and The Austin Chronicle. But the same advertiser will be able to continue tracking and targeting ads across Google Search, YouTube, and Gmail?amongst the largest sites in the world?because Google relies on a different type of cookie (which Chrome will not block) and alternative tracking technologies to offer such cross-site tracking to advertisers. By blocking the type of cookies publishers like The Dallas Morning News currently use to sell ads, but not blocking the other technologies that Google relies on for cross-site tracking, Google?s plan will pressure advertisers to shift to Google money otherwise spent on smaller publishers.

No good deed goes unpunished. Yes, it is true that Google’s move will undoubtedly harm companies that rely on intrusive 3rd party cookies. But that’s good for privacy. And it’s funny that this is coming in the very same antitrust lawsuit that whines that one of Google’s antitrust problems is that it snoops on WhatsAspp (when it doesn’t). Here, Google is clearly taking a stand — the same stand that Mozilla and Apple took earlier — against creepy and problematic 3rd party cookies, and it gets spun by Texas’s AG as an attack on “small advertisers.”

I’m kind of curious what the AGs bringing this lawsuit are aiming for here. Yes, I get that the entire point is just to attack Google, but if they win, do they want to require Google to be worse about privacy? Because that’s ridiculous.

The complaint does try to argue that Google’s Privacy Sandbox isn’t really about privacy, and that it’s all a “ruse.” It even (selectively) quotes an old EFF blog post that rightly calls out some of the problems with the Privacy Sandbox approach. But the EFF blog post is not — as the amended complaint implies — suggesting that Google should allow more 3rd party cookie tracking. It’s just calling out some of the other problems of the Privacy Sandbox. No one is arguing that Privacy Sandbox is a panacea for privacy issues. And no one is arguing that Google is magically all “good” for online privacy — indeed there are plenty of legitimate reasons to be concerned about Google’s impact on privacy. But the announcement it made recently was, quite clearly, a step in the right direction for privacy, and while it may make life difficult for intrusive advertisers who rely on other methods of advertising, that’s really on those advertisers to be better.

There are other things in these lawsuits that may be damning for Google and its practices. I’m still really interested in learning about the redacted sections, which might reveal actual bad practices. But, it’s not encouraging at all that Texas’s AG is taking a step towards better protection of user privacy as some sort of evidence of nefariousness — and doing so in the very same complaint arguing that part of the reason Google violates antitrust laws is that it “violates the privacy” of Android users (via the WhatsApp backup feature).

Filed Under: 3rd party cookies, advertising, antitrust, ken paxton, privacy, privacy sandbox, texas, tracking
Companies: google

Embarrassing: New Antitrust Suit Against Google Confuses WhatsApp Encrypted Backup Option With Giving Google A Backdoor

Say That Again

from the guys,-guys,-guys dept

Look, I get the fact that people are concerned about big technology companies. I’m very concerned about big technology companies too, and think it’s important that we figure out ways to build more competition, and to get away from reliance on many of these companies. But the way in which so many assume that antitrust is the only way to get there is problematic. And it’s even more problematic when the antitrust lawsuits they file seem to be mostly based on misunderstanding or misrepresenting certain things with totally innocuous explanations. That keeps happening.

The DOJ’s antitrust lawsuit against Google is embarrassingly weak, and seems to confuse who has market power (e.g., claiming that Google paying billions to Apple is some sort of proof of its own dominance). The FTC and nearly all states’ antitrust suits against Facebook are fundamentally stronger than the DOJ’s case against Google, but still, astoundingly weak in terms of actual evidence of antitrust violations.

This week, there are two new entrants. One lawsuit was just announced today, and we’ll explore that one later, but yesterday, Texas Attorney General Ken Paxton, who was one of the earliest Attorney Generals who spoke out in favor of going after Google, has now done so, with a an interesting antitrust lawsuit against the company, done with the support of 9 other states, all with Republican Attorneys General. Notably, some of the states (though not all) also signed onto the DOJ’s antitrust lawsuit.

This lawsuit takes a different approach from the DOJ’s lawsuit, which focused on the market for general search services and search advertising. This one focuses on general display advertising. And maybe there’s an argument that Google is doing something bad in how it handles the display advertising market. Indeed, some of the complaint (though heavily redacted), suggests some potentially sketchy behavior on the part of Google, to block competition in the ads space. If that’s proven, that would be bad, and it would be good if the lawsuit forced Google to change those practices and enable more competition.

There’s also a heavily redacted section, that hints strongly that Google and Facebook worked out some sort of agreement to keep Facebook from competing as directly with (and undercutting the pricing of) Google’s display ads business. And that does sound like a potentially huge deal — one that very well might truly be anticompetitive. But the details and what’s redacted are important.

It would be great if the lawsuit focused on things like those two points. But it also includes other things that seem to suggest a near total and fundamental misunderstanding of how technology works, which does not provide much confidence that the Attorneys General know what they’re talking about in the other parts. Notably, there’s this scary bit that started making the rounds on Twitter, with people asking what the fuck was going on:

Google also has violated users? privacy in other egregious ways when doing so is convenient for Google. For instance, shortly after Facebook acquired WhatsApp, in 2015, Facebook signed an exclusive agreement with Google, granting Google access to millions of Americans? end-to-end encrypted WhatsApp messages, photos, videos, and audio files.

That raised many eyebrows, because, if true, that’s huge news. Most of the details here are redacted as well, but the complaint calls this a “fundamental breach of privacy.” But, this seems like a giant misunderstanding by the lawyers who wrote the lawsuit. What they appear to be referencing is a deal from 2015 in which Google allowed WhatsApp users to easily back up their encrypted data to Google Drive. That’s a useful feature, and not at all nefarious. The content is still encrypted, so Google doesn’t get access to anything more than the encrypted blob. Google even has this integration as a Google Cloud case study.

That’s not exactly the behavior of a company that has a nefarious deal to snoop on everyone’s WhatsApp messages. Notably, that integration is a totally voluntary opt-in feature that is really useful. It lets you restore your WhatsApp if you’re switching phones, or just make sure you don’t lose all your messages if you lose or break your phone. It’s a good thing — not some evil attack on privacy, as the lawsuit suggests.

There is some more redacted content around this, suggesting that Facebook shared some kind of information with Google that it shouldn’t have, but the non-redacted parts seem to misunderstand the technology, which seems problematic. It also seems emblematic of lawyers looking to twist anything against the company, rather than looking for actual violations.

As for the rest, much of it seems to misunderstand the ad market. In particular there’s a long discussion on header bidding, and how Google did not like header bidding and wanted to kill it:

Finally, Google wanted to eliminate header bidding to foreclose any competition with its publisher ad server monopoly. The companies involved with header bidding would have a foothold on a key function of Google?s ad server: routing a publishers? inventory to exchanges. With that, a major header bidding player like Amazon or Facebook was well-positioned to eventually compete directly with Google?s monopoly ad server. Without control over publishers? inventory, Google would lose the ability to block exchange competition and tilt trading to Google.

I’m a publisher. And, every freaking day, we get approached by some new online ad firm that wants us to sign up to use their ads because of their use of header bidding. There must be hundreds of ad providers now offering header bidding. Honestly, as a publisher, at this point, it’s almost impossible to put ads on your site that don’t make use of header bidding.

If the all powerful Google set out to quash header bidding, holy crumb, did it fail.

There are elements (again, too much redacted) in the complaint that do seem concerning. And if the end result of this lawsuit is to force Google to play more fair with display ads, that would be a good thing. So I’d be happy if that were the result here. But I’m concerned by what appears to be a clumsy misunderstanding of the technology, and the status of the advertising market today.

Filed Under: antitrust, cloud backup, competition, display ads, encryption, ken paxton, messages, privacy
Companies: facebook, google, whatsapp

Judge Leaning Strongly Towards Tossing Pimping Charges Against Backpage Executives

Legal Issues

from the when-all-you-have-is-a-grandstand... dept

Because there doesn’t seem to be a politician out there that can interact with Backpages without grandstanding, the attorneys general of two states — California’s Kamala Harris and Texas’ Ken Paxton — combined forces to have company executives arrested on pimping charges.

The criminal complaint somehow tried to portray the fees charged by Backpage as profiting from prostitution. While it should have been explicitly clear Backpages was immune from prosecution thanks to Section 230, the two AGs decided to close their eyes, ears, and brains and press forward.

It’s likely nothing will come of this misguided prosecution — one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

It’s a tentative ruling that doesn’t have the full force of a published opinion behind it, but it does give the solid impression that any dreams of being able to prosecute site owners for third-party content will have to be taken to Congress, rather than local courts — though, the judge has said he’ll allow the parties to present more arguments before making a final decision. As it stands now, Section 230 prevents the sort of thing these two AGs are pursuing.

From the opinion [PDF]:

Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party’s placement of the ad, not because Backpage profiting from the ad placement.

This does some pretty severe damage the state’s argument that charging for ads means profiting from sex trafficking. The last paragraph of the ruling similarly upholds Backpage’s Section 230 immunity, even as it moved content from site to site.

Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.)

To make the charges stick, the state would have to prove that the Backpage actually participated in sex trafficking — something no one has even alleged at this point. Instead, those fighting Backpage have simply chosen to attack the most visible target, rather than those posting ads and/or exploiting underage prostitutes.

The ruling says there’s only one way to have the supposed immunity “problem” addressed and that’s to push Congress into doing something about it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

No one should be in any hurry for Congress to take another look at Section 230 immunity. Right now, it does a very solid job protecting websites and social media platforms from the speech and actions of their users. Without it, the internet would be a much smaller, more-locked down venue for communication and nowhere near as useful for disseminating information. Anything Congress would do at this point would only harm it.

Politicians and prosecutors need to stop taking the easy route and go after those actually breaking the law. If cops want to track down sex traffickers and haul them to court, fantastic. But it does no one any good to pursue baseless pimping charges against site owners, rather than those actually engaged in criminal activity.

Filed Under: cda 230, intermediary liability, kamala harris, ken paxton, pimping, section 230
Companies: backpage

Arrested Backpage Execs Ask Kamala Harris To Drop Bogus Case She Herself Has Admitted She Has No Authority To Bring

Legal Issues

from the grandstanding dept

A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris’ “investigator” using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.

The execs are now hitting back — as they should. They’ve asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn’t even satisfy the requirements for “pimping,” which is what they’re charged with.

The AG?s Complaint and theory of prosecution are frankly outrageous. The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads. The AG?s chrages directly contravene the First Amendment and the immunity afforded to websites under Section 230 of the Communications Decency Act (?CDA?), 47 U.S.C. ? 230. Escort ads on Backpage.com are protected speech under the First Amendment, as several courts have held. The AG cannot arrest, imprison and refuse to release individuals associated with the website simply based on an investigator?s opinions about what he believes is ?obvious? about escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have rejected the same tack time and again. The First Amendment also expressly precludes state authorities from imposing criminal liability on parties that publish or distribute speech absent proof of scienter, i.e., that the publisher knew the specific information published was unlawful. The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), recognizing the First Amendment prohibits states from imposing criminal liability that would require publishers to review all materials they distribute, because such a requirement would severely chill speech. More specifically, the AG?s theory expressly violates Section 230, which Congress enacted twenty years ago to preserve and promote free speech on the Internet by immunizing website operators from liability for publishing content provided by third-party users. Section 230 preempts all contrary state laws?including state criminal laws. Indeed, Attorney General Harris has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has now commenced a prosecution to do precisely what she admits Section 230 prohibits.

That point about Harris “acknowledging” that Section 230 bars this lawsuit is a big one. It’s based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:

In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental?these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (?CDA?) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA….

Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?

Separately, the lawyers have sent a letter to Harris directly reminding her of this and asking her to drop the case:

Ads posted on Backpage.com are protected by the First Amendment, as several courts have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County, Illinois and rejecting much the same theories that the State asserts here: ?[A] public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.? … The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech.

More specifically, Section 230 precludes the charges the State seeks to assert. As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference? especially by state authorities?that would chill free speech on the Internet.

Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General…. It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring.

Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.

Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn’t care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.

Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.

In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.

[….]

Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her ?perp walk? on the evening news. Arpaio didn?t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won?t pay. The taxpayers of California will.

And, as Kamala Harris knows, it probably won?t even make the evening news.

Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She’s yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can’t stick? That’s a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it’s the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.

Filed Under: california, carl ferrer, cda 230, first amendment, free speech, grandstanding, intermediary liability, james larkin, kamala harris, ken paxton, michael lacey, pimping, prostitution, section 230
Companies: backpage.com

Texas Attorney General Sues Self To Stop Self From Releasing Documents He Says Can't Be Released

Legal Issues

from the ourobouros dept

Don’t mess with Texas. It’s already a mess.

Texas Attorney General Ken Paxton has been in the news quite a bit lately. He tried to block the state from recognizing a common-law marriage between two women (who had been together for eight years), but had his efforts undone by a Travis County court.

Around this same time, a second convening of a grand jury managed to do what the first one couldn’t: bring an indictment against Paxton for alleged financial fraud. Paxton apparently wasn’t very forthcoming about what he stood to gain from the sale of $200,000 in Servergy stock to a couple of investors. The apparent sketchiness of Paxton’s actions was compounded by an ongoing investigation of the company by the Securities and Exchange Commission.

Now, he’s in the middle of another conflict. Texas legislators aren’t too happy that the state’s Department of Public Safety keeps asking for money, but failing to provide many details on how it’s being spent.

When the DPS in March this year asked for another $123 million to help “secure the border,” state Rep. Cesar Blanco blasted the DPS for taking credit for work done by the federal government, and failing to back up its claims with data.

“The state has nothing to show for its money,” Blanco, D-El Paso, told El Paso Times on March 30.

According to the DPS, it was partnering with Customs and Border Patrol on a “surge” effort to stop illegal immigration and drug trafficking. The CBP, on the other hand, portrayed the so-called “partnership” as the DPS’s attempt to do a little coattail-riding on an ongoing effort by the DHS agency. It claimed it had not participated in a joint effort with the state entity.

Two local newspapers started digging into the dubious claims the DPS was making to justify the need for more handouts. What they uncovered was some very dubious math.

“DPS merged Border Patrol’s massive drug seizure statistics with its own to tout the operation’s effectiveness,” the American-Statesman reported in June, and when state lawmakers asked for “DPS-specific statistics,” the DPS refused.

The newspaper continued digging for information, seeking receipts and other documents related to expenses racked up by scattered DPS agents sent ostensibly to “aid” the CBP in its border-securing efforts. The DPS apparently has no intention of handing over these records and has sued to keep them secret.

That’s where things get really twisted. AG Ken Paxton has the final say on the release of public records by the DPS. To obtain an injunction, the DPS has to sue Paxton to prevent the release of documents. It has done so, claiming the usual stuff about “safety” and “terrorism.”

Public records law requires the DPS to sue the attorney general if it wants to keep secret information the attorney general wants to release. It did sue him, on Tuesday, claiming the information could endanger state troopers’ “physical safety” or create a “substantial threat of physical harm.”

It also claims that the information is confidential because it involves “preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity.”

The DPS asked a Travis County judge to exempt it from disclosure under the “common-law physical safety exception” and the Homeland Security Act.

And the twist? Another conflict of interest.

The DPS is represented, oddly, by Attorney General Paxton.

So, Paxton is suing Paxton to prevent Paxton from releasing documents Paxton claims (by proxy) can’t be released for safety/terrorism reasons. However, Paxton must obtain a favorable ruling from a judge to force himself not to release documents he possibly feels shouldn’t be released in the first place. It all comes down to Paxton, who can press either side of the argument, depending on his personal feelings.

This won’t be the first time Paxton has basically sued himself. Courthouse News Service covered a similarly incongruous legal filing back in February.

The Texas Department of Public Safety sued Texas Attorney General Ken Paxton, claiming DPS information about anti-terrorism operations in its school marshal program is exempt from disclosure, in Travis County Court.

And, as if everything couldn’t get any more conflicting/interesting, the Texas House voted in April to move the authority for prosecuting corruption allegations against state officials from the county’s Public Integrity Unit to the Department of Public Safety — which is represented by an attorney general currently facing securities fraud charges.

It appears the left hand indeed knows what the right hand is doing, at least in terms of the DPS and its various interests. This normally would be a good thing, as government entities often seem to operate as free agents, rather than as complementary parts of a cohesive whole. But in this case, the guy who has the final say on document releases has to sue himself to override his own decisions. On top of that, should Paxton decide to participate in any more (allegedly) fraudulent behavior, he’ll be doing so as the legal representative of the agency charged with charging him.

Filed Under: border patrol, conflict of interest, department of public safety, dps, foia, ken paxton, lawsuits, money, texas, transparency