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July 2017
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ROI Is a Crapshoot: How Metrics Fail to Tell the Full Story

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For too long, clients have demanded that marketers prove ROI. Marketers have responded with the equivalent of grainy photographs of Bigfoot in the wild. It's time to admit the photos are fakes. Agencies need to stop wasting money and effort chasing a myth and measure marketing success in more credible, productive ways. An overemphasis on [...]

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posted at: 12:00am on 08-Jul-2017
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Appeals Court Tells Lower Court (For The Second Time) To Stop Coddling An Abusive Ex-Deputy

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The Seventh Circuit Appeals Court seems a bit tired of the district court's shit. For the second time, it's remanding a case involving a convicted law enforcement officer because the lower court refuses to give the former officer the punishment he deserves. Terry Joe Smith has twice been sentenced for subjecting two arrestees to intentional and unreasonable excessive force. The facts of the case are this, as recounted by the Appeals Court's second run [PDF] at the same problem.

At trial, Smith’s fellow police officers testified against him, describing the unwarranted attacks. In the first incident, Smith punched the arrestee in the face with a closed fist, causing bleeding and swelling on his face. Two officers testified that the blow made the sound of a tomato hitting a concrete wall. At the time, the arrestee was fully under the control of four other officers, and the arrestee posed no danger to Smith. A fellow officer testified that he had been trained to refrain from striking anyone in the head with a closed fist unless he was in a “deadly force” situation because such a blow could be lethal. After that incident, Smith bragged about his behavior to other officers and mocked those who objected to his unjustified attack. The arrestee had to be removed from the scene in an ambulance.
That's only half the story. Here's the rest:
Several months later, in the second attack, Smith and other officers arrested an intoxicated man accused of battering a woman during a domestic dispute. Smith led the handcuffed arrestee to a patrol car. On reaching the car, Smith raised the man into the air, threw him face-first onto the ground and drove his knee into the man’s back with such force that the man defecated on himself. The man suffered injuries to his back and ribs. Smith later bragged that this was not the first time he had made someone defecate on himself. Again, Smith’s fellow officers testified that the arrestee was not actively resisting in any manner and that the use of force was unjustified and excessive.
Obviously, Smith liked throwing his weight around. And he had plenty of it, according to the decision's footnotes: 6' 3" and 270 pounds -- all of it apparently deployed to show these arrestees who was in "control" of the situation.Sentencing guidelines called for 33-41 months imprisonment. The court considered some mitigating effects (community work, difficult childhood) and those calling for the harsher end of the sentencing spectrum (assaulting juveniles at a detention facility, "unaddressed anger issues," lying to investigators). For reasons not adequately explained, the district court sentenced Smith to less than half the minimum: 14 months.Both parties appealed. In retrospect, Smith may have been better off letting the sentence ride. The Appeals Court sent the case back with instructions to either explain its downward sentencing departure better or to apply a sentence within the guidelines. It pointed out the lower court said Smith was unlikely to reoffend but did not show its homework as to why it had chosen to depart so drastically from the guidelines.The lower court took another look at the case and… arrived at the same exact sentence. The court considered the time the officer had served as well as some steps he had taken to reintegrate himself into the real world again. It also pointed to the officer's statement as a proper expression of remorse for his wrongdoing. The Appeals Court notes the second sentencing attempt is basically a word-for-word replay of the first. It also notes Smith's "remorseful" statement mainly discussed how difficult things were for him rather than for his victims.
Smith did make a statement at his second sentencing hearing but it is difficult to find mention of his victims or much of a sense of ownership of his actions in his remarks. We reproduce in full the letter he read aloud:Your Honor, as you may know, it is very dangerous being an ex-police officer in prison; but yet, there are little to no secrets in prison. Most inmates know why you are there before they even ask you. I had guys that hated me, not for being me but for my ex-profession. I made it clear I was no longer a sheriff’s deputy, and I was an inmate just like them; and I was there to better myself, just as they were…
There's more along these lines discussing his time in prison, but still nothing about the harm he did to the victims of his violence. Smith closed his letter by making it clear that only one person is on Smith's mind: former deputy Terry Joe Smith.
Why do I tell you this? I tell you this because you made the right decision when it came to sentencing me. I want to be an example to other judges, prosecutors that not every man that makes a mistake needs a long sentence and that when you have done everything to better yourself and when you have years left to serve – to sit and wait for your sentence to run out and the only thing you’re waiting for is an out date, it is the family, children and communities that are serving the sentence.[...]I can say that because of the sentence you handed me. You knew exactly what I needed to get back on track and I thank you. I hope my actions during and after my incarceration have validated your sentencing choice for me. I thank you for the opportunity you’ve given me.
Having been swayed by someone who showed no remorse for anything but his personal situation, the district court handed out the same sentence, which Smith had already served. It also stated extending his sentence would be unduly disruptive to Smith's new life. Undoubtedly so, but that's the nature of prison sentences, as the Appeals Court points out:
In addressing the need to promote respect for the law and deter others from committing similar crimes, the court mentioned that Smith had incurred two felony convictions,lost his job as a police officer, resigned his position on the city council, and lost his reputation within the community.[...]Losing one’s job and reputation are the normal consequences of committing a felony at work. It is unclear how these naturally occurring repercussions that are not part of any sentence would promote respect for the law and deter others from committing similar crimes.
As for the letter of regret that persuaded the lower court to do absolutely nothing about the absurdly low sentence it had imposed, the Appeals Court says this:
Smith’s statement to the court contained, at most, an acknowledgment that some—but not all—of his fellow prisoners were people like him, who had made mistakes and were seeking to better themselves. He also expressed his new-found belief that not all defendants required lengthy sentences, a principle he hoped the court would apply to him. He never mentioned his victims or his crimes unless one generously infers that the “mistake” to which he referred was senselessly beating arrestees who were already under control and posed no danger to him. He did not concede the facts of his offenses of conviction and he did not express regret for anything other than the length of a possible new sentence. It is certainly admirable that he learned in prison that prisoners are human beings like himself, but that is a far cry from an expression of remorse for the harms he caused or acceptance of responsibility for his crimes. There is nothing resembling the promised “ownership” in Smith’s remarks to the court.
With that, it's yet another trip back to the lower court to see if it can finally get its sentencing right. This court's extreme reluctance to apply the sentencing guidelines it gladly applies without question to normal defendants doesn't score it any points with the Appeals Court. The fact that the lower court needs to be told twice to do its job right looks even worse. The super-low sentence shows Deputy Smith isn't like the other prisoners he was forced to spend time with, no matter what his letter says. He's the beneficiary of judicial deference -- something lots of cops get, but is rarely enjoyed by members of the public they serve.

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posted at: 12:00am on 08-Jul-2017
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Tim Berners-Lee Sells Out His Creation: Officially Supports DRM In HTML

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For years now, we've discussed the various problems with the push (led by the MPAA, but with some help from Netflix) to officially add DRM to the HTML 5 standard. Now, some will quibble with even that description, as supporters of this proposal insist that it's not actually adding DRM, but rather this "Encrypted Media Extensions" (EME) is merely just a system by which DRM might be implemented, but that's a bunch of semantic hogwash. EME is bringing DRM directly into HTML and killing the dream of a truly open internet. Instead, we get a functionally broken internet. Despite widespread protests and concerns about this, W3C boss (and inventor of the Web), Tim Berners-Lee, has signed off on the proposal. Of course, given the years of criticism over this, that signoff has come with a long and detailed defense of the decision... along with a tiny opening to stop it.There are many issues underlying this decision, but there are two key ones that we want to discuss here: whether EME is necessary at all and whether or not the W3C should have included a special protection for security researchers.First, the question of whether or not EME even needs to be in HTML at all. Many -- even those who dislike DRM -- have argued that it was kind of necessary. The underlying argument here is that certain content producers would effectively abandon the web without EME being in HTML5. However, this argument rests on the assumption that the web needs those content producers more than those content producers need the web -- and I'm not convinced that's an accurate portrayal of reality. It is fair to note that, especially with the rise of smart devices from phones to tablets to TVs, you could envision a world in which the big content producers "abandoned" the web and only put their content in proprietary DRM'd apps. And maybe that does happen. But my response to that is... so what? Let them make that decision and perhaps the web itself is a better place. And plenty of other, smarter, more innovative content producers can jump in and fill the gaps, providing all sorts of cool content that doesn't require DRM, until those with outdated views realize they're missing out. Separately, I tend to agree with Cory Doctorow's long-held view that DRM is an attack on basic computing principles -- one that sets up the user as a threat, rather than the person who owns the computer in question. That twisted setup leads to bad outcomes that create harm. That view, however, is clearly not in the majority, and many people admitted it was a foregone conclusion that some form of EME would move forward.The second issue is much more problematic. A bunch of W3C members had made a clear proposal that if EME is included, there should be a covenant that W3C members will not sue security researchers under Section 1201 of the DMCA should they crack any DRM. There is no reason not to support this. Security researchers should be encouraged to be searching for vulnerabilities in DRM and encryption in order to better protect us all. And, yet, for reasons that no one can quite understand, the W3C has rejected multiple versions of this proposal, often with little discussion or explanation. The final decision from Tim Berners-Lee on this is basically "sure a covenant not to sue would have been nice, and we think companies shouldn't sue, but... since this wasn't raised at the very beginning, we're not supporting it":

We recommend organizations involved in DRM and EME implementations ensure proper security and privacy protection of their users. We also recommend that such organizations not use the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) and similar laws around the world to prevent security and privacy research on the specification or on implementations. We invite them to adopt the proposed best practices for security guidelines [7] (or some variation), intended to protect security and privacy researchers. Others might advocate for protection in public policy fora - an area that is outside the scope of W3C which is a technical standards organization. In addition, the prohibition on "circumvention" of technical measures to protect copyright is broader than copyright law's protections against infringement, and it is not our intent to provide a technical hook for those paracopyright provisions.Given that there was strong support to initially charter this work (without any mention of a covenant) and continued support to successfully provide a specification that meets the technical requirements that were presented, the Director did not feel it appropriate that the request for a covenant from a minority of Members should block the work the Working Group did to develop the specification that they were chartered to develop. Accordingly the Director overruled these objections.
This is unfortunate. What's bizarre is that the supporters of DRM basically refuse to discuss any of this. Even just a few days ago, the Center for Democracy and Technology proposed a last-ditch "very narrow" compromise to protect a limited set of security and privacy researchers (just those examining implementations of w3C specifications for privacy and security flaws.) Netflix flat out rejected this compromise saying that it's "similar to the proposal" that was made a year ago. Even though it's not. It was more narrowly focused and designed to respond to whatever concerns Netflix and others had.The problem here seemed to be that Netflix and the MPAA realized that they had enough power to push this through without needing to protect security researchers, and just decided "we can do it, so fuck it, let's do it." And Tim Berners-Lee -- who had the ability to block it -- caved in and let it happen. The whole thing is a travesty.Corry Doctorow has a thorough and detailed response to the W3C's decision that pushes back on many of the claims that the W3C and Berners-Lee have made in support of this decision. Here's just part of it:
We're dismayed to see the W3C literally overrule the concerns of its public interest members, security experts, accessibility members and innovative startup members, putting the institution's thumb on the scales for the large incumbents that dominate the web, ensuring that dominance lasts forever.This will break people, companies, and projects, and it will be technologists and their lawyers, including the EFF, who will be the ones who'll have to pick up the pieces. We've seen what happens when people and small startups face the wrath of giant corporations whose ire they've aroused. We've seen those people bankrupted, jailed, and personally destroyed.
This was a bad decision done badly, and Tim Berners-Lee, the MPAA and Netflix should be ashamed. The MPAA breaking the open internet I can understand. It's what that organization has wanted to do for over a decade. But Netflix should be a supporter of the open internet, rather than an out and out detractor.As Cory notes in his post, there is an appeals process, but it's never been used before. The EFF and others are exploring it now, but it's a hail mary process at this point. What a shame.

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posted at: 12:00am on 08-Jul-2017
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