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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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No, a Teen Did Not Hack a State Election

[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 Lilia Chang, ProPublica

Headlines from Def Con, a hacking conference held this month in Las Vegas, might have left some thinking that infiltrating state election websites and affecting the 2018 midterm results would be child’s play.

Articles reported that teenage hackers at the event were able to “crash the upcoming midterm elections” and that it had taken “an 11-year-old hacker just 10 minutes to change election results.” A first-person account by a 17-year-old in Politico Magazine described how he shut down a website that would tally votes in November, “bringing the election to a screeching halt.”

But now, elections experts are raising concerns that misunderstandings about the event — many of them stoked by its organizers — have left people with a distorted sense of its implications.

In a website published before r00tz Asylum, the youth section of Def Con, organizers indicated that students would attempt to hack exact duplicates of state election websites, referring to them as “replicas” or “exact clones.” (The language was scaled back after the conference to simply say “clones.”)

Instead, students were working with look-a-likes created for the event that had vulnerabilities they were coached to find. Organizers provided them with cheat sheets, and adults walked the students through the challenges they would encounter.

Josh Franklin, an elections expert formerly at the National Institute of Standards and Technology and a speaker at Def Con, called the websites “fake.”

“When I learned that they were not using exact copies and pains hadn’t been taken to more properly replicate the underlying infrastructure, I was definitely saddened,” Franklin said.

Franklin and David Becker, the executive director of the Center for Election Innovation & Research, also pointed out that while state election websites report voting results, they do not actually tabulate votes. This information is kept separately and would not be affected if hackers got into sites that display vote totals.

“It would be lunacy to directly connect the election management system, of which the tabulation system is a part of, to the internet,” Franklin said.

Jake Braun, the co-organizer of the event, defended the attention-grabbing way it was framed, saying the security issues of election websites haven’t gotten enough attention. Those questioning the technical details of the mock sites and whether their vulnerabilities were realistic are missing the point, he insisted.

“We want elections officials to start putting together communications redundancy plans so they have protocol in place to communicate with voters and the media and so on if this happens on election day,” he said.

Braun provided ProPublica with a report that r00tz plans to circulate more widely that explains the technical underpinnings of the mock websites. They were designed to be vulnerable to a SQL injection attack, a common hack, the report says.

Franklin acknowledged that some state election reporting sites do indeed have this vulnerability, but he said that states have been aware of it for months and are in the process of protecting against it.

Becker said the details spelled out in the r00tz report would have been helpful to have from the start.

“We have to be really careful about adding to the hysteria about our election system not working or being too vulnerable because that’s exactly what someone like President Putin wants,” Becker said. Instead, Becker said that “we should find real vulnerabilities and address them as elections officials are working really hard to do.”

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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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Verizon Throttled Mobile Services Of First Responders Fighting California Wildfires

Verizon logo Fighting fires is difficult, dangerous work. Recently, that was made worse by an internet service provider (ISP). Ars Technica reported:

"Verizon Wireless' throttling of a fire department that uses its data services has been submitted as evidence in a lawsuit that seeks to reinstate federal net neutrality rules. "County Fire has experienced throttling by its ISP, Verizon," Santa Clara County Fire Chief Anthony Bowden wrote in a declaration. "This throttling has had a significant impact on our ability to provide emergency services. Verizon imposed these limitations despite being informed that throttling was actively impeding County Fire's ability to provide crisis-response and essential emergency services." Bowden's declaration was submitted in an addendum to a brief filed by 22 state attorneys general, the District of Columbia, Santa Clara County, Santa Clara County Central Fire Protection District, and the California Public Utilities Commission. The government agencies are seeking to overturn the recent repeal of net neutrality rules in a lawsuit they filed against the Federal Communications Commission in the US Court of Appeals for the District of Columbia Circuit."

Reportedly, Verizon replied with a statement that the throttling, "was a customer service error." Huh? This is how Verizon treats first-responders? This is how an ISP treats first-responders during a major emergency and natural disaster? The wildfires have claimed 12 deaths, destroyed at least 1,200 homes, and wiped out the state's emergency fund. Smoke from the massive wildfires has caused extensive pollution and health warnings in Northwest areas including Portland, Oregon and Seattle, Washington. The thick smoke could be seen from space.

Ars Technica reported in an August 21 update:

"Santa Clara County disputed Verizon's characterization of the problem in a press release last night. "Verizon's throttling has everything to do with net neutrality—it shows that the ISPs will act in their economic interests, even at the expense of public safety," County Counsel James Williams said on behalf of the county and fire department. "That is exactly what the Trump Administration's repeal of net neutrality allows and encourages." "

In 2017, President Trump appointed Ajit Pai, a former Verizon attorney, as Chairman of the U.S. Federal Communications Commission. Under Pai's leadership, the FCC revoked both online privacy and net neutrality protections for consumers. This gave ISPs the freedom to do as they want online while consumers lost two key freedoms: a) the freedom to control the data describing their activities online (which are collected and shared with others by ISPs), and b) freedom to use the internet bandwidth purchased as they choose.

If an ISP will throttle and abuse first-responders, think of what it will do it regular consumers. What are your opinions?


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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New York State Tells Charter To Leave Due To 'Persistent Non-Compliance And Failure To Live Up To Promises'

The New York State Public Service Commission (NYPSC) announced on Friday that it has revoked its approval of the 2016 merger agreement between Charter Communications, Inc. and Time Warner Cable, Inc. because:

"... Charter, doing business as Spectrum has — through word and deed — made clear that it has no intention of providing the public benefits upon which the Commission's earlier [merger] approval was conditioned. In addition, the Commission directed Commission counsel to bring an enforcement action in State Supreme Court to seek additional penalties for Charter's past failures and ongoing non-compliance..."

Charter, the largest cable provider in the State, provides digital cable television, broadband internet and VoIP telephone services to more than two million subscribers in in more than 1,150 communities. It provides services to consumers in Buffalo, Rochester, Syracuse, Albany and four boroughs in New York City: Manhattan, Staten Island, Queens and Brooklyn. The planned expansion could have increased to five million subscribers in the state.

Charter provides services in 41 states: Alabama, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming.

A unit of the Department of Public Service, the NYPSC site described its mission, "to ensure affordable, safe, secure, and reliable access to electric, gas, steam, telecommunications, and water services for New York State’s residential and business consumers, while protecting the natural environment." Its announcement listed Spectrum's failures and non-compliance:

"1. The company’s repeated failures to meet deadlines;
2. Charter’s attempts to skirt obligations to serve rural communities;
3. Unsafe practices in the field;
4. Its failure to fully commit to its obligations under the 2016 merger agreement; and
5. The company’s purposeful obfuscation of its performance and compliance obligations to the Commission and its customers."

The announcement provided details:

"On Jan. 8, 2016, the Commission approved Charter’s acquisition of Time Warner. To obtain approval, Charter agreed to a number of conditions required by the Commission to advance the public interest, including delivering broadband speed upgrades to 100 Mbps statewide by the end of 2018, and 300 Mbps by the end of 2019, and building out its network to pass an additional 145,000 un-served or under-served homes and businesses in the State's less densely populated areas within four years... Despite missing every network expansion target since the merger was approved in 2016, Charter has falsely claimed in advertisements it is exceeding its commitments to the State and is on track to deliver its network expansion. This led to the NYPSC’s general counsel referring a false advertising claim to the Attorney General’s office for enforcement... By its own admission, Charter has failed to meet its commitment to expand its service network... Its failure to meet its June 18, 2018 target by more than 40 percent is only the most recent example. Rather than accept responsibility Charter has tried to pass the blame for its failure on other companies, such as utility pole owners..."

The NYPSC has already levied $3 million in fines against Charter. The latest action basically boots Charter out of the State:

"Charter is ordered to file within 60 days a plan with the Commission to ensure an orderly transition to a successor provider(s). During the transition process, Charter must continue to comply with all local franchises it holds in New York State and all obligations under the Public Service Law and the NYPSC regulations. Charter must ensure no interruption in service is experienced by customers, and, in the event that Charter does not do so, the NYPSC will take further steps..."

Of course, executives at Charter have a different view of the situation. NBC New York reported:

"In the weeks leading up to an election, rhetoric often becomes politically charged. But the fact is that Spectrum has extended the reach of our advanced broadband network to more than 86,000 New York homes and businesses since our merger agreement with the PSC. Our 11,000 diverse and locally based workers, who serve millions of customers in the state every day, remain focused on delivering faster and better broadband to more New Yorkers, as we promised..."


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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European Regulators Fine Google $5 Billion For 'Breaching EU Antitrust Rules'

On Wednesday, European anti-trust regulators fined Google 4.34 billion Euros (U.S. $5 billion) and ordered the tech company to stop using its Android operating system software to block competition. ComputerWorld reported:

"The European Commission found that Google has abused its dominant market position in three ways: tying access to the Play store to installation of Google Search and Google Chrome; paying phone makers and network operators to exclusively install Google Search, and preventing manufacturers from making devices running forks of Android... Google won't let smartphone manufacturers install Play on their phones unless they also make its search engine and Chrome browser the defaults on their phones. In addition, they must only use a Google-approved version of Android. This has prevented companies like Amazon.com, which developed a fork of Android it calls FireOS, from persuading big-name manufacturers to produce phones running its OS or connecting to its app store..."

Reportedly, less than 10% of Android phone users download a different browser than the pre-installed default. Less than 1% use a different search app. View the archive of European Commission Android OS documents.

Yesterday, the European Commission announced on social media:

European Commission tweet. Google Android OS restrictions graphic. Click to view larger version

European Commission tweet. Vestager comments. Click to view larger version

And, The Guardian newspaper reported:

"Soon after Brussels handed down its verdict, Google announced it would appeal. "Android has created more choice for everyone, not less," a Google spokesperson said... Google has 90 days to end its "illegal conduct" or its parent company Alphabet could be hit with fines amounting to 5% of its daily [revenues] for each day it fails to comply. Wednesday’s verdict ends a 39-month investigation by the European commission’s competition authorities into Google’s Android operating system but it is only one part of an eight-year battle between Brussels and the tech giant."

According to the Reuters news service, a third EU case against Google, involving accusations that the tech company's AdSense advertising service blocks users from displaying search ads from competitors, is still ongoing.


New Jersey to Suspend Prominent Psychologist for Failing to Protect Patient Privacy

[Editor's note: today's guest blog post, by reporters at ProPublica, explores privacy issues within the healthcare industry. The post is reprinted with permission.]

By Charles Ornstein, ProPublica

A prominent New Jersey psychologist is facing the suspension of his license after state officials concluded that he failed to keep details of mental health diagnoses and treatments confidential when he sued his patients over unpaid bills.

The state Board of Psychological Examiners last month upheld a decision by an administrative law judge that the psychologist, Barry Helfmann, “did not take reasonable measures to protect the confidentiality of his patients’ protected health information,” Lisa Coryell, a spokeswoman for the state attorney general’s office, said in an e-mail.

The administrative law judge recommended that Helfmann pay a fine and a share of the investigative costs. The board went further, ordering that Helfmann’s license be suspended for two years, Coryell wrote. During the first year, he will not be able to practice; during the second, he can practice, but only under supervision. Helfmann also will have to pay a $10,000 civil penalty, take an ethics course and reimburse the state for some of its investigative costs. The suspension is scheduled to begin in September.

New Jersey began to investigate Helfmann after a ProPublica article published in The New York Times in December 2015 that described the lawsuits and the information they contained. The allegations involved Helfmann’s patients as well as those of his colleagues at Short Hills Associates in Clinical Psychology, a New Jersey practice where he has been the managing partner.

Helfmann is a leader in his field, serving as president of the American Group Psychotherapy Association, and as a past president of the New Jersey Psychological Association.

ProPublica identified 24 court cases filed by Short Hills Associates from 2010 to 2014 over unpaid bills in which patients’ names, diagnoses and treatments were listed in documents. The defendants included lawyers, business people and a manager at a nonprofit. In cases involving patients who were minors, the lawsuits included children’s names and diagnoses.

The information was subsequently redacted from court records after a patient counter-sued Helfmann and his partners, the psychology group and the practice’s debt collection lawyers. The patient’s lawsuit was settled.

Helfmann has denied wrongdoing, saying his former debt collection lawyers were responsible for attaching patients’ information to the lawsuits. His current lawyer, Scott Piekarsky, said he intends to file an immediate appeal before the discipline takes effect.

"The discipline imposed is ‘so disproportionate as to be shocking to one’s sense of fairness’ under New Jersey case law," Piekarsky said in a statement.

Piekarsky also noted that the administrative law judge who heard the case found no need for any license suspension and raised questions about the credibility of the patient who sued Helfmann. "We feel this is a political decision due to Dr. Helfmann’s aggressive stance" in litigation, he said.

Helfmann sued the state of New Jersey and Joan Gelber, a senior deputy attorney general, claiming that he was not provided due process and equal protection under the law. He and Short Hills Associates sued his prior debt collection firm for legal malpractice. Those cases have been dismissed, though Helfmann has appealed.

Helfmann and Short Hills Associates also are suing the patient who sued him, as well as the man’s lawyer, claiming the patient and lawyer violated a confidential settlement agreement by talking to a ProPublica reporter and sharing information with a lawyer for the New Jersey attorney general’s office without providing advance notice. In court pleadings, the patient and his lawyer maintain that they did not breach the agreement. Helfmann brought all three of these lawsuits in state court in Union County.

Throughout his career, Helfmann has been an advocate for patient privacy, helping to push a state law limiting the information an insurance company can seek from a psychologist to determine the medical necessity of treatment. He also was a plaintiff in a lawsuit against two insurance companies and a New Jersey state commission, accusing them of requiring psychologists to turn over their treatment notes in order to get paid.

"It is apparent that upholding the ethical standards of his profession was very important to him," Carol Cohen, the administrative law judge, wrote. "Having said that, it appears that in the case of the information released to his attorney and eventually put into court papers, the respondent did not use due diligence in being sure that confidential information was not released and his patients were protected."

Filed under:

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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?


North Carolina Provides Its Residents With an Opt-out From Smart Meter Installations. Will It Last?

Wise consumers know how smart utility meters operate. Unlike conventional analog meters which must be read manually on-site by a technician from the utility, smart meters perform two-way digital communication with the service provider, have memory to digitally store a year's worth of your usage, and transmit your usage at regular intervals (e.g., every 15 minutes). Plus, consumers have little or no control over smart meters installed on their property.

There is some good news. Residents in North Carolina can say "no" to smart meter installations by their power company. The Charlotte Observer reported:

"Residents who say they suffer from acute sensitivity to radio-frequency waves can say no to Duke's smart meters — as long as they have a notarized doctor's note to attest to their rare condition. The N.C. Utilities Commission, which sets utility rates and rules, created the new standard on Friday, possibly making North Carolina the first state to limit the smart meter technology revolution by means of a medical opinion... Duke Energy's two North Carolina utility subsidiaries are in the midst of switching its 3.4 million North Carolina customers to smart meters..."

While it currently is free to opt out and get an analog meter instead, that could change:

"... Duke had proposed charging customers extra if they refused a smart meter. Duke wanted to charge an initial fee of $150 plus $11.75 a month to cover the expense of sending someone out to that customer's house to take a monthly meter reading. But the Utilities Commission opted to give the benefit of the doubt to customers with smart meter health issues until the Federal Communications Commission determines the health risks of the devices."

The Smart Grid Awareness blog contains more information about activities in North Carolina. There are privacy concerns with smart meters. Smart meters can be used to profile consumers with a high degree of accuracy and details. One can easily deduce the number of persons living in the dwelling, when they are home and the duration, which electric appliances are used when they are home, the presence of security and alarm systems, and any special conditions (e.g., in-home medical equipment, baby appliances, etc.).

Other states are considering similar measures. The Kentucky Public Service Commission (PSC) will hold a public meeting only July 9th and accept public comments about planned smart meter deployments by Kentucky Utilities Co. (KU) and Louisville Gas & Electric Company (LG&E). Smart meters are being deployed in New Jersey.

When Maryland lawmakers considered legislation to provide law enforcement with access to consumers' smart meters, the Electronic Privacy Information Center (EPIC) responded with a January 16, 2018 letter outlining the privacy concerns:

"HB 56 is a sensible and effective response to an emerging privacy issue facing Maryland residents. Smart meters collect detailed personal data about the use of utility services. With a smart meter, it is possible to determine when a person is in a residence, and what they are doing. Moreover the routine collection of this data, without adequate privacy safeguards, would enable ongoing surveillance of Maryland residents without regard to any criminal suspicion."

"HB 56 does not prevent law enforcement use of data generated by smart meters; it simply requires that law enforcement follow clear procedures, subject to judicial oversight, to access the data generated by smart meters. HB 56 is an example of a model privacy law that enables innovation while safeguarding personal privacy."

That's a worthy goal of government: balance the competing needs of the business sector to innovate while protecting consumers' privacy. Is a medical opt-out sufficient? Should Fourth Amendment constitutional concerns apply? What are your opinions?


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?


Lawmakers In California Cave To Industry Lobbying, And Backtrack With Weakened Net Neutrality Bill

After the U.S. Federal Communications Commission (FCC) acted last year to repeal net neutrality rules, those protections officially expired on June 11th. Meanwhile, legislators in California have acted to protect their state's residents. In January, State Senator Weiner introduced in January a proposed bill, which was passed by the California Senate three weeks ago.

Since then, some politicians have countered with a modified bill lacking strong protections. C/Net reported:

"The vote on Wednesday in a California Assembly committee hearing advanced a bill that implements some net neutrality protections, but it scaled back all the measures of the bill that had gone beyond the rules outlined in the Federal Communications Commission's 2015 regulation, which was officially taken off the books by the Trump Administration's commission last week. In a surprise move, the vote happened before the hearing officially started,..."

Weiner's original bill was considered the "gold standard" of net neutrality protections for consumers because:

"... it went beyond the FCC's 2015 net neutrality "bright line" rules by including provisions like a ban on zero-rating, a business practice that allows broadband providers like AT&T to exempt their own services from their monthly wireless data caps, while services from competitors are counted against those limits. The result is a market controlled by internet service providers like AT&T, who can shut out the competition by creating an economic disadvantage for those competitors through its wireless service plans."

State Senator Weiner summarized the modified legislation:

"It is, with the amendments, a fake net neutrality bill..."

A key supporter of the modified, weak bill was Assemblyman Miguel Santiago, a Democrat from Los Angeles. Motherboard reported:

"Spearheading the rushed dismantling of the promising law was Committee Chair Miguel Santiago, a routine recipient of AT&T campaign contributions. Santiago’s office failed to respond to numerous requests for comment from Motherboard and numerous other media outlets... Weiner told the San Francisco Chronicle that the AT&T fueled “evisceration” of his proposal was “decidedly unfair.” But that’s historically how AT&T, a company with an almost comical amount of control over state legislatures, tends to operate. The company has so much power in many states, it’s frequently allowed to quite literally write terrible state telecom law..."

Supporters of this weakened bill either forgot or ignored the results from a December 2017 study of 1,077 voters. Most consumers 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 would politicians pursue weak net neutrality bills with few protections, while constituents want those protections? They are doing the bidding of the corporate internet service providers (ISPs) at the expense of their constituents. Profits before people. These politicians promote the freedom for ISPs to do as they please while restricting consumers' freedoms to use the bandwidth they've purchased however they please.

Broadcasting and Cable reported:

"These California democrats will go down in history as among the worst corporate shills that have ever held elected office," said Evan Greer of net neutrality activist group Fight for the Future. "Californians should rise up and demand that at their Assembly members represent them. The actions of this committee are an attack not just on net neutrality, but on our democracy.” According to Greer, the vote passed 8-0, with Democrats joining Republicans to amend the bill."

According to C/Net, more than 24 states are considering net neutrality legislation to protect their residents:

"... New York, Connecticut, and Maryland, are also considering legislation to reinstate net neutrality rules. Oregon and Washington state have already signed their own net neutrality legislation into law. Governors in several states, including New Jersey and Montana, have signed executive orders requiring ISPs that do business with the state adhere to net neutrality principles."

So, we have AT&T (plus politicians more interested in corporate donors than their constituents, the FCC, President Trump, and probably other telecommunications companies) to thank for this mess. What do you think?


Several States Updated Their Existing Breach Notification Laws, Or Introduced New Laws

Given the increased usage of data in digital formats, new access methods, and continual data breaches within corporations and governments, several state governments have updated their data breach notification laws, and/or passed new laws:

Alabama

The last state without any breach notification laws, Governor Kay Ivey signed in March the state's first data breach law: the Alabama Data Breach Notification Act of 2018 (SB 318), which became effective on June 1, 2018. Some of the key modifications: a) similar to other states, the law defined the format and types of data elements which must be protected, including health information; b) defined "covered entities" including state government agencies and "third-party agents" contracted to maintain, store, process and/or access protected data; c) requires notification of affected individuals within 45 days, and to the state Attorney General; and d) while penalties aren't mandatory, the law allows civil penalties up to $5,000 per day for, "each consecutive day that the covered entity fails to take reasonable action to comply with the notice provisions of this act."

Arizona

Earlier this year, Arizona Governor Doug Ducey signed legislation updating the state's breach notification laws. Some of the key modifications: a) expanded definitions of personal information to include medical or mental health treatment/diagnosis, passport numbers, taxpayer ID numbers, biometric data, e-mail addresses in combination with online passwords and security questions; b) set the notification window for affected persons at 45 days; c) allows e-mail notification of affected persons; d) and if the breach affected more than 1,000 persons, then notification must provided to the three national credit-reporting agencies and to the state Attorney General.

Colorado

Colorado Governor John Hickenloope signed on May 29th several laws including HB-1128, which will go into effect on september 1, 2018. Some experts view HB-1128 as the strongest protections in the country. Some of the key modifications: a) expanded "covered entities" to include certain "third-party service providers" contracted to maintain, store, process and/or access protected data; b) expanded definitions of "personal information" to include biometric data, plus e-mail addresses in combination with online passwords and security questions; c) allows substitute notification methods (e.g., e-mail, post on website, statewide news media) if the cost of basic notification would exceed $250,000; d) allows e-mail notification of affected persons; e) sets the notification window at 30 days, if the breach affected more than 500 Colorado residents; and f) expanded requirements for companies to protected personal information.

Louisiana

Louisiana Governor John Edwards signed in May 2018 an amendment to the state’s Database Security Breach Notification Law (Act 382) which will take effect August 1, 2018. Some of the key modifications: a) expanded definition of ‘personal information’ to include a state identification card number, passport number, and “biometric data” (e.g., fingerprints, voice prints, eye retina or iris, or other unique biological characteristics used to access systems); b) removed vagueness and defined the notification window as within 60 days; c) allows substitute notification methods (e.g., e-mail, posts on affected company's website, statewide news media); and d) tightened required that companies utilizing "computerized data" better protect the information they archive.

South Dakota

The next-to-last state without any breach notification laws, Governor Dennis Daugaard signed into law in March the state’s first breach notification law (SB 62). Like breach laws in other states, it provides definitions of what a breach is, personal information which must be protected, covered entities (e.g., companies, government agencies) subject to the law, notification requirements, and conditions when substitute notification methods (e.g., e-mail, posts on the affected entity's website, statewide news media) are allowed.

To Summarize

New Mexico enacted its new breach notification law (HB 15) in March, 2017. With the additions of Alabama and South Dakota, finally every state has a breach notification law. Sadly, it has taken 16 years. California was the first state to enact a breach notification law in 2002. It has taken that long for other states to catch up... not only catch up with California, but also catch up with technological changes driven by the internet.

California has led the way for a long time. It banned RFID skimming in 2008, co-hosted privacy workshops with the U.S. Federal Trade Commission in 2008, strengthened its existing breach law in 2011, and introduced in 2013 privacy guidelines for mobile app developers. Other states' legislatures can learn from this leadership.

Want to learn more? Detailed reviews of new and updated breach laws are available in the National Law Review website.


San Diego Police Widely Share Data From License Plate Database

Images of ALPR device mounted on a patrol car. Click to view larger version Many police departments use automated license plate reader (ALPR or LPR) technology to monitor the movements of drivers and their vehicles. The surveillance has several implications beyond the extensive data collection.

The Voice of San Diego reported that the San Diego Police Departments shares its database of ALPR data with many other agencies:

"SDPD shares that database with the San Diego sector of Border Patrol – and with another 600 agencies across the country, including other agencies within the Department of Homeland Security. The nationwide database is enabled by Vigilant Solutions, a private company that provides data management and software services to agencies across the country for ALPR systems... A memorandum of understanding between SDPD and Vigilant stipulates that each agency retains ownership of its data, and can take steps to determine who sees it. A Vigilant Solutions user manual spells out in detail how agencies can limit access to their data..."

San Diego's ALPR database is fed by a network of cameras which record images plus the date, time and GPS location of the cars that pass by them. So, the associated metadata for each database record probably includes the license plate number, license plate state, vehicle owner, GPS location, travel direction, date and time, road/street/highway name or number, and the LPR device ID number.

Information about San Diego's ALPR activities became public after a data request from the Electronic Frontier Foundation (EFF), a digital privacy organization. ALPRs are a popular tool, and were used in about 38 states in 2014. Typically, the surveillance collects data about both criminals and innocent drivers.

Images of ALPR devices mounted on unmarked patrol cars. Click to view larger version There are several valid applications: find stolen vehicles, find stolen license plates, find wanted vehicles (e.g., abductions), execute search warrants, find parolees, and find wanted parolees. Some ALPR devices are stationary (e.g., mounted on street lights), while others are mounted on (marked and unmarked) patrol cars. Both deployments scan moving vehicles, while the latter also facilitates the scanning of parked vehicles.

Earlier this year, the EFF issued hundreds of similar requests across the country to learn how law enforcement currently uses ALPR technology. The ALPR training manual for the Elk Grove, Illinois PD listed the data archival policies for several states: New Jersey - 5 years, Vermont - 18 months, Utah - 9 months,  Minnesota - 48 hours, Arkansas - 150 days, New Hampshire - not allowed, and California - no set time. The document also stated that more than "50 million captures" are added each month to the Vigilant database. And, the Elk Grove PD seems to broadly share its ALPR data with other police departments and agencies.

The SDPD website includes a "License Plate Recognition: Procedures" document (Adobe PDF), dated May 2015, which describes its ALPR usage and policies:

"The legitimate law enforcement purposes of LPR systems include the following: 1) Locating stolen, wanted, or subject of investigation vehicles; 2) Locating witnesses and victims of a violent crime; 3) Locating missing or abducted children and at risk individuals.

LPR Strategies: 1) LPR equipped vehicles should be deployed as frequently as possible to maximize the utilization of the system; 2) Regular operation of LPR should be considered as a force multiplying extension of an officer’s regular patrol efforts to observe and detect vehicles of interest and specific wanted vehicles; 3) LPR may be legitimately used to collect data that is within public view, but should not be used to gather intelligence of First Amendment activities; 4) Reasonable suspicion or probable cause is not required for the operation of LPR equipment; 5) Use of LPR equipped cars to conduct license plate canvasses and grid searches is encouraged, particularly for major crimes or incidents as well as areas that are experiencing any type of crime series... LPR data will be retained for a period of one year from the time the LPR record was captured by the LPR device..."

The document does not describe its data security methods to protect this sensitive information from breaches, hacks, and unauthorized access. Perhaps most importantly, the 2015 SDPD document describes the data sharing policy:

"Law enforcement officers shall not share LPR data with commercial or private entities or individuals. However, law enforcement officers may disseminate LPR data to government entities with an authorized law enforcement or public safety purpose for access to such data."

However, the Voice of San Diego reported:

"A memorandum of understanding between SDPD and Vigilant stipulates that each agency retains ownership of its data, and can take steps to determine who sees it. A Vigilant Solutions user manual spells out in detail how agencies can limit access to their data... SDPD’s sharing doesn’t stop at Border Patrol. The list of agencies with near immediate access to the travel habits of San Diegans includes law enforcement partners you might expect, like the Carlsbad Police Department – with which SDPD has for years shared license plate reader data, through a countywide arrangement overseen by SANDAG – but also obscure agencies like the police department in Meigs, Georgia, population 1,038, and a private group that is not itself a police department, the Missouri Police Chiefs Association..."

So, the accuracy of the 2015 document is questionable, it it isn't already obsolete. Moreover, what's really critical are the data retention and sharing policies by Vigilant and other agencies.


Medicare Scams Still Operate. How To Avoid Getting Your Identity Information Stolen

To minimize fraud, the new Medicare cards display a unique 11-digit identification number instead of patients' Social Security numbers. However, scammers have created a new tactic to trick patients into revealing their sensitive Medicare information. The Oregon Department of Justice warned:

"If someone calls and asks you for your personal information, money to activate the new card, or threatens to cancel your Medicare benefits if you don’t share your personal information, just hang up! It is a scam," said Attorney General Ellen Rosenblum.

Medicare will not call you nor ask for your Social Security number or bank information. That's good advice for patients nationwide. Experts estimate that Medicare loses about $60 billion yearly to con artists via a variety of scams.

Oregon residents suspecting healthcare fraud or wanting to report scammers, should contact Oregon's Department of Justice’s Consumer Protection (hotline: 1-877-877-9392 or www.oregonconsumer.gov). Consumers in other states should contact their state's attorney general, and/or report suspected fraud directly to Medicare.

The video below from 2017 includes advice about how patients should protect their Medicare cards.


Connecticut And Federal Regulators Announce $1.3 Million Settlement With Substance Abuse Healthcare Provider

Connecticut and federal regulators recently announced a settlement agreement to resolve allegations that New Era Rehabilitation Center (New Era), operating in New Haven and Bridgeport, submitted false claims to both state and federal healthcare programs. The office of George Jepsen, Connecticut Attorney General, announced that New Era:

"... and its co-founders and owners – Dr. Ebenezer Kolade and Dr. Christina Kolade – are enrolled as providers in the Connecticut Medical Assistance Program (CMAP), which includes the state's Medicaid program. As part of their practice, they provide methadone treatment services for patients dealing with opioid addiction. Most of their patients are CMAP beneficiaries.

During the relevant time period, CMAP reimbursed methadone clinics by paying a weekly bundled rate that included all of the services associated with methadone maintenance, including the patient's doses of methadone; the initial intake evaluation; a physical examination; periodic drug testing; and individual, group and family drug counseling... The state and federal governments alleged that, from October 2009 to November 2013, New Era and the Kolades engaged in a pattern and practice of billing CMAP weekly for the methadone bundled service rate and then also submitting a separate claim to the CMAP for virtually every drug counseling session provided to clients by using a billing code for outpatient psychotherapy. The state and federal governments further alleged that those psychotherapy sessions were actually the drug counseling sessions already included and reimbursed through the bundled rate."

These actions were part of the State of Connecticut's Inter-agency Fraud Task Force created in 2013 to investigate and prosecute healthcare fraud. The joint investigation included the Connecticut AT's office, the office of Connecticut U.S. Attorney John H. Durham, and the U.S. Health and Human Services, Office of Inspector General – Office of Investigations.

Connecticut Fight Fraud logo Terms of the settlement agreement require NERC to pay $1,378,533 in settlement funds. Of that amount, $881,945 will be returned to CMAP.

Connecticut residents suspecting healthcare fraud or abuse should contact the Attorney General’s Antitrust and Government Program Fraud Department (phone at 860-808-5040, or email at ag.fraud@ct.gov), or the Department of Social Services fraud (hotline at 1-800-842-2155, online at www.ct.gov/dss/reportingfraud, or email at providerfraud.dss@ct.gov). Residents in other states can contact their state's attorney general's office.


Oakland Law Mandates 'Technology Impact Reports' By Local Government Agencies Before Purchasing Surveillance Equipment

Popular tools used by law enforcement include stingrays, fake cellular phone towers, and automated license plate readers (ALPRs) to track the movements of persons. Historically, the technologies have often been deployed without notice to track both the bad guys (e.g., criminals and suspects) and innocent citizens.

To better balance the privacy needs of citizens versus the surveillance needs of law enforcement, some areas are implementing new laws. The East Bay Times reported about a new law in Oakland:

"... introduced at Tuesday’s city council meeting, creates a public approval process for surveillance technologies used by the city. The rules also lay a groundwork for the City Council to decide whether the benefits of using the technology outweigh the cost to people’s privacy. Berkeley and Davis have passed similar ordinances this year.

However, Oakland’s ordinance is unlike any other in the nation in that it requires any city department that wants to purchase or use the surveillance technology to submit a "technology impact report" to the city’s Privacy Advisory Commission, creating a “standardized public format” for technologies to be evaluated and approved... city departments must also submit a “surveillance use policy” to the Privacy Advisory Commission for consideration. The approved policy must be adopted by the City Council before the equipment is to be used..."

Reportedly, the city council will review the ordinance a second time before final passage.

The Northern California chapter of the American Civil Liberties Union (ACLU) discussed the problem, the need for transparency, and legislative actions:

"Public safety in the digital era must include transparency and accountability... the ACLU of California and a diverse coalition of civil rights and civil liberties groups support SB 1186, a bill that helps restores power at the local level and makes sure local voices are heard... the use of surveillance technology harms all Californians and disparately harms people of color, immigrants, and political activists... The Oakland Police Department concentrated their use of license plate readers in low income and minority neighborhoods... Across the state, residents are fighting to take back ownership of their neighborhoods... Earlier this year, Alameda, Culver City, and San Pablo rejected license plate reader proposals after hearing about the Immigration & Customs Enforcement (ICE) data [sharing] deal. Communities are enacting ordinances that require transparency, oversight, and accountability for all surveillance technologies. In 2016, Santa Clara County, California passed a groundbreaking ordinance that has been used to scrutinize multiple surveillance technologies in the past year... SB 1186 helps enhance public safety by safeguarding local power and ensuring transparency, accountability... SB 1186 covers the broad array of surveillance technologies used by police, including drones, social media surveillance software, and automated license plate readers. The bill also anticipates – and covers – AI-powered predictive policing systems on the rise today... Without oversight, the sensitive information collected by local governments about our private lives feeds databases that are ripe for abuse by the federal government. This is not a hypothetical threat – earlier this year, ICE announced it had obtained access to a nationwide database of location information collected using license plate readers – potentially sweeping in the 100+ California communities that use this technology. Many residents may not be aware their localities also share their information with fusion centers, federal-state intelligence warehouses that collect and disseminate surveillance data from all levels of government.

Statewide legislation can build on the nationwide Community Control Over Police Surveillance (CCOPS) movement, a reform effort spearheaded by 17 organizations, including the ACLU, that puts local residents and elected officials in charge of decisions about surveillance technology. If passed in its current form, SB 1186 would help protect Californians from intrusive, discriminatory, and unaccountable deployment of law enforcement surveillance technology."

Is there similar legislation in your state?


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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