posted about 12 hours ago on techdirt
As you may know, San Diego Comic Con is going on right now. And, like many techie/geeky people, while I've never attended the show, I always look forward to what comes out of the event. However, SDCC is increasingly looking like a massive censorial bully. A few years ago, we covered what we believed to be a fairly silly trademark dispute that SDCC had filed against the organizers of the Salt Lake Comic Con. We pointed out that trademarking "Comic Con" seemed silly and there was no problem with multiple Comic Con's happily co-existing. And, really, SDCC is the 800-lb gorilla here. It's the dominant comic con and has been for many, many years, as it seems to grow larger and larger. Other cities having their own comic conventions doesn't take away from SDCC (if anything they tend to reinforce the dominance of SDCC). Last month, in covering some news about the case still going on, we added a long (longer than the post itself...) editor's note about the truly weird situation in which SDCC had sent us a ridiculous subpoena demanding (among other things) any internal documents ever mentioning SDCC and implying that we had some sort of business relationship with the organizers of the SLC event (to be clear, we have zero relationship with anyone involved in either event -- we just found a story written about the case and used that as the basis for our posts on the topic). We pushed back on SDCC and noted that it really appeared that their fishing expedition was an attempt to intimidate the press from reporting on this case. It was... really strange. And now, with SDCC happening right now, the Hollywood Reporter has the latest on the case, in which SDCC has filed for one of the strangest legal gag orders I've seen in a while. I mean, I've seen these kinds of gag order requests filed by pro se plaintiffs, but rarely by competent lawyers working at giant famous law firms. You can read the demand for a protective order here or below, and if I had to summarize it, it's basically: "it's no fair that Salt Lake Comic Con is getting good press coverage and we're being mocked, so the court should silence them." I read through the document and I kept expecting more... and... that's really it. They literally complain that they're losing in "the court of public opinion" and argue that it's somehow unfair that one side is talking about this case publicly and they should be barred from any further conversation. And, it gives some more context to the paranoid view that was clear in the subpoena we received: SDCC and/or its lawyers are so focused on the negative press coverage that they seem to assume that something more nefarious is going on... beyond the basic likelihood that lots of people think this lawsuit is over-aggressive bullying by SDCC. Since the inception of this dispute, Defendants have brazenly engaged in a strategic public campaign to disparage SDCC and “win this case in the court of public opinion.” Defendants’ public campaign has included statements made in numerous press releases, news articles, on websites and on social media including Facebook and Twitter. Indeed, Defendants boast they have secured more than 200,000 media articles reporting on the case that are “favorable” to Defendants. Um, so? I have no idea what's wrong with someone trying to get their story out when they've been sued -- especially by a much larger entity. While some people choose not to go that path, there's nothing illegal about telling your story when you've been sued -- and nothing wrong with the media picking up on the story. It's news. SDCC goes on to claim that many of the statements made by the defendants in the case "are misleading, prejudicial, inflammatory or false." If that's the case, then go after them for defamation. Don't ask for a gag order. Defendants repeatedly litigate their case by using media outlets to mischaracterize the parties’ positions and taint the public’s perception regarding the issues in dispute in this case. Defendants’ media campaign is increasing in intensity as this case nears trial. Defendants’ goal is to win this case by using media outlets to tarnish the reputation of SDCC and taint the jury pool. As Defendant Bryan Brandenburg stated in one of Defendants’ many press releases, “I am asking for support from the community and all the powers of the Universe to bring victory to us in this case.” The "jury" tainting is the only aspect of any of this that seems to have a kernel of reasonableness -- but seems easily dealt with during jury selection, in which you ask the potential jurors if they're familiar with the dispute. Despite the supposed 200,000 articles on this (more on that in a moment...) I find it hard to believe that the average potential juror has heard about this dispute at all. Hell, we covered it and I had totally forgotten about it until we got that stupid subpoena (it was so ridiculous that I told the process server that he must have the wrong guy when he showed up at my front door). From here, SDCC's high priced fancy lawyers then admit that this goes against the basic First Amendment protections anyone has... but argues that's fine and dandy because -- *gosh* -- some people are being mean to them online. It is appropriate, however, to impose greater restrictions on the free speech rights of trial participants (such as parties and their attorneys) than on the rights of nonparticipants. Levine, 764 F.2d at 595. As the Ninth Circuit noted when considering a district court’s order restricting statements of trial participants, “several other courts have considered similar restraining orders. The overwhelming majority of those courts have upheld the restraining orders.” Id. at 596 (citing numerous cases in which restraining order on trial participants were upheld). Now, it's important to look at the details of the case that they cite as precedent for why they can gag the people they sued: Joel Levine v. US District Court for Central District. First off, that was a criminal case, not a civil one, and it involved the lawyer for one of the people who had been charged with espionage talking to the press, and the court arguing that in certain circumstances, you could issue a very narrow injunction on this type of thing. But there are lots of conditions on that and it's hard to see how those conditions apply to a civil dispute -- and especially one where the civil dispute involves a large organization (SDCC) suing a smaller one (SLCC) and then trying to further silence the small one. Indeed, the ruling in the Levine case specifically notes that because it's talking about lawyers the standards are different: As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings. But in this case, SDCC is trying to gag the actual defendants, not the lawyers. Further, the Levine opinion makes it clear that there should be strict scrutiny applied before issuing such a gag order, as it clearly is prior restraint. From the opinion: Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest,... (2) the order is narrowly drawn.... and (3) less restrictive alternatives are not available And, really, is "people are being mean about us online" really going to qualify as "a clear and present danger or a serious and imminent threat to a protected competing interest"? Come on! The rest of the request for the gag order is basically "damn, the other side has been effective in telling their story to the press. That's so unfair." Since the inception of this dispute, Defendants have engaged in a willful, open, and consistent strategy to win this case “in the court of public opinion.” See Edge Decl. Ex. 1, at p. 6. Through numerous press releases, articles, interviews with various media outlets, and the pervasive use of social media, Defendants (most notably Bryan Brandenburg) have been posting material and making statements that are designed to tarnish the reputation of SDCC and thereby influence the public (including the jury pool) regarding who should prevail in this litigation. In many instances, these statements are misleading, prejudicial, inflammatory, or false. Indeed, Defendants have made their strategy and intention clear from the outset. On August 11, 2014, shortly after the dispute between the parties began, Brandenburg commented extensively in an article in Inside Counsel titled “Salt Lake Comic Con founders fight back” with the subtitle “Use the court of public opinion to combat trademark infringement claims brought by the San Diego Comic-Con.” Id. The article paints Defendants as “David” to SDCC’s “Goliath,” and compares SDCC to Superman’s nemesis Lex Luthor. Brandenburg is credited in the article with the following statement “[a]fter consulting with their lawyers, the team behind the Salt Lake Comic Con knew they had strong legal ground to stand on, but they didn’t want to go to court, they wanted to win in the court of public opinion.” Id. (emphasis added). Brandenburg is further quoted as saying “[o]ur strategy was, if we are going to spend legal fees vs. legal fees, we wanted to be creative. We put it out to the public, challenging the cease and desist letter publically.” Id. at p. 7 (emphasis added) (noting “anecdotally, the fans seem to be on the side of Salt Lake’s David rather than San Diego’s Goliath”). Again, I'm trying to understand what the issue is here. Lots of people involved in court cases look to get support in the court of public opinion, but none of that really matters compared to the court of actual opinion: the court that is hearing the case. And, sure, the jury tainting bit is potentially an issue, but only if you really believe that the entire jury pool is going to be tainted by this. And that seems... difficult to believe. Of course, the whole "200,000" articles bit is part of the effort to argue that this info is widespread... but the details there are... lacking. It appears the vast majority of those 200,000 are... because the Associated Press wrote about the case and it has 160,000 distribution partners. Defendants boast that an article written by the Associated Press about this dispute was published in more than 160,000 news outlets worldwide and claim many media outlets have already declared Salt Lake Comic Con the winner in the court of public opinion. Okay... well, I went looking for the AP stories on the case... and they're pretty damn balanced (as you would expect from the AP). Here's one from 2005 that seems unlikely to bias anyone: Salt Lake City co-founder Bryan Brandenburg said the trademark announced Thursday will be decisive in the suit, but attorneys for the established San Diego Comic-Con disagree. The case appears headed for trial after settlement talks broke down earlier this month. And a more recent article: Settlement talks have broken down between the organizers of two pop-culture conventions in California and Utah known for guests' elaborate costumes, Salt Lake Comic Con officials said Tuesday. Both sides are asking a judge to decide the contest over naming rights, said Bryan Brandenburg, co-founder of Salt Lake Comic Con. "They want us to change our name," Brandenburg said. If the federal judge overseeing the case in San Diego doesn't side with either convention, the case could go before a jury later this year. Salt Lake has already spent nearly $1 million legal fees on the case. Those are both snippets from longer articles, but hardly proof that a jury will be biased. What about social media? SDCC whines that one of the organizers of the SLC event has 5,000 Twitter followers and the SLCC Twitter feed has 30,000: Importantly, Defendants’ public campaign is not limited to press releases and contact with news media outlets. Bryan Brandenburg has waged war against SDCC on social media as well. Brandenburg uses his Twitter feed, which has more than 5,200 followers, to comment on the dispute and disparage SDCC. See Edge Decl. Ex. 4. Similarly, Defendants use the Salt Lake Comic Con Twitter feed, which has more than 30,000 followers to comment on the dispute and accuse SDCC of fraud. I mean, 30,000 Twitter followers is nothing to sneeze at, but... uh... let's take a look at SDCC's Twitter followers, shall we? Now, I'm no math genius, but 1.55 million followers seems like... a wee bit more than 35,000 or so. But... but... but, SDCC replies: it's not fair that the SLC guys speak out because SDCC has specifically chosen not to comment: It is also worth noting that in the face of Defendants’ public attacks, SDCC has exercised incredible restraint and has not responded in kind. SDCC believes this dispute should be litigated and decided in this Court. However, if Defendants’ conduct goes unchecked, SDCC will have no choice but to defend itself publically in order to protect its reputation and set the record straight when Defendants disseminate false or misleading information. This type of public exchange regarding ongoing litigation is not productive or conducive to judicial integrity and SDCC hopes it can be avoided. Incredible restraint. We're so proud of you SDCC. Of course, it didn't stop you from sending a bogus subpoena to us (and who knows how many other media properties), potentially creating massive chilling effects on media companies reporting on your silly dispute. And, really, what exactly is the problem with responding publicly? If you don't want to, don't. If you do, do. But, if you're just concerned about the outcome of the court case, focus on that, not gagging anyone. Unfortunately... it appears that the court granted the gag order just days before SDCC was set to start. It does limit the request though, noting that the first two parts of the request would be unconstitutional prior restraint. That covers "any false or misleading statements about SDCC or any of its board members" or "any false or misleading statements about the merits of this dispute." What the judge did grant was a gag order on statements that "accuses, suggests, implies or states that SDCC lied and/or committed fraud," "any statement about the genericness of the term comic con," "any statement about whether the term comic con is descriptive" and "any statement about whether SDCC abandoned any trademark rights." I have trouble seeing how the first two are unconstitutional prior restraint, but the rest are allowed to be gagged -- especially something as mundane as discussing whether comic con is generic or descriptive. But, really, since the court apparently doesn't want anyone discussing that kind of thing, perhaps go ahead and have a discussion in the comments about that very question. And, in case SDCC's high priced lawyers are looking at this yet again, I'll remind you once again that we have no relationship of any kind with the organizers of the Salt Lake City event. We just don't like big bullies silencing people or filing questionable lawsuits. Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
It's no secret that Major League Baseball has proven themselves to be happy bullies regarding its trademarks. Between thinking it owns the letter 'W', forgetting that fair use exists, and its decision to bully amateur baseball leagues, the legal staff for MLB has shown that they can produce some really head-scratching moments. Which brings us to the present, in which Major League Baseball has asked for an extension to decide if it wants to oppose the new logo for Overwatch League, the eSports league dedicated to playing -- you guessed it -- Overwatch. As noted in a post on the website of law firm Morrison / Lee, the Overwatch League’s logo was approved for a trademark on March 28. Under the standard practice of the U.S. Patent and Trademark Office, this meant that any other parties with trademarks of their own had one month to respond to the logo—either to oppose it outright or to request more time to be able to oppose—before the logo’s trademark would actually be registered. Just one day before the end of that 30-day window, MLB filed for a 90-day extension to investigate the likeness of the OverwatchLeague’s logo to its own and potentially oppose it. Their request was considered valid and they were granted the extension immediately. The extension expires in mere days, so we're all going to find out very soon if MLB thinks it should oppose the trademark for the following logo, helpfully placed next to the MLB logo so you can decide for yourself how confusing any of this is. So, let's just get the obvious out of the way: these logos look nothing alike and will not cause any confusion. Period. Other than having a white outline of a "player" of each sport separating two colors and some words on the bottom, there's nothing even similar here. The colors are different, the outlines are different, the names of the leagues are both different and specifically descriptive. Confusion is simply not going to be a thing in this case. But let's say you're not convinced. Fine. Please tell me if the following logo also confuses you. Of course it doesn't. The NBA uses a logo with the same style and yet MLB is not at their throats over it. That's because this logo style for sports leagues is fairly standard and there hasn't been issues with confusion before. Perhaps as MLB's legal staff considers whether to oppose Overwatch League's logo, they'll happen to come across this post. If they do, I have but one bit of advice: don't. Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
The Maryland Court of Special Appeals has handed down a ruling [PDF] on quasi-cell site location info. The evidence offered by the state isn't being so much suppressed as it is being rejected. The information wasn't obtained illegally and no rights were violated. Rather, the court finds the evidence to be questionable, as in "evidence of what, exactly?" [via EvidenceProf Blog] The defendant in the case is charged with murder. Bashunn Phillips filed a motion to exclude the evidence, which was granted by the lower court. The state appealed. But there's nothing in it for the state. The "evidence" -- which is going to carry around scare quotes for the remainder of this post -- doesn't tie Phillips to anything. What was submitted isn't even the equivalent of coarse cell site location info. What the state submitted is something that can easily be obtained without a warrant… because it doesn't actually target any person at all. Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland’s Frye-Reed test for admissibility of evidence based on novel scientific methodology. Phillips acknowledged that cell phone tower “ping” evidence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone “ping” evidence. This is an interesting form of evidence -- something that amounts to cell tower hearsay. It's not like it's much trouble to obtain historical cell site data. This can be done without a warrant in Maryland, despite the recent ruling that requires warrants for Stingray deployment. Historical cell site location data is still a third-party record as far as the federal courts are concerned, so good faith, if nothing else, would have salvaged the warrantless harvesting of this data. For whatever reason, local law enforcement chose to have the FBI perform a "drive test" of cell towers in the area of the criminal activity, ten months after it happened. Perhaps law enforcement wanted to believe this data would indicate something and allowed itself to be persuaded by pitches like this one, from a company that offers "cell site forensics" to law enforcement agencies. Cell Site Analysis (CSA) the science of reconstructing the physical movements of a mobile telephone or telecommunication device. The evidence produced from such advanced investigations can be especially powerful in attributing contact between individuals, proximity to a scene of crime, patterns of movement of suspects, and testing the strength of alibi evidence. These assertions are undermined further down the page when the company explains the limits of drive tests: How accurate is Cell Site Analysis? This is a common question and there is no short answer. A number of factors come into play, including the type of signalling technology used (GSM/UMTS/CDMA), the local topology (man made or natural obstructions), the height of the antennae, type of CDRs available, physical location of other masts, angling of the transceivers, and degree of network activity (other subscribers). In some instances Cell Site Analysis can be accurate to a few metres, or sometimes a few streets (approximately a postcode). In other words, most likely not all that accurate. Pinning down a historical cell signal based on a 10-month post facto RF analysis is extremely iffy. Being within a few streets of a committed crime proves nothing. Given the number of variables, these tests are perhaps best left to their original purpose: providing cell service providers info on possible dead zones. That doesn't stop Afentis Forensics from wrapping up this paragraph in an overconfident manner. However, the technique remains an extremely powerful tool to test an alibi, to show that a number of people were together at a certain time, or to highlight the fact that a suspect was at a crime scene. The defense in this case pointed out drive tests are indicative of nothing: Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize “dropped calls,” but that they are not generally accepted in criminal investigations. Testifying for the defense, William Folson, accepted as an expert witness “in the field of cellular technology and historical cell site analysis” explained that he “consider[s] [drive tests] a waste of time” because “[t]hey add no value to the historical analysis of a cell phone.” He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations. It's almost impossible to find a drive test submitted as evidence in a criminal investigation. Granted, a search for this terminology is bound to miss a few cases, especially those behind the US government's PACER paywall, but the lack of hits suggests this "evidence" is very rarely submitted in criminal trials. What can be found suggests the method used by the FBI agent in this case is completely wrong. Ten months after the fact gives you nothing but garbage. [T]he coverage area of a cell tower should never be part of an analyst's mapping or court presentations unless that information comes directly from the wireless telephone company in the form of a radio propagation map or in some rare cases, in the form of drive testing that occurred contemporaneous to the date and time of the incident. Apparently, this "evidence" is a bit more popular in Australia. A paper by a legal aid group discusses several problems with using drive tests/RF signal propagation maps as evidence. Topography, weather, usage load, broadcast wattage, and overlap of cell coverage entail that to go to point A and make test calls now with the result that some or all of those test calls go through a specified sector of a particular base station does not ‘prove’ that at some other earlier time calls from point A went through that same specified sector. At that other time they may have gone through another sector. When a user places a call, the cell phone connects to the cell site with the strongest signal. Indoor or outdoor use of the phone and cell phone orientation to the user’s head can alter the strength of the signal. These are important considerations when attempting to recreate an alleged past event. In general it is often easier to be more definitive about the converse proposition, namely that from the Cell ID information it is unlikely that the call was made (or received) outside a specified area. Access from the Telcos to propagation prediction modelling (ie for both ‘dominant’ and ‘possible’ coverage of relevant sectors) is helpful but insufficient to be certain about phone location. In this context of qualified uncertainty, it is highly misleading to infer positive location with the phrase ‘the Cell ID identified with a call is consistent with the call being made in that location.’ In the Maryland case, the state offered up two witnesses to rebut the "this data doesn't prove anything" defense argument. Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an “expert in the field of historical cell site analysis, cellular technology, and [] radio frequency drive testing for cell phone mapping.” Agent Fennern opined that factors such as weather only have a “minimal” impact on radio frequency strength. He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent. The State also offered the testimony of T-Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for “competitive analysis reasons.” He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency “[f]ootprints remain consistent as long as nothing major has changed[,]” referring to the physical layout of the cell site, such as antennas and equipment. He stated that the maximum variation he had seen for a footprint was a quarter mile. Even if all the variables stay the same, the only thing that can truthfully be said is they're possibly accurate within a quarter mile. If that's the case, it's impossible to claim someone was at the scene of a crime using nothing more than an RF propagation map. And, if the arguments made by the defendant are any indication, the state never bothered obtaining or submitting historical cell site location info (the "ping" evidence). The appeals court agrees with the lower court's opinion: the state can't show anyone has accepted drive tests as a reliable source of evidence in criminal cases. After determining that the digital forensic science field is the relevant scientific community, the court found that the State’s experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State’s experts were not qualified to testify because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5-702. This case is exceptionally weird, considering local law enforcement had help from the FBI. Unless the defendant's provider was extremely proactive in scrapping old location data and/or was unresponsive to subpoenas for call records, the state should have had something better than a drive test to place the defendant at the scene. But this is the only evidence the defendant sought to exclude, which suggests other cell records were never introduced. If so, this is a case where law enforcement had several options, but for some reason chose to use the worst one. Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
Lots of anti-harassment laws have been written over the years. The creation of these laws has sped up as legislators look to find some way of handling cyberbullying and online harassment. These laws have been uniformly bad. Those that make it to governors' desks are often struck down shortly thereafter by courts. The problem is legislators try to target certain behavior with these laws, but seldom consider the amount of protected speech that will be caught in the laws' webbing. Or maybe these thoughts never enter the minds of legislators, who tend to write these bills badly and broadly. We've seen multiple statutes come tumbling down after a Constitutional challenge. Eugene Volokh -- along with Venkat Balasubramani -- is challenging Washington state's harassment law over its stripping of free speech protections. A Washington state statute criminalizes (among other things) “mak[ing] an electronic communication to … a third party” “with intent to harass, … torment, or embarrass any other person” if the communication is made “[a]nonymously or repeatedly.” This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to “harass,” “torment” or “embarrass.” There are several problems with the law, not the least of which is its addition of anonymity to the list of criminal stipulation. As Volokh notes, the law could be used to imprison bloggers who repeatedly criticize politicians -- an activity the term "blogging" is pretty much synonymous with. Raising the challenge is Richard Rynearson, a retired Air Force major who has repeatedly criticized politicians for failing to condemn the 2012 National Defense Authorization Act, which authorizes the indefinite detention of US citizens thanks to our engagement in the Forever War on Terrorism. And it's no longer a hypothetical question of whether Washington's anti-harassment law can be used to prosecute people for criticizing politicians. There are potential criminal charges awaiting Rynearson, thanks to a local politician's decision to leverage this law against a critic. Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don't threaten — Clarence Moriwaki, a key activist behind the formation of the Bainbridge Island Japanese American Exclusion Memorial, commemorating the World War II internment of Japanese Americans. He insists that those who condemn the internment should also strongly speak out against the government's indefinite detention powers in the war on terror, but that Moriwaki hasn't. After Moriwaki obtained a temporary restraining order and filed a police report last spring, saying he was being harassed by incessant text messages and Facebook posts, investigators recommended that Rynearson be charged with cyberstalking. A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged. Volokh and Balasubramani have filed a motion [PDF] asking the court for an immediate injunction preventing the enforcement of the law while it's being challenged in court. Hopefully, this temporary injunction will be followed by a permanent ban on enforcement, because it's an unconstitutional law. The breadth of the statute extends in several dimensions. First, the intent provision — sweeping in speech that a jury might find was intended to “harass, intimidate, torment, or embarrass any other person” — reaches broadly. The terms “harass, intimidate, torment, or embarrass” are not defined by the statute. The Washington Supreme Court, in a case examining the similarly-worded telephone-harassment statute, has defined “intimidate” to include “compel[ling] to action or inaction (as by threats),” Seattle v. Huff, 767 P.2d 572, 576 (Wash. 1989), but it did not provide a definition for the other proscribed purposes. When statutory terms are undefined, however, Washington courts generally give them their ordinary meaning, including the dictionary definition. See id. (defining “intimidate” by reference to definition in Webster’s Third New International Dictionary). The dictionary definition of “harass” includes “to vex, trouble, or annoy continually or chronically,” Webster’s Third New International Dictionary, Unabridged (online ed. 2017), and the meaning of “torment” includes “to cause worry or vexation to,” id. Finally, “embarrass” means “to cause to experience a state of self-conscious distress.” Id. As a result, even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently “vex” or “annoy” those public figures, or to embarrass or make them “self-conscious” about something. The granting of a temporary injunction rests on the plaintiff's ability to prove he's being harmed. To date, Rynearson hasn't been arrested, but the local prosecutors have refused to say whether they're taking any action or are dropping the complaint against the blogger. So, it's not a case of hypotheticals. Others criticized by Rynearson could file similar complaints under the harassment law, hoping to nudge prosecutors towards bringing criminal charges. The permaban, however, hinges on the First Amendment. Given the language used in the law, it certainly doesn't appear the statute can be read to steer clear of infringements on protected speech. This law was passed in 2004, but no one felt like abusing it to silence criticism until just recently. Now, the law will finally be examined by a federal court where it's unlikely to withstand Constitutional scrutiny. Permalink | Comments | Email This Story

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posted about 21 hours ago on techdirt
At some point, even the dimmest of lawyers will understand that parody and fair use are not infringement. There may be all sorts of reasons why big companies send dubious cease-and-desist letters over protected speech. Sometimes it's because lawyers are misinformed. Sometimes it's to silence criticism. But in an odd and all around hilarious exchange between the company that owns the Olive Garden chain of restaurants and the owner of a website that reviews Olive Garden dishes, I can't think of a single reason why a sane lawyer would want to fire off the following letter to allofgarden.com. To Whom It May Concern: As you are likely aware, Darden is a full-service restaurant company, and owns and operates over 1,500 restaurants through subsidiaries under the Olive Garden®, LongHorn Steakhouse®, The Capital Grille®, Yard House®, Seasons 52®, Bahama Breeze®, and Eddie V's Prime Seafood® brands and has a portfolio of over 650 trademarks in over 70 countries related to the same (collectively "Trademarks”.) In connection with Darden Corporation’s proprietary rights over its famous trademark(s) we are notifying you of the following: Darden Corporation has recently learned that the trademark Olive Garden appears as a metatag, keyword, visible or hidden text on the web site(s) located at the below listed URL(s) without having obtained prior written authorization from Darden Corporation. This practice infringes upon the exclusive intellectual property rights of Darden Corporation. http://allofgarden.com/ As a trademark owner, Darden Corporation is obligated to enforce its rights by taking action to ensure that others do not use its trademarks without permission. Unauthorized use of the trademark(s) could create a likelihood of confusion with Darden Corporation’s trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services. In light of the above, we request that you respond to this e-mail within ten (10) days, informing us that you have removed all metatags, keywords, visible or hidden texts including trademark(s) presently appearing on the above-cited website(s) and any other website(s), or draw this issue to the attention of the appropriate person(s). Thank you in advance for your anticipated cooperation in this matter. Sincerely, Darden Corporation [email protected] There's much to unpack there. First, claiming trademark infringement for use of marks in metatags and simple text within a website is a highly dubious practice. But when even the most cursory glance at allofgarden.com makes it clear that it's a site dedicated to reviewing Olive Garden, it should be immediately obvious that even the most direct reference to the chain would be squarely covered by fair use. Even the name of the site, something of a homonym of the Olive Garden name, would be covered as parody, if not as part of the site's status as a review site. Even more strangely, it's not as though this is one of those so-called "sucks sites" dedicated to simply slamming Olive Garden at every turn. Some reviews, such as this one, are purely positive, devoid of snark at all. But if Malone is a talented reviewer of chain-based "Italian" food, he's a savant in responding to frivolous legal threats, as he has happily posted his response on his website for all to see. Mr. Forcements -- may I call you Branden? Since this an asynchronous mode of communication, I'm going to assume you are magnanimously acquiescing, and I will refer to you as Branden forthwith -- I received your email yesterday. I am not aware of any law against reviewing food and describing it using the name of the company from which it was procured. Some might even call it Nominative Fair Use. I have helpfully included a link to Wikipedia™, The Free Encyclopedia™, for more information on this concept, in case you are new. Just click on the blue words to access the HyperLink™, and you will be transported there in great haste. With that in mind, can you be more specific about what you would like me to do? If you want me to remove references to the Olive Garden from my blog, which, I remind you, solely consists of references to Olive Garden, I'm afraid I must decline. If you are asking me to simply add TradeMark® Symbols™ I must also decline, as I do not know the alt keycode for writing them. Perhaps you are asking me to take down my blog entirely. In doing so, Darden Corporation would commit its largest crime against humanity since they started charging extra for toppings. Seriously, $2.99 for two lousy meatballs? And you're saying I ripped you off? Please respond within nine (9) days, in limerick form. Wishing the whole Forcements family a pleasant day, Vincent "Vino" Malone Olive Garden Connoisseur Age 29 and a Half Every part of this response is pure gold, from the intentional misreading of the emailer's name to the refusal to comply with every request and links with the reasons why. Malone is being a pleasant pain in the ass in this response, yes, but it's funny. It's also now public, thanks to Malone's posting of it. And, most importantly, the request from Olive Garden is a silly one when viewed with an eye towards the law. Still, I have to admit I'm slightly hoping that Branden Forcements replies in limerick form as requested, just to see what they come up with. If Olive Garden wants to get on the right side of thing quickly, that limerick will be in the form of an apology. Permalink | Comments | Email This Story

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Learn how to use the fundamental building blocks of the Web with the $29 Beginner Web Development Bundle. The four courses cover HTML, CSS, JavaScript and PHP. You'll learn how to work with these tools through a series of lectures and hands-on projects, and will finish with a firmer grasp of the basics of web development. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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It only took a month for a court to dump a bogus defamation suit brought by someone who sued one person for things someone else said. Jim Myers wrote an article for The Tennessean discussing changes made to a culinary arts program. The former director of the program -- Thomas Loftis -- didn't like characterizations made in the article. For reasons known only to him and his lawyers, Loftis sued the new director of the culinary arts program, rather than the columnist or the paper that published his article. The lawsuit is now dead, thanks to a swift, verbal ruling by the presiding judge. Following a couple of complaints and motions to dismiss, attorney Daniel Horowitz has secured a win for his client. In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.” Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.” Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation. The only thing going for Loftis is the swift dismissal, which means he won't be out much in terms of legal fees. Whatever Loftis did end up paying for his own counsel can hardly be considered money well-spent. His lawsuit seemed to be motivated out of professional jealousy, rather than any sincere belief his reputation had been harmed. But that sort of personal issue shouldn't be allowed to make its way into court: The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media. Despite multiple rewrites, Loftis' lawsuit never managed to tie the defendant -- the new arts director the Tennessean columnist considered to be a huge improvement over his predecessor -- to any actual defamation, much less any disparaging words that actually came out of the new culinary director's mouth. The reply motion [PDF] by Rayburn is worth a read, simply because it hammers home just how objectively terrible this lawsuit is. Fortunately, the plaintiff wasn't given much of a chance to annoy the target of his bogus suit and certainly won't be leaving him in a worse financial situation. Permalink | Comments | Email This Story

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You might recall that when HBO comedian John Oliver originally addressed net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of real net neutrality rules. When Oliver revisited the topic last May to discuss FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. Both instances did a fantastic job highlighting how satire often tops traditional journalism in driving interest toward what can often be rather wonky tech policy issues. But then something weird happened. The FCC issued a statement (pdf) by FCC Chief Information Officer David Bray, who proclaimed that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees: "Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC." But this claim that a DDoS disabled the FCC website at coincidentally the exact same time Oliver's segment was airing raised a few eyebrows among security experts, who noted they saw none of the usual online indicators pointing to a DDoS attack, nor any evidence of an attack via publicly-available logs. Security analysts noted the FCC provided no evidence to support their claim of an attack, and the agency has consistently and repeatedly refused to offer any additional hard detail, despite being prodded by several Senators on the subject. Hoping to glean a little more information, Gizmodo recently filed a FOIA request asking for server logs or documents offering more insight into this supposed attack. What they found is that the FCC never conducted said "analysis" of the attack in the first place: "The FCC now tells Gizmodo, however, that it holds no records of such an analysis ever being performed on its public comment system; the agency claims that while its IT staff observed a cyberattack taking place, those observations “did not result in written documentation." Gizmodo's FOIA request asked for "all communications between employees in the offices of Chairman Ajit Pai and Commissioner Michael O’Rielly" concerning the alleged cyberattack, as well as copies of "any records related to the FCC 'analysis' (cited in Dr. Bray’s statement) that concluded a DDoS attack had taken place." What they got instead was 17 pages of heavy redactions and nonsense (including several user complaints about what Pai's been up to) and a rotating crop of excuses for why the FCC couldn't be more transparent about the alleged attack: "The agency cited a variety of reasons for why it was refusing to release 209 documents related to the purported DDoS attack. Some of the records, it says, contain “trade secrets and commercial or financial information” which it deems “privileged or confidential,” citing the Trade Secrets Act. Other documents were withheld in an effort to “prevent injury to the quality of agency decisions,” citing a FOIA exemption that typically protects attorney-client communications but also extends to documents that reflect “advisory opinions, recommendations and deliberations” as part of the government’s decision-making processes." It didn't take long for news outlets to highlight the FCC's refusal to be clear about what happened, prompting the agency to e-mail this press release to reporters, deriding said reports as "completely irresponsible": "Media reports claiming that the FCC lacks written documentation of its analysis of the May 7-8 non-traditional DDoS attack that took place against our electronic comment filing system are categorically false. In its FOIA request, Gizmodo requested records related to the FCC analysis cited in Dr. David Bray’s May 8 public statement about this attack. Given that the Commission’s IT professionals were in the midst of addressing the attack on May 8, that analysis was not reduced to writing. However, subsequent analysis, once the incident had concluded, was put in writing. Indeed, analysis was made public in response to a request from Capitol Hill. “Moreover, the FCC has never stated that it lacks any documentation of this DDoS attack itself. And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners." But while the FCC's statement proclaims the agency has oodles of documentation detailing the supposed DDoS (it just doesn't want to reveal it), that's the precise opposite of what the agency is telling reporters that have filed FOIA requests to get a hold of it: The FCC in response to FoIA request: No "written documentation." FCC PR: "voluminous documentation" that we refused to provide to Gizmodo pic.twitter.com/iMKPMnTJKC — The real Jon Brodkin (@jbrodkin) July 20, 2017 So it seems like there's two options here. One is that there really was some kind of non-traditional DDoS attack, but the agency failed to conduct a detailed written analysis of what caused it, and despite boss Ajit Pai's breathless dedication to transparency, has zero interest in being up front about it. The other possibility is the entire attack narrative was poorly-constructed bullshit, feebly designed to try and deflate the "John Oliver effect" in the media and downplay the volume of consumers pissed off about what Ajit Pai is up to. And now that Senators and reporters are pushing harder for actual evidence, the FCC is having to engage in some comical tap dancing to obfuscate the fact the fact it made up a DDOS as a lame and uneffective PR ploy. The former's certainly possible, but the latter's also in character. Either way, expect this and the agency's willful disregard of comment proceeding fraud to pop up in the inevitable lawsuits awaiting Ajit Pai when he rams through the final net neutrality killing vote later this year. Permalink | Comments | Email This Story

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Last month we wrote about the tragic and hugely problematic ruling in Canada that said a Canadian court could order global censorship of content it deems to be illegal. As lots of people pointed out, that is going to have dangerous consequences for speech around the world. If you accept that Canada can censor the global internet, what's to stop China, Iran or Russia from claiming the same rights? And now we'll get to find out if the EU similarly believes in the ability of one country to demand global censorship online. In another case that we've been following, French data protection officials had been demanding Google censor content globally, and Google had been refusing. Now, the issue has been sent to the EU Court of Justice, the very same court who created this mess three years ago in saying that Google was subject to "right to be forgotten" claims. Google had reasonably interpreted the law to just apply in the EU (where the jurisdiction existed). But now the same court will decide if EU officials can censor globally. One hopes that the sheer absurdity of the situation may lead the CJEU to start to recognize just how problematic its ruling was back in 2014, but somehow, that's unlikely. We'll certainly be paying attention to this case... Permalink | Comments | Email This Story

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If you need any more proof the NYPD hates transparency, you need look no further than Keegan Stephan's victory in a Freedom of Information Law (FOIL) lawsuit: Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law: https://t.co/Pgldj018j5 pic.twitter.com/FLP9Xalmhh — Keegan Stephan (@KeeganNYC) June 29, 2017 If you can't see the tweet, it says: Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law This is what we measure success with when it comes to FOIL and the NYPD: a victory is the department AGREEING TO FOLLOW THE LAW. Stephan has been seeking information on the department's use of a sound cannon for crowd control. The NYPD, of course, had no interest in releasing these records. Central to the settlement is the department agreeing to accept FOI requests by email, something it's supposed to have been doing for more than a decade. The man, Keegan Stephan, said in the suit that the department failed to justify withholding the records he requested and that a “policy and practice” not to accept or respond to Freedom of Information requests by email violated a 2006 provision of New York State law. Mr. Stephan also argued that by not allowing email requests, the police had increased “the time, effort, and expense involved” in obtaining records. The department's settlement contains no admission of wrongdoing -- something common to government lawsuit settlements. This means it will accept zero responsibility for a decade-long run of FOI statute violations. The "new" email request system will aid more New Yorkers in having their requests ignored by the NYPD. The NYPD's future use of email for FOI responses will ensure requesters are informed of denials in a much speedier fashion. The portal the NYPD is setting up on its website will provide instructions for requesters, as well as information on how to challenge denials and non-responses. If nothing else, the NYPD will be forced to follow the letter of the law a bit more closely, but it will take far more than a steady stream of FOI lawsuits for it to approach the law's spirit. The NYPD has made a opacity a cottage industry. It has been dubbed the least responsive government agency in the US, worse than the CIA, FBI and NSA. It has developed an in-house classification system that allows pretty much anyone to designate almost any document "top secret" for almost any reason, and reached its nadir when it refused to release a copy of its FOIL response guidelines to a FOIL requester. But this is an ugly victory -- one that should subject the department to a steady stream of ridicule. It takes a lawsuit to make a law enforcement agency follow the law. That's just depressing. Permalink | Comments | Email This Story

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A Massachusetts lawmaker is looking to give law enforcement another way to bust people and seize vehicles. Modify a vehicle you own in a certain way and you can expect to never see that vehicle again. Blame it on the war on drugs and pressure from law enforcement lobbying. Stephan Hay, a Democrat state representative for Fitchburg, has introduced a bill that would criminalize operating a vehicle with a hidden compartment designed for the purpose of secretly transporting drugs and related contraband, equipment, currency, or weapons. The bill, H.1266, separately criminalizes the process of altering a vehicle with the intent of creating such hidden compartments. In each case the bill calls for a two-year mandatory minimum sentence, five years for subsequent offenses. The bill also allows police to seize the modified vehicle. Notably, the bill wouldn't limit "secret compartment" busts to those containing contraband. The presence of an aftermarket "concealed storage space" is enough to trigger an arrest and seizure. The state would have to prove there was intent to use the compartment to store contraband, but the wording in the bill [PDF] flips the burden of proof when it comes to the vehicle itself. Proof that a conveyance contains a hidden compartment as defined in this section shall be prima facie evidence that the conveyance was used intended for use in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances. As Reason's Scott Shackford points out, Massachusetts already has the worst forfeiture laws in the nation. This built-in presumption of guilt only makes this worse. Defendants will start out in the hole, asked to prove a negative simply to have a small shot at recovering their seized vehicle. Unknowingly purchase someone's drug-running vehicle? It's as good as gone if the police discover any secret compartments. Seeing as criminal charges would result in something more aligned with due process, it will come as zero surprise if the law is used to seize vehicles but leave prima facie "drug traffickers" otherwise unharmed. Permalink | Comments | Email This Story

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If you're not familiar with Perfect 10 by now, it is a company that billed itself as a smutty porn magazine that was actually mostly in the far more immoral business of copyright trolling. Rather than peddling skin, Perfect 10 mostly peddled laughably frivolous copyright lawsuits against roughly everyone, managing in this process to suffer legal losses to Google, CCBill, Amazon, and Visa among others. One of those others was Usenet provider Giganews, which won big in its court battle with Perfect 10 to the tune of the latter being ordered to pay over $5 million in attorney's fees to the former. Perfect 10 immediately cried poor at that point, stating it didn't have the money to cover the award, leading the court to put its assets in receivership. At the time, Mike wrote: In the most recent Perfect 10 case, we noted that Perfect 10 lost big time earlier this year. It had sued Usenet provider Giganews, but the court found that Perfect 10's legal arguments made no sense at all, and sided completely with Giganews. Most importantly, the court upheld the multimillion fee award that the court had dumped on Perfect 10 for filing such a bogus lawsuit. It turns out that Perfect 10 doesn't seem to have that kind of money, so all of its assets are now controlled by a court-appointed receiver. Those assets were supposed to be sold off in order to pay the court ordered award to Giganews. According to a new lawsuit filed by Giganews against Perfect 10 not a single cent has been paid, with the porn company instead choosing to play a silly game of hide-the-assets in order to avoid having them sold off. The claims center around an alleged conspiracy in which Perfect 10 transferred its funds and assets to Zada. “As of now (over two years since the judgment), Perfect 10 has not voluntarily paid any amount of the judgment,” the complaint begins. “Instead, Perfect 10, through the unlawful acts of Zada and in conspiracy with him, has intentionally avoided satisfaction of the judgment through a series of fraudulent transfers of Perfect 10’s corporate assets to Zada’s personal possession.” Norman Zada would be the owner of Perfect 10. The suit seeks $20 million for fraud and punitive damages, detailing how Zada made a habit since 2014, when the lawsuits including that against Giganews began to clearly go south for Perfect 10, of selling Perfect 10 physical assets for below-market sums of money and transferring company cash into his personal bank accounts. We're talking about millions of dollars in cash and assets moving around, as a court order to pay Giganews loomed over it all. This, to be as clear as possible, is not the sort of thing that the court looks favorably upon. Giganews says that Perfect 10 transferred at least $1.75m in cash to Zada. Then, within weeks of the court ordering Perfect 10 to pay $5.6m in attorneys fees and costs, Giganews says that Zada “fraudulently transferred substantially all of Perfect 10’s physical assets” to himself for an amount that did not represent their true value. Those assets included a car, furniture, and computer servers. Zada, for his part, has the following defense for himself on the record. When Zada was questioned why the transfers took place, he admitted that “it would have been totally disruptive to have those [assets] seized” in satisfaction of the judgment. Indeed, the complaint alleges that the assets never moved physical location. That's a fairly clear admission for defrauding the court with regard to its order to pay Giganews. Giganews is asking for the $1.75 million in cash that had been transferred and interest beginning from March of 2015. The fangs are clearly out, but one can hardly blame Giganews, which had to defend itself against what was clearly a frivolous lawsuit filed on behalf of a company that can't seem to figure out how to look anything other than shady in the extreme. To that end, Giganews is asking for another $20 million in punitive and exemplary damages. Here's hoping they get it. Permalink | Comments | Email This Story

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A few weeks ago, we warned about a dangerous new German law that would fine social media companies if they didn't magically block "hate speech" on their platforms. As we pointed out, this would lead to widespread censorship, as the risk of liability for leaving up even borderline speech would be massive. And, equally important, this would embolden oppressive, dictatorial and autocratic regimes to press on with their own crackdowns on free speech by using laws like this one and claiming that they're doing the exact same thing as supposedly democratic nations like Germany. We didn't have to wait long. Reporters Without Borders points us to the news that Russia has now rushed out a bill that is basically a cut and paste of the German law: Reporters Without Borders (RSF) condemns a Russian bill that would force social networks to remove “unlawful” content within 24 hours of notification. It is based very closely on a law that was adopted in Germany on 30 June. The Russian bill shows that when leading democracies devise draconian legislation, they provide repressive regimes with ideas. Submitted to the Duma on 12 July by members of President Vladimir Putin’s United Russia party, the bill’s references to the German law are explicit. Just like the German bill, the Russian bill would allow anyone to claim certain content is "unlawful" and then the platforms would have 24 hours to remove the content or face massive fines. This will, inevitably, enable much greater control and censorship (already an issue in Russia). But it will be more difficult to argue that Russia is doing something "bad" here as the Russians will quickly point out that Germany has identical legislation. And I wouldn't be surprised to see other countries, such as Iran or China, put in place similar "laws" themselves. Permalink | Comments | Email This Story

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Oh, James Woods. He has now "settled" the ridiculous lawsuit he filed against someone mocking him on Twitter... but is still fighting a fairly similar lawsuit that was filed against him -- complaining that it's an attack on his free speech rights. If you don't recall, the rather opinionated actor sued a trollish Twitter user who went by the name Abe List, after Abe referred to Woods as a "cocaine addict" in a clearly hyperbolic tweet. As the case progressed, "Abe List" died unexpectedly, leading to Woods obnoxiously gloating on Twitter that List had "dropped" his anti-SLAPP appeal, and when people pointed out it was only because List had died, Woods demonstrated what kind of character he is by cheering on the fact that someone died. Nice guy, huh? And, of course, that leaves out that Woods had a history of tweeting similarly hyperbolic statements about others who he disagreed with: So, Woods was already looking fairly hypocritical here, but as you'll see soon, that level of hypocrisy is becoming more pronounced. Either way, after "List" died, you might think that Woods would just drop the case, but given his clear animosity (see tweet above) towards a guy making a silly statement on Twitter, he kept the case going in order to unmask the real identity of "List" and to potentially pursue the case against his estate. As first revealed by Eriq Gardner at THREsq, Woods has finally agreed to settle the case, but at least part of the terms of the settlement is that he got attorney Ken "Popehat" White (who you probably know if you're reading Techdirt, and who has represented us at times) to write a silly letter stating what basically everyone in the world already knew: specifically that when Abe List referred to Woods as a "cocaine addict" it wasn't meant to be taken literally: From attorney Kenneth White, the letter states, "On behalf of my client — the defendant referred to as 'Abe List' in the lawsuit filed by James Woods — and my client's surviving family, I acknowledge that they are not aware of any facts to suggest that Mr. Woods has ever been a cocaine addict or used any other drugs." Frankly, this feels more like an attempt to try to humiliate Ken (which, uh, generally isn't a good idea), but the end result just makes Woods look ridiculously and almost comically petty. Oh, and back to the hypocrisy thing. Earlier this year, we also noted, with some amount of irony, that Woods was now on the receiving end of a very similar lawsuit. A woman, Portia Boulger, sued Woods for calling her a "Nazi" in a tweet that was actually a case of mistaken identity. As we pointed out, unlike some people, we can remain true to our principles, and we believe that Boulger's lawsuit against Woods is just as misguided and just as much as a SLAPP suit as Woods' lawsuit was against List. Either way, in that case, Woods' lawyers filed a motion for judgment on the pleadings last month, which makes a bunch of statements that sound a little odd, considering they're on behalf of someone who was (at the time) still engaged in litigation against someone who jokingly called him a "cocaine addict" on Twitter. This case is simply an unsuccessful attempt by Plaintiff to quell the free speech rights of Mr. Woods, a conservative actor. Indeed, Plaintiff's claims for defamation and false light/invasion of privacy both fail as a matter of law. First, Plaintiffs claim for defamation fails as a matter of law because Mr. Woods' allegedly defamatory question is not a statement of fact. Nor would a reasonable reader interpret Mr. Woods' question--seeking clarification--as inferring any factual content. Likewise, Plaintiff's false light/invasion of privacy claim fails as a matter of law because no misrepresentation regarding Plaintiff's character, history, activities or beliefs is present in Mr. Woods' tweets, much less a misrepresentation that would warrant a reasonable person, in Plaintiff's position, to take the serious offense required to succeed on a false light/invasion of privacy claim. That's... an interesting way of saying what happened. As a reminder, here's how THResq described the tweet that Woods sent: This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” So, yeah, his tweet was a "question" but a "reasonable person" would be unlikely to think that Woods was "seeking clarification." Rather most reasonable persons would likely believe that Woods was implying strongly that Boulger, a Bernie Sanders supporter, had gone to a Trump rally and pretended to be a Nazi supporter of Trump (which she had not). But, really, it's the "reasonable person" line that's the kicker here. Because that same "reasonable person" looking at Abe List's tweets would similarly have been just as unlikely "to take serious offense" to that tweet. And, yes, there's something fairly ridiculous for Woods to be whining that someone is trying to "quell" his free speech (even if true) when he was doing something quite similar at the very same time. Later in the motion, Woods' lawyers (properly) point out that "the general context of the statement" and the "broader context in which the statement appears" are a critical element in determining defamation -- which, again, seems silly given that same test, applied to the guy Woods' sued would likely have worked very much against Woods' defamation case. Finally the truly amazing argument, given Woods' lawsuit against List. I'll just post the paragraph here: Likewise, Mr. Woods' allegedly defamatory question appeared on his personal Twitter account, in the midst of a highly-contested and widely-covered presidential political campaign.... A personal social media account, such as an individual's Twitter account, cannot reasonably be interpreted as a forum for fact reporting.... Rather, such a context is akin to a forum or editorial section of a newspaper where a reader would expect to see statements of opinion.... Additionally, Twitter, a social media platform powered by individual user accounts, can be described even more so as a "well established genre of opinionated speech as it is commonly known the average Twitter user is not "normally engaged in the business of factual reporting or news dissemination." What the actual fuck, James? I mean, I agree. That paragraph is 100% accurate. But it sure seems... massively hypocritical to make that argument while suing someone for their similarly silly tweet about you. Either way, if you're going to go around suing people for trollish tweets, perhaps don't go around posting trollish tweets yourself. And, if you do and even continue to pursue them after their death, don't then argue in a different lawsuit a bunch of points that totally undermine your own lawsuit. I mean, unless you want to be called out as a raging hypocrite. Permalink | Comments | Email This Story

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Project management is a booming field, but you may have heard that there isn't just one way to manage a project. There are a wide variety of disciplines and methodologies employed across different industries. The $59 IT Process and Project Management Super Bundle is packed with 11 courses covering different IT and project management methodologies including CompTIA Project+, PRINCE2, Six Sigma, Scrum, Agile and more. Each course also helps to prepare you to take various certification exams that are widely recognized in the field. Go through them all at your own pace over one year and gain a solid understanding of Process and Project Management. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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It's always been true: if you give a government agency increased powers for a limited purpose, the limitations and the purpose will soon be shrugged off. The ACLU of Massachusetts is trying to get some prosecutorial power reeled back in, thanks to administrative subpoena mission creep. When prosecutors first pushed for the power to seize telephone and Internet records themselves, bypassing the need for a judge to approve a warrant, they argued the power was necessary to help them quickly track down missing children and sexual predators. But records obtained by the American Civil Liberties Union show prosecutors have used that significant subpoena power hundreds of times a year in routine investigations related to larceny, check fraud, assault, and other common crimes. [...] In one case cited by the [ACLU], Suffolk District Attorney Daniel F. Conley issued a subpoena in 2011 to find the subscriber information for several Twitter handles and for anyone who used the hashtag #BostonPD after the police removed an Occupy Boston encampment in Dewey Square. It is the same here as it is with everything else. Stingrays were supposed to be counterterrorism devices, what with them being repurposed war gear. But then it was homicides. Then drug dealers. Then pretty much anyone cops wanted to locate, even if all they'd done was steal $60 of fast food. Likewise, National Security Letters. The clue is in the name. Maybe they're only being used for national security purposes, but if so, America is under constant threat from prolific terrorists. The FBI issues thousands of these a year. And we know very little about the underlying crimes, thanks to indefinite gag orders and loads of government court filings still under seal. The subpoenas discussed here are also administrative. This means prosecutors write the paperwork themselves and run it past no one before serving it to internet service providers and phone companies. They also do this thousands of times a year. Four other district attorneys disclosed a limited amount of data. But Healey and Middlesex District Attorney Marian T. Ryan turned over a large trove of information that revealed how frequently the subpoenas are used. Ryan’s office said it issued more than 2,400 over the last three years, while Healey’s office said it sent more than 1,200 during the period. [...] District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years... All for serious crimes, right? Ryan’s office said the subpoenas were used to investigate crimes ranging from annoying calls and destruction of property to stabbing and rape of a child. This isn't just irritating the ACLU. It's also irritating legislators who felt they were misled by prosecutors during the push for expanded power. Senator Cynthia Creem says prosecutors said it would be used to tackle crimes against children. Instead, the subpoenas are being used to handle almost any criminal activity. In response to this prosecutorial abuse of a legislated privilege, Creem is now attempting a claw-back. Creem has filed a bill that would limit the use of administrative subpoenas to certain crimes against children and require prosecutors to report how many subpoenas they issue, the types of investigations involved, and whether they led to charges and convictions. The bill would also require prosecutors, at the close of an investigation, to inform the customers whose telephone and internet logs were seized. Undoubtedly, this bill will face stiff resistance from prosecutors who've become accustomed to getting everything they want exactly when they want it. It's pretty difficult to convince investigators they don't need this, even though they apparently had no problem closing investigations prior to the law's passage in 2008. Permalink | Comments | Email This Story

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When Ajit Pai was first appointed as the new head of the FCC, he promised to be a stickler for transparency at the agency. And in one way he followed through, by making it standard operating procedure to now publish FCC orders a month before they're voted on (even though former staffers and consumer advocates believe he only did so to give ISP lobbyists more time to construct counter-arguments and their legal and policy assaults). Elsewhere, this supposed dedication to transparency has been decidedly lacking however, especially in regards to his efforts to repeal net neutrality protections. When he first proposed killing popular net neutrality protections (pdf), he insisted he would proceed "in a far more transparent way than the FCC did" when it first crafted the rules in 2015. But Pai has also long tried to argue that a lack of broadband competition (and the resulting symptom of this disease that is net neutrality violations) isn't a real problem, despite the obvious, repeated evidence to the contrary. There's of course some very solid evidence that can clarify whether or not net neutrality is a "solution in need of a problem," and that's the 47,000 (give or take) complaints consumers have filed with the FCC since the rules were passed in 2015. Back in May, the National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FoIA) request to obtain copies of these complaints, and urged the FCC to extend the public comment period on the net neutrality proceeding for sixty days, providing time to analyze the data. The group has repeatedly argued these complaints are relevant in analyzing whether or not Pai's attempt to repeal the rules runs contrary to the public interest: "The commission's Notice of Proposed Rulemaking (NPRM) that proposes overturning the net neutrality rules asks the public for comment on various issues. The NHMC points out that the document asks the public if there is "evidence of actual harm to consumers" or evidence that Internet access has improved since the net neutrality rules were approved. Those questions could be answered by releasing all the net neutrality complaints, the group says. "These questions seek evidence that the Commission holds in its exclusive possession," the NHMC said in its motion for a delay. Not too surprisingly, Pai's FCC is blocking the release of these complaints, insisting that providing public access to the complaints would be "unreasonably burdensome." The NHMC, also unsurprisingly, isn't particularly impressed with the agency's justification for withholding the complaints: "The FCC's denial of our motion is shortsighted, denies the public critical information, and flies in the face of their acknowledgment that they have received over 47,000 open Internet complaints since the 2015 net neutrality rules were enacted. It should give the public pause that the agency with exclusive control over regulating Internet service providers refuses to share such information with the public. The information is within the FCC’s exclusive control and was completely ignored in the NPRM." If you've been playing along at home, refusing to release valid user complaints outlining genuine net neutrality concerns runs in line with the agency's attempts to downplay public opposition to its proposal. That has also included turning a blind eye to fraud and abuse of the FCC's comment system, which is currently being filled with bot-crafted industry "support" for the FCC's tone-deaf plan. The goal, consistently, has been to downplay public support for net neutrality, while pushing the illusion that repealing the rules is anything more than a giant, shameless gift to AT&T, Comcast and Verizon. And while Ajit Pai clearly thinks he can bulldoze his way through transparency and operational apathy concerns, these are all certain to come up again during the inevitable lawsuits against the agency -- all of which will highlight how Pai and friends blatantly ignored the public interest to the exclusive benefit of a handful of extremely-unpopular duopolists. Permalink | Comments | Email This Story

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Attorney General Jeff Sessions isn't much interested in the "justice" side of the Department of Justice. Instead, it appears he'd like to throw on his letterman's jacket and head back to his glory days as a hard-nosed, 1980s-vintage drug warrior. Things were better when Sessions was a federal prosecutor in Alabama, ringing up drug convictions at a rate four times the national average. The word "reactionary" is thrown around a lot when describing Trump and his cabinet. But in Sessions' case, the term fits. Violent crimes rates have fallen steadily since the mid-1990s. Meanwhile, drug prices have dropped and purity has increased, despite four decades of harsh enforcement and trillions of dollars being thrown at the problem. Devil weed -- gateway drug and longtime conspirator in the violation of American women by filthy non-whites -- is now a socially and medically-accepted drug, legal in several states. But there are violent crime increases in a few major cities. He's not sure what's to blame for this potential historical blip, but he has several theories. It might be soft-on-drugs Obama-era policies embraced by his predecessor's DOJ. It might be a lack of respect for law enforcement, which Sessions feels is a failure of the American public, rather than the failures of those who serve them. It might be rambunctious legislators scaling back asset forfeiture all over the country. Whatever it is, the current course needs to be reversed and the policies that failed for multiple decades be allowed to fail again. Where else would Sessions espouse his "brave new old world" plan than standing over the desiccated corpse of a federally-funded program that did fuck all to curb drug use by teens and tweens: the 30th D.A.R.E. (Drug Abuse Resistance Education) Training Conference. We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles. I believe that DARE was instrumental to our success by educating children on the dangers of drug use. I firmly believe that you have saved lives. And I want to say thank you for that. Whenever I ask adults around age 30 about prevention, they always mention the DARE program. Your efforts work. Lives and futures are saved. Sessions can believe anything he wants about the DARE program, but the fact is it had almost zero impact on reducing drug use by children. Multiple studies of the program suggest zero impact is the best possible outcome. At worst, the program was viewed as ridiculous by students and actually introduced them to substances they weren't previously aware of. It often inspired curiosity. It rarely inspired lifelong abstinence. But Sessions wants a bigger, better drug war -- one not constrained by logic, compassion, or mountains of evidence showing the war has been a catastrophic failure. Sessions hints we need more violence from our law enforcers because drug dealers are violent. We know drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. There is no doubt that violence tends to rise with increased drug dealing. As Scott Greenfield pointed out, if drugs were legal, you could file a lawsuit to recover debts -- a process far less likely to result in dead bodies. Stats are spun to fit the narrative: Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime—which had been decreasing for two decades—suddenly went up again. Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991. And yet, the violent crime rate remains at historic lows. Sessions sees a spike as a trend even though the numbers don't agree with him. In another speech, he specifies which year he's referring to: In 2015, we as a nation suffered the largest single-year increase in the violent crime rate since 1991, and the largest jump in the murder rate since 1968. But even the FBI can't buttress the AG's dark narrative. According to the report, there were an estimated 1,197,704 violent crimes committed around the nation. While that was an increase from 2014 figures, the 2015 violent crime total was 0.7 percent lower than the 2011 level and 16.5 percent below the 2006 level. The Sessions Drug War Wagon plows on, focused on preaching to the converted and riling up the most ignorant legislators and voters. At event after event, Sessions does everything but hand out laced Kool Aid and visions of a heavily-policed afterlife. Facts are out; verbal y-axis distortions are in. The preliminary data for the first half of 2016 showed further increases, with large cities seeing an average increase in murders of nearly 22 percent compared with the same period the year before. This spike in violent crime is not happening in every neighborhood or city. But the trend is real and should concern us all. It must not continue. A spike is a trend in the eyes of AG Sessions, whose narrative conflicts with the FBI's findings. This is a spike -- compared year-to-year -- but one that can't even bring crime levels back to where they were a decade ago, much less the sky-high rates of the 80s and 90s when Sessions was prosecuting the hell out of Alabama. Hence the return of asset forfeiture, presumably with enough force to overcome legislative resistance. From the same speech to the National District Attorneys Association: In addition, we hope to issue this week a new directive on asset forfeiture—especially for drug traffickers. With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners. Sessions mentions criminals, but criminal charges have never been an integral part of the forfeiture process. The government likes taking stuff, but has less of an interest in proving the property owner is actually a criminal. A new era of punitive justice is upon us. One that prefers prosecutions to prevention and harsh sentences to deterrents less likely to permanently ruin someone's life. I recently sent out my directive on charging and sentencing. It is sound law and policy. Assistant U.S. Attorneys will simply be expected to charge the most serious readily provable offense. If that would be unjust, prosecutors can seek a waiver approval from a designated supervisor without Washington. In short, we have ended the policies that handcuffed our federal prosecutors. There will apparently be enough handcuffs for everyone else. This is a frustrating turn of events. The new DOJ will elevate law enforcement officers and prosecutors above the people they serve. Everything that didn't work for three decades straight will be making a comeback. And if that fails to turn things around, I'm guessing it will be blamed on the media, anti-police sentiment, or whatever convenient scapegoat happens to be on hand when the blowback begins. Permalink | Comments | Email This Story

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Civil asset forfeiture continues to be curbed by legislatures around the country. Belatedly realizing the harm done to citizens by opportunistic law enforcement, lawmakers have been engaged in serious reform efforts over the past few years. Some have fallen apart on the way to approval, thanks to harmful concessions to powerful law enforcement lobbies. Other have made it through intact, potentially ending years of abuse. Thirteen states have already added conviction requirements for forfeitures, all but eliminating the "civil" process that cuts property owners out almost completely. Connecticut has just become the fourteenth. Late yesterday, Connecticut Gov. Dannel Malloy signed HB 7146, which will require a criminal conviction to permanently confiscate property. Unlike criminal forfeiture, which targets the property owner and occurs only after a conviction, civil forfeiture sues the property itself and allows the government to permanently keep property without charging anyone with a crime. HB 7146 will split the difference by requiring a conviction in criminal court as a prerequisite to a Connecticut state’s attorney litigating the forfeiture in civil court. The bill previously passed the House and the Senate without a single vote cast against it. Making the law even better is the government being unable to seize anything without an accompanying arrest. From there, it must obtain a conviction to guarantee its control of the property. It must present evidence the property was used in a crime or was the proceeds of a crime, regardless of the conviction. If it can't prove this, or the arrest fails to result in a criminal conviction, the state must return the property within 14 days. This saves citizens the trouble and expense of having to litigate the return of seized property. On the downside, the law still allows law enforcement agencies to directly profit from forfeitures, giving them control of 70% of the proceeds with minimal oversight. This increases the risk of people having the book thrown at them in court to ensure prosecutors walk away with at least a plea deal, when there's money/property on the line. But it is a major improvement over the state's original statutes, which had resulted in 2/3 of the state's proceedings against "guilty" property being completely untied from any arrests or convictions of property owners. Permalink | Comments | Email This Story

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The New York Civilian Complaint Review Board has just released a report [PDF] indicating NYPD officers are slow learners when it comes to recognizing citizens' right to record police officers. It's not that these officers have never been told. They have. The NYPD's "Finest Order" was handed down in 2014, telling officers citizens had a First Amendment right to film police. It's a response to a 2012 order by the Washington DC PD and a First Amendment lawsuit filed that year. It followed this up with internal policy changes two years later. And yet, problems persist. In the three-year period from January 1, 2014 through December 31, 2016, the CCRB closed 257 complaints in which civilians reported that officers had interfered with their ability to record police activity. This police interference included, but was not limited to, officers instructing civilians to stop recording, searching civilians‘ phones for recordings of activity, deleting such footage, and damaging recording devices. In fact, those with the most time on the job seem to have the greatest difficulty following instructions and policy changes. Eighty-four percent of the officers named in interference-related allegations (180 subject officers) had more than two years on the force at the time the alleged incidents occurred. Of those, 53 percent (113 subject officers) had between three and 10 years on the force when they were alleged to have interfered with civilian recordings and the remaining 31 percent (67 subject officers) had more than 10 years on the force. The NYPD "Finest Message" on recording distinctly notes what officers aren't supposed to do when encountering a citizen photographer: Recognizing the affirmative right to record police action, UNDER NO CIRCUMSTANCES should a Member of the Service: Threaten, intimidate, or otherwise discourage an observer from recording the police officer’s activities, assuming the observer is at a safe distance; Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or Delete any pictures or videos from the observer’s camera, or order observer to delete such pictures or recordings. But these orders were violated repeatedly. The most common excuse for violations was the officer didn't remember doing it or denied the violation had occurred. NYPD officers who violate citizens' First Amendment rights do this in several ways. Intimidation is one tactic used to shut down recordings: The CCRB also received multiple complaints of police officers pointing flashlights at civilians‘ recording devices to impede their ability to record. In one such case, the CCRB substantiated an interference allegation by a civilian and his wife who were walking down the street when they observed a police officer making an arrest. The civilian began taking photos of the arrest on his iPad and was instructed by the officer to stop taking photographs and to step back. The civilian stepped back but maintained that he had a First Amendment right to photograph the arrest. The officer then shone a flashlight at the iPad. The CCRB substantiated an interference allegation against the officer based on photographic evidence and the consistent testimony of the civilian witnesses. In a similar 2015 case, an officer stopped a group of individuals suspected of fighting and gun possession. When a third party civilian began to record the stop, an officer turned and pointed a flashlight towards the civilian‘s camera for nearly three and a half minutes. In that case, the interfering officer never issued any commands toward the recording civilian and the Board substantiated the interference allegation. [...] Other forms of intimidation were more severe. In a 2015 case, a civilian called 911 after he was assaulted at a bar. Officers responded and the civilian became angry when officers could not find the assailant. After a heated verbal exchange, the responding officers told the civilian that he would be arrested if he did not leave the location. The officers then went back to their marked police vehicle to prepare their complaint paperwork, at which time the civilian stood in front of the vehicle and attempted to take a photograph of the officers‘ license plate. At that point, the officer in the driver‘s seat drove the vehicle toward the civilian and stopped within inches of his body before driving away. Finding that the video evidence proved that the officer intentionally drove the police vehicle towards the civilian in a threatening manner and with the intention of preventing him from taking a photo of the license plate, the CCRB substantiated allegations against the officer for interfering with the civilian‘s recording, and for threatening him with the use of physical force. NYPD officers also illegally seized and searched cellphones while being filmed by citizens. Multiple confirmed allegations show officers took phones with the intent of accessing, if not deleting, recorded footage. The CCRB notes it's very difficult to substantiate claims of deleted footage thanks to the inherent nature of the violation. It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations. But searches/seizures with the intent of deleting recordings is actually the more subtle of the NYPD's anti-photography tactics. Substantiated instances of damage or destruction of recording devices can be proven by video evidence from sources other than the recording civilian. In one incident, surveillance cameras captured officers physically grabbing a civilian‘s body as he began recording their stop and questioning of a woman on a sidewalk. After officers arrested the civilian, placed him in their patrol car, and began driving away, surveillance video captured one officer throwing his cell phone out of the car window. The phone landed on the sidewalk. The civilian was charged with Obstructing Governmental Administration, Disorderly Conduct and Resisting Arrest, but these charges were all eventually dismissed. Some cops do this repeatedly: In a 2014 incident, the officer‘s interference and destruction of a cell phone occurred simultaneously. The complainant sat in his car with two friends when officers approached him, told him the car smelled like marijuana, and asked him if he had been smoking it. When the complainant said no, officers removed the occupants from the car, frisked and searched them all, and then allowed them to return to the car. When an officer walked to the vehicle to return the complainant‘s identification, the complainant alleged that the officer saw his phone resting on his arm, assumed he was recording, grabbed his phone from his hand, and threw the phone to the ground, stomping on it. The officer then forcefully arrested the complainant. The CCRB found that the officer lacked credibility given three prior complaints of the same officer destroying civilian cell phones, and substantiated misconduct. But the worse thing some NYPD officers do is shut down recordings with bullshit arrests, because it's always best to follow up a First Amendment violation with a severe curtailment of literal freedom: In a 2014 incident, for example, a civilian began audio-recording an officer‘s stop of the civilian‘s friends. The officer grabbed the audio-recorder from the civilian‘s shirt pocket, then issued him a summons for possession of a box cutter under a section of the New York City Administrative Code that prohibits minors from possessing box cutters. The complainant was over 50 years old and clearly could not be mistaken for a minor and the CCRB substantiated the improper issuance of a summons. The CCRB recommends more training, which is really all it can do. Officers have had close to three years to adjust to the constraints of the 2014 Finest Message, but it appears several officers still make up their own rules during encounters with citizen photographers. It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior. Otherwise, the same officers will keep deploying the same tactics and hoping citizens don't complain or the CCRB doesn't have enough to work with to substantiate the allegations. Permalink | Comments | Email This Story

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While we often talk about oversteps regarding copyright protectionism and lawsuits in these here pages, it's not as though there aren't understandable disputes that exist. Likewise, while we often detail bad actions by aggressors on copyright issues, it's not as though those on the defending side of that coin are always virtuous in the way they handle the dispute. The issue of game and mobile application cloning serves as a good ecosystem to show plenty of examples of both, with the latest dust-up between Riot Games and Shanghai Moonton Technology offering a specific look at how a party on the defense from a copyright claim can get everything wrong. First, some background. Riot Games recently filed a lawsuit against Moonton for copyright infringement over three Moonton games: Mobile Legends 5V5 MOBA, Mobile Legends: Bang Bang, and Magic Rush: Heroes. A cursory look at the evidence Riot Games offered up in the filing sure makes it look like Moonton was simply cloning League of Legends, from title screen to in-game design. And there's a lot more images you can compare in the link. The point is that nobody is going to look at this lawsuit and think Riot Games is crazy for filing it. There is enough cloning going on here to make even the most sympathetic pause. By now you're probably wondering why this post is appearing on Techdirt at all, as we don't make a habit of posting about seemingly legitimate intellectual property lawsuits. Well, you're reading this because we certainly do write posts about companies that attempt to lash out at the press and threaten them with lawsuits for covering them critically. And that's exactly what Moonton decided to do in the face of the lawsuit. In case you can't see the embed, that reads: Official Statement: Recently some media have published negative and unreal reports against Mobile Legends. Here is the statement of Moonton. Mobile Legends is a MOBA game that is developed by Moonton independently, and its copyright has already been registered and protected in multiple countries all over the world. Moonton has independent intellectual property rights. Mobile Legends and all the users will not be affected by these unreal reports and we will keep providing the best gameplay experience to players all over the world. Meanwhile, for some media and competitors who have spread the unreal information and rumors against us, we reserve the right to protect ourselves and pursue legal actions. Vague threats against the press for reporting on the lawsuit is simply not a good look. It also serves to put this into Streisand Effect territory, with much more coverage on the lawsuit due to Moonton's response than would otherwise have existed. References to "unreal information" and "rumors" seem particularly silly, given that there is a very real and concrete lawsuit currently filed against the company, one which the press is certainly going to report on, whether Moonton likes it or not. So, feel free to debate the validity of Riot's lawsuit all you want, but this is a terrible response from Moonton. Permalink | Comments | Email This Story

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When AT&T, Verizon and Comcast convinced lawmakers to kill broadband consumer privacy rules earlier this year, everybody in this chain of campaign-cash dysfunction got notably more than they bargained for. As with net neutrality, the relatively-modest privacy protections had broad bipartisan consumer support (our collective disdain for Comcast magically bridges the partisan divide). As a result, when the FCC's rules died, more than a dozen states rushed in to craft their own privacy rules that largely mirror the discarded FCC protections. And while that creates the problem of multiple, potentially discordant (or just plain bad) state laws, that's probably something the broadband industry should have thought about before paying Congress to axe the FCC's privacy rules. Obviously worried that states would step up and protect consumers where the FCC will not, ISP allies like Marsha Blackburn quickly got to work trying to pass new federal regulation that pretends to address privacy concerns, but is being designed primarily to pre-empt state efforts on this front. FCC boss Ajit Pai, who has previously defended protectionist ISP-written state laws as a "states rights" issue, suddenly turned on a dime here, stating he would be exploring ways to use FCC authority to keep states from protecting consumer privacy in the wake of repealing the FCC's privacy rules. In California, Assemblyman Ed Chau introduced AB 375 (pdf) earlier this year. AB 375 mirrors the FCC proposal in that it requires that ISPs transparently disclose what private data is being collected and sold, while requiring ISPs provide working opt out tools. In some ways it goes further than the FCC's proposal, in that it specifically bans ISPs from charging broadband subscribers more money to protect their privacy -- something both AT&T and Comcast have flirted with. Needless to say, large ISP lobbyists are desperate to prevent this law from taking root. The EFF has been documenting this week all of the misleading claims being made by ISP lobbyists as they attempt to scuttle the legislation. The ISPs, with their rich history of violating consumer trust on this subject, are telling the California legislature that privacy protections aren't necessary because ISPs have done nothing wrong. That ignores how Verizon was caught covertly modifying packets to track users around the internet, how ISPs have hijacked search queries for financial gain, how AT&T and Comcast made efforts to charge more for privacy, and how ISPs made efforts to use credit data to offer lower quality customer service to less affluent customers. Again, these behaviors are all symptoms of a broader disease that nobody in either political party really wants to fix for fear of upsetting powerful campaign contributors: a lack of broadband competition. And while these regulatory patches certainly aren't ideal, until we actually decide to do something about a lack of competition -- these protections are/were the only thing standing between your family and Comcast's ability to nickel and dime the living hell out of you in a rotating array of creative new ways. The EFF notes that in addition to ignoring obvious, documented history (not even mentioning AT&T's cozy relationship with the NSA), AT&T lobbyists are also pushing the narrative that the state law isn't necessary because FTC authority over broadband providers is plenty good enough moving forward: "To California’s Legislature, AT&T right now is saying the following: "AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years." In essence, there is no need to pass a state law because the Federal Trade Commission can enforce the law on us. But we've noted already how AT&T lawyers are currently suing the FTC to try and ensure the agency has no authority over AT&T businesses whatsoever. We've also noted how this is all part of an ISP lobbying plan to gut FCC authority over broadband providers by rolling back Title II (net neutrality being just a small part of this), then shovel all remaining authority to an FTC that lacks the resources, authority, or funding to police duopoly ISP behavior. The goal is really quite simple: little to no actual oversight of some of the least competitive and least-liked companies in America. And, as the death of privacy and looming death of net neutrality rules can attest, so far this plan is going swimmingly for ISPs. Except for the dozen or so states actually interested in standing up for their citizens' privacy rights. While the EFF had previously warned that killing the FCC rules would cause a wave of less-ideal state-level laws, they're supporting AB 375 as they feel it's a good template for other states to follow for some consistency on this front: "EFF supports states responding to the demands of the public for privacy protections, particularly in light of Congress having failed to do so. It has become even more important as the Federal Communications Commission itself is actively undermining consumer protections on behalf of Comcast, AT&T, and Verizon. It should surprise no one that state legislators who care about consumer privacy will act and ultimately having as many state laws on the books as possible to protect personal information is a superior outcome to having no clear protections at all. And if A.B. 375 becomes law, we hope it would serve as the model for states across the country to avoid a patchwork problem, but again this problem was created by the ISP lobby repealing the federal rules in the first place." So far ISP efforts to derail California's proposal (including having former FTC boss Jon Leibowitz pen misleading op/eds lobbying for ISPs against privacy protections) have seen mixed results, with the bill passing the first of several hurdles in the California legislature earlier this week. But again, California's fight is far from over. And it's just a microcosm of ISP attempts to remove already fairly-tepid oversight of the telecom sector, under the pretense that zero accountability for uncompetitive duopolists like AT&T and Comcast somehow magically results in connectivity Utopia. Permalink | Comments | Email This Story

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For years now, large ISPs like Comcast have tried to have it both ways on net neutrality. They consistently profess to support the concept of net neutrality, but they don't want any meaningful rules actually holding them to their word on the subject. And if there are rules, they want them to be so loophole-filled as to be utterly useless. That's effectively what the FCC's initial 2010 rules did, and that's why companies like Comcast are now pushing to have the tougher 2015 rules killed and replaced with a new net neutrality law they know either won't happen, or will be quite literally written by the industry itself. This have your cake and eat it too approach continued in this week's Comcast comment on the FCC's proceeding to kill net neutrality. In it, Comcast again pats itself on its back for the company's non-existent dedication to net neutrality, uses industry-paid economists to falsely claim net neutrality rules hurt broadband investment, and trots out all manner of flimsy justifications for the kind of feeble rules that look meaningful to the nation's nitwits, but allow Comcast the leeway to act anti-competitively whenever it likes. One long-standing ploy used by giant ISPs to scare people into compliance is to argue that net neutrality rules will somehow prevent ISPs from prioritizing medical network traffic. That point was most starkly made when Verizon tried to argue that net neutrality protections would hurt the deaf and disabled by preventing ISPs from being able to prioritize needed communications tools. That's never actually been a problem, and every set of rules we've had so far carves out obvious, glaring exceptions to these services. But that didn't stop Comcast from trotting out this bogeyman once again in its FCC filing (pdf): "...the Commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public. For example, a telepresence service tailored for the hearing impaired requires high-definition video that is of sufficiently reliable quality to permit users “to perceive subtle hand and finger motions” in real time. And paid prioritization may have other compelling applications in telemedicine. Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it." The goal here is to scare policy makers into "more flexible" rules (read: embedding all manner of loopholes into net neutrality protections) or we'll inadvertently hurt the disabled, disadvantage the sick, or kill the smart-driving car industry in the cradle. But again, this has never actually been a problem. The 2010 net neutrality rules had so many exceptions of this type as to make them utterly meaningless, letting ISPs do pretty much whatever they'd like provided they argued it was for the health and security of the network. The 2015 rules also include broad, tractor trailer sized exceptions for this kind of traffic. What Comcast really wants is rules so "flexible" and broad they don't actually address any of the real hot-button subjects in the net neutrality debate. Like Comcast's decision to abuse the lack of broadband competition to impose arbitrary usage caps and overage fees. Or the way it exempts its own content from these unnecessary limits to put competing streaming providers at a notable disadvantage in this emerging market (aka zero rating). So it's important to understand that when Comcast pens blog posts insisting it supports net neutrality, what it's really saying is it supports an absurdly-broad definition of net neutrality, which includes so many caveats and loopholes as to make said support utterly meaningless. That's again why you're currently seeing large ISPs argue that they want to do away with the strong 2015 rules (which more clearly differentiate anti-competitive behavior from justifiable paid prioritization), and replace it with a new, industry-written law that takes us back to the murky definitions seen in the FCC's since-discarded 2010 rules. So once again with feeling: anybody that actually cares about net neutrality should support the simplest and easiest way to protect consumers, startups and small businesses moving forward: keep the existing rules intact. Permalink | Comments | Email This Story

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Machine learning, artificial intelligence, and robotics are flying into the mainstream, but these advanced technologies have been creeping into our everyday lives for awhile now. Machine learning and AI are used regularly in data security, healthcare, financial trading, and more. In recent years, we've seen self-driving cars become one of the greatest technological frontiers. In this $49 Robotics and Machine Learning course, you'll learn the fundamentals and key concepts that apply to self-driving cars. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband. The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference. Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance. The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in. All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention… The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda. The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them. CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies. As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations. As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people. The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties. Permalink | Comments | Email This Story

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