Category Archives: FOIA Lawsuits

FOIA Lawsuits, Journalist's Toolbox, Police Misconduct, Surveillance

SB-1421; When Will We Get The Records?

By Tracy Rosenberg (Oakland Privacy and The Aaron Swartz Day Police Surveillance Project)

SB 1421 isn’t perfect…But even with its limitations, the bill provides more law enforcement personnel transparency than has been possible in California for decades.

When then-governor Jerry Brown signed Senate Bill 1421 in October of 2018, police misconduct records were expected to start flowing on January 1.

That isn’t what’s happened, although small quantities of records have started to come out from certain cities, including Burlingame, Oakland and Berkeley.

To recap, SB 1421, one in a long line of bills that for more than a decade have tried to crack open California’s restrictive police officer’s bill of rights, turned records of investigations and discipline after incidents of lethal force or sustained incidents of sexual assault, evidence planting or lying, into public records that could be gotten with a public records request.

SB 1421 isn’t perfect. It freezes records when there are internal investigations going on and when lawsuits are in progress, which can cause lengthy delays before there is public transparency. And in cases where sexual assault, perjury and evidence-planting allegations aren’t sustained internally or in a court, records will still be sealed. But even with its limitations, the bill provides more law enforcement personnel transparency than has been possible in California for decades.

Even this modest of a change was met with outrage and rebellion by many of the state’s police unions, which have relied on the obscurity of misconduct proceedings to protect member cops from accountability for the crimes they commit.

Police unions ran into court all over California, asking for stays and injunctions in San Bernardino County, Ventura County, Los Angeles, Orange County and in Contra Costa County. Because you can’t unrelease a record after it has already been released, the courts have had to issue temporary stays while considering the issue, but at the now four courts where the cases have been fully argued, Contra Costa, LA, and now Orange County and San Diego, the police unions have lost big.

Arguing that cops involved in lethal incidents or caught lying and/or planting evidence relied on their investigative hearings hidden from view has drawn skepticism from judges, who have continued to insist that the public’s right to know outweighs the police right to hide and that illegal and criminal behavior from the police is not protected behavior that the State should help to conceal.

All the lower court rulings have been appealed, so there will be a few more months of legal jousting, but in the end, the records are going to flow. At least the ones that are left, since a few enterprising police unions have been convincing their City Councils to revise document retention protocols in order to pitch them. The first and second district of the Court of Appeals have upheld the lower court decisions releasing misconduct records and the California Supreme Court has resisted every request to intervene so so far it is public records 6, police unions 0. Those results are expected to be the same in any further legal suits.

For more background on SB-1421, here are a few references:

  1. SB-1421 Peace officers: release of records. (California Legislative Information Page) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1421

  2. ACLU Northern California: Lifting the Veil of Secrecy: Police Misconduct & Use of Force (SB 1421) Author: Sen. Nancy Skinner (D-Berkeley) https://www.aclunc.org/our-work/legislation/lifting-veil-secrecy-police-misconduct-use-force-sb-1421

  3. KQED’s California Report, January 2, 2019: State Supreme Court Denies Attempt to Block New Access to Police Misconduct, Shooting Records https://www.kqed.org/news/11715442/state-supreme-court-denies-attempt-to-block-new-access-to-police-misconduct-shooting-records

Aaron's FOIA Requests, FOIA Lawsuits, Raw Thought at The DNA Lounge, The Week In Aaron Swartz Day-Land

The (last couple) Weeks In Aaron Swartz Day-Land-January 23 2019

Here are the last few weeks of links to catch you up on recent developments in Aaron Swartz Day-land:

1) Aaron’s PACER Project Explained – A clip from Brian Knappenberger’s The Internet’s Own Boy (completely transcribed), which explains the details behind Aaron’s famous PACER Project. We once thought this was the first thing to put Aaron on the FBI’s radar, but now we know that he was scooped up in an FBI phishing expedition as far back as 2007. (Thanks to a lawsuit by Property of the People  – see #3 of this list.)

Barrett Brown and Aaron Swartz Exchanged Emails and worked on a FOIA project together

2) Aaron Collaborated with Barrett Brown on “Persona Management” FOIA Request – Aaron filed a FOIA request – and received a document back from it – in 2011. Read the full story.

 

3) “Property of the People” Lawsuit Proves Aaron Was Scooped Up In An FBI Investigation Back In 2007 – Aaron had been erroneously swept up in a 2007 terrorist investigation that, most likely, caused law enforcement agencies (FBI, DOJ) to treat him with rougher hands during its subsequent encounters with him afterwards.

4) A few words with Mochipet, who performed at Raw Thought On January 11th at the DNA Lounge – A Tale Of Modular Synthesizers – Another Open Source Success Story – Mochipet is a modular synthesizer aficionado and he explains how the German company Doepfer’s decision to make their specs open has led to a flourishing of musical culture that would otherwise have been impossible.

5) Just announced! Raw Thought @DNA Lounge for March 8th! TICKETS – FOIA & ASD PSP Raw Thought Salon from 7-9pm – music starts at 9 :)

To be clear: It’s two events in one – if you get there early enough (between 7-8:30pm) to learn about Police Surveillance and filing public records requests, great! If not, no biggie, just grab a drink and join the party.

Come to Raw Thought on March 8th (from 9pm-2am) & see Grumpy Green‘s super special Psychedelic Chill Room (an immersive space for both dancing & chilling).

DJs include: Melotronix, Tha Spyryt, Ailz, & Cain MacWitish – with visuals by Projekt Seahorse – all at our March 8th Raw Thought at the DNA Lounge in San Francisco!       TICKETS

 

 

FOIA Lawsuits, History

“Property of the People” Lawsuit Proves Aaron Was Scooped Up In An FBI Investigation Back In 2007

We will be discussing this lawsuit and the Aaron Swartz Day Police Surveillance Project in general (its templates, latest results from Sacramento & other cities in California) at this month’s Raw Thought Salon on March 8th – from 7-9pm.

Then stay from 9pm-2am to dance and hang out in Grumpy Green’s super special Psychedelic Chill Room (an immersive art installation).

DJs include: Melotronix, Tha Spyryt, Ailz, & Cain MacWitish – with visuals by Projekt Seahorse – March 8th Raw Thought at the DNA Lounge in San Francisco! TICKETS

 

By Lisa Rein

A “Property of the People” Freedom of Information Act (FOIA) lawsuit has obtained documents proving that Aaron was scooped up in an FBI investigation as far back as 2007, even before the PACER project, in 2008. (Previously we thought the PACER project was the first time the FBI had concerned itself with Aaron.)

Aaron had been erroneously swept up in a 2007 terrorist investigation that, most likely, caused law enforcement agencies (FBI, DOJ) to treat him with rougher hands during its subsequent encounters with him afterwards.

His email was only scooped up because the Feds were probably using National Security Letters (NSLs) to get all of a University Department’s email headers, in bulk, from a computer science department that Aaron had emailed. (More on NSL’s here.) Long story short they enable the FBI to demand information from entities without court approval. (No warrants. No judicial oversight.)

Here’s the article by Dell Cameron for Gizmodo: https://gizmodo.com/fbi-secretly-collected-data-on-aaron-swartz-earlier-tha-1831076900

Highlights from the two documents are displayed below): (1) (2) These documents show the information that the FBI had in its database about Aaron, way back in February of 2007:

 

 

 

 

 

 

 

 

 

 

This document is from November 4, 2008:

 

 

 

 

 

 

 

 

 

From the Article:

How specifically the FBI came to possess Swartz’s email data remains unclear.

But after reviewing the document and other related files, several legal experts told Gizmodo the most likely explanation was that the FBI had used a National Security Letter (NSL), a ubiquitous tool for obtaining email header data at the time. An NSL would have enabled federal agents to demand access to the data and then impose a gag order to maintain secrecy around the investigation, all without a judge’s approval.

Authorized under the Stored Communications Act, in cases of suspected terrorism or espionage, these letters enable the FBI to seize a variety of electronic records under its own authority. While agents cannot use an NSL to acquire the contents of an email message, the FBI’s notes appear to show that, in Swartz’s case, it sought only “email headers,” data the FBI would argue falls well within the scope of its power to seize.

NSL Letters are over reaching, post-911 creations that we’ve all learned a lot about these last few years because Brewster Kahle at the Internet Archive went public with his experience with them, and then he worked with the ACLU and the EFF to challenge NSLs as being unconstitutional. Here’s a great story about it by Richard Koman for ZDNet, where Brewster Kahle offers a cookbook for fighting security letters:

Just talked to Brewster Kahle at the Internet Archive about their successful settlement with the FBI of a lawsuit over a National Security Letter. The FBI had demanded personal information on a user; the Archive replied with a lawsuit challenging the propriety of the NSL.

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We will be discussing this lawsuit and the Aaron Swartz Day Police Surveillance Project in general (its templates, latest results from Sacramento & other cities in California) at this month’s Raw Thought Salon on March 8th – from 7-9pm.

Then stay from 9pm-2am to dance and hang out in Grumpy Green’s super special Psychedelic Chill Room (an immersive space for both dancing & chilling).

DJs include: Melotronix, Tha Spyryt, Ailz, & Cain MacWitish – with visuals by Projekt Seahorse – all at our March 8th Raw Thought at the DNA Lounge in San Francisco! TICKETS