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February 2020
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8chan Founder, Who Has Denounced The Site, Now Facing 'Criminal Cyberlibel' Charges From Current Owner

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Fredrick "Hotwheels" Brennan founded 8chan in 2013 after he and a group of other fairly naive souls felt that 4chan (yes, 4chan) had become too unfriendly to "free speech" because it had started to block some harassment and abuse on the site. It's always amazing to me the people who insist that internet platforms should allow all speech, without recognizing that what they are asking for is inevitably a cesspool of garbage. Brennan eventually realized as much, relinquished control over the site to Jim Watkins, and even called for the site to be shut down and criticized Watkins. Back in November, Watkins responded by filing a criminal "cyberlibel complaint" in the Philippines. The latest news, from the Filipino site Rappler, is that warrant has been issued for Brennan's arrest.There are so many insane things about this, it's difficult to know where to start. First of all, I'm always perplexed by people who position themselves as free speech absolutists then suing people for libel. It seems to kind of prove that they don't actually believe what they claim to, and have no problem using the powers of the state to silence speech they dislike.Second, the whole idea of criminal libel -- let alone the "cyber" variety -- seems positively insane, though we've seen it used before in the Philippines, including against Rappler founder, Maria Ressa. At the very least, it would seem to go against Section 4 of the Filipino Bill of Rights, which states:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Even the comments that Brennan made, that Watkins has filed these claims over, seem pretty ridiculous. Brennan had tweeted "My theory that Jim Watkins himself is going senile and actually believes in Q is no longer a theory" after it was reported that Watkins was wearing a "Q" pin when testifying before Congress. Calling someone senile would not be libel in the US, and the idea that it would be criminal makes no sense at all.Brennan happens to be in the US at this time and apparently has decided not to return to the Philippines (where both he and Watkins live) as long as the charges remain in place.
The surprise decision means that Brennan, who is confined to a wheelchair and suffers from a condition known as brittle bone disease, could face up to 12 years in prison.It's basically a death sentence, Brennan told VICE News from Los Angeles.
His lawyers have filed an appeal of the indictment, which is a fascinating read on its own. It opens with a Voltaire quote: "I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it." And then states:
VOLTAIRE'S PONTIFICAL VERSE bestirs once again thebasic liberties to free speech and free press -- liberties thatbelong as well, if not more, to those who question, who donot conform, who differ. For the ultimate good which we allstrive to achieve for ourselves and our posterity can better bereached by a free exchange of ideas, where the best test oftruth is the power of the thought to get itself accepted in thecompetition of the free market -- not just the ideas we desire,but including those thoughts we despise.RESPONDENT-APPELLANT FREDRICK ROBERTBRENNAN ("Respondent"), by counsel, most respectfullyfiles this APPEAL/PETITION FOR REVIEW ("Appeal") tothe Honorable Secretary of Justice to REVERSE AND SETASIDE the highly arbitrary, completely baseless, grosslyunjustified and manifestly erroneous RESOLUTION of theinvestigating prosecutor Juliene Raymond A. Cabanacan,acting as Assistant City Prosecutor of Pasig City ("ACPCabanacan"), dated January 02, 2020 ("Resolution), copywas received by the undersigned counsel on February 19,2020, finding probable cause for the offense of cyber libelagainst respondent.For lack of attention to detail, ACP Cabanacanerroneously cited an incorrect provision of cyberlibel underRA 10175. He cited Section 4 paragraph 4 as an offense thathas been violated by respondent. This is defective and is notthe correct provision on Cyberlibel in RA 10175.
It goes on from there, but the presentation here is quite fascinating -- from the Voltaire quote to the "most respectfully" immediately followed by "highly arbitrary, completely baseless, grossly unjustified and manifestly erroneous" bit. One would hope that the DOJ would rethink this, but given what little we've seen of how this bizarre cyberlibel law is enforced in the Philippines, I wouldn't hold out much hope.

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posted at: 12:00am on 29-Feb-2020
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Documents Show Clearview Is Selling Facial Recognition Tech To Retailers, Fitness Centers, And Human Rights Violators

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Clearview -- the latest (and most troubling) entrant into the facial recognition tech sweepstakes -- says it's product is just for law enforcement. And law enforcement has seemingly welcomed the web-scraped facial recognition database with open arms. Clearview's marketing documents claim the company works with over 900 law enforcement agencies in the United States and elsewhere in the world.Clearview's app puts the agencies a few clicks away from over three billion images scraped from sites such as Facebook, Twitter, and LinkedIn. Those being scraped aren't happy about it but there's little they can do but engage in some cease-and-desist shouting.But Clearview's claim that it's only making this available to law enforcement agencies is false. New documents, obtained by BuzzFeed, show the company is selling its product to a number of other entities, both public and private.

The internal documents, which were uncovered by a source who declined to be named for fear of retribution from the company or the government agencies named in them, detail just how far Clearview has been able to distribute its technology, providing it to people everywhere, from college security departments to attorneys general offices, and in countries from Australia to Saudi Arabia.
That's the public sector buy-in. Here's the private sector's investment.
More than 200 companies have Clearview accounts, according to the documents, including major stores like Kohl’s and Walmart and banks like Wells Fargo and Bank of America. While some of these entities have formal contracts with Clearview, the majority — as with public sector entities — appear to have only used the facial recognition software on free trials.
This list also includes a number of entertainment venues, casinos, fitness centers, and, oddly enough, the NBA.So, it's not just for cops. That might explain the company's hands-off attitude towards the entities it has publicly acknowledged it works with. Cops are encouraged to test-drive the software by searching friends and family members. Nothing like encouraging misuse right off the bat to dissuade law enforcement officers from using this tool for personal evil.As BuzzFeed notes, most of these appear to be limited trials of Clearview's software. But a few private entities are apparently paying for the privilege of running security camera footage against Clearview's scraped-together database.
Company logs reviewed by BuzzFeed News include Walmart (nearly 300 searches), Best Buy (more than 200 searches), grocer Albertsons (more than 40 searches), and Rite Aid (about 35 searches). Kohl’s, which has run more than 2,000 searches across 11 different accounts, and Macy’s, a paying customer that has completed more than 6,000, are among the private companies with the most searches.
Meanwhile, US agencies are enthusiastically participating in the exploitation of this crowdsourced (so to speak…) database. BuzzFeed notes the CBP has already registered 280 accounts and run almost 7,500 searches. The Secret Service isn't far behind, having run 5,600 searches. Other federal customers include the DEA, ATF, and FBI.Clearview has also stated its plan for international expansion begins and ends with Canada. This has already been exposed as untrue, but information in these documents shows how aggressively Clearview is pursuing customers around the world.
It shows that Clearview AI has expanded to at least 26 countries outside the US, engaging national law enforcement agencies, government bodies, and police forces in Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Ireland, India, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Portugal, Serbia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
And while Clearview's CEO has promised not to sell to "adverse" countries like North Korea, China, and Iran, this is the only line it appears to have drawn. The documents show Clearview has offered its software to agencies in Saudi Arabia and the United Arab Emirates -- both notorious violators of human rights.Clearview clearly can't be trusted. It has spent its limited time in the public eye lying about what it does and who it does it with. Hopefully, the endless negative press will deter its growth. Unfortunately, there's an undeniable market for unregulated facial recognition tech and Clearview's promise of billions of photos to match faces against beats everything else offered by anyone else. As long as the market exists, Clearview will fill it.

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Netflix Seeks Cancellation Of "Choose Your Own Adventure" Trademark

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This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a "choose your own adventure" show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a "choose your own adventure" game.Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.And so here we are, with Netflix setting forth those same affirmative defenses... but with one notable addition.

Netflix is asking for the cancellation of Chooseco’s ‘Choose Your Own Adventure’ trademark, as the dispute between the two companies over a “Black Mirror” episode rumbles on.Netflix, in a new filing at the US District Court for the District of Vermont on Tuesday, February 25, argued that not only has the term “choose your own adventure” become generic (and available under principles of fair usage), but also that characters and storylines from its 2018 interactive episode “Bandersnatch” differs from other interactive productions.
Yup. In addition to the affirmative defenses laid out in its motion for dismissal, Netflix is now asking that Chooseco's trademark be cancelled entirely. This is going to have a ripple effect across all of the other actions Chooseco has taken as set forth above. Those indie game threats? Those go away if Chooseco doesn't have a trademark to wield. Future lucrative deals such as that struck with Amazon? Nope, those are gone, too, potentially. By picking this wholly unnecessary fight, Chooseco has potentially given Netflix the ability to yank away the one poker chip it had left to play.From the filing:
The alleged “Choose Your Own Adventure” marks that are the subject of Registration Nos. 2,913,403; 4,682,357; 5,651,588; 2,807,473; and 3,234,147 lack distinctiveness, are generic, and therefore are unprotectable. As detailed herein, the phrase “Choose Your Own Adventure” no longer denotes a single source or origin. Instead, it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, or (b) to any interactive fictional work that employs a “branching” narrative style, regardless of the source or origin of the work. As used in the context of fictional works, the phrase “Choose Your Own Adventure” encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.
Anyone really want to argue that the above isn't true? It sure seems to be. I have long known what a CYOA book was. I, until covering this story, had zero idea that there was a single company with a registered trademark behind those books. Because, really, there isn't. CYOA is essentially a genre. And somewhat descriptive. And not particularly identifying as to a source of a product.There are legions of interactive novels, for instance, that are self-described as CYOA. And, yet, here we are in 2020, the year of our lord, first seeing legal action by Chooseco over it? Come on.Again, I wish we saw this more often. Trademark bullies looking for a payday should more often have to at least face the risk of losing their trademarks entirely. While there is no guarantee that this will work in Netflix's favor at trial, at least this threat would deter more bullying in general.

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posted at: 12:00am on 28-Feb-2020
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PetNet 'Smart' Pet Feeders Go Offline For A Week, Customer Service Completely Breaks Down

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The "smart" internet of things era was supposed to usher forth a new era of convenience. Instead, it somehow keeps managing to advertise how dumber technology is often the smarter option, and you're not being particularly innovative if your product actually makes life harder. From "smart" door locks that are easily hackable to hackable "smart" TVs that are so smart they spy on you, there's near daily examples showing how connecting old tech to the internet and calling it innovation--is itself not particularly innovative.Smart pet feeders are apparently no exception.PetNet, whose products promise to intelligently feed your pets the right amount of food at the right time, didn't have much fun this month. Starting on February 14, the company announced that it was investigating a system outage affecting its second-generation SmartFeeders that made the feeders appear to be offline. In a series of Tweets, the company insisted that the feeders would still dispense food on a schedule, even though users couldn't change settings or use the app. The company also couldn't really specify why the system was having problems:

Many consumers found that the feeders weren't working at all, and the problems continued for almost a week before the company was able to provide any clearer answers. Adding insult to injury, when customers reached out to the company to complain, they hit a complete and total brick wall in terms of functioning customer service. Emails and phone calls weren't returned, and the company simply refused to answer annoyed customer inquiries on Twitter or Facebook. Even emails to company execs wound up being undeliverable:
"During that time, customers voiced frustration at the company's lack of responses to their questions on Twitter and Facebook. Messages to the company's support email and CEO Carlos Herrera were undeliverable.TechCrunch tried contacting their emails and got delivery failure notices. A message sent to their Twitter account was also not replied to. We have contacted the company again for comment.
Petnet customers were not amused to discover that neither PetNet the company, nor its products, were particularly "smart":
This is not the future the Jetsons promised. And once again, dumb tech is often the smarter option.

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posted at: 12:00am on 28-Feb-2020
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Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers

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If you had told me a few years ago that we would have multiple stories at Techdirt over copyright issues surrounding video game emotes, I would have said you were a crazy person. Unfortunately, it seems that it's the world that is crazy instead.  Fortnite in particular has been a focus of many of these stories, as a popular feature in the game is the ability to perform emotes, some of which are or are accused of being based on pop culture occurrences from other media. It is all, I can assure you, very stupid.But people claiming likeness to Fortnite emotes isn't the only copyright issue that surrounds their use in the game. Even when Epic has tried to do right by creators of copyrighted content, it still has managed to find itself in trouble. For example, it seems that Epic, which properly licensed Rick Astley's meme-famous Never Gonna Give You Up audio for an emote inspired by his song, has been forced to patch the game so that players can mute the musical content of that emote. Apparently, YouTubers are finding themselves receiving copyright strikes over the song.

Fortnite introduced its Rick Astley-inspired emote just one week ago, and the company has already rolled out an update to let PC players mute the music in response to complaints: creators said they were getting copyright claims over the licensed track that plays when the emote is used.While it’s clear that Epic licensed Astley’s song, which defined early memes for an entire generation of people, the company didn’t think of how this would affect its creator base. Giving players the ability to mute might take away from the fun of the emote, but it’s a good middle ground for now. It also allows Epic to pursue other popular tracks for its game while ensuring the creator community isn’t hurt.
This shows yet another flaw in copyright law in terms of it functioning well within the modern era of technology. Epic licensed the song properly, except that nobody planned for the obvious eventuality of that licensed emote being used by YouTubers, where the label then issued copyright strikes against those video uploads. What's the argument by the label? Every YouTuber doing let's plays has to license the song as well, even though they're only playing the game? Is Epic supposed to work out a separate license for YouTube videos? Is it a public performance?Or is this all terribly dumb and a barrier to the original purpose of copyright law? That, probably. After all, it's not as though a snippet of a song that was otherwise licensed appearing on YouTube is somehow a replacement for that song. It's also not as if rick-rolling weren't an incredibly common trollish trope, for which Astley is principially famous among the present youth. Epic having to patch the audio of the emote out of its game for this reason is silly.But that's modern era copyright for you.

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posted at: 12:00am on 27-Feb-2020
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Judge Tears Into Cops For Beating A Man Who Dared To Question Their Words And Actions

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It doesn't happen often enough, but it is so very refreshing to watch a bunch of assholes get torn new assholes. (h/t Peter Bonilla)A man who was violently "arrested" (read: beaten) by several Allentown (PA) police officers was cleared of all charges last November by a jury. The judge had plenty of harsh words for the officers who participated in this brutal farce. John Perez tried voicing his opinion to some cops who were apparently using a bunch of foul language while "investigating" (read: standing around) reports of an armed man in the neighborhood.The cops didn't like Perez's questions and decided to punish him for his inquiries. A video that went viral showed the violent response from the Allentown cops, who first pushed Perez to the ground before deciding he needed to be punched into submission. Perez ended up being charged with resisting arrest and disorderly conduct. He was found not guilty after a jury trial and that's when Judge Maria L. Dantos decided the involved officers needed to be told some things they'd probably never been told before.The full transcript [PDF] has been released and it's a hell of a read. Dantos briefly recaps her career as a former prosecutor, working hand-in-hand with the DA's office and the PD to carry out raids, search warrants, and investigations. Then she comes to the point: what happened here was inexcusable and shameful and she makes sure the officers know it.

I was very proud of my years of service. I tried to provide to my community. I do protect and serve. But then you come in here with this case and proudly display to this community how you talk to people.There were at least nine Allentown Police officers there that night. That is likely 90 percent of the evening's platoon. That is a lot for a 200 man department. You came into that scene like angry, hostile bullies from your first contact with those citizens, and especially officer Battoni.
Dantos lights into the DA's office as well for choosing to pursue these charges, despite the actions of the officers captured on video that night. She points out beating someone for talking to cops does nothing to help community relations and bringing charges against a person who was beaten by cops makes that divide even larger. She quotes one officer's own testimony, where he stated "no crime" had been committed at the point he decided to shove John Perez to the ground.Instead of being community leaders, the cops chose to be thugs with badges and power. And the DA's decision to pursue this particular case highlighted everything that is wrong with that office and the police officers involved in the arrest.
I have seen murder cases, shootings, robberies, burglaries, pled to all manner of offers. In this case nothing? You chose to, instead, put on display police officers calling people pussies, bitches, threatening to shoot a dog, forming your disgusting blue line of four officers who turned their backs and said they saw nothing.You perjured yourselves. You escalated a situation without cause. Cops smirking on the stand at this jury, laughing at the defense attorney, high-fiving in the hallway after testimony as if there were something, anything, to be proud of here.
What cop thinks this is something that should go unpunished, if not actually celebrated? Far too many, it seems.
You, officer Lebron, shoved Mr. Perez because you were mad, period. And then you got up on the stand and told that jury that you were just trying to make some space. That is not what happened.[...]Nine officers, most of the night shift, pulling cars from other areas of the city because you lost it. That's what happened. You lost it. Over nothing. Because someone was talking to you in a manner you didn't like? No crime. You serve them.
Judge Dantos closes this reaming by pointing out this isn't her problem to fix. She can only do so much. But those that need to mend relationships with the community apparently have no willingness to do so. All she can do is point out where the blame lays and who should be holding their own officers accountable so this sort of thing doesn't happen again.
Choices were made. I warned the Commonwealth and yet you displayed this conduct for the world to see. It's shameful. I'd really like to be a healer. I would really like to unite this community between law enforcement and the citizens. But the blame for this lays with you and it is for you to fix.
Will this be the flashpoint for reform? It seems doubtful. The DA took a case stemming from a very dubious deployment of force all the way to a jury and came out with a loss and a judicial dressing down. The Allentown PD has a history of excessive force deployment which has resulted in hundreds of thousands of dollars in settlements. But that money hasn't bought them a better police force. While it's good to hear a judge has finally had it with bad cops, it's up to the PD to fix the problem. And it won't because it clearly hasn't done it yet, despite having ample reason to do so.

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Smithsonian Releases 2.8 Million Images And 3D Models Into The Public Domain

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Here's some good news for a change. The Smithsonian has just announced Smithsonian Open Access, in which it has released 2.8 million high quality digital images and 3D models into the public domain under a CC0 public domain dedication.

With Smithsonian Open Access, we're increasing the public's ability to use millions of digital assets2D and 3D images and data. Open Access items carry what's called a CC0 designation. This means the Smithsonian dedicates the digital asset into the public domain, meaning it is free of copyright restrictions and you can use it for any purpose, free of charge, without further permission from the Smithsonian. As new images are digitized, if they are determined to be copyright-free, the Smithsonian will dedicate them as CC0 ongoing.
It appears the plan is to keep adding to the database. The FAQ suggests that it won't just be images and 3D models, but also songs and data sets and much more. And they make it clear that anyone can and should make use of it, without needing to get any permission -- even for commercial use (for some reason, some people still think public domain works can't be used commercially, but that's just wrong).
Since the Smithsonian's founding in 1846, its mission has been clear: the increase and diffusion of knowledge. We want to empower people everywhere to participate in that mission with us in new and innovative ways for the 21st century.Smithsonian Open Access invites you to discover a world where you can learn, research, explore, and create in ways you couldn't before. By making our trusted collections easier to access and use, we hope to inspire people to build new knowledge to understand our worldpast and present.
Another cool part of the project is that they're asking volunteers to help transcribe various scans of books and documents as well to help make everything even more searchable.There are a growing number of sources of public domain material out there, but having the Smithsonian join in with such a huge chunk of content is a really great sign. The bigger the public domain, the better, but for it to work to spur new creativity, it also needs to be easily accessible, and the Smithsonian is helping out with that in a big, big way.

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posted at: 12:00am on 26-Feb-2020
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Senators Pitch Temporary Facial Recognition Ban, Leave Door Wide Open For Abuse By Federal Agencies

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Here's a promising development on the facial recognition front -- one that won't make facial recognition tech developers very happy. Bans have been popping up around the nation but this legislative pitch would (sort of) prevent the federal government from deploying the tech.

On Wednesday, Senators Jeff Merkley (D-OR) and Cory Booker (D-NJ) introduced legislation to place a moratorium on the use of facial recognition by the federal government or with federal funds—unless Congress passed regulations for the technology.The Ethical Use of Facial Recognition Act aims to create a 13 member congressional commission representing interested parties—including law enforcement, communities subjected to surveillance, and privacy experts.
It's a temporary ban but it's better than doing nothing about the federal government's enthusiasm for unproven tech. The DHS has been pushing for this tech to be deployed everywhere travelers might board conveyances or cross borders. Federal law enforcement agencies are just as interested in using this tech despite its horrible track record, amassing large collections of facial pictures and granting access to just about any local agency expressing an interest in rolling the dice on biased software. Then there's Clearview, which is its own monstrosity -- one that implicates far more variables than government access.Unfortunately, there's a big exception carved out for law enforcement agencies, which would include DHS components assigned to borders and airports. The only thing keeping this bill from being completely useless is that the exception is tied to a warrant requirement, which means no more biometric scanning at international airports.Or maybe it doesn't. The bill [PDF] doesn't specifically address the Constitutional no-man's land that are our border crossings and international airports. So, it may be possible for law enforcement agencies working in these areas to abide by the partial ban while still ignoring the warrant requirement because the normal rules just don't apply within 100 miles of any border crossing.That's not to say it's a terrible bill. It just could have been a much better bill. It will prevent inland use of facial recognition tech without a warrant and, importantly, would force the federal government to develop and implement standards governing its use and (hopefully) set some baselines contractors would need to meet before selling their tech to government agencies.At this point, the only thing Congress has done in response to the rapid deployment of facial recognition tech is express its concern and suggest some hearings might be in order. What it hasn't done is prevent the sketchy tech from being deployed as rapidly as government agencies can nail down contracts. Hitting the pause button for a few years is a far better idea than allowing things to continue to run towards the direction of amok, especially when it has been made clear most companies' offerings are biased and inaccurate.

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Not Clearly Established A Jailer Can't Spray A Prisoner In The Eyes With Pepper Spray For No Reason, Says Fifth Circuit

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A recent decision [PDF] by the Fifth Circuit Court of Appeals once again highlights the utter absurdity of qualified immunity. To qualify for immunity, all a law enforcement officer needs to do is show they violated someone's rights in a new way -- one not previously considered by the court. Since there's no on-point precedent, it was not "clearly established" that this violation of rights was actually a violation of rights the officer should have been aware of, so the officer walks away from the lawsuit unscathed."On-point" means this exact thing happened before. If a cop shoots an unarmed person who happened to walk by a window rather than through a door, and it's only been established that shooting an unarmed person walking through a door is a Constitutional violation, the window shooting is good to go and qualified immunity is handed to the officer. Even when it should be apparently clear shooting an unarmed person through a window would violate their right to be free of bullets when walking past their own windows while inside their own home, it somehow isn't clear to cops. Nor is it to the courts, that only consider established precedent when deciding whether or not an officer's actions were "reasonable" in this situation.This case involves the actions of a corrections officer. Prince McCoy was sprayed in the face with pepper spray by a guard referred to in the lawsuit only as "Mr. Alamu."Here's McCoy's side of the story:

On that day in 2016, Alamu came by McCoy’s cell block. As Alamu approached the cell of Marquieth Jackson, one of McCoy’s neighboring inmates, Jackson threw some water on Alamu. Alamu radioed a sergeant, “who dealt with the matter.” About an hour and a half later, Alamu returned to conduct a roster count. Again, Jackson doused Alamu with water. Angered, Alamu grabbed his chemical spray and yelled “where you at?” repeatedly at Jackson. McCoy’s fellow inmates screamed “you can’t spray him!” But because Jackson had blocked the front of his cell with sheets, Alamu couldn’t do anything. Two minutes passed. Alamu re-holstered the spray and walked toward McCoy’s cell, asking for McCoy’s name and prisoner number. As McCoy approached the front of the cell to inform him, Alamu “sprayed [McCoy] directly in the face with his [chemical] spray for no reason at all.”
And here's Mr. Alamu's:
He states that after being “chunked with an unknown liquid” by Jackson, he “immediately . . . ran away from the cell for cover.” As he approached McCoy’s cell, he “went blank” after McCoy threw “an unknown weapon” at him, striking him in the face. Feeling that his “life was in danger,” “the next thing that crossed [his] mind was to use” the spray. He characterized his panicked reaction as an “involuntary action.” Documents in the record suggested that the “weapon” was a “piece of rolled toilet paper.” McCoy denies throwing anything.
It's refreshing to know correctional officers feel it's acceptable to "go blank" when (allegedly) being hit in the face with a "piece of rolled toilet paper." "Going blank" is great -- especially when tied to "life in danger" -- because it can be used to justify every bit of excessive force that happens after that. This doesn't work for civilians. Assaulting someone after "going blank" and supposedly acting in self-defense tends not to sway juries when the end result is an unarmed, assaulted victim.The prison's Use of Force report determined Alamu's pepper spraying of McCoy was unnecessary and inconsistent with policy. Alamu was placed on three month's probation. The Fifth Circuit is far more sympathetic to Alamu's use of unnecessary force. It does find Alamu violated McCoy's rights by spraying him with pepper spray because a different prisoner had thrown water on Alamu.
Alamu has two main responses, but neither saves him. First, he contends that he reasonably perceived a threat because McCoy threw a wad of toilet paper at him. But even if that factual contention might persuade a jury, it does not justify summary judgment. McCoy denies throwing anything at Alamu and supports his denial with competent evidence. Relatedly, Alamu suggests that the spray was justified because the undisputed facts showed that Jackson had twice thrown liquids on Alamu. But the conclusion doesn’t follow: Alamu sprayed McCoy, not Jackson. McCoy should not bear the iniquities of his fellow inmate.Second, Alamu appears to contend that McCoy cannot show a violation because his injuries were de minimis. But unfortunately for Alamu, the Supreme Court has rejected that line of reasoning. “Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 U.S. at 38. Accordingly, because a reasonable jury could conclude that Alamu’s use of force was excessive, McCoy meets his burden at the first QI prong.
But that's the end of the good news. Although McCoy cited previous cases pretty much on point dealing with the assault of prisoners who posed no threat to officers, the court decides those cases just aren't "on point" enough.
Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established. This was an isolated, single use of pepper spray. McCoy doesn’t challenge the evidence that Alamu initiated the Incident Command System immediately after the spray, nor that medical personnel promptly attended to him and provided copious amounts of water. Nor does he provide evidence to contest the Use of Force Report’s finding that Alamu used less than the full can of spray… [O]n these facts, it wasn’t beyond debate that Alamu’s single use of spray stepped over the de minimis line. For that reason, the law wasn’t clearly established.
The dissent asks the questions that need to be asked -- the ones that aren't addressed by the majority. Why is it still OK to pepper spray someone when it's been clearly established assaulting a prisoner in the same position with fists, batons, or Tasers isn't? As the dissent points out, pepper spray is arguably more dangerous than anything else on this list.
Although the majority purports to recognize that the instrument of force does not matter in a “no provocation” case, its grant of immunity ultimately turns on the fact that the guard used pepper spray instead of a fist, taser, or baton. It relies on the absence of law clearly establishing that wantonly spraying a prisoner with a chemical agent involves more than a de minimis use of force. The same could have been said in Newman about tasing. Unexplained in the majority opinion is why tasing is a more serious use of force than pepper spraying. The use of pepper spray is no small thing. The chemical agent, which temporarily blinds its recipients, is—unlike tasers—banned for use in war.
As for the majority's inability to find a case on point to deny QI, the dissent says its willingness to abandon common sense in favor of precedent does not reflect well on it.
The majority neglects that the gratuitous tasing in Newman was deemed an “obvious” case of excessive force, 703 F.3d at 764, a label that also fits the pepper spraying of McCoy “for no reason.” Qualified immunity is often a game of find-that-case, but not always. Common sense still plays a role; when the violation of constitutional rights is “obvious,” there is no immunity. [...] That knowledge of illegality necessarily exists when an officer commits an obvious constitutional violation. That’s what obvious means.
Our rights are supposed to protect us from our government. But somehow, these rights are only vaguely established when they're violated by government employees. Years of jurisprudence hasn't brought us any closer to a "reasonable" ideal that actually reflects reasonable thought, much less common sense. The only thing "clearly established" is that law enforcement officers can violate rights with almost no fear of reprisal.

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Can You License A Video You Don't Hold The Copyright Over?

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A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.

But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."
It says:
Camera falls from a sky diving airplane and lands on my property in my pig pen.
I found the camera 8 months later and viewed this video. For licensing/usage please contact: licensing@jukinmedia.com
If you're not familiar with it, Jukin Media is one of the biggest of a weird crop of businesses that rush in to try to monetize "viral" videos. Basically, they find various viral content and quickly contact whoever controls the video, and promise to get them money by "licensing" it for use in media. What this often means in practice -- especially with Jukin -- is that it goes around shaking people down for resharing clips of these viral videos.Now, in some cases, there may be legitimate licensing opportunities, or potentially even real copyright infringement. However, I'm left scratching my head over the situation here. First off, the description (whether true or not), claims that the camera fell out of a plane and just landed in this person's pig pen, where it was found many months later. I don't know enough about regular property law to know if having the camera thrown from the sky onto the landowner's property -- and then left for 8 months -- means anything in terms of who owns the camera, but there's one thing that is pretty clear: the person who found the camera absolutely does not hold the copyright in the video.A la the infamous monkey selfie case, there's a legitimate question as to whether or not there is a copyright to be had in this video -- but if there is, it's not held by the person who found the camera (and, no, we'll get it out of the way: it's not held by the pig either, as only humans and companies can hold a copyright). At best, one might argue that there's some copyright interest held by the person whose camera it used to be -- the person who dropped it out of the plane. Even that is arguable. The copyright in a photograph or video is supposed to be limited to the creative choices made by the creator. If the camera was deliberately dropped from the plane with the intention of making this video then, there's maybe a tiny sort of argument that they should get some level of copyright protection, though even then I'd argue it's fairly limited, as the creative input by that person is fairly minimal (especially once the camera is on the ground and the pig takes over).All that is to say -- I'm not at all sure what rights Jukin has to "license" here. It can't offer a copyright license, and if it is, that's copyfraud -- claiming copyright in something it has no right to. But, of course, in this age where the RIAAs and MPAAs of the world continue to insist that everything must be covered by copyright, I imagine that Jukin has likely been able to convince lots of people to pay up because it's just easier, rather than recognizing that it has no rights to be licensing the video in the first place.

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Game Jam Winner Spotlight: Legends of Charlemagne

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Last week, we featured Hot Water in the first Winner Spotlight from our public domain game jam, Gaming Like It's 1924. This week, we're taking a closer look at the winner of the Best Deep Cut category, reserved for games that used 1924 material that doesn't appear on the popular lists of works entering the public domain this year. Abelardsnazz snagged the prize this year with the beautiful deck-building card game Legends of Charlemagne.What's the "deep cut" that pushed this game into the winner's circle? A collection of amazing public domain paintings by N. C. Wyeth, primarily from a 1924 edition of Thomas Bulfinch's book that shares the game's name, Legends of Charlemagne. This collection of legends, more commonly published today as one third of Bulfinch's Mythology, was originally written in 1863 and has been republished many times over the years, but the illustrated edition from 1924 contained this complement of then-new artwork that is easily missed by people searching for things that have just entered the public domain. The paintings are prime specimens of the work of Wyeth, who was a prolific and unique artist in the early 20th century with over 3000 paintings to his name, and is known especially for his work for books, magazines and advertising, perhaps most notably the Scribner Classics series. His illustrations for Bulfinch are classic examples of his realist style, and boy do they ever make for some nice looking cards.

It's especially cool how this material turns the game into a link in a public domain chain: an adaptation of newly-copyright-free paintings that were themselves originally created to breathe new life into a classic work that was itself outside copyright, which was itself originally based on popular mythology and old stories with their origins lost to history. (Of course, it also really highlights how long copyright terms have gotten, with these paintings made for a then-60-year-old work being protected for nearly a hundred years before entering the public domain last month.) And as you can see, the designer didn't solely lean on Wyeth's eye-catching work: the cards themselves are perfectly designed to incorporate the paintings and bolster their aesthetic, resulting in a game that looks so professional and high-quality you can immediately picture it as a printed and packaged product in its current form.The game itself is a straightforward, well-designed deck builder that will be familiar to a lot of players while still throwing them a few twists and offering plenty of strategic decisions to consider. It's a prototype and a proof of concept, and as such only has a small set of cards for now: this sort of game notoriously requires extensive playtesting and very careful rules calibration to stay playable and balanced as you add options and variety to the deck. But it's a sturdy foundation on which to build a truly great game — perhaps drawing on more work by Wyeth, or even other public domain sources. And for that to happen, people need to play it! So grab a copy, admire the art (there are several more fantastic pieces beyond those featured in this post), and go to battle in the age of Charlemagne.You can download everything you need to play Charlemagne over on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!

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Russia's War On Encryption Stumbles Forth With Ban Of Tutanota

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The Russian government continues to escalate its war on encrypted services and VPNs. For years now, Putin's government has slowly but surely taken steps to effectively outlaw secure communications, framing the restrictions as essential for national security, with the real goal of making it harder than ever for Russian citizens to dodge the Putin government's ever-expanding surveillance ambitions.The latest case in point: starting last Friday, the Russian government banned access to encrypted email service Tutanota, without bothering to provide the company with much of any meaningful explanation:

In a blog post, the company notes that Tutanota has been blocked in Egypt since October of last year, and that impacted users should attempt to access the service via a VPN or the Tor browser:
"Encrypted communication is a thorn in the side to authoritarian governments like Russia as encryption makes it impossible for security services to eavesdrop on their citizens. The current blocking of Tutanota is an act against encryption and confidential communication in Russia....We condemn the blocking of Tutanota. It is a form of censorship of Russian citizens who are now deprived of yet another secure communication channel online. At Tutanota we fight for our users' right to privacy online, also, and particularly, in authoritarian countries such as Russia and Egypt.
Except VPNs have been under fire in Russia for years as well. Back in 2016 Russia introduced a new surveillance bill promising to deliver greater security to the country. Of course, as with so many similar efforts around the world the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers forced to now register with the government. As a result, some VPN providers, like Private Internet Access, wound up leaving the country after finding their entire function eroded and having some of their servers seized.Last year Russia upped the ante, demanding that VPN providers like NordVPN, ExpressVPN, IPVanish, and HideMyAss help block forbidden websites that have been added to Russia's censorship watchlist. And last January, ProtonMail (and ProtonVPN) got caught up in the ban as well after it refused to play the Russian government's registration games. While Russian leaders want the public to believe these efforts are necessary to ensure national security, they're little more than a giant neon sign advertising Russian leaders' immense fear of the Russian public being able to communicate securely.

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Well Then: Activision Issues DMCA Subpoena To Have Reddit Unmask Whoever Posted That CoD Image Leak

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Well, okay then. We had just been discussing Activision's silly attempt to DMCA to death a leaked image purporting to be the cover art or marketing material for a new Call of Duty game. The whole thing was idiotic in that once word got around that Activision was trying to bury the leak, it immediately caused everyone to think the image was for a real game, rather than some faked pretend leak, which is a thing that sometimes happens. From there, reporting and reproduction of the image in question went mildly viral. In other words, Activision Streisanded the leak it was attempting to bury. Pretty dumb.But it turns out that Activision isn't screwing around. There were some in our comments who posited that perhaps this was some marketing attempt to create virality of the image. That certainly doesn't appear to be the case, as Activision has issued a subpoena to have Reddit unmask the user who posted the image.

In a filing on February 14, 2020 at a California district court, attorneys acting for Activision requested a DMCA subpoena against Reddit.“Petitioner, Activision Publishing, Inc. through its undersigned counsel of record, hereby requests that the Clerk of this Court issue a subpoena to Reddit, Inc. to identify alleged infringers at issue, pursuant to the Digital Millennium Copyright Act (‘DMCA’), 17 U.S.C. § 512(h),” the request reads.“The DMCA Subpoena is directed to Reddit, Inc. Reddit is the service provider to which the subject of the subpoena – Reddit user ‘Assyrian241O’ – posted infringing Activision content.”
At first, it's hard to see how this makes any sense. Yes, it surely must be annoying to a content creator to have any plans for future content to be upended by a leak. On the other hand, first DMCAing that leak in a failed attempt to bury it, and then going to the lengths of unmasking a Reddit poster is surely the nuclear option when it comes to how to handle a leak of game art.Except, it seems, this might not be about the Reddit post itself so much as where the leak originally came from.
Contrary to the initial claim, that the user “found this image online”, he or she later confessed to it being sent to them by an “inside source”. That raises the question of who Activision is more interested in – the Reddit user or the person who sent them the image, possibly from inside Activision or a related company.
In other words, this is all looking like an attempt to unmask the leaker of the image, not the Reddit user. Still, these are extreme lengths to go to combat a leak that would have barely been noticed had Activision not gone into legal rage mode.Instead, the company could have chosen to try to use this all as a marketing opportunity, as comments on the previous post thought they had.

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The Next Risk In Buying An IOT Product Is Having It Bricked By A Patent Dispute

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In the world of the Internet of Broken Things, there is nothing more impressive to me than the fact that these things actually sell as well as they do. The risks associated with internet-connected devices seem insurmountable, save for the fact that we are all cattle being marched along to the slaughterhouse, our faces as serene as could be. Between companies simply deciding that supporting these products isn't worth it any longer and reducing functionality, firing off firmware updates that simply kill off selling-point features, or leaving security holes wide enough to drive a malicious creepster through, it seems that very little thought goes into the fact that customers are, you know, buying these things. Once that purchase is made, how long that purchase is functional and secure appears to be an afterthought.But the risks apparently don't end there. Let's say you bought an IoBT device. Let's say you enjoyed using it for months, or years. And then let's say that the company you bought it from suddenly got sued for patent infringement, settled with the plaintiff, and part of that settlement is, oops, your shit doesn't work any longer? Well, in that case, you're an owner of a Flywheel home exercise bike, which settled for patent infringement with nevermind-you-already-know-who.

Every morning at 4:30AM, Shani Maxwell would throw on her Flywheel T-shirt and hop on her Fly Anywhere bike. An avid fan who’s been riding with Flywheel since 2013, she’d leapt at the chance to own the company’s branded bike when the company released its Peloton competitor in 2017.So it came as a surprise when she received an email from Peloton, not Flywheel, informing her that her $1,999 bike would no longer function by the end of next month. Flywheel settled a patent dispute with Peloton earlier in February and decided after the lawsuit to discontinue the at-home bike product.“It shocked me,” Maxwell says. “We knew the lawsuit was in progress and we heard the settlement had been reached — we just didn’t realize they would shut down. ”
In fact, I'm sure Maxwell wasn't even aware that it was a possibility that the product she bought just wouldn't work anymore some day. Due to some intellectual property dispute to which she wasn't a party. To be clear, there wasn't any real choice given in any of this, either. The settlement included having Peleton reach out and offer to replace the Flywheel bike with a refurbished Peleton. If the customer didn't want the used Peleton bike, well, they could fuck right off with no recompense.It's important to keep in mind at this point that people paid for these bikes and the service they came with. Paid very real money for a product that, poof, disappeared one day. Most Flywheel customers apparently took the deal with Peleton. After all, the other option sucks out loud. Some of them were quite mad about it.But most? Well, serene-faced cattle marched towards the slaughterhouse.
For Podnos, the Flywheel experience was just another lesson in taking a chance with the Internet of Things. “It’s the risk you take when signing up for a platform that is still in development. It was a risk factor that we weighed from the onset, and were comfortable with,” he said. “I don’t think it will dissuade me from trying new IoT services, but it’s certainly a cautionary tale that consumers should be aware of.”
This is why we can't have nice things. Or things at all, it seems.

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Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

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Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn't: an injunction permanently preventing the state from enforcing this law against anyone.
With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.
In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn't going to play well with their constituents. But they'll have to be far more careful this time around, and actually allow these citizens who've served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.To be sure, there are horrible people on sex offender registries who've violated and harmed victims in horrific, incalculable ways. But there are also people on registries who've done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It's not just child rapists who end up on these lists. It's people who've made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives -- one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.The opinion [PDF] includes a list of SORNA's demands that fall outside of the Constitution -- prohibitions and requirements state legislators won't be allowed to use in their replacement law.
(a) Provisions Void for Vagueness:(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).[...](c) Provisions Void under the First Amendment:(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).
The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

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College Student Gets Thrown On The Ground And A Gun Pointed At His Head For Committing The Crime Of 'Taking A Selfie While Black'

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The latest crime to result in civil litigation is "taking a selfie while black." Doing so in Illinois gets your face pushed in the snow, a knee in your back, and a gun held to your head. (via Simple Justice)Jaylan Butler was traveling back from a swim meet in South Dakota with the EIU swim team. During a break at an East Moline rest stop, the bus driver suggested Butler take a selfie in front of the "BUCKLE UP, IT'S THE LAW" sign at the rest stop.This somehow prompted all law enforcement hell to break loose. From Butler's lawsuit [PDF]:

Mr. Butler took a photo of himself smiling in front of the sign, and then began walking back toward the bus.[...]After only a few steps, several law enforcement vehicles with flashing lights suddenly pulled up in front of him.[...]When Mr. Butler saw the law enforcement vehicles pull up, he was surprised and confused, but knew what to do. He instantly stopped, put his hands up, dropped the cell phone that was in his hand, and dropped to his knees.[...]Defendants exited the vehicles with their firearms pointed at Mr. Butler. At least one Defendant was carrying what appeared to be a rifle.Defendants shouted at Mr. Butler: “Get down!” and “Don’t fucking move! Stay right there!” Mr. Butler kept his hands up and complied with Defendants’ orders.Defendants forced Mr. Butler to lie face down on the snowy ground.On information and belief, Defendants Staes, Asquini, Pena, and additional Defendants held Mr. Butler down while Defendant Bush handcuffed his arms behind his back.At least one Defendant had his knee pressed into Mr. Butler’s back, and at least one Defendant was pressing down on Mr. Butler’s neck.Another Defendant was squatting down in front of Mr. Butler. He put his handgun against Mr. Butler’s forehead and said, “If you keep moving, I’m going to blow your fucking head off.”
This impromptu show of force somehow involved officers from three different law enforcement agencies. The whole thing played out in front of several witnesses and no officer bothered to explain why they suspected a student in an EIU jacket to be worthy of guns-out force deployment while standing a few feet away from an EIU bus manned by an EIU bus driver.In the absence of any explanations from the involved agencies, this appears to be intra-agency cooperation at its worst, where every officer has the same bias towards black males.Everything about this gets worse when you read Barb Ickes' article for the Rock Island Dispatch-Argus. (We'll assume she did not write the unfortunate headline that tries to exonerate everyone currently being sued.) Not a single officer or official can explain what happened or why it happened. There is not a coherent answer to be found in this report.The Rock Island Sheriff's Department's lawyer denies the two Does listed as defendants were involved in this incident. The attorney offered no comment about the two named Rock Island deputies. According to the attorney, the Rock Island officers were called in to assist Henry County Sheriff's deputies. This assertion was not backed by the Henry County Sheriff.
Henry County Sheriff Kerry Loncka looked up records from Feb. 24 and said no reports were filed by Henry County deputies.
I guess a guns-out stop that results only in Constitutional violations isn't worth noting. The sheriff speculated it might have had something to do with a report of a driver shooting at another vehicle but the suspect went into Rock Island county before crashing his car and the sheriff had no further details.The Rock Island Sheriff was also mostly unaware of what happened that night.
Rock Island County Sheriff Gerry Bustos said he knew little about the incident but said he was not, as the officers who arrested Butler are said to have claimed, responding to an active-shooter event that night.
The only thing even close to an "active shooter" on the books that night was a call about a 10-year-old playing with a toy gun down by the railroad tracks, which was resolved by a deputy speaking to the child's parents.The Henry County Sheriff also said his deputies asked for Rock Island's assistance after being asked by the Illinois State Police to assist in whatever it was that no involved agency can clearly state they were combining forces to handle. The State Police have refused to offer any comment on this incident. And it's now stonewalling requests for information about its involvement in the arrest/assault of Jaylan Butler.
In response to a Freedom of Information Act request seeking records that would explain what police were responding to when they mistakenly took Butler into custody, a FOIA officer responded that no information could be supplied without the name and date of birth of the person arrested.Despite objections that the FOIA request sought only incident reports related to the events of Feb. 24, the FOIA officer did not respond. A public information officer for the Illinois State Police said last week that she would try to help provide information "ASAP." Five days later, no information was provided.
Even if we assume the drive-by shooting that appears to be a post facto rationalization for the treatment of Butler is actually true, it still makes no sense. Why would officers assume a person wearing an EIU jacket standing near an EIU bus full of other students wearing EIU jackets is the shooter they were looking for? Why were they at the rest stop in the first place? This speculation does us no good, but the shittiest part of this is that we shouldn't need to be engaging in speculation in the first place. The involved agencies should have had an answer for what happened here, but between the three of them, not a single person could explain what happened here, much less why it happened.We're not going to get a real answer from these agencies, not even under oath. What it looks like is probably what is, as Scott Greenfield explains.
No matter how you twist this, when the deputy put the one black guy on the ground and uttered the words taught in every police academy everywhere, “If you move, I’ll blow your fucking (expletive added) head off,” there was no excuse, rational or not, credible or not, offered. They couldn’t even be bothered to make up a lie. Maybe, in response to Butler’s suit, they’ll get another chance to come up with something to at least pretend it wasn’t pure, unadulterated racism.
No officer is going to testify that they saw a black male and made their move, presuming they'd find something to justify the stop and use of force later. But, in the deafening absence of any explanation that fits the most minimal definition of the word "credible," it's not at all far-fetched to assume the officers think "black" is the same thing as "suspicious."

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posted at: 12:00am on 20-Feb-2020
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No, Disney Probably Didn't Infringe A Unicorn Van Artist's Copyright, But It Would Have Sued If The Roles Were Reversed

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If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as "The Mickey Mouse Protection Act." Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.

Two weeks ago, Daniher filed a lawsuit against the animation studio for copyright infringement, saying Pixar misled her after the company reportedly requested to rent her Vanicorn for a company outing. Now, a van she says is identical to her own will appear in the forthcoming animated film, “Onward.”According to court documents shared by the Hollywood Reporter, Jane Clausen, an employee of Pixar, inquired about the rental for a “one day music festival/activity day for Pixar employees and families” on Sept. 4, 2018.“Your van would just be a show piece and not used in any way other than a visual prop,” Clausen wrote to Daniher. “Are you able to send me some additional photos of the van? We’ve only seen the side, which just blew us away!”Daniher agreed to rent the Vanicorn for a “confidential sum of money.” But eight months later, she noticed something strange.
What was strange is that the van in Onward shares similarities to her own van. See, the reason Pixar staff wanted to use her van to begin with is that it is painted purple with an artistic representation of a unicorn on the side. The van in Onward shares many of these qualities.Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory.Now, to be clear, there may be a contract law issue here. And, even if not, Daniher's side of the story does make Pixar's actions sound really, really shitty.
Speaking on behalf of his client, attorney Conor Corcoran told SFGATE that the film’s producer, Kori Rae, called Daniher on June 3, 2019, to apologize for the misunderstanding. Rae apparently admitted Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title. For that reason, they believed they could not have Daniher sign a non-disclosure agreement, so they stuck with the rental paperwork. Via the legal complaint, Daniher says the contract she signed “explicitly prohibits” the use of any type of visual representation of the Vanicorn for any purpose other than the event itself. The following December, Corcoran registered the vehicle with the Copyright Office.“It’s unbelievable,” he told SFGATE over the phone on Wednesday afternoon. “She created that van to cathartically get out of a bad marriage, and Pixar took her van and created it into a vehicle for two boys to find their dead father. We’re gonna have our day in court.”
All well and good, but this still probably isn't copyright infringement. I imagine Disney will argue the same in court.But what if the parties and actions in this story were reversed? Imagine if Pixar had created its cartoon van first and then Daniher had painted her van? Now imagine that she did vehicle painting and wraps for a living, and sold her similar design? Is there even a modicum of doubt that Disney would be screaming "copyright infringement" in every single courthouse it could?Of course it would. It's what Disney does. Which will make it entertaining to watch Disney argue the opposite in court.

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posted at: 12:00am on 20-Feb-2020
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Game Developer Decides Best Way To Get Back At Pirates Is To Pirate Them Back

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There are lots of ways a video game developer can choose to react to finding its game being pirated on the internet. The game maker can elect to get understandably angry and go the legal route for retribution. The company can instead see piracy as not that big a deal and ignore it. Or they can try to add more value than pirated versions of their games. The developer can choose to connect with the pirates and try to turn them into paying customers.But I have to admit I didn't even consider the route that Warhorse Studios took when it discovered that a cracking group had put its title Kingdom Come: Deliverance up on torrent sites: pirate them back.

After releasing its action role-playing game Kingdom Come: Deliverance early 2018, the game was quickly cracked by infamous underground group Codex, who released the title online for consumption by the pirating masses. It’s unclear to what extent this event affected sales but within a week of its launch, it had sold a million copies, including more than 300,000 on Steam.With two million copies sold in the year that followed, Warhorse Studios clearly had a hit on its hands but this year the company showed that it also has a sense of humor. While publicizing a revamp of its headquarters in Prague, the company revealed that it had framed a copy of the information (NFO) file released by Codex with its pirate release, giving it pride of place near the company’s kitchen.

Fans of the studio thought this was hilarious. Some pointed out that the ASCII art, at the very least, could probably be argued to be the copyrighted content of the cracking group, or whoever created it. I'm not sure that's 100% true, but it seems that Warhorse Studios took the suggestion to heart. In addition to that poster in its kitchen, the game developer is also offering metal prints of the poster to the public, selling them for $45 a piece.

Offered at Displate.com, Displates are described as “one-of-a-kind” metal posters “designed to capture your unique passions.” Their creators note that they’re “sturdy, magnet mounted, and durable enough to withstand a lifetime of intense staring.”
While it's doubtful that the cracking group is going to even care about this at all, that isn't really the point. The point is that it's refreshing to see a game maker react to its game being pirated with humor and wit, rather than just throwing a bunch of lawyers at everyone. Sure, it helps that this developer also has a million copies of the game sold to blunt the sting of piracy, but that's also sort of the point. Whatever the right balance on how to react to game piracy is, it's probably as close to this example of a humorous response as it is anything else.

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posted at: 12:00am on 19-Feb-2020
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What A Shame: Legacy Newspapers Want To Take Away Free Speech On The Internet

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This one is just shameful. The News Media Alliance (the organization formerly known as the Newspaper Association of America) represents a bunch of old school newspapers. Like other legacy companies which failed to adapt to the internet, it's now advocating for the removal of Section 230 protections from internet services.

According to a written testimony provided to Axios, NMA will tell parties on Wednesday at the Justice Department's upcoming workshop on Section 230 that policymakers should limit the safe harbor exemption within the law that protects tech platforms from being sued for the content that other people post on its site.
What's most shameful about this is that newspapers have a long history of being the most prominent free speech supporters. And the whole point of Section 230 is that it helps enable more free speech online. Removing 230 will inevitably lead to greater censorship and difficulty in enabling the public to speak out.While you can see -- cynically -- why this might appeal to legacy newspapers that have lost their position as the gatekeepers for what public speech is allowed to reach the wider world, it really casts a huge shadow on the legacy of those newspapers as free speech supporters. This is little more than a cynical ploy by angry newspapers to try to hobble internet platforms that enable speech that have taken away some of the monopolistic gatekeeper control those newspapers had. It's a sad coda to decades of free speech support.

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posted at: 12:00am on 19-Feb-2020
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Game Jam Winner Spotlight: Hot Water

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This week, we announced the winners of Gaming Like It's 1924, our game jam celebrating the works that entered the public domain in the US this year. Just like last year, over the next few weeks we'll be spotlighting the winners from each of our six categories (in no particular order), and today we're kicking things off with a look at the game that won the Best Visuals award: Hot Water by reltru.We never expect much in the visuals department from people who submit digital games to the jam, since one month is hardly enough time to produce elaborate graphical assets for a video game, but canny designers like the creator of Hot Water can surprise us by finding ways to create something visually striking with a combination of pre-made sprites, powerful choices, and attention to detail. The game, which is based on the 1924 silent film of the same name starring Harold Lloyd, has a clear and simple goal in mind: capture the distinct aesthetic and feel of early silent comedies in a retro 8-bit style video game. It's a beautiful little idea in and of itself, and one that exemplifies the fun of remixing multiple sources from throughout history: each of these two distinct and instantly recognizable visual styles occupies a similar spot in the timeline of its own medium, but they are separated from each other by more than half a century — so what happens when you put them together?You get Hot Water, with its black-and-white 8-bit scenelets and its pixelated interstitial title cards (though a still image doesn't do the latter justice):

The gameplay (which is "soft boiled" by the designer's own admission) is your basic reaction-test obstacle course, tasking the player with dodging and jumping over benches and other obstructions to complete a mad dash to the end. It can be a little frustrating — while it's no Battletoads hoverbike or anything, the somewhat-sluggish controls and unclear boundaries on the obstacles are enough that I doubt anyone's getting to the end without a few false starts. But the manic music, and the silly and amusing little story unfolding via title cards, will make you keep trying until you reach the end of the game's one short level and receive one final little visual gag. And while the game clearly has no intentions of being anything more than the brief diversion it is, some fine-tuning and a few additional levels offering new story vignettes would quickly turn it into a full-fledged (if still simple) game. But either way, as a demonstration of what you can get by combining these two disparate vintage styles, it's a great success that makes me imagine an anachronistic arcade cabinet in a 1920s jazz club where dappers and flappers line up to play the new tie-in game for the latest Harold Lloyd movie.You can play Hot Water in your browser on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!

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posted at: 12:00am on 16-Feb-2020
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Study Tackles Seeking Trust Online

A new American study about trust and deception online has found that the majority of conservatives and liberals believe that "fake news" will impact the 2020 U.S. presidential election

Interesting, 22% of respondents considered news reporters to be slightly less trustworthy than "scammers."

A majority also believed content to be trustworthy if it was corroborated by multiple sources.

Predictably, there was a split across party lines. For example, the study found that 81.8% of liberals trust news publications whereas only 48.1 of conservatives do.

And what platform is most responsible for the spread of "fake news"? A small minority of liberals (52.3%) believed that social media was the main source of misinformation. And 46.9% of conservatives believed that news outlets and reporters were most responsible.

You can read about the methodology used in the study here.


posted at: 12:29am on 15-Feb-2020
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Trouble At The Law Firm Filing Patently Ridiculous Lawsuits On Behalf Of Tulsi Gabbard

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We've covered the two ridiculous lawsuits filed by Tulsi Gabbard in the past few months -- one against Google and another against Hillary Clinton. In both cases, the lawsuits were filed by lawyers at the law firm Pierce Bainbridge, and we questioned why they'd want to sully their own reputation by filing lawsuits that seemed clearly destined to fail, and which only seemed to serve a PR purpose in playing to her supporters.A few days later, NBC News posted quite an incredible story about how partners are bailing from the firm as a bunch other questionable activity has been alleged. Oh, and also, it appears that the same law firm representing Tulsi Gabbard is also representing... Rudy Giuliani as the DOJ looks into his role in various Ukrainian activities. Oh, and also Carter Page.

A law firm representing Rudy Giuliani in the Ukraine affair is locked in a bitter court battle with a former partner that has revealed allegations of financial misconduct, sexual assault and office masturbation.The firm, Pierce Bainbridge Beck Price & Hecht, has faced an exodus of lawyers as the litigation stretches on, including two who were defending Giuliani amid a criminal probe launched by New York federal prosecutors.
The article goes on to describe quite an incredible set of lawsuits and countersuits between the firm and a former partner -- with some pretty extreme claims being thrown in both directions, and with each side insisting the other side is making stuff up. Either way, what is clear is that eight partners have left recently. The founder of the firm, John Pierce, insists it's because they couldn't hack it, and came up with quite the ridiculous analogy comparing his firm to Navy SEALs.
Pierce downplayed the loss of eight partners and said the firm has added roughly the same number of lawyers. "As I have said from the day we launched, this firm is the legal industry equivalent of the Navy's SEAL Team 6 or the Army's 75th Ranger Regiment," said Pierce, who co-founded the firm in 2017. "I will accept nothing less. Not everyone is cut out for SEAL training or Ranger school."
That's one way to spin things.

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posted at: 12:00am on 15-Feb-2020
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Activision Tries To Bury Cover Art For New CoD Game Via Copyright Threat...So Let's All Look At It Together, Shall We?

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Of all the dumb ways that the DMCA process has been misused in the very recent past, one of the most frustratingly stupid certainly has to be certain interests using it to try to bottle up leaks. From Nintendo to Universal to Marvel, among others, each and every time some content, often times unfinished, gets leaked onto the internet, the lawyers fire off a bunch of DMCA notices to try to get the content taken down. And each and every time, the whole thing backfires completely and instead this leaked content gets Streisanded into the public consciousness.It's with that in mind that we can all take a look at some art for the next unannounced Call of Duty game, entitled Warzone.

What is that image for and where does it come from, you ask? Well, according to a Reddit post from a few days ago, which has since been deleted, it's the cover art for Activision's new CoD game. In that original Reddit thread, a whole bunch of folks seemed to think that the uploader had created fake game art, which occasionally happens. Instead, Activision, in an attempt to stifle this leak to control its own messaging, confirmed the authenticity of the leak by issuing a copyright threat, thereby propelling interest in the image itself.

One Redditor says they received a notice from “Activision/Call of Duty” that this was a “copyrighted image containing key artwork for an upcoming video game Call of Duty: Warzone.”This is all relatively solid indication that the Warzone name is real, and refers to battle royale. Ghost’s appearance in the image ties it closely to Modern Warfare, and the fact that a ‘classified’ option has joined that game’s main menu suggests it will be available inside Call of Duty proper.
And, so, instead of one Reddit thread that half the readers distrust, Activision has created for itself dozens of internet articles about the image, the forthcoming game, and its own actions in trying to copyright a leak to hell. Meanwhile, as you can see above, the image the company attempted to nuke from the internet is still very, very much available.Maybe someone needs to create Call of Duty: Modern Internet Warfare?

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posted at: 12:00am on 15-Feb-2020
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Federal Agencies Are Still Abusing Their Favorite, Super-Vague FOIA Exemption Thousands Of Times A Year

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The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public's hands, but far more should be turned over to the public than has been.Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.Exemption b(5) is, by far, the federal government's favorite. It's vague enough it can cover just about anything.

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency
Sprinkle a little intra-agency imagination over a pile of paperwork and responsive documents suddenly become unresponsive and are removed from life support as soon as feasibly possible. FOIA lawsuits are the metaphorical families in the waiting room, begging Dr. Info to reconsider pulling the plug.Exemption b(5) has been used to withhold everything from State Department's "what a load of crap" Post-It note (attached to a Congressional proposal to designate Pakistan as a sponsor of international terrorism) to the CIA's files on the 1961 Bay of Pigs invasion.The abuse of this exemption may have peaked in 2013, when federal agencies used it more than 81,000 times. But things haven't necessarily improved in the last seven years. In 2018, (b)5 was still cited more than 60,000 times. The (otherwise considerable) drop in deployment may be due to 2016 legislation, as the Project on Government Oversight explains:
One possible factor in the reduced use of Exemption 5 since its peak in 2013 may be reforms instituted by the FOIA Improvement Act of 2016. One reform barred the use of the exemption for records more than 25 years old…
That would remove the CIA's strategic blockade of its Bay of Pigs docs. But there's plenty of info far less dated that still receives the (b)5 "get out of transparency free" card. Multiple investigations of ICE detention centers highlighted the inconsistent application of the feds' go-to exemption. Documents handed to NPR [on the left in the image below] by ICE contained plenty of information. The docs handed to POGO, however, contained only redactions and the b(5) excuse.
Somehow the same information was both able to be released and able to be withheld under exemption b(5). As POGO points out, the b(5) boilerplate makes zero sense when applied to the text released to NPR. This exemption isn't supposed to deny the public access to common sense conclusions.
It’s difficult to understand how these statements—that inadequate mental health care leadership leads to poor care, and that solitary confinement is the “most important issue” at this particular detention center—can be properly withheld under Exemption 5. There is no attorney-client advice, and no deliberation on a pending policy decision.
If this is repairable, it will take an act of Congress, just like it did the last time. This exemption is like qualified immunity for cops: why not toss it up against the wall and see if it sticks? Since it usually takes litigation to reverse agency non-judgment calls, the house -- which spends other people's money to stick it to the people -- almost always wins.

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posted at: 12:00am on 14-Feb-2020
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Rockstar Joins Other Publishers In Misusing Copyright Law To Go After Cheat Developers For GTA5

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For some time now, we've noted a troubling trend in the video games industry. That trend would be publishers trying to twist copyright law into a pretzel that allows them sue makers of cheat software for copyright infringement. This novel application of copyright law has been piloted by Blizzard and Epic Games in the past. Both company's theory of the case for copyright infringement revolves around their games being licensed instead of sold, with the EULA being broken by utilizing cheat software. If the EULA is broken and the cheat-maker still makes use of the game, they do so without a license. Therefore, copyright infringement.This, of course, is not how copyright law is supposed to work. Instead, the point of the law is to prevent unauthorized copying of the product, which is absolutely not the practical result of what these cheat-makers are doing. And, yet, the trend continues, with Rockstar Games winning a summary judgement in the UK against two individuals who developed cheats for Grand Theft Auto 5.

At the Intellectual Property and Enterprise Court, Rockstar and its parent company Take-Two Interactive filed a complaint against several people connected to the now-defunct “Epsilon” cheat. Epsilon was a so-called ‘mod menu’ which offered players significant advantages. The game companies reportedly shut down the cheat in 2018 and identified five men connected to it. They were accused of copyright infringement by creating and distributing the software.
Three of the five settled with Rockstar out of court. The other two, however, defended themselves by both noting that they included a disclaimer of liability to those making use of their software and that the tools they used to make their cheats are widely and publicly available on the internet. The court didn't buy either argument and found for Rockstar in summary judgement. The court did likewise on breach of contract (the EULA) and inducement to breach that contract, except on the former for one defendent, who is a minor.
All in all, the court ruled in favor of Rockstar and Take-Two, granting summary judgment for copyright infringement against the two men. This means that the case won’t go to trial.Both defendants were also accused of (inducement of) breach of contract and breach of contract. The court sided with the game companies here as well, except for the breach of contract claim against one of the two, who was a minor at the time of the offense.
Left unexamined appears to be why any of this is actually copyright infringement to begin with. And, if the court truly thinks it is, why the entire modding ecosystem isn't suddenly one big cesspool of copyright infringement. The law doesn't care whether a game is online or not. Either mods are appropriate fodder for copyright law or they are not.One wonders if companies like Rockstar understand the potential harm they are doing to their industry by going down this road.

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posted at: 12:00am on 14-Feb-2020
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Court To Prosecutors Who Sent Crime Victims Fake Subpoenas Threatening Them With Arrest: Pretty Sure Immunity Doesn't Cover That

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A few years ago, The Lens exposed a super-shady tactic being used by Louisiana prosecutors. In an attempt to obtain a bit more compliance from witnesses in criminal cases, the Orleans Parish District Attorney's office started issuing fake subpoenas to witnesses that contained (an also-bogus) threat of imprisonment.Rather than do it the legal way -- using office letterhead with no threat of incarceration -- the DA's office opted for a hard sell tactic that deliberately mislead citizens. The office claimed this was fine and that no one paid attention to the big, bold print promising jail time for not cooperating.

Two weeks after The Lens exposed the practice, the lawsuits began flowing in. Some lawsuits sought copies of the fake subpoenas the office had issued. Others sued over the practice itself. Crime victims, who had been falsely threatened with being treated like criminals themselves, sued the DA. The problem with this is prosecutors are generally given absolute immunity which makes them nearly impervious to civil lawsuits.Fortunately, a Louisiana federal court allowed the lawsuit to proceed, finding (on very narrow grounds) absolute immunity couldn't be stretched to cover every bit of this nasty, deceitful scheme.
This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.
The DA's office is still hoping to shut the lawsuit down. It appealed the lower court's decision, but it's not finding any receptive judges at the higher level. Again, the DA is pitching absolute immunity -- a complete, judicially-approved whitewashing of all its sins. This pitch did not perform well at the oral arguments.
It was unclear when the three-judge panel of the 5th U.S. Circuit Court of Appeals would rule, but panel members sounded clearly skeptical as W. Raley Alford III, attorney for the prosecutors, made his case.“Threat of incarceration with no valid premise?” Judge Jennifer Elrod said at one point during arguments. She later drew laughter from some in the audience when she said, “This argument is fascinating.”“These are pretty serious assertions of authority they did not have,” said Judge Leslie Southwick, who heard arguments with Elrod and Judge Catharina Haynes.
Tough to retain immunity without a lawful premise. As for the DA, he's not willing to back down from his assertions the fake subpoenas were a net good for the community he inflicted them upon. DA Leon Cannizzaro was filled with compassion when he falsely threatened people with arrest for not complying with a fake subpoena.
Cannizzaro also has said the warrants are rarely used to arrest victims of domestic violence or sexual crimes.
What a guy. Material witness warrants were rarely used to further traumatize victims of trauma. For everyone else though, Cannizzaro was willing to jail crime victims until they talked.
The lead plaintiff said she was jailed after declining to pursue charges against a man who shattered her cellphone during a fight. Cannizzaro’s office responded to that part of the complaint by saying the woman was legally incarcerated after avoiding legitimate court-issued subpoenas.
Oh, okay. Given the office's routine deployment of fake subpoenas, it's a bit rich to accuse them of dodging the real ones. Also, someone refusing to press charges shouldn't be locked up until they decide to assist prosecutors in prosecuting a case the crime victim has no desire to see prosecuted.Hopefully, the appeals court will uphold the lower court's decision and prevent the prosecutors from dodging accountability completely.

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posted at: 12:00am on 13-Feb-2020
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Good News: Virginia Legislature Passes Anti-SLAPP Law

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We pointed out recently that Devin Nunes' ongoing campaign to file vexatious nuisance defamation lawsuits, usually in Virginia (despite being a Congressman from a California farm that is now in Iowa), had helped renew interest in having Virginia finally getting a real anti-SLAPP law. And, thanks in part to Nunes' suits getting so much attention, the Virginia state legislature has now passed an anti-SLAPP bill:

The Virginia legislature passed bills Tuesday that would make it harder to pursue frivolous lawsuits designed to chill free speech, a response to a string of splashy defamation cases filed in state courts by Rep. Devin Nunes (R-Calif.), actor Johnny Depp and others.Free speech advocates cheered the legislation in the House and Senate, saying the state's weak anti-defamation law has made Virginia a magnet for dubious litigation aimed at punishing critics and blunting aggressive media coverage on topics of public concern.
The details are still being worked out. The House and Senate passed different versions of an anti-SLAPP bill, so they need to be reconciled before a final bill can go to the governor. What ends up in the final bill will be important in seeing how good and effective an anti-SLAPP bill this will be, but it sounds like the basic pieces are all there:
Alison Friedman, of the Protect the Protest task force that is backing the bills, said she is guardedly optimistic about passage.Substantively, all the parts for a strong anti-SLAPP bill are there, but half are in the House bill and half are in the Senate bill so it's really going to come down to conference, Friedman said.
Of course, we still need a strong federal anti-SLAPP bill to tie all of these together and make sure that anti-SLAPP can be used across the country in federal court (some appeals courts have -- with questionable reasoning -- argued that state anti-SLAPP laws only apply in state courts).

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posted at: 12:00am on 13-Feb-2020
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Audit Indicates Intuit Made $1 Billion By Hiding Free File Program From The Public

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It's been quite a long and frustrating walk for us in covering the lengths to which Intuit went to hide the free to file tax program. This is the program that it is legally mandated to offer. If you're not caught up, the IRS struck a deal with the big tax prep companies out there, promising not to offer and expand its own free file programs, but only if companies like Intuit offer their own free file programs. Intuit did as instructed with its TurboTax product, except that the company then went about hiding the website for the free to file program from search engines and the internet, all while dropping the word "free" into as many places on the website for the paid services site it also runs. Then, because evil is an addictive drug, Intuit went ahead and lied to a bunch of customers to avoid refunding their money when it got caught in all this, informed its own employees that it bilked the public for their own good, and was even eventually found to have wrapped itself in the American flag while swindeling active duty soldiers as well.So, now you're caught up. But perhaps you're wondering why Intuit would risk all of the bad PR that comes with treating tax prep services like a game of three card monty. Well, the answer, according to a recent audit by the Treasury Inspector General, is because one-billion dollars.

More than 14 million taxpayers paid for tax prep software last year that they could have gotten for free, according to a scathing audit released Wednesday by the Treasury Inspector General for Tax Administration. That amounts to roughly a billion dollars in revenue for TurboTax maker Intuit, H&R Block and other tax software companies, according to a ProPublica analysis of tax prep fees.The audit, which was launched following ProPublica’s reporting last year, explores why so few taxpayers use the Free File program, a public-private partnership between the IRS and companies such as Intuit and H&R Block. Among the reasons, the audit found: the confusing design and complexity of the program and persistently lax oversight by the IRS.
I suppose if Intuit was asked precisely how much its soul was worth, we now have our answer. And, yet, this is still all very stupid in the end. Because now, thanks to ProPublica's reporting, the IRS has scrapped its moritorium on offering its own free to file program. So, by being so immensely greedy, Intuit turned what could have perhaps been a minor revenue generator instead into a combination of a PR shit sandwich and a competitor in the IRS. Well done?But, in case you thought Intuit would finally be in a place where it recognizes its misdeeds and is ready to turn this PR boat around, nooooooope.
In a statement, an Intuit spokesman said the company “consistently and publicly supported recommendations and efforts to strengthen the [Free File] program as part of our commitment to free tax preparation and our mission to empower individual taxpayers to manage their finances and receive every dollar they earned and deserve.” He added that “the majority of eligible tax filers using DIY software filed for absolutely free through the Free File Program or using commercial products.”Around 104 million taxpayers were eligible for Free File last year, according to the audit. Of those, just 2.4% actually used the free government program. Of the remaining 101.5 million, 67 million did not use tax software (most going to bricks-and-mortar tax prep services). The remaining 34.5 million used software to do their taxes, and of those, 14 million paid for tax prep they could have received for free.
So Intuit would rather play games in representing its numbers than simply admit to the truth. Not exactly the sort of thing you might want out of a tax prep service.

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posted at: 12:00am on 12-Feb-2020
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CBP Employees Obtain New Accountability Shield With 'Security Agency' Designation

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Our nation's border security agencies want to be national security agencies. ICE and CBP both made it clear they expected to be treated as Intelligence Community equals and given a seat at the grown-ups' surveillance table. They got their wish. Trump's "extreme vetting" wishes opened the door for the agencies' access to NSA collections late last year.The CBP's addition to the long list of Intelligence Community agencies gives it another layer of opacity. As Ken Klippenstein reports for The Nation, being added to the OPM's list of exemptions will make it even more difficult to obtain information via FOIA requests.

On Friday, the Trump administration quietly designated the entire Customs and Border Protection (CBP) agency, which polices US borders, as a “Security Agency,” according to an internal memo obtained by The Nation.
This puts CBP on the same playing field as secretive agencies like the FBI, DEA, and ATF. While ostensibly only concerned with border protection, the CBP's reach has been extended by its access to NSA collections and its personnel more insulated from accountability by this designation.
The memo states: “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”
Every CBP employee is now shielded from public scrutiny, no matter how much "security" work they're actually involved in. The memo obtained by The Nation came from a CBP contractor who blew the whistle on this bullshit designation. According to the unnamed source, they came forward to inform the public about an "absurd" designation that gives CBP employees a new layer of opacity they haven't earned.The memo says this new designation is a reaction to supposed "doxing" of CBP employees via a Twitter account that may have been run by an OPM employee. But it wasn't really "doxing." The information released was pulled from publicly-accessible OPM databases. If this is the case, this doesn't seem to justify unilaterally declaring CBP employees to be more equal than other federal employees not fortunate enough to work for one tasked with bringing President Trump's anti-immigration fantasies to life.CBP employees aren't special. And they're only "security" personnel in the loosest sense of the word. Just because they're involved in border security doesn't mean any exposure of their personal info would result in decreased employee safety or harm intelligence gathering. For that matter, the CBP isn't really in the intelligence gathering business and it's not known for operating extensive investigations utilizing undercover personnel who could suffer from being "outed" by publicly-available info. This is just opacity creep -- one that spreads from agency to agency like black mold. And it will make holding the agency accountable for its actions even more difficult when the public isn't able to pinpoint who's behind the latest string of abuses.

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As The World Frets Over Social Media Tracking For Advertising, Young People Are Turning Fooling Sites Into Sport

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As the techlash continues to rage against tech and social media companies, one of the more common criticisms has been how sites track users in order to feed them advertising. Now, I won't pretend to believe that these concerns are entirely unfounded. There is something creepy about all of this. That perception is also not helped by the opaque manner in which sites operate, nor the manner in which these sites often barely inform users of the tracking that is in place. Through it all, those that have the worst opinions of the internet and tech companies often couch their concerns in hand-wringing over how these sites handle younger users.Except that, as per usual, younger users are way ahead of the adults. Rather than waiting to rely on some half-brained "for the children!" legislation, at least some youth are instead making a sport out of beating social media sites at their own game. The CNET post focuses on one teenager, Samantha Mosley, and her use of Instagram.

But unlike many of Instagram's users, Mosley and her high school friends in Maryland had figured out a way to fool tracking by the Facebook-owned social network. On the first visit, her Explore tab showed images of Kobe Bryant. Then on a refresh, cooking guides, and after another refresh, animals.  Each time she refreshed the Explore tab, it was a completely different topic, none of which she was interested in. That's because Mosley wasn't the only person using this account -- it belonged to a group of her friends, at least five of whom could be on at any given time. Maybe they couldn't hide their data footprints, but they could at least leave hundreds behind to confuse trackers.These teenagers are relying on a sophisticated network of trusted Instagram users to post content from multiple different devices, from multiple different locations.
Here's how this works. One person creates an Instagram account, or maybe more than one. Then that person requests a password reset and sends that link to a trusted friend without closing their own session. Now that both people have active sessions, person two begins uploading photos, which triggers Instagram's tracking on this new device. Rinse and repeat and suddenly you've given Instagram, which assumes it is tracking one person, a ton of data from many people. The end result is the site has no real insight into the behavior of any one person. This can be further gamed by posting photos of people that are not those operating on the account. If these users are geographically disperse, that too adds confusing data for Instagram's tracking.
"They might be like, 'Hey, you posted from this hamburger place in Germany, maybe you like Germany, or hamburgers, or traveling, we'll just throw everything at you,'" Mosley said. "We fluctuate who's sending to what account. One week I might be sending to 17 accounts, and then the next week I only have four."Facebook said that this method was not against its policies, but didn't recommend it to people because of security concerns.
So, why are these young people doing this? Part of it is something of a sport. The other part is a desire by young people for privacy. Despite all the concerns of the older generations, young people are better than average when it comes to being aware of how tech companies and social media sites are using their data, tracking them for advertising purposes, and all the rest. I imagine that part of this is these young people thumbing their noses at these companies thinking they will blindly allow this intrusion on their desired privacy.Either way, even the adults who would instead like to go the regulation or legislative routes admit this is all fairly brilliant.
Teens shouldn't have to go to those lengths to socialize privately on Instagram, said Liz O'Sullivan, technology director at the Surveillance Technology Oversight Project. "I love that the younger generation is thinking along these lines, but it bothers me when we have to come up with these strategies to avoid being tracked," O'Sullivan said. "She shouldn't have to have these psyop [psychological operations] networks with multiple people working to hide her identity from Instagram. The platform should just have an account that works and lets people feel safe about being on social media."
All well and good, but you can wish for that in one hand and spit in the other, and see which one fills up faster. Meanwhile, the kids are handling this just fine.

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AOC Supports Full Repeal Of FOSTA

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Late last year, a bill was introduced to study the impact of FOSTA. This is important, as all of the evidence to date suggests that it has failed by every possible measure. There is no indication that it has helped to decrease sex trafficking -- in fact the indications are that it has enabled more sex trafficking. Indeed, law enforcement has directly admitted that the law has actually made it more difficult to track down traffickers. And, of course, there's tremendous evidence that it has had a real human cost in putting (non-trafficked) sex workers at significant risk.As more in Congress realize this, it's been good to see some calling for a careful study into the impact. And now Rep. Alexandria Ocasio-Cortez has been the first (as far as I can tell) to come right out and say the law should be totally repealed, specifically calling out the harm that it has done to sex workers. It's great to see politicians realizing that all the lame rhetoric that was pushed out in favor of the law was bullshit.Of course, because AOC is such a polarizing figure in these insanely partisan times, the usual crew of AOC haters have immediately started spewing absolute idiocy online claiming -- falsely -- that she supports sex trafficking. It was this kind of bogus rhetoric that helped get this damaging law passed in the first place. But, since Republicans love to try to mock everything AOC says, we get silly statements like this from Rep. Pete Olson saying that she wants to "re-open the floodgates of human trafficking" and pointing to "64 human traffickers busted" in Fort Bend (in his district). While it is true that local officials arrested 64 people in a sting operation, and told the press it was for trafficking, few details have been provided. In most similar announcements, later research often found that the operations had little to do with trafficking, and were just standard sex work. Either way, if FOSTA was supposed to stop such "trafficking," it seems like Olson is flat out admitting that it didn't work here.And, of course, Senator Josh Hawley -- who you may recall, has decided that he alone should make all UI decisions for the internet -- has ridiculously claimed that this is AOC "supporting big tech and sex trafficking" when it's literally neither of those things. The idea that partisan idiots are jumping on this just because of who is suggesting it is perhaps not surprising, but still disappointing.Even if you disagree with AOC on other things, it's a good thing that she recognizes what a failure FOSTA has been and how it's put lives in jeopardy. Repealing FOSTA is the right move and kudos to AOC for being the first Congressional Rep to come out and advocate for it.

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Gaming Like It's 1924: Check Out The Entries In Our Public Domain Game Jam

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At the beginning of the year, we launched our second public domain game jam to encourage designers to explore all the new works exiting copyright protection in the US and turn them into new analog and digital games — and as of this month, the submissions are in! Our panel of judges is hard at work play checking out all the great games, and while they try to determine a winner, you can check them out too.Though we didn't get as many submissions as last year (after all, this wasn't the historic year in which new works began entering the public domain for the first time in a long time) the quality and creativity of this year's lineup is off the charts. You can play them all at our itch.io page, including things like: a deck-building card game about Charlemagne based on the paintings of N. C. Wyeth, a text-based choose-your-own-adventure game based on The Most Dangerous Game, a game about remixing the art of Wassily Kandinsky, and rules for a free-form LARP based on Thomas Mann's The Magic Mountain, among many others.We'll bring you more updates as our judges get closer to choosing winners in in our six categories: best analog game, best digital game, best visuals, best adaptation of a 1924 work, best remixing of multiple public domain works, and the best "deep cut" game based on something more obscure that isn't included in the popular lists of notable newly-public-domain works. Until then, get playing, and share your own experiences and thoughts in the comments!

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

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Five Years AgoThis week in 2015, Michael Hayden was saying some worrying things about the 4th Amendment, while we learned about the FISA court's rubberstamping of questionable NSA legal theories and the DOJ was staying quiet about whether it took any action against NSA analysts who spied on "love interests". None of this seemed to be scaring Canada away from pushing for its own PATRIOT-like anti-terrorism legislation. We also learned about Germany's spies sucking up phone metadata and sharing it with the NSA, while a court in the UK was saying the GCHQ's similar behavior was illegal in the past but not anymore, and UK Lords were trying yet again to sneak through their Snooper's Charter less than a week after failing to do so.Ten Years AgoThis week in 2010, copyright settlement shakedowns were getting so bad that even the recording industry was criticizing them, while News.com had to help prevent a falsely-accused grandmother from being kicked off the internet by the MPAA. We wondered if the recording industry in the UK would be willing to pay for the cost of the the ISP monitoring they were demanding, while an Australian court thankfully ruled that ISPs are not liable for infringing users — leading the copyright industry to seek a government bailout. Of course, we also saw a very bad ruling in Australia, with the court agreeing that Men At Work's Down Under infringed on the folk song Kookaburra.Fifteen Years AgoThis week in 2005, the RIAA was really exposing its sloppy shakedown tactics by suing a non-computer-owner who also happened to be dead. French musicians were asking the industry to stop suing fans, while rumors that online music sales were oustripping CDs were greatly exaggerated. A scandal over supposedly missing disks of classified information from Los Alamos was dissipated when it became clear that the disks never existed in the first place, a text messaging scandal was continuing to cause massive overreaction in India, and one wrong button push almost caused the complete evacuation of the state of Connecticut. We also had a post this week about the birth of Amazon Prime which, interestingly, has amassed nearly 600 comments (trickling in all the way up to 2018) from people who were confused and angry about being automatically billed for the service.

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How Attorney General Barr's War On Encryption Will Harm Our Military

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We've highlighted in the past that there are large parts of the federal government that recognize that strong encryption is actually very, very important for national security, and that the framing by Attorney General William Barr, FBI Director Christopher Wray, and even President Trump -- that there need to be back doors to encryption for "security" reasons -- is utter nonsense. The intelligence community has long recognized the importance of strong encryption. Even many people within the FBI think their bosses' position on this issue is bonkers. Late last year, we were pleasantly surprised to see the Defense Department step up as well, with a letter to Congress talking about just how important encryption is for national security.Over at Cyberscoop, former National Security Council cybersecurity expert Ari Schwartz has a nice article explaining just how important encryption is to protecting the military. It won't tread any new ground for anyone who understands the basics here, but it's nice to see more and more people highlighting this.

Last month, a brigade of U.S. soldiers deployed to the Middle East received instructions from their superiors to use two commercial encrypted messaging applications, Signal and Wickr, on their government issued cell phones. These leadership cues trickled down from the Department of Defense's (DoD) position that strong encryption is critical to national security. While U.S. Attorney General William Barr continues to push for a broad mandate for backdoors for law enforcement, those on the front lines of protecting America have notably decided on a different approach. Simply put, weakening encryption means putting our military service members at risk.
The key point -- and one that many of us have made for years is that the framing by Wray/Barr (and, for what it's worth, James Comey before them) is that there's some sort of conflict here between "security" and "privacy." But that's always been bullshit. The issue has always been between having both security and privacy vs. giving law enforcement easier access to data and information they can almost always get elsewhere with a little more effort. In short, it's a debate between having security and privacy widely available against a bit of convenience for law enforcement. As such, this should be no debate at all.
Let's stop wasting time suggesting that we need universal solutions that may solve law enforcement's short-term needs, but then put consumers and our military at risk.
Somehow, I don't think the time wasting is going to go away any time soon, unfortunately.

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Xbox Chief Says Its Main Competitors Are Now Google, Amazon Rather Than Sony, Nintendo

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There are great rivalries in this world. The United States and Russia. The Yankees and the Red Sox. All of us and our mothers-in-law. And, in the gaming space for over a decade, there has been Microsoft and Sony. Since the Playstation 2 v. Xbox iteration of this, Sony and Microsoft have gone head to head in the console wars, with Nintendo also filling in some more niche-style gaming needs. The last battle in this war, the Playstation 4 v. the Xbox One, quite famously went in Sony's favor, with Microsoft having a disastrous pre-launch PR nightmare and sales numbers that ultimately saw Sony never once trailing its chief rival.And yet, as Sony has announced its forthcoming Playstation 5 console, the man in charge of Microsoft's Xbox product recently stated that Google and Amazon are its competitors now, not Sony and Nintendo.

Microsoft’s head of gaming and Xbox, Phil Spencer, has revealed that the company sees Amazon and Google as its main competition for the future. Speaking in an interview with newly launched technology publication Protocol, Spencer dismisses Sony and Nintendo’s ability to create a cloud infrastructure that will challenge Microsoft, Google, or Amazon.“When you talk about Nintendo and Sony, we have a ton of respect for them, but we see Amazon and Google as the main competitors going forward,” says Spencer. “That’s not to disrespect Nintendo and Sony, but the traditional gaming companies are somewhat out of position. I guess they could try to re-create Azure, but we’ve invested tens of billions of dollars in cloud over the years.”
This, of course, all revolves around game streaming services and gaming-as-a-service platforms. Spencer appears to indicate that such services are the way gaming will be done in the near future and Microsoft is somewhat uniquely positioned among the traditional console rivals to dive into that market, with the built out Microsoft Azure platform backing them. Sony and Nintendo aren't likely to be able to build out their own infrastructure to rival Azure, and would instead have to partner with another company. Except that Amazon and Google are the likely candidates for that and Google has its own Stadia product in place, despite its ongoing problems.But the real question is: Is Spencer right to bet on game streaming as the wave of the future? There are real roadblocks in its way. Google is not without resources and its Stadia product both hasn't lived up to expectations and has poisoned the well to at least some extent with the public. Those bad impressions may not last forever, but certainly it doesn't look like game streaming is going to be ready for prime time in this console cycle. Add to that the woeful state of broadband internet in America, not to mention how a lack of competition has allowed providers to put data caps in place, and you very quickly have to wonder if game streaming has an underlying American infrastructure problem that it can't possibly solve.You have to wonder too if Spencer is hedging his bets with all of this in preparation for losing yet another battle in the current console wars.
Cloud gaming still seems like it’s in the distant future, especially as Sony and Microsoft prepare to launch the traditional PlayStation 5 and Xbox Series X consoles later this year. Both next-generation consoles will go head-to-head throughout the important holiday season, and Nintendo is still seeing positive growth with its Switch sales, thanks to the new Switch Lite.
If past is prologue, you would expect Sony to rush into the next battle in a strong position compared with Microsoft. If that occurs, Spencer probably better be right if he's going to bet on game streaming.

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How Reading Books Instead Of News Made Me A Better Citizen

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As the 2020 presidential race kicks into high-gear, I find myself telling friends about an important lesson I learned last time primary season rolled around. During the run-up to the 2016 election, as now, vitriol filled the headlines. Rather than well-informed, reading the internet often left me feeling emotionally exhausted, powerless, and alone. So many stories were urgent but not important, and certainly not actionable.Frustrated, I decided to run an experiment. I read and engaged with dramatically less news, and spent that time reading books instead. I read ancient philosophy, fantastical adventures, historical biographies, scientific treatises, globetrotting thrillers, and mind-bending stories of magical realism. I followed my enthusiasm and read what I loved, challenging myself to think more deeply and broadly in the process.After a few months, my life and outlook had changed completely. Reading was no longer an exercise in rubbernecking and literature armed me to face the challenges of the present with fresh eyes, seek out other points of view, and put the political turmoil into perspective. Taking ownership of my media diet turned the stories I read into sources of strength, fuel to fire my own personal and public life. My wife and I volunteered to host a Ugandan refugee in our home for nine months. I helped design a game that illustrated emerging vulnerabilities in American democracy. I co-created an internet public art project that raised money for ProPublica.We are what we pay attention to. The stories we read don't just inform, entertain, or inspire, they shape our identities, become a part of us. These stories have consequences. The Allies were inspired to defeat the Nazis by stories of resisting oppression, protecting freedom, and ending humanitarian disaster. The Nazis were themselves inspired by stories of racial superiority, national dominance, and the return to a mythical past. Humans are capable of transcendence and unspeakable horror when we convince ourselves of the righteousness of our cause.So I expanded my experiment into a novel that quickly grew into a trilogy. Bandwidth explores what happens when someone hijacks our attention in order to transform us into the person they want us to be. Borderless examines the rise of tech platforms and the decline of nation-states. Breach extrapolates what might come next and how to build new institutions for the internet age. My hope is that the Analog Series inspires readers to reassess their own most deeply held beliefs with candor, kindness, and healthy skepticism.As candidates and special interest groups ruthlessly vie for your attention across the vast datascapes of the internet like gladiators in a digital Colosseum, remember that seizing control of your media diet is the first step toward acting with intention to realize your version of a better future.***Eliot Peper is the author of Breach, Borderless, Bandwidth, Cumulus, True Blue, Neon Fever Dream, and the Uncommon Series. His writing has appeared in the Verge, Tor.com, Harvard Business Review, VICE, OneZero, TechCrunch, and the Los Angeles Review of Books, and he has given talks at Google, Comic Con, Future in Review, and SXSW.

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posted at: 12:00am on 07-Feb-2020
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Talking About Protocols Not Platforms In SF

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Last year, via the Knight Institute at Columbia, I published my long article on Protocols, Not Platforms, explaining that there was a potential technological solution to many of the big concerns raised about big tech today, from privacy to competition to content moderation and more. The paper has been well received and even has helped influence Jack Dorsey and Twitter on rethinking what Twitter should be in the future.Our friends at the Lincoln Network have now set up a panel discussion in San Francisco on February 20th in which we'll be discussing this idea. Registration is free. The panel will consist of myself, Cory Doctorow of EFF/Boing Boing, Ashley Tyson of the Web3 Foundation, and Mai Sutton who has been working on a variety of distributed internet projects, including associate producing DWeb Camp and also been heavily involved in the People's Open Net, a community-owned mesh wireless network in Oakland.Given the panelists and the topic, I'm sure it will be fun, intriguing, and lively discussion. Sign up now.

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Disney's Licensing Dogs Charge Underserved School District A Third Of Fundraiser Money For Playing 'Lion King' DVD

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When it comes to posts about copyright issues, I cannot say for certain that Disney is the most frequent commonality in those posts, but it just... feels like it's probably true. After all, Disney has played such a heavy role in making copyright the over-extended, profit-driven, legal-cudgel bastardization of what copyright law was originally meant to be. Mickey Mouse himself is cited as the reason for copyright extensions in the past, and the company has been notorious in its zealous jealousy in protecting its copyrights.But allowing your licensing partners to charge a school district for a third of the funds from a school fundraiser just because a parent brought a Lion King DVD to keep the kids happy during the event? That's a bit much, even for Disney.

When an elementary school in Berkeley, California, hosted a "parent's night out" fundraiser, they didn't think playing the 2019 remake of "The Lion King" would do anything besides keep the kids happy. That was until Emerson Elementary School received an email from a licensing company Thursday -- more than two months after the event -- saying they had to pay $250 for illegally screening the movie."One of the dads bought the movie at Best Buy," PTA president David Rose told CNN. "He owned it. We literally had no idea we were breaking any rules."
It's something we talk about all the time. Because of the twisted pretzel that copyright laws have become, it is quite possible for well-meaning folks to infringe upon copyright without having any idea that they're doing so. That cannot possibly be what the framers of copyright law had in mind when they created it. Movie Licensing USA, Disney's partner for managing licensing agreements, extracted $250 from the school's $800 fundraiser for showing the movie to kids, and informed the school that they would have to pay the same amount for any future showings.The parents and district paid, but weren't happy about it. Because the universe is not without a sense of irony, part of the need for the fundraiser is, according to the district, the sweetheart real estate deal Disney got from California for the property it owns.
Berkeley City Council member Lori Droste, who is also a parent at Emerson Elementary, believes Disney is being unfair."There was an initiative passed in 1979 called Proposition 13 which casts the property tax on all land, and so Disney's property tax rates are at 1978 values which translates into millions upon millions of dollars a year that Disney is not paying," Droste told CNN."Because of that, our schools are now extremely underfunded," she added. "We went from the '70s being among the top education systems in the US to one of the lowest."
So, to summarize, Disney benefits from a government deal and avoids paying taxes, which fund school districts, and then sent the licensing police to the doors of a fundraiser for one of those school districts to take $250 out of the coffers. At this point, it's almost like they're trying to be one of their movie villains.

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Second California Court Tells State AG To Stop Screwing Around And Release Police Misconduct Records

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A California appeals court has just handed Attorney General Xavier Becerra a second defeat in his quest to keep police misconduct records out of the public's hands.Becerra first stepped up to defend bad cops from transparency and accountability shortly after a new law went live, giving Californians access to police misconduct and use of force records for the first time ever. Becerra claimed (without legal support) the law was not retroactive, an assertion contradicted by the crafter of the bill.No courts agreed with this contention, even when it was made by police unions and department public records reps. The law applies to all misconduct records, not just those created after the law's enactment. Some departments saw this coming and purged older records prior to enactment. Others complied quietly. A few sued to block enforcement of the law.Xavier Becerra made the dubious legal assertion the state's Department of Justice didn't need to turn over records because it wasn't the original source. He made this assertion despite the DOJ being the agency that routinely investigates misconduct and use of force complaints, which means the DOJ should have plenty of responsive records on hand.The First Amendment Coalition and public media outlet KQED sued after Becerra refused to turn over records. Becerra asked the appeals court to tell him he was right to refuse to comply with the law. The appeals court says that's not the way the law works. The state DOJ holds records on police misconduct and the public can directly approach the DOJ for these records, rather than filing requests with numerous different agencies. (via Courthouse News)The ruling confirms the lower court's determination: if the DOJ has these records, the DOJ needs to turn them over. From the decision [PDF]:

In this case, California Attorney General Xavier Becerra and the California Department of Justice (collectively, the Department) have filed a petition for a writ of mandate seeking to overturn the trial court’s order in favor of First Amendment Coalition and KQED, Inc. (KQED) over two aspects of the Department’s disclosure obligations under section 832.7. We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.
The court says the law's wording makes it clear any agency holding records is obligated to release them -- not just the agency where the records may have originated.
[T]he Department’s construction is at odds with the CPRA, which provides in no uncertain terms that, barring an applicable exemption, a member of the public has the right to inspect any nonexempt “public records,” defined as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.
Clear, unambiguous language in the law. Clear, unambiguous language from the court. And yet…
The Attorney General’s press office said in an email that the Justice Department is reviewing the decision.
Come on, man. Being willfully ignorant of the law is no excuse. Appealing this decision further just wastes time and the public's tax dollars. Turn over the records, you coward.

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Don't Panic, But Do Reflect: Lessons From The Iowa Democrat Debacle

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As I write this post, party officials in Iowa are still trying to figure out the results of last night's Democratic Caucus, while pundits and political opponents have wasted no time in tearing into the Democratic Party, technology, and the very idea of democracy itself. Although there is plenty of reason for criticism, much of what there has been overwrought. Professor Ed Felten's twitter thread here provides plenty of useful perspective on this:

Nevertheless, there are many lessons to draw from last night's Iowa caucus mess, but first and foremost is this one: don't panic.The biggest reason not to panic is that only the technology supporting the tabulation of the results broke. Whereas the systems for recording the results appear to be working just fine: there was paper, instruments for marking the paper, and (eventually) a way to transmit the recorded results to a place where they could all be added together. Sure, it will take a bit longer to add up all the results for the night, but that's ok. Because there's a paper trail we can still know what they are.That said, there are still some cautionary lessons we as Americans can learn from the experience, not just for primaries and caucuses but for every election for every office, no matter how partisan, run in America.First, of all the things elections need to be optimized for, speed is not one of them. And should not be one of them. The most important thing elections need is accuracy. While, sure, it would certainly be nice to have accurate results also quickly (and perhaps caucus officials thought the perceived convenience of the app would help towards that end), adding to the list of things it might be nice for election results to be tends to take away from what election results MUST be. And it is not worth the compromise. Which we can understand if we take a moment to think about the consequences if something does go wrong, as something almost always will. The reality is that if election results are delayed, we can still cope. As it is, in general elections results are often not certified until weeks or even months later. There is rarely a legitimate governance need requiring us to know electoral outcomes within hours of polls closing. We can wait a while, and it would probably behoove us to all expect to wait a while, because it's our hunger for instant gratification that is creating pressure to rely on tabulation systems that are not optimized for what we can't live without: accurate results we can all believe in. Ultimately nothing else matters, and we should be dubious about any voting solution that offers to deliver anything other than that.Next is a lesson that applies to more than just elections, which is that just adding tech does not magically make everything better. Often, and as this situation illustrates, it can instead make things worse. Which is not to say that there is no room for technological innovation at all. The world would not be a better place if it were artificially locked into a 20th, or even 19th, century technological environment. Certainly there is a role for technology to play, and for technology innovation. However, not all new technology is necessarily an improvement over what came before. Sometimes what we already had was perfectly fine, or at least good enough for what we needed. And even if a new innovation might someday be better, it won't necessarily be right away. In the case of the Iowa caucus, it appears they replaced the traditional tried-and-true telephonic support for reporting results with a brand new cell phone driven app, and it is not apparent why. True, sometimes older systems can have their own quirks and imperfections and things we might want to be better, and it's not a bad thing to want to improve them. But where systems have at least been proven and reliable, any innovation needs to at least be able to deliver that same degree of trustworthiness before it can be considered a replacement, much less an improvement. No technology is magic; no innovation will suddenly solve all of our problems. Even the technology that is now regarded as proven and reliable was once new and untested itself. It takes a lot of time and a lot of work to get a technology to a point where we can depend on it for our most important functions, like elections. Expecting any new technology to immediately be able to be an adequate substitute for what came before, let alone an improvement, is therefore a mistake.Next, paper matters. Again, the most important thing we need any electoral system to deliver is accuracy. Having a paper record helps deliver it. First, it affords redundancy. Even if our digital systems were perfect and bug-free, it would still be a good idea to have a back-up analog record. But especially while our digital technology is still evolving so rapidly and is still so decidedly NOT bug-free, it is critical to have a way to validate the results it gives us. Even when we think technology is working properly we still need to be able to audit it to make sure it is, and paper lets us do that. And then in those instances, like this one, when the technology has come up short, as it is still very much prone to do, paper means that we can still get what we need: accurate results of how people voted.There is also one more critical lesson for now, and it's one mentioned above: something will always go wrong, and so, by anticipating that something will go wrong, we can make it ok when it does. The more complex the system, the more likely something will go wrong. But on the other hand, a system complex enough to have problems is also complex enough to contain solutions.Elections are complex systems, so there are plenty of opportunities for hiccups. Which is not to say that we want hiccups; naturally we should try to minimize them. The issue though is that no matter how much you try to eliminate them, hiccups will still happen, so what we need to do is be ready. And that means at least two things: one, that we design our systems to have the resiliency needed to overcome those hiccups. For instance, in the case of Iowa, the results could not be transmitted to a central accounting system via the app, and that was a problem. But because there was a paper record they will be able to overcome the problem.And it means something else, which goes back to the first point made in this post: don't panic. Don't rush to throw away faith in our electoral systems when things go wrong, because it is almost a near certainty that something will go wrong. But just because something has gone wrong does not mean it's the end of the world. Yet if, instead of allowing our systems to self-correct, we instead jump immediately to panic, we create a new problem. The reason we need accurate election results is because we need to be able to believe in them. It won't matter how accurate they are though if we simply refuse to.When things go wrong, as they are wont to, we need to take a deep breath and give them a chance to right themselves, which is what will happen in Iowa since they have paper records. Furthermore, as the saying goes, never attribute to malfeasance what can be more readily explained by incompetence. What happened in Iowa was the result of a poor deployment of a technological solution. It was not a conspiracy. It was not the Russians. It was plain old human error to have so heavily depended on this untested mobile app system. And the good news is that we can deal with these sorts of bad decisions. Sure, there are plenty of things we can and should do to minimize these sorts of problems and improve our electoral systems, like better fund and train local election authorities, end reliance on unproven new technologies for supporting elections, ensure we always have paper records, reinforce the franchise, and so on. But there's no point in attacking our own democracy with distrust. Especially when it is so likely so misplaced.

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Dune's New Logo Started Disappearing From Twitter Due To Copyright Claims, But No One Is Quite Sure Why

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Late last week, Boing Boing reported that after the logo for Denis Villeneuve's upcoming Dune movie that people have been obsessing over for decades (well, the idea of a new Dune movie, not Villeneuve's version in particular), some people posted some photos of the launch event, showing a stage with an image and the logo behind whoever it is on stage. It looked something like this:

People seem very, very opinionated about the logo -- in both good and bad ways. At the very least, it generated a lot of discussion. However, people started to notice that many of the Twitter accounts that posted the image had had it pulled down due to a DMCA takedown. And suddenly a bunch of Twitter accounts were looking like this:
It even got so crazy that one guy tried to recreate the logo from scratch to try to avoid a DMCA:
That said, I can find a bunch of accounts showing the logo now (and a bunch more making parody/memes out of the background image and a similar font). However, what remains unclear is who is actually taking down the logo and under what basis. Many have assumed that it's Legendary Entertainment, which produced the film, and/or Warner Bros., which is handling distribution. Still others have argued that it could be the Australian photographer, Leah Kennedy, whose otherworldly aerial image of sand dunes in Namibia appears to be the basis for the background in the original screenshot shown.What's even less clear is under what basis there would be to take down such an image. Yes, it's possible that Warner/Legendary had a promotional plan that wasn't set to launch just yet, but that's not a legitimate reason to abuse copyright law to take down what are clearly fair use images of the logo in action. It's also unclear why anyone thinks some crazy whac-a-mole over a logo is ever actually going to work. Copyright is a tool that can, and frequently is, used to take down content, but that doesn't mean that it's supposed to allow such blatant censorship, or that such efforts will ever be particularly effective.

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Stadia Isn't Starting Off Well, Even Judging By Player Counts On Free Games

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Since the day of Google's launch of Stadia, its video game streaming platform that was supposed to be the end of home consoles, the platform arrived to reactions that ranged from "meh" to laughter at how terribly the launch was going. Between that reception and the public backlash from the platform not living up to its promises, a whole lot of folks have cast very narrow eyes at Google's platform as a whole.Some of the non-direct metrics when it comes to Stadia aren't any better. ArsTechnica took a look at the Stadia version of Thumper and its player adoption rate and it isn't good.

Thumper, along with Rise of the Tomb Raider, was a free Stadia Pro title for the month of January, meaning everyone who paid $129 for the service's "Founder's Edition" and "Premiere Edition" bundles has access to it (those bundles, which are the only current way to access Stadia, include three months of Stadia Pro service). As of this morning, though, only 5,515 people have registered a score on the leaderboards for the first stage of the Stadia version of the game, which separates such leaderboards by platform. That number was at 4,563 on January 15, when Ars conducted a spot check.
Now, there are a bucket full of caveats in all of this. That count only considers anyone who officially scored in the game, which requires completing the first level. That takes 15 minutes or so, but it's likely there are some percentage of players who have begun to play the game and have yet to complete the first level. There are also certainly some Stadia users who have signed up for the service and therefore received the free version of Thumper but haven't used Stadia at all. And, finally, Stadia is somewhat late to the game, meaning that some of its customer base may have already enjoyed Thumper on a different platform.Cool. Now that we've got all of those caveats aside, the numbers are still bad. The Ars post mentions that comparing playership between Stadia and other platforms isn't entirely fair due to Stadia being so new, before adding counter-caveats of its own.
Then again, it's important to remember that all those players on non-Stadia platforms had to actually pay up to $20 to buy the game before playing it. Thumper has only attracted a few thousand Stadia players despite being completely free for everyone currently using the service since the beginning of January.Caveats aside, the low player numbers for Thumper on Stadia aren't a good sign for a service that attracted widespread criticism in multiple launch-day reviews and is receiving growing impatience from many early adopters hoping for a larger game library. If a game that Google is literally giving away is only attracting a few thousand players on Stadia, we have to wonder how many sales publishers are seeing for full-cost streaming titles that can run up to $60.
In some ways, this is very Google. Find a cool idea for a service, throw a ton of development at it, and then roll it out before its ready for prime time. The company then relies on its massive reach to either improve the service to the point where it is more stable, or simply lets it die (remember Google Plus?).Bottom line, there is no indication at this time that Stadia is a complete product. And plenty of evidence suggesting the opposite.

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Court To Cop: We Don't Need On-Point Precedent To Deny You Immunity For Killing A Dog That Couldn't Hurt You

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Cops kill dogs. And they do it at a rate even the Justice Department is concerned about it. This comes from pro-cop site PoliceOne, so if there's any bias in this article, it's for cops rather than timcushinghatescops.com.

No one keeps records on how many privately owned dogs are shot and killed each year by American law enforcement officers so there are no hard figures. But a perusal of the Web and social media will tell you it's a lot.Laurel Matthews, a supervisory program specialist with the Department of Justice's Community Oriented Policing Services (DOJ COPS) office, says it's an awful lot. She calls fatal police vs. dogs encounters an "epidemic" and estimates that 25 to 30 pet dogs are killed each day by law enforcement officers.
If that estimate is even close to accurate, that's nearly 10,000 dogs killed by cops per year. While it's true a number of these dogs may be strays, there's no ignoring the fact that dogs make cops act like bunnies with handguns whenever they're anywhere nearby. If a dog acts like a dog around a cop (i.e., barking at someone it doesn't recognize, etc.), it has a good chance of ending up dead.Six of eleven circuits have declared the unjustified killing of a family dog is a violation of Fourth Amendment rights. People are protected against "unreasonable seizures" of their property, and the ultimate "seizing" is the summary execution of pets they own.But courts are inconsistent in the application of this principle, so cops continue to kill dogs at an alarming rate and are only stripped of their qualified immunity at an equally alarmingly low rate. In one case, a cop kept his immunity despite missing the non-threatening dog he was trying to kill and wounding a nearby child instead. In other cases, cops have killed dogs while entering houses without a warrant, raiding a house over an unpaid gas bill, and while responding to a burglar alarm accidentally tripped by a family member entering the house.Here's a little bit of good news -- both for dogs and the Fourth Amendment -- from the Fourth Circuit Court of Appeals. (h/t Gabriel Malor)A cop who killed a non-threatening dog has had his immunity stripped and will have to face a lawsuit over his unjustified actions. Here are the events that led up to the pet's killing, as recounted by the court [PDF].
On September 24, 2017, [Officer Michael] Roane drove to Ray’s property to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s property, four other officers were already present and parked in the driveway. Ray’s dog—a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees that allowed the animal limited movement within a “play area” of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dog’s “play area...”
Reading this complaint in the light most favorable to common sense, Officer Roane placed himself in danger and then tried to use his self-inflicted peril to justify shooting the family's dog. Pretty tough to do when you're surrounded by actually "reasonable" officers.
… prompting the other officers on scene to shout and gesture toward Roane, indicating that he should “[w]ait” and “[l]et [Ray] get her dog.”
Roane did not do this. He did not wait. He did not allow anyone to secure the dog. Instead, he "exited his vehicle and started walking towards the house."Things then happened that anyone -- including Officer Roane -- would have expected to happen. Roane advanced towards the house. The dog advanced to the end of its zip line. The dog was forced to de-escalate because it had run out of line and was being called back by its owner. Officer Roane had no such restraints and was unwilling to listen to the other officers' attempt to rein him in. But it does appear from the allegations made in the lawsuit Roane knew he was not in danger.
As Roane emerged from his vehicle, Jax began barking at and approaching Roane. Roane responded by backing away from the dog and drawing his firearm, while Ray ran to the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jax’s fully-extended lead and continuing to call Jax’s name. Roane therefore stopped backing up.
Roane's decision to end his retreat signalled he knew he was able to avoid any contact with the dog whose area he had entered and proceeded into over the protests of other law enforcement officers. That should have been the end of it.Instead, this was the end of it.
Roane took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head. The dog died from the wound.
Instead of being stripped of his "Human Race Participation Card," Officer Roane will only be stripped of his immunity for his apparent cold-blooded killing of an animal he recognized posed no threat to him as long as he remained outside of the zip-line's reach.Unimaginably, the lower court said this was all fine and reasonable.
On September 20, 2018, the district court dismissed Ray’s federal claim for unlawful seizure of Jax and declined to exercise supplemental jurisdiction over the remaining two state-law claims. In so doing, the district court concluded Roane’s actions had been reasonable under the totality of the circumstances and he would be entitled to qualified immunity.
Oh absolutely not, says the Fourth Circuit. Taking the allegations in favor of the complainant, there's plenty that's not settled here and it's certainly fucking not settled when it comes to Roane's actions once he moved out of harm's way. Stepping back in to kill a dog that could not reach him isn't reasonable by any stretch of the imagination.Officer Roane tried the old QI trick: state that no precedent exactly on point exists. In other words, no other cop killed a 150-lb German Shepard named "Jax" in this backyard, in this jurisdiction, at this time of day, etc. QI has become "Steamed Hams" and every apparently unjustified rights violation can't be a cop's fault because the rapidly-evolving situation is the Aurora Borealis localized entirely in this part of the country at this time of year etc.The court declines to swing at this bad pitch. QI isn't just about point-by-point precedent. It's also about the reasonableness of the officer's actions. And it doesn't see anything reasonable about Officer Roane's decision to shoot a leashed dog in the head after ensuring he could safely do so.
Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.
Roane's wish to have his novel dog-killing recognized as novel by the Appeals Court fails. "Reasonable" still means "reasonable," even if this officer found a new way to kill someone's pet:
Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.
The court says that even if the cop found a cool new way to kill dogs, it's not going to hand out immunity without a fuller examination of the facts.
We acknowledge that there is no “directly on-point, binding authority” in this circuit that establishes the principle we adopt today. Booker, 855 F.3d at 543. Until now, we have never had the occasion to hold that it is unreasonable for a police officer to shoot a privately owned animal when it does not pose an immediate threat to the officer or others.
Gun down a defenseless dog and, well, have fun defending yourself in court, "on-point" precedent notwithstanding.
In Altman, we held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depends on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203–05. Based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, is unreasonable.
No immunity for Officer Roane. The case goes back to the trial court that failed so badly the first time around. If an officer can avoid interacting with a dog they perceive as threatening and still accomplish their objectives (i.e., arrest a suspect), then they should do so. Anything else is objectively (and subjectively) unreasonable. Roane placed himself in harm's way, ignored other officers' advice to not place himself in the dogs' play area, and killed a dog only after it had reached the end of its lead and no longer posed a threat to him. Fuck this guy. He deserves whatever the plaintiff can extract from him.

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This Week In Techdirt History: January 26th - February 1st

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Five Years AgoThis week in 2015, the Charlie Hebdo attack had the UK reviving interest in its "Snooper's Charter", while we learned about how the feds went to Google to snoop on the emails of Wikileaks journalists — and gagged Google after the backlash to their similar warrants against Twitter. Justice Sotomayor was calling out the DOJ for devaluing the 4th Amendment, the EU's counterterrorism coordinator finally openly said they want to force internet companies to hand over crypto keys, and China's government was getting in on the crypto-wars too — all while a privacy board review of the NSA noted that the agency doesn't know or care how effective its surveillance programs are.Ten Years AgoThis week in 2010, there were still those in the music business who believed the impossible was possible, and wanted all piracy stopped, while we noted the irony of ACTA supporters speaking out against internet-oppressive regimes, the unintended consequences of three strikes programs were cropping up more and more (as we pointed out that three strikes won't save thee recording industry), and Jammie Thomas was rejecting a settlement offer from the RIAA. And another copyright case joined the insane-damages-parade when the plaintiff was awarded $51-million over a satellite cracking app. Lord Mandelson was trying to make the UK's kick-folks-off-the-net plan even worse by making them pay to appeal decisions. But at least some folks, like Brian Eno, could see where things were going in the music industry — though others were getting a little over-optimistic about how Apple's upcoming tablet would save publishing.Five Years AgoThis week in 2005, the government was getting involved in IBM's sale of its PC division over fears of Chinese industrial espionage. The EU was grappling over software patents while RIM was dealing with a patent lawsuit by being Canadian. There were more questions of liability regarding online posts, Microsoft decided to withhold Windows security updates from those with unauthorized copies, and the MPAA was being extremely magnanimous and doing everyone a gigantic favor by offering to give them software that would scan their machines for infringing files.

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Cambridge, Massachusetts Passes Ban On Facial Recognition Tech Use By Government Agencies

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Congratulations to Cambridge, Massachusetts for joining the banwagon! Cambridge joins three other communities in the state which have decided facial recognition tech is too risky, too invasive of privacy, and all-around bad news for their residents. Brookline, Somerville, and Northampton have also banned the tech, potentially leading the way for a statewide ban.

A bill before the State House would also establish a statewide moratorium on the use of facial recognition technology and other forms of biometric surveillance, including the analysis of a person’s gait or voice, until the legislature regulates the software.
These communities join their West Coast counterparts in making the tech unavailable to government agencies. San Francisco and Oakland both banned the tech recently. This was followed by a statewide ban that made these efforts (mostly) redundant. But not completely. The state ban only applies to cameras operated by law enforcement officers. The city bans block all city government agencies from deploying the tech.There really isn't any good reason for any city or state to, at the very minimum, not pass a moratorium on facial recognition use. The tech is unproven. Specs vary widely between vendors, but most of the major offerings aren't exactly burning up the charts in terms of false positives. That's still a huge problem. But it's only one of the problems.A large percentage of false positives also means the programs are prone to false negatives, which runs contrary to law enforcement assertions the tech will aid and abet in crime-solving. You need to be able to accurately identify people to do that and high miss rates don't exactly point to increased law enforcement efficiency.Beyond that, the tech tends to show bias, some of which can be attributed to the people building the programs. The quality of the training inputs also matters, but the race to grab market share means speed is prized over accuracy. At this point, facial recognition tech is mostly known for getting things wrong and giving white males yet another reason to be grateful they're white and male.Unfortunately, these efforts will probably be temporary. There's no way law enforcement agencies will go without this tech for long. And these agencies wield a great deal of power when it comes to crafting legislation, especially if they're represented by a union.As heartening as it is to see these efforts come to fruition, the widespread deployment of facial recognition tech feels almost inevitable. Maybe it isn't. But state efforts won't do much to halt the ever-expanding plans of the federal government, which is very much interested to subjecting as many Americans as possible to biometric collections, all in the name of national security. But a groundswell of state efforts could halt this advance or, at the very least, slow the surveillance rush back to a creep.

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Criminal Charges Finally Dropped Against Security Researchers Who Broke Into An Iowa Courthouse

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Security research isn't a criminal activity, no matter how many companies might wish otherwise when their bad security practices are exposed. But a couple of researchers working for Coalfire Security found themselves arrested and charged after performing a physical penetration test of an Iowa courthouse. Testing the physical security boundaries of the courthouse didn't go exactly as planned once the local sheriff showed up.The two employees, Justin Wynn and Gary De Mecurio, showed Dallas County Sheriff Chad Leonard their credentials and the contract supposedly permitting them to perform a B&E but it didn't matter to Sheriff Leonard.It did matter to Iowa Court officials, who said the test had been authorized... but perhaps not exactly on those terms. And it mattered to their employer, which wrote an angry letter demanding to know why Coalfire's employees were still locked up even after things had been (mostly) cleared up by courthouse officials.The sheriff refused to budge, claiming it was his sacred duty to protect taxpayer-funded courthouses from out-of-town interlopers (or words to that effect). Coalfire's CEO, Tom McAndrew, was less than enthused with the sheriff's self-assessment. He said Sheriff Leonard was actually hurting taxpayers more than helping them by locking up people trying to increase courthouse security and prevent unauthorized access to sensitive records and documents.Nearly three months later, prosecutors have finally backed down. Apparently, enough pressure can result in the prosecutorial discretion we hear so much about when prosecutors and politicians claim broadly-worded laws won't result in a bunch of collateral damage.Originally charged with third-degree felonies, the charges were reduced to misdemeanor trespassing after the story began gaining traction outside of Iowa. Those charges have now been dropped as well.

Dallas County Attorney Charles Sinnard and Coalfire officials released a joint statement Thursday in which they said they agreed to drop the charges when it became clear the Coalfire employees and the responding law enforcement had the community's safety in mind."Ultimately, the long-term interests of justice and protection of the public are not best served by continued prosecution of the trespass charges," they wrote in a statement provided by Sinnard. "Those interests are best served by all the parties working together to ensure that there is clear communication on the actions to be taken to secure the sensitive information maintained by the judicial branch, without endangering the life or property of the citizens of Iowa, law enforcement or the persons carrying out the testing."
This is great but it seems like something that could have been cleared up three months ago and without putting felony arrests on the researchers' permanent records. The testing could have been handled a bit better by everyone involved but it's pretty tough to stress-test physical security measures without utilizing methods targets won't necessarily expect to be used. Breaking into courthouses is certainly unexpected. But once judicial reps made it clear the court system had engaged the service to test security, the researchers should have been released by the sheriff and all charges dropped. Instead, this got dragged out for another three months, providing more evidence there's nothing all that secure about a career in security research.

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