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How the Trump Administration Went Easy on Small-Town Police Abuses

[Editor's note: today's guest post, by reporters at ProPublica, explores allegations of inequities in law enforcement in the United States. It is reprinted with permission.]

By Ian MacDougall, ProPublica

On a chilly morning in December 2016, 12-year-old Bobby Lewis found himself sitting in a little room at the police station in Ville Platte, a town of 7,300 in southern Louisiana. He wasn’t sure exactly how long it had been, but the detective grilling him had been at it for some time. Bobby was a middle school student — a skinny kid with a polite demeanor — and though he got in trouble at school from time to time, he wasn’t used to getting treated like this. He was alone, facing the detective without a parent or a lawyer.

A blank piece of paper sat on the table in front of Bobby. He and his friends were thieves, the detective insisted. They sold drugs. They trafficked guns. The detective brushed off Bobby’s denials. She knew what he was up to, and if he didn’t write it all down — inform on his friends and confess to his crimes — she’d charge him. She’d confiscate his dog, Cinnamon, she told him. She’d throw his mother in jail. Bobby was nothing but a “B” and an “MF,” as he later relayed the detective’s words to me, sheepish about repeating them. When his mother finally turned up at the station house, it seemed only to enrage the detective further. “Wipe that fucking smile off your face, and sit up in that fucking chair,” Bobby and his mother recall the detective barking at him.

Earlier that day, Bobby told me, he had been walking home from a friend’s house when a police cruiser pulled up alongside him. He recognized one of the officers. Her name was Jessica LaBorde, but like most people in Ville Platte, Bobby knew her only as Scrappy. The sobriquet was too fitting not to stick. Profanity prone in the extreme, LaBorde was known for her tinderbox temper and hostile disposition. She styled herself like a Marine drill sergeant — fastidiously pressed police blues, jet-black hair pulled back tight — and she would become Bobby’s interrogator. (LaBorde did not respond to calls or a detailed list of questions about the incident.)

Somebody had put a rock through a window in one of the abandoned houses that litter Ville Platte, and a neighbor had seen three boys taking shelter from the rain under a carport nearby. But, the neighbor later told Bobby’s mother, Charlotte Lewis, he didn’t know which of the boys had thrown the rock. Bobby admitted he had been there but insisted he wasn’t the culprit.

Police need probable cause — evidence sufficient to show there’s a fair likelihood that a person committed a crime — to take someone into custody. Generally, an officer can’t detain somebody just because that person was near the scene of a crime. “Mere propinquity,” the U.S. Supreme Court has written, “does not, without more, give rise to probable cause.” Whether LaBorde didn’t know that or didn’t care, she ordered Bobby into the back of her squad car.

LaBorde didn’t call Bobby’s mother to tell her that her 12-year-old was in custody, according to a complaint Lewis later filed with the police department. But eventually another officer did. Lewis says she told the officer not to let anybody question her son until she got there. She had to wait out a morning downpour before she could walk to the station house.

Lewis was familiar with LaBorde’s rough reputation. Still, she told me, she was shocked by how her son was treated. “She cussed him out like he’s a stray dog,” she said. “It’s like my child is a convict or a criminal.” After two hours of pressing Bobby fruitlessly, LaBorde finally let him go — but not before charging him with criminal mischief, police records show. (A judge later dismissed the charge, Lewis told me; a friend admitted throwing the rock.)

Two weeks later, on Dec. 19, the U.S. Department of Justice issued a scathing report on policing in Ville Platte and surrounding Evangeline Parish. The investigation found that, for decades, the city Police Department and the parish Sheriff’s Office maintained an unwritten policy of jailing people without probable cause — for days and even weeks at a time — to pressure them to cooperate with law enforcement. These “investigative holds” ensnared anybody who might know something about criminal activity, from a suspect to a potential witness to a suspect’s relatives. As the Justice Department report put it, “Literally anyone in Evangeline Parish or Ville Platte could be arrested and placed ‘on hold’ at any time.” Many were. From 2012 to 2014 alone, the police unlawfully held at least 700 people in Ville Platte — close to a tenth of the town’s residents.

That, the report concluded, amounted to “a pattern or practice of unconstitutional conduct.” To end this cycle of abuses, the report prescribed an array of institutional changes to eliminate investigative holds, such as imposing new department protocols and overhauling training regimens.

The case wasn’t merely about Ville Platte. The Justice Department lawyers viewed it as a template. Similar policing practices exist in scores of towns and villages across the country, and Justice Department officials selected Ville Platte precisely because it was a pure embodiment of a widespread problem. They hoped it would provide a model for reform at other police departments.

Justice Department officials planned to negotiate a consent decree — a long-term reform plan supervised by a federal judge — with local officials. Systemic police reform was a defining feature of the Obama-era Justice Department, which considered judicial oversight key to dislodging unlawful practices as firmly entrenched as investigative holds were in Ville Platte.

But Jeff Sessions, who took office as attorney general just months after the Justice Department report, has a different view. He considers his predecessors’ reform efforts, particularly via consent decree, to be gross federal overreach that denigrates and demoralizes police. Sessions all but declared that the Justice Department was getting out of the business of meaningful police reform. There would be no consent decree in Ville Platte. Instead, the result is what former Justice Department officials say is an anemic reform plan, announced in June, that largely leaves the future of policing there to the police.

There’s little reason, they say, to expect that this plan will induce law enforcement in Ville Platte to change its ways. The town’s policing culture is defined by arbitrary arrest and detention — and it has been for a long time. It’s a culture that’s proven intensely resistant to change. “You do what you know,” one former Ville Platte police official told me. “And that’s all they know.”

When Neal Lartigue joined the Ville Platte Police Department in 1991, investigative holds were part of his training. “I’ve been here 27 years, and that was going on before I started,” he told me when I visited Ville Platte early this year. The practice was never enshrined in any manual, but it was as good as official policy at both the department and the Evangeline Parish Sheriff’s Office, which is headquartered in Ville Platte. (For its part, the Sheriff’s Office didn’t have a policy manual at all until last year.)

Lartigue rose to become the Police Department’s narcotics officer, and in that role, he was a regular practitioner of investigative holds, according to a former police official who worked with him during that time. Lartigue would “put people in jail” — people he thought might be drug users or small-time dealers — “and he’d make them sit there, and say: ‘You gonna tell me something? I know you ain’t got the drugs, but you’re getting them from somebody. Who you getting them from?’” the former police official told me.

It was an unnerving experience. Lartigue is an intimidating figure — a stern, laconic man with a shaved head and a stout frame. If his detainee pleaded ignorance, the former official said, Lartigue’s response was inevitably, “Well, then you’re gonna sit in jail till you decide you want to talk.” (Lartigue did not respond to requests for comment on his practices as an officer.)

Nothing had changed by 2006, when Lartigue was elected chief of police, a position he holds today. Investigative holds remained a basic policing tool in Ville Platte, like dusting for fingerprints or mapping a crime scene. According to the Justice Department report and former local law enforcement officials, the purpose of most investigative holds was to obtain information from a reticent subject: a confession from a suspect, details from a potential witness, denunciations from a prospective informant. On occasion, the point was simpler: to keep a suspect from getting in the way while a detective gathered enough evidence to support an arrest warrant, the probable cause needed to arrest the suspect in the first place. Age was no limiting factor. The Justice Department found more than two dozen instances in which juveniles were subjected to investigative holds.

Detainees — even those suspected of no wrongdoing — were strip-searched, booked and thrown in a jail cell, without access to a phone or a lawyer. The intermittent interrogations that followed, the Justice Department noted in its report, carried out “under the threat of continued, secret, indefinite detention,” raised the specter of “coerced statements or false confessions” and, worse, “improper criminal convictions.”

In 1991, the year Lartigue became a patrolman, the Supreme Court held that if police make an arrest without a warrant, they have to get a judge to verify that the arrest was based on probable cause “as soon as is reasonably feasible, but in no event later than 48 hours after arrest.” Police are not allowed, the high court said, to delay going to a judge “for the purpose of gathering additional evidence to justify the arrest.” Yet, investigative holds were unilateral in Ville Platte; judges were never asked to determine whether each arrest and detention was in line with the law.

Local officials maintain that the holds were an innocent outgrowth of parochialism. “We never intended to violate anyone’s constitutional rights,” Lartigue told local media after the Justice Department issued its 2016 report. The prevailing belief in Ville Platte, the Justice Department found, was that law enforcement could legally jail anybody for up to 72 hours without probable cause — a view of the law that had been wrong for more than half a century.

Ville Platte is a deeply isolated place. It sits on the upper edge of the Cajun Prairie, a plain of humid farmland flecked with palmettos, crawfish ponds and live oak that sprawls north from the marshy cane fields nearer to the Gulf of Mexico. In French, the words “ville platte” mean “flat town,” a name that, legend has it, was conferred by one of Napoleon’s former officers. Passing through in the 1850s, the landscape architect Frederick Law Olmsted lamented the tedium of the region’s “immense moist plain.”

The construction of Interstate 49, in the mid-1980s, bypassed Ville Platte and left it all the more sequestered. Apart from a few annual events, such as the summer Festival de la Viande Boucanée (the Festival of Smoked Meat), Ville Platte has few attractions to draw outsiders. It retains a distinctive sense of place. Gas stations still advertise boudin, cracklin and tasso. It’s not uncommon to run into some locals who speak the regional French dialect.

The other side of Ville Platte’s isolation is its poverty. Little gabled houses of shingle and clapboard are left abandoned to rot and collapse in the Woods, south of Main Street. In Crosstown, on the north side, the Parkview Shopping Center sits nearly tenantless, its vast, empty parking lot a reminder of all the spending power there’s not in Ville Platte. This May, an article in USA Today declared the town the poorest in Louisiana. Its median household income is about $18,700, compared with roughly $59,000 for the U.S. as a whole.

Ville Platte doesn’t have an organized civil rights community or a legal aid group to investigate policing practices, or any money to fund them. Local criminal defense attorneys might be expected to raise legal challenges to investigative holds, but they, too, thought a person could be held without probable cause for up to 72 hours, former Justice Department officials told me.

Some scoff at the notion that the problem was ignorance alone. There has always been an element within the local law enforcement apparatus, particularly in its upper ranks, that didn’t care what courts and statutes required, say five current and former local law enforcement officials. For that set, the guiding principle was convenience. “We call it the Sovereign State of Evangeline,” one parish resident told me. “Our officials don’t follow the law. They make their own law, and we have to follow it.”

In fact, those officials even flouted their own mistaken view of the law: the 72 hours they believed to be the legal limit on holds. The Justice Department documented “several dozen investigate holds” at the Ville Platte Police Department that “extended for at least a full week.”

In 2014, attorneys at the Justice Department’s Civil Rights Division, which handles police reform cases, received a call from an FBI agent named Steve Krueger. Krueger had been assisting a murder investigation in Ville Platte when he’d learned about investigative holds. The FBI agent had been shocked by the patent illegality of the practice, people familiar with the episode said. He met with Lartigue and his detectives to explain that the holds were unconstitutional. The police chief shrugged off Krueger’s entreaties, according to the Justice Department’s 2016 report.

Krueger saw firsthand the harm investigative holds did to public safety in Ville Platte. People with information about his murder case had proved uncommonly hesitant to talk to him, he told colleagues. Citizens worried about getting thrown in jail if the police thought they knew anything of value. As the Justice Department’s report put it, decades of arbitrary detention had bred “deep community mistrust and fear of law enforcement.”

Police reform cases rely primarily on a Clinton-era law that Civil Rights Division attorneys often call 14141, for its original designation in the U.S. Code. The law empowers the Justice Department to investigate and sue law enforcement agencies when they “engage in a pattern or practice of conduct” that deprives people of their civil rights.

In 2009, Tom Perez took the helm at the Civil Rights Division and began to breathe new life into 14141, several former Justice Department officials say. (Perez is now chairman of the Democratic National Committee.) The Bush administration had largely sidelined police reform, favoring out-of-court settlement agreements when they entered into agreements at all. The federal government, Bush said, shouldn’t be “a separate internal affairs division.”

After studying earlier cases, Perez’s team became convinced that a court-enforceable consent decree was far more likely to produce meaningful change in most instances. Given the time reform can take, “you need to have a sustained effort, and that needs to be supported and backed up by a judge, a federal judge who’s got the authority to force people to comply with their obligations,” said Jonathan Smith, who led the section that handles police reform from 2010 to 2015.

A consent decree contains a set of institutional changes a police department has agreed to make, after negotiations with the Justice Department. A judge approves the agreement and oversees the reform process, usually assisted by an independent monitoring team. Intransigent police officials risk being held in contempt of court or even prosecuted. The judge lifts the consent decree only after the department has restructured its practices and ended its abuses. This typically occurs several years after the decree was put in place.

A growing (albeit not unanimous) body of empirical evidence suggests consent decrees measurably improve police practices. But nobody argues they’re a panacea. “Consent decrees don’t turn departments into A+ departments,” said Christy Lopez, the supervisor for the Civil Rights Division’s police-reform attorneys during the Obama administration. But, she added, “if, after a consent decree, a department is still a C-, it sure makes a big difference for the people who were living with an F department.”

Perez and his successor, Vanita Gupta, had an ambitious vision for what 14141 could achieve. They targeted common types of police misconduct and designed consent decrees to be templates for reform at other departments. “They became models for a set of best practices across the field,” Gupta told me. Another innovation was bringing local communities into the reform process. It was their rights police had violated, and they would be the ones to hold police accountable after a consent decree was lifted.

By the time Krueger placed his call to Washington, in 2014, the small group of attorneys handling 14141 cases had their hands full. In all, the Obama Justice Department would enter into 14 consent decrees, more than twice as many as the Bush and Clinton administrations combined.

But Ville Platte struck supervisors as worth the time commitment. Moving law enforcement there away from investigative holds — an egregious example of a fairly widespread policing practice — could guide improvements at other police forces that used such tactics.

Lawyers at the Civil Rights Division had received reports of similar practices throughout Louisiana, Mississippi and Alabama, as well as parts of Florida. “The problem in Ville Platte is very common throughout the South,” Smith said. Indeed, court records showed the problem extended across the U.S., from Texas to Michigan and Georgia to Montana. “You would constantly see judges dropping footnotes: ‘I’m not really sure about the constitutionality of this practice, but nobody raised it,’” a former Justice Department official told me. “So, we need to raise it.”

In April 2015, the Justice Department announced an investigation into whether the use of investigative holds in Ville Platte amounted to a pattern or practice of unconstitutional police conduct. In the meantime, the FBI’s Krueger had continued to examine policing practices in the town.

In response to the attention from the FBI, Lartigue told me, he told his officers and detectives that they couldn’t use investigative holds any longer. Instead, there was a new procedure: Before they booked anybody, they needed to write up a statement of probable cause, have it notarized and prepare it to be sent to a judge. In December 2014, the Police Department began to require that its detectives and officers become notaries public. That, Lartigue said, would reduce the time it took after an arrest to get a statement of probable cause notarized and sent to a judge for review. “That was our only issue — the holds — and we quickly, swiftly got rid of it,” he told me. (The Sheriff’s Office instituted similar changes.)

But what Justice Department attorneys found over the next 20 months indicated that serious problems remained. Local detectives still maintained that all they needed to jail somebody was a “hunch,” a “gut instinct” or “a pretty good feeling” that a person knew something about a crime.

Many less senior members of the Ville Platte Police Department acknowledged to Justice Department attorneys that they knew little about proper police procedure. “You haven’t had anybody tell you the right way to do things,” said Jonathon Sparks, a former officer who began working at the Ville Platte Police Department in 2009, when he was 19. “It was only later in life I realized these people’s civil rights were being violated.”

There were no beds, toilets, or running water in Ville Platte’s jail cells. Cut off from the outside world, a person on hold spent nights sleeping on a metal bench or on the concrete floor. A woman named Shawana Deville told the attorneys from Washington about the time police had held her overnight as a potential witness to a shooting. Jail guards ordered her to remove her tampon, and she spent the night sleeping on the floor without one. Lartigue confirmed her detention to Justice Department officials. “I just cried the whole time,” Deville would later tell a local television station.

Deville is white, but the vast majority of people put on hold were black, former Justice Department officials told me. It wasn’t a simple story of racist white cops, though. Two thirds of Ville Platte’s residents are black, and the local power structure has given ground in recent years to black officials, including the mayor and Lartigue.

But that hasn’t uprooted the old dynamic between power and race. “When we were growing up, there was nothing but white cops, and we thought it was bad,” one black Ville Platte resident, Raymond Anderson, told me. “But when the blacks came in, that didn’t make it easier.” (Anderson’s son is in prison — wrongfully, Anderson contends — for the murder that led police to hold Deville.)

Local residents, as Krueger had seen, feared what law enforcement would do to them if they spoke out. Nevertheless, at a community meeting in September 2015, about 150 people turned up to share their experiences with the Justice Department attorneys. “When you speak up, you are looked at as a trouble maker,” one of them told a local reporter after the meeting. But optimism overcame fear of police retaliation. If they shared their stories, the Justice Department might bring its power and resources to bear on police misconduct in Ville Platte.

As the investigation proceeded, Lartigue told me, he made a few more changes aimed at satisfying the Justice Department — “very few,” he added, to underscore his view that he’d already done all he needed to do. In March 2016, the Police Department revised its policy manual to prohibit detaining witnesses. “Unfortunately,” the policy stated, though the practice is “convenient and effective,” it “can result in civil liability.”

Despite such steps, the legal peril for law enforcement in Ville Platte seemed to be rising as 2016 progressed. The feds weren’t the only ones circling; Louisiana state prosecutors had begun their own investigation. Krueger had retired from the FBI in 2015 — and promptly teamed up with the Louisiana State Inspector General, people familiar with the case said. They eventually brought a case to Jeff Landry, the state’s newly elected attorney general. Landry agreed to open a criminal investigation, with assistance from the FBI, into unlawful detention in Ville Platte.

In mid-November 2016, Donald Trump announced that he would nominate Sessions to be his attorney general. The choice didn’t bode well for the Justice Department’s plans in Ville Platte. As a senator, Sessions had made no secret of his antipathy for consent decrees and Obama-era police reform. Critics argued that the Justice Department deployed them too aggressively.

Sessions’ concern, however, wasn’t that police reform by consent decree was overused or ineffective. His problem was with the very premise. He saw consent decrees as unconstitutional federal intrusions into state and local affairs. They “undermine the respect for police officers,” he testified at his January 2017 confirmation hearing, “and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness.”

In its December 2016 report, the Justice Department laid out the changes it anticipated requiring of the Ville Platte Police Department and Evangeline Parish Sheriff’s Office: They would need to overhaul policies, training procedures, recordkeeping systems and internal accountability mechanisms. The plan was to implement those reforms through a consent decree, former Justice Department officials said, and in early March 2017, Civil Rights Division attorneys traveled to Ville Platte to discuss reforms with community members and local officials.

But on March 31, Sessions issued what many lawyers for the Justice Department saw as the coup de grâce to its police reform efforts. “It is not the responsibility of the federal government to manage non-federal law enforcement agencies,” the attorney general wrote in an agency-wide memorandum, which ordered a review of contemplated consent decrees. He expanded on his thinking in an Op-Ed in USA Today: “We will not sign consent decrees for political expediency that will cost more lives by handcuffing the police instead of the criminals.”

In April 2017, the Justice Department made its first endeavor to translate policy into practice — an 11th-hour attempt to scuttle a consent decree with Baltimore’s embattled police department. A judge in Maryland swatted it away. Meanwhile, in Ville Platte, the Justice Department went silent.

In an interview with a local newspaper right after the Justice Department report was issued, Lartigue compared investigative holds to an old family recipe for boudin sausage. He meant to highlight the lost provenance of the practice. But the analogy was apt in another sense, too. In Ville Platte, the police were used to making their sausage in particular ways, and they wouldn’t be easy to give up. Even townspeople who’d suffered under the holds saw them as a kind of local custom. “Dat just how dey do,” was the refrain I heard, in patois laced with resignation.

In one sense, Lartigue was right that law enforcement in Ville Platte had stopped using investigative holds. There was no longer an open policy of jailing local residents without probable cause. But that didn’t mean local law enforcement had stopped using arbitrary arrest and detention. They hadn’t. As one law enforcement official in Ville Platte put it, “They’re just finding another way.” (“It’s very common,” a former Justice Department official told me, to see unlawful policing practices, in the face of federal scrutiny, “simply morph and take on new forms that are harder to ferret out.”)

On May 15, 2017, Robert Wilson and three friends walked into the Ville Platte police station, a squat, salmon-colored bunker that sits just behind City Hall, at the center of town. Three weeks earlier, a stray bullet had killed a bystander down the street from a housing project where Wilson — who is 22 and goes by his middle name, Marquez — and several friends had been wiling away a Sunday evening. A couple days after the shooting, Marquez’s 19-year-old brother, Tieberrious, was arrested on murder charges.

Now, Marquez had gotten word that detectives wanted to talk to him. At the police station, Marquez was ushered into the office of the chief detective, Steve Deville. A heavyset man with a dark goatee and a low, soft drawl, Deville turned on a tape recorder and asked Marquez to sign a form to confirm he understood his Miranda rights. Marquez panicked when he saw where Deville was asking him to sign. “Why you — why you got it as ‘suspect’?” he asked Deville. “I’m a suspect?” Deville assured him that was just how the form is designed.

Marquez walked Deville through what had happened the night of the shooting, according to a police transcript of the interview. His account largely lined up with what Tieberrious had told detectives the previous month. Marquez had gotten into an argument on the street with a contemporary of his named Santiago Thomas. Afterward, Marquez, Tieberrious, and their companions had gone to a friend’s house to avoid further conflict. Ten or fifteen minutes later, they heard gunshots and ran outside to see Thomas’ car careening down the street.

Deville wasn’t buying it. “I’m not saying that you are lying,” he told Marquez. “But if you are, I want to just explain something to you, okay? If you are, then there’s nothing that we can do to help later on.” Marquez insisted he was telling the truth.

After 14 minutes, Deville turned off his tape recorder. But, according to Marquez, the interrogation didn’t end: “If you lie to me again, I’m going to lock you up,” Deville told him. Marquez again insisted that he wasn’t lying. “All right,” Deville said. “We’re gonna see if you’re lying.”

Deville led him to a holding cell. “I was terrified,” Marquez told me. Deville said he’d find out soon enough if Marquez’s story matched the recollections of the friends who’d come with him to the police station. Marquez took a seat on a metal bench and waited. He’d grown up in Beaumont, Texas, and he wasn’t used to how the police operated in Ville Platte. He’d never been to jail before, he told me.

When I later reached Deville by phone, he denied having put Marquez in a jail cell. “After he gave us the recorded statement, we walked him straight back to the front lobby, where he waited for everybody to finish, and they left together,” Deville told me. But the friends who accompanied Marquez to the station house that day recall things differently. One of them, Ebony Soileau, said she doesn’t remember seeing Marquez after he went to be interviewed, and Marquez later told another friend, Shawn Thomas, that “they had him in the back,” Thomas said, a reference to the police station’s jail.

Marquez didn’t know this, but Deville had a reason to lean on him. The detective had next to no evidence against Tieberrious. In three weeks — with a woman dead, Tieberrious in jail and memories growing no sharper — police had collected statements from only two witnesses, according to Deville’s official summary of his investigation. Neither witness had seen Tieberrious fire a gun.

Two hours later, Marquez told me, Deville opened the cell door. Deville had interviewed his friends. His story checked out. He was free to go.

This, three former Ville Platte police officials told me, is one of the tactics that has come to replace investigative holds at the police department. In this case the hold is unofficial and it’s shorter, rarely lasting more than a day. “They would bring them in and make the person think they’re being arrested,” one of the former police officials said. The detainee was never actually booked into the jail, and the absence of a paper trail made it harder to prove that somebody had been illegally detained.

“The longer-term holds — the overnight holds — stopped by 2016,” Jonathon Sparks, one of the former officers, said. After leaving the Ville Platte Police Department in late 2009 and working at other law-enforcement agencies in southwestern Louisiana, he’d returned in 2016, hoping to find that things had changed. They hadn’t, and he left after a few months. “They were still bringing people in during the day,” Sparks said. “They were very much holding them with no charges and no warrants — just smoke and mirrors.” The tactic remained in regular use for several months after the Justice Department issued its report, said another former officer, Natosha Murphy, who worked at the Police Department until summer 2017.

Lartigue disputed these accounts. “That never happened,” he said. (Murphy is suing Lartigue and the department, alleging she was forced to resign after she contacted state and federal authorities to reveal illegal conduct at the department.)

Often, Murphy and Sparks told me, detectives hold their quarries in the station house breakroom, where the surveillance cameras don’t work. Sometimes, as Marquez learned firsthand, detectives transfer them to a jail cell for a few hours to scare them into talking.

To compel reluctant Ville Platte residents to go with police to the station house — without actually arresting them — detectives developed a separate set of dubious tactics. “You say you’re going to arrest them for interfering with an investigation for not talking or you say, ‘We have a warrant on you,’” Murphy told me. “Ninety percent of the time, there’s no warrant.” (Courts let police lie about a lot of things but not about having a warrant.) When I asked Deville, the chief detective, about this practice, he was silent.

At times, police took this method a step further. When a detective didn’t have enough evidence to get a judge to approve an arrest, the three former Ville Platte police officials said, the detective filled out a probable cause affidavit and got another officer to notarize it, but never forwarded it to a judge. To the untrained eye, a notarized affidavit could pass for an arrest warrant. Other times, detectives would flash an official-looking document that had nothing to do with the case. “They’d show it to suspects, pretending it was a warrant,” Murphy told me. “A lot of people can’t read or write.”

When I asked him about notarized affidavits doubling as ersatz warrants, Lartigue grew uncharacteristically animated. “No,” he insisted. “That’s a blatant lie. I guarantee you that’s not the case. No.” Three former Ville Platte police officials, including Murphy and Sparks, told me Lartigue was aware of the practices they described. Those who refused to take part, they said, were threatened with professional reprisal.

Sometimes, instead of faking warrants, detectives faked their way to real warrants. The trick was to write — but never issue — a ticket or citation for a fabricated infraction in the name of whomever a detective wanted to talk to, the three former Ville Platte police officials told me. Detectives could get an arrest warrant on the basis of the un-issued ticket. A popular choice of infraction was fleeing from the police, Murphy and Sparks told me. “The person might not have been doing anything. They might have been at their house,” Sparks said. Lartigue denied the existence of this practice, too. Deville hung up on me when I asked him about it.

By the time Lartigue and I spoke in late February, he hadn’t heard from the Justice Department in nearly a year. He figured that meant the feds were satisfied with what they’d seen when they visited a year earlier. He maintained that he’d gotten his department right with the law a long time ago. “We corrected it, and we’re sticking to it,” he said. “We’re still operating like we were.”

In Washington, meanwhile, Sessions and his team continued to dismantle the Justice Department’s police-reform programs. During the summer of 2017, they achieved in Chicago what they’d failed to accomplish in Baltimore: stop a consent-decree process initiated by the previous administration.

Despite Sessions’ explicit opposition to consent decrees, attorneys in the Civil Rights Division felt strongly enough about the problems in Ville Platte, according to a Justice Department official, that they drafted a consent decree. Their bosses rejected it.

The Evangeline Parish Sheriff’s Office assists the police in Ville Platte, but it chiefly patrols the further-flung parts of the parish, outside its towns. The consensus among residents and those who’ve seen local law enforcement from the inside is that it’s less prone to arbitrary detention than the Ville Platte Police Department. The Justice Department’s report bears that out: It documented about 200 investigative holds at the Sheriff’s Office from 2012 to 2014, compared with about 700 at the Police Department.

Still, unlawful detentions have persisted at the Sheriff’s Office. Detectives and deputies have adapted to the Justice Department probe by holding people by the roadside instead of in the jailhouse, a law enforcement official in Ville Platte told me. “To protect themselves, they strong-arm people on the street,” the official said. It’s relatively easy to avoid documenting a catch-and-release-style street stop.

One Saturday in mid-February, Leeann Fontenot witnessed a friend steal a truck. Later that night, she offered to give a statement to deputies from the Evangeline Parish Sheriff’s Office, but they weren’t interested, she told me a few days later.

Fontenot drifts between the homes of friends and relatives. “I’m actually homeless,” she told me. Her warbling Cajun accent betrays hints of a hard Texan “r,” the result of a childhood crisscrossing Texas and Louisiana with her mother. Several run-ins with the law have made it difficult to find steady work, she says. When we spoke, she was staying at a house just outside Ville Platte. Rusted gardening implements and propane tanks cluttered the front porch. Two metal crosses and what looked like part of an animal skull hung beside the front door.

By Sunday evening — the day after the truck theft — the sheriff’s deputies had seemingly changed their minds. Fontenot and a friend had just pulled into the driveway of another house where she sometimes stayed when her friend’s pickup truck filled with pulsing light. Two deputies ordered Fontenot and her friend, Jeff Fontenot, out of the truck. (The pair aren’t related; the surname Fontenot is to Ville Platte what Smith is to the rest of the country.)

One of the deputies took her aside. Fontenot is 26, but she looks a decade younger; she’s barely 5 feet tall and slight. The deputy handcuffed her nevertheless. “Where’s the truck?” he asked. Fontenot said she didn’t know.

As the deputy began searching her pockets, Fontenot says she asked him to stop and call a female officer, but the plea went unheeded. She wasn’t wearing a belt, and as the deputy shoved his hands into her pockets, she told me, her shorts began to slide down her thigh. When she asked the deputy to pull them back up, he told her to wait. The deputy went through her cell phone, Fontenot says, without her permission. (Under a 2013 Supreme Court decision, police need a warrant or permission for such a search.)

Fontenot was perplexed. The deputy, whose name she didn’t catch, had seen her the night before. “Why y’all doing all this?” she asked. “Y’all saw me last night.” The deputy called her a liar. “It happens all the time,” Fontenot told me later — law enforcement stopping her on the street for no reason other than to press her for information.

In the meantime, the other sheriff’s deputy, Eric Frugé, had taken Jeff behind his police cruiser. Frugé patted him down but didn’t cuff him. When the deputy searched Jeff’s truck, he found a small amount of marijuana. Fontenot admitted it was hers.

The deputies ordered her to come in the following morning, a Monday, and tell them where the stolen truck was. Otherwise, they’d charge her with marijuana possession and grand theft auto. The second charge confused her; it was her friend who’d stolen the truck. (Jeff corroborated key details of Fontenot’s account but was standing a squad car’s length away from her, so he didn’t know whether the deputy had searched Fontenot’s phone or threatened to charge her. The Sheriff’s Office did not respond to a detailed set of questions. In response to questions sent to Frugé via Facebook, the deputy responded with an emoji of an angry face.)

Fontenot didn’t go to the sheriff’s office that Monday. She didn’t know where the truck was, but more to the point, she was afraid of what might happen to her. She’d been subjected to an investigative hold before, she told me. “I don’t want them to put me on another hold.”

On Feb. 27, 2018, after nearly a year of silence, a lawyer from the Justice Department’s Civil Rights Division sent an email to Eric LaFleur, a powerful state senator who moonlights as the Ville Platte city attorney. The Justice Department, the attorney wrote, had “prepared a proposal to address the findings” in its December 2016 report.

Arthur Sampson, arguably the only civil rights activist in Ville Platte, had been a key community liaison. But he was caught by surprise when I told him I’d learned Justice Department attorneys were coming to town in March. The Trump administration had eliminated from the discussions the local community whose rights its police-reform work was meant to protect. “How can they know what we need when they’re not meeting with the community?” Sampson said. (A Civil Rights Division official said community input obtained earlier in the process “played an important role.”)

It wasn’t initially a happy moment for local officials, either. I called Lartigue in March to ask about the negotiations. “You’ll have to ask the Justice Department,” he said curtly, before hanging up on me.

The tenor would soon change. When I spoke with LaFleur a couple of weeks later, he was evasive about the details of the agreement. But he chuckled and said: “We’re happy with what they’re recommending.”

By June 4, it was official: There would be no consent decree and no federal judge to ensure compliance. Instead, the Justice Department announced a pair of out-of-court settlement agreements with the Ville Platte Police Department and the Evangeline Parish Sheriff’s Office.

“This is a way to basically allow these departments to go forward just as they were before,” said Roy Austin, who oversaw the department’s police-reform docket from 2010 to 2014. Austin was troubled by the lack of a local independent monitor, a regular feature of Obama-era reform agreements. Combined with the lack of judicial oversight, that meant “there’s no one to hold them accountable in any formal way,” Austin said. “It’s very hard to hide things from a true monitoring team, as compared to hiding things from someone who can’t be there all the time.”

The Justice Department disagreed, calling the agreements “stringent.” “The Justice Department monitors and assesses the compliance” of the Police Department and Sheriff’s Office “on a basis similar to an independent monitor team, and reserves the right to take appropriate legal action if we determine that both parties are not in substantial compliance or have not worked in good faith to achieve substantial compliance,” Justice Department spokesperson Kelly Laco said. Laco did not explain what led the department to reject the recommendation of the attorneys working on the case to implement a consent decree.

The Justice Department will superintend reforms from 1,000 miles away in Washington. The difficulty isn’t just distance. Even in the best of circumstances, “these cases are really time intensive and very difficult to do,” Austin said. These weren’t the best of circumstances. The Civil Rights Division’s police-reform group has lost a quarter of its staff attorneys during the Trump administration, and those who remain have told former colleagues they’ve grown more deferential in their dealings with local law enforcement. They don’t believe the political leadership will back them if disputes arise.

The settlement terms themselves mostly retained only a faint outline of what past agreements would have required. For example, there was a section called “Community Engagement,” which in earlier agreements contained detailed requirements for improving and monitoring police-community relations, sometimes even obligating cities to establish civilian oversight bodies. In the Ville Platte agreements, the section consisted of a single short paragraph calling for a “public education effort.” What does that mean in practice? In early August came the apparent answer: The Police Department held its first “Police and Community Together Fun Day,” an event advertised as featuring face painting, a dunking booth and “LoLo the Clown.”

The “outcome assessments” that determine when the agreements are satisfied — usually carried out by an independent monitor under a consent decree — are now self-assessments. “The city is coming up with the metrics, measuring its own compliance with the metrics, and then the parties are deciding on that basis whether the police get out of the agreement,” a former Justice Department official said. “It undermines the whole purpose of the agreement.”

Lartigue seemed content with the settlement. As he told a local publication, it amounts to “just a few more documents.” Indeed, the types of reforms the agreements emphasize — “clear policy guidance”; “thorough documentation” of arrests, detentions and interrogations; “supervisory oversight” — amount to just a few more documents if nobody’s making sure they amount to more than that.

Policy, for example, is easily flouted. What happened to Leeann Fontenot, Bobby Lewis and Marquez Wilson was already forbidden by policy. It happened anyway. (This year, after a judge ordered Marquez’s brother released from jail for lack of evidence, prosecutors charged Marquez in his place. He has pleaded not guilty, and it’s unclear whether the evidence is any less shaky this time around.) And supervisory oversight is of dubious value if the supervisors themselves — the detectives — are the chief perpetrators of the misconduct.

The settlement agreements did change at least one thing in Ville Platte: It raised the likelihood that no police official will be held individually accountable for illegally detaining the town’s citizens. For more than two years, the Louisiana attorney general’s office and the FBI had been collecting evidence of criminal wrongdoing by officials at the Ville Platte Police Department, according to several people familiar with the case. “Their file is like this,” said one person who had spoken repeatedly with investigators, gesturing to indicate a stack of documents a foot high.

All of that fizzled after the Justice Department unveiled its deal. The press release announcing the agreements lauded police officials: they had “cooperated fully throughout this matter, and we are eager to continue to work together,” it read. Investigators saw the agreement as lenient, according to people who have spoken with them.

The Louisiana attorney general’s office felt it was untenable to recommend the indictment of officials at a police department the Justice Department had publicly praised and, in the view of investigators, had let off the hook with a lax settlement agreement. That, two people familiar with the decision say, led the office to conclude that it had to close the criminal investigation. (The attorney general’s office and FBI declined to comment. The Justice Department’s Laco said the agreement “does not in any way preclude or prevent any law enforcement agency from taking criminal action against an individual under any other law.”)

In Ville Platte, as news of the agreements spread, a familiar fatalism settled on the town. Residents had taken risks sharing their stories because the federal government had promised change. Nobody from the Justice Department had come to explain what the agreements purported to do — another past practice jettisoned — but locals had a pretty good idea that the federal government wasn’t living up to its side of the bargain. After talk of a lawsuit and a federal judge, they got watered-down agreements brokered in secret. “A lot of people stuck their necks out on the promise that the Justice Department was going to do something and that change was coming,” said a former official there who had been involved in the case. “And then they didn’t do anything — they soft-shoed it instead.”

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Fund Meant to Protect Elections May Be Too Little, Too Late

[Editor's note: today's guest post, by reporters at ProPublica, is the latest in a series about the integrity and security of voting systems in the United States. It is reprinted with permission.]

By Blake Paterson and Ally J. Levine, ProPublica

The Election Assistance Commission (EAC), the government agency charged with distributing federal funds to support elections, released a report two weeks ago detailing how each state plans to spend a total of $380 million in grants allocated to improve and secure their election systems.

But even as intelligence officials warn of foreign interference in the midterm election, much of the money is not expected to be spent before Election Day. The EAC expects states to spend their allotted money within two to three years and gives them until 2023 to finish spending it.

Election experts have expressed skepticism that the money will be enough to modernize election equipment and secure it against state-sponsored cyber threats.

“Nationally, $380 million sounds like a huge amount of money, but in the context of what the election officials are needing to defend, replace, oversee and mitigate, it’s really not that much,” said Tammy Patrick, a senior adviser at the Democracy Fund. Federal funds were allocated to states proportionally, based on each one’s voting-age population.

As California Secretary of State Alex Padilla wrote in an opinion piece for The Hill, the $380 million isn’t even new money: “Remember butterfly ballots and hanging chads? The recent federal appropriation was simply the final disbursement of money originally approved in 2003 to address the debacle of the 2000 presidential election in Florida.”

Nearly two-thirds of the funds are expected to go toward new voting equipment and increased cybersecurity protection, with the remainder going toward updating voter registration systems, implementing post-election audits, improving election-related communication efforts and holding the money in reserve.

Two states — Kansas and Montana — received extensions and have yet to submit plans to the federal government.

Here’s how the other states plan to use their portions of federal funds.

The largest portion of the $380 million will be used to improve election cybersecurity, on items such as training local election officials, purchasing new software, and hiring IT personnel and cybersecurity experts.

Thirty-eight states are allocating funds to cybersecurity. Illinois is one of three — Wisconsin and New York are the others — planning to dedicate all of their allotments to this. In 2016, Russian hackers breached Illinois’ voter registration database and stole the names, emails and partial Social Security numbers of nearly half a million voters.

“We needed to send a strong signal that we were doing everything we could to make sure that nothing like that happened again,” said Matt Dietrich, the public information officer at the Illinois State Board of Elections. Illinois is using part of its $13.2 million share to deploy a “cyber navigator” team to perform on-site risk assessments for local election officials.

Thirty states plan to use grant money to purchase new voting equipment, replacing voting machines that are often decades old. Six of those states — Alaska, Arkansas, Delaware, Louisiana, North Dakota and Pennsylvania — are expected to use all of their funds to replace voting equipment. The last time a new voting system was purchased in Alaska, for example, was in 1998.

Replacing voting equipment, however, is a costly endeavor that often takes years, and few states will make widespread improvements to their machinery before the midterms. “These machines are not something you can just go to Best Buy and fire up,” said Thomas Hicks, the chairman of the EAC. “It’s going to take time to build that infrastructure.”

In the lead-up to the 2016 election, hackers targeted election systems in 21 states and in a small number of cases successfully penetrated voter registration databases. Twenty-six states plan to use grant money to improve their voter registration systems.

Nevada, which is the state allocating the highest percentage of its funding — 65.4 percent — to voter registration systems, plans to implement multi-factor authentication and require training modules for local election officials. The state also plans to add a full-time position to work on implementing these goals.

North Carolina, which plans to spend a higher dollar amount than any other state, will be improving its voter registration system, dedicating more than $5 million to modernize its decentralized, decades-old statewide election information system by late 2019.

Twenty-one states plan to use some portion of the federal grant money to perform election audits, accounting for 5.1 percent of the funds. Oregon is spending the highest percentage of its funds — 52 percent — on election audits, according to an estimate from the EAC.

Depending on how elections are run, audits come in a variety of forms.

Connecticut plans to run forensic audits on all of its election vendors. Maryland plans to perform a software audit to validate the election results after the midterm election. Rhode Island plans to deploy a pilot “risk-limiting audit” for the upcoming election.

Election auditing remains an “evolving” field, Patrick said, and many of the states will follow Rhode Island’s lead in piloting audits.

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Besieged Facebook Says New Ad Limits Aren’t Response to Lawsuits

[Editor's note: today's guest post, by reporters at ProPublica, is the latest in a series monitoring Facebook's attempts to clean up its advertising systems and tools. It is reprinted with permission.]

By Ariana Tobin and Jeremy B. Merrill, ProPublica

Facebook logo Facebook’s move to eliminate 5,000 options that enable advertisers on its platform to limit their audiences is unrelated to lawsuits accusing it of fostering housing and employment discrimination, the company said Wednesday.

“We’ve been building these tools for a long time and collecting input from different outside groups,” Facebook spokesman Joe Osborne told ProPublica.

Tuesday’s blog post announcing the elimination of categories that the company has described as “sensitive personal attributes” came four days after the Department of Justice joined a lawsuit brought by fair housing groups against Facebook in federal court in New York City. The suit contends that advertisers could use Facebook’s options to prevent racial and religious minorities and other protected groups from seeing housing ads.

Raising the prospect of tighter regulation, the Justice Department said that the Communications Decency Act of 1996, which gives immunity to internet companies from liability for content on their platforms, did not apply to Facebook’s advertising portal. Facebook has repeatedly cited the act in legal proceedings in claiming immunity from anti-discrimination law. Congress restricted the law’s scope in March by making internet companies more liable for ads and posts related to child sex-trafficking.

Around the same time the Justice Department intervened in the lawsuit, the Department of Housing and Urban Development (HUD) filed a formal complaint against Facebook, signaling that it had found enough evidence during an initial investigation to raise the possibility of legal action against the social media giant for housing discrimination. Facebook has said that its policies strictly prohibit discrimination, that over the past year it has strengthened its systems to protect against misuse, and that it will work with HUD to address the concerns.

“The Fair Housing Act prohibits housing discrimination including those who might limit or deny housing options with a click of a mouse,” Anna María Farías, HUD’s assistant secretary for fair housing and equal opportunity, said in a statement accompanying the complaint. “When Facebook uses the vast amount of personal data it collects to help advertisers to discriminate, it’s the same as slamming the door in someone’s face.”

Regulators in at least one state are also scrutinizing Facebook. Last month, the state of Washington imposed legally binding compliance requirements on the company, barring it from offering advertisers the option of excluding protected groups from seeing ads about housing, credit, employment, insurance or “public accommodations of any kind.”

Advertising is the primary source of revenue for the social media giant, which is under siege on several fronts. A recent study and media coverage have highlighted how hate speech and false rumors on Facebook have spurred anti-refugee discrimination in Germany and violence against minority ethnic groups such as the Rohingya in Myanmar. This week, Facebook said it had found evidence of Russian and Iranian efforts to influence elections in the U.S. and around the world through fake accounts and targeted advertising. It also said it had suspended more than 400 apps “due to concerns around the developers who built them or how the information people chose to share with the app may have been used.”

Facebook declined to identify most of the 5,000 options being removed, saying that the information might help bad actors game the system. It did say that the categories could enable advertisers to exclude racial and religious minorities, and it provided four examples that it deleted: “Native American culture,” “Passover,” “Evangelicalism” and “Buddhism.” It said the changes will be completed next month.

According to Facebook, these categories have not been widely used by advertisers to discriminate, and their removal is intended to be proactive. In some cases, advertisers legitimately use these categories to reach key audiences. According to targeting data from ads submitted to ProPublica’s Political Ad Collector project, Jewish groups used the “Passover” category to promote Jewish cultural events, and the Michael J. Fox Foundation used it to find people of Ashkenazi Jewish ancestry for medical research on Parkinson’s disease.

Facebook is not limiting advertisers’ options for narrowing audiences by age or sex. The company has defended age-based targeting in employment ads as beneficial for employers and job seekers. Advertisers may also still target or exclude by ZIP code — which critics have described as “digital red-lining” but Facebook says is standard industry practice.

A pending suit in federal court in San Francisco alleges that, by allowing employers to target audiences by age, Facebook is enabling employment discrimination against older job applicants. Peter Romer-Friedman, a lawyer representing the plaintiffs in that case, said that Facebook’s removal of the 5,000 options “is a modest step in the right direction.” But allowing employers to sift job seekers by age, he added, “shows what Facebook cares about: its bottom line. There is real money in age-restricted discrimination.”

Senators Bob Casey of Pennsylvania and Susan Collins of Maine have asked Facebook for more information on what steps it is taking to prevent age discrimination on the site.

The issue of discriminatory advertising on Facebook arose in October 2016 when ProPublica revealed that advertisers on the platform could narrow their audiences by excluding so-called “ethnic affinity” categories such as African-Americans and Spanish-speaking Hispanics. At the time, Facebook promised to build a system to flag and reject such ads. However, a year later, we bought dozens of rental housing ads that excluded protected categories. They were approved within seconds. So were ads that excluded older job seekers, as well as ads aimed at anti-Semitic categories such as “Jew hater.”

The removal of the 5,000 options isn’t Facebook’s first change to its advertising portal in response to such criticism. Last November, it added a self-certification option, which asks housing advertisers to check a box agreeing that their advertisement is not discriminatory. The company also plans to require advertisers to read educational material on the site about ethical practices.

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Federal Reserve Board Fined Citigroup For Mishandling Residential Mortgages

Citibank logo The Federal Reserve Board (FRB) announced on Friday that it had fined Citigroup $8.6 million for the "improper execution of residential mortgage-related documents" in a subsidiary. The announcement explained:

"The $8.6 million penalty addresses the deficient execution and notarization of certain mortgage-related affidavits prepared by a subsidiary, CitiFinancial. The improper practices occurred in 2015 and were corrected. CitiFinancial exited the mortgage servicing business in 2017.

Also on Friday, the Board announced the termination of an enforcement action from 2011 against Citigroup and CitiFinancial related to residential mortgage loan servicing. The termination of this action was based on evidence of sustainable improvements."

In 2014, Citigroup paid $7 billion to settle allegations by the Department of Justice (DOJ) and several states attorneys general (AGs) that the bank mislead investors about toxic mortgage-backed securities. So, sloppy or shoddy handling of mortgage paperwork  will get a bank fined. Good. There must be consequences when consumers are abused.

Earlier this month, Wells Fargo admitted to software bugs in its systems which led to the bank accidentally foreclosing on residential homeowners it shouldn't have. 400 homeowners lost their homes. Untold consumers' credit ratings wrecked. That sounds like shabby mortgage paperwork handling, too -- definitely worth a larger fine. What do you think?


Test Finds Amazon's Facial Recognition Software Wrongly Identified Members Of Congress As Persons Arrested. A Few Legislators Demand Answers

In a test of Rekognition, the facial recognition software by Amazon, the American Civil Liberties Union (ACLU) found that the software misidentified 28 members of the United States Congress to mugshot photographs of persons arrested for crimes. Jokes aside about politicians, this is serious stuff. According to the ACLU:

"The members of Congress who were falsely matched with the mugshot database we used in the test include Republicans and Democrats, men and women, and legislators of all ages, from all across the country... To conduct our test, we used the exact same facial recognition system that Amazon offers to the public, which anyone could use to scan for matches between images of faces. And running the entire test cost us $12.33 — less than a large pizza... The false matches were disproportionately of people of color, including six members of the Congressional Black Caucus, among them civil rights legend Rep. John Lewis (D-Ga.). These results demonstrate why Congress should join the ACLU in calling for a moratorium on law enforcement use of face surveillance."

List of 28 Congressional legislators mis-identified by Amazon Rekognition in ACLU study. Click to view larger version With 535 member of Congress, the implied error rate was 5.23 percent. On Thursday, three of the misidentified legislators sent a joint letter to Jeffery Bezos, the Chief executive Officer at Amazon. The letter read in part:

"We write to express our concerns and seek more information about Amazon's facial recognition technology, Rekognition... While facial recognition services might provide a valuable law enforcement tool, the efficacy and impact of the technology are not yet fully understood. In particular, serious concerns have been raised about the dangers facial recognition can pose to privacy and civil rights, especially when it is used as a tool of government surveillance, as well as the accuracy of the technology and its disproportionate impact on communities of color.1 These concerns, including recent reports that Rekognition could lead to mis-identifications, raise serious questions regarding whether Amazon should be selling its technology to law enforcement... One study estimates that more than 117 million American adults are in facial recognition databases that can be searched in criminal investigations..."

The letter was sent by Senator Edward J. Markey (Massachusetts, Representative Luis V. Gutiérrez (Illinois), and Representative Mark DeSaulnier (California). Why only three legislators? Where are the other 25? Nobody else cares about software accuracy?

The three legislators asked Amazon to provide answers by August 20, 2018 to several key requests:

  • The results of any internal accuracy or bias assessments Amazon perform on Rekognition, with details by race, gender, and age,
  • The list of all law enforcement or intelligence agencies Amazon has communicated with regarding Rekognition,
  • The list of all law enforcement agencies which have used or currently use Rekognition,
  • If any law enforcement agencies which used Rekogntion have been investigated, sued, or reprimanded for unlawful or discriminatory policing practices,
  • Describe the protections, if any, Amazon has built into Rekognition to protect the privacy rights of innocent citizens cuaght in the biometric databases used by law enforcement for comparisons,
  • Can Rekognition identify persons younger than age 13, and what protections Amazon uses to comply with Children's Online Privacy Protections Act (COPPA),
  • Whether Amazon conduts any audits of Rekognition to ensure its appropriate and legal uses, and what actions Amazon has taken to correct any abuses,
  • Explain whether Rekognition is integrated with police body cameras and/or "public-facing camera networks."

The letter cited a 2016 report by the Center on Privacy and Technology (CPT) at Georgetown Law School, which found:

"... 16 states let the Federal Bureau of Investigation (FBI) use face recognition technology to compare the faces of suspected criminals to their driver’s license and ID photos, creating a virtual line-up of their state residents. In this line-up, it’s not a human that points to the suspect—it’s an algorithm... Across the country, state and local police departments are building their own face recognition systems, many of them more advanced than the FBI’s. We know very little about these systems. We don’t know how they impact privacy and civil liberties. We don’t know how they address accuracy problems..."

Everyone wants law enforcement to quickly catch criminals, prosecute criminals, and protect the safety and rights of law-abiding citizens. However, accuracy matters. Experts warn that the facial recognition technologies used are unregulated, and the systems' impacts upon innocent citizens are not understood. Key findings in the CPT report:

  1. "Law enforcement face recognition networks include over 117 million American adults. Face recognition is neither new nor rare. FBI face recognition searches are more common than federal court-ordered wiretaps. At least one out of four state or local police departments has the option to run face recognition searches through their or another agency’s system. At least 26 states (and potentially as many as 30) allow law enforcement to run or request searches against their databases of driver’s license and ID photos..."
  2. "Different uses of face recognition create different risks. This report offers a framework to tell them apart. A face recognition search conducted in the field to verify the identity of someone who has been legally stopped or arrested is different, in principle and effect, than an investigatory search of an ATM photo against a driver’s license database, or continuous, real-time scans of people walking by a surveillance camera. The former is targeted and public. The latter are generalized and invisible..."
  3. "By tapping into driver’s license databases, the FBI is using biometrics in a way it’s never done before. Historically, FBI fingerprint and DNA databases have been primarily or exclusively made up of information from criminal arrests or investigations. By running face recognition searches against 16 states’ driver’s license photo databases, the FBI has built a biometric network that primarily includes law-abiding Americans. This is unprecedented and highly problematic."
  4. " Major police departments are exploring face recognition on live surveillance video. Major police departments are exploring real-time face recognition on live surveillance camera video. Real-time face recognition lets police continuously scan the faces of pedestrians walking by a street surveillance camera. It may seem like science fiction. It is real. Contract documents and agency statements show that at least five major police departments—including agencies in Chicago, Dallas, and Los Angeles—either claimed to run real-time face recognition off of street cameras..."
  5. "Law enforcement face recognition is unregulated and in many instances out of control. No state has passed a law comprehensively regulating police face recognition. We are not aware of any agency that requires warrants for searches or limits them to serious crimes. This has consequences..."
  6. "Law enforcement agencies are not taking adequate steps to protect free speech. There is a real risk that police face recognition will be used to stifle free speech. There is also a history of FBI and police surveillance of civil rights protests. Of the 52 agencies that we found to use (or have used) face recognition, we found only one, the Ohio Bureau of Criminal Investigation, whose face recognition use policy expressly prohibits its officers from using face recognition to track individuals engaging in political, religious, or other protected free speech."
  7. "Most law enforcement agencies do little to ensure their systems are accurate. Face recognition is less accurate than fingerprinting, particularly when used in real-time or on large databases. Yet we found only two agencies, the San Francisco Police Department and the Seattle region’s South Sound 911, that conditioned purchase of the technology on accuracy tests or thresholds. There is a need for testing..."
  8. "The human backstop to accuracy is non-standardized and overstated. Companies and police departments largely rely on police officers to decide whether a candidate photo is in fact a match. Yet a recent study showed that, without specialized training, human users make the wrong decision about a match half the time...The training regime for examiners remains a work in progress."
  9. "Police face recognition will disproportionately affect African Americans. Police face recognition will disproportionately affect African Americans. Many police departments do not realize that... the Seattle Police Department says that its face recognition system “does not see race.” Yet an FBI co-authored study suggests that face recognition may be less accurate on black people. Also, due to disproportionately high arrest rates, systems that rely on mug shot databases likely include a disproportionate number of African Americans. Despite these findings, there is no independent testing regime for racially biased error rates. In interviews, two major face recognition companies admitted that they did not run these tests internally, either."
  10. "Agencies are keeping critical information from the public. Ohio’s face recognition system remained almost entirely unknown to the public for five years. The New York Police Department acknowledges using face recognition; press reports suggest it has an advanced system. Yet NYPD denied our records request entirely. The Los Angeles Police Department has repeatedly announced new face recognition initiatives—including a “smart car” equipped with face recognition and real-time face recognition cameras—yet the agency claimed to have “no records responsive” to our document request. Of 52 agencies, only four (less than 10%) have a publicly available use policy. And only one agency, the San Diego Association of Governments, received legislative approval for its policy."

The New York Times reported:

"Nina Lindsey, an Amazon Web Services spokeswoman, said in a statement that the company’s customers had used its facial recognition technology for various beneficial purposes, including preventing human trafficking and reuniting missing children with their families. She added that the A.C.L.U. had used the company’s face-matching technology, called Amazon Rekognition, differently during its test than the company recommended for law enforcement customers.

For one thing, she said, police departments do not typically use the software to make fully autonomous decisions about people’s identities... She also noted that the A.C.L.U had used the system’s default setting for matches, called a “confidence threshold,” of 80 percent. That means the group counted any face matches the system proposed that had a similarity score of 80 percent or more. Amazon itself uses the same percentage in one facial recognition example on its site describing matching an employee’s face with a work ID badge. But Ms. Lindsey said Amazon recommended that police departments use a much higher similarity score — 95 percent — to reduce the likelihood of erroneous matches."

Good of Amazon to respond quickly, but its reply is still insufficient and troublesome. Amazon may recommend 95 percent similarity scores, but the public does not know if police departments actually use the higher setting, or consistently do so across all types of criminal investigations. Plus, the CPT report cast doubt on human "backstop" intervention, which Amazon's reply seems to heavily rely upon.

Where is the rest of Congress on this? On Friday, three Senators sent a similar letter seeking answers from 39 federal law-enforcement agencies about their use facial recognition technology, and what policies, if any, they have put in place to prevent abuse and misuse.

All of the findings in the CPT report are disturbing. Finding #3 is particularly troublesome. So, voters need to know what, if anything, has changed since these findings were published in 2016. Voters need to know what their elected officials are doing to address these findings. Some elected officials seem engaged on the topic, but not enough. What are your opinions?


How the Case for Voter Fraud Was Tested — and Utterly Failed

[Editor's note: today's blog post, by reporters at ProPublica, explores the results of a trial in Kansas about the state's voter-ID laws and claims of voter fraud. It is reprinted with permission.]

By Jessica Huseman, ProPublica

In the end, the decision seemed inevitable. After a seven-day trial in Kansas City federal court in March, in which Kansas Secretary of State Kris Kobach needed to be tutored on basic trial procedure by the judge and was found in contempt for his “willful failure” to obey a ruling, even he knew his chances were slim. Kobach told The Kansas City Star at the time that he expected the judge would rule against him (though he expressed optimism in his chances on appeal).

Sure enough, federal Judge Julie Robinson overturned the law that Kobach was defending as lead counsel for the state, dealing him an unalloyed defeat. The statute, championed by Kobach and signed into law in 2013, required Kansans to present proof of citizenship in order to register to vote. The American Civil Liberties Union sued, contending that the law violated the National Voter Registration Act (AKA the “motor voter” law), which was designed to make it easy to register.

The trial had a significance that extends far beyond the Jayhawk state. One of the fundamental questions in the debate over alleged voter fraud — whether a substantial number of non-citizens are in fact registering to vote — was one of two issues to be determined in the Kansas proceedings. (The second was whether there was a less burdensome solution than what Kansas had adopted.) That made the trial a telling opportunity to remove the voter fraud claims from the charged, and largely proof-free, realms of political campaigns and cable news shoutfests and examine them under the exacting strictures of the rules of evidence.

That’s precisely what occurred and according to Robinson, an appointee of George W. Bush, the proof that voter fraud is widespread was utterly lacking. As the judge put it, “the court finds no credible evidence that a substantial number of non-citizens registered to vote” even under the previous law, which Kobach had claimed was weak.

For Kobach, the trial should’ve been a moment of glory. He’s been arguing for a decade that voter fraud is a national calamity. Much of his career has been built on this issue, along with his fervent opposition to illegal immigration. (His claim is that unlawful immigrants are precisely the ones voting illegally.) Kobach, who also co-chaired the Trump administration’s short-lived commission on voter fraud, is perhaps the individual most identified with the cause of sniffing out and eradicating phony voter registration. He’s got a gilded resume, with degrees from Harvard University, Yale Law School and the University of Oxford, and is seen as both the intellect behind the cause and its prime advocate. Kobach has written voter laws in other jurisdictions and defended them in court. If anybody ever had time to marshal facts and arguments before a trial, it was Kobach.

But things didn’t go well for him in the Kansas City courtroom, as Robinson’s opinion made clear. Kobach’s strongest evidence of non-citizen registration was anemic at best: Over a 20-year period, fewer than 40 non-citizens had attempted to register in one Kansas county that had 130,000 voters. Most of those 40 improper registrations were the result of mistakes or confusion rather than intentional attempts to mislead, and only five of the 40 managed to cast a vote.

One of Kobach’s own experts even rebutted arguments made by both Kobach and President Donald Trump. The expert testified that a handful of improper registrations could not be extrapolated to conclude that 2.8 million fraudulent votes — roughly, the gap between Hillary Clinton and Trump in the popular vote tally — had been cast in the 2016 presidential election. Testimony from a second key expert for Kobach also fizzled.

As the judge’s opinion noted, Kobach insisted the meager instances of cheating revealed at trial are just “the tip of the iceberg.” As she explained, “This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so.” Dismissing the testimony by Kobach’s witnesses as unpersuasive, Robinson drew what she called “the more obvious conclusion that there is no iceberg; only an icicle largely created by confusion and administrative error.”

By the time the trial was over, Kobach, a charismatic 52-year-old whose broad shoulders and imposing height make him resemble an aging quarterback, seemed to have shrunk inside his chair at the defense table.

But despite his defeat, Kobach’s causes — restricting immigration and tightening voting requirements — seem to be enjoying favorable tides elsewhere. Recent press accounts noted Kobach’s role in restoring a question about citizenship, abandoned since 1950, to U.S. Census forms for 2020. And the Supreme Court ruled on June 11 that the state of Ohio can purge voters from its rolls when they fail to vote even a single time and don’t return a mailing verifying their address, a provision that means more voters will need to re-register and prove their eligibility again.

For his own part, Kobach is now a candidate for governor of Kansas, running neck and neck with the incumbent in polls for the Republican primary on Aug. 7. It’s not clear whether the verdict will affect his chances — or whether it will lead him and others to quietly retreat from claims of voter fraud. But the judge’s opinion and expert interviews reveal that Kobach effectively put the concept of mass voter fraud to the test — and the evidence crumbled.

Perhaps it was an omen. Before Kobach could enter the courtroom inside the Robert J. Dole U.S. Courthouse each day, he had to pass through a hallway whose walls featured a celebratory display entitled “Americans by Choice: The Story of Immigration and Citizenship in Kansas.” Photographs of people who’d been sworn in as citizens in that very courthouse were superimposed on the translucent window shades.

Public interest in the trial was high. The seating area quickly filled to capacity on the first day of trial on the frigid morning of March 6. The jury box was opened to spectators; it wouldn’t be needed, as this was a bench trial. Those who couldn’t squeeze in were sent to a lower floor, where a live feed had been prepared in a spillover room.

From the moment the trial opened, Kobach and his co-counsels in the Kansas secretary of state’s office, Sue Becker and Garrett Roe, stumbled over the most basic trial procedures. Their mistakes antagonized the judge. “Evidence 101,” Robinson snapped, only minutes into the day, after Kobach’s team attempted to improperly introduce evidence. “I’m not going to do it.”

Matters didn’t improve for Kobach from there.

Throughout the trial, his team’s repeated mishaps and botched cross examinations cost hours of the court’s time. Robinson was repeatedly forced to step into the role of law professor, guiding Kobach, Becker and Roe through courtroom procedure. “Do you know how to do the next step, if that’s what you’re going to do?” the judge asked Becker at one point, as she helped her through the steps of impeaching a witness. “We’re going to follow the rules of evidence here.”

Becker often seemed nervous. She took her bright red glasses off and on. At times she burst into nervous chuckles after a misstep. She laughed at witnesses, skirmished with the judge and even taunted the lawyers for the ACLU. “I can’t wait to ask my questions on Monday!” she shouted at the end of the first week, jabbing a finger in the direction of Dale Ho, the lead attorney for the plaintiffs. Ho rolled his eyes.

Roe was gentler — deferential, even. He often admitted he didn’t know what step came next, asking the judge for help. “I don’t — I don’t know if this one is objectionable. I hope it’s not,” he offered at one point, as he prepared to ask a question following a torrent of sustained objections. “I’ll let you know,” an attorney for the plaintiffs responded, to a wave of giggles in the courtroom. On the final day of trial, as Becker engaged in yet another dispute with the judge, Roe slapped a binder to his forehead and audibly whispered, “Stop talking. Stop talking.”

Kobach’s cross examinations were smoother and better organized, but he regularly attempted to introduce exhibits — for example, updated state statistics that he had failed to provide the ACLU in advance to vet — that Robinson ruled were inadmissible. As the trial wore on, she became increasingly irritated. She implored Kobach to “please read” the rules on which she based her rulings, saying his team had repeated these errors “ad nauseum.”

Kobach seemed unruffled. Instead of heeding her advice, he’d proffer the evidence for the record, a practice that allows the evidence to be preserved for appeal even if the trial judge refuses to admit it. Over the course of the trial, Kobach and his team would do this nearly a dozen times.

Eventually, Robinson got fed up. She asked Kobach to justify his use of proffers. Kobach, seemingly alarmed, grabbed a copy of the Federal Rules of Civil Procedure — to which he had attached a growing number of Post-it notes — and quickly flipped through it, trying to find the relevant rule.

The judge tried to help. “It’s Rule 26, of course, that’s been the basis for my rulings,” she told Kobach. “I think it would be helpful if you would just articulate under what provision of Rule 26 you think this is permissible.” Kobach seemed to play for time, asking clarifying questions rather than articulating a rationale. Finally, the judge offered mercy: a 15-minute break. Kobach’s team rushed from the courtroom.

It wasn’t enough to save him. In her opinion, Robinson described “a pattern and practice by Defendant [Kobach] of flaunting disclosure and discovery rules.” As she put it, “it is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules.” She ordered Kobach to attend the equivalent of after-school tutoring: six hours of extra legal education on the rules of civil procedure or the rules of evidence (and to present the court with a certificate of completion).

It’s always a bad idea for a lawyer to try the patience of a judge — and that’s doubly true during a bench trial, when the judge will decide not only the law, but also the facts. Kobach repeatedly annoyed Robinson with his procedural mistakes. But that was nothing next to what the judge viewed as Kobach’s intentional bad faith.

This view emerged in writing right after the trial — that’s when Robinson issued her ruling finding Kobach in contempt — but before the verdict. And the conduct that inspired the contempt finding had persisted over several years. Robinson concluded that Kobach had intentionally failed to follow a ruling she issued in 2016 that ordered him to restore the privileges of 17,000 suspended Kansas voters.

In her contempt ruling, the judge cited Kobach’s “history of noncompliance” with the order and characterized his explanations for not abiding by it as “nonsensical” and “disingenuous.” She wrote that she was “troubled” by Kobach’s “failure to take responsibility for violating this Court’s orders, and for failing to ensure compliance over an issue that he explicitly represented to the Court had been accomplished.” Robinson ordered Kobach to pay the ACLU’s legal fees for the contempt proceeding.

That contempt ruling was actually the second time Kobach was singled out for punishment in the case. Before the trial, a federal magistrate judge deputized to oversee the discovery portion of the suit fined him $1,000 for making “patently misleading representations” about a voting fraud document Kobach had prepared for Trump. Kobach paid the fine with a state credit card.

More than any procedural bumbling, the collapse of Kobach’s case traced back to the disintegration of a single witness.

The witness was Jesse Richman, a political scientist from Old Dominion University, who has written studies on voter fraud. For this trial, Richman was paid $5,000 by the taxpayers of Kansas to measure non-citizen registration in the state. Richman was the man who had to deliver the goods for Kobach.

With his gray-flecked beard and mustache, Richman looked the part of an academic, albeit one who seemed a bit too tall for his suit and who showed his discomfort in a series of awkward, sudden movements on the witness stand. At moments, Richman’s testimony turned combative, devolving into something resembling an episode of The Jerry Springer Show. By the time he left the stand, Richman had testified for more than five punishing hours. He’d bickered with the ACLU’s lawyer, raised his voice as he defended his studies and repeatedly sparred with the judge.

“Wait, wait, wait!” shouted Robinson at one point, silencing a verbal free-for-all that had erupted among Richman, the ACLU’s Ho, and Kobach, who were all speaking at the same time. “Especially you,” she said, turning her stare to Richman. “You are not here to be an advocate. You are not here to trash the plaintiff. And you are not here to argue with me.”

Richman had played a small but significant part in the 2016 presidential campaign. Trump and others had cited his work to claim that illegal votes had robbed Trump of the popular vote. At an October 2016 rally in Wisconsin, the candidate cited Richman’s work to bolster his predictions that the election would be rigged. “You don’t read about this, right?” Trump told the crowd, before reading from an op-ed Richman had written for The Washington Post: “‘We find that this participation was large enough to plausibly account for Democratic victories in various close elections.’ Okay? All right?”

Richman’s 2014 study of non-citizen registration used data from the Cooperative Congressional Election Study — an online survey of more than 32,000 people. Of those, fewer than 40 individuals indicated they were non-citizens registered to vote. Based on that sample, Richman concluded that up to 2.8 million illegal votes had been cast in 2008 by non-citizens. In fact, he put the illegal votes at somewhere between 38,000 and 2.8 million — a preposterously large range — and then Trump and others simply used the highest figure.

Academics pilloried Richman’s conclusions. Two hundred political scientists signed an open letter criticizing the study, saying it should “not be cited or used in any debate over fraudulent voting.” Harvard’s Stephen Ansolabehere, who administered the CCES, published his own peer-reviewed paper lambasting Richman’s work. Indeed, by the time Trump read Richman’s article onstage in 2016, The Washington Post had already appended a note to the op-ed linking to three rebuttals and a peer-reviewed study debunking the research.

None of that discouraged Kobach or Trump from repeating Richman’s conclusions. They then went a few steps further. They took the top end of the range for the 2008 election, assumed that it applied to the 2016 election, too, and further assumed that all of the fraudulent ballots had been cast for Clinton.

Some of those statements found their way into the courtroom, when Ho pressed play on a video shot by The Kansas City Star on Nov. 30, 2016. Kobach had met with Trump 10 days earlier and had brought with him a paper decrying non-citizen registration and voter fraud. Two days later, Trump tweeted that he would have won the popular vote if not for “millions of people who voted illegally.”

On the courtroom’s televisions, Kobach appeared, saying Trump’s tweet was “absolutely correct.” Without naming Richman, Kobach referred to his study: The number of non-citizens who said they’d voted in 2008 was far larger than the popular vote margin, Kobach said on the video. The same number likely voted again in 2016.

In the courtroom, Ho asked Richman if he believed his research supported such a claim. Richman stammered. He repeatedly looked at Kobach, seemingly searching for a way out. Ho persisted and finally, Richman gave his answer: “I do not believe my study provides strong support for that notion.”

To estimate the number of non-citizens voting in Kansas, Richman had used the same methodology he employed in his much-criticized 2014 study. Using samples as small as a single voter, he’d produced surveys with wildly different estimates of non-citizen registration in the state. The multiple iterations confused everyone in the courtroom.

“For the record, how many different data sources have you provided?” Robinson interjected in the middle of one Richman answer. “You provide a range of, like, zero to 18,000 or more.”

“I sense the frustration,” Richman responded, before offering a winding explanation of the multiple data sources and surveys he’d used to arrive at a half-dozen different estimates. Robinson cut him off. “Maybe we need to stop here,” she said.

“Your honor, let me finish answering your question,” he said.

“No, no. I’m done,” she responded, as he continued to protest. “No. Dr. Richman, I’m done.”

To refute Richman’s numbers, the ACLU called on Harvard’s Ansolabehere, whose data Richman had relied on in the past. Ansolabehere testified that Richman’s sample sizes were so small that it was just as possible that there were no non-citizens registered to vote in Kansas as 18,000. “There’s just a great deal of uncertainty with these estimates,” he said.

Ho asked if it would be accurate to say that Richman’s data “shows a rate of non-citizen registration in Kansas that is not statistically distinct from zero?”

“Correct.”

The judge was harsher than Ansolabehere in her description of Richman’s testimony. In her opinion, Robinson unloaded a fusillade of dismissive adjectives, calling Richman’s conclusions “confusing, inconsistent and methodologically flawed,” and adding that they were “credibly dismantled” by Ansolabehere. She labeled elements of Richman’s testimony “disingenuous” and “misleading,” and stated that she gave his research “no weight” in her decision.

One of the paradoxes of Kobach is that he has become a star in circles that focus on illegal immigration and voting fraud despite poor results in the courtroom. By ProPublica’s count, Kobach chalked up a 2–6 won-lost record in federal cases in which he was played a major role, and which reached a final disposition before the Kansas case.

Those results occurred when Kobach was an attorney for the legal arm of the Federation for American Immigration Reform from 2004 to 2011, when he became secretary of state in Kansas. In his FAIR role (in which he continued to moonlight till about 2014), Kobach traveled to places like Fremont, Nebraska, Hazleton, Pennsylvania, Farmers Branch, Texas, and Valley Park, Missouri, to help local governments write laws that attempted to hamper illegal immigration, and then defend them in court. Kobach won in Nebraska, but lost in Texas and Pennsylvania, and only a watered down version of the law remains in Missouri.

The best-known law that Kobach helped shape before joining the Kansas government in 2011 was Arizona’s “show me your papers” law. That statute allowed police to demand citizenship documents for any reason from anyone they thought might be in the country illegally. After it passed, the state paid Kobach $300 an hour to train law enforcement on how to legally arrest suspected illegal immigrants. The Supreme Court gutted key provisions of the law in 2012.

Kobach also struggled in two forays into political campaigning. In 2004, he lost a race for Congress. He also drew criticism for his stint as an informal adviser to Mitt Romney’s 2012 presidential campaign. Kobach was the man responsible for Romney’s much-maligned proposal that illegal immigrants “self-deport,” one reason Romney attracted little support among Latinos. Romney disavowed Kobach even before the campaign was over, telling media outlets that he was a “supporter,” not an adviser.

Trump’s election meant Kobach’s positions on immigration would be welcome in the White House. Kobach lobbied for, but didn’t receive, an appointment as Secretary of Homeland Security. He was, however, placed in charge of the voter fraud commission, a pet project of Trump’s. Facing a raft of lawsuits and bad publicity, the commission was disbanded little more than six months after it formally launched.

Back at home, Kobach expanded his power as secretary of state. Boasting of his experience as a law professor and scholar, Kobach convinced the state legislature to give him the authority to prosecute election crimes himself, a power wielded by no other secretary of state. In that role, he has obtained nine guilty pleas against individuals for election-related misdemeanors. Only one of those who pleaded guilty, as it happens, was a non-citizen.

He also persuaded Kansas’ attorney general to allow Kobach to represent the state in the trial of Kansas’ voting law. Kobach argued it was a bargain. As he told The Wichita Eagle at the time, “The advantage is the state gets an experienced appellate litigator who is a specialist in this field and in constitutional law for the cost the state is already paying, which is my salary.”

Kobach fared no better in the second main area of the Kansas City trial than he had in the first. This part explored whether there is a less burdensome way of identifying non-citizens than forcing everyone to show proof of citizenship upon registration. Judge Robinson would conclude that there were many alternatives that were less intrusive.

In his opening, Ho of the ACLU spotlighted a potentially less intrusive approach. Why not use the Department of Homeland Security’s Systematic Alien Verification for Entitlements System list, and compare the names on it to the Kansas voter rolls? That, Ho argued, could efficiently suss out illegal registrations.

Kobach told the judge that simply wasn’t feasible. The list, he explained, doesn’t contain all non-citizens in the country illegally — it contains only non-citizens legally present and those here illegally who register in some way with the federal government. Plus, he told Robinson, in order to really match the SAVE list against a voter roll, both datasets would have to contain alien registration numbers, the identifier given to non-citizens living in the U.S. “Those are things that a voter registration system doesn’t have,” he said. “So, the SAVE system does not work.”

But Kobach had made the opposite argument when he headed the voter fraud commission. There, he’d repeatedly advocated the use of the SAVE database. Appearing on Fox News in May 2017, shortly after the commission was established, Kobach said, “The Department of Homeland Security knows of the millions of aliens who are in the United States legally and that data that’s never been bounced against the state’s voter rolls to see whether these people are registered.” He said the federal databases “can be very valuable.”

A month later, as chief of the voting fraud commission, Kobach took steps to compare state information to the SAVE database. He sent a letter to all 50 secretaries of state requesting their voter rolls. Bipartisan outrage ensued. Democrats feared he would use the rolls to encourage states to purge legitimately registered voters. Republicans labelled the request federal overreach.

At trial, Kobach’s main expert on this point was Hans von Spakovsky, another member of the voter fraud commission. He, too, had been eager in commission meetings to match state voter rolls to the SAVE database.

But like Kobach, von Spakovsky took a different tack at trial. He testified that this database was unusable by elections offices. “In your experience and expertise as an election administrator and one who studies elections,” Kobach asked, “is [the alien registration number] a practical or even possible thing for a state to do in its voter registration database?” Von Spakovsky answered, “No, it is not.”

Von Spakovsky and Kobach have been friends for more than a decade. They worked together at the Department of Justice under George W. Bush. Kobach focused on immigration issues — helping create a database to register visitors to the U.S. from countries associated with terrorism — while von Spakovsky specialized in voting issues; he had opposed the renewal of the Voting Rights Act.

Von Spakovsky’s history as a local elections administrator in Fairfax County, Va., qualified him as an expert on voting fraud. Between 2010 and 2012, while serving as vice chairman of the county’s three-member electoral board, he’d examined the voter rolls and found what he said were 300 registered non-citizens. He’d pressed for action against them, but none came. Von Spakovsky later joined the Heritage Foundation, where he remains today, generating research that underpins the arguments of those who claim mass voter fraud.

Like Richman, von Spakovsky seemed nervous on the stand, albeit not combative. He wore wire-rimmed glasses and a severe, immovable expression. Immigration is a not-so-distant feature of his family history: His parents — Russian and German immigrants — met in a refugee camp in American-occupied Germany after World War II before moving to the U.S.

Von Spakovsky had the task of testifying about what was intended to be a key piece of evidence for Kobach’s case: a spreadsheet of 38 non-citizens who had registered to vote, or attempted to register, in a 20-year period in Sedgwick County, Kansas.

But the 38 non-citizens turned out to be something less than an electoral crime wave. For starters, some of the 38 had informed Sedgwick County that they were non-citizens. One woman had sent her registration postcard back to the county with an explanation that it was a “mistake” and that she was not a citizen. Another listed an alien registration number — which tellingly begins with an “A” — instead of a Social Security number on the voter registration form. The county registered her anyway.

When von Spakovsky took the stand, he had to contend with questions that suggested he had cherry-picked his data. (The judge would find he had.) In his expert report, von Spakovsky had referenced a 2005 report by the Government Accountability Office that polled federal courts to see how many non-citizens had been excused from jury duty for being non-citizens — a sign of fraud, because jurors are selected from voter rolls. The GAO report mentioned eight courts. Only one said it had a meaningful number of jury candidates who claimed to be non-citizens: “between 1 and 3 percent” had been dismissed on these grounds. This was the only court von Spakovsky mentioned in his expert report.

His report also cited a 2012 TV news segment from an NBC station in Fort Myers, Fla. Reporters claimed to have discovered more than 100 non-citizens on the local voter roll.

“Now, you know, Mr. von Spakovsky, don’t you, that after this NBC report there was a follow-up by the same NBC station that determined that at least 35 of those 100 individuals had documentation to prove they were, in fact, United States citizens. Correct?” Ho asked. “I am aware of that now, yes,” von Spakovsky replied.

That correction had been online since 2012 and Ho had asked von Spakovsky the same question almost two years before in a deposition before the trial. But von Spakovsky never corrected his expert report.

Under Ho’s questioning, von Spakovsky also acknowledged a false assertion he made in 2011. In a nationally syndicated column for McClatchy, von Spakovsky claimed a tight race in Missouri had been decided by the illegal votes of 50 Somali nationals. A month before the column was published, a Missouri state judge ruled that no such thing had happened.

On the stand, von Spakovsky claimed he had no knowledge of the ruling when he published the piece. He conceded that he never retracted the assertion.

Kobach, who watched the exchange without objection, had repeatedly made the same claim — even after the judge ruled it was false. In 2011, Kobach wrote a series of columns using the example as proof of the need for voter ID, publishing them in outlets ranging from the Topeka Capital-Journal to the Wall Street Journal and the Washington Post. In 2012, he made the claim in an article published in the Syracuse Law Review. In 2013, he wrote an op-ed for the Kansas City Star with the same example: “The election was stolen when Rizzo received about 50 votes illegally cast by citizens of Somalia.” None of those articles have ever been corrected.

Ultimately, Robinson would lacerate von Spakovsky’s testimony, much as she had Richman’s. Von Spakovsky’s statements, the judge wrote, were “premised on several misleading and unsupported examples” and included “false assertions.” As she put it, “His generalized opinions about the rates of noncitizen registration were likewise based on misleading evidence, and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof of citizenship laws.”

There was one other wobbly leg holding up the argument that voter fraud is rampant: the very meaning of the word “fraud.”

Kobach’s case, and the broader claim, rely on an extremely generous definition. Legal definitions of fraud require a person to knowingly be deceptive. But both Kobach and von Spakovsky characterized illegal ballots as “fraud” regardless of the intention of the voter.

Indeed, the nine convictions Kobach has obtained in Kansas are almost entirely made up of individuals who didn’t realize they were doing something wrong. For example, there were older voters who didn’t understand the restrictions and voted in multiple places they owned property. There was also a college student who’d forgotten she’d filled out an absentee ballot in her home state before voting months later in Kansas. (She voted for Trump both times.)

Late in the trial, the ACLU presented Lorraine Minnite, a professor at Rutgers who has written extensively about voter fraud, as a rebuttal witness. Her book, “The Myth of Voter Fraud,” concluded that almost all instances of illegal votes can be chalked up to misunderstandings and administrative error.

Kobach sent his co-counsel, Garrett Roe, to cross-examine her. “It’s your view that what matters is the voter’s knowledge that his or her action is unlawful?” Roe asked. “In a definition of fraud, yes,” said Minnite. Roe pressed her about this for several questions, seemingly surprised that she wouldn’t refer to all illegal voting as fraud.

Minnite stopped him. “The word ‘fraud’ has meaning, and that meaning is that there’s intent behind it. And that’s actually what Kansas laws are with respect to illegal voting,” she said. “You keep saying my definition” she said, putting finger quotes around “my.” “But, you know, it’s not like it’s a freak definition.”

Kobach had explored a similar line of inquiry with von Spakovsky, asking him if the list of 38 non-citizens he’d reviewed could be absolved of “fraud” because they may have lacked intent.

“No,” von Spakovsky replied, “I think any time a non-citizen registers, any time a non-citizen votes, they are — whether intentionally or by accident, I mean — they are defrauding legitimate citizens from a fair election.”

After Kobach concluded his questions, the judge began her own examination of von Spakovsky.

“I think it’s fair to say there’s a pretty good distinction in terms of how the two of you define fraud,” the judge said, explaining that Minnite focused on intent, while she understood von Spakovsky’s definition to include any time someone who wasn’t supposed to vote did so, regardless of reason. “Would that be a fair characterization?” she asked.

“Yes ma’am,” von Spakovsky replied.

The judge asked whether a greater number of legitimate voters would be barred from casting ballots under the law than fraudulent votes prevented. In that scenario, she asked, “Would that not also be defrauding the electoral process?” Von Spakovsky danced around the answer, asserting that one would need to answer that question in the context of the registration requirements, which he deemed reasonable.

The judge cut him off. “Well that doesn’t really answer my question,” she said, saying that she found it contradictory that he wanted to consider context when examining the burden of registration requirements, but not when examining the circumstances in which fraud was committed.

“When you’re talking about … non-citizen voting, you don’t want to consider that in context of whether that person made a mistake, whether a DMV person convinced them they should vote,” she said. Von Spakovsky allowed that not every improper voter should be prosecuted, but insisted that “each ballot they cast takes away the vote of and dilutes the vote of actual citizens who are voting. And that’s —”

The judge interrupted again. “So, the thousands of actual citizens that should be able to vote but who are not because of the system, because of this law, that’s not diluting the vote and that’s not impairing the integrity of the electoral process, I take it?” she said.

Von Spakovsky didn’t engage with the hypothetical. He simply didn’t believe it was happening. “I don’t believe that this requirement prevents individuals who are eligible to register and vote from doing so.” Later, on the stand, he’d tell Ho he couldn’t think of a single law in the country that he felt negatively impacted anyone’s ability to register or vote.

Robinson, in the end, strongly disagreed. As she wrote in her opinion, “the Court finds that the burden imposed on Kansans by this law outweighs the state’s interest in preventing noncitizen voter fraud, keeping accurate voter rolls, and maintaining confidence in elections. The burden is not just on a ‘few voters,’ but on tens of thousands of voters, many of whom were disenfranchised” by Kobach’s law. The law, she concluded, was a bigger problem than the one it set out to solve, acting as a “deterrent to registration and voting for substantially more eligible Kansans than it has prevented ineligible voters from registering to vote.”

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The DIY Revolution: Consumers Alter Or Build Items Previously Not Possible. Is It A Good Thing?

Recent advances in technology allow consumers to alter, customize, or build locally items previously not possible. These items are often referred to as Do-It-Yourself (DIY) products. You've probably heard DIY used in home repair and renovation projects on television. DIY now happens in some unexpected areas. Today's blog post highlights two areas.

DIY Glucose Monitors

Earlier this year, CNet described the bag an eight-year-old patient carries with her everywhere daily:

"... It houses a Dexcom glucose monitor and a pack of glucose tablets, which work in conjunction with the sensor attached to her arm and the insulin pump plugged into her stomach. The final item in her bag was an iPhone 5S. It's unusual for such a young child to have a smartphone. But Ruby's iPhone, which connects via Bluetooth to her Dexcom monitor, allowing [her mother] to read it remotely, illustrates the way technology has transformed the management of diabetes from an entirely manual process -- pricking fingers to measure blood sugar, writing down numbers in a notebook, calculating insulin doses and injecting it -- to a semi-automatic one..."

Some people have access to these new technologies, but many don't. Others want more connectivity and better capabilities. So, some creative "hacking" has resulted:

"There are people who are unwilling to wait, and who embrace unorthodox methods. (You can find them on Twitter via the hashtag #WeAreNotWaiting.) The Nightscout Foundation, an online diabetes community, figured out a workaround for the Pebble Watch. Groups such as Nightscout, Tidepool and OpenAPS are developing open-source fixes for diabetes that give major medical tech companies a run for their money... One major gripe of many tech-enabled diabetes patients is that the two devices they wear at all times -- the monitor and the pump -- don't talk to each other... diabetes will never be a hands-off disease to manage, but an artificial pancreas is basically as close as it gets. The FDA approved the first artificial pancreas -- the Medtronic 670G -- in October 2017. But thanks to a little DIY spirit, people have had them for years."

CNet shared the experience of another tech-enabled patient:

"Take Dana Lewis, founder of the open-source artificial pancreas system, or OpenAPS. Lewis started hacking her glucose monitor to increase the volume of the alarm so that it would wake her in the night. From there, Lewis tinkered with her equipment until she created a closed-loop system, which she's refined over time in terms of both hardware and algorithms that enable faster distribution of insulin. It has massively reduced the "cognitive burden" on her everyday life... JDRF, one of the biggest global diabetes research charities, said in October that it was backing the open-source community by launching an initiative to encourage rival manufacturers like Dexcom and Medtronic to open their protocols and make their devices interoperable."

Convenience and affordability are huge drivers. As you might have guessed, there are risks:

"Hacking a glucose monitor is not without risk -- inaccurate readings, failed alarms or the wrong dose of insulin distributed by the pump could have fatal consequences... Lewis and the OpenAPS community encourage people to embrace the build-your-own-pancreas method rather than waiting for the tech to become available and affordable."

Are DIY glucose monitors a good thing? Some patients think so as a way to achieve convenient and affordable healthcare solutions. That might lead you to conclude anything DIY is an improvement. Right? Keep reading.

DIY Guns

Got a 3-D printer? If so, then you can print your own DIY gun. How did this happen? How did the USA get to here? Wired explained:

"Five years ago, 25-year-old radical libertarian Cody Wilson stood on a remote central Texas gun range and pulled the trigger on the world’s first fully 3-D-printed gun... he drove back to Austin and uploaded the blueprints for the pistol to his website, Defcad.com... In the days after that first test-firing, his gun was downloaded more than 100,000 times. Wilson made the decision to go all in on the project, dropping out of law school at the University of Texas, as if to confirm his belief that technology supersedes law..."

The law intervened. Wilson stopped, took down his site, and then pursued a legal remedy:

"Two months ago, the Department of Justice quietly offered Wilson a settlement to end a lawsuit he and a group of co-plaintiffs have pursued since 2015 against the United States government. Wilson and his team of lawyers focused their legal argument on a free speech claim: They pointed out that by forbidding Wilson from posting his 3-D-printable data, the State Department was not only violating his right to bear arms but his right to freely share information. By blurring the line between a gun and a digital file, Wilson had also successfully blurred the lines between the Second Amendment and the First."

So, now you... anybody with an internet connection and a 3-D printer (and a computer-controlled milling machine for some advanced parts)... can produce their own DIY gun. No registration required. No licenses nor permits. No training required. And, that's anyone anywhere in the world.

Oh, there's more:

"The Department of Justice's surprising settlement, confirmed in court documents earlier this month, essentially surrenders to that argument. It promises to change the export control rules surrounding any firearm below .50 caliber—with a few exceptions like fully automatic weapons and rare gun designs that use caseless ammunition—and move their regulation to the Commerce Department, which won't try to police technical data about the guns posted on the public internet. In the meantime, it gives Wilson a unique license to publish data about those weapons anywhere he chooses."

As you might have guessed, Wilson is re-launching his website, but this time with blueprints for more DIY weaponry besides pistols: AR-15 rifles and semi-automatic weaponry. So, it will be easier for people to skirt federal and state gun laws. Is that a good thing?

You probably have some thoughts and concerns. I do. There are plenty of issues and questions. Are DIY products a good thing? Who is liable? How should laws be upgraded? How can society facilitate one set of DIY products and not the other? What related issues do you see? Any other notable DIY products?


FTC Requests Input From The Public And Will Hold Hearings About 'Competition And Consumer Protection'

During the coming months, the U.S. Federal Trade Commission (FTC) will hold a series of meeting and seek input from the public about "Competition And Consumer Protection" and:

"... whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy."

The FTC expects to conduct 15 to 20 hearings starting in September, 2018 and ending in January, 2019. Before each topical hearing, input from the public will be sought. The list of topics the FTC seeks input about (bold emphasis added):

  1. "The state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings;
  2. Competition and consumer protection issues in communication, information, and media technology networks;
  3. The identification and measurement of market power and entry barriers, and the evaluation of collusive, exclusionary, or predatory conduct or conduct that violates the consumer protection statutes enforced by the FTC, in markets featuring “platform” businesses;
  4. The intersection between privacy, big data, and competition;
  5. The Commission’s remedial authority to deter unfair and deceptive conduct in privacy and data security matters;
  6. Evaluating the competitive effects of corporate acquisitions and mergers;
  7. Evidence and analysis of monopsony power, including but not limited to, in labor markets;
  8. The role of intellectual property and competition policy in promoting innovation; 
  9. The consumer welfare implications associated with the use of algorithmic decision tools, artificial intelligence, and predictive analytics;
  10. The interpretation and harmonization of state and federal statutes and regulations that prohibit unfair and deceptive acts and practices; and
  11. The agency’s investigation, enforcement, and remedial processes."

The public can submit written comments now through August 20, 2018. For more information, see the FTC site about each topic. Additional instructions for comment submissions:

"Each topic description includes issues of particular interest to the Commission, but comments need not be restricted to these subjects... the FTC will invite comments on the topic of each hearing session... The FTC will also invite public comment upon completion of the entire series of hearings. Public comments may address one or more of the above topics generally, or may address them with respect to a specific industry, such as the health care, high-tech, or energy industries... "

Comments must be submitted in writing. The public can submit comments online to the FTC, or via  postal mail to. Comments submitted via postal mail must include "‘Competition and Consumer Protection in the 21st Century Hearing, Project Number P181201," on both your comment and on the envelope. Mail comments to:

Federal Trade Commission
Office of the Secretary
600 Pennsylvania Avenue NW., Suite CC–5610 (Annex C)
Washington, DC 20580

See the FTC website for instructions for courier deliveries.

The "light touch" enforcement approach by the Federal Communications Commission (FCC) with oversight of the internet, the repeal of broadband privacy, and the repeal of net neutrality repeal, has highlighted the importance of oversight and enforcement by the FTC for consumer protection.

Given the broad range of topical hearings and input it could receive, the FTC may consider and/or pursue major changes to its operations. What do you think?


Federal Investigation Into Facebook Widens. Company Stock Price Drops

The Boston Globe reported on Tuesday (links added):

"A federal investigation into Facebook’s sharing of data with political consultancy Cambridge Analytica has broadened to focus on the actions and statements of the tech giant and now involves three agencies, including the Securities and Exchange Commission, according to people familiar with the official inquiries.

Representatives for the FBI, the SEC, and the Federal Trade Commission have joined the Justice Department in its inquiries about the two companies and the sharing of personal information of 71 million Americans... The Justice Department and the other federal agencies declined to comment. The FTC in March disclosed that it was investigating Facebook over possible privacy violations..."

About 87 million persons were affected by the Facebook breach involving Cambridge Analytica. In May, the new Commissioner at the U.S. Federal Trade Commission (FTC) suggested stronger enforcement on tech companies, like Google and Facebook.

After news broke about the wider probe, shares of Facebook stock fell about 18 percent of their value and then recovered somewhat for a net drop of 2 percent. That 2 percent drop is about $12 billion in valuation. Clearly, there will be more news (and stock price fluctuations) to come.

During the last few months, there has been plenty of news about Facebook:


The Wireless Carrier With At Least 8 'Hidden Spy Hubs' Helping The NSA

AT&T logo During the late 1970s and 1980s, AT&T conducted an iconic “reach out and touch someone” advertising campaign to encourage consumers to call their friends, family, and classmates. Back then, it was old school -- landlines. The campaign ranked #80 on Ad Age's list of the 100 top ad campaigns from the last century.

Now, we learn a little more about how extensive pervasive surveillance activities are at AT&T facilities to help law enforcement reach out and touch persons. Yesterday, the Intercept reported:

"The NSA considers AT&T to be one of its most trusted partners and has lauded the company’s “extreme willingness to help.” It is a collaboration that dates back decades. Little known, however, is that its scope is not restricted to AT&T’s customers. According to the NSA’s documents, it values AT&T not only because it "has access to information that transits the nation," but also because it maintains unique relationships with other phone and internet providers. The NSA exploits these relationships for surveillance purposes, commandeering AT&T’s massive infrastructure and using it as a platform to covertly tap into communications processed by other companies.”

The new report describes in detail the activities at eight AT&T facilities in major cities across the United States. Consumers who use other branded wireless service providers are also affected:

"Because of AT&T’s position as one of the U.S.’s leading telecommunications companies, it has a large network that is frequently used by other providers to transport their customers’ data. Companies that “peer” with AT&T include the American telecommunications giants Sprint, Cogent Communications, and Level 3, as well as foreign companies such as Sweden’s Telia, India’s Tata Communications, Italy’s Telecom Italia, and Germany’s Deutsche Telekom."

It was five years ago this month that the public learned about extensive surveillance by the U.S. National Security Agency (NSA). Back then, the Guardian UK newspaper reported about a court order allowing the NSA to spy on U.S. citizens. The revelations continued, and by 2016 we'd learned about NSA code inserted in Android operating system software, the FISA Court and how it undermines the public's trust, the importance of metadata and how much it reveals about you (despite some politicians' claims otherwise), the unintended consequences from broad NSA surveillance, U.S. government spy agencies' goal to break all encryption methods, warrantless searches of U.S. citizens' phone calls and e-mail messages, the NSA's facial image data collection program, the data collection programs included ordinary (e.g., innocent) citizens besides legal targets, and how  most hi-tech and telecommunications companies assisted the government with its spy programs. We knew before that AT&T was probably the best collaborator, and now we know more about why. 

Content vacuumed up during the surveillance includes consumers' phone calls, text messages, e-mail messages, and internet activity. The latest report by the Intercept also described:

"The messages that the NSA had unlawfully collected were swept up using a method of surveillance known as “upstream,” which the agency still deploys for other surveillance programs authorized under both Section 702 of FISA and Executive Order 12333. The upstream method involves tapping into communications as they are passing across internet networks – precisely the kind of electronic eavesdropping that appears to have taken place at the eight locations identified by The Intercept."

Former NSA contractor Edward Snowden commented on Twitter:


Supreme Court Ruling Requires Government To Obtain Search Warrants To Collect Users' Location Data

On Friday, the Supreme Court of the United States (SCOTUS) issued a decision which requires the government to obtain warrants in order to collect information from wireless carriers such as geo-location data. 9to5Mac reported that the court case resulted from:

"... a 2010 case of armed robberies in Detroit in which prosecutors used data from wireless carriers to make a conviction. In this case, lawyers had access to about 13,000 location data points. The sticking point has been whether access and use of data like this violates the Fourth Amendment. Apple, along with Google and Facebook had previously submitted a brief to the Supreme Court arguing for privacy protection..."

The Fourth Amendment in the U.S. Constitution states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The New York Times reported:

"The 5-to-4 ruling will protect "deeply revealing" records associated with 400 million devices, the chief justice wrote. It did not matter, he wrote, that the records were in the hands of a third party. That aspect of the ruling was a significant break from earlier decisions. The Constitution must take account of vast technological changes, Chief Justice Roberts wrote, noting that digital data can provide a comprehensive, detailed — and intrusive — overview of private affairs that would have been impossible to imagine not long ago. The decision made exceptions for emergencies like bomb threats and child abductions..."

Background regarding the Fourth Amendment:

"In a pair of recent decisions, the Supreme Court expressed discomfort with allowing unlimited government access to digital data. In United States v. Jones, it limited the ability of the police to use GPS devices to track suspects’ movements. And in Riley v. California, it required a warrant to search cellphones. Chief Justice Roberts wrote that both decisions supported the result in the new case.

The Supreme court's decision also discussed historical use of the "third-party doctrine" by law enforcement:

"In 1979, for instance, in Smith v. Maryland, the Supreme Court ruled that a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his landline phone. The court reasoned that the suspect had voluntarily turned over that information to a third party: the phone company. Relying on the Smith decision’s “third-party doctrine,” federal appeals courts have said that government investigators seeking data from cellphone companies showing users’ movements do not require a warrant. But Chief Justice Roberts wrote that the doctrine is of limited use in the digital age. “While the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records,” he wrote."

The ruling also covered the Stored Communications Act, which requires:

"... prosecutors to go to court to obtain tracking data, but the showing they must make under the law is not probable cause, the standard for a warrant. Instead, they must demonstrate only that there were “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” That was insufficient, the court ruled. But Chief Justice Roberts emphasized the limits of the decision. It did not address real-time cell tower data, he wrote, “or call into question conventional surveillance techniques and tools, such as security cameras.” "

What else this Supreme Court decision might mean:

"The decision thus has implications for all kinds of personal information held by third parties, including email and text messages, internet searches, and bank and credit card records. But Chief Justice Roberts said the ruling had limits. "We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party," the chief justice wrote. The court’s four more liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joined his opinion."

Dissenting opinions by conservative Justices cited restrictions on law enforcement's abilities and further litigation. Breitbart News focused upon divisions within the Supreme Court and dissenting Justices' opinions, rather than a comprehensive explanation of the majority's opinion and law. Some conservatives say that President Trump will have an opportunity to appoint two Supreme Court Justices.

Albert Gidari, the Consulting Director of Privacy at the Stanford Law Center for Internet and Society, discussed the Court's ruling:

"What a Difference a Week Makes. The government sought seven days of records from the carrier; it got two days. The Court held that seven days or more was a search and required a warrant. So can the government just ask for 6 days with a subpoena or court order under the Stored Communications Act? Here’s what Justice Roberts said in footnote 3: “[W]e need not decide whether there is a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.” You can bet that will be litigated in the coming years, but the real question is what will mobile carriers do in the meantime... Where You Walk and Perhaps Your Mere Presence in Public Spaces Can Be Private. The Court said this clearly: “A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”” This is the most important part of the Opinion in my view. It’s potential impact is much broader than the location record at issue in the case..."

Mr. Gidari's essay explored several more issues:

  • Does the Decision Really Make a Difference to Law Enforcement?
  • Are All Business Records in the Hands of Third Parties Now Protected?
  • Does It Matter Whether You Voluntarily Give the Data to a Third Party?

And:

Most people carry their smartphones with them 24/7 and everywhere they go. Hence, the geo-location data trail contains unique and very personal movements: where and whom you visit, how often and long you visit, who else (e.g., their smartphones) is nearby, and what you do (e.g., calls, mobile apps) at certain locations. The Supreme Court, or at least a majority of its Justices, seem to recognize and value this.

What are your opinions of the Supreme Court ruling?


Google To Exit Weaponized Drone Contract And Pursue Other Defense Projects

Google logo Last month, protests by current and former Google employees, plus academic researchers, cited ethical and transparency concerns with artificial intelligence (AI) help the company provides to the U.S. Department of Defense for Project Maven, a weaponized drone program to identify people. Gizmodo reported that Google plans not to renew its contract for Project Maven:

"Google Cloud CEO Diane Greene announced the decision at a meeting with employees Friday morning, three sources told Gizmodo. The current contract expires in 2019 and there will not be a follow-up contract... The company plans to unveil new ethical principles about its use of AI this week... Google secured the Project Maven contract in late September, the emails reveal, after competing for months against several other “AI heavyweights” for the work. IBM was in the running, as Gizmodo reported last month, along with Amazon and Microsoft... Google is reportedly competing for a Pentagon cloud computing contract worth $10 billion."


FBI Warns Sophisticated Malware Targets Wireless Routers In Homes And Small Businesses

The U.S. Federal Bureau of Investigation (FBI) issued a Public Service Announcement (PSA) warning consumers and small businesses that "foreign cyber actors" have targeted their wireless routers. The May 25th PSA explained the threat:

"The actors used VPNFilter malware to target small office and home office routers. The malware is able to perform multiple functions, including possible information collection, device exploitation, and blocking network traffic... The malware targets routers produced by several manufacturers and network-attached storage devices by at least one manufacturer... VPNFilter is able to render small office and home office routers inoperable. The malware can potentially also collect information passing through the router. Detection and analysis of the malware’s network activity is complicated by its use of encryption and misattributable networks."

The "VPN" acronym usually refers to a Virtual Private Network. Why use the VPNfilter name for a sophisticated computer virus? Wired magazine explained:

"... the versatile code is designed to serve as a multipurpose spy tool, and also creates a network of hijacked routers that serve as unwitting VPNs, potentially hiding the attackers' origin as they carry out other malicious activities."

The FBI's PSA advised users to, a) reboot (e.g., turn off and then back on) their routers; b) disable remote management features which attackers could take over to gain access; and c) update their routers with the latest software and security patches. For routers purchased independently, security experts advise consumers to contact the router manufacturer's tech support or customer service site.

For routers leased or purchased from an internet service providers (ISP), consumers should contact their ISP's customer service or technical department for software updates and security patches. Example: the Verizon FiOS forums site section lists the brands and models affected by the VPNfilter malware, since several manufacturers produce routers for the Verizon FiOS service.

It is critical for consumers to heed this PSA. The New York Times reported:

"An analysis by Talos, the threat intelligence division for the tech giant Cisco, estimated that at least 500,000 routers in at least 54 countries had been infected by the [VPNfilter] malware... A global network of hundreds of thousands of routers is already under the control of the Sofacy Group, the Justice Department said last week. That group, which is also known as A.P.T. 28 and Fancy Bear and believed to be directed by Russia’s military intelligence agency... To disrupt the Sofacy network, the Justice Department sought and received permission to seize the web domain toknowall.com, which it said was a critical part of the malware’s “command-and-control infrastructure.” Now that the domain is under F.B.I. control, any attempts by the malware to reinfect a compromised router will be bounced to an F.B.I. server that can record the I.P. address of the affected device..."

Readers wanting technical details about VPNfilter, should read the Talos Intelligence blog post.

When consumers contact their ISP about router software updates, it is wise to also inquire about security patches for the Krack malware, which the bad actors have used recently. Example: the Verizon site also provides information about the Krack malware.

The latest threat provides several strong reminders:

  1. The conveniences of wireless internet connectivity which consumers demand and enjoy, also benefits the bad guys,
  2. The bad guys are persistent and will continue to target internet-connected devices with weak or no protection, including devices consumers fail to protect,
  3. Wireless benefits come with a responsibility for consumers to shop wisely for internet-connected devices featuring easy, continual software updates and security patches. Otherwise, that shiny new device you recently purchased is nothing more than an expensive "brick," and
  4. Manufacturers have a responsibility to provide consumers with easy, continual software updates and security patches for the internet-connected devices they sell.

What are your opinions of the VPNfilter malware? What has been your experience with securing your wireless home router?


Federal Watchdog Launches Investigation of Age Bias at IBM

[Editor's note: today's guest post, by reporters at ProPublica, updates a prior post about employment practices. It is reprinted with permission. A data breach at IBM in 2007 led to the creation of this blog.]

IBM logo By Peter Gosselin, ProPublica

The U.S. Equal Employment Opportunity Commission has launched a nationwide probe of age bias at IBM in the wake of a ProPublica investigation showing the company has flouted or outflanked laws intended to protect older workers from discrimination.

More than five years after IBM stopped providing legally required disclosures to older workers being laid off, the EEOC’s New York district office has begun consolidating individuals’ complaints from across the country and asking the company to explain practices recounted in the ProPublica story, according to ex-employees who’ve spoken with investigators and people familiar with the agency’s actions.

"Whenever you see the EEOC pulling cases and sending them to investigations, you know they’re taking things seriously," said the agency’s former general counsel, David Lopez. "I suspect IBM’s treatment of its later-career workers and older applicants is going to get a thorough vetting."

EEOC officials refused to comment on the agency’s investigation, but a dozen ex-IBM employees from California, Colorado, Texas, New Jersey and elsewhere allowed ProPublica to view the status screens for their cases on the agency’s website. The screens show the cases being transferred to EEOC’s New York district office shortly after the March 22 publication of ProPublica’s original story, and then being shifted to the office’s investigations division, in most instances, between April 5 and April 10.

The agency’s acting chair, Victoria Lipnic, a Republican, has made age discrimination a priority. The EEOC’s New York office won a settlement last year from Kentucky-based national restaurant chain Texas Roadhouse in the largest age-related case as measured by number of workers covered to go to trial in more than three decades.

IBM did not respond to questions about the EEOC investigation. In response to detailed questions for our earlier story, the company issued a brief statement, saying in part, "We are proud of our company and its employees’ ability to reinvent themselves era after era while always complying with the law."

Just prior to publication of the story, IBM issued a video recounting its long history of support for equal employment and diversity. In it, CEO Virginia "Ginni" Rometty said, "Every generation of IBMers has asked ‘How can we in our own time expand our understanding of inclusion?’ "

ProPublica reported in March that the tech giant, which has an annual revenue of about $80 billion, has ousted an estimated 20,000 U.S. employees ages 40 and over since 2014, about 60 percent of its American job cuts during those years. In some instances, it earmarked money saved by the departures to hire young replacements in order to, in the words of one internal company document, "correct seniority mix."

ProPublica reported that IBM regularly denied older workers information the law says they’re entitled to in order to decide whether they’ve been victims of age bias, and used point systems and other methods to pick older workers for removal, even when the company rated them high performers.

In some cases, IBM treated job cuts as voluntary retirements, even over employees’ objections. This reduced the number of departures counted as layoffs, which can trigger public reporting requirements in high enough numbers, and prevented employees from seeking jobless benefits for which voluntary retirees can’t file.

In addition to the complaints covered in the EEOC probe, a number of current and former employees say they have recently filed new complaints with the agency about age bias and are contemplating legal action against the company.

Edvin Rusis of Laguna Niguel, a suburb south of Los Angeles, said IBM has told him he’ll be laid off June 27 from his job of 15 years as a technical specialist. Rusis refused to sign a severance agreement and hired a class-action lawyer. They have filed an EEOC complaint claiming Rusis was one of "thousands" discriminated against by IBM.

If the agency issues a right-to-sue letter indicating Rusis has exhausted administrative remedies for his claim, they can take IBM to court. "I don’t see a clear reason for why they’re laying me off," the 59-year-old Rusis said in an interview. "I can only assume it’s age, and I don’t want to go silently."

Coretta Roddey of suburban Atlanta, 49, an African-American Army veteran and former IBM employee, said she’s applied more than 50 times to return to the company, but has been turned down or received no response. She’s hired a lawyer and filed an age discrimination complaint with EEOC.

"It’s frustrating," she said of the multiple rejections. "It makes you feel you don’t have the qualifications (for the job) when you really do."

Filed under:

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New Commissioner Says FTC Should Get Tough on Companies Like Facebook and Google

[Editor's note: today's guest post, by reporters at ProPublica, explores enforcement policy by the U.S. Federal Trade Commission (FTC), which has become more important  given the "light touch" enforcement approach by the Federal Communications Commission. Today's post is reprinted with permission.]

By Jesse Eisinger, ProPublica

Declaring that "the credibility of law enforcement and regulatory agencies has been undermined by the real or perceived lax treatment of repeat offenders," newly installed Democratic Federal Trade Commissioner Rohit Chopra is calling for much more serious penalties for repeat corporate offenders.

"FTC orders are not suggestions," he wrote in his first official statement, which was released on May 14.

Many giant companies, including Facebook and Google, are under FTC consent orders for various alleged transgressions (such as, in Facebook’s case, not keeping its promises to protect the privacy of its users’ data). Typically, a first FTC action essentially amounts to a warning not to do it again. The second carries potential penalties that are more serious.

Some critics charge that that approach has encouraged companies to treat FTC and other regulatory orders casually, often violating their terms. They also say the FTC and other regulators and law enforcers have gone easy on corporate recidivists.

In 2012, a Republican FTC commissioner, J. Thomas Rosch, dissented from an agency agreement with Google that fined the company $22.5 million for violations of a previous order even as it denied liability. Rosch wrote, “There is no question in my mind that there is ‘reason to believe’ that Google is in contempt of a prior Commission order.” He objected to allowing the company to deny its culpability while accepting a fine.

Chopra’s memo signals a tough stance from Democratic watchdogs — albeit a largely symbolic one, given the fact that Republicans have a 3-2 majority on the FTC — as the Trump administration pursues a wide-ranging deregulatory agenda. Agencies such as the Environmental Protection Agency and the Department of Interior are rolling back rules, while enforcement actions from the Securities and Exchange Commission and the Department of Justice are at multiyear lows.

Chopra, 36, is an ally of Elizabeth Warren and a former assistant director of the Consumer Financial Protection Bureau. President Donald Trump nominated him to his post in October, and he was confirmed last month. The FTC is led by a five-person commission, with a chairman from the president’s party.

The Chopra memo is also a tacit criticism of enforcement in the Obama years. Chopra cites the SEC’s practice of giving waivers to banks that have been sanctioned by the Department of Justice or regulators allowing them to continue to receive preferential access to capital markets. The habitual waivers drew criticism from a Democratic commissioner on the SEC, Kara Stein. Chopra contends in his memo that regulators treated both Wells Fargo and the giant British bank HSBC too lightly after repeated misconduct.

"When companies violate orders, this is usually the result of serious management dysfunction, a calculated risk that the payoff of skirting the law is worth the expected consequences, or both," he wrote. Both require more serious, structural remedies, rather than small fines.

The repeated bad behavior and soft penalties “undermine the rule of law,” he argued.

Chopra called for the FTC to use more aggressive tools: referring criminal matters to the Department of Justice; holding individual executives accountable, even if they weren’t named in the initial complaint; and “meaningful” civil penalties.

The FTC used such aggressive tactics in going after Kevin Trudeau, infomercial marketer of miracle treatments for bodily ailments. Chopra implied that the commission does not treat corporate recidivists with the same toughness. “Regardless of their size and clout, these offenders, too, should be stopped cold,” he writes.

Chopra also suggested other remedies. He called for the FTC to consider banning companies from engaging in certain business practices; requiring that they close or divest the offending business unit or subsidiary; requiring the dismissal of senior executives; and clawing back executive compensation, among other forceful measures.

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Academic Professors, Researchers, And Google Employees Protest Warfare Programs By The Tech Giant

Google logo Many internet users know that Google's business of model of free services comes with a steep price: the collection of massive amounts of information about users of its services. There are implications you may not be aware of.

A Guardian UK article by three professors asked several questions:

"Should Google, a global company with intimate access to the lives of billions, use its technology to bolster one country’s military dominance? Should it use its state of the art artificial intelligence technologies, its best engineers, its cloud computing services, and the vast personal data that it collects to contribute to programs that advance the development of autonomous weapons? Should it proceed despite moral and ethical opposition by several thousand of its own employees?"

These questions are relevant and necessary for several reasons. First, more than a dozen Google employees resigned citing ethical and transparency concerns with artificial intelligence (AI) help the company provides to the U.S. Department of Defense for Maven, a weaponized drone program to identify people. Reportedly, these are the first known mass resignations.

Second, more than 3,100 employees signed a public letter saying that Google should not be in the business of war. That letter (Adobe PDF) demanded that Google terminate its Maven program assistance, and draft a clear corporate policy that neither it, nor its contractors, will build warfare technology.

Third, more than 700 academic researchers, who study digital technologies, signed a letter in support of the protesting Google employees and former employees. The letter stated, in part:

"We wholeheartedly support their demand that Google terminate its contract with the DoD, and that Google and its parent company Alphabet commit not to develop military technologies and not to use the personal data that they collect for military purposes... We also urge Google and Alphabet’s executives to join other AI and robotics researchers and technology executives in calling for an international treaty to prohibit autonomous weapon systems... Google has become responsible for compiling our email, videos, calendars, and photographs, and guiding us to physical destinations. Like many other digital technology companies, Google has collected vast amounts of data on the behaviors, activities and interests of their users. The private data collected by Google comes with a responsibility not only to use that data to improve its own technologies and expand its business, but also to benefit society. The company’s motto "Don’t Be Evil" famously embraces this responsibility.

Project Maven is a United States military program aimed at using machine learning to analyze massive amounts of drone surveillance footage and to label objects of interest for human analysts. Google is supplying not only the open source ‘deep learning’ technology, but also engineering expertise and assistance to the Department of Defense. According to Defense One, Joint Special Operations Forces “in the Middle East” have conducted initial trials using video footage from a small ScanEagle surveillance drone. The project is slated to expand “to larger, medium-altitude Predator and Reaper drones by next summer” and eventually to Gorgon Stare, “a sophisticated, high-tech series of cameras... that can view entire towns.” With Project Maven, Google becomes implicated in the questionable practice of targeted killings. These include so-called signature strikes and pattern-of-life strikes that target people based not on known activities but on probabilities drawn from long range surveillance footage. The legality of these operations has come into question under international and U.S. law. These operations also have raised significant questions of racial and gender bias..."

I'll bet that many people never imagined -- nor want - that their personal e-mail, photos, calendars, video, social media, map usage, archived photos, social media, and more would be used for automated military applications. What are your opinions?


U.S. Senate Vote Approves Resolution To Reinstate Net Neutrality Rules. FCC Chairman Pai Repeats Claims While Ignoring Consumers

Yesterday, the United States Senate approved a bipartisan resolution to preserve net neutrality rules, the set of internet protections established in 2015 which require wireless and internet service providers (ISPs) to provide customers with access to all websites, and equal access to all websites. That meant no throttling, blocking, slow-downs of selected sites, nor prioritizing internet traffic in "fast" or "slow" lanes.

Federal communications Commission logo Earlier this month, the Federal Communications Commission (FCC) said that current net neutrality rules would expire on June 11, 2018. Politicians promised that tax cuts will create new jobs, and that repeal of net neutrality rules would encourage investments by ISPs. FCC Chairman Ajit Pai, appointed by President Trump, released a statement on May 10, 2018:

"Now, on June 11, these unnecessary and harmful Internet regulations will be repealed and the bipartisan, light-touch approach that served the online world well for nearly 20 years will be restored. The Federal Trade Commission will once again be empowered to target any unfair or deceptive business practices of Internet service providers and to protect American’s broadband privacy. Armed with our strengthened transparency rule, we look forward to working closely with the FTC to safeguard a free and open Internet. On June 11, we will have a framework in place that encourages innovation and investment in our nation’s networks so that all Americans, no matter where they live, can have access to better, cheaper, and faster Internet access and the jobs, opportunities, and platform for free expression that it provides. And we will embrace a modern, forward-looking approach that will help the United States lead the world in 5G..."

Chairman Pai's claims sound hollow, since reality says otherwise. Telecommunications companies have fired workers and reduced staff despite getting tax cuts, broadband privacy repeal, and net neutrality repeal. In December, more than 1,000 startups and investors signed an open letter to Pai opposing the elimination of net neutrality. Entrepreneurs and executives are concerned that the loss of net neutrality will harm or hinder start-up businesses.

CNet provided a good overview of events surrounding the Senate's resolution:

"Democrats are using the Congressional Review Act to try to halt the FCC's December repeal of net neutrality. The law gives Congress 60 legislative days to undo regulations imposed by a federal agency. What's needed to roll back the FCC action are simple majorities in both the House and Senate, as well as the president's signature. Senator Ed Markey (Democrat, Massachusetts), who's leading the fight in the Senate to preserve the rules, last week filed a so-called discharge petition, a key step in this legislative effort... Meanwhile, Republican lawmakers and broadband lobbyists argue the existing rules hurt investment and will stifle innovation. They say efforts by Democrats to stop the FCC's repeal of the rules do nothing to protect consumers. All 49 Democrats in the Senate support the effort to undo the FCC's vote. One Republican, Senator Susan Collins of Maine, also supports the measure. One more Republican is needed to cross party lines to pass it."

"No touch" is probably a more accurate description of the internet under Chairman Pai's leadership, given many historical problems and abuses of consumers by some ISPs. The loss of net neutrality protections will likely result in huge price increases for internet access for consumers, which will also hurt public libraries, the poor, and disabled users. The loss of net neutrality will allow ISPs the freedom to carve up, throttle, block, and slow down the internet traffic they choose, while consumers will lose the freedom to use as they choose the broadband service they've paid for. And, don't forget the startup concerns above.

After the Senate's vote, FCC Chairman Pai released this statement:

“The Internet was free and open before 2015, when the prior FCC buckled to political pressure from the White House and imposed utility-style regulation on the Internet. And it will continue to be free and open once the Restoring Internet Freedom Order takes effect on June 11... our light-touch approach will deliver better, faster, and cheaper Internet access and more broadband competition to the American people—something that millions of consumers desperately want and something that should be a top priority. The prior Administration’s regulatory overreach took us in the opposite direction, reducing investment in broadband networks and particularly harming small Internet service providers in rural and lower-income areas..."

The internet was free and open before 2015? Mr. Pai is guilty of revisionist history. The lack of ISP competition in key markets meant consumers in the United States pay more for broadband and get slower speeds compared to other countries. There were numerous complaints by consumers about usage-based Internet pricing. There were privacy abuses and settlement agreements by ISPs involving technologies such as deep-packet inspection and 'Supercookies' to track customers online, despite consumers' wishes not to be tracked. Many consumers didn't get the broadband speeds ISP promised. Some consumers sued their ISPs, and the New York State Attorney General had residents  check their broadband speed with this tool.

Tim Berners-Lee, the founder of the internet, cited three reasons why the Internet is in trouble. His number one reason: consumers had lost control of their personal information. The loss of privacy meant consumers lost control over their personal information.

There's more. Some consumers found that their ISP hijacked their online search results without notice nor consent. An ISP in Kansas admitted in 2008 to secret snooping after pressure from Congress. Given this, something had to be done. The FCC stepped up to the plate and acted when it was legally able to; and reclassified broadband after open hearings. Proposed rules were circulated prior to adoption. It was done in the open.

Yet, Chairman Pai would have us now believe the internet was free and open before 2015; and that regulatory was unnecessary. I say BS.

FCC Commissioner Jessica Rosenworcel released a statement yesterday:

"Today the United States Senate took a big step to fix the serious mess the FCC made when it rolled back net neutrality late last year. The FCC's net neutrality repeal gave broadband providers extraordinary new powers to block websites, throttle services and play favorites when it comes to online content. This put the FCC on the wrong side of history, the wrong side of the law, and the wrong side of the American people. Today’s vote is a sign that the fight for internet freedom is far from over. I’ll keep raising a ruckus to support net neutrality and I hope others will too."

A mess, indeed, created by Chairman Pai. A December 2017 study of 1,077 voters found that most want net neutrality protections:

Do you favor or oppose the proposal to give ISPs the freedom to: a) provide websites the option to give their visitors the ability to download material at a higher speed, for a fee, while providing a slower speed for other websites; b) block access to certain websites; and c) charge their customers an extra fee to gain access to certain websites?
Group Favor Opposed Refused/Don't Know
National 15.5% 82.9% 1.6%
Republicans 21.0% 75.4% 3.6%
Democrats 11.0% 88.5% 0.5%
Independents 14.0% 85.9% 0.1%

Why did the FCC, President Trump, and most GOP politicians pursue the elimination of net neutrality protections despite consumers wishes otherwise? For the same reasons they repealed broadband privacy protections despite most consumers wanting broadband privacy. (Remember, President Trump signed the privacy-rollback legislation in April 2017.) They are doing the bidding of the corporate ISPs at the expense of consumers. Profits before people. Whenever Mr. Pai mentions a "free and open internet," he's referring to corporate ISPs and not consumers. What do you think?


News Media Alliance Challenges Tech Companies To 'Accept Accountability' And Responsibility For Filtering News In Their Platforms

Last week, David Chavern, the President and CEO of News Media Alliance (NMA), testified before the House Judiciary Committee. The NMA is a nonprofit trade association representing over 2,000 news organizations across the United States. Mr. Chavern's testimony focused upon the problem of fake news, often aided by social networking platform.

His comments first described current conditions:

"... Quality journalism is essential to a healthy and functioning democracy -- and my members are united in their desire to fight for its future.

Too often in today’s information-driven environment, news is included in the broad term "digital content." It’s actually much more important than that. While some low-quality entertainment or posts by friends can be disappointing, inaccurate information about world events can be immediately destructive. Civil society depends upon the availability of real, accurate news.

The internet represents an extraordinary opportunity for broader understanding and education. We have never been more interconnected or had easier and quicker means of communication. However, as currently structured, the digital ecosystem gives tremendous viewpoint control and economic power to a very small number of companies – the tech platforms that distribute online content. That control and power must come with new responsibilities... Historically, newspapers controlled the distribution of their product; the news. They invested in the journalism required to deliver it, and then printed it in a form that could be handed directly to readers. No other party decided who got access to the information, or on what terms. The distribution of online news is now dominated by the major technology platforms. They decide what news is delivered and to whom – and they control the economics of digital news..."

Last month, a survey found that roughly two-thirds of U.S. adults (68%) use Facebook.com, and about three-quarters of those use the social networking site daily. In 2016, a survey found that 62 percent of adults in the United States get their news from social networking sites. The corresponding statistic in 2012 was 49 percent. That 2016 survey also found that fewer social media users get their news from other platforms: local television (46 percent), cable TV (31 percent), nightly network TV (30 percent), news websites/apps (28 percent), radio (25 percent), and print newspapers (20 percent).

Mr. Chavern then described the problems with two specific tech companies:

"The First Amendment prohibits the government from regulating the press. But it doesn’t prevent Facebook and Google from acting as de facto regulators of the news business.

Neither Google nor Facebook are – or have ever been – "neutral pipes." To the contrary, their businesses depend upon their ability to make nuanced decisions through sophisticated algorithms about how and when content is delivered to users. The term “algorithm” makes these decisions seem scientific and neutral. The fact is that, while their decision processes may be highly-automated, both companies make extensive editorial judgments about accuracy, relevance, newsworthiness and many other criteria.

The business models of Facebook and Google are complex and varied. However, we do know that they are both immense advertising platforms that sell people’s time and attention. Their "secret algorithms" are used to cultivate that time and attention. We have seen many examples of the types of content favored by these systems – namely, click-bait and anything that can generate outrage, disgust and passion. Their systems also favor giving users information like that which they previously consumed, thereby generating intense filter bubbles and undermining common understandings of issues and challenges.

All of these things are antithetical to a healthy news business – and a healthy democracy..."

Earlier this month, Apple Computer and Facebook executives exchanged criticisms about each other's business models and privacy. Mr. Chavern's testimony before Congress also described more problems and threats:

"Good journalism is factual, verified and takes into account multiple points of view. It can take a lot of time and investment. Most particularly, it requires someone to take responsibility for what is published. Whether or not one agrees with a particular piece of journalism, my members put their names on their product and stand behind it. Readers know where to send complaints. The same cannot be said of the sea of bad information that is delivered by the platforms in paid priority over my members’ quality information. The major platforms’ control over distribution also threatens the quality of news for another reason: it results in the “commoditization” of news. Many news publishers have spent decades – often more than a century – establishing their brands. Readers know the brands that they can trust — publishers whose reporting demonstrates the principles of verification, accuracy and fidelity to facts. The major platforms, however, work hard to erase these distinctions. Publishers are forced to squeeze their content into uniform, homogeneous formats. The result is that every digital publication starts to look the same. This is reinforced by things like the Google News Carousel, which encourages users to flick back and forth through articles on the same topic without ever noticing the publisher. This erosion of news publishers’ brands has played no small part in the rise of "fake news." When hard news sources and tabloids all look the same, how is a customer supposed to tell the difference? The bottom line is that while Facebook and Google claim that they do not want to be "arbiters of truth," they are continually making huge decisions on how and to whom news content is delivered. These decisions too often favor free and commoditized junk over quality journalism. The platforms created by both companies could be wonderful means for distributing important and high-quality information about the world. But, for that to happen, they must accept accountability for the power they have and the ultimate impacts their decisions have on our economic, social and political systems..."

Download Mr. Chavern's complete testimony. Industry watchers argue that recent changes by Facebook have hurt local news organizations. MediaPost reported:

"When Facebook changed its algorithm earlier this year to focus on “meaningful” interactions, publishers across the board were hit hard. However, local news seemed particularly vulnerable to the alterations. To assuage this issue, the company announced that it would prioritize news related to local towns and metro areas where a user resided... To determine how positively that tweak affected local news outlets, the Tow Center measured interactions for posts from publications coming from 13 metro areas... The survey found that 11 out of those 13 have consistently seen a drop in traffic between January 1 and April 1 of 2018, allowing the results to show how outlets are faring nine weeks after the algorithm change. According to the Tow Center study, three outlets saw interactions on their pages decrease by a dramatic 50%. These include The Dallas Morning News, The Denver Post, and The San Francisco Chronicle. The Atlanta Journal-Constitution saw interactions drop by 46%."

So, huge problems persist.

Early in my business career, I had the opportunity to develop and market an online service using content from Dow Jones News/Retrieval. That experience taught me that the news - hard news - included who, where, when, and what happened. Everything else is either opinion, commentary, analysis, an advertisement, or fiction. And, it is critical to know the differences and/or learn to spot each type. Otherwise, you are likely to be misled, misinformed, or fooled.


Federal Regulators Assess $1 Billion Fine Against Wells Fargo Bank

On Friday, several federal regulators announced the assessment of a $1 billion fine against Wells Fargo Bank for violations of the, "Consumer Financial Protection Act (CFPA) in the way it administered a mandatory insurance program related to its auto loans..."

Consumer Financial Protection Bureau logo The Consumer Financial Protection Bureau (CFPB) announced the fine and settlement with Wells Fargo Bank, N.A., and its coordinated action with the Office of the Comptroller of the Currency (OCC). The announcement stated that the CFPB:

"... also found that Wells Fargo violated the CFPA in how it charged certain borrowers for mortgage interest rate-lock extensions. Under the terms of the consent orders, Wells Fargo will remediate harmed consumers and undertake certain activities related to its risk management and compliance management. The CFPB assessed a $1 billion penalty against the bank and credited the $500 million penalty collected by the OCC toward the satisfaction of its fine."

Wells Fargo logo This not the first fine against Wells Fargo. The bank paid a $185 million fine in 2016 to settle charges about for alleged unlawful sales practices during the past five years. To game an internal sales system, employees allegedly created about 1.5 million bogus email accounts, and both issued and activated debit cards associated with the secret accounts. Then, employees also created PIN numbers for the accounts, all without customers' knowledge nor consent. An investigation in 2017 found 1.4 million more bogus accounts created than originally found in 2016. Also in 2017, irregularities were reported about how the bank handled mortgages.

The OCC explained that it took action:

"... given the severity of the deficiencies and violations of law, the financial harm to consumers, and the bank’s failure to correct the deficiencies and violations in a timely manner. The OCC found deficiencies in the bank’s enterprise-wide compliance risk management program that constituted reckless, unsafe, or unsound practices and resulted in violations of the unfair practices prong of Section 5 of the Federal Trade Commission (FTC) Act. In addition, the agency found the bank violated the FTC Act and engaged in unsafe and unsound practices relating to improper placement and maintenance of collateral protection insurance policies on auto loan accounts and improper fees associated with interest rate lock extensions. These practices resulted in consumer harm which the OCC has directed the bank to remediate.

The $500 million civil money penalty reflects a number of factors, including the bank’s failure to develop and implement an effective enterprise risk management program to detect and prevent the unsafe or unsound practices, and the scope and duration of the practices..."

MarketWatch explained the bank's unfair and unsound practices:

"When consumers buy a vehicle through a lender, the lender often requires the consumer to also purchase “collateral protection insurance.” That means the vehicle itself is collateral — or essentially, could be repossessed — if the loan is not paid... Sometimes, the fine print of the contracts say that if borrowers do not buy their own insurance (enough to satisfy the terms of the loan), the lender will go out and purchase that insurance on their behalf, and charge them for it... That is a legal practice. But in the case of Wells Fargo, borrowers said they actually did buy that insurance, and Wells Fargo still bought more insurance on their behalf and charged them for it."

So, the bank forced consumers to buy unwanted and unnecessary auto insurance. The lesson for consumers: don't accept the first auto loan offered, and closely read the fine print of contracts from lenders. Wells Fargo said in a news release that it:

"... will adjust its first quarter 2018 preliminary financial results by an additional accrual of $800 million, which is not tax deductible. The accrual reduces reported first quarter 2018 net income by $800 million, or $0.16 cents per diluted common share, to $4.7 billion, or 96 cents per diluted common share. Under the consent orders, Wells Fargo will also be required to submit, for review by its board, plans detailing its ongoing efforts to strengthen its compliance and risk management, and its approach to customer remediation efforts."

Kudos to the OCC and CFPB for taking this action against a bank with a spotty history. Will executives at Wells Fargo learn their lessons from the massive fine? The Washington Post reported that the bank will:

"... benefit from a massive corporate tax cut passed by Congress last year. he bank’s effective tax rate this year will fall from about 33 percent to 22 percent, according to a Goldman Sachs analysis released in December. The change could boost its profits by 18 percent, according to the analysis. Just in the first quarter, Wells Fargo’s effective tax rate fell from about 28 percent to 18 percent, saving it more than $600 million. For the entire year, the tax cut is expected to boost the company’s profits by $3.7 billion..."

So, don't worry about the bank. It's tax savings will easily offset the fine. This makes one doubt the fine was a sufficient deterrent. And, I found the OCC's announcement forceful and appropriate, while the CFPB's announcement seemed to soft-pedal things by saying the absolute minimum.

What do you think? Will the fine curb executive wrongdoing?


4 Ways to Fix Facebook

[Editor's Note: today's guest post, by ProPublica reporters, explores solutions to the massive privacy and data security problems at Facebook.com. It is reprinted with permission.]

By Julia Angwin, ProPublica

Gathered in a Washington, D.C., ballroom last Thursday for their annual “tech prom,” hundreds of tech industry lobbyists and policy makers applauded politely as announcers read out the names of the event’s sponsors. But the room fell silent when “Facebook” was proclaimed — and the silence was punctuated by scattered boos and groans.

Facebook logo These days, it seems the only bipartisan agreement in Washington is to hate Facebook. Democrats blame the social network for costing them the presidential election. Republicans loathe Silicon Valley billionaires like Facebook founder and CEO Mark Zuckerberg for their liberal leanings. Even many tech executives, boosters and acolytes can’t hide their disappointment and recriminations.

The tipping point appears to have been the recent revelation that a voter-profiling outfit working with the Trump campaign, Cambridge Analytica, had obtained data on 87 million Facebook users without their knowledge or consent. News of the breach came after a difficult year in which, among other things, Facebook admitted that it allowed Russians to buy political ads, advertisers to discriminate by race and age, hate groups to spread vile epithets, and hucksters to promote fake news on its platform.

Over the years, Congress and federal regulators have largely left Facebook to police itself. Now, lawmakers around the world are calling for it to be regulated. Congress is gearing up to grill Zuckerberg. The Federal Trade Commission is investigating whether Facebook violated its 2011 settlement agreement with the agency. Zuckerberg himself suggested, in a CNN interview, that perhaps Facebook should be regulated by the government.

The regulatory fever is so strong that even Peter Swire, a privacy law professor at Georgia Institute of Technology who testified last year in an Irish court on behalf of Facebook, recently laid out the legal case for why Google and Facebook might be regulated as public utilities. Both companies, he argued, satisfy the traditional criteria for utility regulation: They have large market share, are natural monopolies, and are difficult for customers to do without.

While the political momentum may not be strong enough right now for something as drastic as that, many in Washington are trying to envision what regulating Facebook would look like. After all, the solutions are not obvious. The world has never tried to rein in a global network with 2 billion users that is built on fast-moving technology and evolving data practices.

I talked to numerous experts about the ideas bubbling up in Washington. They identified four concrete, practical reforms that could address some of Facebook’s main problems. None are specific to Facebook alone; potentially, they could be applied to all social media and the tech industry.

1. Impose Fines for Data Breaches

The Cambridge Analytica data loss was the result of a breach of contract, rather than a technical breach in which a company gets hacked. But either way, it’s far too common for institutions to lose customers’ data — and they rarely suffer significant financial consequences for the loss. In the United States, companies are only required to notify people if their data has been breached in certain states and under certain circumstances — and regulators rarely have the authority to penalize companies that lose personal data.

Consider the Federal Trade Commission, which is the primary agency that regulates internet companies these days. The FTC doesn’t have the authority to demand civil penalties for most data breaches. (There are exceptions for violations of children’s privacy and a few other offenses.) Typically, the FTC can only impose penalties if a company has violated a previous agreement with the agency.

That means Facebook may well face a fine for the Cambridge Analytica breach, assuming the FTC can show that the social network violated a 2011 settlement with the agency. In that settlement, the FTC charged Facebook with eight counts of unfair and deceptive behavior, including allowing outside apps to access data that they didn’t need — which is what Cambridge Analytica reportedly did years later. The settlement carried no financial penalties but included a clause stating that Facebook could face fines of $16,000 per violation per day.

David Vladeck, former FTC director of consumer protection, who crafted the 2011 settlement with Facebook, said he believes Facebook’s actions in the Cambridge Analytica episode violated the agreement on multiple counts. “I predict that if the FTC concludes that Facebook violated the consent decree, there will be a heavy civil penalty that could well be in the amount of $1 billion or more,” he said.

Facebook maintains it has abided by the agreement. “Facebook rejects any suggestion that it violated the consent decree,” spokesman Andy Stone said. “We respected the privacy settings that people had in place.”

If a fine had been levied at the time of the settlement, it might well have served as a stronger deterrent against any future breaches. Daniel J. Weitzner, who served in the White House as the deputy chief technology officer at the time of the Facebook settlement, says that technology should be policed by something similar to the Department of Justice’s environmental crimes unit. The unit has levied hundreds of millions of dollars in fines. Under previous administrations, it filed felony charges against people for such crimes as dumping raw sewage or killing a bald eagle. Some ended up sentenced to prison.

“We know how to do serious law enforcement when we think there’s a real priority and we haven’t gotten there yet when it comes to privacy,” Weitzner said.

2. Police Political Advertising

Last year, Facebook disclosed that it had inadvertently accepted thousands of advertisements that were placed by a Russian disinformation operation — in possible violation of laws that restrict foreign involvement in U.S. elections. FBI special prosecutor Robert Mueller has charged 13 Russians who worked for an internet disinformation organization with conspiring to defraud the United States, but it seems unlikely that Russia will compel them to face trial in the U.S.

Facebook has said it will introduce a new regime of advertising transparency later this year, which will require political advertisers to submit a government-issued ID and to have an authentic mailing address. It said political advertisers will also have to disclose which candidate or organization they represent and that all election ads will be displayed in a public archive.

But Ann Ravel, a former commissioner at the Federal Election Commission, says that more could be done. While she was at the commission, she urged it to consider what it could do to make internet advertising contain as much disclosure as broadcast and print ads. “Do we want Vladimir Putin or drug cartels to be influencing American elections?” she presciently asked at a 2015 commission meeting.

However, the election commission — which is often deadlocked between its evenly split Democratic and Republican commissioners — has not yet ruled on new disclosure rules for internet advertising. Even if it does pass such a rule, the commission’s definition of election advertising is so narrow that many of the ads placed by the Russians may not have qualified for scrutiny. It’s limited to ads that mention a federal candidate and appear within 60 days prior to a general election or 30 days prior to a primary.

This definition, Ravel said, is not going to catch new forms of election interference, such as ads placed months before an election, or the practice of paying individuals or bots to spread a message that doesn’t identify a candidate and looks like authentic communications rather than ads.

To combat this type of interference, Ravel said, the current definition of election advertising needs to be broadened. The FEC, she suggested, should establish “a multi-faceted test” to determine whether certain communications should count as election advertisements. For instance, communications could be examined for their intent, and whether they were paid for in a nontraditional way — such as through an automated bot network.

And to help the tech companies find suspect communications, she suggested setting up an enforcement arm similar to the Treasury Department’s Financial Crimes Enforcement Network, known as FinCEN. FinCEN combats money laundering by investigating suspicious account transactions reported by financial institutions. Ravel said that a similar enforcement arm that would work with tech companies would help the FEC.

“The platforms could turn over lots of communications and the investigative agency could then examine them to determine if they are from prohibited sources,” she said.

3. Make Tech Companies Liable for Objectionable Content

Last year, ProPublica found that Facebook was allowing advertisers to buy discriminatory ads, including ads targeting people who identified themselves as “Jew-haters,” and ads for housing and employment that excluded audiences based on race, age and other protected characteristics under civil rights laws.

Facebook has claimed that it has immunity against liability for such discrimination under section 230 of the 1996 federal Communications Decency Act, which protects online publishers from liability for third-party content.

“Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any,” Facebook stated in legal filings in a federal case in California challenging Facebook’s use of racial exclusions in ad targeting.

But sentiment is growing in Washington to interpret the law more narrowly. Last month, the House of Representatives passed a bill that carves out an exemption in the law, making websites liable if they aid and abet sex trafficking. Despite fierce opposition by many tech advocates, a version of the bill has already passed the Senate.

And many staunch defenders of the tech industry have started to suggest that more exceptions to section 230 may be needed. In November, Harvard Law professor Jonathan Zittrain wrote an article rethinking his previous support for the law and declared it has become, in effect, “a subsidy” for the tech giants, who don’t bear the costs of ensuring the content they publish is accurate and fair.

“Any honest account must acknowledge the collateral damage it has permitted to be visited upon real people whose reputations, privacy, and dignity have been hurt in ways that defy redress,” Zittrain wrote.

In a December 2017 paper titled “The Internet Will Not Break: Denying Bad Samaritans 230 Immunity,” University of Maryland law professors Danielle Citron and Benjamin Wittes argue that the law should be amended — either through legislation or judicial interpretation — to deny immunity to technology companies that enable and host illegal content.

“The time is now to go back and revise the words of the statute to make clear that it only provides shelter if you take reasonable steps to address illegal activity that you know about,” Citron said in an interview.

4. Install Ethics Review Boards

Cambridge Analytica obtained its data on Facebook users by paying a psychology professor to build a Facebook personality quiz. When 270,000 Facebook users took the quiz, the researcher was able to obtain data about them and all of their Facebook friends — or about 50 million people altogether. (Facebook later ended the ability for quizzes and other apps to pull data on users’ friends.)

Cambridge Analytica then used the data to build a model predicting the psychology of those people, on metrics such as “neuroticism,” political views and extroversion. It then offered that information to political consultants, including those working for the Trump campaign.

The company claimed that it had enough information about people’s psychological vulnerabilities that it could effectively target ads to them that would sway their political opinions. It is not clear whether the company actually achieved its desired effect.

But there is no question that people can be swayed by online content. In a controversial 2014 study, Facebook tested whether it could manipulate the emotions of its users by filling some users’ news feeds with only positive news and other users’ feeds with only negative news. The study found that Facebook could indeed manipulate feelings — and sparked outrage from Facebook users and others who claimed it was unethical to experiment on them without their consent.

Such studies, if conducted by a professor on a college campus, would require approval from an institutional review board, or IRB, overseeing experiments on human subjects. But there is no such standard online. The usual practice is that a company’s terms of service contain a blanket statement of consent that users never read or agree to.

James Grimmelman, a law professor and computer scientist, argued in a 2015 paper that the technology companies should stop burying consent forms in their fine print. Instead, he wrote, “they should seek enthusiastic consent from users, making them into valued partners who feel they have a stake in the research.”

Such a consent process could be overseen by an independent ethics review board, based on the university model, which would also review research proposals and ensure that people’s private information isn’t shared with brokers like Cambridge Analytica.

“I think if we are in the business of requiring IRBs for academics,” Grimmelman said in an interview, “we should ask for appropriate supervisions for companies doing research.”

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