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June 2021
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'Malicious' Actor Is Wiping The Data Of Countless Western Digital My Book Users

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Owners of the Western Digital popular My Book external hard drives aren't having a particularly good week. The company is advising customers to stop using the devices for now after customers mysteriously found their data deleted. According to complaints over at the company's website (first spotted by Bleeping Computer), many users say they woke up to find that the content of their external USB-connected storage drives had been completely wiped. Worse, they couldn't log in to the device's administrative systems to run any kind of diagnosis on the drives:

"I have a WD mybook live connected to my home LAN and worked fine for years. I have just found that somehow all the data on it is gone today, while the directories seems there but empty. Previously the 2T volume was almost full but now it shows full capacity.The even strange thing is when I try to log into the control UI for diagnosis I was-only able to get to this landing page with an input box for owner password. I have tried the default password admin and also what I could set for it with no luck. There seems to be no change to retrieve or reset password on this landing page either."
The problem appears to have begun at around 3PM on June 23, at which point these devices started receiving a remote command to perform a factory reset. This appears to still be happening on a staggered basis. The Western Digital announcement sent out to customers suggests that a malicious actor has found a way to compromise the devices, and is deleting data for their own amusement:
"Western Digital has determined that some My Book Live devices are being compromised by malicious software. In some cases, this compromise has led to a factory reset that appears to erase all data on the device. The My Book Live device received its final firmware update in 2015. We understand that our customers' data is very important. At this time, we recommend you disconnect your My Book Live from the Internet to protect your data on the device. We are actively investigating and we will provide updates to this thread when they are available."
There's been absolutely no indication given of when customers can expect a fix. Western Digital stopped supporting the My Book Live in 2015 for cost reasons, leaving millions of devices with dated firmware and vulnerabilities. According to user threads at the company's website, some Western Digital MyDrive users who say they disabled all cloud functionality to protect themselves, say their data was wiped anyway. Since much of this data is encrypted, recovering it may prove to be a long shot, meaning that many users who thought they were being smart by backing up their essential files, will have likely lost everything permanently.It's not that hard for an everyday consumer -- inundated with an endless sea of obligations -- to miss the handful of notifications (if they even existed) that their devices are now neither supported nor secure. Given the millions of shitily-secured network routers and IOT devices that are being connected annually, the scope of the problem (and our collective apathy to it) really can't be overstated. If you know somebody who uses this hardware for backups and storage, you might want to give them a nudge.

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posted at: 12:00am on 30-Jun-2021
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Ubisoft Teams Up With Mystery Rights Holder To Remove Fun Fan-Made 'GoldenEye 007' Maps From 'Far Cry'

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We have seen our monumentally absurd permission and copyright culture kill off all sorts of cool fan projects. Perhaps no industry is impacted by this more than the video game space, where you have the combination of rabid fans of particular games and franchises coupled with an above average level of technical skill in exhibiting that fandom. This combination sees an absolute ton of fan-made projects, including ports of games to different hardware, fan-made games, and even the re-creation of old games within new ones. It should be obvious that all of this carries very little monetary risk for the game makers, and, in fact, often times could be a boon, and yet it is all too common for publishers and developers to sic lawyers on their own fans rather than figuring out a way to coexist or benefit from them.But sometimes this nonsense gets down to an absurdly granular level. Such appears to the be the case with one YouTuber going by Krollywood, who spent hundreds of hours recreating the maps for the classic N64 game GoldenEye 007 in Far Cry 5, only to have those maps removed by Ubisoft in response to a copyright claim.

You could find and play these levels yourself by hopping into Far Cry 5’s arcade mode and punching in Krollywood’s username. As of this writing, you no longer can. Ubisoft removed them all from Far Cry 5, a move that Krollywood described as “really sad,” noting that he probably won’t be able to restore them since he’s “on their radar now.”“I’m really sad—not because of myself or the work I put in the last three years, [but] because of the players who wanna play it or bought Far Cry just to play my levels,” Krollywood told Kotaku in an email today.
Ubisoft hasn't responded as of this writing as to who made the copyright claim, but it appears the rights are held by MGM, the film studio that put out the movie of the same name. Notably, it's unclear just how valid a copyright claim would even be. Ubisoft owns the code used to make the game and used by fans to make new levels. Krollywood recreated the levels, rather than borrowing any digital assets from the original. Also, the maps were not for sale; they were free to download.But even if we granted that MGM or someone else could make a valid copyright claim on these maps... why the hell bother to do so? What precisely is the threat being staved off here?
Players just want a taste of nostalgia, and MGM has a track record of shattering the plates before they’re even delivered to the table. (Recall GoldenEye 25, the fan remake of GoldenEye 007 remade entirely in Unreal 4 that was lawyered into oblivion last year.) MGM has further neglected to do anything with the license it’s sitting on—for a game that’s older than the Game Boy Color, by the way. At the end of the day, shooting this latest fan-made project out of the sky comes across as a punitive move, at best.“In the beginning, I started this project just for me and my best friend, because we loved the original game so much,” Krollywood said. “But there are many GoldenEye fans out there … [The project] found many new fans and I’m so happy about it.”
Sadly, it appears happiness is not on the menu at present, to keep the analogy going. Instead, the only dish served is cold, hard copyright.

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posted at: 12:00am on 30-Jun-2021
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Creating State Action Via Antitrust Law And Making The People Who've Been Wrong About The Constitutionality Of Content Moderation Suddenly Right

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The challenge of a 24+ hour legislative session covering multiple bills is that it's hard to keep track of everything that happens. In my last post I wrote about a few impressions and examples that I happened to catch. This post is about another.Plenty of people on both sides of the aisle have been plenty wrong about content moderation on the Internet. Many Democrats get it very wrong, and so do many Republicans. In the case of people like Reps. Jim Jordan and Matt Gaetz, their particular flavor of wrongness has been to rant and rave about the private editorial decisions platforms have made to remove the speech they think they should have the right to make on these services, no matter what. They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rightsand they are completely and utterly wrong on that point. Platforms are private actors with their own First Amendment rights to choose what speech to associate with. Making those decisions, even in ways some people (including these Congressmen) don't like, is entirely legal and THEIR constitutional right to exercise. It in no way impinges on the First Amendment rights of any would-be user of their service to refuse their expression.But these Congressmen and some of their similarly-minded colleagues have noticed that if these antitrust bills should become law in anything close to their current form their speech will continue to be denied access to these services. And this time that denial may well represent an unconstitutional incursion on their speech rights. Because it's one thing if the platforms make their own independent editorial decisions on whether to facilitate or deny certain user speech, including these Congressmen's speech. But it's another when government pressure forces platforms' hand to make those decisions in any particular way. And that's what these bills threaten to do.One such way that they flagged is through the bills' demands for interoperability. Interoperability sounds like a nice idea in theory, but in practice there are significant issues with privacy, security, and even potentially content moderation, especially when it is demanded. Because one of the problems with an interoperability mandate is that it's hard to tell if, in being interoperable, one platform needs to adopt the same moderation policies of another platform they are trying to interoperate with. If the answer is yes, then suddenly platforms are no longer getting to make their own editorial decisions; now they are making editorial decisions the government is forcing them to make. Which means that when they impose them against certain user speech it now is at the behest of the state and therefore likely a violation of those users speech rights, which are rights that protect their speech against state action.But even if a platform opts not to conform its moderation policies, the constitutional problem would remain. Because if these bills were to become law in their current form, the decision not to conform moderation policies might still be seen to flout the law's requirement for interoperability. And, at least initially, it would be up to the FTC to decide whether it does and thus warrants taking an enforcement action against the platform. But that means that the FTC could easily be in the position of making content-based decisions in order to decide whether the platform's content moderation decision (in this case not to conform) looks like an antitrust violation or not. This situation deeply concerned these Congressmen, who also happen to be of the belief that the FTC is a captured agency prone to making content decisions that conflict with their own preferred viewpoints. While their concerns generally seem overwrought, bills like these start to give them an air of legitimacy. Because regardless of whether the FTC actually is captured by any particular point of view or not, if it is going to make ANY enforcement decision predicated on any expressive decisions, that's a huge Constitutional problem, irrespective of which point of view may suffer or benefit from such government action.So while it is very difficult to credit the particular outrage of these Congressmen, their alarm illustrates the fundamental problem with these bills and other similar legislative efforts (including some anti-Section 230 bills that these Congressmen favor): these targeted businesses are not ordinary companies selling ordinary products and services where market forces act in traditional market-driven ways. These are platforms and services handling SPEECH. And when companies are in the speech-handling business we can't treat them like non-speech businesses without impinging on those speech interests themselves in an unconstitutional "make no law" sort of way.But that is exactly what Congress is deliberately trying to do. It is the government's displeasure with how these companies have been intermediating speech that is at the root of these regulatory efforts. It's not a case of, "These companies are big, maybe that's bad, and oops! Our regulatory efforts have accidentally implicated a speech interest." The whole acknowledged point of these regulatory efforts is to target companies that are "different," and the way they are different is because they are companies in the online speech business. Congress is deliberately trying to make a law that will shape how companies do that business. And the fact that its efforts are running headlong into some of the most provocative political speech interests of the day is Exhibit A for why the whole endeavor is an unconstitutional one.

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posted at: 12:00am on 29-Jun-2021
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Ringo Starr Drops Trademark Challenge Against 'Ring O' Sex Toy

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First, an apology. I tend to cover much of our trademark beat here at Techdirt. And regular readers here will know that my sense of humor trends towards the juvenile and vulgar. It is with a solemn and heartfelt apology, therefore, that I must report to you all that I somehow missed that there was a trademark fight between famed drummer Ringo Starr and Pacific Coast Holdings IP, LLC, makers of a Ring O -- wait for it -- sex toy. I really should have caught this, but missed it.The background on this is that Starr's legal team opposed the "Ring O" trademark Pacific Coast Holdings applied for, claiming that the public would be confused into believing that Starr was now somehow in the sex toys business.

Documents filed by his lawyers in 2019 said: "Consumers will likely believe that Opposer's [Starr's] newest venture is sex toys - and this is an association that Opposer does not want."
It must certainly be true that Starr did not want this name on a sex toy. He may have even believed people would think he was somehow associated with sex toys as a result. But his legal team very much should have explained to him that a product name like this doesn't actually constitute trademark infringement, given that there was no other association made with the drummer and that they don't compete with one another in commerce.While that apparently wasn't done up front, this is all now once again in the news because Starr and Pacific Coast Holdings have entered into a co-existance agreement, part of which includes Starr dropping his opposition.
Now, according to the settlement, Pacific Holdings and Momentum Management have agreed to "avoid any activity likely to lead to confusion" between their product and the musician.The deal says the companies can only use the name for adult sex aids and desensitising sprays, and must have a space between the "Ring" and the "O".The companies have pledged not to "degrade, tarnish or deprecate or disparage" Starr's name or image. They also said they wouldn't make any reference or innuendo associating the product with Starr, or give the impression that he's associated with it.
In other words, the company will continue to use the name as it had been, but now stipulate that it won't in the future make any other reference to Ringo Starr. If that's a win, it is certainly a meager one.It sure would be nice, however, if the famous didn't walk through life with IP rabbit ears attempting to pick up any real or imagined reference to themselves, just waiting to pounce over intellectual property concerns that don't actually exist.

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posted at: 12:00am on 29-Jun-2021
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This Week In Techdirt History: June 20th - 26th

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Five Years AgoThis week in 2016, the Supreme Court was chipping away at the Fourth Amendment while the FBI was continuing to use its bad facial recognition database and getting away with problematic warrants and hacking — and congress was seeking to legalize more FBI abuses (in an attempt that narrowly failed). The DOJ was fighting against privacy advocates, and CIA director John Brennan was bizarrely claiming that only the US had encryption technology. We were also disappointed to see Twitch bring CFAA and trademark claims against bot operators.Ten Years AgoThis week in 2011, Righthaven was losing lawsuits left and right, and the CEO was not taking it well. Sony was fighting against PS3 modding and Microsoft was claiming it could use the DMCA to block competing Xbox accessories, while Universal launched a war on popular hip-hop sites and blogs, which even swept up 50 Cent's own website. A new court filing explained how ICE's domain seizures violate the First Amendment, while Senator Leahy was praising the agency's initiative. We also took a look back at the many things that people thought would kill the music industry in both the analog and digital eras.Fifteen Years AgoThis week in 2006, the NY Times was in the midst of one of its many paywall experiments while the LA Times was subjecting reporters to stifling web filters. Blockbuster was fighting against Netflix's patents while GoDaddy was sued over a patent on server auto-configuration. We wrote about how ISPs were screwing everyone, and how their cooperation with the NSA was boosting the encryption market. Meanwhile, social media sites were booming but struggling to figure out how to make money, and of course still facing a variety of vague freakouts.

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posted at: 12:00am on 27-Jun-2021
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Clearview Forbids Users From Scraping Its Database Of Images It Scraped From Thousands Of Websites

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Clearview continues to dominate the "Most Hated" category in the facial recognition tech games. And with Amazon tossing aside its "Rekognition" program for the time being (it's spelled with a K because the AI tried to spell "recognition" correctly and failed), Clearview has opened up what could be an insurmountable lead.Clearview has been sued, investigated, banned by law enforcement agencies, and suffered numerous self-inflicted wounds. Underneath Clearview's untried and untested AI lies an underbedding composed of the internet. The ~4 billion images in Clearview's database have been scraped from public posts and accounts hosted by thousands of websites and dozens of social media platforms.There's nothing inherently wrong with scraping sites to make use of information hosted there. In fact, this often controversial power can sometimes be used for good. The last thing we need is Clearview's questionable tech convincing legislators, prosecutors, and courts that scraping sites is something only criminals do.Clearview called out Google's apparent hypocrisy on the subject of site scraping when Google sent a cease-and-desist demanding it stop harvesting images and data from Google's online possessions. But Clearview is apparently unable to recognize its own hypocrisy. While it's cool with site scraping when it can benefit from it, it frowns upon others perpetrating this "harm" on its own databases.Eerily reminiscent of Disney's take on the public domain (good when Disney uses it, bad when Disney's copyrights are set to expire) is Clearview's take on site scraping. Its user agreement [PDF] with the Evansville, Indiana police department (obtained by MuckRock user J Ader) contains this paragraph:

The use of automated systems or software to extract the whole or any part of the Service or Website, the Information or data on or within the Service or the Website, including image search results or source code, for any purposes (including uses commonly known as “scraping”) is strictly prohibited.
Pretty sure a bunch of the sites scraped by Clearview have similar clauses in their terms of use. And if Clearview doesn't believe those terms should be honored, it shouldn't expect others to give it the respect it refuses to extend to others. I don't think anyone else should necessarily be in possession of everything in Clearview's facial recognition database but I do think someone needs to scrape the shit out of it on sheer principle.Also bundled in this package of public records is Clearview's laughable "accuracy" test. It compares itself to Rekognition and its highly publicized failure. When Amazon's tech was tested, it misidentified several DC legislators as criminals, especially those that weren't white and male.Clearview touts its own success in this document [PDF], which covers a non-independent test of its AI performed in 2019. Here are the results:
The test compared the headshots from all three legislative bodies against Clearview’s proprietary database of 2.8 billion images (112,000 times the size of the database used by the ACLU). The Panel determined that Clearview rated 100% accurate, producing instant and accurate matches for every one of the 834 federal and state legislators in the test cohort.
LOL. This is proof of nothing. Anyone with access to a reverse image search could perform this test with the same accuracy. While Amazon's AI was tested against arrestees' mugshots, Clearview's was tested against photos and info scraped from social media profiles and public websites. Of course it was able to positively identify politicians, most of whom maintain multiple social media accounts and websites. It would only be notable if the AI had failed to perform this simple task given the wealth of information it had to work with.In conclusion, Clearview sucks. Its tech is unproven and its policy on scraping is the apex of hypocrisy. On the other hand, the company seems to be harvesting criticism as fast as its harvesting web content, so the prognosis on its continued survival remains refreshingly bleak.

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posted at: 12:00am on 26-Jun-2021
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Nintendo Continues To Make It Hard To Play Classic Games Legitimately

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When it comes to being crazy restrictive on all things IP coupled with being amazingly combative with making lots of properties readily available for legitimate purchase, Nintendo barely needs an introduction. This is the company that has taken down ROM sites for classic games all over the internet, taken down fan-made games that use Nintendo properties, taken down all manner of fan-made ports of Nintendo properties onto other hardware, and has even taken down fan-made creations that involve putting Nintendo characters and the like into 3rd party creative games and software. Now, to be clear, Nintendo can do all of this. The open question has always been why it bothers to do so. What threat is a fan-game to legitimate Nintendo titles? Especially when Nintendo often times makes it quite difficult to legitimately get classic Nintendo games on its current hardware.Case in point, Nintendo recently announced a new Metroid side-scroller that has Metroid fans very, very excited. So excited that some of them want to go back and play the classic Metroid games before playing the new title, only to find out that on the Nintendo Switch you just can't.

During E3 2021, Nintendo announced Metroid Dread, the first 2D classic style Metroid game in nearly 20 years. As you might expect, lots of fans got excited. Many of them wanted to play the older Metroid games as they waited for Dread to release in October. However, if you go looking for old Metroid titles on the Switch, you’ll quickly discover that Nintendo has done a poor job of supporting the series and its catalog of beloved games. In fact, you’ll need to boot up a Wii U if you’re looking to enjoy games like Metroid Fusion or Metroid: Zero Mission.A quick search for Metroid on Nintendo’s eShop returns a selection of classic titles. But after toggling on a filter to only show Switch content, you’ll quickly see that none of those games are currently available on Nintendo’s super-popular console/handheld hybrid. In fact, the only two items that show up for Switch are a pre-order page for Dread and for some reason a random game called Wunderling.
It would be one thing if Nintendo wanted its stance to be that the public can only play legitimately purchased classic games on its hardware, thereby nixing things like ROMs, ports, etc. That would be, oh, let's just call it annoying but expected. But to remove the ability for fans to play those classic games out of excitement for the new title and to fail to make those classic games available on its most current and popular hardware? Well, that's just callous and ultimately unproductive.We have said for a long time that in many instances piracy, especially in the retro-gaming space, can actually be a boon to sales of new releases of franchises like Metroid. That's the case because of exact circumstances like this. Nintendo announces a 2D Metroid side-scroller, leading fans to want to revisit previous 2D side-scroller Metroid games. When they cannot do so on their Nintendo hardware, well, we've just injected a massive negative perception into what should be a totally positive fan experience.That is, of course, unless they turn to copyright infringement instead.
Meanwhile, fans and pirates have done the hard work and continue to be better than Nintendo at supporting old games. In the case of Metroid, this is incredibly useful for anyone looking to play the past games without relying on Nintendo’s official stores or consoles. You are, right now, a quick Google search and a few files away from having hundreds of NES and SNES games available to play on whatever device you are using to read these words. Many of these fan-created emulators rival anything Nintendo has officially created and often support more features, fan translations, and mods. These emulators and their communities have done incredible work preserving Nintendo’s history and have no doubt helped introduce folks to older games from the company.Yet Nintendo continues to fight emulators and ROM sites while offering no real legal equivalents. Imagine an alternate universe where fans excited for Metroid Dread could head over to a giant online Nintendo store on their PC or phone, where nearly every classic Nintendo game was waiting for them. Nintendo would make a ton of money and would, in the process, help support classic games for decades to come. But instead, it’s just lawsuits and disappointment.
It feels like we have a new Nintendo corporate tagline for the brand."Nintendo: it's just lawsuits and disappointment."

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posted at: 12:00am on 26-Jun-2021
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Content Moderation Case Study: Instagram Takes Down Instagram Account Of Book About Instagram (2020)

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Summary: Three professors, Tama Leaver, Tim Highfield and Crystal Abidin, wrote a book about culture on Instagram and how it developed. The book, entitled Instagram: Visual Social Media Cultures, was released in February of 2020. Along with the book, the authors set up social media accounts to both promote the book and to continue the discussion about how Instagram culture has developed. Not surprisingly, one of the social media accounts they set up was on Instagram itself.On Instagram, the account would post images about Instagram (including examples of its content moderation issues). The authors were surprised in mid-September when Instagram shut down their account without any clear reason.

The authors submitted an appeal saying that they believed the takedown was in error, noting the nature of their work, and explaining why they did not believe the account's reposting of others' work as part of their research should violate copyright (though, the disabled account notice did not specify that it was for copyright infringement):
Our account has been disabled in error. The 'polityinstabook' account was used specifically for research purposes, by three visual social media researchers: Associate Professor Tama Leaver (Curtin University), Dr Tim Highfield (University of Sheffield) and Dr Crystal Abidin (Curtin University). We have collectively all done considerable research on Instagram, evident in our co-authored book 'Instagram: Visual Social Media Cultures' published this year by Polity Press. This account was set up to document our continued research on Instagram. It seems likely that the account was mistakenly disabled as some reposted content may appear at a glance to violate copyright. However these images have been reposted under the allowances of FAIR USE, for the purposes of SCHOLARLY RESEARCH. This account is used to highlight platform and cultural changes and impacts of Instagram, documenting them for research purposes (as is stated in our bio).We respectfully request you review the disabling of our account and would appreciate the account being reactivated at your earliest convenience.
The authors also took to Twitter to generate some attention for the fact that their Instagram account was removed.Decisions to be made by Instagram:
  • How much information should be provided to the operators of disabled accounts about why their account was disabled?
  • How should the company review appeals on disabled accounts, when the users are not told why their account was disabled?
  • Should academic researchers be treated differently than other types of users?
Questions and policy implications to consider:
  • Providing information about why an account was taken down makes it easier for those wrongly taken down to appeal and explain their story, while at the same time potentially making it easier for malicious actors to game the system. How should a company balance those competing goals?
  • Instagram is likely more aggressive in taking down accounts that have Instagram in their name, to avoid users believing the account is coming from the company itself. Is there a way to balance those interests with allowing authors to promote their book about the platform?
Resolution: Soon after the appeal was sent in, the account was reinstated, and Instagram sent the authors an apology, saying that disabling the account was a mistake.
It looks like your account was disabled by mistake. Your account has been reactivated, and you should now be able to log in. We're sorry for any inconvenience.If you have any issues getting back into your account, please let us know.Thanks, The Instagram Team.
No further explanation was given to the authors.Originally published to the Trust & Safety Foundation website.

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posted at: 12:00am on 25-Jun-2021
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Streamer Raptors Continue To Test Twitch's Appropriate Content Guideline Fencing

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It's no secret that we've dinged streaming giant Twitch over and over again these past months. Frankly, it was done with good reason, as the Amazon-owned company continues to respond to crisis after crises, conflict after conflict, with pure confusion and callous behavior. While some of those conflicts were Twitch-specific, the company is also dealing with the more common problem of attempting to have a coherent content policy when it comes to what is appropriate to stream and what is not. For instance, Twitch recently found itself in the headlines yet again first by yanking advertising revenue from so-called "hot tub meta" streamers, where streamers live-stream in bathing suits from hot tubs or kiddie pools. Kaitlyn "Amouranth" Siragusa was one of the more prominent names impacted by this move, which again came with no warning. As a result of the public backlash over Twitch choosing not to communicate with its own creative community, the platform announced a "hot tub channel" category, as though that solved anything.But now this has moved on from just a situation where Twitch sucks at communication with streamers, its most important asset. With all of the above having occurred, it seems that the raptors are now going about testing their fencing when it comes to what content is appropriate and what is not. And, if you want to get a sense of just how weird these tests can get, you need only dive into the latest Twitch trend: ear lick meta streams. Perhaps not surprisingly, Amouranth is once again leading this charge.

Perpetual Twitch provocateur Amouranth, along with model indiefoxxlive, have been temporarily taken off the livestreaming service following some delightfully bizarre video clips going viral on social media. While Twitch never comments on bans, the timing coincides with the proliferation of a clip in which Amouranth wears a horse mask. Neighing, the controversial Twitch streamer sometimes takes the entire mic into her mouth to make slurping sounds.Similarly, if you click on Twitch’s “ASMR” tag at the moment, the most popular streamer is a woman whispering with the occasional wet sound thrown in. The community has taken to calling such shticks “ear lick streams,” as that is basically what these broadcasts sound like.
"Delightfully bizarre" appears to be exactly the right phrase for all of this. ASMR is not specifically meant to have any sexual connotation to it. That being said, it seems quite clear that what Amouranth and the like are doing is in part at least attempting to rope some measure of sexuality into behavior that would otherwise not necessarily have any sexual connotation to it. And, of course, adding a dash of the absolutely absurd just for shits and giggles.In other words, if you want to argue that there is clear sexual connotation to these specific videos (you can find them in the link above if you're curious), I won't argue with you all that much. But -- and this is a big caveat -- finding precisely where and how any of this violates Twitch's streaming guidelines on what's appropriate is very much an exercise in subjectivity.
The general idea predates Twitch, of course, but it’s certainly true that Amouranth is savvy enough to command attention wherever she goes. Whether or not viewers approve of her methods is beyond the point. Twitch’s Community Guidelines have multiple pages dedicated to sexually suggestive content on the site, but the general gist is that it’s not allowed on the platform.“Evaluations on the sexual suggestiveness of a behavior or activity are independent of user attire and are instead based on the overall surrounding framing and context,” the rules read. “This policy also applies to embedded media, augmented reality, creative broadcasts, and channel content—such as banners, profile images, emotes, and panels—that are focused on provocative images or video.”
But this leaves us still with two issues. The first is yet again how Twitch doles out these punishments and changes without any real communication with streamers or the public. It all just kind of happens and we get to play the game of attempting to interpret what it all means after the fact. The second issue is common among online platforms that do a shit job of having clear content guidelines: nobody actually knows where the lines are and these punishments tend to be doled out asymmetrically.For example, the above guidelines would appear to prohibit, oh I don't know, a liveplay of Dungeons and Dragons in which the players creatively act out to one degree or another sexual situations. And, yet, shows like Critical Role which stream on Twitch have had such content in one degree or another on the regular. Is that considered as graphic as a woman in a horse mask engulfing a microphone in her mouth?Maybe? This feels like less of an obvious answer and more of a discussion open to interpretation. But, since Twitch has the final say for what occurs on its platform, only its opinion actually matters. But that doesn't change the fact that Twitch's guidelines are vague and unhelpful, its communication method neutered, and its handing out of punishment arbitrary and capricious.Good times. Sluuuuuurp!

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posted at: 12:00am on 25-Jun-2021
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Spielberg's Production Company Inks Multi-Film Deal With Netflix, I Guess To Win A Bunch Of Emmys Instead Of Oscars

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Way back in the ancient history of 2019, famed director Steven Spielberg became something of the front man for the aging Hollywood crowd that sees streaming services as somehow deficient when he announced plans to push the Academy to disallow Oscar nominations for films that appeared first on streaming services, arguing they should instead be considered for Emmys. Spielberg's plans were for naught, however, as the Academy refused to ban stream-first films from nominations. This led to Spielberg, directly and through mouthpieces, walking back his very clear intentions so as to pretend that he felt differently than was the reality. I'll stress again that all of this occurred all of two years ago.Which is part of what makes it strange that Spielberg's production company, Amblin Partners, just inked a multi-film deal with Netflix.

In a press release on Netflix's website, the two companies announced that the partnership will result in "multiple new feature films per year." As is often the case, today's press release was accompanied by prewritten statements by various executives involved, including Spielberg himself. The quote attributed to him says:At Amblin, storytelling will forever be at the center of everything we do, and from the minute [Ted Sarandos, Netflix co-CEO and chief content officer] and I started discussing a partnership, it was abundantly clear that we had an amazing opportunity to tell new stories together and reach audiences in new ways. This new avenue for our films, alongside the stories we continue to tell with our longtime family at Universal and our other partners, will be incredibly fulfilling for me personally since we get to embark on it together with Ted, and I can’t wait to get started with him, [Scott Stuber, Netflix head of Global Film], and the entire Netflix team.
The obvious immediate question that comes to mind is to wonder aloud just how many Emmys Spielberg thinks he can win under this partnership. Snark aside, it's worth noting that Amblin doesn't solely produce films by Spielberg and that the production company has already produced some streaming hits on Netflix, most notably The Trial of the Chicago 7, as noted in the ArsTechnica post.Still, it's quite an about face for a world famous director, who, only 2 years ago, was plainly arguing that films that release on streaming services like Netflix are somehow a different animal than those that first enjoy a theatrical release. That whole argument was flawed for multiple reasons, including just how much movie content is now primarily enjoyed via streaming, coupled with the shoddy job theatres have done in actually fulfilling their value-add propositions, otherwise known as the only real reason why the public should want to go to the theatre instead of watching a film at home.If Spielberg can be dragged into modernity, that's a good thing. But we shan't forget his previous statements, if for no other reason than they should probably serve as a warning to any other "get off my lawn" crowd members who want to pretend like culture doesn't change.

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posted at: 12:00am on 24-Jun-2021
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Iowa's Top Court Says Cops Can't Search People's Garbage Without A Warrant

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Pretty much everywhere in the United States it's accepted that if the public has access, law enforcement has access. This is the legal theory behind things like automatic license plate readers (anyone can see a license plate), utility pole-mounted cameras (anyone can see someone's front yard), and (to our benefit) recordings of public officials (if they're performing their public duties).This theory (along with the theory of abandonment) tends to govern people's trash. Once it is outside the house and made accessible to sanitation services, it can be accessed by anyone, including law enforcement officers. Sifting through trash that has been "abandoned" is one of several ways officers compile the probable cause for search warrants.Trash can't tell you everything but it can give you some idea what's going on inside a house. Conclusions are drawn from what's been observed in trash cans and officers move in. Sometimes they're horribly, horribly wrong. Sometimes they draw the correct inferences and make a successful bust. In either case, warrantless access to people's trash has been considered lawful for years.Until now.The Iowa Supreme Court [PDF] says garbage being abandoned for pickup by sanitation workers still has an expectation of privacy. (via We Are Iowa)The state's top court breaks away from years of accepted jurisprudence to extend constitutional protections to residents' trash. But only the state's Constitution. The Fourth Amendment still doesn't cover trash pulls.In this case, officers performed a couple of warrantless trash pulls, finding evidence of alleged drug production or use (poppy seeds, empty poppy seed packets, fabric pieces that tested positive for morphine). Using this as a basis for a search warrant, officers searched the house and found something else.

The police executed the warrant at Wright’s residence on November 21. They discovered a baggie containing two grams of marijuana and several capsules of Vyvanse, a prescription drug for which Wright had no prescription.
So, not the drugs the officers thought they would find, but drugs nonetheless. Nicholas Wright challenged the warrantless search of his trash, claiming this violated his rights.
Wright made two arguments in support of his motion. First, he argued Heinz physically trespassed on his property. Second, he argued he had a reasonable expectation of privacy in the contents contained in his trash bags. Wright argued the search warrant ultimately issued was without probable cause if the evidence obtained from the warrantless seizures and searches of his trash bags were suppressed.
The district court disagreed with Wright's assertions. So did the state appeals court. The state's top court, however, sees things differently. It takes its time getting to the point, but does perform the invaluable service of running down both state and federal interpretations of the Fourth Amendment and the state's own Article I Section 8, its Fourth Amendment equivalent. The court reaches this conclusion:
Current Fourth Amendment jurisprudence is a mess.
Instead of saying things are too screwed up to weigh in on a case like this -- one already rejected by two other courts -- the Iowa Supreme Court decides to set some precedent. It says taking trash is both a search and a seizure under the state Constitution.
Heinz meaningfully interfered with and “seized” the garbage bags and papers and effects contained therein when he removed the garbage bags from Wright’s trash bins, took possession of them, and transported them to the police station for further inspection.[...]It is equally apparent Heinz engaged in a search when he opened the garbage bags and rummaged through them.
A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court's Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.
Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”
That what was searched was "only" trash doesn't matter. A search was performed without a warrant specifically to find evidence of criminal activity.
We have little trouble concluding the property at issue is protected within the meaning of article I, section 8. Opaque garbage bags are containers, and containers are an “effect” as originally understood. See United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982). The fact that the containers happen to be garbage bags rather than, say, expensive luggage, is not of constitutional consequence. There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.” . [...] In addition, Heinz opened the garbage bags and searched through the contents. The contents included other personal property, including two pieces of mail addressed to Wright. Letters are certainly papers. Further, “[l]etters . . . are in the general class of effects,” and “warrantless searches of such effects are presumptively unreasonable.” Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.
The court also says there was no "abandonment" of the trash, contrary to the state's arguments. State law says only licensed trash collectors can haul away trash. The leaving of trash outside the house is done with the assumption that only an "authorized collector" -- entities governed by their own set of state and city laws -- will move or otherwise access trash bags and their contents. Even when it's left outside to be collected, residents still maintain control of these possessions until an authorized collector takes possession. Cops aren't authorized collectors.
In moving his trash to the alley for collection, Wright agreed only to convey his property to a licensed collector. Wright would have the right to retrieve the property prior to collection and the right to exclude all others from rummaging through his garbage bins prior to collection.
The court also says there's a limited expectation of privacy in the contents of garbage bags. While this privacy evaporates once the bags are collected and processed by sanitation companies, it existed at the point the officer took the bags and searched the contents.This is the precedent set in Iowa by this decision:
We hold Officer Heinz conducted an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution when he acted without a search warrant and removed opaque trash bags from waste bins set out for collection behind a residence, took possession of the trash bags, transported them to a different location, opened the bags, and searched through the contents.
The case goes back to the lower court. The evidence will be suppressed but Wright's conviction still stands for now. It will be up to the state to prove its case without the evidence found in the trash bags, which then formed the basis for the search that resulted in Wright's arrest. That's not going to be easy.This essentially makes trash pulls illegal. At the very least, it forbids cops from opening bags to take a look at their contents. Residents using clear trash bags won't necessarily be covered by this decision, since anything observable by other citizens can also be seen by officers.This may result in law enforcement working more closely with sanitation companies to find some way to mark garbage officers would like to search and create a chain of custody that allows this evidence to be used to obtain search warrants or present in court. Once the bag hits the dump or processing center, it's open season.

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posted at: 12:00am on 24-Jun-2021
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Sweden Abruptly Decides Esports Are Not Sports When It Comes To COVID-19 Exemptions

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We've marked an awful lot of progress markers when it comes to the emergence of esports into the popular lexicon throughout the world. If there were a general theme to those posts, it certainly would be the progress esports has made in being considered a real, established sport, and not just a hobby that borrows that word with no validity. Progress, as I enjoy saying, is not linear, however.And now it appears that how at least one nation is dealing with the world's early emergence from COVID-19 protocols, is exposing one minor step back on all the progress. Sweden was set to host Valve's DOTA 2 big championship contest, The International, until very recently when the country's sports federation suddenly decided that esports aren't actual sports when it comes to COVID-19 travel exemptions. By way of background, this tournament was originally supposed to be held in Sweden in 2020, but it got pushed to 2021 due to the pandemic. As Valve planned for the event, it worked with the Swedish authorities to make sure everything was a go.

As Valve outline in a blog post, Sweden still has a number of stringent restrictions in place regarding public gatherings, which would otherwise threaten the ability to hold a big in-person tournament like The International, even though elite sporting events have been excluded from these.Valve claims that as planning continued local authorities “continued to reassure us in our regular and constant communications with them that The International - Dota 2 Championships qualified for the same exemptions other elite sporting events there received.”
The exemption language specifically states that travel exemptions would apply to, among other categories,:
-people travelling for the purpose of performing highly skilled work, if their contribution is necessary from an economic perspective and the work cannot be postponed or performed remotely, including people who will take part in or perform necessary tasks at elite sports competitions
That sure does sound like The International would fit the categorization. Due to that and to the communication with the Swedish government, Valve planned to host the tourney in Stockholm. Then, suddenly, The Swedish Sports Federation voted to not allow any esports organizations as members. As a result, the COVID-19 exemptions no longer would apply to anyone traveling to the country for the tournament. Soccer and other sporting matches that include large crowds and international players are all moving forward; esports tourneys like The International will not.
Not wanting to give up, Valve instead asked Sweden’s Minister of the Interior to “reclassify The International - Dota 2 Championships as an elite sporting event.” Which he immediately refused. They then appealed directly to the Swedish government, and were knocked back again.So now, as July approaches, Valve has decided to all but abandon their Swedish plans and start “looking for possible alternatives elsewhere in Europe to host the event this year, in case the Swedish government is unable to accommodate The International - Dota 2 Championships as planned.”
Now, we can argue all day long whether the world in general, or Sweden in particular, is in the right place when it comes to combatting COVID-19, whether large sporting events like this should even be held, or under what circumstances they should be held. But what doesn't seem to make sense in any capacity is to have the approval to host this agreed upon tournament live at the pleasure of a Swedish sports organization's opinion on whether or not esports is sports-y enough to warrant the same exemptions as other large sporting events.Two steps forward, one step back, when it comes to esports' place in the world alongside more traditional athletic events. And with just a dash of annoying bureaucracy to boot.

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posted at: 12:00am on 23-Jun-2021
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Please Welcome The Los Angeles Police Department (Brought To You In Part By A Generous Grant From Ring)

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Amazon's doorbell-camera acquisition, Ring, has captured a large segment of the home security market. Part of its growth is due to its long list of law enforcement partnerships. Coupled with the rollout of its companion app, Neighbors, Ring has been handing out cameras to cops… who then hand out these complimentary cameras to local homeowners.Strings are attached -- some explicit and some implicit. The implicit strings connect cops to citizens: the assumption recipients of discounted or free cameras will allow officers to access recordings without having to bother the courts with a warrant request.The explicit strings tie up cops, making them brand ambassadors for Ring and its ever-expanding network of cameras. If cops want cheap cameras and the access to recordings those might provide, they have to become Ring's unofficial spokespeople.Public records show Ring has required police departments to assign employees to act as press and social media liaisons in the new partnership with Ring. Ring controls PR efforts and public statements. It also dangles its wifi-connected carrot: more signups for Ring's Neighbors app means more free cameras for cops.This unhealthy relationship between Ring and law enforcement is detailed in a recent LA Times article by Johana Bhuiyan. Thousands of dollars of cameras were handed out to LAPD officers in exchange for their promotion and distribution of Ring's products.

Ring provided at least 100 LAPD officers with one or more free devices or discount codes and encouraged them to recommend the company’s web-connected doorbells and security cameras, emails reviewed by The Times reveal. In more than 15 cases, emails show that officers who received free gadgets or discounts promoted Ring products to fellow police officers or members of the public.
Officers asked for cameras, passing them on to other officers, friends and family members, as well as local homeowners. As more devices were activated, Ring sent emails congratulating the most proactive officers and promising even more free gear if this continued.This would be problematic even without potential violations of LAPD guidelines. This is Ring using a government agency as a distribution center and advertising agency. And this is a government agency willingly performing both of those tasks in exchange for even more Ring brand evangelism.But this back-and-forth, along with exchanges of activations for more free products, seemingly violates the LAPD's policies. However, it appears Ring and the officers were cognizant of the guidelines and worked together to ensure they weren't violated.
LAPD rules restrict the acceptance of gifts that could be seen as an attempt to influence the actions of officers. After a preliminary review of the emails, the department said officers did not appear to have violated agency rules.An agency spokesperson said that although accepting free devices and personally recommending those products to community members did not violate the LAPD code of ethics, a paid endorsement would run afoul of agency rules.
That isn't to say the actions of everyone involved were above-board and above reproach. Staying within the guidelines frequently meant straying right up to the edge of them. It also meant finding ways to influence officers to continue pushing Ring's products without crossing that line. It appears LAPD supervisors believe the only form of payment that's unacceptable is cash. Anything else -- no matter its effect on officers and their actions -- adheres to the letter of the law while mostly ignoring its spirit.Here are few examples of Ring/LAPD interactions the LAPD considers to be acceptable:
Officer Eric Mollinedo from the Olympic division emailed Ring’s director of operations, August Cziment, asking for promo codes as well as information about receiving a unit for his home. Mollinedo said he’d be manning a booth at an upcoming public safety fair. Cziment said Ring would get him “going with flyers, as well as a unit.” Ring also provided Mollinedo a coupon code and encouraged him to distribute it to his colleagues.[...]Sgt. Justin Scott exchanged a series of emails with Cziment about an offer for a free stick-up camera. Ring asked him to share the offer with his entire West L.A. station. [...] Later that month, Scott ran promotional language by the company before sending it to fellow officers, emailing Cziment a block of text about the stick-up camera offer for his approval. Cziment replied, “Looks great! Keep me updated on how it all goes.”
In Scott's case, the free camera offer resulted in responses from 60 officers. Some asked for discount codes for themselves and family members. Others asked if they were still eligible for a prior Ring giveaway. Another officer approached Ring directly, asking for the "donation" of a free camera to be raffled off at a station social function. Ring obliged.Ring has since abandoned its guideline-skirting "brand ambassador" program with the LAPD. These partnerships are still in place elsewhere in the nation. Ring has always been happy to tout its tight relationships with law enforcement agencies even though its cameras -- despite the company's hefty market share -- have done little to reduce crime rates. The company may have made some better decisions in recent weeks -- like requiring law enforcement requests for footage to be made publicly through its online portal -- but it's certainly not interested in slowing the spread of its product.Ring has relied on law enforcement to expand its market base for years. It's not going to completely abandon that plan just because some of its more unseemly aspects have been exposed.

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posted at: 12:00am on 23-Jun-2021
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Study Shows Blood Pattern Analysis Is Just More Guesswork Posing As Scientific Evidence

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Another form of evidence used in criminal cases is being called into question. The latest (via CJ Ciaramella) to receive the dubious honor of being designated "dubious" is blood spatter analysis. This brings it in line with a long list of other things long-considered (and, in too many cases, still considered) to be evidence worthy of introducing into a court of law, joining bite mark analysis, hair analysis, um… pair of blue jeans analysis... and even the old standby, DNA analysis.The problem with all of these sciences is that they're mostly subjective. Sure, they look pretty science-y. A lot of math and charts and lab coats and computers are scattered all over the place. Inscrutable printouts are carried by expert witnesses with years of experience under their belts. They show up in court and make claims about certainty of matches or probability of X contributing to Y, much of which can't be easily contested because, as mentioned earlier, the results are open to interpretation.Despite this, a lot of what's called forensic science still ends up being used as evidence in criminal cases, even though it's more accurate to refer to it as forensic guesswork. Blood spatter analysis is no exception. This study [PDF] for Forensic Science International says the lack of solid standards in the blood pattern analysis field have resulted in experts looking at the same blood patterns but all seeing something different.

We investigated conclusions made by 75 practicing bloodstain pattern analysts on 192 bloodstain patterns selected to be broadly representative of operational casework, resulting in 33,005 responses to prompts and 1760 short text responses. Our results show that conclusions were often erroneous and often contradicted other analysts. On samples with known causes, 11.2% of responses were erroneous. The results show limited reproducibility of conclusions: 7.8% of responses contradicted other analysts.
That's a problem. How big of a problem is unknown. Actually, a lot about this is unknown. Differing opinions on blood spatter evidence can turn a suicide into a homicide or turn a killing from an act of self-defense to a murder. There's actual freedom riding on these interpretations, so it's crucial they be correct. And yet no one in the field (or in the court system) seems too concerned about ensuring this evidence is correctly analyzed.
Although BPA has been admissible as expert testimony for more than 150 years, the accuracy and reproducibility of conclusions by BPA analysts have never been rigorously assessed in a large-scale study.
In 2009, the National Research Council condemned blood pattern analysis as "more subjective than scientific." Nothing changed. In 2016, it called for testing of error rates in criminal forensic science. Again, nothing changed. Small studies were performed but nothing on the scale of this one, which involved 75 practicing blood pattern analysts and 192 samples. The results are far from encouraging. In fact, they point to enough of a margin of error that this sort of analysis should be prohibited from being introduced as evidence until standards are developed and put into practice that eliminates the subjectivity on display here.But, given the 150 years of use and the minimum of interest in developing standards, this will also likely lead to nothing changing. What this research does do, at least, is give defendants something to use to challenge questionable evidence and questionable statements by prosecutors' expert witnesses.

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posted at: 12:00am on 22-Jun-2021
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Shake Shack Manager Sues NYPD Officers, Union Reps For Falsely Claiming His Business Sold Cops Poisoned Shakes

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Last June, as anti-police brutality protests were sweeping across the nation following the killing of George Floyd by Minneapolis police officer Derek Chauvin, some NYPD officers claimed it was the public that was actually violent and abusive.This supposed anti-police sentiment manifested itself -- at least in this case -- as "poisoned" milkshakes served to NYPD officers by a local Shake Shack.

The officers complained of "not feeling well" before being hospitalized and later released, the NYPD said in a statement to USA TODAY, and Shake Shack said via Twitter that it was "horrified" and working with police.
Now, were the roles reversed and officers accused of poisoning Shake Shack employees, law enforcement officials and their union reps would have been telling the public to wait until all the facts were in before passing judgment on the alleged poisoners.But when it's cops allegedly being poisoned, these officials couldn't wait to start passing judgment. The Detectives Endowment Association sent out this tweet (since deleted):
Tonight, three of our fellow officers were intentionally poisoned by one or more workers at the Shake Shack at 200 Broadway in Manhattan.
Pat Lynch, the head of the Patrolmen's Benevolent Association, sent out both a statement and this tweet (also since deleted):
#BREAKING When NYC police officers cannot even take meal without coming under attack, it is clear that environment in which we work has deteriorated to a critical level. We cannot afford to let our guard down for even a moment.
Less than six hours later, the facts were in.
New York City police determined there was nothing criminal afoot when three officers got Shake Shack milkshakes that might have been accidentally tainted with a cleanser.Police came to the determination after “a thorough investigation,” NYPD Chief of Detectives Rodney Harrison said in a tweet early Tuesday.The officers complained of feeling ill upon sipping the shakes and ended up going to a hospital. Harrison said they were fine.
I assume they're all feeling well enough to handle a lawsuit. Because that's what they're getting. The manager of the falsely-accused Shake Shack, Marcus Gillum, is suing [PDF] a whole bunch of officers and union figureheads for defamation. The list of defendants is quite the read, with a few names bearing titles of ignobility:
PATRICK LYNCH, THE POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., DETECTIVES’ ENDOWMENT ASSOCIATION, INC., “Jane Doe NYPD Officer who ordered a Strawberry Shake”, “John Doe NYPD Officer who ordered a vanilla shake”, “Richard Roe NYPD OFFICER” who ordered a Cherry Shake”, “NYPD Sergeant who stated When Did You Add The Bleach”, “NYPD Sergeant Who called in ESU”, NYPD Officers JOHN DOE 1-20 (Names and Number of whom are unknown at this time), and CITY OF NEW YORK
Ah, yes, NYPD Sergeant Who Stated When Did You Add The Bleach, First of his Name, Lord of Lower Manhattan, Guardian of the Blue Line. Look at him now. He's no more than a common defendant. And there will be no qualified immunity to protect him or the others sued. There's no good faith exception that permits slander.Of course, this still has to pass judicial scrutiny and motions to dismiss. And it could be argued the kneejerk responses issued by the police unions were based on the facts as they were understood at the time, even if said facts later turned out to be misunderstandings, if not actual falsehoods.But there's some interesting stuff in the lawsuit -- some details that should have given the cops who thought they were poisoned some reasons to believe this had nothing to do with Shake Shack or its employees deliberately seeking to harm them.
Since the orders were placed using a mobile application, and not in person, Mr. GILLIAM and the other Shake Shack employees could not have known that police officers had placed the order.Since the order was already packaged and waiting for pickup when Officers Strawberry Shake, Vanilla Shake and Cherry Shake arrived at the Shake Shack, Mr. GILLIAM and the other Shake Shack employees could not have “dosed” the milkshakes after they arrived.
But that was the accusation soon after the cops took possession of their order. These were serious allegations but the cops only treated it half-seriously. You'd think well-trained officers with all their expertise would know to preserve the crime scene. But, no. The alleged criminal evidence -- the "poisoned" shakes -- were tossed into an outside garbage can.Following their disposal of the evidence, the cops decided to turn the Shake Shack into a crime scene (albeit one missing some very crucial evidence), seemingly for the sole purpose of keeping customers out and making the site appear dangerous.
The Sergeant then called in the Emergency Service Unit to set up a crime scene at Shake Shack.
LOL. This paragraph:
At approximately 9:20 p.m.—nearly two hours after Officers Strawberry Shake, Vanilla Shake and Cherry Shake first got the “sour” shakes— NYPD’s Emergency Service Unit arrived and set up a crime scene at the Shake Shack.
Which leads directly to this equally-hilarious image:
The discarded evidence was tested and cleared by the ESU. But by that point, the social media damage had already been done.No qualified immunity defense for defamation. But qualified immunity will still be raised because there are also some Constitutional claims in the lawsuit. The manager of the Shake Shack was arrested by NYPD officers and questioned for more than an hour at the precinct station. He was finally released nearly three hours after officers detained him. There's your Fourth and Fourteenth Amendment violations. And false arrest is also a state law claim, which might cause problems for these officers even if they're given immunity for the Constitutional violations. There's a First Amendment claim thrown in for good measure but it's not really fleshed out in the lawsuit.Whether or not this Shake Shack manager wins, this should hopefully remind cops it's foolish to draw conclusions before all the facts are in. And while nearly anyone with an internet connection can drag a business and its operators through the mud based on bad information, only a special few -- New York's finest -- can effect an arrest on top of it.

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posted at: 12:00am on 22-Jun-2021
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This Week In Techdirt History: June 13th - 19th

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Five Years AgoThis week in 2016, we were learning more about the scope of Peter Thiel's attack on Gawker (and the further exploits of his laywer...) while Gawker was exploring a questionable legal counterattack. The issues with corporate sovereignty in trade agreements were getting more mainstream attention while the paperback version of Hillary Clinton's memoir removed text about her support fro the TPP. Europe was getting ready to create a link tax just as its top court was confirming that copyright levies don't work. An appeals court handed a big loss to record labels in their attack on Vimeo over lipdub videos, while Twitter, Facebook and Google were hit with claims of material support for terrorism following the Paris attacks.Ten Years AgoThis week in 2011, while some websites were playing pranks by pretending their domains had been seized by ICE, several of the sites that were actually targeted were challenging the seizures — and notable target Rojadirecta sued the US government, Homeland Security, and ICE. But ICE was still stalling on FOIA requests seeking more information about the seizures. And at the same time, China was getting in on the website seizure game while using copyright infringement as an excuse. Meanwhile, a judge was threatening sanctions while tossing out a Righthaven lawsuit, and the Denver Post was sued over its considering taken action, leading Righthaven to threaten them with more suits.Fifteen Years AgoThis week in 2006, we were bracing for the onslaught of political spam, and also for the inevitable freakout about mobile social media, while rolling our eyes at the latest panic about violent video games. We took a look at how the recording industry had Canadian politicians in its pocket, while the RIAA seemed to be reaching the denial stage of its war on piracy (and opening up a new front by sending out cease-and-desist letters to people dancing to music on YouTube). And while we were glad to see Congress starting to recognize the problem of patent trolls, we were not so optimistic about Rep. Lamar Smith's approach to combating them.

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posted at: 12:00am on 20-Jun-2021
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Chinese Government Continues To Arrest More Journalists Over Nonsense 'National Security' Law

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The decline of democracy in Hong Kong, with Beijing continuing to tighten its grip, has accelerated. While the Chinese government pledged a hands off posture towards Hong Kong for 50 years when the UK relinquished its control, that pledge seems to have been worth less than the paper on which it was written. A couple years ago, Hong Kong implemented a new "national security" law that has almost nothing to do with national security beyond allowing for the prosecution of anyone who doesn't think the CCP are perfect in every way. The end result of that has been the arrest of media members accused of participating in "unauthorized protests", arrests of protesters themselves, and the ousting and later arrest of pro-democracy lawmakers for the crime of being pro-democracy.One of the media members arrested early on was Jimmy Lai, founder of the Apple Daily newspaper and website. Lai had initially gotten out on bail, only to have that bail revoked by the court on reinterpretation of the national security law. If the Chinese government thought that his arrest and treatment would end the voracious threat of an actual journalistic outfit in the Apple Daily, it was sorely mistaken. As you might expect, this of course has led to even further arrests of Apple Daily staff and partners.

Hong Kong police have arrested five editorial executives, including the editor in chief, of media outlet Apple Daily, freezing more corporate accounts and imperiling the future of the region's most feisty, investigative paper. Ryan Law, the chief editor, the CEO of the newspaper's publisher Cheung Kim-hung, the publisher's chief operating officer Chan Puiman, and two other editors were among those arrested. The Apple Daily live stream showed Law being led out of the paper's offices in handcuffs early Thursday morning."They're our top three editorial people, they've just stripped out our top three editorial people," said Mark Simon, a Taiwan-based executive with the paper's publisher Next Media.
These types of arrests in Hong Kong are so frequent now that they risk becoming routine in the eyes of the world. Thanks to the unfortunate rise of populist authoritarianism in many Western democracies, many world nations have self-neutered their ability to credibly respond. The end result is that Hong Kong has been largely left to the communist wolves, with much lip-service being paid by the rest of the world.In the case of these specific arrests, the Hong Kong stasi did its stasi-thing because the Apple Daily had the gaul to suggest that other countries should actually get off their asses and do more to help the Hong Kong people.
Li Guihua, a senior officer with Hong Kong's special legal body set up to prosecute national security cases, said that the editors were arrested because of "dozens of articles in Apple Daily that called on foreign agencies to impose sanctions on China or the Hong Kong government."Around 200 police officers were sent to Apple Daily's offices to search the premises and confiscate "journalistic materials," according to a national security police statement."There is huge frustration that Apple Daily won't stop," said Simon.
No doubt, but none of this means the rest of the world has to stand by and do nothing. Unfortunately, standing by and doing nothing appears to be the plan, as the Chinese government continues the slow reverse-drip of any independence in Hong Kong, sucking out the established freedoms of the population a handful of arrests at a time. The government's plan appears to still be to scare the absolute shit out of everyone until they self-censor. The below is again from Li Guihua:
“I also want to give a warning – don’t attract suspicion. If there’s no special circumstances for you to share it, I advise you not to do it, so as not to attract suspicion,” Li said.
And that's the real purpose in all of this. Yes, news organizations like the Apple Daily are a threat to Chinese rule, but the real threat is Hong Kong's citizens. If they collectively decided to really kickstart a pushback, that would create a crisis that would put Hong Kong in the type of international crosshairs that are more difficult to ignore.But for now, it seems, the world is content to just watch all this from the sidelines.

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posted at: 12:00am on 19-Jun-2021
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Cop Who Led Strike Team Into Wrong House During Drug Raid Granted Immunity By Eleventh Circuit

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In February 2018, 24 armed officers from the Flint Circuit Drug Task Force engaged in the raid of a McDonough, Georgia house. Led by Captain David Cody, the officers deployed flash-bang grenades and forced their way through the door of the house at 303 English Road. Inside, they found only Onree Davis, the 78-year-old owner of the house.Unfortunately for Davis, who was sitting innocently and non-drug-dealerly in his own home watching the news when it was raided, the task force was supposed to be raiding 305 English Road. But officers on the scene felt the house at the correct address (the same one they'd been investigating and surveilling on-and-off for two years) was "uninhabitable" and decided to try their luck at the house up the street.Even more unfortunately for Davis, the courts have decided every officer involved in the wrong house raid is protected by qualified immunity. The latest blow to common sense and professional decency comes courtesy of the Eleventh Circuit Court of Appeals, which says the last officer whose immunity was still in question (Captain David Cody) is no longer in question. (via Reason)The lower court granted Cody immunity for leading the raid to the wrong address, despite the houses having different paint colors, different items in their yards, and different numbers of their houses. The Eleventh Circuit affirms [PDF] all of this, even though Capt. Cody admitted he failed to apprise himself of all the pertinent facts before leading a task force on a violent raid.

Capt. Cody testified that he reviewed the search warrant to make sure it was signed, confirmed it authorized no-knock entry, and confirmed the address matched the address used in the PowerPoint presentation, but admitted that he did not read it “all the way through.”
Not that Capt. Cody was especially careless. The footnote attached to this paragraph makes it clear SWAT team participants are generally more concerned about topping off on bullets and grenades than eyeballing the paperwork that grants them permission to temporarily bypass Fourth Amendment protections.
For the first time in Norris’s reply brief, he argues that whether Capt. Cody read the search warrant is a disputed fact based on Agent Hicks’s testimony that he did not recall any other officers asking to look at the search warrant during the briefing.
I guess this lack of preparedness makes it easier for officers to claim they had to "react" to "rapidly-changing situations" after they've violated some rights. After all, if you can't be bothered to appraise yourself of the specifics of the situation you'll soon be facing, you're bound to be surprised or confused and almost certainly "fear for your safety" when you're right in the thick of it.A N Y W A Y...Back to the case.So, the unprepared Capt. Cody led an unprepared task force into the house of the especially unprepared 78-year-old Onree Davis. But the court says this is fine and worthy of immunity because Cody's task force moved fast and broke stuff, making it more difficult to prevent themselves from acting in error.
Capt. Cody and the other officers involved carefully planned a high-risk raid at what was thought to be a dangerous target house but made a mistake when faced with an unexpected circumstance—the residence not matching the description given. The team was especially limited in their ability to respond to this unexpected circumstance because they had “announced” their presence with flash grenades, it was unsafe to communicate via radio, and they were forced to make a split second decision.
The most charitable reading is that the Eleventh Circuit thinks it's unfair to ask cops to think on their feet when conducting raids that could result in injuries or death. Once a raid is underway, the only way out of it is through it, even if "through" means breaking down the door of the wrong house and pointing guns at a person suspected of nothing.My uncharitable reading is that this encourages officers to immediately make as much noise as they can when conducting raids because once the "presence" is "announced," they're clear to do whatever they want until they feel the scene is "secure." Cause enough chaos and it will be tough to prove an officer knew better than to do whatever unconstitutional thing they did because what reasonable person could think clearly with all of this [gestures at flashes/bangs] going on.Capt. Cody armed himself with ignorance and explosives and that's enough for the court to give him permission to duck out of this lawsuit.
While the mistaken raid of Norris’s home was no doubt traumatic, given the significant factual differences between Capt. Cody’s actions in the raid and our prior precedent, we agree with the district court that Norris failed to meet his burden to show that Capt. Cody violated clearly established law.
That's how it ends for the man who suffered this violation of his Fourth Amendment right to be free from unreasonable searches and seizures. All twenty-four officers who participated have been granted immunity and are free to go. And with no declaration that this sort of thing violates rights, officers in this circuit are free to make these same mistakes again without worrying about being held accountable.

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posted at: 12:00am on 19-Jun-2021
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How To Fix PayPal's 'Continue Shopping' Link

Have you incorporated PayPal's shopping cart into your website?

Have you made it so that PayPal's shopping cart opens in a new window?

Are you annoyed and frustrated when you click on their "Continue Shopping" link on their shopping cart page, and it closes the new window, just like you want it to, but it ALSO redirects the original page and sends you to your site's homepage?

Here's what you have to do to stop that.

Just add this line to your shopping cart HTML:

<input type="hidden" name="shopping_url" value="javascript:void(0);">

That's it. The new window containing PayPal's shopping cart will still close, and much to your surprise and delight, the page that launched the new window WILL REMAIN right where it is.

Give it a shot. If you're anything like me, you'll be overjoyed about how it works.


posted at: 9:03am on 18-Jun-2021
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New 'Guardians Of The Galaxy' Game Has Game Streamers Worried Over Integral Music In The Game

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With streaming games and "let's plays" becoming a dominant force of influence in the gaming world, one of the sillier trends we've seen is video games coming out with "stream safe" settings that strip out audio content for which there is no broadcast license. We've talked already about how this sort of thing is not a solution to the actual problem -- the complicated licenses surrounding copyrighted works and the permission culture that birthed them -- but is rather a ploy to simply ignore that problem entirely. That hasn't stopped this from becoming a more regular thing in the gaming world, even as we've seen examples of "stream safe" settings fail to keep streams from getting DMCA notices.Well, if there were a perfect example of a video game that highlights the absurdity of all of this, it may well be the forthcoming Guardians of the Galaxy title. If you're not familiar with the GotG movies, you should know that retro music plays a major role in the films. The game promises that retro music will be just as important as in the films. And that's what immediately set off concern for game streamers.

One group that is wary of this heavy emphasis on pop music is the livestreaming crowd, who are concerned that it could make the game near-impossible to broadcast. This is because Twitch and YouTube creators are regularly hit with what are known as Digital Millennium Copyright Act (DMCA) notices.As such, a number of social media users have expressed hesitancy to livestream Guardians of the Galaxy when it comes out in October, as they are worried that the game's licensed soundtrack might cause them to receive a DMCA strike.
This seemed to be the general reaction to the game among streamers. The game publisher of course secured the rights to the songs to be included in the game, but did not license the songs for rebroadcast. Because the world is an extremely stupid place, streaming a game equates to a rebroadcast of any music within it. And, also because the world is an extremely stupid place, Eidos-Montreal's solution to this is once again to mute licensed music.
Newsweek contacted Eidos-Montréal to ask if they had made any considerations for Twitch streamers in respect to Guardians of the Galaxy's music. Over email, a spokesperson confirmed that there will actually be an option to mute licensed tracks, if players want to be absolutely safe from potential DMCA takedowns.
And so a major thematic element for the franchise will be nixed in any live-streams of the game. That is immensely frustrating. Yes, "dad rock" is an important component of the franchise and will be likewise in the game, but nobody is buying the game in order to listen to the music. By the same token, nobody is going to watch a stream of the game for that music, either. The music is important to the franchise, but its appearance in a live-stream of the game is certainly not a replacement for buying it in the marketplace.But here we are, because permission culture demands it.

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posted at: 12:00am on 18-Jun-2021
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New Jersey Supreme Court Says Attorney General Can Publish The Names Of Cops Who Committ Serious Misconduct

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Last year -- following the murder of George Floyd by Minneapolis police officer Derek Chauvin (and following the protests that followed this unconscionable killing) -- New Jersey's top cop said there would be more transparency and accountability in his state.

Attorney General Gurbir S. Grewal today ordered all law enforcement agencies in New Jersey to begin publicly identifying officers who commit serious disciplinary violations. Under the order, going forward every state, county, and local law enforcement agency in New Jersey will be required to annually publish a list of officers who were fired, demoted, or suspended for more than five days due to a disciplinary violation, with the first list to be published no later than December 31, 2020.
This move -- one that finally aligned New Jersey with several other states' transparency rules -- resulted in immediate legal action from the state's police unions. According to them, this was unfair -- an unlawful clawback of promises made to cops disciplined in the past, who were assured their names would not be published.Well, part of that still sort of holds, but only on a case-by-case basis. The state's Supreme Court has sided with the Attorney General and his power to create new rules that apply to law enforcement officers. The ruling [PDF] says the new mandate is good and lawful and definitely affects all officers who commit serious misconduct after the announcement of the rule.
Directive 2020-5 applies to all law enforcement agencies in the State, including local police departments; Directive 2020-6 applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.
As the court notes, this completely upends the state's standard operating procedure.
The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.
But even though it's a big change, it's still the sort of thing a state Attorney General can do. And law enforcement agencies must comply.
The Attorney General had the authority to issue the Directives, which satisfy the deferential standard of review for final agency decisions. The Directives are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.
So, suck it, bad cops who don't want to have their names made public going forward. However, cops who received assurances their names would not be made public no matter how egregious their misconduct still might be able to keep their names buried. But this is not a blanket order. The officers will need to make their case to the court to determine whether or not the AG's office can still be (sort of) sworn to secrecy.
Officers subjected to major discipline for the past twenty years say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years. To resolve that serious issue, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met for disciplinary matters settled before the Directives were announced.
The court also reminds law enforcement officers that this sort of thing is considered acceptable by many professionals in many fields.
The Directives implement a practice that is common in other professions. When doctors, lawyers, judges, and other professionals are disciplined for misconduct, their names are made public. The New Jersey Division of Consumer Affairs lists the results of disciplinary actions against accountants, architects, dentists, electrical contractors, engineers, nurses, pharmacists, plumbers, real estate appraisers, and others on its website.
And it's also the sort of thing that's expected by the people who pay these public servants' salaries, i.e. the state's residents.
That practice is routine in other professions and shines light on both the overall disciplinary process and individual wrongdoing.
So, cops who don't want their names made public when they've committed serious misconduct have a few options. Well, really just one: don't commit serious misconduct. That will keep the officer's name out of the Attorney General's proverbial mouth.Of course, the officers affected by this have concerns…
They contend the Directives will embarrass officers and make them and their families targets for retribution; undermine the integrity of the investigatory process; chill cooperation from officers; discourage officers from seeking treatment for alcohol or drug dependencies; undermine the command structure in law enforcement agencies; have a negative effect on public safety; and reveal the identities of victims and witnesses in domestic violence and other matters.
But those concerns aren't enough to nullify the new mandate, says the court. Plenty of other professions deploy the same sort of accountability measures and, while they may result in the same sort of side effects, have never been declared unlawful or a violation of due process rights.The top court affirms the lower court's ruling and with this ruling, the Attorney General's rule stands going forward. And it likely will apply to most officers who've committed serious misconduct during the last 20 years. Of course, the police unions still have complaints. And that leads to this gobsmacking lie that would be hilarious if it weren't coming from the source of the multitude of problems plaguing US police departments.
Patrick Colligan, the president of the state Policemen’s Benevolent Association, New Jersey’s largest police union, called the ruling “both frustrating and disappointing.”The NJSPBA does not and will not protect bad officers who violate the public trust and, yet, the 99.9% of good men and women serving in law enforcement continue to find themselves under attack,” he said in a statement.
The Attorney General's transparency directive stands. If officers don't want to subject themselves to all the negative effects of having their names published, well… maybe they should avoid committing serious misconduct.

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posted at: 12:00am on 18-Jun-2021
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After Eight Years And Three Reviews Of The Case, Indiana Supreme Court Rules Police Must Return Seized Car To Its Owner

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It's now been eight years since Indiana law enforcement seized Tyson Timbs' Land Rover following his arrest for distributing drugs. In eight years, this case has made multiple visits to the state trial court, the state court of appeals, the state's Supreme Court, and the nation's Supreme Court.This isn't just due to Timbs' tenacity and his desire to have his car returned. His only car -- worth $35,000 when it was seized -- has been sitting in an impound lot for most of decade, all because of criminal charges that netted Timbs $1,200 in fines and one year of home detention.No, these multiple trips are due to the state of Indiana attempting to prevent precedent from being set that would prevent it from seizing whatever it wants whenever it wants. Previous rulings found excessive fines -- in this case taking the form of a $35,000 vehicle seizure over $400 of heroin sold to undercover officers -- violate the Eighth Amendment. And these rulings also reminded the state that it had incorporated that part of the US Constitution years ago and couldn't try to ignore it now just because it still wants to avail itself of Benjamins when ringing up people on nickel-and-dime charges.So, for the third time, the Indiana state Supreme Court is forced to handle the Timbs case because the state has refused to accept every previous ruling that has gone against it, including the one handed down by the US Supreme Court. The opening of the ruling [PDF] expresses some of the court's exasperation with the state's stubbornness.

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional?Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.
All of these questions have been capably handled at each step of this long, laborious process. The problem is the state doesn't like the answers it's been getting. And the state Supreme Court doesn't appear to like the state's refusal to listen. There are some facts to consider, but as far as the state's top court is concerned, they were answered amply by the lower court.
[U]ntil now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.
The key is the excessive fines part of the Eighth Amendment. The courts must decide whether the seizure was proportionate. The lower court -- after hearing from witnesses on Timbs' behalf (the state decided not to call any of its own) -- made the right call by weighing the cost against the crime. The seizure of Timbs' only vehicle didn't serve any greater public interest. All it did was enrich the state at Timbs' expense.
[C]ontrary to the State’s position, we conclude that the $35,000 market value of the vehicle and the other sanctions imposed on Timbs point to the punitive, rather than remedial, nature of the forfeiture. As Timbs II explained, it’s appropriate to evaluate the market value of the forfeiture relative to the owner’s economic means—because “taking away the same piece of property from a billionaire and from someone who owns nothing” do not reflect equal punishments. 134 N.E.3d at 36. And, here, taking away a $35,000 asset from someone who owned nothing else was significantly punitive. Likewise, imposing the forfeiture on top of other sanctions—sanctions that included six years of restricted liberty as well as $1,200 in fees and costs -- shows that the vehicle's seizure was not for remedial purposes.
Finally this comes to an end, years after it should have been obvious seizing Timbs' car violated the Eighth Amendment right to be free from excessive fines.
Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.
The state and its law enforcement agencies are now subject to a proportionality test that weighs the severity of the crime against the value of the items seized. If this test stands during criminal asset forfeiture -- the seizures accompanying actual criminal charges -- it needs to be applied to cases where law enforcement can't even be bothered to affect an arrest, much less pursue criminal charges when seizing property. This is good news for Indiana residents. And it has the potential to disrupt forfeiture efforts nationwide.

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posted at: 12:00am on 17-Jun-2021
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Content Moderation Case Study: YouTube Relocates Video Accused Of Inflated Views (2014)

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Summary: The internet is the way that many new musical artists get discovered these days, with perhaps the most famous story being that of that of Justin Bieber on YouTube. Some of this came from finding undiscovered musicians who had talent, and some of it came from finding otherwise unsigned artists who had managed to build large followings themselves.Of course, this latter situation also opened up the possibility of gaming the system to appear more popular than you are in reality. Partly in response to this -- and more likely to prevent gaming views in order to gain advertising revenue -- YouTube put in place a policy of removing videos that appeared to use automated systems to game the number of views.An independent musician by the name of Darnaa sought to gain a following via YouTube, and engaged in a marketing campaign designed to drive traffic and popularity to her videos. In 2012 she had uploaded a video that had received nearly 1.9 million views according to YouTube's counter. In 2013, another video received over 1.1 million views. In 2014, she uploaded a new video, for a song entitled Cowgirl, which started receiving views as well. Darnaa claimed that these came from a coordinated marketing campaign that cost her hundreds of thousands of dollars.

YouTube, however, believed that the views on the video were inflated through artificial means, violating the terms of service. Rather than simply removing the video, or shutting down Darnaa's videos, the service simply moved the video to a new URL, resetting the counter (and breaking earlier links to the video). Darnaa sent an email complaining about this, and convinced her marketing partners to restart the marketing campaign, leading to YouTube relocating the video a second time, which again, reset the view counter.Darnaa's music label, the conveniently named Darnaa, LLC. then sued YouTube arguing that moving the location of the video was both a breach of contract, and interference with her business dealings.Decisions to be made by YouTube:
  • How should a service like YouTube determine which videos are getting legitimate traffic compared to which are generated traffic through artificial means, such as bots?
  • Is it possible to distinguish a heavy marketing campaign to point traffic to a video from methods involving artificially generated views?
  • In which cases should a video that has received artificial views be moved to a different location (cutting off old links and restarting a counter) as compared to being removed entirely?
Questions and policy implications to consider:
  • Will fighting back against artificially inflated views lead to false accusations?
  • Could actions designed to stop artificial view inflation impact a legitimate marketing campaign?
  • Should musicians and labels rely heavily on things like views to determine the actual popularity of an artist when they might be manipulated?
Resolution: After many twists and turns, the lawsuit Darnaa LLC filed against Google was dismissed at both the district court and the appeals court, though much of the dismissal was due to the case being filed after the statute of limitations had passed. However, the court also rejected the parts of the case that survived the statute of limitations questions, noting that YouTube was effectively entitled to manage its service as it saw fit, including how it treated Darnaa's videos.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 17-Jun-2021
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Police Union, Lax Oversight Allow Florida Cop To Survive Three Arrests And Seven Firings

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How do you respond if you've just been notified you lead the state in discipline cases? Well, if you're Sergeant German Bosque of the Opa-Locka (FL) police department, you take perverse pride in your inability to be a good cop.

“I can’t believe that,” he said. “I’m not trying to smile. I just ... damn!”
That was in 2011, when Sgt. Bosque wasn't seen as quite as terrible as he is now. At that point, the officer who seemed to see himself as the second coming of Vic Mackey only had five firings (and three arrests) to his name.Accusations of misconduct have piled up against this officer. The Herald-Tribune found 40 internal affairs cases involving Bosque, including multiple excessive force claims. Those reports found that Bosque head butted a man, splitting his lip open. Or that he cracked open another man's head with a leg sweep. Or the time he smacked a juvenile detainee. On top of that they note that he's been caught defying orders, lying to supervisors, and falsifying paperwork. His off-duty life seems just as horrifying, with Bosque facing multiple accusations from women alleging domestic violence and stalking.He was apparently bounced out of the police academy twice and still somehow managed to become an officer. One of his early exits was prompted by his arrest on charges of stealing a car and impersonating an officer. I guess the Opa-Locka PD figured it was better to have him become an actual police officer, rather than allow him to roam the city pretending to be one.Since his hiring in 1998, Bosque has been accused of engaging in pursuits in violations of direct orders, something he apparently tried to cover up by making an "anonymous" 911 call from his personal phone after the suspect crashed into a tree. He also was accused of falsifying his report to cover up his continued pursuit of the suspect.Following a string of incidents that finally led to his suspension in 2008, Bosque's vehicle was inspected by officers who found an empty vodka bottle, cocaine, and crack pipes. They also found a bunch of IDs Bosque had apparently unlawfully seized.That led to one of Bosque's firing. But the police union got him his job back, and the state's law enforcement commission took no action to strip him of his certification despite -- as the 2011 investigation by the Herald-Tribune notes -- Bosque's police record more closely resembled a rap sheet.By all appearances, Bosque hasn't improved over the last ten years. First reported by the Miami Herald (and amplified by the Daily Beast), Sgt. Bosque has again been fired.
German Bosque, the Opa-locka police sergeant who became notorious for repeatedly getting fired and getting his job back, has been canned yet again.“I’ve lost count. I don’t know if it was the seventh or eighth time,” Bosque said when reached on Wednesday evening. “It’s a wrongful termination. Again, I’ll be getting my job back again.”
It's Bosque's seventh firing. His latest involves more claims of lies and shady behavior. It also involves what appears to be some incredible incompetence by officers handling criminal evidence.
It stems from a shooting that happened back in October, when a gun believed used in the incident was discovered under a boat in someone’s back yard in Opa-locka. Officer Luis Serrano was assigned to watch the gun until Miami-Dade detectives got there to process the scene. But Serrano left to go to his police car briefly — and someone on the street took the gun and replaced it with a toy pellet gun.
Sgt. Bosque arrived on the scene and began mentoring Officer Serrano as only Bosque could. The body cam recording caught Bosque telling Serrano to make up a story about why he left the gun unattended.
“What do we tell them you get to get in the car?” he asks, according to body-camera footage. When Serrano repeated that he’d gone to the car to look [for] some paperwork, Bosque said “No. No. Something else, anything else ... you thought it was going to rain and you came to get a tarp.”
For all the cops who complain the "system" allows criminals to get off on "technicalities" (the nickname cops give Constitutional rights), they seem to lack the self-awareness to recognize they have their own set of technicalities that frequently allow them to escape punishment for their actions. And here it is, via Andrew Axelrad, Bosque's police union attorney.
“The idea that the department is going to terminate him for this is truly unbelievable ... I have very little doubt that he will be reinstated,” Axelrad said. “”This is more a function of his reputation.”
That seems about right. Bosque's reputation is garbage and has been for a couple of decades. The only thing slightly surprising about this is that he actually was fired. If history is any indication, Bosque will be back on the streets before too long.And Bosque's own lack of self-awareness is pretty notable.
“It’s sad because I love policing,” he said. “I don’t like corrupt cops. I hate when I’m portrayed as a dirty cop who slipped through the cracks.”
But that's exactly what Bosque appears to be: a dirty cop who slips through the wide crevasses his union and his supposed oversight create for him. No matter how much the PD and the city want him gone, they can't seem to get rid of him.Then there's the question of how much the PD actually wants him gone. Sure, it's been forced to reinstate him thanks to the union's continuous intervention, but if it really wanted Bosque gone, it could have made it happen. Years of indifference by the Florida Department of Law Enforcement -- which has continually refused to strip Bosque of his certification -- has turned a bad hire into permanent Opa-Locka urban blight.Then there's the officers he works with. Some, if not most, must be ok with Bosque's behavior. No officer has stepped forward to offer their commentary on his actions. And it appears some officers take pride in being bad. Law enforcement has cultivated an us vs. them attitude that takes all the wrong messages from pop culture icons like Dirty Harry and The Punisher and applies them to their daily work. Everyone who isn't a cop is an enemy in a war zone. Busting heads and breaking rules is perceived to be the most efficient way to enforce the law. Violence is encouraged in training and rewarded with wrist slaps, reinstatements, and shit tons of exonerative reports and public statements.Bosque is a symptom of the disease. And he didn't make it in the law enforcement business for 28 years without the help of those around him. Most of us can go 28 years without being arrested or fired once. A public servant entrusted with this much power shouldn't be tolerated for this long ever.

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posted at: 12:00am on 16-Jun-2021
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Nintendo Hates You And The Company Most Certainly Does Not Want You To Co-Stream 'Nintendo Direct'

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If you're a fan of gaming giant Nintendo, you really should know by now that Nintendo hates you. More specifically, when Nintendo is presented with a choice to either allow its rabid fans to express their fandom in new and interesting ways or attempt to exert iron-fisted control over every last thing, the company will always, always, always choose control. From taking down fan-games, DMCAing let's plays and much-loved video game music from its properties, or shutting down fan-projects for fiction or movies, the company behaves as though it just can't help itself. To be clear, Nintendo is typically within its rights in taking these actions, but it doesn't have to. This is a choice, not a necessity.And now, on the cusp of this year's Nintendo Direct, the company's E3 presentation that serves essentially as one giant commercial for what's coming out from Nintendo in the near future, the company has put out a statement in Japan insisting that nobody co-stream the event.

Leading up to the event, the Kyoto-based game company has issued a request on its Japanese Twitter account: Do not co-stream our presentation.“Please refrain from mirroring Nintendo Direct footage and sound during the Nintendo Direct livestream,” the tweet reads. Nintendo will allow simultaneous viewing (reactions, basically) without mirroring—and thus, without streaming sound or footage.
Nobody seems to be sure if this applies in other countries, such as America, as well. Even if this is limited to just Japan, or perhaps especially if this is limited to just Japan, this makes little sense. The very idea behind big productions like Nintendo Direct is to generate massive amounts of interest in future Nintendo projects. Why in the actual hell would the company not want that production disseminated as far and wide as possible? Why limit the avenues by which people can watch what is essentially a commercialized hype-video for its own products?This is something akin to when companies have on occasion DMCA'd their own commercials on sites like YouTube, except those are typically done in error. I guess some should take this as a sign that maybe Nintendo doesn't actually want you to watch Nintendo Direct this year.

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posted at: 12:00am on 16-Jun-2021
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Study Shows Disney, Netflix Continue To Dominate Traditional TV In Customer Satisfaction

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There's just something about terrible customer service, high prices, and sketchy product that consumers oddly don't like. American consumers' dislike of traditional cable TV providers was once again made clear this week in a new study by the American Consumer Satisfaction Index, which tracks US consumer approval of companies on a 100 point scale. As has long been the case, the full report shows most traditional cable TV, satellite, or IPTV providers languishing somewhere in the mid 60s -- scores that are bested by a long line of industries and government agencies (including the IRS).While the report shows that streaming did drop 2.6% to a score of 74 (thanks in part to COVID-era network strain and demand), that's still significantly better that most broadband and cable TV ratings, which remain mired in the 50s and 60s:

Compare that to streaming, which provides consumers with cheaper service, greater flexibility, and better customer service:
The cable industry was already struggling in early 2020, when a record number of cable customers "cut the cord" and flocked to over the air or streaming alternatives. That was before a pandemic came to town. But with live sports less consistent and folks desperate to cut costs as they struggled to pay rent, the trend simply exploded in the second half of last year. The number of folks still paying for traditional cable has now dropped more than 22.8% from pay TV's peak back in 2014. But by the end of 2024, analysts expect that fewer than half of US homes will subscribe to a traditional pay TV service.One survey predicts that 27 percent of US households are planning to cut cable TV from their budgets this year. That's quite an explosion for a trend that cable and broadcast executives have spent a decade pretending wasn't actually happening (it was), wasn't a big deal (it was), was only something poor losers do (studies repeatedly proved this claim false) or would rebound once Millennials began seriously procreating (that didn't happen).It's an ongoing lesson for the oodles of cable and broadcast executives who have been wrong about this phenomenon. For giant telecom incumbents their only saving grace is the fact that their monopolies over broadband access in many markets means the bloodshed isn't quite as bad as it otherwise would be, as they can simply extract their pound of flesh via price hikes on your broadband bill.

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posted at: 12:00am on 15-Jun-2021
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Geigner's Effect: CDPR Breach Worse Than Originally Reported, Because Of Course

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There has been a theorem proposed on these pages, originally by Mike himself, for a long time that goes something like this: when a data breach is first reported in the news, the severity of the breach is always, always, always underreported and there will eventually be an admission that the breach was much worse. Despite this not having been my original idea, I nonetheless slapped my name on it and called it The Geigner Effect. If that sort of name-slapping is good enough for former US Presidents, it's damned well good enough for me.Anyway, an example of this is Ninteno's 2020 breach, where user data for the Nintendo Network was stolen, with the number of reported accounts effected magically doubling from 140k to 300k after a few months. It's also happened with Equifax, TJX, and even our own federal government. Perhaps most infamously, it also occurred when Yahoo acknowledged there was an email breach of a few hundred thousand accounts in 2013 that grew and grew over subsequent reports until, eventually in 2017, Yahoo acknowledged that literally every account had been affected.In February, game studio CD Projekt Red acknowledged a breach of their corporate network. That breach was mostly for corporate assets, including source code for several games along with data from CDPR's "accounting, administration, legal, HR, investor relations, and more". Held for ransom, there was no mention in the ransom note one way or the other if user data was effected. CDPR for its part indicated it would not be giving into any monetary demands by the nefarious actors, but indicated it was working with law enforcement authorities to investigate the incident.

“We will not give into the demands nor negotiate with the actor, being aware that this may eventually lead to the release of compromised data,” the company writes. CD Projekt Red writes that it does not believe the breach contains personal data from players.“We have already approached the relevant authorities, including law enforcement and the President of the Personal Data Protection Office, as well as IT forensic specialists, and we will closely cooperate with them in order to fully investigate the incident,” the company writes.
And, well, that's been it since February. For the lay observer, this looked like CDPR's systems and data had been restored from backup and that whatever work the authorities had done must have had a good effect, as no more information was released. For all the world, it appeared as though there was no real fallout from any of this.Until this past Thursday, "coincidentally" the same day that E3 kicked off, when CDPR came out and admitted that the fallout from the breach both very much happened and is still going on.
As the entire gaming world laser-focused on Geoff Keighley’s sartorially questionable sneakers during the Summer Game Fest Kickoff Live! event, Cyberpunk 2077 studio CD Projekt Red released a statement regarding a February cyberattack against the company. Turns out, that data breach could not be contained.“Today, we have learned new information regarding the breach, and now have reason to believe that internal data obtained during the attack is currently being circulated on the internet. [...] We are not able to confirm the exact contents of the data in question, though we believe it may include current/former employee and contractor details in addition to data related to our games,” CDPR wrote in a tweet published at 2:39 p.m. ET, smack in the middle of today’s hotly anticipated showcase of video gaming advertisements.
This is the gaming industry equivalent of the old axiom: if you have to break news you really want to bury, break it at 5p on a Friday. In this case, CDPR was obviously attempting to limit the exposure of this news by announcing it just as the entire gaming world was focused on the start of E3. Why?Well, perhaps it has something to do with just how vague CDPR is still being about what it lost in this data breach.
Today’s statement doesn’t say whether or not players of CDPR’s games were affected. Representatives for CDPR did not immediately respond to Kotaku’s request for comment.
That silence is not a good sign. Either CDPR doesn't know if user data was included in the breach, or it does know and doesn't want to say. That would indicate that the answer to the question of whether CDPR's customers' data is out there in the wild is somewhere on a spectrum of "yes" and "maybe".And if the Geigner Effect holds true, one could expect a follow up post to this one on exactly that topic.

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posted at: 12:00am on 15-Jun-2021
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This Week In Techdirt History: June 6th - 12th

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Five Years AgoThis week in 2016, there were lots of stories about questionable actions by the FBI, and amidst all that, the agency turned down our FOIA request to find out how much money they spent getting into Syed Farook's iPhone. A worrying appeals court ruling chipped away at privacy while Senator Jeff Sessions was seeking to blast a giant hole in the Fourth Amendment. We learned more about the NSA's handling of Ed Snowden's concerns prior to his leak, and took a look at how despite all the supposed damage, the agency was doing great. This was also the week that Gawker filed for bankruptcy.Ten Years AgoThis week in 2011, the RIAA was arguing that changing copyright terms is unconstitutional, though only if they get shorter, while the Supreme Court agreed to hear the Golan case examining the opposite. YouTube added Creative Commons licensing options for videos while Russia's president proposed baking similar options right into copyright law. ICE declared victory in its domain seizure campaign while Homeland Security appeared to be stalling on related FOIA requests. Meanwhile, the ridiculous prosecution of whistleblower Thomas Drake was falling apart and by the end of the week, Drake took a plea bargain deal.Fifteen Years AgoThis week in 2006, long before ICE's domain seizures, we wondered why the US government was getting involved in takedowns of foreign music sites. We also took a look at the negative impact of the DMCA on innovation, and the way that the music industry's efforts to shut down sites often served as free advertising via the Streisand Effect — and the same was true with the movie industry, as was soon demonstrated by the MPAA going after Isohunt. Meanwhile, the copyright industries were trying to sneak through a huge and insane change to the law around "incidental copies". Blizzard relented on its attempts to block third-party World Of Warcraft game guides, the story of how Canada's "Captain Copyright" propaganda mascot might himself be a copy continued to develop, and we were surprised when some British politicians appeared to have reasonable views on copyright.

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posted at: 12:00am on 13-Jun-2021
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Oatly Sues PureOaty For Trademark And Trade Dress Infringement

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Maybe it's something about being in a beverage industry that makes people treat trademark law as though it were something it most definitely is not. For years, we've discussed the trademark problem that the exploding craft beer industry has faced. Oatly, the Swedish company that produces that well known non-dairy milk product, is most certainly not in the alcohol business, but they appear to be aping the most aggressive members of that unrelated industry in a recent lawsuit filed overseas against a very small competitor, which makes a product called PureOaty.

Oatly, the Swedish oat milk maker with a market value of $15bn, has taken legal action for trademark infringement against a Cambridgeshire-based family farm over its PureOaty drink. The Malmo-based group accuses Glebe Farm Foods, which specialises in gluten-free oats, of infringing trademarks including the Oatly brand name and pack design, and of “passing off” the beverage as Oatly, according to documents submitted to the court.
Now, most of Glebe Farm Foods' business has nothing to do with selling oat-based milk substitutes. Instead, the company makes most of its money selling gluten-free oat-stuffs to food producers. But it does sell PureOaty as a side product, rebranded under its current name in early 2020. Notably, the oat-based milk industry is expanding quickly, with plenty of startups getting into the business. In other words, this very much looks like an early-stage version of the craft beer industry.With that in mind:
Lawyers for Oatly and its UK business claim that when Glebe Farm rebranded its Oat Drink product as PureOaty in 2020, “Glebe Farm’s intention was to bring Oatly’s products to mind and thereby to benefit from the huge power of attraction and reputation of Oatly’s branding”.Oatly’s lawyers claim that the name PureOaty calls to mind Oatly, while the product’s blue packaging and image of a teacup also recall the Swedish brand.
Okay, let's take these two claims, the basis for the lawsuit, in order. The claim that PureOaty calls to mind Oatly is odd. Sure, both brand names include the word "oat", but that's descriptive of what the milk product is made of. The "Pure" is, frankly, doing a lot of work in differentiating the two brands. All that's really left is the "y" at the end of each brand name and if that's where the confusion claim rests, well, that isn't very convincing at all.As for the argument that the trade dress is going to be confusing, well:
If those two products confuse you, you need help. The color scheme is different, as is the placement of the branding and all the verbiage on the packaging. The only real commonality is, as Oatly called out, the inclusion of a tea or coffee cup. And the fact is that both of these products are used as creamers. Including a tea or coffee cup isn't particularly distinctive for these oat-milk products.But, as is always the case when it comes to trademark bullying, this is likely happening at least in part because Glebe Farm Foods is tiny compared with Oatly. That's why trademark bullying works. Whether it does in this case I suppose will come down to how hard and long Glebe Farm Foods wants to fight back.

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posted at: 12:00am on 12-Jun-2021
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Will Congress' Big New Push On Antitrust Actually Solve Any Competition Issues?

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On Friday, as has been widely expected for a while, a bunch of House lawmakers led by David Cicilline introduced five new antitrust bills that would, if they become law, completely reshape how antitrust works in the US. At least for tech companies. Somewhat notably, many of the bills seem written specifically to target just one industry and to avoid having to deal with other industries. The text of the bills has been floating around all week as the Democrats who are pushing them hoped to find some Republican co-sponsors. And, based on Friday's press release, it appears they found at least one Republican to sponsor each bill (though only four Republicans in total, as they got Lance Gooden to agree to sponsor two of the bills).Now, most of the bills strike me as extremely problematic -- and even me just saying so will lead people to claim I'm somehow in the tank for these companies. Nothing is further from the truth. I'm all for creative ideas on how to end the dominance of the largest companies and to increase competition. But I fear poorly thought out proposals will have massive unintended consequences that go way beyond punishing Facebook, Google and Amazon.Each bill does something different, and there are some occasionally creative and interesting ideas in them, but it really seems like these bills are more designed to destroy the thriving tech industry out of spite, rather than to actually encourage competition. As noted above, I'm in agreement that it would be good if we got more competition in the tech industry, but these bills take a very backwards-looking view on how to do that, basically by punishing companies for building successful products, rather than looking for ways to enable more actual competition. I've written before on ways to actually break up the dominance of big tech players, mainly by getting rid of many of the existing rules that have allowed the big players to block and limit competition. But these bills don't do that. They take a much more punitive approach to successful companies, rather than an approach that enables more competition through innovation. That's disappointing.To me, the one that seemed most interesting at a first glance was the ACCESS Act ("Augmenting Compatibility and Competition by Enabling Service Switching Act") by Rep. Mary Gay Scanlon. It basically requires "covered platforms" to maintain open APIs for interoperability and data portability. And, at a first pass, that is a good thing, and obviously quite consistent with my belief that we need to build a future that is based more on open protocols rather than silo platforms. Portability and interoperability are certainly a step in the right direction for that.However, the way the bill actually is written suggests a real lack of futuristic technical thinking. It would lock in certain ideas that don't necessarily make any sense. Basically, all this bill would actually do is make sure that you could transfer your data out of an existing internet giant. The big internet companies already do this... and because of the way it's been implemented, it's almost entirely useless and doesn't help anyone. This bill wouldn't change that, unfortunately.On top of that, this bill fails to deal with the very real and very tricky challenges regarding data portability and interoperability as it pertains to privacy. Instead, the bill just handwaves it away, basically saying "don't do bad stuff regarding privacy" with this data. That's... not going to work, and is more or less an admission that the drafters of the bill don't want to deal with the very significant challenges of crafting a data portability/interoperability setup that is also congruent with protecting privacy.The real way to do this would be to separate out the data layer so that it's not controlled by the centralized companies at all, but in the hands of the end-users or their agents. But while that could happen as an accident of this bill, it's clearly not the intent. Thus it seems like this bill would not help very much, and that's a real missed opportunity. It's nice that it recognizes portability and interoperability as issues, but it doesn't do the hard work necessary to make that actually meaningful.Finally, perhaps the most problematic (by far) part of this bill is that if a "covered company" wants to change its APIs, it would need to get FTC approval -- and that seems like a terrible idea. Imagine having to get approval from the government every time you change your API? What? No. Bad.

A covered platform may make a change that may affect its interoperability interface by petitioning the Commission to approve a proposed change. The Commission shall allow the change if, after consulting the relevant technical committee the Commission concludes that the change is not being made with the purpose or effect of unreasonably denying access or undermining interoperability for competing businesses or potential competing businesses.
I mean, yikes. That's going from permissionless innovation -- the very core of our innovation engine -- to having the FTC act as the approver of any slight change to an API. That's really, really bad.The bill that may get the most attention is Cicilline's own bill that basically says successful internet companies could no longer promote their own ancillary services over those of competitors. Basically, Google couldn't insert its own local results, or its own maps, over a third party's. Think of this as the Yelp Finally Forces Google To Use Yelp's Listings Act, because that's the main driver behind this bill. Basically, some companies that do more specialized search and content don't want Google to be able to compete with them, and more or less want traffic they might not have earned. I can see a slight argument for how the practice of actual monopolies favoring their own services and excluding others could be anticompetitive, but this bill would make it defacto anti-competitive -- and that seems likely to create massive unintended consequences that won't be very good for the internet.There are, after all, lots of cases where it makes quite a lot of sense for companies to link their ancillary products. Yet, here, doing so will almost definitively lead to a costly antitrust fight, meaning that it will be quite difficult for many companies to build useful complementary services. I don't see how that benefits the public. Again, it seems that a much better solution would be to remove the barriers that currently limit the ability for third party competitors to step in and build tools that interoperate with the bigger players, but that's not the goal here. The goal seems to be to restrict the big internet companies to much more limited offerings, rather than providing a wider suite of services.Another major change comes from Rep. Hakeem Jeffries, and would effectively make it much, much harder for internet giants to buy companies. A key part of the bill is that the acquiring company would have to affirmatively show that the merger is legit, rather than the government having to show that the merger is problematic. Shifting the burden of proof would basically mean that most such mergers would be presumed unlawful, rather than the opposite. This could have huge and problematic implications for how our economy operates today.On the good side, the bill would give the FTC and DOJ more resources to review acquisitions. However, as we've discussed before, in trying to block out anti-competitive acquisitions (which are a legitimate concern!) a bill this broad will almost certainly knock out other kinds of important and useful acquisitions (such as ones that keep failing or flailing services alive). More importantly it may take investment capital away from competitive entrepreneurial ventures.No good investors invest in a company with a plan to just sell it off to a big tech company (indeed, most investors will ask startups how they would deal with such a competitive threat), but having the big guys act as a buyer is an alternative out -- not as successful as succeeding on your own, but still better than losing all of the investment entirely -- makes it easier for the investors to make these kinds of bets. Now that possibility of return will become much more difficult, meaning that investment capital is less likely to go to entrepreneurs trying to create competitive solutions. And that's not good!A separate bill from Rep. Neguse basically just raises the cost of mergers and acquisitions and... um... sure? Fine. I don't see that as problematic really. I mean, at the margins, making it more costly to do an acquisition might be a nuisance, but the changes and increases don't seem particularly significant here -- and certainly not enough to stop a major acquisition (though, arguably it might drive down the amount that the owners of the acquired company get, effectively transferring it to the government). Consider it kind of a slight tax on selling your business. The bill would also increase funding to the FTC and DOJ to work on antitrust issues, and that seems reasonable as well.Finally, there's Rep. Jayapal's bill that is pretty clearly designed to just stop Amazon from selling its own goods on Amazon. I know this is an issue lots of people complain about, but it remains unclear to me how much of an actual problem it is. Lots of retailers sell house branded products and compete against others without much of a problem. Costco has its house Kirkland brand, which it sells alongside other companies' competing products. Is that so problematic?As some are pointing out already, these bills could kill off (or severely limit) a bunch of services that people actually like, mostly as punishment that the innovations have been so successful. And that's a problem.It's fine to admit that there's a delicate balance here. How do you stop companies from becoming too powerful such that they alone squeeze out or stifle competition, while at the same time not putting in place stringent rules that, by themselves, stifle useful innovations? There really are two major themes of approaches: (1) punish or limit the ability of companies to act or (2) figure out better ways to create incentives for competitors to succeed. Unfortunately, regulators tend to jump to (1) and avoid even trying (2). That seems to be the case here.

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posted at: 12:00am on 12-Jun-2021
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The Decades-Long Trademark Dispute Over 'Pretzel Crisps' Comes To Its Obvious End

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It's quite incredible how often the unfortunate growth of ownership culture in America produces silly trademark disputes over terms that obviously shouldn't be valid trademarks. While examples of this are legion, let's get right into what has become a decade-plus long dispute over "pretzel crisps". Snyder's, acquired by Princeton Vanguard, has long made a "pretzel crisp" product. In 2004, the USPTO registered the company's "pretzel crisp" mark, but as a supplemental to an earlier registration, deeming it "descriptive". If you want to argue that the term "pretzel crisp" is not descriptive, well, don't because you're wrong. Even Princeton Vanguard didn't argue differently until 2009, when it attempted to argue that the term had acquired distinctiveness in the public, associated with the company's brand and product. The USPTO remained unconvinced when Frito-Lay opposed the registration as it had its own similar product, with that opposition going so far as to actually seek to have any registration for the term canceled as generic.From there, the companies found themselves in lawsuit-land.(Note to the reader: this is normally where I would include a useful pull-quote from the bakeryandsnacks.com link above about how two federal appeals courts ruled against Snyder's, affirming the mark as generic, but unfortunately that website seems to think that disallowing any copy/paste of its text is somehow the same as enforcing copyright. When attempting to do so, you get a copyright warning. Now, I could simply type out the quote and use the text anyway, given that such use would fall squarely in fair use territory, but instead I'll use this space to give a big "fuck you!" to bakeryandsnacks.com. You're welcome for some traffic, you restrictive ass-bags!)Anyhoo, while two losses in federal court really should have been the end of this, yet another civil action was brought by Princeton Vanguard in the US District Court for the Western District of North Carolina. Both parties asked for summary judgement as to whether the term "pretzel crisp" can be registered as a trademark or if it's generic. The court declined to grant summary judgement based on a procedural technicality. But the court did still rule on the overall question of the generic nature of the term.

Especially significant here, the law forbids trademarking generic terms, even when a putative mark holder engages in successful efforts to establish consumer recognition of an otherwise generic term. Id. at 193-94. “[N]o matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name.”...In sum, courts have long sought to foreclose companies from monopolizing common terms, holding that no single competitor has the right to “corner the market” on ordinary words and phrases.
From there, the court gets into a long discussion on the standards of determining if a term is generic, with specific standards around the combining of two descriptive or generic terms and how that effects the compound term's generic or not nature. It's all very interesting if you're into that sort of thing, as am I, but the court's conclusion is the larger point.
Although the Court concludes that the combination of the generic elements “pretzel” and “crisps” does not create any additional meaning for consumers from which they can distinguish Plaintiffs’ product and thus indicates that PRETZEL CRISPS is generic, the Court does not rest its finding of genericness on that finding. Rather, after considering de novo all the evidence offered by the Parties which bears on consumers’ perception of the mark, the Court finds that, on balance, a preponderance of the evidence supports the conclusion that the mark, considered only in its entirety, is generic.
Of course it is. The term "pretzel crisp" tells you absolutely nothing about who produced that product. The rest of the branding on the packaging has to do that instead. Why? Well, because the term "pretzel crisp" merely tells you what product is in the bag or box you're buying. It's descriptive, a generic term for a type of foodstuff.Meanwhile, this order is 53 pages long, filled with the history of this dispute, with survey evidence brought by both parties, legal standards and the like, all just to outline why, for the fourth time now, someone has had to tell Snyder's that "pretzel crisp" is a generic term.If that isn't a perfect example of how insane ownership culture is, I can't imagine what would be.

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posted at: 12:00am on 11-Jun-2021
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Most Used Electric Car Buyers Have No Way To Confirm Vehicle Battery Health

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As we make the shift from gas to electric vehicles, there are a few issues we still haven't really paved the way for. One is the fact that, with gas taxes being the primary way we fund highway infrastructure, we need to develop alternative infrastructure funding (not a topic that tends to get priority in a hype and flash-obsessed culture, as John Oliver has been quick to remind everyone). The 18.4 cents a gallon federal gas tax hasn't been raised since 1993, and the Congressional Budget Office says that if the funding system doesn't evolve by 2030, federal transportation funding will exceed its budget by a cool $188 billion.The other problem, highlighted by Aaron Gordon at Wired, is that used car buyers and sellers currently have no way to confirm the battery health of a used electric car. Given the used car market is twice as big as the new car market, you can probably see how this could become a notable problem. Especially given that the battery health meter on most of these vehicles can be reset, allowing the seller of the car to effectively lie to buyers about how much life the battery has left:

"Churchill noticed something was wrong on his drive back home. When he left, the car estimated it had 80 miles of range. By the time he finished his 25-mile commute, it said it had 30 miles of range left. And in the next few days, Churchill said the battery health meter lost two bars. When he called the dealer to complain, he was shuffled between departments and ultimately ignored.After doing some research, Churchill learned the battery health meter can be reset using a car diagnostic tool. After resetting, the meter will display all 12 bars for a short period before recalibrating after some use, just as Churchill's did. During this time, the car is essentially lying about its battery health."
According to the Bureau of Transportation Statistics, there are 17 million new cars sold in the US every year, compared to 40 million used vehicles. Currently only the Nissan Leaf even has a battery health meter customers can view. Every other electric vehicle currently on the market restricts that information to proprietary devices that typically only the sellers or dealers have access to, which will likely in time tether this whole discussion to the right to repair debate, and the obnoxious ways car makers restrict your ability to repair (or even have transparency into) things you own.While the California Air Resources Board is cooking up a set of rules (pdf) aimed at protecting consumers from fraud on this front, the vast majority of states are... not doing that. What could possibly go wrong?

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posted at: 12:00am on 11-Jun-2021
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Content Moderation Case Study: Pretty Much Every Platform Overreacts To Content Removal Stimuli (2015)

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Summary: Content moderation at scale often involves significant tradeoffs between diverse interests. It is often difficult for those without experience in the field to recognize these competing interests.Social media services aren't just beholden to their users. They're also at the relative mercy of dozens of competing interests at all times.Users expect one thing. A bunch of governments expect another. Internal policies and guidelines result in another layer of moderation. Then there are the relatively straightforward obligations platforms must fulfill to retain their safe harbors under the DMCA.
So what happens when all of these competing interests collide? Well, according to multiple studies, the most common side effect is over-moderation: the deletion of content that's not in violation of anything, just in case.For the past half-decade, Stanford Law School's Daphne Keller has been tracking platforms' responses to external stimuli: the pressures applied by outside interests that -- for good or evil -- want social media services to expand their moderation efforts.And for most of that half-decade, Keller has seen "good faith" efforts expand past the immediate demands to encompass preemptive removal of content that has yet to offend any one of the hundreds of stakeholders applying legal pressure to US-based tech companies.The research shows large companies are just as preemptively compliant as smaller companies, even though smaller companies have much more at risk.

The easiest, cheapest, and most risk-avoidant path for any technical intermediary is simply to process a removal request and not question its validity. A company that takes an if in doubt, take it down approach to requests may simply be a rational economic actor. Small companies without the budget to hire lawyers, or those operating in legal systems with unclear protections, may be particularly likely to take this route.
Multiple studies are cited, and they appear to reach the same conclusion, whether it involves a platform with millions of users or a small group catering to a niche audience: when it doubt, take it out.Decisions to be made by platforms:
  • Should a premium be placed on protecting user content in the face of vague takedown demands?
  • Does protecting users from questionable takedown demands result in anything more quantifiable than "goodwill?" 
  • Are efforts being made to fight back against mistargeted or unlawful content removal requests? Is the expense/liability exposure too costly to justify defending users against unlawful demands from outside entities?
Questions and policy implications to consider:
  • Do platforms ultimately serve their users' interests or the more powerful interests applying pressure from the outside?
  • Is staying alive to "fight another day" ultimately of more use to platform users than taking a stand that might result in being permanently shut down? 
  • Is it wise to attempt to satisfy all stakeholders in content moderation issues? Should platforms choose a side (users v. outside complainants) or is it wiser to "play the middle" as much as possible?
  • Are there fungible advantages to deciding users are more important than outside entities who may have the power to dismantle services specializing in third-party content?
Resolution: The war between users and outside interests continues. As pressure mounts to moderate more and more content, users are often those who feel the squeeze first. The larger the platform, the higher the demands. But larger platforms are more capable of absorbing the costs of compliance. Smaller ecosystems need more protection but are often incapable of obtaining the funds needed to fight legal battles on the behalf of their users.True balance is impossible to achieve, as this research shows. Unfortunately, it appears preemptive removal of content remains the most cost effective way of satisfying competing moderation demands, even if it ultimately results in some loss to platforms' user bases.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:01am on 10-Jun-2021
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Denuvo Is Still Claiming It's In The Anti-Piracy Business Even As Games Continue To Strip Out Denuvo Post-Launch

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For a three year period or so, we had a ton of coverage on Denuvo, a DRM platform once touted as undefeatable. That era of invincibility soon crumbled completely, with cracking groups eventually figuring out how to get around the DRM. Cracking times on games went from months, to weeks, to days, to essentially games being cracked at launch. Games started patching Denuvo out of games, which is roughly the equivalent of admitting defeat. In response, Denuvo began claiming that it's platform was still a success because it could protect some games for some number of hours at the time of launch and the company apparently believed that really should be good enough. The company also announced a pivot to providing anti-cheat software for online games, though publishers began ripping that out of their games at record speed as well.So, where are we now? Well, the new status quo appears to be this: Denuvo still advertises both its anti-piracy and anti-cheat platforms as successes while games that use the software are still having them peeled out via patches. Notably, Denuvo's marketing material now reflects the emphasis on the initial release window, where Denvuo claims its platform can protect a game for 14 days after launch, during which publishers earn "59% of their revenue from their new title."As with all things Denuvo, this claim should be taken with enormous grains of salt for a variety of reasons. First, that revenue claim seems spurious, given how many games make revenue in how many different ways. Online games make their revenue on an ongoing basis, while single-player only games may make the largest chunk at release. But many single-player games make lots of money on an ongoing basis by embracing their modding community, updating games to keep them relevant to new buyers, releasing DLC, etc. It's also worth noting that Denuvo has failed spectacularly to protect many, many titles for anything close to 14 days.But most important to note is that this represents the continued moving of the goalposts by Denuvo. The platform was once touted as "the end of gaming piracy." Now the focus is on 14 days of protection. Why? Well, the answer is that games long in existence are still patching Denuvo out.

When Monster Hunter: World launched on Steam in 2018 it came with a DRM system to deter pirates by requiring online activation to launch the game. This is often a source of ire for players because of a perception that it causes higher CPU usage and more frequent utilisation of storage devices that could affect gameplay or damages hardware. Denuvo has denied these claims.Monster Hunter: World’s latest patch has removed around 500MB of files from the game, and the steam page no longer states that MH:W has some form of DRM.
That post, in addition to noting Denuvo's denial that the DRM has literally any performance impact on a gamer's machine, also goes on to claim that "it is not uncommon for companies to remove the DRM in a patch once it is no longer necessary."That may be true for Denuvo's anti-piracy platform specifically, but it certainly is not the case for how DRM has been handled generally throughout gaming's history. In addition, think about what is being said in that claim. A DRM that has at least some utility and no performance impact on gaming machines is stripped by publishers like that of Monster Hunter: World because... why? Just because of public perception on gaming performance? A perception that exists at launch? Why, after a couple of years of the game being sold, would the publisher now even bother to strip out the DRM if it has no actual negative downside?Well, there are three possible answers. One is that the game publisher knows that, in fact, Denuvo does have an effect on the game's performance on a buyer's machine. Another is that the game publisher realizes that the DRM does not in fact have any actual utility. The third option is that the game publisher concludes that both are the case.Either way, a successful product doesn't get stripped out of games through patching. Unsuccessful products do that. No matter what Denuvo wants to claim for itself in its marketing material.

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posted at: 12:01am on 10-Jun-2021
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Why The Ninth Circuit's Decision In Lemmon V. Snap Is Wrong On Section 230 And Bad For Online Speech

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Foes of Section 230 are always happy to see a case where a court denies a platform its protection. What's alarming about Lemmon v. Snap is how comfortable so many of the statute's frequent defenders seem to be with the Ninth Circuit overruling the district court to deny Snapchat this defense. They mistakenly believe that this case raises a form of liability Section 230 was never intended to reach. On the contrary: the entire theory of the case is predicated on the idea that Snapchat let people talk about something they were doing. This expressive conduct is at the heart of what Section 230 was intended to protect, and denying the statute's protection here invites exactly the sort of harm to expression that the law was passed to prevent.The trouble with this case, like so many other cases with horrible facts, is that it can be hard for courts to see that bigger picture. As we wrote in an amicus brief in the Armslist case, which was another case involving Section 230 with nightmarish facts obscuring the important speech issues in play:

"Tragic events like the one at the heart of this case can often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that stands between a worthy plaintiff and a remedy, it can be tempting for courts to ignore it in order to find a way to grant that relief."
Here some teenagers were killed in a horrific high-speed car crash, and of course the tragedy of the situation creates an enormous temptation to find someone to blame. But while we can be sympathetic to the court's instinct, we can't suborn the facile reasoning it employed to look past the speech issues in play because acknowledging them would have interfered with the conclusion the court was determined to reach. Especially because at one point it even recognized that this was a case about user speech, before continuing on with an analysis that ignored its import:
Shortly before the crash, Landen opened Snapchat, a smartphone application, to document how fast the boys were going. [p.5] (emphasis added)
This sentence, noting that the boys were trying to document how fast they were going, captures the crux of the case: that the users were using the service to express themselves, albeit in a way that was harmful. But that's what Section 230 is built for, to insulate service providers from liability when people use their services to express themselves in harmful ways because, let's face it, people do it all the time. The court here wants us to believe that this case is somehow different from the sort of matter where Section 230 would apply and that this "negligent design" claim involves a sort of harm that Section 230 was never intended to apply to. Unfortunately it's not a view supported by the statutory text or the majority of precedent, and for good reason because, as explained below, it would eviscerate Section 230's critical protection for everyone.Like it had done in the Homeaway case, the court repeatedly tried to split an invisible hair to pretend it wasn't trying to impose liability arising out of the users' own speech. [See, e.g., p. 10, misapplying Barnes v. Yahoo]. Of course, a claim that there was a negligent design of a service for facilitating expression is inherently premised on the idea that there was a problem with the resulting expression. And just because the case was not about a specific form of legal liability manifest in their users' speech did not put it outside of Section 230. Section 230 is a purposefully broadly-stated law ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."), and here the court wants the platform to take responsibility for how its users used its services to express themselves. [p. 15, misapplying the Roommates.com case].Section 230 also covers everything that could be wrong with expression unless the thing wrong with it happens to fall into one of the few exceptions the statute enumerates: it involves an intellectual property right, violates federal criminal law, or otherwise implicates FOSTA. None of those exceptions apply here, and, in fact, in the same section of the law where these few exceptions are set forth there is also a pre-emption provision explicitly barring any state law from becoming the basis of any new exceptions. Which, with this decision giving the go-ahead to a state law-based tort claim of "negligent design," is what the Ninth Circuit has now caused to happen.It hurts online speech if courts can carve out new exceptions. If judges can ever post hoc look at a situation where expressive activity has led to harm and decide the degree of harm warrants stripping service providers of their Section 230 protection, then there is basically no point in having Section 230 on the books. If platforms have to litigate over whether it protects them, then it doesn't really matter whether it does or not because they'll already have lost out on so much of the value the protection was supposed to afford them to make it possible for them to facilitate others' expression in the first place. The inevitable consequence of this functional loss of statutory protection is that there will be fewer service providers available to facilitate as much user expression, if any at all.But even if there were some limiting principle that could be derived from this case to constrain courts from inventing any other new exceptions, just having this particular "negligent design" one will still harm plenty of speech. To begin with, one troubling aspect the decision is that it is not particularly coherent, and one area of confusion relates to what it actually thinks is the negligent design. [see, e.g., p. 15]. The court spends time complaining about how Snapchat somehow deliberately encourages users to drive at unsafe speeds, even though the court itself acknowledged that while Snapchat apparently rewards users with "trophies, streaks, and social recognitions" to encourage them to keep using their service [p. 5], it "does not tell its users how to earn these various achievements" [p. 5], and it is a leap to say that Snap is somehow wrongfully encouraging users to do anything when it is not actually saying anything of the kind. [See p. 6 ("Many of Snapchat's users suspect, if not actually 'believe,' that Snapchat will reward them for 'recording a 100-MPH or faster [s]nap' using the Speed Filter.")]. In fact, as the decision itself cites, Snapchat actually cautioned against reckless posting behavior. [See p. 6 with the screenshot including the text, "Don't snap and drive."] If the case were actually about Snap explicitly encouraging dangerous behavior ("Drive 100 mph and win a prize!") then there might legitimately be a claim predicated on the platform's own harmful speech, for which Section 230 wouldn't apply. But the record does not support this sort of theory, the theory of liability was predicated on a user's apparently harmful speech, and in any case the alleged encouragement wasn't really what the plaintiffs were charging was actually negligently designed anyway.Instead, what was at issue was the "speed filter," a tool that helped users document how fast they were traveling. Unlike the district court, the Ninth Circuit could not seem to fathom that a tool that helped document speed could be used for anything other than unsafe purposes. But of course it can. Whether traveling at speed is dangerous depends entirely on context. A user in a plane could easily document traveling at significant speed perfectly safely, while a user on a bike documenting travel at a much slower speed could still be in tremendous peril. One reason we have Section 230 is because it is impossible for the service provider to effectively police all the uses of its platform, and even if it could, it would be unlikely to know whether the speeding was safe or not. But in denying Snapchat Section 230 protection with the presumption that such speech is always unsafe, the court has effectively decided that no one can ever document that they are traveling quickly, even in a safe way, because it is now too legally risky for the platform to give users the tools to do it.Furthermore, if a platform could lose its Section 230 platform because the design of its services enabled speech that was harmful, it would eviscerate Section 230, because there are few, if any, whose design would not. For example, Twitter's design lets people post harmful expression. Perhaps one might argue it even encourages them to by making it so easy to post such garbage. Of course, Twitter also makes it easy to post things that are not harmful too, but the Ninth Circuit's decision here does not seem to care that a design eliciting user expression might be used for both good and bad ends. Per this decision, which asserts a state law-created "duty to design a reasonably safe product," [see p. 13, misapplying the Doe 14 v. Internet Brands case], even a product that meets the definition of an "interactive computer service" set forth in Section 230 (along with its pre-emption provision), if the design could be used to induce bad expression, then the platform no longer qualifies for Section 230's protection. But that would effectively mean that everyone could always plead around Section 230 because nearly every Section 230 case arises from someone having used the service in a harmful way the service enabled. It is unfortunate that the Ninth Circuit has now opened the door to such litigation, as the consequences stand to be chilling to all kinds of online speech and services Section 230 was designed to protect.

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posted at: 12:00am on 09-Jun-2021
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Three Years After An Officer Killed A Suicidal Teen, Law Enforcement Releases Report That Raises More Questions

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Law enforcement seems to assume that any shooting officers engage in is justified. What may appear to be reckless violence by cops is just good police work, according to police. Anyone who thinks otherwise is only expressing their ignorance of police tactics and far too unconcerned about officer safety.Public outcry following police shootings is often greeted with statements from police officials asking the public to calm down until all the facts are in. Then law enforcement officials set about burying facts, rewriting narratives, and doing everything they can to put some time and distance between them and the shooting.A recently released report on the 2018 killing of Kansas teen John Albers appears to be thorough, at least at first glance. It's 498 pages long, suggesting it's a thorough documentation of the shooting of Albers by Overland Park police officer Clayton Jennison. Like far too many fatal shootings, it started with a call from someone concerned about the teen's welfare.This is from early reporting on the 2018 shooting.

Police had been told Albers, a junior at Blue Valley Northwest, had been taking pills and drinking heavily and had, via a FaceTime phone call, told someone he was going to stab himself. At least one of the responding officers was familiar with Albers, according to police radio traffic.
Here's how it was described to reporters after Albers had been killed by Officer Jennison.
As officers approached the house in the 9300 block of W. 149th Terrace, the garage door opened and a vehicle came out moving “rapidly” toward one of the officers, with Albers at the wheel, according to police. The officer shot Albers, killing him. No officers were injured.[...]After the shooting, the vehicle — a Honda minivan — ended up in a front yard across the street, according to neighbors. It appeared to have come out of the driveway facing forward.
The dashcam video shows otherwise. The van came out of the garage in reverse and did not move "rapidly" towards the officer. Instead, it headed straight down the driveway next to Officer Jenison, who began shooting as it began moving past him. The van then swings back in a half-circle back onto the lawn, suggesting Albers has already been hit. Then it heads across the street before coming to a stop on the neighbor's lawn.
And there's this final insult to the public's intelligence:
Police have not said that Albers had a weapon other than the vehicle.
If Officer Jennison was in any danger of being run over, it's because he put himself in that position. He moved towards the van as it exited the garage and opened fire when it moved past him. His shooting of Albers resulted in the unpredictable vehicle movements that followed his initial shots. No other officer on the scene fired their weapon.Shortly after the shooting, Police Chief Frank Donchez asked for patience. More than three years after he asked for that, the report has finally arrived. The Kansas City Star turned the report [PDF] over to a handful of experts, none of whom seem impressed by the report or its findings.
In the days after the material was released, The Star had it examined by two forensic scientists, a criminal justice professor and Paul Morrison, the former Johnson County District Attorney.All found the investigation lacked neutrality and was missing crucial information.“Everyone just seemed to know what had happened, and had concluded already what had happened,” said Charles Wellford, a professor of criminal justice at the University of Maryland with an extensive background reviewing homicide cases.“There were things they could have done if they were not convinced from the get-go that this was not a chargeable action.”“A substantial amount of that report didn’t really even deal with the shooting,” Morrison said. “It dealt with John Albers and his juvenile problems. And that, in my mind, is usually a sign that maybe somebody’s not the most neutral.
To make room for the disparagement of the dead teen, the investigators excluded crucial information from the report, like the initial supervisor's notes from the shooting scene and any attempts made by the crime lab to reconstruct the shootings and track bullet trajectories. The latter would have shown Jenison fired from the side of the vehicle, rather than from the rear, calling into question his assertions that the reversing van was coming towards him.Officer Jenison also did not know who was in the van at the point he started firing. All he knew was he was checking on a suicidal teen who might have been carrying a knife. Instead of verifying any of this, he opened fire on the driver of the van simply because he chose to reverse down the driveway like anyone would when pulling out of a garage.Jenison's post-shooting interview was solicitous and cordial. It also occurred four days after the shooting and after the officer had been given the chance to review the recordings. His claims that he thought the van was going to hit him went unchallenged, even though the recording showed the van moving in a straight line down the driveway until its course was altered by Jenison's shooting of the driver.The report gives the impression the conclusion that the shooting was justified was reached before the investigation truly began, allowing investigators to work their way backwards from this supposition. The multi-agency investigation only involved other law enforcement agencies, lowering the chance of any other conclusion being reached.As we've seen in other cases where shootings by officers are investigated, cops are handled very differently than anyone else who's killed anyone, even in supposed self-defense. Officers are given hours, if not days, to review materials and prepare for questioning. All rights are immediately respected, rather than having to be invoked repeatedly by the officer being questioned. They are almost never arrested or jailed, even if probable cause exists to do so. And when cops investigate other cops, they wholeheartedly embrace the ideal of "innocent until proven guilty" in a way they never do when dealing with detained criminal suspects.Years later, this is the sort of thing that gets handed to the public: a largely exonerative compilation of foregone conclusions spiced up with some details of the shooting victim's prior run-ins with law enforcement. It ignores the victim's mental health crisis for the most part, highlighting it only when it serves to portray John Albers as dangerous to others. And it fully ignores the inconvenient fact that Officer Jenison did not actually know who was in the van when he started shooting, making the details about Albers' past troubles completely irrelevant.

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posted at: 12:00am on 09-Jun-2021
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Alabama Deputy Sued After Cuffing An Arrestee So Tightly His Hand Had To Be Amputated

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There's a saying lots of cops and cop defenders use. It rhymes, so it's easy to remember and even easier to deploy carelessly anytime someone expresses doubts about excessive force or excessive sentencing.

"Don't do the crime if you can't do the time."
Thanks, Baretta. I'm not sure how Robert Blake feels about this catchphrase after his trip through the criminal justice system, but it nonetheless persists.But what happens if you don't do the crime, still do the time, and then have something truly awful happen to you as a result of your forced "interaction" with local law enforcement? Well, things like this happen... things that should never happen.
Before Giovanni Loyola was arrested in February 2020, he enjoyed using his hands and worked mainly in construction. Now the 26-year-old is unable to fasten his own belt or tie his shoes, his attorney said.Loyola had segments of fingers removed in several operations last year, and doctors ultimately had to amputate his entire left hand. According to a federal civil rights complaint filed in U.S. District Court for the Northern District of Alabama last month, the amputation was the result of injuries sustained from being left for hours in overly tight handcuffs after a disorderly-conduct arrest.
Yeah, that's the "time" Loyola will be doing for the rest of his life for the "crime" of telling sheriff's deputies there was no altercation happening at his home. The lawsuit [PDF] (which the Jeff Bezos-owned Washington Post apparently can't afford to make available at its website) says Jefferson County (Alabama) deputy Christopher Godber showed up at Loyola's mothers house in response to reports two males were fighting and carrying weapons.Loyola was watching TV at the time and no fighting was happening at the residence. Apparently, Deputy Godber didn't care for the "nothing to see here, please move along" answers he was receiving from Loyola. So, he needlessly escalated the situation.
When Plaintiff answered the door he asked the deputies standing there what was wrong. Deputy Godber, without answering and without asking permission to enter the home, reached inside the doorway, grabbed Plaintiff by the wrist and jerked him outside the home and down the steps.Deputy Godber then slammed Plaintiff against a car, threw him to the ground and punched him in the face with his fist.Deputy Godber then cuffed Plaintiff’s hands together behind his back extremely tightly and placed his knee on Plaintiff’s upper back with Deputy Godber’s weight on the knee.
According to the lawsuit, Deputy Godber had a good 50 pounds on the person he was restraining, not to mention the advantage of having both of his hands uncuffed. Godber still holds the advantage, months after this arrest, with Loyola losing one hand to Godber's refusal to loosen the cuffs.Loyola then spent the weekend in jail. He was arrested for "contempt of cop:" disturbing the peace and resisting arrest. Outstanding warrants for traffic violations kept him in jail for ten more days. He was given no medical treatment while incarcerated. By the time he was released, it was too late to save his hand.
After Plaintiff got out of jail on February 28, 2020, his left wrist was still in tremendous pain. He went to Christ Health Center where the physician provided him with a medical excuse stating that “[h]e was found to have a severe problem with blood flow to his left hand and is in need of emergent surgery.”Plaintiff was admitted to St. Vincent’s East and remained there until March 2, 2020. 28. On February 28, upon admission to the Emergency Department, the notes state that Plaintiff had “gray fingertips and concern for necrosis of the left hand. He has had increasing pain in his fingertips after he was handcuffed 4 days ago and sent in from Christ Health Center for rule out of dissection.”
First, surgeons removed two fingertips. But the necrosis had advanced too far to save the hand.
Plaintiff went home but returned to the hospital on March 17, 2020, complaining of extreme pain in his fingers. Plaintiff was admitted to the hospital on March 17, 2020 and remained there until March 25, 2020. Those medical records state that “He reports he was arrested about 3 weeks ago and after wearing handcuffs his fingers turned blue and became painful.”Over the next ten months Plaintiff went to Saint Vincent’s Hospital and then to UAB for continued treatment of his hand, but due to the injuries inflicted on him by the deputies’ improper use of handcuffs, Plaintiff’s left hand has had to be amputated.
Apart from the obvious senseless permanent injury inflicted on Loyola, the lawsuit also alleges other Fourth Amendment violations, like the illegal seizure of Loyola by the deputy who dragged him out of his house before throwing him to the ground and cuffing him, And there was a supposed "safety sweep" of the house no one was fighting in -- one that happened with all residents outside of the home and (obviously) without a warrant."Don't do the crime." But no crime had occurred until Deputy Godber escalated the situation by reaching across the house's threshold to grab Loyola. Anything that happened past that point was pretty much manufactured by the deputy's deployment of force. The incident report claims Loyola was "drunk and belligerent" but those aren't criminal acts, especially since Loyola was still in his own home -- right up until Deputy Godber dragged him out of it. Calling the violent arrest an "altercation" is just standard exonerative prose -- something seen in pretty much every report covering deployments of excessive force.This call could have been handled without an arrest and without a man losing his hand and his livelihood. But it wasn't because the law enforcement officer on the scene decided it had to go the way it did. At the end of this -- even if Loyola wins in court -- Deputy Godber will still have his job and both of his hands. At worst, he may only be out of a job temporarily. But the punishment inflicted on Loyola by Godber will last a lifetime.

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posted at: 12:00am on 08-Jun-2021
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European Commission Betrays Internet Users By Cravenly Introducing Huge Loophole For Copyright Companies In Upload Filter Guidance

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As a recent Techdirt article noted, the European Commission was obliged to issue "guidance" on how to implement the infamous Article 17 upload filters required by the EU's Copyright Directive. It delayed doing so, evidently hoping that the adviser to the EU's top court, the Court of Justice of the European Union (CJEU), would release his opinion on Poland's attempt to get Article 17 struck down before the European Commission revealed its one-sided advice. That little gambit failed when the Advocate General announced that he would publish his opinion after the deadline for the release of the guidance. The European Commission has finally provided its advisory document on Article 17 and, as expected, it contains a real stinker of an idea. The best analysis of what the Commission has done, and why it is so disgraceful comes from Julia Reda and Paul Keller on the Kluwer Copyright Blog. Although Article 17 effectively made upload filters mandatory, it also included some (weak) protections for users, to allow people to upload copyright material for legal uses such as memes, parody, criticism etc. without being blocked. The copyright industry naturally hates any protections for users, and has persuaded the European Commission to eviscerate them:

According to the final guidance, rightholders can easily circumvent the principle that automatic blocking should be limited to manifestly infringing uses by "earmarking" content the "unauthorised online availability of which could cause significant economic harm to them" when requesting the blocking of those works. Uploads that include protected content thus "earmarked" do not benefit from the ex-ante protections for likely legitimate uses. The guidance does not establish any qualitative or quantitative requirements for rightholders to earmark their content. The mechanism is not limited to specific types of works, categories of rightholders, release windows, or any other objective criteria that could limit the application of this loophole.
The requirements that copyright companies must meet are so weak that it is probably inevitable that they will claim most uploads "could cause significant economic harm", and should therefore be earmarked. Here's what happens then: before it can be posted online, every earmarked upload requires a "rapid" human review of whether it is infringing or not. Leaving aside the fact that it is very hard for legal judgements to be both "rapid" and correct, there's also the problem that copyright companies will earmark millions of uploads (just look at DMCA notices), making it infeasible to carry out proper review. But the European Commission also says that if online platforms fail to carry out a human review of everything that is earmarked, and allow some unchecked items to be posted, they will lose their liability protection:
this means that service providers face the risk of losing the liability protections afforded to them by art. 17(4) unless they apply ex-ante human review to all uploads earmarked by rightholders as merely having the potential to "cause significant economic harm". This imposes a heavy burden on platform operators. Under these conditions rational service providers will have to revert to automatically blocking all uploads containing earmarked content at upload. The scenario described in the guidance is therefore identical to an implementation without safeguards: Platforms have no other choice but to block every upload that contains parts of a work that rightholders have told them is highly valuable.
Thus the already unsatisfactory user rights contained in Article 17 are rendered null and void because of the impossibility of following the European Commission's new guidance. That's evidently the result of recent lobbying from the copyright companies, since none of this was present in previous drafts of the guidance. Not content with making obligatory the upload filters that they swore would not be required, copyright maximalists now want to take away what few protections remain for users, thus ensuring that practically all legal uses of copyright material -- including memes -- are likely to be automatically blocked.The Kluwer Copyright blog post points out that this approach was not at all necessary. As Techdirt reported a couple of weeks ago, Germany has managed to come up with an implementation of Article 17 that preserves most user rights, even if it is by no means perfect. The European Commission, by contrast, has cravenly given what the copyright industry has demanded, and effectively stripped out those rights. But this cowardly move may backfire. Reda and Keller explain:
the Commission does not provide any justification or rationale why users' fundamental rights do not apply in situations where rightholders claim that there is the potential for them to suffer significant economic harm. It's hard to imagine that the CJEU will consider that the version of the guidance published today provides meaningful protection for users' rights when it has to determine the compliance of the directive with fundamental rights [in the case brought by Poland]. The Commission appears to be acutely aware of this as well and so it has wisely included the following disclaimer in the introductory section of the guidance (emphasis ours):"The judgment of the Court of Justice of the European Union in the case C-401/192 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment".In the end this may turn out to be the most meaningful sentence in the entire guidance.
It would be a fitting punishment for betraying the 450 million citizens the European Commission is supposed to serve, but rarely does, if this final overreach causes upload filters to be thrown out completely.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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This Week In Techdirt History: May 30th - June 5th

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Five Years AgoThis week in 2016, we were pleased to see a dearth of support for the Burr-Feinstein anti-encryption bill, but not so happy about the 4th circuit rolling back its warrant requirement for cell site location info. We were also watching the fallout from the second ruling in the Oracle/Google trial and digging into just what happened in an episode of our podcast. Meanwhile, an independent musician was suing Justin Bieber and Skrillex over a sample they didn't use, just as two recent rulings from around the world looked like they might clear the copyright barriers to sampling. And one court gave a very bad copyright ruling, saying that remastered old songs can get a brand new copyright.Ten Years AgoThis week in 2011, the copyright nonsense was widespread, with an EMI executive saying people should pay again to stream their own music, and both an industry lawyer and the RIAA talking about the supposed evils of the public domain. The push was on to criminalize more infringement too, with some senators seeking to make embedding videos a felony and the RIAA wanting to do the same for music subscription service password sharing. Amidst all this, we took a deep dive into why the PROTECT IP Act would break the internet.Fifteen Years AgoThis week in 2006, Canada was doling out entertainment industry propaganda to kids in the form of an embarrassing new character called Captian Copyright (who might have himself been engaging in infringement), while the industry was hard at work on the next generation of terrible DVD copy protection. We took a closer look at some easily-misinterpreted statements about net neutrality from the creator of BitTorrent, and at an early example of a still-ongoing tradition: fake public comments about net neutrality. But there was no need to worry about a lack of regulation, because AT&T's chairman promised they would absolutely definitely not violate net neutrality principles.

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posted at: 12:00am on 06-Jun-2021
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Content Moderation Case Study: Roblox Tries To Deal With Adult Content On A Platform Used By Many Kids (2020)

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Summary: Roblox is an incredibly popular online platform for games, especially among younger users. In 2020, it was reported that two-thirds of all US kids between 9 and 12 years old use Roblox, and one-third for all Americans under the age of 16. The games on the platform can be developed by anyone, as Roblox has set up a very easy environment, using the scripting language Lua, so that many of the games themselves are developed by Roblox's young users.Given the target market of Roblox, the company has put in place a fairly robust content moderation program designed to stop content that the company deems inappropriate. This includes all kinds of profanity and inappropriate language, as well as any talk of dating, let alone sexual innuendo. The company also does not allow users to share personal identifiable information.The content moderation extends not just to players on the Roblox platform, but to the many game developers that create and release games on Roblox as well. Roblox apparently uses AI moderation from a company called Community Sift as well as human moderators from iEnergizer. Recent reports say that Roblox has a team of 2,300 content moderators.Given the competing interests and incentives, there are both widespread reports of adult content being easily available (including to children) as well as developers complaining about having their content, projects, and accounts shut down over perfectly reasonable content, leading to widespread complaints that the moderation system is completely arbitrary.

Roblox is then left trying to figure out how to better deal with such adult content while simultaneously not upsetting its developers, or angering parents who don't want their children exposed to adult content while playing games.Decisions to be made by Roblox:
  • How do you monitor so much content to make sure that adult content does not get through? How do you make sure that kids are not exposed to adult content?
  • If the moderation systems are too aggressive, will that drive developers (and possibly some users) away?
  • Should all games go through a human review process before they can be offered through Roblox?
  • Are there better ways to communicate how and why content is moderated?
Questions and policy implications to consider:
  • Which is a more important constituency: the kids/families using Roblox or the developers who produce content for it? Is being aggressive in content moderation about finding a balance between those two groups?
  • Is it worth overbanning if it means families feel safer using Roblox?
Resolution: Roblox has continued to evolve and try to improve its content moderation practices. As this case study was being written, the company announced plans to start a content rating system for games, to better inform parents which games may be more appropriate (or inappropriate) for children. However, the company has been promising to improve its efforts to stop adult content from reaching children for many years -- and every few months more reports pour in. At the same time, developers who feel that their content has been blocked for no clear reason continue to take to forums to complain about the lack of clarity and transparency regarding the moderation system.Originally published on the Trust & Safety Foundation website.

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Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

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Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch'scounterarguments have merit. That its lawsuit seeks only thedisclosure of public records, rather than to establish criminalor civil liability, does not render the Speech or Debate Clauseinapplicable. Appellant Br. 10. To the contrary, JudicialWatch is no more entitled to compel . . . production ofdocuments . . . than it is to sue congressmen. Brown &Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C.Cir. 1995). To the extent Judicial Watch maintains thatlegislative independence is not at issue in this case becauseit seeks public records that are not confidential in nature, itmisunderstands the immunity afforded by the Speech or DebateClause. Appellant Br. 10-11. Notwithstanding the records'confidentiality, legislative independence is imperiled when acivil action . . . creates a distraction and forces [congressmen]to divert their time, energy, and attention from their legislativetasks to defend the litigation. Eastland, 421 U.S. at 503; seeBrown & Williamson Tobacco Corp., 62 F.3d at 415.
The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.
Today, the court has no occasion to decide whether theSpeech or Debate Clause bars disclosure of public recordssubject to the common-law right of access in all circumstances.Nor need it consider whether and how the application of theClause relates to the two-step inquiry to determine whether thecommon-law right of access applies. See Washington LegalFound. v. U.S. Sent'g Comm'n, 17 F.3d 1446, 1451 (D.C. Cir.1994). The parties did not raise, and our precedent does notaddress those issues.
However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:
I agree with my colleagues that, under our precedent, theSpeech or Debate Clause of the United States Constitution barsJudicial Watch's lawsuit. But I join in the judgment only; Ibelieve, in the right case, the application of the Speech orDebate Clause to a common law right of access claim wouldrequire careful balancing....
She then more or less begs for a test case on this question:
We have never considered the Speech or Debate Clause'sapplication to a common law right of access claim and theparties simply cite a single district court case where the twodoctrines were raised, Pentagen Technologies International v.Committee on Appropriations of the United States House ofRepresentatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff'd, 194F.3d 174 (D.C. Cir. 1999) (unpublished table decision).2 InPentagen Technologies, the plaintiffs brought a common lawright of access claim against the Committee on Appropriationsof the United States House of Representatives, seeking toreview and copy a series of investigative reports that were notreleased to the public. 20 F. Supp. 2d at 42. The Committee onAppropriations asserted the reports were protected fromdisclosure by the Speech or Debate Clause. Id. at 43. Althoughthe district court conclude[d] that investigative reports [were]protected from compulsory disclosure by the Speech or DebateClause, it reached that conclusion only after determining thatthe investigative reports were not 'public records' as definedby WLF II and that [t]here thus exist[ed] no common lawright of access to the reports. Id. at 45. If the Speech or DebateClause in fact provided absolute protection from disclosureincluding protection from a common law right of accessclaimthe district court's public records analysis wouldhave been unnecessary.
And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.So... that's interesting.As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:
Judge Henderson explained that if a sought document is a public record, the government's interest in keeping the document secret should be balanced against the public's interest in disclosure. Judicial Watch at *11. A public record, she notes, is a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived. Id., quoting WLF-II, 89 F.3d at 905.The Torture Report is a public record under this longstanding framework and today's decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.
This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.When asked about this new public access request, McClanahan told me:
Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.
I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

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Man Sues After Field Drug Test Says His Daughter's Ashes Are Meth And Ecstasy

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Cops like cheap field drug tests. They don't like them because they're accurate. They like them because they're cheap. And since you get what you pay for, they're way cheaper (in the long run) then sending for a drug dog.Field drug tests are probable cause at $2 a pop. They're even more unreliable than drug dogs when it comes to correctly identifying drugs. That's why some prosecutors -- the nominal best friends of law enforcement -- are refusing to accept plea deals for drug charges stemming solely from field drug tests.Field drug tests have said donut crumbs, cotton candy, and honey are methamphetamines. They've said bird poop on a car's hood (!!) and bog standard aspirin are cocaine. Whatever a cop imagines to be drugs can usually be "confirmed" by the test kits they carry with them. Once the vial says it's drugs, the cops are free to search, seize, and arrest.Cops don't need to be this wrong about drugs. But there's no penalty for being this wrong. So, it continues. Prosecutors may have to drop a few cases when the drug lab says the supposed drugs aren't actual drugs, but plea deals tend to go into place before labs get around to testing the evidence. And that's if the evidence even makes its way to a lab. Cops aren't the best at paperwork, which is convenient when it's their word against yours. Even if a cop gets sued for turning non-contraband into contraband and drug charges, they're usually indemnified by the city they work for or granted qualified immunity for relying on what they thought was actual science.And, because no one seems too interested in ending the reliance on unreliable drug tests, this is the sort of travesty we've come to expect.

Newschannel 20 and FOX Illinois obtained new body camera video of the incident sparking Dartavius Barnes to sue the City of Springfield.In the suit, Barnes claims his vehicle was unlawfully searched on April 6, 2020 when he was pulled over near Laurel and 16th Streets in Springfield.He says officers placed him in handcuffs while they searched his vehicle without consent, valid warrant, or probable cause.During the search, Barnes says officers took a sealed urn of his daughter's ashes, unsealed it, opened it without consent, and spilled out the ashes.
If you think that's terrible, just wait for the backstory. Barnes' daughter Ta'Naja Jones was only two when she died. And she may have been killed. The girl's mother and her current boyfriend were both arrested on murder charges.The ultimate insult to Ta'Naja Jones and her father happened here. Ta'Naja Jones' final resting place wasn't in the urn Barnes kept in his car. It was in a field drug test that officers performed because they just couldn't bring themselves to believe it might be the last remains of a loved one.According to law enforcement's favorite faulty test equipment, the ashes of Ta'Naja Jones were possibly ecstasy. And that conclusion was reached after the ashes failed to test positive for cocaine.
An officer presented the officer whose body camera was rolling with a narcotics test kit."I checked for cocaine, but it looks like it's probably molly," the officer said."X pills," the other added, citing the street name for ecstasy.
In the end, the cops decided the ashes were a combination of meth and ecstasy because that's how drug users carry their drugs: all mixed together in a single container. What even the fuck.Field drug tests allow cops to work backwards from their conclusions. If it doesn't test positive for one drug, it's probably some other drug. And if it doesn't test positive for anything, it might still be drugs because sometimes drugs are carried in containers. "Based on training and experience" and all of that horseshit. The stuff that says criminals sometimes act like normal non-criminals. And if criminals act like non-criminals on a regular basis, every non-criminal is guilty until proven otherwise.Barnes has sued [PDF]. It's a short lawsuit and it looks like it will be an uphill battle to win. Barnes admitted to having marijuana in the car and apparently consented to a search. The end result was this horrendous violation of his daughter's remains, but everything up to that point was "reasonable" enough (utilizing the courts' definition of this word rather than the definition citizens use) that it will be hard to prove the officers crossed Constitutional boundaries.The problem here is the field drug tests and the officers believing they can actually positively identify drugs with them. They were "reasonable" to rely on the drug test results because everyone who benefits from the use of faulty tests told them the tests were reliable, even when they're obviously not. If a child's ashes are not just one, but two different illegal substances, anything can be anything whenever a cop wants it to be something.

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posted at: 12:00am on 04-Jun-2021
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Twitch Manages To Get Out Some 'Disappointment' With Music Industry Over Latest Round Of DMCA Claims

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The saga that has been Twitch's last six or so months is long and somewhat varied, so you should go read up on our historical coverage if you're not familiar with it, but we need to at least preface this post with the origins of how Twitch's bad time began. What has been a tumultuous several months began when it absolutely freaked out over a flood of DMCA takedown notices it received, mostly from the music industry. In response to that, and without warning to its creative community, Twitch nuked a bunch of content from the platform, mostly ignored the outcry from its creators, and did very little to put anything in place that would keep such a disastrous situation from happening again.So of course it happened again. Twitch recently sent out an email that it had received roughly 1,000 additional DMCA takedown notices, almost all of them again over music playing in the background of recorded Twitch videos.

Said Twitch in its email on Friday: “We are committed to being more transparent with you about DMCA. We recently received a batch of DMCA take down notifications with about 1,000 individual claims from music publishers.“All of the claims are for the VODs and the vast majority target streamers listening to background music while playing video games or IRL streaming. Based on the number of claims we believe these rights holders used automated tools to scan and identify copyrighted music in creators VODs and clips, which means that they will likely send further notices."
Of course they will. Twitch invited them to when it showed itself to be a willing partner in treating Twitch creators like a testing ground for DMCA cluster bombs. There are platforms out there that manage to both treat DMCA requests seriously and also provide some protection, or at least communication, to its users. A few tools for creators aside, Twitch's inaction on behalf of its creative community amounted essentially to greenlighting ever more DMCA takedowns from the music industry. Any surprise at that by the Amazon-owned company is laughable.But this neutered, throwaway line from that same email is simply maddening.
“This is our first such contact from the music publishing industry (there can be several owners for a single piece of music) and we are disappointed that they decided to send takedowns when we were willing and ready to speak to them about solutions.”
As the old saying goes, be disappointed at the music industry's aggressive copyright enforcement in one hand and spit in the other and see which fills up faster. There is no substance to this disappointment. Of course the music industry has gone kazoo filing DMCA notices at Twitch. Twitch has made it clear its on their side, even making it easier than before to file these notices.The real disappointment here is that Twitch, and by extension Amazon, has so wildly left its creative community out to dry when it comes to copyright enforcement and DMCA takedowns. It's simply not doing enough.

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posted at: 12:00am on 04-Jun-2021
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A Conversation About Video Game Preservation In The Gaming Industry Is Long, Long Overdue

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There has been quite an uptick recently when it comes to the conversation around video game preservation. There are probably several reasons for this. First and most notably, the confluence of the trend toward the gaming public primarily purchasing digital games rather than shiny disks, and the emergence of the latest generation of video game consoles has brought the question of what happens to older games into stark relief for many in the gaming public. Second, America has been in something of a love affair over the last decade or so with all things "retro". And, finally, the concept of video games as works of creative art, rather than wastes of time to be sneered at, has found firm purchase within our society. All of this has combined to make the public much, much more interested in preserving antiquated video games. And, frankly, very disappointed at how often the gaming industry doesn't take preservation at all seriously.Well, it's happening again. In the near future, Electronic Arts will be shutting down the servers and online portions of several Need For Speed games.

Today, via Reddit (while most the English-speaking world is on a holiday), it’s been announced that Need For Speed: Carbon, Need For Speed: Undercover, Need For Speed: Shift, Shift 2: Unleashed and Need For Speed: The Run will be “retired”. Which I suppose is an apposite word, given they’ll be limping off the tracks as they leave digital storefronts today, and their servers switched off come the end of August.The reasons given are the usual: that maintaining servers for the few remaining players is prohibitively expensive, and hey, look, they’ve released loads of (astoundingly poor) NFS games since then, so you could buy those instead!
Note a couple of things on this. While the offline portions of the games will still be playable for those who have already purchased them, new buyers will no longer have a place to legitimately buy them. Also, while there is a single player component, a big draw of the games was and continues to be the ability to race against friends online. Finally, note that this announcement comes with absolutely no plan to make the game or online play available in any other way.Which is where the preservation conversation comes in. Once again, we have a game publisher that enjoys full rights controls over its property choosing to simply deprive the public of some or all of that property. A more perfect antithesis of the concepts of the public domain and copyright law generally probably can't be found. While EA explained away its decision to "retire" these games as the expense that comes along with maintaining servers and backend infrastructure for relatively fewer players -- along with a suggestion that disappointed gamers simply by new games in the Need For Speed series -- it's not like there aren't steps it could take to play nicely with its fans if it wanted to.
It’s always this way. “Shrug! What else could we do?!” Well, here are some other things they could do:They could release the source code for the 10-15 year old games, and allow others to continue their development in the public domain. They could release the server code for the games, to allow enthusiasts to continue to host the few dedicated players remaining. They could offer to upgrade players to one of the many NFS games of the 2010s (although this may be crueller than just nothing at all). They could recognise that last year EA made a revenue of $5.5bn, and it’s likely they could just about afford to leave the servers on with minimal maintenance, without taking too big of a hitDelisting them from stores just seems... petty! Sure, they don’t offer all the available features when the servers are off, but come on. Quarter the prices—hell, be decent enough to make them free—and let people buy them as single-player artefacts of the past.
In other words, either preserve the games for fans yourselves, EA, or let the fans do it for you. Either option is viable. But simply switching off the servers and making the games no longer available for purchase at any price is probably not so much a petty thing to do as it is a callous thing to do.And when a company starts acting callous towards its dedicated fans, well, that's not a good plan for building either goodwill or more buying fans.

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posted at: 12:00am on 03-Jun-2021
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Content Moderation Case Study: Twitter Suspends Users Who Tweet The Word 'Memphis' (2021)

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Summary: Twitter users who made the mistake of tweeting out an innocuous word -- 'Memphis -- found themselves suspended from the service for 12 hours for apparently violating the terms of use.According to messages sent to suspended users, the use of the Tennessee city name violated prohibitions on posting personal information.

The inadvertent damage quickly spread across Twitter as users trolled each other, trying to get unsuspecting accounts to tweet the suddenly-forbidden word. The apparent flaw in the auto-moderation system went unaddressed for several hours as more and more users found themselves temporarily prevented from using the service. Although some users noticed certain accounts (mainly verified ones) weren't being hit with bans, it affected enough users that the ripple effect was not only noticeable, but covered by many mainstream media outlets.The bans were lifted several hours later with no explanation from Twitter other than that an unspecified "bug" had resulted in tweets containing the word "Memphis" being removed and features limited for those accounts.That explanation was not entirely clear. Given the "Memphis" bug's link to alleged violations of Twitter's policies against posting other people's personal information, it was speculated the ban on a single city name may have been the result of an erroneously-completed form on the moderation side. Systems security professional SwiftOnSecurity took a plausible stab at the possible root cause of this improbable series of moderation events.
What's possible is a Twitter staffer tried to block a street address, but the postal syntax acted as an escape sequence, or the original was multi-line and they only pasted the city.
If so, every use of the word "Memphis" was considered to be a post containing a full address Twitter had targeted for removal under its personal information policy.Decisions to be made by Twitter:
  • Should moderation of the posting of personal information be handled with automation, given the potential for errors to scale and compound?
  • Should a better stop-gap process be put in place to head off future events like these?
  • Should users be given better explanations when moderation-at-scale results in features being limited for users affected by moderation bugs? 
Questions and policy implications to consider:
  • Should a stop-gap measure be put in place to prevent errors like this from becoming multi-hour failures?
  • Have Twitter's moderation efforts resulted in a noticeable limitation of the spread of personal info? 
  • Is all publication of personal information considered a violation of policy? Or are exceptions in place for information considered to be of public interest?
Resolution: Twitter restored accounts and tweets targeted by its "Memphis" bug within hours of its emergence. However, the company's moderation team has yet to explain exactly went wrong or what Twitter has done to prevent its recurrence.Originally posted to the Trust & Safety Foundation website.

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Are Partial Liability Rules The Path Forward For Intermediary Liability Regimes? Lessons Learned From Brazil

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The past year saw theInternet become a lifeline during the COVID-19 pandemic. But 2020also saw increased scrutiny of online content moderation, regulationof platforms and their effects on society. While recent headlineshave focused heavily on social media platforms, the conversation ismuch more complex: the future of the Internet as we know it dependson discussions and policies regarding intermediary liability -- thelegal rule that platforms should not be liable for the content postedby their users.Section 230 reform inthe U.S. and the proposed DSA and DMA in the European Union aredriving a new era of intermediary liability rule-making, and othercountries have followed suit: India recently updated guidelinesapplicable to intermediaries, and Mexico is discussing how to ensurefreedom of expression in social media platforms. Instead of lettingthe U.S. and Europe influence these debates, governments around theworld can learn important lessons from Brazil.With approximately 145million Internet users, Brazil has a large and growing digitaleconomy. There are around 10,000 ISPs operating in the country,broadband Internet is available to almost 90% of the population, andthe country's Internet Exchange Point, IX.br, is one of thelargest in the world. Brazil also has a strong tradition of Internetgovernance and policy. Since 1995, the country's"Multistakeholder Internet Steering Committee" (CGI.br)has provided technology and policy recommendations to stakeholdergroups to leverage the full potential of the Internet. In 2014, thecountry adopted an "Internet Bill of Rights,"which establishes rights and duties of individual and corporateusers, businesses and the government.Brazil has long been apioneer in sound Internet policies and regulation and holds one ofthe most influential laws regarding intermediary liability not onlyin Latin America, but the world. The Brazilian "Marco Civil daInternet", or Civil Rights Framework for the Internet, which wasapproved in 2014, introduced an intermediary liability regime builtupon almost two decades of practice and jurisprudence in the U.S.around CDA'sSection 230.However, Brazil decidedto deviate from the path enshrined in the 1996 U.S. legal order. TheMarco Civil law grants full immunity from liability to Internetaccess providers and clearly indicates that Internet infrastructureshould not be affected by issues pertaining to the upper layers(i.e., applications layer) of the network. This law adopts arestricted and residual approach: Internet application providers areonly held liable for third-party content in instances where they failto comply with specific judicial orders to render certain contentunavailable. As a general rule, private notice and take downnotifications are not accepted as a means to trigger the liabilitysystem comprised in the Marco Civil. The rule however does not applyto non-consensual dissemination of intimate images and mattersaffecting intellectual property - the latter being subject to aspecialized regime.Perhaps the mostimportant difference between Marco Civil and Section 230 is thatBrazil has deliberately decided not to copy the "Good Samaritan"clause, meaning that the 'protection' provided by theMarco Civil in Article 19 does not grant any immunity to contentmoderation practices adopted by Internet application providers.While the U.S. systemencompasses ante-hoc immunity for liability from third-party contentand also for a company's own good-faith behavior vis--vis itsusers, the Brazilian system covers only third-party content. InBrazil, there is no ante-hoc immunity whatsoever for harms caused bythe decisions and measures taken by Internet application providers.For instance, Google was recently forced to pay compensation for"authenticante-hoc censorship" when it applied its termsof service to remove videos from a Civil Society organization'sYouTube channel. What in the U.S. would be solved by the applicationof the "Good Samaritan" clause, in Brazil had a differentoutcome.Why should we careabout Brazil's Marco Civil and why now? Around 90% of Internetusers are outside the U.S. and the narrow application of the Section230, as well as the full immunities it grants, might no longer workto guide Internet policy development elsewhere (especiallyconsidering the complex and diverse discussions related to the scopeof Freedom of Speech). Also, the various proposed reforms to Section230 in the U.S. have spilled over to other countries in verydangerous ways, including in Brazil. In their fight against Big Tech,some politicians in Brazil -emulating the behavior of US politicians-have proposed to suppress immunities that do not really exist in ourlegal order (as our overarching liability regime already coversissues such as the wrongful suppression of content by applicationproviders). So, in addition to being a waste of time, these attemptsare counterproductive as the country could take steps backward inInternet policy and regulation. .The partialintermediary liability adopted by the Brazilian Marco Civil createdobstacles for extrajudicial requests for content removal thatthroughout the 2000s helped foster legal uncertainty and very littletransparency and accountability from platforms. By granting Internetapplications with immunity solely for third-party behavior andcontent (and not for their own behavior and practices), Marco Civilcontributed to increased legal predictability and fostered innovationin Brazil, as shown in by astudy commissioned by the Internet Society.The current landscapeof platform and intermediary liability rulemaking marks an ethoschange from previous decades. In the past, it was imperative toavoid regulating or harming the Internet through overregulation.Today regulation is no longer a taboo. However, regulation must bewise, principled-based and aimed at the correct target in the complexdigital ecosystem.Regulatorsmust resist adopting policies thatpenalize the behavior of social media platforms asthey ultimately punish all users whopost content on these platforms.Rules aimed at social media platforms will end up impactingother types of applications for the mere fact that they operate onthe same layer of the Internet. Any regulation that forces Internetinfrastructure providers to enter the business of content moderationwould be dangerous. The consequences for freedom of expression,innovation and a dynamic digital economy would be significant.How governments decideto address intermediary liability in the near future is critical forusers and for the Internet. We face a critical juncture where we caneither get this right or get it wrong. Learningfrom Brazil's Marco Civil law is a step in the right direction.Bruna Martins dosSantos is Advocacy Coordinatorfor DataPrivacy Brazil Research and DiegoCanabarro is Senior Policy Manager for the InternetSociety.

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posted at: 12:00am on 02-Jun-2021
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Amazon's Idea For A Mesh Network Is Cool; It's Method Of Rolling It Out Is Not

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Over the weekend there was a bit of a reasonable fuss raised after Ars Technica noted that all of the various Amazon connected devices (including Alexa, Echo, Ring, etc.) would become part of a mesh network called Amazon Sidewalk, in which the devices would be sharing a tiny tiny bit of bandwidth across the network of devices. The idea behind the mesh network is kind of cool, and there are some clear benefits to using it.But, of course, this is Amazon we're talking about -- a giant company, and the method of rolling this out seems to have caught a ton of people by surprise: namely opting everyone into the program with a short timeline to opt-out. That seems less than ideal. Lots of privacy folks are concerned, in general, with two aspects of this: the fact that people may be suddenly sharing data with their neighbors without necessarily realizing it, and the tie-in to Amazon, which is (again) a large company that tends to collect quite a bit of data on people. To its credit, Amazon released a pretty comprehensive whitepaper exploring the privacy and security protections they've built in to Sidewalk, and my guess is that for many consumers the benefits of easier setup and better connectivity via Sidewalk will seem worth it to them.The real issue, then, is forcing everyone into the network. Obviously, it's no surprise why this was done. A mesh network really only works if you have enough nodes on the network to make it useful. So it makes sense that Amazon would want as many of the devices to be on the network on day one as possible. However, given the company and the public scrutiny it has received of late, it seems like it should have anticipated these concerns a lot more, pushed for an opt-in setup (perhaps with incentives), rather than jumping to the "hey, we're adding this automatically" approach.While it's possible that Amazon is betting that the concerns over this will blow over, and having so many nodes on the network will make it worthwhile to take the short-term heat, it still surprises me that the big internet companies don't take more steps to alleviate these kinds of concerns up front, including taking a more cautious approach. But, perhaps that's why I don't run a giant internet company.

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posted at: 12:00am on 02-Jun-2021
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