A Seattle agency and a website dedicated to publishing documents acquired through public records requests are now locked in a legal battle with a company that provides the city with smart electric meters.
Landis+Gyr, a multinational corporation owned by Toshiba, filed a civil suit against MuckRock.com and Seattle City Light last week, alleging that the city utility department mistakenly released a series of documents to the website containing sensitive information about the company’s business practices and the city’s networks. The company recently succeeded in persuading a judge to issue a temporary restraining order in the case, compelling MuckRock to pull the documents offline and barring the city from giving the site additional records related to the company.
Nevertheless, the battle over these documents is likely far from over, considering the myriad cybersecurity, privacy and First Amendment issues at play.
“We help people file public records requests, it’s something we’ve done tens of thousands of times without too many incidents, and it’s very surprising to see a private entity claim that they have the legal right to force a news organization to remove information that was legally obtained,” Michael Morisy, MuckRock’s co-founder, told StateScoop.
Morisy said the request in question came from Phil Mocek, who used the site’s services to ask the city utility for plans and policies involving the security of internet-connected smart meters, which localities are increasingly using to better track how citizens use electricity. The city released some documents detailing the network security of the system, as well as redacted versions of Landis+Gyr’s contract with Seattle.
But when Mocek, a Seattle resident interested in privacy issues, asked the city to remove “only what you are required to redact,” the city told the company that it planned to release those documents in full and Landis+Gyr went to court. A company spokesman declined to comment on the suit, but in its complaint, the company’s lawyers charge the unredacted documents contain “valuable information about plaintiffs’ pricing models, as well as proprietary and confidential network systems, technology and research data that could not be obtained by other means.”
Not only does the company believe the release of that information would cripple its ability to compete in the market in the future, but it alleges that the city erroneously released information about the security of the company’s networks, as it could fall “into the hands of plaintiffs’ competitors and bad actors who would exploit plaintiffs’ network security information to penetrate protected computer and utility networks.”
Accordingly, Landis+Gyr asks the court to compel MuckRock to permanently remove the documents, and tell the company who viewed them when they were online. The company is also hoping to recover money damages from Mocek and MuckRock.
Scott Thomsen, a spokesman for Seattle City Light, told StateScoop that they plan to “abide by the judge’s ruling” in the case, but wouldn’t elaborate on whether the agency believes the initial documents it released pose any security risk or if they were released in error.
Toby Nixon, president of the nonprofit Washington Coalition for Open Government, thinks it’s “likely” that the city made a mistake in releasing that information, since the state’s public records law provides for exemptions to protect network security.
While he said “this kind of information ought to be accessible to the public,” he also worries that strong statutory protections against the release of a company’s “trade secrets” through public records requests could keep the documents under wraps.
Yet Eric David, an attorney specializing in First Amendment law with the firm Brooks Pierce, said MuckRock has a stronger case, particularly when it comes to Landis+Gyr’s assertion that the release of the information would hurt their business.
“Companies regularly, in my experience, think their stuff is a trade secret, when it’s really not,” David said. “It might be confidential, it might be uncomfortable that it comes out, it might put them at a competitive disadvantage, but that doesn’t make it a trade secret under most state laws. … There’s always a risk when you bid for government contracts that some aspects of your business model could become public, and these companies know that.”
David is also skeptical that MuckRock deserves to be a party in the suit. Mocek and MuckRock lawfully requested documents and received them, he said, adding he believes a variety of Supreme Court precedents protect them from legal retribution.
“The remedy is against the party that released the documents, it’s not against the website,” David said. “If the company wants to sue the government for money damages or for ruining their business for releasing the documents, then go for it.”
But even suing the government to keep the documents confidential might prove ineffective, David noted, since “the cat’s out of the bag” — several people have already mirrored the documents elsewhere online.
Shankar Narayan, legislative director for the American Civil Liberties Union of Washington, thinks that’s for the best, since he feels “Seattle needs to have a more public debate around the adoption of smart meters.” While he acknowledges that documents may indeed contain trade secrets, he hopes that the two sides can arrive at some sort of compromise so that more information makes it into the public forum surrounding how the government uses the technology.
“It’s a question of data security, and of privacy, since these can paint a really detailed and granular picture of what people are doing in the privacy of their own homes,” Narayan said. “The company touts the benefits without mentioning the downsides, and they don’t have the right to simply shut away this information. They can talk about it in broad terms.”
Moving forward, David is bullish on MuckRock and Seattle’s standing in the case in general — he believes the judge’s initial ruling to remove the documents was merely indicative of the court being cautious in the “short term” while the case is adjudicated — but he’s concerned about its broader effect on the media.
“You don’t want to disincentivize companies doing innovative things from contracting with the government … but it’s a troubling precedent to go down that road,” David said. “These are hard calls for news organizations to make, because you want to stand on your principles, but you don’t want to bankrupt yourself.”
Morisy said he’s been able to retain the legal services of the open internet advocates at the Electronic Frontier Foundation to navigate these issues, and they plan to file a response to the suit in the next few weeks to make their arguments clear.
“When you’re doing business with public entities, the public has a right to know,” Morisy said. “I’d imagine as a smart metering company, most of the work you do is with municipalities, so you’d think that they’d have a legal team that understood that.”
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This post has been updated.