Video Game History Foundation: Nintendo Actions 'Actively Destructive To Video Game History'

Furnished content.


I've been banging on a bit lately about the importance of video game preservation as a matter of art preservation. It's not entirely clear to me how much buy in there is out there in general on this concept, but it's a challenge in this specific industry because much of the control over what can be preserved or not sits in the hands of game publishers and platforms compared with other forms of art. Books have libraries, films have the academies and museums, and music is decently preserved all over the place. But for gaming, even organizations like the Video Game History Foundation have to rely on publishers and platforms to let them do their work, or risk art being lost entirely to the digital ether or lawsuits over copyright. We've talked in the past about how copyright law is far too often used in a way that results in a loss of our own cultural history, and digital-only video games are particularly vulnerable to that.We just discussed Nintendo's forthcoming shutdown of the 3DS and Wii U stores, and what that meant for digital games that Nintendo indicates it is not planning on selling anywhere else. Well, the Video Game History Foundation released a statement on that action and, well, hoo-boy...

While it is unfortunate that people won’t be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision. What we don’t understand is what path Nintendo expects its fans to take, should they wish to play these games in the future. As a paying member of the Entertainment Software Association, Nintendo actively funds lobbying that prevents even libraries from being able to provide legal access to these games. Not providing commercial access is understandable, but preventing institutional work to preserve these titles on top of that is actively destructive to video game history. We encourage ESA members like Nintendo to rethink their position on this issue and work with existing institutions to find a solution.

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Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop

Furnished content.


Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.Here's how it started:

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.

Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered brightline rules.

Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others' homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.

Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. See id. For instance, Connolly was granted access to the defendant's content using a nondescript username that the defendant did not recognize and a default image that evidently was not Connolly's photograph. By accepting Connolly's friend request in those circumstances, the defendant demonstrated that he did not make "reasonable efforts to corroborate the claims of" those seeking access to his account.[...]Indeed, Connolly was able to view the defendant's stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.

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