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December 2021
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DHS, ICE Begin Body Camera Pilot Program With Surprisingly Good Policies In Place

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Following protests over killings by law enforcement officers, the Department of Justice decided it might be a good idea to equip more police officers with body cameras. In May 2015, it announced the federal government would be spending $75 million over the next three years to purchase body cameras for local law enforcement agencies.The DOJ saw the potential for body cameras to produce more accountability, lower the chances of deadly interactions, and rebuild some trust with the communities officers served. That's presumably why it opted out of this push for body camera adoption. Five months after it announced the body cam grant program, DOJ reps told local law enforcement that use of body cameras wasn't allowed when partnering with federal law enforcement. Either the cameras stayed home or the local cops did. No exceptions.It wasn't until five years later that the DOJ finally decided it was ok for federal agents to work with local law enforcement officers sporting body cameras, perhaps realizing the cameras simply weren't going to go away. After all, it had encouraged adoption of the tech with three years of federal funding. But this still meant federal officers were going about their work unobserved, which still seemed problematic given all the advantages the DOJ said these cameras created when it started handing out federal cash in 2015.It took another year before the DOJ finally decided federal officers should get with the body camera program. Six years after it invested in nationwide distribution of body cameras, federal officers are finally going to start wearing them. The ATF was the first to perform a test run of the cameras. Now, the DHS is following suit.

Agents with an investigative unit of the Department of Homeland Security will wear body cameras for the first time as part of a six-month pilot program that will focus on the costs and benefits of using the technology in federal law enforcement, officials said Tuesday.The cameras will be used during the test by 55 members of the SWAT-like special response teams at Homeland Security Investigations in Houston, Newark, New Jersey, and New York, an official told reporters.
That's the first wave of adoption for the DHS, albeit not one that guarantees permanent adoption. The second wave will rope in one of the federal government's most controversial agencies.
The senior ICE official, who spoke to reporters on condition of anonymity to provide details on the program before the announcement, said the agency expects later to expand the pilot to include officers who conduct immigration enforcement arrests.
Fortunately, this rollout is accompanied by something that often goes missing when the federal government deploys new tech: privacy impact assessments and written policies. In this case, there's both. The DHS has issued a Privacy Impact Assessment [PDF] that contains the guidelines for camera use by officers. This one directly addresses the ICE pilot program.The rules laid down are actually pretty solid, which is somewhat surprising given the federal government's reluctance to adopt the tech and ICE's roguelike reputation.
ICE personnel must record Pilot enforcement activities at the start of the activity, or, if not practicable, as soon as safely possible thereafter. Once a Body Worn Camera is activated, ICE personnel should only deactivate the Body Worn Camera when their participation or involvement in the enforcement activity has concluded. If ICE personnel fail to activate their Body Worn Camera, or if the recording is interrupted, they must provide a statement detailing the reason why they failed to activate the Body Worn Camera or why the recording was interrupted.ICE personnel will verbally notify (i.e., provide notice to) individuals that they are being recorded if (or as soon as) it is operationally feasible. This notice should not be construed as a requirement for ICE to obtain consent from the subjects being recorded. The Body Worn Camera will be placed on a visible location on ICE personnel’s outerwear (e.g., on vest or helmet) so that individuals can see the Body Worn Camera.ICE personnel are prohibited from intentionally making Body Worn Camera recordings in places or areas where cameras generally are not allowed or permissible (e.g., locker rooms, dressing rooms, medical facilities, restrooms, in facilities where recording is prohibited) unless related to an enforcement activity.ICE personnel should not record encounters with undercover officers, confidential informants, and cooperating defendants.ICE personnel should not record in a manner that would infringe on activity protected by the First Amendment (e.g., lawful protests).Body Worn Cameras will not be used during undercover operations or in situations in which it would pose a risk to officer or public safety.Body Worn Camera recordings will not be used for any facial recognition activities.
All recordings collected during this pilot period will be saved. Anything of evidentiary value will be sorted out. Recordings can (at least theoretically) be obtained with FOIA requests.Of some concern is the directive forbidding the recording of First Amendment activities. On one hand, you don't want federal agents to engage in surveillance of protected activities. On the other hand, you don't want any interactions between federal officers and protesters to go unrecorded. So, this will have to be refined. It would seem that the rule ordering the recording of all "enforcement activities" would supersede the rule forbidding the recording of First Amendment activities when officers interact with protesters. But it will probably be months or years before the public knows how ICE officers have chosen to interpret these rules.Still, it's a good set of ground rules. And it gets a little better. ICE officers are expected to record any questioning of individuals (whether in custody or not), as well as any brief detentions or frisks of individuals they encounter. It's also mandatory for all warrant service and searches incident to an arrest.Better late than never. And a far better set of rules than was expected, given both the federal government's resistance to early adoption and ICE's general unwillingness to welcome examination of its enforcement efforts. Hopefully, the rollout will continue with similar rules in place for other federal agencies. While body cameras aren't a panacea for law enforcement misconduct, they're far better than having nothing but an officer's word for what went down.

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posted at: 12:00am on 31-Dec-2021
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Remembering Techdirt Contributors Sherwin And Elliot

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It's been a rough year for our community of tech policy advocates, with us losing two of our own, Sherwin Siy in July and then Elliot Harmon in October. We remembered Sherwin here, and the EFF wrote about Elliott over there.But what we realized is that both of them had also written here at Techdirt, so we thought we'd use this end-of-year time of reflection to share those posts from the Techdirt archives.Sherwin appears to have had just one post, but it was a quintessentially Sherwin post that both relished the absurdity of the world, while diligently explaining it:"Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?"Elliot also wrote about wayward applications of intellectual property laws. His first post here was about a winner of the EFF's stupid patent of the month "award," which was bestowed upon Ford for having patented a windshield. He then later wrote about another stupid patent with Daniel Nazer, this time "celebrating" Elsevier's patent on peer review.He also wrote about copyright getting out of hand, including in this post about how current copyright policy creates dangers to research.Of course, IP isn't the only thing to worry about in tech policy; there's also the chilling efforts to increase liability for platforms. He wrote about the problems with these proposals too, counseling Congress not to force platforms to censor their users, and warning about the inevitable harms of SESTA/FOSTA in several other posts:

These battles obviously continue, and somehow we'll have to fight them without two of our closest and smartest allies. But while Sherwin and Elliott may not be here anymore, their insights will live on.

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posted at: 12:00am on 31-Dec-2021
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Chinese Govt. Arrests More Pro-Democracy Icons In Hong Kong, Including Music Stars

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While we have been discussing the way mainland China's plan to slow-creep the end of democracy in Hong Kong has turned into more of a sprint, it's also quite true that what is occurring there hasn't gotten nearly enough media burn as it should. Plenty of folks have chalked up China's aggressive attitudes towards Hong Kong to the 2019 pro-democracy protests, but the real sprint began once it became clear that Donald Trump stood a good chance of losing the White House to Joe Biden. Trump showed little willingness to push back on China when it came to its treatment of Hong Kong and the theory was that Biden would reverse course and show some backbone. That he generally hasn't is one of geopolitics great ironies. Beijing has taken such steps as to try to erase the CCP's own bloody history, to censor all kinds of Hong Kong pro-democracy culture, and to arrest of all kinds of pro-democracy lawmakers and media.Democracy is over in Hong Kong, in other words, and has been for some time now. What Beijing is currently in is a mop-up mode, as it looks to take the vice it has built around the city-state and spin the tightening lever. China's actions have made any designation of Hong Kong as a Special Administrative Region an absolute punchline, including at present when China is busy arresting more pro-democracy cultural icons, including a popular musician, Denise Ho.

Cantopop star and prominent Hong Kong pro-democracy activist Denise Ho was arrested at her home on Wednesday morning by the city's national security police.She was one of six people arrested in an early morning operation, all linked to online media organization Stand News. Police later confirmed at a news conference that a seventh person had been arrested. They have been accused by police of "conspiracy to publish seditious material," a colonial-era crime.Ho, a former Stand News board member, was born in Hong Kong but grew up in Canada. She found fame in the early 2000s with a string of hit albums, before later building a successful career as an actress.
In addition to this raid, Chinese authorities raided the Stand News offices in a wild show of force. Hundreds of officers descended on the operation, all under the cover of the relatively new National Security Law passed in 2020 that seemed specifically designed to erase freedoms in Hong Kong. Perhaps the most surprising part of this story is how long it took for China to take this action against Ho. She is a gay, pro-democracy advocate who has regularly participated in protests and marches, all with a large following thanks to her musical and acting careers. In other words, she is absolutely a sensible target for a Chinese government intent on playing thought police over the city.
Her activism has also drawn other repercussions over the years -- including being blacklisted and censored in mainland China.Chinese state media has attacked Ho as "Hong Kong poison" in previous years. In 2016, amid criticism of Ho from Beijing, luxury brand Lancome canceled a promotional concert featuring the star, citing "safety reasons."
But it's the rest of the world's collective shoulder shrug that is the issue here. Why is China continuing to take these actions? Because the rest of the world is not de-incentivizing those actions, of course. That we're all sitting back and allowing this to happen without even putting up a fight is and will be a stain on the democracies of the world. That the world let things get this far in the first place without any real pushback, all the more.Democracy is over in Hong Kong because, in part, we sat back and watched it die. Shame on all of us.

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posted at: 12:00am on 30-Dec-2021
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Massachusetts Supreme Court Tackles Law Enforcement Use Of Cell Tower Dumps

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Years after they've become a go-to tool for law enforcement to work their way backwards to suspects, the Massachusetts Supreme Court is wrestling with the issue of cell tower dumps.Cell tower dumps can often be had with only a subpoena. They give investigators access to all cell phones that were in the area of the tower at certain times. Investigators peruse these lists of numbers to try to find numbers that might be linked to someone who committed a crime. The problem is investigators don't know who that "someone" is, so they, however briefly, turn everyone in the area into a suspect.The Third Party Doctrine tends to control this collection of data. The information is collected as a necessary part of cell phone operation. Therefore, there's no expectation of privacy in this information, the theory goes, since users are aware service providers need this information to provide service. And it very well may be that cell users are aware of this. What they generally don't expect is that law enforcement can obtain this data without a warrant, or, indeed, obtain it at all when investigators don't even know who they're looking for.The thorny issue of tower dumps is before the court, which now has the US Supreme Court's Carpenter decision to consider as well, something it didn't have prior to June 2018. In that decision, the Supreme Court says there was an expectation of privacy in cell site location data, which tower dumps are, even if they contain information on hundreds or thousands of people, rather than the more targeted collection of cell site location info related to a single targeted number.The Carpenter decision was rather narrow, holding that use of cell site location info to track people's movements requires a warrant. But it also stated clearly that there's an expectation of privacy in these records, whether or not they're collected long term or once via a tower dump. The tracking was the issue here, but Carpenter changed how courts view cell site location info.The state of Massachusetts has its own constitution to factor in as well. And in some cases, state constitutions have proven more protective of rights than the US Constitution, which is considered to be the floor for rights, rather than the ceiling.Thomas F. Harrison covered the oral arguments in the Massachusetts Supreme Court for Courthouse News Service. And from what's reported here, it appears the justices aren't all that keen on pretending working backwards from untargeted data dumps isn't the sort of thing the public expects to be happening with the phone records they generate simply by taking their phones wherever they go.

"Doesn’t society have an objective expectation that you’re not going to be caught up in a police search in this way," Justice Scott Kafker asked, noting that “the idea that 50,000 people are potential suspects is a bit much."While the justices seemed to think the police met strict constitutional standards in this case, they also worried that allowing the government to indiscriminately sweep up location data for hundreds or thousands of innocent people could lead to a dystopian result.“It’s a slippery slope,” said Justice Dalila Wendlandt. “You could find out if a person was home at 4 a.m., or if he was in a Catholic church at 10 a.m. on Sunday.”She added: “If you had enough data points you could put together a very good picture of Justice Wendlandt’s private life.”“You could see if a person was at a political event or other association,” fretted Justice David Lowy.
The underlying case involved a lot of phone records. Six robberies and zero suspects led police to obtain tower dumps from near those locations, resulting in the collection of nearly 51,000 phone records. From that, police tracked down one suspect, Jerron Perry, who is charged with murder because someone was killed during one of the robberies. Perry challenged the tower dump evidence, which was rejected by the trial court, leading to this appeal to the state Supreme Court.But this case may not go Perry's way. Unlike countless other cases, a warrant was actually obtained to collect this data. The question is what's the limit to collections obtained with warrants. Does a warrant whose only probable cause is that it's likely the service provider has these records still abide by the Constitution? Perry's representatives and entities filing amici briefs say this goes too far, making it something closer to the "general warrants" the US Constitution aimed to eliminate.At this point, it's unclear how the justices will lean. Some, like those listed above, seemed concerned about what this does to the expectation of privacy. Others, however, did not see the warrants as "general," noting that not all warrants need to be particularized to a person. They also noted the only towers "searched" were those near the scenes of robberies, which (somewhat) particularized the searches, even if the cops had no idea who they were looking for.And one justice said the facts of this case allowed the police to slide on one underdeveloped probable cause assumption.
Justice Serge Georges was troubled that the police simply assumed that the perpetrator had a cellphone.“The government gets past first base without showing that a cell phone was part of the crime,” he said. “There’s just this notion that everyone has a cellphone, and it’s on. That’s just bald speculation. We have no reason to think the person who committed these crimes had a phone. We’re just going to assume. That’s the part that really bugs me.”
That is concerning. Given what's known about how often investigators start investigations with phone records -- along with how easily they can be obtained -- some criminals are probably leaving their phones behind when committing crimes. The government should have more to work with than an assumption that might be incorrect, especially when that assumption allows them to collect data in bulk.If the court decides warrants can't be used to collect bulk data, it will be a significant privacy win for residents of the state. It will also be the first of its kind in the nation -- a prohibition on the untargeted collection of cell site location info.

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posted at: 12:00am on 30-Dec-2021
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Former US Intelligence Analysts Sued For Hacking A Saudi Activist's Phone On Behalf Of The United Arab Emirates

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In early 2019, a whistleblower revealed some ugliness emanating from the United Arab Emirates: former NSA analysts working for a private company hired to perform counterterrorism work for the government were spying on journalists, activists, and the occasional American citizen on behalf of their royal benefactors.Why these analysts were working for known human rights abusers was unclear. Why they decided this work should involve targeting people who weren't terrorists, but rather critics of the UAE government, was similarly left unexplained. The program was called Project Raven and former employee Lori Stroud was the only person involved willing to speak publicly about its activities. Everyone else -- from the NSA to the UAE government -- refused to comment.More than two years later, the harms perpetrated by these former analysts were given a price tag. Three former US intelligence community analysts (two of which worked for the NSA) were fined $1.68 million for utilizing powerful hacking tools to target dissidents, activists, journalists, and the occasional American citizen for the UAE government. The tools used included "Karma," which was capable of remotely compromising targets' phones without any interaction from phone owners, allowing for wholesale collection of photos, emails, text messages and location information.Over the years covered in the indictment (which resulted in the fines mentioned above), the analysts began with Project Raven, which migrated from Cyberpoint (a company associated with Italy's infamous Hacking Team), before finally ending up as a wholly-UAE-owned company called Darkmatter.It's this company that's now being sued by one of its targets, a Saudi activist represented by the EFF.

The Electronic Frontier Foundation (EFF) filed a lawsuit today on behalf of prominent Saudi human rights activist Loujain AlHathloul against spying software maker DarkMatter Group and three of its former executives for illegally hacking her iPhone to secretly track her communications and whereabouts.AlHathloul is among the victims of an illegal spying program created and run by former U.S. intelligence operatives, including the three defendants named in the lawsuit, who worked for a U.S. company hired by United Arab Emirates (UAE) in the wake of the Arab Spring protests to identify and monitor activists, journalists, rival foreign leaders, and perceived political enemies.
The defendants include Darkmatter, the UAE-owned company that acted on behalf of the Kingdom of Saudi Arabia. Also named are the three former US Intelligence Community analysts who were fined $1.68 million by the federal government in September 2021.A lot of what's alleged mirrors what we've been seeing over the past several months emanating from Israel malware manufacturer, NSO Group: powerful phone hacking tools, authoritarian governments, and the targeting of government critics, political opponents, and journalists. We've heard plenty about who's been targeted. We don't often hear what happens to those targeted when the governments targeting them finally catch up to them. AlHathoul's lawsuit [PDF] details the end result of her targeting by former NSA analysts working for Project Raven and Darkmatter.
[AlHathloul's] phone was initially hacked in 2017, gaining access to her texts, email messages, and real-time location data. Later, AlHathloul was driving on the highway in Abu Dhabi when she was arrested by UAE security services, and forcibly taken by plane to the KSA, where she was imprisoned twice, including at a secret prison where she was subject to electric shocks, flogging, and threats of rape and death.
I'm sure the named analysts would prefer not to know the human misery their work for the UAE and KSA (Kingdom of Saudi Arabia) resulted in. It's always easier to think of targets in the abstract: an identifier devoid of personal agency, compromised and controlled by ones and zeroes similarly devoid of personality. This lawsuit will force them to confront what they enabled and, possibly, compensate this activist for the harms they enabled.

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posted at: 12:00am on 29-Dec-2021
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A Grope In Meta's Space

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Horizon Worlds is a VR (virtual reality) social space and world building game created by Facebook. In early December, a beta tester wrote about being virtually groped by another Horizon Worlds user. A few weeks later, The Verge and other outlets published stories about the incident. However, their coverage omits key details from the victim’s account. As a result, it presents the assault as a failure of user operated moderation tools rather than the limits of top-down moderation. Nevertheless, this VR groping illustrates the difficulty of moderating VR, and the enduring value of tools that let users solve problems for themselves.The user explains that they reported and blocked the groper, and a Facebook “guide”, an experienced user trained and certified by Facebook, failed to intervene. They write, “I think what made it worse, was even after I reported, and eventually blocked the assaulter, the guide in the plaza did and said nothing.” In the interest of transparency, I have republished the beta user’s post in full, sans identifying information, here;

**Trigger Warning** Sexual Harassment. My apologies for the long post: Feel free to move on.Good morning,I rarely wake up with a heavy heart and a feeling of anger to start a fresh new day, but that is how I feel this morning. I want to be seen and heard. I reach out to my fellow community members in hopes of understanding and reassurance that they will be proactive in supporting victims and eliminating certain types of behavior in horizon worlds. My expectations as a creator in horizon worlds aren't unreasonable and I'm sure many will agree.You see this isn't the first time, I'm sure it won't be the last time that someone has sexually harassed me in virtual reality. Sexual harassment is no joke on the regular Internet but being in VR adds another layer that makes the event more intense. Not only was I groped last night, but there were other people there who supported this behavior which made me feel isolated in the Plaza. I think what made it worse, was even after I reported, and eventually blocked the assaulter, the guide in the plaza did and said nothing. He moved himself far across the map as if to say, you're on your now.Even though my physical body was far removed from the event, my brain is tricked into thinking it's real, because.....you know......Virtual REALITY. We can't tout VR's realness and then lay claim that it is not a real assault. Mind you, this all happened within one minute of arriving in the plaza, I hadn't spoken a word yet and could have possibly been a 12-year-old girl.MY ASK:I would like a personal bubble that will force people away from my avatar and I would like to be able to upload my own recording with my harassment ticket. I would also like that all guides are given sensitivity training on this specific subject, so they will understand what is expected. If META won't give guides tools that will allow them to remove a player immediately from a situation, at least train them to deal with it and not run away.Rant over, I'm still mad, but I will sort through and process. I love this community and the thought of leaving it makes me deeply sad. So I am hopeful we can evolve as a community and foster behaviors that support collaboration, understand, and a willingness to speak out against gross behaviors.
Initial coverage in The Verge did not mention the victim’s use of the block feature, even as the user describes using it in the post above. Instead, reporter Alex Heath relayed Facebook’s account of the incident, saying “the company determined that the beta tester didn’t utilize the safety features built into Horizon Worlds, including the ability to block someone from interacting with you.”These details are important because subsequent writing about the incident builds on the false, but purported non-use of the blocking feature to make the case that offering users tools to control their virtual experience is “unfair and doesn’t work.” In Technology Review, Tanya Basu makes hay of the user’s failure to use the “safe zone” feature, which temporarily removes users from their surroundings. Yet this is a red herring. The user might not have immediately disappeared into her safe zone, but she used the block feature to do away with her assailant.In reality, contra Basu or Facebook’s description of events, it seems that user-directed blocking put a stop to the harm while the platform provided community guide failed to intervene. VR groping is a serious issue, but it is not one that will be solved from the top-down. Inaccurate reporting that casts user-operated moderation tools as ineffective may spur platforms to pursue less effective solutions to sexual harassment in VR.Implications of the incident’s misreporting aside, it provides a useful case study in the difficulties of moderating VR. One suggestion put forward by the user and backed by University of Washington Professor Katherine Cross warrants discussion. Closer inspection of their proposals illustrates the careful tradeoffs that inform the current safe zone and blocking tools offered to Horizon users.They request a “personal bubble that will force people away from my avatar” or “automatic personal distance unless two people mutually agreed to be closer.” This might make some groping harder, but it creates other opportunities for abuse.If players’ avatars can take up physical space and block movement, keeping others at bay, then they can block doorways and trap other players in corners or against other parts of world. Player collision could render abuse inescapable or allow players to hold others’ avatars prisoner.MMOs (Massively Multiplayer Online games) have long struggled with this problem – “holding the door” is only a contextually heroic action. Player collision makes gameplay more realistic, but allows some players to limit everyone else’s access to important buildings by loitering in the doorway.Currently, players’ avatars in Horizon may pass through one another. They can retreat into a safe zone, disappearing from the world. They can also “block” other users – preventing both the blocked and blocking users from seeing one another. Even through a block, they can still see one each other’s nametags – total invisibility created problems I covered here. As such, the current suite of user moderation tools strikes a good balance between empowering users and minimizing new opportunities for misuse.Finally, given the similarity of the transgression, it is worth recalling Julian Dibbell’s “A Rape in Cyberspace”, one of the first serious accounts of community governance online. In this Village Voice article, Dibbell relates how users of role-playing chatroom LambdaMOO (the best virtual reality to be had in 1993) responded to a string of virtual sexual assaults. After fruitless deliberation, a LambdaMOO coder banned the offending user. After the incident, LambdaMOO established democratic procedures for banning abusive users, and created a “boot” command allowing users to temporarily remove troublemakers.As the internet has developed content moderation has centralized. Today, users are usually expected to let platforms moderate for them. However, just as in the web’s early days, empowering users remains the best solution to interpersonal abuse. The tools they need to keep themselves safe may be different, but in virtual reality as in role-playing chat, those closest to abuse are best positioned to address it. Users being harassed should not be expected to wait for the mods.Will Duffield is a Policy Analyst at the Cato Institute

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posted at: 12:00am on 29-Dec-2021
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Unsecured Data Leak Shows Predicitive Policing Is Just Tech-Washed, Old School Biased Policing

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Don't kid yourselves, techbros. Predictive policing is regular policing, only with confirmation bias built in. The only question for citizens is whether or not they want to pay tech companies millions to give them the same racist policing they've been dealing with since policing began.Gizmodo (working with The Markup) was able to access predictive policing data stored on an unsecured server. The data they obtained reinforces everything that's been reported about this form of "smarter" policing, confirming its utility as a law enforcement echo chamber that allows cops to harass more minorities because that's always what they've done in the past.

Between 2018 and 2021, more than one in 33 U.S. residents were potentially subject to police patrol decisions directed by crime-prediction software called PredPol.The company that makes it sent more than 5.9 million of these crime predictions to law enforcement agencies across the country—from California to Florida, Texas to New Jersey—and we found those reports on an unsecured server.Gizmodo and The Markup analyzed them and found persistent patterns.Residents of neighborhoods where PredPol suggested few patrols tended to be Whiter and more middle- to upper-income. Many of these areas went years without a single crime prediction.By contrast, neighborhoods the software targeted for increased patrols were more likely to be home to Blacks, Latinos, and families that would qualify for the federal free and reduced lunch program.
Targeted more? In some cases, that's an understatement. Predictive policing algorithms compound existing problems. If cops patrolled neighborhoods mainly populated by minorities frequently in the past due to biased pre-predictive policing habits, the introduction of that data into the system returns "predictions" that "predict" more crime to be committed in areas where officers have most often been located historically.The end result is what you see summarized above: non-white neighborhoods receive the most police attention, resulting in more data to feed to the machine, which results in more outputs that say cops should do the same thing they've been doing for decades more often. Run this feedback loop through enough iterations and it results in the continued infliction of misery on certain members of the population.
These communities weren’t just targeted more—in some cases, they were targeted relentlessly. Crimes were predicted every day, sometimes multiple times a day, sometimes in multiple locations in the same neighborhood: thousands upon thousands of crime predictions over years.
That's the aggregate. This is the personal cost.
Take the 111-unit Buena Vista low-income housing complex in Elgin. Six times as many Black people live in the neighborhood where Buena Vista is located than the city average.Police made 121 arrests at the complex between Jan. 1, 2018, and Oct. 15, 2020, according to records provided by the city, many for domestic abuse, several for outstanding warrants, and some for minor offenses, including a handful for trespassing by people excluded from the complex.Those incidents, along with 911 calls, fed the algorithm, according to Schuessler, the Elgin Police Department’s deputy chief.As a result, PredPol’s software predicted that burglaries, vehicle crimes, robberies, and violent crimes would occur there every day, sometimes multiple times a day—2,900 crime predictions over 29 months.
That's not policing. That's oppression. Both law enforcement and a percentage of the general public still believe cops are capable of preventing crime, even though that has never been a feature of American law enforcement. PredPol software leans into this delusion, building on bad assumptions fueled by biased data to claim that data-based policing can convert police omnipresence into crime reduction. The reality is far more dire: residents in over-policed areas are confronted, detained, or rung up on bullshit charges with alarming frequency. And this data gets fed back into the software to generate more of the same abuse.None of this seems to matter to law enforcement agencies paying for this software paid for with federal and local tax dollars. Only one law enforcement official -- Elgin (IL) PD's deputy police chief -- called the software "bias by proxy." For everyone else, it was law enforcement business as usual.That also goes for the company supplying the software. PredPol -- perhaps recognizing some people might assume the "Pred" stands for "Predatory" -- rebranded to the much more banal "Geolitica" earlier this year. The logo swap doesn't change the underlying algorithms, which have accurately predicted biased policing will result in more biased policing.When confronted with the alarming findings following Gizmodo's and The Markup's examination of Geolitica predictive policing data, the company's first move was to claim (hilariously) that data found on unsecured servers couldn't be trusted.
PredPol, which renamed itself Geolitica in March, criticized our analysis as based on reports “found on the internet.”
Finding an unsecured server with data isn't the same thing as finding someone's speculative YouTube video about police patrol habits. What makes this bizarre accusation about the supposed inherent untrustworthiness of the data truly laughable is Geolitica's follow-up:
But the company did not dispute the authenticity of the prediction reports, which we provided, acknowledging that they “appeared to be generated by PredPol.”
Geolitica says everything is good. Its customers aren't so sure. Gizmodo received responses from 13 of 38 departments listed in the data and most sent back written statements that they no longer used PredPol. That includes the Los Angeles Police Department, an early adopter that sent PredPol packing after discovering it was more effective at generating lawsuits and complaints from residents than actually predicting or preventing crime.This report -- which is extremely detailed and well-worth reading in full -- shows PredPol is just another boondoggle, albeit one that's able to take away people's freedoms along with their tax dollars. Until someone's willing to build a system that doesn't consider all cop data to be created equally, so-called "smart" policing is just putting a shiny tech sheen on old-school cop work that relies on harassing minorities to generate biased busywork for police officers.

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posted at: 12:00am on 28-Dec-2021
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California Police Officers' Bigoted Text Messages Have Just Undone Dozens Of Felony Cases

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Racism and policing go hand-in-hand. It's been this way ever since police forces were created for the purpose of tracking down escaped slaves and returning them to their owners. Flash forward 150 years and very little has changed other than the ending of slavery.Unsurprisingly, the advent of social media platforms and the increase in smartphone use has exposed the racism that still flows through far too many law enforcement agencies. Multiple investigations have been triggered by the exposure of bigoted communications between officers. It hasn't exactly resulted in a nationwide reckoning for racist officers, but it has at least seen a few bad apples tossed from barrels across the country.If cops aren't worried about what happens to them -- as is evidenced by their carefree deployment of casual racism -- it's doubtful they're too worried about what happens to the general public. They claim to be the thin blue line standing between us and criminal chaos, but their racist words are erasing that line, allowing criminal suspects to return to the streets.The Torrance Police Department in California is the epicenter of the latest garbage racist cop shitstorm. And rightfully so, given what's been uncovered there. Convictions and pending criminal cases are now in jeopardy because of officers texting each other things like this:

The caption read “hanging with the homies.”The picture above it showed several Black men who had been lynched.Another photo asked what someone should do if their girlfriend was having an affair with a Black man. The answer, according to the caption, was to break “a tail light on his car so the police will stop him and shoot him.”Someone else sent a picture of a candy cane, a Christmas tree ornament, a star for the top of the tree and an “enslaved person.”“Which one doesn’t belong?” the caption asked.“You don’t hang the star,” someone wrote back.
Documents obtained by the Los Angeles Times -- which includes open investigations into some of these officers -- shows the Torrance PD has a racism problem, one it is now forced to confront. It's one thing when it's officers being lousy human beings. That can be swept under the rug. It's quite another when dozens of criminal cases might be tossed because these officers have shown they can't be trusted on the streets, much less in court.
While no officers currently face criminal charges in direct relation to the text messages, the racist exchanges have led to the dismissal of at least 85 criminal cases involving the officers implicated in the scandal. County prosecutors had tossed 35 felony cases as of mid-November, and the Torrance city attorney’s office has dismissed an additional 50, officials said.
The bleeding is unlikely to stop there. Records from the District Attorney's office shows the officers implicated in this new scandal are (or were) listed as potential witnesses in nearly 1,400 cases spanning the last decade. The LA County public defender's office has been swamped since this information came to light, receiving nearly 300 letters disclosing possible misconduct by officers during one single week in November.The officers didn't just target black people with these texts. They also joked about "gassing" Jews, assaulting (sexually or otherwise) LGBTQ persons, assaulting suspects, and lying during investigations.It's possible this hatred and misconduct would never have been exposed. But two officers apparently felt untouchable enough that they felt comfortable spray-painting a swastika on a vehicle they towed following a report of mail theft. An investigation into the actions of Officers Cody Weldin and Christopher Tomsic uncovered racist messages originating from Tomsic.
District attorney’s records reviewed by The Times showed Tomsic sent a slew of racist images and messages, including a picture of former President Reagan feeding a monkey with a caption stating Reagan “used to babysit [former President] Obama.”Another picture he sent referred to an “African American baby” as a “Pet Niguana,” according to the records, and he also sent a message mocking the fact that he was the subject of a racial profiling complaint.“So we totally racially profiled his ass, haha … Shopping at 7/11 while Black, he didn’t know the rules lol,” Tomsic wrote, according to the records.
That led to the exposure of more bigoted messages from cops. There are a total of 18 officers implicated. The names of thirteen of those officers are known and have been published by the LA Times. Several of those officers have been investigated for deploying excessive force or killing citizens. In almost every case, they've been cleared of wrongdoing.Fortunately, the Torrance PD seems to be taking this seriously. It has given the DA's office 200 gigabytes of data covering officers' text messages. And the DA's office has been ensuring this information is passed on to the public defender's office, so both parties can determine what cases might be affected by these cops and their racist attitudes.But cops don't just start sending racist texts to each other without feeling comfortable doing it. At some level, the Torrance PD made it clear this sort of behavior was, at minimum, ignored, if not actively tolerated. Now, these self-proclaimed protectors of the innocent have shown they only care about certain people, and are apparently willing to set criminals free rather than reign in their bigoted impulses.

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posted at: 12:00am on 28-Dec-2021
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Investigation Shows Egyptian Government Hacked A Dissident's Phone Twice, Using Two Different Companies' Malware

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Citizen Lab has uncovered more state-level spying targeting political opponents and journalists. There's a twist to this one, though. One of those targeted had his phone infected by two forms of malware produced by two different companies. And yet another twist: both companies have their roots in Israel, which is home to at least 19 entities that develop phone exploits. Here's the summary from Citizen Lab:

Two Egyptians—exiled politician Ayman Nour and the host of a popular news program (who wishes to remain anonymous)—were hacked with Predator spyware, built and sold by the previously little-known mercenary spyware developer Cytrox.The phone of Ayman Nour was simultaneously infected with both Cytrox’s Predator and NSO Group’s Pegasus spyware, operated by two different government clients.Both targets were hacked with Predator in June 2021, and the spyware was able to infect the then-latest version (14.6) of Apple’s iOS operating system using single-click links sent via WhatsApp.
Ayman Nour, the lucky recipient of two different strains of malware, is the head of an opposition group who ran against former Egyptian President Hosni Mubarak. Shortly after Nour's election loss, he was jailed for allegedly forging signatures on petitions -- a move generally recognized as retaliation from his victorious opponent.The other target is a journalist now in exile who has been openly critical of Egypt's new president.Unsurprisingly, these attacks have been traced back to the Egyptian government. What's more surprising is that attribution can be made since attackers using these powerful hacking tools usually do a little better covering their tracks.
We attribute the attacks on the two targets to the Egyptian Government with medium-high confidence. We conducted scanning that identified the Egyptian Government as a Cytrox Predator customer, websites used in the hacks of the two targets bore Egyptian themes, and the messages that initiated the hack were sent from Egyptian WhatsApp numbers.
Once again, powerful hacking tools deployed against government critics have been traced back to companies with an Israeli presence. NSO Group has always been located in Israel. Cytrox, however, has moved around, changing both its home base and its name several times to distance itself from its irresponsible malware sales. But the Times of Israel has the receipts.
Cytrox was part of a shadowy alliance of surveillance tech companies known as Intellexa that was formed to compete with NSO Group. Founded in 2019 by a former Israeli military officer and entrepreneur named Tal Dilian, Intellexa includes companies that have run afoul of authorities in various countries for alleged abuses.Four executives of one such firm, Nexa Technologies, were charged in France this year for “complicity of torture” in Libya while criminal charges were filed against three company executives for “complicity of torture and enforced disappearance” in Egypt. The company allegedly sold spy tech to Libya in 2007 and to Egypt in 2014.
It appears there's a healthy market for powerful phone exploits. But the market consists of unhealthy governments more interested in tracking and surveilling critics than engaging in counterterrorism or investigating serious criminal activity. NSO claims it only sells malware for those more acceptable reasons. Cytrox/Intellexa has never offered any such assurances, possibly because it has an international rap sheet that would immediately undercut its assertions.It's an ugly world out there. Plenty of companies operating out of free countries are willing to sell exploits to governments they know will abuse them to commit human rights violations. If NSO Group shuts down its malware arm, it won't make things safer for dissidents, government critics, and journalists. There are plenty of companies willing to fill this void. And they're very good about obscuring who they are and what they do.But one thing is undeniable: malware merchants are enabling abusive governments and it's going to take more than a few sanctions and fines to prevent this from happening in the future. So far, the countries these companies call home have done little about these residents who are making the world a worse place to live. That has to change. And it appears it's going to be investigative journalists and security researchers applying the pressure through investigations and exposés. Governments need to stop abdicating their responsibilities and allowing private citizens with finite resources and zero power to do their work for them.

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posted at: 12:00am on 24-Dec-2021
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Video Game 'Hades' Makes History As First Video Game To Win A Hugo Award

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While arguing that video games are a form of art and should be respected as such has been a personal drum I've enjoyed beating for a decade, it's worth acknowledging just how far the public has come in its acceptance. While I spent a great deal of time ten years ago trying to get people, especially older folks, to see the light on this topic, the idea that video games are an artform has become far less controversial. As more people experience games, they've come to recognize better that games exhibit all the traditional hallmarks of an artform: creativity, political and ideological expression, efforts at preservation, and fights over expression in the courthouse.But, of course, that doesn't mean that everyone is convinced. So every once in a while comes a news story that gives me the opportunity to pull the old drum and sticks out and get back to playing persuasive percussion. Today that story is that a little bit of history was made by indie video game Hades, which has become the first game ever to win a Hugo Award.

The Hugo Awards are an annual literary award given to various sci-fi and fantasy works at the World Science Fiction Convention every year. Normally, video games aren’t nominated for the award, however, this year a new category was introduced for video games. This follows years of conversations among the governing members behind the prestigious and long-running Hugo Awards. The new category is only, at least for now, a one-off thing, but it could continue in the future.Yesterday, Hades made history by becoming the first video game to ever win a Hugo Award.
Now, the Hugo Awards have a recent history filled with expanding categories like this to reflect the changing artistic landscape. Categories have been added for "best fancast", for instance. But that's how it should be. The artistic landscape is constantly changing and with it should industry recognition. Writing a script for a video game is certainly not the same as writing one for a screenplay, or writing dialogue for a novel. But it's close enough that prestigious awards for quality writing in artistic content probably should have kept up with the times a long time ago. A game with a storyline and writing built on Greek myths was probably the perfect introduction for a writing award such as this.But I would also argue that you're going to start seeing more bleed-over and crossover in the awards space. Or, rather, that we should see that. For example, MTV's Music Awards has a category for best video game soundtrack, but the Grammy Awards does not. There are categories for film soundtracks, but not video games. And if someone wants to point me to why John Williams should pile up all those Grammys for his work in film and television but not for the work he did years back as a composer and producer of video game soundtracks, well, good luck because that doesn't make much sense to me.Again, we're on the tail end of the era in which games aren't accepted as a true artform. The last of the old breed is dying off, or has been convinced, or is becoming a silent minority. But seeing the recognition so deserved for artistic games like Hades is still worth noting.

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posted at: 12:00am on 24-Dec-2021
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DEA Gives Former Marine Back $86,900 Cops Took From Him During A Nevada Traffic Stop Caught On Body Cam

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Because law enforcement just can't stop taking money from innocent people, here's another roadside shitshow that has resulted in an attempt to force the government to give back money it flat out stole.This one has a couple of twists. First, it involves body cameras, so the whole depressing farce can actually be watched as it unfolds. The second twist is the federal government, which arrived (via cell phone) to pitch in with the theft.This is what happened to Stephen Lara, 16-year military veteran and innocent person, as he traveled through Nevada on his way to visit his daughters in California.

On his drive from Texas to California, a Nevada Highway Patrol officer engineered a reason to pull him over, saying that he passed too closely to a tanker truck. The officer who pulled Stephen over complimented his driving but nevertheless prolonged the stop and asked a series of questions about Stephen’s life and travels. Stephen told the officer that his life savings was in the trunk. Another group of officers arrived, and Stephen gave them permission to search his car. They found a backpack with Stephen’s money, just where he said it would be, along with receipts showing all his bank withdrawals. After a debate amongst the officers, which was recorded on body camera footage, they decided to seize his life savings.
That's the short version. That's also the sanitized version. The longer, more excruciating depiction of these events can be seen here:
His motion [PDF] for the return of the $86,900 the NHP took from him goes into greater detail, including the fact that the officers left him stranded on the road without even enough money to finish his trip to California.It explains the origin of the cash:
Lara made the trip with the $86,900 in cash that is the subject of this motion—his life savings, which he was holding in the hopes of purchasing a house for his daughters. Lara has kept his savings in cash for as long as he can remember, although all his income goes through banks before he withdraws it. Lara took his savings with him on the trip because there had been several property crimes in his parents’ neighborhood, and his parents planned to be out of town for a portion of the time Lara was away; thus, he did not feel comfortable leaving that much money behind.
The huge stack of receipts -- which can be seen on the officer's body cam footage -- also explains the origin of the cash, all of which was traceable directly to Lara's bank accounts and from those accounts to the sources of income.The traffic stop was obviously pretextual. The officer who pulled him over didn't even bother following up on the alleged violation (following too closely) and went directly into asking a bunch of questions about drugs, contraband, cash, etc. Lara was upfront about the cash. He even gave the officer permission to search the vehicle.When the trooper saw the cash, he called in another officer to help him seize it. And that officer brought a dog, which made everything ok.
Then, a sergeant from NHP arrived. He had Lara’s money placed in a nearby field and instructed the officer who pulled Lara over to have his dog search for it. The dog found the money and purportedly alerted to the presence of drugs. The sergeant then ordered that the money be seized. At Lara’s urging, the officers inspected his ATM receipts and even took pictures. The money, bundled together using his daughter’s hair ties, was placed in an evidence bag. Although no DEA agent was present, Lara was given a receipt telling him to contact a DEA agent. Lara was then told he was free to go.
The drug dog was the permission slip -- the thing that told the officers they could ignore all the documentation bundled with the cash. Of course it would alert on cash. Almost all cash in circulation has drug residue on it. And it's not like this fact isn't well known.The other permission slip was the DEA agent. Although the agent was never on the scene, he was on the phone with the trooper (these conversations can be heard in the body cam recordings). The NHP trooper sought a federal adoption of the seizure via the DEA, making it easier to avoid state limitations or restrictions on cash seizures.The money was taken from Lara on February 19, 2021. Calls to DEA were unfruitful but finally forced the agency to issue a notice of seizure on April 5, 2021. As the Institute for Justice (which is representing Lara) pointed out, this delay violated federal civil asset forfeiture law. The DEA had 90 days to either give the money back or proceed with the forfeiture. It chose to do neither.But even if the DEA had done what it was supposed to, this would still be bullshit. There was likely no legal basis for the stop. There was no reason for the extended questioning. And there was definitely no reason -- given the complete lack of suspicion expressed by any officer involved that Lara was involved in anything illegal -- for the NHP and DEA to walk off with Lara's money.The good news is public pressure works. The Institute for Justice has been instrumental in forcing the DEA to hand back money it has stolen from innocent people. The problem is, of course, that not every case gets this sort of effective representation. And in many cases, the amount is big enough to matter to the people it's taken from, but not big enough to justify spending the amount of money needed to force the government to return ill-gotten gains.In this case, it worked. Shortly before Lara's story went national, the DEA agreed to return his money to him. Along with the IJ, Lara is suing to have the Nevada's forfeiture laws found unconstitutional. But beyond the return of the money, securing a copy of footage of the stop is a crucial win. It shows exactly how these stops unfold and the machinations of law enforcement officers to take cash from people they allege are criminals, but who are apparently not criminal enough to charge with any crimes.

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posted at: 12:00am on 23-Dec-2021
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AI Surveillance Of Prison Calls Scooping Up Millions Of Conversations, Producing Little Actionable Info

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There's not much privacy in prison. And there's going to be even less. Inmates are warned that all calls are monitored. How often this goal is achieved is impossible to say, but tech advances are making it a reality. Attorney-client privilege is supposed to be respected in prisons, but we've already seen instances where it hasn't been, thanks to automated monitoring equipment.What's already been a problem is going to get worse. AI is doing the eavesdropping, and it's far from perfect. A new report from Thomson Reuters shows prisons are investing heavily in automation to ensure as many conversations as possible originating from prisoners are recorded, captured, and mined for useful info.

When the sheriff in Suffolk County, New York, requested $700,000 from the U.S. government for an artificial intelligence system to eavesdrop on prison phone conversations, his office called it a key tool in fighting gang-related and violent crime.But the county jail ended up listening to calls involving a much wider range of subjects - scanning as many as 600,000 minutes per month, according to public records from the county obtained by the Thomson Reuters Foundation.
There's the stated intent: "gang-related and violent crime." Then there's the actual use. Utilizing a scanning system powered by Amazon's speech-to-text tech, Suffolk County jailers utilized keyword searches to flag conversations for further examination. Some keywords were questionable, like the Spanish word "mara," which can refer to a gang or just a group of friends. But it wasn't just serious criminal activity being flagged.
Sheriff's deputies in Suffolk County also circulated a regular intelligence brief of prisoners the system flagged for illegally collecting unemployment benefits while in the jail.
Then there are the seriously concerning keyword scans deployed elsewhere by prisons and jails using similar tech.
Emails and contracts from eight states show the tool is used to scan a wide range of calls, for example conversations involving mention of the Spanish word for lawyer or accusations that detention facilities were covering up COVID-19 outbreaks.
If the conversations including terms for lawyer were flagged as potentially off-limits, then the tech is being used responsibly. If those were flagged for further review, that's a huge problem. So is the flagging of COVID-related conversations, which could indicate prisoners were being flagged for complaints and possibly retaliated against for informing others about unsafe conditions. While some use was related to containing outbreaks (as is detailed in the documents obtained by Reuters), there are also indications that information about prison conditions was gathered for less-than-idealistic reasons.
In Calhoun County, Alabama, prison authorities used Verus to identify phone calls in which prisoners vouched for the cleanliness of the facility, looking for potential ammunition to fight lawsuits, email records show.
Is this really a good use for tech purchased with the stated intent that it would be used to combat criminal activity behind bars? And those flagging calls for complaints about conditions seem intent on thwarting whistleblowers or heading off lawsuits by subjecting complainants to retaliatory activity.A lot of what's happening here appears to be mission creep. While the systems have shown some effectiveness in obtaining information about criminal activity and identifying prisoners who engaged in self-harm or are suicide risks, a lot of what's being flagged appears to be the result of opportunism. The legal justification is already there: all calls are monitored. If so, why not use the systems to flag anything of interest to prison officials, even if it's far outside of the stated scope of the surveillance?Why not, indeed. That's how the system used in Suffolk County scooped up 2.5 million phone calls in the space of one year but returned only 96 "actionable intelligence reports." Not every call is worth listening to, but now prison facilities have the luxury of listening to all of them and no reason not to.

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posted at: 12:00am on 23-Dec-2021
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Details Leak On Apple's Secret $275 Billion Deal With The Chinese Government

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More troubling news has surfaced about Apple's and China's relationship. Apple relies on Chinese manufacturing to make its phones and the Chinese government relies on its massive amount of power to leverage deals that allow it to achieve its ends, many of which are oppressive.An exclusive report by The Information (paywalled) details a $275 billion deal Apple struck with the Chinese government, apparently in hopes of exempting the company from new regulations that would have negatively affected its products and services. That deal was signed in 2016 and apparently includes an option for a sixth year, which would extend it through 2022.Here's what appears to have been the end result of this deal, which required Apple to invest heavily in China and work with the government to develop new technologies and cultivate Chinese tech talent. The South China Morning Post notes Apple is now back on top of the Chinese phone sales charts.

In October, Apple regained its title as the largest smartphone brand in China by shipments, its first time at the top of the list since December 2015, according to Counterpoint. Sales grew 46 per cent that month compared with the previous month, while the overall smartphone market grew just 2 per cent.
There's something in it for China as well.
China has also become more important to Apple’s supply chain. The company has added more suppliers from mainland China to its list of vendors than anywhere else from 2017 to 2020, according the Apple’s supplier list for the period. Mainland Chinese companies make up nearly a third of newly-listed companies.
The Chinese government also asked for -- and apparently received -- some smaller, much stranger concessions from Apple, as Richard Lawler reports for The Verge.
That includes a request Apple reportedly received in 2014 or 2015 about a small group of uninhabited islands that China and Japan apparently have a dispute over in terms of who owns them. Going by either the Senkaku Islands or the Diaoyu Islands, depending on which side of the argument you’re taking, they inspired a request from China to members of the Maps team to make them appear larger, even when viewers are zoomed out on the map. According to The Information, not only did Apple eventually make the change, but even today, for viewers using its map from within China, the islands are still shown at a larger scale than the territories around them.
Weird flex by the Chinese government. But the government has plenty of weird flexes. More concerning is whatever concessions were made to allow the Chinese government to more directly control iPhone users in the country. Apple has already made several concessions, including erecting local data centers that can be easily accessed by the government. It has also removed content deemed unlawful or offensive by the Chinese government, some of which has been directly related to the government's ongoing repression of its Muslim minority.For Apple, this is a problem of both supply and demand. Apple obviously wants to be able to sell its products to the large Chinese market. But it's pretty difficult to obtain much leverage when you're also reliant on this market to manufacture the same devices you want to sell to this market.Despite that lack of leverage, Apple has still secured some minor wins, as Samuel Axon points out at Ars Technica.
Encryption keys for iCloud user data for the region are controlled by Apple, despite the government's efforts to encourage, pressure, or force foreign companies to hand over responsibility for that data to Chinese companies.
Still, the deal with the Chinese government suggests the country will continue to have the upper hand in negotiations. Apple may be investing in its future, but it's pouring money into a regime that has continually expanded its power and escalated its oppressive activities against its own people. Apple's money will fund these activities, even if only indirectly. Striking a secret deal worth hundreds of billions of dollars with an authoritarian government is never a good look.Apple hasn't said much about this report. The Chinese government, however, has reacted (via its state-owned press) and that reaction is bizarre, to say the least.
A commentary published on the WeChat blog Buyidao, operated by the state-run tabloid Global Times, defended the investments. The attack on Apple’s ties to China are “clearly driven by the ‘political correctness’ of Sinophobia”, according to the article.“Forcing American companies to decouple from China is forcing them to decouple from opportunities and gains,” the article reads. “This is as good as McCarthyism for business.”
Huh. Well, that's a take. The Chinese government has shown repeatedly it cannot and should not be trusted, that it's an abuser of its considerable power. It's possible to question deals struck with an oppressive regime without engaging in Sinophobia. This isn't about the Chinese people or their way of life. It's about a government that disappears unwanted residents into prisons, threatens government critics with death sentences, and reacts with hostile indignation any time its narrative and claims are questioned. Pulling out of China isn't McCarthyism. It's simply a refusal to cater to the whims of a government that is its own population's primary antagonist.There's nothing inherently wrong with striking deals with foreign governments to ensure steady supply chain operations or expand customer bases. But striking a deal of this size with a government that expects its foreign partners to assist it in the oppression of its constituents is cause for concern.

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posted at: 12:00am on 22-Dec-2021
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Federal Court Says Destroying Someone's House To Apprehend A Fugitive Might Be A Constitutional Violation

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Law enforcement has a pretty cavalier attitude towards private property. Whatever property they aren't unjustifiably seizing from drivers and passengers, they're razing to the ground. Sometimes they destroy whole houses during plain vanilla warrant service. Other times, situations are determined to be stand-offs in need of wholesale destruction, even when officers are facing down an empty house.You'd think this sort of brazen and unjustified destruction would result in successful lawsuits to recover costs and damages incurred by these actions. But you'd be wrong. A successful lawsuit for law enforcement destruction of private property is more rare than a successful lawsuit over property seized via asset forfeiture.Courts tend to defer to law enforcement expertise, often opining that this collateral damage is just an unfortunate side effect of good police work. Officers are free to overcome any obstacles placed in the way of their objectives, and if that means entire walls of houses need to be destroyed, that's just the way it is. Who are we (this is the judges speaking) to second-guess decisions made in the heat of the moment, even when said moment is a daylong "standoff."Two Appeals Courts have issued precedential decisions that affect two entire circuits (the Ninth and Tenth), which make lawsuits brought in those jurisdictions even more unlikely to prevail. But a recent lawsuit -- featuring representation by the Institute for Justice (which has also had success fighting bogus forfeitures) -- has just experienced some limited success. It was brought by a woman whose residence was the victim of an overzealous Texas SWAT team that apparently felt the only way it could apprehend a suspect was by causing more than $50,000 of damage to her home.It's not like the McKinney PD didn't have options. Vicki Baker, the plaintiff, gave them plenty, as Billy Binion reports for Reason.

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker's home in McKinney, Texas. Baker's daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker's fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.
Baker's insurance company said it wasn't liable for damages caused by the government. The government -- in this case, the city of McKinney -- said it wasn't liable because she wasn't a victim of anything. The police had a legitimate reason to destroy her house (the apprehension of a fugitive). Sorry, but not anyone's fault, the city shrugged.Baker sued. And a federal court has come down on her side. It very plausibly is the city's problem and it can be held liable for the unnecessary destruction of this home, says the court [PDF].
Because at this stage the Court construes all well-pleaded facts in the light most favorable to Plaintiff, the Court finds Baker has plausibly alleged an official policy promulgated by the City of McKinney. As alleged in the Complaint, after the City’s destruction of her property, Baker requested compensation from the City of McKinney, but the City denied the request, stating that there was ‘no liability on the part of the City or any of its employees.’” This assertion is sufficient to plausibly allege a “a single unconstitutional action by a municipal actor”— that is, a denial of the constitutionally mandated just compensation following a taking by the government.
As the court notes, this isn't the end of the discussion. As it points out earlier, there exists no precedent in its jurisdiction or in the Fifth Circuit saying the Takings Clause of the Fifth Amendment applies to incidents like these. But rather than use that lack of precedent as a means to dismiss her suit, it comes to the conclusion that destroying a home (and refusing to compensate the innocent homeowner) is a Fifth Amendment violation.
The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances.[...]However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking… In Lucas v. S.C. Coastal Council, the Supreme Court opined that if “the uses of private property were subject to unbridled, uncompensated qualification under the police power, the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared.”
This federal court decides that sort of buck-passing stops here, at least for the time being. Not every claim is a valid Takings Clause claim, but this one appears to be at this point.
While the Court acknowledges that governmental bodies are not “liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]” Nat’l Bd. of Young Men’s Christian Ass’ns v United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City’s refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.
That's good enough to avoid dismissal. The same goes for the state law claims under the Texas constitution.
Baker pleaded that her home was intentionally destroyed in the government’s effort to apprehend Little. The affirmative actions Baker alleges include Department officers: (1) storming the house; (2) breaking windows; (3) knocking down the garage door; (4) knocking down the backyard fence; and (5) firing dozens of explosive tear gas cannisters into the home. Such actions were intentional, even if the City’s motives were to secure a threat to public safety. To be sure, the City itself indicates “the [Department] dr[ew] up plans” before busting into Baker’s home to apprehend Little. The resulting damage, therefore, can hardly be considered “incidental consequence[s] of the City’s actions.” Lastly, Baker alleges the City took her property for a public use—apprehension of a dangerous fugitive whose freedom threatened the community and public as a whole.Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.
This doesn't mean the city of McKinney can't still find a way to screw this homeowner. But this does definitely make it more difficult to escape the lawsuit. And that extra degree of difficulty may be all it takes for the city to cut a check. To push it further might mean setting precedent at a higher level that would make cities and law enforcement agencies liable for excessive damage to private property. And that's precedent no law enforcement agency in the nation is in any hurry to see set.

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posted at: 12:00am on 22-Dec-2021
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Another Example Of How The Playing Field Is Tilted In Favor Of Copyright Owners

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It's widely known that artists of all kinds often get a raw deal from the contracts they sign. But this kind of legal unfairness is not the only danger they face: copyright can also be turned against creators in other, illegal ways. For example, according to a report on MarketWatch:

Two men have been charged with allegedly running a years-long music royalty scam, in which they collected more than $20 million in payments from YouTube, by falsely claiming to hold the rights to 50,000 Spanish-language songs. 
Things began back in 2017, when the two men allegedly:
approached a third-party royalty management firm identified in court papers only by the initials A.R., falsely claiming to control the royalty rights to the songs. In some cases, Teran and Batista used forged notes from artists claiming they had the rights to manage the music, prosecutors said.
The men allegedly signed a contract with the management firm. Working with an established player seems to have given the accused credibility with YouTube, which then paid them royalties – an astonishing $20 million over the next few years according to the prosecutors. According to court documents, it seems that none of this was passed on to the artists concerned. In addition, YouTubers are alleged to have lost out when their uploads were falsely marked as infringing, and then used to generate income for the accused.Assuming the details of this case are confirmed during the trial, they show how the digital copyright system takes on trust claims to ownership, if made in the right way – in this case, through an established royalty management firm. That trust contrasts strongly with a widespread reluctance by companies to recognize that people may be able to draw on copyright exceptions when they make copies, and a readiness to assume that it must be an infringement. It's another example of how the playing field is tilted strongly in favor of copyright owners, and against ordinary citizens.Originally published to the Walled Culture blog.

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posted at: 12:00am on 21-Dec-2021
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NSO Group Facing Even More Money Problems As Debt Manager Says Sayonara And State Of Oregon Seeks To Terminate Its Investment

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NSO Group spent years supplying some of the world's most untrustworthy governments with powerful spyware capable of completely compromising targeted devices. It managed to weather a few years of reports tying its malware to surveillance of journalists and activists, but all hell broke loose earlier this year, resulting in a steady stream of reports linking its tools to surveillance of government officials, journalists, dissidents, government critics, religious leaders, and, in one incredible case, the ex-wife of the king of Dubai.It couldn't have come at a worse time for NSO. It has racked up an impressive amount of debt, something it likely assumed it would be able to manage as it continued to grow its market. That growth has stalled but the payments must still be made. NSO was downgraded by ratings firm Moodys, which warned that NSO was in danger of defaulting on its debts.That, combined with Israel drastically reducing NSO's customer base and the blacklisting by the US Commerce Department, has resulted in the company considering shutting down its offensive spyware division (the one responsible for developing Pegasus) and putting its remaining assets up for sale.It might not be that easy to divest, nor find a way back to solvency. Bloomberg reports that one of NSO's debt managers has decided it's no longer interested in providing these services to this particularly toxic asset.

Jefferies Financial Group Inc., one of Wall Street’s closest allies of spyware firm NSO Group, is resigning from a key administrative role for the Israeli company’s debt, according to a person with knowledge of the matter.The investment bank privately notified the company’s lenders on Friday of its intention to step down as administrative agent, a role in which Jefferies handles debt payments for the company and other clerical tasks, said the person, who asked not to be identified because the information is private.
That seems like a pretty strong "no confidence" vote on NSO Group. Whether it's because Jefferies thinks NSO can't repay its debt or because of its reputation as the enabler of oppression all over the world was left unsaid.But that's not the only demonstration of a lack of confidence. Keeping the malware purveyor at a minimum of arms length appears to be a popular move. A state government a couple of steps removed from NSO is looking to divest itself of its holdings.
Oregon's treasurer is exploring legal options with the state attorney general in the state's large investment in a smartphone spyware company — a firm that has been denounced by human rights groups, the U.S. government and tech giants.In 2017, the Oregon Investment Council unanimously committed $233 million in the state employee retirement fund to a new private equity fund called Novalpina Capital, which later acquired a majority share of NSO Group, an Israeli company that produces smartphone spyware.
This move might be due to NSO's public image, which currently requires the use of a periscope to peer out of the gutter. But it also might be due to the equity fund's internal problems, which has led investors -- including the state of Oregon -- to strip the company of its control of the fund and hand it over to another company entirely.But this statement from a state official indicates it has more to do with NSO's current PR problems than Novalpina's apparent inability to properly manage an equity fund.
Oregon State Treasurer Tobias Read “supports sanctioning global technology companies that facilitate human rights violations and the oppression of journalists by selling technology to authoritarian regimes," Read's spokeswoman, Amy Bates, said in a statement Thursday to The Associated Press.
It's currently unclear whether the state can get out of this without getting sued for breach of contract. But that's the direction the state would like to go. As for NSO, it continues to claim it's being unfairly punished for the actions of its customers, stating that it values "ethics over revenues" and only sells malware for the purpose of preventing terrorism and serious crime. But the facts say otherwise. And NSO has long since run out of excuses for its willingness to sell powerful spyware to countries with long histories of human rights violations and abuses of surveillance powers.

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posted at: 12:00am on 21-Dec-2021
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This Week In Techdirt History: December 12th - 18th

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Five Years AgoThis week in 2016, calls were continuing for the outgoing Obama administration to save the CIA torture report from being buried, while the White House agreed to preserve but not declassify it and at least one copy was preserved in Obama's archives. Facebook was announcing new measures to deal with disinformation while Iran was using the "fake news" scare to justify widespread censorship. Ajit Pai made it clear that net neutrality was on the way out while Tom Wheeler resigned rather than stay on as a commissioner. Meanwhile, after so many years of the Prenda saga, John Steele and Paul Hansmeier were indicted and arrested.Ten Years AgoThis week in 2011, Rupert Murdoch was personally lobbying for SOPA (as were sixteen former Judiciary Committee staff thanks to the revolving door) while RIAA boss Cary Sherman was defending it in the New York Times and MPAA boss Chris Dodd was getting desperate. Lamar Smith released an updated version of the bill that was still a disaster for cybersecurity (among other things) and even snuck in a new private right of action for shutting down sites. A nearly-twelve-hour markup session was a Wikipedia blackout in protest. Also, this was the week that Mike published his 40,000th Techdirt post.Fifteen Years AgoThis week in 2006, we saw an overbearing proposal to protect kids online while Germany was considering an insanely draconian law to punish creators and players of violent video games and a Japanese court issued a worrying ruling about liability for software makers. It was becoming increasingly clear that the Zune would not be a hit, and people were starting to realize that Second Life might not be as big a hit as the hype implied. The rumors about Apple's mysterious "iPhone" were joined by more dubious rumors of an Apple MVNO to sell mobile service directly. And major labels were ignoring the demand for DRM-free music while Bill Gates was admitting DRM was broken, though not doing anything about it.

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posted at: 12:00am on 19-Dec-2021
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Germany's New Government Promises To Support End-To-End Encryption And Reject Backdoors

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A bit of welcome news as the war on encryption continues around the globe. Germany's new government has said that it plans to come out more strongly in favor of end-to-end encryption and against backdoors. According to a report in Euractiv:

According to Jens Zimmermann, the German coalition negotiations had made it quite clear that the incoming government of the Social Democrats (SPD), the Greens and the business-friendly liberal FDP would reject the weakening of encryption, which is being attempted under the guise of the fight against child abuse by the coalition partners.Such regulations, which are already enshrined in the interim solution of the ePrivacy Regulation, for example, diametrically contradict the character of the coalition agreement because secure end-to-end encryption is guaranteed there, Zimmermann said.Introducing backdoors would undermine this goal of the coalition agreement, he added.What is sometimes proposed in the ePrivacy Regulation goes far beyond what we envisage in terms of vulnerability management, Zimmermann told EURACTIV, adding that implementation would mean actively creating vulnerabilities.
This is certainly good to see, but it's also important to have a country with as much clout as Germany standing up and saying this. Indeed, Zimmermann is also quoted as saying that the new German government plans to take a more vocal and proactive role on this issue.Unfortunately, not all of the new coalition government's views on the internet appear to be as good or as helpful. The same article also notes that while some parts of the new governing coalition had campaigned on getting rid of Germany's truly awful NetzDG internet censorship law, the new government does not plan to support such a position, and may, in fact, support a similar EU-wide plan within the Digital Services Act (DSA) which is currently up for debate in the EU.
Germany's Network Enforcement Act (NetzDG), which has a similar scope to the EU's DSA and has served as its model, according to Zimmermann, is not without controversy in the country.The FDP campaigned for its abolition during the Bundestag election campaign because, according to the liberal party, it encroached too much on civil liberties.But Zimmermann does not believe the liberal party would drag its reservations on the NetzDG into discussions on the EU's DSA.It is no longer a question of winning any symbolic victories, but we simply have to see that we get a good regulation in the end, Zimmermann said.
That's an odd statement that seems to suggest that protesting the disastrous and censorial NetzDG is "symbolic." It's not. It's a terrible law that has been abused repeatedly and should be ditched entirely, not spread to the EU.

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posted at: 12:00am on 18-Dec-2021
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Hershey Goes On A Threat Blitz Against A Bunch Of Independent Breweries

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As far as Techdirt's pages go, Hershey, the company behind all kinds of candy and sweets brands, doesn't come out of the wash clean. The company has been known to lean on IP laws quite aggressively, even absurdly. For instance, it sued a furniture company for having vehicle wraps that looked like a couch being unwrapped like a chocolate bar. Pretty dumb. It also sued Mars for having its own peanut butter chocolate candy, but for which the trade dress was totally different compared with Hershey's Reese's property. Also dumb.And now the dumb continues as Hershey is apparently going on a threat blitz against several independent beer breweries for trademark infringement. While some of the disputes make some sense from Hershey's perspective, some do not and the overall behavior of the company is one of the bully. We'll start with some of the problematic threats.

Over the past year, the world’s fifth largest chocolate confectioner has sent cease and desist letters to at least eight breweries across the country accusing them of infringing on its trademarks and requesting compensation up to $20,000.In one case, Hershey is demanding that the owners of Parliament Brewing in Sonoma County, California, stop calling a beer a common catch-phrase that happens to share a name with one of its candy bars. “We named a beer Whatchamacallit because we had a plumber we loved who was kind of hokey. He would refer to everything as a ‘whatchamacallit.’ I’d never heard the term before,” says co-owner Justin Bosch, who brewed the Whatchamacallit imperial IPA twice, once when Parliament opened in 2019 and again in 2020.
You may be wondering: where is this coming from, given that Hershey doesn't make beer and these seem to be different market categories? Well, the answer to that is likely because Hershey entered into a licensing agreement with Yuengling for its "Hershey's Chocolate Porter". This, perhaps, has led Hershey to believe that it is now tangentially in the beer-making business.Except that's not really how that works. Combined with the generic nature of the brand name, "Whatchamacallit", there is no public confusion here to worry about. Beer is not candy, in other words, so these two products are in fact playing in different markets, which means in most cases there is no valid trademark complaint to be made.But because trademark bullying by huge companies works, nearly all of the breweries in question have agreed to change their branding, including Parliament Brewing. That, it appears, wasn't enough for Hershey. The company wants its $20k no matter what.
“I don’t agree there’s an issue here but in the interest of making everybody happy I’ll stop,” he says, paraphrasing his response. “And they came back with, ‘Give us $20,000.’”More precisely, even though they made no initial mention of money and expressed a wish to “resolve this matter quickly and amicably,” they came back with a letter from their law firm that stated relief could only come from paying a steep price. It read, “While we appreciate your willingness to cooperate and to cease infringing our client’s intellectual property rights, be advised that entering a formal agreement with Hershey will be necessary to resolve your past unauthorized use of the WHATCHAMACALLIT® trademark and to confirm your understanding going forward.”
I would think the lesson here is that perhaps the math on whether to fight spurious trademark threats from Hershey wasn't so cut and dry. If you're going to have to shell out $20k anyway, well, maybe it would have been better to find a lawyer and fight. After all, again, in nearly all of these cases there is little reason to think the public is actually going to be confused over any of this.
Or, as Bosch, who produces a mere 500 barrels (15,500 gallons) of beer per year, says, “Nobody’s going to mistake a double IPA for a candy bar.”
Depends on how many double IPAs they've already had, I suppose, but it's "moron in a hurry" not "moron who is drunk."

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posted at: 12:00am on 18-Dec-2021
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CBP Proudly Announces Its Facial Recognition Program Has Successfully Nailed A COVID Scofflaw

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Customs and Border Protection continues to protect our borders against… stuff. Much like the TSA struggles to catch any terrorists (or, indeed, any items actual terrorists might use) but still issues press releases crowing about the agency's ability to identify and seize novelty items and the occasional gun someone decided not to check, the CBP is more than happy to point out how a system that relies on millions of facial images collected at ports of entry every so often stops someone from entering the country.As of the end of 2020, CBP's biometric systems installed all over the country had gathered 50 million facial images. This was all done in service of identifying fewer than 300 "imposters." CBP claimed this ratio was a sign of its effectiveness -- that being able to identify 292 imposters who were previously denied entry to the United States was acceptable ROI for millions of dollars of biometric collection/comparison equipment and new impositions on people who cross the borders hundreds of times a year for legitimate reasons.2021 is wrapping up and we haven't heard much about the CBP's imposter identification program. Until now. If the goal is national security, this release by the CBP isn't any more reassuring than the previous report of ~300 imposters caught at borders -- none of which appear to have been terrorists or members of dangerous criminal cartels. The former group appears to have been mostly composed of people who've already been rejected once at the border for whatever reason.This latter group of one was rejected for a more timely(?) reason: a lack of proper antibodies.

U.S. border officials are crediting facial-recognition technology with stopping an impostor from entering their country through the Pacific Highway border in South Surrey.According to a news release issued Friday (Dec. 3), officers using ‘Simplified Arrival’ – a touchless arrival process which compares facial biometrics on documents required for entry into the U.S. – identified a “facial mismatch” while processing a female bus passenger on Nov. 26.The woman admitted to using her sister’s U.S. passport and COVID-19 vaccination card, “because she had not been vaccinated,” the release states.
Truly amazing stuff. No doubt this will whip up the anti-vax crowd and cause them to decry this as fascism. This will happen while they ignore the years of fascist-adjacent border activity, including the wholesale disappearance of everyone's rights within 100 miles of the border and inland "border" checkpoints that subject people who aren't even crossing borders to the unfriendly advances of Customs officials.This underwhelming win for an expensive and intrusive biometric system is, of course, being touted as a justification for said system.
“The addition of facial biometric technology and the vigilance of our CBP officers prevented the entry of someone suspected of fraudulently using another individual’s passport and COVID-19 vaccination card to cross international borders,” Brian J. Humphrey, U.S. Customs and Border Protection’s Seattle director of field operations, said in the release.
Wow. I hope there's still some room on the chests of these fine heroes, given all they do for this nation. Who knows what sort of havoc an unvaccinated Canadian could have wreaked in the Seattle metro area? It's not that COVID isn't contagious or deadly, it's that this isn't how we expect systems that diminish our rights to be used. This isn't the tradeoff we never even had the chance to agree on.The most generous reading of the American public's acceptance of post-9/11 processes and procedures is that ever-expanding surveillance efforts and impositions on travelers would be focused on national security threats. But not much of it is. Lots of activity at ports of entry is focused on finding cash the government can seize. The rest of it appears to be petty harassment in search of a justification. Even if this "catch" is incidental to the CBP's more important work, the last thing the agency should do is announce it like it some sort of vindication of the federal government's unquenchable thirst for biometric data.

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posted at: 12:01am on 17-Dec-2021
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Malibu Media Ordered To Pay Wrongfully Accused 'Pirate' Even More Money After Failing To Abide By Court's Decision

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Regular readers here need only hear the name Malibu Media to get their eyes rolling. This copyright troll that emerged from pornography producer X-Art has made quite a name for itself by attempting to shake down hundreds of accused copyright infringers, often using all kinds of shady tactics. Expert witnesses that nobody is quite sure even exist, failing to serve defendants, attempts to quickly dismiss cases against those who are willing to fight back: it all paints the picture of a shady operation looking to use shady tactics in order to collect shady infringement settlements. All, mind you, in the name of law and order in the realm of copyright law.Except, as with most shady operations predicated on the law like this, the hypocrisy from Malibu Media is quite stunning. For example, Malibu Media accused defendant "W.M." of infringement in court, only to have the defendant file a counterclaim demanding any actual evidence the company had of their infringement. No evidence was produced, leading the court to decide in favor of "W.M." and to issue an order for Malibu Media to pay him/her nearly $50,000. In the least surprising news ever, Malibu Media didn't pay that amount as ordered.

In most cases an order like this would end things but, in this instance, things went from bad to worse. Malibu Media failed to pay up and on top of that, the company actively diverted funds that should have been used to pay these fees.To recoup the money, Mr. W.M. hired Joseph Stewart, an experienced collection attorney. They went as far as obtaining a order that required Malibu Media and its payment processor Epoch.com to restrain the subscription revenue from “X-Art.com” members.
You would think that would have been the end of it. But, no, Malibu Media continued its bad actions, this time trying to play a shell game with where its revenue was coming into and going out. Colette Pelissier, top executive at Malibu, failed to show up for court hearings without an excuse. As a result, Judge Thomas Durkin signed an order that would see Pelissier arrested if she failed to show up to the next hearing. While that forced her to show up, it was fairly clear she wasn't prepared for that hearing.
We haven’t witnessed the hearing ourselves but copyright attorney and YouTuber Leonard J. French, who is not involved in this case, told us that the proceeding was quite messy.Pelissier reportedly had a complete breakdown. She spoke quickly and panicky, while repeatedly interrupting the Judge, referencing issues that appeared to bear no relation to the case at hand.
The court was decidedly displeased with this performance.
“I deal with prisoners who are more appropriate, I have people who are mentally ill who can conduct themselves with more decency,” Judge Durkin said, before cutting off the call.
The result? Well, Judge Durkin basically doubled the amount of money Malibu Media owes "W.M.", increasing it to just over $100,000. Now, such a six-figure sum is certainly warranted for a wrongfully accused defendant such as "W.M.", but it remains to be seen if anyone can manage to actually collect this money. The payment processor has reportedly collected about half that much as restrained revenue from Malibu Media, leaving roughly half to go.As with all of these stories, you would think this really should be the bottom of the hole that Malibu has dug for itself, but the shady copyright troll always seems to want to keep digging.

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posted at: 12:01am on 17-Dec-2021
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Content Moderation Case Study: Nintendo Blocks Players From Discussing COVID, Other Subjects (2020)

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Summary: Nintendo has long striven to be the most family-friendly of game consoles. Its user base tends to skew younger and its attempts to ensure its offerings are welcoming and non-offensive have produced a long string of moderation decisions that have mostly, to this point, only affected game content. Many of these changes were made to make games less offensive to users outside of Nintendo’s native Japan. Nintendo’s most infamous content moderation involved a port of the fighting game Mortal Kombat. While other Sega (Nintendo’s main rival at that point) console owners were treated to the original red blood found in the arcades, Nintendo users had to make do with a gray colored “sweat” — a moderation move that greatly cemented Nintendo’s reputation as a console for kids. Nintendo still has final say on content that can be included in its self-produced products, leading to contributors finding their additions have been stripped out of games if Nintendo’s moderators feel they are possibly offensive. While Nintendo has backed off from demanding too many alterations from third-party game developers, it still wields a heavy hand when it comes to keeping its own titles clean and family-friendly.With the shift to online gaming, came new moderation challenges for Nintendo to address. Multiple players interacting in shared spaces controlled by the company produced some friction between what players wanted to do and what the company would allow. The first challenges arrived nearly a decade ago with the Wii, which featured online spaces where players could interact with each other using text or voice messages. This was all handled by moderators who apparently reviewed content three times before allowing it to arrive at its destination, something that could result in an “acceptable” thirty minute delay between the message’s sending and its arrival.Thirty minutes is no longer an acceptable delay, considering the instantaneous communications allowed by other consoles. And there are more players online than ever, thanks to popular titles like Animal Crossing, a game with social aspects that are a large part of its appeal. While it’s expected Nintendo would shut down offensive and sexual language, given its perception of the desire of its target market, the company’s desire to steer users clear of controversial subjects extended to a worldwide pandemic and the Black Lives Matter movement in the United States.Here’s what gaming site Polygon discovered after Nintendo issued a patch for Animal Crossing in September 2020:

According to Nintendo modder and tinkerer OatmealDomeVer. 10.2.0 expands the number of banned words on the platform, including terms such as KKK, slave, nazi, and ACAB. The ban list also includes terms such as coronavirus and COVID. Polygon tested these words out while making a new user on a Nintendo Switch lite and found that while they resulted in a warning message, the acronym BLM was allowed by the system. Most of these words seem to be a response to the current political moment in America.Patricia Hernandez, Polygon
As this report from the Electronic Frontier Foundation notes, Nintendo often steers clear of political issues, even going so far as to ban the use of any of its online games for “political advocacy,” which resulted in the Prime Minister of Japan having to cancel a planned Animal Crossing in-game campaign event.Company considerations:
  • How does limiting discussion of current/controversial events improve user experience? How does it adversely affect players seeking to interact?
  • How should companies respond to users who find creative ways to circumvent keyword blocking? 
  • How does a company decide which issues/terms should be blocked/muted when it comes to current events?
Issue considerations:
  • How should companies approach controversial issues that are of interest to some players, but may make other players uncomfortable? 
  • How can suppressing speech involving controversial topics adversely affect companies and their user bases?
  • How can Nintendo avoid being used by governments to control speech related to local controversies, given its willingness to preemptively moderate speech related to issues of great interest to its user base?
Resolution: Nintendo continues its blocking of these terms, apparently hoping to steer clear of controversial issues. While this may be at odds with what players expect to be able to discuss with their online friends, it remains Nintendo’s playground where it gets to set the rules.But, as the EFF discovered, moderation could be easily avoided by using variations that had yet to end up on Nintendo’s keyword blocklist.Originally posted to the Trust and Safety Foundation website.

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posted at: 12:00am on 16-Dec-2021
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UEFA DMCA Blitz Has Kept A Traditional TV Station Delisted In Google For Months

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There are two ways to go about using the DMCA as a content provider in order to keep copyright infringement at bay: the right and good way, or the bad and lazy way. The right and good way is to use DMCA takedown requests sparingly, to be very targeted in their use, and to do some minor legwork to ensure that the target is in fact an infringing actor. The wrong way is how most large companies go about it instead, which is to go on a DMCA blitz on multiple targets all at once, often timed around some big event or product release, and in a way that nearly always results in at least some collateral damage. These here Techdirt pages are littered with examples of the latter.And now we can add one more such example to the list, where EU football league UEFA went on a DMCA blitz targeting pirate IPTV providers, only to end up also delisting Mega.tv from Google, despite it being a very legit traditional television channel.

American free-to-air TV network Mega.tv has had its homepage stripped from Google due to a dubious takedown request. The apparent mistake is tied to an overbroad DMCA notice sent on behalf of the European football organization UEFA. The issue has gone unnoticed for more than a year and persists today.Mega.tv is a relatively small free-to-air TV station with headquarters in Miami and Puerto Rico. The company is owned by Spanish Broadcasting System (SBS) and is available in several U.S. states.
Why this free-to-air station was targeted is left open for speculation, but it's at least somewhat likely that it is because it has the word "mega" in its name and somebody thought that meant it was related to the much maligned cloud platform called Mega. But they're not related at all and there is no indication that the station has ever infringed UEFA's copyrights. Collateral damage, in other words, albeit collateral damage that has now existed for over a year. Trying to search the station's homepage on Google gets you nowhere, other than seeing that there is a result not showing due to a DMCA complaint.That complaint is erroneous, however.
The notice in question alleges that Mega TV is an illegal IPTV service that’s “broadcasting UEFA audio-visual content without permission.” While we can’t confirm or deny that the network ever broadcasted EUFA content, it’s certainly not a pirate IPTV service.This takedown request isn’t exactly new. It was sent to Google more than a year ago. This means that Mega.tv’s homepage has been unfindable in Google all this time.
And, hey, that kinda sucks, right? Because UEFA and its partners couldn't be bothered to actually look at who they were targeting and instead took some massive shotgun approach, at least one innocent bystander gets filled with DMCA buckshot.And you can bet there will be no negative consequences for UEFA for all of this. In which case actors like this are essentially incentivized to take this approach.

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posted at: 12:00am on 16-Dec-2021
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Banks, ISPs Increasingly Embrace 'Voice Print' Authentication Despite Growing Security Risk

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While it's certainly possible to sometimes do biometrics well, a long line of companies frequently... don't. Voice print authentication is particularly shaky, especially given the rise of inexpensive voice deepfake technology. But, much like the continued use of text-message two-factor authentication (which is increasingly shown to not be secure), it apparently doesn't matter to a long list of companies.Banks and telecom giants alike have started embracing voice authentication tech at significant scale despite the added threat to user privacy and security. And they're increasingly collecting user "voice print" data without any way to opt out:

"despite multiple high-profile cases of scammers successfully stealing money by impersonating people via deepfake audio, big banks and ISPs are rolling out voice-based authentication at scale. The worst offender that I could find is Chase. There is no opt in. There doesn't even appear to be a formal way to opt out! There is literally no way for me to call my bank without my voice being fingerprinted without my consent."
The U.S. has generally been extremely lax on privacy and security legislation and oversight, generally opting for baseline requirements that companies at least be transparent about their security and privacy practices, and provide users with working opt out tools. But time and time again neither are really adhered to. Eventually our lack of any meaningful privacy rules for the internet era will culminate in a privacy scandal that makes past scandals look like a grade school picnic. And with companies increasingly prioritizing convenience and simplicity over security and common sense, that day could arrive sooner than we think.The rush toward voice authentication tech is particularly problematic given the quick rise of automated deepfake systems and the growing trove of user voice data available online. With parades of online creators, and smart televisions and other gadgets hoovering up voice data (and frequently failing to secure or encrypt it), availability of this data is ballooning. As are examples where faking a user's voice has been used for significant thefts. What happens when voice print authentication is adopted at scale, and exploitation of that trend becomes automated by robocall scammers already running amok? Nothing good.Using voice authentication to secure your finances (or much of anything notable) is, at its base, already very much a hit or miss proposition:
If you figure voice deepfake tech will only get cheaper and better over time, you can also figure replacing passwords and pins with voice authentication isn't a great idea in a country already drowning in robocall scams. Yet we're apparently doing it anyway:
"Again, society must adjust to the following reality: It's become easy for anyone to spoof the voices of others who have public recordings of them talking (very common). Therefore, companies (especially banks) should not be using this as a @#%!ing way to log into accounts! You would think this is SIMPLE-enough for corporate America to understand, but alas, here we are."
At the very least informed users should have the ability to opt out of voice data collection, yet in many cases they can't even do that. It's yet another example of why the nation needs at least some kind of baseline privacy rules that at an extreme minimum mandates that both data collection and security options should be transparent, and users should always retain opt out control. Baseline privacy legislation should also include meaningful penalties and accountability for the very long line of companies that view consumer privacy and security as an annoying afterthought.Given this would cost a large number of politically powerful industries money we're not going to do any of that. Instead, we're going to continue to embrace the current paradigm: a few badly crafted state privacy proposals and a generalized apathy on the federal level. Surely that will work out well, right?

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posted at: 12:00am on 15-Dec-2021
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The Papas and the Pappas: Burger Joint Rebrands Over Trademark Dispute

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We're going to keep repeating this until it becomes common knowledge: trademark law is designed to keep the public from being confused as to the source of a good or service, not as some mechanism for businesses to lock up language in a competitive marketplace. In other words, if there is no risk of customer confusion, trademark laws very rarely come into play in terms of disputes or infringement.Which brings us to Papa's Burgers in Texas and its announcement that it will be changing its name and branding.

So, a company that has existed as Papa's Burgers for 8 years is changing its name due to a C&D notice. So what's going on here? Well, the company decided to finally get around to trademarking its name but was advised by its counsel that there was another large restaurant group that had a similar name. That company was Pappas Restaurants, which operates a wide swath of venues, such as Pappas Bros. Steakhouse, Pappas Seafood House, and, yes, Pappas Burger.Due to the that input from counsel, Papa's Burgers owner Robert Walker sent a letter to Pappas Restaurants explaining his respect for their business and his intention to trademark his business name. Kind of a nice thing to do. His reward for that was receiving the C&D notice.
Counsel advised Walker that he can fight the trademark since it's a one-letter difference and a different city, but that it could be very costly - upwards of $25,000 just to start the process.The second option is to rebrand. A difficult decision Walker said, because the restaurant has already received so many public accolades in the nearly 9 years it's been open.
Note that last bit: Papa's Burgers has been operating for 9 years. The C&D notice sent by Pappas Restaurants doesn't say that the company should not use the name in new restaurants; it insists it stops using its name entirely. Except surely Pappas Restaurants would have already heard about all of this and sent a C&D long ago if there was any reason to think there would be public confusion here. And, yet, the company only fired off a C&D once Walker informed them that his business exists and that he planned to file for a trademark. That sure seems to indicate that any worry about customer confusion is unwarranted, no?Unfortunately, that is now a moot point. Papa's Burgers is changing its name as a result of all of this. Because trademark bullying works.

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posted at: 12:00am on 15-Dec-2021
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EUIPO Study Indicates It's Likely That Piracy Traffic Has Decreased Significantly, Even During The Pandemic

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Back in April of 2020, which feels roughly like a damned lifetime ago, we discussed a much-publicized report that indicated explosive growth in traffic to pirate torrent and streaming sites for movies, music, television, and video games. Much hand-wringing ensued, which was largely silly. All kinds of media consumption traffic rose during the initial lockdown months of the COVID-19 pandemic and it only made sense that piracy traffic would follow suit, particularly when you consider the broader economic impact of the pandemic. This wasn't some new paradigm shift in the piracy landscape; it was literally one of the most predictable things that could have happened.But now, almost two years later, where are we at? Well, per a recent study by the EU Intellectual Property Office, piracy traffic hasn't just fallen, it's fallen sharply.

New research published by the European Union Intellectual Property Office shows that, despite the pandemic, piracy site visits continue to fall. This trend is visible for movies, TV shows, and music, with the latter showing the sharpest drop. Income level and inequality appear to be major piracy drivers, but there's a major caveat as well.
We'll get into that caveat more a bit later, but it's worth pointing out that all the data for this report comes from MUSO. MUSO is an anti-piracy outfit, albeit one that isn't afraid to embrace some new and interesting ideas. Still, as an organization that is certainly not incentivized to play down piracy numbers. And, yet, the numbers do indicate a significant trend downward.
The chart below shows that the piracy numbers roughly halved between 2017 and 2020. This trend is visible for all content categories and most pronounced for music, which dropped by more than 80% during this time period.These data also reveal that TV piracy is by far the most common. This could in part be due to the recurring nature of TV shows. At the end of 2020, roughly 70% of all pirate site visits were TV-related. The film and music categories are good for 20% and 10% respectively.
The COVID boom was either never a thing, or it was so short-lived that it basically isn't worth talking about. This tracks with other pandemic related effects on the nation, such as the stock market crash that then came roaring back almost immediately. Humans, as it turns out, are perfectly capable of wild swings of behavior and outlook when pressured by a historic event.But the overall downward trend over recent years is very easy to explain: streaming. As the public gets more and more comfortable with utilizing streaming services in order to get the content they want, services that are often well-priced and easy to use, the desire for piracy goes down. For $50 a month across several streaming services I can get nearly all the content I want? Fine, then no need to engage in risky or even non-risky pirate behavior.Now, about that caveat...
The study really only covers a part of the broader piracy landscape. The focus on web traffic means that apps, streaming devices, and IPTV services are not included either. Perhaps that’s where some mobile users are going?This caveat may also shed a different light on the piracy drop, as these untracked piracy channels have grown explosively in recent years. According to some, these streaming tools are the largest piracy threat at the moment.
And perhaps there is some truth to that, though it feels quite unlikely that IPTV services explain the global drop of piracy levels across the board. TV and movies are one thing, but IPTV doesn't factor into music or video game piracy in any serious way. But Spotify and subscription based gaming services certainly do.So if the trend is that piracy is on the significant downswing, you would think we'd see the IP industries ratchet down the rhetoric on the evils of piracy. Somehow, I cannot quite convince myself to hold my breath on that one.

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posted at: 12:00am on 14-Dec-2021
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Court Tells Cops Who Got A Man Wrongly Imprisoned For 25 Years That Of Course Framing People For Crimes Is A Rights Violation

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There's a constitutional right not to be framed by cops for a crime you didn't commit. This shouldn't even need to be argued in court once, much less twice. But "framed by cops" is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis' lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they're not going to be able to walk away from this one.The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there's a lot to take in here.

First, Dennis alleges that the detectives concealed information about other individuals, who had confessed their involvement with the murder or who knew who was involved, and that the detectives coerced/concealed certain other witnesses. Specifically, Dennis alleges that the detectives never followed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of her murder. Ms. Howard originally told the detectives that she never saw the assailants but later told her aunt and uncle that she recognized the assailants from Olney High School, a school that Dennis had never attended. Howard’s aunt and uncle informed the detectives about her statement; it was also corroborated by the victim’s aunt. This information, which was recorded in the detectives’ activity logs, was concealed from Dennis for ten years.In addition, Dennis alleges that several days after the murder, Montgomery County law enforcement advised the Philadelphia Police Department that an inmate in their County Prison spoke with a man who confessed his involvement in Williams’s murder. A signed statement from the inmate included details about all three men involved in the murder and identified the source of the information. However, defense trial counsel never received any materials relating to the investigation of these three individuals; the information was only revealed 10 years later during Post Conviction Relief Act (PCRA) discovery.Second, Dennis alleges that the detectives fabricated evidence to secure his conviction. Specifically, Dennis alleges that the detectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further alleges that Detective Jastrzembski falsely testified that the clothing was found at Dennis’s residence but later “disappeared” from police headquarters prior to trial...Third, Dennis alleges that the detectives concealed evidence that would have supported his alibi. Specifically, Dennis’s alibi that he was elsewhere at the time of the murder would have been corroborated by a witness’s time-stamped welfare receipt. When questioned by the detectives, the witness based her time estimates on the receipt’s military-style timestamp of 13:03 (1:03 PM), which she mistook to mean 3:03 PM. The detectives did not correct the witness when she misread the receipt’s military-style timestamp while they were interviewing her; instead, they took the only copy of the receipt and never shared it with Dennis or the prosecutors…Dennis also alleges that only four of the nine eyewitnesses identified by Philadelphia Police had selected him from the lineup; three of those four testified for the Commonwealth at Dennis’s trial. After learning this information, Dennis’s counsel requested a new lineup with all nine eyewitnesses. The new lineup never occurred.
The detectives argued that even if they were in the wrong, they were not unreasonably wrong and could not have possibly known from court precedent that hiding information from accused criminals and framing them for a murder was a violation of his rights.Wrong, says the Third Circuit. It's not even a close call. There's plenty of precedent and it dates back decades -- long before the detectives' actions in 1992.
[C]iting McDonough v. Smith, the detectives contend that a fabrication of evidence claim has been recognized under the Fourteenth Amendment only where the government officer involved in fabricating evidence was a prosecuting attorney. Not so. In Halsey v. Pfeiffer, we concluded that it was axiomatic that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Halsey involved an evidence fabrication claim under the Fourteenth Amendment brought against police officers. We emphasized that the Supreme Court decades ago had established that the Constitution forbids those tasked with upholding the law from knowingly using falsified evidence to secure a criminal conviction.[...][A] case that is directly on point is not required so long as the precedent placed the constitutional question beyond debate. Halsey did so, recognizing prior precedent that held the fabrication of evidence by law enforcement officers violates the Fourteenth Amendment and that such a right had been established since at least 1985.
The next argument by the detectives was also off by several decades.
[T]urning to Dennis’s deliberate deception claim, the detectives contend that this claim is based on the right not to be framed by law enforcement agents, which is too broadly worded and was not established until 1995, when the Supreme Court decided Kyles v. Whitley.The right not to be convicted on perjured testimony used by prosecutors at trial has been clearly established by the Supreme Court since at least 1935 in Mooney v. Holohan. Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Court extended this right by recognizing as a due process violation the conviction of a defendant through perjured testimony and the deliberate suppression of evidence favorable to the accused.
Even if this precedent did not exist, the court says the due process violations are so blindingly obvious that there's no plausible excuse for the detectives' actions.
We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.
That's what qualified immunity has done to the judicial system. The Supreme Court's alteration of the contours of the doctrine it created has made it more difficult for lower courts to address the rights violations, shifting focus to judicial precedent instead. Fortunately, there's plenty of it here. But more than that, it's good to see a court tell officers attempting to raise their qualified immunity shields that the stuff they did was so obviously wrong they'd still be denied immunity even if there wasn't any precedent to rely on. That needs to happen more often.

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posted at: 12:00am on 14-Dec-2021
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This Week In Techdirt History: December 5th - 11th

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Five Years AgoThis week in 2016, we got a good example of how "just metadata" could still be dangerous, the FBI was smacked down for using outdated boilerplate on a National Security Letter, and a bunch of online platforms made a terrible agreement to block "terrorist content". A shortsighted newspaper association was asking Trump to whittle down fair use, congress was beginning to consider a new round of terrible copyright reform, and Rep. Marsha Blackburn said ISPs have an "obligation" to block "fake news". We also took a look at all the terrible trade deals floating around, and asked if there's a better way to do them.Ten Years AgoThis week in 2011, we learned more about how much big media firms were donating to the sponsors of SOPA and PIPA, while the bills were leading to internal fights at various organizations: Kaspersky left the BSA over its initial support of SOPA, and the American Bar Association was warring with itself over its position. We wrote about other realms of collateral damage from the bills like people with disabilities and human rights groups, and about how the arguments from supporters made no sense. A more reasonable (though not perfect) alternative proposal was, as expected, totally hated by the SOPA brigade and continued trying desperately to buy "grassroots" support. And we were very much not shocked when two congressional staffers who helped write SOPA and PIPA became entertainment industry lobbyists.Fifteen Years AgoThis week in 2006, a judge ruled that it was legal for the FBI to spy on people using the microphones in their phones. Countries around the world began reacting to YouTube, with Japan's entertainment industry demanding an end to unauthorized uploads while Iran decided to just block the entire site outright. Tracfone was freaking out about the DMCA anti-circumvention exception for unlocking mobile phones even though it was hardly a big deal. Meanwhile, in the UK, an impressively balanced report on intellectual property sparked the expected backlash, with a group of 4,000 musicians signing a petition calling for "fair play" that didn't sound too fair — and then it turned out that the list of signatures included several from dead musicians.

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posted at: 12:00am on 12-Dec-2021
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PewDiePie Dives Into The Mark Fitzpatrick, Toei Animation Saga

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We had just been talking about how Mark Fitzpatrick, a YouTube personality who focuses on doing reviews and let's draws for anime properties, had been targeted by Toei Animation for the takedown of over a 150 of his videos over copyright claims. Toei is the animation house for several popular animes, including the Dragon Ball series. While Fitzpatrick's videos fall squarely in the category of fair use, as they are chiefly commentary and reviews that use snippets of the animes in question in order to illustrate points, because of the onerous way YouTube enforces such claims, his videos were taken down first and remain down at the time of this writing.Well, if Toei was hoping this would all fly under the radar, it most certainly is not. Fitzpatrick's own video complaining about how Toei is behaving itself has over 700k views. And now streaming icon Pewdiepie is inserting himself into all of this, squarely on on Fitzpatrick's side.

On December 9, PewDiePie uploaded a video reacting to Toei’s apparent mass copyright strike against Fitzpatrick, calling the studio a “big-shot company that couldn’t care less about some random anime YouTuber.”“Japan is so notoriously dumb when it comes to copyright,” he said. “Backwards thinking or just overall lacking in what most people agree is Fair Use and not. They just don’t care. They’re a big company. That’s it.”
Now, I'm not in love with Pewdiepie's phrasing in all of this, but he certainly is correct that the manner in which Japan has constructed its copyright laws is highly problematic. There is a reason that plenty of nations have built in fair use provisions into their copyright laws and they are for situations just like this. Nothing about the use in Fitzpatrick's videos in any way threatens the business of Toei Animation. There may certainly be some commentary in his videos that Toei doesn't like, but that's a different thing. Copyright laws in general weren't created in order to give content creators the ability to suppress commentary; they were supposed to be a method for protecting the business interests of creators. Instead, there are several carveouts in Japanese copyright law that were added specifically to grant more control over how content is used for the anime and manga industries.Pewdiepie is also no dummy on this stuff. It's his business, after all, and he knows enough about it to point to past examples of how badly this all works when it comes to properties coming out of Japan.
Kjellberg went on to compare Toei’s copyright claims to Nintendo’s failed creator program, which allowed creators to use game footage and music — provided they split their revenue.“I think it’s important that we call these things out, so that hopefully they can listen,” PewDiePie continued. “This, what happened to Mark, just really highlights a huge issue with YouTube.”
And he then turned his sights on YouTube in full, arguing that the manner in which the platform enforces copyright claims is extremely tilted against YouTube creators.
“Any day, your livelihood on YouTube could get removed, because some big company decided, out of the blue: ‘That, no. Stop that,'” he added.
To be fair to YouTube, as I stated in the previous post on Fitzpatrick's tribulations, this is not an easy problem to solve. But it is a problem and YouTube honestly doesn't seem to be doing much about it. If that continues, there's no reason why the struggles Twitch has had retaining its creative community couldn't happen to YouTube as well.

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posted at: 12:00am on 11-Dec-2021
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Texas Says Its Unconstitutional Content Moderation Law Should Still Go Into Effect While We Wait For Appeal; Judge: 'No, That's Not How This Works'

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Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas' silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!

A stay is also supported by the widely recognized principle that enjoining a state law inflictsirreparable harm on the state, and that the public's interest is aligned with the state's interest andharm. Plaintiffs, in contrast, will not be irreparably harmed if a stay is granted. This is evidenced by the fact that (1) their supportive members stated they either already comply with aspects of thelaw or could not explain how the law would be burdensome in practice; and (2) Plaintiffs' othermembers, filing as amici in opposition to the Preliminary Injunction, have demonstrated no harmwill occur by enforcement of H.B. 20. For all these reasons, as further set forth below, a temporarystay while the Fifth Circuit considers the merits of this Court's Preliminary Injunction iswarranted.
It is really incredible:
The Attorney General has also raised questions neverconsidered by the Fifth Circuit or the Supreme Court as to common carriage and the FirstAmendment. Correspondingly, the Attorney General has demonstrated a likelihood of success onthe merits regarding Plaintiffs' claims. While this Court may have rejected the Attorney General's arguments, it did so by relying on readily distinguishable First Amendment case law and givingdispositive weight to a novel fact: whether the entity screen[s] and sometimes moderate[s] orcurate[s] user generated content.Therefore, given the novel nature of Plaintiffs' claims and the substantial support for theAttorney General's arguments, the Court of Appeals should have an opportunity to consider theseissues before the injunction is implemented.
Basically, "even though we lost easily, we really made the better arguments, so therefore you should let the law go into effect." It's nonsense.Remember, the key reason that the judge blocked the law from going into effect was because it so obviously violates the 1st Amendment, so letting the law go into effect fundamentally would violate 1st Amendment rights. Texas' argument here that blocking the law from going into effect "inflicts irreparable harm on the state" is positively bizarre. "If we can't violate the 1st Amendment rights of websites, then we're irreparably harmed" is a dumb argument. The plaintiffs in the case, NetChoice and CCIA fired back with the proper "LOL, wut?" opposition brief, though most of that focused on Paxton wanting the other parts of the case to continue to move forward in the district court while the appeal is happening (and basically to get into the intrusive discovery process).The judge wasted little time in rejecting Paxton's nonsense:
The State largely rehashes the same arguments this Court rejected in its Order. The State'snew argumentthat the preliminary injunction is overbroadalso asserts, again, that HB 20 is notunconstitutional. (Id. at 13). However, the Court already found that Plaintiffs are likely to establishthat Sections 2 and 7 of HB 20 are unconstitutional and, as a result, fashioned a narrow, preliminaryinjunction. The Court is also not persuaded by the State's contention that preliminarily enjoining theenforcement of Section 2which contains disclosure requirementswas too broad a remedybecause one of Plaintiffs' members happens to already satisfy several disclosure requirements. (Id.at 13). Whether one of Plaintiffs' members makes a business decision to publish certain disclosures,even if a few of those disclosures align with Section 2's requirements, does not impact this Court'sdecision that the State cannot constitutionally enforce Section 2's many requirements imposed onsocial media platforms. Accordingly, the Court declines to stay its Order.
It also sides with NetChoice in staying the other parts of the case until after the appeal.
To preserve court resources and for judicial efficiency, whatever the posture of this casewhen it returns to this Court, the Court will exercise its discretion to stay this case and preserve itscurrent posture
In other words, no, Paxton, you're not likely to succeed, and if you do, we can take up the issue then...

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posted at: 12:00am on 11-Dec-2021
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EU, US Start To Realize Letting Elon Musk Dictate Global Space Rules Might Not Be The Brightest Idea

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As previously noted, Space X, Amazon, and others are pushing harder than ever into the low-orbit satellite broadband game. The industry, pockmarked by a long road of failures, involves firing thousands of smaller, cheaper, lower orbit satellite constellations into space to help supplement existing broadband services. The lower orbit means that LO satellite service will offer lower-latency broadband than traditional satellite offerings, which for 15 years or so have been widely maligned as expensive, slow, and "laggy," with annoying monthly caps.And while these services should absolutely help bring some additional options to rural Americans, nautical ventures, and those out of range of traditional service, folks shouldn't get their hopes up in terms of broader disruption of the uncompetitive U.S. telecom market. The physics involved in satellite transmission means there will always be limited capacity and odd throttling and network management restrictions, meaning it won't really make much headway in highly monopolized major metro areas. In short, the tech is absolutely a positive advancement, but it's not going to be the game changer many think.Enter the other major problem: the gold rush into the low orbit satellite space without much in the way of regulatory oversight has resulted in an explosion of space traffic and debris that's already causing genuine harm. The tens of thousands of additional low orbit satellites being flung into orbit without much of an over-arching plan not only make space navigation immeasurably more complicated and dangerous, the light pollution created is having clear and profound harms on astronomy and other research. Harms researchers say can't be mitigated with technology.While regulators in the U.S. have taken a few steps to mitigate space debris, most experts say it's not enough. And regulators have done even less to manage the low-orbit gold rush's impact on science. Generally, the modus operandi has been to kiss the ass of companies like Amazon and Space X in this space, letting them dictate the cadence and rules of deployment. The same approach is occurring in the EU, and it's starting to raise some hackles:

The head of the European Space Agency has urged the continent's leaders to stop facilitating Elon Musk's ambition to dominate the new space economy, warning that the lack of coordinated action meant the US billionaire was making the rules himself. Josef Aschbacher, the new director-general of ESA, said that Europe's readiness to help the rapid expansion of Musk's Starlink satellite Internet service risked hindering the region's own companies from realizing the potential of commercial space.
Again it's effectively global regulatory capture, where wealth dictates who gets to make the rules. Eventually that won't just be bad for competition, but science. That you need an intelligent, over-arching plan to manage this massive explosion in debris and space traffic that considers more than just wealth generation seems like a no brainer. Yet you're only just now starting to see some folks in policy and government start to mention that letting Elon (COVID is no big deal) Musk dictate the entire planet's space policy and regulatory structure might not be the smartest idea:
"Aschbacher said Musk's Starlink was already so big that it was difficult for regulators or rivals to catch up. You have one person owning half of the active satellites in the world. That's quite amazing. De facto, he is making the rules. The rest of the world including Europe...is just not responding quick enough."Aschbacher's concerns were echoed by Franz Fayot, Luxembourg's economy minister, who said new rules were needed to ensure the safe use of space.You have people like Elon Musk, just launching constellations and satellites and throwing Teslas up into orbit. We need to set common rules. Colonization, or just doing things in a completely deregulated space, is a concern, he said on the sidelines of the New Space conference in Luxembourg.
It's not too surprising that captured regulators in the U.S., UK, and EU are going to bend over backwards to please the planet's wealthiest men. Especially given that Space X has truly been so innovative in the space. The problem is even Musk has acknowledged that low-orbit efforts like Starlink may not be financially viable over the long haul. And that was before recently leaked Musk emails showing how delays in Raptor engine production could keep Starlink from meeting future deployment goals or making at real money at scale.Yet U.S. regulators keep throwing millions of dollars at Musk (a guy who professes to be opposed to government aid), and generally has let Bezos and Musk dictate the cadence and scope of anything vaguely resembling oversight. Despite no solid evidence that Musk's low-orbit Starlink venture is even going to be financially viable or operational two to three years from now. And with nary a peep about the low-orbit light pollution researchers have complained about for three years straight. Surely none of this ends badly, right?

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posted at: 12:00am on 10-Dec-2021
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An Unplanned, Ad-Hoc Collaboration Reveals The On-The-Ground Truth About China's Internment Camps For Uyghurs

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The US, UK and Australia have all announced a diplomatic boycott of the Beijing Winter Olympics. The reason given for the move is because of human rights abuses in China, particularly in the turkic-speaking region of Xinjiang. Techdirt has been writing about the Chinese authorities' use of technology to censor and carry out surveillance on the local Uyghur population, among others, for some years. One of the most controversial aspects of China's policy in the region is the use of huge detention camps. According to the authorities there, these camps are for educational and vocational training. Human rights organizations call them internment camps; some governments speak of "genocide" against the Uyghurs.Given the highly sensitive nature of the topic, it is naturally hard to ascertain what is really happening in these camps. One solution is to use satellite imagery to peek inside China's tightly-controlled borders. Perhaps the best-researched investigation using this technique appeared on BuzzFeed News last year. The main article, and the four follow-ups, revealed the hitherto unknown scale of the internment camps, but were necessarily limited by their use of an extreme physical viewpoint -- the view from space.A Chinese travel blogger going by the name of Guanguan decided to investigate on the ground some of the camps located by BuzzFeed News, by driving to them. The remarkable 20-minute video summary of his travels provides unique views of the camps, which complement the satellite imagery used by BuzzFeed News. Specifically, they show in some detail side-views of the camps. This allows Guanguan to make reasonable guesses about which camps are indeed for education and training of some kind, and which ones are likely to be high-security internment camps.The video is well-worth watching in its entirely, since it provides probably our best glimpse yet of the reality of China's internment camps for Uyghurs and others (wisely, Guanguan seems to be out of China now). In fact, the quality of the video images is such that IPVM, which specializes in covering the world of video surveillance, was able to recognize several of the security cameras used at the internment camps. There are a few cameras from the Chinese company Dahua Technology, but the majority identified come from Hikvision. This, Techdirt readers will recall, is the company whose director of cybersecurity and privacy said that IoT devices with backdoors "can't be used to spy on companies, individuals, or nations." IPVM reported that Hikvision "declined to comment" on these latest findings. Its article noted that the visual evidence of Hikvision cameras being used in multiple internment camps, the result of an interesting unplanned, ad-hoc collaboration between Western journalists and a Chinese video blogger, is likely to make things even worse for a company already blacklisted by the US government.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 10-Dec-2021
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Content Moderation Case Study: Twitter Briefly Restricts Account Of Writer Reporting From The West Bank (2021)

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Summary: In early May 2021, writer and researcher Mariam Barghouti was reporting from the West Bank on escalating conflicts between Israeli forces and Palestinian protestors, and making frequent social media posts about her experiences and the events she witnessed. Amidst a series of tweets from the scene of a protest, shortly after one in which she stated “I feel like I’m in a war zone,” Barghouti’s account was temporarily restricted by Twitter. She was unable to post new tweets, and her bio and several of her recent tweets were replaced with a notice stating that the account was “temporarily unavailable because it violates the Twitter Media Policy”.

The incident was highlighted by other writers, some of whom noted that the nature of the restriction seemed unusual, and the incident quickly gained widespread attention. Fellow writer and researcher Joey Ayoub tweeted that Barghouti had told him the restriction would last for 12 hours according to Twitter, and expressed concern for her safety without access to a primary communication channel in a dangerous situation.The restriction was lifted roughly an hour later. Twitter told Barghouti (and later re-stated to VICE’s Motherboard) that the enforcement action was a “mistake” and that there was “no violation” of the social media platform’s policies. Motherboard also asked Twitter to clarify which specific policies were initially believed to have been violated, but says the company “repeatedly refused”.Company Considerations:
  • In cases where enforcement actions are taken involving sensitive news reporting content, how can the reasons for enforcement be better communicated to both the public and the reporters themselves?
  • How can the platform identify cases like these and apply additional scrutiny to prevent erroneous enforcement actions?
  • What alternatives to account suspensions and the removal of content could be employed to reduce the impact of errors?
  • How can enforcement actions be applied with consideration for journalists’ safety in situations involving the live reporting of dangerous events?
Issue Considerations:
  • With so much important news content, especially live reporting, flowing through social media platforms, what can be done to prevent policy enforcement (erroneous or otherwise) from unduly impacting the flow of vital information?
  • Since high-profile enforcement and reversal decisions by platforms are often influenced by widespread public attention and pressure, how can less prominent reporters and other content creators protect themselves?
Resolution: Though the account restriction was quickly reversed by Twitter, many observers did not accept the company’s explanation that it was an error, instead saying the incident was part of a broader pattern of social media platforms censoring Palestinians. Barghouti said:
"I think if I was not someone with visibility on social media, that this would not have garnered the attention it did. The issue isn’t the suspension of my account, rather the consideration that Palestinian accounts have been censored generally but especially these past few weeks as we try to document Israeli aggressions on the ground."


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posted at: 12:00am on 09-Dec-2021
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Controversial Facial Recognition Company Calls Out Clearview, Demands It Ditch Its Database Of 10 Billion Scraped Images

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Clearview has burned its bridges inside the facial recognition tech industry. Despite it being largely morally malleable, the industry as a whole appears to have cut ties with CEO Hoan Ton-That's startup, which relies on more than 10 billion images scraped from the web to generate a database for its customers to match faces with.The company played it fast and loose upon rollout, handing it out to whoever seemed interested, inviting them to run searches against photos of friends and family members. The "give it a spin" invitations were handed out to government agencies as well, inviting cops to play image roulette with Clearview's ever-expanding database.To date, the efficacy of Clearview's AI remains untested. Clearview did finally volunteer to have the National Institute of Science and Technology (NIST) examine its product for accuracy but only allowed it to run a one-to-one test -- the kind that would, for instance, allow a phone user to unlock their phone via facial recognition.This is not the product Clearview sells. Clearview sells one-to-many matching, relying on images and other personal info scraped from the internet. This practice has alienated the internet. It has also gotten Clearview kicked out of two countries and served with multiple lawsuits. Consequently, other facial recognition tech companies are cursing Clearview both over and under their breath as the company somehow manages to remain viable in the face of months of negative press coverage.Persona non grata status apparently applies to even other controversial facial recognition tech companies. AnyVision spent some time in the media spotlight for being used by the Israeli military to surveill Palestinians. It managed to take down Microsoft with it (albeit temporarily), exposing the tech giant's pinky-swear-rejection of enabling abusive surveillance to be the lip service it was. AnyVision doubled down on its first mistake(s) by threatening to sue news agencies that reported on this factual development.AnyVision resurfaced a couple of years later as the company behind pervasive surveillance systems deployed by Texas public schools. AnyVision appeared to be good at what it did. It matched faces per school hot lists and let administrators know any time those faces were detected. A little too good, perhaps. The system racked up 164,000 "hits" during its seven-day test run, returning as many as 1,100 matches for a single student.AnyVision is back. Sort of. It has rebranded as Oosto, divested itself of some of its more problematic deployments, and is now taking shots at Clearview.Back in September, it argued that facial recognition companies selling to government agencies should offer customers a blank database -- one the end users could fill with mugshots and persons of interest. This was a clear shot across Clearview's bow. Clearview's main selling point is its scraped database of 10 billion images. AnyVision also forwarded this suggestion to a number of government bodies, including the UK's Surveillance Commissioner and the NIST.It's always good to be wary of private companies pleading for the government to regulate them more. It often means incumbents are looking for better ways to stave off competition by helping enact rigorous guidelines that upstarts can't afford to implement. And AnyVision's suggested "fixes" for facial recognition tech obviously aims to exclude Clearview from the government market in multiple countries, making it that much easier for the rebranded company to find customers in need of controversial tech that at least won't be as controversial as Clearview.The war of words continues, albeit behind a paywall:

Oosto (formerly Anyvision) has called out Clearview AI, stating "that biometrics should be deployed with empty databases" in a recent release, referring to the US company's practice of scraping billions of photos from social media to use in its database.
Clearview has offered a rebuttal, but until this one is scraped from its host, we won't know exactly how it defended itself. But it seems clear even from this very truncated exchange of ideas that AnyVision believes Clearview is bad and Clearview believes it is good… making it a minority of one. But one thing is clear: if Clearview gets out of the scraping business it's less likely to make enemies of governments, private citizens, and its competitors in the market. But if Clearview hasn't changed its practices following a year of caustic press coverage, it's unlikely to do so just because a competitor is waving its revamped Gadsden flag in front of any regulatory agency that will listen to it.

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posted at: 12:00am on 09-Dec-2021
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New Jersey Cop Facing Charges After Hitting A Man With His Car And Driving His Body To His Mom's House

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There's something different about being a cop. The training, the atmosphere, the culture… all of it leads to officers handling crime differently than regular people. Even when they're the ones committing it.A normal person doesn't do the things Newark police officer Luis Santiago did. While driving on the Garden State Parkway, Santiago struck and killed 29-year-old Damian Dymka. This is what Officer Santiago (who was off-duty and in his own vehicle) -- with all his training, expertise, and knowledge of applicable laws -- did next:

After striking Dymka, who was a nurse, neither Santiago or his passenger, Albert Guzman, 25, of Newark, called 911 or tried to render aid.“(The suspects) returned to the scene multiple times before Santiago loaded the victim into the Honda and removed him from the scene,” [Essex County Prosecutor Theodore] Stephens said. “Santiago then took the body to his home in Bloomfield where he, his mother and Guzman allegedly discussed what to do with the body.”Eventually, Santiago drove Dymka’s body back to the scene of the crash, Stephens said.
It took another cop to finally end this dark and bleak farce.
Santiago’s father, who is a lieutenant in the Newark Police Department, called 911 and reported that his son was in an accident, Stephens said.
State troopers responded to the scene of at least one crime and came across Officer Santiago and his passenger. They also came across Dymka's dead body, which was lying in the back of Santiago's Honda.More than three weeks after this happened, Officer Santiago is facing a long list [PDF] of criminal charges.
In addition to vehicular homicide, Santiago was charged with leaving the scene of crash resulting in death, endangering an injured victim, desecrating/moving human remains, hindering one's own apprehension, conspiracy to hinder prosecution, tampering with physical evidence, obstructing the administration of law, and two counts of official misconduct.
Santiago's co-conspirator/passenger (Albert Guzman) is facing many of the same charges. The officer's mother -- Annette Santiago -- is facing the same charges as Guzman, given her alleged assistance in attempting to cover up Dymka's killing.It's all very surreal and horrifying. Some drivers might panic when they hit a pedestrian. Very few of them will leave and return to the scene several times before driving the victim's now-dead body out to their parents' house to discuss what to do about it.Maybe it's a law enforcement thing. This incident is somewhat similar to the bizarre actions of South Dakota attorney general Jason Ravnsborg after he struck and killed a pedestrian. While Ravnsborg did call 911 within minutes of the accident, he claimed he had no idea what he had hit. He returned to the accident scene the next day and allegedly "discovered" the body of the man he had struck and killed, 55-year-old Joseph Boever. Investigators found the victim's broken glasses inside Ravnsborg's vehicle, casting doubt on his claim that he didn't know what he had hit until the next day. Investigators also pointed out Boever had been carrying a flashlight, which Ravnsborg denied seeing. The flashlight was near Boever's body and still on when investigators arrived at the scene the following morning.These aren't normal reactions. These are the actions of people who think they have a better chance than most to escape any culpability for their actions. Most people would not compound criminal charges after striking a pedestrian. But Officer Santiago did. And, worse, he was surrounded by enablers unwilling to deter him from turning a pedestrian accident into something far worse than a hit-and-run.But equally as surreal are the statements released by the State Police, who had encountered this bizarre scene and found a driver with a dead body in his car. While it's understandable that public statements wouldn't include any accusations of wrongdoing while an investigation was underway, the State Police withheld any information on the driver, giving residents the impression this was a normal accident involving just some guy... and that it really might be the fault of the person who was killed.
State police say a man from Garfield was killed after being struck by a car while walking on the Garden State Parkway.The accident happened Monday morning near Exit 151.State police is unsure why the pedestrian was walking on the highway.His identification is pending family verification. The driver involved was not injured.
Just the facts. I mean, it's all factual but it leaves out all the interesting facts, like the body in the back of the car, or the driver being a public servant. Three weeks later, the truth is out. And chances are that if this had involved a regular person rather than a cop, a few of the more unusual details (like the body in the car) would have been added to initial press statements.Prosecutors won't have to do much to prove intent. Someone who isn't trying to evade responsibility for striking a pedestrian with their car simply doesn't do the things alleged here. And someone who's a cop should definitely never do these things because they're supposed to be holding themselves to a higher standard, even when they're off-duty. It looks like Officer Santiago rolled the dice on being a cop, possibly assuming that would be enough to allow him to escape accountability. That gamble failed to pay off and now Officer Santiago is going to have to face the consequences of his completely inexplicable actions.

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posted at: 12:00am on 08-Dec-2021
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Space X Engine Production Woes Could Screw Up Musk's Starlink Broadband Play

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We'd already noted how Elon Musk's Starlink isn't going to be the broadband disruption play many people had imagined. The service lacks the capacity to really provide broadband to more than 500,000 to 800,000 users during its first few years in operation (for context, somewhere between 20 and 40 million Americans lack access to broadband, and another 83 million live under a broadband monopoly). With a $100 monthly cost and a $500 first month equipment fee, it's also not doing any favors for the millions of Americans who lack access to affordable broadband.Eventually, with a fully upgraded fleet of 42,000 low orbit satellites years from now, Wall Street analysts estimate Starlink could potentially reach upwards of 6 million users. But again that's an optimistic high end guess, and it requires that everything go swimmingly the next few years.Everything is not going swimmingly. Chip shortages initially delayed Starlink's exit out of beta. And now a new leaked email suggests that Musk is warning about a potential bankruptcy for Space X if the company can't sort out production of the company's Raptor engine:

"Unfortunately, the Raptor production crisis is much worse than it had seemed a few weeks ago. As we have dug into the issues following the exiting of prior senior management, they have unfortunately turned out to be far more severe than was reported. There is no way to sugarcoat this...What it comes down to, is that we face a genuine risk of bankruptcy if we can't achieve a Starship flight rate of at least once every two weeks next year."
Will Heltsley, former SpaceX senior vice president of propulsion, recently left Space X due to a lack of progress on the project. In the email, Musk makes it clear that if things don't improve, Starlink could also be in deep trouble:
"The consequences for SpaceX if we can not get enough reliable Raptors made is that we then can't fly Starship, which means we then can't fly Starlink Satellite V2 (Falcon has neither the volume nor the mass to orbit needed for satellite V2). Satellite V1, by itself, is financially weak, while V2 is strong."
One problem, of course, is that Starlink is poised to receive millions in FCC subsidies to bolster a service that may not be financially viable several years from now. The Trump FCC already faced a scandal after it announced it would be doling out nearly a billion dollars to the planet's richest man (who professes a performative disdain for government subsidies) to deliver broadband to some traffic medians and parking lots. The Biden administration is scaling back the scope of the hand out after backlash, but Musk's Starlink is still poised to receive tens if not hundreds of millions of dollars.Those subsidies are dependent on Starlink meeting certain projected deployment goals Musk's newly leaked email suggests they won't be able to actually meet if things don't turn around quickly:
So again, the question then becomes: why is the FCC continuing to dole out millions in subsidies for a service that may not even exist in a few years? Especially when that money can be used to help fund future-proof and already proven fiber deployments across countless communities? Starlink does have the potential to provide some help to shore up U.S. broadband access, but even before these latest problems its full potential reach was limited. And the world's richest man, who routinely professes a disdain for subsidies and "freeloading," has made it abundantly clear he doesn't want or need government financial help.

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posted at: 12:00am on 08-Dec-2021
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Public Fallout Over Take-Two Playing IP Troll Begins

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Take-Two Interactive continues to find itself in the news for all the wrong reasons. The game publisher and parent company of Rockstar Games, the studio behind the Grand Theft Auto franchise, had a reputation built for itself for making great AAA video game titles. More recently, its reputation centers more on its aggressive actions on all things intellectual property. The company has gone after its own modding community, seeing it as a threat to its release of a shitty anthology of past GTA games. The company has also found itself going after companies in totally unrelated industries over the silliest of trademark concerns. And, most recently, there was speculation that there was a threatened opposition to the trademark application filed by Hazelight Studios for its indie hit game It Takes Two, as though anyone were going to take that common phrase and confuse it with the much larger game publisher.That was left to speculation because Hazelight abandoned the application without explanation, though now we find that it was at least partially done due to the threat from Take-Two.

Hazelight confirmed the news to Eurogamer today, after it was spotted that it had abandoned its efforts to trademark It Takes Two in late March. The team did not dispute that the abandonment came as a result of Take-Two's actions, but didn't comment on whether or not this affected sales or a possible sequel.
Which sucks because, again, there's no real public confusion to be had here and therefore no trademark concerns. And many in the public saw that non-response as to whether the dispute is preventing a sequel or hurt sales as confirmation that it likely did both.And many in the public are not happy about that.
Take-Two Interactive is back in the news for a trademark dispute and fans are fuming about it. For the past few months, Take-Two Interactive has been the talk of the town for trying to take down the modders community. But now, the parent company of the Rockstar Games is issuing trademark claims even more liberally. They’re targeting anyone who uses words or logos that are similar to any property of Take-Two Interactive. This news has shaken the entire gaming community and fans are absolutely not happy about it.
That Essentially Sports post goes on to list a bunch of Twitter responses to the news, all of which are quite critical of Take-Two. And, sure, it's Twitter, where you can find people complaining angrily about every last silly thing, but the comments themselves are probably not the type of public reception that Take-Two would want. Some examples include:
  • Take-Two are truly a very miserable company for going after Hazelight Games over them using a name “It Takes Two” for a bloody game. Get a grip for goodness sake. I swear your legal tactics are way over the top. Not even Nintendo pulls this shit off.
  • Take-Two is almost impressively evil. Are they doing their best to become the most morally bankrupt incompetent entity in order to give Rockstar inspiration for a potential villian in GTA 6?
  • ''it takes two'' is literally a song by Marvin Gaye and Kim Weston lol, they should sue Take Two for using their name instead
  • Wooow, that's actually pathetic. A new studio doing new things, and you got a multi billion dollar company being an actual bitch.
There are plenty more. Whatever Take-Two thinks they're getting out of this type of aggressive action campaign, I sure hope it factored in the downside of a public backlash, however big or small it may be. Because people don't like to support a company they view as a bully, generally speaking. And, yes, Nintendo still has its fans, but it also takes regular PR hits for its bullying.Is that really where Take-Two wants to go?

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posted at: 12:00am on 07-Dec-2021
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Devin Nunes Retires From Congress To Spend More Time Banning Satirical Cows From Trump's New Social Network

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In a bit of a Monday afternoon surprise, Rep. Devin Nunes has announced that he's retiring from Congress this month to become the CEO of Trump's new media company, Trump Media & Technology Group -- a company which apparently now has tons of money in the bank (even if from sketchy sources) but also is facing a newly revealed SEC investigation that might require someone who actually understands this stuff, rather than a very thin-skinned politician who sues people who criticize him.Note to Devin: you can't sue the SEC for defamation.There's all sorts of speculation about why Nunes would do this now. He's actually a pretty powerful Congressional representative, and in line to be in charge of some very powerful committees if, as is widely expected, the Republicans retake control over the House next year. But, he might also see the writing on the wall. Earlier in his career he was winning elections by a pretty wide margin, but the last two elections have actually been pretty tight. And, with California going through its redistricting process, he may have realized there was a high likelihood he'd lose next time around. Also, we know that watchdog groups have asked for an investigation into some of Nunes' activities.And, then, of course, there are all the many, many frivolous lawsuits he's filed over the last few years, with the first one remaining the most notable and the most ridiculous: suing a satirical cow that made fun of Devin Nunes online. The fact that he'd sue a satirist for making fun of him does not suggest someone who believes very strongly in free speech.So it should be extra interesting to see just how Devin Nunes handles content moderation questions for Truth Social now that he's in charge. Will he allow @DevinCow to have an account there? Or will he prove himself to be a hypocrite -- complaining about "censorship" on other sites, but actively engaging in the same (or more selective and biased) moderation on his own site? The press release from TMTG with quotes from Nunes reads as quite laughable when you realize he's suing satirical accounts on Twitter that made fun of him:

Congressman Devin Nunes added, The time has come to reopen the Internet and allow for the free flow of ideas and expression without censorship. The United States of America made the dream of the Internet a reality and it will be an American company that restores the dream. I'm humbled and honored President Trump has asked me to lead the mission and the world class team that will deliver on this promise.
For someone who is literally suing a bunch of reporters and critics, the claim of allowing for "the free flow of ideas and expression without censorship" doesn't just ring hollow, it rings of being a total hypocrite.Either way, as we've seen with every wannabe Trumpist social media site promising to "bring back" free speech, it doesn't take long for them to realize that content moderation is not about "censorship," it is simply necessary to run a modern website.How long will it take Nunes to recognize this simple fact? And will it happen before or after Trump fires him and stabs him in the back?

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posted at: 12:00am on 07-Dec-2021
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This Week In Techdirt History: November 28th - December 4th

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Five Years AgoThis week in 2016, Trump's telecom adviser was saying he wanted to dismantle the FCC because broadband monopolies aren't real — while Trump was appointing a third anti-net neutrality advisor to his team, Wall Street was dreaming of megamergers under his administration, and AT&T was showing everyone what the death of net neutrality would look like. Meanwhile, folks were lining up to seek action from Obama in his final days, with congressional staffers who reined in 1970s surveillance calling on him to pardon Ed Snowden, Dianne Feinstein asking him to declassify the CIA torture report, and the Senate Intelligence Committee seeking the declassification of evidence of Russian election interference.Ten Years AgoThis week in 2011, the SOPA fight continued. The mainstream press started to step up in opposition, with the NY Times, LA Times and Wall Street Journal all publishing pieces against the bill. Another DNS provider came out against it, as did educators who were worried about its impact on education. On the other side, an ex-RIAA boss was ignoring all criticism and claiming complaints are just attempts to justify stealing, the MPAA was offering false concessions, NBC Universal was threatening partners to get their support, and a highly questionable "consumer" group released an extremely misleading report claiming the public liked SOPA. Meanwhile, at least one court was acting like it was already law.Fifteen Years AgoThis week in 2006, the explosion of online video was leading to all sorts of misplaced blame for various issues (including lock picking apparently) while Disney was complaining that notice-and-takedown was too burdensome and Google was trying to pay off big entertainment companies to leave YouTube alone. Legal questions around embedding infringing content were heating up as well. Meanwhile, the RIAA finally succeeded in getting the US to pressure Russia into shutting down Allofmp3, the UK decided against extending copyright terms, and an appeals court held up yet another ruling that states can't ban video games.

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posted at: 12:00am on 05-Dec-2021
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If MLB Thought Its Website Shananigans Would Intimidate MLB Players, That Plan Has Backfired

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We had just discussed some actions Major League Baseball has taken on its MLB.com website which is either fallout from the labor lockout currently going on or MLB playing leverage games with players, depending on your perspective. Essentially, MLB scrubbed most of its website, particularly on the home and "news" pages, of references to any current players. Instead, those pages are full of stories about retired players, candidates for the Hall of Fame, and that sort of thing. In the tabs for the current rosters, the site still has all of the names of players listed, but has replaced each and every player headshot with a stock image of a silhouette. MLB says it was doing this to ensure that no player "likenesses or images" are considered in use for commerce or advertising... but that doesn't make much sense. The names are still there and this specific section is a factual representation of current team rosters.Instead, this appears to be a small part of a strong-arming tactic, in which MLB is flexing its ability to scrub its and individual team sites of information and, in this case, pictures of players. But if MLB thought that it was going to cause the players any real pain by removing those headshots from the site, well, many players went ahead and proved on Twitter that, well, not so much.

A bunch of players, including [Noah] Syndergaard, joined in on the fun by using their new headshot as a Twitter avatar.
It's way more widespread than that. Players all over Twitter and elsewhere took to replacing their own social media avatars with the silhouette "headshot". It became very clear that the players were simply poking MLB in the eye, despite the league trying to punish players over these labor negotiations.Which is yet another PR hit to the league. It's worth keeping in mind that this is not a player strike; it is a owners lockout. That becomes very important in the wake of the last labor stoppage MLB had, which was the disastrous players strike in 1994. Because that was a player strike, the public very much blamed the players for the loss of an MLB season. That's not the case here, where the owners are crying poor to the players union while also spending millions and millions of dollars to gobble up free agents just before the previous CBA expired.With labor issues like this in professional sports, optics is everything. MLB only recovered from the last stoppage thanks to a steroid-driven homerun race between Sammy Sosa and Mark McGuire, among others. You can damn well bet that the league doesn't want anything remotely like that to happen again, which means it can't let the public's anger get out of control.And a few days in, having the players publicly mocking MLB's tactics on a platform designed to engage directly with the public and fans is not a good start if the league expects to have any of the sentiment out there falling in its favor.

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posted at: 12:00am on 05-Dec-2021
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Protecting Judges Is Important, But They Don't Get To Throw Out The 1st Amendment For Themselves

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It's been said that any time a bill in a legislature is named after someone who died, you know there's going to be problems with the bill. That's because most of those bills are responses to truly horrific or tragic circumstances, but then our natural inclination is to go too far in diminishing the rights of the public in response to a single horrific scenario. This is, unfortunately, the case with the Daniel Anderl Judicial Security and Privacy Act of 2021. The events that precipitated the bill are, undeniably, awful and tragic. In the summer of 2020 an obviously mentally unwell lawyer, who had represented a client before US District Judge Esther Salas, went to her home, dressed as a FedEx delivery person, and shot and killed Judge Salas's son, Daniel Anderl (as well as shooting and injuring Salas' husband, Mark Anderl). The shooter then took his own life.Obviously, everything about that story is horrific, and there are all sorts of things that it should lead us to think about regarding policies that protect human life and how we deal with things like mental health. But, rather than taking a bigger look at things, Congress set out to try to create a special class for protection: federal judges. And, yes, there are reasons to make sure that federal judges are safe, and it's perfectly reasonable to support the underlying goals of such a bill. But, this bill goes too far. The underlying setup in the bill is that it wants to hide personal information about judges at the request of those judges -- who are labeled (oddly) as "at risk individuals" in the law.The law then bans "other businesses" from posting any information on an "at risk individual" (i.e., a judge) if that individual sends a request to take down the information:

No person, business, or association shall publicly post or publicly display on the internet personally identifiable information of an at-risk individual or immediate family if the at-risk individual has made a written request of that person, business, or association to not disclose the personally identifiable information of the at-risk individual or immediate family.
Again, the thinking here makes some amount of sense. A judge, who may reasonably fear that they are at risk from, perhaps, an unhappy party before them, wants to make sure that their information is not available. But there are a few problems with this. The list of "personally identifiable information" in the bill includes more than just home addresses. It includes things like "full date of birth." In other words, merely naming the birth date of a federal judge online can be barred if that judge decides he or she does not want that information online.That's pretty clearly unconstitutional. I mean, we kind of already went through this in California, where a law was passed, ostensibly to fight "ageism" in Hollywood, that would ban sites like IMDb from posting the birthdate of actors. But the courts rightly tossed that out as unconstitutional.This is basically the same thing. But because it deals with federal judges, not Hollywood actors, and is in response to a horrific murder, not an aging actor feeling snubbed, it raises questions about whether or not judges themselves (who are the specific beneficiaries of this law) will admit that it is equally unconstitutional.The Free Law Project -- one of the most useful resources online for those following legal disputes -- is raising the alarm about this bill, noting that they also wish to help keep judges safe (we all do), but highlighting that this creates significant problems for a site like the Free Law Project.
I had spoken to some folks in DC about a month ago concerning this bill, and more or less heard that it was political suicide to oppose the bill. No one wants to look like they're opposed to protecting federal judges -- especially after the tragic events of last summer. And, it's completely understandable that Judge Salas is directly supporting the law. I cannot fault her for this, but it's also quite clear that the bill has significant 1st Amendment issues at the same time.And, unfortunately, very, very few people seem willing to raise those constitutional problems, because no one wants to be seen opposing protecting federal judges in response to these events. But it's possible to believe that we should better protect federal judges... and that we can do so in a manner that does not fundamentally violate the 1st Amendment. As the Free Law Project notes, why are we not more focused on making the country safer for everyone, rather than creating a special class for Federal Judges that ignores the 1st Amendment?Of course, the fear on top of all this is that, if this bill passes, even if it were challenged, would a federal judge -- effectively the only direct beneficiaries of the bill itself -- come out and admit to the constitutional problems with the bill? It's unclear to me how you could even have an impartial judicial analysis of the bill, as the people it protects are literally the only ones who can determine whether or not the bill is constitutional.We should be able to protect not just judges, but everyone, without making websites like the Free Law Project illegal. And we should be able to speak out about the concerns of this bill without it being "political suicide." What happened to Judge Salas and her family is tragic. And there are ways to protect federal judges and everyone else better. But it shouldn't involve dumping our 1st Amendment rights in the process.

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posted at: 12:00am on 04-Dec-2021
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Federal Court Dismisses Another Negligence Suit Against Online Gun Marketplace Armslist But Says Section 230 Doesn't Protect It

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Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site's facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn't have had access to guns to acquire one.The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.The court found in favor of Armslist, specifically citing Section 230.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint.
Another court has found in favor of Armslist. And again, the case involves a tragedy: the killing of someone using a weapon purchased through Armslist. Unfortunately, the federal court handling this case says Section 230 has nothing to do with Armslist securing a dismissal. While it doesn't weaken any Section 230 protections, it certainly doesn't add anything either, ensuring lawsuits brought against third-party platforms will still have to pay to defend themselves from accusations that they're culpable for the criminal actions of their users. (h/t Volokh Conspiracy)The plaintiff, Richard Webber, sued Armslist after a gun purchased on the site was used to murder his daughter. The underlying incident is horrific. This is from the Wisconsin federal court decision [PDF]:
As a result of Armslist’s design decisions and business practices, Plaintiff alleges, Schmidt’s estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt’s estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother’s house to drop off her three children. Schmidt’s estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist’s failure to enact adequate safeguards, and but for Armslist’s conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt’s estranged husband would not have been able to purchase the firearm that he used to kill her.
From that tragedy arose a list of alleged violations and harms, including common law negligence, civil conspiracy, and wrongful death -- all pursued under Wisconsin state law but handled by a federal court.After deciding it has jurisdiction to preside over state law claims, the court details why it thinks Section 230 does not apply to this case -- one that involves a buyer and a seller utilizing the marketplace created by Armslist, but does not involve any direct action by Armslist.In dismissing Armslist's Section 230 immunity defense, the court cites not only Justice Clarence Thomas (who holds some… questionable… views on Section 230) but also quotes the Seventh Circuit's misreading on how the "Good Samaritan" clause of the law has been applied by platforms.
But even setting aside the tricky task of discerning legislative intent, it is the text of the statute from which a court should draw its true meaning. Subsection (c) is entitled “protection for ‘good samaritan’ blocking and screening of offensive material.” As the Seventh Circuit has noted, this title is “hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.” Doe, 347 F.3d at 660. Furthermore, nothing in the text of § 230(c)(1) indicates an intent to provide sweeping immunity for providers or users of interactive computer services who face claims based on their own misconduct.
The "Good Samaritan" clause does not encourage a hands-off approach. It actually encourages vigorous moderation efforts by ensuring platforms cannot be sued for removing content platform owners find objectionable, rather than limiting themselves to clearly illegal content.From these, it gets worse. The court decides this lawsuit isn't about the action of two third parties who utilized a platform to perform an illegal gun sale. It says this is about Armslist being less than cautious about who it allows to utilize the service, shifting the culpability from the murderer and the party closest to the act of murder (the person who sold him the gun) one more step up the chain to the platform that merely allowed people to sell and buy guns.
Even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features,” not on the post in question. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.
But having successfully dodged Section 230 immunity isn't enough to find Armslist culpable for the actions of a person who purchased a gun through the site. There's nothing that connects the violent act to Armslist other than the weapon used to commit it. And, as the court points out, if it wasn't a gun purchased on Armslist, it might have been a gun purchased elsewhere… or any weapon at all, given the facts of this case.
It is clear from the complaint that Schmidt was shot and killed by her estranged husband, not Defendants, with a handgun he purchased from another party, again not Defendants. Based on the facts alleged, there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive. Absent cause, Plaintiff’s negligence claim against Defendants fails.
Armslist escapes. But not by much. And the decision doesn't bolster Section 230 protections. Instead, it encourages litigants to pursue esoteric claims in hopes of bypassing immunity, rather than be forced to confront the fact they're seeking to hold a platform responsible for the violent acts of its users. That fact alone should have given Section 230 immunity better consideration than it received here. And it's pretty disheartening to hear federal courts quoting Justice Clarence Thomas' unhinged (but published) dissenting rants about a law he clearly doesn't respect, much less understand.

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posted at: 12:00am on 04-Dec-2021
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Colorado Appeals Court Says A Drug Dog That Alerts On Now-Legal Weed Can't Create Probable Cause For A Search

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"Probable cause on four legs." That's the cop nickname for drug dogs, which need to do nothing more than something only perceptible to the officer/trainer to allow officers to engage in warrantless searches. For years, drug dogs and the "odor of marijuana" have allowed both cops and dogs to follow their noses to all sorts of otherwise-unconstitutional searches, much to the delight of law enforcement and its desire to make easy busts and seize cash.Then came the creeping menace of legalized marijuana, which meant cops in some states could no longer assume the odor of marijuana was reasonably suspicious enough to convert pretextual stops into full-blown searches. These legal changes also promised to put their dogs out of business because they were trained to detect weed along with other illicit substances. With marijuana no longer necessarily illicit, the dogs became more of a problem than a solution. As far too many law enforcement officials claimed, the legalization meant the literal death of drug dogs, rather than just a speed bump on the road to warrantless searches.Marijuana has been legal in Colorado since 2012. And yet, cops still use drug dogs that obviously cannot indicate via an "alert" whether it has detected now-legal weed or something still actually illegal under state law. That inability to tell officers "hey, I detected a legal substance" is now causing problems for drug convictions and their underlying drug dog-enabled searches.The Colorado Court of Appeals has just ruled [PDF] that a drug dog alert no longer generates the required amount of probable cause necessary to allow cops to engage in deeper, broader searches of people and their property. (via FourthAmendment.com)Here's how it began:

In 2017, drug task force investigators were following a suspected “high level” drug dealer when he visited Restrepo’s house. After the drug dealer drove away, some members of the task force stopped him; they found firearms and a quarter pound of methamphetamine in his vehicle. At some point, the drug dealer told officers that he had been at Restrepo’s house to sell him methamphetamine, as a customer.Meanwhile, other members of the task force remained watching Restrepo’s house. When Restrepo left in his car, they followed for a couple of hours. During that time, the task force “decided to make a traffic stop.” After Restrepo rolled through a stop sign, the task force asked Jeremy Sheldon, a uniformed officer with the canine unit of the Colorado Springs Police Department, to stop Restrepo’s car. During the stop, Officer Sheldon patted Restrepo down and found $1,200 in Restrepo’s pocket. He then commanded his dog to perform a drug sniff of Restrepo’s vehicle. The dog, trained to alert to marijuana as well as to other controlled substances, alerted to Restrepo’s car. Officer Sheldon then searched the vehicle and found suspected methamphetamine and drug paraphernalia in a backpack in the backseat.
The district court saw nothing wrong with this and refused to suppress the evidence. It said the dog's ability to also detect illicit substances gave the cops permission to perform the search of the backpack. In effect, the court told cops it was okay to use dogs that detected legal substances to generate probable cause to search for illegal substances. But it did rule that the sniff itself was not supported by reasonable suspicion. For whatever reason, it combined these two almost-contradictory conclusions into a single ruling that allowed the state to keep the evidence it recovered from the backpack.The Appeals Court says this ruling is wrong. Since marijuana is legal -- and drug dogs trained to detect this odor will continue to detect it -- cops must have more to go on before they bring a drug dog into the mix. They must have probable cause to justify the deployment of a drug dog to sniff for contraband. It's no longer acceptable to run one around a stopped car or their belongings just because you happen to have one on hand.
When a dog trained to alert to both marijuana and illegal drugs alerts, the handler does not know if the dog is alerting to contraband or to a legal amount of marijuana. See McKnight II, ¶ 35. Therefore, a dog sniff from a dog trained to detect marijuana is a search under article II, section 7; it intrudes on a person’s reasonable expectation of privacy in lawful activity. Id. at ¶¶ 43,Accordingly, there must be probable cause to believe a vehicle contains illegal narcotics under state law before deploying a drug detection dog trained to alert to marijuana.
There was no probable cause here. All the cops had at that point was an unverified assertion from an alleged drug dealer in their custody that drugs had been sold to Restrepo. What they didn't have was anything allowing them to escalate the pretextual stop to a full-blown search. The drug dog's alert changed nothing.The evidence seized from the backpack vanishes, along with the conviction. And cops in Colorado are on notice they'll need to develop probable cause before they bring a drug dog in or risk losing their evidence in the future. Probable cause no longer walks on four legs in Colorado.

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posted at: 12:00am on 03-Dec-2021
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MLB Removes References To Current Players On MLB.com Due To Lockout

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Whether your a baseball fan, or a sports fan in general, or not, regular readers here will know that we've covered aspects of many sports leagues and Major League Baseball in particular. As you'd expect with any major business like MLB, some of those posts have dealt with some nonsense intellectual property actions the league has undertaken, but many more of them have been positive articles about the forward-thinking folks at MLB when it comes to how they make their products available using modern technology. The league's website work has always been particularly good, whether it's been the fantastic MLB.TV streaming site the league operates, or even simply the base MLB.com site itself.But that latter site has now become a petty pawn being played by MLB as part of the owner's lockout of players that just kicked off. For non-MLB fans, the quick version is this: the collectively bargained labor agreement between owners and players expired this week without a new agreement inked. As a result, the players are now locked out of team facilities by ownership. That last bit is important, because many people have been describing this as a labor strike. It isn't. At all. This is the owners refusing to let the players fulfill their duties. And as part of that, it seems, MLB released the following news update on its MLB.com website.

You may notice that the content on this site looks a little different than usual. The reason for this is because the Collective Bargaining Agreement between the players and the league expired just before midnight on Dec. 1 and a new CBA is currently being negotiated between the owners and the MLBPA.Until a new agreement is reached, there will be limitations on the type of content we display. As a result, you will see a lot more content that focuses on the game’s rich history. Once a new agreement is reached, the up-to-the minute news and analysis you have come to expect will continue as usual.
It's unclear precisely what game MLB is playing with this move, but the end result is a website that is almost entirely bereft of content on any current MLB player. While the stats and standings from last season are still available in their tabs, the entire main page is now filled only with content about players no longer playing. Players that are on this year's Hall of Fame ballot, for instance, or check ins with Ichiro showing up at a high school to hit home runs. Interested in Vin Scully's thoughts on Gil Hodges? MLB.com has you covered! Want to know anything new about Kris Bryant or Mike Trout? You'll have to go elsewhere.The league is making noises about having to comply with federal labor laws regarding the use of player likenesses in promotional or advertising material, but that doesn't make that much sense in the context of simply listing players currently under contract and on team rosters. Instead, this looks to be an attempt to, in some manner, punish current players by ripping away any fame or notoriety they might get via the MLB.com site. It's also notable that each individual team site gets feeds directly from MLB.com and those sites too are changed in a similar manner. Perhaps most strangely, the headshots of all current players have been removed and replaced by generic avatars of faceless headsIt could be that MLB is just playing it really, really safe on the labor laws situation... but I doubt it. This is more likely part of the overall strong-arm tactic by team owners that are crying poor to the players' union while beating the CBA buzzer to hand players millions and millions of dollars at the same time. And, just to add more to the mix, this all is happening at the same time MLB admitted it has been messing with the types of balls within the game, introducing multiple differently behaving balls in a league that is absolutely driven by statistics for what is supposed to be a uniform game.Not exactly the ammo the owners need going into CBA negotiations, to be sure.

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posted at: 12:00am on 03-Dec-2021
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Content Moderation Case Study: Discord Adds AI Moderation To Help Fight Abusive Content (2021)

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Summary: In the six years since Discord debuted its chat platform, it has seen explosive growth. And, over the past half-decade, Discord's chat options have expanded to include GIFs, video, audio, and streaming. With this growth and these expanded offerings, there have come a number of new moderation challenges and required adapting to changing scenarios.Discord remains largely text-based, but even when limited to its original offering -- targeted text-oriented forums/chat channels -- users were still subjected to various forms of abuse. And, because the platform hosted multiple users on single channels, users sometimes found themselves targeted en masse by trolls and other malcontents. While Discord often relies on the admins of servers to handle moderation on those servers directly, the company has found that it needs to take a more hands on approach to handling content moderation.Discord's addition of multiple forms of content create a host of new content moderation challenges. While it remained text-based, Discord was able to handle moderation using a blend of AI and human moderators.Some of the moderation load was handed over to users, who could perform their own administration to keep their channels free of content they didn't like. For everything else (meaning content that violates Discord's guidelines), the platform offered a mixture of human and AI moderation. The platform's Trust & Safety team handled content created by hundreds of millions of users, but its continued growth and expanded offerings forced the company to find a solution that could scale to meet future demands.To continue to scale, Discord ended up purchasing Sentropy, an AI company that only launched last year with the goal of building AI tools to help companies moderate disruptive behavior on their platforms. Just a few months prior to the purchase, Sentropy had launched its first consumer-facing product, an AI-based tool for Twitter users to help them weed out and block potentially abusive tweets. However, after being purchased, Sentropy shut down the tool, and is now focused on building out its AI content moderation tools for Discord.Discord definitely has moderation issues it needs to solve -- which range from seemingly-omnipresent spammers to interloping Redditors with a taste for tasteless memes -- but it remains to be seen whether the addition of another layer of AI will make moderation manageable.Company Considerations:

  • What advantages can outside services offer above what platforms can develop on their own? 
  • What are the disadvantages of partnering with a company whose product was not designed to handle a platform's specific moderation concerns?
  • How do outside acquisitions undermine ongoing moderation efforts? Conversely, how do they increase the effectiveness of ongoing efforts? 
  • How should platforms handle outside integration of AI moderation as it applies to user-based moderation efforts by admins running their own Discord servers?
  • How much input should admins have in future moderation efforts? How should admins deal with moderation calls made by AI acquisitions that may impede efforts already being made by mods on their own servers?
Issue Considerations:
  • What are the foreseeable negative effects of acquiring content moderation AI designed to handle problems observed on different social media platforms?
  • What problems can outside acquisitions introduce into the moderation platform? What can be done to mitigate these problems during integration?
  • What negative effect can additional AI moderation efforts have on "self-governance" by admins entrusted with content moderation by Discord prior to acquisition of outside AI?
Resolution: So far, the acquisition has yet to produce much controversy. Indeed, Discord as a whole has managed to avoid many of the moderation pitfalls that have plagued other platforms of its size. Its most notorious action to date was its takeover of the WallStreetBets server as it went supernova during a week or two of attention-getting stock market activity. An initial ban was rescinded once the server's own moderators began removing content that violated Discord guidelines, accompanied by Discord's own moderators who stepped in to handle an unprecedented influx of users while WallStreetBets continued to make headlines around the nation.Other than that, the most notable moderation efforts were made by server admins, rather than Discord itself, utilizing their own rules which (at least in one case) exceeded the restrictions on content delineated in Discord's terms of use.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 02-Dec-2021
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Take-Two Interactive Appears To Be Morphing From Game Publisher Into IP Troll

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There is this thing that sometimes happens to companies that are wildly successful where they stop focusing so much on making the things that made them successful and turn instead to intellectual property trolling. Think Atari, for instance. Atari was once a behemoth in the gaming industry, but have since been reduced to trying to bully and/or sue everyone who comes even remotely close to referencing one of its properties, rather than making any real hay in the industry.This process of devolving from competing business to grifting troll is at its most obvious in the end-state, where Atari is now. I won't pretend that a company like Take-Two is anywhere near there just yet, but it is notable that we have seen a recent uptick in the company engaging in this restrictive and trollish behavior. Whether it's fighting its own modding community to release shitty versions of its own older games or filing trademark oppositions for axe-throwing companies (yes, seriously), this just isn't where the focus should be for a company known to make amazing AAA video game titles.There is apparently more here than had been previously known. NME has a decent writeup discussing all the IP action Take-Two is getting involved in, some of which includes the examples mentioned above. However, it also includes a couple of other examples of trademark bullying I hadn't seen previously. The first deals briefly with an opposition for a trademark application by Hazelight Studios for its game It Takes Two.

The owner of Rockstar Games has filed hundreds of trademark disputes to the United States Patent and Trademark Office over words and phrases like “2K”, “Rockstar” and “Take-Two”.This included the publisher attempting to file a trademark dispute over It Takes Two with Hazelight Studios. After being published in May of last year, the trademark was abandoned on March 20 this year.
As the post notes, the application was abandoned by Hazelight Studios in March of this year. There is no detail on offer as to whether Take-Two's threat of opposition was the reason for the abandonment, but that's mostly besides the point. That point being: this is a silly opposition to begin with. The studio's name being somewhat similar to the name of the planned game doesn't really point to any serious concern about public confusion mixing up the two. This appears to be pure trademark maximalism, or bullying.The second might be closer to a valid opposition, though it still all seems rather silly.
A more recent and open trademark filing from Take-Two concerns Max Pain, a business which according to opencorporates.com promotes Twitch streamers, Youtube content creators and Esports teams. Max Pain was given an incorporation date (the date it can commence business) of June 29 2020.Whilst the US Patent and trademark office doesn’t appear to list what this specific trademark is over from Take-Two, it appears as though the publisher is filing in connection to Max Payne, the series developed by Rockstar. The trademark dispute has been extended, and appears to be ongoing.
In this case, Max Payne and Max Pain sound the same when spoken, except that the services rendered appear to be significantly different. Sure, streamers stream video games sometimes. Yes, eSports involve video games. But is anyone really looking at a promotion agency for streamers and eSports teams called Max Pain and thinking that this has anything to do with Take-Two's video game franchise? That seems pretty unlikely.But wherever you come down on these individual instances, it sure feels like Take-Two is becoming more and more focused on being the IP police rather than doing what made the company the giant it is in the industry: making outstanding AAA games. And that, in turn, feels like it could be the starting point for Take-Two Atari-izing itself.And that would be a damned shame.

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posted at: 12:00am on 02-Dec-2021
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The Bad Apples Control The Bunch: USA Today Report Details Law Enforcements Punishment Of Good Cops

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Plenty of people try to minimize police misconduct by claiming what we witness day after day after day is just the work of a few "bad apples." That's only half of the adage, though. The rest of it notes that bad apples spoil the whole bunch. Keep bad apples around long enough and you're going to have to throw out the bunch eventually.Apply this phrase to cop shops and you'll see why cop proponents only half-quote it. Apply this phrase to cop shops and you'll see where it completely fails: not only do bad apples make the good apples worse, but the bad apples have the power to rid the bunch of as many good apples as possible.An investigation by USA Today shows why it's easy to keep good cops down and enable bad cops to do their worst. Law enforcement culture has dictated a thin blue line -- one that shields bad cops from accountability and allows even the best of cops to assume the public's unwillingness to turn a blind eye to misconduct makes them the enemy.But the most dangerous enemies are those behind the blue line. And they must be removed by any means necessary. (Non-paywalled link here.)

To many in law enforcement, snitching against another cop is a betrayal that can’t go unpunished.Those who enforce this code – the blue wall of silence – have stuffed dead rats and feces into fellow officers’ lockers. They’ve issued death threats, ignored requests for backup, threatened family members and planted drugs on the officers who reported wrong.Department leaders often condone these reprisals or pile on by launching internal investigations to discredit those who expose misconduct. Whistleblowers have been fired, jailed and, in at least one case, forcibly admitted to a psychiatric ward.  
USA Today has receipts, thanks to public records requests and information given to it by law enforcement whistleblowers. There are good cops out there. But they're up against a system that equates reporting of misconduct to be a form of treason. Bad cops and their employers/enablers ensure no good deed goes unpunished.
In South Carolina, an officer leaked the fact that fellow deputies beat a prisoner who later died in custody. In Florida, a detective who specialized in child sex crimes reported a captain who had impregnated a 16-year-old girl and then paid for her to have an abortion. In Oregon, a sergeant complained that a co-worker bragged about killing an unarmed teenager.  After speaking out, all of them were forced out of their departments and branded traitors by fellow officers.
The same silencing of whistleblowers we've observed at the federal level also occurs in state and local law enforcement agencies. Retaliation abounds. The "official channels" for reporting wrongdoing often involve officials whose wrongdoing is being reported. And if none of that works, a perverse form of peer pressure is deployed -- one that ensures whistleblowing cops will never have backup if they need it and will be frozen out of transfers and promotions.No one is exempt, according to this USA Today investigation. Agencies large and small engage in these unofficial practices. Departments well-represented or run by minorities are no better than agencies with white leadership or whose workforce contains mostly white males. The presence of a police union may make things worse in terms of accountability, but even agencies without unions regularly punish whistleblowers. The only thing that ultimately matters is the profession: an equalization that serves the badge rather than the public.This loyalty to each other, rather than their true employers (the general public), aligns law enforcement agencies with the criminal world, where snitching is an unforgivable sin that demands swift and brutal retribution. Officers who've abused their power are protected by a system that ends the careers of officers who want to see their agencies live up to the ideals they profess.And, as if the point of this investigation needed to be driven home, a police union has stepped up to confirm the implications of the USA Today report. Not only is this officer no longer welcome in his own department, but his union has now basically stated it's willing to throw its (paid for by union dues) legal weight behind cops accused of all sorts of malfeasance but will have nothing to do with a cop who has exposed wrongdoing.
An Illinois police union on Wednesday ousted from its membership an officer facing criminal charges for exposing a squad car video that showed his fellow officers slapping and cursing a man dying of a drug overdose.The case of Sgt. Javier Esqueda, a 27-year veteran of the Joliet Police Department, was featured in September as the first installment of the USA TODAY series “Behind the Blue Wall,” an investigation involving more than 300 cases of police officers over the past decade who have spoken out against alleged misconduct in their departments.
And as for the constant insinuation that law enforcement agencies harbor millions of "good" cops, contrary to public opinion, it would be nice if bootlickers and police officials could explain anything reported above, much less this damning indictment of law enforcement's unwillingness to police themselves.
Esqueda was one of 30 police officers who signed a letter to congress this summer urging lawmakers to pass protections for police whistleblowers.
Thirty. Out of nearly 700,000. Saying you're for police accountability means nothing if you're not willing to even sign your name to a letter asking federal legislators to stand by those who report wrongdoing. If you need a better argument for defunding police agencies, this is it. When a culture is so entrenched it can't be rooted out with gradual reforms, perhaps the better solution is to burn it to the ground and rebuild with better policies and protections in place.

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posted at: 12:00am on 01-Dec-2021
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Miramax Survives Copyright Dispute Over 'Pulp Fiction' Poster Initiated By Opportunistic Photographer

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The iconic film Pulp Fiction appears to be a hot topic of conversation lately. We recently discussed Miramax's laughable lawsuit against Quentin Tarantino over his plan to offer NFTs for certain unreleased and unused portions of the film's drafted scripts, alongside the director's audio commentary revealing his thought processes and "secrets" surrounding the screenplay. While that whole thing is currently making Miramax look very confused as to intellectual property laws, there was recently a lawsuit ruled in Miramax's favor over the film's most iconic poster.You know the image. It's the one with Uma Thurman laying stomach-down on a bed, smoking a cigarette, surrounded by guns and paperback books. The photo for that poster was taken by Firooz Zahedi at his studio in 1994 and has since become one of the most iconic movie posters ever. In May of 2020, Zahedi sued Miramax for copyright infringement over the extensive use of the photo on merchandise, claiming he never authorized its use for those instances. Miramax claimed the work had been done as a work for hire, which makes all the sense in the world, except, well...

Miramax claimed that he took the picture as part of a work-for-hire agreement for "Pulp Fiction," but sometime in the last 27 years, the studio misplaced the signed documents that made the agreement official, so it couldn't dig up anything to prove that.
Now, the whole "Sorry, the dog at my work for hire paperwork" excuse typically doesn't fly well in court proceedings, no matter how much logical sense such an arrangement might make. In this case, however, I mentioned that the court found in favor of Miramax. How did that happen?Well, it came down to the timing of Zahedi's suit coupled with the delay in filing it despite having documented knowledge of its wide use and distribution. And that documentation came in the form of an Instagram post.
Six years ago, Zahedi's stepson posted an Instagram photo of him with the action figure. The caption on that post read, "Happy Birthday to my Stepdad @fitzphoto [emojis] Turns out he didn't get toy royalties for his famous photo of Uma TM... But at least he has the toy now..."Zahedi replied to the post, "Thanks... Sometimes it's best to settle for the little things in life."In other words, there's a record in 2015 that shows Zahedi knew Miramax had repudiated his ownership at least that far back. The three-year statue of limitations for that ended in 2018, so as far as the judge was concerned, it was case closed.
And so the court indicated two things. First, the statute of limitations is 3 years from the time that Zahedi discovered the "unauthorized" use of his work, if we stipulate that this was in fact not work for hire. Second, that Instagram post demonstrates publicly that Zahedi had that knowledge in 2015. The suit was filed some 2 years late, therefore.And so Miramax came out the winner. It may still be kind of crappy to not credit the photographer out of courtesy, but there is no legal liability here. And, frankly, I don't believe for a second that the studio didn't contract the movie photo as a work for hire arrangement, though it turns out that is not a factor in this ruling.

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