Local Governments Are Letting Silicon Valley Skirt Public Disclosure Laws
Uber and Waze are following an example that was originally set by the surveillance industry.
Image: Matteo Gallo
The town of Altamonte, a small suburb of Orlando, is going to pay Uber at least $1 million in taxpayer money over the next year to subsidize residents' ridesharing trips. But should a journalist or concerned citizen want to learn more about the public transportation-replacing program, their public records request will ultimately end up in the hands of an Uber employee, who will decide whether or not the information is fit for public release.
It's unsettling that a city government will allow a private corporation to decide what can or can't be released under state public information laws, but such agreements are growing increasingly popular among both Silicon Valley companies and local governments, according to several Freedom of Information Act experts I've spoken with.
According to the Verge's Spencer Woodman, "Uber granted itself a privilege to field public records requests that the city receives regarding its partnership."
"In the event City receives a Public Record Law request for documents that Uber considers trade secret or otherwise confidential,' the agreement states, the city "agrees to promptly notify Uber of said request and shall not make an immediate disclosure."
Uber has a similar agreement in Boston (that we know of) and apparently both Uber and Lyft have one in San Francisco as well. (We have asked the city to provide us more information about those agreements.) Uber is likely seeking such arrangements in other cities around the country as Uber begins to transition from being a wholly private service to being one that, with taxpayer subsidization, could replace mass transit.
[If you know of any similar agreements between Silicon Valley companies and governments at any level, please email me: firstname.lastname@example.org.]
In Uber's agreement with Boston, for instance, the city must "notify Uber upon receipt of [a public record] request or lawsuit, so as to afford Uber the opportunity to take steps to prevent disclosure." Uber has agreed to pay for any legal costs the city might incur.
"If Uber is granting itself the privilege to decide for the city whether to comply with open records requests, this is unusual and alarming," Rick Claypool, research director at Public Citizen and author of a report about how Uber systematically undermines local democracy and sovereignty, told me.
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"This is one more instance of Uber using its disproportionate political power to discipline local governments into adopting policies that suit the company's demands while undermining the public interest," he added.
Such nondisclosure agreements didn't start with Uber, however. They started with surveillance technology companies. A 2014 American Civil Liberties Union lawsuit proved that Harris, the company that makes "Stingray" IMSI-catchers, which allow police to track cell phone users, was able to get many cities to sign nondisclosure agreements.
Read More: Uber's Drive-By Politics
"The City of Tucson shall not discuss, publish, release or disclose any information pertaining to the Products covered under this NDA to any third party individual," an agreement with Tucson, Arizona, read. "In the event that the city receives a public records request … the city will notify Harris of such a request and allow Harris to challenge any such request in court. The city will not take a position with respect to the release of such material, but will assist Harris in any such challenge."
Other companies are also asking local governments to alert them immediately if a city receives a Freedom of Information Act about their activities. Waze, which is owned by Google, has begun sharing information with 45 different cities in the United States through its "Connected Citizen Partners" program, but has asked cities to sign an agreement that is less strict but similar to Uber's.
Google's agreement with Arlington, Virginia, states that the city must "promptly (within 5 days) provide to Google a written notice specifying the details of the Public Records Request, including the requester's identity, the requested records, and the legal deadline to disclose the records." The city may disclose the records, but only if "Google does not obtain a court order enjoining the disclose."
One interesting thing to note here is that companies don't need an agreement to protect trade secrets. Trade secret exemptions are common in Freedom of Information laws at all levels of government. There are a smattering of different laws throughout the United States, but at a federal level, "trade secrets and commercial or financial information obtained from a person and privileged or confidential," are exempt from the Freedom of Information Act.
"If someone requests records that an entity claims is a trade secret, the government gives the owner of those secrets the chance to object to the disclosure, and the government then is supposed to weigh the secrecy interest against the public interest in disclosure," Claypool said.
Uber's agreements in Boston and in Florida go further than that, however, as does Harris's. But such agreements might not even be legal. Bob Gellman, a privacy and information consultant in Washington DC, told me that "an agency cannot contract away its FOIA responsibilities."
"A contract cannot amend a law," he said. "If the law has a requirement that is different than the contract, then the contract is not valid."
Why would a city ever agree to allow a private company to make its public record decisions? Quite simply, many cities face budget shortfalls that get them to look at outside contractors. Altamonte, for instance, turned to Uber after it lost Department of Transportation funding to create "demand responsive buses."
When a city or town in nowheresville gets the chance to align itself with a buzzy Silicon Valley startup, things like public record law compliance goes out the window.
"Smaller towns have a tendency to just rollover when a startup comes knocking because they are so, so desperate and underfunded and just want something to be able to tell constituents," Michael Morisy, founder of Muckrock, a nonprofit dedicated to making filing FOIA requests easier, told me. (Disclosure: Motherboard regularly works with Muckrock on articles and FOIA projects.)
Morisy said that journalists and citizens who regularly file FOI requests are stereotypically going to be crotchety about transparency and public malfeasance regardless of what local politicians do, so they don't often worry how a particular decision will be seen in those circles.
"The officials don't care if this stuff is secret as long as their constituents are happy, and the constituents filing requests aren't happy no matter what. So it's a win for Uber, win for officials, loss for public oversight and loss for the press," he said. "There's just not much motivation for most towns to push back on those kinds of stipulations, and the towns that do push back, Uber probably just passes on and moves to the next town."
Motherboard would very much like to learn more about Silicon Valley's nondisclosure agreements with local, state, and federal governments. If you know anything, please email me at email@example.com or DM me on Twitter @jason_koebler.