Posted on Techdirt - 4 December 2013 @ 8:05pm
We've written several times about the ridiculous and tragic outcomes of school zero tolerance policies, especially when enforced by "resource officers" (the more child-friendly term for law enforcement officers deployed in schools).
Zero tolerance policies have been on the rise since the mid-90's, thanks to the War on Drugs. High profile school shootings over the past decade have only made these policies worse, as did tying school funding to certain enforcement measures. The problem with these policies is they remove any nuance from discipline, leading to a pop tart bitten into the shape of a gun being treated with the same severity as an actual weapon.
These policies don't solely affect drug and gun possession. They have also been rewritten to cover many other infractions, thanks to the (perceived) rise in bullying and cyberbullying. The end result has been an increase in suspensions, expulsions and arrests, frequently over disciplinary problems that would have been handled in a more rational fashion (and by school administrators, rather than LEOs) before these policies were put in place.
It now appears some schools around the nation are realizing these policies have done more harm than good.
Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses.
Perhaps nowhere has the shift been more pronounced than in Broward County’s public schools. Two years ago, the school district achieved an ignominious Florida record: More students were arrested on school campuses here than in any other state district, the vast majority for misdemeanors like possessing marijuana or spraying graffiti.
By removing administrators' ability to tailor punishments to the student by considering extenuating circumstances, zero tolerance policies have demanded a perverse form of consistency that results in large numbers of suspensions and arrests. Now, schools are starting to realize that these actions only lead to further problems and further separation of at-risk students from an education.
Rather than push children out of school, districts like Broward are now doing the opposite: choosing to keep lawbreaking students in school, away from trouble on the streets, and offering them counseling and other assistance aimed at changing behavior.
These alternative efforts are increasingly supported, sometimes even led, by state juvenile justice directors, judges and police officers.
Throwing kids into an already-congested criminal system and crippling their future for minor violations is a very strange way to turn them into educated and useful adults. For many schools, zero tolerance policies have shifted their focus from education to enforcement, to the detriment of their students. When a school becomes a rough approximation of a prison, the students will suffer, as has been evidenced by years of declining test scores.
“What you see is the beginning of a national trend here,” said Michael Thompson, the director of the Council of State Governments Justice Center. “Everybody recognizes right now that if we want to really find ways to close the achievement gap, we are really going to need to look at the huge number of kids being removed from school campuses who are not receiving any classroom time.”
This push towards a more discretionary approach to discipline is not just coming from parents and faculty. It's coming from up top, as well.
Beginning in 2009, the Department of Justice and the Department of Education aggressively began to encourage schools to think twice before arresting and pushing children out of school. In some cases, as in Meridian, Miss., the federal government has sued to force change in schools.
In Broward County, some immediate results of the shift away from zero tolerance have already been observed.
School-based arrests have dropped by 41 percent, and suspensions, which in 2011 added up to 87,000 out of 258,000 students, are down 66 percent from the same period in 2012, school data shows.
All of this adds up to at-risk students spending more time in classrooms and getting additional assistance to work through their problems. It's certainly not going to turn every student around but it has an infinitely higher chance of doing so than the normal "processing" (i.e., suspend/cuff/expel) did previously.
Hopefully, Broward County's success will be sustained and prompt others to reconsider their policies. This sort of change would go far towards turning our schools back into schools, rather than the glorified juvenile detention centers zero tolerance policies turned them into.
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Posted on Techdirt - 4 December 2013 @ 12:33pm
The drawn-out process in which a bill becomes a law lends itself to harmful things, like mission creep and bloating. Canada's new cyberbullying legislation, problematic in its "purest" form, is now becoming even worse as legislators have begun hanging language aimed at other issues (child porn, terrorism, cable theft [?]) on the bill's framework.
As was noted earlier, language aimed at punishing revenge porn had already been attached to the bill. But the urge to target as much as possible with a broadly written bill is too much for Canada's politicians to resist. Michael Geist notes that Bob Dechert (Secretary to the Minister of Justice) took a moment during the debate to speculate about the "dangers" of "stolen" cable.
With respect to the cable, I would like the member to consider if his cable were being tapped into by someone who was transmitting child pornography over the Internet, or if his home Wi-Fi was being tapped into by someone who was using it to cyberbully another child, he would want to know about that and he would want that to stop. The modernization of those provisions is simply to bring them up to date.
The amendments proposed on those long-standing offences of stealing cable are already in the Criminal Code in section 327. They simply update the telecommunication language to expand the conduct, to make it consistent with other offences…
However, I would like him to think about the potential for someone who is doing cyberbullying, transmitting child sexual images, or perhaps planning a terrorist act, doing it by tapping into some law-abiding citizen's cable or Wi-Fi Internet access.
The code Dechert refers to deals with theft of services
. What Dechert is hoping
to do is turn a targeted law into something that can be used to pursue vagaries. By throwing cyberbullying, child porn and terrorism into the mix, Dechert is hoping to limit opposition to this "update" of the language.
Geist doesn't think much of Dechert's statement.
In other words, Dechert is suggesting that accessing a neighbour's cable or wireless Internet access might somehow be linked to planning a terrorist attack, sending child pornography, or engaging in cyberbullying. I would happy to think about the potential for cable theft to play a role in terrorist plots. In fact, I think most would agree that there is no likelihood whatsoever and that the government should stop trying link provisions in their "cyberbullying bill" that have nothing to do with cyberbullying.
The odds, as Geist points out, are almost nonexistent. But very slim odds are a legislator's best friend. No one wants to be caught out by the unexpected, especially when they had a chance to head it off back when the bill was being written. So, a lot of "just in case" rhetoric is deployed, accompanied by fearful projections.
If this line of reasoning is allowed to proceed, Canadians could be looking at the possibility of legal penalties for running unsecured WiFi connections. It seems implausible, but this has been witnessed before
. Back in 2010, a German court
stated that those running open WiFi connections could be fined for not securing their networks (thus "enabling" illegal activity). Copyright maximalists have made the argument several times
that an open WiFi connection is "negligent." When the realization sinks in that it's easier to target the listed subscriber rather than find out who exactly was performing criminal activities on an open WiFi connection, you can be sure that the solution will be routed along the path of least resistance: holding the subscriber responsible for the actions of others.
And, as Geist points out, the mission creep in this bill is astounding. What was meant to target cyberbullies has instead become a playground for legislators
. A nearly non-existent threat is being used to beef up the penalties for cable theft, as though that
part of the equation were the greatest deterrent to illegal activities. It's also concerning that the additional powers being granted to law enforcement outside
of the cyberbullying scope were omitted from the government's official "introduction" to the bill
(posted without the bill's text). This omission seems to indicate that the crowd-pleasing "cyberbullying" angle will allow legislators to copy-and-paste whole sections from a previously unsuccessful "lawful access
" bill, itself defended
with cries of "child pornography."
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Posted on Techdirt - 4 December 2013 @ 9:53am
Recently, Xbox users uploading gameplay videos with recorded commentary were surprised to find themselves booted from Upload Studio for their use of "adult" language. Microsoft apparently intends to run a very clean service, but it also bans a common slang word for penis, which also happens to be the co-op player's name in Dead Rising 3. So, you can see where the ideal begins to clash with reality.
The clash turns to cognitive disconnect when you take into account the number of foul-mouthed protagonists of popular M-rated games. Microsoft apparently has no problem with the actual gameplay consisting mainly of gunplay and f-bombs, but its customer base had better not be adding in any colorful verbal explosions of their own.
Microsoft's sliding ban scale still allows most swearing players to access other areas of its online offerings, but temporary-to-complete bans of all services are still an option for those who can't keep a civil tongue in their headset.
Following on the heels of this news is the discovery that swearing too much during gameplay can have consequences within the games themselves.
In a video that's both amazing and a little creepy, one gamer playing NBA 2K14 shows how he was given a technical foul after the Kinect heard him curse. In an actual NBA game, referees can hand out technicals if players swear excessively, and it looks like the same happens in NBA 2K14.
Here's the video. (SFW? Well, it obviously contains swearing…)
And it's not just basketball. Players of Unamerican Football are being served with sternly-worded notices from their club's board of directors.
These same "features" were noted on the PS4 versions, which means it was a developer decision rather than a Microsoft "exclusive." Both games do offer the option to toggle off the potty mouth penalties, thus allowing gamers to play them as God intended when He/She/It gave them expansive four-letter-dependent vocabularies.
Now, while Microsoft has been dealing with degenerate vernacular, Sony has taken a decidedly hands-off approach to user-generated content. Its system also utilizes an (optional) camera and mic. PS4 users are (well, were
) able to stream video live thanks to Sony's partnership with Twitch and its pre-loaded alternate-reality game, The Playroom.
The Playroom gives PS4 users a squad of tiny digital "robots" to interact with. And interact they have, often bypassing the digital playmates completely in favor of interacting with other players.
To date, there have been no users banned for talking like over-caffeinated sailors. Sony gave its users the freedom to use the system however they'd like. And users responded by doing exactly that
[The users have] put shoes on their head at the exhortation of others watching their broadcast live. They've had sex in front of their TV screen. They've stripped their wife naked as she lay seemingly unconscious on a couch. They've had to explain to a local police department that they didn't have a child locked up in their basement after viewers called to tip the cops off to the suspected crime.
Other bizarre and disturbing behavior has also been noted. A user tormented a young child by pretending he was lurking outside his house. The hosts of "The Spartan Show," a call-in show that swiftly gained a following on Twitch, was besieged by trolls who taunted the hosts and hit them with a barrage of cruel questions.
Twitch has now banned streams from Sony's "Playroom." It says it will consider reconnecting the two once PS4 users "become more familiar with the games-only focus of Twitch content." In other words, you can have your stuff back when you've shown me you've matured.
So, did Microsoft make the right move by using a version of the "broken windows theory
" (ban small-time swearing and the larger problems vanish)? Or is its policy simply unreasonable consider the number of M-rated titles it supports? Or did Sony just screw up by assuming its customers would create nothing but beauty and kindness (and unit-moving videos) when given access to live-streaming?
The only way you learn is by trying. Sony erred on side of the freedom while Microsoft erred on the side of caution. Points will be scored by Microsoft simply because its users have yet to upload rapey videos. Treating the average gamer (still hovering around age 30 despite the influx of younger gamers using tablets and mobile devices) like a child
will only get you so far. Any platform will be misused by a certain subset of humanity --that's a given -- but that's no reason to overreact far in advance
of potential issues.
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Posted on Techdirt - 4 December 2013 @ 8:53am
The Dallas Police Department can't seem to get its officers' statements on shootings to agree with recordings of the incidents. So, it's doing what any forward thinking law enforcement agency would do -- changing the rules.
Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.
And even before they give a statement about the shooting, the officers can watch any available video before they give a statement.
Very convenient. This policy change, which was ushered in under the cover of the Thanksgiving holiday, will help ensure that DPD officers don't find their statements directly contradicted by the inconveniently unblinking eye of the camera, as happened just recently.
On October 14th, Dallas police officer Cardan Spencer shot a mentally ill man four times in the stomach
. According to Spencer's partner, Christopher Watson (who wrote the report), the man (Bobby Gerald Bennett) moved "in a threatening manner" towards him and the other officer. Watson's statement even went so far as to say
Bennett "lunged" at them. A statement released by the DPD a few hours after the shooting claimed the situation "escalated."
A surveillance camera caught the entire confrontation on tape. Less than 20 seconds pass before Spencer opens fire. See if you can catch a glimpse of the "lunge" or the "escalation."
Bennett never lunges. He doesn't do anything more threatening than stand up from the chair he was sitting in. Four bullets later, Bennett is on the ground. Somehow, being shot four times by a DPD officer is "aggravated assault," a charge the DPD pressed (it was later dropped
) while Bennett was still in critical condition.
As a result of this, Spencer was fired and Watson suspended for making false statements. But this was only after Bennett's mother took the video to the media. Before she did this, DPD Chief David Brown watched the video and claimed his own officer's statement trumped his lying eyes
"The unfortunate thing here is that Officer Watson's statement really overrode what the video showed," Brown said. "We had not at that point determined if the video captured the entire incident, or if the video had not been altered in any way. We put a lot of credibility on officer's statements until we have other evidence to prove otherwise."
Not so much anymore. Former DPD officer Cardan Spencer may be facing assault charges for shooting Bennett. Perhaps the saddest aspect of this whole debacle is the fact that Bennett's mother called the police because she was afraid her son (who has mental issues and was off his medication) might hurt himself
As this has caused the DPD considerable embarrassment (not the least of which is the chief claiming a recording of the shooting is less trustworthy than statements given by an officer later suspended for making false statements), the only solution was (apparently) to buy time for officers to fix their narratives should inconvenient recordings surface.
Supposedly, this 72-hour waiting period is better for memory. Chief Brown refers to research by Alexis Artwohl
which indicates recall of traumatic events increases over time
. Immediate statements may be less accurate. That may be, but this report has been available since 2002 and there hasn't been a large shift in policies regarding police shootings across the nation. This looks like nothing more than someone finding the justification they need to install an insular policy that will allow bad cops to be even worse. This gives shelter to liars by allowing them to craft a plausible narrative that can't be undone by a single surveillance video.
This also doesn't explain why police insist on questioning suspects and eyewitnesses immediately
after a criminal incident. But Artwohl has an explanation.
Artwohl, the memory expert, said officers treat civilian witnesses differently because officers won’t always be able to find the person again. That usually isn’t true of officers, she said.
Unsurprisingly, attorneys for the Dallas Police Association "applauded" Chief Brown's application of an additional layer of paint to the thin blue line. Anything that makes it easier to defend cops who are threatened by people standing motionless is a win for the PD's lawyers.
Defense attorney Mark Bennett flips the scenario to show just how outrageous this policy would be
if it was applied to anyone else.
As a result of this incident, the Dallas Police Department changed its policy regarding gang-related shootings. Instead of pressing gang members for statements immediately after shootings, police officers will advise them that they have seventy-two hours to get together and make up a story, and will provide them, during that time, with any video the police can find, so that they can conform their stories to the video.
It makes no sense, does it, that police policy should not just permit but encourage members of a criminal street gang who witness a gang-related shooting to take three days to talk to each other and their lawyers and review the facts that are beyond dispute before making a statement?
It makes sense only if the police want the perpetrators of such shootings to walk free. The idea would be farcical if the criminal street gang were anything other than the police.
It's a farce, alright. The DPD has just ensured no one
will trust the narratives constructed by its officers. And every citizen who's been paying attention will know to hang onto their recordings
for at least 72 hours, rather than see it twisted into "evidence" that keeps bad cops employed.
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Posted on Techdirt - 4 December 2013 @ 5:39am
The more statistics are gathered on broadband speed, the more evidence accumulates that the United States' lack of true broadband competition is holding this country back. Karl Bode at DSLreports points to the latest data gathered by Ookla, which shows the US is still lagging behind several countries in connection speed.
According to the latest Speedtest.net data from Ookla, the United States has fallen to 31 in mean downstream broadband speed, behind such countries as Uruguay, Estonia, and Latvia. Ookla notes they collect the data from millions of user connections, measuring the "rolling mean throughput in Mbps over the past 30 days where the mean distance between the client and the server is less than 300 miles."
As Bode points out, part of this is due to the geographic sprawl of the United States. Many of the countries listed above the US (Malta, Macau, Luxembourg) are exponentially smaller than the US. But that's not the entire story. Countries with comparable sizes rank near the US in speed. One is Russia (#35), whose infrastructure is still hit-and-miss (but still a bit of an overachiever
). The other is Canada (#37), a country with its own competitive issues
Even weighing those factors, the lack of competition is still the main contributor to these under-performing speeds. As Bode notes, the speed results are also low because many customers don't purchase the fastest tier available. Again, this is because faster tiers are prohibitively expensive for most users. If other countries are obtaining better speed results, their customers are being offered faster speeds at affordable prices.
Not only are Americans connecting at subpar speeds, but they're not even getting what they've paid for. Ookla's "Promise Index" compares actual speeds with advertised speeds. According to its numbers, the US ranks 28th in the world
. The actual percentage isn't terrible (92.95%) but it is another sign that there's a reason every advertised broadband package contains those two special words, "up to."
There doesn't seem to be much improvement on the horizon, either. Time Warner Cable is for sale and it's made it clear its preferred buyer is none other than Comcast
, a cable company that routinely finishes towards the "top" of Consumerist's "Worst Company in America" polls
. This would effectively give Comcast one-third of the national broadband market. This purchase would need approval from regulators (the DoJ and the FCC), but these agencies have been talked into very questionable "consolidations" in the past.
If the broadband market's ever going to improve, it needs more players. The incumbents have spent several years building up roadblocks to discourage new competitors. Google's fiber efforts
may be spurring very belated improvements in limited markets, but it's hardly the answer. Without some sort of large-scale disruption, we're likely looking at rising costs, stagnant speeds and a push by providers to preferred high-margin services and the steady creep of customer-unfriendly usage caps
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Posted on Techdirt - 4 December 2013 @ 3:39am
Trying to pry information loose from the NSA is nearly impossible. The ODNI has been dropping documents related to the NSA's various surveillance programs, but that's as a result of a lawsuit, something that goes completely unacknowledged at the ODNI's site. People requesting a peek into what the NSA has collected on them PERSONALLY have been universally met with a boilerplate response that "neither confirms nor denies" the existence of this data.
MuckRock has been filing dozens of FOIA requests in hopes of freeing up info on the many contractors employed by the NSA. Unsurprisingly, this has met with little success. While it did manage to secure 16 pages on French security firm Vupen, its other requests have been met with claims that no responsive documents have been found. This is hard to believe considering some of the requests are about known NSA contractors.
But one recent response went past baffling into the realm of the surreal in its assertion that the keywords MuckRock sought info on were just too "wide open" to be useful.
A search for overly broad keywords such as "CNO" and "computer network attack" would be tantamount to conducting a manual search through thousands of folders and then reading each document in order to determine whether the document pertains to a contract.
So, the agency that claims to be able to sift through millions of pieces of communications and data somehow claims it can't wrangle its own data. Of course, the NSA can't even search its own internal email
, so asking it to run a keyword search for contract documents is probably out of the question. But this assertion by the NSA is a bit puzzling, as it almost implies a lot of what's being searched for isn't even digitized, as MuckRock points out.
In other words, the NSA is claiming that, for external contractors, large portions of its $10.8 billion budget are tracked primarily through paper indices not searchable even by relatively broad topic.
In addition, the agency's response appears to be saying that they don't even have a designated place to store paper copies of contracts, but place them in folders with other documents.
So, how does the agency track its interactions with its "vendors?" Does it even matter? The agency's own budget is secret (though not so much
anymore), so a lack of solid accounting hardly matters. But it's still rather disturbing to see such a deliberately cavalier attitude towards accountability.
How do they keep track of their activities if they don't have an electronic contracts database? How do they, as a complex organization, determine budgetary needs if they cannot easily track their own spending? How do they measure the performance of vendor contracts, if as they claim, the contracts are shuffled to some paper file that may not see the light of day unless someone requests it through a FOIA request?
As MuckRock points out, this obfuscation is likely deliberate. The NSA is a data black hole. Lots of info flows in but it rarely, if ever, leaves. Any questions those charged with approving funding might have can be waved away by citing magic words like "national security," and that's even before its flacks
in the halls of Congress start erecting roadblocks.
Almost certainly the NSA has very effective ways of searching its own internal files. After all, its defenders often boast about the number of geniuses it employs. It just has no compelling reason to do so. Even being compelled by courts to kick loose documents has its limits. As we saw just recently, a court order to declassify the government's secret opinion on the Section 215 collections was flat out refused
by the DOJ. If the FISA court can't get the government to comply, then average citizens have no chance whatsoever.
MuckRock is continuing to assault the NSA's FOIA defenses. It's hoped that with enough requests, info will be pried loose that will indicate what sorts of keywords generate responsive documents -- and which ones result in ridiculous "this is impossible" statements from the agency.
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Posted on Techdirt - 3 December 2013 @ 3:27pm
The legislative attempts to curb cyberbullying continue to amass. We've already seen Nova Scotia's regrettable offering -- a law that includes ex parte "hearings" attended by only the accuser and a judge, and the addition of criminal and civil liability which extends to the parents of the accused. We've seen other similar efforts here in the US, most of which have been rushed through the process while emotions are still high. The end result is a set of bad laws that criminalizes protected speech and removes objectivity from the process.
Canada is now in the process of pushing through a national cyberbullying law, one that adds "revenge porn" to the mix.
The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, today introduced legislation to address criminal behaviour associated with cyberbullying. This legislation demonstrates the Government's firm commitment to ensuring that Canadians are better protected against online exploitation.
"Our Government is committed to ensuring that our children are safe from online predators and from online exploitation. We have an obligation to help put an end to harmful online harassment and exploitation. Cyberbullying goes far beyond schoolyard bullying and, in some cases, can cross the line into criminal activity," said Minister Mackay. "With the click of a computer mouse, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. It clearly demands a stronger criminal justice response, and we intend to provide one."
This legislative attempt was prompted by two high-profile suicides of bullied teens -- Rataeh Parsons and Amanda Todd -- both of whom also had explicit photos of them distributed online.
The bill itself (the Protecting Canadians from Online Crime Act) hasn't been posted online yet, but many of the changes the legislation hopes to make have been detailed at the Canadian Department of Justice site. In addition, the report [embedded below] leading to this legislation is also available, which contains several recommendations for altering existing laws and crafting new ones.
Here are some of the key changes the legislation hopes to implement if passed.
- Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years' imprisonment on indictment or six months' imprisonment on summary conviction;
- Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
- Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
- Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
- Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
- Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
- Ensure that the spouse of an accused person is eligible to testify against the accused in court.
Canada isn't exactly the US when it comes to protected speech, so it will be interesting to see how this attempt at curbing "revenge porn" plays out. Beyond that, there are a couple of troubling additions to existing law that could result in lots of unintended consequences.
There's plenty of potential for abuse in allowing courts to order an image to be removed. One needs to look no further than Europe
to see how problematic this can be. Images that aren't "revenge porn" but are
embarrassing can be taken down with a court order, meaning that people will be able to bury unflattering photos. The fact that this is wrapped in with a cyberbullying law means this likely won't be strictly limited to photos. "Offensive" text may also fall under the same law.
More troubling is the fact that the law seeks to allow courts to go into the asset forfeiture business
. There are hundreds
of examples here in the US that show just how perverted that incentive is. The War on Drugs has seen citizens lose houses, vehicles and cash to law enforcement for things as minor as finding a personal supply of marijuana. Even worse, people pulled over carrying amounts of cash that officers find "suspicious" often find their money seized under the presumption that only drug dealers carry lots of cash. No legislative body should be in any hurry to unleash this sort of easily-exploited "deterrent" on its own citizens.
The addition of granting spouses the "eligibility" to testify against each other in court is an interesting twist, presumably aimed at combating revenge porn. At this point, Canadian law still considers married partners
to be "one person," which means neither can be compelled
to testify against each other. This would eliminate that "protection" (if that's indeed what it is) and doesn't seem to be limited solely to revenge porn cases. This would seem to open itself up for abuse as well and, if passed, Canadians may see police paying more and more attention to the spouses of suspects.
The legislation also seeks to modernize existing criminal code to be more applicable to current realities. This too has some problematic aspects.
- Provide for preservation of volatile computer data;
- Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
- Update production orders and warrants to make them more responsive and appropriate for today's advanced telecommunications environment;
- Give the police better tools to track and trace telecommunications to determine their origin or destination; and
- Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.
It's the last bullet point that's the most worrying. Streamlining processes like these almost always results in an escalating disregard for civil liberties and privacy protections. This is another area where governments should tread carefully, or better yet, not at all. Modernizing isn't simply "streamlining." Modernizing also means carefully considering the unintended consequences of applying "streamlined" procedures to a heavily-connected public. Modernizing laws, done the wrong way, simply grants more access to law enforcement without considering the additional privacy protections that may need to be built in.
Legislators (and courts) also need to be especially wary of how the law will be interpreted by those enforcing it. Most likely, new permissions will be bent to give law enforcement the "edge" it always seems to feel it needs. Again, we don't need to look any further than the US to see how selective "modernization" can be. If a judge said back in 1993 that it was fine for officers to open a flip phone and scroll through the address book without a warrant, law enforcement takes that to mean it can browse the contents of a modern smartphone (which is analogous to raiding someone's computer) without a warrant in 2013.
Pre-greasing the wiretap wheels is never a good idea. We have an entire intelligence network predicated on streamlined, bulk collections that arose out of generous interpretations of existing surveillance laws.
The bullet points alone indicate this legislation has a lot more bad in it than good. In the search for applicable deterrents to fight a nebulous problem, the bill's drafters have erred on the side of smothering speech under a heavy blanket of good intentions.
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Posted on Techdirt - 3 December 2013 @ 10:33am
Brad Bushman, the Ohio State University researcher who (usually in conjunction with Craig Anderson) has somehow managed to ignore a body of work to the contrary, has again produced a study that claims video games turn players into monsters. His study, conducted with the aid of Italian researchers, makes a couple of specific claims based on the observed behavior of the 172 subjects.
- People playing violent video games are more dishonest than those playing non-violent games.
- People playing violent video games exhibit less self control than those playing non-violent video games.
Subjects either played violent games (Grand Theft Auto III or GTA: San Andreas) or non-violent games (Golf3D or Pinball3D). During their playtime, they were given a bowl of M&Ms to snack on, but were first warned that eating too much candy in one sitting was "unhealthy."
Let's stop right here for a moment and consider the credibility of researchers who (presumably with a straight face) told teenagers that eating too much candy would make their tummies hurt. The health implications of a single bowl of candy in a research setting are effectively nil, but this ridiculous instruction is used as evidence that violent video games adversely affect players' judgement.
According to Bushman's research, players playing violent games ate more than those playing non-violent games. Ipso facto, violent game players have less self-control.
Post-playtime, players were given a set of logic questions to answer and received a raffle ticket for each correct answer. The "catch" (as it were) was that players were allowed to collect these tickets themselves from an envelope. Research showed those playing violent games were eight times as likely to grab more tickets than they actually earned, thus suggesting players of violent games are more subject to moral turpitude.
An additional factor thrown into the mix was a post-play "game" which gave players the option to blast losing players with a loud noise through their headphones. (There was actually no one on the receiving end of the blasts, which is kind of a shame…) Violent game players were much more prone to do this, again suggesting those under the influence of Grand Theft Auto tend to be more aggressive and harmful towards others.
The problem with Bushman's study is that it collects evidence on short-term effects (behavior observed during or shortly after play) and uses that to suggest there are long-term repercussions inherent in playing violent games. It's completely unsurprising that those who had played Grand Theft Auto would be more prone to blast other players with noise than those who played a sedate game like Golf. (It would be interesting to see this comparison done more aggressive sports games -- like football, hockey or boxing.) Both games demand a different mental approach and a game containing violent behavior would likely see a short-term rise in aggression in most players.
Also, when players have just finished playing a game where their protagonists can break all sorts of laws, taking a couple of extra tickets just doesn't seem to be a big deal. But this is behavior viewed nearly immediately after playing. A reasonable amount of "cool down" time would likely reduce this number. Stealing a raffle ticket from a research project is a far cry from exiting the building and punching people or making off with their vehicles.
The less said about the candy "evidence," the better. But, if nothing else, we are again observing behavior during and shortly after gameplay, not long-term indicators.
It needs to be highlighted that the negative behavior was more prevalent in those who "scored highest on a measure of moral disengagement." This suggests the underlying factors are pre-existing, rather than created by gameplay. Research subjects with moral issues were more morally suspect. Go figure. Bushman wants to believe the video games alter the morals of players, but his own research states otherwise. In fact, Bushman himself states otherwise.
“Those who are most morally disengaged are likely to be the ones who show less self-restraint after playing.”
Even the "moral disengagement" is questionable. Take a look at one of the questions used to indicate "moral disengagement."
“Compared to the illegal things people do, taking some things from a store without paying for them is not very serious.”
Well, no kidding. Someone doesn't have to be suffering from outsized "moral disengagement" to realize that stealing from a store is a much less serious crime than other criminal acts (like, say, stealing directly
from another person). Anyone who disagreed with this statement has some moral issues of their own.
Bushman's study involved 172 students, a grouping that will generally produce statistically solid results. But compare those 172 who seemingly proved Bushman's theory ("violent video games are unquestionably bad") to a recent study involving 11,000 children that spanned 10 years
. A broader base, spread over time, indicated that video game playing had nearly no discernible effect on children.
Bushman's (and Anderson's) body of work
has tried to prove that violent video games make people violent, but has actually done little more than see him push preconceived notions under the pretense of "science." His research tends to indicate short-term effects but his statements assert players of violent video games are incapable of resetting their moral compass. He's been called out before for his flawed research and cherry-picked "analysis."
This is more of the same. Bushman ignores the results his own "moral disengagement" test and makes the claim that violent video games make otherwise good people aggressive, dishonest and (LOL) eat more candy.
Because of his past "research," Bushman (and Anderson) will continue to be the go-to man for talking heads who want their own perceptions of Big Bad Video Games confirmed. Those willing to see past the headlines will find little more than a researcher repeatedly confirming his own bias.
25 Comments | Leave a Comment..
Posted on Techdirt - 3 December 2013 @ 9:37am
"Shoot first, be named in a lawsuit later." That seems to be the mindset of certain members of our national law enforcement agencies. Orange County resident Daniel Noriega is proving this (just made up now) adage with his suit against ICE for a cavalcade of harmful errors.
Noriega says he was dropping off his girlfriend's son at an Anaheim elementary school on Dec. 1, 2011, when "all of a sudden, a car quickly pulled up near Noriega. The tires screeched as the vehicle came to an abrupt halt. The UFA [Unknown Federal Agent], without any warning or instruction, without identifying himself as a federal agent or law enforcement officer, without any provocation whatsoever, and while wearing plain clothes, quickly exited his vehicle, pulled out a firearm as he approached Noriega, and fired it at Noriega," according to the complaint.
Noriega, scared for his life, drove around a vehicle in front of him and left the parking lot to escape from the "unidentified attacker that had tried to kill him," he says in the lawsuit.
Unfortunately for Noriega, fleeing for your life from unknown assailants looks to pursuing agents exactly
like a guilty person fleeing arresting officers. Noriega then made the next logical move for a person who thought someone was trying to kill him.
Noriega, who did not have a cell phone on him, drove to a nearby gas station and used their phone to call 911. Several officers, including the immigration agent, showed up at the gas station, handcuffed Noriega, and put him in the back of a vehicle, according to the complaint.
At this point, the chain of events is rather hazy. At some point during his detainment, Noriega was accused of trying to kill a federal agent and his vehicle and house were searched. His girlfriend was apprised of these "facts" by another ICE agent during the search of his residence.
The Orange County Register has more details, including dispatch recordings indicating ICE screwed the whole thing up
An Anaheim police dispatcher, in a recorded conversation with a Buena Park dispatcher, called the Dec. 1. shooting "all FUBAR through ICE" -- using the military expletive for " (messed) up beyond all recognition..."
In dispatch recordings, ICE agent "Nicole " tells a Buena Park dispatcher that the agency is looking for Alcala and that Noriega must be lying about his own name.
Noriega was detained for "several hours" under the pretense that he had tried to kill the federal agent who shot at him, but when all was said and done, ICE dropped the charges and picked up the tab for his impounded vehicle. Despite knowing they had grabbed the wrong guy (ICE was looking for Noriega's girlfriend's ex-boyfriend, Juan Carlos Aclala), ICE still considers Noriega a "suspect," according to his attorney.
This case seems like it might hinge on whether the agent shot at Noriega before Noriega attempted to flee. According to an Orange County D.A.'s investigation
, nothing can be determined conclusively. The ICE agent apparently fired at Noriega from INSIDE his vehicle (backed up by a hole in the windshield and a shell casing on the car floor), lending more credence to the assertion that Noriega made an "aggressive" move first
. Then again, having an unmarked vehicle suddenly block off yours could prompt a panicked reaction, one that would only get worse when (allegedly) followed by the sound of a gunshot.
However this does play out, the chain of event shows ICE's disregard for public safety in its quest to get its man. Surely there are better places than in front of an open school to attempt detainment, especially if there's potential for the confrontation to turn violent. Its follow-up actions were just as careless as it moved forward with searches of Noriega's vehicle and house without first
determining they had the right person.
The ICE officer states in the DA's investigation that he couldn't positively identify whether he had the right person (Noriega was wearing a hat and sunglasses) before making his move to block off the vehicle. The fact that the agent made an aggressive move without positive identification is an indicator of the agency's willingness to accept a certain amount of collateral damage as being "just part of the job."
43 Comments | Leave a Comment..
Posted on Techdirt - 3 December 2013 @ 7:32am
The trial for two of the three Fullerton police officers charged in the beating death of mentally ill homeless man, Kelly Thomas, has begun. Manuel Ramos, the officer who first approached Kelly Thomas and delivered most of the damage, is facing charges of second-degree murder and involuntary manslaughter. Officer Jay Ciccinelli, who arrived on the scene moments later, is facing charges of involuntary manslaughter and use of excessive force.
Ramos' lawyer, John Barnett, sought to have charges against his client dropped last year, claiming the 10-minute-long ordeal that Thomas suffered through before lapsing into a coma (first, attempting to tell officers he couldn't breathe and, towards the end, crying out for his father) was a direct result of Thomas' reluctance to be further hassled by the officer.
When a "recalcitrant" Thomas did not comply, Ramos was entitled to use force and the threat of force to complete his arrest, Barnett contended in his 80-page motion.
"Rather than use actual force, Officer Ramos employed a lawful, conditional threat, to use force," he wrote. "The death of Kelly Thomas was not the natural and probable consequence of that lawful threat."
The recording shows Ramos relied almost exclusively on "force" rather than the "threat of force." As mentioned earlier, Ramos approached a seated Thomas before the beating commenced and said, "You see these fists? They are getting ready to fuck you up." That, I suppose, would be considered a "threat of force." Ramos wasn't kidding. His fists, along with his nightstick and additional abuse from a handful of other officers, completely "fucked up" Kelly Thomas, leaving him in an irreversible coma. Jay Cicinelli contributed in his own way, beating Thomas' face with the butt end of his Taser. (Cicinelli is captured on Ramos' mic stating that he "smashed [Thomas'] face to hell.")
[You can go to this link to see a picture
taken by Thomas' father after his son's arrival at the hospital -- but we warn you that it's gruesome.]
There's really no questioning what happened. Security camera footage
, synched to Ramos' mic, paints a brutally clear picture of how much Thomas went through before his body and mind gave out. Even the coroner's report notes the death wasn't accidental, listing "mechanical suppression of the thorax" as the cause of death. [The recording is 33 minutes long. The "altercation" begins about 15 minutes in. Five minutes later, there are six officers restraining Thomas. Warning
: video, especially Thomas' anguished screams, is Not Safe For Life
John Barnett is still defending Officer Ramos. He's decided to top his earlier claims that the officer's actions were lawful and appropriate
Ramos’ attorney… told jurors that the officers who beat Thomas on a summer night in 2011 not only didn’t use excessive force in the incident, they “weren’t using enough force.”
The officers were forced to call for backup because they could not subdue an out-of-control Thomas, John Barnett said. “They’re losing the fight,” Barnett said.
Watch that tape again (or for the first time) and see whether it appears the cops are "losing the battle." Thomas, who weighed 135 pounds, was subdued by six
Fullerton officers. The recording clearly captures him telling officers he can't breathe. Thomas was homeless and suffered from schizophrenia. While he wasn't cooperative with Ramos' instructions before he was beaten, he was still pretty far from being a threat. Last year, Barnett claimed the force was "appropriate." Now, he claims it was "too little." Officer Ramos apparently has no idea how to deploy an appropriate
amount of force, despite his training.
“This case is not about a homeless, helpless, harmless mentally ill guy, this case is about a man who made choices in his life, bad choices that led to his tragic death,” Barnett said.
No one's arrest should end in death -- no matter what "choices" they've made -- not when six officers
are looking to control one person
. And for Barnett to claim that somehow choices the mentally ill Thomas made earlier in his life
contributed to his death is not only disingenuous, it's genuinely sickening. If that's the case, then bad choices made by Officers Ramos and Cicinelli in their lives
led to them being charged with manslaughter and murder.
This isn't about Kelly Thomas' life choices. This is about the choices made by a handful of officers -- choices that resulted in the death of a man whose life, what there was of it, came to a sudden halt because he ran into Officer Ramos and his backup.
63 Comments | Leave a Comment..
Posted on Techdirt - 2 December 2013 @ 3:33pm
Everything old is new again, copyright troll-wise. Just recently, we witnessed the return of one of internet's stranger denizens, one hit wonder Shaun "Tongues of Glass" Shane and his army of Twitter accounts deployed to ensure his oft-tweeted banalist poem is properly attributed to the gruff man with unparalleled page-turning skills.
Ken White at Popehat notes that another copyright-wielding troll has emerged from hiding. Donna Barstow, the "cartoonist" whose unfunny drawings drew the (highly negative) attention of Something Awful goons (that's their chosen name, by the way, not a statement of judgment), has ended her self-imposed hiatus by issuing a backdoor-entrance takedown attempt aimed at delisting White's highly critical post from 2012.
I wrote about her in July 2012, which resulted in a truly surreal phone call from her. I also wrote about her odd follow-up rant in which she suggested that copyright is a federal crime. Apparently she actually meant that copyright violation is a federal crime. I think.
Anyway, this morning (that is, nearly 17 months after I wrote about her) I got an email from Google indicating that she had complained that my post contained private information:
We're writing from Google.com to bring the following page to your attention:
A Whois search indicated that you're the host for this page.
A concerned user contacted us to report that handwritten signature is published on this page. We hope that you'll assist this individual in restricting access to this private information by removing the page from the web. If it's changed to return a true 404 error via the http headers, please let us know and we'll also remove the listing from the Google index.
We appreciate your assistance. Should you have any questions, please don't hesitate to contact us.
The Google Team
On 11/18/13 15:54:25 email@example.com wrote:
your_name: D. Barstow
hidden_subject_signature: Your personal information removal request for a handwritten signature
As you can see, Donna Barstow considers her signature -- the same signature she attaches to every
cartoon she creates -- to be "personal information." Apparently, Barstow's idea of "personal" means "things anyone can access."
There's only one place Ms. Barstow's signature appears in my post about her — it's in her cartoon about Mexico, which I put in the post to comment upon it, criticize it, and report on ongoing allegations that some of her cartoons are racist or otherwise obnoxious. It's the signature that she displays to the world in all of the cartoons she publishes. It's "private" in the sense that you can't see it unless you look at one of her cartoons on her web site or published elsewhere by her.
White has written back to Google clarifying the situation. Presumably, Google won't follow through with this request, but stranger things have happened. It appears Barstow's earlier experience with the limitations of copyright law may have taught her at least one thing: the copyright angle probably won't work. Consequently, she has chosen to approach this from an entirely different (but still completely wrong) angle.
Speaking of stranger things, Rob Beschizza at Boing Boing points out that Charles Carreon may be behind Barstow's latest effort
. His post dated November 24th details a conversation
he had with the "poor woman" who contacted him about concerns that he might be posting about her at a site using Carreon's name
. (The site is a "satirical diary" and is [quite obviously] not
written by Charles Carreon, "Internet Lawyer
".) In the long and winding post, Carreon eventually unloads plenty of hate in Ken White's direction and presumably did the same while calming Donna Barstow, victim of hundreds of self-inflicted wounds.
If this call was recent, Barstow's reaction time is horribly slow. The post she referenced
in her conversation with Carreon appeared in July of 2012 (as did Popehat's). It looks as if Barstow's making a belated attempt to clean up her reputation and is apparently assuming it's so long after the fact that no one will care. Obviously, she's wrong. The takedown attempt aimed at Popehat most likely won't work and her effort has generated a minimum
of three negative posts in response. Anyone else she targets will just contribute to the body of negative press she's accumulated since going nuclear last summer.
There are lessons to be learned here, but Barstow doesn't seem to have learned anything from her previous experience other than she's run the wheels off the copyright angle.
10 Comments | Leave a Comment..
Posted on Techdirt - 2 December 2013 @ 8:40am
Facebook is developing a speech impediment. The recent fracas over beheading videos was marked by severe bouts of waffling from the social media giant. On one hand, it seems to want to ease unfettered expression. On the other hand, it's set itself up as the content police.
These two aspects often collide with disastrous results. Beheadings are a go, but breast cancer groups can't post photos of mastectomies. Recent partnerships with government agencies see Facebook willing to censor by proxy, even as it attempts to roll back its control in other areas. Giving 800+ million users access to a "report" button is well-intended, but the reality is more troubling. Something that's simply unpopular can be clicked into oblivion in nearly no time whatsoever.
Here's how Facebook's efforts to play both sides (free speech/content patrol) works in practice. [Caution: contains mandatory autoplay video because every TV news website in the US apparently believes we want to be informed without consent.]
Fitness advocate and mother of three, Maria Kang, is an avid blogger and Facebook user, but her most recent post didn't sit well with Facebook, and some people are now calling her a bully...
When Kang saw an article online from the Daily Mail showing plus-size women posing in lingerie, she logged onto her Facebook page and started writing.
"The popular and unrelenting support received to those who are borderline obese (not just 30-40lbs overweight) frustrates me as a fitness advocate who intimately understands how poor health negatively effects a family, a community and a nation," Kang said.
"While I think it's important to love and accept your body, I was a little peeved because I think that we're normalizing obesity in our society," Kang said.
One thing that's worth pointing out is that Kang posted this rant on her
page. She didn't head to a body acceptance group page or the Daily Mail's post or anywhere that she would be, in effect, intruding
. So, while people may have found it offensive, she didn't go out of her way (so to speak) to offend.
This ultimately didn't matter. Outraged readers reacted swiftly enough to get her post taken down and her account yanked in record time. Facebook explained its actions to Kang this way.
Just three hours after her post went viral, Facebook responded by removing the post and shutting down her account, calling the post "hate speech," according to Kang.
The bright line between protected expression and hate speech may occasionally be rather grey and dim, but there's a big difference between what Kang said and what most
people would consider to be "hate speech." Something that angers others -- even if it's several
others -- is not "hate speech" solely
because it provokes a strong reaction.
Shortly after Kang went public with this, Facebook offered a completely different
explanation of what happened.
"A user reported content on her page, and it was mistakenly removed by Facebook. When we realized the error we corrected it immediately, and restored full access to Ms Kang. We apologize for the inconvenience."
Facebook restored Kang's account but did not restore the post, saying Kang could repost it if she chose to. At this point, the post is still deleted, along with every comment, Like, etc. that was attached to it. Reposting it fresh would pretty much be pointless. Kang made her point once and was treated to Facebook's baffling, inconsistent "policy" on controversial content.
Many readers agreed with Kang's sentiments. Many others felt it was bullying. There's no real "right" viewpoint here because all Kang did was express her opinion. The correct response would have been to leave it alone and let the best weapon against offensive speech sort it out: more speech
. Kang's posting undoubtedly drew at least as much vitriol as she offered up. Speech battles speech better than weak censorious efforts like Facebook's knee jerk response.
The platform has nearly one billion users. To shut down speech because of a single report completely undermines the power inherent in one of the largest social networks in the world. Facebook: you have a billion voices. Let them talk it out. Hastily pulling the trigger at the behest of those offended only makes it harder for the offender to see how their words have affected others. It certainly doesn't teach anyone to be more tolerant. All it does is feed into their mindset by proving them "right" -- that the rest of the world can't handle their "truth."
33 Comments | Leave a Comment..
Posted on Techdirt - 27 November 2013 @ 5:34pm
Another incident that highlights the troubling aspects of placing cops in schools has surfaced. The sheriff's office's (which supplies the deputies to the school) story has changed several times in the space of few days, but the end result is inarguable: a 17-year-old student is in a medically-induced coma as the result of its officer's actions.
At one Texas high school, the use of a Taser by Randy McMillan, a sheriff’s deputy/school resource officer, on 17-year-old Noe Niño de Rivera has resulted in the student being put in a medically induced coma. The family has filed a lawsuit against McMillan, the school district, and the county, and alleges Rivera was tased after trying to break up a fight.
According to the court documents, the teen was walking backwards from school officers who were trying to break up a fight when he was tased, falling backwards and suffering a brain hemorrhage. The sheriff's office maintains that the student acted aggressively and refused to back off when ordered to by officer Randy McMillan.
The narrative is cloudy, even when restricted to just the sheriff's office's statements. The original report of the incident on Nov. 20th said this
A Bastrop County sheriff deputy assigned to Cedar Creek High School as a resource officer used a Taser on a 17-year-old student during a fight on Wednesday, according to officials.
The student and two other boys were involved in a fight in the hallway when the deputy used the stun gun on him, according to the Bastrop school district and Sissy Jones, a spokeswoman for the sheriff’s office.
The next day, the office's statement added this
A 17-year-old Cedar Creek High School student was acting aggressively before a Bastrop County sheriff’s deputy Tased the teen Wednesday, officials said Thursday.
Thus making the deployment of the Taser more justifiable. But it also added this:
Sissy Jones, a spokeswoman for the Bastrop County sheriff’s office, said that two deputies who work at the Bastrop school district as resource officers were trying to stop a fight Wednesday between two female students in the high school’s hallway when the 17-year-old male student approached.
The original report stated the tased student was involved in a fight with two other boys and the deputy
. This new statement shows the student wasn't even involved in the fight and had only "approached" the scene.
The student tried to interfere with the deputies and didn’t listen to their commands, Jones said. “He looked as though he was ready to fight.”
"Looked." This still doesn't explain the office's statement that the student was "aggressive" or the implication that he posed a threat to the officers.
The family's lawyer claims to have cell phone footage of the incident that contradicts the statements made by the officers
"They're completely lying, they're completely lying because they're very worried about this officer being indicted for a criminal charge, which he should be," said attorney Adam Loewy, who is representing the family…
"Noe was being a good Samaritan, a good citizen, he broke up the fight. Then there was some stoppage to everything, and he was standing there. You see these police officers go up to him and tase him," Loewy said.
Whatever this footage shows likely won't make an appearance until the case goes to trial, but it would seem the school itself
should have footage of the incident. According to its parent's handbook, the school has cameras in use
For safety purposes, video and audio recording equipment is used to monitor student behavior, including on buses and in common areas on campus. Students will not be told when the equipment is being used.
A "high school hallway" would presumably be a "common area." If there is footage, no one has made any mention of it. Even stranger, no one has even offered
to review the recordings or even deny such footage exists.
The lawsuit would obviously limit the school from talking about the incident (as would the student's age), but the school issued nearly no statements in the days preceding the filing, other than its original joint statement with the sheriff's office (above) and this boilerplate isued on the day of the incident.
“The safety and security of all students is the number one priority at Cedar Creek High School and Bastrop ISD,” the district said in a statement. “When law enforcement officers intervene and take action, they do so based on their training and protocol, as they deem warranted.”
The sheriff's office has gone on record as stating the student wasn't
involved in the fight, but yet somehow, the uninvolved student is the one who was tased and hospitalized for nothing more than appearing "aggressive." Fights have occurred in schools as long as there have been schools, but only in recent years has it been assumed that only
law enforcement officers are capable of handling combative students. When you use law enforcement officers to handle routine disciplinary problems, you greatly increase the odds of severe injuries. Officers have certain training and tools and applying them to situations that don't require severe responses puts LEOs in the awkward place of either doing nothing or approaching students as though they were dangerous, hardened criminals.
If this school had no "resource officers," it's nearly guaranteed that this situation would have ended with nothing more than routine disciplinary action, rather than with a 17-year-old in a coma and the filing of a federal lawsuit.
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Posted on Techdirt - 27 November 2013 @ 4:18pm
The leaked TPP draft, pried loose from the "open and transparent" grip of the USTR, is generating plenty of commentary all over the web. After getting a good look inside, it's little wonder the USTR felt more comfortable trying to push this through under the cover of darkness.
As the criticism of the push for IP maximalism mounts, the treaty's defenders have leapt into the fray, hoping to assure everyone who wasn't previously aware of the treaty's contents (which is pretty much everyone) that there's nothing to see here and please move along.
Mike recently broke down the ridiculous claims and posturing of the USTR's "talking points." Amanda Wilson Denton, counsel to the IIPA (International Intellectual Property Alliance) has showed up right on cue to "set the record straight" on the leaked TPP draft. Let's see how well she followed the talking points. (Talking points in bold.)
The Draft Is Already Outdated
The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations...
If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights…
Sure, it's only a "snapshot." But unless everything's changed since then, it's a very representative
snapshot of the involved countries' stances on IP issues. Just because the work is "ongoing" doesn't mean its improving
What It Would Not Require: Changes to U.S. IP Law
While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law.
The U.S. proposals mirror the current duration of copyright in U.S. law. They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012…
In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners…
While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.
So, if you love current
US IP law (and wish it would be expanded), you'll love
the TPP. If you don't, well… get used to it. The US is running your IP show now, foreigners.
Denton does admit there is one
change to existing US law, something only a maximalist would be happy to see -- a provision that would allow rights holders to pursue criminal charges against those who "aid and abet" copyright infringement. Great news! That means you no longer have to actually infringe
to be held criminally accountable. All you have to do is be adjacent to it.
The Only Real “News” – Many Bogus Claims Are Now Verifiably False.
The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.
[T]he issue that generated controversy surrounding SOPA—website blocking through DNS blocking—is entirely absent from the text as recently noted by Ambassador Froman. Froman specifically raised the issue of “blocking rogue Internet sites from accessing the Internet from the United States” in a recent interview published in the November 18, 2013 issue of Washington Trade Daily. He stated unequivocally: “There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that...”
Any comparison to SOPA/PIPA is completely inappropriate and inaccurate.
Comparisons to SOPA are valid because the leaks show the US is pushing a maximalist hard line, one that goes much further than most other countries are willing to go (Australia being the notable exception).
SOPA was a maximalist's dream. Since a majority of Americans are not maximalists, the bill was tough to sell. The USTR knows this, which is why every aspect of these negotiations has been as secretive as possible. Simply stating the TPP is not SOPA because it isn't exactly
the same is a weak dodge. It has the same intent. The TPP will harm internet freedom the same way SOPA would have. Secondary liability will now be a criminal act, as Denton points out in her defense
of the agreement.
And as for Ambassador Froman's claim that the TPP doesn't provide for the blocking of "rogue sites," former USTR employee and current analyst for the ITIF (SOPA's "intellectual backer") Michelle Wein actually points out that it does in her op-ed defending the proposal
In addition, the text does not require ISPs to block access, but instead asks that they take reasonable steps: "Court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. [emphasis added]" Essentially, this means that courts cannot make ISPs financially liable for copyright infringement by their users, but can ask them to take steps to block access.
When the government starts "asking" ISPs to "take reasonable steps" (what does that even mean?) to block sites, it's not a request. It's a very forceful suggestion with potential legal implications, as most court ORDERS are
. ISPs may not be liable for customers' infringement, but they can certainly be held liable for not "taking reasonable steps" to block access. "Reasonable" is in the eye of the beholder, and what that means for ISPs is that courts will be making this call after
they've already issued an order "asking" them to block sites.
What's being witnessed here is the US attempting to make the world beholden to its
rights holders. The TPP makes a mockery the last word in its title. There's no "partnership" here. Just a country misusing its stature and economic power to rewrite international IP laws in servitude of a few select industries.
35 Comments | Leave a Comment..
Posted on Techdirt - 27 November 2013 @ 8:35am
It's pretty much universally accepted that "revenge porn" is a bad thing and that steps should be taken to prevent the posting of someone's private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it's even worse that many of these sites then try to charge people to take down their photos).
Unfortunately, because it's so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage -- something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.
Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.
A overly-simplified reduction of Franks' arguments in favor of the proposed law boils down to this: because it's unpleasant and most people would find it offensive, it isn't protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.
Franks: "The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different."
There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”
Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.
“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.
As Bennett details, Franks has approached this largely in the "activist" role
, rather than a scholarly role. In doing so, she's made arguments current case law just doesn't back up. That itself is problematic considering she's working with a Congress member to draft a law that will address an already-emotionally charged issue.
But it gets worse. Scott Greenfield
points out a recent interview Franks did with US News and World Report
, where she makes this troubling statement.
Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn't violate federal copyright or criminal law.
"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."
The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.
"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."
"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."
Having earlier questioned
how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer
Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?
The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.
Franks "rebutted" Zimmerman's assertion, but from an oblique angle
I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.
Well, if the EFF and ACLU don't think it's a bad idea… Oh, wait. That's not what she actually said. Greenfield breaks it down.
Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.
Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn't protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.
Politicians and special interest groups have often used "for the children
" as an excuse for all sorts of legislative havoc
. After all, who's going to defend child pornography? It's a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks' are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here's Franks herself on the subject
But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.
There's also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn't have a solid grasp on the very area she's attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make "cynical arguments" about the First Amendment.
These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.
As commenter Ken Arromdee points out, this statement is beyond obtuse.
You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?
Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be "never." Franks' own statements show she's more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging -- if this legislation ever hits the floor for a vote -- very few politicians will be willing to oppose this and end up labeled misogynist or simply "soft" on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.
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Posted on Techdirt - 26 November 2013 @ 3:59pm
KlearGear's decision to charge a customer $3,500 for writing a negative review has finally paid off for the company. Whoever was in charge of inserting a non-disparagement clause into the site's Terms of Sale back in June of 2012 set in motion the worst of all possible scenarios.
KlearGear's reputation is now thoroughly destroyed. Its social media presence has been shuttered. The search results for KlearGear are unflattering, to say the least. The BBB has yanked Kleargear's rating and opened an investigation into its tactics. Its supposed Truste validation is nothing more than a "sticker" applied to the site without the approval of the validation company. As Ken White at Popehat puts it, KlearGear is reaping the whirlwind.
The company was doing $40+ million in sales per year, if this Inc. profile is to be believed. Without reservation, I can say sales have dropped off appreciably in the wake of its stupidity being exposed.
KlearGear has become even more uncommunicative than it was back in 2010, when it decided to wreck a former customer's credit in return for her negative review. Even back then, even before the non-disparagement clause, it was in the wrong. Jen Palmer's (the customer who wrote the review) order never showed up and as she states, it was "impossible" to get ahold of a human being to get this fixed.
The costs of this self-made whirlwind continue to mount. Public Citizen is now suing KlearGear on the Palmers' behalf, seeking monetary damages for the havoc wreaked on the former customers' credit by the company's moronic attempt to extract $3,500 from its detractors.
Public Citizen is representing Jen and John Palmer in seeking redress from KlearGear. Today, we sent this demand letter seeking three actions from KlearGear: first, clearing up John's credit; second, paying $75,000 in compensation for the Palmers' ordeal, which has lasted more than a year; and third, agreeing to stop using this non-disparagement clause to extort money from their customers.
As Public Citizen's blog post points out, efforts to shut down negative reviews are far from rare, even though nearly every incident only garners these censorious entities more
KlearGear's conduct is part of a troubling trend of businesses trying to deter negative reviews by muzzling their customers. Another example is Public Citizen's case against a New York dentist who tried to make her patients agree, as a condition of treatment, that they would not criticize her. And TechDirt has reported about the use of such a clause in vacation rental agreements.
While a settlement would probably be preferable, it would be interesting to see this run through a trial. For one thing, it would uncover who actually runs KlearGear, something that has been carefully obscured
Kleargear identifies itself as a division of both Chenal Brands Inc., and Havaco Direct Inc., both business entities based in San Antonio, Tex. The website itself is registered through Domains By Proxy, a GoDaddy.com site that sells private domain hosting and administrative services.
Furthermore, it would possibly shed some light on its decision to drop this catastrophic non-disparagement clause into its Terms of Sale back in 2012. That question certainly deserves an answer, considering all
possible outcomes of enforcing the clause are completely negative.
Other companies, who are considering ways to curtail negative reviews, would do well to view this as a cautionary tale. If you're fielding a lot of negative complaints, the issue is very likely with your own company, not the customers airing their grievances on the internet. Fix those
problems and save your company. Any attempts to "fix" the complaints will only hurt you more.
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Posted on Techdirt - 26 November 2013 @ 11:50am
Maybe all these politicians and activists who want tough-on-crime leadership are looking at the wrong side of the thin blue line. The cure is worse than the disease, as the saying goes, and these officers seem to be going out of their way to prove that adage.
First up, following on the heels of the multiple rectal violations committed by a New Mexico doctor at the behest of police officers in search of drugs that just weren't there is this story, which features more New Mexico law enforcement members violating someone's lower regions -- again, in search of drugs.
Cops in New Mexico repeatedly sprayed a woman’s vagina with mace after she was arrested for drugs. They allegedly did this to “punish” her.
The woman, Marlene Tapia, was taken to the Metropolitan Detention Center after her arrest. Next, officers stripped her to search for drugs. They made her bend over and then claimed she had a plastic bag containing drugs in her vagina.
Officers should have subsequently had medical staff remove the bag from Tapia — but they did not do this.
Instead, officers “punished” the woman by spraying her vagina with mace. They allegedly did this several times in a row.
To be clear, these were corrections officers at a detention center, not police officers. Tapia apparently actually had a baggie of drugs inserted in her vagina, but as is pointed out in the lawsuit, spraying her with mace wasn't going to dislodge it, and she wasn't offering the officers any resistance. As is also pointed out, corrections officers are supposed to refer anyone they suspect of hiding drugs to the medical center for examination. Obviously, they do things differently in New Mexico, especially if the "problem area" happens to be below the waist.
There is little doubt this incident actually occurred. According to the filing, the officer (Blanca Zapater) was both instructed to stop spraying mace on Tapia's genitals by her supervisor and was later punished for her actions. Tapia is now seeking damages and court fees for Zapater's clearly stupid actions.
This next case is much, much worse on every level, further underscoring the fact that those charged with enforcing laws often seem to be at least as dangerous as those who break them
A 40-year-old police officer in San Antonio, Texas is facing charges of felony sexual assault after a 19-year-old woman accused him of handcuffing and raping her during a traffic stop over the weekend.
According to an arrested warrant obtained by the San Antonio Express-News, Officer Jackie Len Neal pulled over the teen, telling her that her car was reported stolen.
Even though the woman produced a sales slip for the vehicle, Neal insisted on patting her down. The woman told him she felt uncomfortable with the pat down and asked for a female officer, but he ignored her, the warrant said. The woman was allegedly groped, placed in handcuffs and then taken to the back of his patrol car.
Neal was accused of raping the woman and instructing her to keep it a secret.
Neal's dashboard cam and mike weren't working as his system was missing its hard drive. This fact Neal would have been aware of, according to his police chief, William McManus. The car's GPS system confirmed that Neal's patrol car was parked at this location for 18 minutes.
Neal's past is checkered with other abuse.
McManus confirmed that Neal had been suspended in September for dating an 18-year-old, who had joined the Police Explorer program in preparation for a law enforcement career. He had also been accused of sexual assault while on duty several years earlier, but the woman refused to cooperate with a police investigation and the charges were dropped.
This may not be the end of it either. McManus must suspect his officer is a habitual offender as he's made a call for other victims to come forward. The lack of criminal charges preceding this event likely kept McManus from unloading an officer he felt was problematic. That it culminated in an alleged rape before being corrected is an indictment of the system itself.
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Posted on Techdirt - 26 November 2013 @ 8:49am
The city of Miami has no "stop and frisk" program, but you'd be forgiven for assuming it does after hearing this amazing (in all the wrong ways) story.
Earl Sampson has been stopped and questioned by Miami Gardens police 258 times in four years.
He’s been searched more than 100 times. And arrested and jailed 56 times.
Despite his long rap sheet, Sampson, 28, has never been convicted of anything more serious than possession of marijuana.
Miami Gardens police have arrested Sampson 62 times for one offense: trespassing.
Almost every citation was issued at the same place: the 207 Quickstop, a convenience store on 207th Street in Miami Gardens.
FDLE records show that Sampson was stopped at least once a week for the past four years, and sometimes several times a week and even as many as three times in one day. The stops are often conducted by the same police officers, who have arrested him time and time again.
The problem here isn't just the endless harassment of one resident who doesn't seem to be a threat to anyone. The problem here is the fact that Sampson works for the 207 Quickstop. It's pretty hard to "trespass" on property when you have the explicit
permission to be there. It would be shady enough if the cops were just picking up Sampson every time he visited the store, but they've been patting him down, questioning him and sometimes arresting him for trespassing during his shifts.
One video, recorded on June 26, 2012, shows Sampson, clearly stocking coolers, being interrupted by MGPD Sgt. William Dunaske, who orders him to put his hands behind his back, and then handcuffs him, leads him out of the store and takes him to jail for trespassing.
Another video posted at the Miami Herald website shows Sampson being arrested for trespassing when he returns to the store after taking out the trash. (That arrest report says Sampson was "loitering" outside the store, but the video clearly shows he left, threw trash in the container, and went back in followed by the police officer who arrested him.)
Sampson's not the only one being harassed by the MGPD, although he is the main concern of the owner of the 207 Quickstop, Alex Saleh. Saleh fought back, though, installing 15 cameras to catch the endless harassment of Sampson and customers of his store.
The videos show, among other things, cops stopping citizens, questioning them, aggressively searching them and arresting them for trespassing when they have permission to be on the premises; officers conducting searches of Saleh’s business without search warrants or permission; using what appears to be excessive force on subjects who are clearly not resisting arrest and filing inaccurate police reports in connection with the arrests.
Saleh pins this invasion by Miami Gardens PD on his unfortunate decision to mark his store as part of the PD's "zero tolerance zone."
Almost immediately after Saleh put the “zero-tolerance” sign in his window, he regretted it.
Miami Gardens police officers, he said, began stopping his patrons regularly, citing them for minor infractions such as trespassing, or having an open container of alcohol. The officers, he said, would then pat them down or stick their hands in citizens’ pockets. But what bothered Saleh the most was the emboldened behavior of the officers who came into his store unannounced, searched his store without his permission and then hauled his employees away in the middle of their shifts.
The "zero tolerance zone" turns over a whole lot of power to the Miami Gardens PD. Here's part of the description from the MGPD's website
(which hasn't been updated in more than 5 years...).
This simple program asks local business owners to complete a simple affidavit, and post a sign on their properties, which allows MGPD officers to act on behalf of the business owners in their absence. The program also gives MGPD officers the authority to direct unauthorized personnel to leave private property or risk enforcement action from the officers…
This program is designed to reduce the number of individuals who are sometimes seen trespassing and loitering on private property without legitimate business.
This would explain all the "trespassing" charges. The affidavit gives the MGPD permission to patrol the store and surrounding area and make arrests/question citizens as officers see fit. This lowers the bar for police officers, removing anything resembling probable cause or reasonable suspicion.
But even as limitless as this is, the MGPD went even further
when "patrolling" the 207 Quickstop. You'll note that the agreement gives the PD permission to act on behalf of business owners "in their absence." Saleh was present for a great many of these "interactions." Not only that, but the officers' idea of acting on Saleh's "behalf" was to harass and arrest many of his customers, which is a strange way of construing this relationship. Stores need customers to purchase their goods, something that occurs less frequently when the patrons are being detained, questioned or arrested.
Saleh regretted this decision after seeing what "zero tolerance" (as applied by the MGPD) actually entailed. But Miami Gardens PD doesn't take "no" for answer.
He finally told them he no longer wanted to participate in the program and removed the sign.
The officers, however, continued their surveillance of his store over his objections. The officers even put the sign back on his store against his wishes, he said.
Things got worse when Saleh took copies of his video to MGPD Internal Affairs.
One evening, shortly after he had complained a second time, a squadron of six uniformed Miami Gardens police officers marched into the store, he says. They lined up, shoulder to shoulder, their arms crossed in front of them, blocking two grocery aisles.
“Can I help you?” Saleh recalls asking. It was an entire police detail, known as the department’s Rapid Action Deployment (RAD) squad, whom he had come to know from their frequent arrest sweeps. One went to use the restroom, and five of them stood silently for a full 10 minutes. Then they all marched out.
Saleh also details a recent incident where an MGPD officer pulled him over for having a tag light out. By the time it was all done, six officers had arrived on the scene and one searched Saleh's vehicle without his permission. Saleh's recordings show him leaving the store that night in his vehicle. His tag lights were working.
As is usually the case in incidents like these, the police department has not offered a comment on this story. Police Chief Matthew Boyd did apparently issue a boilerplate statement about the PD's "commitment" to "serving and protecting citizens and businesses," but didn't address any specific complaints.
Violent crime, particularly murder, has spiked in Miami Gardens in recent months, but this application of "zero tolerance" policies will do very little to bring those numbers down. What it will do, however, is fill activity logs and ledgers that will show the PD is very busy
keeping Miami Gardens free of "trespassers" and handing out open container citations. Even if this story hadn't broken, a few years of skyrocketing arrests and tickets without a corresponding drop in violent crime would have exposed the MGPD's superficial, shoddy and ultimately unconstitutional efforts.
Saleh's filing a lawsuit against the city for this non-stop harassment, including warrantless searches of his premises. Not unsurprisingly, the announcement of his litigation has led to a sharp drop in police presence at the 207 Quickstop. Sampson himself hasn't been arrested since this announcement, either. If the MGPD sincerely believed they were helping curb violent crime by questioning/arresting Sampson and other Quickstop employees and customers, discussion of a lawsuit wouldn't have deterred those efforts. This withdrawal indicates the cops patrolling Saleh's store were, to put it most generously, padding arrest numbers. The reality is that they've been called out for their harassment of Miami Gardens' residents and are now making themselves scarce in order to prevent adding to the evidence against them.
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Posted on Techdirt - 26 November 2013 @ 3:41am
[Update: New York defense attorney Scott Greenfield sends over some input on this latest twist in the stop and frisk saga. The situation isn't quite as simple as my post made it appear. While time is running out for the city of New York to battle this ruling before de Blasio steps in, it still has options available that could make this a much tougher battle for opponents of the program.
The motion panel denied summary reversal, but that has zero to do with the appeal. It was just an interim ploy. Whether de Blasio will continue the appeal, drop it or settle the case has yet to be seen. It's awkward for de Blasio, as even if he agrees that the Bloomberg policy is dead wrong, he won't want to give up control to an outside monitor.
But by no means is this a done deal on any end. The only thing denied was summary reversal; everything else remains on the table, so to suggest it's all over is not at all correct. There remains a whole lot left in issue and bad things can still happen. Very bad things.
One of those bad things is this:
There is still plenty of time for the city to get its brief in under Cardozo/Bloomberg arguing for reversal. This will really put the screws to de Blasio, who would not only have to withdraw the appeal, but do so after the city has submitted and the brief is out there for the world to see.
So, this has only deflected one of the many legal arrows Bloomberg's counsel can fire off before he exits office. Bloomberg has defended stop-and-frisk bitterly and obstinately over the years, so there's no reason to believe more last-ditch efforts aren't being made.]
It looks as though time may run out on Mayor Bloomberg and his fight against Judge Scheindlin's stop and frisk decision
. Even though the Second Circuit Court (questionably) removed Scheindlin
from the case for "appearances of bias and impropriety," it has not allowed New York City to use that as leverage to have her ruling tossed
A federal appeals panel on Friday denied a request by lawyers for New York that it overturn a judge’s sweeping ruling on the Police Department’s stop-and-frisk practices, all but ending the Bloomberg administration’s ability to legally challenge the ruling.
For the time being, Scheindlin's court-ordered remedies (body cameras, installation of independent oversight) are still on hold while the court waits to hear the city's appeal. The city still has the option to re-file this motion once the appeals process has run its course, but by that time, Bill de Blasio will be the new mayor and he has previously stated his opposition to the NYPD's stop-and-frisk program.
Lis Smith, a spokeswoman for Mr. de Blasio, said the mayor-elect had “been clear: We must move forward on making fundamental reforms to stop-and-frisk. By ending the overuse of this practice, we will make New York safer and begin to repair the relationships between community and police.”
Mayor Bloomberg's intense defense
of the questionable program may turn out to be wasted energy. De Blasio could very well decide Scheindlin's ruling is correct and drop the city's appeals.
The vast amount
of evidence, much of it collected by the NYPD itself, shows the program resulted in hundreds of thousands of stops of minorities over the last decade, but not much in the way of crime fighting. Despite the constant arguments that it's responsible for the city's declining crime rates, the stop-and-frisk program resulted in very few convictions or confiscated weapons. (This visualization shows just how inefficient the program is at finding guns
Considering these two factors, the program looks very much like a form of intimidation -- something that may
lead to reduced crime, but that's hardly a solid indicator (or a justification) of its supposed usefulness towards that stated end. All sorts of efforts may
lead to reduced crime (warrantless searches, a camera in every house) but the ends don't justify the unconstitutional means, something Bloomberg and police chief Ray Kelly could never seem to wrap their heads around.
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Posted on Techdirt - 25 November 2013 @ 7:52pm
As we noted last week, the Fort Worth Police Dept. found itself on the receiving end of lots of criticism for its participation in a "voluntary" collection of blood and saliva samples for the NHTSA (National Highway Traffic Safety Administration).
For one thing, having a squad of police officers flag you down and route you into a nearby parking space never feels "voluntary," no matter how easy it is to opt out once you're pulled over. For another, the paperwork signed by "volunteers" contained fine print that indicated consent had been assumed for the PD to "collect" information on the driver's state of intoxication with passive alcohol sensors.
After a local news report detailed the concerns of one citizen who consented to a breathalyzer (the NHTSA paid $50 for blood and $10 for saliva -- there was no compensation for submitting to a breathalyzer) because she felt it was the quickest way out of the "voluntary" collection, the Ft. Worth PD issued the following non-apology.
We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey.
As I noted then, this apology was less than useless. This "apology" lays the blame at the feet of those who "felt" offended or inconvenienced by the voluntary-in-all-but-appearance sample collection. I suggested a more contrite apology that put the blame where it was due.
We apologize for the offensive and inconvenient "survey" we participated in.
I'm not suggesting the Fort Worth police chief reads Techdirt but here's the much better apology
it issued via its Facebook page
TO OUR CITIZENS:
The National Highway Traffic Safety Administration hired off-duty Fort Worth Police officers to assist with the Roadside Survey by providing traffic safety and security of cash used to pay survey participants. This survey was intended to be voluntary and was conducted by NHTSA personnel.
We are reviewing the approval process for this survey’s utilization of FWPD off-duty officers not only to ensure that our policies and procedures were followed, but also to ensure that any off-duty job is in the absolute best interest of our citizens.
We realize this survey caused many of our citizens frustration and we apologize for our participation.
“I agree with our citizens concerns and I apologize for our participation. Any future Federal survey of this nature, which jeopardizes the public’s trust, will not be approved for the use of Fort Worth police.”
Chief Jeffrey Halstead
*** Please express your concern with this survey to the media relations office with the USDOT NHTSA - Kathryn Henry 202-366-6918; firstname.lastname@example.org
While it's too bad this moment of clarity didn't strike before
the PD assisted the NHTSA in its voluntary DNA draws (which the agency claims is anonymized and yet volunteers had to sign a participation form?), it is good to see that it realizes how involuntary this looked to drivers who were flagged down by the assisting officers. It's also good to see the FWPD will steer clear of these questionable ventures in the future. Hopefully, this will also clue the PD in on how the imbalance of power between law enforcement and citizens often makes voluntary actions seem like anything but.
"Jeopardizing the public trust" is never smart, especially when the success of your work depends heavily on being perceived as trustworthy by the public. And trust isn't something that's easily earned back, not when the public perception of law enforcement as the "good guys" is steadily trending downwards.
Also of note: Chief Halstead may want to be careful about whose contact information he posts publicly. The NHTSA contact info may be publicly available but encouraging citizens to contact media relations representatives has been found to be an arrestable offense
in other jurisdictions.
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