That said, one thing to note about these hearings is that each time, Facebook's CEO Mark Zuckerberg inches closer to pushing Facebook's vision for rethinking internet regulations around Section 230. Facebook, somewhat famously, was the company that caved on FOSTA, and bit by bit, Facebook has effectively lead the charge in undermining Section 230 (even as so many very wrong people keep insisting we need to change 230 to "punish" Facebook). That's not true. Facebook is now perhaps the leading voice for changing 230, because the company knows that it can survive without it. Others? Not so much. Last February, Zuckerberg made it clear that Facebook was on board with the plan to undermine 230. Last fall, during another of these Congressional hearings, he more emphatically supported reforms to 230.

And, for tomorrow's hearing, he's driving the knife further into 230's back by outlining a plan to further cut away at 230. The relevant bit from his testimony is here:

One area that I hope Congress will take on is thoughtful reform of Section 230 of the Communications Decency Act.

Over the past quarter-century, Section 230 has created the conditions for the Internet to thrive, for platforms to empower billions of people to express themselves online, and for the United States to become a global leader in innovation. The principles of Section 230 are as relevant today as they were in 1996, but the Internet has changed dramatically. I believe that Section 230 would benefit from thoughtful changes to make it work better for people, but identifying a way forward is challenging given the chorus of people arguing—sometimes for contradictory reasons—that the law is doing more harm than good.

Although they may have very different reasons for wanting reform, people of all political persuasions want to know that companies are taking responsibility for combatting unlawful content and activity on their platforms. And they want to know that when platforms remove harmful content, they are doing so fairly and transparently.

We believe Congress should consider making platforms’ intermediary liability protection for certain types of unlawful content conditional on companies’ ability to meet best practices to combat the spread of this content. Instead of being granted immunity, platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it. Platforms should not be held liable if a particular piece of content evades its detection—that would be impractical for platforms with billions of posts per day—but they should be required to have adequate systems in place to address unlawful content.

Definitions of an adequate system could be proportionate to platform size and set by a third-party. That body should work to ensure that the practices are fair and clear for companies to understand and implement, and that best practices don’t include unrelated issues like encryption or privacy changes that deserve a full debate in their own right.

In addition to concerns about unlawful content, Congress should act to bring more transparency, accountability, and oversight to the processes by which companies make and enforce their rules about content that is harmful but legal. While this approach would not provide a clear answer to where to draw the line on difficult questions of harmful content, it would improve trust in and accountability of the systems and address concerns about the opacity of process and decision-making within companies.

As reform ideas go, this is certainly less ridiculous and braindead than nearly every bill introduced so far. It attempts to deal with the largest concerns that most people have -- what happens when illegal, or even "lawful but awful," activity is happening on websites and those websites have "no incentive" to do anything about it (or, worse, incentive to leave it up). It also responds to some of the concerns about a lack of transparency. Finally, to some extent it makes a nod at the idea that the largest companies can handle some of this burden, while other companies cannot -- and it makes it clear that it does not support anything that would weaken encryption.

But that doesn't mean it's a good idea. In some ways, this is the flip side of the discussion that Mark Zuckerberg had many years ago regarding how "open" Facebook should be regarding third party apps built on the back of Facebook's social graph. In a now infamous email, Mark told someone that one particular plan "may be good for the world, but it's not good for us." I'd argue that this 230 reform plan that Zuckerberg lays out "may be good for Facebook, but not good for the world."

But it involves some thought, nuance, and predictions of how this plays out to understand why.

First, let's go back to the simple question of what problem are we actually trying to solve for. Based on the framing of the panel -- and of Zuckerberg's testimony -- it certainly sounds like there's a huge problem of companies not having any incentive to clean up the garbage on the internet. We've certainly heard many people claim that, but it's just not true. It's only true if you think that the only incentives in the world are the laws of the land you're in. But that's not true and has never been true. Websites do a ton of moderation/trust & safety work not because of what legal structure is in place but because (1) it's good for business, and (2) very few people want to be enabling cesspools of hate and garbage.

If you don't clean up garbage on your website, your users get mad and go away. Or, in other cases, your advertisers go away. There are plenty of market incentives to make companies take charge. And of course, not every website is great at it, but that's always been a market opportunity -- and lots of new sites and services pop up to create "friendlier" places on the internet in an attempt to deal with those kinds of failures. And, indeed, lots of companies have to keep changing and iterating in their moderation practices to deal with the fact that the world keeps changing.

Indeed, if you read through the rest of Zuckerberg's testimony, it's one example after another of things that the company has already done to clean up messes on the platform. And each one describes putting huge resources in terms of money, technology, and people to combat some form of disinformation or other problematic content. Four separate times, Zuckerberg describes programs that Facebook has created to deal with those kinds of things as "industry-leading." But those programs are incredibly costly. He talks about how Facebook now has 35,000 people working in "safety and security," which is more than triple the 10,000 people in that role five years ago.

So, these proposals to create a "best practices" framework, judged by some third party, in which you only get to keep your 230 protections if you meet those best practices, won't change anything for Facebook. Facebook will argue that its practices are the best practices. That's effectively what Zuckerberg is saying in this testimony. But that will harm everyone else who can't match that. Most companies aren't going to be able to do this, for example:

Four years ago, we developed automated techniques to detect content related to terrorist organizations such as ISIS, al Qaeda, and their affiliates. We’ve since expanded these techniques to detect and remove content related to other terrorist and hate groups. We are now able to detect and review text embedded in images and videos, and we’ve built media-matching technology to find content that’s identical or near-identical to photos, videos, text, and audio that we’ve already removed. Our work on hate groups focused initially on those that posed the greatest threat of violence at the time; we’ve now expanded this to detect more groups tied to different hate-based and violent extremist ideologies. In addition to building new tools, we’ve also adapted strategies from our counterterrorism work, such as leveraging off-platform signals to identify dangerous content on Facebook and implementing procedures to audit the accuracy of our AI’s decisions over time.

And, yes, he talks about making those rules "proportionate to platform size" but there's a whole lot of trickiness in making that work in practice. Size of what, exactly? Userbase? Revenue? How do you determine and where do you set the limits? As we wrote recently in describing our "test suite" of internet companies for any new internet regulation, there are so many different types of companies, dealing with so many different markets, that it wouldn't make any sense to apply a single set of rules or best practices across each one. Because each one is very, very different. How do you apply similar "best practices" on a site like Wikipedia -- where all the users themselves do the moderation -- to a site like Notion, in which people are setting up their own database/project management setups, some of which may be shared with others. Or how do you set up the same best practices that will work in fan fiction communities that will also apply to something like Cameo?

And, even the "size" part can be problematic. In practice, it creates so many wacky incentives. The classic example of this is in France, where stringent labor laws kick in only for companies at 50 employees. So, in practice, there are a huge number of French companies that have 49 employees. If you create thresholds, you get weird incentives. Companies will seek to limit their own growth in unnatural ways just to avoid the burden, or if they're going to face the burden, they may make a bunch of awkward decisions in figuring out how to "comply."

And the end result is just going to be a lot of awkwardness and silly, wasteful lawsuits for companies arguing that they somehow fail to meet "best practices." At worst, you end up with an incredible level of homogenization. Platforms will feel the need to simply adopt identical content moderation policies to ones who have already been adjudicated. It may create market opportunities for extractive third party "compliance" companies who promise to run your content moderation practices in the identical way to Facebook, since those will be deemed "industry-leading" of course.

The politics of this obviously make sense for Facebook. It's not difficult to understand how Zuckerberg gets to this point. Congress is putting tremendous pressure on him and continually attacking the company's perceived (and certainly, sometimes real) failings. So, for him, the framing is clear: set up some rules to deal with the fake problem that so many insist is real, of there being "no incentive" for companies to do anything to deal with disinformation and other garbage, knowing full well that (1) Facebook's own practices will likely define "best practices" or (2) that Facebook will have enough political clout to make sure that any third party body that determines these "best practices" is thoroughly captured so as to make sure that Facebook skates by. But all those other platforms? Good luck. It will create a huge mess as everyone tries to sort out what "tier" they're in, and what they have to do to avoid legal liability -- when they're all already trying all sorts of different approaches to deal with disinformation online.

Indeed, one final problem with this "solution" is that you don't deal with disinformation by homogenization. Disinformation and disinformation practices continually evolve and change over time. The amazing and wonderful thing that we're seeing in the space right now is that tons of companies are trying very different approaches to dealing with it, and learning from those different approaches. That experimentation and variety is how everyone learns and adapts and gets to better results in the long run, rather than saying that a single "best practices" setup will work. Indeed, zeroing in on a single best practices approach, if anything, could make disinformation worse by helping those with bad intent figure out how to best game the system. The bad actors can adapt, while this approach could tie the hands of those trying to fight back.

Indeed, that alone is the very brilliance of Section 230's own structure. It recognizes that the combination of market forces (users and advertisers getting upset about garbage on the websites) and the ability to experiment with a wide variety of approaches, is how best to fight back against the garbage. By letting each website figure out what works best for their own community.

As I started writing this piece, Sundar Pichai's testimony for tomorrow was also released. And it makes this key point about how 230, as is, is how to best deal with misinformation and extremism online. In many ways, Pichai's testimony is similar to Zuckerberg's. It details all these different (often expensive and resource intensive) steps Google has taken to fight disinformation. But when it gets to the part about 230, Pichai's stance is the polar opposite of Zuckerberg's. Pichai notes that they were able to do all of these things because of 230, and changing that would put many of these efforts at risk:

These are just some of the tangible steps we’ve taken to support high quality journalism and protect our users online, while preserving people’s right to express themselves freely. Our ability to provide access to a wide range of information and viewpoints, while also being able to remove harmful content like misinformation, is made possible because of legal frameworks like Section 230 of the Communications Decency Act.

Section 230 is foundational to the open web: it allows platforms and websites, big and small, across the entire internet, to responsibly manage content to keep users safe and promote access to information and free expression. Without Section 230, platforms would either over-filter content or not be able to filter content at all. In the fight against misinformation, Section 230 allows companies to take decisive action on harmful misinformation and keep up with bad actors who work hard to circumvent their policies.

Thanks to Section 230, consumers and businesses of all kinds benefit from unprecedented access to information and a vibrant digital economy. Today, more people have the opportunity to create content, start a business online, and have a voice than ever before. At the same time, it is clear that there is so much more work to be done to address harmful content and behavior, both online and offline.

Regulation has an important role to play in ensuring that we protect what is great about the open web, while addressing harm and improving accountability. We are, however, concerned that many recent proposals to change Section 230—including calls to repeal it altogether—would not serve that objective well. In fact, they would have unintended consequences—harming both free expression and the ability of platforms to take responsible action to protect users in the face of constantly evolving challenges.

We might better achieve our shared objectives by focusing on ensuring transparent, fair, and effective processes for addressing harmful content and behavior. Solutions might include developing content policies that are clear and accessible, notifying people when their content is removed and giving them ways to appeal content decisions, and sharing how systems designed for addressing harmful content are working over time. With this in mind, we are committed not only to doing our part on our services, but also to improving transparency across our industry.

That's standing up for the law that helped enable the open internet, not tossing it under the bus because it's politically convenient. It won't make politicians happy. But it's the right thing to say -- because it's true.

A first batch of records was released before the matter was even settled. Records obtained by the NY-ACLU and ProPublica were released by ProPublica even as the Police Benevolent Association secured a restraining order blocking their release. Since neither of these entities were party to the lawsuit (the PBA was suing New York City and Mayor Bill de Blasio), they weren't subject to the court order.

The partial set of records published by ProPublica came from the Civilian Complaint Review Board (CCRB). The publication only included records for officers with at least one substantiated complaint against them. A much fuller set of data has now been released by the CCRB -- a set that dates back more than 20 years and covers tens of thousands of NYPD officers.

The CCRB's database includes information on 34,811 active NYPD officers and 48,218 inactive officers, with complaints dating back to 2000. Details about each complaint are limited to the incident date, the type of complaint (force, abuse of authority, discourtesy, or offensive language), a one-or-two-word description of the allegation, and whether the complaint was substantiated.

But this won't be the final data dump on the NYPD. The department has its own internal set of disciplinary records which are subject to the same disclosure mandates as the CCRB's tranche. This one covers information not available in the CCRB's database -- like officers whose claims were handled by the NYPD's internal trial system.

Some of this could be posted as early as next week, but it will be an incomplete data set.

The first NYPD records release will detail discipline cases back to 2018. After that, [Assistant Chief] Pontillo said, more data will be added — for active cops who are disciplined without a trial, and for trials, going back to 2008, for both current and ex-cops.

The NYPD will also be releasing trial room decisions for both current and former officers.

The repealed law also grants public access to disciplinary records pertaining to fire department employees and corrections officers, but neither have offered a publication date. It actually appears they may try to litigate their way through it.

Hank Sheinkopf, a spokesperson for the coalition of unions that sued to block the release of the records, provided no specific indication whether or not they plan to take further legal action.

“We're considering our options,” Sheinkopf told Gothamist.

Well, good luck with that. The Second Circuit opinion made it pretty clear they had no actionable argument against complying with public records law.

After years of secrecy -- and months of stalling -- the NYPD may finally join those who've already released department disciplinary records. Given its history of extreme recalcitrance when it comes to transparency, it's no surprise it will be the last to produce these documents.

This happened despite the fact Obama presided over some of the most historic leaks in history -- ones that kickstarted changes in surveillance programs and surveillance attitudes. The Obama Administration claimed to be the most transparent ever, but behind the scenes, it worked tirelessly to punish whistleblowers and leakers who were bringing actual transparency to entities that had long resisted it.

The facts about the late, not-so-great Trump Administration are continuing to leak out. And Obama's enthusiasm for punishing professional and amateur transparency enthusiasts has been outdone by his successor -- a man who often engaged in leaking himself through his Twitter account. Here's Ken Klippenstein with the details:

In 2017, there were a staggering 120 referrals for leak investigations from government agencies to the Department of Justice — higher than any year since at least 2005. There were also 88 criminal referrals for leaking classified information in 2018, according to the document, 71 in 2019, and 55 for the first three quarters of 2020, according to the most recent data available. By comparison, during the Obama administration, there were 38 referrals in 2016, 18 in 2015, and 41 in 2014.

Trump was determined to be everything Obama wasn't. His efforts often seemed solely focused on overturning everything his predecessor had established. Judging from these numbers, this also includes the number of people punished for daring to speak truth to power.

The Trump Administration always had a problem with leaks. The man who often treated the government as a weapon to be deployed against his enemies directed multiple executive agencies to hunt down those who offended him by doing nothing more than exposing his words and actions.

Enforcement is nothing without deterrence. And even if most of these referrals never resulted in criminal charges or sustained accusations, the message was made clear: fuck with the Prez and his buddies and you're going to find yourself in a world of hurt.

In its leak indictments, the Justice Department has stressed how it hopes to “deter” further leaks, as it did in its 2019 indictment of military intelligence analyst Henry Kyle Frese, accused of leaking classified information to two reporters. That deterrence also has a political dimension: As The Intercept has reported, most leaks prosecuted by the Trump administration have pertained to the Russia investigation.

This may only detail "referrals," but every referral is a chance to prosecute. That most of these referrals never resulted in criminal charges indicates how baseless they were, rather than how receptive the Trump Administration was to additional accountability.

And for those of you who focus on the fact that these were "leak" investigations rather than the retaliatory targeting of whistleblowers who chose to work within the system, I'll just point out two things:

First, leaking works better than whistleblowing because it doesn't give the chain of command a chance to bury unfavorable facts.

Second, the Trump Administration -- like the one before it -- engaged in retaliation against whistleblowers who chose to follow the rules, suggesting the better route is to get the information to reporters who will expose wrongdoing, rather than be buried along with their objections.

And while we're burying Trump for being worse on issues we routinely excoriated Obama for, let's not forget his administration was particularly enthusiastic about extrajudicial killings. Obama's position as King of the Drone Strikes has been usurped by one of the worst presidents in history.

In 2019, air strikes from the US and its allies in Afghanistan killed 700 civilians, more than in any other year since the beginning of the war in 2001 and 2002, according to new research from Brown University's Cost of War project.

The new data casts light on US President Donald Trump's aerial warfare policies across the Middle East and in countries neighbouring the region, which have become less restricted and more opaque.

The report chronicled the number of civilian deaths in Afghanistan from US and Afghan air strikes over the past three years.

"From 2017 through 2019, civilian deaths due to US and allied forces' airstrikes in Afghanistan dramatically increased," the report said.

So, not only were we killing more people based on metadata than ever before, we've been killing more innocent people than ever before. GOD BLESS THE USA.

We'll see what Biden does with his first term in office. Despite running as the anti-Trump, Biden has shown no less enthusiasm for participating in forever wars. We may finally have someone who acts like a statesman, rather than a petulant child, in office. But that doesn't mean we, as a constitutional republic, can't still be as awful as ever.

You may also know that at the time Nunes sued the satirical cow for making fun of him online, the @DevinCow account had a grand total of 1,204 followers. Within a couple days, @DevinCow had 400k followers and had surpassed Nunes' himself. Today the Cow has 772k followers and is one of the most interesting Twitter accounts online, with a huge pasture of followers. Pretty incredible.

What a lot of people don't realize is that the case against the cow is still going on, and Nunes and his lawyer, Steven Biss, have constantly gone to fairly extreme lengths just try to figure out who is behind the Cow account. The craziest of all was that Biss used a totally unrelated case, that did not involve Nunes, and then abused his subpoena powers to ask Twitter to reveal who was behind @DevinCow, despite the Cow being totally unrelated to the case. Biss and Nunes made up some nonsense about how the cow was connected, but it was clearly ridiculous, and a judge rejected it.

Of course, that raised lots of concerns about whether or not Nunes might abuse other methods to try to uncover the cow. Freelance journalist Shawn Musgrave filed a FOIA request with the Justice Department and the FBI to see if Nunes might have sought to use either organization to try to uncover the Cow's identity. After all, Nunes was (incredibly) the chair of the House Intelligence Committee and would have greater access to the FBI and its surveillance tools than just about any other Congressional Representative. Musgrave made it abundantly clear in his FOIA that he was not seeking to identify the Cow and did not want any information that might reveal the Cow's identity. He just wanted to know if the DOJ or the FBI had sought to uncover the Cow's identity.

However, the DOJ and FBI have failed to comply, so now Musgrave is suing the DOJ to try to get them to actually properly respond to the FOIA request.

As a result of the repeated efforts by Cong. Nunes and his legal team to unmask @DevinCow—of which the above instances are merely examples—Musgrave filed two FOIA requests—with the permission of @DevinCow’s owner—to ascertain the degree to which FBI and DOJ—with or without Cong. Nunes’s involvement—have attempted to identify the anonymous owner of the @DevinCow Twitter account.

The lawsuit explains what the FOIA request sought:

On 9 November 2020, Musgrave submitted to FBI a request for five categories of records: (1) all main file records about the @DevinCow Twitter account; (2) all cross-references in the Central Records System about the @DevinCow Twitter account; (3) all internal emails or other correspondence records created or maintained by the Office of Congressional Affairs mentioning the @DevinCow Twitter account; (4) all emails in the FBI email system(s) or personal email folders on personal computers used by the Washington Field Office and San Francisco Field Office mentioning the @DevinCow Twitter account; and (5) all emails in the FBI email system(s) or personal email folders on personal computers used by the Criminal, Cyber, Response, and Services Branch mentioning the @DevinCow Twitter account.

Musgrave added, “Please note that we do not wish to know the identity of the owner of the @DevinCow account, so the FBI should automatically redact any personally identifying information about that individual while releasing the contextual information which would show that PII was redacted. We are only interested in records discussing the account and/or the possible identification of its owner, not in the identity itself.”

Just a week later (which is insanely fast for FBI FOIA requests), the FBI was giving a Glomar response that it can "neither confirm nor deny" the existence of such records, and also claiming it was doing so to protect the privacy of third party individuals. But, of course, that's nonsense, since the request made it abundantly clear that the FBI should redact any such information. Musgrave appealed:

“It is nonsensical to issue a (b)(6) Glomar response to a request for records about an anonymous Twitter account, especially when the request has formally indicated that we have no interest in learning the identity of the user.”

On February 1st, the FBI rejected the appeal and stuck with its Glomar response.

So now, Musgrave has sued (with some very good FOIA lawyers) to try to force the FBI/DOJ to actually respond to the FOIA request for real. Should be an interesting case to follow.

The CIA’s response to the question about assassinations wasn’t a denial that it had engaged in such activity. It just explained that such activity is illegal: “Please refer to Executive Order 12333 which describes the conduct of intelligence activities, citation 2.11, which pertains to the prohibition on assassinations,” the brief response from the CIA read.

No Glomar. No "no records found." No complaints that the request was too burdensome. No invocation of national security exemptions. Just this, which basically says, "Hey guys, assassination is illegal." And, of course, it is. But that hasn't stopped the CIA from engaging in assassination attempts.

The Church Committee exposed this (along with a long list of other violations by government agencies) back in the 1970s. In fact, one of the smoking gun moments of the Church Committee hearings was the production of a non-smoking poison dart gun developed by the CIA. And, as Matthew Gault points out for Vice, the CIA spent years trying to make a Fidel Castro death look like an accident.

The Agency attempted to lace Castro’s shoes with thallium salts in an attempt to make his hair fall out, developed a special hallucinogen it planned to spray on him during a live broadcast, and created a pen that concealed a hypodermic needle full of poison it planned to use against Castro.

And that's just assassination attempts targeting this particular politician. The CIA has global reach and endless potential. That it has been mostly ineffective is beside the point. The CIA has created records detailing its assassination attempts. Citing an Executive Order forbidding government employees from engaging in assassination attempts is a non-starter, especially when there's already documentation in the (regular) history books.

Now, if we want to grant the CIA more credibility than it actually deserves, we can read this Executive Order citation as a barely coded message: of course the CIA doesn't have records pertaining to assassination attempts because what government agency in its right mind would do anything with inculpatory documents other than feed them to the nearest shredder? That's the best case scenario: the CIA has been illegally destroying documents detailing its illegal activities.

The worst case scenario is the CIA has plenty of documents on hand but is choosing to hide behind an Executive Order that forbids the things the CIA has already done and, may in fact still be doing.

The answer is, of course, fuck right off with this. J.M. Porup will be suing the CIA over these documents, which will at least force it to drop its Executive Order pretense and engage this request a bit more honestly. At that point, it will have access to a bunch of (slightly more legitimate) FOIA exemptions. But until it's willing to address this more honestly, it can't expect "well, no, that would be illegal" to be a satisfactory answer. Courts aren't going to be receptive to this particular strain of bullshit, even if they've been willing to grant a whole lot of leeway on the national security front historically.

Enter the TSA and some agents who felt they shouldn't be recorded doing their work. The TSA may believe it's doing valuable national security work that can't be recorded by third parties, but it's actually doing nothing of the sort. There's nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That's not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer's husband did not. TSA agents began their pat down of Dyer's husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was "impeding" the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to "order" Dyer to delete his recording. Which he did.

Smith ordered Dyer to delete the video while Staton watched. "Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone…"

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA's work isn't as essential as it thinks it is. It can't dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate "diplomacy, foreign policy, or national security interests." Therefore, the TSA can't have the suit dismissed on those grounds. And that keeps Dyer's Fourth Amendment claim viable.

It also can't have it dismissed on qualified immunity grounds. As the court points out, the TSA's own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA's efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents' ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it…) that because it does not train agents to respect the Constitution, agents can't be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it's clearly established the public has a right to record public officials.

Courts across the country agree that incident to the "right to gather news," citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[...]

[T]he defendants' demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff's First Amendment right…

And the right is clearly established.

According to the Fourth Circuit, "it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it." Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer's allegations fall squarely within this "crystal clear" right.

It's well-established people can record public officials in public. Officials can't pretend this right doesn't exist just because they don't want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

For more than 40 years, the bad law remained in place. It took nationwide anger of the killing of another black man by a white cop to get it taken off the books. In response, a bunch of unions presiding over the New York City's police and fire departments lawyered up, hoping to continue withholding this information.

The legal battle has reached the Second Circuit Court of Appeals. And the Appeals Court doesn't find the plaintiffs' assertions about "irreparable harm" credible. The unions claim the repeal of 50-a (and the consequent release of disciplinary records) violates agreements they have with the city -- one that says findings in favor of officers/employees will be removed from employees' disciplinary records.

The Appeals Court [PDF] points out that the unions can't just decide the public employees they represent don't have to follow the law.

[T]o the extent that this claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.

The Appeals Court affirms everything the district court already told the unions. "Irreparable harm" is not only not foreseeable, it's not even remotely credible.

The Unions assert that law enforcement officers will have fewer employment opportunities in the future if records of the allegations against them that prove to be unfounded or unsubstantiated are disclosed, even though each record will reveal the outcome of the investigation. But the District Court noted that future employers were unlikely to be misled by conduct records that contained “dispositional designations” specifying that allegations of misconduct were unsubstantiated, unfounded, or that the accused officer was exonerated. As the District Court also noted, despite evidence that numerous other States make similar records available to the public, the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities.

No harm foreseeable there. Unfortunately, that sort of means employers like the NYPD aren't all that selective in their hiring processes. Multiple allegations -- even if they ultimately resulted in exoneration -- should be a red flag. And the NYPD should definitely know this because its internal review process clears bad cops all the time, ensuring they can continue to engage in misconduct without fear of reprisal.

The same goes for the equally wild claim that disclosing these records will result in physical harm to officers.

We also address the Union’s more general assertion of heightened danger and safety risks to police officers. We fully and unequivocally respect the dangers and risks police officers face every day. But we cannot say that the District Court abused its discretion when it determined that the Unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the City’s planned disclosures. In arriving at that conclusion, we note again that many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers.

The unions' argument only makes sense if they are asserting that New York City residents are far more prone to acts of violence targeting law enforcement officers following the release of public records than people living elsewhere in the company. And if that's the argument, it hasn't been preserved for appeal so...

The Appeals Court hands out even more rejection along state law lines. Simply asserting "diminished" employment opportunities on the presupposition of "damaged reputations" is not enough to engage state constitutional protections. There's also nothing in the unions' equal protection assertions since (despite the best efforts of a bunch of idiotic legislators at both state and federal levels) police officers and first responders are not a protected class.

Everything the unions argued is "without merit." That's the final call. (Note: It may not be the final call. But this doesn't look like the sort of the thing the Supreme Court is interested in entertaining.) 50-a is gone. The records can be made public. And if cops think it will hurt them to hand over records showing they've been exonerated will result in harm to themselves and their careers, they're not going to find any sympathy from the courts, much less the general public they've been hiding records from for years.

In many cases, the public does what it's allowed to do: request records. And, in many cases, governments refuse to do what they're obligated to do. So, people sue. They dig into their own pockets and force the government to do what they were always supposed to do. And when they do this, the general public digs deep into their own pockets to pay government agencies to argue against the public's interests.

This is diabolical enough. It's also, unfortunately, the standard M.O. for government agencies. Pay-to-play. Every FOIA request is a truth-or-dare game played on a field slanted towards the government, which has unlimited public funds to gamble with.

But when just being dicks about isn't diabolical enough, government agencies and officials go further. When it's simply not enough to engage in litigation as defendants and argue against accountability and transparency, these entities go on the offensive.

That's right. Government agencies and officials occasionally engage in proactive lawsuits, daring the defendants (i.e., citizens making public records requests) to prove they're entitled to the documents. This shifts the burden away from the government and onto the person with limited funds and almost nonexistent power. It's no different than demanding millions for the production of PDFs. It's an option deployed solely for the purpose of keeping everything under wraps.

The latest participant in the "fuck the public and our obligations as public servants" is Louisiana's Attorney General.

Louisiana Attorney General Jeff Landry on Friday sued a reporter for The Advocate and The Times-Picayune over a public-records request she filed, asking a judge to issue a declaratory judgment denying the request and seal the proceedings.

The unusual action came a few days after the newspaper warned Landry that it intended to sue him if he didn’t turn over the requested records.

Welcome to Louisiana -- a state where government officials and employees don't even need to camouflage their desire to screw the people they're supposed to be serving because a whole bunch of local laws encourage this screwing. In this case, the AG undid the lawsuit threat -- one predicated on the state's refusal to hand over requested documents -- by firing off a lawsuit of his own. And just like that, the burden of proof needed to keep these documents out of the public's hands has been shifted to the public, as represented by the Times-Picayune.

One has to ask why the AG would need to keep these records hidden. There's alleged malfeasance afoot, and the sooner the public has some straight answers, the sooner this can be taken care of. The AG's decision to insert himself and his disingenuous lawsuit into the proceedings makes everyone involved look guilty... especially since the malfeasance is coming from inside the house.

The matter dates to Dec. 14, when the reporter, Andrea Gallo, first filed a public records request with Landry’s office seeking copies of sexual harassment complaints against Pat Magee, the head of the office’s criminal division, and records of how the complaints were handled. Magee was placed on administrative leave pending an investigation that day.

It's a terrible move in terms of optics. But it's a brilliant move if you care less about optics than protecting your government brothers (and, to a much lesser extent, sisters).

This is the sort of thing that would be greatly served by proactive transparency. Maybe the allegations are false. Maybe they're substantiated. But deciding to sue records requesters rather than turn over documents suggests it's the latter. And it suggests a cover-up in the works -- one that, at the very least, will allow the accused to resign before it can affect the accused's career or pension.

Optics matter. And they matter even before the facts are in. Being upfront with the people you serve generates goodwill -- something that's valuable to have in your pocket when government employees screw up. Suing the public before they can sue you says the public is subservient to their supposed public servants. It says the government would rather anger people and drain them of their money than engage honestly with the problem and carry out their obligations to the public.

This is garbage. But it's the same overheated garbage we've seen for years. And nothing will change as long as government agencies can use tax dollars to pay for legal arguments against transparency and accountability.

And they dislike the recording devices everyone carries with them at all times: cellphones. Cellphone ubiquity means it's almost impossible for cops to prevent an incident or interaction from being recorded. Add these devices to the steadily-increasing deployment of internet-connected security cameras and there's really nowhere to hide anymore.

Simply shutting down recordings or arresting citizens for pointing cameras at them is a very risky option. There's tons of case law on the books that says recording public officials is protected First Amendment activity. So, cops are getting creative. Some of the less creative efforts include shining bright flashlights at people holding cameras in hopes of ruining any footage collected. Sometimes officers just stand directly in front of people who are recording to block their view of searches or arrests taking place. Often the excuse is "crowd control," when it's actually just an attempt at narrative control.

Now, here's the latest twist: cops have figured out a way to prevent recordings from being streamed or uploaded to social media services or video platforms like YouTube. Believe it or not, it involves a particularly pernicious abuse of intellectual property protections.

Sennett Devermont was at the [Beverly Hills police] department to file a form to obtain body camera footage from an incident in which he received a ticket he felt was unfair. Devermont also happens to be a well-known LA area activist, who regularly live-streams protests and interactions with the police to his more than 300,000 followers on Instagram.

So, he streamed this visit as well—and that’s when things got weird.

In a video posted on his Instagram account, we see a mostly cordial conversation between Devermont and BHPD Sgt. Billy Fair turn a corner when Fair becomes upset that Devermont is live-streaming the interaction, including showing work contact information for another officer. Fair asks how many people are watching, to which Devermont replies, “Enough.”

Fair then stops answering questions, pulls out his phone, and starts silently swiping around—and that’s when the ska music starts playing.

Fair boosts the volume, and continues staring at his phone. For nearly a full minute, Fair is silent, and only starts speaking after we’re a good way through Sublime’s “Santeria.”

That's the angle: copyright infringement. By loading up someone else's recording with copyrighted music, officers like this one can nuke a livestream as it's happening or, at the very least, get the user loaded up on copyright strikes once the AI has scanned the recording. (If they really wanted to be evil, the officer could also file a bogus DMCA notice targeting the recording.)

Sure, it's not guaranteed to destroy a recording, but it's a great way to ruin one even if the copyright bots don't decide it's infringement. As Dexter Thomas points out at Vice, Instagram's rules allow for incidental music that happens to be in a video, rather than the primary purpose of the video. But that allowance isn't available on all platforms, so cops like this jerk are more than happy to roll the IP dice and hope for the best. And there's no guarantee the AI running copyright patrol on Instagram won't decide a cop's personal jukebox outweighs the non-infringement surrounding it.

This isn't the only time this has happened to Devermont. Another officer pulled out the IP big guns during an interaction with him.

By the time Devermont is close enough to speak to him, the officer’s phone is already blasting “In My Life” by the Beatles — a group whose rightsholders have notoriously sued Apple numerous times.

Now that this is in the news, we can expect it to pop up elsewhere. There are a lot of officers out there not nearly as creative as these two Beverly Hills cops, but who will be willing to follow the bad example they're setting. If nothing else, it will ruin recordings by filling them with the tinny tone of cellphone-blasted tunes. At worst, it will lead to a cascade of copyright strikes that will see these cop accountability activists banished from popular platforms.

Maybe these other agencies do agree with "going dark" proselytizers like Chris Wray and Cy Vance. Maybe these agencies that never speak out are the silent majority. Then again, maybe they recognize the tradeoff for what it is and find other ways to obtain the evidence they need. But one thing is clear, cops are fans of encryption if it benefits them.

Admissions made in a lawsuit brought by a fired Michigan State Police inspector show police officials have been using an encrypted messaging app with a self-destruct feature to engage in official business.

Top officials at the Michigan State Police have been using text messaging encryption devices that can put their internal communications out of the reach of the Freedom of Information Act and legal discovery, according to admissions the MSP made in a civil lawsuit.

Among those who have downloaded the "end-to-end" encryption applications onto their state-issued phones are a lieutenant-colonel, two majors and two first lieutenants, according to court records obtained by the Free Press.

Former inspector Michael Hahn sued the Michigan State Police after he was allegedly fired in retaliation for his vocal opposition to "unlawful racial and gender hiring and promotion preference." Hahn's lawyer, James Fett, suspected something was amiss when his discovery request for text messages from officials involved in Hahn's firing returned hardly any messages. The meager output was at odds with the four-month investigation of Hahn involving numerous MSP officials that occurred prior to his dismissal.

After a motion to compel, the Michigan State Police admitted its officials were using an encrypted app with self-destructing messages that leaves no permanent record on officials' phones or MSP servers.

Fett asked the MSP to admit that Gasper, Hinkley, Lt. Col. Kyle Bowman, Maj. Emmitt McGowan, Maj. Beth Clark, 1st Lt. Brody Boucher, and 1st Lt. Jason Nemecek had each downloaded and used an instant messaging application with end-to-end encryption on their state-issued cellphones.

Assistant Attorney General Mark Donnelly, who is representing the state defendants in the lawsuit, admitted in an Oct. 29 response, obtained by the Free Press, that was true for each of the officials named. But in a corrected filing Thursday, Donnelly said use of the encryption app on state phones was not true for Gasper or Hinkley, though it was true for the others.

The app being used appears to be Signal, according to the fired MSP inspector bringing the lawsuit. Hahn noted that lots of MSP officials' names disappeared from the app after the Detroit Free Press began asking MSP officials to comment on the filing.

While encryption is a great way to protect sensitive communications from malicious hackers and criminals, it's not so great when it's being used to shield public servants from transparency and accountability. By all means, these communications should be encrypted. But they should also be archived and stored somewhere the MSP can retrieve them when sought by public records requesters or court orders. This storage should also be encrypted.

Encryption isn't the problem here. It's the sidestepping of obligations to the public -- something that, in this case, happens to involve encryption. And if this is going to get sorted out, it's probably going to take litigation and nosy journalists to get it done. Because it looks like the department in charge of defining the contours and limits of official communications isn't up to the task.

The Michigan Department of Technology Management and Budget can restrict or forbid use of messaging services that don't create permanent records of official communications. It hasn't. And its conflicting statement to the Detroit Free Press seems to imply it permits the use of self-destructing messages by state employees who are required to preserve their official communications.

Asked whether state employees are permitted to install end-to-end encryption applications on their state-issued phones, Caleb Buhs, a spokesman for DTMB, said that would be allowed only "if the application is for legitimate state business."

Which is fine, but…

Buhs was then asked to give examples of what the Whitmer administration would consider "legitimate state business" that would leave no record of official communications between state employees. He did not respond.

Well, that clears nothing up. Perhaps this will motivate the DTMB to come up with some coherent guidelines and retention mandates. Or perhaps the Department will just find a better spokesperson.

Whatever the end result of this lawsuit, the immediate payoff is confirmation public officials are violating laws and blowing off their obligations to the public. Perhaps some public good will come of this outing of willful destruction of public records, but given the number of times similar things have happened at all levels of government, it's difficult to greet this revelation with optimism, rather than cynicism.

Since then, the NYPD and other first responder agencies have been attempting to litigate their way back to opacity. New York law enforcement agencies -- represented by their unions -- secured a temporary injunction blocking the release of these records last fall, setting the stage for even more expenditure of public funds to argue for the further screwing of the public these agencies are supposed to be serving.

Additional litigation was prompted by Mayor Bill de Blasio's unsealing of disciplinary records in response to the law's repeal. NYPD officers and city firefighters filed their own suit following ProPublica's publication of the unsealed records. The NYPD's union was able to secure an injunction prior to this publication, but it was completely nullified by ProPublica's reporting, which put everything it had obtained from the CCRB (Civilian Complaint Review Board) -- which has its own copies of NYPD misconduct files -- online in a searchable database.

This transparency genie can't be put back into the bottle, but that isn't stopping the litigants from trying to obtain a judicial order demanding this impossibility. US District Court Judge Katherine Polk acknowledged last year any order she might issue would be unable to "reach backwards in time" and reverse the publication of this info.

The unions are back in court, claiming the release of this info by the CCRB (and its subsequent publication) has created a danger that can only be addressed with a history-erasing court order.

Anthony Coles, an attorney at DLA Piper representing the unions, told the panel of judges Tuesday that police officers received “chilling threats” made to officers at the time the records release was first announced.

Even if true, there's nothing the court can do about it now. And, as the court points out, it was up to the plaintiffs to argue this point effectively prior to asking the court for yet another restraining order.

U.S. Circuit Judge Raymond Lohier faulted the unions, however, for failing to get specific in support of their claim that the repeal of the records-sealing law in the New York Constitution created irrevocable harm.

“As I understand it, there’s nothing in the record that indicates that the unions were able to come up with anything,” Lohier said.

Vague post-facto complaints aren't going to move the dial. But the unions -- and the public employees they represent -- are apparently hoping hysterical rhetoric delivered inside and outside the court might. But there's some encouraging pushback, led by police reformers, who point out the hypocrisy of cops claiming negative information hurts them while simultaneously dragging every victim of police violence through the mud in hopes of exonerating cops for killing or maiming citizens.

Here's Tiffany R. Wright of Communities United for Police Reform speaking up about the NYPD's pattern and practice of besmirching its victims:

Negative information about people killed by police has been allowed to circulate “in the public square,” she continued, while disciplinary records have not been public, making for a “one-sided, unfair” conversation.

That's the way things have been for far too long. Only recently -- and only with the repeal of a law that allowed cops to shield themselves from public scrutiny -- has the balance of power started to shift. But never mind the courtroom hysterics: the NYPD (and other NY public agencies) still wield most of the power. This shift towards accountability isn't seismic. But hopefully it's more than incremental. It appears these agencies will do everything in their power to prevent it from shifting any further. And they'll be spending the public's money to do it.

The full plan is somewhat astounding (I don't know why it's showing sideways, but I guess download it and rotate it). It opens by paying lip service to the idea of the 1st Amendment, and the value of "more speech" over suppressing speech. But then immediately seeks to undermine the 1st Amendment by suggesting that internet companies should be compelled to host speech they disagree with. It falsely suggests that the decision to suspend President Trump's account was an attack on his conservative views, and not his efforts to incite his supporters into overturning the election. It includes a section on giving law enforcement more access to content and forcing tech companies to become an arm of law enforcement. It (of course!) has a section on protecting "our children."

The whole thing is a censor's dream.

Of course, the GOP has no real power in Congress, especially in the House right now, but that could change quite a bit over the next few years, so we should take these proposals seriously. The key parts of the plan are here:

We could go through piece by piece and explain how these issues are misleading, wrong, silly, or pointless, but I'm sure we'll have plenty of chances to address each point as they start showing up in various bills.

What is clear, however, is that most of this policy is not about any principled stands the GOP may have. Most of it is about spite.

Every so often, footage that was never meant to see makes it into the hands of the public. The Appeal was given access to 66 hours of footage recorded by officers handling protests in Boston. The recordings show bad cops will continue to be bad cops, even when they're aware (or should be) they're all wearing recording devices.

Recordings show officers deploying force against people attempting to comply with their orders and discussing what appears to be an arrest quota. It shows an officer appearing to pocket a tie (with the price tag still on it) picked up near a looted store. It shows officers repeatedly pepper-spraying peaceful protesters and discussing targeting certain individuals for more spraying.

One of the most disturbing clips shows a cop bragging about hitting protesters with his unmarked car:

In another clip, a sergeant approaches the officer behind camera X81331058 and begins telling him about using a police vehicle to attack demonstrators.

“Dude, dude, dude, I fuckin’ drove down Tremont—there was an unmarked state police cruiser they were all gathered around,” says the sergeant, laughing.

“So then I had a fucker keep coming, fucking running,” he continues. “I’m fucking hitting people with the car, did you hear me, I was like, ‘get the fuck—'”

Some of the worst cops also appear to be the dumbest cops. Here's what happened next:

At this point the officer behind the camera pushes the sergeant’s head away and walks off in the other direction. He comes back a few seconds later, saying, “it’s on,” about the camera.

The sergeant quickly changes his story.

“Oh, no no no no no, what I’m saying is, though, that they were in front, like, I didn’t hit anybody, like, just driving, that’s all,” he says. “My windows were closed, the shit was coming in.”

Instead of the officer with the camera telling the sergeant he screwed up, the officer instead apologizes for his camera activating.

“This thing just fucking went on automatically,” he says.

And that's how bad cops stay on the job. Because even marginally better cops are unwilling to do anything about their misconduct.

Now, there will be some accountability, albeit belatedly. This footage could have been reviewed any time by these officers' supervisors or other oversight efforts. Either it was never reviewed or no one saw anything wrong with what was recorded. Neither outcome is ideal.

But some of these cops may find their jobs on the line in the near future. The Appeal reports Suffolk County District Attorney Rachael Rollins has forwarded the recordings to her special prosecution team. The Boston Police Department has also opened its own investigation into officers' actions during the May 31st protest.

If something actually comes out of this, the cameras may finally have a deterrent effect. Or it may just make bad cops act better when there's a chance they're being recorded. But even if the better behavior is only performative, there should be some overspill that results in fewer people being abused or having their rights violated. And that's probably the best we can hope for until police departments actually start taking employee discipline seriously.

The Snowden leaks gave us some of the first looks behind the Vantablack curtain surrounding intelligence efforts engaged in by US allies in the UK. The Snowden sneak peek enabled legal challenges that routinely found UK intelligence agencies were violating the rights of UK citizens, as well as those the UK government has unilaterally declared rightsless.

More rights violations and general wrongfulness has been uncovered. The Investigatory Powers Tribunal doesn't like what it's been seeing from MI6, which has apparently let its sources and informants run wild. The Tribunal doesn't say what criminal violations have been committed in the name of national security, but its limited ruling expresses its displeasure with attempted MI6 interference and its apparent blessing of criminal actions.

MI6 agents and informants may be committing crimes in the UK, a watchdog has revealed.

The Investigatory Powers Tribunal disclosed the ruling despite government attempts to keep the matter secret.

It also said questions raised should be disclosed to campaigners, who have been asking for greater legal clarity over what the intelligence agencies can do.

It comes a day after the intelligence services watchdog raised its own questions about some MI6 activities.

The ruling [PDF] doesn't say anything about the criminal acts. Instead, it focuses on MI6's attempt to derail the judicial process. Ongoing legal proceedings have demanded a level of forthcoming-ness British intelligence agencies aren't accustomed to. MI6 reacted badly. This resulted in MI6 employees trying to talk the court into shutting further transparency down. The court rejected this… publicly.

Fifthly, in March 2019, it was recognised that the direct communication which took place with the tribunal was inappropriate. An apology was given and it was clearly recognised that nothing like this should happen in the future. At the hearing before us, Sir James Eadie acknowledged that everyone had recognised that something serious had gone wrong.

These conversations dealt with revelations British intelligence agencies felt shouldn't be shared with the public.

On 5 March 2019, two members of the respondents’ staff contacted the tribunal secretary to state that the documents should not have been provided to the tribunal. On 7 March 2019, the tribunal secretary wrote to the respondents at the request of the President and stated that it was inappropriate to seek to intervene in the way that they had sought to do.

The government wants to hide something. Possibly that "something" is included in a recent report by IPT's oversight. The recently released report doesn't dig into the details, but makes it clear something approaching abhorrent was ordained by intelligence community handlers.

On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ and provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed.

That's the determination. Bad things were done but it was not made clear that bad things were done in written reports. It's a policy violation. It's also probably a human rights violation, but as far as its oversight can see, it's mostly problematic because the proper James Bond paperwork wasn't filled out correctly.

The IPT's refusal to bury this decision shows it's willing to tackle the most problematic aspects of national security openly, for the most part. The fact that MI6 tried to bury everything via a bypass of the adversarial process is an indication it won't be handling things honestly in the future. When the bad stuff comes out -- as it always does eventually -- UK spooks will try to bury it.

Earlier this year, self-proclaimed antifa supporter Michael Reinoehl allegedly shot and killed far right counter-protester Aaron Danielson during a protest in Portland, Oregon. Reinoehl claimed the shooting was self-defense. Other witnesses claimed the shooting was unjustified. Neither assertion ever had a chance to be proven. Reinoehl was killed by US Marshals four days later -- an extrajudicial killing praised by President Trump as good and lawful.

“We sent in the U.S. Marshals for the killer, the man who killed the young man on the street. He shot him… just cold blooded killed him,” Trump said. “Two and a half days went by, and I put out ‘when are you going to go get him?’ And the U.S. Marshals went in to get him, and they ended up in a gunfight.”

Trump called Reinoehl a “violent criminal” before suggesting that his extrajudicial killing was par for the course.

“This guy was a violent criminal, and the U.S. Marshals killed him,” Trump said. “And I will tell you something — that’s the way it has to be. There has to be retribution when you have crime like this.”

The Thurston County Sheriff's Department was part of the Marshals' fugitive task force. According to the department's statements, the kill was a good one. Officers and Marshals claimed Reinoehl opened fire on the task force first. But there was no evidence of that at the time the department made these statements. A witness said Reinoehl fired first, but here's all the Sheriff had in terms of actual evidence:

Lt. Ray Brady of the Thurston County Sheriff’s Department said investigators have not concluded whether Reinoehl fired any shots.

There could have been more corroboration of the officers' statements, but no officer felt compelled to document the scene.

Brady said he did not believe the officers involved in the shooting had body cameras or dashboard cameras on their vehicles.

Investigations of the shooting are ongoing. But the immediate aftermath featured both the Sheriff's Department and the US Marshals Service declaring the shoot justified.

CJ Ciaramella of Reason isn't satisfied with the official statements. He went looking for documents about the shooting -- one that might clear up whether or not Reinoehl produced a gun or opened fire on officers. Contradictory statements by non-law enforcement witnesses indicate this may not be as clean as law enforcement is portraying it.

But Ciaramella's request for records from the Washington Department of Corrections (which also had an officer on the Marshals' task force) is being blocked by an agency Ciaramella hasn't approached directly. Inserting itself into this open records request is the Thurston County Sheriff, which believes it has a right to prevent Ciaramella from obtaining records from a completely separate government agency.

The Sheriff's request [PDF] for a restraining order blocking the release of shooting records claims the release of these records will undercut its own investigation by [checks filing] giving the public access to information the Sheriff may later demand from the Department of Corrections.

The likelihood is high that the records DOC intends to release contain facts or statements that may be relevant to the Sheriff’s open investigation, and that could in turn undermine the Sheriff’s investigation. Release of these records could also undermine the exemption that the Sheriff properly claimed. Additionally, the likelihood is high that the records DOC holds may, even if redacted, contain information that the Sheriff’s investigation team is prohibited from seeing until its own investigation is complete; and the likelihood is high that such information could make its way back to the Sheriff’s investigation team if DOC releases its records before the Sheriff completes its investigation. Therefore, Thurston County Sheriff’s Office brings this action to preserve the integrity of its investigation and of its claimed exemption under RCW 42.56.240(1), as well as to ensure its efforts to meet its obligations under WAC 139-12-030 are not thwarted.

A cynical reading of this attempted intervention suggests the information held by the DOC isn't completely exculpatory and -- if that information becomes public -- will make it difficult for the Thurston County Sheriff to clear the officers it's investigating. That may also turn out to be the most accurate reading. But we'll have to wait a bit longer. The restraining order has been granted [PDF]... but not with all of the Sheriff's assertions intact.

Here's the pertinent part of the order, with the judge's modifications of the Sheriff's request in [brackets].

A temporary restraining order is appropriate as it appears that disclosure of certain information requested by CJ Ciaramella concerning records related to an open and active homicide investigation led by Thurston County Sheriff's Office (the Reinoehl incident) is [may be] exempt from disclosure under RCW 42.56.240(1), the non-disclosure of such records is [likely] essential to effective law enforcement, and disclosure would [likely] irreparably harm vital government functions…

This buys the Thurston County Sheriff a bit more time. The order is in effect until early next year, when the Sheriff will have to try to talk the court into delaying this release even longer. That it's decided to insert itself into this case suggests it already has some idea it's not going to like what's in the documents it's trying to keep from being released. This "clean" shoot may turn out to be anything but.

As background, you'll recall that after Twitter added two fact checks on Donald Trump's misleading tweets about mail-in ballots, Trump issued a bizarre executive order, demanding that (among other things) NTIA ask the FCC to reinterpret Section 230. Trump needed to order NTIA to do this because the FCC is supposed to be an independent agency and the President isn't supposed to order it to do anything. Indeed, as you'll recall, when Barrack Obama merely made a public statement about net neutrality, without directing the FCC to do anything, basically every Republican, including Donald Trump, whined that he was illegally trying to "bully' the FCC to do his bidding.

It quickly came out that two NTIA staffers were responsible for crafting the Executive Order: Adam Candeub, a long term critic of Section 230 who had just been hired to NTIA, and Nathan Simington. Candeub was later promoted to run NTIA and just this week was given a top job in the Justice Department. Simington, despite little qualifying experience, has been made an FCC Commissioner.

This was despite a separate FOIA request that revealed that Candeub and Simington, together, had emailed with a Fox News producer, asking to get Fox News host Laura Ingraham to attack Section 230 to help move the NTIA petition forward, and noting that it was important to do so to help re-elect Trump and help with down-ballot Republicans. This, of course, should be disqualifying for either of them to hold government jobs. When you get a job in the government you represent everyone and not just your own political party. You are not supposed to be using your government job to bully the media to do things for purely political reasons.

Given that, there should be tremendous interest in just who Candeub and Simington were talking to about Section 230. And Americans for Prosperity sent a FOIA request seeking exactly that information, asking for any emails between the two of them about Section 230 with a short list of known anti-Section 230 folks, including former Fox lobbyist (and the person responsible for getting FOSTA passed), Rick Lane, anti-230 FCC Commissioner Brendan Carr, AT&T (a company protected by 230, but which has decided to attack the law because it hates Google), DCI Group (a famously sketchy lobbying organization) and a bunch of others.

The full complaint details what happened:

On October 26, 2020, NTIA transmitted its first interim production, which contained 128 records in 35 electronic files. Ex. 5. Thirty-five records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional eight records were “withheld in part under Exemption 6.”

In this production, one record revealed that Mr. Candeub sent an email from a government email address to his private, gmail.com email address.

On November 10, 2020, AFPF asked NTIA whether it could email the next production and when another interim or final production could be expected.

On November 11, 2020, AFPF raised concerns that the first interim production did not include any text messages or instant messages. Id. (“These should be included in ‘all communications’ as well as e-mail, hand-written notes, etc.”).

On November 16, 2020, NTIA responded that the second interim response was prepared, but the agency required an address clarification. Ex. 8. NTIA also claimed that AFPF’s “request only specified email, it did not specify text and IM. If [AFPF] would like to request text messages and IM, [it] will need to file another FOIA request for those records.”

AFPF immediately confirmed its mailing address and noted that its initial FOIA request contained “no reference to seeking only e-mail records,” as it instead mentioned “all communications.” Id. AFPF further noted that this “matches the same language in [NTIA’s] . . . clarification confirmation e-mail from September 18 . . . . Therefore, the request covers text messages and IMs.” Id. AFPF also asked how many records were left after the second batch and when AFPF could expect to receive them.

NTIA responded that it does “not have a final count or an estimate of how many records will be responsive to [AFPF’s] request. Nor d[id it] have an estimate of when this will be completed.” Id. Additionally, NTIA attempted to justify its refusal to include records beyond e-mails in a search for “all communications” by pointing to a footnote in AFPF’s request that defines the term “record.”

On November 18, 2020, NTIA transmitted its second interim production, which contained 153 records in 39 electronic files. Ex. 9. Fifty-nine records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional twenty-five records were “withheld in part under Exemption 6.” Id. Additionally, fourteen records were referred to the Department of Justice and three to the Department of Commerce “for a direct response[.]”

On December 14, 2020, AFPF emailed NTIA noting that both Mr. Candeub and Mr. Simington will reportedly be leaving the agency. Ex. 10. Given these reports, AFPF requested “that NTIA take affirmative steps to preserve all potentially responsive records, including text message records and any private email account that may contain government records.”

To date, NTIA has not provided a final determination on AFPF’s request, nor has it released another interim or final production of responsive records.

And thus, the lawsuit for failing to comply with FOIA's requirements. As with most FOIA lawsuits, the main remedy sought is having NTIA actually cough up the records requested, as required by the law. It sure would be interesting to see what's there, and why NTIA seems unwilling to obey the law and hand over those records.

Yes, this sort of thing has happened before. And previous efforts have always died on their way to the Oval Office. But this one might be different. A growing collection of case law says the US Courts system has been overcharging users and illegally spending funds meant to improve the PACER system and, yes, lower the cost for users.

This latest effort has a bit more momentum than its predecessors. And that seems to worrying the US Courts, which has fought back with dubious assertions and even more dubious budget estimates. The court system claims it will cost at least $2 billion over the next several years to overhaul PACER and provide free access to documents. Experts say it will cost far less.

A group of former government technologists and IT experts dispute that figure. In a letter sent last week to the Judicial Conference of the United States, the group estimated the cost of a new system would be $10 million to $20 million over 36 months to build the system and between $3 million and $5 million annually to maintain and develop.

Even more damning is the Congressional Budget Office's estimate. According to its report, fixing the system and providing free access to most users would cost less than $1 million a year.

On net, CBO estimates that enacting H.R 8235 would increase the deficit by $9 million over the 2021-2030 period.

The report says overhauling the system will cost around $46 million. But that will be offset by fees the court system will be able to collect from "high-volume, for-profit users," which the CBO estimates to be about $47 million over the same period. After subtracting some expected revenue declines and indirect tax effects, the court system should net about $37 million over the next decade.

That should end the debate over cost but it probably won't. For whatever reason, the court system continues to insist giving citizens free access to court documents would bankrupt the system. If it can find allies receptive to its bad math in the Senate, it could end this bill's run.

But no one but the court system agrees with the court system's math. It's not just potential beneficiaries of free access providing much lower cost estimates. The government itself disagrees with this branch's budgetary suppositions. Hopefully, the CBO and the tireless work of transparency advocates will finally push free PACER past the Senate and onto the president's desk.

Trump's tantrum notwithstanding, the bill will pass with or without his support. No other mildly rational legislator actually believes preventing social media platforms from being sued over third-party content is a "national security" issue. Plus, the sitting president will soon be forced to stand, pack his shit into file boxes, and make his way towards the exit.

There's some good stuff in the NDAA (National Defense Authorization Act), even if you believe America isn't obligated to protect the world from everyone. Yes, America's war machine is a trillion dollar industry that shows little sign of slowing down. Its excesses allow cops to avail themselves of war gear and the nastiest end of its spectrum sends legislator-blessed death from above to perform extrajudicial killings.

But, as Dan Friedman reports for Mother Jones, there's an addition to the latest NDAA that would prevent Gestapo-esque bullshit from being carried out by federal agents sent to quell anti-government protests in American cities. If this bill passes as written, there will be no more disappearing of protesters by unidentified federal cops. Going forward in 2021, federal law enforcement agents will have to be clearly identified while tossing protesters into unmarked vehicles.

Congress is set to approve a defense policy bill that bars unidentified federal law enforcement officers from policing protests. The bill responds to a phenomenon that Mother Jones flagged in June: Unidentified federal law enforcement officers with no identifying insignia joined in the Trump administration’s coordinated crackdown on protests against police violence in several cities earlier this summer.

This would also allow people whose rights have been violated to figure out who they need to sue. Officers who fail to identify themselves make it difficult to name defendants. A lack of identifiable defendants allows the government to sidestep a lot of litigation and prevents plaintiffs from shoring up their allegations. This NDAA provision makes it easier for citizens to hold the government accountable for its abuses and rights violations.

On top of that, it makes it easier for citizens everywhere to see who's doing what in their name. Taxpayers are paying for this "protection." The least the government can do is make it clear to everyone who's providing this "protection" and which officers are overstepping their bounds.

That says that the audio will be streamed on YouTube and provides you with a link. However, beneath it, it says the following:

The U.S. District Court for the Northern District of Georgia is participating in an audio pilot program permitting a limited number of district courts to livestream audio of certain civil proceedings with the consent of the parties. Under the pilot program, audio of qualifying civil proceedings will be livestreamed on the court’s YouTube channel.

Audio recordings will not be available for playback on YouTube after proceedings have ended. Audio, in full or in part, from any proceeding may not be recorded, broadcast, posted or reproduced in any form.

And, uh, what? I kind of understand (if seriously disagree with) rules in courts saying that people in the courtroom are not allowed to record, but cannot fathom any possible way in which the court can say that audio that they've streamed out on the open web cannot be recorded or used in any form.

And already there seems to be some crackdown on those who did make use of the recordings. Reuters legal reporter Jan Wolfe was told to delete her tweets with the recording of Judge Timothy Bratten shutting down the lawsuit:

And, if you go to the original YouTube video where the court hearing was officially streamed, you now see this:

This seems absolutely ridiculous. I also cannot conceive of any possible basis for which the courts can force someone, especially a reporter, to not record or republish using the publicly available audio stream. And it's not that difficult to find the audio stream reposted elsewhere.

As reporter Brad Heath notes, this seems both short-sighted and beyond the authority of the courts:

I'd go beyond short-sighted. It's ridiculous. And demanding people take down such things seems to raise serious 1st Amendment issues.

Cops don't like to talk about their warrants. Affidavits are often filed under seal. Sometimes the seal is lifted once the warrant is served. In other cases, it takes a concerted effort and a court order to make these documents public.

Judges apparently don't like to talk about warrants either. At least, this appears to be the case in Jefferson County, where judges signing warrants are all but impossible to identify by their signatures.

[Charles] King’s was one of 231 Jefferson County search warrants executed since January 2019 and examined by the Kentucky Center for Investigative Reporting and WDRB News. That review found dozens of flashy loops, “scribble scrabble,” and identical swirls derived from an electronic image file. Few judges took the time to sign their whole name. Only one printed her last name underneath her signature.  

On the vast majority of search warrants — nearly 72% — the names of the judges who approved them were illegible.

The warrant that led to the raid of King's place contained a single paragraph of narrative -- one that made no mention of any efforts by officers to verify allegations of drug dealing -- and an illegible signature. This makes it impossible to tell who's approving obviously deficient warrant requests. It also makes it pretty easy to forge one, if one were so inclined.

While it's understandable that signatures will deteriorate over time, especially when the signature is in high demand, it's not like it's impossible to counteract this natural declination.

Jefferson District Court Judge Julie Kaelin, takes the extra step of printing her name beneath her signature.

The reason is simple, Kaelin says — she wants to be transparent.

“It is problematic to not be able to look at a warrant and see which judge signed it,” she said. “I don’t want anyone to ever think I’m hiding behind an illegible signature.”

This judge went one step further. She proposed a set of rules for warrant approval that would have increased accountability and transparency from all parties involved.

Under the proposed rule change, which was shared with and reviewed by KyCIR, conversations between judges and law enforcement officers seeking a warrant would be recorded; only specific judges could review a search warrant request on a given day; and a judge who refuses to grant a warrant would be required to file the documents with the Jefferson County Circuit Court Clerk.

Judge Kaelin hopes these measures would "boost confidence in the judiciary," which is always a good thing, especially when controversial searches are still commonplace. This would also cut down on "judge shopping" by law enforcement officers, who may find some judges more compliant (or less attentive) than others.

It appears most of the Jefferson County judiciary isn't interested in bettering its relationship with the people who pay their salaries. Following several days of deafening silence, the Jefferson District court system finally admitted it wasn't going to change anything about its warrant approval process.

The judges met Tuesday to consider the proposal in a secret meeting. In the days that followed, Jefferson District Court Chief Judge Anne Haynie and court administrator Kelsey Doren did not respond to repeated requests about the outcome of the meeting.

On Friday afternoon, Doren said via email that the proposal failed. Minutes from the District Court’s judges’ regular monthly meetings “are confidential,” she said. Doren did not respond to a request for an interview with Chief Judge Haynie.

So much for the presumed openness of the courts. And so much for being receptive to any incremental increases in accountability and transparency. It will be business as usual in Jefferson County, where deficient warrant requests are rewarded with illegible judicial approval. If residents are killed by cops during raids predicated on boilerplate affidavits, so be it. Who needs checks and balances when there's a drug war to be fought?

The Louisville Metro Police is still dealing with the fallout of a botched no-knock raid, which ended with officers killing Breonna Taylor in her own apartment. Six of the 32 bullets fired by LMPD officers -- some blindly through covered windows -- hit Taylor. No officers were charged in Taylor's death.

The PD is now dealing with another scandal involving its officers. Criminal charges have been brought against three officers who sexually abused minors participating in the PD's "Explorer Program."

A third Louisville Metro Police officer has been indicted on charges of sexually abusing a juvenile in the department's now-defunct Explorer Program for youths aspiring to be in law enforcement.

A federal grand jury indictment accuses Brad Schuhmann, while acting as a police officer, of sexually abusing a minor in 2010, saying he "willfully deprived” a juvenile identified as Jane Doe “of liberty without due process of law, which includes the right not to have her bodily integrity violated by a person acting under color of law."

This side project of the Boy Scouts of America has produced nearly as many sexual abuse allegations as the Boy Scout program itself. What happened in Louisville isn't an aberration. Putting cops in close contact with minors appears to be a bad idea.

In recent decades, more than 100 police officers have had sex with Explorers they were entrusted with mentoring, the vast majority of them underage. In just the past year, two sheriff's deputies in San Bernardino, California, were arrested for having sex with underage girls; a New York City cop was charged with child sex abuse after sending racy text messages to a 15-year-old; an officer in Bremerton, Washington, was reprimanded for sleeping with an 18-year-old; and a former cop in Burlington, North Carolina, pled guilty to taking indecent liberties with a minor after being accused of having sex with a 14-year-old he'd taken on ride-alongs.

That's from a 2011 report. There have been numerous other incidents since then. The Louisville Courier Journal's coverage of this current scandal -- which dates back to 2017 -- shows the problem infects law enforcement agencies around the nation.

In the wake of Louisville’s own Explorer scandal, in which two former officers have been accused of sexually abusing Scouts and the police department of covering it up, the Courier-Journal found that over the past 40 years, at least 137 girls and 26 boys have been allegedly raped, seduced, fondled, kissed, dated or otherwise exploited in 28 states by at least 129 law enforcement officers, firefighters and other advisers.

The youngest victims were 13. One was in the sixth grade.

One officer tried to set up three-way sex with Explorers. Another took surreptitious photographs of Explorers’ underwear. A third took bondage photos of boys he took on Civil War re-enactment camping trips. In Warick, Rhode Island, six officers had sex with one girl. In Bandon, Oregon, five officers made a sex tape featuring two girls and two boys.

Seventy-five cases resulted in criminal charges and 19 in lawsuits, including one that cost Irwindale, California, a city of only 1,422 people, $2.75 million to settle.

The latest twist in the LMPD's ongoing scandal is its apparently deliberate attempt to hide documents related to this abuse from journalists. And the department did this with the county and city's approval.

Louisville Metro Police concealed at least 738,000 records documenting the sexual abuse of Explorer Scouts by two officers — then lied to keep the files from the public, records show.

The Courier Journal last year requested all records regarding sexual abuse of minors by two officers in the Explorer Scout program for youths interested in law enforcement careers.

Police officials and the Jefferson County Attorney’s Office said they couldn't comply, insisting all the records had been turned over to the FBI for its investigation.

But that wasn't true, according to records The Courier Journal recently obtained in the appeal of its open records case.

In fact, the department still had at least 738,000 records, which the city allowed to be deleted.

While it's true the FBI is in the middle of an investigation, the PD still had its own copies of those files on hand. Or, at least it did until the Courier Journal started asking for them. The PD then insisted it had turned everything over to the FBI. This assertion was backed up by the Assistant County Attorney. Supposedly, the FBI had "taken control" of everything, including any physical or digital copies the LMPD might have had on hand.

This assertion by County Attorney Annale Taylor was directly contradicted by the LMPD's own statements in emails to the attorney.

Three months earlier, in June, Louisville Sgt. Robert Banta, a task force member, had told Taylor in an email he could provide "any and all documents involved in the Explorer investigation up until April 1, 2017, when the federal investigation was initiated."

“All that information still resides in the PIU (Professional Integrity Unit) case file and is available to the county attorney’s office,” Banta said in his June 6, 2019, email, which he also sent to then-Chief Steve Conrad and LMPD legal adviser Dennis Sims.

And the denial any records still existed was contradicted by the county attorney's office in another email to the attorney general's office. This email said the LMPD had found thousands of documents in a "hidden folder." A letter sent to the paper's attorneys made it clear the PD had retained almost everything it had previously claimed the FBI was in sole possession of.

In an Oct. 21 letter to The Courier Journal's lawyers "amending previous factual statements made in error,” Assistant County Attorney Roy Denny acknowledged 9,700 folders containing 738,000 documents — 470 gigabytes of data — had been found on the secret folder.

The catch was these had been backed up to the city's servers, but only temporarily. These had been turned over to the FBI as well -- months after the paper had asked for them -- and wiped from city's backup.

The paper is now accusing the LMPD and city of destroying records. The county attorney office's legal representative, Kenyon Meyer, insists no destruction has occurred. The paper still has the option of demanding these records from the FBI.

Just little intra-government coverup, apparently. The city and PD seem more than willing to deal with accusations of records destruction and open records law violations if it means they won't immediately have to deal with whatever's in the thousands of files related to multiple officers' sexual abuse of minors. Sending these away to the FBI -- and deleting their own copies -- places the paper back at square one. It will take another set of FOIA requests -- and more litigation -- to acquire the records these two entities seemingly want buried.

First, let's address body cameras. They're not a panacea. They don't turn bad cops into good cops. They're far more useful to prosecutors then they are to criminal defendants or plaintiffs in civil rights lawsuits. They tend to "malfunction" with alarming regularity during confrontations with members of the public. And they can be manipulated to act as corroboration for falsified police reports.

That being said, they do offer one thing we haven't seen since the advent of dashcams: another version of events normally only memorialized by exonerative statements and questionable report narratives.

Five years ago, the DOJ was throwing federal money at body camera programs. But only for local law enforcement agencies. The feds wanted none of it. A mandate issued by the DOJ said its agencies wouldn't partner with cop shops using the tech, even if the cameras were purchased with federal money. According to the DOJ, it was "looking into the issue," but strongly felt the presence of body cameras would "expose police methods." It said this with a straight face despite "police methods" remaining largely unchanged since the invention of the door ram.

Five years later -- and while under the now-temporary thumb of cop cheerleader Bill Barr -- the DOJ has finally decided to join the present (already in progress).

Today, the Justice Department announced that it will permit state, local, territorial, and tribal task force officers to use body-worn cameras on federal task forces around the nation. The department’s policy will permit federally deputized officers to activate a body-worn camera while serving arrest warrants, or during other planned arrest operations, and during the execution of search warrants.  

This doesn't mean federal officers and agents will be wearing body cameras. Oh my no. That accountability bridge will presumably be crossed sometime in the next decade. But it will no longer require local officers to leave their cameras at the station before assisting in warrant service. According to the DOJ's official guidance [PDF], this will finally allow the local boys to stop violating their own policies when performing arrests or searches.

To the extent state and local law enforcement agencies mandate BWCs [body-worn cameras] for TFOs [task force officers] while engaged in federal task force operations, the Department will permit federally deputized TFOs from those agencies to use their BWCs under the following circumstances.

How gracious of the federal government to allow local agencies to follow their own policies. But there are some catches. And one of those catches will allow officers to engage in searches without providing unbiased documentation of the search.

TFOs are authorized to activate their BWCs upon approaching a subject or premises, and must deactivate their BWCs when the scene is secured as determined by the federal supervisor on the scene as designated by the sponsoring federal agency.

More DOJ caveats await, ensuring even fewer recordings will occur.

TFOs are prohibited from recording: (1) undercover personnel; (2) confidential informants or confidential sources; (3) on-scene witness interviews prior to or after the operation; (4) personnel using specialized or sensitive investigative techniques or equipment; or (5) onscene actions by any non-law enforcement persons who are assisting law enforcement personnel prior to or after the operation.

So, the FBI will continue to conduct "interviews" without unbiased documentation and nearly anything involved with a task force operation will go unrecorded because pretty much everything other than breaching an entrance or placing someone in cuffs will fall into these expansive, malleable exceptions.

And if the public wants access to this footage, good luck with that. Whatever local policies and laws that normally govern public access to recordings are null and void. According to the DOJ, it retains control of recordings and will preemptively declare all recordings exempt from public records requests.

In all circumstances, TFO BWC recordings shall be treated as law enforcement sensitive information, the premature disclosure of which could reasonably be expected to interfere with enforcement proceedings, and as potential evidence in a federal investigation subject to applicable federal laws, rules, and policy concerning any disclosure or dissemination; and therefore deemed privileged absent appropriate redaction prior to disclosure or dissemination. Nothing in this policy shall be deemed to provide a right of public access to TFO BWC recordings.

The good news is there is one exception: if anyone on the task force -- federal or otherwise -- kills or seriously injures someone, the recordings will be "expeditiously reviewed" and approved for public release as soon as is "practical." Granted, the dictionary definition of "expeditious" and "practical" will differ greatly from the DOJ's definition of those terms. But it's something. And it's something that fills a void the DOJ proactively chose to leave unfilled for years.

In other words, it appears that the "compromise" the internet companies are looking to throw to a greedy Congress regarding Section 230 reform is "transparency." I've heard from a variety of policymakers over the last few months who also seem focused on this transparency issue as a "narrow" way to reform 230 without mucking up everything else, so it seems like mandating content moderation transparency may become "a thing."

Mandating transparency, however, would be a dangerous move that would stifle both innovation and competition.

Cathy Gellis has covered this in detail in the past, and I addressed it in my comments to the FCC about Section 230. But it seems like we should be a little clearer:

Transparency is important. Mandated transparency is dangerous.

We've been celebrating lots of internet companies and their transparency reports going back to Google's decision nearly a decade ago to start releasing such reports. Over time, every large internet company (and many medium ones) has joined the bandwagon. Indeed, after significant public pressure, even the notoriously secretive giant telcos started issuing transparency reports as well (though they often did so in a secretive manner that actually hid important details).

So, at the very least, it certainly looks like public pressure, good business practices, and pressure from peers in the industry have already pushed the companies into releasing such reports. On top of that, many of the internet companies seem to try to outdo each other in being more transparent than their peers on these reports -- which again is a good thing. The transparency reports are coming and we should celebrate that.

At the very least, though, this suggests that Congress doesn't need to mandate this, as it's already happening.

But, you might say, then why should we worry about mandates for transparency reports? Many, many reasons. First off, while transparency reports are valuable, in some cases, we've seen governments and government officials using them as tools to celebrate censorship. Governments are not using them to better understand the challenges of content moderation, but rather as tools to see where more censorship should be targeted. That's a problem.

Furthermore, creating a "baseline" for transparency reports creates two very large issues that could damage competition and innovation. First, it creates a clear compliance cost, which can be quite burdensome for new and smaller websites. Facebook, Google and Twitter can devote people to creating transparency reports. Smaller sites cannot. And while you could, in theory, craft a mandate that has some size thresholds, historically that leads to gaming and other tricks.

Perhaps more importantly, though, a mandate with baseline transparency thresholds locks in certain "rules" for content moderation and creates real harm to innovative and different ideas. While most people seem to think of content moderation along the lines of how Facebook, YouTube, and Twitter handle it -- with large (often outsourced) content moderation teams and giant sets of policies -- there are many, many other models out there as well. Reddit is a decently large company. Yet it handles content moderation by pushing it out to volunteer moderators who run each subreddit and get to make their own content moderation rules. Would each subreddit have to release its own report? Would Reddit itself have to track how each individual subreddit is moderated and include all of that in its report?

Or how about Wikipedia? That's one of the largest sites on the internet, and all of its content moderation practices are already incredibly transparent, since every single edit shows in each page's history -- often including a note about the reasoning. And, again, rather than being done by staff, every Wikipedia edit is done by volunteers. But should Wikipedia have to file a "standardized" report as well about how and why each of those moderation decisions were made?

And those are just two examples of large sites with different models. The more you look, the more alternative moderation models you can find -- and many of them would not fit neatly into any "standards" for a transparency report. Instead, what you'd get is a hamfisted setup that more or less forces all different sites into a single (Facebook/YouTube/Twitter) style of content moderation and transparency. And that's very bad for innovation in the space.

Indeed, as someone who is quite hopeful for a future where the content moderation layer is entirely separated from the corporate layer of various social media sites, I worry that mandated transparency rules would make that much, much more difficult to implement. Many of the proposals I've seen to build more distributed/decentralized protocol-based solutions for social media would not (and often could not) be fit into a "standardized" model of content moderation.

And thus, creating rules that mandate such transparency reporting for companies based on the manner in which those three large companies currently release transparency reports would only serve to push others into that same model, creating significant compliance costs for those smaller entities, while greatly limiting their ability to experiment with new and different styles of moderation.

The records do exist and the public should be able to access them. But DHS agencies do everything they can to keep these records and the public separated. Responses are dragged out to the point of litigation and then the litigation gets dragged out for as long as possible in hopes of deterring not only the requester suing, but others who might think about asking the agency for records.

The CBP wants to make its refusal to part with misconduct records a feature, rather than an all-too-common federal agency bug. It has asked the National Archive to treat many of its misconduct records as "temporary," giving it permission to discard these as soon as possible rather than having them preserved for posterity.

The Border Patrol’s proposal to the National Archives, which makes decisions about the retention of U.S. government documents, would designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department. These records include reports on concluded investigations, sworn witness statements, and transcripts of interviews — material that constitutes invaluable testimony of CBP’s conduct. The proposal would also mark as temporary internal records concerning administrative and criminal investigations of CBP agents, as well as records collected by CBP in connection to the Prison Rape Elimination Act, or PREA.

If granted this request, the CBP could start shredding some records in as little as four years. Others would have to be retained for 25 years, but the CBP would have no obligation to turn records over to the Archives, where they would become part of the agency's permanent record.

History isn't always written by the winners. Sometimes it's written by those who can find a way to control the narrative in perpetuity. The record of the CBP's wrongs will be allowed to vanish into the ether. With a four-year plan for some documents, the CBP has a shot at destroying records before requesters know they exist or before litigation commences.

The problem here is that the National Archives has already allowed ICE to selectively edit its history, which the CBP is hoping will pave the way for its history-erasing proposal to be accepted by the federal government's historians.

In their review of CBP’s proposal, National Archives officials referred to the designation of ICE’s abuse complaints records as temporary to justify marking CBP’s complaints records the same way. The officials argued that “these records do not have value beyond their functional use for tracking complaints and ensuring fulfillment of obligations.”

And the CBP isn't the only problem here. Somehow the National Archives has convinced itself that a running record of civil liberty abuses and other misconduct isn't historically significant enough to preserve.

None of this may ultimately matter. The National Archives has been pretty much ignored by multiple administrations. It has been gradually stripped of funding as the amount of documents created by the government has increased. As the Intercept's article notes, it's been years since Congress has shown any interest in preserving the preservers. No hearings have been held and no effort made to shore up an entity swamped with other agencies' paperwork.

If Congress won't act, it's aiding and abetting in the destruction of historically significant records. It's allowing federal agencies to whitewash their abusive pasts. This shouldn't be acceptable but somehow the National Archives has become less than an afterthought in Washington. Without more oversight, it's just going to become the Ministry of Truth, housing only records agencies feel show them in the best light.

The body camera footage and documentation of the incident was buried by government employees, withheld for months under the moronic claim that releasing them would result in "misinterpretation" by members of the public. Police officials already knew how bad things were. Captain Frank Umbrino noted in an email that releasing the recordings of the killing of Prude would have "intense ramifications." The Deputy Chief, Mark Simmons, felt the same way. Deputy Chief Simmons claimed the public was too stupid to be trusted with this information.

"We certainly do not want people to misinterpret the officers’ actions and conflate this incident with any recent killings of unarmed black men by law enforcement nationally," Simmons wrote in an email. "That would simply be a false narrative, and could create animosity and potentially violent blow back in this community as a result."

There was only one false narrative in place, though -- one that was swiftly generated by police officers and officials to turn a wrongful killing into a possibly-justified homicide. This -- from the 325 pages of documents [PDF] released by the city to the Prude family's lawyer -- is pretty difficult to misinterpret.

"Make him a suspect." But of what? The original incident report detailed no suspected criminal activity. Daniel Prude was suffering from a mental health crisis when officers accosted him. He was naked and claimed he had the coronavirus. He told officers to give him a gun. Officers responded by placing a spit hood over his face. One officer then pressed Prude's hood-covered face into the asphalt and held it there until Prude stopped breathing. Two other officers held down Prude as well, placing their weight on his legs and back. Prude was declared brain dead by EMS personnel shortly after they responded from the scene. He was removed from life support six days later.

Once Rochester PD officials realized what they were dealing with -- the killing of an unarmed (and naked) Black man -- the narrative was altered and the city lent its assistance to the cover-up.

A new report was created. This one claimed Prude was a burglary suspect.

The original report stated officers intended to detain Prude under the state's mental hygiene law. The second report attempted to tie him to a broken window at a nearby business. But the recordings of the incident don't show officers approaching Prude as a criminal suspect. Only the second set of paperwork -- prompted by a handwritten note to "make him a suspect" -- describes Prude as a criminal suspect. This was the best the cops to do to cover up a very questionable incident. Then the PD leaned on the city's legal reps to help keep this hidden.

Rochester Police Chief La'Ron Singletary asked the city's lawyer to help the PD withhold the body camera recordings of Prude's killing for as long as possible. The first move was to abuse FOIA law. The Prude family's FOIA request for the recordings was denied by the PD, which claimed the recordings were part of an investigation, making them exempt from disclosure. The municipal attorney, Stephanie Prince, dragged things out longer by adding the Assistant Attorney General to the mix. A show of very selective transparency was used to delay the public release of these videos for another nine weeks.

In the email, Prince said Sommers had suggested a solution to avoid making the video public: Sommers was to invite Don Thompson, one of Prude's lawyers, to her office to view the footage on the condition that he not be given a copy of his own.

"This way, the City is not releasing anything pertaining to the case for at least a month (more like 2), and it will not be publicly available," Prince wrote, explaining that the file would require "heavy redacting," in part because Prude was naked. "After receiving the below I reached out to (Sommers) and asked her to hold off on contacting Don Thompson until I got back to you."

Prude's family didn't receive the recordings until mid-August. These were released three weeks later. The blow back" the Deputy Chief feared would accompany release of the videos has materialized. But it isn't because the public "misinterpreted" the content of the recordings. They showed exactly what happened during the arrest. And that's what Rochester residents -- who have engaged in protests since the release of the recordings -- are reacting to.

The PD and the city knew exactly how this would be received by the public, even before George Floyd's killing became a nationwide flash point. And when confronted with a crisis of their own making, city and PD officials decided to sacrifice their own credibility -- along with their relationship with the people they serve -- to stave off the inevitable for a few months.