It’s no secret that politicians will often… er… “repurpose” legislation and talking points handed to them by companies. In some cases, they’re even willing to admit who really wrote things. But, more generally, they at least try to hide it. However, sometimes they don’t try very hard. NY State Assembly Leader Joe Morelle recently decided to send a letter expressing his support for the merger between Comcast and Time Warner Cable. Fair enough. But the folks over at Stop The Cap noted that much of the letter appeared to be word for word identical to Comcast’s David Cohen’s Congressional testimony and Comcast press releases. This leaves a few possible explanations:
Comcast wrote the letter.
Joseph Morelle (or some poor intern he has) is a really bad plagiarist, who happens to only use Comcast’s own material as source material.
It’s all a big coincidence. Only so many words out there, right?
I guess there could be a few other options as well, but they’re mostly escaping me at this point… Either way, the similarities noted by Stop the Cap:
N.Y. State Assembly Leader Joe Morelle: ?The combination of Comcast and Time Warner Cable will create a world-class communications, media and technology company to help meet the increasing consumer demand for advanced digital services on multiple devices in homes, workplaces and on-the-go.?
David Cohen, executive vice-president, Comcast: ?The combination of Comcast and TWC will create a world-class communications, media, and technology company to help meet the insatiable consumer demand for advanced digital services on multiple devices in homes, workplaces, and on-the-go.?
Joe Morelle: ?Comcast has a proven record of investing in new technologies, facilities and customer support to provide the best in broadband Internet access, video and digital voice services.?
David Cohen: ?Comcast has a proven record of investing in new technologies, facilities, and customer support to provide the best in broadband Internet access, video, and digital voice services.?
Joe Morelle: ?Similarly, TWC has made significant strides in offering a diverse array of video, broadband, and voice services to its customers.?
David Cohen: ?Similarly, TWC has made significant strides in offering a diverse array of video, broadband, and voice services to its customers.?
Joe Morelle: ?Combining the two companies? complementary strengths will accelerate the deployment of next-generation broadband Internet, video and voice services across the new company?s footprint.?
David Cohen: ?Combining the two companies? complementary strengths will accelerate the deployment of next-generation broadband Internet, video, and voice services across the new company?s footprint.?
Joe Morelle: ?Residential customers will benefit from technological innovations including a superior video experience, higher broadband speeds and the fastest in-home Wi-Fi, while also generating significant cost savings and other efficiencies.?
Comcast Press Release: ?Through this merger, more American consumers will benefit from technological innovations, including a superior video experience, higher broadband speeds, and the fastest in-home Wi-Fi. The transaction also will generate significant cost savings and other efficiencies.?
Joe Morelle: ?In just two-and-a-half years, over 350,000 families, representing approximately 1.4 million low-income consumers, have been connected to the Internet thanks to this program. This proposed merger would extend this vital program to many more low-income households in New York by providing access to it in certain areas of the state currently only served by Time Warner.
David Cohen: ?In just two and a half years, over 300,000 families, representing some 1.2 million low-income consumers, have been connected to the transformative power of the Internet thanks to this program. The transaction will extend this vital program to millions more Americans in the areas currently served by TWC.?
Yeah, I’m sure it’s all just a completely random coincidence…
It seems inevitable that NYPD officers will be wearing body cameras in the near future. As part of the remedies ordered by Judge Scheindlin in her stop-and-frisk decision, a trial program for body cameras is due to roll out, along with additional oversight.
I am ordering the NYPD to institute a pilot project in which bodyworn cameras will be worn for a one-year period by officers on patrol in one precinct per borough — specifically the precinct with the highest number of stops during 2012.
The two former defenders of the cop status quo — Mike Bloomberg and Ray Kelly — both hated the idea. Bloomberg derided it in a press conference after Scheindlin’s decision, saying the public would contest any body cam footage that didn’t live up to preconceived notions.
A camera on the lapel or hat of a police officer… He didn’t turn the right way. My god, he DELIBERATELY did it. It’s a solution that’s not a solution…
The city’s lawyers, appealing Scheindlin’s decision, made the disingenuous argument that the public’s privacy would be damaged by police body cameras.
[I]mplementing a body camera pilot project itself poses significant harm in terms of time, resources and possible impingement on privacy rights of the public.
Somehow, the thousands of surveillance cameras deployed by the NYPD pose no threat to privacy. Only those worn (under protest) by officers do.
But Bloomberg and Kelly are no longer co-helming the NYPD. In a press conference following Eric Garner’s death at the hands of NYPD officers, Mayor Bill de Blasio stated he felt body cameras are, for the most part, a “productive” idea.
The body cameras are part of the agreement we reached with the federal judge, but they are complicated[…] I think the basic reality is that it is a technology that we agreed to as part of that settlement, but it’s not something that has been perfected yet, and it’s something that has to be worked on quite a bit to be used on the kind of scale we’re talking about here. But I certainly think it’s a productive idea, and it will, I think, ultimately improve the relationship between police and community.
In an appearance on MSNBC Wednesday morning, NYPD Commissioner Bill Bratton predicted officers around the country will eventually be wearing video cameras on their bodies to record interactions with the public.
“That’s the direction where American policing is going. That’s where we’re going in the NYPD. We’re working very closely with the LAPD, who’s about a year ahead of us in putting cameras in place,” he said.
What evidence exists as to body cameras and their impact on both police misconduct and baseless complaints is very limited at this point. But what has been gathered so far is largely positive — both for police departments and citizens. Rialto, CA’s police department ran a body camera test program and was pleasantly surprised by the results.
The Rialto study began in February 2012 and will run until this July. The results from the first 12 months are striking. Even with only half of the 54 uniformed patrol officers wearing cameras at any given time, the department over all had an 88 percent decline in the number of complaints filed against officers, compared with the 12 months before the study, to 3 from 24.
It doesn’t just encourage police officers to behave better and with more restraint, it also heads off bogus misconduct complaints. If both parties know they’re being recorded, both parties behave better and are less likely to misconstrue events.
The public advocate’s office estimates that equipping 15 percent of the city’s police force would cost under $5 million, with each camera costing $450 to $900. Outfitting the entire department would run about $32 million…
The city paid roughly $152 million as a result of claims of police misconduct, the report states.
The cost for the entire NYPD is only one-fifth of one year’s settlements. If the cameras are only half as effective as they were in Rialto in terms of reducing complaints, the corresponding savings in settlements should be enough to buy every cop in the city a new body cam every year. If a reduction in complaints tracks almost directly with the number of lawsuits settled, this would result in a minimum of a $50-60 million drop in settlements. And that’s at half the 88% drop in complaints reported by Rialto’s PD.
Guess who doesn’t want to see police officers outfitted with body cams? Unlike last year, both the mayor and the police commissioner are on board with the idea. The holdout here is the walking embarrassment that is Pat Lynch, the president of the Police Benevolent Association (the largest union within the NYPD), whom we last heard decrying the cellphone-wielding citizens trying to “demonize” cops with their recordings of police brutality. Here’s Pat on the issue of body cameras.
“We are reserving our decision on body cameras until we see some real evidence of their effectiveness and impact on the officers who carry them. The Public Advocate cites the $152 million that the city spends on lawsuits against police officers but what she fails to say is that the city refuses to fight even the most ridiculous and baseless of the claims. Instead, they settle these ridiculous suits when they should fight everyone of them to conclusion which would effectively put an end to quick buck lawsuits against our officers.”
Hey, Pat: you know what else “effectively puts an end to quick buck lawsuits against officers?” Body cameras. When parties know the situation is being recorded, the quick bucksters are less likely to file complaints they know can easily be contradicted. Putting body cameras on officers actually helps shield them from bogus complaints.
And if your problem is that the city rolls over for “ridiculous and baseless claims,” why not give your officers a weapon to help battle those? In this day and age, “your word against mine” just isn’t enough, even with prosecutors and judges still more than willing to assume a police officer always tells the truth.
The “downside,” of course, is that is that body cameras also record bad behavior by police officers. For Pat Lynch, this potential outcome is unacceptable. It’s much, much harder to defend officers whose misconduct is caught on tape. (But not impossible…) And police union leaders are known for their willingness to defend the worst of the worst, even in the face of public outcry or, even worse, when police departments are trying to rid themselves of bad cops they can no longer afford to indulge.
If Lynch is tired of his officers being “demonized” by camera-wielding citizens, he should jump at this chance to give his officers a chance to fight back with recordings of their own. Instead, he just spins the Public Advocate’s settlement numbers as an indicator of a city too willing to indulge baseless lawsuits. His cops can do no wrong and are oppressed by the tyranny of the public. But rather than give his men the technology to prove his theories, he argues against it, claiming this particular jury is still out.
New York Governor Andrew Cuomo’s office continues to do everything it can to prevent its emails from being accessed by FOIL (Freedom of Information Law) requests. As Justin Elliott of ProPublica reported earlier this year, Cuomo’s office has been making use of personal email accounts to skirt FOIL requests.
Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.
I know because I got one myself. And three other people who interact with the governor’s office on policy or media matters told me they have too. None of the others wanted to be named.
This isn’t all Cuomo’s office is doing, though. It’s also set its email retention bar incredibly low. With personal email accounts already removing a certain percentage of communications from the “responsive document” set, the governor’s office has moved towards eradicating access to the rest, using an unusually short retention schedule. ProPublica again has the story.
Last year, the state started deleting any emails more than 90 days old that users hadn’t specifically saved — a much more aggressive stance than many other states. The policy shift was first reported by the Albany Times Union.
A previously unpublished memo outlining the policy raises new questions about the state’s stated rationale for its deletions policy. What’s more, the rules on which emails must be retained are bewilderingly complex – they fill 118 pages – leading to further concern that emails may not be saved at all.
The state’s policy is supposedly predicated on storage limitations. But this was put into place as part of a move to Microsoft’s Office365, which offers 50 Gb of storage per email user. And, as ProPublica points out, the state’s version includes unlimited email archiving.
Despite the reality of the storage situation (i.e, that it’s not going to ever be a problem), the state still automatically deletes emails when they hit the expiration date. When asked why the state does this when it’s obvious it has plenty of email storage space, it delivered this nonsensical response.
The Office of Information and Technology Services declined to comment on the record. An official in the office said even though the state can store large quantities of email, it can still be difficult to manage.
“Just because you have a big house doesn’t mean you have to shove stuff in it,” the official said.
Yeah, but if this “big house” was actually purchased for you by the public to store stuff it might need later, the purchasers expect you to make full use of the storage space. What it doesn’t expect is for you to throw out a large percentage of its belongings (government emails are public records) every 90 days. Policies vary from state to state, with most email being held for two years minimum. Certain categories are held onto for a longer period of time, but rarely, if ever, are government emails given a shorter “sell by” date than the state of New York.
Not everything disappears at 90 days. Some are supposed to be held onto for far longer, but as far as ProPublica can tell, there’s no one in place to ensure the numerous and complex retention rules are followed.
There is no internal or external watchdog to make sure the rules are being followed, [John] Kaehny [president, Reinvent Albany] said.
The state also doesn’t have a standardized system for preserving emails that do have to be saved, according to the Office of Information Technology Services official. State workers can save their emails by printing them out, pasting them into Microsoft Word documents or placing them in a special folder in the email program itself.
“Everyone does it differently, and some people are still learning how to do it,” the official said.
Email related to FOIL requests and litigation is supposed to be preserved indefinitely. But with de facto 90-day destruction in place, journalists and others seeking public records would need to know what they’re searching for before the corresponding emails have even been composed. Government misconduct is usually discovered months or years down the road. By that time, most responsive emails will have long since been destroyed, especially when there’s no one making sure possibly incriminating communications are retained.
What’s being touted as a solution to an email management problem looks an awful lot like an easy way to minimize the number of responsive documents that might be returned to a citizens’ rights group or an investigative journalist. Ninety days isn’t acceptable as a warranty period, much less a time frame for the retention of public records.
There’s been some attention (especially in tech circles) to the upstart primary challenge in NY against Governor Andrew Cuomo (and his preferred Lt. Governor Kathy Hochul), coming from law professors Zephyr Teachout and Tim Wu. Both Teachout and Wu have been in and around a variety of tech and internet issues for years, and are pretty well-known in the community. Wu, of course, is well-known for coining the term “net neutrality” but has been deeply involved in a variety of other issues as well. Teachout has also been deeply involved in a variety of issues we frequently discuss here as well, including being national director of the Sunlight Foundation. Cuomo, on the other hand, is basically the very definition of traditional old school politics, and is currently embroiled in a big corruption scandal. Many people have noted that Cuomo is likely to win handily over Teachout just on name recognition alone, but since Lt. Governors run separately from Governors, Wu has a legitimate chance to beat Hochul.
Bizarrely, the Cuomo campaign seems to be doing everything it can to attract even more attention to the Teachout/Wu campaign, sending its own protestors to Teachout events. The campaign has also been attacking Wu.
But the most ridiculous of all is that the Cuomo campaign has filed a frivolous legal challenge against Teachout, claiming that she hasn’t really lived in New York state long enough to be on the ballot. The whole thing seems pretty clearly to be a way to force the bootstrapped campaign to spend a bunch of money on lawyers (and to spend a bunch of time and resources fighting the legal challenge, rather than campaigning). Teachout and Wu are running a crowdfunding campaign to try to raise some extra money to handle the legal challenge, so they don’t have to waste all of their campaign money just to beat back a frivolous lawsuit.
In court last week, it seemed pretty clear that this whole thing is also a way for Cuomo’s political operatives to go fishing through Teachout’s history for anything it can use against her in the campaign:
The Cuomo lawyers have asked for boxes of documents ? not only her tax filings and rental checks and voting records. They have also demanded her credit card and debit card records.
As Teachout notes, Cuomo is acting as if it’s “on the edge of illegal to even run against Governor Cuomo.”
It may be standard operating procedures to “play dirty” in politics, but this whole thing is making Cuomo look especially petty… and scared. Is he really so afraid of a couple of law school professors who happen to have some fans online? Why does he feel the need to bully them with frivolous lawsuits?
Update: The judge has ruled against Cuomo allowing Teachout to continue her campaign.
For years — since before he was NY State’s governor — we’ve raised questions about Andrew Cuomo’s activities. When he was Attorney General, he often used that position to grandstand around various issues that sounded good politically, but were real world disasters. He browbeat ISPs into policing the internet, when they had no legal obligation to, with bogus threats of lawsuits — even pushing them to install spyware to snoop on everyone’s traffic. He was among the leaders of the group of Attorneys General who wanted to blame high-profile internet companies for the way consumers used them, and he tried to broker a “3 strikes” system to kick file sharers offline. Since becoming governor, he’s been embroiled in a bunch of scandals, including having staffers use private email accounts to hide their work from Freedom of Information laws.
Now, however, things are heating up. The NY Times has reported that Cuomo’s greatly hyped “corruption commission” appeared to be nothing more than a front group for Cuomo himself. That is, he seemed fine with it investigating “corruption” of others, but if it came anywhere near him or his friends, Cuomo’s people ordered the commission to back away — and they did. The crowning anecdote:
It was barely two months old when its investigators, hunting for violations of campaign-finance laws, issued a subpoena to a media-buying firm that had placed millions of dollars? worth of advertisements for the New York State Democratic Party.
The investigators did not realize that the firm, Buying Time, also counted Mr. Cuomo among its clients, having bought the airtime for his campaign when he ran for governor in 2010.
Word that the subpoena had been served quickly reached Mr. Cuomo?s most senior aide, Lawrence S. Schwartz. He called one of the commission?s three co-chairs, William J. Fitzpatrick, the district attorney in Syracuse.
?This is wrong,? Mr. Schwartz said, according to Mr. Fitzpatrick, whose account was corroborated by three other people told about the call at the time. He said the firm worked for the governor, and issued a simple directive:
?Pull it back.?
The subpoena was swiftly withdrawn. The panel?s chief investigator explained why in an email to the two other co-chairs later that afternoon.
?They apparently produced ads for the governor,? she wrote.
That last line is fairly incredible, isn’t it? They don’t even come up with any kind of excuse. They just admit that when the government asked them to stop digging into things involving his friends, they did. The NY Times article is incredibly damning, highlighting how Cuomo promised the committee would be totally independent, even directly saying that it was free to investigate him and his associates. But, the reality was quite different. And Cuomo doesn’t seem to care. His response is that of course he was allowed to meddle in the commission’s affairs since it was his commission. Here’s what Cuomo said when the commission was set up:
Mr. Cuomo said early on that the commission would be ?totally independent? and free to pursue wrongdoing anywhere in state government, including in his own office. ?Anything they want to look at, they can look at ? me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman,? he said last August.
Here’s what his “office” said now in response to the NYT’s inquiry about the story:
First, your fundamental assertion is that the Commission was independent. It wasn’t. No
Moreland Commission can be independent from the Governor’s office. It is purely a creation of
the Governor’s power under the law, which vests subpoena power in the Governor or his
designee.
Right. Furthermore, Cuomo’s response is that it would be a conflict of interest for the panel to investigate the governor, since he had appointed them. Talk about a brilliant anti-corruption strategy. The prevailing party gets to appoint the panel, block its use against any friends or those in the ruling party, and then the panel can only target the Governor’s enemies. Damn. That’s sneaky. And obnoxious. And, well, it seems to us, incredibly corrupt.
The corruption here is different ? and much much worse. If an aid to the chief corruption reformer in NY has corruptly interfered with a corruption investigation, then NY doesn?t need that ?corruption reformer? anymore ? because that?s not what he is.
If this charge is true, then this is a governor who believes himself above the law. THAT is the keystone of corruption.
Lessig notes that Cuomo should resign over this scandal, though it seems unlikely that will happen. Either way, the level of corruption infiltrating our government these days is absolutely sickening. Federal prosecutors are apparently now investigating the situation, though, it’s not all that often that those in power will take down “one of their own.” Sure, it happens (pretty much all the time if you’re in Illinois), but chances are Cuomo will skate by this one as well. Because that’s how the system functions.
While Uber gets much of the attention in the ride-sharing space, many people I know in San Francisco swear by Lyft instead. Lyft has the reputation of being the more laid back, friendlier version of Uber. Rather than Uber’s infamous “surge pricing,” Lyft has happy hour discounts. Rather than the sleek corporate feel of Uber, Lyft is famous for drivers putting giant pink mustaches on their cars, encouraging passengers to sit up front… and to give drivers a good old fashioned fist bump. While Uber has been available in New York City for some time, Lyft took its time, finally announcing plans to open up in NYC on Friday (well, Brooklyn and Queens, initially, staying away from taxi central Manhattan).
Not surprisingly, the NYC Taxi and Limousine Commission was not pleased with this. While Lyft says it’s tried to work with the TLC, the TLC disagrees, noting that Lyft agreed to a single meeting that just happened this week.
So, of course, it’s not surprising that, within a day, the TLC officially declared Lyft an “unauthorized service” in NYC, meaning that it may start cracking down — something NYC did last year to the other top competitor in the space, Sidecar. Lyft says it’s still planning to launch, insisting that it doesn’t believe the rules the TLC are citing apply to it. Basically “come at us, TLC!”
The TLC insists that it wants Lyft to be able to operate in New York City, even saying that it’s willing to change some of its rules, but bureaucracies — especially those with close ties to highly regulated industries that have a history of keeping out competition — don’t tend to move very fast. As we’ve noted before, cities that quickly ban these kinds of services are basically advertising themselves as places not friendly to innovation and/or run by corrupt officials.
For all the arguments about how these services don’t meet the “stringent” requirements for existing taxi regulations, almost everyone I know prefers using services like Lyft and Uber over traditional cab services. They’re much more convenient and personally I’ve found the service to be significantly better overall. Part of the problem is that the regulations were built for a different time, when there was significant information asymmetry between a rider and a driver, allowing drivers to take advantage of riders. But, these kinds of services actually flip that equation: they provide much greater information to the rider, and even give them a big say in passing on similar information to others, in the form of ratings. Thus, there are natural incentives to provide a better overall service, making many of the purposes of existing regulations stale and obsolete.
But, of course, as often happens in highly regulated industries, those who already made it through the hurdles like those regulations because they limit competition, and allow prices to be higher due to scarcity. It also gives them less incentive to provide better services. Thus, you get into a world of regulatory capture, where things are worse for everyone. While, yes, the “intentions” of these regulations may be good, the reality is that the information exchange enabled by technology makes many of the regulations obsolete. A slow-moving bureaucracy (especially one dealing with regulatory capture) isn’t going to move very fast, but that’s harmful for overall innovation in the space and setting up the best conditions for citizens of NYC, who probably prefer a better overall experience in getting around.
New York’s highest court has just struck down a cyberbullying law that went (as many do) past the point necessary and started walking all over First Amendment-protected speech. The wording of the law (particular to Albany County) defined cyberbullying in the following loose language.
1. “any act of communicating … by mechanical or electronic means,”
2. “including posting statements on the internet or through a computer or email network,”
– “disseminating embarrassing or sexually explicit photographs;”
– “disseminating private, personal, false or sexual information,”
– “or sending hate mail,”
3. ”with no legitimate private, personal, or public purpose,”
4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.” As
This wasn’t limited to offensive speech to a person, but included offensive speech about people; and it wasn’t limited to speech that falls within a First Amendment exception (such as threats, or knowing defamatory falsehoods)[…] Note, for instance, that the ordinance criminalizes “disseminating … personal … information” — even if it’s not “false” or “sexual” — about any person, if it’s done “with the intent to … annoy …, abuse, [or] taunt” and “with no legitimate private, personal, or public purpose,” whatever that might mean.
The state’s highest court found that this language was too broad and too harmful to protected speech to be allowed to continue.
Based on the text of the statute at issue, it is evident that Albany County “create[d] a criminal prohibition of alarming breadth” (United States v Stevens, 559 US at 474). The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes “any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person.” On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children.
The county law also lists particular examples of covered communications, such as “posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail.” But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to “harass, annoy . . . taunt . . . [or] humiliate” any person or entity, not just those that are intended to “threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on” a child.
In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.
The county (and the two dissenting judges) argued that the law could be “fixed” by tightening the language and restricting it solely to communications targeting children. All well and good, but the court wasn’t inclined to believe this would fix the law, and further pointed out that separation of powers prohibit judges from rewriting laws on the fly in order to make them Constitutional again.
We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent. It is possible to sever the portion of the cyberbullying law that applies to adults and other entities because this would require a simple deletion of the phrase “or person” from the definition of the offense. But doing so would not cure all of the law’s constitutional ills.
As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as “legitimate,” as Albany County has attempted to do.
The court followed this up by suggesting Albany legislators return to the drawing board and try crafting a better law with an eye on its Constitutional ramifications.
It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County’s proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime.
Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner.
The problem with many cyberbullying bills is exactly what was pointed out by the state court: the haste to do something “laudable” as a reaction to a problem tends to result in bad laws, badly written. Legislators are more concerned with moving forward quickly and eliminating possible loopholes than with addressing free speech concerns and end up roughly shoving aside Constitutional rights in their hurry to “fix” the problem.
This is only one of several problematic cyberbullying laws. Several are already in place (the state of New York has its own) and others are on their way. Very few of these will be able to survive the strict scrutiny of the court, but it generally takes a prosecutor’s attempt to wield the newly-crafted, terrible-all-over law before it reaches the attention of those able to declare them unconstitutional. This usually means someone has spent a lot of time and money fighting charges resulting from a law that should never have been passed in the first place.
Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.
I know because I got one myself. And three other people who interact with the governor’s office on policy or media matters told me they have too. None of the others wanted to be named.
The tactic appears to be another item in the toolbox of an administration that, despite Cuomo’s early vows of unprecedented transparency, has become known for an obsession with secrecy. Emailing from private accounts can help officials hide communications and discussions that are supposed to be available to the public.
“Government business should never be conducted through private email accounts. Not only does it make it difficult to retrieve what is a government record, but it just invites the suspicion that a government employee is attempting to evade accountability by supervisors and the public,” said Christopher Dunn of the New York Civil Liberties Union, a frequent requester of records under the state’s Freedom of Information Law.
Emailing from private accounts also may violate state policy. State employees are not to “use a personal email account to conduct State business unless explicitly authorized,” according to a policy bearing the governor’s name published by the Office of Information Technology Services.
The Cuomo administration declined to comment on whether any employees are authorized to use private accounts.
Back when he was running for governor, Cuomo pledged, “We must use technology to bring more sunlight to the operation of government.”
The governor himself uses a Blackberry messaging system that does not save messages to communicate with aides, the Daily News reported in 2012. Under the Freedom of Information Law, those records would typically not have to be released because there is an exemption for internal deliberative material.
But emails with anyone outside of the administration – such as lobbyists, company executives, or reporters – usually have to be made public upon request. It is for those communications, with people outside the administration, that private email accounts have been used.
Last year, I was poking around on a possible story and filed some public records requests that sought emails from Director of State Operations Howard Glaser, a top Cuomo adviser. One day in October, just hours after filing a request with the governor’s office, an email appeared in my inbox from Glaser himself.
The email, inquiring what I was working on, was sent from a @glasergroup.net address rather than a government account. The note had a signature line about not using the email address for official business (even though it appeared to be doing just that). My interest was piqued.
So I filed a request under the state’s Freedom of Information Law, asking for all records sent to and from Glaser’s private account. It is not supposedto matter if an email is sent from an official account or a private one: If it pertains to government business, it typically has to be released.
A couple of months later, the Cuomo administration responded with a terse denial: “Please be advised that the New York State Executive Chamber has conducted a diligent search, but does not possess records responsive to your request.”
I appealed, noting that I had in my possession a record responsive to the request – Glaser’s email to me – and included it as an attachment.
The administration upheld its original denial, now citing a retention issue.
“[T]he fact that this record is in your possession does not mean that the Chamber failed to produce a responsive record in its possession. Emails and certain other correspondence are not required to be preserved indefinitely,” the March letter said.
When I asked about the email this month, Cuomo spokesman Rich Azzopardi took a different tack, now disputing that Glaser was emailing me in his official capacity at all and calling the email “informal.” “It would be inaccurate to characterize Howard’s email as official business – as he noted, your official business was being handled by the FOIL office, not him,” Azzopardi said.
But I have no personal relationship with Glaser, and my Freedom of Information Law requests focused only on his activities as a state official. When I recently asked Glaser about his email practices, he said, “I don’t use personal email to conduct official business.” He would not say how he defines “official business.”
In its letter denying my request for emails from Glaser’s private account, the administration cited the general retention policy of the State Archives. That policy says that “many email communications are not records and are therefore suitable for immediate destruction” but also that those emails which are records must be preserved.
So how does one determine which emails are “records”?
The governor’s office seems to take a particularly narrow view. The governor’s policy says that emails are only “records” if they are formal documents like press releases and nominations. Azzopardi, the Cuomo spokesman, said: “Official email is not required to be retained unless it meets the definition of a particular kind of record (eg – contract), consistent with the State Archives policy.”
But the Archives, which Cuomo’s office itself cited, takes a more expansive view, even as state law gives the governor leeway to determine which records should be kept.
Quoting the official definition of records, Archives spokeswoman Antonia Valentine said an email is a record if it is created “in connection with the transaction of public business (and provides) … evidence of the organization, functions, policies, decisions, procedures, operations, or other activities (of an agency).”
In practice, Glaser seems to be either eschewing his official email account or promptly deleting messages of substance. When I asked for a 10-day sample of emails from Glaser’s official account, I got back little actual communication: 147 pages that are largely filled with newsletters, press releases, and the occasional terse email to set up a phone call.
The use of private accounts can result in even more roadblocks when an official leaves the government. (Glaser is reportedly leaving the administration in June.)
The issue has come up before.
In 2007, executives from the insurance giant AIG filed a public records request with the Office of the Attorney General, seeking, among other things, former Attorney General Eliot Spitzer’s communications with the press from the period when he had sued the insurance giant. That request was resisted for years by Spitzer’s successor as attorney general: Andrew Cuomo.
While Cuomo’s office eventually released emails sent from official accounts, it maintained that Spitzer’s use of a private account put any of those emails beyond its reach.
“[T]he reality is that the Office of the Attorney General lacks access to this account and possession of whatever e-mails it may contain, thus rendering them beyond the scope of petitioner’s FOIL request both practically and legally,” Cuomo’s office said in a 2009 court filing.
A judge ruled against the attorney general’s office, which has appealed. Seven years since the original request, the case is still in the courts and Spitzer’s private email account – which he was known to use in his capacity as a state official – has never been searched for records.
Lawyers for Spitzer joined the case this year, arguing in a March filing that because Spitzer is now a former employee and a private citizen, the Freedom of Information Law doesn’t apply.
Beyond the governor’s office, the state is reportedly moving toward an email system that would automatically delete emails after 90 days except for those marked by users to save.
It’s not clear how that process would work or how the state will ensure that records are not destroyed. The Office of Information and Technology Services declined to provide the memo describing the new policy, requiring that I file a formal public records request to get it.
Transparency advocates have criticized 90 days as too short a period because emails may only become relevant months later after a scandal or other event.
A document on the IT office’s website references the possibility in a state email system for “recovery of deleted mailbox contents for the length of the retention period” – another capability that would not exist for officials using private accounts.
Across the river in New Jersey, private email accounts are at the center of the Bridgegate scandal.
The infamous “Time for some traffic problems in Fort Lee” email was sent from a Christie aide’s Yahoo account to another official’s Gmail account. That tactic held off public access to the email for a time.
In December, the Christie administration claimed it did not have records in response to a request from the Record of Bergen, N.J. The emails became public later, only after the officials were subpoenaed by the state Assembly.
If you have gotten emails from the private account of an official in the governor’s office or other state or city agencies, email me at justin@propublica.org.
Reposted from ProPublica via its Creative Commons (BY-NC-ND) license.
Over and over again in talking about innovative disruption, we talk about how incumbents turn to regulators and politicians to kill off that disruption. Usually, they don’t admit it directly — preferring to couch their language in talk about “safety” and protecting consumers — even though many of these disruptive systems actually appear to be better for consumers. However, sometimes politicians are willing to just flat out admit that they’re trying to protect incumbents from innovative upstarts. And that’s what’s now happened with NY’s Attorney General, Eric Schneiderman.
Last fall, we wrote about how Schneiderman was demanding information on 15,000 AirBnB users in NY, claiming that he was hunting down “long-term illegal rentals.” In a NY Times article highlighting how AirBnB users (from both sides of the market) are pushing back against Schneiderman’s crusade against AirBnB, Schneiderman finally admits what everyone has known all along. He’s doing this to protect the big NY hotels from getting disrupted. And yes, he sandwiches the claim between claims of “just enforcing the law” and “protecting” people, but the message is pretty clear. This is about protecting the incumbent hotels:
First he said that “we have a well-regulated and extraordinarily successful hotel sector” that is “one of our finest industries and contributes a lot to the economy.” Then, a bit later, he added, “We’re just looking in New York to enforce New York law, and also, frankly, to protect our hospitality industry that goes through a lot of trouble to have great hotels, to protect tourists, to provide services, and to protect the people in our residential housing.”
It is true that NY law prevents short-term apartment rentals (basically anything less than 30 days). But to pretend this is about protecting the public is just ridiculous. I’ve stayed at many hotels in NY and a few AirBnB places — including some that likely fit Schneiderman’s definition of an “illegal hotel.” And, without question, the AirBnB experience every single time has been vastly superior to the hotel experience. It’s not even close. Assuming Schneiderman allows it to exist, I’ll continue to make use of AirBnB, and it’s not just because it’s usually cheaper (though it often is), but the overall experience is phenomenal. I get to stay in unique and interesting places in unique and interesting neighborhoods — usually much more convenient for my travel needs. One AirBnB host I met owns three apartments, living in one (renting out the spare bedroom), but mostly focusing on full time renting out the other two. The service was great — and much more personalized than any hotel I’ve ever stayed in.
The last thing I want is for NY’s Attorney General to “protect me” from that.
If you were alive yesterday and opened up a web browser, you likely saw the story of how the NYPD attempted to build some social media buzz and found that attempt turned around on its ass. The police force that has previously done a decent job at connecting with people on Twitter decided to run a campaign asking the public to share photos of themselves with police officers. They probably thought most of the pictures would be of smiling and appreciative citizens and local beat cops. Let’s just say their expectations were slightly off the mark.
Almost immediately after the call went out from the department’s official Twitter account, storms of users took the opportunity to instead attach some of the most unfavorable images of New York City officers that could be found on the Internet. And judging by the output on Tuesday, there are quite a few. Officers holding down a photographer on the pavement and a white-shirted supervisor twisting an arm, among scores taken during Occupy Wall Street protests. An officer knocking a bicyclist to the ground during a Critical Mass protest ride, and another dancing provocatively with a barely clad paradegoer. A dog being shot. Officers on trial, or sleeping in uniform on a subway train.
Oops. But this probably should have been expected in response to a police force that has had some very serious public relations problems revolving around some serious policy decisions. Stop and frisk, waste and fraud, and an apparent distaste for citizen journalists were on everyone’s mind and the backlash was as severe as described above. Having found their campaign being turned into a PR nightmare, you might think the NYPD would react angrily to yesterday’s mishap. It turns out they were prepared to be adults.
A spokeswoman for the department, Deputy Chief Kim Y. Royster, said in a two-sentence statement Tuesday evening that the department was “creating new ways to communicate effectively with the community” and that Twitter provided “an open forum for an uncensored exchange” that is “good for our city.”
The experience will not stop the department from pushing forward with social media endeavors, its top spokesman, Stephen Davis, said. “You take the good with the bad,” he said.
Look, I realize that praising Royster’s statement in light of the larger problems the NYPD has in interacting with their own citizenry may seem strange, but the fact is that both spokespeople are absolutely correct. The entire point of social media is about engagement. If that engagement doesn’t go exactly as they expected, and it certainly didn’t, that doesn’t mean there isn’t value in it. Choosing to respond in an adult way means the trolling doesn’t get any worse and may actually provide an avenue for dialog that results in real change. It may be a small thing, but it’s still a good thing.
