Law Librarian Blog

Following up on this LLB post that asks “Does WEXIS use legal search user data in their surveillance search platforms?,” Sarah Lamdan reports via email about what transpired at CRIV’s Vendor Roundtable on Sunday. Sarah reports that LexisNexis denied using legal search user data in their surveillance search platform and Bloomberg Law stated it doesn’t save user data. “Thomson Reuters/Westlaw was notably silent,” Sarah observed.

Not discussed at CRIV’s vendor roundtable Sunday was the thornier issue for librarian professional ethics, namely that these companies are bidding on and contracting with ICE for surveillance purposes. See Sarah’s Surveillance and Legal Research Providers: What You Need to Know. — Joe

As Sarah Lamdan has documented both Thomson Reuters and RELX are supplying search solutions for their compiled surveillance data to law enforcement agencies, including ICE. She has also called attention to the ethical issues information professionals face in light of this development.

One issue that affects law librarians who use WEXIS legal search services is the extent to which, if any, there is cross-pollination of usage data from WEXIS legal search platforms to their surveillance search platforms. One would think our WEXIS representatives would be able to answer one simple yes/no question — Does WEXIS use legal search user data in their surveillance search platforms?

Hopefully this question will be asked and answered straightforwardly at CRIV’s Vendor Roundtable Sunday. That assumes WEXIS will send company representatives to the roundtable to serve as participants, not just observers, and further assumes that WEXIS responses will not hide behind a “proprietary information” response.

This matter may lead to further investigations by CRIV and, perhaps may require AALL Executive Board involvement. This Sunday’s vendor roundtable may be one of the most interesting roundtables in recent memory.

CRIV Vendor Roundtable
Sunday, July 15
1:00 p.m.-2:00 p.m.
Hilton Key Ballroom 9

— Joe

By Sarah Lamdan

Legal research companies are selling surveillance data and services to law enforcement agencies including ICE. Their participation in government surveillance raises ethical questions about privacy, confidentiality and financial support: How private is your search history when your legal research vendors also sell surveillance data? Are you funding products that sell your patrons’ and clients’ data to ICE and other law enforcement agencies?

Historically, librarians have protected people from unwanted surveillance and safeguarded intellectual freedom. How do librarians uphold their privacy and intellectual freedom standards when they rely on surveillance companies for their research resources?

Thomson Reuters, RELX, and ICE Surveillance

Since September 11, 2001, permissive surveillance laws and improving data technology have created a huge market for big data policing products. Thomson Reuters and Reed Elsevier (now branded as RELX), the companies that own Westlaw and Lexis, are competing for contracts to supply troves of personal data and search technology to the government. Both companies have expanded their product lines to take advantage of lucrative surveillance opportunities. Since 2017, Thomson Reuters and RELX have bid on contracts to help ICE track hundreds of thousands of immigrants and target them for arrest.

Thomson Reuters and RELX have quietly been developing surveillance tools for years. In 2004, Reed Elsevier purchased Accurint, a huge personal information data system. By 2006, Lexis had the world’s largest electronic legal, news, and public records collection. In 2015, Reed Elsevier rebranded itself as RELX and moved further away from traditional academic and professional publishing. This year, the company purchased ThreatMetrix, a cybersecurity company that specializes in tracking and authenticating people’s online activities, which even tech reporters saw as a notable departure from the company’s prior academic publishing role.

Thomson Reuters, Westlaw’s company, has also changed its business to compete in the surveillance data and technology market. Thomson Reuters Special Services (TRSS) was developed to sell surveillance products, and TRSS CEO Stephen Rubley joined the board of the ICE Foundation. Thomson Reuters has signed three contracts to provide ICE with surveillance services totaling over $26 million. The contracts include:

1. A contract to provide ICE access to Thomson Reuters’ Consolidated Lead Evaluation and Reporting (CLEAR) system, which contains information that ICE uses to identify and target suspects, businesses and assets for arrest, seizure, and forfeiture.  CLEAR provides access to billions of records, sourced from both government agencies and private suppliers. RELX’s Accurint is CLEAR’s main competitor. The product interfaces with law enforcement agency databases in real-time, feeding data through Palantir’s FALCON analysis system, Peter Thiel’s “automated policing” technology that decides whether people should be targeted for investigation.
2. A contract to integrate license plate recognition (LPR) data into the CLEAR system. LPRs are roadside cameras that automatically photograph passing license plates and convert the images into a computer-readable format, creating a “read” that contains license plate numbers and registration data, vehicles’ makes and models, camera IDs that include passenger IDs in some cases, GPS coordinates, and the time and date each photograph was taken to pinpoint peoples’ locations. The International Association of Chiefs of Police has warned that using LPRs could violate the First Amendment, and in 2015, the DHS cancelled its bid for LPR services after a privacy impact assessment raised red flags. However, in 2017, the agency went ahead and purchased LPR services from Thomson Reuters and a company called Vigilant Solutions.
3. A contract to give ICE “subscription data services” that continuously monitor and alert ICE about changes to immigrant’s FBI numbers; State Identification Numbers; jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; payday loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records. (RELX also expressed interest in this contract, but lost out to Thomson Reuters, according to the Sole Source Justification records.)

More surveillance contracts are likely on the way to help ICE reach its goal of generating at least 10,000 leads per year for deportation and visa denial. Thomson Reuters and RELX will likely bid on those contracts, too. Representatives from both companies attended ICE’s investor day event for its controversial Visa Lifecycle Vetting Initiative (VLVI), or Extreme Vetting program. ICE wanted to hire a data company to surveill social media profiles and predict who should be allowed in the U.S., but ICE shelved the program because the companies had not yet developed the technology the agency wanted. Once the companies make the right surveillance tools, ICE will probably want to pay for them.

Why does this matter to law librarians?

Thomson Reuters’ and RELX’s expansion into big data surveillance products has changed their relationships with law librarians. The new business models mean that law product purchasers are no longer the companies’ top priority customers. As Thomson Reuters and RELX work to entice law enforcement customers, law librarians have been moved down the queue. Westlaw and Lexis have become less flexible and forthcoming about contracts while providing less customer service.

Even as customer relations decline, AALL treats the companies like colleagues rather than service providers and censors librarians’ conversations about their surveillance contracts.  But not talking about these issues does not change the fact that Lexis and Westlaw are no longer mom n’ pop law companies. Like other companies, they operate less like publishers and more like data supercenters. Westlaw and Lexis legal product packages now sit on virtual megastore shelves next to the law-adjacent “risk solution” law enforcement surveillance products, and the legal products help the companies leverage surveillance product sales to law enforcement agencies. Law librarians no longer have a clear understanding of their vendors’ practices as law libraries are one of many profit sources for corporations that also sell data to entities whose ethical practices might violate librarians’ professional codes.

Librarians protect their patrons’ privacy. The American Library Association’s Code of Ethics requires that librarians safeguard people’s personal information and ensure that people seeking information do not become surveillance targets. Moreover, the Code says that librarians must not advance private interests, including those of vendors, at the expense of library users. Librarians are responsible for protecting intellectual freedom against surveillance efforts.

Librarians also support the ethical use of information. The ACRL Framework for Information Literacy emphasizes the ethical use of information, data, and scholarship. The AALL Legal Research Competencies and Standards state that a successful legal researcher “distinguishes between ethical and unethical uses of information” and the Boulder Statement on Legal Research Education specifies that legal research instruction should include “an ongoing examination of professional standards, including the identification of ethical responsibilities.”

Lexis and Westlaw’s companies’ expansion into surveillance products implicates librarians’ ethical obligations in several ways:

1. Confidentiality and Privacy: When legal research vendors sell surveillance data to enforcement agencies, they risk the confidentiality of the data collected by their legal research product. If surveillance is their market, what happens to data tracking Westlaw and Lexis log-ins, search histories, and document views? Client confidentiality is a cornerstone of the legal profession. With few exceptions, lawyers are obligated to keep client information from enforcement agencies’ reach. While product reps may say that searches on their law products are private, neither company has issued any official assurances that they would not funnel lawyers’ search histories into their other products. Thomson Reuters’ privacy statement says that the company can use subscribers’ information (which includes browsing history and search terms) “for the prevention, detection or investigation of a crime or other breach of law or requirement, loss prevention or fraud” or “to comply with requests from courts, law enforcement agencies, regulatory agencies, and other public and government authorities.” Without affirming a commitment to search confidentiality, Westlaw and Lexis users cannot be sure that either product would defy their government clients’ requests for legal research data.
2. The Ethical Use of  Information: When law librarians and legal professionals buy legal research services from vendors that are developing surveillance products for ICE and other enforcement entities, chances are high that the money funds surveillance research and development. Buying Westlaw’s legal products gives Thomson Reuters ample overhead to build a “digital deportation machine” for ICE. Contracting with research vendors that fuel government surveillance and help ICE carry out ethically fraught programs raises critical information literacy issues ripe for discussion by law library professionals.

ICE surveillance data may be used to target noncriminal residents for denaturalization and to locate and arrest people at schools, at courthouses, in hospitals, at work, and at their homes. Some companies are refusing to use and work with companies that build ICE surveillance systems as ICE’s surveillance and enforcement practices raise numerous ethical and legal concerns. Lawyers, including the ABA, have called ICE’s practices unconstitutional and unethical.

Editor’s Note: I want to thank Sarah for calling her article to my attention and allowing me to republish it on LLB. The article was originally published on Medium on July 6th. See also Sarah’s earlier LLB post on this subject here. — Joe

Here’s the text of the eBriefing emailed to AALL members today:

In response to the June 7 letter sent by AALL’s attorney to LexisNexis, AALL and Lexis leadership met in Chicago on July 2. Those in attendance were Greg Lambert, AALL president, Kate Hagan, AALL executive director, James P. Fieweger, AALL counsel, and Lexis representatives Sean Fitzpatrick, managing director of North American research solutions, Paul Speca, vice president, large law & law school markets, Jeffrey Pfeifer, vice president, product management, and Logan Breed, counsel.

The purpose of the meeting was to discuss member concerns regarding a recent LexisNexis sales practice that ties access to its electronic and print publication products to the purchase of a license to Lexis Advance.

AALL had a series of questions it wanted addressed regarding the new policy. Specific questions included the terms of the policy, why the policy was put in place at this time, and why members who were able to purchase stand-alone Lexis print and electronic products in the past are now required to purchase Lexis Advance for access to those products.

Lexis advised AALL it is unable to discuss any product packaging or pricing matters, except with their customers, since each relationship is customized to meet the firm’s needs, and because Lexis has negotiated NDAs with all of its customers.

They also reiterated their earlier statement: “As we retire Lexis.com this year and upgrade users to Lexis Advance, we will more fully leverage our platform that consolidates all content and tools to one ecosystem.”

AALL also could not confirm what markets the new sales policy affects, but to date, we have only heard from law firm members regarding this change.

AALL President Greg Lambert strongly urged Lexis leadership to reconsider the new practice. While we do not anticipate that will occur, he further urged that they communicate fully to the membership and to their individual customers at the local level the specifics of this new sales practice and how it will affect them when renewing their Lexis contracts.

AALL will continue to pursue any rights we might have in addressing these product-tying policies. In the meantime, it is important members are aware that the Lexis strategy of tying its print and electronic products to the purchase of Lexis Advance is an issue affecting the legal information marketplace. Members, especially those working in law firms, should work with firm leadership to inform them of these changes and the implications for the firm’s legal information and research needs. Members should also communicate directly with their assigned Lexis representatives to discuss what terms and conditions may or may not be available to them as customers of Lexis.

— Joe

On July 2nd, AALL representatives met with LexisNexis representatives to discuss the company’s anticompetitive tying sales strategy. No official word on the outcome. (Not sure one should even expect an outcome after only one meeting. ) Until members hear something, this matter can be viewed as a work-in-progress. However, what if it wasn’t?

In its letter to LexisNexis CEO Mike Walsh, AALL called for an open dialog over the company’s anticompetitive tying sales strategy. If that failed, our association warned of taking “legal or commercial action” against the company. Assuming for this post that dialog does not produce our association’s desired outcome, the cessation of tying print and ancillary products to a Lexis Advance license, then taking legal or commercial action would be costly to AALL’s treasury.

It goes without saying that legal action would be very expensive (unless an AALL-member law firm would take the matter pro bono). The outcome would be unpredictable.  But this option is more likely in getting Lexis to change its sales policy.  Only someone with expertise in antitrust law (meaning not me) can evaluate this option.

Less unpredictable but also less likely to be as effective as legal action is taking “commercial action.” Commercial action could range from no longer accepting Lexis advertising revenue in AALL publications like LLJ and Spectrum, to a ban from AALL’s annual meeting and its exhibit hall, to a complete ban from all sanctioned activities of AALL and its chapters. Commercial action could be fairly expensive for our association too in some instances.

Using FY2018 budget data as a basis for illustrating future consequences, estimated total advertising revenue from Spectrum is $60,000 and from LLJ is $3,800.  That’s hardly a large amount. Spectrum and LLJ are already costing AALL more than the total revenue generated with an estimated annual net deficit of $114,928 for both. Not knowing what portion of Spectrum-LLJ ad revenue comes from Lexis, let’s just assume that the company pays AALL about $30,000. If so, simply banning Lexis from advertising would not hurt AALL’s bottom line that much. AALL would still end up with an estimated adjusted total budget surplus of $50,000 because AALL’s estimated total annual surplus for FY2018 is only $82,260. For such an egregious violation of fair business practices and possible antitrust violations simply banning LN from advertising just does not seem a proportional response. More is needed.

What’s needed in this what-if scenario is denying LN participation in our annual meeting and its exhibit hall until LN changes its sales policy. Not allowing LN a presence at our 2019 annual meeting (and later annual meetings as well) is justified. The company’s tying ultimatum deserve a similar take it or leave it action from AALL.

I cannot estimate what this annual meeting ban would cost AALL (but AALL administrators could). However I believe the ban would negatively impact our association’s annual budget surplus, turning a surplus of $82,260 into an annual net budget deficit amounting to low six figures. And if AALL decided to ban the company from our annual meeting, AALL would have to raise income some way, most likely in ways that directly affect rank-and-file law librarians.

So… is it still worth it? Yes. — Joe