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Senator Kamala Harris Serves Up A Not-Completely-Terrible Revenge Porn Bill

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Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.

The term ‘intimate visual depiction’ means any visual depiction (as that term is defined in section 2256(5)), in original or modified format, of an individual who is reasonably identifiable from the image itself or information displayed in connection with the image, in which—(A) the individual is engaging in sexually explicit conduct; or(B) the naked genitals or post-pubescent female nipple of the individual are visible.
The non-consensual sharing of photos of men clad only in their underwear is apparently fine as only the female nipple is afforded protection. And if all it takes is an exposed female nipple to trigger possible charges, anyone who captures images of wardrobe malfunctions, breastfeeding mothers, or topless protesters better have some waiver forms on hand.But beyond that, there's the issue of sharing of any explicit depiction without the consent of all parties. Any non-consensual sharing of depictions of sexual activity and/or nudity is criminalized unless the person can show the sharing was a "matter of public concern." This would be the bill's journalism exception. There are also exceptions for law enforcement, legal proceedings, and "good faith" reporting of unlawful activity.What makes this bill a bit better than many of its competitors is the burden placed on the government to prove intent.
[I]t shall be unlawful to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual—(1) with knowledge of or reckless disregard for—(A) the lack of consent of the individual to the distribution;(B) the reasonable expectation of the individual that the depiction would remain private; and(C) harm that the distribution could cause to the individual; and(2) without an objectively reasonable belief that such distribution touches upon a matter of public concern
The bill also drags service providers into the mix, but fortunately doesn't expect them to police content or otherwise threaten their Section 230 protections. The only service providers that would be targeted would be those that "intentionally solicit and predominantly distribute content" that the provider "knows" is in violation of the law. So, there's intent needed to be proven there as well.Still, the bill has some questionable components. First, the bill treats threats of publication as equally criminal as actual publication. In both cases, violators could be subject to an unspecified fine and up to five years in prison. It also includes an extraterritoriality clause that would allow the US to pursue overseas violators as long as the subject depicted was an American. We'll have to see if that still holds up once Congressional lawyers have taken a look at it.Overall, the bill isn't terrible. It requires a showing of intent, something other revenge porn laws have disregarded. It does still present some First Amendment issues because the stipulations attached to violation (expectation depiction would remain private, distribution would cause harm to the subject depicted, etc.) are bound to swallow up some journalistic endeavors or documentation of sexual assault allegations (if the latter isn't shared exclusively with law enforcement). The edge cases will be left to prosecutors' discretion, which definitely isn't a good thing. All the evidence needed to argue for less prosecutorial discretion is the long string of embarrassments committed by prosecutors pursuing charges against sexting teens.Given the aggressiveness of Harris' pursuit of Backpage for sex trafficking, it's somewhat of a surprise to a Harris-backed revenge porn bill take a mostly hands off approach to internet service providers. Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity.

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posted at: 12:00am on 06-Dec-2017
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Drug Dog Testing Process Eliminates Handler Bias. Unsurprisingly, Cops Don't Like it.

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When a cop needs an excuse to search something (but can't manage to talk the citizen into consenting) there's almost always a four-legged cop waiting in the wings to give the cop permission to do what he wanted to do anyway. You will rarely hear testimony given in any court case where a K9 hasn't "alerted" to the smell of drugs. Once this "alert" is delivered, officers are free to override objections to warrantless searches under the theory that a dog's permission is all that's needed.What's willfully ignored by law enforcement officers is the nature of the beasts they deploy: dogs like pleasing handlers and will react to unconscious cues and/or do the thing they're expected to do: "find drugs." If the dog knows it can perform an act for a reward, it will perform that act, whether or not drugs are present. Unfortunately, there's a deliberate dearth of data when it comes to drug-sniffing dog fallibility. Tracking this data would undercut the dogs' raison d'etre: to act as probable cause for warrantless searches. This lack of data makes challenging drug dog "alerts" in court almost impossible.Fortunately, someone's actually looking into making drug dogs better -- or, at the very least, providing evidence that drug dogs are no more accurate at detecting drugs than $2 field tests. A program started by a former police K9 trainer is looking to remove the human factor from drug dog performance evaluations.

One organization trying to address handler bias is the Pacific Northwest Police Detection Dog Association. In the U.S., a drug-sniffing dog team — the dog and its handler — has to be periodically retested and certified, usually by one of the many regional K9 associations. Some groups have tougher testing methods than others; the PNWK9 has a method that aspires to scientific levels of impartiality."It's a double-blind," says Fred Helfers, the retired police K9 handler and trainer who designed the system. "No outside influence."In Helfers' tests, nobody in the room knows where the drugs are hidden; not the handler, not even the test administrator. That's to eliminate the possibility of someone unconsciously telegraphing signals to the dog as it gets close to the target.
Why this hasn't been done before is a mystery. (I mean, it's a mystery if we pretend there aren't a million reasons law enforcement agencies prefer the status quo.) As NPR points out, a study published seven years ago showed drug dogs respond more to handler cues than to the presence of drugs. Researcher Lisa Lit's tests found dogs alerting to areas researchers indicated scents would be likely, rather than where scents were actually located. What was presented as a test of drug dogs was actually a test of the dogs' handlers. The dogs failed because their handlers failed.Needless to say, the study was unpopular in the law enforcement community. Law enforcement K9 trainers denounced the study and refused to provide any more assistance to researchers. Lit calls this study -- one that pointed out the Clever Hans-esque performance of drug sniffing dogs -- a "career killer." This is what happens to research that doesn't conform with law enforcement's self-image.Helfers' testing process -- in which die rolls determine drug locations and eliminate tester bias -- doesn't conform with officers' apparently misplaced belief in their own "training and expertise."
Occasionally, the dice determine that there will be no drugs hidden at all — sometimes for several tests in a row. He recalls that happening at another certification event."There were some new teams that failed that sequence," Helfers says. "Because they didn't trust their dog."He says those handlers couldn't get past their expectation that drugs should be there. "I think they 'overworked' the car. Instead of going around once or twice and trusting their dog and watching their dog work, maybe they'd seen something that wasn't there," Helfers says.
This shows there's no question drug dogs respond to handlers. If dogs fail to respond, the animals are treated as untrustworthy by the same officers who refer to them as "probable cause on four legs." This is part of the problematic law enforcement mindset. A cop would never stop anyone who isn't a criminal… at least according to cops. This likely isn't a conscious thought, but rather the expected outcome of years of instruction that lead officers to view a wide swath of innocent behavior as inherently suspicious. (See also: too nervous, too calm, moving too much, moving too little, not looking directly at officers, looking directly at officers, traveling on any major highway, driving too fast/too slow/too perfect, ad nauseum.)There is no room in this mindset for the possibility that the person being questioned isn't a criminal. If a cop can't find anything, it's time for a drug dog to do a few laps around the person's car, luggage, etc. If there's still no "hit," the problem must be the dog rather than the lack of contraband. Why? Because the only reason a cop would be interested in this particular person is because this person is doing something illegal. All other possibilities are discarded. This is clearly and disturbingly illustrated by this statement from another K9 officer:
"There's been cars that my dog's hit on... and just because there wasn't a product in it, doesn't mean the dog can't smell it," says Gunnar Fulmer, a K9 officer with the Walla Walla Police Department. "[The drug odor] gets permeated in clothing, it gets permeated in the headliners in cars."[...]"The dogs are mainly used to confirm what we already suspect," says Fulmer. "When the dogs come out, about 99 percent of the time we get an alert. And it's because we already know what's in the car; we just need that confirmation to help us out with that."
Confirmation bias, plain as day, and yet Officer Fulmar seems completely unaware of the underlying thrust of his statement. Worse, officers like Fulmer remains opposed to tracking of K9 false hits or to the introduction of any form of scientific rigor to the process.
Handlers also point out that scientific neutrality is not something you can reasonably expect during traffic stops, since police are trained to act on their suspicions.
In short, officers want to have free rein to allow their hunches to develop into warrantless searches with the assistance of animals prone to responding to handlers' cues, rather than the existence of contraband. Better an innocent man have his vehicle tossed than an officer admit his K9 partner might be more interested in giving him what he wants (a warrantless search) than in detecting the presence (or non-presence) of drugs.This mindset permeates the entire process. When testing methods eliminate officers' involuntary cues or point out how frequently dogs respond to their handlers, it's the process that's wrong. Or the dogs. But never, under any circumstances, are the officers wrong. Law enforcement is willingly operating in its own massive blind spot, unable to fathom the slim possibility that the person they thought had drugs on them might not actually possess any drugs.And this doesn't even address the bottom feeders of law enforcement: officers who knowingly use K9s to skirt warrant requirements, telling citizens the dog "alerted" even when it hasn't or has only done so in response to the officer's prompts. All of this is excused when officers actually find drugs and the times they don't are waved away with tired Drug War cliches about the sacrifice of a few people's rights for the greater good.What this testing method shows is dogs (and their handlers) aren't to be trusted -- not without more data. If law enforcement can't admit to being wrong, they'll never look for ways to improve. Given what's been shown, drug dogs should not be treated as "probable cause on four legs." At best, they're walking confirmation bias -- self-serving tools of civil liberties circumvention.

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posted at: 12:00am on 30-Nov-2017
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Spinoff: Whatever The Reports About Russian Trolls Buying Ads Is Initially, It's Way, Way Worse

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With several reports about data breaches occurring over the past few years, we've developed something of a mantra around here: it's always, always worse than first reported. Yahoo just went through this having finally admitted that literally every email account was compromised way back in 2013 after having first said it was only a few hundred thousand accounts that were impacted. Deloitte and Equifax followed this same playbook with their own breaches, trickling out little by little just how wide an impact those hacks had achieved.And now we're seeing something of a spinoff of that mantra when it comes to the impact Russian trolls and the now infamous Internet Research Agency (IRA) advertising buys had on Facebook. You may recall that everything about this story seemed fairly minimalist in the initial reporting. The amount of money spent on the ad-buy itself was low enough to induce eyerolls from many. Facebook itself estimated that 11.4 million people saw ads bought by the IRA over the course of two years or so, which is not the kind of number that sets off all four alarms at the democracy firehouse. But Facebook has now given everyone a better idea of how much reach these ads actually had. And these numbers are far more alarming.

Facebook will inform lawmakers this week that roughly 126 million Americans may have been exposed to content generated on its platform by the Russian government-linked troll farm known as the Internet Research Agency between June 2015 and August 2017, CNN has learned. In written testimony to the Senate Judiciary Subcommittee on Crime and Terrorism, a copy of which was obtained by CNN, Facebook General Counsel Colin Stretch says that 29 million people were served content directly from the Internet Research Agency, and that after sharing among users is accounted for, a total of "approximately 126 million people" may have seen it.Facebook does not know, however, how many of those 126 million people actually saw one of those posts, or how many may have scrolled past it or simply not logged in on the day that one of the posts was being served in their News Feed.
The inability to nail down just how many eyeballs viewed these ads is, of course, due to the nature of social media. Buying the ads and targeting primary viewers of them is one thing, but it's the sharing and re-sharing of those ads that extend their reach exponentially. And it's quite nice of Facebook to come right out and admit that it actually has no idea how many people viewed these ads, even as it offers up estimates to the contrary.This is a feature of a social media platform like Facebook, not a bug. And, to the IRA's credit, it's a brilliant and inexpensive method for having some measure of influence in a foreign country's democracy. Facebook builds a sharing tool and these folks take advantage of the very nature of that tool.Which is what makes Facebook's attempt to downplay all of this all the more perplexing.
Nevertheless, Facebook says in its testimony that the posts from those pages represented "a tiny fraction of the overall content on Facebook.""This equals about four-thousandths of one percent (0.004%) of content in News Feed, or approximately 1 out of 23,000 pieces of content," Stretch writes. "Put another way, if each of these posts were a commercial on television, you'd have to watch more than 600 hours of television to see something from the IRA."
Except, as Facebook and Colin Stretch damned well know, Facebook doesn't operate anything remotely like television. Nor do its ads. The engagement process of those ads is wildly different. The ability to share those ads is not a feature of television. The granular targeting for eyeballs of those ads is simply not something that can be achieved by television advertising. The geographic targeting specifically, with an eye on influencing votes and the outcome of an election, is simply not a feature available to traditional television advertising. I know why Facebook wants to pretend otherwise in this instance, but it simply isn't true.So, even as some are trying to downplay the impact, and even the existence, of this foreign intervention into our election cycle, it's worth acknowledging that these things, like data breaches, tend to be worse than first reported. And no obfuscation from Facebook about how much like television it is can change the raw numbers, or its acknowledgement that it doesn't actually know how many people saw this stuff.

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posted at: 12:00am on 01-Nov-2017
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Industry Panel Highlights Growing Role of Native & Programmatic Advertising to Aid Targeting & Brand Safety

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Ecosystem representatives see advanced data analysis tools, more in-feed inventory as keys to engagement and scale at affordable prices. Advertising industry representatives are increasingly emphasizing native advertising and programmatic buying as pathways to more relevant, engaging and impactful campaigns, according to a series of insider interviews conducted by digital solutions provider Theorem and native advertising [...]

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posted at: 12:01am on 19-Oct-2017
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