posted 15 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

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posted 15 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

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posted 16 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

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posted 16 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. 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posted 16 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

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posted 16 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

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posted 16 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

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posted 16 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

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posted 16 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

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posted 16 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

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posted 16 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

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posted 17 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

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posted 18 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

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posted 19 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

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posted 19 days ago on techdirt
So here's a Friday evening surprise: the DOJ has just seized Backpage. If you visit the site now you will see the following graphic: It notes that additional information will be provided soon, and we'll update this post when that occurs. But first, there are a few important things to note. Before and after SESTA was voted on by Congress, we noted that while supporters of SESTA kept pointing to Backpage as the reason we needed to change CDA 230, there were two reasons why we thought it was premature to make such a change. The first was that there was a court in Massachusetts considering whether or not Backpage had lost its CDA 230 immunity by being an active participant in creating trafficking ads. And the second, more important, one was that there were many reports claiming that a DOJ grand jury was investigating Backpage, and nothing in CDA 230 stopped that from happening (federal crimes are exempt from CDA 230). Last week the Massachusetts court ruled that Backpage had lost its CDA 230 immunity for at least one victim, and this week a court in Florida ruled the same thing (though for dubious reasons). And now the DOJ has seized the entire site, suggesting that the grand jury found the evidence it needed to take it down (we'll reserve judgment on that evidence until the indictment is out). And while SESTA has been approved by Congress, it is still not the law. The President is likely going to sign it next week. So we have a pretty big open question: if SESTA was supposedly necessary to take down Backpage -- and yet now both of the key reasons many of us noted that Backpage probably wasn't protected have been not just proven true, but resulted in Backpage being seized -- why do we still need SESTA? We'll be back with more later when the details are out, but for the SESTA supporters out there, let's hear your answers. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow. The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship. “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads. “No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds. If you wanted a federal constitutional provision that almost perfectly inoculated against censorious site-blocking over something as relatively mundane as copyright infringement, this would appear to be it. The writers of the Japanese constitution clearly were concerned about government censorship and specifically prohibited it. This has not stopped the government from trying to dip its toes in these waters, chiefly by pretending that copyright infringement is something that it isn't. Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code. “An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted,” the Article (pdf)begins. It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.” If Japan indeed goes down this route, it will be a complete mess at best and result in the eroding of its own constitution at worst. To combat copyright infringement. The very notion of this is insane. Creaking open the door for this kind of full site-blocking censorship, a door that will surely be burst through by every major and minor content producer in Japan and abroad, and subverting the nation's constitution in order to support one specific industry within the country that isn't hurting for money, make zero sense. The manga industry in Japan alone is a multi-billion dollar industry and it's growing. Whatever challenges it faces from copyright infringement, it's not existential in nature. As of now, the government looks to be softening its approach to make this kinda-sorta voluntary by ISPs. It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy. Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow. This has been true in virtually every case where site-blocking has been introduced. It starts off as the mere exception before being strong-armed into the rule. Don't do this, Japan. Don't torch your own constitution over a non-problem. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Following in the footsteps of misguided European lawmakers, California legislators have introduced a time-sensitive "remove speech or else" law targeting social media sites. They’ve introduced a bill that would give online platforms such as Facebook and Twitter three days to investigate whether a given account is a bot, to disclose that it’s a bot if it is in fact auto-generated, or to remove the bot outright. The bill would make it illegal for anyone to use an automated account to mislead the citizens of California or to interact with them without disclosing that they’re dealing with a bot. Once somebody reports an illegally undisclosed bot, the clock would start ticking for the social media platform on which it’s found. The platforms would also be required to submit a bimonthly report to the state’s Attorney General detailing bot activity and what corrective actions were taken. This is ridiculous for a number of reasons. First, it assumes the purpose of most bots is to mislead, hence the "need" for upfront disclosure. The ridiculousness of this part of the law's many faulty premises is only further underscored by a bot created by the legislator behind the bill, Bob Hertzberg. His bot's bio says [emphasis added]: I am a bot. Automated accounts like mine are made to misinform & exploit users. But unlike most bots, I’m transparent about being a bot! #SB1001 #BotHertzberg Hertzberg's bot must have been made to "misinform and exploit users," at least according to its own Twitter bio. And yet, the account's tweets appear to disseminate actual correct info, like subcommittee webcasts and community-oriented info. It's good the bot is transparent. But it's terrible because the transparency immediately follows a line claiming automated accounts are made apparently solely to misinform people. Plenty of automated accounts never misinform or exploit users. Techdirt's account automatically tweets each newly-published post. So do countless other bots tied into content-management systems. But the bill -- and bill creator's own words -- paint bots as evil, even while deploying a bot in an abortive attempt to make a point. Going on from there, the bill demands sites create a portal for bot reporting and starts the removal clock when a report is made. User reporting may function better than algorithms when detecting bots spreading misinformation (putting bots in charge of bot removal), but this still puts social media companies in the uncomfortable position of being arbiters of truth. And if they make the "wrong" decision and leave a bot up, the government is free to punish them for noncompliance. The bill also provides no avenue for those targeted to challenge a bot report or removal. (And no option for sites to challenge the government's determination that they've failed to remove bots.) This is a key omission which will lead to unchecked abuse. Finally, there's the motivation for the bill. Some of it stems from a desire to punish "fake news," a term no government has ever clearly defined. Some of it comes from evidence of Russian interference in the last presidential election. But much of the bill's impetus is tied to vague notions of "rightness." Hertzberg himself exhumes a long-dead catchphrase to justify his bill's existence. "We need to know if we are having debates with real people or if we’re being manipulated," said Democratic State Senator Bob Hertzberg, who introduced the bill. "Right now we have no law and it’s just the Wild West." So, summary executions of bots by social media posse members? Is that the "Wild West" you mean, one historically notorious for its lack of due process and violent overreactions? Here's the other excuse for bad lawmaking, via an advocate for terrible legislation. "California feels a bit guilty about how our hometown companies have had a negative impact on society as a whole,” said Shum Preston, the national director of advocacy and communications at Common Sense Media, a major supporter of Hertzberg’s bill. “We are looking to regulate in the absence of the federal government. We don’t think anything is coming from Washington." So, secondhand guilt justifies the direct regulation of third-party service providers? That's almost worse than no reason at all. And this isn't the only bad bot bill being considered. Assemblymember Marc Levine wants all bots to tied to verified human beings. The same goes for any online advertising purchases. Levine feels his bill will help fight the bot problem, but his belief is predicated on a profound misunderstanding of human behavior. By identifying bots, users will be better informed and able to identify whether or not the power of a group’s influence is legitimate. This will mitigate the promulgation of misinformation and influence of unauthentic social media campaigns. Yes, telling people the stuff they think is legitimate isn't legitimate always results in people ditching "illegitimate" news sources. Especially when that info is coming from a government they don't like presiding over a state many wish would just fall into the ocean. Trying to fight a bot problem largely associated with alt-right groups with legislation from coastal elites is sure to win hearts and minds. A bot-reporting portal with no recourse provisions -- and a possibile "real name" requirement added into the mix -- will become little more than a handy tool for harassment and hecklers. The cost of these efforts will be borne entirely by social media companies, which also will be held responsible for the mere existence of bots the Californian government feels might be misleading its residents. It's bad lawmaking all around, propelled by misplaced guilt and overstated fears about the democratic process. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Last December, Federal Communications Commission Chairman Ajit Pai starred in a "PSA" produced by The Daily Caller. In the video, Pai addressed all the "trolls" in the net neutrality debate, reassuring the public that they will still be able to enjoy things on the internet after its repeal. To illustrate this, Pai does the absolute polar opposite of an enjoyable thing on the internet: the Harlem Shake. That segment actually led to the video being temporarily removed from YouTube after a copyright complaint from the record label Mad Decent. Curious as to whose idea this was, I filed a FOIA for emails between The Daily Caller and the FCC, as well as any talking points regarding this huge PR coup. Four months later, the FCC responded. The agency found two pages of emails but would be withholding them in their entirety under FOIA's infamous b(5) exemption regarding deliberative process. This isn't even the first time the FCC has used b(5) to deny access to records regarding Pai starring in an embarrassing video - the agency rejected Gizmodo's request for records relating to a comedy skit in which Pai joked about being a "Verizon puppet," similarly under b(5). Read the rejection letter embedded below or on the request page. If you're interested in Pai and the fight for net neutrality, you can check out his calendar here. Republished from MuckRock Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
With 8 courses (50+ Hours), the Amazon Web Services Certification Training Mega Bundle is your one-stop to learn all about cloud computing. The courses cover S3, Route 53, EC2, VPC, Lambda and more. You will learn how cloud computing is redefining the rules of IT architecture and how to design, plan, and scale AWS Cloud implementations with best practices recommended by Amazon. The AWS bundle is on sale for $69. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Earlier this week, we announced our latest project from our think tank wing, the Copia Institute, called Working Futures. This is a project to really take an deep look at what the future of work might really look like in the next ten to fifteen years. As the first part of this project, we're asking people to take a quick survey, to help figure out which driving forces are going to play the most important role in what work looks like going forward. So far, the feedback and insights we've received have been fantastic, provocative and quite thoughtful. However, the more insight we get, the better the overall project will turn out, so if you haven't yet had a chance to do so, please head on over and take the survey. The future of work depends on you... Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it's important not to forget that Trump and Ajit Pai are just products of the country's long established bipartisan dysfunction when it comes to revolving door regulators, and it's going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom. Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a "privacy advocate," has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California. Leibowitz has been busy insisting that rampant ISP privacy abuses are a "nonexistent problem," and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC. We've already outlined in detail why that's a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be "unfair and deceptive," something ISPs can usually wiggle out of on the net neutrality front (we weren't throttling a competitor, we were protecting the safety and integrity of the network!). The FTC's also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have? Leibowitz, like other ISP lobbyists, "forgets" to mention that. With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December. Leibowitz's oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements: "According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC's jurisdiction." Again that diminished deployment never happened. ISP CEOs admit as much. Meanwhile, the "sky did not fall" because the FCC's 2015 net neutrality rules haven't even technically been repealed yet (that's expected to occur sometime in April). Even then, ISPs aren't expected to truly even start testing their newfound anti-competitive freedoms until they're sure the FCC (with ISP help) wins their looming legal battle. Even then ISPs may not truly be comfortable behaving badly until they're sure tougher state and federal rules are pre-empted (that's why they're pushing for a fake, loophole-filled net neutrality law.) Knowing that states might fill the consumer protection vacuum, both Verizon and Comcast lobbied the Trump FCC to include language in their net neutrality repeal trying to ban states from protecting consumers (from net neutrality or privacy violations). And while Leibowitz tried to warn Massachusetts leaders that they might run afoul of the Trump FCC if they try to protect consumers (oh no!), that ignores the fact that legal experts say the FCC abdicated its authority on this front when they decided to back away from classifying ISPs as common carriers. Again, dozens of individual state privacy and net neutrality protections aren't ideal, but that's something Leibowitz's client Comcast should have thought about before lobbying to demolish popular and modest federal level privacy and net neutrality protections. Meanwhile, the fact that ISP lobbyists still cling to false claims that net neutrality "demolished sector investment" speaks volumes as to the integrity of their arguments. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Governments around the world think legislation is the answer to the "fake news" problem. So far, the only thing that seems certain is these laws will be used to control the press and stifle criticism. The limited rollouts we've seen of laws governing poorly-defined speech have been uniformly disastrous. The government of India was the latest to roll out "fake news" legislation. There wasn't much debate over the law, as it was unilaterally put in place by the Indian government. The motivating factor appeared to be an attempt to quell criticism of the Indian Prime Minister ahead of next year's election. The only good thing about the decree was its extremely short shelf life. On Monday evening, the Ministry of Information and Broadcasting abruptly announced that it would penalize journalists who spread “fake news,” the term popularized by President Trump to disparage what he has regarded as unfair coverage of his 2016 American presidential campaign and first year in office. [...] Within hours of the reaction, Mr. Modi’s government annulled the announcement without explanation on Tuesday morning. “Press Release regarding Fake News uploaded last evening stands withdrawn,” the Ministry of Information and Broadcasting said on its website. This is good news, but not exactly great news. Enough resistance was raised to make the law untenable, but this short-lived effort may have been a precursor for worse decrees still to come -- a test run to see how much censorship the mainstream Indian press was willing to tolerate. And it was only the mainstream press, which is already regulated by the Indian government, that was affected. The law did not target digital news purveyors or average citizens with blogs, Facebook accounts, or other ways of spreading whatever the government declares to be "fake news." It only targeted the largest media outlets. If it had stayed in force, the end result may have been near-direct control of the largest media outlets in the country. The statement said a journalist’s accreditation would be revoked for six months after a first violation, one year after a second violation and permanently after three violations. It also said that once a complaint against a journalist was registered, his or her accreditation would be suspended until a determination had been made. In other words, the Indian government would decide who was or wasn't a journalist. Accreditation doesn't prevent journalists from working, but it does prevent them for access to public officials, as well as other side benefits like subsidized travel costs. (The latter part also raises questions about press independence.) But that was as specific as the hastily-erected (and hastily-torn down) decree got. "Fake news" was never defined and nothing in the decree stated who was able to file complaints, how complaints would be handled, and what options journalists had to challenge "fake news" charges. Supposedly, these complaints would be handled by a council composed of journalists and broadcasters, which hints at independent determinations. But both of those bodies are overseen by the Ministry of Information and Broadcasting, which makes true independence impossible. At this point, the law is dead. But it will probably be resurrected as the election approaches. Fake news -- however it's defined -- isn't going to go away. Neither is the innate desire to control narratives and stifle criticism. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
While there are absolutely far too many Techdirt posts featuring celebrity(?) Lindsay Lohan in these pages, most of them deal with one specific issue: her lawsuits against Take Two Interactive. At issue was a character Lohan insisted infringed on her likeness rights because the character is a drunk driver, public-fornicator, and has a backstory as a child actress. If Lindsay wants to insist that her own history lines up with that sort of backstory, I guess I won't argue with her, but the character has many other aspects that clearly have nothing to do with Lohan. Instead, the character is a parody of the sort the GTA series is famous for, with the target in this case being young celebrity stars and starlets. Coming along for the ride was Karen Gravano, who participated in a reality show about the wives of reported mobsters. Gravano sued over another character in the series with her filings essentially mirroring Lohan's. Take Two won both lawsuits, both on First Amendment grounds and due to the court finding that the characters were composite parodies, not representations of either Lohan or Gravano. Both plaintiffs appealed. And now the New York Court of Appeals has ruled in favor of Take Two again in both cases. Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a 'twenty something' woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law article 5. You can read the full opinion here, but suffice it to say that this should be the end of this nonsense from Lohan. At the same time, the court also ruled on Gravano's appeal, with identical findings. Concurrently with this opinion comes a loss for ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over the character of "Andrea Bottino" in Grand Theft Auto V. The appeals court fails to see a recognizable image there as well. That should be the end of that as well. One wonders just how much in legal fees both Gravano and Lohan were billed, with the next natural thought being just how much better such funds could have been used other than to engage in a prolonged legal fight without merit, with almost no chance of success, and over an issue that was not injurious to either party? Lohan in particular has a history of looking for paydays in the form of these types of lawsuits, but it's difficult to see how she could be in the black at this point. It would probably be best to simply save that money for the future. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Accountability begins at home. But nothing happens if no one's willing to make the first step. Officers who witnessed another officer's brutal act had plenty to say about it, but apparently not to anyone who mattered. Recordings obtained through records requests by NJ.com contain three hours of candid conversations between officers about the actions of Cataret, New Jersey police officer Joseph Reiman. Reiman is a military veteran and the mayor's youngest brother. Officer Joseph Reiman is also responsible for 20% of the department's force deployment. From the time Joseph Reiman was hired in July 2015, the 50-person department logged 115 incidents in which an officer used force, such as a punch, baton or weapon against a suspect, according to documents obtained under the state Open Public Records Act. Reiman, 31, the brother of longtime Mayor Daniel Reiman, accounted for 24 of the incidents, more than twice as many as any other officer. The obtained recordings captured the reactions of officers responding to the scene of an arrest handled by Joseph Reiman. When they arrived, they were confronted with a 16-year-old suspect lying face down in gravel with "blood all over the fucking place." The officers, who have not been identified, remark that this disturbing situation is par for the course for Officer Reiman. "I've been doing this less time than you but I've never punched anybody in the face like [inaudible]... never," an officer says in the recording. "That's what I told Jerome last time," another officer responds. The fact that these complaints never made their way up the chain of command likely has to do with the other officer at the scene: Charles Reiman, another of the mayor's brothers. As the officers leaving the scene point out, there's zero chance anyone in the department would be willing to pursue a case against the mayor's siblings. The official narrative to explain the events, according to the officers, started at the scene and continued at headquarters: One recalls, "When I was there, they were like, 'Well, he was in a car accident. He was in a car accident.' I'm looking at this kid's face, I'm like, "that ain't a f-----g car accident... the whole side of his face has to be away from his skull and it's like repeated... lump... lump... lump." Officer Charles Reiman, the middle Reiman brother who was the second on scene, had repeated, "He wouldn't show his hands," the same officer recalls. "Charlie's already, ya know, writing his thesis," he says. Another officer can be heard later in a separate recorded conversation,"They are going to blame it on the car accident... Nothin's gonna happen. They're gonna say nothing happen... he didn't have his body camera on." The officer already knew Reiman's body camera wasn't on and questioned whether anyone's recorded the incident. "What do you want to bet... they're all sitting around a table right now trying to get their f-----g story straight?" one officer asks after leaving the hospital. And there it is: the legal defense for Reiman's actions was in development before this second set of officers arrived on the scene. When it's a cop's word against a beaten 16-year-old, "he wouldn't show his hands" tends to give officers permission to handle the situation with whatever level of force they want to, rather than what's actually necessary. Joseph Reiman is now under indictment for criminal assault. He's still on the payroll while this advances through the judicial system. His history of excessive force is documented. Reiman is also a triple threat: writer, actor, and director of his own body cam footage. [W]hile the Carteret police force is equipped with body cameras, videos that could tell the full story in some of Reiman's encounters do not exist or have been withheld, and at least one was corrupted, according to NJ Advance Media's investigation Reiman's actions have prompted some interesting reactions. The most ridiculous reaction is that of Reiman's attorney. Joseph Reiman's attorney, Charles Sciarra, said in a statement Friday, referring to the police heard in the videos, that these "officers are known malingerers who slow roll to calls like they did on this one, and are cut from the same cloth as the officer in the Florida school shooting who stayed outside the building while those kids were slaughtered." Even if this were accurate, it would still be an incredibly shitty way to represent your client. It shows you're no better than the person you're representing -- someone willing to toss slurs at cops who don't regularly beat arrestees, and to portray appropriate force deployment as cowardice. But here's the thing: Reiman's attorney is making these accusations when he doesn't even know for sure which officers were captured on the recordings. Sciarra also called on NJ Advance Media to name the officers so the attorney could "review their pitiful arrest numbers and lack of law enforcement activity as well as their agenda." Reiman and his attorney deserve each other. Both have the mindset that efficient, brutal policing that steamrolls civilians' rights is the best policing. The other reaction is (comparatively) much better. A letter from the county prosecutor puts a new person in charge of internal investigations. This "extraordinary measure" was prompted by the department's refusal to deal with mounting excessive force allegations -- a great many of them tied to Reiman and his partner -- and it's apparent unwillingness to conduct required background checks on gun purchasers. As the letter notes, the Cataret PD has spent two years ignoring its background check duties. The scathing letter sent by Middlesex County Prosecutor Andrew Carey to borough officials --which was obtained by NJ Advance Media Thursday but dated Monday -- orders the recently hired Carteret police director, Kenneth Lebrato, to take over the department's internal affairs unit for at least six months. [...] Carey described Lebrato as "uniquely well qualified" because of his experience in the prosecutor's office. Citing internal affairs issues in the letter, Carey calls current Carteret Deputy Chief Dennis McFadden, who is referred to as the chief in the borough's news releases, "ineffective in executing his official duties." This may result in more attention being paid to the department's bad apples. Unfortunately, the better apples are only talking to each other, rather than their supervisors or city officials. Then again, the system is rigged against police whistleblowers, who will not only be ostracized, but possibly deliberately placed in danger by their colleagues. In this case, the system is even worse because the two officers involved in the cover-up of this excessive force are related to the top man in town. These officers stated as much on video: no one in the department would be willing to go head-to-head with the mayor's PD siblings. So, the burden falls on the public. Investigative journalism has forced the system to address long-ignored problems. But this only goes so far, and it only works when journalists are able to apply consistent pressure via records requests (which often involves expensive lawsuits). Public servants are shirking their duties. Cops who have a duty to intervene are refusing to do so. The refusal to engage in internal accountability shifts an undue amount of the burden to private enterprises, who have to pay to perform oversight tasks that the public is paying PD officials to perform. The Cataret PD has been willing to house abusive cops for years, all on the taxpayers' dime. Only now, after being exposed, is it seeking to address its multiple issues. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
For years we've discussed how incumbent ISPs like Comcast have spent millions of dollars quite literally writing and buying shitty, protectionist laws in more than twenty states. These laws either ban or heavily hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too: they get to refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it. ISPs and beholden lawmakers shoveled these bills through state legislature without much challenge. But as deployments like Google Fiber began highlighting how these laws actually harm efforts to improve competition (especially restrictions on public/private partnerships, essential in lower ROI areas), passing such legislation has become more challenging. In some states, that has forced companies like AT&T to try and hide competition-killing provisions in unrelated traffic or other bills. This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum. With frustration mounting over sub-standard broadband and awful customer service, more than 86 cities and towns and more than 30 counties have already overturned the law as it applies to their localities. While votes this week are still being counted (warning: adblock blocker) dozens more colorado towns are expected to follow suit this week. That includes Fort Collins, which this week voted to approve $142 million in revenue bonds to help build its own broadband network (an idea Comcast lobbyists tried to ban the city from even discussing). Six additional towns considered ballots to ignore the state law this week, and the vote totals so far aren't even close (locals tell me yes 1568 to 347 in Firestone, Yes 634 to 69 in Frisco). Locals, shockingly, are increasingly tired of broadband monopolies: "If an area doesn’t have reliable, good broadband access and availability, that area is not going to thrive,” said Jud Hollingsworth, a town trustee with Lake City, a mountain town of several hundred residents that is among the most remote in Colorado. “Residents here are saying if they could have some competition in that area, they would welcome that." Across the state in Limon, town manager Dave Stone said residents in his eastern plains community have been less than pleased with the internet service they get now. “We continually hear from people who have difficulty getting the broadband service they need,” he said. “They certainly feel there’s a need for competition in town." Again, ISP lobbyists (and the fauxcademics, consultants and think tankers paid to parrot ISP positions) have tried to argue that municipal broadband is a vile socialist cabal that threatens private industry and always results in failure. But that's not only patently untrue, it obfuscates the fact that these towns and cities are only exploring this option after the telecom sector failed for more than a decade to offer fast, affordable service thanks to monopoly power and regulatory capture. Comfy with their regional monopolies propped up by cash-compromised lawmakers, ISPs have refused to upgrade towns and cities they don't feel will be profitable enough, quickly enough. The Trump FCC's nonsensical "solutions" to these long-standing issues (killing privacy protections and net neutrality) have only made the problem worse, which, in turn, has only made the idea of community-owned and operated broadband networks more appealing than ever: "(Colorado Broadband Office Executive Director Tony) Neal-Graves said some municipal leaders in Colorado were “spooked” by the FCC’s December ruling and want to make sure they have more than just one choice of internet provider, no matter where they might be located in the state." Much like the state-level backlash on net neutrality, it's another example of how cocksure ISP lobbyists didn't quite think things through before waging their state-to-state war on competition, common sense, and public welfare. Permalink | Comments | Email This Story

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