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Appeals Court To Cops: There's Nothing Inherently Suspicious About Running From The Police

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The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn't "reasonable" when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.Contraband was found, leading to Brown's motion to suppress. The lower court said this combination -- an anonymous report of a gun and Brown's decision to run when he saw the police cruiser -- was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can't be inherently suspicious in a state where carrying a gun in public is permitted.

In Washington State, it is presumptively lawful to carry a gun. It is true that carrying a concealed pistol without a license is a misdemeanor offense in Washington. See RCW §§ 9.41.050(1)(a) (“[A] person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol . . . .”), 9.41.810 (explaining that any violation of the subchapter is a misdemeanor “except as otherwise provided”). However, the failure to carry the license is simply a civil infraction.
There was no reason for officers to assume Brown's gun was unlicensed. Since carrying a gun in Washington is "presumptively legal," the officers would have needed more info than they had to perform a stop to just to ask Brown for his carry license. The anonymous tip officers received said only that a YWCA resident had approached the desk and said they'd seen a man with a gun. No further information was given by the tipster.Faced with the weakness of the tip and the presumptive legality of gun ownership, the police then argued Brown might have been illegally "displaying" his gun to "cause alarm." But the court denies this argument -- first raised on appeal -- as being no better than assuming Brown's mere gun possession was enough to justify a stop.
Faced with this reality, the government now argues that the officers suspected that the manner in which Brown was carrying his gun was unlawful: it is “unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, . . . that warrants alarm for the safety of other persons.” RCW § 9.41.270. Never mind that nothing in the record could support such a finding. No evidence shows that the resident was alarmed at the time she reported seeing the gun. There is no report that she yelled, screamed, ran, was upset, or otherwise acted as though she was distressed. Instead, the 911 call reported only that the resident “walked in” and stated “that guy has a gun.”
Finally, the government argued that Brown's decision to flee when he saw police officers was inherently suspicious. Again, the court says this is wrong. While fleeing officers can be suggestive of wrongdoing, it is only one factor and it's one heavily influenced by the deteriorated relationships many law enforcement agencies have with the communities they serve. The Ninth Circuit quotes Supreme Court Justice John Paul Stevens, who put this in his dissent from the Court's 2000 decision in Illinois v. Wardlow:
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.
The Appeals Court adds to this, saying not much has improved since Justice Stevens authored his dissent:
In the almost twenty years since Justice Stevens wrote his concurrence in Wardlow, the coverage of racial disparities in policing has increased, amplifying awareness of these issues. [...] Although such data cannot replace the “commonsense judgments and inferences about human behavior” underlying the reasonable suspicion analysis, Wardlow, 528 U.S. at 125, it can inform the inferences to be drawn from an individual who decides to step away, run, or flee from police without a clear reason to do otherwise. See id. at 133 (“Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices.” (footnote omitted)).
Attached to this paragraph is a footnote quoting the DOJ's investigation of the Seattle Police Department -- the one involved in the arrest at the center of this case. The 2011 report found the Seattle PD routinely deployed "unnecessary and excessive force" and engaged in "racially discriminatory policing."The court goes on to say this isn't just a problem with the Seattle PD, but law enforcement in general, which gives plenty of people all the reason they need to dodge interactions with law enforcement.
Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an “innocent” explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop.
The public isn't obligated to stop just because an officer says, "Stop." In this case, the officers said nothing until Brown was already running. Lots of people have zero interest in talking to the police. Some don't want the hassle. Most don't enjoy the experience. And some suspect they'll probably end up arrested or dead, even if they haven't done anything wrong. If law enforcement doesn't like the way this decision breaks, it really can't blame anyone else for the public's reaction to the unexpected presence of officers. Even the tipster said she didn't want to talk to an officer because, according to the YWCA rep speaking to the dispatcher, she "[does not] like the police." Running from cops isn't inherently suspicious. Far too often, running from cops just makes sense.

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posted at: 12:00am on 18-Jun-2019
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We're Apparently Scanning Our TVs For Viruses Now

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We've noted for many years that (like so many "internet of things" devices) modern smart televisions have the security protection equivalent of damp cardboard. Not only are they often easily hacked (something intelligence agencies are super excited about since it gives them audio access to targets), but the companies that make them have been busted repeatedly for hoovering up user usage data (and even audio from your living room), and then failing to adequately secure it.This week, Samsung took a bit of heat for urging the company's TV customers to, for the first time, occasionally run an antivirus scan on their television sets. The Tweet was online online briefly before Samsung deleted it, apparently realizing it only advertised the fact that you shouldn't be getting viruses on your TV set in the first place:

That's amusing for several reasons. One, because customers wouldn't be getting viruses on their television sets if these products had even the most basic security protections, something TV vendors have failed at for years. Two, because it highlights how many modern televisions have become insanely complicated. Not because consumers necessarily want them to be insanely complicated, but because most TV vendors want you using their embedded streaming platforms and as opposed to a third-party streaming device (like Roku, Chromecast, or a game console).And of course they want you using their streaming platforms because they want to monetize your viewing and other profitable data. As a Vizio executive recently acknowledged, this can help subsidize the cost of cheaper TV sets. That creates a dilemma whereby the consumer is forced to pay a premium if they want a TV set that simply displays a god-damned image and doesn't hoover up their personal data:
The problem is if you've shopped for a TV lately, it's effectively impossible to find a "dumb" television that simply passes on signal from other devices. As in: they're simply not available at any meaningful scale, even if you were willing to pay a significant premium for them. Many people certainly are; most embedded TV OS platforms are kind of terrible, and users would rather buy a new streaming box (Roku, Chromecast, Apple TV) every few years than be forced to buy an entirely new TV set because the embedded streaming hardware becomes outdated (something TV vendors clearly would benefit from).While some set vendors might argue that dumb televisions don't exist because there's no market demand for them, the fact is they haven't even bothered to try. And they haven't bothered to try because they're fixated on accelerating the TV upgrade cycle and collecting and selling your personal usage data to a universe of partners. Which again, might not be quite as bad if these companies had done a good job actually securing and encrypting this data, or designing television OS' that didn't feel like they were barfed up from the bowels of 1992 GUI design hell.It's all kind of a silly circle dysfunction but pretty standard operating procedure in the internet of broken things era, where an endless list of companies now sell over-hyped internet-connected appliances, gleefully collect and monetize your data, but can't be bothered to adequately secure that data or provide consumers with clear options to avoid data collection entirely.

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posted at: 12:00am on 18-Jun-2019
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This Week In Techdirt History: June 9th - 15th

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Five Years AgoThis week in 2014, James Clapper finally admitted that the number of documents Ed Snowden took was probably a lot less than the much-bandied 1.7-million figure, while various former intelligence officials were not happy about Clapper's gag order on talking to the press. A new report examined the reactions to the Snowden leaks from governments around the world, and we noted one big positive result was companies being less ready to help the NSA. But agency defenders were still telling lots of lies, Mike Rogers was calling Google unpatriotic for opposing spying on its users, and we awaited a key vote in congress that would reveal how much it valued people's privacy.Ten Years AgoThis week in 2009, the Swedish Pirate Party surprised everyone by winning a seat in the EU parliament for Christian Engstrom, who used the attention to explain the party (and its name) to an often-confused press. Amidst the push for fashion copyright some smart designers were realizing it would be a bad thing, Bad Science's Ben Goldacre tore apart a bogus study about file sharing, and a UK ISP boss was trying to explain to the industry that it needs to give up on trying to stop all piracy. In France, the consitutional council gutted the recently-passed three strikes program, video game companies were still whining about used game sales, and we saw the beginning of another notoriously silly copyright dust-up when an Australian music publisher claimed Down Under by Men At Work was a copy of the children's song Kookaburra.Fifteen Years AgoThis week in 2004, people were cluing into the huge learning benefits for kids who use computers — and the fact that over-obsession with "internet risks" can undermine these benefits. We took a look at how being prevented from using a cellphone sparks extreme anger in some, but is embraced as a nice break by others. Television was trying to figure out how to embrace and/or compete with broadband, while the RIAA was complaining that digital broadcasts would make radio too high-quality, and that would be bad. And after a brief flurry of trading with some people shelling out hundreds of dollars for the hyped new email service, Gmail invites flooded the market and tanked the price.

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posted at: 12:00am on 16-Jun-2019
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The Flipside To Figuring Out What Content Do You Block: Cloudflare's Project Galileo Focuses On Who It Should Protect

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There has been so much discussion lately about the impossibility of doing content moderation well, but it's notable that the vast majority of that discussion focuses on what content to ban or to block entirely. I do wish there was more talk about alternatives, some of which already exist (from things like demonetization to refusing to algorithmically promote -- though, for the most part, these solutions just seem to annoy people even more). But there is something of a flipside to this debate which applies in perhaps somewhat more rare circumstances: what content or speakers to specifically protect.I'm thinking of this, in particular, as Cloudflare has announced the 5th anniversary of its (until now, mostly secretive) Project Galileo offering, in which the company provides free security to around 600 organizations which are likely targets of attacks from well resourced attackers:

Through the Project, Cloudflare protectsat no costnearly 600 organizations around the world engaged in some of the most politically and artistically important work online. Because of their work, these organizations are attacked frequently, often with some of the fiercest cyber attacks we've seen.Since it launched in 2014, we haven't talked about Galileo much externally because we worry that drawing more attention to these organizations may put them at increased risk. Internally, however, it's a source of pride for our whole team and is something we dedicate significant resources to. And, for me personally, many of the moments that mark my most meaningful accomplishments were born from our work protecting Project Galileo recipients.The promise of Project Galileo is simple: Cloudflare will provide our full set of security services to any politically or artistically important organizations at no cost so long as they are either non-profits or small commercial entities. I'm still on the distribution list that receives an email whenever someone applies to be a Project Galileo participant, and those emails remain the first I open every morning.
At a first glance, this might not seem like much of a story at all: internet company does something good to protect those at risk doesn't necessarily seem that interesting at first, especially during a moment in time when everyone is so focused on attacking every internet company for bringing about all the evils of the world. However, I do think there are some very important lessons to be learned here, and some of them very much apply to the debates about content moderation. In some sense, Project Galileo is like the usual content moderation debates, but in reverse.I was particularly interested in how Cloudflare chose which organizations to protect, and spoke with the company's CEO, Matthew Prince last week to get a more in-depth explanation. As he explained, they partnered up with a wide variety of trustworthy organizations (including EFF, Open Technology Institute, the ACLU, Access Now, CDT, Mozilla, Committee to Protect Journalists and the Freedom of the Press Foundation, among others), and would let those organizations nominate organizations which might be at risk or if organizations approached Cloudflare about being included in Project Galileo, Cloudflare could run their application by those trusted partners. What started with 15 partner organizations has now nearly doubled to 28.Of course, such a system likely wouldn't work well in the other direction (figuring out what accounts to ban or otherwise punish) as people would undoubtedly flip out and attack them -- as many did a few years ago when Twitter announced its Trust and Safety Council of partner organizations that it relied on for advice on how it handled its trust and safety questions. Many critics of Twitter and its policies have continued to falsely insist that the organizations in this list are some sort of Star Chamber making decisions on who is allowed to use Twitter and who is not -- so any move to actually have such a system in place would likely be met with resistance.However, there is something interesting about having a more thorough process involving outside experts, than just trusting a company to make these decisions entirely internally. It's obviously somewhat different with Cloudflare, in part because it's providing underlying security services that are not as upfront as the various social media sites, and also because it's about picking out who to "protect" rather than who to block. But it is worth looking at and thinking about all of the different challenges there are when it comes to content moderation that go beyond what most people normally talk about.For what it's worth, this is also quite important as more and more politicians around the globe are gearing up to "regulate" content moderation in one way or another. It's one thing to say that social media sites should be required by law to block certain accounts (or to not block certain accounts), but think about how any of those laws might also apply to services like Project Galileo, and you can see why there should be caution in rushing in with regulatory solutions. The approach taken with something like Project Galileo ought to be entirely different than the process of determining whether or not a platform has decided to remove Nazi propagandists. But it's doubtful that those proposing new regulations are thinking that far ahead, and I worry that some new proposals may sweep up Project Galileo in a manner where it may become more difficult for Cloudflare to continue to run such a program.Still, in this era when everyone is so focused on the bad stuff online and how to stop it, it's at least worth acknowledging a cool project from Cloudflare to note the good stuff online and how to protect it.

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posted at: 12:00am on 15-Jun-2019
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