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June 2019
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The Copyright Fights Over The Australian Aborigine Flag Continue To Demonstrate Copyright Insanity

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It's been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s "as a symbol of unity and national identity" by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn't do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.Apparently, that's ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional "sending of the cease-and-desist letters."

In October 2018, Thomas granted WAM Clothing worldwide exclusive rights to use the flag on clothing. Late last week, it issued a series of cease and desist notices to several companies, including the AFL, which uses the flag on jerseys for the Indigenous round, and an Aboriginal social enterprise which puts the profits of its clothing sales back into Aboriginal community health programs.A spokesperson for WAM Clothing said it had been actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options.Until WAM Clothing took on the licence Harold was not receiving recognition from the majority of parties, both here and overseas, who were producing a huge amount of items of clothing bearing the Aboriginal flag, the spokesperson said.
Of course, some might argue that if you design a "flag" and declare that you did so "as a symbol of unity and national identity," and then allow that flag image to be used for decades in order to establish it as identifying indigenous Australians it is (1) kind of an obnoxious move to then register a copyright, license it and start sending out legal threats and (2) so blatantly obviously against anything having to do with copyright law. Thomas did not design the flag because of the incentives of copyright law, as even he admits. The idea that he then gets to benefit from that law that had nothing to do with incentivizing the creation seems quite ludicrous.Meanwhile, the mess has copyright lawyers in Australia suggesting that the government forcibly buy out Thomas' copyright:
Former CEO of the Australian Copyright Council Fiona Phillips says the legal status of the Aboriginal flag is a unique situation that requires a public policy solution.[....]The Aboriginal flag is not just an artistic work, it's a national symbol and is particularly important to Indigenous Australians, said Phillips, who has also worked at the Australian Competition and Consumer Commission and as a government adviser on copyright law.The government could seek to compulsorily acquire copyright from Mr Thomas on public policy grounds. They could buy him out for the rights.
Yes, the government could do that, and it would still be fairly crazy. It seems like a better idea is recognizing that if you push something out there as a symbol for all to use, and then decades later come back with copyright demands, the copyright claims should be laughed at, rather than made real. Tragically, Australia went in the other direction, leading to the present mess.

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posted at: 12:00am on 19-Jun-2019
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Site-Blocking In Australia Expanded Again To Include 105 More Sites, Including A Search Engine

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The Australian government approved an amended copyright law late last year that made subtle changes to what types of sites ISPs can be ordered to be blocked by the courts, and the process by which that order is obtained. Essentially, the changes amounted to allowing blocking of sites with the primary "effect" being copyright infringement, rather than the primary "purpose", along with an expedited process for getting additional site-blocking orders for sites that set up mirror sites to route around the blocks. Before the ink on the legislation was even dry, just as we warned, Village Roadshow and a bunch of American entertainment companies swooped into the court system to order blocks on all kinds of sites.And now it appears those groups were just getting started. After getting 181 domains blocked late last year, industry groups have decided to expand that with a recent request to block an additional 105 domains.

Soon after, the same companies (plus Australian distributor Madman and Tokyo Broadcasting) returned to court with a new application to block 79 “online locations” associated with 99 domains.The order appears to have changed slightly since the original application. It now lists 104 domains spread across 76 allegedly-infringing platforms. Many of the sites are well-known torrent and streaming services, including StreamCR, Torrenting, TorrentLeech, AnimeHeaven, and HorribleSubs, to name just a few.
It's a significant number of sites to be sure and it's all enabled by the change in the copyright law. It's worth keeping in mind that we're less than a year into the change in law, and the entertainment industry has already blocked something like 200 sites. Even if we were to stipulate the pirate-y nature of these sites, which we shouldn't, the speed at which this much wholesale blocking is being done is tremendous.On the topic of whether all the sites being blocked are pirate sites, at least one of those sites is attempting to defend itself.
It’s extremely unusual for any sites to mount any kind of defense against blocking but earlier this year, Socrates Dimitriadis – the operator of Greek-Movies.com – did just that.“My site is just a search engine that refers users to third-party websites,” he explained in a letter to the Court.That appears to have held no sway with the Judge. Greek-Movies is the 15th site listed in the injunction, with ISPs required to target its main domain (greek-movies.com) and/or its IP address 136.243.50.75, using DNS, IP address or URL blocking, or “any alternative technical means”.
This reveals the pernicious nature of the "purpose" to "effect" change in copyright law. There are simply no clear lines drawn here, which has now resulted in a site that does not host any infringing content being blocked under the argument that it's primary effect is still to effect copyright infringement. Precisely how long do you think it will take before someone in the music industry attempts to get YouTube blocked using that same argument? After all, there is a lot of infringement being done on YouTube, even though the primary purpose of the site is certainly not to commit copyright infringement. It sure seems like someone could do a statistical analysis of views and/or traffic on YouTube, mess with the data, and reach the conclusion that infringement is a primary effect of the site, no?Again, we're not even a year in. This is only going to get much, much worse.

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posted at: 12:00am on 19-Jun-2019
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Appeals Court To Cops: There's Nothing Inherently Suspicious About Running From The Police

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The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn't "reasonable" when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.Contraband was found, leading to Brown's motion to suppress. The lower court said this combination -- an anonymous report of a gun and Brown's decision to run when he saw the police cruiser -- was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can't be inherently suspicious in a state where carrying a gun in public is permitted.

In Washington State, it is presumptively lawful to carry a gun. It is true that carrying a concealed pistol without a license is a misdemeanor offense in Washington. See RCW §§ 9.41.050(1)(a) (“[A] person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol . . . .”), 9.41.810 (explaining that any violation of the subchapter is a misdemeanor “except as otherwise provided”). However, the failure to carry the license is simply a civil infraction.
There was no reason for officers to assume Brown's gun was unlicensed. Since carrying a gun in Washington is "presumptively legal," the officers would have needed more info than they had to perform a stop to just to ask Brown for his carry license. The anonymous tip officers received said only that a YWCA resident had approached the desk and said they'd seen a man with a gun. No further information was given by the tipster.Faced with the weakness of the tip and the presumptive legality of gun ownership, the police then argued Brown might have been illegally "displaying" his gun to "cause alarm." But the court denies this argument -- first raised on appeal -- as being no better than assuming Brown's mere gun possession was enough to justify a stop.
Faced with this reality, the government now argues that the officers suspected that the manner in which Brown was carrying his gun was unlawful: it is “unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, . . . that warrants alarm for the safety of other persons.” RCW § 9.41.270. Never mind that nothing in the record could support such a finding. No evidence shows that the resident was alarmed at the time she reported seeing the gun. There is no report that she yelled, screamed, ran, was upset, or otherwise acted as though she was distressed. Instead, the 911 call reported only that the resident “walked in” and stated “that guy has a gun.”
Finally, the government argued that Brown's decision to flee when he saw police officers was inherently suspicious. Again, the court says this is wrong. While fleeing officers can be suggestive of wrongdoing, it is only one factor and it's one heavily influenced by the deteriorated relationships many law enforcement agencies have with the communities they serve. The Ninth Circuit quotes Supreme Court Justice John Paul Stevens, who put this in his dissent from the Court's 2000 decision in Illinois v. Wardlow:
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.
The Appeals Court adds to this, saying not much has improved since Justice Stevens authored his dissent:
In the almost twenty years since Justice Stevens wrote his concurrence in Wardlow, the coverage of racial disparities in policing has increased, amplifying awareness of these issues. [...] Although such data cannot replace the “commonsense judgments and inferences about human behavior” underlying the reasonable suspicion analysis, Wardlow, 528 U.S. at 125, it can inform the inferences to be drawn from an individual who decides to step away, run, or flee from police without a clear reason to do otherwise. See id. at 133 (“Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices.” (footnote omitted)).
Attached to this paragraph is a footnote quoting the DOJ's investigation of the Seattle Police Department -- the one involved in the arrest at the center of this case. The 2011 report found the Seattle PD routinely deployed "unnecessary and excessive force" and engaged in "racially discriminatory policing."The court goes on to say this isn't just a problem with the Seattle PD, but law enforcement in general, which gives plenty of people all the reason they need to dodge interactions with law enforcement.
Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an “innocent” explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop.
The public isn't obligated to stop just because an officer says, "Stop." In this case, the officers said nothing until Brown was already running. Lots of people have zero interest in talking to the police. Some don't want the hassle. Most don't enjoy the experience. And some suspect they'll probably end up arrested or dead, even if they haven't done anything wrong. If law enforcement doesn't like the way this decision breaks, it really can't blame anyone else for the public's reaction to the unexpected presence of officers. Even the tipster said she didn't want to talk to an officer because, according to the YWCA rep speaking to the dispatcher, she "[does not] like the police." Running from cops isn't inherently suspicious. Far too often, running from cops just makes sense.

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posted at: 12:00am on 18-Jun-2019
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We're Apparently Scanning Our TVs For Viruses Now

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We've noted for many years that (like so many "internet of things" devices) modern smart televisions have the security protection equivalent of damp cardboard. Not only are they often easily hacked (something intelligence agencies are super excited about since it gives them audio access to targets), but the companies that make them have been busted repeatedly for hoovering up user usage data (and even audio from your living room), and then failing to adequately secure it.This week, Samsung took a bit of heat for urging the company's TV customers to, for the first time, occasionally run an antivirus scan on their television sets. The Tweet was online online briefly before Samsung deleted it, apparently realizing it only advertised the fact that you shouldn't be getting viruses on your TV set in the first place:

That's amusing for several reasons. One, because customers wouldn't be getting viruses on their television sets if these products had even the most basic security protections, something TV vendors have failed at for years. Two, because it highlights how many modern televisions have become insanely complicated. Not because consumers necessarily want them to be insanely complicated, but because most TV vendors want you using their embedded streaming platforms and as opposed to a third-party streaming device (like Roku, Chromecast, or a game console).And of course they want you using their streaming platforms because they want to monetize your viewing and other profitable data. As a Vizio executive recently acknowledged, this can help subsidize the cost of cheaper TV sets. That creates a dilemma whereby the consumer is forced to pay a premium if they want a TV set that simply displays a god-damned image and doesn't hoover up their personal data:
The problem is if you've shopped for a TV lately, it's effectively impossible to find a "dumb" television that simply passes on signal from other devices. As in: they're simply not available at any meaningful scale, even if you were willing to pay a significant premium for them. Many people certainly are; most embedded TV OS platforms are kind of terrible, and users would rather buy a new streaming box (Roku, Chromecast, Apple TV) every few years than be forced to buy an entirely new TV set because the embedded streaming hardware becomes outdated (something TV vendors clearly would benefit from).While some set vendors might argue that dumb televisions don't exist because there's no market demand for them, the fact is they haven't even bothered to try. And they haven't bothered to try because they're fixated on accelerating the TV upgrade cycle and collecting and selling your personal usage data to a universe of partners. Which again, might not be quite as bad if these companies had done a good job actually securing and encrypting this data, or designing television OS' that didn't feel like they were barfed up from the bowels of 1992 GUI design hell.It's all kind of a silly circle dysfunction but pretty standard operating procedure in the internet of broken things era, where an endless list of companies now sell over-hyped internet-connected appliances, gleefully collect and monetize your data, but can't be bothered to adequately secure that data or provide consumers with clear options to avoid data collection entirely.

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posted at: 12:00am on 18-Jun-2019
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This Week In Techdirt History: June 9th - 15th

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Five Years AgoThis week in 2014, James Clapper finally admitted that the number of documents Ed Snowden took was probably a lot less than the much-bandied 1.7-million figure, while various former intelligence officials were not happy about Clapper's gag order on talking to the press. A new report examined the reactions to the Snowden leaks from governments around the world, and we noted one big positive result was companies being less ready to help the NSA. But agency defenders were still telling lots of lies, Mike Rogers was calling Google unpatriotic for opposing spying on its users, and we awaited a key vote in congress that would reveal how much it valued people's privacy.Ten Years AgoThis week in 2009, the Swedish Pirate Party surprised everyone by winning a seat in the EU parliament for Christian Engstrom, who used the attention to explain the party (and its name) to an often-confused press. Amidst the push for fashion copyright some smart designers were realizing it would be a bad thing, Bad Science's Ben Goldacre tore apart a bogus study about file sharing, and a UK ISP boss was trying to explain to the industry that it needs to give up on trying to stop all piracy. In France, the consitutional council gutted the recently-passed three strikes program, video game companies were still whining about used game sales, and we saw the beginning of another notoriously silly copyright dust-up when an Australian music publisher claimed Down Under by Men At Work was a copy of the children's song Kookaburra.Fifteen Years AgoThis week in 2004, people were cluing into the huge learning benefits for kids who use computers — and the fact that over-obsession with "internet risks" can undermine these benefits. We took a look at how being prevented from using a cellphone sparks extreme anger in some, but is embraced as a nice break by others. Television was trying to figure out how to embrace and/or compete with broadband, while the RIAA was complaining that digital broadcasts would make radio too high-quality, and that would be bad. And after a brief flurry of trading with some people shelling out hundreds of dollars for the hyped new email service, Gmail invites flooded the market and tanked the price.

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posted at: 12:00am on 16-Jun-2019
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Pepe The Frog Creator, Infowars Both Claim Victory After $15k Copyright Settlement

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A little over a year ago, we discussed Matt Furie, the creator of the Pepe the Frog character that became an alt-right meme sensation, suing Infowars for selling posters featuring his character. That post was fraught with subtle takes, frankly, largely the result of Furie's wishy-washy history over how he protected his creation, or not, and the fact that the other side of the story was Infowars. Infowars is of course a conspiracy-mongering lie-factory run by play-acting assclowns that make gobs of money by getting followers to harass the parents of dead children and then selling those same followers merchandise and diet pills.A better description of the hellscape that is 2019 cannot be found.Still, Furie's decision to sue Infowars despite his previously being cool with people making memes out of the Pepe character made it clear that his reason for suing was a moral one, in that he didn't want Pepe to be used alongside hateful content. Copyright, meanwhile, is meant to be deployed on economic grounds, making this all quite murky. On top of that, meme culture could be threatened by these types of actions, all over a moral dispute that really has no place in terms of copyright enforcement.Well, in keeping with the theme, Furie's moral dispute has resulted in a moral victory of sorts, with Infowars agreeing to settle out of court for $15k and both sides claiming victory. First, the facts on the settlement.

Infowars was forced to pay $15,000 in a settlement to the creator of Pepe the Frog, a cartoon amphibian who had been co-opted as a meme by right-wing internet users, after selling a poster that featured the character on its website.
Per Furie's side of the equation, the paltry sum was by design. Furie has stated publicly through his lawyers that this wasn't meant to be a money grab. Instead, it was meant to deter other groups that would seek to re-purpose Pepe for hateful speech. This, again, is simply not the purpose of copyright law. Furie can be permissive with the image being used by some and restrictive for others, but the fact that copyright law allows this is a bug and not a feature.Infowars, meanwhile, is spinning this as a complete victory due to the small amount of money in the settlement.
Infowars claimed a “strategic victory” for Jones, calling the sum a “tiny settlement” in a release posted on the website. Infowars lawyer Robert Barnes said in a statement: “Happy to announce the folks suing Infowars over Pepe the Frog have agreed to settle, and accept a licensing fee of $15,000.”Barnes said: “They thought we wouldn’t fight. They thought we wouldn’t win in court. They thought wrong.”
How truthful you think Infowars is being in labeling this as any kind of victory aside, the fact that it can put out statements like this undercuts the moral argument question to at least some degree. If Furie's purpose in using copyright law to claim a moral victory rested on deterrence, Infowars' statement sure doesn't send the kind of message that will result in deterrence at all. Instead, the copyright lawsuit almost looks like a pass-through cost.As for Furie's side, even the victory lap his lawyers took makes it clear that this is all about a moral stance.
“For the last year or so we’ve been playing this game of Whack-a-Mole using cease-and-desist letters and the Millennium Copyright Act,” Tompros explained. “Memes are sort of new and the internet spread of memes are certainly a recent phenomenon, but at the end of the day, the copyright principles are reasonably easy to apply in this context, as long as you’re thinking about it precisely and carefully.”“Matt (Furie’s) going to enforce his copyrights aggressively to make sure nobody else is profiting off associating Pepe the Frog with hateful imagery,” Tompros said.
Except that doesn't really do the job, does it? Unless Furie wants to expand his Pepe war on non-commercial uses, much of which would likely be protected Fair Use, the hateful imagery is absolutely going to continue. Dancing in the end zone by claiming that commercial uses will heretofore cease seems like the hollowest of victories.So what was all of this for? A tiny settlement awarded to a creator that didn't like how his content was being used in some instances with the defendant claiming a strategic victory. It's hard to see how that isn't a waste of everyone's time.

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posted at: 12:00am on 15-Jun-2019
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The Flipside To Figuring Out What Content Do You Block: Cloudflare's Project Galileo Focuses On Who It Should Protect

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There has been so much discussion lately about the impossibility of doing content moderation well, but it's notable that the vast majority of that discussion focuses on what content to ban or to block entirely. I do wish there was more talk about alternatives, some of which already exist (from things like demonetization to refusing to algorithmically promote -- though, for the most part, these solutions just seem to annoy people even more). But there is something of a flipside to this debate which applies in perhaps somewhat more rare circumstances: what content or speakers to specifically protect.I'm thinking of this, in particular, as Cloudflare has announced the 5th anniversary of its (until now, mostly secretive) Project Galileo offering, in which the company provides free security to around 600 organizations which are likely targets of attacks from well resourced attackers:

Through the Project, Cloudflare protectsat no costnearly 600 organizations around the world engaged in some of the most politically and artistically important work online. Because of their work, these organizations are attacked frequently, often with some of the fiercest cyber attacks we've seen.Since it launched in 2014, we haven't talked about Galileo much externally because we worry that drawing more attention to these organizations may put them at increased risk. Internally, however, it's a source of pride for our whole team and is something we dedicate significant resources to. And, for me personally, many of the moments that mark my most meaningful accomplishments were born from our work protecting Project Galileo recipients.The promise of Project Galileo is simple: Cloudflare will provide our full set of security services to any politically or artistically important organizations at no cost so long as they are either non-profits or small commercial entities. I'm still on the distribution list that receives an email whenever someone applies to be a Project Galileo participant, and those emails remain the first I open every morning.
At a first glance, this might not seem like much of a story at all: internet company does something good to protect those at risk doesn't necessarily seem that interesting at first, especially during a moment in time when everyone is so focused on attacking every internet company for bringing about all the evils of the world. However, I do think there are some very important lessons to be learned here, and some of them very much apply to the debates about content moderation. In some sense, Project Galileo is like the usual content moderation debates, but in reverse.I was particularly interested in how Cloudflare chose which organizations to protect, and spoke with the company's CEO, Matthew Prince last week to get a more in-depth explanation. As he explained, they partnered up with a wide variety of trustworthy organizations (including EFF, Open Technology Institute, the ACLU, Access Now, CDT, Mozilla, Committee to Protect Journalists and the Freedom of the Press Foundation, among others), and would let those organizations nominate organizations which might be at risk or if organizations approached Cloudflare about being included in Project Galileo, Cloudflare could run their application by those trusted partners. What started with 15 partner organizations has now nearly doubled to 28.Of course, such a system likely wouldn't work well in the other direction (figuring out what accounts to ban or otherwise punish) as people would undoubtedly flip out and attack them -- as many did a few years ago when Twitter announced its Trust and Safety Council of partner organizations that it relied on for advice on how it handled its trust and safety questions. Many critics of Twitter and its policies have continued to falsely insist that the organizations in this list are some sort of Star Chamber making decisions on who is allowed to use Twitter and who is not -- so any move to actually have such a system in place would likely be met with resistance.However, there is something interesting about having a more thorough process involving outside experts, than just trusting a company to make these decisions entirely internally. It's obviously somewhat different with Cloudflare, in part because it's providing underlying security services that are not as upfront as the various social media sites, and also because it's about picking out who to "protect" rather than who to block. But it is worth looking at and thinking about all of the different challenges there are when it comes to content moderation that go beyond what most people normally talk about.For what it's worth, this is also quite important as more and more politicians around the globe are gearing up to "regulate" content moderation in one way or another. It's one thing to say that social media sites should be required by law to block certain accounts (or to not block certain accounts), but think about how any of those laws might also apply to services like Project Galileo, and you can see why there should be caution in rushing in with regulatory solutions. The approach taken with something like Project Galileo ought to be entirely different than the process of determining whether or not a platform has decided to remove Nazi propagandists. But it's doubtful that those proposing new regulations are thinking that far ahead, and I worry that some new proposals may sweep up Project Galileo in a manner where it may become more difficult for Cloudflare to continue to run such a program.Still, in this era when everyone is so focused on the bad stuff online and how to stop it, it's at least worth acknowledging a cool project from Cloudflare to note the good stuff online and how to protect it.

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posted at: 12:00am on 15-Jun-2019
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Content Moderation Is Impossible: You Can't Expect Moderators To Understand Satire Or Irony

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The latest in our never ending series of posts on why content moderation at scale is impossible to do well, involves Twitter now claiming that a tweet from the account @TheTweetOfGod somehow violates its policies:

If you're unfamiliar with that particular Twitter account, it is a popular account that pretends to tweet pithy statements from "God" that attempt (often not very well, in my opinion) to be funny in a sort of ironic, satirical way. I've found it to miss a lot more than it hits, but that's only my personal opinion. Apparently, Twitter's content moderation elves had a problem with the tweet above. And it's not hard to see why. Somewhere Twitter has a set of rules that include that it's a violation of its rules to mock certain classes of people -- and that includes making fun of people for their sexual orientation, which violates Twitter's rules on "hateful conduct." And it's not difficult to see how a random content moderation employee would skim a tweet like the one flagged above, not recognize the context, the fact that it's an attempt at satire, and flag it as a problem.Thankfully, in this case, Twitter did correct it upon appeal, but it's just another reminder that so many things tend to trip up content moderators -- especially when they have to moderate a huge amount of content -- and satire and irony are categories that frequently trip up such systems.

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posted at: 12:00am on 14-Jun-2019
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Google Stadia Is About To Show Everyone Why Broadband Usage Caps Are Bullshit

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We've noted for years how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused to hamstring competitors. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For more than a decade ISPs have slowly but surely imposed such limits hoping that consumers wouldn't notice (think of the frog in the pot of boiling water metaphor with you as the frog). But as video streaming services have increasingly embraced high-bandwidth 4K streaming, consumer usage has started to collide with this arbitrary restrictions.On the other hand, the rise of game streaming services like Google Stadia is going to blow right past these caps, finally highlighting the problem in stark detail. Services like Stadia eliminate the need for local gaming hardware, with all of the processing occurring in the cloud. The bandwidth consumption of these services will be fairly incredible:

"Google says that users who stream games at 720p, 1080p, or full 4K will eat through bandwidth at a rate of 4.5 GB, 9 GB, or 15.75 GB per hour, respectively.Were you to stream Stadia games at full 4K, you'll easily burn through a terabyte of data in less than three days. In the usage cap era, that's a fairly obvious problem. Presumably, users would be looking at similar data usage for other upcoming streaming services.
Comcast, for example, imposes a 1 terabyte monthly cap on its users, who have the option of either buying buckets of additional data at $10 per 50 GB, or paying a flat fee of $50 (on top of their already high broadband bill) to remove the cap entirely. Using Google Stadia at full 4K resolution will blow through that cap in less than three days. And Comcast's 1 terabyte cap is among the more generous. Many DSL providers (like AT&T) impose usage caps as low as 150 GB a month. Many other rural ISPs have caps as low as 10 to 50 GB per month.In the wake of the launch of Google Stadia (and other similar products from the likes of Microsoft) there's going to be a lot of surprised consumers with sore wallets. And that anger is only going to rejuvenate questions as to why these arbitrary and unnecessary limits exist (to make the telecom industry more money, duh) and why regulators have done absolutely nothing about what's a fairly obvious cash grab (regulatory capture and corruption, duh).The other problem that we're going to face is on the net neutrality front. Many ISPs are developing their own cloud gaming platforms. Given the abuse of zero rating and usage caps in streaming video, it's very likely that ISPs will apply usage caps to customers who use competing gaming services but not their own, distorting the playing field, and harming innovation and competition. All told, it's going to be a crash course in why net neutrality is important, and why the recent tech policy fixation on "big tech" exclusively views the problems in tech through too narrow of a peephole.

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posted at: 12:00am on 14-Jun-2019
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Historical Documentation Of Key Section 230 Cases

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We've been talking a lot lately about the fact that people seem incredibly confused (i.e., mostly wrong) about the history, purpose, and even language of Section 230 of the Communications Decency Act. No matter how many times we try to correct the record, it seems that more people keep getting it wrong. We've talked a few times about Jeff Kosseff's excellent new book called The Twenty-Six Words That Created the Internet, and, as Kosseff explains, part of his reason for putting together that book is that some of the early history around CDA 230 was at risk of disappearing.And now Kosseff has teamed up with professor Eric Goldman to create an archive of documents related to key Section 230 cases.

As Kosseff notes:
As I noted in the book, many of the filings in the early Section 230 cases (particularly from the pre-PACER days), were particularly hard to track down. In an effort to ensure that these documents are not forever lost, I worked with Professor Eric Goldman of Santa Clara University to create an online archive of many of the filings. Below are some of the key court opinions mentioned in the book, along with some of the important court filings, if available. The files from the earliest cases are largely in paper format. We plan to add these filings once they are scanned; for now, we link to the court opinions.
This is great to see and should prove to be a useful resource, especially about some of the older cases.Of course, it still won't stop some from misrepresenting the law, but at least having this information available will hopefully lead at least a few more people to understand the actual origins and purpose of the law.

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posted at: 12:00am on 13-Jun-2019
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Oversight Says FBI's Facial Recognition System Has Gotten Bigger, But Not Better

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It appears the FBI's facial recognition program will never live up to the minimal expectations its oversight has placed on it. The FBI's database went live in 2014, far preceding the Privacy Impact Assessment that was supposed to be delivered in 2012.Two years after its debut, the Government Accountability Office found the FBI's database -- which went live with a 20% failure rate -- was still a mess. The FBI showed little interest in improving the accuracy of its searches. It also showed little interest in periodically testing the system to see if it was improving or, quite possibly, getting worse.The FBI's hands-off approach to facial recognition only applies to its oversight of the program. Otherwise, it's an enthusiastic participant. At the time of the GAO's examination, the FBI's database contained 411 million photos, drawn from both criminal and non-criminal databases. Indicative of the FBI's lackadaisical approach to facial recognition was a bank robbery case in Colorado, where the feds pitched in to help arrest the wrong person twice.A year later, the House Oversight Committee noted nothing had improved since the GAO's 2016 recommendations. Input and output remained flawed, and the FBI still showed little interest in fixing the problems reported by the GAO.Two years later, it's deja vu all over again. The GAO's latest report [PDF] says the only thing that's really changed is the size of the database. Since it's last assessment, the FBI has added 230 million photos, bringing the total to 641 million face shots. But otherwise, there's been little improvement. The GAO made six recommendations in 2016. To date, the FBI has only fully implemented one, and has taken no action at all on three of them.As for the Privacy Impact Assessment the FBI was supposed to deliver in 2012? It's still in the works seven years later.

In its May 2016 report, GAO found that DOJ did not complete or publish key privacy documents for FBI’s face recognition systems in a timely manner and made two recommendations to DOJ regarding its processes for developing these documents. These included privacy impact assessments (PIA), which analyze how personal information is collected, stored, shared, and managed in federal systems, and system of records notices, which inform the public about, among other things, the existence of the systems and the types of data collected. DOJ has taken actions to expedite the development process of the PIA.
As for the system's accuracy, little forward progress has been made. The FBI is at least engaging in limited audits of the system, but only to ensure face searches are done according to policy. The problem with accuracy remains virtually untested. The FBI's testimony claims its vendor delivers a 99% accuracy rate, but as the GAO points out, this number comes from limited testing of batch sizes that may not be representative of those most commonly seen by the system's users.
GAO found that the FBI conducted limited assessments of the accuracy of face recognition searches prior to accepting and deploying its face recognition system. The face recognition system automatically generates a list of photos containing the requested number of best matched photos. The FBI assessed accuracy when users requested a list of 50 possible matches, but did not test other list sizes. GAO recommended accuracy testing on different list sizes.
On top of that, the FBI has no idea how accurate outside systems it utilizes are. It's own vendor might be delivering 99% accuracy, but the FBI makes use of databases and software used by other federal and state agencies. Despite being notified of this issue in 2016, the FBI has yet to assess the accuracy of these external systems.This refusal to better police its system explains why the House Oversight Committee was less than impressed with the FBI's performance since it last took a look at the agency's facial recognition tech. The FBI's testimony was constantly undercut by the GAO's report, and this resulted in plenty of criticism from members of Congress.
During a hearing, members of the House Oversight Committee questioned witnesses on the steps being taken to ensure the facial recognition tools used by their agencies aren’t infringing on individuals’ privacy and civil liberties. By and large, lawmakers on both sides of the aisle seemed unsatisfied with their answers.[...]Lawmakers criticized Kimberly Del Greco, deputy assistant director of the FBI’s Criminal Justice Information Services division, over the bureau’s failure to correct multiple flaws in the way it evaluates its primary facial recognition tool.
Maybe this will finally prompt the FBI to follow up on the issues found in the GAO's latest assessment. But I wouldn't count on it. This same cycle of events played out in 2016 and 2017 -- a GAO report followed by Congressional tongue-lashing -- and the FBI still chose to completely ignore three of the GAO's recommendations. Maybe Congress should just tell the FBI it can't use the tech until it fixes the problems and see if that finally motivates the agency. Nothing else has worked so far. All the FBI has proven is that it can't be trusted with facial recognition tech.

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posted at: 12:00am on 13-Jun-2019
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ICE Is Cramming Immigrants Into Filthy, Overcrowded Facilities

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The border surge is upon us. Apparently. Since the 2016 election, actually, if we're honest about it. Trump wasn't a single-issue candidate but has sort of morphed into one since taking office. The swamp remains undrained. Hillary Clinton remains unjailed. But BUILD THE WALL has become the calling card of Donald Trump as he seeks to rid the nation of pesky brown people. Good times. To be fair, ICE and CBP have always sucked. But their moment in the spotlight has only increased the intensity of their sucking.The problem with declaring the border a national security threat/war zone/flashpoint for a trade war/whatever is that you have to be ready to deal with the problem you're causing. If you think America's greatness is measured by the number of people we capture and detain, you have to have a plan in place to deal with this influx of eventual deportees.We do not have a plan in place. ICE may be enjoying the extremely rare experience of being a presidential administration's favorite agency, but it definitely had no idea what it was in for. For months, ICE scrambled around knocking heads and fudging numbers to back Trump's claim that the United States was swimming with dangerous undocumented immigrants.ICE performed raid after raid in major cities, hoping to score a batch of hardened criminals. CBP also stepped up enforcement, detaining more people than usual in hopes of sending a message to outsiders about America's not-all-that-open borders.The problem is you have to put all of these people somewhere. ICE is in charge of that and it doesn't particularly relish any part of the job but locking people up. It farmed out some of this work to contractors. Whatever it doesn't handle poorly itself is handled terribly by third parties. ICE rarely inspects its facilities and even more rarely makes sure the few problems it notices are addressed.This has led directly to the problems found by ICE's Inspector General. IG investigations of ICE detention centers have found a shitload of inhuman conditions that we, the people, are funding with our tax dollars. First, an inspection [PDF] of a facility in El Paso, Texas, discovered ICE and CBP are just shoving as many detainees into a room as inhumanly possible, resulting in standing-room-only detentions that can last for several days.Here are a couple of photos taken by investigators. Each white block is covering a face… or faces, since there's not a lot of room between detainees.

Part of the problem is a spike in apprehensions, apparently triggered by presidential rhetoric.
These agencies (ICE, CBP) view detainees as subhuman, much in the way prisons view prisoners.Here are the numbers, according to the IG investigation:
According to PDT Border Patrol processing facility staff, the facility’s maximum capacity is 125 detainees. However, on May 7 and 8, 2019, Border Patrol’s custody logs indicated that there were approximately 750 and 900 detainees on site, respectively. TEDS standards provide that “under no circumstances should the maximum [cell] occupancy rate, as set by the fire marshal, be exceeded” (TEDS 4.7).However, we observed dangerous overcrowding at the facility with single adults held in cells designed for one-fifth as many detainees (see Figures 1 through 3). Specifically, we observed:- a cell with a maximum capacity of 12 held 76 detainees (Figure 1);- a cell with a maximum capacity of 8 held 41 detainees (Figure 2); and- a cell with a maximum capacity of 35 held 155 detainees (Figure 3).
66% of detainees had been there longer than the 72 hours and 4% (33 detainees) had been there -- in these conditions -- for more than two weeks. The IG also observed hundreds of detainees standing in line to surrender their valuables to DHS/CBP personnel prior to detention. The IG also observed how government personnel processed these possessions, which apparently involved a.) taking the valuables, and b.) hurling them into a nearby dumpster.The CPB excuse? Some possession were "wet," which made them "biohazards." Management on site had their own complaints: employees were getting sick frequently and morale was pretty much nonexistent. Unsurprisingly, sending personnel into overcrowded holding areas to check on detainees also increases the dangers they face, especially when detainees are understandably distressed and angry about their supposedly-temporary living conditions.There is no help coming from upper management. Nor is ICE willing to assist in alleviating the problems it's caused.
Although CBP headquarters management has been aware of the situation at PDT for months and detailed staff to assist with custody management, DHS has not identified a process to alleviate issues with overcrowding at PDT. Within DHS, providing long-term detention is the responsibility of U.S. Immigration and Customs Enforcement (ICE), not CBP. El Paso sector Border Patrol management said they are able to complete immigration processing for most detainees within a few days, but have not been able to transfer single adults into ICE custody quickly. Border Patrol managers at the stations we visited said they call ICE daily to request detention space for single adults. They said in some instances ICE officers tell them they cannot take the detainees. In other instances, ICE initially agrees to take some adult detainees, but then reverses the decision.
El Paso isn't the only area of concern. Another Inspector General's report [PDF] obtained by CNN contains even more depictions of subhuman conditions being foisted on detainees by the federal government. Overcrowding isn't the problem here. Everything else is.
This report summarizes findings on our latest round of unannounced inspections at four detention facilities housing ICE detainees. Although the conditions varied among the facilities and not every problem was present at each, our observations, detainee and staff interviews, and document reviews revealed several common issues. Because we observed immediate risks or egregious violations of detention standards at facilities in Adelanto, CA, and Essex County, NJ, including nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues, we issued individual reports to ICE after our visits to these two facilities. All four facilities had issues with expired food, which puts detainees at risk for food-borne illnesses.
If you can take it, there's more:
At three facilities, we found that segregation practices violated standards and infringed on detainee rights. Two facilities failed to provide recreation outside detainee housing units. Bathrooms in two facilities’ detainee housing units were dilapidated and moldy. At one facility, detainees do not receive appropriate clothing and hygiene items to ensure they could properly care for themselves. Lastly, one facility allowed only non-contact visits, despite being able to accommodate in-person visitation. Our observations confirmed concerns identified in detainee grievances, which indicated unsafe and unhealthy conditions to varying degrees at all of the facilities we visited.
In two facilities, food handling processes were so substandard, the kitchen manager was fired during the IG's visit. At one facility, personnel performed suspicionless strip searches with alarming regularity and without proper documentation. In multiple facilities, detainees were not given adequate recreation time or access to outdoor activities. Some assholes (including government employees!) probably consider this to be coddling people engaged in illegal behavior, but the IG points out an important nuance that often gets ignored during heated discussions of immigration enforcement.
Detainees are held in civil, not criminal, custody; yet, according to the National Institute for Jail Operations, the loss or reduction of recreation-related amenities (indoor recreation; no fresh air and direct sunlight) may result in increased idle time and a significantly lower quality of life.
Given the conditions indoors, no wonder so many detainees wanted to spend more time outside detention facilities.
[A]t the Adelanto and Essex facilities, we observed detainee bathrooms that were in poor condition, including mold and peeling paint on walls, floors, and showers, and unusable toilets... At the Essex facility, mold permeated all walls in the bathroom area, including ceilings, vents, mirrors, and shower stalls.
That's a factor that cannot be overlooked. Most of the thousands of people detained at ICE facilities are civil detainees. And in many cases, they're being treated worse than the criminals housed in our nation's many prisons. The administration is very engaged in an anti-immigration flex, but it has zero interest in handling its border enforcement activities responsibly. This does not reflect well on this country, especially if these problems continue long after Trump leaves office.

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posted at: 12:00am on 12-Jun-2019
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Tom Brady Attempts To Trademark The Nickname He Doesn't Even Want, That's Already Used By A Famous NY Met With Dementia

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We've talked for some time about the increasing trend in professional sports for athletes to seek trademarks on anything and everything that might possibly be branded. This trend has actually spilled over into some professional sports teams themselves attempting to get trademarks for the athletes that play for the team. It is all frankly very irritating and smells purely of the kind of money-grab that was absolutely not the point of trademark law to begin with, but at least we can say for most of these cases that the slogans and nicknames for which trademarks are sought are fairly unique.This is most certainly not the case for Tom Brady, who's company, TEB Capital, has applied for a trademark on one of his nicknames, "Tom Terrific", for trading cards, sports merch, and clothing. There's only one problem: Tom Terrific is indeed a well-known nickname... of former NY Met Tom Seaver.

The hardly humble New England Patriots quarterback is seeking to trademark the moniker “Tom Terrific” — the same nickname bestowed upon legendary Mets’ Hall of Fame pitcher Tom Seaver.Brady’s recent trademark application was discovered by a Philadelphia law firm and instantly sent Mets fans into a tizzy.
Seaver frankly popularized the nickname Tom Terrific in the sporting world. He never trademarked the nickname, of course, because that wasn't the trend decades ago. And he most certainly will not be trademarking it now, given that he is suffering from dementia and is not well. Brady's trademark, if granted, would seem to limit what Seaver, the original Tom Terrific, can do with his own nickname that will be under the control of Brady, a lesser (pretender?) Tom Terrific. On the question of public confusion, the reaction by New Yorkers is instructive. It's also entertaining in the reactions' massive amounts of New-York-ness.
“Tom Brady is an arrogant pr–k,” Mets superfan Dom D’Angelo, 55, fumed outside his team’s Citi Field ballpark in Queens on Sunday. “He’s not getting his cheating, ball-deflating paws on ‘Tom Terrific.’ Go back to Boston and get your own f–king name, Brady.”Even Yankees fan Michael Robinson said Brady shouldn’t be going after Seaver’s moniker.“He’s got Gisele [Bündchen] — what else does he need?” Robinson remarked of Brady and his model wife.
Poll the average American sports fan and ask them who Tom Terrific is and the overwhelmingly consistent answer you will get is Tom Seaver. If that's the case, it doesn't make much sense with respect to the purpose of trademark law to grant Brady exclusive rights to sporting merch for that term.Oh, and if you thought it wasn't bad enough already, the story turns out to be even worse. Brady is claiming he's only trying to trademark the name because he hates it and wants to stop people from using it:
It's unfortunate. I was actually trying to do something because I didn't like the nickname, and I want to make sure no one used it because some people wanted to use it, Brady said at Gillette Stadium. I was trying to keep people from using it, and then it got spun around to something different than what it was.
This is not how any of this works. First of all, you don't get to just register a trademark on a nickname to get people to stop using it. You only can register the trademark if you are using it in commerce -- not if you're trying to just stop others from calling you a name. Second... huh? Why would you even bother to trademark a name if you (incorrectly) thought that this would magically stop people from calling you a name you didn't like. None of this makes any sense at all. It's really not terrific, Tom.

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posted at: 12:00am on 12-Jun-2019
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Mathew Higbee Cuts And Runs When Finally Challenged On A Questionable Shakedown

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Last month, we wrote about a declaratory judgment lawsuit that had been filed against a client of Mathew Higbee. As we've discussed at length, Higbee runs "Higbee & Associates" which is one of the more active copyright trolls around these days, frequently sending threatening shakedown-style letters to people, and then having various "paralegals" demand insane sums of money. In some cases, it does appear that Higbee turns up actual cases of infringement (though, even in those cases, the amount he demands seems disconnected from anything regarding a reasonable fee). But, in way too many cases, the claims are highly questionable. The lawsuit mentioned last month represented just one of those cases -- involving a threat against a forum because one of its users had deeplinked a photographer's own uploaded image into the forum. There were many reasons why the threat was bogus, but as per the Higbee operation's MO, they kept demanding payment and dismissing any arguments for why the use was not infringing (and, relatedly, why it was against the incorrect target).Paul Levy and Public Citizen filed for declaratory judgment that the use was non-infringing, and in the process, pondered publicly whether or not Higbee had warned his various clients that they might end up in court in response to Higbee's aggressive tactics. Apparently, in the case of photographer Quang-Tuan Luong, the photographer was not particularly happy about ending up in court, and Higbee and his client quickly agreed to cut and run, despite Higbee's insistence that he was ready to take this matter to court.

I gave Higbee a chance to withdraw his client's claims; however, Higbee had previously told me that my arguments about non-liability for infringement in an identical case were delusional, so we decided to give Higbee a chance to explain to a judge in what way these defenses were delusional, that is, in response to an action for a declaratory judgment.I confess that, in filing that lawsuit, I wondered whether Higbee had ever warned Luong that he would not necessarily get to make the final decision whether his demand would end up in litigation, in that the very aggressiveness of Higbee's demand letters, coupled with persistent nagging from paralegals to offer a settlement or face immediate litigation, sets up his clients to be sued for a declaratory judgment of non-infringement. That speculation proved prescient, because Higbee's immediate response to the lawsuit was to offer to have his client covenant not to sue Schlossberg for infringement. Higbee also told me that he had offered to defend Luong against the declaratory judgment action for free.  It appears, however, that even such a generous offer was not enough to hold onto Luong as a copyright infringement claimant in this case. A settlement agreement has been signed; because there is no longer a case or controversy, the lawsuit has now been dismissed. 
Levy makes it clear, however, that he's actively looking for other such cases to challenge in court in response to Higbee's overaggressive demands:
Since that blog post, I have got wind of several other situations in which Higbee has claimed large amounts of damages against forum hosts.  We are considering which ones would make the best test cases.  My last blog post about Higbee mentioned another case in which he had made a demand against the host of a forum about United States elections, where a user had posted a deep link to a photograph by another of Higbee's stable of clients, Michael Grecco. Higbee has sued on Grecco's behalf on a number of occasions, and Higbee told me that, unlike Luong, Grecco was a true believer who was looking for opportunities to pursue Higbee's copyright theories in litigation.  Higbee said that he was going to be talking to Grecco to confirm that he wanted to litigate against the election forum. I could not help suspecting at the time that Higbee was blowing smoke to show what a tough guy he is.  That was a month ago, and yet so far as I can tell, Higbee has not yet got around to talking to his client about the subject. I have to wonder just who it is that wants to litigate Higbee's legal theories.Indeed, I have asked Higbee whether he warns his clients generally that they can be sued for a declaratory judgment of non-infringement even if they have never given Higbee authority to go to court on their behalf. He told me that he is too busy to address my questions.
He also notes that another such declaratory judgment filing has been made against the very same Michael Grecco:
That case involves another demand letter from Higbee, this time to an indigent young man named Lee Golden who lives in Brooklyn with his parents and blogs about action movies.  Because Golden included a Grecco photograph of Xena the Warrior Princess, Higbee sent his typical aggressive  demand letter, setting $25,000 as the required payment to avoid being sued. Golden responded with a plaintive email, apologizing profusely, saying that he had no idea about copyright issues, that he had taken down the photo...own, returning to its demand for $25,000 and threatening to seek $30,000 or even $150,000 if the case had to be litigated. Higbee even sent a draft infringement complaint, threatening to make Golden defend himself in the Central District of California even though many of Higbee's actual lawsuits are filed in the jurisdiction where the alleged infringer lives, perhaps because Higbee wants to avoid having to litigate personal jurisdiction.But Golden's counsel likely did not know this, so Strupinsky and his partner Joshua Lurie have filed suit on Golden's behalf in the Eastern District of New York, seeking a declaratory judgment of non-infringement. We will see how anxious Michael Grecco is to litigate this case.
We see this again and again with copyright trolling operations. They often promise potential clients that this is a "no risk" way to make money. Just sign up and they'll scour the internet and you'll just sit back and receive the payments. Indeed, Higbee's site suggests just that:
Let a national copyright law firm take care of all of your copyright enforcement needs from reverse image search to collecting payment. You pay nothing up front. We only get paid when you get paid. Best of all, by using us for reverse image search you will be eliminating the middle man and nearly doubling your profit.
His site also claims that he'll go to court for you "assuming you want us to" -- leaving out the risk of a declaratory judgment filing (and associated embarrassment for trying to shake down non-profits and personal websites of people with no money).

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posted at: 12:00am on 11-Jun-2019
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Federal Court: Eight Months Of Utility Pole Camera Surveillance Is A Fourth Amendment Violation

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The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns.
The court says the test for applying the Fourth Amendment to government surveillance efforts comes down to a "reasonable" expectation of privacy. Here, the court finds the defendants' privacy expectations are both subjectively and objectively reasonable.
The Court ALLOWS Moore-Bush and Moore's motion to suppress because they have exhibited an actual, subjective expectation of privacy that society recognizes as objectively reasonable. See Morel, 922 F.3d at 8. First, the Court infers from their choice of neighborhood that they subjectively expected that their and their houseguests' comings and goings over the course of eight months would not be surreptitiously surveilled. See Moore Mot. 7. Second, the Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner. See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).
The government, of course, disagreed. It argued the defendants had no privacy interest in the front of their house, considering it was viewable by anyone passing by it. The court says if that were the extent of the privacy interest asserted by the defendants, the government would be correct.
Yet that is not the narrower privacy interest that Moore-Bush and Moore assert here. Instead, Moore-Bush and Moore claim that they expected privacy in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house. The Court infers from Moore-Bush and Moore's choice of neighborhood and home within it that they did not subjectively expect to be surreptitiously surveilled with meticulous precision each and every time they or a visitor came or went from their home.
The government may have prevailed if it weren't for the Carpenter decision, though. The issue isn't a camera pointed at a publicly-viewable area. The problem is what that camera collected over the course of eight months.
In Bucci, the First Circuit reasoned that the "legal principle" that "[a]n individual does not have an expectation of privacy in items or places he exposes to the public" disposed of the matter… If that principle remains an accurate depiction of the law, Moore and Moore-Bush lack an objectively reasonable expectation of privacy in the activities just outside their home, regardless of the camera's unique capabilities.The Court reads Carpenter, however, to cabin -- if not repudiate -- that principle. There, the Supreme Court stated that: "A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" [...] What's more, the Supreme Court recognized that long-term tracking of a person's movements "provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.'"
The government argued the Carpenter decision was "narrow," applying only to cell-site location info. The court disagrees, saying the reasoning behind the Supreme Court's decision -- that people do have some reasonable expectations of privacy in public areas -- is the driving force here, not the method of surveillance.Additionally, long-term surveillance tends to do damage to other rights as well. Tracking a person's movements over weeks and months allows the government to surveil a wealth of activities protected by the First Amendment. In addition, it allows the government to observe dozens of activities it has no business observing.
What's more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.
The court wraps up its decision by pointing out it is not declaring all surveillance camera use a search under the Fourth Amendment. Instead, it's saying that this set of circumstances makes it a search that interferes with the defendants' reasonable expectation of privacy. The camera setup used here could focus on multiple areas, zoom in close enough to read license plate numbers, and -- perhaps most importantly -- create a searchable set of recordings the government could browse at its leisure and use to reconstruct the lives of the home's occupants over the court of several months. That exceeds what the court -- and the defendants -- find reasonable. Under Carpenter's standard, this type of surveillance can no longer be executed without a warrant.

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This Week In Techdirt History: June 2nd - 8th

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Five Years AgoThis week in 2014, newly released documents outlined the NSA's interception of millions of images every day to fill a facial recognition database, leading James Clapper to defend the program by denying claims nobody actually made. The EFF complained to a court about the NSA's destruction of evidence, leading to an admission from the DOJ and a new restraining order from the court — which they convinced the court to overturn. Meanwhile, we took a broader look at surveillance in the post-Snowden world, and a big group of tech companies were pressuring the NSA to end bulk surveillance.This was also the week that John Oliver famously rebranded Net Neutrality as Preventing Cable Company Fuckery, leading to a deluge of submissions that crashed the FCC's public comment page. It didn't stop one congressional representative from releasing an anti-net-neutrality bill full of laughable claims, though.Ten Years AgoThis week in 2009, the UK was making its entry in the bogus piracy statistics hall of fame, recording industry propaganda was making its way to Australia, another group of copyright defenders was found to be plagiarizing material, a Spanish court ruled that personal file sharing is legal, and a band that was held up as an example of harm in the prosecution of The Pirate Bay released its new album on The Pirate Bay. Attempts to get "three strikes" regimes in place were struggling, with no ISPs signed on to the RIAA's voluntary plan after six months, and the UK government turning down a recommendation for an official three strikes scheme. One former RIAA boss, at least, was able to admit that record labels screwed a lot of things up as technology evolved.Fifteen Years AgoThis week in 2004, the buzz around Gmail was making people begin to realize that it might be the beginning of an online storage revolution. New important technologies of various kinds were being discussed and early-adopted, from two-factor authentication to 64-bit computing... and also CD copy protection. The war against spam was a stalemate at best, with the new CAN SPAM act mostly impacting legitimate email marketers but not flagrant spammers, but at least anti-spam technology was ripe for patenting I suppose. And we took an early look at the long disclaimers many people continue to tack onto their work emails, noting the fairly obvious fact that they couldn't possibly be binding.

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posted at: 12:00am on 09-Jun-2019
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Australian Federal Police Raid Even More Journalists Over Leaked Documents

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Australia got scary in a hurry.One day after raiding the home of News Corp Australia journalist Annika Smethurst over the publication of leaked documents detailing the government's domestic surveillance plans, the Australian Federal Police raided ABC News Australia over leaked documents detailing the killing of unarmed civilians by Australian special forces in Afghanistan.Somewhat surprisingly, the AFP did not prevent John Lyons, the executive editor of ABC News, from live-tweeting the entire raid. This resulted in an astounding stream of tweets (with photos!) showing the AFP was seeking a wealth of information from ABC offices, including notes, correspondence, reports, briefing documents, photographs, and anything else it could use to (presumably) find the source of the leaks.The AFP claims the raid of the ABC offices has nothing to do with its raid of a journalist's home the previous day. This is only true in the sense that two different sets of leaks were targeted. In the greater scheme of things, they are very definitely related, as is the investigation currently being pursued by the Department of Home Affairs targeting yet another journalist over a story about asylum seekers seeking to enter Australia by boat.Journalists all over the world are shocked by the Australian government's actions, which directly threaten press freedom in that country. The continuing expansion of its national security powers have reduced the rights of the country's citizens. These powers are on full public display, being utilized in an incredibly damaging way.The head of the Home Affairs office seems less than concerned about the destruction of rights and freedoms happening in the country he's supposed to be protecting.

A later statement from the AFP said Home Affairs Minister Peter Dutton was "not notified prior to the execution of the warrants"."The AFP's actions have been independent and impartial at all times," it said."When the AFP receives referrals it assesses them for criminality and does not make value judgements on the issue instead identifying whether there has been any contraventions of Commonwealth Law, and when [sic] evidence as to whether the offence has been committed or otherwise."
This bit of bureaucracy speech isn't nearly as alarming as the statement from Prime Minister Scott Morrison, who characterized the no-longer-theoretical threat to journalism as solid policework.
Asked if the news troubled him, he said: “It never troubles me that our laws are being upheld.”
That's how those up top feel about running leak investigations through the offices and houses of Australian journalists. There's apparently nothing wrong with destroying a private sector instrument of government accountability in the name of national security.

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posted at: 12:00am on 08-Jun-2019
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Kawhi Leonard Accuses Nike Of Trying To Steal His Logo Via Trademark

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As we've stated in previous posts, Nike has a reputation for jealously protecting its intellectual property, while also on occasion acting as though those same rules don't apply to its actions. This isn't terribly uncommon among those that treat IP concerns more severely: IP for me, but not for thee. Still, Nike does have some past examples of its own hypocrisy that are fairly glaring.But nothing compares to the accusations against the company made by Toronto Raptors star Kawhi Leonard, who claims that Nike basically tried to trademark his logo design out from under him.

Kawhi Leonard has sued Nike, the apparel company with whom he recently ended an endorsement contract, over control of the “Klaw” logo used to identify his branded merchandise. Kawhi says he provided the logo to Nike, and that Nike’s claim to ownership of the logo is based upon an underhanded move to go to the United States Copyright Office and claim “authorship” and “rights and permissions” behind his back.The lawsuit says that the “Klaw” logo marketed by Nike when they had Kawhi under contract was the product of Kawhi’s imagination, and was refined by Kawhi mostly without Nike’s participation, before he ever signed with the brand.
The lawsuit states that for the period of time in which Leonard was under Nike contract, everyone was in full agreement that the logo was his. Nike sought to alter the logo several times, but Leonard rejected those requests. In 2014, he did allow Nike to use the logo on its Kawhi Leonard merchandise, but only for as long as he was contracted for sponsorship with Nike. The acknowledgement of ownership went so far as Nike declining to pursue legal action against 3rd parties that used the logo, ostensibly at Leonard's request.It was only in 2018, when Leonard left Nike for a sponsorship deal with New Balance, that he discovered Nike had gone ahead and trademarked his logo in 2017 without his knowledge.
But Nike’s quiet registering of the logo in 2017 eventually came to Kawhi’s attention late in 2018, after Kawhi left Nike to sign with New Balance in November. Apparently Nike executive John Matterazzo sent Kawhi’s people a cease and desist letter the following month, asserting Nike’s ownership of the logo and demanding that it not be used on non-Nike merchandise.You will remember, this is the logo that the Los Angeles Clippers reportedly looked into buying away from Nike as part of their anticipated courtship of Leonard this summer. The organization was apparently interested in passing along Nike’s ownership share of the logo to Kawhi as a condition of Kawhi jumping to the Clippers in free agency. Marc Stein reported then that Nike, meanwhile, “is intent on rebuffing all approaches and retaining its rights to that logo for as long as it can.”
Nike's response to the lawsuit is going to be fascinating. Hearing the legal retort as to why the company has any trademark rights save what was in Leonard's sponsorship contract ought to be interesting. As is, perhaps, why certain other IP rights to the logo shouldn't apply, given Leonard's claim that he created it, such as copyright. For a superstar like Kawhi Leonard, it seems absurd to think that such a detail in a sponsorship contract wouldn't have been uncovered by his own legal representation prior to filing this lawsuit. It's also beyond weird to have Leonard no longer be a Nike athlete, but to have Nike still utilize his logo that denotes his brand.All of this is strange, but it's also worth recalling the hypocrisy in all of this. Nike is aggressive, it seems, both in its enforcement of its own IP rights and in allegedly how it violates others'.

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posted at: 12:00am on 08-Jun-2019
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Released Warrant Shows SFPD Started Monitoring Journalist's Phone Weeks Before Officers Raided His Home

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More details have surfaced about the San Francisco Police Department's search of journalist Bryan Carmody's residence. The affidavits for the search of his house remain under seal, but the SFPD's police chief has already admitted these "lacked clarity." This strongly suggests the affidavits didn't mention Carmody's profession to avoid having them rejected for violating California's journalist shield law.Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody's communications before deciding to bring the rights violations to his doorstep.

San Francisco police obtained a warrant to search a freelance journalist’s phone records and were authorized to “conduct remote monitoring” on the phone more than two months before a controversial raid on his home and office, according to documents released Friday.Officers executed the warrant on Bryan Carmody’s phone records on March 1 — the first of seven search warrants obtained in the investigation into who leaked him a report on the Feb. 22 death of Public Defender Jeff Adachi.
There's no extended affidavit attached to the warrant [PDF], but the short description of the investigation makes no mention of Bryan Carmody's line of work. All it does is claim Carmody is suspected to be involved in the theft of the leaked police report detailing public defender Jeff Adachi's death.
Nature of investigation: Mr. Carmody is being investigated as a co-conspirator in the theft of the San Francisco Police report, involving the death investigation of Jeff Adachi. The criminal investigation focuses on the conspiracy to commit a crime, the theft of a police report, and the willful obstruction of justice.
This part of the warrant says the SFPD is only seeking phone records spanning two days in February. But on the next page, the court authorizes ongoing "remote monitoring" of Carmody's phone "until the conclusion of the investigation." This includes signals produced in "locations not open to the public or visual surveillance."This warrant wasn't handed to the SF Chronicle by the court or the SFPD, but rather by Bryan Carmody, who was finally notified of this particular search three months after it happened.The warrant also shows the SFPD had Carmody in its sights long before most of the public was aware he was the source of the leaked death report obtained by other reporters. As the Chronicle's article points out, the first public statement on Carmody's involvement came during a Board of Supervisors meeting in April in which the city's public defender's office revealed this information. The phone monitoring warrant was granted on March 1st, only days after news stations published the leaked document.Every new development makes the SFPD look worse. The department may not be making the hole any deeper at this point, but its prior groundwork has proven to have created a far deeper hole than early estimates indicated.

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Activision Shouts 'First Amendment' Over Humvee's Trademark Lawsuit For Call Of Duty Depictions

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If we were to judge the success of a video game by just how many times a particular series had appeared in Techdirt posts, Call of Duty would be one of the contenders for the top rank. Publisher Activision has been on both ends of absurd IP issues, facing publicity and trademark attacks from historical figures over depictions in the game series, while also occasionally mulling trademark actions against non-competitors over poo-puns.Well, Activision once again finds itself on defense in a trademark lawsuit over the game series, this time brought by famed military auto-maker Humvee. In its warfare series, which aims to be a realistic artistic expression of armed conflict, Humvees of course make regular appearances. The vehicles are ubiquitous on any battlefield in which America participates. Activision, in a motion for summary judgement, has asked the court to view all of this as an attack on the First Amendment rights the publisher enjoys.

"This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare," opens a summary judgment motion filed on Friday by Activision. "AM General LLC, a government contractor that manufactured military 'HMMWV' (or 'Humvee') vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades."
It's an interesting point to make, though we'll have to see how the court views it on the question of the First Amendment. Regardless, aggressive trademark enforcement over a vehicle depiction that has cultural and historical significance, and one which is generally paid for by American tax dollars, certainly sounds like First Amendment territory. If one were to create an artistic expression of historical fiction in game form to depict modern day warfare, how could one not include Humvees? The vehicle's omission would frankly be glaring in the extreme.Humvee's maker, of course, sees it differently and claims Activision's own internal communication suggests the company knew what it was doing was wrong.
AM General, of course, disagrees with the proposition that it can't protect its intellectual property from unauthorized use — especially when Activision has licensed other material for its multibillion-dollar game franchise and when in the games at issue, characters call out to one another to “get in the Humvee.”In its own summary judgment memorandum, AM General asks a New York federal judge to dispose of Activision's affirmative defense of laches, meaning a prejudicial delay in asserting a claim. Although the defendants point to how Humvees have become "common in fictional movies and television shows" — The Hurt Locker, 24, Sicario: Day of the Soldado, etc. — AM's attorneys have spent months collecting discovery from Activision and assert the trademark misappropriation was not secret inside the video game's headquarters.
Most of the discovery being referenced is yet to be public. Depositions are under seal and there is a ton of material that has been redacted. What's visible is some general information from Activision's internal team noting that there is some risk in the game being too realistic as it could invite the very sorts of IP fights that it is now enduring.Again, what's the other option? Games are works of art and protected by the First Amendment. Humvees have played a storied role in American warfare for decades. If this art is to be made, and is to be realistic, it essentially cannot be made without including Humvees any more than could a war movie.

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Netflix, Which Has Previously Touted Its Ability To Compete With Piracy, Joins Australian Antipiracy Efforts

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We have for some time been covering the rapid expansion of antipiracy and site-blocking efforts in Australia. Between the movie and music spaces, these efforts have been spearheaded by a couple of local entertainment groups, such as Village Roadshow and Music Rights Australia, and the typical suspects from the US, such as the MPAA, RIAA, and various movie and music studios. The ramping up of those efforts continues to date, with recently updated copyright laws being used by those groups to request massive site-blocking for torrent and streaming sites, with the courts generally rubber-stamping all of them.To date, a glaring non-combatant in all of this has been Netflix. And that hasn't been some huge surprise, either, given that Netflix has long had a history of touting its own ability to both compete with piracy and make use of its cultural effects, and the rest of the entertainment industry painting Netflix as some kind of problem for the industry itself. And, while Netflix's tone on piracy has certainly begun to change, that made it somewhat jarring to learn that the company was suddenly diving into the Australia anti-piracy fray with both feet.

Over the past two years, many of the world’s largest torrent and streaming sites have already been blocked, but the work is far from done. A new application recently submitted at the Federal Court of Australia requests ISPs to block dozens of websites.The complaint comes from Village Roadshow as well as several other prominent movie companies such as Disney Enterprises and Universal City Studios. For the first time, Netflix Studios has joined in as well, as Computerworld notes.
As stated, Netflix is now a part of the MPAA, which perhaps explains why it is now in on these enforcement efforts. This appears to be something of a move of solidarity with the industry, as the focus of this particular complaint is pretty heavy on sites accused of distributing Asian content.
Interestingly, the court order has a strong focus on Asian content. Several of the targeted sites, such as BTBTT and 123kubo.org, are predominantly popular in Asian countries. In addition, the list also includes many anime sites such as Animeultima.to and Ryuanime.com.The latter is likely due to the fact that the Australian distribution group Madman Anime Group is listed as one of the applicants as well.
So, again, there's something of a all-for-one and one-for-all flavor to all of this. Still, being a member of the MPAA doesn't require Netflix to join in on these legal efforts at site-blocking. As is typical in these complaints, the torrent and streaming sites are painted as having only one purpose: to commit copyright infringement. On that basis, the complaint seeks the blocking of 86 websites.But the new part of this is Netflix's involvement. Why it suddenly feels the need to join the ranks of those seeking site-blocking is an open question, particularly when it has built a business model out of being more convenient and reasonable an option than piracy itself.

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Settlement In Tom Brady Photo Case Leaves Issue Of Copyright On Embedded Images Unsettled

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A little over a year ago, we wrote about a pretty bad ruling in NY, by Judge Katherine Forrest, arguing that merely embedding content on a site -- even though it's hosted elsewhere -- could be deemed infringing. This went against what has been known as the "server test," which says that the issue is where the content is actually hosted (which server it's actually on), and that merely embedding the image shouldn't lead to new claims of infringement. Considering that, technically, embedding an image is no different than linking to an image, saying that embedding an image that is hosted elsewhere is itself infringing could put much of the basic concept of how the internet works at risk.This particular case involved a photo of quarterback Tom Brady that had been posted originally to Snapchat. The image, taken by photographer Justin Goldman, made its way from Snapchat to Reddit to Twitter. Some news organizations embedded tweets showing the photo, using Twitter's native embed functionality. Goldman sued a bunch of them. Judge Forrest, citing the Supreme Court's "looks like a duck" test in the Aereo ruling said that embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image). Even worse, Forrest explicitly rejected the server test, saying it was wrong.This was poised to be a pretty big deal... except that it's not. Because the entire lawsuit has been settled leaving the question of whether or not the server test is considered valid (especially in NY where the case was filed) unanswered. While there is the Forrest ruling on the books, since it's in a district court it creates no official precedent that other courts need to follow (though that won't stop it from being cited). However, as the linked article notes, there are some other cases challenging the server test and looking at the legality of embeds still going on, so perhaps we won't have to wait long for the issue to bubble up again. One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.

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New Study Shows That All This Ad Targeting Doesn't Work That Well

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Just a couple months ago, I wrote a post saying that for all the focus on "surveillance capitalism," and the claims that Facebook and Google need to suck up more and more data to better target ads, the secretive reality was that all of this ad this ad targeting doesn't really work, and it's mostly a scam pulled on advertisers to get them to pay higher rates for little actual return. And, now, a new study says that publishers, in particular, are seeing basically no extra revenue from heavily targeted ads, but some of the middlemen ad tech companies are making out like bandits. In other words, a lot of this is snake oil arbitrage. The WSJ has summarized the findings:

But in one of the first empirical studies of the impacts of behaviorally targeted advertising on online publishers' revenue, researchers at the University of Minnesota, University of California, Irvine, and Carnegie Mellon University suggest publishers only get about 4% more revenue for an ad impression that has a cookie enabled than for one that doesn't. The study tracked millions of ad transactions at a large U.S. media company over the course of one week.That modest gain for publishers stands in contrast to the vastly larger sums advertisers are willing to pay for behaviorally targeted ads. A 2009 study by Howard Beales, a professor at George Washington University School of Business and a former director of the Bureau of Consumer Protection at the Federal Trade Commission, found advertisers are willing to pay 2.68 times more for a behaviorally targeted ad than one that wasn't.Much of the premium likely is being eaten up by the so-called ad tech tax, the middlemen's fees that eat up 60 cents of every dollar spent on programmatic ads, according to marketing intelligence firm Warc.
As a site that relies on advertising to make money, this is hellishly frustrating. For years we've been pitching non-invasive, non-tracking ad campaigns for Techdirt. Over and over again we tell potential advertisers that people here would be much more open to paying attention to their ads if they promised not to do any tracking at all. And, over and over again companies (even those that initially express interest) decide to throw all their money at the big flashy adtech firms that promise to use "AI" and "machine learning" to better target their ads -- and get little in return for it.We still hope that sooner or later advertisers realize that they're getting scammed by the ad companies promising miracles in the form of tracking everything, and go back to recognizing that good, old fashioned, brand advertising works well without the need for invasive, intrusive surveillance.

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Caterpillar Inc. Bullies Cat And Cloud Coffee Shop Over Its Store's Apparel

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One of the more frustrating aspects of the intersection of trademarks and business is how blind the law seems to be when it comes to recognizing the primary market in which a company operates. This is specifically an issue when it comes to merch and apparel, as many companies build up brand loyalty in their primary markets and then also move to sell clothing to those loyal fans. This all makes sense until these same companies get the USPTO to grant overly-broad trademarks for those ancillary markets, which are then used to bully smaller companies with the excuse being, "Hey, we have to protect our marks, or we lose them."A perfect example of this is the dispute currently going on between Caterpillar Inc., famed makers of tractor equipment and the like, and Cat & Cloud Coffee, which slings java.

The large corporation has trademarked "CAT" and has taken legal action against the small business to stop them from using it. Owners of the small business say they first received the letter in August of 2018."It seemed ridiculous. So, we responded and got a lawyer,obviously," said Jared Truby, co-owner of Cat and Cloud Coffee. "We asked them to further explain their case, asked them to drop it as we are in a completely different industry. They didn't want to, so we went back and forth a few times and called them out for bullying."Truby says when they opened the shop almost three years ago, they couldn't have predicted something like this happening."Could anybody imagine a $54 billion machinery company coming after a coffee company? I don't think that's even in the cards," said Truby. "The first biggest thing they want us to do is not print the name Cat and Cloud on anything again. I think that is unbelievable. I don't think that's going to hold up."
For its part, Caterpillar has pushed back on the outcry over this, pointing out that the only trademark it is disputing is Cat & Cloud's use of the word "cat" on merch and apparel, as Caterpillar sells an absolute ton of this stuff itself. It's an attempt at claiming its being reasonable, but it very much is not.First, a trademark on the the acronym "CAT" is plainly insane if it's going to be used against apparel that uses the word "cat." I would hope that is obvious to everyone. Such a generic trademark is simply not justified. On top of that, the coffee shop's use of the word is a reference to a literal cat. The CAT mark, on the other hand, is a reference to a caterpillar. So we're not even in the same taxonomic family. As you might expect, the branding on Cat & Cloud's apparel looks nothing like Caterpillar's.
It all kind of has that cutesy motif that is well suited for a coffee shop with a cute name and terribly suited if you're trying to fool the public into thinking you're a tractor company. Nobody looking at anything the shop sells on its site is going to somehow think Caterpillar is involved.Which doesn't mean the bullying won't work. As is always the case in situations like this, the expense to defend itself could force Cat & Cloud's hand.
"I guess the good news is if somebody is intimidated by our small little company in Santa Cruz, it means we're doing something right," said Truby. "It leads me to believe we're doing something that's far more important than I can see right now."Truby says they've spent nearly $10,000 already dealing with this case. He says not being able to sell apparel for extra income will have an impact on both employees and the business.
Here's hoping they get the support to stick this out. Or that someone at Catepillar gets a whiff of this and wants to craft a PR win for itself by ceasing this bullying behavior.

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San Francisco DA's Office Whips Up Its Own Sunlight, Releases Data Sets On Arrests And Convictions

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A horrifically stupid and likely-illegal raid of a journalist's house notwithstanding, San Francisco's move towards greater law enforcement accountability and transparency has been monumental. Granted, this increase's momentousness is relative. Most cities do nothing at all to increase law enforcement accountability and transparency, so any forward momentum becomes noteworthy for even exisiting.San Francisco recently became the first city in the nation to ban use of facial recognition tech by local government agencies. The tech's problematic history and freedom-threatening growing pains should have produced similar bans elsewhere in the country, but so far, it's only San Francisco. The fact that it did it before law enforcement even started using it deserves to be applauded. Legislators are rarely ahead of the tech adoption curve… if they're even being informed at all about local law enforcement's new tech toys by the agencies they're supposed to be overseeing.The DA's office -- the same one that issued pretty harsh words about the SFPD's raid of journalist Bryan Carmody's home -- has released a first-of-its-kind transparency tool to keep the public apprised about arrests and convictions. This open-access recordkeeping is a significant improvement over the DA's office former record keeping process, which was apparently nonexistent.

When District Attorney George Gascon first took office he was “shocked” to discover that his staff could often not answer even basic questions about caseloads or prosecution and conviction rates.“You’d ask people around the office how many cases we have…and depending on the day of the week and who you’d ask, you would get significantly different answers,” said Gascon. “The reality is that people would keep their own Excel sheets. Some were actually in handwriting.”The discovery prompted the launch of “DA Stat,” a transparency initiative announced Wednesday that is intended to create greater transparency by aggregating nearly a decade’s worth of data into three new statistical dashboards that are updated on a monthly basis.
As DA Gascon points out, taxpayers spend millions funding his office, but have no idea whether that investment was paying off. The stats included here will at least assure taxpayers new laws are working the way they're supposed to. For example, a 2014 measure reduced personal drug possession from a felony to a misdemeanor. This has resulted in a 33% decline in felony drug prosecutions.It also shows that, for better or worse, the DA's office is pretty good at what it does.
In 2018, the DA’s overall trial conviction rate was 83 percent, while trials averaged 11 days in length for a total of 266 defendants.
What isn't factored into that 83% success rate is how many of those convictions were the result of plea deals. Without this number, it's tough to tell whether the office is loaded with prosecutors that only bring solid cases, or a bunch of canny salespeople able to talk defendants into giving up rather than exercising their right to a fair trial.The good news is that factor won't be ignored. The DA's office plans to add plea numbers as soon as it can obtain reliable data from the court system, which seems not nearly as interested in participating in the new transparency.There's a lot of data here for the public to review and make use of. The DA's office is also working with the DataSF program and hopes to publish its data sets in full by the end of 2019. Until then, members of the public can examine what's been released and judge for itself whether the office is earning its keep. And that puts them miles ahead of residents of almost every other city in the United States.

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posted at: 12:00am on 04-Jun-2019
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Sheriff's Deputy Sued After Arresting Man For Criticizing Him On Facebook

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A good way to get yourself sued if you're a law enforcement officer is to treat a heated Facebook post like it's an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy's face and screaming.Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith's lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

After informing Avila of the reason for the stop and asking for everyone’s identification, Dorsey informed Avila he would be having his partner, Deputy Evan Ruse, write a warning ticket to fix the break light.Dorsey then told Avila that he would be running his K9 or “drug dog” around Avila’s vehicle.Goldsmith watched as Dorsey tapped the bed of Avila’s pick-up right before his K9 jumped into the bed.Dorsey informed Avila that the K9 hit on the truck.At this point, Dorsey ordered everyone out of the vehicle and proceeded to pat everyone down and search the individuals.Goldsmith then observed Dorsey make Avila and his passengers stand on the side of the road while Dorsey searched the vehicle.Dorsey discovered no contraband or anything else of note in Avila’s vehicle but during the search, Dorsey kept uttering that he was getting a whiff of something.At that point, Dorsey and Ruse gave Avila a ticket for the break light and told him that he was free to go.As they began to walk towards the street festival, Goldsmith observed Dorsey and Ruse walk across the street and for reasons unknown and questionable to Goldsmith, Dorsey then body slammed a gentleman named Mike Arthur to the ground.
The fishing expedition that occurred at the Avila traffic stop -- along with the perceived abuse of another witness of the stop -- angered Goldsmith. As most of do, he turned to social media to express his feelings. He commented on the Adams County Sheriff's Office's post of Mike Arthur's mugshot with this:
Ya when they run the drug dog round said car/truck and they make a fake claim the dog hit yes he hit after you tap where you want him to jump on then call it a hit and NOTHING shows up and they look like total fucking lying POS they/he gets pissed walks across main street and body slams THIS bystander that was giving them a hard time guess they dont have any balls to take shit talk they get BUTTHURT YES YOU DORSEY you fucking pile of shit hope this guy hires George and sues the county and you will be the 1st to go Dumbass Dorsey WHY you run the dog getting pulled over for so called fake claim you call a cargo light a brake light you STUPID sum bitch so why run the dog for a traffic stop of light out? THAT IS FUCKING BULLSHIT what reason? when you get shit canned i ll hire ya to walk my dog and PICK up his shit
It may lack eloquence but it does drive Goldsmith's point home effectively: the traffic stop, the drug dog, the attack on Mike Arthur… all bullshit. And every word of this Deputy Dorsey-aimed rant is protected speech. And it's the best kind of protected speech: criticism of the government as personified by the Adams County officer.Neither Deputy Dorsey nor Sergeant Paul Hogan saw it that way. Unaware of the contours of the First Amendment -- or perhaps just not caring -- they filed a criminal complaint against Goldsmith for third-degree harassment.Sergeant Hogan's sworn statement in defense of this bullshit charge is inadvertently hilarious, as all-caps, verbatim recountings of personal slights often are:
ON 7-29-18 AT APPROXIMATELY 0330 JON GOLDSMITH MADE A THREATENING POST ON FACEBOOK IN WHICH HE SINGLED OUT CORY DORSEY MULTIPLE TIMES. IN THE FACEBOOK POST GOLDSMITH REFERRED TO DORSEY AS A "FUCKING PILE OF SHIT." GOLDSMITH ALSO REFERED TO DORSEY AS A "STUPID SUM BITCH." GOLDSMITH ENDED THE FACEBOOK POST WITH "WHEN YOU GET SHIT CANNED I'LL HIRE YOU TO WALK MY DOG AND PICK UP HIS SHIT."
Unfortunately for these officers, the court and the plaintiff know the law better than they do. As Goldsmith's lawsuit points out, there's a case directly on point in that state's top court saying this sort of criticism is protected by the First Amendment.
On September 21, 2018, Attorney Mailander filed a Motion to Dismiss the charges against Goldsmith as violative of the First Amendment.Among other things, Mailander’s Motion cited to the case State v. Fratzke, 446 N.W.2d 781 (Iowa 1989), directly on point, in which the Iowa Supreme Court held that the state could not justify the same harassment charge Goldsmith was charged with against a motorist who wrote a letter to a highway patrolman who had stopped him for speeding, based on the letter’s statement that the officer was a “liar,” a “thief disguised as a protector,” that the arrest was “legalized highway robbery,” that the officer “just enjoys stealing people’s money so he can show everyone what a red-necked mother-fucker he is,” and expressing the letter-writer’s hope that the officer would “have an early and particularly painful death hopefully at the side of the road somewhere he’s robbing someone else.” As the Court explained, “[o]ur Constitution does not permit government officials to put their critics, no matter how annoying, in jail.”
The court agreed with Goldsmith's motion and dismissed the charge. But some damage had already been done. After the charge was filed against him, Goldsmith emailed a screenshot of the post to his wife, deleted his post, and deactivated his Facebook account. He has steered clear of Corning, Iowa where the traffic stop he criticized took place, and saw a physician who noted Goldsmith's anxiety and increased blood pressure.The lawsuit also points out the Adams County Sheriff's Office seems particularly susceptible to "mistaking" criticism for criminal acts. Deputies have arrested people for cursing at them and giving them the finger.The lawsuit alleges false arrest and First Amendment retaliation. It seems pretty clear the deputies wanted to punish Goldsmith for lighting them up on Facebook and dug around until they found an abusable law to use against him. Unfortunately, Iowa's harassment statute is pretty damn abusable:
Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm.
So, there's a couple of bars Goldsmith will have to clear. The first is not specific to Iowa. Courts have held for years that law enforcement officers aren't expected to be experts in the laws they're enforcing. Yeah, it makes very little sense, but I guess we don't want our officers ruminating over appellate level splits on edge cases during "tense, uncertain, and rapidly-evolving" situations.Then we have the law itself, which lends itself to the reading that people can be arrested simply for "annoying" law enforcement officers and Goldsmith's Facebook post certainly fits the common definition of annoying.The wild card is the court and whether it will recognize this for the retaliation it is. Deputies were briefly publicly shamed for turning a traffic stop into a roadside fishing expedition and -- instead of doing nothing -- they did this.

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This Week In Techdirt History: May 26th - June 1st

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Five Years AgoThis week in 2014, there was a back-and-forth between Ed Snowden and the NSA, starting with the former explaining in an interview how he tried to raise concerns internally through the "proper channels". James Clapper responded by publishing an email from Snowden that was not about his concerns as counterevidence, but Snowden insisted that was not the only email and, more importantly, explained why that's missing the point anyway.Meanwhile, one former official was excoriating Snowden for making other countries angry, Bruce Schneier was suggesting that the leaks actually help with the cracking of terrorist encryption, the White House itself accidentally revealed the identity of a top CIA spy in Afghanistan and... the House of Representatives happily reauthorized intelligence community funding with no new oversight, whistleblower protections, or anything else.Ten Years AgoThis week in 2009, a Canadian nonprofit released a deceptive report calling for stronger copyright laws that turned out to be largely plagiarized, eventually leading to three reports being recalled. The BSA would have been on their side though I'm sure, since it was also painting a grim picture of Canadian piracy based mostly on hunches. In Sweden, the judge who was to determine whether the original judge in the Pirate Bay trial was biased was himself removed for bias — and this wasn't even the last twist of the week, as Sweden's cultural minister then apparently fell afoul of local laws about commenting on ongoing litigation by saying she supported the original ruling. Meanwhile, the EFF was trying to counter the RIAA's propaganda in schools, the CEO of Sony Pictures was standing by his belief that there's nothing good about the internet at all, and a guy amusingly sued Guinness when it made him the world record holder for most lawsuits filed.Fifteen Years AgoThis week in 2004, the RIAA was adding another sympathetic and apparently innocent target to the list of people it harassed for money with legal threats, while it was also taking a cue from the MPAA and demanding a broadcast flag for digital radio. Clear Channel bought up a patent on selling instant recordings of live shows and started shaking down bands, while record labels were betting it all on ringtones while jacking up the price (great plan). There were, of course, plenty of legal download sites around by now. Over 100 in fact. Some might say too many.We also heard one of the earliest rumblings of an innovation that today seems... well, not exactly mundane, because I personally still find Google Street View to be pretty incredible, but much more common than it did in 2004, when it was hard to envision it as more than a specialty product for certain industries: a company planning to drive around in a camera-laden van and map everything with photos.

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posted at: 12:00am on 02-Jun-2019
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UK, American Breweries Show How The Craft Beer Industry Should Be Handling Trademark Issues

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Any brief review of the posts we've done here on the craft beer industry's recent heel-turn on all things trademark would give you the impression that there are few good guys any longer and all potential trademark disputes become disputes dialed to eleven in every case. The industry, which has exploded in last twenty years or so, initially developed a tradition for cooperation and congeniality. This was largely to do with the craft industry being heavy on very small startup breweries coupled with the tradition for creative names of brews and artistically inspired label designs. The end result was breweries that quite often swept aside what would be trademark disputes in other industries in favor of camaraderie.That tradition has unfortunately largely disappeared over the past decade. In its place is what's become the steady corporatization of the craft beer industry, which has dragged expensive legal teams into the ranks. Those legal teams too often treat trademark concerns differently than the old guard did, opting for protectionism and aggression rather than cooperation.But the old ways are not entirely gone, as demonstrated by UK and American brewery teams that chose instead to work with rather than against one another.

The Loose Cannon Brewery of Abingdon, UK has recently established trademark agreement with Heavy Seas Beer of Baltimore, Maryland as Heavy Seas moves towards selling their beers in the UK and Europe.Heavy Seas’ flagship brand, Loose Cannon IPA, was potentially going to create confusion with the Loose Cannon Brewery. Happily, the Trademark ownership and use issue has now been fully resolved with Loose Cannon taking over the ownership of the UK trade mark and subsequently granting a license for use to Heavy Seas Beer in the UK. Heavy Seas has granted a mirror license to the Loose Cannon Brewery for the use of the Trademark in the EU.
It's sad how unique this sort of thing has become. Two breweries, between which there was a sensible concern about confusion over trademark rights and branding names, opted to cross-license to one another so that each entity's products could be sold in each market. In addition to demonstrating a congenial approach, it also strikes me that a move like this demonstrates the confidence each brewery has in its own products. This kind of permissive attitude towards what is ostensibly going to be some level of competition only happens when each side is confident that its own fans' love of each beer will keep any real confusion at bay.Not satisfied with just being cool about all of this, however, the two breweries went a step further to solidify the positive relationship by collaborating on brews as well.
To mark what has been a successful outcome, the two brewers will produce a collaboration brew in 2019 at the Loose Cannon Brewery in Abingdon to introduce Heavy Seas beers to the UK market.
But this needs to be more than a mere feel-good story. It should serve as a template for other craft breweries as to how to interact and resolve potential trademark issues between peers. The craft industry is simply better for outcomes such as these.And that should be good for everyone.

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posted at: 12:00am on 01-Jun-2019
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San Francisco Police Union Steps Up To Criticize Police Chief Over His Handling Of The Leak Investigation

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This is fantastic. Not in the way something amazing and pure is fantastic, but fantastic in the way that only an oft-maligned profession feeding on itself can be. It could be lawyers or debt collectors or Instagram influencers. In this case, it's law enforcement.Someone in the San Francisco Police Department tried to disparage a dead public defender/police critic by leaking a police report on his death. The person apparently on the receiving end -- stringer Bryan Carmody -- shopped it to a few local journalists. The SFPD decided the leak investigation should wend its way through Carmody's house. So, officers raided his place and walked off with $10,000-worth of laptops, phones, tablets, and other electronics.Sidestepping the state's journalist shield law has not worked out well for the SFPD. After some momentary commiseration from San Francisco public officials, the SFPD is now surrounded by critics. And it's not just the normal critics. Even the District Attorney has publicly stated he doesn't see how this search could possibly have legal -- a surprising turn of events considering most prosecutors tend to support the local PD (or stay silent) when the PD fucks things up.The chief of police has also issued an official apology for the actions of the officers he oversees. Chief Bill Scott turned over the leak investigation to an outside department and said the warrant obtained to search the journalist's home lacked "clarity" and was "concerning."This public statement has led to criticism from another surprising source: the local police union. The SF Police Officers Association is unhappy -- not because of the raid itself, which it has no comment on -- but because Chief Scott threw officers under the bus rather than take responsibility for an investigation he was directly overseeing.

Yesterday, SFPD Chief William Scott showed everyone in the SFPD, and all San Franciscans, what his character consists of and it was a pathetic, deceitful and shameful display of self-preservation, finger pointing, and political kowtowing. We all deserve better.The investigation into whomever disseminated the initial Adachi police report is a righteous one and whomever is responsible should be held accountable. What we know is that Chief Scott ordered that investigation. Chief Scott not only followed every twist and turn of the investigation but he knew every element of the investigation, directed the investigation and has clearly either come down with the most debilitating case of amnesia or is flat out not telling the truth about his direct involvement and the horribly flawed direction he gave to find the leak of the police report.In either case, it is time for Chief Scott to go.
At least the union has gone on record that the officer who leaked the report should be punished. This will come in handy when the PD does decide to punish that person and the union inevitably starts protesting whatever punishment is handed down. But it's on point in its criticism of Chief Scott. If he was directly overseeing this, he had a chance to stop it before it became a national embarrassment.Thus endeth the things I agree with here. The SFPOA remains wrong in its assessment of what's happening now. It claims turning this investigation over to an outside agency is a "diversion" and that Chief Scott should a.) be investigated, and b.) have the courtesy to resign before the investigation is over. Somehow, the SFPOA believes the PD -- with its untrustworthy Chief and its leaky officers -- should be trusted to police itself.There will likely be additional angry statements from the police union as this investigation rolls on. The SF Chronicle reports a bunch of search warrants were served in this case, most of them targeting people the union never wants to see targeted by search warrants.
San Francisco police executed seven search warrants as they tried to find out who leaked a police report to a freelance journalist, including searches of officers and one of the journalist’s phone records, police officials and an attorney in the case said.The search of phone records preceded the now-notorious May 10 raids on journalist Bryan Carmody’s home and office.
New info -- none of which is making the SFPD or its leadership look any better -- continues to trickle out. But there are still a lot of unanswered questions, as Trevor Timm of the Freedom of the Press Foundation points out. Many have to do with the warrant Chief Scott apparently approved, but couldn't recall the details of until everyone in the country was asking questions. It certainly seems the warrant wouldn't have been approved if judges knew it targeted a journalist, so there's a good chance this warrant contains crucial omissions or flat-out lies.But the SFPD wasn't the only agency involved in the raid, detention, and questioning of Brian Carmody. The feds stepped in and the Freedom of the Press Foundation has its own list of unanswered questions:
  • Why did the FBI attempt to conduct an interview of Carmody after his house had been raided?
  • Why was the FBI involved in this case at all, since it dealt with a local matter?
  • Did the FBI follow its own guidelines involving an investigation into a member of the media?
  • Did the FBI gain access to Carmody’s equipment following its seizure and if so, did they search it, too?
As slowly as this is developing, it's likely the answer to these questions are many, many months away. This has made headlines around the nation over the past couple of weeks and the SFPD has yet to release the search warrant affidavit publicly. It has only recently gotten around to admitting the raid was likely unlawful.The PD won't be able to keep everyone in the dark forever. The affidavit will be published eventually and then everyone else can see the stuff the police chief called "concerning" and "unclear." It will probably be both, but the public's unlikely to use these vague euphemisms. Until then, we can all enjoy the small amount of pleasure from watching the San Francisco law enforcement community attack itself, rather than members of the public.

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posted at: 12:00am on 01-Jun-2019
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