Tag Archive for: Amendment

DC Legislators Push FOIA Amendment That Would Shield Government Emails From FOIA Requesters

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Buried at the bottom of Washington, D.C.’s 2020 budget report [PDF] is a gift to legislators who value opacity. The so-called “Freedom of Information Clarification Amendment” would make it much more difficult for requesters to obtain the documents they’re seeking.

The amendment to the district’s FOIA law would require requesters to know exactly what documents they’re seeking when they request them. It’s a nearly-impossible bar to hurdle — one that turns FOIA requests into games of Battleship.

“Reasonably describing” means describing with particularity the public records requested by including the names of the sender and recipient, a timeframe for the search, and a description of the subject matter of the public record or search terms to allow a public body to conduct a search and review within the time prescribed pursuant to section 202(c).”.

What this means is requesters seeking communications would need to know both the sender and recipient of emails they’ve never seen or the agency can reject the request entirely. The legislator pushing this says it will stop “fishing expeditions.” But requests are sometimes necessarily “fishing expeditions” because requesters are working blind. They don’t have access to these communications and have no way of knowing how many parties discussed the subject at hand. If this passes, D.C. government agencies will be pressing the “reject” button with increased frequency.

If there’s anything transparent here, it’s the self-interest of the legislators pushing the amendment. One member of the D.C. Council — a Democrat like the councilmember who wrote the amendment — has been the subject of unflattering news coverage based on FOIA requests.

In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.

[…]

Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council.

Legislators’ own dishonest dealings have often resulted in calls to change public records rules to provide more opacity. Claims are made about “fishing expeditions” and protecting the private lives of legislators but, in reality, the real goal is protecting government employees from the people they serve.

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PACER, Or Your First Amendment Right To Go Fuck Yourself For $0.10/Page

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Anyone who’s used the US Court system’s PACER system has complained about it. Some of those complaints have formed the basis of lawsuits. The multitude of complaints has moved legislators to make periodic runs at eliminating PACER’s paywall. So far, PACER — which looks and feels like it’s still 2001 — has managed to outlast these efforts. The only change over the last nineteen years has been an increase in access fees.

Many have complained, but few have complained as eloquently as Seamus Hughes, the deputy director of George Washington University’s Program on Extremism. His op-ed for Politico is definitely worth reading. It highlights everything wrong with the PACER system, including its amazing profitability.

The U.S. federal court system rakes in about $ 145 million annually to grant access to records that, by all rights, belong to the public. For such an exorbitant price—it can cost hundreds of dollars a year to keep up with an ongoing criminal case—you might think the courts would at least make it easy to access basic documents. But you’d be wrong. The millions of dollars the courts have reaped in user fees have produced a website unworthy of the least talented of Silicon Valley garage programmers; 18 years since its online birth, PACER remains a byzantine and antiquated online repository of legal information.

This money is supposed to be used to improve PACER and fund other US Courts’ efforts. A visit to PACER makes it clear none of that money is being routed towards making PACER less awful. At least one federal court has ruled the way the US Courts spend this money is illegal. But that determination hasn’t stopped the court system from collecting fees and spending them on things like new TV screens in courthouses.

While it is a definite improvement over traveling to the pertinent court and using a kiosk to access electronic documents — the way it was done from 1988-2001 — the entire system is user-unfriendly and stupid expensive. The $ 0.10/page fee applies not only to documents, but to search results. Given the lack of standardization of case titles, searches are both expensive and frustrating. The fees apply whether or not the search turns up anything users are searching for.

And the per page fees for PDFs is simply ridiculous. These pages aren’t being run off a Xerox by a court clerk. They’re being served up from an infinite supply of 1s and 0s. Given their digital state, how does it possibly make sense to charge more for longer documents? The answer doesn’t matter because it’s the only game in town.

Adding to the problem is the court system’s housecleaning efforts and the way it reacts to publication of public documents. In 2014, multiple appeals courts deleted “old” cases from their databases, memory-holing thousands of documents and decisions — some only a couple of years old at that point. But what’s more worrying is the way courts have responded to journalists publishing documents.

In January, I found a search warrant related to a wide-ranging investigation into public corruption in the Los Angeles City Council. When I made my discovery public, the Central District of California essentially locked down all search warrants filed on PACER. Most, if not all, search warrants recently filed in the district are no longer accessible online.

Presumably the DOJ and other law enforcement agencies did some loud complaining about the public court systems’ publicly-accessible documents ending up in the hands of the public, resulting in a presumption of secrecy when it comes to affidavits and warrants.

More ends up hidden from public view — not due to malice, but due to bureaucratic indifference. Hughes points out he has come across several terrorism prosecutions by the DOJ that have never been publicly announced by the Justice Department. The average member of the American public is not going to spend hundreds of dollars a month trying to track down documents from terrorism cases, so it’s up the DOJ to provide timely notice of its anti-terrorism efforts. The DOJ is failing to do so and we only know this because dedicated private parties are willing to subject themselves to PACER’s UI and inadequate search system to publicize the stuff the government can’t be bothered to announce.

This all adds up to the worst system money can buy. It’s broken. It’s a joke. And it’s the only access we the people have to documents the government has declared we have a First Amendment right to access. It’s ugly, it’s counterintuitive, and it somehow manages to personify the begrudging spirit of the most jaded bureaucrat, despite it being entirely composed of barely-functional code.

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FOSTA Co-Sponsor Richard Blumenthal Tells Court FOSTA Didn’t Change CDA 230 & That It Was Written To Violate 1st Amendment

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Last week, the Wisconsin Supreme Court heard the Armslist case that we’ve written about a few times. This is the case where victims of a shooting are trying to sue the website Armslist that had hosted the ad for the gun that the shooter bought to use in the crime (likely legally). Most cases that have interpreted CDA 230 over the past twenty-odd years have agreed that the language of that law is clear that websites cannot be held liable for the actions of their users, but last year a Wisconsin appeals court decided otherwise. The Wisconsin Supreme Court agreed to revisit this decision, and last month we filed another amicus brief to explain the important issues at stake for the internet and free speech.

A number of other amicus briefs were filed as well — including a stunning one on behalf of Senator Richard Blumenthal and some retired members of Congress, which first wrongly insisted that CDA 230 did not apply to the web platform being sued for actions of its users, and then went on to make some truly astonishing claims about FOSTA, a bill that Blumenthal was a key co-sponsor for.

It should be noted that Blumenthal and CDA 230 have a long history — one that goes back to a time long before he was in the Senate. Back when he was merely a grandstanding Attorney General in Connecticut, Blumenthal regularly would threaten internet companies for the actions of their users, ignoring the fact that CDA 230 prevented Blumenthal from taking this action against them. He went after MySpace because some sexual predators used the site. He went after Facebook for the same thing. Oh, and how could we forget his years-long crusade against Craigslist. Basically, as Attorney General, every few months, Blumenthal would generate splashy headlines by grandstanding to the press about some evil thing that people had done on the internet — and incorrectly blaming the tools and services that those had people used to do it.

So it was little surprise that when a chance came up to gut Section 230’s critical protections for platforms, and by extension speech on the internet, Blumenthal became the key sponsor from the Democratic side of the Senate to push these changes forward (Senator Rob Portman was the key sponsor from the GOP).

Because it’s long been apparent that Blumenthal has liked to ignore what CDA 230 did (and why), it is not too shocking that with this brief he attempted to make the Wisconsin Supreme Court ignore it too. But it is odd that he would do this by misstating how the bill he sponsored, FOSTA, changed Section 230, and would have had to change it if he wanted its protections to be curtailed, by pretending it didn’t actually change it. Armslist, in its own brief, had correctly pointed out that the passing of FOSTA showed that CDA 230 provided platforms with broad immunity, and that Congress would have had to amend it if it wanted to exempt certain activities from its coverage. Yet somehow Blumenthal tries to argue that’s not what FOSTA was for:

According to Armslist, “[t]hat Congress saw the need to amend the CDA to exclude protection for certain sex trafficking crimes” proves that the First Circuit’s broad reading of Section 230 was correct, because otherwise “the amendment would not have been necessary.” Respondents’ Br. 20. Armslist’s interpretation of FOSTA is astonishing, bold, and completely inaccurate.

[….]

The purpose of FOSTA was to “clarify” what was already true—“that section 230 of [the CDA] does not prohibit” suits like Backpage.com.

This last sentence is just wrong, and he should know that. He literally told reporters that the point of FOSTA was “that there’s a need for stronger rules of the road when it comes to accountability in this industry.” If CDA 230 wasn’t already preventing the litigation he thought desirable, then there would have been no need to change it. And there certainly would have been no call for him to put out a press release praising the new “tools in our legislation” that FOSTA was intended to deliver if FOSTA did not make significant changes he thought were needed to hold platforms like Backpage liable.

The upshot is that with this brief, Blumenthal essentially admitted how unconstitutional FOSTA is. At best, if all FOSTA truly did was “clarify” how Section 230 operated, it was an unnecessary incursion on expression. But in bragging about the significant changes FOSTA brought, he also ends up confessing how they are an unconstitutional incursion on expression:

Congress did not enact FOSTA to narrow Section 230’s applicability to traditional sex-trafficking actions. Traditional “sex trafficking crimes are clearly outside th[e] scope” of “speaking and publishing.” FOSTA, however, created a new breed of sex-trafficking actions based on the sort of publication-related conduct that Section 230 ordinarily immunizes: (1) “facilitating a violation of” sex-trafficking law, including by “publishing information designed to facilitate sex trafficking,”

“Publishing information” is a 1st Amendment protected activity. Now it is possible that a court might determine that “publishing information designed to facilitate sex trafficking” falls into the somewhat ill-defined “speech integral to criminal conduct” exception to the 1st Amendment, but the “integral” part is a higher bar than you might think — and speech that merely “facilitates” such activities seems unlikely to clear that hurdle (especially given that we already see FOSTA leading to the suppression of much broader speech than any that actually is involved in sex trafficking).

But, hey, I guess as long as Blumenthal is this committed to interfering with how Section 230 works, it makes sense that he’d have no problem interfering with how the First Amendment works too.

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Australian Parliament Moves Copyright Amendment Out Of Committee and Into Law

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As we have been discussing over the past few months, Australia has been considering updating its copyright law from one which does site-blocking with judicial oversight to one which does site-blocking, mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary “purpose” of infringement to those with the primary “effect” being infringement. These changes came with concerns in tow, both from government officials and tech companies, and it’s understandable why. Any time the government looks to lessen its own oversight in the interest of making it easier for corporate interests to censor the internet for the common citizen, it creates a situation practically begging for abuse with the principal effect being dampening the primary purpose of the internet as a communications tool. The concerns raised over this change in the law focused on those very things, while also highlighting how the copyright industries have been touting the site-blocking already in place as a success.

But, as is too often the case, the Australian government has hand-waved those concerns with claims that nebulous “safeguards” are in place to prevent abuse and recommended going ahead with the changes to the law.

Yesterday, the Senate’s Environment and Communications Legislation Committee published the results of its inquiry. Those hoping for an additional dissenting voice will be disappointed.

“The committee is of the view that the amendments proposed by the bill are likely to improve the operation of the injunctive scheme in section 115A of the Copyright Act, and represent a measured and proportionate response to concerns identified by stakeholders in relation to the operation of that scheme,” the report reads. “In this respect, the committee also notes that the majority of submissions received by the committee supported the bill and recommended that it be passed unamended.”

After noting that the expansion for blocking mirror sites without judicial approval could be abused, the committee goes on to say it’s all under control.

“[T]he committee is of the view that the measures are appropriately circumscribed. In particular, the committee notes the evidence that the Court would maintain ultimate oversight over these injunctions, as well as the evidence that there must a sufficient nexus between the online location covered by the original injunction and the location to which the order is expanded,” the report reads.

In other words, way back in the distance, the courts are ultimately still in charge of the injunctions, somehow making the fact that the expanded injunctions are approved outside of the court all good. And, on top of that, none of this will be abused because rightsholders will have to rely on good evidence for the expanded injunctions, despite the fact that rightsholders’ grasp on what good evidence is has always been laughable. Again, all of this is pitched as a way to get site-blocking in place more speedily, which sets off all the obvious justice alarm bells.

On the search-blocking portion of the amendment, the committee relies on a claim that, essentially, Google is helping people infringe copyright.

Finally, on forcing search engines to purge their results of previously-blocked sites, the Committee again acknowledges objections from those who feel such measures are unnecessary. Again, however, the report dismisses the concerns, noting that search engines may play a role in both infringement and enforcement of copyright so the measures are “appropriate.”

Except that this is nonsense industry drivel, and always has been. Search engines don’t play “a role” in infringement. They play a role in returning relevant search results to the public. They’re address books, of a kind, and search engines no more play a role in infringing copyright by returning search results than address books play a role in drug use by listing where a flop house might be. If that is what the committee is relying on to approve a copyright amendment with valid opposition and concern, it sure doesn’t make one confident in the rest of its assessment.

It was on the back of these nebulous claims of safeguards and shaky claims about how search engines work that the amendment was moved out of committee and quickly passed by the Australian Parliament. And it was announced in a manner that appears designed to irritate those of us who actually know what copyright infringement is and is not.

Announcing the adoption of the amendments by Parliament today, the Government said that the Bill will give rightsholders enhanced ability to fight copyright infringement. Minister for Communications and the Arts Mitch Fifield noted that there will now be “less room” for pirates to circumvent Australia’s existing measures.

“The Government has zero tolerance for online piracy. It is theft, and damaging to our creative economy and local creators. We are committed to protecting Australia’s creative industries and the world-class content we produce every year,” Minister Fifield said. “The passage of our legislation today sends a strong message to online pirates that Australia does not tolerate online theft.”

I actually wouldn’t have thought it possible to include the “copyright is theft” fallacy not once, but twice, in a three sentence statement on passing a bill that does nothing to stop theft, but will almost certainly be an avenue for abuse by copyright industry groups that have always been willing to slam open a door after its been cracked an inch. The only silver lining in all of this is the amendment comes with a two year review period, after which the government will have the opportunity to make further changes if such abuses occur.

And they almost certainly will occur, though I would expect the government to perform its same hand-waving trick when those concerns arise two years from now as well.

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