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DC Court Dumps Police Union's Attempt To Block Release Of Recordings, Officers' Names Following Police Shootings

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Last year, a number of police reforms were passed by the city of Washington, DC. These efforts angered the Fraternal Order of Police -- which represents a number of DC Metro police officers -- enough for it to sue. It sued over two reforms in particular: the release of police recordings (body cam or otherwise) and the names of officers involved in shootings of residents.The FOP insisted this was a bad idea. According to the union, releasing this information would place officers in danger. The FOP speculated making officers' names public would subject them to humiliation, possible armed retribution by city residents, and make it ever so slightly more difficult for them to be employed by other law enforcement agencies.It also suggested releasing footage would violate the privacy rights of citizens, including victims and witnesses at the scene. And it insisted the entire thing reeked of due process violations, since there was a chance (probably a pretty good one) that officers would be cleared of any wrongdoing.Well, the court has rejected all of the FOP's arguments and Metro PD officers are going to have to get used to the new level of transparency that now surrounds their use of deadly force. The court likes exactly zero of the FOP's arguments. First, the court [PDF] points out the police union has no standing to bring this suit, no matter which version of standing it attempts to use.Speculating that the FOP will be involved in more defense of officers accused of wrongdoing following use-of-force incidents isn't an injury the court's willing to recognize. (And it's unclear how releasing footage and names would result in more litigation or internal investigations.)

Simply stating that more resources will be expended is insufficient because the passing of the Temporary Act did not prevent the plaintiffs from performing tasks or actions that they previously could prior the Temporary Act.[...]Further, plaintiff’s alleged future injuries are too speculative to establish organizational standing. The plaintiff alleges that it will have to expended resources to challenge improper transfers of Detectives, but as the defendants pointed out, such an allegation is based a series of potential future events. It is not concrete or imminent injury when the allegations involve a chain of events that essentially start from the Mayor’s release of the footage, to less witnesses willing to testify, to a more difficult investigation, to a lower closure rate, to potential transfers or disciplinary action, and then to plaintiff’s decision whether to represent the officer, assuming that the officer is one of plaintiff’s members. [...] Therefore, plaintiff’s pure speculation about potential future harm is insufficient to establish organizational standing.
The court says the FOP also can't sue because it feels release of footage will infringe on the privacy rights of residents who aren't cops.
In the Complaint, the plaintiff alleges that the Temporary Act will infringe on the rights of citizens of the District, such as infringing on their privacy rights. However, it is unclear how the plaintiff can establish a close relationship with every member of the general public who are not members of the plaintiff’s organization. Furthermore, there is no allegation of any “hindrance” to the ability of the public to protect their own interests.
There's no associational standing either.
In the Amended Complaint, the plaintiff alleges that the release of the camera footage and names of officers will result in “unjust reputational harm, result in “immediate risk of a significant bodily harm,” and lead to “psychological trauma” to an officer and his/her family. However, these allegations are purely speculation and conclusory allegations that the Court has no obligation to accept under the relevant standards. The pure possibility that something might happen does not constitute an injury.
In addition, there's nothing connecting this speculation to the actions of the city government, which passed the order governing the release of footage and names.
Further, the Amended Complaint also fails to allege how any alleged injuries can be “fairly traceable” to the defendant’s actions. The defendants are not in control of public opinion and cannot be held responsible if a citizen or citizens criticizes or condemns an officer’s use of force in a particular incident.
The court saves the best for last in this dismissal. It dispenses with the union's due process violation allegations by pointing out there's no difference between the officers' body cameras and cameras operated by citizens. You can't say one is protected speech but the other somehow violates the privacy rights of police officers.
In Count II, the plaintiffs contend that Subtitle B of the Temporary Act “violates the fundamental right to privacy held by D.C. Police Union members.” Specifically, the immediate public release of names of officers and body-worn camera footage “will allow criminal suspects and their associates to identify the officer and potentially seek retribution.” First and foremost, there is “no authority that the Constitution imposes on the government an affirmative duty—untethered to specific constitutional provisions such as the First Amendment—to ‘safeguard personal information’ from the criminal acts of third parties.”Importantly, as the defendants mentioned, MPD policy explicitly states that members of the general public have a First Amendment right to record MPD members during official business, unless they interfere with police activity. See MPD General Order 304-19 at § 1. If the public is legally able to record officers during official business, it is unclear how any reasonable officer can assume that they have the right to privacy when conducting said official business.
The lawsuit is dismissed. Presumably this will be appealed, but even when given two chances to fill a lawsuit with actionable claims and firmly establish standing, the FOP failed. Once this is appealed, it's stuck with the arguments that have already failed once. It should probably save its time and money for future Hail Mary litigation in the event of impending release of footage and names.


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posted at: 12:00am on 31-Jul-2021
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Stop The Antitrust Gerrymandering

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The social media app TikTok was reported to have passed more than 3 billion total downloads in July and was the most downloaded app in the first half of the year. This growth is impressive as it not only was banned in India but is the first app not owned by Facebook to pass 3 billion downloads. Yet in the recent antitrust cases from the Federal Trade Commission (FTC) and the states attorneys general against Facebook, there is little mention of the popular app.This omission is reminiscent of politicians gerrymandering or drawing political lines to benefit their parties' candidates in re-election. Attorneys general and federal agencies have also relied on excluding competitors or narrowly defining markets to make their cases against Google and Facebook.The FTC led lawsuit against Facebook provides a case in point. The lawsuit accuses Facebook of having a monopoly over personal networking services. The FTC argues that products like LinkedIn or Twitter are different from Facebook and shouldn't be considered as a personal networking service. TikTok with its 3 billion downloads fails to warrant a mention.Even with these exclusions, the FTC contends that Facebook only controls approximately 60 percent of the market yet omits whatever company or companies control the other 40 percent. Unsurprisingly the judge was unconvinced of the claim that Facebook controlled 60 percent of the market and gave the FTC 30 days to amend the complaint to show their work.As other cases against Google move through the process, they will likely face the same struggles at convincing judges due to their gerrymandering. The most recent case filed against Google for allegedly holding a monopoly on app stores in the Android mobile operating system is another example.The lawsuit immediately fails to pass any logical test since Android is not the only, let alone the dominant, mobile platform in the United States. Apple's iOS has the majority of users in America and is facing its own antitrust lawsuit from Epic games over its supposed app store monopoly. The states try to get around this by claiming the market is specifically "licensable" operating systems, which excludes iOS, but that only highlights how this is gerrymandering the definition to get to a desired outcome.Even ignoring Apple, the Android system is extremely open allowing users to download a variety of app stores and even allowing for sideloading or downloading apps directly from the developers without need of an app store. The Freedom Phone which uses the Android operating system and purports to protect users from big tech comes preloaded with its own app store for example.The problem with these narrow definitions is that it asks judges to ignore the world in which we actually live for ones constructed for the purpose of showing targeted tech companies are monopolies.Other lawsuits contend that Google holds a monopoly over search when Bing and DuckDuckGo are easily accessible to anyone with an internet connection at no cost. Or that Google faces stiff competition from Facebook, Amazon, and a host of other companies to say nothing of more traditional advertisements.Like political gerrymandering, elected officials filing these cases seem to believe there is political gain for being tough on big tech. But as with poorly drawn political maps, judges are proving more skeptical. Judges play an important role in protecting a fair in neutral system from political pressure. This is true for both elections and antitrust.Eric Peterson is the Director if the Pelican Institute for Technology and Innovation. He currently lives in New Orleans

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posted at: 12:00am on 31-Jul-2021
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Germany's Constitutional Court Ponders Whether Government Users Of Zero-Day Surveillance Malware Have A Duty To Tell Software Developers About The Flaws

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As Techdirt has reported previously, the use of malware to spy on suspects -- or even innocent citizens -- has long been regarded as legitimate by the German authorities. The recent leak of thousands of telephone numbers that may or may not be victims of the Pegasus spyware has suddenly brought this surveillance technique out of the shadows and into the limelight. People are finally starting to ask questions about the legitimacy of this approach when used by governments, given how easily the software can be -- and apparently has been -- abused. An interesting decision from Germany's constitutional court shows that even one of the biggest fans of legal malware is trying to work out how such programs based on zero-days can be deployed in a way that's compatible with fundamental rights. The court's press release explains:

The complainants [to the constitutional court] essentially assert that, by enacting the authorisation laid down in [the German Police Act], the Land Baden-Württemberg violated the guarantee of the confidentiality and integrity of information technology systems -- a guarantee arising from fundamental rights -- because under that provision, the authorities have no interest in notifying developers of any vulnerabilities that come to their attention since they can exploit these vulnerabilities to infiltrate IT systems for the purpose of source telecommunications surveillance, which is permitted under [the German Police Act]. Yet if the developers are not notified, these vulnerabilities and the associated dangers -- in particular the danger of third-party attacks on IT systems -- will continue to exist.
That is, the failure to notify developers about the vulnerabilities means the authorities are putting IT systems in Germany at risk, and should therefore be stopped. The complainants went on to argue that if the court nonetheless ruled that the use of such malware was not considered "inherently incompatible with the state's duty of protection", at the very least administrative procedures should be be established for evaluating the seriousness of the threat that leaving them unpatched would represent, and then deciding on a case-by-case basis whether the relevant developers should be notified.The German constitutional court dismissed the complaint, but on largely technical grounds. The judgment said that the complainants did not have standing, because they had failed to substantiate a breach of the government's duty of protection. Moreover, the top court said the question should first be considered exhaustively by the lower courts, before finally moving to the constitutional court if necessary. However, the judges did recognize that there was a tension between a desire to use zero-days to carry out surveillance, and the German government's duty to protect the country and its computer systems:
In the present case, the duty of protection encompasses the obligation for the legislator to set out how the police are to handle such IT security vulnerabilities. Under constitutional law, it is not inherently impermissible from the outset for source surveillance to be performed by exploiting unknown security vulnerabilities, although stricter requirements for the justification of such surveillance apply due to the dangers posed to the security of IT systems. Furthermore, fundamental rights do not give rise to a claim that authorities must notify developers about any IT security vulnerabilities immediately and in all circumstances. However, the duty of protection does necessitate a legal framework that governs how -- in a manner compatible with fundamental rights -- an authority is to resolve the conflicting aims of protecting IT systems against third-party attacks that exploit unknown IT security vulnerabilities on the one hand, and on the other hand keeping such vulnerabilities open so that source surveillance can be carried out for the purpose of maintaining public security.
It's not clear whether that call for a legal framework to regulate how the authorities can deploy malware, and when they must alert developers to the flaw it exploits, will be heeded any time soon in Germany. But in the light of the Pegasus leak, it seems likely that other countries around the world will start to ponder this same issue. That's particularly the case since such malware is arguably the only way that the authorities can reliably circumvent encrypted communications without mandating the flawed and unworkable backdoors they have been calling for. If more countries decide to follow Germany in deploying these programs, the need for a legal framework to regulate their use will become even more pressing.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 30-Jul-2021
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Detroit Skating Rink Horns In On Detroit PD's Facial Recognition Gaffe Racket, Denies Teen Girl Opportunity To Skate

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It looks like Detroit, Michigan is trying to corner the market on bad facial recognition tech. The city's police department is already associated with two false arrests based on bad matches by facial recognition software. This latest news, via Techdirt reader Jeffrey Nonken, shows mismatches aren't just limited to the public sector.

A Black teenager in the US was barred from entering a roller rink after a facial-recognition system wrongly identified her as a person who had been previously banned for starting a fight there.Lamya Robinson, 14, had been dropped off by her parents at Riverside Arena, an indoor rollerskating space in Livonia, Michigan, at the weekend to spend time with her pals. Facial-recognition cameras installed inside the premises matched her face to a photo of somebody else apparently barred following a skirmish with other skaters.
The teen told staff it couldn't possibly be her since she had never visited the venue before. But it didn't matter to the management of the rink, which is located in a Detroit suburb. She was asked to leave and now her parents are considering suing the rink over the false positive. Fortunately, no one at the rink felt compelled to call the police, which likely wouldn't have helped anything considering local law enforcement's track record with faulty facial recognition search results.As for Riverside Arena, it's apologetic but not exactly helpful. Management claims deploying facial recognition tech on patrons is part of the "usual" entry process. It also unexplained that it's "hard to look into things when the system is running," which I suppose means that's why no one could double-check the match while Robinson was still there contesting the search results.Being wrong some of the time is also good enough for non-government work, apparently.
"The software had her daughter at a 97 percent match. This is what we looked at, not the thumbnail photos Ms. Robinson took a picture of, if there was a mistake, we apologize for that."
Obviously, there was a mistake. So, this should have just been an apology, not a half-hearted offer of an apology if, at some point in the future, someone other than the people directly affected by this automated decision steps forward to declare the mismatch a mismatch.This is the other side of the facial recognition coin: private sector use. This is bound to result in just as many mismatches as government use does, only with software that's perhaps undergone even less vetting and without any direct oversight outside of company management. False positives will continue to be a problem. How expensive a problem remains to be seen, but since private companies are free to choose who gets to use their services, lawsuits probably won't be much of a deterrent to deploying and using unvetted software that will keep the wrong people out and, perhaps more disturbingly, let the wrong people in.

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posted at: 12:00am on 30-Jul-2021
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Senator Kennedy Continues To Push My Buttons With His Ridiculously Dumb 'Don't Push My Buttons' Act

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Last fall, Senator John Kennedy of Louisiana (a supposedly smart Senator who seems to have decided his political future lies in acting dumber than 95% of all other Senators) introduced an anti-Section 230 bill. He's now done so again in the new Congressional session. The bill is, once again, called the "Don't Push My Buttons" Act and introducing such a piece of total garbage legislation a second time does not speak well of Senator Kennedy.The bill is pretty short. It would create an exception to Section 230 for any website that... uses algorithms to rank content for you based on user data it collects. Basically, it's taking a roundabout way to try to remove Section 230 from Facebook, Twitter, and YouTube. It is not clear why algorithmic ranking has anything to do with Section 230. While social media sites do tend to rely on both, they are separate things. Indeed, part of the reason why social media sites rely on algorithms is because Section 230 helps make sure they can host so much user-generated content, that there needs to be algorithmic rankings to make those sites useable.So, in practice, if this became law, all it would really serve to do is to make social media sites totally unusable. Either, websites would have to stop doing algorithmic ranking of content (which would make the sites unusable for many people) or they'd start massively moderating content to avoid liability -- making sites nearly unusable.And, of course, there's an exemption to this exemption which makes the whole thing useless. The bill will allow algorithms... if the user "knowingly and intentionally elects to receive the content." So, all that will happen is every social media service will show you total garbage with a pop up saying "hey, we can straighten this out for you via our algorithm if you just click here" and everyone will click that button.And that's not even getting into the constitutional problems with this bill. It's literally punishing companies for their editorial (ranking) choices. That's Congress regulating expression. I don't see how this bill would possibly survive 1st Amendment scrutiny. But, of course, it's not designed to survive any scrutiny at all. It's to serve as ever more grandstanding for Senator Kennedy to pretend to be looking out for a base he knows is ignorant beyond belief -- and rather than educating them, he's playing down to them.

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posted at: 12:00am on 29-Jul-2021
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The FTC Is Driving Away Good Economists In Favor Of Political Henchmen

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Shut up and get in line — that's the message Federal Trade Commission Chair Lina Khan recently broadcasted to FTC staffers. Within her first month as a new commissioner, Khan ordered a stop to all public speaking for "an all-hands-on-deck moment." Evidently, she wants the FTC speaking with only one voice — her own. The gag order is going to run out the top economists and harm the FTC's long-term effectiveness.Khan rose to academic stardom at a young age as a vocal critic of Big Tech, especially Amazon. In her most famous writing, Amazon's Antitrust Paradox, she argued for stronger antitrust enforcement even when companies are lowering prices for consumers. Khan's preferred antitrust approach would be a complete overhaul of the current antitrust system and would require a lot of work. However, even if one agrees with Khan that antitrust needs to be rewritten and that this is an all-hands-on-deck moment, Khan's current regime will make that impossible by running out her employees, especially Ph.D. economists.Imagine yourself as a recent Ph.D. in economics from a hotshot university. You're 30 years old, and you just spent 6 years in graduate school, earning $20,000. Before that, you may have spent two years as a research assistant to a professor, earning just as little. You're a top student in your program and have lots of career options in front of you. You could go work at Amazon or Netflix and earn $200,000 a year, base salary. After living on a strict diet of research and Top Ramen in graduate school, that sounds pretty good.Traditionally, federal agencies, like the FTC, compete for the best economists the same way universities compete. They can't match the pay of an Amazon, but they can offer economists a valuable perk: the ability to do research and engage with the scientific community as part of the job.For many economists, who have already demonstrated their passion for research by writing a dissertation and completing a Ph.D., doing research is a huge perk that most private companies don't offer. The FTC knows this. In their own job postings for PhD economists, the FTC explicitly emphasizes their economists' ability to do research. To date, that hiring strategy has worked pretty well for them. Many economists at the FTC are top-notch researchers, with thousands of citations, an impressive feat for a full-time researcher at a university. When the FTC hires new PhDs, they are saying "you can work in public service and still be a successful researcher."Khan's recent policies signal the FTC is now less committed to research and independent thinking. Public academic seminars, where economists present their findings to colleagues throughout the profession, are a key part of the research and publication process. If you cut off economists' ability to present their research and get feedback, you cut off the ability to do research.The real damage will take some time to show itself. Even if the gag order does not run out the current economists, who may be loyal to the FTC after years, the order will still hurt the agency over time. Any successful agency needs to hire quality employees year in and year out. If this policy persists, the FTC will have trouble down the line hiring and retaining high-quality employees, especially economists.Khan might not think she needs these economists right now; after all, she has made clear she opposes the economic approach to antitrust. But when the FTC takes companies to court, as we can expect it will do even more often under Khan, it needs expert witnesses to persuasively argue its case. The private companies pay $1,000 per hour for economists at the top of the profession. The FTC must hire top talent too.If you were against antitrust enforcement and wanted to ruin the FTC from within, Khan's strategy would be nearly perfect. Step 1: Run out all the competent lawyers and rigorous, scientific economists. Step 2: Bring forth a bunch of cases that are poorly argued and lack an economic defense. Step 3: Lose those cases at the current Supreme Court and set a bunch of precedents against the FTC.Brian Albrecht is an assistant professor of economics at Kennesaw State University. He holds a Ph.D. in economics from the University of Minnesota. He is a Young Voices contributor and writes a weekly economics newsletter (pricetheory.substack.com). Follow him on Twitter: @briancalbrecht.

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posted at: 12:00am on 29-Jul-2021
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Supreme Court Asked To Firmly Establish A First Amendment Right To Record Police Officers

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Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police.
But this statute covers false emergency reports, falsely reporting crimes, and lying to officers about who you are when you're arrested. It clearly doesn't cover the conduct shown here. Nevertheless, the lower court used this justification to extend qualified immunity to the officers, despite the fact the officers had received training and notification that there was a presumed right to record police -- something backed up by court precedent around the nation.The Tenth Circuit used the lower court's reasoning to justify its own finding in favor of the officers. And it went on to say that just because a cop has been informed that seizing or preventing recordings violates people's rights, no "reasonable" officer with the same training would assume that meant they couldn't seize people's devices and attempt to delete recordings.
[J]udicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.
Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up. There's not exactly a circuit split to resolve but there's no top-level declaration establishing the right to record public officials. Some circuits have established this bright line but many have not, allowing officers to walk away from lawsuits despite knowing courts tend to find recording officers is covered under the First Amendment. But because there's still a chance a court may find otherwise, officers can claim to be "reasonable" even if the courtroom odds are against them.Frasier's petition [PDF] asks the Supreme Court to settle this question once and for all. (h/t SCOTUSblog)
Whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.
It also asks the court to declare that training officers receive should have bearing on "reasonableness" decisions when qualified immunity is on the line. Given the top court's recent rollback of some of its expansion of qualified immunity, the second question is at least as timely as the first. As the petition points out, the Tenth Circuit ignored precedent and the officers' own training to excuse them from this lawsuit.
Regardless of whether this Court might wish to reconsider qualified immunity as a whole, this case presents a timely opportunity to resolve two divisions of authority and to curb an unjustified distortion of the doctrine. At the time of the remarkable incident in this case, the respondent police officers’ training and departmental policies expressly advised them that the First Amendment protects the right of citizens to record officers performing their duties in public. All four federal court of appeals decisions on the issue said the same thing, consistent with this Court’s precedent. Yet the Tenth Circuit granted the respondents immunity for doing exactly what they had been told was unconstitutional. The Tenth Circuit reasoned (1) that the training and law enforcement policies are “irrelevant” to the qualified-immunity analysis and (2) that existing legal precedent was insufficient on its own to make the right here clearly established.
As Frasier notes, this question should never have been considered by the Tenth Circuit because there was nothing left unanswered according to the officers' own testimony.
The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they “neither knew nor should have known” existed. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality.
Addressing this would resolve the circuit split the Tenth Circuit deepened by deciding officers' training is somehow irrelevant to discussions of "reasonable" officers and their actions.There's no real split when it comes to the right to record police officers, but the Supreme Court itself hasn't handed down precedent that affirms or establishes this right, so officers are free to pretend plenty of other courts haven't reached that conclusion.
When the events here occurred, all four federal courts of appeals to have considered the constitutional issue had held that “there is a First Amendment right to record the police performing their duties in public spaces.” But, citing Wilson, the Tenth Circuit held that respondents were entitled to qualified immunity because the circuits have “disagreed regarding whether this purported First Amendment right to record [i]s clearly established.”
The petition says the Tenth Circuit misread this decision. That one extended qualified immunity when there was a circuit disagreement "on a constitutional question." In all four of the circuit decisions handling the issue, there's no split because each court reached the same conclusion on the underlying constitutional question. Because the courts reached conflicting conclusions on the extension of qualified immunity does not show that they disagree on the right to record police officers. And there's plenty of other federal case law, along with any number of law enforcement policies, that make it clear recording officers is protected activity.
This reasoning is mistaken. For one thing, it improperly ignores the robust body of lower court jurisprudence that is directly on point. The clearly-established-law inquiry is not a game of divide-and-conquer. It is a holistic inquiry. See, e.g., Hope, 536 U.S. at 736-46. And here, the combination of precedent from this Court and the lower courts (plus the officers’ training and departmental policies, see supra at 16- 23) renders the law clearly established.
This is a case the Supreme Court should definitely take. The right to record police officers is assumed, thanks to a host of case law finding this act to be Constitutionally protected. But, as happened here, the lack of a firm resolution from the nation's top court, along with the fact that only a handful of circuits have directly addressed this issue, makes it unclear enough that officers can ignore their own internal policies to hassle, deter, or arrest citizens who film them. This decision is at least a decade past due. And the longer it goes unresolved, the longer the sort of abuse witnessed in this case will continue to occur.

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posted at: 12:00am on 28-Jul-2021
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Splunk Can't Sue Deutsche Telekom In USA Over Magenta Trademark Bullying Occurring In Germany

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If you were to simply input the word "magenta" into the search bar at the top of Techdirt, you will note that two company names seem to keep coming up in the articles: T-Mobile and its parent company Deutsche Telekom. This is because those two companies have been incredibly annoying at with their nonstop bullying of other companies, often in entirely unrelated industries, for daring to use the color magenta in their branding. While some will want to argue that very specific colors can definitely be trademarked, this misunderstands how T-Mobile and DT operate, which is to threaten plenty of companies that use a similar purple color and those that use magenta but in different marketplaces. Notably for the purposes of this post, much of this trademark bullying has occurred in Europe, though not all of it. The point is that DT is a trademark bully when it comes to the color magenta and everyone knows it.Which is what makes it disappointing to see a company like Splunk lose its ability to sue DT in America to have its use of magenta declared non-infringing solely because it has thus far only been bullied in Germany.

Tech company Splunk Inc can't sustain its lawsuit against Deutsche Telekom over its trademark rights in a "color gradient" that includes DT's signature color magenta, a San Francisco federal court ruled Monday.U.S. District Judge James Donato said Splunk didn't have a "reasonable apprehension" of litigation in the U.S. based on a cease-and-desist letter it received from DT about its conduct in Europe and DT's trademark action against it in Germany.
On the one hand, this is a jurisdictional technicality and comes after Deutsche Telekom representatives insisted to the court that there were "no plans" to sue Splunk for trademark infringement in the United States. From the court's perspective, this led it to the conclusion that there was no actual conflict within its jurisdiction.But on the other hand, DT does have a reputation to consider and it appears that there is enough interpretation being done in this ruling that it certainly could have taken that reputation into better account. From the ruling:
“[T]rademark disputes are justiciable under the Declaratory Judgment Act when ‘the plaintiff has a real and reasonable apprehension that he will be subject to liability.’” FN Cellars, LLC v. Union Wine Co., No. 15-cv-02301-JD, 2015 WL 5138173, at *2 (N.D. Cal. Sept. 1, 2015) (quoting Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 396 (9th Cir. 1982)). For this inquiry, the Court focuses “upon the position and perceptions of the plaintiff” and the “acts of the defendant,” which are “examined in view of their likely impact on competition and the risks imposed upon the plaintiff.” Chesebrough-Pond's, 666 F.2d at 396 (cleaned up). The showing of apprehension “need not be substantial” when an allegedly infringing mark is in use. Societe de Conditionnement en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir. 1981).There is no bright-line application of these factors to decide justiciability. “The question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
Here the court acknowledges that there is no bright line and that the "apprehension need not be substantial." Splunk has a reasonable apprehension that it will be the target of a trademark action by DT, given that it is a target of one in Germany for the exact circumstances it's seeking relief. Despite DT's reputation as a trademark bully and the action initiated overseas, however, the court takes a very narrow view of that action, as well as taking DT's word that it doesn't plan to sue Splunk.
On the record before the Court, Splunk has not demonstrated a reasonable apprehension of being sued in the United States by DT. The salient facts, which are not in dispute, are that DT: (1) sent a demand letter to Splunk under German and EU law for Splunk’s conduct in Europe; (2) filed a trademark action against Splunk in Germany over the EU conduct; (3) reserved its trademark rights under U.S. law; and (4) has not sued Splunk in the United States, and did not oppose Splunk’s trademark proceedings before the TTAB. These facts are a country mile from the circumstances typically deemed sufficient to establish DJA jurisdiction.
Again, it's not that the court is wrong. Still, it seems like there is a reasonable chance DT will prove the court wrong with a lawsuit sometime in the future, given its past and present actions. If that were to occur, it would render this court's decision somewhat silly.As silly, frankly, as the fact that these kinds of disputes over the color magenta need occur in any jurisdiction.

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posted at: 12:00am on 28-Jul-2021
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Police Union Gives 'Officer Of The Year' Award To A Cop Who Spent Last Year Suspended

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If you'd like some more anecdotal evidence about the useless and general disconnectedness of police unions, have I got something for you. We all know police unions take the worst aspects of policing and amplify them. We know they fearlessly defend even the worst officers from lawsuits, firings, and public criticism. We know they're the main barricade to true accountability, having tied up most cities in protracted legal language that allows cops to do all they can to avoid being fired and, in the off-chance they do get canned, get their jobs back via the arbitration process.Via the Free Thought Project comes this painful howler of a story -- one that involves a police union, an officer awaiting discipline, and an annual award for the top cop in the city. Here's how it went down, as explained by Joe Nelson of the San Gabriel Valley Tribune:

Detective Eric Walterscheid stood at a podium before the El Monte City Council during its last meeting in June, touting the work of Officer Carlos Molina before honoring him as the Police Officers Association’s Officer of the Year for 2020.
Walterscheid (who is also the police union president) spoke at length about Molina's early days as a promising young investigator. He didn't have much to say about Detective Molina's more current work… because there wasn't much of that to discuss.
But Molina seemed an odd choice for the honor, primarily because he didn’t work a single day in 2020. He spent the entire year on paid administrative leave that ultimately lasted 19 months — from September 2019 to April 2021, according to Tom Madruga, a contract attorney for the city.
Officer of the Year for not working a single day. That's really something. And, almost unimaginably, the El Monte police department likely got more done with Detective Molina sidelined.You see, Molina was suspended for spending more than a year working a single child abuse investigation that "yielded little work product." And he couldn't even manage to not move this investigation forward during regular work hours. He racked up 42 hours of overtime not getting the job done, adding another $4,400 to the taxpayers' tab for services un-rendered.The case was pulled from Molina and handed to another detective, Pedro Yanez. Yanez closed the case in 44 days and the two suspects are now awaiting trial.The police union has refused to comment on the public embarrassment. City officials have commented, mainly offering up variations on "what even the fuck."Some of the rank-and-file, however, have speculated this award was given to a suspended cop as a "message of dissatisfaction" with current police chief David Reynoso. That's according to Sgt. Jamie Pitts, who included this theory in his email asking the city council to pull the award ceremony from its agenda before it embarrassed everyone involved in it.If it was a joke or a way to use the disgraced detective to send a message, that seems to have been lost on Detective Molina, who appears to be very appreciative of the award he very definitely didn't earn.
Despite the sergeant's pleas to end this embarrassment before it began (and make public the fact that Molina took home not only the Top Cop award, but nearly $205,000 for doing nothing), the show went on. Mayor Jessica Ancona (who, the Tribune notes, is "endorsed by the police union") refused to pull the agenda item, telling concerned council members they were welcome to try to get it voted down while the council session was underway -- something they would have had to do in front of Molina and his friends and family. The farce was allowed to continue. And now an officer who went 0-for-365 last year is officially the police union's 2020 MVP.

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posted at: 12:00am on 27-Jul-2021
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Naturopath Sues Twitter After It Bans Her Account For Spreading Medical Misinformation

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We recently discussed the case of a man who thought Facebook owed him $10 million per day in damages for moderating his posts in which he deployed the n-word. According to this person, Facebook violated about half of the Constitutional amendments when it decided -- as a private company -- that it would not serve as the plaintiff's bullhorn while he shouted racist terms in a crowded social media platform.But that was a pro se lawsuit, one the plaintiff -- with no legal training or expertise (despite listing himself as "attorney-in-fact" on his Facebook profile) -- thought would net him millions of dollars a day for being nothing more than his hateful self.This lawsuit [PDF], however, has an actual lawyer behind it. And by actual lawyer, I mean a lawyer whose representation may be less useful than no representation at all. The lawyer helping the plaintiff bring this constitutional violation lawsuit against Twitter is David Yerushalmi, perhaps best know for being a bit bigoted himself.

David Yerushalmi (born 1956) is an American lawyer and political activist who is the driving counsel behind the anti-sharia movement in the United States.
Wikipedia helpfully notes this Jewish lawyer is highly critical of "liberal Jews, progressive elites, and black people." So, those are his credentials. He is the co-founder of the "American Freedom Law Center," which is really more about pushing its particular take on America than it is about protecting American freedoms. Here's part of its mission statement:
AFLC is first and foremost a public interest litigation firm. It aggressively seeks to advance and defend our Nation’s Judeo-Christian heritage in courts all across our Nation.
Not sure what that has to do with suing Twitter on behalf of someone helping spread disinformation about COIVD, but that's where we are. Yerushalmi's client is none other than confirmed quack Colleen Huber, last seen here trying to sue a reformed naturopath for informing readers that Huber's anti-cancer advice (I hesitate to call it "medical") would probably kill any cancer patient who took it.
Colleen Huber does not use conventional chemotherapy or radiation. She treats cancer with intravenous baking soda, vitamin C, and other “natural” substances, while instructing patients to cut out sugar from their diets.
Huber is a "certified" naturopath. The scare quotes are there for this reason:
Nowhere in any of her “research” that I could find did she write that she obtained written, informed consent from her patients/research subjects. Nor did she write that her “research” was approved by an Institutional Review Board (IRB) or was registered with ClinicalTrials.gov. These are fundamental ethical requirements for research on human subjects.But don’t worry, Colleen Huber is a founding member of a naturopathic Institutional Review Board that has apparently approved her research.
Those are some of the words Huber sued about. She filed a defamation lawsuit in Germany targeting reformed naturopath/current skeptic Britt Hermes. The good news is Hermes won, despite being sued in a country where defamation can be (and very often is!) considered a criminal act.Unsurprisingly, Huber is, shall we say… a vaccine skeptic. During the course of her Twitter affairs, she shared articles and made posts that were considered misinformation by Twitter. Twitter moderated her posts. Then it banned her permanently. That forms the basis for this hilarious lawsuit. For the moment the lawsuit resides in an Arizona federal court. (It will likely be moved to California once Twitter gets involved and invokes the terms it imposes on Twitter users, which include Twitter being able to move all federal legal action to its home state.)Let us gaze upon this comical masterpiece of stupidity and wtf-ness… perhaps not in all of its glory, but at least the best parts.You don't have to be a lawyer (at least one not employed by the American Freedom Law Center) to realize what's wrong with this opening statement.
Defendants Twitter and Dorsey, operating jointly and conspiring with Defendants Biden and other federal government officials in the Biden Administration (Defendant John Doe(s)), is engaging in viewpoint discrimination—the most egregious form of content discrimination—in violation of the First and Fifth Amendments to the U.S. Constitution.
Hint: it's not just the verb conjugation.While it's true that Joe Biden could violate rights by getting personally involved in moderating Twitter accounts, it's impossible for Twitter to violate rights, no matter how much viewpoint discrimination it engages in. The First and Fifth are safe when Twitter's involved. Moderation efforts aren't constitutional violations.The lawsuit moves on to name the defendants and discuss the internet and its current position as the greatest communication tool ever invented. Then it attempts to pin constitutional violations on Twitter by completely (and conveniently) misreading the Supreme Court's Packingham decision.
Consequently, social media, particularly including Twitter, is exceedingly important for worldwide human communication and thus provides important forums for that communication.As, as stated by the U.S. Supreme Court: While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, and social media in particular. . . . In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”Packingham v. N.C., 137 S. Ct. 1730, 1735-36 (2017) (citations omitted).
While Huber and her lawyer may have misapprehended the gist of the Packingham decision (perhaps deliberately so), it's unlikely a federal judge will. Packingham said the government couldn't prevent people from using social media services, declaring a North Carolina statute that prevented sex offenders from using these services unconstitutional. It says nothing about private companies preventing citizens from using their services. And, unless Huber has a whole lot of evidence saying President Biden is directly participating in Twitter moderation decisions, there's nothing in the Packingham decision that has any bearing on this case.The idiocy continues directly after the citation of precedent that actually isn't precedential when applied to this complaint.
Denying a person access to this important social media forum based on the content and viewpoint of the person’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship.Consequently, there is no basis for qualifying the level of First Amendment scrutiny that should be applied in this case.
Claiming something is the worst thing that has ever happened doesn't make it legally actionable. There's no First Amendment (or Fifth Amendment) right to a Twitter account, no matter how dire the phrasing in the complaint.The lawsuit is also stupid about Section 230, seemingly considering this immunity a "power" social media platforms exercise with the government's explicit blessing. But before we get to that, let's pause and admire the heavy lifting the word "belief" is doing in this assertion.
Upon information and belief, Dr. Huber’s suspension from Twitter was a conspiracy and/or joint action between Twitter and unknown officials in the White House, sued herein as John Doe(s), who have engaged in the unlawful conduct alleged herein pursuant to their official government capacities under the direction and, ultimately, control of Defendant President Biden.
Do all the discovery you want, but I doubt you'll find Huber's suspension involved any input whatsoever from Joe Biden or his administration. Twitter is perfectly capable of banning people on its own, even sitting presidents. That Biden may have made comments (which are quoted in this suit) that platforms needed to do better containing the spread of disinformation is not even remotely close to the same thing as "conspiring" with Twitter to shut down Huber and other anti-vaxxers.Now, here's where Huber and her lawyer say dumb stuff about Section 230.
Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Twitter “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Twitter censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.The interest in encouraging freedom of expression in a democratic society outweighs any benefit of censorship conferred upon Twitter by the federal government.
Wrong. Wrong. Wrong. Wrong. Just absolutely wrong. Section 230 immunity is not a "power." It simply shields platforms from being sued over moderation decisions or for content created by users. People who run into this immunity -- which Huber certainly will -- may think it's a "power," but it isn't. It doesn't give platforms new rights. It simply shields them from being used as an easy-to-sue proxy when users are angry about things other users have said or, in this case, when they're angry about being shown the door by the owner of private establishments. In this case, it's Twitter, rather than, say, the local bar, getting sick and tired of someone's endless bullshit.When you fail to understand the Constitution, the rights of private companies, Section 230 of the CDA, and prior Supreme Court decisions, you end up with word salad for section headers.
FIRST CLAIM FOR RELIEF (Twitter COVID-19 Policy—First Amendment Freedom of Speech)
Salad spinners engage!
Section 230 of the CDA, facially and as applied, permits Defendant Twitter to restrict Plaintiff’s speech, and the speech of those similarly situated, based on the content and viewpoint expressed by Plaintiff’s message, and the respective messages of those similarly situated, in violation of the First Amendment.Section 230 has caused, and will continue to cause, Plaintiff and those similarly situated to suffer undue hardship and irreparable injury, entitling Plaintiff and those similarly situated to declaratory and injunctive relief.
This will go nowhere. Well, to be fair, it will probably go to a California federal court and then go nowhere. There's nothing in this that can be sued about. If Huber doesn't like being booted from Twitter -- and she clearly doesn't -- she's welcome to take her naturopath business elsewhere. But, sooner or later, she's going to run out of receptive hosts. This isn't Twitter violating rights or Joe Biden personally deciding Huber needs to STFU. It's just business. And Twitter doesn't want hers, for a number of reasons it's under no legal obligation to justify.

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posted at: 12:00am on 27-Jul-2021
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This Week In Techdirt History: July 18th - 24th

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Five Years AgoThis week in 2016, Cy Vance was still arguing for mandated encryption backdoors with an unconvincing legal argument, while Apple was snubbing John McCain's attempts to drag them in to hear complaints about encryption, and a former Homeland Security advisor was trying to place the burden of proving backdoors are bad on tech companies. An important ruling in California reaffirmed Section 230 protections in a lawsuit against Yelp, a judge smacked down the DOJ for being lazy about fulfilling FOIA requests, and the EFF was challenging the DMCA's anti-circumvention provisions on first amendment grounds.Ten Years AgoThough there were a few things going on this week in 2011, like the continuing fight over the PROTECT IP Act, it's worth focusing on the story that was infuriating at the time and which we now know was the beginning of a terrible tragedy. This was the week that the feds charged Aaron Swartz with felony hacking for downloading JSTOR articles. The indictment was immediately huge news, and closer inspection raised lots of questions (including the curious lack of a copyright angle to the charges — though that didn't stop the Copyright Alliance from weighing in with a post full of bad analogies). Soon it became clear that the indictment lacked any real legal or moral basis to an extremely troubling degree, and the internet began fighting back by uploading JSTOR articles to file sharing sites. Sadly, this wasn't the end of the story, and there will be more to come in future weeks.Fifteen Years AgoThis week in 2006, CBS was attempting a desperate strategy of selling DVDs of old news clips, Wal-Mart was making an equally desperate attempt to launch a social media network, and some quacks were claiming that iPods cause autism. A court reaffirmed that the DMCA cannot be used to block third-party repairs, MySpace was struggling to make a profit, and a printer company got in trouble for abusing trademark to block competition. We also saw a rare (in those days, and to some degree still) honest debate about net neutrality, as well as the much-anticipated opening of the floodgates on YouTube copyright lawsuits.

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posted at: 12:01am on 25-Jul-2021
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FTC Formally Embraces Right To Repair As Movement Goes Mainstream

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One of the bigger bright spots in the last few years of often thorny or downright ridiculous policy debates has been the continued ascension of the right to repair movement. Whether it's Apple's wasteful restrictions or bullying of independent repair shops, Sony and Microsoft's efforts to monopolize game console repair, or John Deere's efforts to drive up repair costs for tractor owners, "right to repair" as a movement was born out of a genuine and bipartisan public annoyance at repair monopolies, obnoxious DRM, and self-service restrictions related to tools, documentation, and parts.And despite Apple and friends' best attempt to smear the movement as some dangerous and diabolical cabal only of use to sexual predators, its popularity shows no signs of slowing down. There's legislation pending on both the federal level and in two-dozen states. Prompted by an FTC report showing industry opposition to the movement is largely fluff and nonsense, the Biden administration recently issued an executive order urging the FTC to do more. And now the FTC, with a bipartisan vote of 5-0, has adopted a new policy paper (pdf) and says it will take tougher action against illegal repair restrictions:

"The Federal Trade Commission today unanimously voted to ramp up law enforcement against repair restrictions that prevent small businesses, workers, consumers, and even government entities from fixing their own products. The policy statement adopted today is aimed at manufacturers' practices that make it extremely difficult for purchasers to repair their products or shop around for other service providers to do it for them. By enforcing against restrictions that violate antitrust or consumer protection laws, the Commission is taking important steps to restore the right to repair."
The problem, of course, is the same problem facing the FTC on numerous fronts, from privacy to safety in bleach labeling. Namely that the agency's authority is generally restricted under the FTC act to tackling corporate practices that are clearly "unfair and deceptive." The agency also continually suffers from budget and staffing shortcomings (by well-lobbied Congressional design), so tackling the full scope of a problem like this often isn't logistically or financially possible.Still, the FTC argued that there's a lot more it can do to lend markets and consumers a hand on the right to repair front, whether that's doing a better job enforcing existing warranty laws, engaging in better coordination with state and local policymakers, or doing a better job holding companies that attempt to monopolize repair accountable under antitrust law:
"These types of restrictions can significantly raise costs for consumers, stifle innovation, close off business opportunities for independent repair shops, create unnecessary electronic waste, delay timely repairs and undermine resiliency, FTC Chairperson Lina Khan said during the meeting. The FTC has a range of tools it can use to root out unlawful repair restrictions. And today's policy statement would commit us to move forward on this issue with new vigor."
Ideally you'd still want a comprehensive right to repair law to shore up shortcomings in FTC authority. Much like privacy laws, that's generally opposed by a broad coalition of cross-industry lobbyists who'd very much like to keep nickel and diming customers on a whole range of fronts, be it the phone industry or medical device manufacturing. But the more companies like Apple, John Deere, or the auto industry try to fight against reform using stupid, fear-mongering arguments, the more attention these shitty practices receive, the more annoyed the public gets, and the more bipartisan support develops.That's a major reason why right to repair went from a niche concern just a few years ago, to seeing consistent coverage via the likes of CBS News. That's a positive development any way you slice it, and a nice contrast to many of the thornier and seemingly insurmountable tech policy debates that tend to consume DC, get mired in debate, and seemingly go nowhere.

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posted at: 12:01am on 24-Jul-2021
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Maine Legislature Ends Civil Asset Forfeiture In The State

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The state of Maine recently enacted the strictest facial recognition limitations in the country, prohibiting the use of the tech in most areas of the government and preventing state law enforcement from acquiring it. The tech can still be used, but all searches must be run through either the FBI or the state's database via the Bureau of Motor Vehicles. Citizens who believe they've been unlawfully subjected to facial recognition tech can sue state agencies for violations of the law.Maine continues to increase protections for its residents. As C.J. Ciaramella reports for Reason, the state has just ended civil asset forfeiture.

Maine became the fourth state in the nation to abolish civil asset forfeiture, a practice where law enforcement can seize property if they suspect it is connected to criminal activity, even if the owner is not convicted of a crime.After a bill passed by the state legislature, LD 1521, took effect without the governor's signature yesterday, Maine officially repealed its civil forfeiture laws, joining Nebraska, New Mexico, and North Carolina.
This repeal follows years of abuse by law enforcement agencies in the state. More than three decades ago, the state attempted to rein this in by passing a law that removed some of forfeiture's perverse incentives by directing a portion of seized assets to be deposited in the state's general fund. Despite this mandate, a review of the program found the state had been the recipient of only a single deposit of $4,335 since 2010.Reporting requirements imposed on the Department of Public Safety were also ignored, making it difficult to tell how much money state agencies had netted from forfeiture or how often these agencies had chosen to ignore the fund-sharing mandate.This new law makes the only acceptable form of forfeiture in the state criminal asset forfeiture, which ties the forfeiture of seized assets to convictions. The law also forbids state and local agencies from trying to avoid these restrictions by inviting the feds along for the ride.
Unless seized property under this section includes United States currency in excess of $100,000, a law enforcement agency, prosecuting authority, state agency, county or municipality may not enter into an agreement to transfer or refer property seized under this section to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section.
It also reaffirms the Department of Public Safety's reporting requirements, mandating the posting of forfeiture records quarterly on a publicly-accessible website. Hopefully the state legislature will take its oversight position more seriously this time around to ensure the DPS actually does the reporting it's supposed to, rather than ignore its noncompliance for another three decades.

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posted at: 12:01am on 24-Jul-2021
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Telecom Industry Spends $320,000 Every Day Lobbying Against Policies It Doesn't Like

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We've noted repeatedly that while "big tech" has faced intense scrutiny over the last few years, "big telecom" has largely seen the exact opposite. Despite being every bit as problematic as tech giants (worse in some ways given their natural monopolies over broadband access), in the last few years the media and telecom sectors (one in the same when it comes to AT&T and Comcast) managed to effectively lobotomize the FCC, obliterate longstanding (and bipartisan) media consolidation rules, gut countless consumer protections, and generally turn the U.S. government into a giant bobble-headed doll with a rubber stamp.Such favors didn't come cheap. A new joint study by the top telecom union (CWA) and Common Cause found that during the last Congress alone the telecom lobby spent $234 million lobbying the government, or roughly $320,000 every single day. Comcast of course was the biggest spender at more than $43 million in lobbying expenditure, with AT&T not too far behind at $36 million. Money spent to gut oversight of the telecom sector while these same companies pushed for dramatically expanded oversight of the "big tech" companies whose ad revenues they've long coveted.Given our lobbying disclosure and campaign finance laws are garbage this tally is likely a dramatic undercount, and doesn't include all the dodgy nonsense the industry uses to influence policy, press coverage, and public discourse. You know, like the fake consumer groups or dead and fake people the telecom industry created to create the illusion of support for the net neutrality repeal. Or the money funneled into DC via so-called "dark money" groups:

"Under Citizens United and its progeny, ISPs, trade associations, and other corporations can make unlimited expenditures in federal elections and unlimited contributions to super PACs and dark money groups to be spent on supporting or opposing federal candidates, the report said.
In addition to gutting the FCC, killing net neutrality, crushing telecom specific privacy rules, and generally demolishing federal (and state!) consumer protection authority, the report notes how telecom lobbying during the last Congressional period helped dismantle all manner of laws with bipartisan support. Including laws that would have shored up network resiliency in the wake of industry outages after Hurricanes Irma and Maria, laws that would have helped fund community broadband, and laws that would have restored basic consumer protections like net neutrality:
"The groups found that one of the industry's top targets during the last Congress was the Save the Internet Act, which would have restored net neutrality and the FCC consumer protection authority stripped away during the Trump administration (amidst a flood of empty promises).Telecom lobbyists also fought against the Accessible, Affordable Internet for All Act, which includes money to help fund local community broadband. And they successfully derailed the RESILIENT Networks Act, proposed as an attempt to shore up Puerto Rico network resiliency after prolonged telecom outages from hurricanes Irma and Maria."
It takes a lot of time and money to keep the U.S. government appropriately feckless and slack-jawed in the face of obvious and rampant regional telecom monopolization. All propped up by a very elaborate ecosystem of think tanks, consultants, economists, academics, and marketing firms hired to pretend there's no actual problem that needs fixing. As such, you really can't fix the U.S. broadband problem (or any of a number of issues, like climate change) until you tackle the underlying corruption that enables it. But if you hadn't noticed, there's no real DC interest in actually doing that, so here we are.The report recommends shoring up lobbying laws so that lobbyists can't just tap dance around requirements (see Comcast lobbyist David Cohen avoiding requirements by just calling what he did something else). The report also recommends passing the the For the People Act, which includes several provisions shoring up lobbying and campaign finance loopholes. But given the Congressional votes you'd need to pass such laws are compromised by the very lobbying these proposals want to fix, you're stuck with a chicken-and-egg scenario where dysfunction and corruption remains the norm.

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posted at: 12:00am on 23-Jul-2021
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Learning About Content Moderation From Ghosts In Virtual Reality

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Content moderation in virtual reality comes with its own unique challenges. What works for the moderation of text and video doesn't neatly translate into VR. In late June, Facebook's Horizon, a VR social space still in beta testing, released an update to prevent its blocking feature from creating ghosts. That might sound hyperbolic, but it is a perfectly apt description of the feature's effect in Horizon prior to the update. In the earlier build, both the blocker and the blocked were made invisible to one another, but allowed to continue interacting with the same virtual world. While they couldn't see one another, they could see each other's effects on their shared environment. If someone blocked you, your obscene gestures might be invisible to them, but you could still move the furniture about and rattle chains - practically becoming a poltergeist.

Improvements to Blocking in HorizonWe're beginning to roll out changes to how blocking works in Horizon. These changes are based on people's feedback, and are designed to improve people's experience and make Horizon a safer and more welcoming place.Previously, when you blocked someone in Horizon, both you and the person you blocked became invisible to each other. We heard feedback from people that this was confusing, for example when the other person continued interacting with objects in the same space.Now, both the person who has been blocked and the person who blocked them will be able to see each other's username tag, while keeping their avatars invisible to each other. This update allows both people to know they're present, but blocked and muted.You'll also be able to see the people you've blocked in your menu (such as in the People Nearby list) instead of them being completely hidden. This means you can see who you've blocked without having to interact with them. You can also visit the settings page and see a block list, where you can see people you've blocked and choose to unblock them if you want.
As the patch notes explain, when used in VR, the traditional approach to blocking caused unintended problems. Unlike static social media profiles, users embody their avatars. The user's digital representation mimics their motions and gestures as it moves through a shared virtual world. On traditional social media, blocking another user hides your speech from their view and limits their ability to reply. Hiding your avatar from their view is a logical translation of this policy to virtual reality. However, because the invisible-to-one-another blocker and blocked still shared the same virtual world, a malicious user could potentially block someone to haunt them or spy unobserved. Tagging speech from blocked users would be unnecessary on traditional social media, as their speech is already excluded from the blocker's conversations. However, in a shared virtual environment, it becomes a necessary component of a useful blocking feature.While these are far from life-threatening abuses, they illustrate why best practices for traditional content moderation can't always be easily applied to VR. In many ways, Facebook Horizon's moderation challenges look more like those of a video game, especially a massively multiplayer online game (MMO), than those of a traditional social network. In both cases, players interact through avatars, and can simultaneously affect the same virtual world.In either a game or a shared VR world, the properties of the digital environment govern player interactions as much, if not more than, rules about players' speech. This often introduces tradeoffs between antiharassment measures and realism or interactivity. If a game models fire realistically, a malicious player might kick a campfire into another's tent and set it ablaze. This can be avoided by either limiting players' ability to interact with fire (stopping them from kicking it), or the properties of the fire itself (preventing it from burning the tent). Environmental design choices in games or VR somewhat resemble architectural choices faced by traditional platforms - whether to create retweet or quote tweet functions, or to allow users to control who can reply to their tweets. However, creating an interactive virtual world requires making many more of these decisions.MMOs are typified as either theme park or sandbox games. In the former, designers set fixed goals for players to compete or cooperate towards, justifying referee-like governance. The latter offers players a set of tools, and expects them to make their own fun, limiting the need for intercession by designers. Conflict between players with different goals is an expected part of the fun.While platforms for knitting patterns or neighborhood conversation have purposes that recommend some rules over others, more open-ended platforms have struggled to justify their rules. YouTube is a home for video content. Which video content? Who's to say? VR is, for the time-being, mostly used for gaming. However, as social and commercial applications of the technology become more popular, this question of purpose will become politically relevant, as it has for YouTube.Horizon's chief product is a framework for users to create their own virtual worlds. Horizon exists not to provide a Facebook designed environment, but to offer users the ability to create their own environments. This gives Horizon some guiding purpose, and relieves its designers of pressure to make one-size-fits-all decisions. Because most worlds within Horizon are created by users, these users can set the rules of interactivity. Facebook has neither the time nor the resources to govern the behavior and use of every virtual tennis racket across myriad virtual spaces. However, the creators of these little worlds know whether they're creating a virtual tennis club or a garden party fighting game, and can set the rules of the environment accordingly. This will not be the first time Facebook finds that a rule that works for text and video publishing platforms falls flat in virtual reality. However, its response to the unintended effects of the block feature shows a willingness to appreciate the new demands of the medium.Will Duffield is a Policy Analyst at the Cato Institute

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posted at: 12:00am on 23-Jul-2021
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Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser

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It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts.
But any officer with similar training ("Officer Hiser received a 'couple of hours' training on the appearance and odor of multiple [drugs]...") could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.
At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not "bumper to bumper," there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren.
Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser's windows were down or whether Gray's windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.Yes, courts are supposed to defer a bit to "trained" and "experienced" officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.But the court isn't impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.
The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is "implausible" and seemingly "contrary to the laws of nature."
Unsurprisingly, there is exactly zero precedent that supports Hiser's "if I smelt it they probably were in the process of, um, dealting it" theory of reasonable suspicion. (Emphasis in the original.)
The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser's testimony as a matter of law.
In fact, it can only find precedent that quotes an officer just as full of shit as Hiser.
"The arresting officer's testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict."
Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray's indictment.It's already impossible to believe cops smell as much marijuana as they do -- something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.

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posted at: 12:00am on 22-Jul-2021
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Content Moderation Case Study: Spotify Comes Under Fire For Hosting Joe Rogan's Podcast (2020)

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Summary: In May of 2020 Joe Rogan, whose podcast was considered one of the most popular in the world, signed an exclusive deal to host the podcast on Spotify. Rogan, who has been described as America's Bro Whisperer by the AV Club, is a comedian/actor whose podcast is known for extended discussions on a variety of topics. He frequently delves into controversial subjects and explores potentially extreme ideas, conspiracy theories, and hoaxes.

Given that history, it was not surprising that people quickly raised questions about why Spotify would platform Rogan amidst various controversies regarding the content on his show (both from some of his guests and from Rogan himself), and about how much responsibility Spotify should take for that content. Spotify already has a history, on the music side of its business, of removing some artists from its platform.In the Fall of 2020, things came to a head when a group of Spotify employees complained to management about Spotify being a platform for Rogan, and complained about some particular Rogan content. Reports revealed an all-hands meeting in which Spotify founder and CEO Daniel Ek discussed these requests and explained his reasoning for keeping Rogan on the platform.
"In the case of Joe Rogan, a total of 10 meetings have been held with various groups and individuals to hear their respective concerns. And some of them want Rogan removed because of things he's said in the past." -- Spotify CEO, Daniel Ek
Spotify did say that it refused to host some of Rogan's older episodes, but after reviewing some more recent ones, said that they did not violate the company's policies. The company overall seems happy with having Rogan on its platform. A NY Times report says that among top Spotify leadership, people familiar with the company say, the notion that Mr. Rogan presents any kind of regrettable executive headache is laughable. However, there remain accusations that Spotify is simply profiting from the outrage over Rogan being on the platform. Spotify has said that Rogan is drawing more users than the company expected, and even has a special category for Rogan's podcast. As the NY Times article notes: So central is he to the company's fortunes that the podcast is listed as its own category on the app: Sports. Music. News and Politics. Joe Rogan.More recently, concerns were raised after Rogan gave advice that could be seen as discouraging people from getting a COVID-19 vaccine, again leading to questions about how much Spotify should moderate the content of the podcast. Rogan clarified his comments and suggested that no one should listen to him for advice regarding medical issues. I'm not a doctor," he said. "I'm not a respected source of information, even for me."However, over the last few months, people have noticed that dozens of Rogan's older podcast episodes have disappeared from Spotify. Some of these were first noticed in September of 2020, and by April 2021, it was reported that Spotify had deleted 42 older episodes. Another report noted that another 15 to 20 were earmarked for deletion but had not been deleted due to concerns about bad optics. Many fans of Rogan's podcast reacted angrily to the news of some episodes being deleted, calling it censorship, and threatened to no longer use Spotify.Company Considerations:
  • How can a company effectively and efficiently moderate very long podcasts, like Rogan's, which can go up to 2-3 hours?
  • How does a company draw the line between someone's opinion vs spreading misinformation?
  • How should Spotify handle competing demands from two very strong constituencies: Rogan's supporters and detractors?
  • How much (if any) should bottom line financial interests be taken into account when considering content moderation questions?
  • How much should internal employee complaints be taken into account in reviewing content moderation policies?
  • Is removing older podcasts or podcasts with controversial guests or topics an acceptable strategy?
Issue Considerations:
  • Will threats of stronger moderation or removal of podcasts lead to more careful consideration by podcast hosts and guests? Will it lead to important, but still controversial, topics not being discussed at all? Or will it result in a combination of both?
  • Should internet platforms hosting podcasts be responsible for the content in those podcasts? Would the answer to this question be different if it's an openly available podcast distributed via RSS on all platforms, compared to an exclusive podcast only available on a single, closed platform like Spotify?
  • Is public pressure more effective at policing controversial content than expecting a platform to moderate the content? In the example of the information on vaccines, public outcry resulted in Rogan walking back his comments soon after.
Resolution: Joe Rogan has said that part of the reason he went to Spotify in the first place was that he was getting increasingly uneasy with YouTube (where he was hosting video versions of his show) after the company removed or demonetized other controversial podcasts and video shows.And while he pushed back at some of the criticisms of his podcast, he also said that Spotify is not censoring the content of his show. He claims that he knew that Spotify did not want to host certain older episodes, but that the company has given him no rules regarding future content.
"They don't give a f**k man. They haven't given me a hard time at all. There were a few episodes they didn't want on their platform, I was like 'okay, I don't care'."But other than that, in terms of what I do in the future, the big test was having Alex Jones on... Alex Jones and Tim Dillon was like one of my favorite podcasts." -- Joe Rogan
He separately made some comments regarding employees at Spotify who were upset about content on his podcast.
I don't know what the actual conversation has been from Spotify talking to these employees. But if these employees are listening, I would tell you, emphatically, I am not in any way anti-trans. I am 100 percent for people being able to do whatever they want, as long as it doesn't harm other people.I'm talking off the top of my head. And a lot of times I'm saying shit that I don't even mean. Cus I'm saying it because this is a fucking podcast. And if you have a problem with people saying terrible shit and you work for Spotify, maybe you should listen to some of the lyrics. Okay, cus some of the lyrics and some of the fucking music that you guys play over and over and over again makes my shit pale in comparison.But I get it, you're a 23-year-old woke kid and you're working for this company and you think you're gonna put your foot down, I get it. -- Joe Rogan
As for the overall situation, Rogan has suggested that the controversy around all of this has only helped him become more famous, though others have argued that he is having less impact on the wider zeitgeist and a review of how often his name is searched for suggests interest has decreased since the move to Spotify.Originally published to the Trust & Safety Foundation website.

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Court To Cop: You Need More Than 'Odor Of Marijuana' And Inconsistent Testimony To Justify A Warrantless Search

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When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers' own noses. The invocation of the phrase "smell of marijuana" magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble "general rummaging."Every so often, this Constitutional evasion scheme fails to pay off. And it's usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.That's the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius' vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Detective Wiggins claimed during direct examination that he found “a bunch of marijuana.” When pressed for more information during cross-examination, Detective Wiggins clarified and stated he meant a “bunch of leaves.” However, there was not enough to send to the lab for testing.
Training and experience etc.
When asked how many leaves it would take to submit the marijuana to the state lab, Detective Wiggins replied that he does not know.
That's kind of embarrassing for someone on the "Safe Streets Task Force" who's been given permission to fight crime on pretty much his own terms.
Detective Wiggins stated that it is his job “to stop things from happening before they happen” and, accordingly, to proactively stop cars and ride around looking for suspicious activity.
Wait. He wasn't finished. Here's how cross-examination went for Wiggins.
After being unable to state how many leaves are needed to send for testing, the Detective conceded that the lab is able to test even small, personal amounts of marijuana.
Mistakes were made, but at least the detective safetened the streets a bit by removing a "bunch" of drugs from circulation.
The Detective further conceded that the amount he allegedly observed was probably either less than personal use or just personal use.
What Wiggins does know is that the smell of marijuana is a pretty handy way to airgap his actions from the Constitution. As a free-roaming detective, Wiggins firmly believes this odor is all the reasonable suspicion he needs to engage in hundreds of undocumented stops and searches.
Notably, it is Detective Wiggins’s understanding that he can search the entirety of a car as long as he smells marijuana. Detective Wiggins explained that, as a standard patrol officer, he would normally have to call in a traffic stop into WILCOM if he stopped a vehicle. However, as a Task Force officer, he does not need to report to WILCOM when he stops a vehicle for a traffic stop. As Detective Wiggins puts it, if he stops a car and smells marijuana, but does not issue a ticket, there would be no record of it. Moreover, Detective Wiggins estimated that he has made around a thousand traffic stops in the four years that he has been assigned to the Task Force and that he stopped around fifty vehicles the week prior.
Completing Detective Wiggins' zero accountability loadout was the lack of recording equipment in his unmarked car and his employer being extremely slow on the body cam uptake.All of this combined to give us the complete botchery observed above (and observed for a bit more below): a detective who doesn't seem to know much about weed making completely undocumented stops hundreds of times a year based almost solely on the unverifiable claim that he "smelled" something suspicious.The court here isn't going to let Wiggins get away with this one. In addition to his inconsistent testimony on the amount of weed recovered during the search, the detective's narrative shifted when challenged by the defendant's lawyer.
Detective Wiggins’s initial testimony concerning his observation of the marijuana leaves and air freshener is contradicted by his later testimony. First, in response to what Detective Wiggins noticed about the car while engaging with Mr. Cornelius in the vehicle, Detective Wiggins claimed he smelled marijuana, observed marijuana leaves, and air freshener. Later, in response to Mr. Cornelius’s counsel’s statement concerning whether Detective Wiggins observed marijuana leaves before the two minutes and twenty second mark in the video, Detective Wiggins responded “I’m not sure if I’ve seen it yet or not.”
Finally, the court says the smell of marijuana alone cannot be enough to justify a stop or a warrantless search. (Emphasis in the original.)
The State argues that the smell of marijuana alone is sufficient to establish probable cause. Marijuana odors, while relevant to probable-cause determinations, does not require this Court to find that probable cause exists in every circumstance on sole basis of the odor. Probable cause determinations are made by evaluating the totality of the circumstances.For instance, in Law v. State, the vehicle’s speed, the occupant’s extreme nervousness, and the odor of marijuana contributed to the Court’s determination that probable cause existed for the search of the car. Likewise, in Valentine v. State, the occupant’s excessive speed, the time of day, and the odor of marijuana contributed to the Court’s determination that probable cause existed.
No probable cause here. The court says the odor of marijuana likely didn't exist, the other officers at the scene positioned themselves "in a manner consistent with preparing for a search" despite there being no evidence a search was necessary, and the complete lack of normal procedures or documentation are fatal to the state's case. The detective's inability to maintain consistency during testimony and cross-examination certainly didn't help. The evidence (what little there was of it) is now gone and without it, the state has nothing left to prosecute.

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posted at: 12:00am on 21-Jul-2021
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WIPO Says Johnson & Johnson Can't Seize Parody Website Suggesting Band Aids With Corporate Sponsors

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Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quite your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.

Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:
Here, the Panel considers that the phrase chosen by Respondent in the Domain Name - brandedbandaids - does not itself convey parody of Complainant, its trademarks, and related products. Moreover, and while the Panel tends not to find Respondent's arguments on this point terribly persuasive, it is also at least debatable whether the website linked to the Domain Name targets Complainant and its BAND-AID marks, or rather is intended as a more general parody of the capitalization of public health, as initially claimed by Respondent. See e.g., A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. supra (In order to constitute parody, the web site must poke fun at the goods or services associated with Complainants' marks: use of another's trademark to poke fun at something unrelated to Complainant's mark is not parody.) Of course, the Panel also recognizes that Respondent has free speech interests protected as a constitutional right in the United States; however, under the law individuals do not enjoy absolute freedom of expression especially with respect to terms protected as trademarks.
But the key issue for WIPO is really whether or not the domain was registered in bad faith, and there's no evidence to support that.
Here, there is no doubt that Respondent, when registering the Domain Name, was aware of Complainant and its BAND-AID brand. The question is whether, despite that awareness, and in view of Respondent's asserted artistic parody intention for registering the Domain Name, the registration and use amounts to bad faith.Complainant has contended that Respondent's registration of the Domain Name without authorization reflects opportunistic bad faith and was intended to exploit the goodwill and fame of Complainant's marks in bad faith to improperly deceive Internet users and benefit Respondent financially. Complainant has pointed out that when Respondent initially launched her website, the disclaimer was not prominently placed and Respondent used an allegedly infringing version of the BAND-AID mark in the font and color typically used by Complainant. Further, Complainant argued that the ultimate effect of use of the Domain Name will be to cause confusion with Complainant, and thus the registration and use of the Domain Name must be considered to be in bad faith. Complainant has sought to emphasize that Respondent's use should not be considered purely noncommercial because an Internet user, by using the link to Respondent's Twitter account and then clicking through to her personal website, could be introduced to commercial ventures offered by Respondent.In the face of these contentions, Respondent has argued that while a given use may or may not meet the standards for the parody defense, it may still be a sufficiently plausible, good-faith motive to overcome Complainant's proposed inference of bad faith within the meaning of the Policy. Given the facts and circumstances of this case, the Panel agrees with Respondent on this point. See The California Milk Processor Board supra (This may or may not meet the standards for the parody defense under United States trademark law, but it is a sufficiently plausible, good-faith motive to outweigh the Complainant's inference of bad faith within the meaning of the Policy.). Respondent has provided evidence to demonstrate that she is, in fact, an artist who engages in parody of the Internet, capitalism, online businesses and the technology industry more generally, while using websites, domain names and social media. Respondent has not demonstrated any interest in selling or transferring the Domain Name, nor is there evidence that she has previously made a practice of acquiring domain names resembling trademarks for sale. Respondent has claimed that the website linked to the Domain Name has no revenue or plan to seek revenue, and has submitted a sworn affidavit to this effect:I registered and used the website solely for the purpose of artistic parody. At no time have I ever sought commercial benefit from either the website or from the registration of the domain name.The evidence in this case supports Respondent's assertion concerning noncommercial use. As for the link on the Domain Name's website to Respondent's Twitter account, which in turn might be used to link to Respondent's personal website that reflects one or more commercial ventures, the Panel finds that this path is too attenuated such that it would by itself disqualify the Domain Name from noncommercial use. Further, since being contacted by Complainant's counsel, Respondent has taken steps - through a disclaimer on the website and changing the font and color of text on the site - to respond to Complainant's demands concerning the content of the website. This point is important because UDRP panels tend to assess relevant facts concerning use of a domain name with a view to the circumstances prevailing at the time of the filing of the complaint, and Respondent made the relevant changes before the Complaint was filed. See WIPO Overview 3.0, section 2.11. Ultimately, and acknowledging that the Policy criteria are non-exclusive, looking at paragraph 4(b)(iv) in particular, the Panel finds that owing to the credibility of the sworn assertion as to the noncommercial nature of the Domain Name and attendant website, the Domain Name was not registered and used in bad faith.Finally, the Panel emphasizes that the decision in this case is limited to the criteria under the Policy, and the Panel makes no findings concerning the parties' rights under applicable national law - which may in any event be better suited for determination by a court.Complainant has failed its burden to demonstrate that the Domain Name was registered in bad faith.
As the panel makes clear, that doesn't mean Baskin is totally free and clear. J&J could still go after her in court for trademark infringement, in which case the fair use, non-commercial use and other defenses would be used and could prevail (though it would still be quite a mess). Hopefully, J&J realizes not only what a wasteful headache that would be, but also how it would make the company look like a ridiculous, censorial bully who can't take a joke.Anyway, to celebrate, I'm going to go put Techdirt logos on some generic Band-Aids.

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posted at: 12:00am on 21-Jul-2021
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Appeals Court Affirms State Trooper Who Responded To An F-Bomb With An Arrest Owes $15k In Legal Fees

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By now, there's enough case law in place that law enforcement officers should definitely know it's a violation of rights to arrest someone for momentarily offending them. Even without the case law, these officers know it's not okay to bust people for flipping them off or yelling expletives in their general direction. That's why those that do, buttress their rights violations with absurd claims that doing these things "disturbs the peace" or violates any other "contempt of cop" law that can be deliberately misread to criminalize hurting a cop's feelings.But cops persist in engaging in retaliatory acts that target protected speech. And the most protected speech of all is criticism of the government, even if it's nothing more than a fleeting expletive or the bird being delivered by the passenger of a passing car.This refusal to let bygones be bygones when the moving vehicle has moved on is going to cost taxpayers some money. A case already decided by the Eighth Circuit Appeals Court in favor of the citizen setting up Arkansas State Trooper Lagarian Cross with the F-bomb now has a much more expensive price tag.The original 2019 decision refused to grant Trooper Cross qualified immunity. It also awarded the swear Eric Thurairajah nominal damages: one US dollar. Here's a brief rundown of the facts behind the first visit to the Appeals Court, as well as setting the stage for the Eighth Circuit's second pass.

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell "f**k you!" out of his car window. The van's occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell. Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas's disorderly conduct law. Trooper Cross believed the shout constituted "unreasonable or excessive noise" under the law. Ark. Code Ann. § 5-71-207(a)(2).Thurairajah spent several hours in jail but then was released and all charges against him were dropped. He filed a § 1983 lawsuit against Trooper Cross alleging the trooper violated his First Amendment right to be free from retaliation and his Fourth Amendment right to be free from unreasonable seizure. Trooper Cross moved for summary judgment on the basis of qualified immunity. The district court denied qualified immunity on both claims after concluding Trooper Cross's arrest violated Thurairajah's clearly established constitutional rights.
"Clearly established." No qualified immunity. The trooper's appeal netted him nothing but an affirmation of both the lower court's decision and the clear establishment of the right he had violated.The second pass by the appeals court doesn't bother affirming anything that hasn't already been said twice. But it does help Trooper Cross dig himself an even more expensive hole with his inability to accept his loss gracefully. From the decision [PDF]:
The court sua sponte entered an order in limine precluding Thurairajah from presenting a punitive-damages argument to the jury. At trial, the jury returned a verdict finding that Trooper Cross’s actions were not the proximate cause of Thurairajah’s damages and awarded him nothing. The district court subsequently awarded nominal damages of $1.00 to Thurairajah. Thurairajah moved for a new trial, alleging that defense counsel acted inappropriately and that the district court should not have admitted evidence of a collateral source at trial. The district court denied the motion. Thurairajah moved for attorney’s fees, and the district court awarded attorney’s fees of $15,100.00.
Trooper Cross appealed this decision. He needn't have bothered. The fees award is affirmed, meaning whoever's indemnifying the state trooper will be paying $15,000 in legal fees to the plaintiff.And the concurrence says the Eighth Circuit may have misread state law to give the trooper a pass on the plaintiff's state law claims. According to Arkansas law, no immunity may be awarded if the officer's violation of someone's rights is "malicious." The Eighth Circuit says nothing on the record supports the claim Trooper Cross's arrest was a "conscious violation of the law." The concurrence says that take is wrong. There's plenty on the record suggesting otherwise.
Thurairajah described the arrest as “hostile,” “violent,” and “personal.” He testified that Trooper Cross yelled at him to get out of the car, walked towards him “fast,” and asked him if he “thought that s**t was cute.” Thurairajah also testified that Trooper Cross was “aggressively moving [him] around” during the arrest, was “very aggressive through all the searches [of him],” and “was obviously very angry.” At one point, Trooper Cross told Thurairajah, “You can’t talk to cops like that; you can’t yell F-you to a cop.” And at the jail later, Thurairajah heard Trooper Cross tell someone, “This kid said ‘F**k you’ to a cop; so I thought I would bring him in.” Viewing these facts in Thurairajah’s favor, a jury could reasonably conclude that Trooper Cross arrested Thurairajah not because he believed Thurairajah engaged in disorderly conduct, but because he was angered by the profanity Thurairajah directed at him. And given that it was clearly established at the time that “[c]riticism of law enforcement officers, even with profanity, is protected speech,” Thurairajah v. City of Fort Smith, 925 F.3d 979, 985 (8th Cir. 2019) (first citing City of Houston v. Hill, 482 U.S. 451, 461 (1987); and then citing Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017)), a jury could conclude that Trooper Cross consciously violated the law or arrested Thurairajah “without just cause or excuse, [and] with an intent to inflict injury,” Fuqua, 20 S.W.3d at 391 (quoting Malice, Black’s Law Dictionary (6th ed. 1990)).
But that's the concurrence and Trooper Cross is lucky to escape only $15k lighter in the (collective, taxpayer-funded) wallet.Almost everywhere in this country it's clearly established that expletives and middle fingers are protected speech, even when they target police officers. Every officer that engages in a retaliatory arrest is only creating more precedent that separates them from their dearly beloved qualified immunity. Smart cops don't blow judicial goodwill on foul-mouthed randos. But there appears to be more than enough dumb cops willing to indulge their worst impulses, ensuring an unfortunately steady stream of increasingly redundant federal court decisions.

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posted at: 12:00am on 20-Jul-2021
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Google Jumps Into The Game Revenue Split Wars With Stadia

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It's no secret that the launch of Google's video game streaming platform Stadia has not exactly been smooth. From access issues to performance problems, up to and including a low adoption rate and stunted catalogue of games, this appeared for all the world to be Google's video game equivalent of Google Plus. In other words, one of those projects Google launches half way and then abandons. Part of the issue with the catalogue was reports that Google wasn't going to be shelling out cash to bring in more games to the platform last year.But perhaps that is going to change. And perhaps the rumors of Stadia's forthcoming death have been greatly exaggerated. Reports now indicate that Google is going to try to attract more publishers to the platform by engaging in the same revenue-split wars currently going on between Steam, Epic, and Microsoft.

As part of a Stadia keynote presentation today, Google announced several moves designed to attract more games and publishers to its streaming gaming service. Chief among these is a more generous revenue split for publishers on the platform. Starting in October, Google will only take a 15 percent cut of the first $3 million in revenue for each new game on Stadia.Assuming the industry-standard 30 percent cut, that means publishers stand to make up to $450,000 more per game before Google's cut reverts back to the standard at the $3 million threshold (a Google representative told Ars that "Stadia currently provides competitive revenue share terms with partners that matches what they typically see from other industry platforms"). The more generous deal only applies to "newly signed games" on Stadia from October through the end of 2023, though, meaning publishers that got in on Stadia early will miss out on the increase for their legacy titles.
As noted, this program is specifically designed to attract new game titles to Stadia. It's also worth noting that the "industry-standard 30%" platform cut isn't necessarily the industry standard any longer, unless you only consider Steam as the standard. And that would be dumb. There is emerging competition in the gaming storefront space... finally.But, for Stadia, this is less about trying to carve out more market share and more about carving out any market share. Stadia only has 195 games on its platform. And while that might sound like a healthy amount, it's really not. Not when you consider the thousands of games available on Steam and Epic, or even the hundreds of games you can buy for last-generation consoles. Yes, streaming is different and not all games will be good candidates for the streaming platform. But streaming services become attractive largely by volume of offering. Imagine Netflix never getting past 200 television shows and movies. It wouldn't work.Stadia is also trying to lure more games onto the platform with other revenue-makers as well.
Google will also more directly be giving publishers a cut of the proceeds from the games Stadia offers as freebies through its $10/month Stadia Pro subscription. A full 70 percent of Stadia Pro revenue will now be shared with the publishers of "any new title that enters into Stadia Pro" starting this month. That revenue will be divided up among publishers based on the number of "session days" (i.e., daily active users per day) logged on each title among all Stadia Pro users.Finally, Google says that it will be rolling out a new Affiliate Marketing Program to increase the value of the "Click to Play" links that Stadia developers and publishers can create. Starting sometime in early 2022, if a player signs up for Stadia Pro using one of those instant-play links, the developer or publisher behind the link will receive the first $10 monthly payment made on the subscription (after a one-month free trial).
All of which is to denote that it looks like Google isn't ready to give up on Stadia yet. But getting more games on Stadia is just the first step. Even if that's successful, Google then has to gain more customer adoption. That's going to take time and investment over the mid- to long-term.And after the rocky start, we'll get to find out together whether more games will be enough to get the bad Stadia taste out of the public's mouth.

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posted at: 12:00am on 20-Jul-2021
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This Week In Techdirt History: July 11th - 17th

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Five Years AgoThis week in 2016, the DEA seemed to be making some kind of effort to curb its abuse of warrantless wiretaps, while a report in the UK showed that police improperly accessed data on citizens thousands of times, and Sweden was considering making DNA that had been donated purely for medical research available to cops and insurance companies. Two senators were speaking out against efforts to expand FBI surveillance, and one of them who is well known to Techdirt readers — Ron Wyden — joined the podcast to discuss it. This was also the week that Pokemon Go took the world by storm, and we had an early mention of what is now a household name with a post about AstraZeneca trying to extend a patent.Ten Years AgoThis week in 2011, we wrote about why PROTECT IP would fail in its goals because people would never accept it, while lobbyists were ramping up the pressure to get it passed. Righthaven was accused of avoiding paying legal fees it owed and was ordered to stop delaying, while it continued to suffer loss after loss. And the Monkey Selfie drama continued, with a news agency telling us to remove the photos from our post and the photographer claiming he owned the copyright because he thought the picture might happen, while we looked closer at why the photo is likely in the public domain.Fifteen Years AgoThis week in 2006, a judge handed down a worrying ruling that said it infringes copyright to edit movies you've bought. The recording industry in the UK was asking ISPs to shut down the accounts of file sharers, but they were not convinced by the evidence, drawing the disappointing ire of indie record labels that were failing to innovate. There was also a lot of think-of-the-children panic happening, and we took a look at the overbearing ways people were trying to keep kids "safe" by tracking and monitoring them, while some in congress were blaming MySpace for troubled children.

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posted at: 12:00am on 18-Jul-2021
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No, The White House Isn't Colluding With Facebook To Silence Dissent; But It Sure Could Have Handled Things Better

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Honestly, this is the last thing I wanted to be writing about today. First, let's make this clear: when I've seen political officials -- both Democrats and Republicans alike -- threatening to punish companies for 1st Amendment protected activities, I call it out. Indeed, I've been highlighting these kinds of issues for years -- and it has nothing to do with politics or ideology or who I like or who I don't like.It's a simple fact: the US government should not be threatening or coercing private companies into taking down protected speech.But, over the past few days there's been an absolutely ridiculous shit storm falsely claiming that the White House is, in fact, doing this with Facebook, leading to a whole bunch of nonsense -- mainly from the President's critics. It began on Thursday, when White House press secretary Jen Psaki, in talking about vaccine disinfo, noted that the White House had flagged vaccine disinformation to Facebook. And... critics of the President completely lost their shit claiming that it was a "First Amendment violation" or that it somehow proved Donald Trump's case against the social media companies.It did none of those things.On Friday, rather than recognizing how this whole line of argument would be weaponized, the White House doubled down, again highlighting how it was upset about misinformation about vaccines on social media, and then when asked directly about "Facebook" Joe Biden said "they're killing people." This is, of course, wrong. Facebook is not killing people. Some idiots on Facebook are spreading misinformation and disinformation that is likely causing people to die, but we should be putting the blame where it needs to be put. On the people spreading the disinformation.Either way, the fact that the government might flag to social media companies that certain content is disinformation does not, in any way, reach the level of coercion or demands that would make it a 1st Amendment violation. There was no indication that the companies were told to take it down. There's no indication that anything happened other than the administration saying "Hey, this stuff is dangerous." And, I mean, if you're going to get mad at administrations demanding social media posts get taken down, it certainly looks like the Trump administration went way further than the Biden administration did in demanding such things (like that time with regards to posts advocating for the removal of confederate statues). I don't remember any of the folks now screaming about the Biden administration complaining when Trump actually did demand posts be removed.Of course, that still doesn't make this necessarily the right approach by the White House -- and frankly, it's astounding that they walked right into this seemingly unaware of how it would all play out. Ken White wrote out the perfect way in which a smart White House would have dealt with this issue:

Here's how the Biden Administration could handle the plague of deadly disinformation in a way that wouldn't play into the Trumpist censorship narrative:
"The First Amendment and Section 230 let private companies like Twitter and Facebook choose how to moderate their sites. American free speech rights are exceptional and protect a very large amount of speech many of us would agree is dangerous or harmful. That broad protection helps insulate speech from political and ideological urges to censor. But the government has a leadership function as well as a governing one. Part of leadership is praising good behavior and condemning bad behavior, in hopes that people will do the right thing, without the coercion of law.Facebook has a right to make money off of this alarming and deadly disinformation. But that doesn't make it the right thing to do. Just as Americans have the right to say poisonous and ugly things to each other, that doesn't make it right. When Facebook is exercising its right to profit off of deadly propaganda about COVID, it's doing the wrong moral thing. It's being a bad citizen. The First Amendment protects it from coercion, but not from criticism yours and ours.We call on Facebook to reconsider its stance. We've identified common anti-scientific propaganda that puts lives at risk. Facebook can continue to profit off of it. But it can choose not to. We call on Facebook to do the right thing - for Americans and their lives."
Would it really have been so hard to have done something like that?

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posted at: 12:00am on 17-Jul-2021
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Five Palo Alto Cops Sue The City And Their PD, Claiming A Black Lives Matter Mural Harassed Them

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A group of California police officers has decided other people's expressive rights end where their personal offense begins. Five Palo Alto police officers are suing the city, along with their own police department, for somehow discriminating against them by allowing artists to create a street-long Black Lives Matter mural these officers passed on their way to work. (Well, at least up until the mural was removed by the city in November 2020, less than six months after it was first painted.)The complaint contends harassment begins with the letter "E." From the lawsuit [PDF]:

The iconography at issue in the letter “E” of the mural is an image of Joanne Chesimard, better known as Assata Shakur, who was convicted in 1977 for the murder of New Jersey State Trooper Wermer Foerster, a white police officer. In 1979, while serving life sentence for the murder, Shakur escaped from prison and ended up in Cuba where she now has refuge and where the Cuban government refuses to extradite her to the United States. As result of her conviction and subsequent prison escape, Shakur was placed on the FBI’s Top Ten List 0f Most Wanted Domestic Terrorists.
The cops also have a problem with a "portion of a logo" that has been attributed to the New Black Panthers, an organization designated a hate group by the Southern Poverty Law Center.It's these two elements of the city-ordained mural that seem to be triggering (yes, and in that form of the word as well) the harassment allegations. That and the fact that the officers were somehow forced to pass the mural on their way to work despite -- as the Palo Alto Daily Post points out -- the officers having to go out of their way to subject themselves to it.
The police department is located at 275 Forest Ave., on the opposite side of City Hall from the mural. The two vehicle entrances to the department are in the 600 block of Ramona and Bryant streets, a half block from where the mural had been located.
Here's a little visual aid that shows how impossible it was for these officers to avoid being confronted by a controversial E:
Somehow the existence of this mural on a street a block away from the police department resulted in host of discrimination and harassment targeting this "protected" group of police officers.
Plaintiffs’ careers have been materially and adversely affected, and irreparably harmed and damaged by the conduct of the Defendants. Defendants, and each of them, created and allowed to exist harassing, discriminatory, and retaliatory work environment and failed to eliminate the illegal conduct complained of by Plaintiffs. Plaintiffs were discriminated against and harassed on the basis of their race, national origin, and/or color and retaliated against for exercising their rights to be free from harassing and discriminatory conduct in the workplace.Moreover, Plaintiffs spoke out about and reported misconduct, retaliation, discrimination, and harassment in violation of state and federal law and reported such conduct to people above them in the chain of command. As direct and proximate consequence of reporting such misconduct—which constitutes protected activity under state and federal law—Defendants, and each of them, retaliated against, discriminated against, and harassed Plaintiffs and subjected them to adverse employment actions.Those adverse employment actions include, but are not limited to, refusing to eliminate the harassing and discriminatory conduct, and failing or refusing to investigate Plaintiffs’ complaints.
So, while the city did allow the mural to occupy the street and gave its blessing to the sixteen artists involved, it did not direct or supervise the content of the mural. And it's not really "retaliation" for the PD and the City to not remove a mural just because five cops seem super angry about it. Nor is it "retaliation" to refuse to investigate claims that are facially idiotic.The complaints aren't any less specious just because a law firm signed off on it. The plaintiffs fail to indicate which protected group they believe they're in, which makes it appear the officers believe "police officer" ranks right up there with race, national origin, and skin color.They also believe the mural bullied them in horrible but nonspecific ways.
As a direct, foreseeable, and proximate result of Defendants' harassing conduct and failure to act, Plaintiffs suffered and continue to suffer humiliation, embarrassment, anxiety, mental anguish, and emotional distress. Plaintiffs were required to and did employ, and will in the future employ, physicians and health care providers to examine, treat, and care for Plaintiffs, and did, and will in the future, incur medical and incidental expenses.
Welp, this lawsuit isn't going to help much on the humiliation and embarrassment fronts. Without more factual assertions about the mural's harassment of protected individuals who happened to pass by it on their way to work as public servants, it's probably not going to survive the first motion to dismiss.The plaintiffs should be wary of trying to push this too far, because it really looks like the plaintiffs are trying to make the case that saying "Black Lives Matter" somehow means the lives of people who aren't black somehow don't. Their incorrect assumptions about the meaning of this phrase -- as well as their innate ability to be personally offended by certain elements of the street mural -- isn't even remotely in the ballpark of any legally actionable claims.

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posted at: 12:00am on 17-Jul-2021
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Social Tech Loses Appeal To Apple Over 'Memoji' Trademark Because Suing Apple Isn't Using The Mark In Commerce

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For what it's worth, lawsuits against Apple over emojis are not entirely unheard of. You may recall that Apple was sued by a woman who claimed it was copyright infringement for Apple to have emojis that represent more diverse communities, for instance. But for a truly fun story about Apple being sued, and winning its defense, over emojis, well, you have to go to a case between Apple and a company called Social Tech.

Social Tech sued Apple in 2018, alleging Apple's Memoji personalized emoji feature infringed its trademark covering its app with the same name. U.S. District Judge Vince Chhabria ruled for Apple in 2019.
Indeed. And Social Tech appealed that ruling. So why did the court find for Apple in 2019? Well, because Social Tech couldn't demonstrate that it was actually using the mark in commerce. This is where we'll need to dig into some details.In 2016 Social Tech filed an intent-to-use trademark application for "Memoji" for use in apps and software. The Trademark Office granted a Notice of Allowance, which essentially gives the go ahead to the applicant to put the mark in actual commerce, after which the UPSTO would approve the mark. Social Tech basically did nothing for 2 years after that, other than to ask for an extension on the Notice of Allowance. Meanwhile, another company called Lucky Bunny LLC filed its own trademark application for "Memoji" for the same class of goods. That application was suspended due to the Social Tech application status. In the summer of 2018, Apple acquired Lucky Bunny and its assets, including the suspended trademark application. In June, Apple announced the acquisition and released a public test version of its new mobile OS that included Lucky Bunny's Memoji software.And this is where it gets weird. When I said above that Social Tech did nothing for two years before Apple's announcement, that's not entirely true. Social Tech did write a business plan, fund itself internally for $100k, and write up some promotional material. What it didn't do was write a single line of code... until Apple announced the acquisition. Then, and only then, did Social Tech's interest in actually using the Memoji mark in commerce go into overdrive.The appeal was decided by the court in Apple's favor as a result of all of this, but the details laid out in the judgement are striking.
During the three weeks after Apple’s announcement, Social Tech’s co-founder and president, Samuel Bonet, exchanged a series of emails with a software developer to accelerate the timing of the application’s development. In the first of these emails on June 7, Bonet described the circumstances to be “life changing” and concluded the email with: “Time to get paid, gentlemen.” In a series of subsequent emails, Bonet regularly followed up with the developer on the application’s progress. On June 12, Bonet wrote: “the app needs to erase the background AND the body . . . Of course this may take a little work to get perfect, but as long as we can get close initially, we can start to test and put in commerce.” On the evening of June 13, Bonet wrote to the developer: “[i]n other news . . . the initial letter has been sent to Apple. The process has begun. Peace and wealth!” Bonet continued to follow up on the application’s progress over the next several days, noting that “the editing feature [was] vital” to “satisfy the ‘editing’ requirement of the trademark.” On June 18, Bonet wrote that Social Tech would release the application for Android in the Google Play Store first, proclaiming: “We are lining up all of our information, in preparation for a nice lawsuit against Apple, Inc! We are looking REALLY good. Get your Lamborghini picked out!”
It goes on from there, but the general gist is that Social Tech was very specifically attempting to finally get its mark pushed through simply in order to file these trademark suits and "get paid." And that, sadly for Social Tech, does not satisfy the requirement for using the mark in commerce. And, since the entire enterprise of putting a broken app in commerce was done simply to get the trademark for "Memoji" and file the lawsuit, those don't actually count either.As a result, the court found for Apple.
The panel held that mere adoption of a mark without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark under the Lanham Act. Use in commerce requires use of a genuine character, in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind. Considering the totality of the circumstances, including relevant non-sales activities, the panel agreed with the district court that the evidence in the record showed that Social Tech’s use of the MEMOJI mark was not bona fide in commerce. Accordingly, Apple was entitled to cancellation of Social Tech’s trademark registration.
When it comes to intellectual property, it's nice to see grifting not work out for the grifters once in a while.

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posted at: 12:00am on 16-Jul-2021
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Tenth Circuit: No Immunity For Cops Who Protected An Abusive Fellow Officer Right Up Until He Murdered His Ex-Wife

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Law enforcement officers have no legal obligation to protect and serve. The words look nice on badges and insignias, but courts have said this is only a nicety, not a guarantee.But that doesn't mean officers can abandon any pretense of protection and service. There are some limits enforced by precedent. Neglecting to take complaints and threats seriously can have consequences. The difference is the definition. There's no due process right to protection and service. But the government does have an obligation under the Fourteenth Amendment to ensure no citizen receives less protection and service than others.That fine line was crossed in this tragic case handled by the Tenth Circuit Appeals Court. And it all could have been avoided if the officers involved didn't decide to give one of their own some unequal protection. The decision [PDF] opens by briefly alluding to this fine line.

This case arose after a Silver City police officer murdered his ex-girlfriend, Nikki Bascom, and then committed suicide. Her Estate sued, alleging the Silver City police did not adequately respond to Ms. Bascom’s domestic violence complaints because the shooter, Marcello Contreras, was a fellow police officer. The Estate brought various civil rights claims under 42 U.S.C. § 1983, including a claim that Silver City officers Ed Reynolds and Ricky Villalobos violated Ms. Bascom’s equal protection rights by providing her less police protection than other similarly situated domestic violence victims.
The lower court denied qualified immunity to the officers. They appealed. And they lose again.The circumstances of the case would have been awful enough without the added ugliness of police officers giving an abusive fellow officer a pass, thereby placing his family in the direct line of the harms that followed. And this could have perhaps been avoided if the Silver City police department hadn't been so keen on adding a bad apple to its barrel.
In 1999, Marcello Contreras’s then-wife, Nikki Bascom, reported to the Silver City Police Department (SCPD) that Contreras had threatened to shoot her at gunpoint because he believed she was having an affair. Contreras admitted pushing his wife but denied threatening her. SCPD charged him with battery on a household member. Nevertheless, in 2001, SCPD hired him as a police officer.
Contreras spent the next fifteen years as an SCPD officer. He also spent the next fifteen years in an on-again, off-again relationship with Bascom. The relationship was apparently off when Contreras showed up at her house, drunk, potentially suicidal, and complaining about a suspected affair. (The court notes the two were not dating at this point.) Three officers responded to Ms. Bascom's teen son's 911 call about the argument and Contreras' threat to shoot himself.Officers arrived at the scene and then apparently decided to bend/break all the rules to allow Contreras a semi-graceful exit.
When the officers arrived on the scene, Ms. Bascom handed Sergeant Arredondo a gun she had taken from Contreras and said “[Contreras] has gone crazy and wants to kill himself.” Ms. Bascom informed Sergeant Arredondo that Contreras had been drinking heavily for two days. Sergeant Arredondo observed that Contreras had alcohol on his breath and had bloodshot, watery eyes. Despite Sergeant Arredondo being “one of the number one DWI go-getters that makes most of [SCPD’s] DWI arrests,” he allowed Contreras—who had clearly consumed alcohol recently—to drive his truck into the driveway.The officers also acted contrary to SCPD training and policy. Although SCPD officers are trained to interview the 911 caller in a domestic incident, the officers on the scene did not interview Ms. Bascom’s son. Moreover, no officer completed a verbal tracking form, which department policy requires so that officers are aware of volatile situations.
Non-law enforcement employees also assisted with the whitewashing of this domestic incident.
Finally, dispatch initially classified the call as a “domestic disturbance.” Minutes later, the call type was changed to a “welfare check” at the request of one of the responding officers. The dispatcher explained that the call type was changed to protect Contreras. This change made it more difficult for agencies to detect a history of domestic violence at the residence.
The buck got passed. And it never stopped.
Sergeant Arredondo reported the domestic disturbance incident to Chief Reynolds. Chief Reynolds met with Contreras and suggested he take advantage of the employee assistance program. But Contreras was not charged with any offenses—domestic violence, refusal to obey an officer, or DWI—as a result of the incident.
Two weeks later, Ms. Bascom reported Contreras was following her around in his car and had harassed one of her coworkers. The chief basically told Contreras to "knock it off" but did not document the allegation or deploy any form of discipline. Three days after this report, Chief Reynolds promoted Contreras to acting Captain and gave him a raise.A month later, while on duty, Contreras used his SCPD car to force Bascom off the road. When she tried to call 911, he took her phone. He then went to the coworker's house and threatened him. This incident was also reported to Chief Reynolds. Finally, the chief did something. He placed Contreras on administrative leave and took his weapon. But then he let Contreras go without documenting the allegation or filing a criminal complaint, even though he admitted in court he could have and that Contreras' actions were criminal.Contreras left the police station and began following Bascom again. Another 911 call was made and the Grant County Sheriff's Department responded. Chief Reynolds spoke to one of the sheriff's officers but did not detail the events of the past month. Bascom then left her house and headed towards a domestic violence shelter. She called 911 again because Contreras was still following her. Contreras, in turn, was followed by a sheriff's officer, but the officer didn't feel he had enough evidence to perform a stop. He said this in a call to Chief Reynolds while following Contreras. Chief Reynolds decided there was no need to inform the officer that Contreras had forced her off the road earlier in the day and stolen her cell phone.Here's how it all ended:
Ms. Bascom left the domestic violence shelter and drove to her friend’s house. As he had done many times that day, Contreras followed her there. At 4:20 p.m., Contreras shot and killed Ms. Bascom in front of her friend’s house and then turned the gun on himself. Afterwards, Sergeant Yost told dispatch that he should have stopped Contreras and that he could have saved Ms. Bascom’s life. The dispatcher responded, “[W]e have been dealing with this off and on for over a month now, and it’s been swept under the rug.”
The court notes the SCPD's handling of Contreras was completely different than the way it handled situations like these that did not involve SCPD officers.
In 2016, the year Ms. Bascom was murdered, 149 domestic violence calls resulted in 140 arrests by SCPD officers—an arrest rate of 94 percent. In its briefing before the district court, the Estate identified eight domestic violence complaints where the assailant either (1) pulled a victim over by swerving in front of the victim’s car or (2) pulled a cell phone out of the victim’s hand. In all of these cases, SCPD officers either arrested the assailant at the scene, signed a criminal complaint, or sought an arrest warrant. SCPD officers also arrested domestic violence offenders in relatively minor disputes and even arrested and charged domestic violence suspects over victims’ objections, as mandated by SCPD policy.
This discrepancy is a violation of rights.
We find that the facts found by the district court support an equal protection claim. Although Ms. Bascom was similarly situated to other domestic violence victims, she was treated differently because her assailant was a police officer with whom she had been in a domestic relationship. When other domestic violence victims reported domestic violence to SCPD, the non-police officer assailant was arrested 94 percent of the time. When Ms. Bascom and her son repeatedly reported Contreras’s domestic violence to SCPD, Contreras was never arrested. Instead, the Officers brushed SCPD domestic violence policy aside to protect their fellow police officer. A reasonable jury could conclude these facts demonstrate disparate treatment of domestic violence victims whose assailants were not police officers and whose assailants were police officers with whom they had been in a domestic relationship.
Put a bit more starkly and accurately:
SCPD has two domestic violence policies: one for victims whose assailants are SCPD officers, and one for everyone else.
This isn't the court making a wry observation using a shopworn idiom. It's an actual fact. Police officers suspected of domestic violence are referred to an outside agency. They are not arrested or detained while this is handled by outside investigators. The outside agency only receives limited information: name of the complainant and the allegations. No statements, documentation, or any other evidence collected prior to this referral is handed over. Non-officers accused of domestic violence are almost always arrested immediately. Cops accused of domestic violence are free to go while outside investigators play catch up with limited info and minimal cooperation.This unequal protection is unconstitutional. And this is a clearly established violation of rights these officers should have been aware of prior to their sheltering of the abuser in their midst.
Here we have two factually similar cases, Watson and Price-Cornelison, which clearly established at the time of the Officers’ conduct that providing less protection to domestic violence victims, or certain sub-classes of domestic violence victims, violates the Equal Protection Clause. These cases would put a reasonable officer on notice that it is unlawful to provide less police protection to victims of domestic violence whose assailants are police officers with whom they had been in a domestic relationship than is provided to victims without police assailants.
No qualified immunity for the officers who protected one of their own right up until he took two lives -- officers whose actions were so blatantly unequal the dispatcher admitted to another law enforcement agency the PD had been sweeping Contreras' violence and severe misconduct "under the rug." And the person holding the biggest broom -- the chief -- did nothing for a month. Then he followed it up by doing too little far too late.

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posted at: 12:00am on 16-Jul-2021
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Japanese Police Arrest Man For Selling Modded Save Files For Single-Player Nintendo Game

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We've already written a few times about how Japan's onerous Unfair Competition Prevention Law has created what looks from here like a massive overreach on the criminalization of copyright laws. Past examples include Japanese journalism executives being arrested over a book that tells people how to back up their own DVDs, along with more high-profile cases in which arrests occurred over the selling of cheats or exploits in online multiplayer video games. While these too seem like an overreach of copyright law, or at least an over-criminalization of relatively minor business problems facing electronic media companies, they are nothing compared with the idea that a person could be arrested and face jail time for the crime of selling modded save-game files for single player game like The Legend of Zelda: Breath of the Wild.

A 27-year old man in Japan was arrested after he was caught attempting to sell modified Zelda: Breath of The Wild save files.As reported by the Broadcasting System of Niigata (and spotted by Dextro) Ichimin Sho was arrested on July 8 after he posted about modified save files for the Nintendo Switch version of Breath of The Wild. He posted his services onto an unspecified auction site, describing it as “the strongest software.” He would provide modded save files that would give the player improved in-game abilities and also items that were difficult to obtain were made available as requested by the customer. In his original listing, he reportedly was charging folks 3,500 yen (around $31 USD) for his service.
Upon arrest, Sho admitted that he's made something like $90k over 18 months selling modded saves and software. Whatever his other ventures, the fact remains that Sho was arrested for selling modded saves for this one Zelda game to the public. And this game is fully a single-player game. In other words, there is not aspect of this arrest that involved staving off cheating in online multiplayer games, which is one of the concerns that has typically led to these arrests in Japan within the gaming industry. This is more like people getting mods for their owned games, along with save game files being traded, something that has existed in gaming for as long as the industry has existed.As Kotaku notes, this isn't wholly new for Japan.
While this might seem wild, being arrested for selling save files, it’s not a new situation in Japan. Police in Japan have previously arrested folks for modifying video game software which violates the Unfair Competition Prevention Law in Japan. This same law was also used by Nintendo to sue a go-kart company in 2017. In 2015, another man in Japan was arrested after selling cheats in the popular online shooter Alliance of Valiant Arms.
Except, again, in most of those instances the police were arresting those selling mods and cheats for online multiplayer games. That's, frankly, bad enough, but we're now talking about the arrest of a person for selling save game files for a single-player game.And the real question becomes: who is this arrest protecting? The selling of these files doesn't take any considerable money out of Nintendo's pocket. It doesn't harm other players of the game in the way cheating in online games does. So why is this arrest even happening? And, if there's no good answer to that question, why is such a poorly written law that allows for this arrest remaining in place?

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posted at: 12:00am on 15-Jul-2021
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Content Moderation Case Study: Twitter Experiences Problems Moderating Audio Tweets (2020)

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Summary: Since its debut in 2007, Twitter hasn't changed much about its formula, except for expanding its character limit from 140 to 280 in 2007 and adding useful features such as lists, trending topics and polls. Twitter has embraced images and videos, adding it to its original text-only formula, but seemed to have little use for audio. That changed in June 2020 when Twitter announced it would allow users to upload audio-only tweets. Remaining true to the original formula, audio tweets were limited to 140 seconds, although Twitter will automatically add new audio tweets to a thread if the user's recording ran long.With Twitter engaged in day-to-day struggles moderating millions of tweets, critics and analysts expressed concern the platform would be unable to adequately monitor tweets whose content couldn't be immediately discerned by other users. The content would be unable to be pre-screened by moderators -- at least not without significant AI assistance. But that assistance might prove problematic if it caused more problems than it solved by overblocking.There was also the potential for harassment. Since abusive audio tweets relied heavily on other Twitter users reporting, abusive audio tweets could be posted and remain up until someone noticed and reported it.Another issue audio tweets raised wasn't about proactively flagging and removing unwanted content, but that this new offering excluded certain Twitter users from being a part of the conversation.

Within hours of the first voice tweets being posted, deaf and hard-of-hearing users began to criticize the tool, saying that Twitter had failed to provide a way to make the audio clips accessible for anyone who can't physically hear them.-- Kiera Frazier, YR Media
The new feature debuted without auto-captioning or any other options that would have made the content more accessible to Deaf or hard of hearing users.There were other potential problems, such as users being exposed to possibly disturbing content with no heads up from the platform.
'You can Tweet a Tweet. But now you can Tweet your voice!' This was how Twitter introduced last week its new audio-tweet option. In the replies to the announcement [another user asked], Is this what y'all want? ... reposting another user's audio tweet, which used the new feature to record the sounds of porn.-- Hanna Kozlowska, OneZero
Unlike other adult content on Twitter, the recording of porn sounds was not labelled as sensitive by Twitter or hidden from users whose account settings requested they not be shown this sort of content.Company considerations:
  • Is it possible to proactively filter audio content to be flagged, prevented from being posted, or quickly removed?
  • If an audio tweet was reported, should Twitter remove this feature from the user immediately or wait until it is reviewed? If the tweet violates Twitter's content policy, should they temporarily or permanently take away this feature from the user?
  • Should unmoderated audio be labelled as sensitive if they are reported until cleared by moderators/AI?
  • Should users be given the option to hide/block all audio tweets?
Issue considerations:
  • What makes audio-only moderation different from text, image, or video moderating? Is audio-only moderation more challenging?
  • What are other proactive methods of moderating audio content? Would they be more or less effective than relying on users flagging abusive content?
  • Is AI reliable enough to handle most instances of unwanted content without the assistance of human moderators?
  • How can platforms ensure that audio-only or visual-only content be accessible to those who have a hearing or visual disability or impairment?
Resolution: Twitter responded to the concerns of the Deaf and hard-of-hearing by apologizing for not considering the implications of an audio-only option.
We're sorry about testing voice Tweets without support for people who are visually impaired, deaf, or hard of hearing. It was a miss to introduce this experiment without this support.Accessibility should not be an afterthought.-- Twitter
The platform fixed some issues with visual accessibility and said it was implementing a combination of auto- and human-captioning to give Deaf persons a way to access this content.As for the porn-audio tweet, Twitter flagged it after it was reported but did not appear to have any other approach to dealing with questions around adult content in audio tweets. It appears sensitive content is not as easy to detect when it's in audio form, which means that for now, it's up to users to report unwanted or abusive content so that Twitter can take action.Originally published on the Trust & Safety Foundation website.

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Oversight Report Says DC's Metro Police Can't Be Bothered To Investigate Serious Crimes

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Police, v. : maintain law and orderPolice, n.: responsible for the prevention and detection of crime and the maintenance of law and order
Given these definitions, how is it that Washington, DC's Metro Transit Police Department still has the word "police' in its name?
Metro Transit Police can’t demonstrate that officers investigated thousands of reported robberies, assaults, sex offenses and property crimes over a span of several years, according to the agency’s internal watchdog.In the case of 1,200 reported crimes, “investigative case files lacked any documentation of investigative activity,” according to a report released Thursday by the agency’s Office of Inspector General. More than 1,600 other case files were missing or withheld from the inspector general, according to the report.
Don't let the name "transit" fool you as much as the word "police" has. The Transit Police "investigate" all crimes that occur on city transit property. Some of these are serious crimes. And they're treated with way less enthusiasm than officers deploy against fare jumpers.
909 cases were open robberies (4.89%)
108 cases were open felony assaults (.58%)
471 cases were open misdemeanor assault (2.53%)
3 cases were open felony sex offenses (.02%)
66 cases were open misdemeanor sex Offenses (.36%)
48 cases were open indecent exposure cases (.26%)
1514 cases were open crimes against property (8.15%
)
This is part of the long list of crimes that MTPD isn't solving or even, apparently, investigating. The Inspector General's report [PDF] is an entertaining read, but for all the wrong reasons. It details a distressing amount of incompetence or lack of cooperation. Or possibly both.
OIG began its investigation in August 2020 and has made multiple attempts to recover all 3,110 investigative files. OIG has provided MTPD numerous opportunities to produce all investigative material associated with these complaints, but MTPD’s production, to date, has been incomplete. After six months, multiple suspense deadlines, and given the significant decrease in the volume of investigative case files being produce by MTPD, the OIG closed its investigation with MTPD’s limited production of investigative files.[...]An analysis of the documentation provided revealed that approximately 84.1% (1,215 cases) of what MTPD described as investigative case files lacked any documentation of investigative activity. MTPD staff’s failure to properly and accurately maintain investigative files, evidence, and/or associated judicial records obstructed OIG’s ability to determine if CID Detectives ignored victim complaints between 2010 and 2017.
You know, obstruction is a crime. Obviously, someone other than the MTPD should investigate this.Maybe it's not just incompetence. The OIG notes it opened an investigation in 2012 after receiving an allegation that Transit detectives were falsifying investigations. In that investigation, the OIG found discrepancies between what was documented by CID (Criminal Investigations Division) detectives and what the OIG was told by crime victims it interviewed.The obstruction/incompetence was present then, too.
As in this current investigation, in 2012, the OIG requested to review 2011 and 2012 CID case files; however, MTPD could not produce 88 out of 134 randomly selected suspended case files.
Corrective actions were ordered and supposedly implemented. But the Inspector General says nearly a decade later, some of what it recommended still has yet to be completed by the MTPD.From what's seen in this report, it appears the MTPD just isn't interested in investigating crimes. The investigation files seen by the Inspector General contained almost no evidence any investigation occurred. Instead, it appeared CID detectives were simply checking boxes until the case could be closed, in most cases without any resolution.
Out of the 1,445 case files provided, 82.1% (1,186 cases) contained only a one-page closing document without any evidence that an actual investigation was ever conducted. Moreover, 2% (29 cases) contained only two documents, a closing document and the ER [End Report], which is a document generally prepared based on information gathered by the responding MTPD officer. In these 29 cases, however, there was still no evidence that an actual investigation was ever conducted.Even though these one-page closing documents did not contain investigative activity, they were nonetheless used to change the status of these investigations from open to suspended, which signifies that no further investigative activity was warranted. Most closing documents were signed by CID management officials who justified the suspension status change of these investigations based solely on a written claim that the statute of limitations to bring charges against a suspect had passed along with a statement indicating they were unable to locate the original report and case file.
Sure, the statute of limitations can prevent some cases from being investigated further, but the MTPD had no idea if the statute of limitations had run because it often had no idea what specific crime was alleged. The cases were "suspended" by CID supervisors, who never bothered to speak to detectives to see what investigative activity had occurred or obtain further details about the alleged crime.The whole system -- bought and paid for with the tax dollars of underserved DC residents -- sucks. It starts at the top, gets worse in the middle, and by the time it reaches the bottom, the only thing that does "work" is the perverse incentives.
OIG interviewed numerous other individuals who were current and/or former CID supervisors from 2010 through 2020. None of these individuals could definitively state that all 3,110 victim and general complaints were investigated. They all expressed concern over the discovery of 3,110 complaints that still appeared to be in an open status in the CID database. They generally attributed the lack of accountability and oversight of CID cases to a variety of factors, including lack of supervisory knowledge of CID’s duties and responsibilities; insufficient supervisory staff; lack of administrative case oversight; high caseloads; nonexistence of policies and procedures; and lack of a case tracking system. In addition, the interviews uncovered that performance evaluations of case work only focused on closure rates, which did not account for suspended cases and/or disposition of previously open cases from past fiscal years.
This investigation by the Inspector General is yet another MTPD-related investigation that can never be considered properly closed. The IG says it is forced to conclude that records related to 1,500 investigations simply no longer exist.As the IG points out, this is abysmal and it will result in a host of negative side effects. The OIG says (again) the MTPD obstructed its ability to carry out this investigation properly. The large number of missing investigative files make it impossible to determine whether or not CID detectives ignored complaints from victims -- another allegation of misconduct that cannot fully be resolved. The missing documentation will also put past prosecutions in jeopardy of being overturned. Finally, there's the blow to public confidence the MTPD can't possibly absorb -- not with its history of tagging minorities for minor offenses while ignoring more serious criminal acts occurring in its jurisdiction.

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posted at: 12:00am on 14-Jul-2021
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'Resident Evil 8: Village' Broken Due To DRM, Cracked Version Fixes It

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Any review of the stories we've done on DRM in video games will reveal two main categories as far as themes for those posts. The first is that DRM is laughably ineffective. DRM is an arms race that only ever has one winner: those who seek to circumvent it. Even the once-vaunted Denuvo DRM, thought, for some time, to be undefeatable, has now been reduced to being an industry joke. The other theme is how DRM has awful effects on paying customers and absolutely zero negative effects on those who commit copyright infringement. So, what is DRM? A useless platform used by video games with only one real impact: annoying paying customers.But one point that often gets lost is that cracked versions of games that include annoying DRM aren't just functioning as copyright infringement (though they certainly are primarily that), but also that these cracked versions can also be legitimately seen as fixing these broken games. For an example of this, one need only look at the PC gaming experience surrounding Resident Evil 8: Village, which is fundamentally broken on the PC for paying customers.The background here is that Capcom actually layers two different DRM systems on the game, apparently as a method for making the game much harder to crack. Instead of being cracked at the time of release, in May, the game was only cracked here in July. The problem is that this 2 months worth of protection appears to have come at the cost of the game being able to keep up when players do very necessary things in a Resident Evil game like, oh say, shooting zombies.

The retail version includes easily reproducible scenarios where attacking an advancing zombie with a gun—something you do quite often in Resident Evil games—can trigger a visible on-screen stutter. In other words, the image freezes for a noticeable moment before the game catches up, and this can be seen in RTSS's real-time graph as a spike.Whatever Capcom and Denuvo worked up this time around seems to have evaded crackers' efforts for much longer. That may have come at the price of guaranteed smooth performance—with gaming analysts like Digital Foundry's Alex Battaglia maligning the game's PC version. "This stuttering honestly leaves a very bad first impression for this game, as the pivotal moment of a first-person game with guns is shooting those guns," Battaglia said shortly after RE8:V's May 2021 launch. "If that is unsatisfying very often when you do it, then the game is doing something wrong."
Notably, the cracked version has none of these stuttering issues. In other words, the crack, or more specifically the routing around of the DRM, simply fixes the game. Yes, it's also a method for playing the game for free and thereby committing copyright infringement, but think about what this means in summary. Capcom released a game where the core gameplay element -- shooting bad guys -- doesn't work right. The cracked version makes that core gameplay element works correctly. If you're a paying customer of Capcom's, where does this leave you?Well, it leaves you in a place where the company you bought the game from has sold you an inferior product compared with the one the pirates are offering you for free. Does that make copyright infringement morally right? Absolutely not. But it is also not solid moral footing for the company to punish its paying customers for the crime of paying for the game as opposed to pirating it. Selling an inferior product is not a business strategy.For what it's worth, the guilty party in this equation looks more to be the Capcom side of the equation rather than Denuvo, but that doesn't change the fact that something like 2 months worth of protection came at the cost of the paying customer. In what world does that make any sense at all?

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posted at: 12:00am on 14-Jul-2021
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Broadcom Gets a Wrist Slap For Monopolizing Cable Box, Modem Markets

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While most folks didn't notice ahead of the holiday weekend, the FTC on Friday announced it would be giving chipmaker Broadcom a bit of a wrist slap after the agency found it had become an "illegal monopoly." In the FTC's complaint (pdf), the agency notes that Broadcom "illegally monopolized" both the cable modem/gateway and cable set top box markets by preventing its customers from buying products from other vendors. It did this by forcing both OEMs and service providers into long-term agreements that prevented them from purchasing chips from Broadcom's competitors, then bullying them if they went off script:

"These agreements required customers to purchase, use or bid Broadcom's chips on an exclusive or near-exclusive basis. Broadcom entered these exclusivity and loyalty agreements with at least ten OEMs, including those with the most extensive engineering and design capabilities and the strongest ties to service providers. And Broadcom entered similar agreements with major U.S. and other service providers. By entering exclusivity and loyalty agreements with key customers at two levels of the supply chain, Broadcom created insurmountable barriers for companies trying to compete with Broadcom."
The charges follow similar accusations in Europe. As we've long noted, the cable set box market has long been a monopolized mess on several layers. One, on the way Broadcom controls chipsets. But also in the way that cable giants generate $21 billion annually forcing consumers to rent cable boxes that would be far cheaper to buy outright. Fortunately streaming has put a dent in at least some aspects of this problem, even though cable TV with a traditional set top box remains the dominant delivery avenue for television for now (Broadcom also provides chipsets for streaming hardware).According to the FTC Broadcom won't be seeing any financial penalty for its efforts to monopolize the modem and cable box chipset market, but a new FTC order (pdf) bans the company from doing so moving forward (for however long the FTC can bother to pay attention):
"Under the proposed consent order, Broadcom will be prohibited from entering into certain types of exclusivity or loyalty agreements with its customers for the supply of key chips for traditional broadcast set top boxes and DSL and fiber broadband internet devices. Broadcom also must stop conditioning access to or requiring favorable supply terms for these chips on customers committing to exclusivity or loyalty for the supply of related chips. And the proposed order prohibits Broadcom from retaliating against customers for doing business with Broadcom's competitors."
The 4-0-1 vote (new FTC boss Lina Khan did not participate) is just a small dent in a larger problem in both telecom, cable, and the shifting cable TV market. Namely the lack of overall competition in broadband (which opens the door to unnecessary usage caps and other dodgy efforts to hamstring streaming competitors), as well as persistent gatekeeper issues, like the ongoing practice of forcing consumers to shell out thousands in rental fees for crappy cable set top boxes and streaming hardware alike.

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posted at: 12:00am on 13-Jul-2021
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Police Union Sues Kentucky City's Mayor, Claiming New No-Knock Warrant Ban Violates Its Bargaining Agreement

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The city of Lexington, Kentucky recently passed a ban on no-knock raids by the local police department. A long string of no-knock raids that have ended tragically likely contributed to this, but a recent high-profile raid in which a 26-year-old black ER technician was shot and killed by Louisville, Kentucky police officers probably hit closest to home.In that raid, officers did not announce their presence. Bursting into the house, they were met by gunfire from one of the house's residents who thought he was being robbed. (He had called 911 prior to arming himself.) While the officers did knock, they apparently did not declare they were police officers before breaking down the door. The officers returned fire, killing Breonna Taylor. The entire thing was predicated on an drug investigation that appeared to be at least partially fabricated.Lexington has its own experience with botched drug raids. A no-knock raid in 2015 terrorized the residents of the wrong house, most of whom thought they were being robbed. It wasn't until the residents were surrounded by officers pointing guns that the officers realized they had the wrong address. The push to end no-knock raids began then, prompting opposition from law enforcement.

Lexington police insist that no-knock warrants — that allow police to enter a residence without knocking or announcing — are used sparingly and are thoroughly vetted before they are carried out. Police Chief Lawrence Weathers said in a June presentation before the Lexington-Fayette Urban County Council that no-knock warrants had been used four times in the last five years.
That's according to the police department, which did not release any documents that might have confirmed the chief's claims about the limited use of these raids. Following several months of anti-police violence protests -- along with more recent tragedies linked to no-knock raids, the city passed a ban on this form of warrant service. The new city ordinance mandates that police knock, announce their presence, and wait a "reasonable" amount of time before forcing entry.Now the city and the mayor are being sued by the local police union.
The Fraternal Order of Police has filed a lawsuit against the mayor and the city over the recently passed no-knock warrant ban.It was last Thursday when the city council approved the ban in a 10 to 5 vote. The lawsuit claims that the city violated its collective bargaining agreement with the FOP.
So, what is the legal footing the FOP hopes will overturn this ban? It's a very creative reading of the city's agreement with the police union. According to bylaws the city and PD agreed to, the PD is obliged to keep officers as safe as possible. After spending some time bitching about how city reps made no effort to "negotiate" with the union, it finally gets around to laying down its ridiculous argument [PDF]. Here it is:
Article 14, Section I of the Officer/Sergeant CBA [Collective Bargaining Agreement] stipulates, "The Department will take precautions to safeguard the health and safety of Members during their hours of work and maintain standards of safety and sanitation."[...]The No-Knock Ordinance seriously endangers the health and safety of LPD Officers.The No-Knock Ordinance prohibits LPD officers from seeking a lawful no-knock warrant, even when they objectively establish probable cause that requiring law enforcement to knock and announce their presence would increase the danger to the officers involved in executing the warrant.The No-Knock Ordinance creates an extrajudicial "knock and announce" policy for all arrest and search warrants, devoid of any "precautions to safeguard the health and safety of [LPD Officers]."
It's not much of an argument. First, let's look at the police chief's statement. If the PD is only using these warrants about once a year, the loss of this one opportunity to surprise occupants isn't going to significantly increase the risk to officers.If the chief was being dishonest about the frequency of no-knock warrant deployment, there's literally no evidence available anywhere that shows no-knock warrants are safer (for occupants, officers, or the general public) than regular knock-and-announce warrants.
No studies have examined the impact of banning no-knock warrants on key outcomes such as reducing fatalities and injuries of officers and members of the public. But evaluations of the impact of police raids, which typically involve no-knock warrants, on crime include two rigorous experiments. One study assessed the impact of randomly assigning city blocks in Kansas City, MO, to receive forcible police raids involving dramatic, highly visible armed entry while other blocks were subject to routine policing practices. Researchers found no statistically significant impacts on violent crime. Another study assessed the impact of randomized deployment of police paramilitary units to raid known Buffalo, NY, drug houses over a two-week period in 2012. Evaluators detected slight increases in calls for service and drug arrests following the raids, but no significant impacts on serious violent or property crimes.A third evaluation employed a less rigorous methodology, examining 9,000 law enforcement agencies along with all of those in Maryland to compare outcomes in crime and officer assaults between agencies that established or eliminated a SWAT team during a period of time in the 2000s. The study found no statistically significant impact of SWAT deployment on either crime or officer assaults.
That comes from the Council on Criminal Justice (CCJ), whose membership includes several current and former police officials. It is not a font of anti-police activism. And it recommends ending the use of no-knock warrants and the use of plainclothes officers and/or the use of military uniforms during warrant service… to increase officer safety.
Unless they are engaged in covert operations, officers should be in standard dress uniform when executing warrants, particularly at premises that are known to be occupied, in order to be clearly identifiable as law enforcement and remove the impression that the execution of search warrants is a burglary (in the case of plainclothes officers) or military exercise (in the case of officers wearing battle uniforms). This practice minimizes the potential for officer harm from occupants using deadly force against assumed intruders. When a threat assessment determines that it is appropriate for a SWAT team to execute the warrant, those suitably attired and equipped officers should execute the warrant.
There's nothing out there showing ending no-knock raids would make officers less safe. It certainly would make the residents of houses raided safer. Many of those inside houses being raided are suspected of no criminal activity. This includes children who just happen to live in homes targeted (sometimes mistakenly) by officers who appear to believe catching kids in the crossfire is just acceptable collateral damage in the War on Drugs.
According to a New York Times study, no-knock raids involving SWAT-style tactics have led to the deaths of at least 100 people since 2010. Some of these are deaths of children, like seven-year-old Aiyana Stanley-Jones in Detroit who was shot in the head by police during a SWAT raid while she was sleeping next to her grandmother[...]Reports of botched raids show that no-knock warrants are used for an array of activities that simply do not justify the level of intrusion and inherent risk involved. Indeed, they have been deployed on high school students, in simple drug possession cases, and even for unpaid utility bills.
When the FOP argues in favor of no-knock raids, it's arguing for continuing the escalating trend of police violence.
There has been more than a 1,400% increase in the total number of police paramilitary deployments, or callouts, between 1980 and 2000. Today, an estimated 45,000 SWAT-team deployments are conducted yearly among those departments surveyed; in the early 1980s there was an average of about 3,000 (Kraska, 2001). The trend-line demonstrated that this growth began during the drug war of the late 1980s and early 1990s.
The city's ordinance is trying to slow that roll. And it should make officers safer, whether they believe it will or not. Just because everyone calls it the "war on drugs" doesn't mean PDs should erect paramilitary forces that treat regular warrant service like an assault on enemy territory. The FOP is suing because the cops its represents love the violence, the culture, and the opportunity to feel like they're fighting a battle, rather than serving and protecting. Hopefully the court will point out that the city has the power to impose rules like this that do not directly violate the bylaws of the bargaining agreement.

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posted at: 12:00am on 13-Jul-2021
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This Week In Techdirt History: July 4th - 10th

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Five Years AgoThis week in 2016, transparency was under attack on many fronts. A North Carolina legislator who was a former police chief pushed through legislation to keep body camera footage out of the public's hands, while in the course of two days we got two examples of cops making recordings disappear, and the Philadelphia police department responded to an open records request by releasing one document: the journalist's own request email. An Ohio court sanctioned a lawyer for sharing publicly-available court documents with journalists, while another court secured a grand jury indictment against a newspaper publisher for filing open records requests. The details about Hillary Clinton's email server showed several emails withheld from FOIA availability (as an appeals court said email stored on private servers is still subject to FOIA requests). And the FBI was vacuuming up local law enforcement documents about the Orlando shooting to block open records requests. President Obama did sign a FOIA reform bill... just in time for it to have no impact on his administration.Ten Years AgoThis week in 2011, a group of law professors came out against the PROTECT IP bill, while Hollywood was ramping up a smear campaign against opponents of the bill, and one Senator removed himself as a co-sponsor (though the reasons were unclear). PROTECT IP wasn't the only bad piece of copyright legislation either: an anti-streaming, anti-embedding bill caught the attention of video game streamers who realized how it could impact them, and a bunch of YouTubers started putting up videos to protest it.But perhaps most memorably, this was the week that the infamous Monkey Selfie fiasco kicked off.Fifteen Years AgoThis week in 2006, the recording industry was wasting its time suing international sites while the Associated Press was taking a look at piracy around the world and largely missing the point. Attempts to get college students onto special music download platform swere a total flop, record labels were turning to elaborate deluxe CDs to compete with piracy, and Australia was seeking to regulate YouTube.But, once again most memorably, this was the week that Senator Ted Stevens delivered the infamous "series of tubes" line about the internet.

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posted at: 12:00am on 11-Jul-2021
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Cord-Cutting Leads To Gaming Studios Exploring In-Game Ads To Unlock Gaming Perks

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Advertising in the digital age is always something of a tricky subject. On the one hand, we have made the point for years that advertising is content and content is advertising. The point there is that the more useful and entertaining or engaging advertising tends to be, the more the public looks at it as just more content to consume, while really good content also serves as an advertisement of sorts for the content provider. Many folks simply believe that the public hates advertising full-stop, but that's really not true. Were it true, one of the hallmark experiences of the Super Bowl wouldn't be watching the ads. Instead, ads have to be engaging, fun, or useful. Unfortunately, the vast majority of advertising is otherwise, leading to the public tending to look for ways to not have to experience advertising generally.The worst solution proposed in all of this is to find new and nefarious ways to force the public to view ads. The second worst solution is to coerce them into doing so. And the worst place to do any of this, it seems to me, is in the video game space, where the public has already often times dropped hundreds of dollars on gaming rigs and the games themselves. But that, it seems, is exactly what company PlayerWON is looking to roll out.

A first-of-its-kind in-game advertising platform called playerWON launches this week, allowing big-name marketers that are used to running splashy TV ads the ability to target younger demographics with similar types of spots that will run in video games.-The platform, which is owned and operated by Simulmedia, a TV ad tech company, will let users determine whether they want to watch a 15 or 30-second video ad in exchange for being able to unlock exclusive gaming perks.-Simulmedia has struck deals with some of the world's biggest gaming studios, including Electronic Arts (EA) and Tencent's Hi-Rez Studios, its EVP, Gaming and OTT Dave Madden told Axios.
If you're anything like me, your initial reaction to all of this is likely to result in you having convulsions over just how repulsive this all is. But we should take a step back and acknowledge something: this could be done well. The idea of injecting optional advertising into gaming, especially free-to-play games, isn't an inherently awful idea.No, the real problem is that virtually nobody in the gaming public has, or should have, any faith that this will be done well. What does doing it well mean? Well, for starters:
  • The "perks" involved had damned well better be nice-to-haves and/or cosmetic and not offer some kind of boost to being able to compete in or play the game itself. Otherwise, you've broken the balance and experience of the game.
  • The ads had better stay short and not interrupt the gaming experience to the point of television, where gamers just leave the room while it plays.
  • The ads, as noted in the opening of this post, must be engaging, useful content of some kind.
Missing on any of those three will cause an even larger revolt among the gaming public than will almost certainly already occur. If you need an example of how to absolutely not attempt any of this, 2K Sports has you covered.Now, while this is largely being spurred on by younger members of the public also being cord-cutters, making them less likely to be reached by traditional advertising, Morgan Stanley seems to think that in-game ad programs like this could be a $2 billion industry. Though, importantly, that projection is based on nearly half of gamers opting into the ads.I'm sorry, but there's no fucking way that's going to happen, even if this is done perfectly. Not if it's opt-in. What is more likely is that this will only be opt-in for a while and then someone, or several someones, are going to try to first make it opt-out and eventually non-optional. And then you're going to really see the consequences of advertising programs being done terribly, because nobody will buy those games.

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posted at: 12:00am on 10-Jul-2021
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Biden Executive Order Disrupts Hot DC Trend Of Pretending 'Big Telecom' Doesn't Exist

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We've been submerged in kind of a bizarre asymmetrical tech policy paradigm over the last few years, in which "big tech" is viewed as the absolute root of all evil requiring all manner of hand-wringing and antitrust/regulatory reform. At the same time, policy leaders have simply forgotten that heavily monopolized internet-adjacent sectors like "big telecom" even exist, giving them cover to gut regulatory oversight, consumer protections, and media consolidation rules. Telecom (AT&T) and media (Rupert Murdoch) giants have successfully exploited legitimate public anger at big tech to encourage this kind of lopsided policy thinking.This week this policy myopia shifted back to baseline a bit with Biden's new executive order focused on shoring up competition issues. According to the EO fact sheet, the order pushes more than 72 different initiatives across a dozen federal agencies, including the FCC and telecom. Mike covered the not telco portions, which will be covered in this post. Most notable (for telecom, anyway) is that the order nudges the FCC to restore net neutrality rules:

We've noted more than a few times how the Trump/Pai net neutrality repeal didn't just kill "net neutrality rules." It gutted much of the FCC's consumer protection authority, limiting its ability to police fairly consistent telecom sector billing fraud and other bad behavior. It also attempted to ban states from filling that consumer protection void. It was effectively a giant wishlist cooked up by telecom monopolies like AT&T, based entirely on bullshit justifications, and propped up by fabricated public support. Despite this, the whole thing was dressed up as "serious policy" by press and policy wonks who should have known better.In addition to the restoration of net neutrality, the Biden EO also takes several other steps to shore up telecom issues. Among them is urging the FCC to stop telecom giants from creating block-by-block broadband monopolies via exclusive landlord arrangements. The FCC passed rules prohibiting this back in 2007, but they're so filled with loopholes that telecom giants have been allowed to tap dance around them for years now (Susan Crawford wrote an essential primer on this problem for Wired a few years back).A not insubstantial portion of the EO involves urging government agencies to simply do their jobs. Like the antitrust enforcers at the DOJ and FCC, who under both administrations are often little more than mindless rubber stamps for problematic job- and competition-eroding megadeals (see: the entirety of US telecom history since 1990). Simply leveraging more scrutiny to the often illusory benefits of endless megadeals would go a long way in shoring up both regulation and this whole "antitrust reform" so popular with the kids these days.Other aspects of the EO related to telecom are more specific, like requiring that the FCC restore plans (also scuttled during the Ajit Pai era) requiring a sort of nutrition label for broadband, making ISPs disclose hidden fees, throttling, caps, or other restrictions on your broadband line (aka transparency). The order also urges the FCC to collect more data on broadband pricing, something it historically (at telecom lobbyist behest) hasn't been keen on doing for what should be obvious reasons.Most of these proposals are common sense, while others restore a lot of the FCC consumer protection authority and policies telecom giants stripped away in a parade of fraud and dodgy bullshit during the Ajit Pai era. But many of them require a fully staffed FCC and permanent agency boss to actually implement, something the Biden administration has been in no rush to provide, much to the annoyance of consumer groups. There's a lot of ground to cover between what's in the executive order and actual implementation, and it's going to require an FCC with some real backbone to accomplish most of it.Still, much to AT&T and Comcast's chagrin, the Biden EO makes it clear that the problems created by big telecom haven't been entirely forgotten, however much these regional monopolies would prefer policy conversations to remain myopically fixated on big tech and big tech alone.

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Content Moderation Case Study: Dealing With 'Cheap Fake' Modified Political Videos (2020)

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Summary: For years now there have been concerns raised about the possibility of deep fake videos impacting an election. Deep fakes are videos that have been digitally altered, often to insert someone's face onto another person's body, to make it appear that they were somewhere they were not or did something they did not. To date, most of the more sophisticated deep fake videos have been mainly for entertainment purposes but there has been a concern that they could lead to faked accusations against politicians or other public figures. However, so far, there has been little evidence of deep fake videos being used in elections. This may be because the technology is not yet good enough or because such videos have been easy to debunk through other evidence.Meanwhile, there has been increasing concern about something slightly different: cheap fake or shallow fake videos, which are just slight modifications and adjustments to real videosless technically sophisticated, but also potentially harder to combat.One of the most high profile examples of this was a series of videos that went viral on social media of House Speaker Nancy Pelosi that were modified by slowing down the video to 75% of the original speed. The modified videos were spread with false claims that they showed Pelosi slurring her words, possibly indicating intoxication. Various media organizations fact checked the claims, noting that the videos were altered and therefore presented a very inaccurate picture of Pelosi and her speech patterns.

Social media companies were urged by some to delete these videos, including by Speaker Pelosi herself, who argued that Facebook in particular should remove them. Both Facebook and Twitter refused to take down the video, saying that it did not violate their policies. YouTube removed the video.In response to concerns raised by Pelosi, some highlighted that it would be impossible to expect social media to remove every misleading political statement that either took the words of an opponent out of context or presented them in a misleading way, while others suggested that there's a clear difference when it comes to manipulated video as compared to manipulated text.Others highlighted that it would be difficult to distinguish manipulated video from satire or other attempts at humor.Company Considerations:
  • Where should companies draw the line between misleading political content and deliberate misinformation?
  • Under what conditions would a misleading cheap fake video separately violate other policies, such as harassment?
  • What should the standards be for removing political content that could be deemed misleading?
  • Does medium matter? Should there be different rules for manipulated videos as compared to other types of content, such as taking statements out of context? 
  • Should there be exceptions for parody/satire?
  • Are there effective ways for distinguishing videos that are manipulated to mislead vs. those that are manipulated for humor or commentary? 
  • Should the company have different standards if the subject of a cheap fake video was not a political or public figure? 
  • What are other alternative approaches, beyond blocking, that could be used to address manipulated political videos?
Issue Considerations:
  • What are the possible unintended consequences if all manipulated video is deemed a policy violation?
  • What, if any, is the value of not removing videos of political or public figures that are clearly misleading? Would there be any unintended consequences of such a policy?
  • What are the implications for democracy if manipulated political videos are allowed to remain on a platform, where they may spread virally?
  • Are misleading cheap fake videos about politicians considered political speech?
  • Who should decide when cheap fake political speech is inaccurate and inappropriateshould it be social media platforms, a general public consensus, or a third body??
  • How might cheap fake videos be used for harassment and bullying of non-public figures, and what are the potential implications for real life harm? 
  • If the cheap fake video didn't originate from a public source (as in the Pelosi video) but a private video, how could a company determine that those videos were manipulated?   
Resolution: After public demands that Twitter, YouTube and Facebook do something about the modified Pelosi video, the three major social media platforms each responded differently. YouTube took the video down, saying that it violated its policies. YouTube also noted that unlike the other platforms, the modified Pelosi video did not appear to go viral or spread widely on its platform. Facebook kept the video up but, in accordance with its fact-checking policies, once the video was deemed false Facebook de-ranked the video in its news feed, limiting its spread.Twitter left the video up. However, by the time a very similar event happened a few months later, Twitter announced a new plan for dealing with such content, saying that it would begin adding labels to manipulated media, offering context for people who came across such videos so they would understand that the video is not being shown in its original context. One of the first examples of Twitter applying this manipulated media label was to a comedy segment by late night TV entertainer Jimmy Kimmel who used some manipulated video to make fun of former Vice President Mike Pence.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 09-Jul-2021
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Sony Studio Acquisition Of Nixxes May Portend Company Opening Up The PlayStation's Walled Garden To PC Gaming

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Late last year, we discussed Sony's corporate report on where its income sources were detailed out and laid bare the fact that the biggest revenue generator for the company was in gaming. We noted at the time that what made all of this really interesting is that this revenue generation occurred under Sony's famous walled-garden policies, where the company went to great lengths to silo its own games into the PlayStation console while also trying to gobble up exclusives for the PlayStation. Coinciding with all of this, though, were some cracks starting to form in that policy. Sony finally opened up games on the PlayStation to cross-platform online play, allowed the PlayStation Now service to run on PCs, and even moved some of its first-party titles onto other platforms, such as having MLB: The Show appearing on the Xbox for the first time and Horizon: Zero Dawn getting a belated PC release.But those are toe-in-the-water type things. It would be reasonable for anyone to wonder just how committed Sony was going to be in opening up the garden and exploring a wider program of getting first-party games on other platforms. Well, Sony just announced the acquisition of gaming studio Nixxes and it sure looks like it's the answer to those concerns, given what Nixxes does.

If the name Nixxes doesn't ring a bell for most gamers, that's because the studio hasn't developed any original projects in its over-20-year history. Instead, Nixxes has primarily specialized in creating a variety of PC and console ports for games from the likes of Eidos Montreal and Crystal Dynamics (both now Square Enix subsidiaries).That makes Nixxes an especially intriguing acquisition for Sony, which has been slowly dipping an increasing number of toes into the PC gaming space in recent years. After Horizon: Zero Dawn hit the PC last year, Sony said in its annual report that it "will explore expanding our 1st party titles to the PC platform in order to promote further growth in our profitability." Then, in May, Sony listed Uncharted 4 under the "more PC releases planned" section of an investor report, alongside the recent PC port of former PlayStation exclusive Days Gone.
Save for some sort of mystery work nobody could see coming, it appears that there is exactly one reason why a company like Sony would acquire a studio like Nixxes: to bring PlayStation games to the PC. And, while there is a long history of console ports on PC being done quite poorly, Nixxes actually has a pretty good reputation when it comes to this sort of thing.So what does this mean? Well, at the very least it portends that we're all going to see a real-time experiment performed by a company that has preferred to have an iron grip on its IP, and what it will do to revenue to slacken that grip. It will come as no surprise to readers here that it is my belief that this will be an absolute boon to revenues. The days of console exclusives are waning. The days of the public having little choice when it comes to options in the gaming space are gone. In its place is an industry where opening things up for fans to give them plenty of options and choice in how to spend their money with you is quickly becoming the norm.While I'm happy to criticize Sony when the company deserves it, it's worth recognizing that these sorts of culture shifts cannot be easy to pull off. If Sony is actually going to go head first into a new way of operating, I'll be here cheering them on and hoping for its success.

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posted at: 12:00am on 09-Jul-2021
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Fourth Circuit Appeals Court Says Right To Access Court Documents Begins When The Documents Are Filed

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Courthouse News Service has obtained a significant win in its lawsuit against court clerks in Virginia -- one that soundly affirms the First Amendment right to access court documents. This isn't the only place CNS is fighting for its First Amendment rights, but this decision affects everything in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and Virginia.Here's the battle Courthouse News Service has been fighting on several fronts, assisted by several other news agencies and First Amendment activists.

The right of access at the core of the legal slug fest, which included attempts by the clerks to hide evidence of delay, is a tradition that goes far back in time. When cases were filed in paper form, news reporters traditionally checked the new civil complaints at the clerk’s counter where they were usually gathered in a box or tray.That stack of new complaints regularly contained news about major legal disputes in the community covered by the court, ranging from financial wrongdoing to environmental disputes to accidents and disasters.The intake clerk placed new paper cases in the box when they crossed the counter — in other words, contemporaneously with their filing.That tradition was carried forward into the electronic age by federal courts and a long list of state courts in Hawaii, California, Nevada, Utah, Georgia, Alabama, New York and Connecticut.But a similar list of courts broke with tradition. They took advantage of the switch to e-filing and pushed the press and public behind clerical functions that, in St. Louis for example, took between a week and two weeks to complete. Those delayers include courts in Maine, Vermont, Oregon, North Carolina and Texas.
In this particular case, court clerks in Norfolk and Prince William County (both Virginia) decided they no longer needed to provide prompt access to filed lawsuits, claiming the move to electronic filing justified delays that were sometimes measured in weeks. Courthouse News said this was ridiculous. Also, unconstitutional. The district court agreed. The clerks appealed, and now have established precedent [PDF] that forces them to speed up processing of filed lawsuits.Here's how things were going before CNS filed its lawsuit:
[I]n May 2018, the City of Norfolk court made only 19% of the complaints available on the day of filing, and 22% of the complaints were not available until two or more court days after filing. Similarly, in July 2018, the Prince William County court only made 42.4% of the complaints available on the day of filing and 41.5% of the complaints were not available until two or more court days after filing.
And here's what it looked like after its lawsuit was filed:
[B]oth Clerks significantly improved access to documents in their courts without hiring any new employees or changing employee or court hours. By the end of November 2018, the Norfolk City court made 92.3% of newly filed civil complaints available on the day of filing and 100% of complaints available within one court day of filing. Similarly, for the last three months of the tracking period, the Prince William County court made at least 88.1% of the complaints available on the day of filing and approximately 96.5% of complaints were available within one day of filing.
So much for the argument that the intricacies of modern day electronics made it impossible to provide same-day service. Given this new alacrity -- one apparently instigated by litigation -- the lower court said clerks must make newly-filed complaints available on the same day of filing. Minor deviations were acceptable "due to extraordinary circumstances," but the baseline was as close to "contemporaneous" as possible.The Clerks appealed. They raised several procedural arguments, but the Fourth Circuit doesn't like any of them. To begin with, the case certainly isn't moot, not without the clerks' offices not making a formal change in policy that instructs clerks to make filings available the same day they're filed.
While the Clerks’ improvements in rates of access are commendable, absent the relief Courthouse News sought, “nothing bars [them] from reverting” to the allegedly unconstitutional rates of access in the future. Porter v. Clarke, 852 F.3d 358, 365 (4th Cir. 2017). The case is thus not moot.
They also argued the district court had overstepped by meddling in a case involving city and county officials. Wrong again, says the court. No injunction was granted so the court isn't setting policy for local officials. Instead, this court -- like the court before it -- is handing down a declaratory judgment that sets the standard for constitutionality, which even state and local officials must follow.The clerks also argued that, while there is a presumption of access to court documents, this presumption doesn't override the clerks' right to take their time making documents available. According to the clerks, the First Amendment right of access doesn't attach until a judge takes action in a case. You could not be more wrong, says the Appeals Court.
That argument misreads precedent — the analytical approach complements the experience and logic test without supplanting it. Of course, a First Amendment right of access exists as to some documents “submitted in conjunction with judicial proceedings that themselves would trigger the right to access.” Id.; see also In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986). But that does not mean that the First Amendment right of access to a document never exists independent of and prior to a related judicial proceeding. Rather, the experience and logic test can and sometimes does independently furnish the basis for a First Amendment right of access to a judicial document or to judicial proceedings. See, e.g., In re United States, 707 F.3d 283 (applying the experience and logic test to § 2703(d) orders); Baltimore Sun Co v. Goetz, 886 F.2d 60 (4th Cir. 1989) (same, to search warrant affidavits). And as in a similar case recently decided by the Ninth Circuit, nothing in the record before us demonstrates that the tradition of access to complaints “conditions [that] access on judicial action.” Courthouse News Serv. v. Planet, 947 F.3d 581, 592 (9th Cir. 2020) (“Planet III”). In sum, the experience prong supports a First Amendment right of access to civil complaints, even before any judicial action in the case.
The court holds that in this judicial district, the First Amendment attaches as soon as lawsuits are filed. Excessive delays in making them available is unconstitutional.
The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible. After considering all of the evidence offered at trial, the district court found that the facts of this case demonstrate that the Clerks did not do so, and so violated the First Amendment.
After months of being jerked around by clerks who obviously had the capability to make filings available nearly immediately, Courthouse News walks away with an affirmed win and some handy precedent that should make its other legal battles run a bit more smoothly.

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posted at: 12:00am on 08-Jul-2021
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After All That, Nintendo Can't Even Get $50 A Month Out Of RomUniverse

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The saga of how RomUniverse, a site dedicated to offering ROMs for classic Nintendo games, came to its end is both frustrating and very dumb. Back in 2019, Nintendo launched a massive war on ROM sites, coinciding with the release of a mini version of Nintendo's NES console. Eventually, the company's sights turned to RomUniverse. Run solely by Matthew Storman, the site first tried and failed to crowdfund its legal expenses, made the lame argument that somehow the first sale doctrine meant that Storman could legally offer up digital versions of bought Nintendo games, only to see Storman represent himself in court and eventually lose. While Nintendo always had the law on its side, it was also true that sites like RomUniverse existed for a long, long time and Nintendo wasn't injured enough by any of this for it to be on the radar prior to the ROM War of 2019. In fact, I would argue that ROM sites for a long, long time kept up the interest in these classic games that created a market for Nintendo's classic console releases.I would also argue that the whole thing was a giant waste of time and money, an assertion backed up by the fact that the victorious Nintendo reportedly can't even get $50 a month out of Storman, despite court orders.

You can’t get blood from a stone, and you can’t squeeze a relatively measly $50 payment out of a guy whose primary source of income was the video game rom site you sued into oblivion. Earlier this year Nintendo’s 2019 lawsuit against website RomUniverse concluded with the site being shut down and Nintendo awarded $2.1 million dollars in damages. That’s $35,000 for each of the 49 Nintendo games found on the site plus $400,000 in trademark damages. The chances of Matthew Storman, who defended himself in court and whose only source of income was the now-defunct rom site, being able to pay those damages are incredibly slim. In a recent court filing obtained by Torrentfreak, Nintendo complains that Storman hasn’t made his court mandated monthly payment of $50.
As a result, Nintendo is seeking a permanent injunction against Storman to keep him from ever re-launching RomUniverse. That, frankly, may be what the company was after this entire time.But that doesn't make the futility of this whole legal enterprise any more sensical. Nintendo managed to legally pummel a single man who was, admittedly, infringing their copyrights. But one is free to wonder aloud if this legal route was really the only method Nintendo had for getting the site shut down. If Storman truly cannot manage a $50/month sanctions payment to Nintendo, there is no hope of them recovering the $2.1 million awarded in court, an amount that Storman also appears by all accounts to be unable to pay.And so Nintendo has a legal victory without any monetary award, Storman's own actions have resulted in his fiscal life likely being in shambles, and we all go on our merry way. Again, this is really how this had to happen?

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posted at: 12:00am on 08-Jul-2021
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DRM Strikes Again: Ubisoft Makes Its Own Game Unplayable By Shutting Down DRM Server

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It's not exactly a secret that we've been very anti-DRM here at Techdirt for some time. It's honestly perplexing how anyone can be otherwise. DRM has shown time after time to be of almost no hindrance whatsoever for those seeking to pirate video games, but has done an excellent job of hindering those who actually bought the game in playing what they've bought. Ubisoft, in particular, has had issues with this over the years, with DRM servers failing and preventing customers from playing games that can no longer ping the DRM server.And while those instances involved unforeseen downtime or migrations impacting customers' ability to play their games, this time it turns out that Ubisoft simply stopped supporting the DRM server for Might and Magic X-Legacy. And now basically everyone is screwed.

Last month, Ubisoft decided to end online support for a bunch of older games, but in doing so also brought down the DRM servers for Might and Magic X - Legacy, meaning players couldn’t access the game’s single-player content or DLC.As Eurogamer reports, fans were not happy, having to cobble together an unofficial workaround to be able to continue playing past a certain point in the single-player. But instead of Ubisoft taking the intervening weeks to release something official to fix this, or reversing their original move to shut down the game’s DRM servers, they’ve decided to do something else.They have simply removed the game for sale on Steam.
This, of course, does nothing for the people who already bought the game and now suddenly cannot progress through it completely, as all the DLC is non-functional. They can play the game up until a point, but then it just doesn't work.There are multiple bad actions on Ubisoft's part here. First, using DRM like this is a terrible idea with almost no good consequences. But once it's in use, you would think it would be the obligation of the company to ensure any changes it makes on its end don't suddenly render purchases made by its customers unplayable. In other words, rather than ending support for a DRM server that nixes parts of a paid-for game, the company could have rolled out patches to remove the DRM completely so that none of this happened. After all, with the game no longer even available as a new purchase, what would be the harm in removing the DRM? And, of course, there's the total lack of communication to Ubisoft customers about basically all of this.Which is what has people so understandably pissed.
Players are now understandably pissed, taking to the game’s Steam reviews to leave messages like:“Doesn’t work anymore. Ubisoft refuses to fix the game. Pathetic.”“Ubisoft took my money then shut it down.”“This is theft, and if Steam and the relevant governments are fine about it, it’s legal theft. I will never purchase anything from Ubisoft anymore on principle, even if they decide to try and do something about this mess.”
All because Ubisoft just cannot imagine a world where the DRM its using could just go away, leading to happier paying customers.

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posted at: 12:00am on 07-Jul-2021
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Judge Blocks FBI From Moving Forward With Forfeitures Of Property Seized In US Private Vaults Raid

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Earlier this year, the FBI raided a privately owned safety deposit box business in Los Angeles. The business provided secure storage for customers' valuables, which were only accessible via biometric scans. The DOJ accused the company of engaging in drug trafficking and money laundering, but has yet to bring charges against any of the company's employees or its customers.The FBI obtained a search warrant that limited agents to seizing items belonging to the company but, very expressly, not items belonging to customers. This restriction -- and the FBI's own inventory policy -- was ignored. Over the course of five days, FBI agents searched and seized the contents of nearly 1,000 boxes.The warrant said the FBI would understandably take temporary possession of the boxes. But it forbade them from searching them for criminal evidence. The FBI's policy limited its inventory of the boxes' contents to doing only what was necessary to find information about the property's owner so they could be notified and allowed to retrieve their contents.This didn't happen. The FBI walked away with millions of dollars and -- months after the seizures -- has yet to accuse any customer of criminal activity. Several customers sued. And a federal judge has just blocked the FBI from taking possession (via civil asset forfeiture) of some of the property seized in the raid.

In a 7-page ruling Tuesday, [Judge R. Gary] Klausner sided with plaintiffs and granted the temporary restraining order preventing the government from forfeiting Jeni, Michael, Joseph and Travis’ property.To satisfy due process, the government must provide property owners notice of the statutes buttressing forfeiture proceedings, the ruling said, adding that the notices sent to plaintiffs failed to do so.“The notices therefore fall woefully short of the government’s duty to provide ‘the specific statutory provision allegedly violated,’” Klausner wrote in the order.
As the judge's order [PDF] points out, the law requires specificity when notifying citizens of the government's desire to forcibly transfer ownership. The notices sent by the FBI weren't specific.
Rather than list the specific statutory provisions the Government maintains justify forfeiture of the specific property seized from each USPV box, the Government notices state:Forfeiture Authority: The forfeiture of this property has been initiated pursuant to 18 USC 981(a)(1)(C) [sic.] and the following additional federal laws: 19 USC 1602-1619, 18 USC 983 and 28 CFR Parts 8 and 9.The list of purported statutory bases for forfeiture is anything but specific. Title 18 USC 981(a)(1)(C) lists thirty-five sections of the United States Code. A violation of any one of those code provisions can provide a basis for forfeiture… These include code sections outlawing influencing a loan officer, forgery, counterfeiting, uttering counterfeit obligations, smuggling, loan fraud, computer fraud, and bank fraud, among others.
No specificity, no seizure. The FBI is blocked from moving forward with forfeiture belonging to the four plaintiffs until it can provide them with the proper notice -- one that specifies what criminal activity the government believes the seized property is linked to or the result of.Given the total of the take from US Private Vaults raid, I would expect the government to give up this property rather than head into some litigation that may result in similar lawsuits or court orders affecting the dispensation of other seizures/searches that haven't been challenged yet. This could have been avoided if the government had followed its own warrant restrictions, its own internal policies, and the contours of the rights enshrined in the Constitution.

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posted at: 12:00am on 07-Jul-2021
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This Week In Techdirt History: June 27th - July 3rd

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Five Years AgoThis week in 2016, the Copyright Office was pushing a dangerous plan to strip websites of DMCA harbors, Google and Facebook were using copyright tools to take down extremist content, and lawmakers in Europe were floating the dumb idea of letting robots and computers have copyrights. Malibu Media was getting called out by a judge while also launching a lawsuit against its former lawyer, while two other important rulings in copyright cases stated that an IP address is not a person. We also took a closer look at Hillary Clinton's problematic tech platform and vague and confusing intellectual property platform.Ten Years AgoThis week in 2011, early hacktivist group LulzSec announced plans to disband, and we looked at the impact this kind of hacktivism was having while the RIAA was citing such groups as another reason for passing the PROTECT IP act. Sony's CEO was blaming its own hacking woes on people wanting everything for free, while PS3 jailbreaker George Hotz (aka GeoHot) was hired by Facebook. Meanwhile, Righthaven's troubles continued with racketeering claims brought in South Carolina and similar claims made in Nevada, while the company was begging to be put back into a case it was dismissed from and trying to avoid sanctions by blaming its lawyer. Amidst this, we looked at the silver lining of Righthaven's activities: they helped to establish a much more expansive view of fair use when it comes to copying newspaper articles.Fifteen Years AgoThis week in 2006, newspapers were at the peak of their efforts to block people from reading their work for free online. The fact that IP addresses are not people (and weren't in 2006 either) was proving an effective way of getting the RIAA to drop lawsuits. Amazon's plans to get into the video download business were leaked, while Metallica finally caved and decided to sell music downloads in iTunes, and Kazaa settled its lawsuit with the music industry and announced plans to go legit while Torrentspy was facing its own lawsuit and asking why Hollywood wasn't suing Google too.

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posted at: 12:00am on 04-Jul-2021
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Ohio Legislators Pass Bill That Would Make It Easier For Cops To Make Bullshit Arrests Of Bystanders

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A substantial part of the Ohio legislature seems incapable of reading the room. Following several months of anti-police violence protests, state legislators have passed a bill that makes it easier for law enforcement officers to arrest anyone for just about anything. (h/t Joe Papp)The opening of this report by Cleveland's News 5 gives you the general gist of the bill.

A proposed state law that could make it a crime to shoot cell phone video of police got the green light by lawmakers to move forward following a statehouse committee hearing Thursday in Columbus.Members of the House Criminal Justice Committee voted to approve the measure despite more than 100 civil rights, first amendment groups and individuals testifying against the measure since it was first introduced.
It seems like this would be a bad thing to do, considering the state of the room these legislators have failed (or chosen) not to read. For one thing, it would target First Amendment protected activity: the filming of public servants. Second, it gives police more power to make "contempt of cop" arrests which, despite the colloquial name, does nothing to make cops less likely to be viewed with contempt.This isn't a bipartisan effort to ensure cops are left unharassed when harassing the public. This is a one-sided affair where the "us v. them" attitude has carried over from the cop shop to the legislative branch of the Ohio government.
Of course, the bill has its supporters. And they're all of one (blue) stripe.
The bills sponsors say it would protect both police and the public from harm when police are attempting to clear crime scenes, make arrests or maintain order and is supported by the Ohio Prosecuting Attorney's Association, Buckeye Sheriff's Association, Ohio Highway Patrol and the Fraternal Order of Police.
The opponents of the bill have pointed out the law's broadness, which could be read to could outlaw filming police officers. Or interacting with them in any way when they're handling a stop or effecting an arrest.Here's what the bill [PDF] adds to existing obstruction of justice laws. First, it criminalizes this act of civil disobedience.
(7) Fail to follow a lawful order from a law enforcement
Then it piles on all of this:
(B) No person shall do any of the following to a law enforcement officer in the performance of the law enforcement officer's duties with reckless disregard as to whether the action diverts or obstructs the law enforcement officer's attention:(1) Use force or threaten the immediate use of force against the law enforcement officer;(2) Interfere with or obstruct a law enforcement officer in a manner that does any of the following:(a) Inhibits or restricts the law enforcement officer's control of a subject or detainee;(b) Deprives the law enforcement officer of control of a subject or detainee;(c) Without the consent of the law enforcement officer, enters, or places an object or substance into, a space around the law enforcement officer that is large enough that the law enforcement officer cannot reach a person outside of the area.(C) No person with the intent to distract a law enforcement officer engaged in the performance of the law enforcement officer's official duties shall throw any object or substance at or onto a law enforcement officer.
The good news is this caveat has been thrown in at the last minute -- a bone thrown to the 100+ rights groups and activists that read the bill's intent for what it was:
(F) Nothing in this section shall be construed to prohibit a person from using video or audio recording equipment to record a law enforcement officer in the performance of the law enforcement officer's duties.
Yes, but nothing in the law appears to prevent an officer from deciding some of the other forbidden acts are inseparable from the actions of someone filming police officers. An officer could claim the person's presence made it more difficult to control a detainee. An officer could claim the presence of witnesses with phone cameras rolling presents some sort of threat. An officer could claim they told bystanders with active cameras to disperse and they refused to obey a lawful order. So, this exception is great on its own, but it's terrible in conjunction with everything else tossed into the bill.And, as if we really needed the true point of this bill spelled out for us, the police officer who was the epicenter of this seismic shift in public opinion about police officers and their abuses of power made it perfectly clear who cops feel the real threat is when deploying excessive force:
Derek Chauvin's defense attorney argued those surrounding police, taking cell phone video, were a distraction that helped cause Floyd's death.
Chauvin's lawyer isn't the only one to have expressed this sentiment. Following the killing of Eric Garner by NYPD officer Daniel Pantaleo, one of the NYPD's police unions said the real problem was bystanders with cameras and suspects wanting to "put on a show." And FBI director James Comey blamed a half-dozen spikes in violent crime around the nation following the Ferguson protests on people with cellphone cameras "taunting" officers into behaving badly.If this bill becomes law, it won't make things easier for police. It might make it easier to effect bogus arrests, but it won't make the actual job of policing any easier. This will just widen the divide between the police and the policed. Disrespect can be earned much faster than respect. With police refusing to meet their employers halfway -- and being given the blessing to keep citizens at arms' length -- the problems people have been protesting about are never going to go away. This bill encourages officers to indulge their worst impulses. And this unwillingness to utilize self-control is a big part of why we're at the point people are burning down precinct houses in response to acts of police violence.

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posted at: 12:00am on 03-Jul-2021
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Sony Hates You: EarthBound Let's Plays Flagged For Copyright Infringement Due To Soundtrack

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It's no secret that I don't care for the way that Nintendo treats its biggest fans when it comes to allowing them to view and use its IP in order to express their fandom. I have been known, after all, to create entire genres of posts with "Nintendo Hates You" in the title. And, so, when I noticed headlines about how YouTube videos for let's-plays featuring the classic SNES game Earthbound were being demonitized or taken down over copyright claims, I was sure I would be writing yet another of those headlines.But, nope. Instead, this is a story about how Sony has issued copyright claims, and apparently rebutted counterclaims, against let's-plays for Earthbound not because it published the game, which it very much did not, but because Nintendo licensed the soundtrack for the game to Sony for an album release.

Over the past couple of weeks, reports have come flooding in from YouTube users who say that their EarthBound-based videos are being flagged for copyright by Sony. In some cases, it's reported that Sony has claimed the ad revenue for the video in question; in others, the videos appear to have been removed entirely.As is often the case with YouTube, the reasoning for this lies with the game's music. While Nintendo still owns the EarthBound/Mother brand in terms of its video games and the franchise as a whole, the game's soundtrack was released as a studio album back in 1989 under Sony's then-named CBS/Sony music label, essentially meaning that any piece of music featured on that record can be claimed by the company.
Okay, if you really needed a more perfect example of how broken copyright laws have become in the modern era, this must certainly be that case. Nintendo releases a game called Earthbound in 1994. Nintendo composers created the music for the game. In 1994, and again in 2004, Sony licenses the music to release a studio album soundtrack. Fast forward nearly twenty years and suddenly people releasing videos of them playing the game that was created by Nintendo nearly thirty years ago are having those videos demonitized or taken down... over the album release. If you can seriously get through that and think that any of this makes sense, you have capacities that I simply do not.
Plenty of YouTube users have taken to social media to express their upset at Sony's decision to remove their content, hoping to find a way to restore their work. The videos will no doubt be getting flagged automatically, what with the soundtrack being part of Sony's catalogue, so unless Sony decides to manually excuse the affected videos going forward, it may be unwise to include music from the game in any future content.
Notably, some of these YouTubers are also indicating that they disputed the notices only to have Sony dig its heels in. If that's the case, this isn't just our stupid automated copyright notice systems creating chaos again.But here's what this really all boils down to: if even Nintendo is allowing this content to remain up, it should probably stay up. Nintendo has arguably been one of the most aggressive enforcers and protectors of its IP on the planet. Sony is obviously no slouch in that respect, but there is literally nobody watching let's-plays in order to listen to the game soundtrack in the same manner they would an album version of it. In fact, one would think that it might serve as free advertising of Sony's albums, if nothing else.

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posted at: 12:00am on 03-Jul-2021
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Content Moderation Case Study: Facebook Removes Image Of Two Men Kissing (2011)

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Summary: In the spring of 2011, two men were on a first date at the John Snow pub in London. They were apparently thrown out of the pub after another patron at the bar complained that the two men were kissing each other in the corner. The story of being thrown out of the pub for kissing began to go viral on social media, followed by a plan for a protest at the pub in question. In a sign of support for the protest, many people on social media posted images of two men kissing each other as well.The Dangerous Minds Facebook page wrote about the protest, and included a promotional image from the BBC of two male characters from the popular soap opera EastEnders kissing to illustrate the post. The image had become well known in the UK a few years prior, as the scene in question had kicked off complaints to the BBC which the BBC responded to by noting that the relationship between two men was treated no differently than many other relationships displayed on the show between a man and a woman. Soon after this, Facebook removed the image, telling Dangerous Minds that it violated Facebook's Statement of Rights and Responsibilities.

Soon after this, Facebook removed the image, telling Dangerous Minds that it violated Facebook's Statement of Rights and Responsibilities.
Hello,Content that you shared on Facebook has been removed because it violated Facebook's Statement of Rights and Responsibilities. Shares that contain nudity, or any kind of graphic or sexually suggestive content, are not permitted on Facebook.This message serves as a warning. Additional violations may result in the termination of your account. Please read the Statement of Rights and Responsibilities carefully and refrain from posting abusive material in the future. Thanks in advance for your understanding and cooperation.The Facebook Team
Given that the image itself was to promote a protest over two men being removed from a restaurant for kissing, the removal of the image sparked further anger directed at Facebook. Many pointed out that there were plenty of images of men and women kissing each other all over Facebook, and they were not being removed.Decisions to be made by Facebook:
  • Is a picture of two people kissing graphic or sexually suggestive content in violation of rules
  • Should the identities of the people within the images matter in making content moderation decisions?
  • Should the reason for the posting of an image (e.g., as part of a larger protest) matter in determining if the image violated the rules?
  • How well trained is the content moderation staff to recognize relationships that might differ from their own preferred relationships?
Questions and policy implications to consider:
  • Should Facebook be deciding which kinds of legal relationships are acceptable to display and which are not?
  • As seen with the complaints to the BBC, there remain some segment of the population who will vocally protest non-heterosexual relationships. Are there rules, policies, or training that can be put in place to educate content moderation teams that they may receive different types of reports regarding such content?
Resolution: As the story drew more and more mainstream press attention, Facebook quickly apologized, saying the image does not violate any policies, and the takedown was a mistake.
The photo in question does not violate our Statement of Rights and Responsibilities and was removed in error. We apologize for the inconvenience
No further explanation of how the image came to be taken down in the first place was given.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 02-Jul-2021
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Former Trump Aide Launches Twitter Clone, That Seems To Yank A Ton Of Data Right Out Of Twitter; Already Has First Content Moderation Crisis

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Just as more news of what Trump wanted from Parler breaks, comes the news that his somewhat infamous former aide, Jason Miller, has launched a social media site called GETTR. It should be noted that through all of the rumors about Trump starting his own social network, it was usually Jason Miller who was claiming that it was on the way.Apparently, though, Miller stepped down from his role as Trump spokesperson to run GETTR -- and there are reports claiming that the originator of GETTR is someone trying to build "an important link between China and the West" with GETTR and a series of related apps.

Separately, a Bloomberg White House reporter says Trump isn't planning on joining GETTR and is still planning yet another social network. So... we'll see.Of course, like every single social media site, while this one claims it's all about free speech, its terms of service make it clear it can kick you off the platform for any reason whatsoever:
GETTR holds freedom of speech as its core value and does not wish to censor your opinions. Nonetheless, GETTR may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and GETTR may, in its sole discretion, reject, delete, move, re-format, remove, or refuse to post or otherwise make use of UGC without notice or any liability to you or any third-party in connection with our operation of UGC venues in an appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect Users from harmful UGC. Without limitation, we may, but do not commit to, do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, pornographic, violent, harassing, threatening, abusive, illegal, or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. For example, this may include content identified as personal bullying, sexual abuse of a child, attacking any religion or race, or content containing video or depictions of beheadings. Such UGC submitted by you or others need not be maintained on the Service by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Service or elsewhere, except that certain users may have certain additional rights as provided for in the Privacy Policy.
I like how they take phrases directly from Section 230 and insert it there. Though it's also amusing that they add "inappropriate" to "otherwise objectionable," seeing as Trumpworld has been trying to delete "otherwise objectionable" from 230 entirely, and limiting 230 to just a specific list of "bad" stuff. Yet, GETTR seems to be claiming even broader rights to moderate.And, not surprisingly, the company is already, on its first day, dealing with some moderation issues as it appears that people trolling the site are flooding it with junk:
It turns out that every social media site, so as not to be filled with garbage, has to do some moderation. Though it'll be fun to square the views of people who insist that social media sites shouldn't do any such moderation with the need to clear out the "lewd anime pics and the "pig poop balls" meme" from the #QAnon tag.But there are some other concerns as well. People are noticing that not only does GETTR look remarkably similar to Twitter (with a slightly larger character limit -- 777 characters), but that it seems to be grabbing a bunch of data directly from Twitter. Indeed, in what appears like a move to "boost" user numbers, reports say that if you use your own Twitter account name, GETTR will "import" all your followers -- apparently by creating fake ghost accounts for all of those accounts.
GETTR's app also claims to offer new users the ability to import copies of your content from Twitter to GETTR. And evidence on the site indicates that the new platform is also allowing users to import their actual Twitter followers who somehow end up with GETTR accounts of their own.For example, Republican Senate candidate Sean Parnell in Pennsylvania, had over 175,000 followers on GETTR as of Thursday afternoon, despite only joining the platform Thursday. His follower count on GETTR is identical to his follower count on Twitter.The same goes for Murtaugh, Trump's former 2020 communications director, who had amassed over 220,000 followers on both GETTR and Twitter as of Thursday afternoon.Tweets are up to the point you join, it won't continuously suck them in. The idea is we want people to move from Twitter to Gettr, said the person involved with the app. The person added that the app does not harvest the users current Twitter followers for the app, and again noted it is in Beta.
I do wonder how Twitter will feel about that. Of course, to some extent, this is somewhat like the vision Twitter has for Bluesky, but that hasn't been implemented yet. And just pulling out all of someone else's data raises... quite a few questions. It does seem worth mentioning that the ACCESS bill that was introduced in Congress recently would require Twitter and others to allow such exporting of data to other services.But GETTR seems to be going, well, to a fairly extreme level. To get images from Twitter... it's hotlinking images DIRECTLY FROM TWITTER. In other words, it's not grabbing those images, it's just displaying them as hosted by Twitter. That's... bold. In some ways it's just reskinning Twitter.
I don't necessarily think this is a bad thing. As I've discussed for years, being able to let users snarf their own data out of one service and into another is a good thing for competition. But... it can also raise a bunch of other questions regarding privacy, data control, possibly copyright, and (under the decision in the Facebook/Power case), possible CFAA violations. That is to say, I hope GETTR has some good lawyers lined up. The fact that they apparently fucked up their DMCA registration doesn't bode well on that front.
Anyway, I guess we're now going to see if GETTR gets to speed run the content moderation learning curve the same way Parler did -- and how it deals with content moderation and (better yet) questions around Section 230.

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posted at: 12:00am on 02-Jul-2021
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As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

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I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweepingrequirements on some but not all social-media providers. The legislation appliesonly to large providers, not otherwise-identical but smaller providers, andexplicitly exempts providers under common ownership with any large Floridatheme park. The legislation compels providers to host speech that violates theirstandardsspeech they otherwise would not hostand forbids providers fromspeaking as they otherwise would. The Governor's signing statement andnumerous remarks of legislators show rather clearly that the legislation isviewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate theFirst Amendment.
So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:
First, the State has asserted it is on the side of the First Amendment; theplaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at oddswith accepted constitutional principles. The First Amendment says Congressshall make no law abridging the freedom of speech or of the press. The FourteenthAmendment extended this prohibition to state and local governments. The FirstAmendment does not restrict the rights of private entities not performingtraditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v.Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of theproviders' actions, they do not violate the First Amendment. Second, the First Amendment applies to speech over the internet, just as itapplies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521U.S. 844, 870 (1997) (stating that prior cases, including those allowing greaterregulation of broadcast media, provide no basis for qualifying the level of FirstAmendment scrutiny that should be applied to the internet).Third, state authority to regulate speech has not increased even if, as Floridaargued nearly 50 years ago and is again arguing today, one or a few powerfulentities have gained a monopoly in the marketplace of ideas, reducing the meansavailable to candidates or other individuals to communicate on matters of publicinterest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), theCourt rejected just such an argument, striking down a Florida statute requiring anewspaper to print a candidate's reply to the newspaper's unfavorable assertions.A similar argument about undue concentration of power was commonplace as thesocial-media restrictions now at issue advanced through the Florida Legislature.But here, as in Tornillo, the argument is wrong on the law; the concentration ofmarket power among large social-media providers does not change the governingFirst Amendment principles. And the argument is also wrong on the facts.Whatever might be said of the largest providers' monopolistic conduct, the internetprovides a greater opportunity for individuals to publish their viewsand forcandidates to communicate directly with votersthan existed before the internet arrived. To its credit, the State does not assert that the dominance of largeproviders renders the First Amendment inapplicable.
The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):
The plaintiffs assert, too, with substantial factual support, that the actualmotivation for this legislation was hostility to the social media platforms'perceived liberal viewpoint. Thus, for example, the Governor's signing statementquoted the bill's sponsor in the House of Representatives: Day in and day out, our freedom of speech as conservatives is under attack by the 'big tech' oligarchs inSilicon Valley. But in Florida, we said this egregious example of biased silencingwill not be tolerated. Similarly, in another passage quoted by the Governor, theLieutenant Governor said, What we've been seeing across the U.S. is an effort tosilence, intimidate, and wipe out dissenting voices by the leftist media and bigcorporations. . . . Thankfully in Florida we have a Governor that fights against bigtech oligarchs that contrive, manipulate, and censor if you voice views that runcontrary to their radical leftist narrative. This viewpoint-based motivation,without more, subjects the legislation to strict scrutiny, root and branch. See, e.g.,Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)(The government must abstain from regulating speech when the specificmotivating ideology or the opinion or perspective of the speaker is the rationale forthe restriction.) (citing Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.37, 46 (1983)).Moreover, these statements are consistent with the statutory definition ofsocial media platform, which extends only to, and thus makes the legislationapplicable only to, large entitiesthose with $100 million in revenues or 100million monthly participants. As the Supreme Court has recognized, discriminationbetween speakers is often a tell for content discrimination. See, e.g., CitizensUnited v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010) (Speech restrictions based on the identity of the speaker are all too often simply a means to controlcontent.). That is the case here. The state has suggested no other basis forimposing these restrictions only on the largest providers. And even withoutevidence of an improper motive, the application of these requirements to only asmall subset of social-media entities would be sufficient, standing alone, to subjectthese statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v.Minnesota Comm'r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers'Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).
And, yeah, the Disney carveout is seen as a tell as well:
Finally, the same is true of the exclusion for social-media providers undercommon ownership with a large Florida theme park. The State asserted in its briefthat the provision could survive intermediate scrutiny, but the proper level ofscrutiny is strict, and in any event, when asked at oral argument, the State couldsuggest no theory under which the exclusion could survive even intermediatescrutiny. The State says this means only that the exclusion fails, but that is at leastquestionable. Despite the obvious constitutional issue posed by the exclusion, theLegislature adopted it, apparently unwilling to subject favored Florida businessesto the statutes' onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entitieswhen the Legislature has not passed, and the Governor has not signed, a statutesubjecting these entities to these requirements.
The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:
The provisions at issue here do not meet the narrow-tailoring requirement.Indeed, some of the disclosure provisions seem designed not to achieve anygovernmental interest but to impose the maximum available burden on the socialmedia platforms
The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:
The legislation now at issue was an effort to rein in social-media providersdeemed too large and too liberal. Balancing the exchange of ideas among privatespeakers is not a legitimate governmental interest. And even aside from the actualmotivation for this legislation, it is plainly content-based and subject to strictscrutiny. It is also subject to strict scrutiny because it discriminates on its faceamong otherwise-identical speakers: between social-media providers that do or donot meet the legislation's size requirements and are or are not under commonownership with a theme park. The legislation does not survive strict scrutiny.
There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:
Florida Statutes 106.072 prohibits a social media platform fromdeplatforming a candidate for office and imposes substantial fines: $250,000 perday for a statewide office and $25,000 per day for any other office. Butdeplatforming a candidate restricts access to material the platform plainlyconsiders objectionable within the meaning of 47 U.S.C. 230(c)(2). If this is donein good faithas can happenthe Florida provision imposing daily fines ispreempted by 230(e)(3). Good faith, for this purpose, is determined by federallaw, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standardsthose applicable to individuals who arenot candidateseasily meets the good-faith requirement. Indeed, even a mistakenapplication of standards may occur in good faith.The federal statute also preempts the parts of Florida Statutes 501.2041that purport to impose liability for other decisions to remove or restrict access tocontent. See Fla. Stat. 501.2041(6) (creating a private right of action for damagesfor violations of 501.2041(2)(b) and (2)(d)1; id. 501.2041(2)(b) (requiring asocial media platform to apply censorship, deplatforming, and shadow banningstandards in a consistent manner); id. 501.2041(2)(d)1 (prohibiting a socialmedia platform from deplatforming a user or censoring or shadow banning a user'scontent without notifying the user); 501.2041(2) (making any violation of thatsubsection an unfair or deceptive act or practice within the meaning of 501.204and thus providing a private right of action for damages under 501.211).Claims based on alleged inconsistency of a platform's removal of someposts but not others are preempted.
That last line needs to be repeated over and over again for every state considering these kinds of laws.Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.


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posted at: 12:00am on 01-Jul-2021
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Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions

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As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

History reinforces the conclusion that the unreviewableexecutive power exercised by APJs is incompatible withtheir status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers onmatters of law as well as policy. Hamilton articulated theprinciple of constitutional accountability underlying suchsupervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under hischarge, he warned that any deviations from his instructionswould be subversive of uniformity in the execution of thelaws. 3 Works of Alexander Hamilton 557 (J. Hamilton ed.1850). The power to superintend, he explained, must imply a right to judge and direct, thereby ensuring that theresponsibility for a wrong construction rests with the headof the department, when it proceeds from him.
However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.
In sum, we hold that 35 U. S. C. §6(c) is unenforceable asapplied to the Director insofar as it prevents the Directorfrom reviewing the decisions of the PTAB on his own. TheDirector may engage in such review and reach his own decision. When reviewing such a decision by the Director, acourt must decide the case conformably to the constitution,disregarding the law placing restrictions on his review authority in violation of Article II
So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons... but, you know, that would take actual effort.

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posted at: 12:00am on 01-Jul-2021
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