posted 12 days ago on techdirt
Most telescopes are designed either for admiring the cosmos or Earth's landscapes, but the Omegon MightyMak was designed for both! This compact Maksutov-style telescope fits into almost any bag and offers you a wealth of observing possibilities. It has a T-2 thread lets you use it as a telephoto lens, and a standard finder shoe that accepts most popular finder scopes. Plus, with an included table-top tripod, an eyepiece, and a carrying bag you'll have everything you need to get out and go exploring. It's on sale for $110 for a limited time. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Malibu Media continues to burn judicial bridges. This is due to its habit of juggling hundreds of lit torches at any given time. Sooner or later, a few are going to get dropped. The prolific copyright troll continues to issue speculative invoices at the rate of dozens a month. Federal judges all around the country are sitting on backlogs of Malibu Media filings. But one thing remains certain: pushback by defendants tends to result in judicial examination of MM's courtroom tactics. And that's the last thing this serial litigant wants. When cases are actually examined on their merits, judges have been less than impressed. Some have noticed Malibu Media has little interest in actually serving defendants. Some have refused to let the troll dismiss cases the instant it experiences a little judicial friction. And, in Northern California, a judge has all but banned Malibu Media cases from his courtroom. Here comes more bad news for Malibu Media. As Sophisticated Jane Doe reports, MM looked ready to cut-and-run on another settlement attempt gone haywire. Instead of making off with some money or its assertions unquestioned, the defendant countersued, alleging abuse of process by the troll. The judge handling the case isn't sold on the copyright infringement counterclaim but isn't going to let MM dismiss the case and bypass possible consequences for its process abuses. The judge also explains why he won't do this with a short rundown of Malibu's trolling tactic. From the order [PDF]: The Court notes Plaintiff’s penchant for litigation, which includes its filing of more than 100 cases in this district, more than 200 cases in the Southern District of Ohio, and hundreds more across the country. See Ricupero, 705 F. App’x at 403. While Defendant’s [copyright] counterclaim is redundant, the Court finds that his concern of Plaintiff filing suit in the future without a determination on the merits is very real. The Court, therefore, hereby notices the parties that it will not accept a voluntary dismissal of the instant case unless it is with the consent of both parties. This prevents Malibu Media from dismissing its lawsuit because things aren't going the way it thought they would. I'm sure Malibu isn't thrilled with this turn of events, because it allows the defendant to move forward with his abuse allegations. Defendant alleges that Plaintiff “made knowing misrepresentations in its Amended Complaint,” that it pleaded copyright infringement “despite knowing that an IP address alone is insufficient to identify an infringer,” and that it “intentionally failed to disclose and concealed pertinent and material information regarding [P]laintiff’s knowledge of the falsity of certain claims[.]” See Answer at 12–13. Defendant specifically alleges that Plaintiff instituted the action “without any genuine intent to proceed,” and that it “used the completed service to publicly shame [Defendant].” And here it is broken down even further -- pretty much a concise summation of every copyright trolling operation ever. Assuming that these allegations are true, as the Court must at this stage, Defendant has adequately pleaded a cause of action for abuse of process. The first element, the ulterior motive, is clear: Plaintiff seeks to extort a settlement payment. The second element, the coercive act after the issuance of process, is satisfied by the alleged knowing misrepresentations Plaintiff made in its Amended Complaint. This is only part of the list of counterclaims [PDF] made by the defendant -- claims that will now be examined by a judge which will likely require Malibu to turn over information it would rather keep secret about its extensive trolling operation. Plaintiff willfully abused, misused and/or misapplied the process for an end other than that which it was designed to accomplish. Plaintiff intentionally failed to disclose and concealed pertinent and material information regarding plaintiff’s knowledge of the falsity of certain claims and the ulterior or illegitimate purpose for which the Complaints were employed. Specifically, plaintiff failed to disclose and concealed pertinent and material information that includes but is not limited to the following: a. Plaintiff instituted the original action without any genuine intent to proceed against defendant herein, but rather as a vehicle to obtain discovery of the identity and contact information of defendant and others; b. Plaintiff knows it has no basis for naming defendant/counterclaimant as the infringer, yet continues to assert the claims against him; c. Plaintiff assert its claims in order to influence the conduct of defendant in ways that are not related to the merits of its claims; d. Plaintiff used the completed service to publicly shame defendant/counterclaimant; and e. Plaintiff intends the current action to hang as a sword over defendant’s head, to extort unwarranted payments to settle claims not supportable as a matter of law. I would love to see a copy of Malibu's risk/reward analysis. Every lawsuit filed carries with it the chance its malfeasance will be exposed. There are a lot of variables Malibu can't control but it still must see enough profit to offset the risks raised by filing lawsuits by the fistful. But it won't remain that way forever. Trying to convert IP addresses into paychecks is a terrible con and Malibu is no artist. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
When last we checked in with T-Mobile and Sprint's longstanding M&A dance of dysfunction, the deal had been scuttled after Sprint was unwilling to give up control post-merger. But something in the dynamic between the two companies (more specifically T-Mobile's German owner Deutsche Telekom and Sprint's Japanese owner Softbank) appears to have shifted, and the deal nobody actually asked for appears to be back on the menu (annoying Wall Street Journal paywall warning): "Sprint and T-Mobile have rekindled merger talks, people familiar with the matter said, as the wireless rivals explore a combination for the third time in four years. The latest discussions come just five months after a previous courtship collapsed largely over who would control the combined firm. The talks also come in the midst of an antitrust fight between the U.S. government and AT&T Inc. T-Mobile and its more consumer friendly brand identity have widely been seen as a good thing for the industry (even though T-Mobile's brand schtick doesn't extend to things like net neutrality). The company's "innovative" focus on actually listening to consumers once in a while has resulted in a lot of notable improvements in the industry as other carriers play copycat, including more reasonable roaming costs, the elimination of long-term contracts, and a modest reduction in the tendency to nickel and dime consumers to death with obnoxious hidden fees. Sprint, meanwhile, has languished in a sort of brand identity hell, with most of its efforts to counter T-Mobile and resonate with consumers going nowhere. While improving slowly, Sprint pretty consistently rates last in terms of overall network quality and performance among the big four carriers, and it seems like the company has been stuck for years promising the network everybody actually wants is just around the next corner. Meanwhile despite a wealthy sugar daddy in Softbank, Sprint's debt load continues to hamstring the company's efforts at improvement. The argument has long been that combining the two companies will create a more effective competitor for AT&T and Verizon. But that's generally not how competition, or the telecom sector, works. Reducing the total number of competitors almost always results in less incentive to compete. Even with T-Mobile's disruptive habits, the wireless sector already doesn't really try too hard to seriously compete on price. And part of the reason Sprint and T-Mobile have struggled is AT&T and Verizon's monopoly dominance of fiber-based cellular backhaul, something that won't change just because of M&A mania. As they hunt for possible regulatory approval, Sprint and T-Mobile have previously tried to play on Donald Trump's facts-optional job creation claims, insisting the deal will somehow, magically, be a boon for employment. But analysts that rely on actual facts and hard data (remember them?) have argued the deal will be mammoth job killer: "Together, the companies reported employing 78,000 in their most recent disclosures. Sprint, based in suburban Kansas City, accounts for 28,000 of those, and T-Mobile for 50,000. Merging the companies, said a report by Jonathan Chaplin of New Street Research, could eliminate “approximately 30,000 American jobs” — which is more than Sprint employs. "Synergies," indeed. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
We recently noted that the latest version of the EU's copyright directive, being pushed by MEP Axel Voss (though the metadata showed that it actually came from the EU Commission), would bring back horrible censorial ideas like mandatory filtering. As we noted, such a plan would likely kill important sites like Github, which would have trouble functioning as a repository for sharing code if it had to block... sharing of code. But the plan keeps getting worse. As MEP Julia Reda recently explained, with each new version that Voss puts out, the end results are more and more ridiculous. Under the latest, it includes: News sites should not be able to give out free licenses (an “inalienable right to remuneration”) Press agencies should also be granted this right – effectively giving them control over the spreading of facts Money publishers make from the law should be shared with journalists in some cases There should be an exception for individuals who share news content for “legitimate private and non-commercial uses” A newly added justification of the law is to supposedly fight fake news Many of these ideas are similar to what Spain implemented back in 2014, as a form of a "link tax" with the goal of forcing Google to pay any publication that it sent traffic to (which, you know, sounds kind of backwards, especially given how much emphasis sites put on search engine optimization). In response to that, Google News pulled out of Spain entirely, and a study a year later found that the law ended up doing quite a lot of harm to Spanish publications -- especially smaller ones. However, as Creative Commons noted in response to this latest proposal, the most ridiculous part of all of this is that it doesn't allow sites that want to share their content to do so: This press publisher’s right (also commonly known as the “Link Tax”) already poses a significant threat to an informed and literate society. But Voss wants to amplify its worst features by asserting that press publishers will receive—whether they like it or not—an “inalienable right to obtain an [sic] fair and proportionate remuneration for such uses.” This means that publishers will be required to demand payment from news aggregators. This inalienable right directly conflicts with publishers who wish to share freely and openly using Creative Commons licenses. As we’ve warned before, an unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Other news publishers in Europe using CC licenses that could also find themselves swept up under this new provision include La Stampa, 20 Minutos, and openDemocracy. Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish. The proposal would pose an existential threat to the over 1.3 billion CC-licensed works online, shared freely by hundreds of millions of creators from around the world. Once again this appears to be copyright policy driven solely by the interests of a single party: big publishers who are annoyed at Google for aggregating news and are demanding payment. It doesn't take into account (1) whether or not this is necessary (2) whether or not this makes sense (3) what will be the impact on other aggregators (4) what will be the impact on tons of other publications and (5) what will be in the best interest of the public. It's a pretty bad way to make policy, though it's all too common when it comes to copyright. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
If everything keeps falling apart in Massachusetts, there won't be a drug conviction left in the state. The eventual fallout from the 2012 conviction of drug lab technician Annie Dookhan was the reversal of nearly 21,000 drug convictions. Dookhan was an efficient drug lab worker -- so efficient she often never performed the tests she was required to. The state moved much slower, dragging its feet notifying those possibly affected by Dookhan's lab misconduct until a judge told it to stop screwing around. There still could be more reversed convictions on the way as the state continues to make its way through a 40,000-case backlog. Those numbers alone are breathtaking. But there are even more conviction dismissals on the way. Another drug lab technician convicted for stealing samples to feed her own drug habit has tainted thousands of additional drug prosecutions. A judicial order related to her questionable drug tests is erasing a whole bunch of prosecutorial wins. The Committee for Public Counsel Services (CPCS) and the ACLU (American Civil Liberties Union) of Massachusetts said Thursday an estimated 11,162 convictions in 7,690 cases tainted by former state drug lab chemist Sonja Farak were ordered for dismissal by Supreme Judicial Court Associate Justice Frank Gaziano. Farak apparently used whatever drugs she came across during her decade-plus with the Amherst, MA drug lab. This lab was inspected in 2012 by state police, shortly after the Boston lab was shut down following the discovery of Annie Dookhan's misconduct. This apparently cursory inspection turned up nothing, and the police who can smell drugs the moment they pull over a car apparently couldn't tell Farak had smoked crack just prior to her interview with state police inspectors. Her misconduct wasn't discovered until 2013 -- nearly eight years after Farak began using drug lab drugs regularly. By 2010, Farak was snorting, smoking and swallowing not only the lab “standards” but also the police-submitted evidence, frequently siphoning from the powder cocaine. In one case in 2012, where police in Chicopee, Mass., had seized a kilo of cocaine, Farak “took approximately 100 grams from the same and used it to manufacture base cocaine” — crack — “at the Amherst Lab.” She also began seeking treatment for her addictions, the report states, creating another source of records about her drug use. Soon she began stealing from her co-workers’ samples as well, and manipulating the computer databases so that wasn’t noticed. Finally, a colleague looking for some of Farak’s lab samples found they had been tampered with, and she happened to get caught in January 2013. Once this was uncovered, the state attorney general's office released a regrettable statement claiming Farak's eight years of drug use wouldn't "undermine any cases. Three years later, a full report showed Farak's abuse of her position affected nearly 8,000 cases. It also uncovered a complete lack of standards in the Amherst lab. According to the AG report [PDF], lab security was almost nonexistent. The running of "blanks" through testing equipment (to clear residue from previous drug tests) was supposed to happen after every test to avoid tainting new tests with previously-tested substances. In reality, this only happened "every 5 to 10" tests and was wholly at the tester's discretion. The exposure of additional drug lab misconduct is more than concerning. It's terrifying. Based on results from labs subject to minimal standards, security precautions, and state oversight, people were being incarcerated. Drug sentences are notoriously harsh. Stealing from people is treated as a less severe violation than selling someone drugs they want to purchase. So is rape, assault, and a number of other crimes where no consensual transaction takes place. And yet, the evidence in these cases -- the ones capable of delivering 25-year-minimums and life sentence-equivalents -- is treated carelessly by the labs testing substances and the government overseeing them. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
There's plenty to say about Mark Zuckerberg's first congressional hearing this week (like Senator Thune's thinly-veiled threat of more SESTA-like laws, or Senator Cantwell's strange, unfocused tangent about Palantir and WhatsApp) but one exchange stands out as so utterly ridiculous that it bears special note. Senator Cruz used his time in an attempt to shift the focus onto Republican fears that Facebook is a liberal propaganda machine, and specifically tried to box Zuckerberg into declaring whether Facebook was "a first amendment speaker expressing your views", or a "neutral public forum" — and then explicitly claimed that being the latter is a prerequisite of CDA Section 230 protections. This is blatantly untrue, as that language appears nowhere in the law, and Section 230 is (as we've reiterated many times during the SESTA debate) designed to encourage moderation. But Zuckerberg's reply was, well, absurd: "I'm not that familiar with the specific legal language of the law that you speak to, so I would need to follow up with you on that." That's the CEO of Facebook — a service that not only relies on Section 230 to a staggering degree, but just played a major role in developing and supporting a law that drastically alters it — professing ignorance on the letter of the law, as though it were some obscure statute that only his legal department would be fully familiar with. Uh-huh. Now, to be fair, Cruz was trying to box him in with a loaded and ultimately meaningless question — and when you're being grilled by a panel of Senators, you've got to be pretty choosy about if and when you're actually going to say "you are incorrect, that's not true" in response to one of their questions. But... could anyone in that room possibly believe him? Or any of the rest of us? SESTA — which, again, Facebook played a major role in — had already been mentioned several times during the hearing, even alongside expressions of appreciation that Facebook helped refine and ultimately supported the bill. Even if we somehow contorted our brains to believe he is genuinely unfamiliar with the language (again: uh-huh...) that would just paint an equally terrible picture in which Zuck has been only vaguely aware of his company's policy positions all year. So, that was weird. Senate hearings like this are, of course, mostly theatrical — but that clunky bit of dialogue certainly eviscerated any remaining suspension of disbelief. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
After the recent launch of po.et, which aims to use the blockchain to create a new business model for digital media companies, Mike was... unconvinced. This led to a Twitter discussion with CEO Jarrod Dicker, which in turn led to a longer in-person conversation about the ideas behind the service and where it might go — and you can listen to the whole thing on this week's podcast episode. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
A few weeks back, Mike wrote a post detailing how absolutely shitty algorithms can be at determining what is "bad" or "offensive" or otherwise "undesirable" content. While his post detailed failings in algorithms judging such weighty content as war-crime investigations versus terrorist propaganda, and Nazi hate-speech versus legitimate news reporting, the central thesis in all of this is that relying on platforms to host our speech and content when those platforms employ very, very imperfect algorithms as gatekeepers is a terrible idea. And it leads to undesirable outcomes at levels far below those of Nazis and terrorism. Take Supper Mario Broth, for instance. SMB is a site dedicated to fun and interesting information about Nintendo and its history. It's a place that fans go to learn more weird and wonderful information about the gaming company they love. The site also has a Twitter account, which was recently flagged for posting the following tweet. Below is a screenshot of the Tweet that mistakenly got this account flagged as containing sensitive content. As you can see, this was an error. I would never post actual sensitive content. This Tweet will be pinned until the situation is resolved. pic.twitter.com/nMnElZF9uj — Supper Mario Broth (@MarioBrothBlog) March 31, 2018 For the sin of tweeting that image out, the site's entire account was flagged as "sensitive", which means anyone visiting the account was greeted with a warning about how filthy it is. What Twitter's systems thought was offensive about the image, which comes from another video from a costume company that works with Nintendo, is literally anyone's guess. Nobody seems to be able to figure it out. My working theory is that the Princess Peach's lips resemble too closely a more private part of the female anatomy and, when coupled with the flesh-colored face surrounding it sent Twitter's algorithm screaming "Aaah! Vagina!" leading to the flagging of the account. But this is just a guess, because although the "sensitive" flag was eventually removed, SMB never got any response or explanation from Twitter at all. SMB went as far as to test through dummy accounts whether the image was the entire problem. It was. After posting the image several times from other accounts, each account was flagged within minutes of the posting. It's an algorithm doing this, in other words, and one which seems ill-suited to its task. What we have here is two related problems. We have a company designed to let speakers speak employing an algorithm to flag offensive content, which it is doing very, very badly. We also have a company with a staff insufficiently capable to correct the errors of its incapable algorithm. This would be annoying in any context other than current reality, which sees rising calls for internet sites to automagically block "bad" content and do so with literally inhuman speed. That means algorithms. But the algorithms can't do the job. And with sites erring on the side of over-blocking to avoid scrutiny from both the public and governments, that means open communication is the loser in all of this. It's hard to imagine an outcome more anathema to services like Twitter than that. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
I'll admit that I'd forgotten this case was still going on, but after nearly a decade, there it is. The case involves record labels suing web hosting site Vimeo for copyright infringement. The case, which was first filed in 2009, initially focused on Vimeo's promotion of so-called "lipdubs." Vimeo is a much smaller competitor to YouTube for hosting videos, but in the 2007 to 2009 timeframe, got some attention for hosting these "lipdubs" of people singing along to famous songs. Perhaps the most famous was one done by the staff of Vimeo itself. The case has taken many, many, many twists and turns. Back in 2013, the record labels got a big win on two points. First, the court said that Vimeo may be liable for so-called "red flag" infringement (i.e., knowing that something was absolutely infringing and doing nothing about it) but also saying that the DMCA safe harbors did not apply to songs recorded prior to February 15th, 1972. If you don't recall, pre-1972 sound recordings did not get copyright protection (their compositions did, but not their recordings). So that got appealed and in 2016, the 2nd Circuit said of course those works are covered by the DMCA's safe harbors. The Supreme Court was petitioned, but declined to hear the case. And thus, the case goes back down to the district court again, with Vimeo now trying to get other claims (such as "unfair competition") dismissed under the DMCA's safe harbor provisions. And the latest ruling grants... some of them. It says that now that it's been told by the appeals court that the DMCA's safe harbors do apply to pre-1972 works, it believes that the unfair competition claims are really based on the copyright claims, and thus Vimeo is protected. The question here is whether it can also apply to non-copyright claims that are founded on copyright infringement. The answer is yes. In the same way that the statute does not distinguish between federal and state copyright-infringement claims... it does not distinguish between copyright-infringement claims and other types of claims that result in "liab[ility]... for infringement of copyright." Instead, the safe harbor precludes liability for a particular type of conduct--namely, "infringement of copyright." This reading plainly encompasses copyright-infringement claims, because "[o]ne who has been found liable for infringement of copyright under state [or federal] laws has indisputably been found 'liable for infringement of copyright.".... But it also covers other claims for which liability requires proof of copyright infringement. Whenever copyright infringement is a necessary element of a claim, liability for that claim amounts to liability "for infringement of copyright" under the DMCA because no liability could be imposed absent the relevant copyright infringement. The record labels try to get around this by arguing unfair competition is totally different, but the court rightly recognizes that if true, this would allow any copyright holder to completely get around the DMCA's safe harbors by throwing an unfair competition claim in. Furthermore, it points out that if there is no infringement of the works under the DMCA then Vimeo hasn't misappropriated any works and "without misappropriation, Plaintiffs' unfair-competition claims fail." That's mostly good news for Vimeo, which gets a bunch of claims dismissed. But not all of them. Going way back to earlier in the case, there were still claims on post-1972 sound recordings over the possibility of "red flag knowledge" which had been sitting around, and here the court finds that some of the pre-1972 songs could also have red flag knowledge. So it dismisses some, and throws some others into the other pile for when the case moves forward. As to each of those claims, Vimeo apparently concedes that Plaintiffs have alleged red-flag knowledge... The Court at this stage must accept those allegations as true and draw all reasonable inferences in Plaintiffs' favor.... And bad faith generally "may be inferred from the [defendant's] actual or constructive knowledge of the [plaintiff's]" property right..... There are also other allegations in the Amended Complaint from which a jury could reasonably infer that Vimeo had some sort of more general intent to profit at Plaintiff's expense from its users' infringements of the pre-1972 recordings. Thus, based on the Amended Complaint and Vimeo's concession that Plaintiffs have at least alleged red-flag knowledge as to the remaining unfair-competition claims, those 59 claims survive Vimeo's motion to dismiss... And thus, the case continues. As law professor Eric Goldman notes about this case, the fact that such a case is limping along in its 9th year, and still hasn't even reached the summary judgment stage, suggests some worrisome things for innovation in this market: Consider this: have you ever pondered why YouTube is the dominant video hosting platform? Here’s one hypothesis to explore. It took YouTube nearly a decade, and well over $100M, to eventually settle its DMCA lawsuit. YouTube’s competitor Veoh won its DMCA safe harbor defense in court but ran out of money and dropped out of the industry along the way. YouTube’s competitor Vimeo has been hemorrhaging cash fighting this litigation since 2009. And what potential video hosting investor wants to shovel the first $100M+ of raised capital into the inevitable DMCA lawfare with the copyright owners–before you even start building a viable or profitable business? I think we can connect the dots between the lack of competition in video hosting and the safe harbor’s (defective) design. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Get up to speed with latest in cloud computing with the $19 Essential Cloud Computing Bundle. You'll learn about cloud models, virtualization, infrastructure, security, resource management, and more. The courses cover CompTIA Cloud Essential Certification, Cloud Security Alliance CCSK, Exin's Cloud Computing Foundation, and CompTIA's Cloud+. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Another Excolo Law/1-800-LAW-FIRM lawsuit against social media companies alleging terrorism support has been shown the door by a federal judge. The survivors of Pulse Nightclub shooting sued Twitter, Google, and Facebook for supposedly being at least somewhat responsible for the horrible act carried out by the shooter. The law firms attempted to dodge dismissal under Section 230 by fashioning this as a material support for terrorism complaint. Unsurprisingly, the judge -- without ever having to address the dodged Section 230 issue -- didn't find any of the plaintiffs' arguments persuasive. The elements needed to satisfy various anti-terrorism laws simply aren't present in the complaint, and no matter how far the judge is willing to stretch the arguments, they can't be forced to cover these missing pieces. From the decision [PDF]: Accepting for the moment that Mateen’s shooting spree satisfied parts A and B of the “international terrorism” definition, the amended complaint falls short of plausibly suggesting it fits within part C. It appears to be undisputed that the Pulse Night Club attack was carried out by a single shooter — Omar Mateen — and that both Mateen and his victims were, at the time of the attack, all located and resident in Orlando, Florida, within the United States. The plaintiffs have not pointed to any “means by which [the shooting] was accomplished” that involved acts crossing any national border; nor do they point to any persons outside the United States whom the shooting was “intended to intimidate or coerce”; and they have not pointed to any international “locale in which [the] perpetrator[] operate[d] or [sought] asylum.” The only allegations of the complaint even hinting at some trans-national connection are those concerning Mateen’s viewing of videos and Internet content that the plaintiffs contend were posted by agents of ISIS. But the complaint fails to assert any facts plausibly suggesting that the substance of those videos and other messages, or the posting of them, had anything at all directly to do with the shooting, other than that the principles espoused in them motivated Mateen to carry out the dreadful act. Even if the shooter's influences were based in foreign countries, a purely-domestic act of terrorism cannot be considered international terrorism for the purposes of this lawsuit. Furthermore, the attempt to link the shooting directly to ISIS cannot be made without evidence, and despite the length of the complaint, the plaintiffs provide none. There are no pleaded facts that tend to show that Mateen carried out this act under ISIS’s express direction. To be sure, even ISIS never claimed that it had any contact with Mateen or instructed him to shoot up the Pulse Night Club. And the heaps of relatively concrete facts that the amended complaint does offer — despite the immense emotional gravity of the violent and tragic global events to which they allude — do not bridge the gap between ISIS’s violent screeds and Mateen’s shooting spree. In their attempts to span the separate streams of events described in the pleadings, the plaintiffs have shown little beyond mere happenstance and possibility. Just as futile are the claims the mere existence of ISIS-operated social media accounts somehow equate to material support for terrorism by the service providers. There are no facts that suggest that the defendants “encouraged” Mateen to commit his crimes. Likewise, the plaintiffs do not allege that the defendants provided him with any assistance, such as instructions on how to build a bomb or obtain an assault rifle. Certainly, no one suggests that any of the defendants’ representatives were present at the scene, that they had any “relationship” with Mateen, or that they were of a mind to see this horrible event take place. It all boils down to this: just because someone saw something on the internet that motivated them to commit an act of violence does not make the violent act the internet's fault. The blame for the act rests on the shoulders of the person who committed it, not the service providers whose services were used by terrorists to spread their message. Even if it's true social media companies could do better tracking down and removing terrorist accounts and their content, it still doesn't make them culpable for the Pulse Nightclub shooter's heinous act. In this case, the allegations that Mateen viewed some literature and videos produced by ISIS is not sufficient to sustain any inference that either the defendants, or ISIS, or any individual or entity directly associated with ISIS, had any discernible direct involvement in the Orlando attack. Instead, the complaint suggests, at most, that the defendants merely were aware of a generalized risk that persons associated with or sympathetic to ISIS’s cause could, at some point, derive some benefit from their services, and that, at some point (by all accounts only after the attack) ISIS became aware of and expressed its approval of the attack. Those tenuous connections do not suffice to sustain the required inference of proximate cause. With that, the case is dismissed with prejudice. The Section 230 immunity question -- raised by the defendants in their motion to dismiss -- is never addressed. But then, it really doesn't need to be. While it would be nice to have more affirmations of Section 230 immunity written into case law, the baseless anti-terrorism law allegations are more than enough to see this lawsuit join others by the same law firms in the dustbin of legal history. Not that another loss has had any effect on Excolo Law and 1-800-LAW-FIRM. As Eric Goldman reports, the questionable business model of ringing up loss after loss is still somehow generating sustainable income. Will that stop 1-800-LAWFIRM from filing more lawsuits? Of course not; they filed another one yesterday despite this ruling. I admire the lawyers’ doggedness even as I question their substantive and procedural expertise. So far, not a single one of these lawsuits has survived a motion to dismiss. But it won't stop people from trying. Targets like Facebook and Twitter are too big to ignore, even if the accusations have almost zero chance of resulting in a victory for the plaintiffs and their representatives. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Last Friday, the DOJ somehow managed to seize Backpage's websites, despite SESTA/FOSTA still lying on the president's desk waiting for a signature. The anti-Section 230 law, d/b/a an anti-sex trafficking statute, was declared a necessity by supporters -- the only thing able to pierce service provider immunity and somehow bring sex traffickers to justice by... [checks notes] arresting or fining tech company executives. The indictment [PDF] behind the DOJ site seizures has finally been made public. It contains a wealth of details about Backpage's adult ads business and a plethora of charges (93) levelled at seven Backpage principals, including founders Michael Lacey and James Larkin. What you won't find amongst the charges is anything about sex trafficking. Lacey is charged with 79 felonies, which include money laundering (which occurred after credit card companies were pressured into refusing to process Backpage ad payments), conspiracy, and 50 counts of Travel Act violations. Because Backpage processed adult ads for sex traffickers all over the nation, prosecutors are able to bring federal charges for state-level "facilitating prostitution" violations against Backpage execs under the theory these electronic transactions "crossed" state lines. So, for all the handwringing about sex trafficking and "untouchable" tech execs, the DOJ has nailed a handful of execs and foregone any concerns about their apparent role in sex trafficking. What the indictment shows is Backpage allegedly facilitated a whole lot of consensual sex between paying customers and sex workers. The indictment also inadvertently shows how Backpage made things safer for sex workers. In one internal email, LACEY actually bragged about the company's contributions to the prostitution industry: "Backpage is part of the solution. Eliminating adult advertising will in no way eliminate or even reduce the incidence of prostitution in this country… For the very first time, the oldest profession in the world has transparency, record keeping and safeguards." To the government, this is a bad thing. To sex workers, it was a way to pre-screen customers and reduce their own risks. The government really doesn't care if sex workers are beaten, raped, or killed. It would rather force the oldest profession as far underground as possible and presumably let attrition cull the supply side. Meanwhile, it will busy itself with arresting the demand side, because that's the easiest way for it to rack up convictions. It quotes an affidavit from a Boston PD detective stating that "since 2010," the PD had arrested "over 100 buyers of sex of both adults and minors through Backpage.com ads." And this stops sex trafficking how? There's no mention of pimps being arrested despite the same detective making the sworn statement that "nearly all" cases associated with Backpage "involve pimp-controlled prostitution." But that's about all the nice things I have to say about Backpage. The indictment contains details from internal documents showing ad moderators routinely stripped references to underage sex from ads so they could still allow the ads to run and presumably reach customers. They also show Backpage never implemented recommendations from NCMEC (National Center for Missing and Exploited Children) and researchers to better police ads for possible abuse of minors. The communications obtained by the government also show Backpage withheld info from NCMEC to keep its referrals to less than 500 a month. So, while it was referring plenty of stuff to the child exploitation clearinghouse, it was also holding stuff back so as not to appear to be a clearinghouse for child exploitation. As for the efforts it made to strip ads of terms and pictures that might have given away the illegal nature of the acts being advertised, I'm less appalled. To be sure, this sort of facilitation is illegal. But the moderation efforts, in some cases, prevented illegal ads from being posted and only allowed those through that eliminated indications sex was being exchanged for money. The ads were likely legal post-moderation, but the acts being slyly advertised, not so much. The bottom line appears to have been the main consideration -- not adherence to multiple statutes in the multiple states Backpage served customers. That leads to another fact routinely trumpeted by politicians and prosecutors: that the vast majority of Backpage's income came from "illegal" sex-for-sale ads. It's a fact but it's somewhat misleading. Sex ads were the only base service Backpage charged for. It was always going to make the most money from these ad sales. It's not because they were so much more profitable on their own. There's just nothing else to compare it to. Something that costs something is always going to generate more income than stuff given away for free. On top of that, this ad section -- where Backpage made money -- was already killed by Backpage voluntarily. People selling and buying sex didn't just vanish, though. It migrated to other sections of the site, just like it did when Craigslist killed their adult services section off years ago. The market didn't disappear. It just became a little bit tougher to locate. Whether you believe Backpage execs are scapegoats or pariahs, one thing is certain: legislators didn't need to tamper with Section 230 protections to make this happen. Plenty of existing statutes were available for prosecutors to wield against the website and its founders. And for all the talk of sex trafficking over the weekend, there's not a single charge related to sex trafficking in the long list being presented to a federal judge. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
For years now, the nation's broadband industry has clung to one, consistent message: anti-competitive giants like Comcast are innocent, ultra-innovative daisies, and Silicon Valley companies are a terrible, terrible menace. From Ajit Pai's bizarre attacks on Netflix to an endless wave of ISP-payrolled consultants falsely accusing Google of stealing bandwidth, major ISPs have long made it clear they see Silicon Valley not as a collaborator, but as a mortal enemy. Given ISPs routinely try to use their last-mile monopolies to harm disruptive new services with arbitrary barriers and higher, extortion-esque costs, the feeling is generally mutual. As companies like Comcast NBC Universal and AT&T (and soon Time Warner) grow and push into the internet ad industry, the ISP lobbying message has been consistent: more regulation for Silicon Valley, and virtually no regulation for the broadband industry. Given many of these ISPs are growing natural monopolies, the rules governing them have been (and should be) notably different, and sometimes stronger. After all, however bad Facebook is, you can choose not to use them, whereas if you're like more than half of America, Comcast is your only option if you're looking for real broadband. Needless to say, the entire (justified) Facebook and Cambridge Analytica fracas has give ISP lobbyists a wonderful new opportunity to push for bad legislation they'll likely be writing. Former FCC boss turned top cable lobbyist Mike Powell has been beating the "regulate Silicon Valley" drumbeat for several weeks now, blaming rising social media "mindshare" for all manner of evils. And I've noticed the arrival of several new astroturf groups calling for regulation of Facebook and Google that are tied to co-opted "minority" organizations with a history of helping AT&T covertly lobby. With Zuckerberg headed to a hearing this week, the ISP has ramped up its tap dance. This blog post by USTelecom, an AT&T backed lobbying organization, proclaims that we should look to the same industry that gave us zombie cookies for examples of exemplary behavior moving forward: "And, in the search for privacy best practices, Congress need look no further than America’s broadband providers. For over twenty years, internet service providers (ISPs) have protected their consumers’ data with strong pro-consumer policies. ISPs know the success of any digital business depends on earning their customers’ trust on privacy." From charging users more for privacy to using credit data to provide customers even worse customer service, the broadband industry has been a privacy circus for decades, making this USTelecom's apparent attempt at comedy. Charter CEO Tom Rutledge this week also joined the festivities by penning a new blog entry proclaiming that Charter really, really wants a new, comprehensive privacy law: "Tomorrow, Congress will begin important hearings to examine who is collecting what, how that data is shared and sold, and how best to protect and secure personal data when much of our lives are increasingly taking place online. As a company with over 95,000 employees that has the privilege of providing Internet service to 22.5 million homes across 41 states, we at Charter have an important stake in this conversation." Keep in mind, Charter was one of several major ISPs that lobbied the GOP and Trump administration to kill modest broadband consumer privacy protections before they could take effect last year. Those rules, crafted after endless examples of bad ISP behavior, simply would have required that ISPs clearly disclose what data is being collected and sold. They also would have required that ISPs provide working opt-out tools, and (the biggest reason ISPs opposed the rules) they would have required that consumers opt in to the sharing of more sensitive data. Yet mysteriously here is Charter, now calling for the creation of new privacy regulations: "Charter believes individuals deserve to know that no matter where they go online or how they interact with online services, they will have the same protections. Different policies leading to inconsistent protections sow confusion and erode consumer confidence in their interactions online, threatening the Internet’s future as an engine of economic growth. And as an Internet Service Provider, that’s bad for business. So we are urging Congress to pass a uniform law that provides greater privacy and data security protections and applies the same standard to everybody in the Internet ecosystem, including us." Again, Charter knows it has enough political power right now under the Trump administration and GOP that it will likely be one of the companies that gets to write whatever new privacy legislation gets proposed. And given Charter and Comcast's history, you can be pretty damn sure their version of a "uniform law" likely includes massive loopholes for ISPs, while hamstringing many of the companies large ISPs plan to compete with in the video ad wars to come. Meanwhile, the rhetoric about "applying the same standards" to everybody in the chain again hopes to confuse folks that don't understand that natural monopolies may need tougher consumer protections (which is what net neutrality was all about). It's much like the calls on some fronts for things like "search neutrality" by people that usually have no earthly understanding of what net neutrality's actually about: protecting consumers from last mile monopoly harms. There's certainly a case to be made for tough new privacy protections in the wake of IOT dysfunction and the Cambridge Analytica scandal. But it should probably go without saying that we don't want companies like Charter and Comcast to be the ones writing them. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
For years the whine-du-jour in online media circles has been about the poor old news comment section. Time and time again we've been told that in the modern era, the news comment section is an untamable and unredeemable beast: a troll-factory hellscape that is simply too hostile and dangerous to be manageable. So instead of trying to fix the problem, outlets have prevented users from commenting at all. Usually these announcements arrive with some disingenuous prattle about how the outlet in question really "values conversation" and was just trying to "build a stronger community" by muzzling on-site discourse. The real reason killing the news comment section is so popular is less glamorous. Most websites simply are too lazy or cheap to try and explore solutions, since "quality discourse" isn't something site bean counters can clearly monetize. Many other editors simply don't like having an area where plebeians can so clearly and obviously outline errors made during reporting. Many of these editors believe we can and should return the bi-directional internet back to the "letter to the editor era," when publishers got to choose which member of the public was heard. So while "who cares about on site community" becomes the trend, the New York Times is trying something particularly blasphemous in 2018: actually interacting with their readership. Several columnists have taken to the website's still-operating comment section as part of what columnist Frank Bruni says is part of a newfound effort at the paper to actually talk with readers from "time to time": "I'm the column's author, hereby beginning a Times-encouraged experiment of joining the Comments thread from time to time. Thank you, PaulB67, and thank you, all, for reading us and for engaging in this conversation." And: "Hi. I'm the column's author; with The Times's encouragement, we writers on staff are beginning on occasion to join the Comments threads on the stories we publish." Of course actually interacting with your readership is well out of line with fashion trends at the moment, and it's unclear how dramatic the Times' effort will be or if it will stick around. Most websites would rather outsource all public discourse to Facebook where it becomes SOP. But it runs in line with comments that former Times editor Liz Spayd began making a few years ago, namely that treating your audience like human beings instead of an irredeemable pile of jackasses might actually help foster better public discourse: "Clearly, there is more to understanding readers than to literally have editors interact with them each day. Nonetheless, the small number of consumer-facing staffers is indicative of the bigger problem: a newsroom too distant from the people it serves... What would prove more fruitful is for newsrooms to treat their audience like people with crucial information to convey — preferences, habits and shifting ways of consuming information. What do they like about what we do and how we do it? What do they want done differently? What do they turn to other sites for?" That this is a novel idea tells you just far off trail we've wandered. Spayd has since departed the Times to go work as a Facebook public image consultant, but apparently her lofty goal of actually giving a damn (TM) appears to have stuck around at the Times, for now. Again, actually interacting and caring about your audience is important, but recent evidence also suggests it doesn't really take much effort to craft tools that can have an immediate, positive impact on the quality of public discourse in comment sections. Yes, the news section is filled with a lot of bile and buffoonery, but the idea that this means all on-site news readers should be muzzled continues to be a popular, but flimsy, narrative. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
A federal judge in Kentucky has just handed down a disappointing decision granting the state's governor the right to continue blocking as many constituents as he wants on Twitter and Facebook. The suit was brought by two blocked constituents who argued the governor's blocking of their accounts amounted to a violation of their First Amendment rights. It goes without saying the blocked accounts were critical of Governor Matt Bevin. Rather than recognize the harm done by an official government account that only removes criticism, the court likens the blocks to throwing away hate mail or hanging up on aggrieved constituents. From the decision [PDF]: Here, internet speakers want to use private internet platforms (Twitter and Facebook), used by the Governor to express his views and opinions as Governor, to force him to listen to their views. He might be wise to do so, but since a “person’s right to speak is not infringed when government simply ignores that person while listening to others,” Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 286 (1984), the Governor is not required to do so. That is why Plaintiffs are unlikely to succeed on the merits of this case and consequently their Motion [R. 3] is DENIED. The First Amendment gives you a right to speak, but not a right to be heard. That's the court's opinion. This doesn't bode well for plaintiffs currently challenging Donald Trump in court over his Twitter block list. As the court points out later, being blocked by the governor doesn't prevent constituents from telling others about their problems with the state's governor. They just won't be able to confront him more directly. Ultimately, Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires. As a general matter, constituents don’t have a right to be heard and Governor Bevin has no obligation to listen to everyone who wishes to speak to him. . . . Further the term ‘block’ conjures an image much harsher than reality. No one is being blocked from speaking on Twitter on Facebook. They are still free to post on their own walls and on friends’ walls whatever they want about Governor Bevin. But this take -- however logical it may appear -- misapprehends the balance of power. The judge has given Governor Bevin exactly what he wants: a public account for pro-governor propaganda, basically. The court agrees Governor Bevin should be allowed to restrict anything that doesn't portray him as he'd like to be seen. As Venkat Balasubramani points out, social media accounts are there to encourage public interaction, not serve as a virtual government sound trucks. Assuming for the sake of argument that a politician may set up a page solely to make heard her views, you wonder whether Bevin really adhered to whatever restrictions this may require. You wonder whether his account posted the stray praise or personal matter. And it also allowed comments. I mean, that’s pretty much the whole point of social media (“join the conversation!”), but it seems that once he’s out there posting on a particular topic, the bar, if it should exist at all, should be high for him to restrict others from chiming in. The court agrees with Bevin’s argument, which is similar to one raised by President Trump that inability to restrict unwanted messages on his pages undermines “the public images that he desires”. This sounds a lot like the exclusion of certain viewpoints, which of course is not allowed. Eric Goldman breaks it down further, noting that the governor's social media accounts are unambiguously official accounts. These are government accounts and the government is deleting comments and posts by critics of the government. The end result is a gift to politicians who are both thin-skinned and power-hungry. The court embraces a distressingly authoritarian view of government. The court says “Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires.” WTF? We aren’t talking about some shut-in person who little connection to others and no interest in engaging with the world, we’re talking about one of the 50 elected governors in our country. The court is trying to justify the governor’s censorious efforts by euphemistically saying the governor isn’t “suppressing” speech (though that’s exactly what the governor is doing); and dictators routinely justify censorship on the grounds that he/she is just trying “to present a public image that he desires.” FFS. What's the court's solution? Post stuff wherever you want -- just not on official government pages. And if you don't like the status quo, change it. Ultimately, Governor Bevin is accountable to the public. The public may view his Page and account if they wish and they may choose to re-elect him or choose to elect someone else if they are unhappy with how he administers his social media accounts...Though Plaintiffs might disagree with his social media practices, the place to register that disagreement is at the polls. Got that, citizens? If you're unhappy with your representation, don't bother alleging violations of your rights. Nope, just bide your time and vote in the next election. In the meantime, elected officials will be able to run official social media accounts filled with nothing but praise, presenting a skewed view of their popularity. And this is all thanks to a federal judge -- someone who never has to answer to angry citizens for bad decisions because his position isn't subject to voters' whims. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
A recent Inspector General's report laid bare the FBI's real motivations in the San Bernardino shooting case. It didn't want a technical solution. It wanted judicial precedent. While the DOJ presented its claims that no tech breakthrough was forthcoming, the FBI's left and right hands were operating independently. Technically, this means Comey and the DOJ did not lie when they told a federal judge and Congress (respectively) that an All Writs Act order was the only solution. But dig deeper into the report, and you'll find information much more damning than some truth-fudging. One division of the FBI, which had been explicitly asked to search for a way to hack into the locked iPhone, only made a half-assed effort to do so, in hopes of slow-walking the FBI into favorable precedent. The FBI's cryptographic unit (CEAU) was supposed to keep looking for a solution, but it didn't. It asked some cursory questions and then sat back to watch the courtroom drama. Another area of the agency -- one supposedly limited to national security investigations -- did manage to find a solution via a third party. The Remote Operations Unit had this vendor drop everything else and work on an iPhone crack to help the CEAU out. Unfortunately for the helpful ROU official, the CEAU head didn't really want a solution and was irritated when one was found. The reason the CEAU and ROU weren't speaking to each other directly was related to the ROU chief's belief its tools were not meant to be used in standard criminal investigations. The CEAU, however, felt it could use national security tools possessed by the ROU whenever necessary, even when the investigations had nothing to do with the agency's national security work. Joseph Cox at Motherboard points to a couple of footnotes in the Inspector General's report that indicate the FBI has ignored this "wall" at least twice in the past. One mentions the ROU chief, based on long standing policy, sees a “line in the sand” against using national security tools in criminal cases—this was why the ROU initially did not get involved at all with finding a solution to unlocking the San Bernardino iPhone. [...] “The ROU Chief was aware of two instances in which the FBI invoked these procedures,” a footnote in the report reads. In other words, although it seemingly only happened twice, the FBI has asked for permission to use classified hacking techniques in a criminal case. The report does not provide any more info about the FBI's internal wall-breaking, but Cox speculates it may have something to do with its child porn investigations. The malware the FBI deployed to expose visitors of darkweb child porn sites was originally unclassified, but the FBI attempted to classify the exploit post-deployment for supposed national security reasons. And, indeed, the FBI has deployed this twice (that we know of) to target child porn site visitors. The wall is there for a reason. If the exploits and tools are classified, the use in standard criminal investigations raises the chances they'll be exposed in court. It also initiates mission creep. Powerful tools become routinely-deployed exploits, eventually lessening their effectiveness and slowly (but surely) stripping away the layers of opacity surrounding them. This is what has happened with Stingray devices. Originally, the repurposed military gear was used in only the most dire situations. Now, they're used to track people stealing fast food. In the process, the tool no one ever wanted to talk about has gone mainstream, with extensive paper trails emanating from courtroom decisions and public records requests. The FBI had concerns Stingrays would become exactly what they are now: standard equipment, rather than overpowered tools that should only be deployed when public safety is threatened. It knew the slippery slope towards standardized use would end up exposing the devices and their capabilities. This is why it tied up agencies with non-disclosure agreements and demands it be consulted whenever info about Stingrays was requested by the public or at risk of being disclosed in court. But there's another side effect of breaking down this wall between national security and vanilla law enforcement. The implications of this range far beyond the possible burning of a useful investigative tool. When the FBI uses classified tools to engage in normal investigations, defendants are placed at a severe disadvantage. “When hacking tools are classified, reliance on them in regular criminal investigations is likely to severely undermine a defendant’s constitutional rights by complicating discovery into and confrontation of their details,” Brett Kaufman, a staff attorney at the ACLU, told Motherboard in an email. “If hacking tools are used at all, the government should seek a warrant to employ them, and it must fully disclose to a judge sufficient information, in clear language, about how the tools work and what they will do,” he added. Perhaps the FBI's Remote Operations Unit was more aware, or simply more considerate, of the Constitutional implications of bringing hacking tools over the wall. The CEAU chief, at least according to this report, was less concerned about the constitutional implications but extremely worried any new tool might undermine the DOJ's push for compelled assistance precedent. As a whole, the FBI is only mildly concerned about violating rights. The agency's continuous creation of easily-indicted "terrorists" is only part of the problem. Beyond that, the agency appears to be willing to use any tools to achieve any ends… including ignoring its many options if there's a chance a court might deliver an opinion it can use to force US companies to crack open devices for it. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Since the whole Facebook/Cambridge Analytica thing broke, we've been pointing out that there are many, many valid concerns about things Facebook has done, but people seem to be freaking out about things it didn't actually do and that's bad, because freaking out about the wrong things will make things worse, not better. Indeed, that seems to be the direction things are heading in. One thing I've noticed in having this discussion a few times now both online and off is that there's appears to be a bit of Facebook derangement syndrome going on. It seems to go something like this: Facebook did some bad things concerning our privacy, and therefore every single possible thing that Facebook does or Mark Zuckerberg says must have some evil intent. This is silly. Not only is it obviously wrong, but (more importantly) it makes it that much more difficult to have a serious discussion on the actual mistakes of Facebook and Zuckerberg, and to find ways to move forward productively. I'll give one example of this in practice, because it's been bugging me. Back in January, in the podcast we had with Nabiha Syed about free speech and the internet, where the question of platform moderation came up, I brought up an idea I've discussed a few times before. Noting that one of the real problems with platform moderation is the complete lack of transparency and/or due process, I wondered whether or not there could be an independent judicial-type system that could be set up to determine whether or not an account truly violated a site's policies. As I noted in the podcast, there could clearly be some problems with this (our own judicial system is costly and inefficient), but I still think there may be something worth exploring there. After all, one reason why so many people get upset about internet companies making these kinds of decisions is that they don't know why they're being made, and there's no real way to appeal. An open judicial system of sorts could solve at least some of those problems, bringing both transparency and due process to the issue. And while I've talked about this idea a few times before, I've never seen anyone else appear to take it seriously... until I was surprised to see Zuckerberg suggest something similar in his interview with Ezra Klein at Vox. That interview has been criticized for being full of softball questions, which is pretty fair criticism. But I still found this part interesting: Here are a few of the principles. One is transparency. Right now, I don’t think we are transparent enough around the prevalence of different issues on the platform. We haven’t done a good job of publishing and being transparent about the prevalence of those kinds of issues, and the work that we’re doing and the trends of how we’re driving those things down over time. A second is some sort of independent appeal process. Right now, if you post something on Facebook and someone reports it and our community operations and review team looks at it and decides that it needs to get taken down, there’s not really a way to appeal that. I think in any kind of good-functioning democratic system, there needs to be a way to appeal. And I think we can build that internally as a first step. But over the long term, what I’d really like to get to is an independent appeal. So maybe folks at Facebook make the first decision based on the community standards that are outlined, and then people can get a second opinion. You can imagine some sort of structure, almost like a Supreme Court, that is made up of independent folks who don’t work for Facebook, who ultimately make the final judgment call on what should be acceptable speech in a community that reflects the social norms and values of people all around the world. Huh. That's almost exactly what I suggested. Again, I also see some potential problems with this kind of setup and am not 100% convinced it's the best idea -- but it does solve some of the very real existing problems. But, the knee jerk "everything Zuckerber says must be bad" crowd kinda took this statement and ran with it... straight into a wall. Here's the tweet that Laura Rosenberger, a former high level government staffer, had to say in response to that part of Zuck's interview: If you can't read it, she says: This is terrifying. Facebook essentially sees itself becoming a system on world governance, complete with its own Supreme Court. So, first of all, this gets what Zuckerberg said exactly backwards. Indeed, it takes a special kind of "must-hate-on-everything-he-says" attitude to misread a statement about being more transparent and more accountable to an outside set of arbitrators, and turn it into Facebook wants to build its own Supreme Court. I mean, he literally says it should be an outside panel reviewing Facebook's decisions, and she turns it into "Facebook's own Supreme Court." But, of course, her tweet got tons of retweets, and lots of people agreeing and chipping in comments about how Zuckerberg is a sociopath and dangerous and whatnot. And, hey, he may very well be those things, but not for what he said here. He actually seemed to be recognizing the very real problem of Facebook having too much power to make decisions that have a huge impact, and actually seemed to open up the idea of giving up some of that power to outside arbitrators, and doing so in a much more transparent way. Which is the kind of thing we should be encouraging. And, instead, he gets attacked for it. If that's what happens when he actually makes a potentially good suggestion that results in more transparency and due process, then why should he bother to keep trying? Instead, he can do what people keep demanding he do, and become an even more powerful middleman, with even less transparency and more control over everyone's data -- which he could now do in the name of "protecting your data." So can we please get past this Facebook derangement syndrome where people are so quick to read the worst into everything Facebook does or Zuckerberg says that we actively discourage the good ideas and push him towards even worse ideas? Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to "settlement" offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they're not infringing). However, due to a bunch of weird details in that case -- including a judge who made it clear he didn't think the internet was such a big deal -- Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox's case, which included the fact that it had a "repeat infringer policy" but it didn't follow its own policy. That's really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn't. While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Title III judge in the case has accepted the recommendations of the magistrate, which you can see here. Neither UMG nor Grande Communications are probably all that happy with the results (same probably goes for Rightscorp.), though UMG is probably happy that the case is at least moving forward on claims of contributory infringement. Grande's management company, Patriot Media Consulting, is dropped from the case, and the vicarious infringement claims are dropped as well. People often confuse "vicarious" infringement and "contributory" infringement as they're both forms of secondary liability for service providers. Vicarious infringement, though, requires two specific prongs: the right and ability to supervise or control the infringing activity, and the direct financial benefit from that activity. In other words, you need to be pretty damn involved and making money directly off of that specific infringement. In this case, the magistrate judge realized that clearly is not the case with an ISP: The closest that the Complaint comes to addressing this issue is the allegation that “the availability of music —and particularly UMG’s music— acts as a powerful draw for user’s of Grande’s service, who use that service to download infringing music files using BitTorrent protocols.” ... This is not sufficient to show the “direct financial interest” necessary to support a vicarious infringement claim. There are no allegations that Grande’s actions in failing to adequately police their infringing subscribers is a draw to subscribers to purchase its services, so that they can then use those services to infringe on UMG’s (and others’) copyrights. Instead UMG only alleges that the existence of music and the BitTorrent protocol is the draw. But that would impose liability on every ISP, as the music at issue is available on the Internet generally, as is the BitTorrent protocol, and is not something exclusively available through Grande’s services. Accordingly, the Court finds that UMG has failed to plead facts showing that Grande receives a direct financial benefit from its subscribers’ infringing conduct, and that UMG’s vicarious copyright infringement claim should be dismissed for failure to state a claim. Contributory infringement, on the other hand, is the concept that comes mainly out of the famous Grokster ruling, and basically says that if the service provider is inducing infringement, then they can also be liable for contributory infringement. Grande tried to get around this by using the Sony Betamax standard, noting that there were substantial non-infringing uses of its service, and thus it shouldn't be held liable for some infringement that does occur. The magistrate judge doesn't seem entirely won over by Universal's argument, but suggests at the motion to dismiss stage -- at which point the judge is required to treat everything the plaintiff claims as true -- there's enough in the pleadings to allow the case to move forward: The Court acknowledges that this is not yet a well-defined area of the law, and that there are good arguments on both sides of this issue. However, at this point in the case, the Court is persuaded that UMG has pled a plausible claim of secondary infringement based on Grande’s alleged failure to act when presented with evidence of ongoing, pervasive infringement by its subscribers. That's not exactly a strong endorsement, and if I were Universal Music's lawyers, I'd be worried about how things will go at the next stage (most likely summary judgment). Grande now gets to make the case that it did not "induce" infringement on its network, and merely failing to do what Rightscorp demands hardly reaches the level of inducement. To me, that's a pretty strong argument, but judges in copyright cases often seem to lose perspective when it comes to any kind of infringement. This will be an important case to pay attention to. As a separate note, I'm a little surprised that the Supreme Court's Packingham decision, saying that the government can't kick people off the internet, didn't come up yet in this case. I imagine it will at some later date. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Just about everybody seems to have an app idea they think is great. The problem is actually building it. The eduCBA Mobile App Development Bundle contains more than 100 courses to teach you everything you need to know about building mobile apps. Starting from scratch, you'll learn how to create apps for yourself or professionally in no time at all. It's on sale for $29. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Broadband ISP CenturyLink has been on the receiving end of an ocean of lawsuits accusing the company of billing fraud after a whistleblower (who says they were fire for bringing it up to management) revealed systemic efforts to routinely overbill users and sign them up for services they never asked for. And while CenturyLink tried to claim an investigation of itself found no wrongdoing (shocking!), State AGs like Minnesota's Lori Swanson say in their complaints (pdf) that they've found plenty of evidence proving that billing fraud was a routine occurance at the broadband provider. Most of these lawsuits have since been combined into one class action suit. And CenturyLink has since developed a fairly creative attempt to dodge legal liability for its misdeeds: by claiming it doesn't technically have any customers. Technically CenturyLink has 5.66 million broadband subscribers as of last year, but a new brief filed by the company tries to argue it's not culpable because "CenturyLink" is technically just a holding company that manages 10 subsidiaries around the country: "That sole defendant, CenturyLink, Inc., is a parent holding company that has no customers, provides no services, and engaged in none of the acts or transactions about which Plaintiffs complain," CenturyLink wrote. "There is no valid basis for Defendant to be a party in this Proceeding: Plaintiffs contracted with the Operating Companies to purchase, use, and pay for the services at issue, not with CenturyLink, Inc." Customers signed up for business relationships with those 10 companies (Qwest Corporation; Embarq Florida, Inc.; Embarq Missouri, Inc.; Carolina Telephone and Telegraph Company LLC; Central Telephone Company; CenturyTel of Idaho, Inc.; CenturyTel of Larsen-Readfield, LLC; CenturyTel of Washington, Inc.; CenturyTel Broadband Services, LLC; and Qwest Broadband Services, Inc.), most of which are just holdover names left over by the company's 2011 acquisition of and earlier fusion with CenturyTel and Embarq. Domains for those companies all resolve to CenturyLink.com. Because customers signed user agreements with those ten subsidiaries holding them to binding arbitration, CenturyLink lawyers argue that CenturyLink proper can't technically be sued for wrongdoing. You'll recall that thanks to AT&T and a 2011 Supreme Court decision, companies can now strip away your legal rights via fine print, instead forcing you into binding arbitration, where the corporation is victorious more often than not. And while the class action system is arguably broken (unless your criteria involves helping lawyers buy new boats), the arbitration system we've supplanted it with is arguably worse. Needless to say, the plaintiffs trying to hold CenturyLink accountable for routinely ripping them off aren't impressed by the company's strategy: "We reject these heavy-handed, anti-consumer tactics and the absurdity of these shell entities that CenturyLink claims to operate under," Meiselas said..."The arbitration clauses they're trying to enforce post-date the litigation," he said. "The arbitration clauses they're trying to enforce post-date the litigation," he said. Even with Supreme Court ruling ISP efforts to shovel users into binding arbitration isn't always successful, depending on state law. For example a US District Court judge in California recently ruled that AT&T couldn't force customers into binding arbitration because California law prohibits some aspects of mouseprint arbitration efforts. CenturyLink, meanwhile, is one of several U.S. telcos that have been hemorrhaging customers thanks to their refusal to seriously upgrade their aging copper networks at scale. Between that and the company's billing shenanigans (which include imposing fees for doing absolutely nothing), CenturyLink's effort to have zero customers may just prove successful yet. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
From the very beginning of SESTA and FOSTA, its backers kept insisting that the bill was necessary to takedown Backpage.com. Indeed, Senator Rob Portman, in announcing SESTA, entitled his press release "Senators Introduce Bipartisan Legislation to Hold Backpage Accountable." And he's spent the past six months pointing to Backpage as the reason we absolutely needed SESTA. At launch, his quote was the following: For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. Except, as we pointed out multiple times, that's not at all what courts have said. What they've said is that CDA 230 immunizes the site from certain types of liability. But as two recent courts -- not to mention the DOJ shutting down Backpage on Friday -- have made clear, nothing in CDA 230 immunizes Backpage from illegal activity that it directly engaged in. So you'd think that maybe, just maybe, Senator Portman would recognize that SESTA was a giant unnecessary boondoggle that puts a ton of people and speech at risk. But, nope. Instead, he's released a statement praising the action and pretending that SESTA will "hold online sex traffickers accountable." “I’m pleased that Congress has taken additional steps by passing my SESTA legislation to let sex trafficking victims seek justice and allow state and local law enforcement to swiftly prosecute websites that violate federal sex trafficking laws. This bipartisan measure will make it easier to hold online sex traffickers accountable, and I look forward to seeing President Trump sign this bill into law next week.” Except not a single thing in SESTA holds online sex traffickers accountable. Indeed, it does the exact opposite of that, in that it makes it that much more difficult for law enforcement to track down actual sex traffickers. Prior to SESTA, websites (including Backpage) frequently worked with law enforcement to help them track down those using their platforms for illegal activity. Under SESTA, no site will be willing to assist law enforcement in such a manner, because doing so will provide evidence of "knowledge" and thus, potentially, criminal liability. This sweeps the problem of sex trafficking under the rug, which might make Senator Portman feel better, but does nothing to tackle the actual problem, and makes it that much more difficult to find and prosecute actual traffickers, let alone find and rescue victims held against their will. Still, at least Senator Portman acknowledges that SESTA/FOSTA has not been signed into law yet. That basic fact apparently escaped Representative Mimi Walters, who provided the amendment that attached SESTA to FOSTA in the House. She actually took to Twitter to claim that Backpage was shut down because of her amendment: That's pretty incredible, considering her bill hasn't been signed into law yet. You would think that a Representative would know that her own bill wasn't a law yet, wouldn't you? Or does Congress not work that way? Anyway, SESTA/FOSTA is not the law yet, and it clearly wasn't used to take down Backpage. And, of course, what was Rep. Walters' reason for pushing SESTA in the first place? The need to take down Backpage. So, not only is she not admitting that her law (which she said was necessary) was not, in fact, necessary, she's now living in a fantasy world where her law must have helped, despite it not yet being a law. Can we elect better people to Congress please? Then we have Senator John McCain. His wife has been at the forefront of the anti-Backpage campaign for many years. Indeed, many people I spoke to on Capitol Hill said that it was John and Cindy McCain's support for SESTA that made the bill viable in the first place. So it's no surprise that Cindy McCain was quick to tell the media how good the seizure is, calling it a "good day." And then the Senator put out the following statement celebrating the takedown, but oddly insisting it proves why SESTA was needed. The seizure of the malicious sex marketplace Backpage.com marks an important step forward in the fight against human trafficking. This builds on the historic effort in Congress to reform the law that for too long has protected websites like Backpage from being held liable for enabling the sale of young women and children. Today’s action sends a strong message to Backpage and any other company facilitating online sex trafficking that they will be held accountable for these horrific crimes. But, considering that Backpage was taken down prior to SESTA becoming law, how can McCain honestly claim that the law protected Backpage from being held liable? It did not. It only protected them from liability for actions of third parties. It has never protected the site from liability for its own actions. And the takedown on Friday proved that. So it's quite bizarre for McCain to pretend otherwise. Either way, all of this is yet more evidence that SESTA was never truly about going after Backpage. That was all just a convenient excuse to gut Section 230 of the CDA and pave the way for changing some of the fundamental open parts of the internet, closing them off and putting up more and more gatekeepers. That those who supported SESTA and insisted it was necessary to take down Backpage are now pretending otherwise just underlines that fact. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Another day, another security breach. Another day, another security breach handled badly by the company leaking data. Another day, another security researcher being treated like garbage for attempting to report it. Etc. Etc. The victim perpetrator here is Panera Bread. Researcher Dylan Houlihan informed Panera Bread its online ordering service was leaking data. This notification happened months ago. In August 2017, I reported a vulnerability to Panera Bread that allowed the full name, home address, email address, food/dietary preferences, username, phone number, birthday and last four digits of a saved credit card to be accessed in bulk for any user that had ever signed up for an account. This includes my own personal data! Despite an explicit acknowledgement of the issue and a promise to fix it, Panera Bread sat on the vulnerability and, as far as I can tell, did nothing about it for eight months. Houlihan emailed Mike Gustavision -- then Panera's head of security -- about the vulnerability. Like many other discovered data leaks, all a user had to do was alter digits in company's online ordering site to view other people's personal information. Users did not even need a Panera account to do this. Houlihan's notification attempt was greeted with derision by Panera's security head. [Click for a larger version.] Dylan, My team received your emails however it was very suspicious and appeared scam in nature therefore was ignored. If this is a sales tactic I would highly recommend a better approach as demanding a PGP key would not be a good way to start off. As a security professional you should be aware that any organization that has a security practice would never respond to a request like the one you sent. I am willing to discuss whatever vulnerabilities you believe you have found but I will not be duped, demanded for restitution/bounty or listen to a sales pitch. Eventually, Gustavision provided a PGP key and allowed Houlihan to send him info on the site's vulnerability. But, as Houlihan points out, this is no way to treat someone reporting a possible breach. Not only was the immediate response needlessly combative, the company's response to the notification was to do nothing until it was publicized by other security researchers. This was contrary to Gustavision's statements to Houlihan, which claimed Panera's security team was "working on a response." That was the claim last August. Houlihan continued to check the site since his own information was included in what was exposed and nothing changed until April of this year, eight months after being notified. Somehow, Panera was magically on top of the situation when it went mainstream. After Brian Krebs spoke to the company's CIO about the breach, Panera briefly took its site offline for maintenance. It then declared it had fixed the hole within two hours of notification, glossing over the fact it had been notified eight months earlier and done nothing. It also downplayed the problem as only affecting a small portion of Panera customers. Almost minutes after this story was published, Panera gave a statement to Fox News (no link will be provided) downplaying the severity of this breach, stating that only 10,000 customer records were exposed. In essence, it lied to press outlets seeking comment. Security researchers noted the problem hadn't even been completely fixed yet. Almost in an instant, multiple sources — especially @holdsecurity — pointed out that Panera had basically “fixed” the problem by requiring people to log in to a valid user account at panerabread.com in order to view the exposed customer records (as opposed to letting just anyone with the right link access the records). And it was far, far bigger than Panera publicly claimed. Krebs initially estimated the exposed records at 7 million. Additional research by Krebs showed multiple divisions of Panera were affected by the same vulnerability (like its online catering service). After examining APIs used by Panera's online services, Krebs estimates close to 37 million records have been exposed. What will Panera learn from this? Whatever it does learn won't spread to other companies, that's for certain. Breach after breach has shown us companies are willing to shoot the messenger, cover up the damage, ignore repeated notifications, and obfuscate when breaches are finally exposed. Panera didn't handle breach notification worse than other companies have. It just did as little as possible until forced to confront the problem. This mindset is shared by far too many entities. They love scooping up personal data, but not the security responsibility that comes with it. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
This week, our top comment on the insightful side came in response to the disturbing Supreme Court ruling on police shootings. Uriel-238 had a sad and simple thought: Once again, history rhymes. [We indict the King of Great Britain] For protecting [English soldiers], by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States -- Thomas Jefferson, among the indictments in the Declaration of Independence. In second place, it's Ehud Gavron who appears to have some first-hand knowledge of the DOJ's Backpage seizure: Today's "Raid" in Tucson's premiere colocation facility Five FBI and one IRS (Treasury) agents showed up, armed with a search&seizure warrant and some sidearms. We were impressed they can wear 5.11 tactical pants in the hot Arizona heat. They were professional, courteous, and allowed us to contact the point-of-contact for Backpage's hosting provider. (We merely provide the colocation datacenter space, not the servers or content). They took all the servers offline, extracted from racks, photographed them, and took them away. I offered to get them stock shots of other servers, since servers from the outside don't really tell you *anything* about content on the inside or who posted it. Also in the warrant they intend to seize the "criminal intent of the mind" but it wasn't clear of whose. I asked about how they intended to do that... and got a smile. And now there are reports they also raided the backpage founders' homes ... I have to wonder why today... Ehud For editor's choice on the insightful side, we start out with an anonymous commenter who was understandably confused about the ridiculous patent being wielded by a troll against Spotify: I didn't realize Spotify was selling a music playing computer. The very first of the claims are definitely not how music services function. Soundcloud, et. al. have no real need of a sound card. The patent covers a PC-ish device to be a music player. The current providers have zero need of a sound card. 1998 this might have seemed like innovation to the unaware but post Alice it's a freakin joke. Next, we've got a response from drewdad to our post about copyright lawyers freaking out that photos taken by AIs could be in the public domain: It is a problem... for lawyers The problem is that copyright lawyers need copyrights to litigate. Of course they want everything under a copyright. Over on the funny side, our first place comment is from Stephen T. Stone about the Iowa town that tried to shut down a resident's critical website complaining about the stench from a meat processing plant: "Now Sibley's known for something other than blood plant stench. It's known for employing officious, censorial busybodies who seem to believe the only permissible speech is speech they like." There's a difference? In second place, we've got an anonymous commenter responding to our description of PACER's morass of fees: Do a search? That'll cost you 10 cents. View a docket in a long case? With no warning, that could add $3 to your bill Not even Comcast is as good at hiding fees as PACER is. For editor's choice on the funny side, we start out with an anonymous comment about a lawyer's bogus copyright claim over the use of his headshot, and the question of who actually took the photo — which these days is not always so simple: It was a monkey, so it should be immediately clear to everyone that no copyright...oh. Wait. And finally, we've got a non sequiter (as far as I can tell) comment from That Anonymous Coward spurred by a typo in our headline ("scorebard"), and which surely either came from or is destined to become a Dungeons & Dragons meme: Strength is being able to crush a tomato. Dexterity is being able to dodge a tomato. Constitution is being able to eat a bad tomato. Intelligence is knowing a tomato is a fruit. Wisdom is knowing not to put a tomato in a fruit salad. Charisma is being able to sell a tomato-based fruit salad. A tomato based fruit salad is salsa! Hey guys, I found the bard. That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Five Years Ago We saw a mix of court rulings this week in 2013, with Aereo winning a victory before its eventual defeat, ReDigi losing in its attempt to resell MP3s, and a judge granting a copyright troll the maximum statutory damages in a default case. Meanwhile, the Prenda saga came to another apex with the second hearing before Judge Otis Wright. Prior to the day, Ken White from Popehat took a look at what the judge might do, and then he provided a tremendous writeup on the 12-minute hearing in which Team Prenda pleaded the fifth (a transcript of which would later be released). Then Ken closed things out by declaring Prenda a dead law-firm walking based on what he saw. Ten Years Ago This week in 2008, the BBC was fighting back against ISP traffic shaping, and UK ISPs were fighting back against BPI demands that they do it — all while it looked like traffic filters didn't actually work anyway. Meanwhile, there was some confusion over whether a court had ruled that "making available" is or is not distribution for the purposes of copyright infringement, though another court was much clearer in declaring that it's not. And, in a historic moment for the history of music, the echoes of which still shape our world today, major record labels teamed up with MySpace. (/s) Fifteen Years Ago This week in 2003, though there was less war-related hacktivism going on than some people expected, it was increasingly clear that the Iraq War was profoundly impacting people's internet and news-reading habits — and could even be called "the killer app for broadband" with the way it appeared to be spurring adoption. (Even AOL wa shifting its focus!) Meanwhile, the government took one of its perennial swings at encryption by trying to criminalize it, while the ACLU was slightly expanding its mandate to get involved in the surveillance fight. Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting. In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening. Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits. The Ninth Circuit's opinion stripped the officer of his immunity. This decision reestablishes it. And it reminds cops de-escalation rarely needs to be considered as a tactic because the courts will have their back in almost every case. While the presence of a knife suggests some sort of objective danger, the person experiencing the threat was Hughes' roommate, not the cops on the other side of the fence. (And she testified she did not feel threatened.) It took only 60 seconds for one officer to resort to deadly force, based solely on the fact that Hughes refused to immediately drop the knife. The presence of a weapon changes the math a little, but it shouldn't change it so much as to dismiss this appeal with an unsigned opinion and zero input from the engaged parties. The dissenting opinion [PDF], written by Justice Sotomayor (and joined by Justice Ginsburg) points out the "threatening" situation used to justify the shooting wasn't all that threatening -- not even for other officers on the scene. Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” Appellant’s Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured. [...] Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chainlink fence. If this truly was a "reasonable" use of force under the circumstances, you'd think Hughes would be dead, shot by multiple officers multiple times. But only one officer found the situation dire enough to shoot Hughes without warning. By refusing to weigh the arguments (and by choosing to rebuke the Ninth Circuit Court of Appeals for stripping away the officer's immunity), the Supreme Court has issued another blank check to be cashed at will by officers all over the nation. When events are unfolding quickly, the proper answer is to escalate the situation, rather than try to slow everything down and see if everyone -- not just the cops -- can make it out alive. Sotomayor then goes on to point out this isn't just a qualified immunity problem: it's a Supreme Court problem. As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” [...] Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment. This decision won't make the nation's policing any better. It will just make everything's that's already bad even worse. The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. This is what it boils down to: a free pass on deadly force. Unless the courts can push a case directly on point in front of the justices, officers will get a pass just for claiming they feared… something. As Scott Greenfield points out, the reason no discussion was needed prior to the SCOTUS decision is the court already knew what it thought about reasonable uses of force, and this one was reasonable enough to dispense with the opening pleasantries. Whether it’s “palpably unreasonable,” however, ignores the Supreme Court’s holding. It is not so glaringly wrong to the majority of the Court, to the majority of Americans and to the majority of police officers. In baseball, a tie goes to the runner. In police shootings, a tie goes to the cop. If there is any question of threat, the law is prepared to give the cop the benefit of the doubt. And whether there is any question of threat is a decision only cops can make. We don’t get a vote. This type of city hall can't be fought. It can only be adjusted to. Unreasonable deployments of force will still be considered "objectively reasonable" in a great majority of decisions. Violations of rights won't be treated as violations unless they're so flagrant even deferential courts can't ignore them. Every decision like this is just another stack of paper to add to citable case law when defending officers who've killed people who really didn't need killing. Permalink | Comments | Email This Story

Read More...