posted about 2 hours ago on techdirt
Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok." The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion). The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police. But this statute covers false emergency reports, falsely reporting crimes, and lying to officers about who you are when you're arrested. It clearly doesn't cover the conduct shown here. Nevertheless, the lower court used this justification to extend qualified immunity to the officers, despite the fact the officers had received training and notification that there was a presumed right to record police -- something backed up by court precedent around the nation. The Tenth Circuit used the lower court's reasoning to justify its own finding in favor of the officers. And it went on to say that just because a cop has been informed that seizing or preventing recordings violates people's rights, no "reasonable" officer with the same training would assume that meant they couldn't seize people's devices and attempt to delete recordings. [J]udicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry. Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up. There's not exactly a circuit split to resolve but there's no top-level declaration establishing the right to record public officials. Some circuits have established this bright line but many have not, allowing officers to walk away from lawsuits despite knowing courts tend to find recording officers is covered under the First Amendment. But because there's still a chance a court may find otherwise, officers can claim to be "reasonable" even if the courtroom odds are against them. Frasier's petition [PDF] asks the Supreme Court to settle this question once and for all. (h/t SCOTUSblog) Whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public. It also asks the court to declare that training officers receive should have bearing on "reasonableness" decisions when qualified immunity is on the line. Given the top court's recent rollback of some of its expansion of qualified immunity, the second question is at least as timely as the first. As the petition points out, the Tenth Circuit ignored precedent and the officers' own training to excuse them from this lawsuit. Regardless of whether this Court might wish to reconsider qualified immunity as a whole, this case presents a timely opportunity to resolve two divisions of authority and to curb an unjustified distortion of the doctrine. At the time of the remarkable incident in this case, the respondent police officers’ training and departmental policies expressly advised them that the First Amendment protects the right of citizens to record officers performing their duties in public. All four federal court of appeals decisions on the issue said the same thing, consistent with this Court’s precedent. Yet the Tenth Circuit granted the respondents immunity for doing exactly what they had been told was unconstitutional. The Tenth Circuit reasoned (1) that the training and law enforcement policies are “irrelevant” to the qualified-immunity analysis and (2) that existing legal precedent was insufficient on its own to make the right here clearly established. As Frasier notes, this question should never have been considered by the Tenth Circuit because there was nothing left unanswered according to the officers' own testimony. The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they “neither knew nor should have known” existed. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality. Addressing this would resolve the circuit split the Tenth Circuit deepened by deciding officers' training is somehow irrelevant to discussions of "reasonable" officers and their actions. There's no real split when it comes to the right to record police officers, but the Supreme Court itself hasn't handed down precedent that affirms or establishes this right, so officers are free to pretend plenty of other courts haven't reached that conclusion. When the events here occurred, all four federal courts of appeals to have considered the constitutional issue had held that “there is a First Amendment right to record the police performing their duties in public spaces.” But, citing Wilson, the Tenth Circuit held that respondents were entitled to qualified immunity because the circuits have “disagreed regarding whether this purported First Amendment right to record [i]s clearly established.” The petition says the Tenth Circuit misread this decision. That one extended qualified immunity when there was a circuit disagreement "on a constitutional question." In all four of the circuit decisions handling the issue, there's no split because each court reached the same conclusion on the underlying constitutional question. Because the courts reached conflicting conclusions on the extension of qualified immunity does not show that they disagree on the right to record police officers. And there's plenty of other federal case law, along with any number of law enforcement policies, that make it clear recording officers is protected activity. This reasoning is mistaken. For one thing, it improperly ignores the robust body of lower court jurisprudence that is directly on point. The clearly-established-law inquiry is not a game of divide-and-conquer. It is a holistic inquiry. See, e.g., Hope, 536 U.S. at 736-46. And here, the combination of precedent from this Court and the lower courts (plus the officers’ training and departmental policies, see supra at 16- 23) renders the law clearly established. This is a case the Supreme Court should definitely take. The right to record police officers is assumed, thanks to a host of case law finding this act to be Constitutionally protected. But, as happened here, the lack of a firm resolution from the nation's top court, along with the fact that only a handful of circuits have directly addressed this issue, makes it unclear enough that officers can ignore their own internal policies to hassle, deter, or arrest citizens who film them. This decision is at least a decade past due. And the longer it goes unresolved, the longer the sort of abuse witnessed in this case will continue to occur.

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posted about 4 hours ago on techdirt
Freedom of speech sits at the intersection of so many of the topics we write about here on Techdirt, and some of our favorite podcast guests are true experts on the subject. One such guest is UCI Law Professor and former UN Special Rapporteur on freedom of expression David Kaye, who joins us again for this week's episode and a wide-ranging discussion about some of the most pressing and current free speech issues. Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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posted about 5 hours ago on techdirt
Over the last few weeks there's been a weird, wasteful, and just silly dispute in which the White House has tried to blame Facebook (and misinformation on Facebook) for not enough people agreeing to get vaccinated against COVID-19 (in light of cases ramping up again). Things have gotten so stupid that two Senators have released a terribly unconstitutional bill attempting to hold Facebook liable for "health misinformation" on its platform. But... is Facebook actually to blame? Mark Zuckerberg (who, um, is obviously not an unbiased party) made a completely valid point in response to all of this: Facebook is available around the globe, yet much of the rest of the world is not seeing the same levels of vaccine hesitancy (indeed, the problem elsewhere tends to be a lack of supply), and that might raise questions as to why Facebook is facing the blame for vaccine hesitancy. "..if one country is not reaching its vaccine goal, but other countries that all these same social media tools are in are doing just fine.. should lead you to conclude that.. platforms are not the decisive element.." Of course, there's more to it than that, but what strikes me as most notable is that actual health experts in places where there are high levels of vaccine hesitancy don't seem to think that Facebook is the problem. They seem to recognize that it's actually a Fox News problem. In an article talking with health officials in states like Alabama and Louisiana, where vaccine hesitancy is the highest, they're saying the real problem remains Fox News. Doctors and health officials in Alabama and Louisiana say their only hope for getting people vaccinated is if the media outlets that message to these areas, primarily Fox News, start advocating people get the shot, instead of pushing them away from the jab. “I have people come up to me and say, ‘Why on CNN? Couldn’t you go on Fox?’ They are still very angry over the last couple of years. There’s an irritation. They are super frustrated. They need to hear it from the people that they trust. They need to hear it from where they get their news every day. And I don’t know why not Fox. Why not?,” O’Neal said. “But it has to change this week. Every single show. And it has to be about the community, not the ‘you’ because there’s been too much about the ‘you.’ ‘You’ they got indoctrinated. It is not about ‘you,’ it is about the community. You’re going to kill your community.” Others have been making this point as well. But despite the enormous reach of Facebook, only one media outlet has devoted itself to injecting falsehoods about the pandemic into the nervous systems of its audience on a 24/7 basis. That, of course, would be Fox News, the right-wing cable station that tells its viewers, over and over, that vaccines are dangerous and that wearing a mask to prevent COVID-19 is ineffective — and, in any case, is not worth the price we’d pay in giving up our freedom. None of this should be surprising. For years now we've been pointing people to the detailed, data-driven research findings of Yochai Benkler, Robert Faris, and Hal Roberts in their book, Network Propaganda, which traced the actual flow of mis- and disinformation regarding the 2016 Presidential election, and found that the main vector (by far) was not Facebook, but Fox News. Yes, things would spread on Facebook eventually, but only after Fox News would make it into a story. A later study they did regarding disinformation about mail-in ballots found the same thing. That's not to say that mis- and disinformation don't travel on Facebook. Clearly it happens all the time. But focusing on social media, as if it's the primary culprit, or that somehow getting Facebook to delete the propagandists on that platform will magically solve all disinformation is clearly folly. Of course, you won't see Senators Amy Klobuchar and Ben Ray Lujan introducing bills to make Fox News liable for the health misinformation they spew -- they at least recognize that that would not only be blatantly unconstitutional, but would be interpreted as an attack on conservatives' favorite TV news channel. Mis- and disinformation remain a real problem, but kneejerk attempts to blame social media are not helping and not getting at any of the root causes of the credibility crisis currently facing people throughout the US.

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posted about 6 hours ago on techdirt
This is a sponsored post. For everyone who subscribes to the free IBM Tech Policy Lab email newsletter via our link, Techdirt receives a small commission. We would not offer this if we didn't actually believe in the value of the newsletter itself, but this is very much sponsored content. If you're a reader of Techdirt, then you're probably deeply interested in tech policy issues. Questions around tech policy have become more and more central over the last few years. Unfortunately, much of the discussion around tech policy is (to put it mildly) not particularly well informed. Last year, IBM launched its IBM Policy Lab as an attempt to build a place to bring together smart thinkers regarding tech and policy -- and to take a long term view on what is the best policy for innovation going forward. There are some really great people behind the project. The IBM Policy Lab includes various policy papers, live events, and discussions on important tech policy issues, and the best way to keep up with what they're talking about is to subscribe to the newsletter. We may not always agree with the recommendations that come out of the IBM Policy Lab, but it has become a good place to really explore some key issues regarding technology and policy in a forward-looking manner.

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posted about 7 hours ago on techdirt
Last year, Candace Owens (former Turning Point USA's communications director and current "conservative" author/commentator) sued both USA Today and Lead Stories LLC over fact-checking services they provide to Facebook. Owens claimed the labelling of her COVID-related Facebook posts as misinformation caused her to lose ad revenue and hampered her ability to promote her new book. Here's the background on the case from ABC News (which chose not to publish the court document, so here's a link to Justia, which did): Lead Stories published an article in April 2020 fact-checking a Facebook post in which Owens claimed that the way U.S. government officials counted COVID-19 deaths overstated the scope and dangers of the pandemic. The Lead Stories article labeled Owens’ post with the terms “Hoax Alert” and “False” and prompted Facebook to place a false information warning label on Owens’ post. Similarly, USA Today published a fact check later that month concluding that a post in which Owens questioned the relationship between the counting of COVID-19 deaths and flu deaths in early 2020 contained false information. Owens cited Centers for Disease Control and Prevention reports and argued sarcastically in her post that the number of flu deaths had decreased drastically in early 2020. As a result of the USA Today article, Facebook put a false information warning label on Owens’ second post. This suit was filed in a Delaware state court, apparently using Facebook's position as a Delaware corporation -- along with the ability of internet communications to travel interstate -- to keep it from being moved to federal court and a jurisdiction that would have made more sense. Not that it matters. Owens has lost this lawsuit. About half of the decision [PDF] is given over to the court explaining why it feels it has jurisdiction over a Delaware corporation that wasn't actually named as a defendant, as well as the Colorado-based Lead Stories. Plaintiffs have not provided me with a sufficient basis on which I may exercise general personal jurisdiction over Lead Stories under Delaware law. Plaintiffs have, however, provided me with a sufficient basis on which I may exercise specific personal jurisdiction over Lead Stories under Delaware law. The nature and quality of the commercial activity that Lead Stories conducted over the Internet mitigate in favor of specific personal jurisdiction. Although Lead Stories did not directly transact business or perform work or services in Delaware, or contract to provide “services or things” in Delaware, it contracted with Facebook to supply fact-checking services and stories which were disseminated by Facebook in Delaware in such a manner as to allegedly cause tortious injury in Delaware, which could reasonably have been foreseen by Lead Stories. With this out of the way, the court moves on to discuss the merits of Owens's claims. Owens alleged tortious interference and defamation, with an unfair competition claim thrown in for good measure. These allegations are bogus, says the court, starting with the supposed defamation: Plaintiffs allege in the Amended Complaint that the following three statements made in the Lead Stories Article are defamatory and false and were made with actual malice: (1)The [false] claims [about the COVID-19 death counting method] originated in a post . . . published on Facebook by Candace Owens on March 29, 2020. (2)[The First Facebook Post] is being shared to suggest that medical officials are – in Owens’ words – “trying desperately to get the numbers to justify this pandemic response.” This comment is an attempt to downplay the severity of a global infectious disease that has killed more than 42,000 people as of March 31, 2020. (3)There are several inaccuracies in [the First Facebook Post]. Owens felt being fact-checked was defamatory. The court says, nope, it was just Lead Stories saying things Owens didn't want to hear and certainly didn't want transmitted publicly to people reading her content. I find no facts alleged in the Amended Complaint supporting Plaintiffs’ claim that statement (1) is defamatory or false. As Lead Stories correctly points out in its brief, Plaintiffs altered the statement and omitted relevant context. The statement in the original Lead Stories Article, attached to the Amended Complaint as Exhibit A, merely reads that “[t]he claims originated in a post (archived here) published on Facebook by Candace Owens on March 29, 2020.” In their Amended Complaint, Plaintiffs admit that Owens is the author of the claims published on Owens’ First Facebook Post. This statement does not convey any facts that are untrue or capable of defamatory meaning as it does not injure Owens’ reputation in any sense. And so it goes for the rest of the defamation claims. The conclusions made and published by the fact-checking services were substantially true, and certainly more true than the claims Owens made on Facebook. And labelling her posts as "False" or "Hoax" wasn't defamatory either. Plaintiffs do not demonstrate that the word “False” is an untrue statement under the reasonable conceivability standard. Plaintiffs argue that because the First Facebook Post relied on an opinion from its own expert, Dr. Lee, and Lead Stories relied on an opinion from its own expert, Dr. Ailen, Lead Stories was not able to fact-check the First Facebook Post. This is not accurate. Opinions may carry underlying assertions of facts. Dr. Lee and Dr. Ailen may well have different opinions on whether COVID-19 should be counted as cause of death. However, as discussed above, their underlying factual assertions are not inconsistent. More importantly, in contrast to Plaintiffs’ allegations, Dr. Lee’s article does not support, much less confirm, the accuracy of Owens’ First Facebook Post. Therefore, Plaintiffs fail to demonstrate under the reasonable conceivability standard that Lead Stories made a false statement when it superimposed the word “False” over Owens’ Facebook Post image. [...] It is not reasonably conceivable that readers who read the Lead Stories’ Article would have understood “Hoax Alert” to mean that Plaintiffs were intentionally spreading a lie. Instead, the readers would have understood “Hoax Alert” as a rhetorical hyperbole implying that the Owens’ Post carries inaccurate information and that the readers should proceed cautiously when reading the post. The First Amendment also protects the defendants against Owens's tortious interference claims. A tortious interference claim cannot survive if the claim is premised solely on statements that are protected by the First Amendment because the exercise of constitutionally protected speech cannot be an “improper” or “wrongful” action. Because Candace Owens is a public figure, the First Amendment protects Defendants’ statements unless Plaintiffs’ Amended Complaint supports reasonably conceivable inferences that (1) Defendants’ articles contain false statements, and (2) Defendants made the statements with actual malice. Defendants’ articles are protected by the First Amendment because Plaintiffs fail to state that both Defendants’ articles contain false statements of fact made with actual malice under the reasonable conceivability standard. And if that claim fails, so does the common law claim for unfair competition. This claim cannot survive if it only implicates activities protected by the First Amendment. The case is dismissed. Owens, of course, is free to appeal this or take the same claims to a federal court. But unless she's got an endless amount of money to blow on losing lawsuits, she's probably better off being angry -- rather than litigious -- about it. As the court noted at the outset of its opinion, the advancement of technology, bringing with it new arenas for political debate, raises some novel questions for courts to consider. But at the end of the day, it's the law that matters. Today’s world of technological wizardry presents endless opportunities for conflict and battle like Kilkenny cats. Social influencers can sway opinions of millions of people controlling politics and money. Those with substantial control over social media like Facebook struggle to control fact from fiction. The case before me presents one battle in the social media wars. It also presents a real-life struggle affecting reputations, the ability to earn substantial income, and the ability to fact-check. The political aspects of this case are manifest but must be ignored in favor of application of the law. Moving these complaints elsewhere won't change the law and it won't change how the First Amendment works. Substantially true claims can't be defamation. And protected expression -- like fact-checking and moderation efforts -- can't form the basis for interference claims. Owens should just take the loss and move on.

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posted about 7 hours ago on techdirt
The Intro to Cryptocurrency Bundle has 5 courses to help you learn all about cryptocurrency. You'll learn about disruptive technology, blockchain technology, making money through mining Bitcoin, Bitcoin's monetary policy guarantees, and a whole lot more. It's on sale for $20. 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.

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posted about 8 hours ago on techdirt
First things first: if you are interested in advertising on Techdirt in a non-intrusive, non-obnoxious way, please contact us. We'd love to work with you on cool, innovative advertising and sponsorship that doesn't engages, instead of annoys, our community. As some of you may recall, last summer, we had to pull all ads off of Techdirt, after we kept running into problems with Google, and its overly aggressive, overly sensitive (if somewhat arbitrary) advertising morality police (such as telling us all our stories about Google were "dangerous or derogatory"). After announcing that, we had a few different companies approach us with possible alternatives, and earlier this year, we tried to put ads back on the site briefly, with a promise from a provider that they could both serve better quality ads as well as "deal with" Google if it started complaining again. Here's the unfortunate secret underpinning nearly all of the internet advertising space: there are hundreds, if not thousands, of companies which will purport to put ads on your website. And all of them will promise "quality" ads and better rates. But the unfortunate reality is that they're all just backstopped by Google, and the ads are all the same crappy ads in the end. Only the largest websites (or highly, highly specialized ones) can really pull their own weight on advertising. And, tragically, wonky tech/legal/policy blogs don't cut it (unless we wanted to just start running reviews of every silly tech product out there, and that's not our thing). So, we worked with a new partner, with promises of higher quality... and it all turned out to just be the same awful Google ads again, and with it, the same automated emails every damn day from Google threatening to cut us off for our "dangerous and derogatory" content. This time around, we just ignored those threats, because at this point, we're so damn sick of it that if Google cuts us off, so be it. But, there was a larger issue. In our wrapup of the 2020 stats for Techdirt, I mentioned in passing that this would be the last year we used Google Analytics for tracking how people use the site. We've used a few different analytics systems in the life of Techdirt, and I think we used MeasureMap before Google bought it and wrapped it into Google Analytics. And, to be clear, Google Analytics worked decently well, had a nice interface (much nicer than most competitors) and, of course, was free for our use case. But that freedom came with a different kind of price -- which is that Google was tracking users on our site. And that was becoming both more and more problematic, and more of a nuisance. After becoming increasingly uncomfortable with that, we switched over to a different analytics package, and are now using both Plausible and Matomo (self-hosted), to make sure that we're much more protective of the privacy of Techdirt's readers. We actually pulled Google Analytics off the site in late January. But then we noticed something odd. In February, Google Analytics was still showing up even though we had pulled the tags. It turned out that, via the new ad partner we had, as soon as ads via Google show up on our site Google Analytics code showed up along with it. And that really sucks. After going through a variety of options, we eventually realized that none of this was worth it. We ended our contract with our ad provider, and then had to scrub through all our code to make sure Google Analytics was truly gone (it's amazing how it pops up in unexpected places). We didn't post about this immediately, in part because we were busy with other stuff, but also because I wanted to make sure Google Analytics was really gone. And it is. Of course, that also means we're once again without any advertising on Techdirt, which is a hit to our revenue and our ability to keep going -- at a time when that's under threat from other things as well. We are hoping to try some more creative (less intrusive, less annoying) sponsorship and advertising methods in the near future, but at the very least we're increasingly going to rely on you, our community, to help Techdirt stick around. If you are able to, and interested, the easiest way to directly support Techdirt is via the Friend of Techdirt option (basically a way to tip us however much you'd like), but we have a wide variety of ways to support us, and any one you choose is greatly appreciated. Techdirt is one of the very, very, very few truly independent media brands around. Almost none of the independent media brands that existed when we started remain. Some have been sucked up into larger companies or shut down entirely. Others have decided to go behind expensive paywalls. We've had to adapt and change over the years in many ways just to stick around, but in the end the reason we do this is because of the community we've built up here. For us to stick around, I need to ask the community to help support us as well. We have some cool experiments and projects in the works, so stay tuned for that, but in the meantime, if you can help us out, it would be hugely appreciated.

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posted about 12 hours ago on techdirt
Hoping to capitalize on legitimate animosity against "big tech," AT&T lobbyists and policy makers have been busy recirculating a fifteen-year-old talking point. Namely, that big tech companies should throw billions of dollars at big telecom companies to subsidize their broadband deployments. The argument that AT&T has been pushing since 2004 or so is that since big tech companies get a "free ride" on telecom networks (which has never been true), they should pay telecom giants billions of additional dollars... just because. The argument never made any coherent sense. Tech giants like Netflix and Google pay not only billions of dollars for bandwidth, they also pay billions of additional dollars in cloud, transit, CDN, and other broadband infrastructure. Telecom giants also do this, but they also receive billions upon billions in taxpayer subsidies in exchange for networks that are always mysteriously half-delivered. There's not a day that goes by where some telecom company is getting ridiculous sums of money for projects that don't make sense or simply never get deployed. So if you were serious about reform on this front, that would be the place to start. Instead, AT&T has asked captured regulators like FCC Commissioner Brendan Carr to push for a broadband tax on tech. Carr recently pushed the idea in a an editorial over in a Newsweek Op/Ed, and since then outlets from CNET to Axios have been parroting the idea as if it's a good faith effort. It's not. It's an AT&T policy and lobbying missive being dressed up as a legitimate idea by corrupt lawmakers and regulators. Now, Senators Roger Wicker, Shelley Moore Capito, and Todd Young have introduced a doomed bit of legislation dubbed the Funding Affordable Internet with Reliable (FAIR) Contributions Act. It too suggests that "big tech" has gotten a "free ride" on US telecom networks and should be subject to a new tax to fund broadband deployments: "For too long, Big Tech has been able to profit off of the critical infrastructure used for common day-to-day activities while not helping at a sufficient level to improve those capabilities with broadband investment in states like West Virginia. With communications platforms moving away from telephone networks toward internet heavy platforms, it’s important now more than ever that we start looking at ways that Big Tech can step up and help close the digital divide and secure true universal service for West Virginians." Again, the gross irony here is that for the better part of twenty years, West Virginian lawmakers have been in persistent thrall to regional telecom monopoly Frontier Communications. This generally involves doing everything the telecom giant asks, then throwing billions in unaccountable subsidies at the company in exchange for jack shit. The same problem is repeating itself in most states across America. So to come out and suggest the country's broadband shortcomings are Google's, Netflix's, or Amazon's responsibility to fund and fix is fairly laughable. Our broken and corrupt telecom regulatory approach is precisely why US broadband is so expensive, patchy, and slow by global standards. Yet you'll note to a man that the AT&T loyal Republicans pushing this stuff never acknowledge the need for reform of the telecom industry and the subsidies we throw its direction. It's the same reason Josh Hawley and friends have spent several years hyperventilating over "big tech monopolies" but rarely (if ever) acknowledge the problems with regional telecom or energy monopolies. They're using legitimate concerns about "big tech" to push policies of interest to "big telecom." With a few exceptions, they're genuinely not interested in fixing any problems. They're interested in keeping campaign contributions flowing. That's not to say "big tech" doesn't have ample problems that need fixing. It's also not to say that the subsidies and FCC funding mechanisms propping up our feeble broadband efforts aren't in dire need of reform. But this "big tech gets a free ride and therefore should throw billions at the telecom industry" is not a serious argument, and anybody treating it as such hasn't been paying attention to more than fifteen years of telecom history. If you want to fix the US broadband industry and improve service the path is obvious: tackle regional monopolization and the corruption that enables and protects it.

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posted about 21 hours ago on techdirt
If you'd like some more anecdotal evidence about the useless and general disconnectedness of police unions, have I got something for you. We all know police unions take the worst aspects of policing and amplify them. We know they fearlessly defend even the worst officers from lawsuits, firings, and public criticism. We know they're the main barricade to true accountability, having tied up most cities in protracted legal language that allows cops to do all they can to avoid being fired and, in the off-chance they do get canned, get their jobs back via the arbitration process. Via the Free Thought Project comes this painful howler of a story -- one that involves a police union, an officer awaiting discipline, and an annual award for the top cop in the city. Here's how it went down, as explained by Joe Nelson of the San Gabriel Valley Tribune: Detective Eric Walterscheid stood at a podium before the El Monte City Council during its last meeting in June, touting the work of Officer Carlos Molina before honoring him as the Police Officers Association’s Officer of the Year for 2020. Walterscheid (who is also the police union president) spoke at length about Molina's early days as a promising young investigator. He didn't have much to say about Detective Molina's more current work… because there wasn't much of that to discuss. But Molina seemed an odd choice for the honor, primarily because he didn’t work a single day in 2020. He spent the entire year on paid administrative leave that ultimately lasted 19 months — from September 2019 to April 2021, according to Tom Madruga, a contract attorney for the city. Officer of the Year for not working a single day. That's really something. And, almost unimaginably, the El Monte police department likely got more done with Detective Molina sidelined. You see, Molina was suspended for spending more than a year working a single child abuse investigation that "yielded little work product." And he couldn't even manage to not move this investigation forward during regular work hours. He racked up 42 hours of overtime not getting the job done, adding another $4,400 to the taxpayers' tab for services un-rendered. The case was pulled from Molina and handed to another detective, Pedro Yanez. Yanez closed the case in 44 days and the two suspects are now awaiting trial. The police union has refused to comment on the public embarrassment. City officials have commented, mainly offering up variations on "what even the fuck." Some of the rank-and-file, however, have speculated this award was given to a suspended cop as a "message of dissatisfaction" with current police chief David Reynoso. That's according to Sgt. Jamie Pitts, who included this theory in his email asking the city council to pull the award ceremony from its agenda before it embarrassed everyone involved in it. If it was a joke or a way to use the disgraced detective to send a message, that seems to have been lost on Detective Molina, who appears to be very appreciative of the award he very definitely didn't earn. Despite the sergeant's pleas to end this embarrassment before it began (and make public the fact that Molina took home not only the Top Cop award, but nearly $205,000 for doing nothing), the show went on. Mayor Jessica Ancona (who, the Tribune notes, is "endorsed by the police union") refused to pull the agenda item, telling concerned council members they were welcome to try to get it voted down while the council session was underway -- something they would have had to do in front of Molina and his friends and family. The farce was allowed to continue. And now an officer who went 0-for-365 last year is officially the police union's 2020 MVP.

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posted 1 day ago on techdirt
We recently discussed the case of a man who thought Facebook owed him $10 million per day in damages for moderating his posts in which he deployed the n-word. According to this person, Facebook violated about half of the Constitutional amendments when it decided -- as a private company -- that it would not serve as the plaintiff's bullhorn while he shouted racist terms in a crowded social media platform. But that was a pro se lawsuit, one the plaintiff -- with no legal training or expertise (despite listing himself as "attorney-in-fact" on his Facebook profile) -- thought would net him millions of dollars a day for being nothing more than his hateful self. This lawsuit [PDF], however, has an actual lawyer behind it. And by actual lawyer, I mean a lawyer whose representation may be less useful than no representation at all. The lawyer helping the plaintiff bring this constitutional violation lawsuit against Twitter is David Yerushalmi, perhaps best know for being a bit bigoted himself. David Yerushalmi (born 1956) is an American lawyer and political activist who is the driving counsel behind the anti-sharia movement in the United States. Wikipedia helpfully notes this Jewish lawyer is highly critical of "liberal Jews, progressive elites, and black people." So, those are his credentials. He is the co-founder of the "American Freedom Law Center," which is really more about pushing its particular take on America than it is about protecting American freedoms. Here's part of its mission statement: AFLC is first and foremost a public interest litigation firm. It aggressively seeks to advance and defend our Nation’s Judeo-Christian heritage in courts all across our Nation. Not sure what that has to do with suing Twitter on behalf of someone helping spread disinformation about COIVD, but that's where we are. Yerushalmi's client is none other than confirmed quack Colleen Huber, last seen here trying to sue a reformed naturopath for informing readers that Huber's anti-cancer advice (I hesitate to call it "medical") would probably kill any cancer patient who took it. Colleen Huber does not use conventional chemotherapy or radiation. She treats cancer with intravenous baking soda, vitamin C, and other “natural” substances, while instructing patients to cut out sugar from their diets. Huber is a "certified" naturopath. The scare quotes are there for this reason: Nowhere in any of her “research” that I could find did she write that she obtained written, informed consent from her patients/research subjects. Nor did she write that her “research” was approved by an Institutional Review Board (IRB) or was registered with ClinicalTrials.gov. These are fundamental ethical requirements for research on human subjects. But don’t worry, Colleen Huber is a founding member of a naturopathic Institutional Review Board that has apparently approved her research. Those are some of the words Huber sued about. She filed a defamation lawsuit in Germany targeting reformed naturopath/current skeptic Britt Hermes. The good news is Hermes won, despite being sued in a country where defamation can be (and very often is!) considered a criminal act. Unsurprisingly, Huber is, shall we say… a vaccine skeptic. During the course of her Twitter affairs, she shared articles and made posts that were considered misinformation by Twitter. Twitter moderated her posts. Then it banned her permanently. That forms the basis for this hilarious lawsuit. For the moment the lawsuit resides in an Arizona federal court. (It will likely be moved to California once Twitter gets involved and invokes the terms it imposes on Twitter users, which include Twitter being able to move all federal legal action to its home state.) Let us gaze upon this comical masterpiece of stupidity and wtf-ness… perhaps not in all of its glory, but at least the best parts. You don't have to be a lawyer (at least one not employed by the American Freedom Law Center) to realize what's wrong with this opening statement. Defendants Twitter and Dorsey, operating jointly and conspiring with Defendants Biden and other federal government officials in the Biden Administration (Defendant John Doe(s)), is engaging in viewpoint discrimination—the most egregious form of content discrimination—in violation of the First and Fifth Amendments to the U.S. Constitution. Hint: it's not just the verb conjugation. While it's true that Joe Biden could violate rights by getting personally involved in moderating Twitter accounts, it's impossible for Twitter to violate rights, no matter how much viewpoint discrimination it engages in. The First and Fifth are safe when Twitter's involved. Moderation efforts aren't constitutional violations. The lawsuit moves on to name the defendants and discuss the internet and its current position as the greatest communication tool ever invented. Then it attempts to pin constitutional violations on Twitter by completely (and conveniently) misreading the Supreme Court's Packingham decision. Consequently, social media, particularly including Twitter, is exceedingly important for worldwide human communication and thus provides important forums for that communication. As, as stated by the U.S. Supreme Court: While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, and social media in particular. . . . In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” Packingham v. N.C., 137 S. Ct. 1730, 1735-36 (2017) (citations omitted). While Huber and her lawyer may have misapprehended the gist of the Packingham decision (perhaps deliberately so), it's unlikely a federal judge will. Packingham said the government couldn't prevent people from using social media services, declaring a North Carolina statute that prevented sex offenders from using these services unconstitutional. It says nothing about private companies preventing citizens from using their services. And, unless Huber has a whole lot of evidence saying President Biden is directly participating in Twitter moderation decisions, there's nothing in the Packingham decision that has any bearing on this case. The idiocy continues directly after the citation of precedent that actually isn't precedential when applied to this complaint. Denying a person access to this important social media forum based on the content and viewpoint of the person’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities. Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship. Consequently, there is no basis for qualifying the level of First Amendment scrutiny that should be applied in this case. Claiming something is the worst thing that has ever happened doesn't make it legally actionable. There's no First Amendment (or Fifth Amendment) right to a Twitter account, no matter how dire the phrasing in the complaint. The lawsuit is also stupid about Section 230, seemingly considering this immunity a "power" social media platforms exercise with the government's explicit blessing. But before we get to that, let's pause and admire the heavy lifting the word "belief" is doing in this assertion. Upon information and belief, Dr. Huber’s suspension from Twitter was a conspiracy and/or joint action between Twitter and unknown officials in the White House, sued herein as John Doe(s), who have engaged in the unlawful conduct alleged herein pursuant to their official government capacities under the direction and, ultimately, control of Defendant President Biden. Do all the discovery you want, but I doubt you'll find Huber's suspension involved any input whatsoever from Joe Biden or his administration. Twitter is perfectly capable of banning people on its own, even sitting presidents. That Biden may have made comments (which are quoted in this suit) that platforms needed to do better containing the spread of disinformation is not even remotely close to the same thing as "conspiring" with Twitter to shut down Huber and other anti-vaxxers. Now, here's where Huber and her lawyer say dumb stuff about Section 230. Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Twitter “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Twitter censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government. The interest in encouraging freedom of expression in a democratic society outweighs any benefit of censorship conferred upon Twitter by the federal government. Wrong. Wrong. Wrong. Wrong. Just absolutely wrong. Section 230 immunity is not a "power." It simply shields platforms from being sued over moderation decisions or for content created by users. People who run into this immunity -- which Huber certainly will -- may think it's a "power," but it isn't. It doesn't give platforms new rights. It simply shields them from being used as an easy-to-sue proxy when users are angry about things other users have said or, in this case, when they're angry about being shown the door by the owner of private establishments. In this case, it's Twitter, rather than, say, the local bar, getting sick and tired of someone's endless bullshit. When you fail to understand the Constitution, the rights of private companies, Section 230 of the CDA, and prior Supreme Court decisions, you end up with word salad for section headers. FIRST CLAIM FOR RELIEF (Twitter COVID-19 Policy—First Amendment Freedom of Speech) Salad spinners engage! Section 230 of the CDA, facially and as applied, permits Defendant Twitter to restrict Plaintiff’s speech, and the speech of those similarly situated, based on the content and viewpoint expressed by Plaintiff’s message, and the respective messages of those similarly situated, in violation of the First Amendment. Section 230 has caused, and will continue to cause, Plaintiff and those similarly situated to suffer undue hardship and irreparable injury, entitling Plaintiff and those similarly situated to declaratory and injunctive relief. This will go nowhere. Well, to be fair, it will probably go to a California federal court and then go nowhere. There's nothing in this that can be sued about. If Huber doesn't like being booted from Twitter -- and she clearly doesn't -- she's welcome to take her naturopath business elsewhere. But, sooner or later, she's going to run out of receptive hosts. This isn't Twitter violating rights or Joe Biden personally deciding Huber needs to STFU. It's just business. And Twitter doesn't want hers, for a number of reasons it's under no legal obligation to justify.

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Last week, KGW8 had an incredible story about how a couple in Vancouver, Washington were sued after leaving a 1-star review for Executive Roof Services (ERS). The defendants in the lawsuit, Autumn Knepper and Adam Marsh, were (reasonably!) annoyed about the treatment they received from the firm after their landlord had asked ERS to check out the roof to the house, after the couple found it leaking. The experience they had with ERS was not great: Knepper said she called the office and talked with the receptionist, who she said was rude from the time she answered the phone. “She refused to give me any information. She said I would have to get it from the landlord. I asked to speak with the manager and she laughed at me. She told me I was verbally abusing her and that she was the office manager. She hung up on me,” said Knepper. Marsh said he called ERS and had a similar bad experience with the woman who answered the phone. “She was just super rude, told me that she was office manager and there was no one else I could talk to and hung up on me,” said Marsh. So they each wrote a 1-star review on Google explaining what happened. Apparently, the owner of ERS, Michael Mecham, didn't take kindly to all of this. Again, according to KGW8: “He told me that he knew where I lived. He said he had forensics guy and that he would gladly spend a hundred thousand dollars suing me,” said Knepper. Knepper said the owner texted her and said the review needed to be taken down before “more damages are done.” Knepper said she called the police, which led to an officer asking Mecham to no longer contact the couple. “We thought that was the end of it,” said Knepper. But, instead, they were sued for defamation (the lawsuit was filed in Clark County, and it appears that the documents for the lawsuit are not readily available online or we'd include them here). The lawyer for ERS, David Bowser... um... doesn't seem to know what he's talking about. He first told a reporter from KGW that it wasn't about the review... and then seemed to immediately admit it was about the review: Bowser said the couple did not hire ERS, the landlord did. Because of that he said they weren’t entitled to the information they requested -- a project report and timeline -- because they were not customers or clients of ERS. This is part of our exchange when we asked Bowser about the suit: Cristin Severance, KGW: "Whether they're paying customers or not, shouldn't they be entitled to write about their experience? They said the receptionist was rude." David Bowser, attorney: "It depends why they did that. If they were doing it merely to express their opinion, that's what other customers have done in the past. I don't have an issue with that. ERS doesn't have an issue with that. But when you cross the line and you use this forum to cause intentional harm to a family-owned business and hurt them and their employees and their business, you've crossed the line." Severance: "How did they intentionally harm ERS by writing about a rude receptionist?" Bowser: "They intentionally harmed ERS by posting one-star reviews for the purpose of getting a report they weren't entitled to." That's... not how any of this works. At all. They have every right to write a review about their experience. Bowser seems particularly clueless about SLAPP suits. Washington just passed a new anti-SLAPP law, though technically it didn't go into effect until this weekend. But Bowser should maybe learn what that means: Bowser argues this is not a SLAPP filing. Bowser: “That is not what a SLAPP lawsuit is, a SLAPP is a motion. This is a lawsuit. The lawsuit asserts claims for defamation and for intentional interference with business expectancies,” said Bowser. Wut? The "L" in SLAPP stands for lawsuit, guy. And this is a classic SLAPP. It's a lawsuit over obviously protected speech, and was clearly filed to try to silence Knepper and Marsh. When the reporter asked Bowser how is this not trying to silence someone, Bowser responded that this was "not something that they legitimately had a basis to give an opinion on." And, again, this is not how anything works. You get to give your opinion on anything you want. I get to give my opinion on this lawsuit -- which is one of the SLAPPiest SLAPP suits I've seen in a long time. You don't get to unilaterally declare that they can't give their opinion. But, of course, even more incredible is that, here, the lawyer for ERS has now admitted that it was their opinion. And, I mean, you don't need to be even a terrible lawyer to know that opinions are not defamatory. Either way, it's not difficult to see what happened next. KGW8 is reporting that the owner of ERS says he had to take down his website after receiving a ton of 1-star reviews. Not that anyone should condone leaving made up 1-star reviews, but how the hell did neither he nor his foolish lawyer realize how this was going to end up?

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posted 1 day ago on techdirt
This bill is so bad it was worth a second post. There is a reason that the Constitution contains the provision, "Congress shall make no law […] abridging the freedom of speech." And this new bill proposed by Senator Klobuchar (who really should know better) gets at the heart of it. Because what her bill would do is make a law that, at its core, pointedly interferes with freedom of speech by allowing the government to penalize certain expression. And there is absolutely no reason to believe that its choices for which speech to favor will be sound and healthy ones for society. In fact, given the performance of the previous presidential administration, there's plenty of reason to believe the result would be the exact opposite. The mechanics of this interference are fairly straight forward. Her bill, "The Health Misinformation Act of 2021," would condition Section 230's platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms' First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty. The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it's not an inherently corrupt goal she's trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic. But there's nothing about the bill that confines it to such benevolent purpose. There can't be, because that's not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong. And we know it gets things wrong. It has gotten things wrong even just with respect to this particular health crisis that the bill is supposedly limited to. At best it made innocent mistakes, like when it discouraged masks early on in the pandemic. But then there were people in the highest offices of government touting hydroxychloroquine snake oil and discouraging social distancing. There are still people in government discouraging vaccines. How can we possibly have a law where the government gets to decide what speech is favored or not when the government itself has, even within the very same health crisis that this bill is supposedly limited to, been so conspicuously unable to reliably make those choices competently? This crisis has already outlasted one administration, and while this one might like to keep people alive with credible, scientific information, the last one did not, and who knows what might be in store with the next one. But this bill would empower a Trump Administration as much as a Biden Administration to take away the right and ability of the public to speak out against its mistakes, no matter how deadly they may be. Because a government that can force platforms to only allow, for example, pro-vaccine messages on its systems can just as easily disallow them as well. And if it does, people will die. Furthermore, if a bill like this could be allowed for this crisis, it could be allowed for any. The government can always articulate some reason for why free expression needs to be curtailed. And throughout history it has regularly tried. A law like this, if it could get on the books, would signal it to keep trying on every policy issue that can possibly bear on our lives and the security and stability of our country – which is effectively all of them. Because today it's health misinformation the government is unhappy about. Tomorrow it could be elections. Policing. Terrorism. The draft. Even potentially something as banal as tax policy. There's always a reason the government can cite for why society should not be exposed to ideas out-of-step with what it has decided are the better ones. But it's the people's job to decide, not the government's. Per the constitution, it's not allowed to be the government's job. The Founders got the government out of the business of choosing which views could be permitted which could be punished with its "make no law" admonishment because there is no way for the government to pick the winners and losers in the marketplace of ideas and not risk serious damage to discourse, and with it the democracy that depends on it. And everyone in government needs to remember that.

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posted 1 day ago on techdirt
This truly is a pleasure to observe. Israeli malware merchant NSO Group -- the purveyor of powerful spyware capable of turning a target's phone into a spy agency's plaything -- is playing a whole lot of defense after leaked data seen by a number of journalists and activists appears to confirm that NSO's customers are targeting… activists and journalists. (And world leaders, religious leaders, NGO employees, and friends and relatives of all of the above…) While the origin of this data remains unclear, it appears to be related to NSO and its customers. And although NSO claims to be very selective about who it sells this powerful spyware to, its customers include governments of questionable character, including Saudi Arabia, United Arab Emirates, Mexico, Kazakhstan, and Uzbekistan. This has thrust Shalev Hulio, the CEO and co-founder of NSO Group, into the limelight. He's clearly unprepared to be there. His statements and responses to questions are, at best, contradictory. At worst, they're nothing more than deflections that aren't going to persuade anyone that the allegations made by several news agencies and rights groups are false. Here's Hulio's attempt (in an interview with Calcalist) to explain that the list of 50,000 phone numbers couldn't possibly have anything to do with NSO Group: According to Hulio, "the average for our clients is 100 targets a year. If you take NSO's entire history, you won't reach 50,000 Pegasus targets since the company was founded. Pegasus has 45 clients, with around 100 targets per client a year. In addition, this list includes countries that aren't even our clients and NSO doesn't even have any list that includes all Pegasus targets - simply because the company itself doesn't know in real-time how its clients are using the system." So, Hulio claims agencies only target a few people every year and that he knows this because "the company itself doesn't know in real-time how its clients are using the system." If the company doesn't know what customers are doing, it's pretty tough to claim definitively that they aren't targeting more phones than NSO thinks they are or that they aren't violating their agreements with NSO by pursuing "off-limits" targets like journalists and heads of state. It is possible NSO knows how many targets each customer has, but this information suggests it's pretty easy to exceed the "100 clients a year" Hulio insists governments aren't exceeding. In 2016, The New York Times reported that NSO Group charged $500,000 to set a client up with the Pegasus system, and then charged an additional fee to actually infiltrate people’s phones. At the time, the costs were reportedly $650,000 to hack 10 iPhone or Android users, or $500,000 to infiltrate five BlackBerry users. Clients could then pay more to target additional users, saving as they spy with bulk discounts: $800,000 for an additional 100 phones, $500,000 for an extra 50 phones, and so on. Here's another seemingly-contradictory statement from NSO, as provided to Forbidden Stories, which was instrumental in breaking news of this data leak: NSO does not have insight into the specific intelligence activities of its customers, but even a rudimentary, common sense understanding of intelligence leads to the clear conclusion that these types of systems are used mostly for purposes other than surveillance. There's some word salad towards the end that means a whole lot of nothing, but pay attention to the opening of this statement: "NSO does not have insight into the specific intelligence activities of its customers." If this is true, there's no way NSO can definitively claim the leaked phone number list has nothing to do with its customers. And it also can't seriously claim that it cuts off customers who abuse the product to target individuals that aren't terrorists or criminal suspects. This isn't the end of the flailing. Shalev Huilo also has conspiracy theories about the origin of the list currently in the news. "I believe that in the end it's either Qatar or BDS or both," he said. "In the end it's always the same entities. I don't want to sound cynical now, but there are those who don't want [Israel] to import ice cream or export technologies." Hulio is referring to Ben and Jerry's recent decision not to sell its ice cream in Israeli-occupied territories following years of BDS campaigns. Hulio also said that he doesn't think it's a coincidence that the investigation about his company dropped around the same time that another Israeli surveillance company, Cellebrite, is being challenged by digital rights group while attempting to go public, and the publication of an investigation about Candiru, yet another Israeli surveillance company. "It's just illogical that this is all happening at once," he said. Most of the time, coincidences are just that: coincidences. Far more rarely than people claim, coincidences aren't coincidences, but rather evidence of a conspiracy. In this case it's the former, an actual coincidence. And Hulio knows that because even he can't connect enough dots to narrow this down to a single perpetrator. And the flailingest thing of all is this statement by Hulio, which echoes the statements made by government spy agencies when they're caught with their surveillance pants down: “The people that are not criminals, not the Bin Ladens of the world—there’s nothing to be afraid of. They can absolutely trust on the security and privacy of their Google and Apple devices.” Oh really? Then all these journalists and activists who have been targeted by NSO spyware are the "Bin Ladens of the world?" That's a bullshit response, especially when Hulio admits it can't control or even monitor its customers' use of the malware it sells them. Given the number of human rights violators it sells to, people who are not criminals or Bin Laden-alikes still have plenty to be afraid of.

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posted 1 day ago on techdirt
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It's not a new thing that those without any experience in content moderation assume that it's somehow "easy" to just find and delete misinformation and disinformation online -- but it's often stunning how little they've thought through how all of this plays out. As the White House has stupidly been using its bully pulpit to pressure Facebook into deleting anti-vax misinformation, and elected officials are threatening legislation they must know is unconstitutional, none of them seem to recognize that it's not that easy. Anyone who has done any work related to content moderation knows this. They know that the vast majority of misinformation is not that easy to spot. First of all, it's not clear what is misinformation. You could have someone who gets something inadvertently wrong. Or, perhaps they just misread something or misunderstand something. Is that misinformation that needs to be deleted? Also, there are things like sarcasm or criticism that frequently repeat the misinformation in order to respond to it. Then there are plenty of things that may seem like misinformation but tend to just be people posting stuff that is technically true, but without the necessary context. Does that need to also be deleted? There are tons of degrees involved in misinformation, and figuring out what should stay up and what should be taken down is not nearly as easy as many commentators make it out to be. But, on top of that, there's the simple fact that those spreading misinformation know that they may face consequences for it, and thus they adapt their techniques. Ben Collins & Brandy Zadrozny, NBC News' two excellent reporters who focus on misinformation, are noting that anti-vax groups on Facebook are effectively trying to cover their tracks in advance of any possible crackdown on the nonsense and propaganda they spew: Some anti-vaccination groups on Facebook are changing their names to euphemisms like “Dance Party” or “Dinner Party,” and using code words to fit those themes in order to skirt bans from Facebook, as the company attempts to crack down on misinformation about Covid-19 vaccines. The groups, which are largely private and unsearchable but retain large user bases accrued during the years Facebook permitted anti-vaccination content, also swap out language to fit the new themes and provide code legends, according to screenshots provided to NBC News by multiple members of the groups. They also note that the groups have already set up secret "backup groups" in case their primary groups get shut down, they can immediately just switch over to the other group. And if you think that now that NBC News has reported on this, well, then it'll be easy for Facebook to find, that's silly as well. It assumes that no further countermeasures will be taken. Beating Facebook’s moderation system “feels like a badge of honor,” the administrator wrote, followed by a crying-laughing emoji. At the end of the post, the administrator reminded users to stay away from “unapproved words,” and pointed them to a code legend on the side of the page. Using code words to evade bans is not new among the anti-vaccine community, and it borrows from a playbook used for years by extremists on Facebook and elsewhere. The practice leans heavily on “leetspeak,” or modified language used by coders and gamers that frequently replaced letters in words for numbers or symbols during online discussions. And, the groups seem effective at finding words that will make it more difficult to search them out: Group members have incorporated a range of coded language to mask their discussions, many of which perpetuate debunked theories about the vaccines. “Danced” or “drank beer” mean “got the vaccine.” References to “Pfizer” generally use the terms “pizza” or “Pizza King,” and Moderna is referred to as “Moana.” Users generally play around with unofficial language about dancing to create more coded language. For example, one group member said her husband had become sick after going on a “cross country trip where we spent 2 nights with dancers,” referring to two people who had just been vaccinated. None of this is to say that Facebook should just throw up its hands and do nothing. But it remains stunning to me how people who just don't understand the challenges of content moderation always seem to think that (1) these things are easy to find and (2) if Facebook just took down a few accounts, these people would magically go away and the disinformation would stop spreading. It's not that simple! There are important questions to ask about how Facebook should handle this stuff, but anyone coming up with simple solutions that don't take into account reality -- both in the difficulty in identifying what is truly problematic and the kinds of countermeasures people will take -- isn't helping at all.

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posted 1 day ago on techdirt
Netflix had a pretty good run there for a long while. Thanks to low prices and an innovative streaming system, the company simply hoovered up streaming video subscribers as the cable TV industry stumbled around in the dark, busy pretending the cord cutting phenomenon either wasn't real or would end once Millennials started procreating. As a result, there was a big long window where Netflix's only real competitor was a bunch of fairly terrible "me too" half assed offerings from the traditional broadcast and cable sector. That was then, this is now. With cable giants finally figuring out this whole streaming thing (Comcast's Peacock, Dish's SlingTV, AT&T's HBO Max) after numerous face plants (Verizon's Go90, AT&T's HBOMaxUltraExtreme), and numerous movie studios and broadcasters going direct to consumer (Disney+, AppleTV+) Netflix is finally started to see its market share slowly eroded. In fact the company's latest earnings report indicates Netflix lost 430,000 subscribers in the US and Canada. Like clockwork, Netflix now has to turn from innovation to turf protection. And like the countless companies before it, part of that process involves pretending that things aren't changing under their feet. During the company's earnings call for example, Netflix executives tried to pretend roaring competition wasn't the primary reason for the subscriber dip: "In the past year and a half, Disney, Apple, WarnerMedia, Comcast and others have launched streaming platforms, and there are more than 100 streaming services for consumers to choose from, according to data company Ampere. Yet on a call for investors, executives dismissed the idea that competition was behind the weaker figures. “Does HBO or Disney... have a differential impact compared to the past? We’re not seeing that in the [data] we have,” said Reed Hastings, Netflix co-chief executive. “That gives us comfort.” Sure, some of the headaches could stem from COVID-related chaos, but it's hard to just brush off the impact Disney+ and other popular services have had on Netflix growth. Hastings' denial amusingly parallels the cable industry's "nothing to see here" approach of the last decade. However interesting it is to watch startups try to disrupt a sector, I've always found it just as interesting to watch companies gain popularity and critical mass, then inevitably pivot away from innovation to protectionism, timidity, and turf protection (Microsoft in the early aughts, Google over the last five years). Seeing whether Netflix has the chops to maintain supremacy in the face of competent competition should prove entertaining, starting with the company's foray into video game streaming. There's still a lot of obstacles for Netflix to overcome, including a flood of studio/broadcaster direct to consumer offerings, and telecom giants that are not only starting to field competent streaming competitors, but remain eager to use their monopolies over broadband to erect unfair and arbitrary competitive barriers (see: pointless broadband usage caps).

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posted 2 days ago on techdirt
We've got a double first place winner this week, with one comment hitting the top of both the insightful and funny leaderboards. It's an anonymous comment on our post about the judge who ignored the First Amendment and misread a town law in ordering a resident to remove "Fuck Biden" signs from their lawn — and it's a simple callback to another recent First Amendment ruling: Fuck cheer In second place on the insightful side, we've got PaulT responding to a pair of incorrect assertions about net neutrality: "Industry leaders fear net neutrality rules will pave the way for the government to set broadband prices" If you don't know what net neutrality is or what it does, I suppose it makes sense. "Net neutrality has become an expensive, time-wasting exercise that has little real world effect," Weird, it's the default setting outside of the US, and we have cheaper, better internet access than you do. As with healthcare debates, I'm sure someone will be along soon to explain why better service at cheaper prices with more freedom to move around and less hidden charges is awful for me. For editor's choice on the insightful side, we start out with a comment from That One Guy about the "Fuck Biden" signs, and specifically the complaint that a six-year-old might see it and need to have the word explained to them: It's four letters, not a literally magic word Ooh, I've got some bad news for you if your kids are going to be interacting with society at all... Either you'll explain it or someone else will because 'little TImmy/Suzy never hearing the word 'fuck''' is not a viable option for anyone who isn't insanely sheltered from birth to death. Next, it's an anonymous comment about the latest of the recurring fights between newspaper publishers and Google, and the claim that the latter needs to better account for the value provided by the former: The newspapers could prove that value by using robots.txt, or Google could prove the value of being listed by de-listing those papers. I know which option would cause much wailing and screaming for government aid, and its not the use of robots.txt. Over on the funny side, we've already had our first place winner above, so it's straight on to second place with wshuff and another comment about net neutrality: Look, clearly net neutrality is a horrible thing that should not be allowed. I mean, just look at all the dead people who submitted comments against it, trying to save us from beyond the grave. For editor's choice on the funny side, we start out with another comment about the "Fuck Biden" signs, this time from Stephen T. Stone in response to the claim that "an argument can be made that free speech is not infringed by requiring the Letters UCK be covered up": It’d be a terrible argument, sure, but it could be made. Finally, we head to our post about the shifty "MAGA Freedom Phone" where an anonymous commenter responded to the assertion that "this is precisely why Trump got elected. There is huge demand for this kind of product": An obsolete, barely functional shitbox, embedded with foreign government spy(ware), that actively promotes its flaws as advantages, and tows an entire fleet of low class grifters and con artists, is pretty on brand for Trump. That's all for this week, folks!

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posted 3 days ago on techdirt
Five Years Ago This week in 2016, Cy Vance was still arguing for mandated encryption backdoors with an unconvincing legal argument, while Apple was snubbing John McCain's attempts to drag them in to hear complaints about encryption, and a former Homeland Security advisor was trying to place the burden of proving backdoors are bad on tech companies. An important ruling in California reaffirmed Section 230 protections in a lawsuit against Yelp, a judge smacked down the DOJ for being lazy about fulfilling FOIA requests, and the EFF was challenging the DMCA's anti-circumvention provisions on first amendment grounds. Ten Years Ago Though there were a few things going on this week in 2011, like the continuing fight over the PROTECT IP Act, it's worth focusing on the story that was infuriating at the time and which we now know was the beginning of a terrible tragedy. This was the week that the feds charged Aaron Swartz with felony hacking for downloading JSTOR articles. The indictment was immediately huge news, and closer inspection raised lots of questions (including the curious lack of a copyright angle to the charges — though that didn't stop the Copyright Alliance from weighing in with a post full of bad analogies). Soon it became clear that the indictment lacked any real legal or moral basis to an extremely troubling degree, and the internet began fighting back by uploading JSTOR articles to file sharing sites. Sadly, this wasn't the end of the story, and there will be more to come in future weeks. Fifteen Years Ago This week in 2006, CBS was attempting a desperate strategy of selling DVDs of old news clips, Wal-Mart was making an equally desperate attempt to launch a social media network, and some quacks were claiming that iPods cause autism. A court reaffirmed that the DMCA cannot be used to block third-party repairs, MySpace was struggling to make a profit, and a printer company got in trouble for abusing trademark to block competition. We also saw a rare (in those days, and to some degree still) honest debate about net neutrality, as well as the much-anticipated opening of the floodgates on YouTube copyright lawsuits.

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posted 4 days ago on techdirt
The state of Maine recently enacted the strictest facial recognition limitations in the country, prohibiting the use of the tech in most areas of the government and preventing state law enforcement from acquiring it. The tech can still be used, but all searches must be run through either the FBI or the state's database via the Bureau of Motor Vehicles. Citizens who believe they've been unlawfully subjected to facial recognition tech can sue state agencies for violations of the law. Maine continues to increase protections for its residents. As C.J. Ciaramella reports for Reason, the state has just ended civil asset forfeiture. Maine became the fourth state in the nation to abolish civil asset forfeiture, a practice where law enforcement can seize property if they suspect it is connected to criminal activity, even if the owner is not convicted of a crime. After a bill passed by the state legislature, LD 1521, took effect without the governor's signature yesterday, Maine officially repealed its civil forfeiture laws, joining Nebraska, New Mexico, and North Carolina. This repeal follows years of abuse by law enforcement agencies in the state. More than three decades ago, the state attempted to rein this in by passing a law that removed some of forfeiture's perverse incentives by directing a portion of seized assets to be deposited in the state's general fund. Despite this mandate, a review of the program found the state had been the recipient of only a single deposit of $4,335 since 2010. Reporting requirements imposed on the Department of Public Safety were also ignored, making it difficult to tell how much money state agencies had netted from forfeiture or how often these agencies had chosen to ignore the fund-sharing mandate. This new law makes the only acceptable form of forfeiture in the state criminal asset forfeiture, which ties the forfeiture of seized assets to convictions. The law also forbids state and local agencies from trying to avoid these restrictions by inviting the feds along for the ride. Unless seized property under this section includes United States currency in excess of $100,000, a law enforcement agency, prosecuting authority, state agency, county or municipality may not enter into an agreement to transfer or refer property seized under this section to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section. It also reaffirms the Department of Public Safety's reporting requirements, mandating the posting of forfeiture records quarterly on a publicly-accessible website. Hopefully the state legislature will take its oversight position more seriously this time around to ensure the DPS actually does the reporting it's supposed to, rather than ignore its noncompliance for another three decades.

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posted 4 days ago on techdirt
One of the bigger bright spots in the last few years of often thorny or downright ridiculous policy debates has been the continued ascension of the right to repair movement. Whether it's Apple's wasteful restrictions or bullying of independent repair shops, Sony and Microsoft's efforts to monopolize game console repair, or John Deere's efforts to drive up repair costs for tractor owners, "right to repair" as a movement was born out of a genuine and bipartisan public annoyance at repair monopolies, obnoxious DRM, and self-service restrictions related to tools, documentation, and parts. And despite Apple and friends' best attempt to smear the movement as some dangerous and diabolical cabal only of use to sexual predators, its popularity shows no signs of slowing down. There's legislation pending on both the federal level and in two-dozen states. Prompted by an FTC report showing industry opposition to the movement is largely fluff and nonsense, the Biden administration recently issued an executive order urging the FTC to do more. And now the FTC, with a bipartisan vote of 5-0, has adopted a new policy paper (pdf) and says it will take tougher action against illegal repair restrictions: "The Federal Trade Commission today unanimously voted to ramp up law enforcement against repair restrictions that prevent small businesses, workers, consumers, and even government entities from fixing their own products. The policy statement adopted today is aimed at manufacturers’ practices that make it extremely difficult for purchasers to repair their products or shop around for other service providers to do it for them. By enforcing against restrictions that violate antitrust or consumer protection laws, the Commission is taking important steps to restore the right to repair." The problem, of course, is the same problem facing the FTC on numerous fronts, from privacy to safety in bleach labeling. Namely that the agency's authority is generally restricted under the FTC act to tackling corporate practices that are clearly "unfair and deceptive." The agency also continually suffers from budget and staffing shortcomings (by well-lobbied Congressional design), so tackling the full scope of a problem like this often isn't logistically or financially possible. Still, the FTC argued that there's a lot more it can do to lend markets and consumers a hand on the right to repair front, whether that's doing a better job enforcing existing warranty laws, engaging in better coordination with state and local policymakers, or doing a better job holding companies that attempt to monopolize repair accountable under antitrust law: "These types of restrictions can significantly raise costs for consumers, stifle innovation, close off business opportunities for independent repair shops, create unnecessary electronic waste, delay timely repairs and undermine resiliency,” FTC Chairperson Lina Khan said during the meeting. “The FTC has a range of tools it can use to root out unlawful repair restrictions. And today's policy statement would commit us to move forward on this issue with new vigor." Ideally you'd still want a comprehensive right to repair law to shore up shortcomings in FTC authority. Much like privacy laws, that's generally opposed by a broad coalition of cross-industry lobbyists who'd very much like to keep nickel and diming customers on a whole range of fronts, be it the phone industry or medical device manufacturing. But the more companies like Apple, John Deere, or the auto industry try to fight against reform using stupid, fear-mongering arguments, the more attention these shitty practices receive, the more annoyed the public gets, and the more bipartisan support develops. That's a major reason why right to repair went from a niche concern just a few years ago, to seeing consistent coverage via the likes of CBS News. That's a positive development any way you slice it, and a nice contrast to many of the thornier and seemingly insurmountable tech policy debates that tend to consume DC, get mired in debate, and seemingly go nowhere.

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posted 4 days ago on techdirt
This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation. A couple weeks ago, President Biden signed an executive order focused on promoting competition in the interests of American businesses, workers, and consumers, emphasizing the need to tackle high prescription drug prices that harm 1 in 4 Americans. Earlier this year, the President also signed an executive order to increase racial equity across all federal agencies. Few agencies are as ripe for this kind of transformation as the U.S. Patent and Trademark Office (PTO)—the federal agency that oversees patents, trademarks, and designs. The PTO’s work, which has often escaped scrutiny, is directly linked to issues of equity and rising prescription drug costs. As health and economic justice attorneys, we’ve worked for nearly two decades to increase equity in drug development and access, and have spent countless hours learning from patients, patent offices, community leaders, public health professionals, policymakers, scientists, economists and more. Based on our learnings from those most directly affected by the patent system, we offer ten actions the federal government should take to answer the President’s calls to promote competition and advance equity across government that can transform the patent system in the public’s interest. 1. Amend the PTO’s mission to include equity Equity doesn’t currently factor into the PTO’s decision making or operations, and that’s no accident. Advancing equity is not part of the agency’s mandate so equity concerns are not considered relevant. The PTO’s mandate relies instead on this theory of change: granting intellectual property rights will spur innovation and economic growth, and people will be better off. This assumption has gone virtually unchallenged in the last 40 years, with no critical look at whether the current model is producing its intended benefits for everyone. And as America grapples with a drug pricing crisis, and vaccine nationalism threatens the global Covid-19 recovery, the consequences of this framework are becoming increasingly clear . If President Biden is truly serious about embedding equity into every agency, we will see the new PTO director amend the agency’s mission accordingly. The agency’s ability (and willingness) to implement the recommendations that follow will depend in large part on equity officially becoming part of its mandate. 2. Collect demographic data The patent system has a long history of denying Black people opportunities for economic mobility. Even today, research by economist Dr. Lisa Cook indicates that less than one percent of patent holders are Black. In addition to racial inequities, gender inequities are present at the PTO. Women represent only 18 percent of patent holders, and leading economists predict it will still take 118 years to achieve gender parity in the patent system. We know about these disparities from academic studies and not from the PTO, which doesn’t track demographic data. Earlier this year, the bipartisan IDEA Act passed out of the Senate’s Judiciary Committee and companion legislation is pending in the House. This legislation would require the PTO to collect demographic information about applicants. Previously introduced in 2019, the bill’s advancement in this Congress is promising, but doesn’t guarantee passage given the political gridlock plaguing DC. In the meantime — since it can’t fix what it doesn’t measure — the incoming PTO director could voluntarily start collecting this data. 3. Redefine the “customer” The charter of the PTO’s Public Advisory Committee, which advises the director on patent and operational issues, states that the Committee must “represent the interests of diverse users of the USPTO.” But the PTO defines its users narrowly, as the entities or individuals using the system for patents and trademarks. As a result, the Committee is composed primarily of representatives from corporations. People with non-commercial perspectives—members of historically marginalized communities, public health experts, and patient advocates—who have a tremendous stake in how monopolies operate, for example, don’t traditionally have a voice in decision making. That naturally leads to a system in which the public interest is overshadowed by commercial concerns. The PTO should redefine its customer base to include not just those who are directly applying for patents and trademarks, but also those whose lives stand to be fundamentally altered by these decisions. The deadline recently passed on the PTO’s request for nominations for new Committee members; the time is especially ripe for it to bring in new voices to better represent the public’s perspectives. 4. Raise the bar for what gets patented Over the last 30 years, more and more patents have been sought and granted for things that aren’t novel inventions. Recent controversies illustrate the point well: these patents are often sought and granted for products derived from ancestral knowledge from countries with predominantly Black and Brown populations—the Colombian sweetener panela, or baby wraps, for example. The PTO should not be granting patents for knowledge appropriated from beyond America’s borders. The consequences of setting the bar too low have been dire. 13% of Americans report losing a loved one in the last five years due to high drug costs, and people of color are twice as likely to have lost someone. Patent monopolies, which are increasingly being used to block competition, are a root cause of this crisis, and between 2006 and 2016, the number of drug patents doubled. Our research demonstrates that the ten best-selling drugs in America each have on average 131 patent applications, and monopoly protection of up to 38 years. At the same time, nearly 8 out of 10 medicines associated with new drug patents are for existing medicines, like insulin or aspirin, rather than new ones. The longer the monopoly on a single medicine remains, the longer prices stay high or continue to rise. It’s long past time to raise the bar so that only things that are truly inventive are rewarded with a patent. For example, combining existing drugs or switching dosages should not receive additional patent protection. The administration could recommend that Congress amend the patent law to prevent weak patents from being granted. 5. Change the PTO’s financial incentives The majority of the PTO’s funding comes from fees paid only if a patent is granted, which means the agency’s revenue is directly linked to the number of patents it grants. This creates a financial incentive to grant as many patents as possible, even if claims to inventiveness are weak. At least one study found that the PTO grants patents at higher rates when revenue is strained, suggesting that patent decisions are being influenced by factors other than inventiveness. Over the last decade, over 40 percent of patents challenged after having been granted are invalidated either in whole or in part. Research shows that the push to grant ever-more patents puts a strain on patent examiners, who have less and less time to conduct a thorough review (today, the average patent review time is just 19 hours). Over the last 27 years, the PTO has granted as many patents as it had in the previous 155 years. The proliferation of low-quality patents harms people in a range of different ways, including driving up prescription drug costs. The administration could investigate the link between revenue shortfalls at the PTO and the volume of patents being granted, and evaluate alternative funding streams for the PTO so that the agency’s financial sustainability isn’t tied to the volume of patents that it grants. 6. Modernize laws that are not serving the greater public good The Bayh-Dole Act, the Hatch-Waxman Act, and the Federal Courts Act were enacted to increase innovation and economic growth. But these laws have also enabled the corporatization of medical research in ways that are deeply harmful to the public. For example, publicly funded research in universities is regularly transferred to pharmaceutical companies with few, if any, conditions to assure access to the resulting medical products. The public ends up paying twice—with tax dollars used for publicly-funded research and development, and through the often exorbitant price paid at the pharmacy. These outdated laws and other legal rulings have resulted in everything from skyrocketing drug costs, to the non-consensual appropriation of tissue from Americans like Henrietta Lacks and John Moore. (Their stories, and the ethical questions they raise, have been explored in-depth by bioethicist Harriet Washington). The administration should establish a White House task force to assess how societal harm has offset the desired gains from these 1980s-era laws. The task force should include dedicated staff with a mix of patent and equity expertise, including staff from the Federal Trade Commission, the White House Office of Science and Technology Policy, the National Economic Council, and the Council of Economic Advisors. Ultimately, the task force would produce a report that examines the underlying impacts of these laws, and provide recommendations for legislative and executive action that would reform the patent system to enhance benefits to society. 7. Reduce the cost of patent challenges Challenging a patent can be prohibitively expensive. Filing fees alone cost upward of $41,500 per patent, compared to the significantly lower financial cost of filing patent challenges in Europe and elsewhere. In a system heavily weighted in favor of commercial actors, legally challenging harmful patent monopolies that may have been incorrectly granted is one of the only avenues for creating equity in the market. We know this from firsthand experience. Our organization has, in collaboration with patient advocacy groups around the world, successfully mounted legal challenges to unjust patents. These challenges have made the market more competitive, saved health systems billions of dollars, and made medicines more accessible to millions of people across Africa, Asia, and Latin America. Americans deserve the same opportunities to participate in a system that directly affects their health and wellbeing. The PTO should bring its practices in line with other patent offices worldwide and reduce the financial costs associated with challenging a patent. 8. Reverse “discretionary denial” policies Bipartisan legislation passed in 2011 allowed any person to mount administrative challenges to patents after they were granted. Since then, opponents have repeatedly sought to weaken the authority of the Patent Trial and Appeal Board (PTAB), the body tasked with reviewing patent challenges. For example, the most recent PTO director, Andre Iancu, restricted participation by expanding the circumstances in which the agency could unilaterally decline to review patent challenges. “Discretionary denials,” as they are called, were rare in 2016 but have surged in recent years. Blocking access to one of the agency’s already limited avenues for public participation will lead to more weak patents, undeserved monopoly power for corporations, and less access to medicines and other goods that benefit public wellbeing. The administration should reverse recent policies that effectively shut the door on public participation in the patent system, and accept more challenges to weak patents. 9. Support and invest in increasing access to COVID-19 medical products Wealthy governments have swallowed up the vast majority of existing COVID-19 vaccines stock, leaving countries with predominantly Black or Brown populations virtually nothing. More than 85 lower-income countries will not have widespread access to coronavirus vaccines until 2023, which increases the risk that new vaccine-resistant variants will emerge. Indonesia and twenty African countries are the latest to feel the crushing blow of the pandemic as they face an overwhelming surge of cases without the resources and tools necessary to avoid preventable hospitalizations and deaths. These inequities are echoes of the early HIV/AIDS epidemic, a moral failure in which medicines existed to save people’s lives but were inaccessible to the vast majority of high-burden countries in the Global South. The World Trade Organization (WTO) is currently considering a proposal by South Africa and India to waive certain intellectual property provisions related to the “prevention, containment and treatment of COVID-19.” The U.S. has already voiced its support for the waiver, which if adopted would allow drugmakers in other countries to manufacture desperately needed vaccine supply and other medical products. While the waiver negotiations continue to unfold, the U.S. should remain a steadfast champion of global access to COVID-19 medical products—including vaccines—and press further. It should also compel U.S. pharmaceutical companies that used taxpayer funding to develop a vaccine to share that technology and know-how with manufacturers in other countries. These measures would set a precedent for global cooperation that would end the current pandemic sooner, and better prepare us for the next one. 10. Create a new Office of Technology Assessment New technologies, like artificial intelligence and gene editing, are raising urgent questions about ownership, inventiveness, equity, and ethics. In Congressional testimony, Dr. Shobita Parthasarathy, a professor of public policy at the University of Michigan, outlined the need to incorporate equity considerations earlier and more robustly into the innovation pipeline. President Biden should request sufficient funding for a new Office of Technology Assessment in their annual budget request to Congress (an office of the same name was defunded in 1995). Rampant misinformation on Facebook, disparities in the use of facial recognition software, and other ramifications of emerging science and technology underscore the need for a body dedicated to preventing prospective future harm. This reimagined office would engage experts and members of the public to better understand the potential consequences of new technologies, and advise the administration and Congress on how to mitigate inequitable and other socially damaging outcomes. Conclusion As the Administration commits to increasing equity and lowering drug prices, it cannot do so without transforming our nation’s patent system. Centering equity within an agency that has historically lacked it is no small task. It requires a commitment to challenge the status quo in small ways and large, and a shared belief that all our political and economic systems are stronger when they are truly inclusive. These solutions do not stand alone—they must all be integrated into the PTO’s structure and ethos to truly effect meaningful advances. By acting on these recommendations, President Biden can improve the lives of millions of Americans, and show bold global leadership in creating an economy that works for all. Priti Krishtel and Tahir Amin are the co-founders and co-executive directors of the Initiative for Medicines, Access & Knowledge (I-MAK), a nonprofit organization working to address structural inequities in how medicines are developed and distributed. They are participating in Patent Quality Week, with Engine Advocacy and others across the country, to encourage conversations on quality and balance in the patent system. Learn more here.

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posted 4 days ago on techdirt
The FBI's proclivity for inside jobs has not gone unnoticed here at Techdirt. The FBI primarily considers itself a counterterrorist agency these days, which has led to a lot of undercover work that closely resembles entrapment. Utilizing a large number of informants (some coerced into this work by threats of visa revocation, travel restrictions, etc.), the FBI has gone into the business of radicalization, turning internet loudmouths (and the occasional nursing home denizen) into would-be terrorists -- going so far as to come up with all the plans, provide all the funding, and supply all the necessary items to engage in terrorism, foreign or domestic. The focus has largely been on the nation's Muslim population, operating on the assumption that the next threat to this nation will be like the last confirmed threat to this nation -- the one observed on September 11, 2001. The FBI has been late in arriving to the domestic terrorism party -- largely because, like other law enforcement agencies, it chose to believe white nationalists and other far right extremists were less of a threat than residents with darker skin. But now that this domestic threat can no longer be ignored, the FBI has apparently thrown itself into its new work. The tactics -- quasi-entrapment utilizing a large number of informants -- haven't changed. BuzzFeed has two reports on the FBI's involvement in the plot to kidnap and kill Michigan governor Gretchen Whitmer -- one that was hatched as the nation underwent the growing pains of dealing with a pandemic while "led" by a president who claimed the virus killing thousands of US residents was either a hoax, a Chinese-led conspiracy to dethrone him, or an exaggerated threat. A handful of the defendants facing federal charges in the kidnapping case are now asking the courts to take a closer look at the FBI's involvement, claiming what happened here was more entrapment than a grassroots movement to forcibly remove a state official from office. The government employed at least a dozen confidential informants to infiltrate groups of armed extremists who allegedly plotted to kidnap the governor of Michigan, according to a new filing in federal court on Monday. The filing, made by one of the five defendants in the federal case, asked that prosecutors be ordered to share more information about those informants, their relationship with the FBI, and the specific roles they played in building the case. It came among a blizzard of 15 new defense motions in the high-profile case, including requests to move it to a different district, to suppress evidence from a search warrant, and to try at least one defendant separately from the others. For those keeping score at home: if these allegations are true, the number of FBI informants involved in this case outnumbered the non-FBI informants by a ratio of more than 2-to-1. Twelve (alleged) informants. Five (5) regular people charged in the kidnapping conspiracy. Now, I'm no expert on peer pressure, but even if the conspiracy was a straight-up democracy, the ayes would have carried the motion to kidnap, even if those votes were limited to people being paid by the FBI. There are even more details in the follow-up report, compiled by BuzzFeed after taking a look at the flurry of filings by the defendants in this case. Here's just one example of how this plot unfolded day-by-day: “Everybody down with what’s going on?” an Iraq War veteran in the group demanded to know when they ended their recon mission, well past midnight, at a campsite where they were all staying. “If you’re not down with the thought of kidnapping,” someone else replied, “don’t sit here.” The men planned for all kinds of obstacles, but there was one they didn’t anticipate: The FBI had been listening in all along. For six months, the Iraq War vet had been wearing a wire, gathering hundreds of hours of recordings. He wasn’t the only one. A biker who had traveled from Wisconsin to join the group was another informant. The man who’d advised them on where to put the explosives — and offered to get them as much as the task would require — was an undercover FBI agent. So was a man in one of the other cars who said little and went by the name Mark. The informants were anything but passive. They did far more than observe and report. They moved plans forward, supplied intel and items, and -- according to these documents -- possibly instigated the plot to kidnap the Michigan governor. And this wasn't the only plot the FBI had a hand in. One informant organized similar meetings of minds all over the country, apparently hoping to find enough far-right extremists willing to take the next step towards criminal activity if adequately goaded by the FBI's network of informants. Because of this, multiple defendants in this case are hoping a judge sees the FBI's involvement as far more than investigatory. The allegations made -- coupled with some of the evidence handed over to defendants -- appear to show FBI informants were the prime movers in these plots, pushing and cajoling reluctant targets into doing more than simply being extremely online. To be sure, there are some dangerous individuals out there. But the five rounded up here with the involvement of 12 FBI informants, for the most part, weren't. Here's BuzzFeed's description of one of the accused kidnappers, Pete Musico: Musico bragged that he had thrown Molotov cocktails in cops’ homes and showed off a lump of something he claimed was C-4. But there was no proof he’d ever attacked any officers and the plastic explosives later turned out to be fake. All the tough talk had never gotten beyond jokes and disturbing but vague rhetoric. And here's only a small part of the FBI's involvement in turning this online smack-talking into a reality: A few weeks later, [FBI informant] Dan drove five Watchmen and 6,000 rounds of ammunition to Cambria, Wisconsin, for a national training exercise organized by Robeson. He rented a Suburban for the weekend, paid for gas, and subsidized food and lodging for the group, all courtesy of the FBI. This led to the involvement of even more FBI employees. By this point, Dan had managed to insert an undercover FBI agent — “Red,” a supposed explosives expert — into the group. A second undercover agent, known as Mark, had also joined up, after a woman posing as his girlfriend had approached Fox’s then-fiancé, saying they wanted to train. Dan set them up to buy $4,000 in explosives. The only non-FBI members of this group he took with him only managed to put together $298. Despite being completely unable to buy the explosives they wanted, they were arrested by FBI agents during the so-called "buy." The entire article is a fascinating read, detailing the FBI's extremely heavy involvement in this case. It may well be a plot to kidnap the Michigan governor would have been carried out without the FBI's encouragement and funding, but the idea may also have died the swift death of thousands of other heated online conversations. Then there's this disturbing postscript: An FBI agent at the center of the investigation into the plot to kidnap and kill Gov. Gretchen Whitmer is accused of smashing his wife's head against a nightstand and choking her after a dispute stemming from their attendance at a swingers' party, according to court records. Special Agent Richard Trask, 39, of Kalamazoo, was charged Monday with assault with intent to do great bodily harm, less than murder following the alleged incident Sunday. An affidavit filed by the Kalamazoo County Sheriff's Office in Kalamazoo County District Court said Trask's wife had bloody lacerations to the right side of her head and "blood all over chest, clothing arms and hand," as well as "severe" bruising to her neck and throat. This won't help the FBI. This is something the defense can use to attack the agent's credibility -- something that can potentially undermine his testimony and statements, as well as his personal integrity. It also raises questions about how much leeway the FBI gives its agents and informants, and how much it overlooks as long as they produce results. There's still a long way to go in these prosecutions. But this doesn't look good. There may have been some people out there willing to kidnap and kill a politician they disagreed with, but this plot appears to have involved more people pretending to be conspirators than actual conspirators.

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posted 4 days ago on techdirt
I'm going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it's not very productive. Also, as you'll see below, it creates something of a mess. Meanwhile, it's only been a year since an angry party from a case showed up at a federal judge's home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges' information more private to try to prevent such a thing from happening again. So, again, don't threaten a federal judge. And given all that, it's really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren't always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge's decision. Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge -- and the (anonymous) commenter quipped "is it time to stop murdering the corrupt yet?" It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals. Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges -- including an infamous one about "wood chippers." The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out). Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner. The first comment on that post wondered whether or not anyone was investigating the apparent "corrupted impartiality" of the judge. That spurred a reply comment stating: Hell, eventually somebody might decide that it’s cheaper to pay a hitman to just cut a brake line or something than go through discovery in that judge’s court. So. It seems fairly obvious to me (and hopefully to you), that this comment is not, in any way, advocating for such a thing to happen. Nor is it suggesting a plan to do such a thing. It is noting -- as it says -- that someone might make that decision. Frankly, this comment didn't make that much sense to me. But, it's pretty clearly not a threat. However, the US Marshals decided to open an investigation into that comment. We received a phone call the morning after the comment was posted, asking to speak with "someone in your subpoena compliance section" of "your legal department" to handle an incoming subpoena. To be clear, we have no legal department, let alone a subpoena compliance section of it. However, what we thankfully have is a very helpful Ken "Popehat" White on speed dial, willing to handle these matters for us. With help from Ken, we soon received a "preservation letter" demanding that we preserve for a period of 90 days "any and all records and other evidence, including, but not limited to, transaction logs, connection logs and electronic media (uploaded images), in [our] possession relating to..." that comment and the registered user who posted it. We were told to expect a subpoena, and that the US Marshals Service was "in the process of obtaining the appropriate court orders." In addition, the letter effectively gagged us, saying that we were not to disclose the existence of the letter "in any manner that could alert the user" of the account. We do not keep our log files for that long, so we actually had to make some temporary changes, and put in place a few technical things to make sure we complied as we awaited for the subpoena. We had every intention of fighting the subpoena, and pointing out just how ridiculous it was. Yes, it's important for the US Marshals to investigate true threats on judges. But no one could seriously read that comment as a true threat. We ended up waiting out the entire 90 days, and no subpoena arrived. Again with the help of Ken, we reached out to the US Marshals, to note that the 90 days had passed and to let them know that we believed we were no longer bound by the letter. Thankfully, the US Marshals confirmed that they would not be seeking or compelling any information from us, and the preservation letter could be considered "lifted." It is a good thing that the US Marshals investigate threats against federal judges. I have no problem with them doing an investigation. And it's good that they seem to have realized the nature of this comment and decided not to move forward with the subpoena (though, they could have told us earlier...). But, it sure seems like the investigation (and the conclusion that there was no real threat) could have been done relatively quickly without having us need to get our "subpoena compliance section" (thanks Ken!) involved.

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posted 4 days ago on techdirt
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posted 4 days ago on techdirt
On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn't explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment. Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it's unconstitutional would be giving it too much credit. To say that it wouldn't even remotely do anything useful would be to state the obvious. To say that it's a grandstanding piece of absolute nonsense would be about the best thing I could think of. It's garbage in so many ways. The actual functioning of the bill would be to add an exception to Section 230's protections, saying that they no longer apply -- if it's in the midst of a health crisis -- for medical misinformation. It would add the following "EXCEPTION" to Section 230: A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality And, this law would only be in effect during a public health emergency, as declared by the Secretary of Health & Human Services. The law would also require the Secretary of Health & Human Services to "issue guidance regarding what constitutes health misinformation." That last bit should make you grimace, because that's a hugely problematic thing for the 1st Amendment. Having the government define what is and what is not "health misinformation" cannot possibly pass 1st Amendment scrutiny by a court. It's also incredibly dumb. First of all, in a "public health emergency" like we're currently going through, what is and what is not "health misinformation" is not always clear, and involves constantly changing information. Remember, we went through this with the whole "wearing masks" thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks. Under this bill, you could have had the HHS boss claim that anyone promoting mask wearing was engaging in health misinformation... and somehow try to make Facebook liable for it. Would that have been a good idea? Even worse: imagine what kind of information might be declared "health misinformation" by disingenuous grandstanders? Pro-choice information? Information about transgender health? But, going back a step: what would this law actually do, even if it weren't so blatantly unconstitutional? The answer is absolutely fucking nothing. Because, as we pointed out on Wednesday, you still need an underlying cause of action and there is none here. Okay, so now Facebook is magically "liable" for health misinformation? But as soon as anyone sues, Facebook says "that content is protected speech, so there's no cause of action here" and the court dismisses the case. Whether we like it or not, nearly all misinformation is still protected under the 1st Amendment. And, for the reasons discussed earlier, that's probably a good thing -- because otherwise, you'll have the government declaring things you agree with as misinformation, and that leads to very dangerous places. This entire bill is not just grandstanding nonsense, but a waste of time. Yes, we should be looking for ways to better educate the public about the actual efficacy of (massively successful) COVID-19 vaccines. And, yes we need to figure out better ways to reach those who are skeptical about vaccines or hesitant to get the vaccine. But this bill does none of that. It just throws a bunch of garbage out so that Klobuchar can stand before the TV cameras and pretend to do something. It's the worst kind of political grandstanding. And, while we're talking about how ridiculous this is, let's just throw in a giant "oh shut the fuck up" to Facebook as well for putting out a total garbage statement in response: "We have long supported common industry standards and section 230 reform. We believe clarification on the difficult and urgent questions about health related misinformation would be helpful and look forward to working with Congress and the industry as we consider options for reform." What a bunch of garbage. Facebook knows that this bill is a mess of nonsense, and that the 1st Amendment would stop it from having any impact. Rather than putting out a compliant, suck up statement, why can't Facebook speak up about what it's actually doing to try to deal with health misinformation on the site? That would be interesting and that has mostly been absent from this discussion beyond whatever uninformed nonsense is being stated by people outside the company about what they think Facebook is doing (which is either "nothing" according to many ignorant folks, or "censoring conservatives!" according to another bunch of equally ignorant folks). If Facebook came out and actually explained what it really is doing that would be helpful. But, of course, Facebook is trying to play the politics of all of this, rather than doing the right thing.

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