Last summer, MIT tried (weakly) to defend what it called its “neutral” stance on Aaron Swartz, allowing the case to proceed even though the only party that had a legitimate claim to “harm,” JSTOR, had come out almost immediately after Swartz’s indictment to say that it did not support the prosecution. Around the same time, we noted that MIT was in the midst of a legal fight to block the release of Swartz’s Secret Service file. Some found this effort a bit odd — but the reasons are now becoming clear. An investigative report by the Boston Globe, scouring 7,000 pages of discovery documents in the case, found that some employees at MIT appeared to gleefully support going after Swartz with all of the powers of the DOJ.

In a handful of e-mails, individual MIT employees involved in the case aired sentiments that were far from neutral. One, for example, gushed to prosecutor Stephen P. Heymann about the quality of the indictment of Swartz.

“Nicely done Steve and kudos! All points . . . are as accurate as I’ve ever seen,” wrote the information technology employee. “(I only say that because every time I’ve ever given an interview, details are always slightly to horribly munged; not that I ever expected any less, it’s just a true relief and very refreshing to see your accuracy and precision).”

Elsewhere, it becomes clear that MIT helped escalate the case when calling in law enforcement. The Globe highlights a note taken by an MIT library staffer who noted that it was “now a federal case” and “All we provide is by choice — not subpoenaed.” Even more damning, a senior MIT network engineer basically seemed to think he was now working for the DOJ:

That cooperation with law enforcement also extended to a senior MIT network engineer who monitored traffic to and from Swartz’s laptop and appeared to be looking to Pickett for instructions. On Jan. 5, having collected 70 gigabytes of network traffic, he e-mailed the agent, “I was just wondering what the next step is.”

The documents also demonstrate that MIT employees “prodded JSTOR to get answers for prosecutors more quickly — before a subpoena had been issued.” That hardly seems “neutral.”

The report also notes that MIT — as admitted by an internal investigation — “paid little attention to the details of the charge” including the key fact that the CFAA charge depended on this being “unauthorized access.” However, since MIT’s network was wide open to guests, it was hard to say that it was unauthorized. Yet MIT did little to explain that to prosecutors.

The report also delves into JSTOR’s side of things, suggesting that, contrary to its public stance, before Swartz was revealed, it too was pretty angry (often at MIT) and considered calling in law enforcement repeatedly. However, in the end it appears that cooler heads prevailed there, as the organization decided not to pursue those actions. If only the same had happened at MIT.

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Last week, we wrote that actress Cindy Lee Garcia had filed a motion for contempt against Google. If you don’t recall, a few weeks ago, Garcia had (astoundingly) won her appeal to have the Innocence of Muslims 13-minute trailer removed from YouTube based on Judge Alex Kozinski’s extremely novel interpretation of copyright law, in which the actress who is in 5 seconds of the “film” was given a copyright interest in her scene (something that even the Copyright Office has rejected).

The filing for contempt was bizarre on many levels, mainly stemming from Judge Kozinski’s bizarre order in the first place, which clearly went beyond the bounds of what copyright law says. However, Garcia and her lawyer, Chris Armenta, sought to portray a Google that was consistently thumbing its nose at the ruling, leaving many copies of the video online, and barely doing anything to take them down. At one point, in the contempt motion, Armenta suggested that Google really ought to just “hire an intern” to search for the movie and keep on blocking new copies. In response to the filing, the 9th Circuit gave Google 72 hours to respond (and a limit of 2,500 words). Over the weekend Google filed its response and it’s fairly incredible in its own right, in that you can feel the exasperation of Google’s lawyers in having to respond to what they believe is an almost entirely bogus filing from Garcia.

We will not mince words: These allegations are false. To Google’s knowledge, there are no copies of “Innocence of Muslims” available on YouTube, nor were there when Garcia filed her motion. And Google has worked diligently to comply with the Court’s injunction. It has blocked every copy of the video that it has found through automated and manual searches.

As for the claim that it should just “hire an intern” Google points out that it has already done a hell of a lot more than that with more than 20 dedicated employees basically focused on the issue of keeping this movie off YouTube. The companies notes that it can’t just use Google’s famed (or infamous) ContentID program, because that’s based on actual copyright law, not Kozinski’s wacky interpretation of copyright law, and thus would do things like alert users and allow them to file counternotices. But since that’s not allowed under the court order, it has had to manually adjust its process. And that has taken much more than “an intern.”

And it worked under tremendous time pressure to develop a new method—one that combines automated screening technology and manual review—to identify and block new uploads. YouTube was forced to take that unprecedented, technically complicated step because removal through its existing automated system would trigger a chain of events inconsistent with the Court’s orders.

This work is substantial and ongoing, requiring significant commitment by the companies. At least 20 Google and YouTube employees have worked to ensure compliance, and they have collectively dedicated hundreds of hours to the task.

The company notes that for all of Garcia’s talk of “flagrant” defiance of the order, she names just one copy of the video that she was able to find on YouTube, and Google notes that, as part of the ongoing process it described above, that copy of the video (which had a grand total of 35 views) was actually removed from YouTube before Garcia even filed the contempt motion. Google even gives some details about how its automated systems scan through all of the videos being uploaded to find these things.

YouTube’s search algorithm gives highest priority to videos with a significant number of views… That means that some videos with minimal views that were uploaded before the Court’s injunction, and not found through manual searches, may be in the scanning queue before they can be identified.

That appears to be the case with the lone copy Garcia identifies in her motion…. That copy had approximately 35 total views, and YouTube’s automated system queued it for review behind videos with more views…. The system identified the video on the same day Garcia located it— indeed, before she brought it to Google’s attention…. And YouTube blocked it before Garcia filed her motion.

Once again, the frustration at Garcia’s flippant suggestion that it was easy to block this video comes through in the filing:

Garcia suggests that making “Innocence of Muslims” disappear is a “pedestrian, technical exercise” that can be accomplished instantaneously…. But that suggestion reflects a deep lack of technical understanding and vastly underestimates the burdens involved in complying with a sweeping take-down, stay-down order on dynamic platforms.

As for Garcia’s argument that the big bad Google is trying to dump the entire burden of finding new copies of the video on poor little Cindy Lee Garcia, Google feels quite differently:

The Court will search Garcia’s email attachments in vain for proof of that assertion, because Garcia made it up. Google has never placed the burden on Garcia, but instead has told her— accurately—that “Google is taking this seriously and is working quite hard to comply with the Ninth Circuit’s order.” …. Google also offered to explain to Garcia’s counsel precisely what Google was doing to comply…. Garcia’s counsel did not take Google up on that offer. Instead, after dropping the issue of YouTube’s compliance for over two weeks, Garcia’s counsel suddenly announced she would file a contempt motion within 30 minutes…. In response, Google’s counsel urged Garcia’s counsel to identify any copies that had been the subject of notifications and that remained on YouTube so that they could be addressed…. Garcia’s counsel declined to identify any, but filed her motion anyway.

There’s also this little tidbit, in a footnote, after pointing out that nowhere does Garcia provide a list of URLs that Google ignored. Instead, they name the one which, as described above, Google had already found and removed, and then here and there suggest there are others, even though those were all removed long ago. Google points out that Garcia’s lawyers are clearly trying to mislead the court by not showing the context, nor providing a detailed list (which would actually show Google had removed all those copies), using quite a quote:

Notably, these URLs are scattered through her declarations; her motion neither mentions nor provides context for them. That is another reason to deny the motion. “ ‘Judges are not like pigs, hunting for truffles buried in the briefs.’ ” Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

Google also takes issue with Garcia’s claim that Google failed to “take down” the videos (as Kozinski’s order demands) but rather just disabled access to the videos. As we pointed out in our post, and Google points out here, the law actually says something different. But, more importantly, Google points out that fully deleting those videos would then create other legal problems:

Garcia complains about YouTube’s choice to block copies of “Innocence of Muslims,” rather than delete them altogether…. But the Court’s injunction does not require YouTube to “delete” copies. Instead, it directs YouTube to “take down” the copies. Feb. 28 Order at 2. And the phrase “tak[e] down” refers to a platform’s “disabling of access to, or removal of” allegedly infringing content. 17 U.S.C. § 512(g)(1) (emphasis added). YouTube has done just that. It has disabled worldwide access to “Innocence of Muslims”; no one can see the blocked copies…. Requiring deletion would turn the preliminary injunction into a de facto permanent injunction by leaving YouTube unable to restore the videos if it ultimately prevails…. The Court’s orders sensibly do not go so far.

Then there was the argument that Garcia made that via Google’s search engine, you could still be linked to copies of the video elsewhere. As Google points out, the injunction issued by Garcia only spoke about copies of the video on Google’s websites. And, again, the exasperation shines through as Google points out that Garcia’s main complaint seems to be that Google has not made the video disappear across the internet — but, the company notes, Google is not the internet.

Finally, Garcia complains that Google has not removed from its search engine links to third-party websites containing copies of the film…. But the Court’s injunction requires Google and YouTube to remove only “copies of” the video, not links to third-party sites that may lead to it…. And it requires Google to remove such copies only from “platforms under Google’s control,” not third-party websites….

Garcia’s fundamental complaint appears to be that “Innocence of Muslims” is still on the Internet. But Google and YouTube do not operate the Internet.

There’s also a discussion of how insane Garcia’s demand for money is, as she calculates how much she wants (incorrectly) based on copyright’s statutory damages number, but damages for contempt are limited to actual damages, not statutory damages from a different law. Furthermore, even if it was damages for copyright infringement, as we have pointed out plenty of times, the statutory damages are limited to infringement of a single work, not per copy, so at most Garcia would entitled to $150,000 — not $150,000 multiplied by every copy of Innocence of Muslims that ever was on Google. They also note that it’s particularly ridiculous to argue to multiply the statutory damages by copies of the video (basically all of them) that Google had already taken down.

Finally, in the filing, Garcia claims that Google is keeping the video up (which it’s not) to generate ad revenue. In our own comments on the original story, the guy Garcia hired to search Google to find these videos angrily insisted that this was entirely about “Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels. That is YouTube’s revenue model. It’s about money and business.” There’s just one big problem with this argument that it’s all about the revenue for Google, and Google points that out in a footnote:

Garcia says YouTube “continues to use the infringing content to generate * * * revenues[.]” …. Not so. YouTube took measures to avoid running ads against known copies of “Innocence of Muslims” in September 2012…. Garcia’s allegation that YouTube wants to keep the video up to make money is spurious.

Basically, Google manages to rip to shreds Garcia’s contempt motion — and to do so (somewhat amazingly) without also trashing Kozinski’s original order. I find it difficult to see how the Court can read these two motions and not realize that Garcia’s was completely frivolous, but considering that this is the court that found Garcia’s initially frivolous case legitimate in the first place, who knows what’s going to happen.

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It’s been nearly five years since we wrote about a DOJ investigation into collusive activity between a number of technology giants, in which the companies basically agreed not to poach employees from one another in an effort to keep salaries and employ… Continue reading →

The pressure is really building on the US and EU over the corporate sovereignty provisions in TAFTA/TTIP. As we reported back in January, the European Commission has put on hold the negotiations for the investor-state dispute settlement (ISDS) chapter while it conducts a public consultation on the subject. The USTR seemed to be trying to tough it out, but it has finally cracked and released what it calls “The Facts on Investor-State Dispute Settlement: Safeguarding the Public Interest and Protecting Investors” in an attempt to bolster support for the idea. Its mere existence shows that the USTR is worried about losing the ISDS argument in the court of public opinion, and the answers, many of which are misleading or downright wrong, confirm this. Here’s the rationale for releasing the document:

The USTR gives some context for corporate sovereignty provisions:

Although that seeks to give the impression that corporate sovereignty is absolutely standard and nothing to worry about, what it omits to mention is that the vast majority of those 3,200 trade agreements have been one-sided: they have been about rich, Western nations investing in poor developing ones. As such, ISDS has been a means for the former’s corporations to bully the latter, who are powerless to object, since they are desperate for foreign investment, and must accept the terms imposed on them.

Contrast this with TAFTA/TTIP. For the first time, a trade agreement between two massive economic powerhouses will involve corporate sovereignty. That means that US corporations will be able to sue the EU and its member states, but also that EU corporations will be able to sue the US. The scale of the threat is unprecedented: there are 75,000 cross-registered companies with subsidiaries in both the EU and the US that could launch ISDS attacks under TTIP. This is totally unlike any of those 3,200 trade agreements the USTR mentions.

There then follow the eight “facts you should know about ISDS provisions under U.S. trade agreements”. According to the USTR these:

So by its insistence on ISDS in TAFTA/TTIP, is the US saying that the EU does not offer “the same kinds of protections that are included in U.S. law”? Seriously?

Well, some people might beg to differ on the first claim there, but leaving that aside, the second claim is easily refuted. As Techdirt reported in October last year, the provincial government of Quebec in Canada is being sued over a moratorium on fracking it brought in to allow time for scientific studies of the potential impact. That was under the North American Free Trade Agreement (NAFTA), which includes ISDS, and is a clear case of environmental protection being threatened by corporate sovereignty.

Although that’s true, it misses the point, which is that the mere threat of being sued under ISDS causes governments to drop legislation before it is even introduced. Here, for example, is what happened in Canada under NAFTA in this regard:

The “facts” continue:

As well as confirming that ISDS tribunals are quite unnecessary, since US courts can be used instead, this overlooks the fact that the US has never had ISDS clauses in agreements with nations where large numbers of well-resourced corporations were able to take advantage of them. The EU has thousands of companies who can — and will — sue once they get the opportunity.

A year ago, we wrote about Eli Lilly suing Canada under NAFTA for “indirect expropriation” of future profits. That case hasn’t been adjudicated yet, but obviously some company lawyers think NAFTA does indeed allow challenges just because projected financial outcomes suffer.

If the US thinks its ideas are so good, it should publish them. After all, there’s nothing confidential there — what possible reason is there to discuss them behind closed doors?

These are more aspirations than “facts” The reality is very different, as is evident from the official United Nations Conference on Trade And Development (UNCTAD) report on the reforming corporate sovereignty chapters, published in June last year (pdf), which contradicts the USTR’s assertions that everything is just fine by noting:

As the above indicates, the USTR’s defense of corporate sovereignty is weak in the extreme. If these “facts” are the best it has got, it’s easy to see why ISDS is in such trouble and likely to be dropped from TAFTA/TTIP.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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This week, we applauded the ruling that blocked ASCAP’s requested rate hike and highlighted the collection society’s collusion with publishers to marginalize Pandora. Of course, some people still insist that innovative services like Pandora — the people working hardest to create a strong digital market for music — are just trying to withhold money from artists, and it was one such claim that prompted both of our most insightful comments of the week in response. First place goes to Karl for refuting the idea that Pandora pays less than more traditional distribution platforms:

Actually, it’s the Silicon Valley crowd acting as usual giving as little to the artists as possible. And before you raise the usual blather about the major record labels sharing only a small percentage, it’s dramatically larger than the percentage shared by the tech world.

Provably false. In fact, that’s part of what this lawsuit was all about.

The rates that Pandora paid (and, now, will continue to pay) are higher than the rates that traditional radio stations pay, for streaming on the Internet.

Pandora’s rate is 1.85%. IHeartRadio, run by Clear Channel (the owner of the majority of radio stations), pays just 1.7% for its Internet streams.

And as far as comparison with “the major record labels:” No, they do not share a “dramatically larger” percentage of their income. Pandora pays more than half their income to sound recording rights holders. Major labels pay around 15% of the income from records, to the artists (depending upon contract). And that’s only after the artists have paid back the recording costs, packaging costs, some of the marketing or video, etc.

So, no. Pandora pays a dramatically larger percentage to artists than any traditional label or publisher.

You’re lying, once again.

Not far behind, John Fenderson for further highlighting the absurdity of branding Pandora as the bad guys:

You mean the same Pandora that gives as little to the artists as possible by willingly agreeing to licensing terms that has them paying out more than other businesses in the same line of work are doing?

The same licensing terms that the content producers agreed to and then backed out of purely to destroy Pandora through illegal collusion?

You mean that Pandora?

For editor’s choice on the insightful side, we start out on another indirectly-related post that also, ultimately, revolves around the question of what music is “worth”. When musicians sue for figures like $52-billion, as Roland Chambers recently did, then, as That Anonymous Coward pointed out, they just expose how arbitrary (and ridiculous) the industry’s appraisal of music’s value really is:

Even with his insane math and presumptions, they are based on what has been claimed by each of the **AA’s on multiple occasions.

IP is our most valuable thing, in the minds of a few who only see dollar signs dancing because they made something that one time. While one could dismiss him outright for being out of his mind, this perfectly highlights the response we see time and time again. I made this and its worth kajillions that you owe to me, because I think its worth that much. You owe me, my heirs, my heirs heirs a living forever.

Creating is hard, but it does not entitle you to all of this. Until we can stop the insane thoughts from the other side, who lie and distort the truth, we will see more and more of these cases.

My only hope is that he used that awful Dash woman’s poem as a refrain and the 2 of them will be forced to do gladiatorial combat.

And, since there is a surprising dearth of NSA comments on this week’s leaderboards, we’ll close off the insightful side with a strong anonymous declaration in response to the lack of oversight at the NSA:

The NSA has betrayed the American people
If you’re afraid to conduct the business of the American people in full view of the American people, and if you’re afraid to be held accountable to the elected representatives of the American people, then you do not serve the American people. You serve yourselves. You’re not patriots. You’re not brave. You’re not upholding the Constitution. You’re not defending the country. You’re just indulging your vanity and self-importance delusions.

Over on the funny side, we start out on the not-so-funny story about a man who was arrested for possession of… “Scentsy” wax cube candle thingies that maybe kinda sorta looked like drugs at first. Bt Garner suggested that this might be a great opportunity for the brand:

Scentscy should come to this guy’s aid and turn this into a freaking genius PR campaign.

“Scentscy: So good it should be illegal.”

In second place on the funny side, we’ve got (slightly bizarre) a comment from hutcheson which compares and contrasts some American political values in the international sphere:

Why No Warning: Edmundovich Snowdenski Reveals All

Apparently Moscow was only planning to shoot people, not do anything really dastardly–like share music or video with them.

But it is not too late! Even now, all the power of the Obama administration can be harnessed! Call your lobbyist today! Tell him to get out the word: THE RUSSIAN SOLDIERS MAY BE LISTENING TO UNLICENCED MUSIC!

Speaking of Snowden and Russia, our first editor’s choice for funny goes to an anonymous comment responding to Rep. Rogers’ wild speculation that the former is to blame for the latter’s aggression against Ukraine:

I offer a counter speculation that may make a little more sense than Mike Rogers. Sometime in the future the NSA’s data harvesting reaches critical mass and becomes sentient, turning against the world and ushering in an era of machines. Snowden, leader of the human resistance is sent back in time to stop this from happening by revealing the secret data collection to the public in order to inspire change. However, the sentient NSA data collection learns of this plan and sends Mike Rogers back to discredit Snowden so that data collection can continue.

And, finally, we step away from all these messy topics to the would-be-purity of science — except that some senators are afraid about forcing researchers to disclose funding, because truth and lobbying rarely go well together. Baldaur Regis nicely summed up the broken thinking behind this affront to reason and rationalism:

The science of ‘full disclosure’ isn’t settled yet.

That’s all for this week, folks!

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For the most part, people seemed to like the idea of doing a weekly look back in history to take a glance at what we were writing about on Techdirt five, ten and fifteen years ago, so let’s keep it up. Five years ago: Once again, there were some simi… Continue reading →

Sure, sure, we live in a digital age and most of us carry around powerful smartphones and tablets. But there’s still just something about being able to write notes or draw that old-fashioned analog way. I’ve survived for many years with a (growing) pile of notebooks that seem to be given out at random conferences, but for folks who really want perfection out of their notebooks, rather than such a grab-bag approach, there seem to be a never-ending stream of different attempts on Kickstarter to reinvent the notebook. For this week’s awesome stuff post, we’ll explore three of them.

• First up, we’ve got Furrow Books — which may be the most straightforward of the bunch. The offer is two different sized basic plain notebooks using high quality paper. The main innovation are differently ruled inserts that you can slip into the notebook if you want to make use of lines (without using lined paper). Nothing fancy, but there’s something nice about simple and straightforward sometimes. There are a bunch of early bird $6 pocket-sized notebooks still available, but if you really like the notebooks, the packages that involve multiple notebooks are probably an even better deal. The overall project is a little over 50% funded with over a month to go, so it’s likely to surpass the goal pretty easily.
• Next up, we’ve got the somewhat pretentiously named Da Vinci Notebook (even worse, the “n” in “notebook” is a π in the video, so it reads πotebook — and, ick, in the description they feel the totally unnecessary need to put a ™ after it). The video itself is a little over the top as well, but none of that means the notebook itself isn’t pretty nice. The key innovation here is that the paper is a special kind of paper made from stone — which they claim is nicer to write on. They also claim it’s eco-friendly because there are no trees used, though I’m sure someone out there will ask about the poor stones. Because the paper is stone based, it also has the nice feature of being waterproof. For those of you who like to write underwater — or at least go swimming with your notebooks. The notebook is also designed so users can add or remove pages, easily, allowing them to insert different versions of the paper, including differently ruled paper, different templates or different sizes — such as a foldout page. The basic notebook apparently weighs about a pound, so this is a pretty hefty notebook. This project has already shot well past its $4,000 goal and with three and a half weeks left, it will likely be funded a few multiples of that number. The basic notebook will run you about $12, which may seem steep for a notebook, but remember, it’s made of freaking stone.
• Finally, we’ve got Writerase, which goes in a slightly different direction, by making a dry erase notebook. There have been a bunch of dry erase notebooks on Kickstarter over the years, but the concept is definitely pretty useful when done well. Rather than needing new notebooks all the time, you can just erase the stuff you no longer need. Writerase also comes with transparent paper that lets you write on top of other pages without messing them up (they use an example of drawing a calendar frame on one page, placing the transparent page above it and being able to mark up the calendar as necessary. People seem to really like this particular project, as it’s surpassed $25,000, well past its $6,500 target, with a week to go.

That’s it for this week. Go doodle in a notebook.

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Anne Rice appears to be taking a break from sexy rock and roll vampirism to take on a new form of monster: Amazon trolls. The author claims there’s a growing wave of “bullying and harassment” of authors going on in the Amazon books reviews section, and as such she’s started a new petition demanding that Amazon do something about it by eliminating anonymity entirely from user reviews. The move is necessary, Rice claims, because some people were once mean to her on the Internet when she was busy trying to help aspiring authors:

“Then the bullies, trolls, jerks, whatever you want to call them, found the thread. That’s when the attacks started happening. It got very ugly very fast … With each attack, Anne tried to diffuse the situation and out these people for what they are: bullies. Well, that just made them frenzy even more. Eventually, I left the thread. It got too ugly for me. Anne stuck it out for a while, but finally she called it quits, too.”

It sounds to me that Anne might be new to the Internet, and hasn’t quite learned yet that it’s unhealthy and pointless to spend too many calories battling (or feeding, as it were) the vitriolic troll hordes. Rice’s complaints also seem to falsely believe that said trolls have started targeting authors in particular, as opposed to them simply enjoying getting a rise out of her. The assumption seems to be that people would be nicer if they weren’t anonymous, which simply isn’t the case if you’ve spent any amount of time around the general public. In the petition however, Rice argues that killing anonymity can change everything for the better:

“By removing their anonymity and forcing them to display their real, verified identities, I believe that much of the harassment and bullying will cease. It may continue elsewhere on the web, but not on Amazon, the largest online retail marketplace in the world, where it really counts. Buyers of products on Amazon must have their identities verified, so it should be an easy transition to implement a policy whereby reviewers and forum participants must also have their identities verified.”

There’s a difference between Amazon needing better comment moderation (violence and the worst sort of miserable commentary being deleted more quickly, obviously) versus killing off anonymity in the belief it will somehow magically deliver elevated discourse. As we’ve long argued at great length, anonymity in online comments can actually benefit the website, community and the overall discourse immensely. For every “Hotstud77” making fun of your nose, there’s someone who is using a nom de plume to potentially add something useful to the conversation they might not have been able to anyway (a publisher or author that has something to add, for example, but doesn’t feel free to do so under their “brand” name).

Yes, opening your comments to the anonymous hordes results in lots of crazy comments, but it also results in plenty of excellent insight that might otherwise never see the light of day.

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How can you tell if an introduced bill is a bad piece of legislation? Well, there are several indicators to look for — overly broad language, written as a reaction to a recent tragedy — but when a bill is referred to as the “retaliation bill” by a large majority of the press, the problems are right there on the surface. (h/t to Techdirt reader Rekrul)

The Kansas legislature’s Committee on Corrections and Juvenile Justice recently introduced a bill with some very chilling implications for citizens.

The bill, titled “filing false complaints against a law enforcement officer,” was introduced in February by the Committee on Corrections and Juvenile Justice and moved quickly to the Taxation Committee before ending March 13 in the Committee for Transportation and Public Safety Budget. In its one-hour Tuesday hearing, according to the legislative research department, only one person spoke in favor of the bill while eight others, including legislators and the National Association for the Advancement of Colored People, spoke against it…

According to the bill, a complaint over a law enforcement officer that a department finds to be false “shall be closed immediately and the law enforcement agency shall seek criminal prosecution against the complaint for perjury.” All complaints would be submitted with a signed affidavit that included the time, date, place and nature of the offense. Current law requires that law enforcement departments review all complaints, whether anonymous or signed.

This bill, currently stalled, would make it a felony to file a false complaint against a police officer, something that used to be handled via civil litigation. And there would be no option for filing anonymous complaints, which would further discourage the reporting of alleged police misconduct.

In addition, officers would be allowed to view the complaint and any related evidence before making a statement, giving accused officers a chance to craft narratives before issuing statements that might be contradicted by the evidence submitted. The complaint’s lack of anonymity would give accused officers the name, address, phone number, etc. of their accuser, something that could easily lead to harassment. (Of course, law enforcement agencies could strip this information before presenting it to the accused officer [the bill contains no stipulation to do so], but how many here believe that would actually happen — or that the information couldn’t be accessed otherwise?)

Also problematic is the fact that the bill stipulates that “no other law enforcement agency” can open an investigation on a complaint if another agency has performed an investigation and found no evidence of wrongdoing. This would keep all investigations “in-house,” which greatly contributes to the likelihood that complaints will be found false (and subsequently, result in felony charges against the filer). This would prevent agencies like the FBI and DOJ from investigating closed complaints to see if anything was missed or covered up. This stipulation would further insulate police from accountability.

The bill is so bad even the attorney for the local police union (the entity that usually works hard to restore bad cops to their former positions) found the wording somewhat problematic.

The one person who testified in favor of the bill Tuesday was Sean McCauley, an attorney for the Kansas chapter of the Fraternal Order of Police and the Kansas State Troopers Association. While he had reservations about allowing departments to pursue charges for unfounded or minor allegations, local FOP President Sgt. Tyson Meyers did see some value in the bill.

“I’d like to protect officers against false allegations,” he said, stating officers can be subject to administrative leave following a complaint or suffer from a tarnished reputation even if the allegation is proved to be false.

“At the same time, we should police our own and have the integrity to monitor our department.”

He also added that it was a bad idea to limit complaint investigations to one department, noting that previous investigations by outside agencies had led to the rooting out of bad cops who otherwise would have gone unpunished.

As it stands now, the bill is effectively dead. The coverage of the bill has been universally negative, and after its nearly one-sided showing during its floor appearance, no further discussions on the bill have been scheduled. The question remains as to why such a bill, loaded with negative side effects for the public, was ever introduced, as well as who exactly is behind it. The committee page lists several names, but the bill’s sponsor is the committee itself, rather than a certain legislator. Safety in numbers applies to bad legislation, it seems. The bill seeks to out anonymous complainants, but has been shepherded into the public forum by no one in particular.

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