This is truly strange. The DC Circuit Court of Appeals somehow decided it was a good idea to redact its decision finding (partially) in favor of a person whose rights were violated by DC Metro police officers. What could have been a straightforward recognition that cops exceeded their boundaries was, at least temporarily, presented misleadingly, thanks to the government’s desire to hide this information.
And it was the government. Although I haven’t been able to locate a motion to seal, the only parties that could have been interested in hiding evidence of the plaintiff’s compliance with police officers would have been the parties being sued. Short Circuit was the first to highlight the redactions, and the first to post the unredacted version when it went live.
As has been noted by many, but most notably by Fifth Circuit Appeals Court judge Don Willett, qualified immunity is a rigged game the government almost always wins. Burying narrative that indicates the plaintiff did not deserve the treatment they were subjected to by armed government employees does nothing more than allow the government to present its narrative without fear of being contradicted.
Here’s the background on the lawsuit. Xingru Lin, a bus ticketing agent in DC, attempted to prevent Yokasty Rodriguez from sneaking onto a bus bound for New York. Lin ordered Rodriguez off the bus and attempted to photograph her. A scuffle ensued, instigated by Rodriguez. However, it was Rodriguez who decided to get police involved, falsely claiming Lin had assaulted her.
DC Metro Police arrived. Lin, already at a disadvantage due to her native language (Mandarin), attempted to speak to the Metro PD’s translators. While she was on the phone with the PD’s translators, officers “grabbed Lin, pressed her against the wall, and then forced her to the floor and handcuffed her.”
A short while after this, officers viewed security camera footage and determined Rodriguez has instigated the fight. They removed Lin’s cuffs and discussed how this altercation should be handled. They determined that Rodriguez should be arrested for attempting to board the bus and assaulting Lin. Then, one officer decided Lin should be booked as well, if not just for assault (in an altercation she did not instigate) but for resisting arrest by being allegedly less than compliant with the handcuffing while she was still seeking help from a PD interpreter. In the end, Lin was booked on both charges, prompting this lawsuit.
The lower court sided with the police officers and the city, saying there was enough probable cause to support the arrest even the arresting officer’s supervisor felt was unwarranted. The case bumped up to the DC Appeals Court, which reversed some of the lower court’s decision. And that’s good, because it means Lin can continue her civil rights lawsuit.
But it’s the manner in which the court did it that’s extremely concerning. Its initial release of its decision [PDF] was heavily redacted. And what those black bars hid was everything the Appeals Court had observed that indicated Lin, despite her language barrier and failed attempt to secure the help of a translator, cooperated fully with police officers.
It wasn’t until a few days later that the court released an unredacted version. The redactions the Appeals Court decided to include in its initial release are extremely disturbing. What’s excised from the first release is extremely telling.
The first extended redaction appears on the fourth page of the decision. It truncates the narrative into incomprehensibility, allowing the reader to draw incorrect conclusions about the interaction between Lin and Metro PD officer Corey Vullo.
Here’s what’s revealed by the unredacted version [PDF], with redacted phrases in bold.
When Officer Vullo approached the office, Lin immediately opened the door for him. Lin Opening Br. 4. While holding a cellphone to her ear, she nodded her head, gesturing for him to come in. Lin Opening Br. 4. Although Lin communicated that she was on the phone with the police, Officer Vullo demanded that she hang up. Lin Opening Br. 4.
With this information redacted, the reader is left to imagine how Lin initially responded to Officer Vullo’s presence. They are also led to imagine Lin may have been speaking to anyone other than the PD itself, perhaps explaining Vullo’s demand she terminate the call.
The redactions continue on the next page and they are even more extensive. Once again, the original redactions are in bold text.
As Lin was indicating to Officer Vullo that she could only speak Mandarin, Officer Johnson entered the travel agency and promptly ordered Lin: “Turn around, turn around, you understand turn around don’t you?” Lin did not understand. Officer Johnson moved her to a chair by twisting her arm behind her back, forcing her to sit down. Once on the chair, she sat calmly while Officers Johnson and Vullo held her arms. Lin’s colleague, who was also in the room, attempted to explain that Lin had actually been trying to call the police for help, but Officer Johnson shouted him down.
The two officers then yanked Lin out of the chair and pushed her against the wall. Security footage shows that Lin stood motionless as the two officers held her. At this point, two more officers, Officers Albert Salleh and John Merzig, entered the travel agency and immediately joined in restraining Lin.
The next page is about fifty percent redaction bars. Again, the only content removed is evidence on the record showing Lin’s compliance, which includes statements made by the government in its own filings .
Officer Vullo then talked to Rodriguez, who was still standing outside. Rodriguez stated that she “was just gonna go say bye” to her boyfriend when Lin told her she “ha[d] to go.” Rodriguez claimed that she tried to reassure Lin that she was not getting on the bus, but that Lin shouted at her to “get out right now.” Rodriguez then made an illustrative pulling motion with her hand. According to Rodriguez, Lin then exclaimed that she would call the police and scratched her face.
While Officer Vullo spoke with Rodriguez, Officer Merzig viewed the travel agency’s outdoor and indoor security footage in a back room. Lin’s colleague helped Officer Merzig play the security footage and provided his perspective on the evening’s events.
The security cameras showed at least three different angles on the bus. When Officer Merzig observed footage of Rodriguez sneaking onto the bus, he reacted with, “Hmm. Yeah, no. I just, I just saw her go on.” As the officer continued watching the recordings, Lin’s colleague explained that the physical altercation between the two women happened after the bus left. He then enthusiastically gestured at the footage and emphasized that it was Rodriguez who had attacked Lin, not the other way around. Officer Merzig agreed that the security video footage demonstrated that, contrary to Rodriguez’s story, the assault occurred after the bus had departed, and Rodriguez was “the aggressor.”
So, pretty much anything that didn’t support Officer Vullo’s decision to charge Lin with assault and resisting arrest was (initially) omitted. That this was done in hopes of protecting PD officers (but especially Officer Vullo) is made clear by the next set of redactions.
Officer Merzig brought Officer Vullo back to view the footage. After seeing the videos, Officer Vullo agreed with Officer Merzig that they would have to cut Lin loose. Officer Zhang Deposition Tr. 225:14–225:19 (Jan. 17, 2019), J.A. 1521; D.C. Ex. 2 at 18:39–18:41. Officer Merzig replied, “Yeah, oh yeah, I mean, that’s my opinion.” Ex. 2 at 18:41–18:44. They determined that Rodriguez should be arrested for unauthorized entry of a motor vehicle and assault. The officers then removed Lin’s handcuffs.
The police investigation shifted to determining if Lin should be arrested for assaulting a police officer on the theory that she resisted arrest when they tried to handcuff her. Officer Vullo told the supervising officer on scene, Sergeant Christopher Ritchie, that Lin had pulled and yanked when they tried to arrest her. Sergeant Ritchie then questioned the other officers on the scene about the handcuffing. Gov’t Br. 5. Officer Johnson reported: “She wasn’t flailing at us, she was just not allowing us to handcuff her.” Gov’t Br. 6. Sergeant Ritchie asked, “So she was actively resisting you?” Officer Johnson replied: “Passively, yeah.” Gov’t Br. 6; D.C. Ex. 4 at 20:04– 20:06. Officer Merzig interjected, “She was pulling away.” Gov’t Br. 6; D.C. Ex. 4 at 20:07–20:08. Subsequently, Sergeant Ritchie reviewed the footage from both the incident with Rodriguez and the handcuffing.
The redactions here are key. First, it infers (by omission) that Officer Vullo had not seen the security camera footage that other officers agreed cleared Lin of assault charges. It also memory-holes Vullo’s admission that Lin would need to be “cut loose.” It also eliminates evidence of Lin’s resistance, which was passive at best — again, according to officers’ own (redacted) statements.
I don’t know what the government argued that persuaded the court to release an opinion containing one-sided redactions. But no matter what it argued, the Appeals Court should have told it to GTFO. The end result is a blow to the court’s credibility and sends the unfortunate message that this court is willing, however temporarily, to obscure evidence of government wrongdoing.
Filed Under: corey vullo, dc circuit, dc metro police, qualified immunity, redactions, xingru lin, yokasty rodriguez
We entrust plenty of our personal data to the US government at all levels. And, at all levels, they fail to protect this information on a far too regular basis.
For instance, there’s the Office of Personnel Management hacking. Well, hackings. It happened twice, with the second breach being worse than the first. The two hackings not only exposed unencrypted Social Security numbers, but (with the second hacking) information about federal employees’ mental health problems, past arrests/bankruptcies, contacts/relatives, and any struggles these employees might have had dealing with drug/alcohol addiction.
Then there’s the FBI, which was hacked by a teenager who used the handle “penis” on Twitter. This hacker made off with (and made available) the personal info of thousands of FBI agents.
And there’s the IRS, which gathers a ton of financial and personal data from Americans while failing to thwart nearly constant hacking attempts aimed at, um, liberating this information.
But there’s a part of the federal government that doesn’t even need to be hacked to cough up personal information that would be of interest to identity fraudsters: the US federal court system. The federal court system continues to ignore its own mandates and expose sensitive information, as Tonya Riley reports for CyberScoop.
“Federal court rules — required by Congress — mandate that court filings be scrubbed of personal information before they are publicly available,” Sen. Ron Wyden, D. Ore., wrote Thursday in a letter to Roberts, first shared with CyberScoop. “These rules are not being followed, the courts are not enforcing them, and as a result, each year tens of thousands of Americans are exposed to needless privacy violations.”
The letter follows a recent report by the court system’s top policy-making body showing that the body has been inconsistent in enforcing existing privacy rules and enacting new ones. For instance, the recent report cites a 2015 study, which found that of the nearly 4 million documents posted during a one-month period in 2013, nearly 5,500 included “one or more un-redacted SSNs.”
The court system hasn’t exactly been forthcoming about this shortcoming, as Wyden’s letter [PDF] points out. Apparently, mandates affecting federal entities are not necessarily mandatory. They can be complied with if and when the entity feels like doing so.
Twenty years ago, when Congress required federal courts to publish court records online, it required the Supreme Court to establish rules to protect the privacy and security of Americans “whose information was contained in public court records.” Congress also required the courts to report back every two years to describe whether the rules were in fact protecting Americans’ privacy and security. The judiciary has produced a total of three reports, one in 2009, one in 2011, and then one in June of 2022, five months after my office asked for copies of the old reports.
So, that’s one act of compliance followed by more than a decade of non-compliance — a streak of failure that only ended because Senator Wyden started asking questions.
Its oversight is similarly lacking. The Federal Judicial Center has only twice examined the problem (2010 and 2015) and both times from “significant violations” of this rule. Extrapolating from the latest report, Wyden speculates that if the problems observed seven years ago (5,437 cases of exposed info in 3.9 million court records) are representative of the whole, nearly a half-million documents containing personal data have been uploaded to the PACER system since 2015.
Wyden can do the math. The Federal Judicial Conference (and the court system it oversees), however, doesn’t believe this adds up to a problem. A potential half-million violations is apparently no big deal.
The Judicial Conference has willfully and deliberately failed to address the privacy problems documented by the FJC study. According to the report, the results of this 2015 FJC study were presented to the Judicial Conference’s Standing Committee in 2016, after which the judges on that Committee determined that “no amendments to the privacy rules were warranted.”
The lack of changes to the privacy rules would be fine if the rules were actually followed. But they aren’t. And that means either the rule needs to be changed to include meaningful consequences for discovered violations or the original rule actually needs to be enforced by those with the power to punish violators.
The Judicial Conference appears unwilling to change. It claims it cannot redact full Social Security numbers because this (and other sensitive info) is often used in bankruptcy cases and it wants the rule to be “consistent” across all court cases. It insists on this despite the fact that redaction is anything but consistent across all levels of the court system.
It has also refused to redact everything but the first name and last initial of parties in Social Security and immigration cases — something that would head off exploitation of the sensitive information often included in these cases. Supposedly, the Judicial Conference doesn’t believe it should “tell courts how to write their opinions.”
But that is the Judicial Conference’s job. It makes rules judges and clerks have to follow. A rule is already in place. But it is frequently ignored and the Conference has done nothing but shrug about the potential damage done to US citizens who are required to hand over sensitive info but do so with the understanding that anything exploitable will be redacted in accordance with the federal court system’s own rules.
And the court system has responded with more than decade of do-nothingness, inviting taxpayers to roll the dice when engaging in civil cases. That’s an unacceptable abdication of responsibility. Hopefully, by making this public, Senator Wyden will finally see some accountability and ongoing compliance from a system that just doesn’t seem to care what happens to those utilizing it.
Filed Under: courts, federal courts, judicial conference, privacy, redactions, ron wyden, sensitive information, social security numbers
The federal government would prefer information not want quite so badly to be free. It has obligations under the Freedom of Information Act to set information free, but it also has a handy stack of exemptions to ensure not too much information is freed.
Citizens are free to ask for information. And the government is, far too often, free to deny these requests in whole or in part. But it gets really ridiculous when the government releases information but redacts pretty much everything it’s releasing.
It’s a scam. It allows agencies to pad their numbers, showing that they released information in response to requests while not actually, you know, releasing information. A fully redacted response still counts as a response in the stats, which allows agencies to pretend they’re far more responsive than they actually are.
We’ve covered several of these quasi-releases here at Techdirt. In “response” to an ACLU request for information on the FBI’s use of GPS trackers, the agency released 111 fully redacted pages. Still counts as a response! Not any actual information in it!
The FBI did it again in response to journalist Brad Heath’s request for information about the tool used to hack the San Bernardino shooter’s iPhone. What was left unredacted was boilerplate from agreements with the tech company and a few random partial sentences that contributed almost nothing to the public’s understanding of this incident, which was preceded by heated litigation the DOJ hoped would force Apple to break the device’s encryption.
Other times, federal agencies have reacted bizarrely to FOIA requests, apparently motivated by the belief that no information should be released without redactions. This includes redacting publicly available DOJ press releases. The “gotta redact something” attitude also results in inconsistent behavior, like two releases of the same info, with each version sporting different redactions.
The case du jour involves information of extreme public interest: the federal government’s involvement with the Wuhan Institute of Virology. One hypothesis of the origin of the COVID-19 virus is that it “escaped” from the Wuhan lab, which specializes in coronavirus research. Prior to the 2020 outbreak, the National Institute of Health (NIH), in conjunction with a New York-based research organization (EcoHealth Alliance) had funded coronavirus research at the Wuhan Institute.
For more than a year, The Intercept has been trying to obtain more information about the NIH’s work with the Wuhan Institute. And, for more than a year, the NIH has continued to withhold this information. The Intercept sued. Shortly after the lawsuit was filed, the NIH agreed to turn over thousands of pages of relevant material.
And it has turned over some of what was requested. But its most recent release [PDF] is all page count, no info. As Sharon Lerner reports, the NIH has decided the public has no right to know anything about whatever it is that’s hidden behind page after page of redactions.
[T]he most recent batch of documents, which the NIH sent The Intercept on Tuesday, underscores an ongoing lack of transparency at the agency. Even as members of Congress and scientists call for additional information that could shed light on the origins of the pandemic, 292 of 314 pages — more than 90 percent of the current release — were completely redacted. Besides a big gray rectangle that obscures any meaningful text, the pages show only a date, page number, and the NIAID logo. The remaining pages also contain significant redactions.
As Lerner points out, some of these redactions may be “technically justifiable.” But the complete redaction of more than 90 percent of this content seems unjustified, especially since there’s intense public interest in understanding the origin of the current pandemic, as well as whatever involvement their own government may have had in the genesis of this coronavirus strain. This simply isn’t acceptable given the ongoing worldwide crisis that is still killing thousands of people a day and has almost single-handedly destroyed international commerce by severely disrupting supply chains.
Unfortunately, the National Institute of Health believes the public doesn’t deserve transparency. And it will likely take several more rounds of litigation to convince it otherwise.
Filed Under: coronavirus, covid, foia, nih, redactions, transparency, wuhan Companies: first look media, the intercept
The government loves its secrets. It loves them so much it does stupid things to, say, “secure the nation…” or “protect the integrity of deliberative processes” or whatever the fuck. We should not trust the government’s reasoning when it chooses to redact information from documents it releases to FOIA requesters. These assertions should always be challenged because the government’s track record on redactions is objectively awful.
Here’s the latest case-in-point: Emma Best — someone the government feels is a “vexatious” FOIA filer — just received a completely stupid set of redactions from the Secret Service. Best requested documents mentioning darknet market Hansa, which was shut down (along with Alpha Bay) following an investigation by US and Dutch law enforcement agencies.
The documents returned to Best contained redactions. This is unsurprising given the nature of the investigation. What’s surprising is what the Secret Service decided to redact. As Best pointed out on Twitter, the Secret Service decided public press releases by the DOJ were too sensitive to be released to the general public.
Secret Service is now redacting press releases under b5 (deliberative process). Compare the redacted press releases from @SecretService with the unredacted versions posted to @TheJusticeDept's website. https://t.co/qsfoS9q6o7
Reform b5 now. #FOIA pic.twitter.com/57CKvW5R8Y
— Emma Best ???? ? (Mx. Yzptlk) (@NatSecGeek) April 27, 2020
Here’s one of the redactions [PDF] the Secret Service applied to a press release that can be found unaltered and unedited at the Justice Department’s publicly-accessible website:
And here’s what the Secret Service excised, under the bullshit theory that a publicly-released press statement is somehow an “inter-agency or intra-agency memorandums or letter which would not be available by law to a party other than an agency in litigation with the agency.”
“This is likely one of the most important criminal investigations of the year – taking down the largest dark net marketplace in history,” said Attorney General Jeff Sessions. “Make no mistake, the forces of law and justice face a new challenge from the criminals and transnational criminal organizations who think they can commit their crimes with impunity using the dark net. The dark net is not a place to hide. The Department will continue to find, arrest, prosecute, convict, and incarcerate criminals, drug traffickers and their enablers wherever they are. We will use every tool we have to stop criminals from exploiting vulnerable people and sending so many Americans to an early grave. I believe that because of this operation, the American people are safer – safer from the threat of identity fraud and malware, and safer from deadly drugs.”
Um. Is Jeff Sessions being Yezhoved by the Secret Service? Does the agency consider him to be enough of a persona non grata after his firing by Trump to be excised from the Secret Services’ official recollection of this dark web takedown? This insane conspiracy theory I just made up makes as much sense as anything the Secret Service could offer in explanation for this redaction. The redaction removed nothing but the sort of swaggering statement Attorney Generals always make after a huge bust.
Needless to say, Emma Best is challenging the Secret Service’s redactions. Pithily.
I am appealing the integrity of the redactions, as you withheld public press releases under b5, which is grossly inappropriate.
Yeah. That’s an understatement. The Secret Service has no business redacting publicly-available info. Even if this was a clerical error, it’s so bad it’s insulting. And that’s why you can’t trust the government on things like this: when it’s not being malicious, it’s being stupid.
Filed Under: doj, foia, press release, redactions, secret service, transparency
Lots of folks probably remember Judge William Alsup from the Google/Oracle mess, in which he seemed to be one of the few reasonable people in the room, who actually took the time to understand the deeper technical issues. Alsup has quite a reputation for a number of other cases as well, and one thing that seems fairly clear is that you don’t want to try to bullshit this judge who knows how to code on technical issues. You might recall in the Uber/Waymo fight, he also ordered both companies to teach him how LiDAR works and he made it clear that he wasn’t messing around:
Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.
That brings us to a more recent case, involving notorious patent troll Uniloc — a company we’ve written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game “Mindcraft” (the trolls were in such a rush to sue, they didn’t notice it was actually “Minecraft”), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.
It appears that in the intervening years, Uniloc hasn’t given up any of this. The company keeps buying up more patents and suing lots of companies — including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn’t actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was “confidential.”
It sounds like a situation not unlike the Righthaven situation from a few years ago, where the “real” holder of the patent (or, in Righthaven’s case, the copyright) retained real ownership, but created a sham transfer whereby the suing company (in this case Uniloc) really only had the right to sue, and was disconnected from the actual right to license the patent. But, it’s difficult to tell for sure, given all the black ink.
EFF got involved to protest this, and back in January Judge Alsup agreed that Uniloc couldn’t hide this info. Since then, Uniloc has been trying to convince Judge Alsup to change his mind, with a ton of filings (and a few hearings) back and forth on this issue. Earlier this week Judge Alsup more or less rejected every argument Uniloc made, even going beyond the question of redacting info.
In short, Judge Alsup says he got it right the first time, and the public’s right to know outweighs any concern Uniloc has for giving up its “secret sauce.”
This order reiterates the prior order denying plaintiffs? initial request to seal: generalized assertions of potential competitive harm fail to outweigh the public?s right to learn of the ownership of the patents-in-suit, which patents grant said owner the right to publicly exclude others…. It also reiterates that this is particularly true where, as here, the public has an especially strong interest in learning the machinations that bear on the issue of standing in the patent context. Furthermore, the United States government bestows entities such as Uniloc the right to control the use of the purported inventions at issue. Because Uniloc?s rights flow directly from this government-conferred power to exclude, the public in turn has a strong interest in knowing the full extent of the terms and conditions involved in Uniloc?s exercise of its patent rights and in seeing the extent to which Uniloc?s exercise of the government grant affects commerce.
In other words, a patent grants you tremendous power to exclude in exchange for the public revelation of what you’ve invented. Uniloc shouldn’t be able to conduct its business in secret.
Alsup also notes that Uniloc doesn’t even come close to justifying the reasons for its requested redactions other than a general “oh, but it will hurt our business.”
… plaintiffs? supposed risk of (still) generalized competitive harm in future negotiations from disclosure did not and does not compellingly outweigh the public?s interest in accessing this information for the reasons stated above
Alsup mocks Uniloc’s reference to other patent suits (including Apple v. Samsung) in which some information was redacted by noting that that was a totally different situation involving actually confidential information from companies selling actual products, not just trolling.
Plaintiffs? reliance on Apple Inc. v. Samsung Electronics. Co. Ltd., … is unavailing, inasmuch as the parties there sought to seal product-specific financial information (such as costs, sales, profits, and profit margins), as opposed to the licensing-specific financial information at issue here…. Plaintiffs here have no products to sell and thus their (alleged) risk of competitive harm is entirely distinguishable from that in Apple.
A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a “boilerplate assertion of competitive harm fails to provide a compelling reason to seal.”
And that’s not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide “reasonable royalties” from being used in damage calculations, and calls out “vastly bloated figures.”
The impact of a patent on commerce is an important consideration of public interest. One consideration is the issue of marking by licensees. Another is recognition of the validity (or not) of the inventions. Another is in setting a reasonable royalty. In the latter context, patent holders tend to demand in litigation a vastly bloated figure in ?reasonably royalties? compared to what they have earned in actual licenses of the same or comparable patents. There is a public need to police this litigation gimmick via more public access. We should never forget that every license has force and effect only because, in the first place, a patent constitutes a public grant of exclusive rights.
Once again, the message is: don’t try to bullshit Judge Alsup, especially on technical issues. Now, hopefully, we’ll finally see the details of Uniloc’s agreements over these patents, and why exactly Apple thinks Uniloc really has no standing to sue.
Filed Under: court records, damages, ownership, patent trolls, patents, redactions, seal, transparency, william alsup Companies: apple, uniloc
Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn’t properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter’s educational records as the result of a public records suit. Certain information was redacted — or at least was supposed to be — to comply with state and federal privacy laws.
What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the “redacted” text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel’s fault anyone’s privacy got violated.
The Sun Sentinel has now responded — both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel’s way, not only will it not face contempt charges (there’s been no ruling on the motion, so it appears the judge doesn’t believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.
In a rush to deflect from its own negligence in publicly disclosing the CEN (Collaborative Educational Network) report at issue in a wholly unsecured format, the School Board now seeks to have this Court find the Sun Sentinel in contempt for exercising their First Amendment rights to truthfully report on a matter of the highest public concern: the exact nature of the special educational services the School District provided (or notably failed to provide) to Marjory Stoneman Douglas High School (“MSD”) shooter Nikolas Cruz—who now stands charged with multiple counts of capital murder. On their face, neither the civil court’s operative July 26, 2018 order (the “Civil Order”)—requiring the School District to disclose a redacted version of the CEN report—nor the criminal court’s August 3, 2018 order (the “Criminal Order”) in any way limited the Sun Sentinel’s ability to publish the report’s contents. Indeed, to have done so would have constituted an unconstitutional prior restraint.
By posting an improperly redacted version of the CEN report to its website for public download, the School District itself may have failed to comply with the court’s orders. In any event, there is no dispute that the Sun Sentinel lawfully obtained the report from the School District’s website and the information sought to be shielded by the redactions. Under such circumstances the law is clear: a First Amendment right to publish firmly attaches and no contempt proceeding may lie.
The motion points out the court never restricted what the paper could publish. Any court-ordered redactions were the responsibility of the school district, which was being sued for refusing to release the report at all. The in camera review conducted determined what could and couldn’t be redacted by the school board. It had nothing to do with the Sun Sentinel, which was only the recipient of a document ordered to be produced. The paper acquired the document lawfully — as did anyone else who downloaded the version with the faulty redaction. It was under no legal obligation to withhold information the school board meant to withhold, but didn’t.
Even though the school district claims it handled everything correctly in regards to the Parkland school shooter, the Sun Sentinel points out in its editorial there are a handful of details that show school administrators mishandled situations involving a volatile student.
School officials didn’t properly advise Cruz of his legal options when he was faced with removal from Marjory Stoneman Douglas High School his junior year, leading him to give up special education services.
When Cruz failed to file the required written rejection of special education services, school officials nudged him, writing it up for him to sign.
The district “did not follow through” on Cruz’s subsequent request to return to the therapeutic environment of Cross Creek School for special education students.
The contempt motion looks like nothing more than a punitive move by the school board to punish a news outlet for exposing its mistakes to the world. If this anti-SLAPP motion secures a ruling in favor of the paper, the board’s attempt to punish the news outlet for publishing lawfully-obtained documents will put taxpayers on the hook for the paper’s legal fees.
Filed Under: anti-slapp, broward county, broward county school board, florida, free speech, public records, redactions, transparency Companies: broward county school, sun-sentinel
A redaction failure by a public entity has led to a request for contempt charges to be brought against a Florida newspaper and two of its reporters. The Sun Sentinel obtained a copy of the Broward County School Board’s report on the Parkland shooter after a successful public records request lawsuit. The report was heavily redacted… or at least, it was supposed to be. But the school board screwed this task up.
After a judge’s order, the school district publicly released the report Friday with nearly two-thirds of its content blacked out to protect 19-year-old Nikolas Cruz’s privacy rights. But the district used a method that failed: Anyone could copy and paste the blacked-out report into a Word document to make all the text visible.
Sun Sentinel reporters Brittany Wallman and Paula McMahon, acting on a Facebook tip from a reader at 7:30 p.m., discovered on deadline the concealed text could be viewed. The reporters quickly rewrote the story reflecting the entire report, providing the first detailed account about the school shooter’s years in the school system, what the district knew about him and what mistakes were made.
The report [PDF] has been uploaded by the Sun Sentinel with the redaction performed correctly. But the faulty version was used to craft a long article about the shooter using details the court had determined could be withheld.
A petition [PDF] has been filed by the school board in an effort to shove this genie back into the bottle. The motion alleges the Sun Sentinel agreed to the redactions, which were put in place to conform with federal and state privacy laws covering education and medical records. Some of what was redacted detailed errors made by the school system when handling the shooter’s discipline and educational options.
What the school board is seeking is both impossible and preposterous. The report has already been read in full and an article produced showing what was redacted. Copies of the report containing the faulty redaction are likely still in circulation. The contempt order might cause the Sun Sentinel some pain, but the damage has already been done.
That’s the impossible side. The preposterous side is this: the Sun Sentinel published information it obtained lawfully. The report was delivered by the school board in accordance with the court’s order. If the school board screwed up the redaction (and it did!), it has no right to complain people accessed the content it meant to keep hidden. Even if the Sun Sentinel agreed to the redactions, that doesn’t mean it’s supposed to just sit there and pretend it can’t see the text the school board failed to fully redact.
Whatever damage has been done was inflicted by the school board for failing to properly redact the report it was ordered to hand over to the Sun Sentinel as the result of public records request lawsuit. The recipient has no obligation to only report on unredacted portions of the report if it has access to the entirety of the document due to human error. The judge may not be happy the Sun Sentinel did this, but I can’t see how the court’s going to find this is the reporters’ fault, rather than the school board’s.
Filed Under: broward county, free speech, journalism, redactions, school board Companies: sun-sentinel
The ACLU is headed to the Second Circuit Appeals Court, hoping to force the DOJ to be more… realistic about the government’s drone strike operations in Pakistan. It’s an FOIA lawsuit, with the ACLU seeking drone documents and being told — in so many black bars — that this publicly-acknowledged program is too secret to disclose.
The ACLU goes into this battle fighting blind:
In August 2016, the government blacked out a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court.
The DOJ argues the Pakistan drone strike program has never been officially acknowledged or disclosed. Going from there, it argues it shouldn’t have to turn over the information the ACLU is requesting. But, as the ACLU points out, there’s plenty of public knowledge about the program’s existence. From the ACLU’s filing [PDF]:
In this case, the government has not made public the subject of its appeal, and it has redacted any reference to the ruling it challenges from the district court’s opinion. But as best as the ACLU can tell, the appeal asks this Court a simple question: Is it a secret that the United States conducts drone strikes in Pakistan? To answer that question, the Court need only read the plain words, spoken in public while in Pakistan, by the United States’ former Secretary of State. Reading those words, the only logical and plausible answer to that question is “no.”
Here’s John Kerry’s statement on the program the DOJ says no one is talking about because it arguably may not officially exist:
This evidence included a statement straight from former Secretary of State John Kerry, made in an August 2013 interview on Pakistani television. When Secretary Kerry was asked by the Pakistani journalist if he envisaged a timeline for ending U.S. drone strikes in Pakistan, Secretary Kerry responded that he did and that “the president has a very real timeline and we hope it’s going to be very, very soon.”
Journalists, activists, human rights advocates, and Pakistani citizens have gathered plenty of data on drone strikes the US may or may not be performing. More than 400 strikes have been reported since 2004. And yet, the government claims nothing can be disclosed — much less discussed openly in court — because it’s a “secret” operation.
In the last courtroom round, the ACLU handed this info to the judge and then watched the government take its paperwork and arguments somewhere the ACLU couldn’t participate.
Nevertheless, in the district court, the government argued that former Secretary of State Kerry’s words did not amount to an official disclosure, and it did so in open court. Once the district court apparently agreed with the ACLU, however, the government took its arguments—and the court’s ruling—behind closed doors. The ruling at issue is hidden behind redactions, as are the government’s arguments on appeal. What’s more, the government now asks this Court to erase the district court’s ruling from the books—perhaps even without deciding whether the information at issue is actually a secret.
The ACLU is now asking the Appeals Court to make this a fairer fight.
The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.
You can’t fight what you can’t see. The government wants the district court’s ruling (in favor of the ACLU) overturned and has left the ACLU with the least-useful 40% of its briefing to work with. Before everything gets considered by the court, the ACLU would at least like a second stab at a brief, possibly with the assistance of some less-redacted documents.
The ACLU seeks to litigate this case fairly, and to be as helpful as possible to the Court in adjudicating it. To that end, the ACLU asked the government to review again the redactions in the district court’s opinion before the government filed its appellate brief so that the parties could meaningfully address the relevant issues on appeal. In response, the government asserted that no further information could be provided. Therefore, if the ACLU did not address a particular issue the Court deems important to the resolution of this case, the ACLU would welcome the opportunity to submit supplemental briefing, with the benefit of the Court’s (rather than solely the government’s) views about what can and cannot be said in open court.
Everything’s so secret no one can look at it (at least no one who doesn’t work for the government) and no one can talk about it (except those who work for the government). The government is using claims of national security to stack the deck in this litigation. Hopefully, the appeals court will realize it can’t hold a fair hearing if one side remains blindfolded.
Filed Under: 2nd circuit, appeal, doj, drone strikes, foia, pakistan, redactions Companies: aclu
Some more inadvertent transparency has resulted from a FOIA lawsuit. Two years ago, the DOJ released a bunch of heavily-redacted documents containing complaints about immigration judges to the Public Citizen Litigation Group and the American Immigration Council. Withheld at the time — or so the DOJ thought — were the names of the judges named in the complaints.
But that’s all history now. Even though the DOJ and the American Immigration Council are still litigating over the legality of redacting the judges’ names, those arguments have been rendered irrelevant. As Betsy Woodruff of The Daily Beast reports, additional research work by an immigration lawyer has uncovered the judges’ supposedly redacted names.
A few days before Inauguration Day, meanwhile, an immigration attorney named Bryan Johnson was combing through that document trove in search of any tidbits that could help him. Johnson, of the Long Island, New York, law firm Amoachi & Johnson PLLC, represents children who come to the United States without legal authorization, fleeing drug violence in Central America. For these clients, who seek refugee status from some of the most violent parts of the world, deportation can be a death sentence.
Johnson told The Daily Beast that as he was going through those documents, he switched from one document-viewing software program to another, in hopes of making it easier to scroll through.
But when he made the switch, something happened that he hadn’t expected: The redactions vanished.
Johnson discovered that all of the redactions — which included the personal information of immigrants seeking residency — weren’t truly redacted. They were only hidden. Considering the wealth of personal info in the documents, Johnson hasn’t posted unredacted copies of the FOIA’ed complaints. Instead, he’s linked as many of the complaints to the now-named judges as possible.
The Executive Office of Immigration Review — from where the redaction failure stems — claims Johnson’s information is incorrect. While he does possess documents that aren’t actually redacted, a spokesperson claims his key matching judges to complaints is inaccurate. But that’s as far as the comment goes. No examples of specific inaccuracy have been cited and the EOIR seems content to make it appear as though all of Johnson’s work is inherently faulty.
Even if the key is off, the complaints contained in the documents are ugly. Judges who hold people’s future in their hands seem to treat the very secretive courts as their fiefdoms.
In complaint number 468, ICE chief counsel advised ACIJ Larry Dean that an IJ (immigration judge) was systematically depriving detained immigrants of procedural due process rights–specifically, the IJ was observed to have been ordering immigrants removed and then subsequently using that removal order to deny immigrants’ right to a bond determination.
One complainant alleges that an immigration judge gave special leniency to the clients of another immigration attorney. In some complaints, immigrants allege that judges laughed at them, mocked them, and didn’t take seriously their pleas for asylum.
Documents showed multiple allegations of that judge rudely yelling at DHS attorneys.
The National Association of Immigration Judges has released its own statement, highlighting the effed-up conditions of their particularly unusual workplace. In addition to being understaffed and having a backlog of a half-million cases to work through, the system used to handle complaints about judges is completely opaque — even to the judges being disciplined.
Most people, lawyers included, fail to understand that the position of Immigration Judges is a legal anomaly. The law under which we serve describes us as attorneys appointed to serve as judges. We are called judges and held to standards of conduct that apply to judges, yet IJs are considered attorneys by the U.S. Department of Justice. This classification means we are subjected to the orders of supervisors, and like any employee, are at risk of discipline for failure to follow the instructions of our supervisors. Immigration Judges are viewed by DOJ as low level employees…
What is even worse is the star chamber manner in which Immigration Judge discipline is meted out. Not infrequently, Immigration Judges have been investigated and discipline proposed without even advising the Judge that a complaint has been filed, let alone asking the Judge to provide his or her side of the story.
Understandably, these judges aren’t happy that complaints have been linked to their mistakenly-unredacted names. This has led to talk of a possible lawsuit against the DOJ for doing an inadequate job of protecting the judges’ privacy.
On the other hand, government agencies are well-known for doing everything they can to ensure the public knows as little as possible about misconduct or illegal activity committed by government employees. No matter how egregious the violation, the names are withheld for as long as possible — in some cases indefinitely. Meanwhile, the merest accusation of illegal activity committed by a taxpayer tends to result in the release of that person’s name in full — along with any background info that can be dredged up. If these judges are worried about their reputations as the result of unsubstantiated allegations… well, hey, welcome to the world the rest of us live in.
But underlying all of this is an error that undoes months of litigation and thousands of taxpayer dollars. The government — at least until recently — has been arguing this information should be withheld. Right or wrong, the information hasn’t been, but constituents are still on the hook for the costs of this particularly futile legal battle.
Filed Under: doj, immigration, immigration judges, judges, privacy, redactions
As the result of an FOIA lawsuit brought by the Associated Press, USA Today, and Vice, the FBI has finally released documents about the one-time iPhone exploit/hack it purchased from an unknown foreign vendor. Well, more accurately, the FBI released a bunch of paper with nearly nothing left unredacted, as USA Today’s Brad Heath pointed out multiple times on Twitter.
Hey look, we just got the FBI's contract for the mystery exploit it used to unlock the San Bernardino gunman's iPhone. #FOIA pic.twitter.com/pCFMMlcrVZ
— Brad Heath (@bradheath) January 6, 2017
Among the many things the FBI is not disclosing: Its nondisclosure agreement with the mystery party that supplied its iPhone exploit. pic.twitter.com/mksiEGuEtD
— Brad Heath (@bradheath) January 6, 2017
Contractor who supplied FBI's iPhone hack had to fill out a "clean air and water certification." Obviously, this also is classified. pic.twitter.com/5QLIvvTqOL
— Brad Heath (@bradheath) January 6, 2017
Among the things the FBI withheld are the non-disclosure agreement it signed with the company, the vendor’s clear air and water certification, the date it was given approval to purchase the exploit, and pretty much anything else the FBI felt it could cover with white space and variations of the letter “b.”
Here’s USA Today’s summary of what was left unredacted.
Friday’s data release included dozens of pages of contracting boilerplate but no information about the source of the exploit or its cost. The FBI indicated in the records that both of those details are classified. FBI Director James Comey intimated during a public forum last year that the price was more than $1 million.
The documents did show that after the FBI’s clash with Apple became public, at least three other companies expressed interest in cracking the phone, even though none of them had by that point started developing a tool that would have allowed them to do so.
The last part shows there’s no shortage of “smart people” willing to help solve James Comey’s encryption problems, even if these solutions might only work one time and be far more expensive than the precedential court decisions and/or favorable legislation Comey is seeking.
In all fairness to the FBI, the public received about as much useful information from this document release as the FBI received from its pricey, one-time phone cracking. A long list of FOIA exemptions were used to justify even boilerplate like clean air/water compliance, which is par for the course when the FBI feels its methods and techniques might be made public.
If these redactions are challenged, the FBI is going to have a fun time explaining why it couldn’t even release the price of the exploit, much less large chunks of the standard contractual language it deploys when working with private companies — whether they’re cracking open iPhones or supplying toner cartridges.
Filed Under: fbi, foia, iphone, iphone hack, redactions
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