Archive for February, 2010
Google’s liability in Italy
Google has just been held criminally liable in Italian court for video content it hosted.
This is a horrific outcome. Here’s why, against a backdrop of US law:
Newspapers in the US may be liable for libel in what they publish (under a strong pro-free-press standard, of course, established in NYTimes v. Sullivan). This makes sense: if a publication has actual control over the content it publishes, it can be understood to be “responsible” for that content in a legal sense.
But in the online realm, online publishers such as websites or ISPs (like Comcast) are granted immunity from libel liability under the Communications Decency Act (CDA) § 230. Again, this makes sense: if you’re Comcast or Google and some user posts libelous information online, there’s no guarantee you’ll even have seen the posting, let alone should be held responsible for it on a more theoretical level of understanding “authorship”.
This is about leaving the conduits for newsgathering and news distribution out of the legal fray– especially when they don’t have any real initial control over what’s being posted. Yes, this raises questions about who is, in fact, responsible– and runs up against problems when trying to identify defendants.
But if governments start requiring ISPs and OSPs to pre-screen for libelous or “privacy-invading” content, which is what Italy has done to Google, then the chilling effects on online speech will be HUGE.
And the chilling will take place on the level of distribution, which is even more problematic. An intermediary like Google has little legal incentive to stand up to a government on behalf of user speech, except for their own inconveniences in screening. What’s to stop a newly-liable Google or Comcast from running automated filters on speech to determine if it’s “private”, “libelous”, or otherwise illegal? (Isn’t this effectively what’s happened/is happening in the copyright realm?) These are nebulous legal terms that should be subject to legal interpretation, not mechanized filters.
Keeping intermediaries liability-free encourages them not to get involved with this kind of screening. Making them liable will drastically change the nature of online platforms as centers of information gathering and distribution.
Gaining Access to ICE’s Varick Detention Center
Posted by Steve in Blogosphere, first amendment, lamp, open access on February 13, 2010
Just wanted to flag a MFIA victory – journalist Jacqueline Stevens, who writes for the Nation, will be given a tour of the Varick Detention Center in NYC next week (ICE had denied her previous requests for access). Approval came a day after the ACLU and the New York Civil Liberties Union sent a letter to ICE on behalf of the Nation, the Nation Institute, and Ms. Stevens, requesting that Ms. Stevens be granted access to the center in accordance with ICE’s own regulations and First Amendment access principles. We here at the MFIA practicum helped gather the information and write the letter, so we’re all very excited about the recent developments.
This is an important step in better understanding what goes on in detention centers around the country. Check out more details here on Ms. Stevens’ blog.
The Nuts and Bolts of FOIA
I had the opportunity to spend some time this week summarizing the basics of FOIA, and thought that others might be interested as well. Best of luck in your FOIA requests!
FOIA Basics
As you might already know, the Federal Freedom of Information Act (FOIA) provides citizens with access to federal government documents. After making sure a FOIA request is necessary, such a request proceeds in three steps: filing the request; waiting for a response; and (if necessary) appealing the decision.
Before FOIA
It is always possible to make an informal request by telephone to government agencies requesting information. You can also contact the agency FOIA officer and informally ask for assistance. However, on sensitive subjects this is unlikely to be fruitful, and your legal rights under FOIA only are activated with a written request.
There are already a number of sources for public documents, including the Federal Register, Code of Federal Regulations, and agency websites. Since FOIA requests require that you be able to ‘reasonably describe’ the material you want, it may be useful to first check these sites for related information and to be able to explain why it does not suffice.
Filing a FOIA Request
A FOIA request can be made by crafting a simple letter to the government agency of interest. It should:
- Be addressed to the agency or subdivision in question, being as specific as possible. A list of government agency FOIA offices is here: http://www.justice.gov/oip/foiacontacts.htm.
- Be marked at the top, and on the envelope, as a FOIA request.
- List as specifically as possible the records which you are requesting
- Explain why you are requesting such documents, and what public interest they serve
- Explain why you might be entitled to a fee waiver (see below)
- Include your contact information
- Be photocopied and retained so that you have evidence the request was filed.
A sample letter is available here: http://www.nfoic.org/sample-foia-letters#foireq. Note that lower on the page is more detailed language about fee waivers.
Fees: The agency can request that you pay for the reasonable cost of reproducing the documents, unless you are entitled to a fee waiver. Search fees generally range from $11 to $28 per hour, while photocopying costs are normally between 3 and 25 cents per page. Non-commercial requesters generally receive two free hours of search time and 100 photocopied pages free.
The news media and academics are exempted from search fees; thus, working with an investigative journalist (including some experienced bloggers) or academic is one way to reduce costs. Individuals can also request a fee waiver based on the following criteria.
- The subject of the requested records concerns government operations and activities.
- The disclosure is likely to contribute to understanding of these operations or activities.
- Disclosure will likely result in public understanding of the subject.
- The contribution to public understanding of government operations or activities will be significant.
- The requester has a limited commercial interest in the disclosure.
- The public interest in disclosure is greater than the requester’s commercial interest.
It may be helpful to address these criteria in your initial request; otherwise the government may delay responding by requesting more information before deciding on the fee waiver. Agencies are generally more willing to grant fee waivers for more narrowly defined requests.
What Happens After You File?
The law requires that agencies respond to FOIA requests in 20 days, though federal agencies often ignore this deadline. Note that a simple response by the agency saying that it has received your request is not enough to meet the 20 day deadline.
A response can take one of several forms:
- The agency can provide the documents you request.
- The agency can respond that the documents are subject to an exemption which would preclude their release.
The agency can also ‘stop the clock’ once by requesting clarification from the applicant, or if there are ‘unusual or exceptional circumstances’ related to your request.
There are currently 9 exemptions for the release of government records:
1) National Security
2) Internal Agency Rules
3) Statutory Exemptions
4) Trade Secrets
5) Internal Agency Memo
6) Personal Privacy
7) Law Enforcement Records
8) Bank Reports
9) Oil and Gas Well Data
Common problems with FOIA requests include long delays in responses, high fees, and liberal use of the above exemptions to preclude the release of documents.
FOIA Appeals and Litigation
If an agency refuses to disclose information, or does not respond in a timely manner, you can appeal to the agency FOIA Officer. It is preferable to file within 30 working days of a denial. You can appeal the failure to release documents, the delay in response, the failure of the agency to conduct an adequate search, prohibitively high fees, or other matters that could effectively interfere with your ability to receive records. As with FOIA requests, these can be done be simple letter.
- You should state why you think the agency’s actions were wrong.
- If any exemptions were cited, you should explain why they do not apply.
- If applicable, you should also indicate your willingness to take the matter to court.
If you file an administrative appeal that is denied, or if your request is not responded to within 20 working days, you can then file a lawsuit in federal court. You may want to retain an attorney at this point. The Reporters Committee for Freedom of the Press has a sample complaint here which can be edited here: http://www.rcfp.org/foialetter/index.php?op=complaint.
One can also file a ‘Motion for Vaughn Index’, which asks the court to order the government to describe the information it is withholding and the reasons for doing so. Some courts require you to wait for the government to respond to your complaint before allowing such a motion. A sample is available here: http://www.rcfp.org/foialetter/index.php?op=vaughn.
Additional Resources
Much of this information was drawn from the Federal Open Government Guide put together by the Reporters Committee for Freedom of the Press: http://www.rcfp.org/fogg/index.php?. There is also a FOIA-letter-generating section of the website, though personal letters may be better received.
George Washington University’s National Security Archive also has a website on ‘FOIA Basics’: http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html. Their website also suggests that they undertake national security related FOIA litigation (though details are not yet available).
This website also provides links to a number of organizations which undertake FOIA litigation, though we cannot personally vouch for any of them: http://www.foiadvocates.com/links/index.html.
FOI Fee Fraud?
Posted by Adri in lamp, open access on February 4, 2010
The Globe has an interesting article up about the prohibitive costs of government records requests.
According to the story, one Boston reporter was given
an estimate of $6,600 by a large state agency in response to his requests to review the e-mails of several senior officials. The agency justified the price as the cost of finding the documents, printing them, and reviewing them for personal information that might be exempt from the public records law.
What’s the real purpose for these fees? Is it to recoup the cost of redaction, search, and print? It seems like it would be pretty easy to get around the print / redaction fees, at the very least, by providing the records in electronic format — if I were to be pushing for a legislative fix of an open records law, it would be to mandate electronic format whenever the record is available in digital form (as an email most certainly is) and requested in that format. Well, that and actual enforcement mechanisms.
But there’s no way that printing costs by themselves amount to over $6 thou; on its face, this looks more like brazen disregard for the purpose of the open records law. Perhaps another solution would be to require an itemized receipt – if. there’s some inefficiency driving up the costs of FOI, the requestor – and the public at large – should know about it
The article also brings up a point of general concern in the open records world, which is the increasing shift of the burden of the search onto the requestor. More and more, agencies are demanding that requestors “perfect” their requests by identifying the databases in which the records they seek are stored, or specifying the format (memorandum, report, correspondence) in which particular information is held. While the cost of searching government logs is not to be disregarded, we do have these things called computer keyword searches … and the solution certainly is not to create the circuitous situation in which the agency denies a request because of the lack of specific information in the public sphere.
Networking and Information Sharing
Posted by Betsy in lamp, open access on February 3, 2010
Hello from Betsy, new ISP fellow and blogger.
Perhaps this is old news, but I found this fascinating. A new Boston University study shows that the people with the largest social networks are not necessarily the best idea spreaders. Instead, the best ideas spreaders are those at strategically placed nodes, even if they are less well connected: http://www.technologyreview.com/blog/arxiv/24748/?ref=rss&a=f.
This seems to suggest that people at nodes accessing diverse networks may be better equipped to spread information than those well connected within a single network. Does this redefine the ‘key players’ for information-sharing, or how best to target advertising? Does it suggest yet another reason to value diversity in networks? Food for thought.
Free Speech, Meet Material Support Laws
The ABA Journal discusses what it calls “the U.S. Supreme Court’s first major test of whether the war on terrorism conflicts with the free speech principles of the First Amendment.” (…what took y’all so long?!)
“I am opposed to violence of all sorts. It seems crazy to me that I could go to jail for trying to persuade people to use nonviolent means to achieve their rights,” says Fertig, now 79 and president of the Los Angeles-based Humanitarian Law Project, a nonprofit human rights organization begun in 1985. Holder v. Humanitarian Law Project (click for briefs) is scheduled for oral argument on Feb. 23.
Stay tuned!
Say it ain’t so, Wikileaks!
It’s no secret that I’m wildly, terribly, and insanely in love with Wikileaks.
The controversial whistleblowing platform publishes anonymous submissions of governmental, corporate, and organizational documents, and is dedicated to exposing oppressive regimes and revealing unethical behavior. The great thing is that they’re actually good at it: they released the Standard Operating Procedures for Camp Delta at Guantanamo; Sarah Palin’s Yahoo! adventures to circumvent public records laws; Climate Research Unit emails; internal reports on toxic dumping in the Ivory Coast; Internet censorship lists from across the globe; telephone intercepts of Peru’s “Petrogate”…you name it, and they’ve got dirt on it. Everyone from Julius Baer to the Scientologists have tried to shut ‘em down — whoever they are — and their general badassery has always prevailed.
The Paypal-flaunting, UN-report-leaking, The Economist New Media Award-winning, military-grade-encrypted bastion of accountability, transparency, and all else that is good in this world has been brought to its knees by BUDGET CUTS.
Sigh…