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November 2018
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UCLA Flails Amid Pro-Palestine Group's Planned Conference, While L.A.'s City Council Goes Full Stupid

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Those of you who geek out over trademark law like me may have seen the recent dust-up between UCLA and a group called National Students for Justice in Palestine this past week. I had intended on writing something up about the whole thing because of how blatantly stupid it was. The pro-Palestinian group has a chapter at UCLA and it is hosting a conference in the future, for which it put out some promotional materials that feature a bear flying a kite with the colors of the Palestinian flag and dared to mention that the conference was being held at UCLA. For this, UCLA lawyers sent a cease and desist to SJP, claiming that the way the promo material displayed the UCLA name and its use of bear imagery created confusion in the public suggesting that the school was affiliated with the conference.

UCLA argues that SJP’s “use of the ‘UCLA’ name” and use of “the UCLA mascot of the Bruin Bear in a logo/digital poster” effectively claims, suggests, or implies an “affiliation with” UCLA. The university says the group may state where the conference will be held (“at UCLA”) if the font size for the word “UCLA” is “no larger than the font used for the remainder of the communication.” Failing compliance, UCLA expressly threatens to cancel the event.
Not for the first time, a California university is wielding a pretty clearly unconstitutional law, one designed to give California universities sweeping powers to keep the public from mentioning school names, even if in an entirely accurate manner. No room is made for fair us, while schools have the authority under this state law to put in all kinds of silly restrictions, such as the font size restriction mentioned above.What kept me from writing this up initially is that the school quickly signaled it would reversed course after SJP made minor changes to the promotional material. Oh, and after the ACLU got involved.
Tod M. Tamberg, a spokesman for UCLA told NBC News in an email on Wednesday “it was never about the bear all by itself” and that it appreciated the groups [sic] alteration to remove the UCLA name. The university, which threatened to cancel the conference, also said that the event would go on as scheduled.“As you may have heard, some members of the Jewish community have been sharply critical of upcoming conference, demanding that UCLA move to cancel it,” the school said in statement provided by Tamberg. “As a public university, UCLA is legally bound to comply with the First Amendment, which protects everyone’s right to express their views, even those that are offensive and hateful or that the university opposes.”
Yes, it certainly does. Now, many have levied claims of hate speech against SJP. These claims, however you might agree or disagree with them, tend to be fairly laughable. If the best you can trot out is the following to claim a whole group is a hate group, you're not going to meet any kind of First Amendment bar.
In an Oct. 11 letter to UCLA chancellor Gene Block, [State] Rep. Sherman argued that speech on the National SJP website “may very well constitute anti-Semitism” as defined by the State Department — a definition Sherman says was “recently adopted” by the Department of Education “for enforcement purposes.” Sherman’s letter highlights three particular examples contained in that definition, including “claiming that the existence of a State of Israel is a racist endeavor,” applying “double standards” to Israel by “requiring of it a behavior not expected or demanded of any other democratic nation,” and “[d]rawing comparisons of contemporary Israeli policy to that of the Nazis.”
None of that is hate speech, no matter what some silly State Department missive might suggest. Words matter, after all, and we can no more accept that the kind of political speech above, even if you disagree with it, is hate speech any more than we can condone the government crying terrorism anytime it's convenient. It also seems obvious to me that if you replaced this pro-Palestinian group with a pro-Israel group, we never would have heard this story at all. Argue with that if you like, but you're wrong.And, yet, the L.A. City Council is now getting involved in the stupidest way possible, passing a resolution that first acknowledges UCLA's need to adhere to free speech rights and then somehow calling for the cancellation of this conference entirely.
Add the City of Los Angeles to the government actors calling on UCLA to cancel the convention. While dubious California statutes and trademark concerns falter, the Los Angeles City Council has issued an internally incoherent resolution recognizing that the university has First Amendment obligations while demanding that the conference be canceled, First Amendment be damned.The resolution, embedded below, was unanimously adopted with the “concurrence” of Mayor Eric Garcetti. The resolution cites UCLA’s “responsibility to allow freedom of speech,” but quickly skips past the pesky nuances of the First Amendment to demand that UCLA “cancel and ban” the conference because it would be “inappropriate” to host the conference “given the atmosphere in the country.” The resolution also concludes that there is “never a good time to have this type of event.”
Follow along with me in a resolution too dumb to make up: UCLA needs to protect free speech on campus, but it should cancel this conference given the current political climate and some tragedies that happened on the other side of the country, and, oh, also there will never, ever be a climate in which this conference should take place. The speed with which the city council and mayor got from "we acknowledge free speech rights" to "we can never allow these people those free speech rights" is breathtaking.And fundamentally stupid, given that these are people in government we're talking about. Frankly, the flailing UCLA administration that once attempted to trademark bully SJP for no good reason comes out looking way better than the City Council for Los Angeles. It's also worth noting that for all the hand-wringing that takes place over the type of political speech allowed on campus by a certain segment of our population, it's been complete crickets when it comes to defending a pro-Palestinian group's rights.One might nearly call that racist, were there not the worry that such a call would be labeled "hate speech."


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posted at: 12:02am on 15-Nov-2018
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Dear EU Politicians: You Really Don't Have To Wreck The Internet

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Visit DontWreckThe.Net to learn about the EU Copyright Directive »As you'll recall, back in September, the EU Parliament voted to approve a draft of the EU Copyright Directive, despite it including a bunch of very problematic pieces -- mainly Article 13's mandatory filters and Article 11's snippet tax. What the EU Parliament approved was not the same as what the EU Council of member states had approved, nor what the EU Commission had approved, so now those three bodies have been working on a "trilogue" process to sync up the various versions and come up with a master version that will have to be approved again by all three institutions. There has been a lot of activity in the past few weeks -- and Italy's change of government has made things a bit interesting.As the Trilogue discussions have continued, we've teamed up with a bunch of platforms and startup organizations both in the EU and the US to make some suggestions. It would probably be best for the internet to drop both Article 11 and Article 13 altogether, but barring that, we have a pretty detailed list of suggestions over at DontWreckThe.Net. As you hopefully see, just by looking at the long list of fixes we're requesting, there are still huge problems with the proposals. Furthermore, given that many of the platforms we've partnered with in developing this list are the ones who will be hardest hit, we're hopeful that the various officials debating this will take notice. Even more important: this is not just about those platforms, but everyone who uses them. If you use Reddit or Patreon or Vimeo, these rules are going to have a massive impact on how you'll be able to interact with the internet going forward. Also, we're asking other organizations to join this project, so if you run an organization that is worried about the impact of Articles 11 or 13, please reach out to us through the site.And please, EU officials, don't wreck the net.

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posted at: 12:02am on 15-Nov-2018
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The US Refusing To Sign 'The Paris Call' Is Not As Big A Deal As Everyone Is Making It Out To Be

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On Monday, a bunch of countries and companies officially announced and signed "The Paris Call," or more officially, "the Paris Call for Trust and Security in Cyberspace." It's getting a fair bit of press coverage, with a lot of that coverage playing up the decision of the US not to sign the agreement, even as all of the EU countries and most of the major tech companies, including Google, Facebook, Microsoft, Cisco and many many more signed on.But, most of those news stories don't actually explain what's in the agreement, beyond vague hand-waving around "creating international norms" concerning "cyberspace." And the reports have been all over the place. Some talk about preventing election hacking while others talk about fighting both "online censorship and hate speech." Of course, that's fascinating, because most of the ways that countries (especially in the EU) have gone about fighting "hate speech" is through outright censorship. So I'm not quite sure how they propose to fight both of those at the same time...Indeed, if the Paris Call really did require such silly contradictory things it would be good not to sign it. But, the reality is that it's good not to sign it because it appears to be a mostly meaningless document of fluff. You can read the whole thing here, where it seems to just include a bunch of silly platitudes that most people already agree with and mean next to nothing. For example:

We reaffirm our support to an open, secure, stable, accessible and peaceful cyberspace, which has become an integral component of life in all its social, economic, cultural and political aspects.We also reaffirm that international law, including the United Nations Charter in its entirety, international humanitarian law and customary international law is applicable to the use of information and communication technologies (ICT) by States.
I mean, great. But so what? The "measures" the agreement seeks to implement are almost equally as meaningless. Here's the entire list:
  • Prevent and recover from malicious cyber activities that threaten or cause significant, indiscriminate or systemic harm to individuals and critical infrastructure;
  • Prevent activity that intentionally and substantially damages the general availability or integrity of the public core of the Internet;
  • Strengthen our capacity to prevent malign interference by foreign actors aimed at undermining electoral processes through malicious cyber activities;
  • Prevent ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sector;
  • Develop ways to prevent the proliferation of malicious ICT tools and practices intended to cause harm;
  • Strengthen the security of digital processes, products and services, throughout their lifecycle and supply chain;
  • Support efforts to strengthen an advanced cyber hygiene for all actors;
  • Take steps to prevent non-State actors, including the private sector, from hacking-back, for their own purposes or those of other non-State actors;
  • Promote the widespread acceptance and implementation of international norms of responsible behavior as well as confidence-building measures in cyberspace.
I mean, sure? Some of that is meaningless. Some of that is silly. Some of it is obvious. But none of it actually matters because it's not binding. Could this lead to something that matters? Perhaps. But it seems silly to condemn the US for failing to sign onto a meaningless document of platitudes and meaningless fluff, rather than anything substantial. There's no problem with those who did choose to sign on, but it's hard to see how this is a meaningful document, rather than just an agreement among signatories to make them all feel like they've done something.

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posted at: 12:02am on 14-Nov-2018
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The Girl Scouts Sues The Boy Scouts Over Trademark

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As you may recall, the Boy Scouts of America decided late last year to -- finally -- allow girls to join their ranks. It was a widely praised decision that was long overdue, with the organization's mission statement not calling for any kind of gender exclusivity. You may also recall that the BSA has some history of being on the wrong side of intellectual property concerns and even has a special law created just for the BSA to allow it to be trademark bullies. These two seemingly unrelated worlds have now collided, with the BSA being sued by the Girl scouts of America over trademark concerns.

The Girl Scouts are suing the Boy Scouts, saying the organization’s inclusive rebranding effort has caused all sorts of consumer confusion from mistaken enrollment in the Boy Scouts to misinformation about a merge of the two groups.Tuesday’s trademark infringement lawsuit is an attempt to clear up the uncertainty, said the Girl Scouts of the United States of America.The Manhattan federal case noted the two separate youth organizations have long coexisted. But problems arose when “core gender distinction” was altered by the Boy Scouts of America, which announced in October 2017 it would open its doors to girls beginning in 2019. Earlier this year, the Boy Scouts unveiled new marketing campaign to back the effort. “Scout Me In,” the tagline proclaimed.
What happened here is pretty simple. And, frankly, pretty stupid on the part of the BSA. And we should acknowledge that Techdirt generally, and myself specifically, tend to advocate a more permissive attitude when it comes to trademark concerns. In this case, what BSA did was to rebrand itself without the "Boy", instead recruiting girls into its ranks using the "Scouts BSA" branding and term. To be somewhat critical of the Girl Scouts, having that "BSA" in its name certainly does some work to differentiate it and call back to its original Boy Scouts of America name, but I'm not sure one could argue that "BSA" alleviates any concern. The Girl Scouts, of course, are still a thing. And this appears to have led to very real confusion in the marketplace.
In court papers, the Girl Scouts said the Boy Scouts’ rebranding announcement has created all kinds of brand confusion across the country.For example, some Minnesota families looking to sign up their girls were erroneously told the Girl Scouts and the Boy Scouts have merged. Meanwhile, in Indiana and South Dakota, some parents mistakenly signed up their daughters to girls’ programs in the Boy Scouts.
Those are pretty clear cut examples. But, for some, this has become a tricky case. Most people view the Boy Scouts being more inclusive and allowing girls in as a good thing. Most people think the term "scout" is fairly generic at this point. Are we really to advocate that the GSA can keep BSA from including girls as scouts?No, of course not. The problem here arose when BSA decided to brand itself by dropping the "Boy" instead of replacing it. If the branding and marketing material had instead replaced "Boy" with something else, particularly with a new name that used a different acronym, there wouldn't be a problem. If BSA had decided to become the Field Scouts of America, for instance, confusion wouldn't have been a thing. That it chose to do otherwise, knowing full well that the Girl Scouts exist, is actually fairly belligerant.

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posted at: 12:02am on 14-Nov-2018
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This Week In Techdirt History: November 4th - 10th

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Five Years AgoThis week in 2013, UK officials were going a bit nuts in response to the fallout from their detention of David Miranda, first arguing that he was, in fact, a terrorist, then that they didn't know he was a journalist, and then that the Snowden leaks would help pedophiles — leading us to wonder of the State Department would condemn their stifling of journalism (okay, not really wonder...)Stateside, Mike Rogers was claiming that more NSA transparency would hurt privacy, while also being opportunistically concerned about the privacy implications of the Affordable Care Act. The agency was positively comparing metadata searches to stop-and-frisk, and making a similar argument that curbing metadata protection would harm privacy. And of course the Inspector General was rejecting a request from Congress to investigate the agency, while the Senate Intelligence Committee advanced a bill to give the NSA more funding.Ten Years AgoThis week in 2008, while we were wondering why the MPAA gets to review and approve DVD players, the Copyright Alliance was fighting to outlaw remote DVRs. A UK ISP was threatening to disconnect anyone who has open wifi, the French Senate approved the three strikes law that would create the infamous Hadopi, and Italian authors were fighting for a piracy tax on DSL connections (while Italian officials were moving forward with criminal charges against Google executives over a user's video).Today, there's a lot of concern about issues with electronic voting machines and their poor security. Naturally, if people had known about this ten years ago, it would have been fixed by now. Oh, wait...Fifteen Years AgoBut certainly if we'd known about it all the way back in 2003, it'd definitely be fixed by now, right? It's not like we'd need advocacy groups and law clinics to fight to stop Diebold from C&D-ing people who talk about its security issues, right? Oh...Well anyway, also this week in 2003, we saw the first big record label merger of the 21st century, with Sony and BMG turning the Big Five into the Big Four. The RIAA was bragging about the success of its lawsuits based on dubious causality, while studies showed they were somewhat effective in making people delete MP3s and really, really hate the record industry.It was also around this time that the trend of making computers look cool started taking root beyond the world of Apple.

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posted at: 12:00am on 11-Nov-2018
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Robert Jackson Bennett Uses Magic To Make Sense Of How Technology Shapes Our Lives

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In Robert Jackson Bennett's critically-acclaimed new novel, Foundryside, a scrappy thief-cum-spy explores a world where items can be "scrived" to think for themselves and bend natural laws. The role scriving plays in this alternate reality is powerfully analogous to how software defines so many aspects of our own lives, and the four merchant houses that dominate Bennett's fictional society map closely to the tech monopolies that are accruing more and more power every day in the real world. In the following interview, we discuss the political consequences of technology and the power of imagination.

***

How does scriving extrapolate the social implications of the internet?

The superficial comparisons to software and technology are fairly obvious in the story: magic functions as instructions, which must be carefully written by some very educated people in order to achieve amazing results — only instead of using pattern recognition to identify hidden, unrealized value in large datasets, the programmers in this world smash things together and blow stuff up. So, a bit more dramatic.

Things are a bit more interesting when you start to consider how using this technology allows people to reshape reality, both directly and indirectly. This method grants certain kinds of people a great deal of power, which allows them to dictate how the world works — much like how the political and economic schemes of our world are increasingly viewed through the lens of the internet, in the world of Foundryside, everything is shaped by scriving. They cannot imagine living without it, and they can't imagine not using it to get what they want. It's just too easy to colonize and conquer.

What can we learn about ourselves from the systemic problems illustrated in the book? How do we build a future that leverages the power of scriving without winding up in a merchant house oligarchy?

I think technology and technologists trend toward moral agnosticism. There is a belief that the purpose or value of a technology will reveal itself after being exposed to the market - you make it available for sale, and people, being pretty smart, will use markets to figure out how to use it to produce the most value. In other words, the morality of a technology is often someone else's problem. It's not an engineering problem, in other words.

But I think we're seeing now that markets make good servants but poor masters, and right now, technologists seem to believe markets are masters more than servants. Amazon wants to sell facial recognition software to ICE, Google wants to sell a censored search engine to China — these are all decisions that pencil out to make a great deal of money, but are morally bankrupt. If technology continues to develop in this sort of environment, then the world of yawning inequality and tyrannical merchant houses is inevitable.

Foundryside is a story of revolution. What are the most misunderstood aspects of real world revolutions? If we want to empower ourselves to make a difference, what should we do and what should we pay attention to?

Revolution is examined much more closely in the sequel, but I would say that it's important to realize that a revolution is not a singular event, but a violent series of tug-of-war that has actions and reactions. One can argue, for example, that the French Revolution lasted nearly a century, if not more, as various kinds of liberals seized power, only for various kinds of conservatives to pop up and take it back, practically right up until the First World War.

I think we should view revolutions in terms of survival. You should ask: Which groups are the most threatened? Which threatened group has the most power to organize and respond? You fight a lot more when your future's on the line, and your fight makes a difference when you have the actual power to see it through. You can think of this in terms of the Clayton Christensen model of disruption, where disruptors are put into positions where they must disrupt in order to survive, or you can look at the Founding Fathers, who were almost exclusively upper class landholders and merchants — a critical reason why the American Revolution succeeded.

If a group's survival is threatened, and if they have enough power to adequately fight back, then a revolution can take place. But if people are distracted or content or fractious, or if they're unable to organize and act, then either nothing will happen, or dissent will get quickly squashed. There are far, far, far more failed revolutions than successful ones.

History is full of dead, failed heroes. We tend to forget that when we climb up on our metaphorical horses.

The universe the story takes place in has the heft and texture of a fully-realized world that extends far beyond the confines of the novel. How did you build this world?

I read a lot of history, and tried to draw from that rather than play to whimsy. I try to build my worlds so that each facet examines a central theme, however elliptically. Good worldbuilding feels organic, and it feels like there's a purpose to it — learning about the sort of ships the world uses tells you something about the world and the people, not just the ships.

Even while it wrestles with big problems, the story is packed with intrigue and misadventures. How can "beach reads" that embrace the joy of pulp shed a unique light on important issues and ideas?

A spoonful of medicine helps the medicine go down. I'm all about recontextualizing things we're dealing with today in terms that make us rethink them. Like, say, slavery — America has a lot of problems with its history with slavery. But if I make up a slave system for my secondary world, it's suddenly a lot easier for Americans to decide how they feel about slavery. I try to use fun and magical worldbuilding to sort of sneak through the backdoor into people's brains and plant ideas. I'd say it's subversion, but it's really not terribly subtle.

What role does speculative fiction play in society? What do journeys of imagination offer us?

Speculative fiction gives us the emotional distance to allow us to more dispassionately judge our ongoing moral conundrums. People paint self-portraits sometimes because they wish to distort their faces to see how much they can change and still remain "themselves." Speculative fiction is a literary version of that.

What other books would fans of Foundryside enjoy? What books have changed the way you see the world and your place in it?

I expressly avoided reading Brandon Sanderson as a writer, because I didn't want to subconsciously steal from him (in fact, I really read almost no fiction these days, for better or worse) but I am told that Foundryside has a lot in common with his works.

***

Eliot Peper is a critically-acclaimed novelist and the author of Bandwidth, Borderless, Cumulus, Neon Fever Dream, True Blue, and the Uncommon Series. He lives in Oakland and maintains a popular reading recommendation newsletter.

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posted at: 11:59pm on 09-Nov-2018
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Denuvo: Every Download Is A Lost Sale For This Anonymous AAA Title We're Referencing, So Buy Moar Dunuvo!

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The saga of antipiracy DRM company Denuvo is a long and tortured one, but the short version of it is that Denuvo was once a DRM thought to be unbeatable but which has since devolved into a DRM that cracking groups often beat on timelines measured in days if not hours. Denuvo pivoted at that point, moving on from boasting at the longevity of its protection to remarking that even this brief protection offered in the release windows of games made it worthwhile. Around the same time, security company Irdeto bought Denuvo and rolled its services into its offering.And Irdeto apparently wants to keep pushing the line about early release windows, but has managed to do so by simply citing some unnamed AAA sports game that it claims lost millions by being downloaded instead of using Denuvo to protect it for an unspecified amount of time.

In a statement issued by Denuvo owner Irdeto (the latter acquired the former earlier this year), the company states that it tracked pirate downloads of an unnamed ‘AAA’ (big budget, major studio) title during the first few days after its release. Without Denuvo protection it was quickly cracked and made available on P2P networks and from there, pirates did their thing.“Irdeto tracked the downloads of a major sports title on P2P networks after the title, which did not include anti-tamper protection, was cracked on the same day of its release,” the company says. “During the first two weeks, Irdeto detected 355,664 torrent downloads of the illegal copy of the title. Given the retail price of the game, this puts the total potential loss of revenue from P2P downloads at $21,336,283.”
There are, of course, many issues with this statement. First, citing an unnamed title is a bit odd, since the publisher of that title is quite obviously not a customer of Irdeto's. Or, at the very least, isn't a customer for that particular game. Why the need for anonymity, in that case? It would seem only to Irdeto's benefit to name the title that chose not to be protected by Denuvo. And, if this is all publicly available information, keeping that name secret doesn't make a great deal of sense.From there, we can move on to Irdeto choosing to keep the math simple by suggesting that every download is a lost sale, in order to come up with its $21 million dollars lost figure. This line of thinking has been debunked so many times that it's not truly worth discussing, other than to say that a DRM company citing it as a valid number should tell you everything you need to know about the wider "report."And, finally, Irdeto is citing a two week release window important for sales of games as though Denuvo hadn't been defeated on timelines much, much shorter than that. This isn't to say that it's always defeated within two weeks, but that often ends up being the case particularly for AAA titles.
It’s worth noting that while Denuvo games are often cracked very quickly, it’s definitely not uncommon for protection to stand up to the first two weeks of attacks. Denuvo can usually hold off crackers for the first four days, so these figures are obvious marketing tools for a technology that has been somewhat diminished after various cracking groups began taking its challenge personally.But just in case Denuvo only manages a single day of protection, owner Irdeto suggests that the effort is worth it – even dropping down to the importance of standing firm for an hour.
An hour. An hour. When a DRM company has reached the point of touting that it can protect a game for an entire hour, we've jumped the shark. We don't have much information about the cost of using Denuvo for publishers, since everything I've read suggests publishers have to sign restrictive NDAs that prohibit revealing that information, but I'm struggling to understand how making pirates wait an hour for a cracked game can be worth whatever those costs are.

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CDA 230 Doesn't Support Habeus Petition by 'Revenge Pornographer'

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As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and ChangeMyReputation.com, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Roommates.com. Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":

In this case, the Supreme Court has never recognized that the CDA applies in state criminal actions. The Supreme Court has never indicated circumstances that would qualify a state criminal defendant for CDA immunity. Absence of applicable Supreme Court precedent defeats the contention that Petitioner is entitled to CDA immunity under clearly established federal law...federal circuits have not applied CDA immunity in state criminal actions or indicated circumstances that would qualify a state criminal defendant for CDA immunity. Petitioner cannot satisfy 2254(d)(1) with district court opinions applying CDA immunity in state criminal actions.
I've routinely blogged about the application of Section 230 to state criminal prosecutions, and I even wrote a lengthy discourse on why that was a good thing. Still, I can't think of any federal appellate courts that have reached this conclusion, so perhaps the court's factual claim about the jurisprudential absence is correct.The court adds that even if Section 230 qualified as "clearly established federal law," the appellate court ruling didn't necessarily contravene that law:
the California Court of Appeal performed an exhaustive and comprehensive analysis of the applicable circuit court decisions before concluding Petitioner is an information content provider under Roommates. The state court reasonably interpreted Roommates and Jones, and reasonably concluded that Petitioner "developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA."
This passage reinforces the deficiencies of the appellate court's Section 230 discussion. "[R]equiring users to input private and personal information as a condition of posting the victims' pictures" is not the encouragement of illegal content, as referenced by Roommates.com, as that information isn't actually illegal; and the Jones case rejected an "encouragement" exclusion to Section 230 while ruling for the defense. Do those deficiencies support the extraordinary relief of habeus corpus? Apparently not.Reposted from Eric Goldman's Technology & Marketing Law Blog

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posted at: 11:59pm on 08-Nov-2018
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Leading Open Access Supporters Ask EU To Investigate Elsevier's Alleged 'Anti-Competitive Practices'

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Back in the summer, we wrote about the paleontologist Jon Tennant, who had submitted a formal complaint to the European Commission regarding the relationship between the publishing giant Elsevier and the EU's Open Science Monitor. Now Tennant has joined with another leading supporter of open access, Björn Brembs, in an even more direct attack on the company and its practices, reported here by the site Research Europe:

Two academics have demanded the European Commission investigate the academic publisher Elsevier for what they say is a breach of EU competition rules that is harming research.Palaeontologist Jon Tennant and neuroscientist Björn Brembs, who are both advocates for making research results openly available, say the academic publishing market "is clearly not functioning well" in an official complaint about Elsevier's parent company RELX Group.The pair claim RELX and Elsevier are in breach of EU rules both due to general problems with the academic publishing market and "abuse of a dominant position within this market".
The 22-page complaint spells out what the problem is. It makes the following important point about the unusual economics of the academic publishing market:
For research to progress, access to all available relevant sources is required, which means that there is no ability to transfer or substitute products, and there is little to no inter-brand competition from the viewpoint of consumers. If a research team requires access to knowledge contained within a journal, they must have access to that specific journal, and cannot substitute it for a similar one published by a competitor. Indeed, the entire corpus of research knowledge is built on this vital and fundamental process of building on previously published works, which drives up demand for all relevant published content. As such, publishers do not realistically compete with each other, as all their products are fundamentally unique (i.e., each publisher has a 100% market share for each journal or article), and unequivocally in high demand due to the way scholarly research works. The result of this is that consumers (i.e., research institutions and libraries) have little power to make cost-benefit evaluations to decide whether or not to purchase, and have no choice but to pay whatever price the publishers asks with little transparency over costs, which we believe is a primary factor that has contributed to more than a 300% rise in journal prices above inflation since 1986. Thus, we believe that a functional and competitive market is not currently able to form due to the practices of dominant players, like Elsevier, in this sector.
Most of the complaint is a detailed analysis of why academic publishing has become so dysfunctional, and is well-worth reading by anyone interested in understanding the background to open access and its struggles.As to what the complaint might realistically achieve, Tennant told Techdirt that there are three main possibilities. The European Commission can simply ignore it. It can respond and say that it doesn't think there is a case to answer, in which case Tennant says he will push the Commission to explain why. Finally, in the most optimistic outcome, the EU could initiate a formal investigation of Elsevier and the wider academic publishing market. Although that might seem too much to hope for, it's worth noting that the EU Competition Authority is ultimately under the Competition Commissioner, Margrethe Vestager. She has been very energetic in her pursuit of Internet giants like Google. It could certainly be a hugely significant moment for open access if she started to take an interest in Elsevier in the same way.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Russian Government Hits Last Independent News Outlet With A $338,000 Fine

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The Russian government took another consolidation-of-power step recently. Deciding to exercise a 2012 law written specifically to give it leverage against independent press outlets, a Moscow court has hit the country's last remaining opposition magazine with a massive fine.

The Committee to Protect Journalists today condemned an exorbitant fine imposed on the independent news outlet The New Times. A Moscow court on October 26 ordered the outlet to pay 22.3 million rubles (US$338,000) for failing to provide financial information under Russia's "foreign agents" law and ordered the outlet's editor-in-chief Yevgenia Albats to pay an additional fine of 30,000 rubles, TV Dozhd reported.

Albats suspects this fine is the result of an October 22nd interview with opposition politician and vocal Putin critic Aleksei Nalvany. The hefty fine should result in the closure of The New Times, which would be exactly what the Russian government wants.

The law used to effectively push the magazine into bankruptcy went live in 2012. It requires all non-government operations that receive foreign funding to register as "foreign agents." This law was upgraded last year in response to a new US policy requiring similar "foreign agent" registration for Russian state-run news outlets. This newer twist allows for direct targeting of press outlets. But, even without this addition, the Russian government still could have crippled The New Times. As Agence France-Presse reports, part of The New Times' funding involves donations collected by a registered charity.

With this move, Russian citizens will now be limited to state-run publications. The internet will still provide opportunities for Russians to read news not controlled by the state, but those too will eventually dry up as the Russian government continues to assert its control of this medium as well. The internet was the last refuge of The New Times, which had to cease publication of its print edition due to a lack of funding.

The court decision itself is suspect. Rather than pretend the fine (supposedly triggered by single failure to update registration paperwork three months ago) could be discussed or disputed, the court made its decision without input from the defendants. New Times' staff and lawyers were not present and evidence showing the outlet had made a good faith effort to rectify its error was not presented.

The court case, which began back in April, suddenly accelerated towards a hefty fine following the publication's interview with a prominent Putin critic. There are additional details contained in The New Times' post on the subject -- including its justifiably dour announcement that it will be appealing this decision -- harbors no expectations any Russian court will reverse this decision.

If it all plays out the way everyone involved believes it will, the Russian government will have secured a "100% Complete" trophy for press suppression. If it can just keep the internet in line, it will be able to return the country to its former Cold War glory.

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Iowa State Students Make Demands Over School Trademark Policy Public, Plan Possible First Amendment Lawsuit

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Iowa State University just cannot stop shooting itself in the foot. After attempting to bully a pro-marijuana student organization out of using school iconography, the school both lost the lawsuit that came afterwards and managed to piss away nearly half a million dollars in taxpayer money in having to pay out the would-be victims of its bullying. Instead of learning its lesson after that whole episode, ISU instead decided to alter its trademark usage policy to be way more restrictive, which only pushed student organizations to drop references to the school en masse. At the same time, the student government issued a resolution demanding the school review its policy again and make it less restrictive. Administration officials at that time agreed to meet with the student government to hear their concerns.Well, that meeting happened this past week, and everybody is still seriously pissed off.

Student organizations demonstrated their issues with Iowa State’s administration for its implementation of a new trademark policy at a meeting Thursday evening.  For the immediate future, Student Government wants an apology from the university and an immediate block on the enforcement of the policy. They have alternate plans of action if this deliberation works out poorly.Woodruff, other members of Student Government and organization presidents agreed that acts of protest like wearing trademarked clothing and sending emails to university officials were encouraged. Student Government also talked to Student Legal Services regarding a possible lawsuit on using the First Amendment as a basis for suit.
For the second time in a couple of years, ISU might find itself the subject of a First Amendment lawsuit brought against it by its own students. Given its track record and the insane amount of money it had to pay out the last time, it would be flatly insane for the school to allow things to get the point of a lawsuit. But, then, this is ISU we're talking about.One of the chief issues the student government has is that the administration apparently has tried to cut them out of the process at every turn.
One issue that Student Government had with the process is the lack of transparency. Woodruff said they have not been able to produce any documentation, including the email that was sent out to club organization presidents, Regent or Big 12 policies that may have prompted the new university measures. In addition to this, he said the meetings that the university had about this subject originally were not public and did not have any minutes recorded.“Things are getting worse, not better,” Woodruff said. “This fuse is getting shorter and shorter.”
And that's not a good sign for the school, given the threat of a possible lawsuit on the horizon. Adding to much of the anger is that much of the iconography and mascot imagery the school uses, and is attempting to control through its trademark policy, were student creations from long ago. To turn the trademark policy like a gun on its own student groups could pretty much only lead to anger.It's a full on mystery why the school doesn't just scrap this altogether and agree to work with its students on a sane trademark usage policy. Perhaps doing so would end this, ahem, cyclone of dissent.

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Rockstar Ports Its Old, Antiquated, Flawed Censorial Blacklist For Player Chat Into New 'Red Dead Redemption' Game

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Those familiar with how multiplayer online gaming works know that inter-player chat is both a feature of this gaming genre and one of its primary hellscapes. On the one hand, in-game chat can be both fun when it's part of the game and funny when you get lively banter between players. On the other hand, such chat is also rife with stupid, sophomoric, abusive language casually bandied about by teens and adults alike. Because of this, some game developers have tried to limit what words can be inputted into the game's chat system. The end result of this is mostly spectacular creativity for players dedicated to being assholes in getting around such systems. But for Rockstar, when it came to the online portion of Grand Theft Auto, this chat blacklist was also a place to stupidly blacklist references to illicit gaming sites like "The Pirate Bay", meaning users entering that text would see their words simply disappeared.But this all gets doubly stupid now that Rockstar is set to release Red Dead Redemption 2, within which it simply ported over its previous blacklist.

As revealed by a user on Reddit, the company has implemented a banned words list, which attempts to deter people from using some of the worst sexual, racial, and religious insults, which is fair enough.However, the developer has also seen fit to prevent players from talking about sites like The Pirate Bay, with the word ‘PirateBay’ banned from the game. Since the galaxy’s most resilient torrent site is hardly a friend of the gaming industry, the decision is not that much of a surprise. However, the developer goes much further with a whole range of bizarre censoring decisions that start of weirdly and get worse.Taking them in alphabetical order, first up we have the term ‘BTJunkie’, which refers to a once-prominent torrent indexing site. What’s so special about this platform is that it’s been shut for well over six years. In fact, the site closed down for good in 2012following the massive raid on Kim Dotcom. Safe to say, it’s not coming back.
The examples go on from there. Now, there are a couple of things to say about this. Obviously blacklisting long-dead websites, even if it would have been once understandable that a game developer would want to keep those names out of the game chat, is painfully stupid. I'm not sure what Rockstar thinks it was accomplishing by keeping those site names out of their game chat when those sites were live, but I'm super-certain that they're accomplishing nothing by doing so when those sites are dead. And because, of course, there is the inevitable collateral damage caused by such word-bans.
The initialism ‘VCDQ’ has also made it onto Rockstar’s Great Firewall, which is nothing short of ridiculous. VCDQ – otherwise known as VCDQuality – was a site that reported on freshly-leaked pirate copies of movies and commented on the quality of the release. The site never offered copyrighted content and was a really useful platform. It too has been dead for a number of years.
The other thing to say about this is simply that any company that would so callously treat chat censorship in this way, where the company thinks that a simple port of old blacklists would suffice, is a company that doesn't care much for its own players. Gaming companies can put in these blacklists if they like, and they might be good things when it comes to hateful and abusive language, but they should do so with care. Gamer interaction is kind of a key component of online multiplayer, after all. To treat banning words with so little regard isn't a great look.So, the end result? Anyone want to place money betting that this censorship of its own customers has made Red Dead 2 free from abusive language and conduct? Or that there aren't more examples of collateral damage out there, specifically since the blacklist also bans the word "Torrent" entirely?I didn't think so.

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Big Boost For Open Access As Wellcome And Bill & Melinda Gates Foundation Back EU's 'Plan S'

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Back in September, Techdirt wrote about the oddly-named 'Plan S', which was nonetheless an important step forward for open access in Europe. As we remarked then, the hope was that others would support the initiative, and that has now happened, with two of the biggest names in the science funding world signing up to the approach:

To ensure that research findings are shared widely and are made freely available at the time of publication, Wellcome and the Bill & Melinda Gates Foundation have today (Monday) joined cOAlition S and endorsed the principles of Plan S.
An article in Nature on the move notes that Wellcome gave out $1.4 billion in grants in 2016-17, while the Gates Foundation spent $4.7 billion in 2017, although not all of that was on science. So the backing of these two organizations is a massive vote of confidence in Plan S and its requirements. Wellcome has also unveiled its new, more stringent open access policy, which includes a number of important changes, including the following:
All Wellcome-funded research articles must be made freely available through PubMed Central (PMC) and Europe PMC at the time of publication. We previously allowed a six-month embargo period. This change will make sure that the peer-reviewed version is freely available to everyone at the time of publication.
This move finally rectifies one of the biggest blunders by academic funding organizations: allowing publishers to impose an embargo -- typically six or even 12 months -- before publicly-funded research work was freely available as open access. There was absolutely no reason to allow this. After all, the funding organizations could simply have said to publishers: "if you want to publish work we paid for, you must follow our rules". But in a moment of weakness, they allowed themselves to be bamboozled by publishers, granting an unnecessary monopoly on published papers, and slowing down the dissemination of research.
All articles must be published under a Creative Commons attribution licence (CC-BY). We previously only required this licence when an article processing charge (APC) was paid. This change will make sure that others -- including commercial entities and AI/text-data mining services -- can reuse our funded research to discover new knowledge.
Although a more subtle change, it's an important one. It establishes unequivocally that anyone, including companies, may build on research financed by Wellcome. In particular, it explicitly allows anyone to carry out text and data mining (TDM), and to use papers and their data for training machine-learning systems. That's particularly important in the light of the EU's stupid decision to prevent companies in Europe from carrying out either TDM or training machine-learning systems on material to which they do not have legal access to unless they pay an additional licensing fee to publishers. This pretty much guarantees that the EU will become a backwater for AI compared to the US and China, where no such obstacles are placed in the way of companies.Like Plan S, Wellcome's open access policy no longer supports double-dipping "hybrid journals", which charge researchers who want to release their work as open access, but also require libraries to take out full-price subscriptions for journals that include these freely-available articles. An innovative aspect of the new policy is that it will require some research to be published as preprints in advance of formal publication in journals:
Where there is a significant public health benefit to preprints being shared widely and rapidly, such as a disease outbreak, these preprints must be published:before peer reviewon an approved platform that supports immediate publication of the complete manuscript under a CC-BY licence.
That's eminently sensible -- in the event of public health emergencies, you want the latest research to be out there in the hands of health workers as soon as possible. It's also a nice boost for preprints, which are rapidly emerging as an important way of sharing knowledge.The Gates Foundation has said that it will update its open access policy, which in any case is already broadly in line with the principles of Plan S, over the next 12 months. Even without that revision, the latest announcement by these two funding heavyweights is highly significant, and is likely to make the argument for similar organizations around the world to align their open access policies with Plan S hard to resist. We can therefore probably expect more to join cOAlition S and help bring the world closer to the long-cherished dream of full open access to the world's research, with no embargoes, and under a permissive CC-BY license.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Bizarre: TrustedReviews Pulls Website Reporting on 'Red Dead' Leak, Pays More Than A Million To Charities Of Rockstar's Choice

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When it comes to the private sector, it's not rare thing to see lawsuits over press leaks. Typically, those lawsuits target the person or entity responsible for the leak itself. While the real irritation in these leaks for companies comes from seeing them reported in the press, suing the press for reporting on a leak is fraught with statutory barriers.Which is what makes it so odd to discover that TrustedReviews, a website that publishes news and reviews in the video game industry, disappeared an article it posted months ago discussing leaked information on the now released Red Dead Redemption 2. Oh, and it agreed to pay over a million dollars to charities of Rockstar's choice.

The British website TrustedReviews today pulled an article, apologized to publisher Take-Two Games, and said it was donating 1 million pounds ($1.3 million) to charity after publishing leaked information about Red Dead Redemption 2 in February of this year. It’s a radical move that raises serious questions about editorial independence and legal threats against the press.TrustedReviews, which is owned by TI Media (formerly Time Inc, UK), is a technology website that publishes deals and reviews. In February, it published an article, sourcing a leaked internal Rockstar document, that listed details from Red Dead Redemption 2, which would come out eight months later. The article contained a list of bullet-points that claimed, among other things, that you’d be able to play all of Red Dead 2 in first-person (true) and that the online component would have a battle royale mode (to be determined).
Reporting on leaks of this sort is common, of course, particularly in the entertainment industries. While content companies have attempted to sue over everything from leaks to publishing spoilers, these threats and suits rarely go anywhere. If press freedoms in a given country are at all a thing, reporting from confidential sources on leaks is almost always included. The UK has its "State Secrets" nonsense, but that doesn't apply here.Which makes all of this bizarre. Adding to the whole thing is TrustedReviews bending over backwards to fully apologize publicly, not in any way lamenting this outcome.
“On February 6, 2018, we published an article that was sourced from a confidential corporate document,” the website now reads. “We should have known this information was confidential and should not have published it. We unreservedly apologise to Take-Two Games and we have undertaken not to repeat such actions again. We have also agreed to donate over £1 million to charities chosen by Take-Two Games.”
Nothing about this makes sense, unless TrustedReviews was somehow involved in the leak itself, rather than simply reporting on it. There is nothing publicly suggesting that is the case, so we're instead left to assume that the site simply didn't want to engage in a costly lawsuit brought by Rockstar, who we have to assume threatened one. On the other hand, a $1.3 million payout isn't exactly peanuts either.Frustratingly, everyone appears to be in the dark here. If only another press outlet could obtain a leak of what exactly the hell is going on here, we might get some clarity.

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posted at: 11:56pm on 05-Nov-2018
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A Decade After Realizing It Can't Threaten A Critic Online, UCLA Returns To Threaten A Critic Online

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Back in the early days of Techdirt, we used to talk about legal disputes involving so-called "sucks sites" -- i.e., web addresses that use a company or organizations' name along with a disparaging adjective, in order to setup a website criticizing the company. In the early 2000s there were a bunch of legal disputes in which overly aggressive lawyers would threaten and/or sue the operators of such sites, claiming they were trademark infringement. Spoiler alert: they were not trademark infringement. There was never any confusion over whether or not the sites were actually endorsed by the trademark-holder (because the sites were criticizing the trademark holder.) Nor, in most cases, was there any commercial activity, which is necessary for a trademark violation.For the most part, lawyers have finally learned that going after sucks sites is a bad idea and we don't hear of as many cases these days. But they do sometimes pop up. The latest is particularly stupid, involving the University of California, Los Angeles (UCLA). The details are laid out for you nicely by Adam Steinbaugh of FIRE (the Foundation for Individual Rights in Education), an organization focused on protecting free speech on campus.You see, UCLA had done this before. Way back in 2009 it had threatened a critical site run by a former student:

In 2009, the university sent a letter to former student Tom Wilde, alleging that his website's domain names, ucla-weeding101.info and .com, infringed on the university's trademarks and amounted to a criminal act under California Education Code Section 92000, which purports to authorize public universities to police virtually any use of their name or acronym. FIRE wrote to UCLA in 2009, explaining that the First Amendment protects cybergriping websites and noting that the university's purported authority under the California Education Code was contrary to the university's obligations under the First Amendment.After some hesitance, UCLA backed down.
But, as you likely guessed, they've done it again. And, here's the real kicker: UCLA sent a letter to the same guy over the same website. As Steinbaugh notes, the latest letter is less threatening and more friendly, talking about giving Wilde a "friendly reminder" and asking as a "courtesy" for him to "remedy" his claimed misuses of UCLA's trademark and... building images (?!?). FIRE again took up the case, reminding UCLA of what happened a decade ago and asking it to retract the letter. Incredibly, UCLA refused to do so, saying that Wilde was creating confusion by using similar images and design. However, a quick comparison of the two sites suggests that no one is going to be confused that the one on the left is officially a part of the one on the right:
UCLA also had claimed in its new letter that it sent that in response to "an inquiry" about Wilde's site. FIRE filed a public records request to find out who the hell "inquired." Turns out: it was a UCLA staff member on the external affairs team who sent an email pointing to the site and saying:
Grumpy former student has created this FB page and websitewas thinking that the Royce Hall image and use of UCLA in the domain name might both be no-nos.
This was under the subject "protecting the brand."Right. So this wasn't someone confused about the site. It was someone who thought that they could go after a site that was critical of UCLA by abusing trademark law -- something that has long been a non-starter, and which is an insult to the First Amendment.You know how you protect your brand? By not threatening critics with a potential legal attack over First Amendment protected speech. And, also, not doing that twice.

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This Week In Techdirt History: More NSA Madness

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Five Years AgoThe ongoing fallout of the Edward Snowden leaks heated up again this week, so we're taking another break from the five/ten/fifteen-year retrospective to dig into what happened this week in 2013.The feds had waited until late the previous Friday to quietly release details of a criminal case that used information from NSA surveillance, but this news was quickly overshadowed by new leaks showing the NSA had collected millions of phone records in Italy and Spain, in addition to the previous revelations about France, and of course about spying on world leaders. Speaking of which, Obama was denying that he knew anything about the NSA spying on Angela Merkel's phone, and was apparently quietly telling the NSA to quit spying so much on the UN (or perhaps just quit getting caught). The Merkel scandal was threatening to scuttle the TAFTA/TTIP negotiations, while the NSA was apparently pretty furious at the administration for denying knowledge — and Mike Rogers was insisting Congress knew about it to, and attacking (with video!) the lawmakers who said that wasn't the case. As for the European bulk collection targets, Mike Rogers was saying they should be thrilled that the US is helping to keep them safe, though it later turned out that those countries' own intelligence agencies were heavily involved. This was one of many conflicting messages though, with the NSA constantly revising its own exact position.Congress, however, was trying to push back, with a bill that would stop the worst of the NSA's excesses. They had no ally in Dianne Feinstein though — she started preparing another bill that would largely codify current practices, then later decided she had changed her mind and agreed the NSA had gone too far, leading NSA officials to admit they were screwed... except then she released her bill anyway and, as expected, it looked like it might even make it easier for the NSA to spy on people.Of course, there was still more to learn about the NSA this week. James Clapper begrudgingly declassified documents that showed the NSA believed it could spy on everyone's location data based on existing approvals (something they had previously denied they do at all). And then the latest realization from the Snowden docs: the NSA had infiltrated Yahoo and Google servers without the companies knowing. Keith Alexander was on stage at an event while the story broke, and quickly cooked up a misleading response that was later formalized with an official non-denial from the agency. While people tried to figure out how the NSA pulled it off, we figured there was one small silver lining: some tech companies were finally starting to realize they should oppose the NSA.Believe it or not, that's not even every NSA post from this week in 2013, but it's the important news. As a final note, the creator of a parody NSA t-shirt also sued the agency over the legal threats it was sending to him.

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Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians

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Earlier this year, we wrote a bunch of posts on the Copyright Office's request for comment on changes needed to the DMCA's anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries' cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you're a documentarian, you can't circumvent. The MPAA, as you would expect, said that allowing for this would kick off "widespread hacking" of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn't want to violate the DMCA to get the Fair Use clips they wanted.Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

Digital Millennium Copyright Act (DMCA) exemptions aren’t just for documentary filmmakers any more. The U.S. Copyright Office and Library of Congress last week broadened a DMCA exception to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the exemption before the Copyright Office, in a written statement. “The use of fair use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary.”
What this means is that more filmmakers will now be able to simply rip clips from protected DVDs to use in their own creative works, as long as the purpose of the clip is used for parody or to demonstrate biographical or historically significant information. This opens up all kinds of uses, of course, but all of them will still be subject to being truly Fair Use cases. That, of course, is a defense, so you can expect lawsuits to be filed before we settle into some kind of a norm here.Still, this is a good decision by the Copyright Office. The idea that the MPAA and others could lock up content that could otherwise be fairly used behind DRM obviously doesn't comport with the purpose of the law.

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posted at: 12:54am on 03-Nov-2018
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Michigan Cops Destroying Drug Cartels With Microscopic Drug Busts, Seizures Of 20-Year-Old Vehicles

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Crushing drug dealers and criminal cartels: that's the asset forfeiture narrative. The reality is something completely different. It's the government taking property from people with a minimum of due process, urged on by a set of perverse incentives. Law enforcement agencies directly profit from the stuff they take from people, so there's really no reason not to.

When the general public hears forfeiture is being used to target criminal cartels, they tend to think of piles of cash, luxury vehicles, sprawling mansions, and the occasional aircraft. In reality, it's whatever cash cops can find laying around (usually less than $1,000) and vehicles a couple of decades old that are someone's barely-reliable ride.

Whatever statistics can be obtained -- and it isn't much, given the secrecy cloaking these state-ordained seizures -- always tell the same story: 99% of civil asset forfeiture is penny ante bullshit. It's this way for several reasons. First, smaller forfeitures aren't worth fighting in court, so small ball seizures are almost guaranteed to end up in the hands of law enforcement. Second, it all adds up over the year. A bunch of small seizures turns into real money eventually. Third, cops aren't willing to let drug lords walk. But they'll take stuff from anyone they can imagine might be part of a cartel, even when it's someone busted carrying nothing more than a personal stash.

And that's if they even find contraband at all. The absence of criminal evidence seldom deters seizures, and forfeitures have been expanded to cover vehicles driven by impaired or uninsured drivers.

Wayne County, Michigan is no exception to this particularly depressing set of rules. As the Michigan Capitol Confidential reports, local law enforcement has seized millions of dollars worth of property, but a closer examination of the data shows its forfeiture programs prey on the poor and/or drug users who have nothing to do with the supply side of the Drug War.

Altogether, there were 736 asset forfeiture proceedings in Michigan in 2017 during which someone lost property to the government despite never being charged with any crime; this happened 380 times in Wayne County. A state law passed in 2015 requires law enforcement agencies across Michigan to submit data about forfeiture to the Michigan State Police.

Jarrett Skorup of the Mackinac Center for Public Policy, who co-authored a recent report on civil forfeiture, said the data shows nearly all of those Wayne County seizures involved vehicles valued at less than $1,000. He said it’s likely that these forfeitures disproportionately affected low-income individuals, who are less able to afford an attorney or navigate the legal system to reclaim their property.

The report [PDF] doesn't break down the total value of vehicles seized, but the numbers bear out Skorup's claim. The state as a whole reported $13 million in net total proceeds from all property forfeited. $11 million of that was cash. There were 7,999 vehicles seized statewide. Simple division says that's only $250 per vehicle. State agencies also seized other property that wasn't vehicles or cash, further lowering the per vehicle estimate.

Now, there are a few unknown factors that may bring that number back up slightly. It's unclear whether this reflects proceeds after auctions, etc. that would result in a lower net total for the state due to differences in expected property value and its actual value after "disposal." This may raise the per vehicle value, but there's still a long way to go from the $250 baseline and a dollar amount that would suggest something other than what appears to be happening here: thousands of seizures of vehicles worth less than the legal costs that would be accrued fighting the forfeiture.

There's more disturbing data in the report beyond the apparent wholesale forfeiture of cars whose value barely exceeds the going rate for scrap. A vast majority of those targeted by forfeiture -- with or without accompanying criminal charges -- were caught with the lowest amounts needed to trigger criminal charges. 88% of cocaine-related seizures involved the less than 50 grams. 83% of marijuana-related seizures also involved the lowest amounts needed to charge someone. And so on down the chart of criminal charges.

The lowest-level busts make up the vast majority of all seizures. It makes sense that officers would encounter users far more often than dealers. What doesn't add up is the narrative: that forfeitures are essential to destroying drug cartels. All it's really doing is depriving people of property and disproportionately punishing the demand side of the drug problem.

Serious crimes barely register. There are thousands of drug-related forfeitures -- with more than 80% of those covering bare minimum possession. The list of serious crimes -- ranging from grand larceny to child molestation to home invasion -- makes up only 95 of the state's ~6,000 seizures. The only other big chunk (984 forfeitures) is related to prostitution charges, showing the state is willing to take away vehicles for engaging in consensual sexual transactions.

This abuse of a law enforcement tool has gotten the county sued. Multiple citizens are seeking to have the program found unconstitutional. Two of the plaintiffs listed in this story by the Detroit News have waited years for a hearing on seized vehicles, one of which is a 1998 Toyota Avalon, to give you some idea what kind of prime drug-dealing vehicles the county targets.

The small bright spot in all this is there's a bill seeking to institute a conviction requirement for forfeitures. If state agencies have to be able to prove their case beyond a reasonable doubt, they'll be far less likely to engage in specious seizures based on little more than the agency's desire to have more money/stuff. Unfortunately, the bill appears to be waiting for its Senate counterpart to arrive and it's been waiting almost six months at this point.

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As Canadian ISPs Requested, Canada Get Proposed Law To Ban Copyright Settlement Letters

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Well, that didn't take long. We had just discussed Canadian ISPs petitioning the government to amend copyright law such that they would no longer be forced to pass along copyright settlement threat letters to their customers from copyright trolls such as Rightscorp. The opportunity for this comes as part of Canada amending its copyright law as a result of Donald Trump's NAFTA replacement, the USMCA. Well, it seems like there are those in the Canadian government who were listening, as a new bill has been introduced that will effectively outlaw such settlement letters.

The applicable language is part of the budget implementation Bill C-86 and reads as follows.A notice of claimed infringement shall not contain
(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation.
This text will effectively ban all settlement attempts. That’s good news for members of the public who are no longer at risk. However, the Rightscorps of this world will be less pleased, as it destroys their business model in Canada.
It seems to me that this actually goes further than ISPs had requested. All those ISPs had asked was to not be party to something that looks like extortion of their own customers. This law, by my reading, goes further and forbids the common settlement letter entirely. While this all still has to be voted on and approved before it becomes law, all of the early response to this news has been positive from the Canadian public. The government going against that sentiment and siding instead with copyright trolls would be an insane move, meaning that this will likely pass into law.And then, perhaps, we can export a like law to the States. You know, to "bring our copyright laws in line to meet our international trade obligations"?

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posted at: 12:53am on 02-Nov-2018
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Judge Says Memphis PD's Surveillance Of Protesters Violated 40-Year-Old Consent Decree

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Spying on people engaged in First Amendment-protected activity is a time-honored government tradition. The FBI, NSA, and CIA pioneered unconstitutional surveillance in the 1960s, leading eventually to the Church Committee's smackdown and a series of reforms aimed at preventing the casual abuse of surveillance powers.

It worked. A little. The DHS has picked up where the other agencies left off, portraying its surveillance of protesters as part of its national security purview. The NYPD has also done this regularly, violating both the Constitution and agreements it made following civil rights lawsuits.

The Memphis Police Department is another law enforcement agency that can't keep its nose out of the public's First Amendment business. A decision handed down by a Tennessee federal court will hopefully put an end to the Memphis PD's long-running violation of a 40-year-old consent decree.

The ACLU of Tennessee -- the other partner in the 1978 consent decree -- sued the City of Memphis over unconstitutional police activity. The decision [PDF] summarizes the numerous violations engaged in by Memphis law enforcement.

The Court finds that the ACLU-TN has shown by clear and convincing evidence that the City:

1) Conducted “political intelligence” as specifically defined and forbidden by the Consent Decree;

2) Operated the Office of Homeland Security for the purpose of political intelligence;

3) Intercepted electronic communications and infiltrated groups through the “Bob Smith” Facebook account;

4) Failed to familiarize MPD officers with the requirements of the Decree;

5) Did not establish an approval process for lawful investigations into criminal conduct that might incidentally reveal information implicating First Amendment rights;

6) Disseminated information obtained in the course of an investigation to individuals outside of law enforcement; and

7) Recorded the identities of protest attendees for the purpose of maintaining a record.

The fifth one on the list is especially interesting, given recent events. Last month, Facebook sent a letter to Mike Rallings, the director of the MPD, reminding him and his officers that its "real name" policy forbids impersonation and fake accounts. This isn't a practice limited to the Memphis PD, but it is the agency Facebook chose to call out publicly for violating its policies.

The 1978 Consent Decree laid this all out very clearly:

The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.

Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.

Despite this, the PD engaged in everything listed above, which clearly violates the limitations placed on it forty years ago. After deciding the ACLU has standing to pursue this lawsuit, the court says the PD cannot invoke its "public safety" mantra to excuse surveilling protesters, even if public safety was actually its true objective. Trying to dodge culpability by claiming forbidden surveillance is just good police work is a non-starter. The consent decree does not give the MPD the wiggle room it thinks it has.

The Consent Decree... is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation. The City has agreed that it will not engage in certain activity and is bound by that agreement.

The details of the violations run several pages. This is just the beginning of the MPD's wrongdoing.

MPD’s Real Time Crime Center (“RTCC”) conducted political intelligence when an officer searched its social media collator for all instances of the term “Black Lives Matter,” because the information gathered related to First Amendment Rights. MPD officers gathered and circulated social media posts about potential boycotts and boycotts are squarely within the protection of the First Amendment. MPD gathered information on journalists based on their associations with Black Lives Matter. (Testimony of Eddie Bass, ECF No. 138 at 5736-37; Ex. 120 “Below are three twitter accounts for two freelance journalist[s] and one Commercial Appeal journalist who apparently have the trust of the BLM protesters. These accounts seem to provide good real-time information during a protest event.”) MPD indexed information relating to the leadership of lawful protests. Major Lambert Ross ordered social media monitoring for a “BLM Rally” and a “Community Organizers Cookout.” Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.

In addition, the MPD converted its "Office of Homeland Security" into a clearinghouse for unconstitutional surveillance, gathering "political intelligence" on everyone from Black Lives Matters to pro-Palestinian activists to people pushing for a $15/hr minimum wage. The PD's "Bob Smith" Facebook account was used to track political activists and surveill their activities.

All of these violations stemmed from the MPD's failure to train its officers to comply with the consent decree. It's not so much of a failure as it is decades of just not caring. The PD dedicated one page to the decree in its "voluminous policy and procedural manual." Officers engaged in violations were often not aware they were violating the decree. This ignorance was also displayed by department supervisors and officials. As the court points out, this isn't a new problem. It's a continuous problem directly traceable to "inadequate training over a sustained period of time."

Here's what the city will be doing to remedy this. First, the PD will be forced to stop gathering "political intelligence" because there's no possible way for it to do this and still comply with the consent decree. It will also prevent any misunderstandings of what's forbidden by the consent decree. The PD will also need to train its command staff on decree compliance, quite possibly for the first time. Guidelines will be developed and put in place to govern the MPD's social media activities. All social media search terms used by officers or investigators will need to be turned over to the court every three months. And, as a capper, the city will be paying the ACLU's legal fees.

This may eventually upend some deep-seated problems in the department. Then again, the MPD has had 40 years to perfect its compliance with the consent decree and has steadily moved farther away from the crystal-clear restrictions it contained. If nothing else, a federal court has publicly aired the department's dirty laundry. This may not push the MPD into admitting and accepting it has a problem. But it does prevent it from remaining in denial.

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Stupid Patent Of The Month: How 34 Patents Worth $1 Led To Hundreds Of Lawsuits

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One of the nation's most prolific patent trolls is finally dead. After more than a decade of litigation and more than 500 patent suits, Shipping & Transit LLC (formerly known as Arrivalstar) has filed for bankruptcy. As part of its bankruptcy filing [PDF], Shipping & Transit was required to state how much its portfolio of 34 U.S. patents is worth. Its answer: $1.We are recognizing Shipping & Transit's entire U.S. portfolio as our latest stupid patent of the month. We agree that these patents are worthless. Indeed, they have always been worthless, except as litigation weapons. In the hands of their unscrupulous owners, they caused enormous damage, costing productive companies more than $15 million in licensing fees and untold legal expenses. That's tens of millions of dollars that won't be used to invest in new products, reward shareholders, or give raises to workers.Dozens of worthless patents All patent troll stories start with Patent Office. You can't be a patent troll without patents. And you can't have patents unless with Patent Office grants them. We have found many occasions to write about problems with patent examination. The Patent Office spends only a few hours per application and regularly issues software patents without considering any real-world software at all. This helps explain how an entity like Shipping & Transit could end up with dozens of valueless patents.Shipping & Transit claims to be "one of the pioneers of determining when something is arriving and being able to message that out." Its patent portfolio mostly relates to tracking vehicles and packages. Of course, Shipping & Transit did not invent GPS tracking or any protocols for wireless communication. Rather, its patents claim mundane methods of using existing technology.Consider U.S. Patent No. 6,415,207. This patent claims a "system for monitoring and reporting status of vehicles." It describes using computer and software components to store status information associated with a vehicle, and communicate that information when requested. In other words: vehicle tracking, but with a computer. It doesn't disclose any remotely new software or computer technology. Rather, the patent claims the use of computer and software components to perform routine database and communications operations. There is nothing inventive about it.Given that it was aggressively filing lawsuits as recently as 2016, it is striking to see Shipping & Transit now admit that its patent portfolio is worthless. While many of its patents have expired, that is not true of all of them. For example, U.S. Patent No. 6,415,207 does not expire until 2020. Also, the statute of limitations for patent infringement is six years. An expired patent can be asserted against past infringement so long as the infringement occurred before the patent expired and within the last six years. Many of the patents Shipping & Transit have asserted in court expired less than six years before its bankruptcy filing. Yet Shipping & Transit valued all of its U.S. patents at $1.A decade of patent trollingWhen it was known as Arrivalstar, Shipping & Transit sued a number of cities and public transit agencies claiming that transit apps infringed its patents. (While the exact legal relationship between Arrivalstar S.A. and Shipping & Transit LLC is unclear, Shipping & Transit has itself said that it was "formerly known as Arrivalstar.") Its litigation had all the hallmarks of classic patent trolling. When transit agencies banded together to defend themselves on the merits, it quickly abandoned its claims.Shipping & Transit's campaign continued for years against a variety of targets. In 2016, it was the top patent litigator in the entire country, mostly targeting small businesses. One judge described its tactics as "exploitative litigation." The court explained:

Plaintiff's business model involves filing hundreds of patent infringement lawsuits, mostly against small companies, and leveraging the high cost of litigation to extract settlements for amounts less than $50,000.
For many years, this strategy worked. Shipping & Transit/Arrivalstar is reported to have collected more than $15 million from defendants between 2009 and 2013.Finally, after more than a decade, Shipping & Transit's exploitative tactics finally caught up with it. First one, then another federal judge awarded attorneys' fees to the defendants in cases brought by Shipping & Transit. With defendants successfully fighting back, it stopped filing new cases.The end: Shipping & Transit files an inaccurate bankruptcy petitionShipping & Transit filed its bankruptcy petition [PDF] on September 6, 2018. The petition discloses that Shipping & Transit's gross revenue in the two-year period of 2016 and 2017 was just over $1 million dollars. Of course, this does not include the legal costs that Shipping & Transit imposed on its many targets. It claimed to have no revenue in 2018.Other than its 34 U.S patents (valued at $1), and its 29 worldwide patents (also valued at $1), Shipping & Transit claims to have no assets at all. Where did more than $1 million dollars it received go? The application doesn't say.The bankruptcy petition, submitted under the penalty of perjury and signed by Shipping & Transit's Managing Member Peter Sirianni, contains at least one false statement. A bankruptcy petition includes Statement of Financial Affairs (Form 207). Part 3 of this form requires the debtor to list any "legal actions in which the debtor was involved in any capacitywithin 1 year before filing this case." Shipping & Transit said "none."But that isn't true. On July 23, 2018, a writ of execution [PDF] was issued as to Shipping & Transit in the amount of $119,712.20. This writ was issued in Shipping and Transit, LLC v. 1A Auto, Inc., Case No. 9:16-cv-81039, in the Southern District of Florida. The judge in that case had issued a final judgment [PDF] on April 3, 2018, awarding fees and costs to the defendant. Both of these orders, and many other court filings, took place within a year of Shipping & Transit's bankruptcy petition. Yet Shipping & Transit still affirmed that it had not been involved in litigation "in any capacity" within a year of the bankruptcy filing.Shipping & Transit's petition does list 1A Auto as an unsecured creditor. Even though a court has issued a writ of execution with a precise six-figure amount, Shipping & Transit stated that the amount of 1A Auto's claim is "unknown."It is not surprising that a decade of abusive patent trolling would end with an inaccurate bankruptcy petition. To be clear, our opinion that Shipping & Transit's bankruptcy petition includes a false statement submitted under oath is based on the following disclosed facts: its answer to Part 3 of Form 207 of its petition, and the public docket in Case No. 9:16-cv-81039 in the United States District Court for the Southern District of Florida.A monster story for HalloweenUPSTO Director Andrei Iancu recently gave a speech where he suggested that those who complain about patent trolls are spreading "scary monster stories." It may finally be dead, but Shipping & Transit was a patent troll, and it was very, very real. We estimate that its lawsuits caused tens of millions of dollars of economic harm (in litigation costs and undeserved settlements) and distracted hundreds of productive companies from their missions. Research shows that companies sued for patent infringement later invest less in R&D.A patent system truly focused on innovation should not be issuing the kind of worthless patents that fueled Shipping & Transit's years of trolling. Courts should also do more to prevent litigation abuse. It shouldn't take an entire decade before an abusive patent troll faces consequences and has to shut down.While it lived, Shipping & Transit/Arrivalstar sued over 500 companies and threatened many hundreds more. That might be a "monster story," but it is true.Reposted from the EFF's Stupid Patent of the Month series.

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Cop Sued For Bogus Arrest Of Man Who Broke Up The PD's Distracted Driving Sting

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A cop couldn't handle someone diverting his revenue stream. So he decided to do something about it. That "something" was getting sued for civil rights violations. How this will improve revenue generation remains to be seen, but for now one officer of the Stamford, Connecticut police department will need to lawyer up. (via Courthouse News Service)The plaintiff, Michael Friend, happened to notice a bunch of police officers issuing tickets to drivers for distracted driving. One officer, Richard Gasparino, was hiding behind a telephone pole on the other side of the street looking for drivers using their cellphones and relaying his suspicions to officers further down the road.Friend moved south of the Stamford PD sting operation and held up a handwritten sign reading "Cops Ahead." This didn't sit well with Officer Gasparino, who swiftly decided he'd like to be sued by Friend and his representation. He began his tour of culpability with the following hilarious assertion. From the lawsuit [PDF]:

[T]he defendant approached Mr. Friend and snatched the sign from him.Mr. Friend began video recording the defendant with his phone, as he thought the defendant was behaving illegally.The defendant told Mr. Friend that he was “interfering with our police investigation” and told Friend to leave the spot where he was standing.
Calling this little operation an "investigation" really stretches the meaning of the word. There's literally zero investigating going on. A static speed camera does just as much investigating.From there, things got worse/stupider/more unconstitutional. Friend walked away from this, headed another block south, and made a bigger sign. Thirty minutes later, Officer Gasparino came back for more. Friend again took out his phone and began recording.
[T]he defendant snatched Mr. Friend’s phone and stopped Friend from recording because he claimed to want to “protect [him]self from any false claims of physical abuse.”
Um. What? One would think a recording would be the best evidence to use against "false claims of physical abuse." I guess recordings made by citizens don't count. Officer Gasparino took the phone in Friend's hand as well as one he was carrying in his pocket. This sounds exactly like an unjustified search and seizure -- one that's at least partially captured on phone tape.Seeing that his bogus claim of investigation interference was having zero effect on Friend's sign-making, Gasparino upped the ante by arresting Friend for interfering with the so-called "investigation." Friend was taken to the station by another officer, who helpfully explained why Gasparino was so upset with Friend and his signs.
On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.By warning motorists, Deems claimed, Mr. Friend was decreasing the number of tickets that the Stamford employees could issue, and therefore decreasing their chances of earning overtime on a cellphone sting grant in the future.
Seems like Officer Gasparino should have sued Friend for tortious interference rather than trash his signs, steal his phones, and book him on such a transparently bogus charge. Gasparino reiterated his belief that Friend's actions were illegal interference with a business model, noting that officers were not "observing as many violations as they should be," thanks to Friend's "Cops Ahead" signs.And because he's a complete dick, Officer Gasparino set Friend's bail at $25,000… for a misdemeanor interference charge. Friend remained in jail until 1:30 the next morning. He was released by the bail commissioner who immediately set Friend's bail to $0.But that didn't stop the financial pain for Friend. He had to purchase a new phone later that day because his other phones were still being held by the Stamford PD.Unbelievably, it took prosecutors to set this straight, during which the prosecution took a shot at Officer Gasparino's "but muh revenue" assertions.
[W]hen Mr. Friend’s case was called, the prosecution entered a nolle prosequi and explained to the court that Mr. Friend’s signs “actually . . . help[ed] the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.”
This is a master class on how to get sued, taught by Professor Gasparino. The taking of Friend's signs raise both First and Fourth Amendment concerns. There's the "shut up" part of it and the taking of someone's property without cause, even if said property was nothing more than cardboard.Then there's the seizure of Friend's phones -- both done without cause. Even if the interference charge were credible (it isn't), there's simply no reason to believe the phones contained evidence of this crime. Any recordings that may have supported Gasparino's assertions were ended by Gasparino himself before they could have captured any "obstructing."And finally, there's the seizure of Friend himself. This might be the most difficult count to secure a win on, considering cops are given a whole lot of leeway to arrest people for crimes both real and imagined. The imagined ones tend to be tossed by prosecutors, but the courts have consistently held officers need only believe a law was violated to effect an arrest.None of this looks good for Officer Gasparino. These allegations lay out a sadly-credible story of a cop using his power to harm someone who made his life a tiny bit more difficult. Gasparino twice overstepped his Constitutional bounds and followed it up by making sure Friend couldn't just walk away from the stupidity by swinging a $25k bail hammer at him. This is adding injury to injury -- not exactly a great move when you might find yourself being held legally responsible for the injury pile-on.

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