Meta Finally Launches Default End-To-End Encryption In Messenger

Privacy

from the finally dept

For many, many years we’ve been calling on companies to enable end-to-end encryption by default on any messaging/communications tools. It’s important to recognize that doing so correctly is difficult, but not impossible (similarly, it’s important to recognize that doing so poorly is dangerous, as it will lead people to believe their communications are secure when they are most certainly not).

So, over the years we’ve been hopeful as Meta made moves towards implementing end-to-end encryption in Facebook Messenger. However, over and over during the past decade or so, those working on the issue have told us that while Meta really wants to set it up, the practical realities of doing it correctly are way more complex than most people think. And that’s ignoring the fact that law enforcement, intelligence agencies, and, even random shareholders, have tried to get Meta to move away from its encryption plans.

And, now, finally, Meta has announced that Facebook Messenger is end-to-end encrypted by default.

Today I’m delighted to announce that we are rolling out default end-to-end encryption for personal messages and calls on Messenger and Facebook, as well as a suite of new features that let you further control your messaging experience. We take our responsibility to protect your messages seriously and we’re thrilled that after years of investment and testing, we’re able to launch a safer, more secure and private service.

Since 2016, Messenger has had the option for people to turn on end-to-end encryption, but we’re now changing private chats and calls across Messenger to be end-to-end encrypted by default. This has taken years to deliver because we’ve taken our time to get this right. Our engineers, cryptographers, designers, policy experts and product managers have worked tirelessly to rebuild Messenger features from the ground up. We’ve introduced new privacy, safety and control features along the way like delivery controls that let people choose who can message them, as well as app lock, alongside existing safety features like report, block and message requests. We worked closely with outside experts, academics, advocates and governments to identify risks and build mitigations to ensure that privacy and safety go hand-in-hand.

The extra layer of security provided by end-to-end encryption means that the content of your messages and calls with friends and family are protected from the moment they leave your device to the moment they reach the receiver’s device. This means that nobody, including Meta, can see what’s sent or said, unless you choose to report a message to us. 

It’s extremely rare that I’d offer kudos to Meta, but this is a case where it absolutely deserves it. Even if some of us kept pushing the company to move faster, they did get there, and it looks like they got there by doing it carefully and appropriately (rather than the half-assed attempts of certain other companies).

I am sure that we’ll hear reports of law enforcement and politicians whining about this, but this is an unquestionably important move towards protecting privacy and private communications.

Filed Under: encryption, end-to-end encryption, facebook messenger, messenger
Companies: facebook, meta

NY Appeals Court Says Law Enforcement Can’t Withhold Misconduct Records Containing Only ‘Unproven” Allegations

Legal Issues

from the law-says-what-it-says,-law-enforcers dept

New York law enforcement agencies have always considered transparency to be something to be foisted on other government entities. The NYPD spends a lot of its time screwing over public records requests, in one notable case rejecting a Freedom of Information Law (FOIL) request for a copy of its FOIL response guidelines.

For years, these agencies were blessed with statutory opacity. A state law known as 50-a presided over police misconduct records for more than four decades. That law exempted most of these from FOIL requests. This law was finally taken off the books in 2020, partially in response to calls for more transparency and accountability being made around the nation following the murder of unarmed black man George Floyd by Minnesota police officer Derek Chauvin.

But taking the law off the books didn’t immediately make law enforcement agencies more responsive to FOIL requesters. It has taken a lot of litigation to force agencies to do what everyone else who isn’t a cop is expected to do: obey the law.

More litigation is involved here. The Nassau County Police Department (NCPD) was sued by Newsday, a Long Island-based newspaper, for its refusal to turn over records requested by its journalists: namely, misconduct records involving officers merely accused of misconduct.

The NCPD claimed files containing nothing more than unsubstantiated allegations were off-limits, protected by other state privacy laws and FOIL exemptions. The NCPD is wrong. It has lost this lawsuit, creating precedent that will hopefully discourage other local law enforcement agencies from engaging in the same bad-faith interpretation of public records laws.

The state appeals court covering portions of New York City and the surrounding suburbs has issued a landmark ruling promoting public access to police discipline records.

The Second Department of the Supreme Court’s Appellate Division ruled last week that police agencies cannot automatically withhold records of police discipline involving unproven allegations. In many departments, only a small fraction of misconduct allegations result in a proven finding of guilt.

That’s why it’s important the public have access to these documents. Since law enforcement agencies rarely sustain allegations or discipline officers, this paper trail tends to evaporate rather quickly. But just because allegations aren’t sustained doesn’t mean the public shouldn’t know about them. An officer with lots of allegations, even if few are sustained, is probably someone who abuses rights and regulations frequently.

The state appeals court ruling [PDF] says these records are subject to the law following the repeal of 50-a. And it’s not even a close question. The state legislature made its intent extremely clear when it took that law off the books.

With respect to unsubstantiated complaints, in each of the three requests, the NCPD merely asserted in a conclusory fashion that it could withhold the documents “based on considerations of privacy.” In denying two of the requests, the NCPD opined that the recent legislative amendments were not intended to affect disclosure of such records. This opinion plainly is at odds with the legislative action. Upon repealing Civil Rights Law § 50-a, the Legislature amended the Public Officers Law to specifically contemplate the disclosure of “law enforcement disciplinary records,” which it defines to include “complaints, allegations, and chargesagainst an employee” (Public Officers Law § 86[6][a]).

If the Legislature had intended to exclude from disclosure complaints and allegations that were not substantiated, “it would simply have stated as much” (Matter of Friedman v Rice, 30 NY3d at 478). It did not, and instead included “complaints, allegations, and charges” in its definition of disciplinary records, along with “the disposition of any disciplinary proceeding” (Public Officers Law § 86[6][d]), without qualification as to the outcome of the proceeding. Furthermore, the Legislature directed the types of information that shall and may be redacted from law enforcement disciplinary records prior to disclosure (see id. § 87[4-a], [4-b]). Notably, unsubstantiated allegations or complaints are not among either the mandated or the permissible redactions (see id. § 89[2-b], [2-c])

The other argument made by the NCPD — that the repeal of 50-a and the amendment of FOIL law is not retroactive — is even worse. According to the NCPD, no FOIL requester should be able to request any records created prior to the law’s repeal in 2020. This is obviously absurd.

The petitioner made the subject FOIL requests in July 2020, after the legislative amendments were enacted, and, thus, the petitioner is not seeking retroactive application of the statutory amendments to a pending FOIL request. To the extent that the NCPD contends that the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020, it has offered no support for this proposition. By their nature, FOIL requests seek records that were generated prior to the request date. In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves.

So simple a cop could understand it… if they wanted to. The repeal of 50-a put these records back in the pool of documents that can be obtained by the public. It did not say “all of these, except…” The alteration of the law definitely did not create a diverging timeline where records created prior to June 2020 are subject only to laws enacted prior to this date. That the NCPD would assume so suggests it’s willing to blow tax dollars on presenting wishful thinking to multiple courts and judges. While that sort of thing is definitely a waste of public funds, then end result here ensures fewer dollars will be wasted on similar stupidity in the future.

Filed Under: allegations, foil, nassau county police, nypd, transparency

Daily Deal: The Complete MATLAB Programming Master Class

Deals

from the good-deals-on-cool-stuff dept

MATLAB allows matrix manipulations, plotting of functions and data, implementation of algorithms, creating of user interfaces, and interfacing with programs written in other languages. That’s all well and good, but it means nothing if you don’t have a firm grasp of the data types used within MATLAB. In the Complete MATLAB Programming Master Class, you’ll cover not just data types, but also dive into their functions and how to perform conversions to make analysis and programming a greater experience. It’s on sale for $30.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Judge Allows Major ‘Right To Repair’ Lawsuit Against John Deere To Move Forward

Legal Issues

from the do-not-pass-go,-do-not-collect-$200 dept

Last year agricultural equipment giant John Deere found itself on the receiving end of an antitrust lawsuit for its efforts to monopolize tractor repair. The lawsuits noted that the company consistently purchased competing repair centers in order to consolidate the sector and force customers into using the company’s own repair facilities, driving up costs and logistical hurdles dramatically for farmers.

The lawsuits also noted how the company routinely makes repair difficult and costly through the act of software locks, obnoxious DRM, and “parts pairing” — which involves only allowing the installation of company-certified replacement parts — or mandatory collections of company-blessed components.

One of the lawsuits by a collection of 18 farms and farmers was allowed to move forward last week after a judge ruled against the company’s motion to dismiss:

“In a forceful, 89-page memorandum, U.S. District Court Judge Iain Johnson wrote that the founder of John Deere “was an innovative farmer and blacksmith who—with his own hands—fundamentally changed the agricultural industry.” Deere the man “would be deeply disappointed in his namesake corporation” if the plaintiffs can ultimately prove their antitrust allegations against Deere the company, which are voluminous and well-documented.”

John Deere has spent years promising farmers that they’d reverse course on their efforts to monopolize repair, only to ignore their own promises. The company has also been striking meaningless “memorandums of understanding” with key trade groups, pinky swearing to stop their bad behavior if the groups agree to not support state or federal right to repair legislation.

The market isn’t going to fix this problem by itself. It’s clearly going to require a combination of antitrust reform, regulatory action, new state/federal legislation, and meaningful class action penalties before John Deere executives finally get the message. And unfortunately for them, right to repair reform continues to see stunning levels of bipartisan public support.

Filed Under: agricultural, consumer rights, farmers, farming, freedom to tinker, right to repair, tractor
Companies: john deere

Court Shuts Down Union’s Assertion That NYPD Officers Should Be Allowed To Choke People To Death

Legal Issues

from the you-guys-fight-the-hardest-for-the-worst-stuff dept

The killing of Eric Garner — an unarmed black man — by white NYPD officer Daniel Pantaleo was yet another in long and unending series of flashpoints that generated nationwide protests against police violence.

Of course, the NYPD felt its officer, one in plainclothes who choked Eric Garner to death over the alleged crime of selling untaxed cigarettes (i.e., “loosies,” single cigarettes at a price point far more affordable than paying the ~$10/pack price that was standard in New York City in 2014), had done nothing wrong. He had simply applied a department-approved restraint. That restraint was a chokehold, one that killed Garner as Pantaleo ignored Garner’s repeated assertions that he could not breathe.

The NYPD’s biggest union — the Patrolmens Benevolent Association (PBA) — then helmed by Pat Lynch, was swift to point out everyone else but the NYPD and Officer Pantaleo were to blame for this turn of events. He demonized the NYC resident who had turned over his cellphone recording of this homicide to the press, claiming this citizen was a “criminal” who was only serving himself by exposing this killing to the general public.

The city responded, albeit belatedly, by doing what the NYPD was unwilling to do itself: it banned chokeholds and other restraint tactics that compressed arrestees’ airways. The PBA responded to this change in law childishly. It sued the city, claiming that banning officers from choking people was somehow an unconstitutional abuse of the city government’s powers.

It lost in the lower court. And, as (briefly) reported by Courthouse News Service, it has lost again, this time at the hands of New York State Court of Appeals, which (somewhat confusingly is the state’s top court).

Never mind the fact that choking someone would only be a misdemeanor. Never mind the fact the NYPD rarely, if ever, punishes officers for violating policies, laws, or the Constitution. Never mind the fact that any charge would likely be overturned by the union-enabled arbitration process, which almost always allows bad cops to stay employed, often without any permanent stain on their service record.

The PBA went to court, implicitly arguing officers should be able to kill residents with choke holds and other dangerous restraints. It wasn’t the only union making this ridiculous argument. As the appeals court decision [PDF] notes, it was joined by 16 other police unions representing officers affected by the state law.

The PBA argued the new statute was preempted by preexisting laws that governed use of force by the state’s law enforcement officers. It also argued the statute was unconstitutionally vague, even though it only targeted very particular restraint tactics.

It also claimed officers’ due process rights were violated because officers would have no way of knowing if they were violating the law. According to the PBA, an officer choking someone would be unable to know if they were illegally choking someone.

Plaintiffs also asserted that Administrative Code § 10-181 violates the State Constitution’s due process clause and is void for vagueness because the portion of the law relating to compression of an arrestee’s diaphragm fails to give adequate notice of the conduct prohibited. To support their vagueness challenge, plaintiffs submitted affidavits by two former New York City Police Department officials who averred that police officers would not understand what it means to “compress” an arrestee’s “diaphragm” and would not be able to discern, at any given point during an arrest, whether they are in fact “compressing” the diaphragm. Plaintiffs also proffered affidavits from two medicalexperts, both of whom opined that Administrative Code § 10-181 was “vague and confusing.”

We certainly don’t expect police officers to be medical experts. I mean, how could we? We certainly don’t expect them to actually know the laws they’re enforcing, much less comprehend the coverage of long-held constitutional rights.

On the other hand, the most obvious response to a choke hold ban would be to err on the side of caution. If a form of restraint has the chance to “compress” an arrestee’s “diaphragm,” maybe that form of restraint should be abandoned in favor of something else. And if something does unexpectedly compress someone’s diaphragm, it’s likely courts, unions, arbitrators, and the NYPD itself would find a way to ensure the officer never faces (misdemeanor!) criminal charges.

The city felt the restrictions were easy enough to understand, assuming one was actually willing to understand them.

As to plaintiffs’ vagueness claim, the City proffered NYPD training materials illustrating that officers are instructed regarding the movement and function of the diaphragm, and that officers are trained not to use chokeholds or to sit,kneel, or stand on the chests or backs of arrestees.

Once you know where the diaphragm is located (something anyone who’s gone through a elementary school human biology course comprehends), all you have to do is avoid compressing it. Compressing it often requires doing something that restricts breathing, like standing, sitting, or kneeling on someone’s chest. Quite obviously, placing someone in a literal choke hold would similarly restrict breathing.

But if you don’t want to understand something as simple as this, you don’t need to. That’s the gist of this lawsuit, which attempted to remove legal restraints from some NYPD officers’ preferred forms of restraint. The PBA and its buddies hoped to secure a win for their deliberately obtuse representees.

But it’s not going to happen. The state’s top court says there’s nothing wrong with law, contrary to the PBA’s assertions and contrary to (some) conclusions reached by the lower court.

First, the court points out there is no actual conflict of law presented by the new statute. The new statute expands what’s already in place. It does not replace existing laws nor do existing laws render the new law void, no matter how much the PBA pretends it does.

As we have now clarified, the legislature has not preempted the field and therefore Administrative Code § 10-181 is not rendered inconsistent with state law just because it is broader in scope than Penal Law § 121.13-a. There can be no serious contention that the state specifically permits the conduct prohibited by section 10-181 (see New York State Club Assn., 69 NY2d at 221-222). Further, section 10-181 does not conflict with those provisions of state law that permit the necessary use of physical force (see Penal Law § 35.30), since a justification defense remains available in prosecutions for violations of the local law. Therefore, Administrative Code § 10-181 is a valid exercise of the City’s municipal law-making authority.

As for the law being too vague and threatening due process rights because cops aren’t capable of understanding complicated things like “compression” or “diaphragm,” the court has this to say, in what I hope is its most condescending tone:

Here, a person of ordinary intelligence would understand the term “compress” to have its common meaning: “to press or squeeze” or “to reduce in size, quantity, or volume” (Merriam-Webster.com Dictionary, compress [https://www.merriam-webster.com/dictionary/compress]). Further, as evidenced by plaintiffs’ expert affidavits, the role of the diaphragm in respiration is generally understood. Contraction of the diaphragm enlarges space in the chest cavity, allowing the lungs to expand and fill with air upon inhalation. Conversely, when the diaphragm relaxes, the lungs deflate and expel air. Movement of the diaphragm in this manner is known to be an integral component of respiration.

Significantly, Administrative Code § 10-181’s reference to compression of the diaphragm “cannot be viewed in isolation, for it is but one element of a statute that gives greater definition to the proscribed conduct” (People v Shack, 86 NY2d 529, 539 [1995]). Reading the challenged clause in context, an ordinary person would understand that section 10-181 prohibits the application of pressure to an arrestee’s chest or back through specified actions—sitting, kneeling, or standing—in a manner that impedes the person’s ability to breathe by causing interference with the regular movement of the diaphragm.

If citizens can understand things like this, we certainly should expect cops to attain this minimal level of comprehension. And when it comes to deploying restraint, everyone — public or private — is expected to use the minimum amount needed to do the job.

Both private citizens and law enforcement officers have long been required to gauge the impact of physical force used against others to ensure their employment of force is consistent with statutorily delineated parameters…

This paragraph makes it clear why this law was needed. Citizens already understand certain forms of restraint cross the line from acceptable to criminal. Cops know this as well, but no existing law actually forbade them from crossing this line. The NYPD was unwilling to handle the issue itself, which forced the legislature to fill this void in police leadership. And once it did, the first thing cops did was sue about it.

The law survives the challenge. It isn’t vague and it isn’t an overreach. In a better world, it wouldn’t even be necessary. But the NYPD has abdicated its disciplinary responsibilities for years. And if it’s not willing to punish officers for choking people, then it’s up to the city and state to provide the accountability the NYPD refuses to provide.

Filed Under: chokeholds, choking, nypd, pba

Good And Bad News On Attempts To Implicate DNS Services For Copyright Infringement At The Domains They Resolve

Copyright

from the when-will-it-ever-stop? dept

Two years ago Techdirt wrote about an attempt by Sony Music in Germany to implicate Quad9, a free anycast DNS platform (Cloudflare has technical details on what “recursive” means in this context), in copyright infringement at the domains it resolves. That was bad news for at least two reasons. First, because Quad9 is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. It aims to protect tens of millions of users around the world from malware and phishing, receiving nothing in return. More generally, success in this lawsuit would create a terrible precedent for blaming a service that is part of the Internet’s basic plumbing for what passes through its pipes.

Unfortunately, the Regional Court in Hamburg, where the case was heard, issued an interim injunction ordering Quad9 to cease resolving the names of sites that Sony Music alleged were infringing on its copyright. A more recent Techdirt post noted that Quad9 had appealed to the Hamburg Higher Regional Court against the lower court’s decision. Around this time the Regional Court in Leipzig handed down another ruling against the company. Quad9 said that it would be appealing to the Dresden Higher Court against that decision. The good news is that the court in Dresden has now ruled in favor of Quad9. A blog post by Quad9 summarizes what happened:

The appeal with the Higher Regional Court in Dresden follows a decision by the Regional Court in Leipzig, in which Sony prevailed, and Quad9 was convicted as a wrongdoer. Before that, Sony successfully obtained a preliminary junction against Quad9 with the Regional Court in Hamburg. The objection against the preliminary injunction by Quad9 was unsuccessful, and the appeal with the Higher Regional Court in Hamburg was withdrawn by Quad9 since a decision in the main proceeding was expected to be made earlier than the conclusion of the appeal in the preliminary proceedings.

That’s great news, since it confirms that Quad9 benefits here from the liability privileges as a “mere conduit”. Also good news is the court’s ruling that the case “cannot be taken to a higher court and their decision is the final word in this particular case.” Except, as Quad9 explains, it’s not quite over yet:

Sony may appeal the appeal closure via a complaint against the denial of leave of appeal and then would have to appeal the case itself with the German Federal Court. So while there is still a possibility that this case could continue, Sony would have to win twice to turn the decision around again.

There’s also a situation in which a DNS resolver might still be required to block a domain:

it is possible that a DNS resolver operator can be required to block as a matter of last resort if the claiming party has taken appropriate means to go after the wrongdoer and the hosting company unsuccessfully. Such measures could be legal action by applying for a preliminary injunction against a hosting company within the EU. These uncertainties still linger, and we expect that this ongoing question of what circumstances require what actions, by what parties, will continue to be argued in court and in policy circles over the next few years.

Moreover, despite this clear win in Germany, Quad9 has been served with another demand (from media companies once more), this time to block domain names because of alleged copyright infringement in Italy:

Italian legal representatives have presented us with a list of domains and a demand for blocking those domains. Now we must again determine the path to take forward fighting this legal battle, in another nation in which we are neither headquartered nor have any offices or corporate presence.

As to how these legal actions in Germany and Italy can be brought in countries where Quad9 has no corporate presence, the answer is something called the Lugano Convention. And to end on a more positive note, another major DNS service provider, Cloudflare, has also won a legal battle in Germany:

A recent decision from the Higher Regional Court of Cologne in Germany marked important progress for Cloudflare and the Internet in pushing back against misguided attempts to address online copyright infringement through the DNS system. In early November, the Court in Universal v. Cloudflare issued its decision rejecting a request to require public DNS resolvers like Cloudflare’s 1.1.1.1. to block websites based on allegations of online copyright infringement. That’s a position we’ve long advocated, because blocking through public resolvers is ineffective and disproportionate, and it does not allow for much-needed transparency as to what is blocked and why.

Although these victories are welcome, they are hard won. Moreover, the battles between deep-pocketed media companies and not-for-profit organizations like Quad9 are inherently unbalanced. Quad9 itself admits:

Quad9 can only have a few legal fronts open at once – we are nearly entirely dedicated to operational challenges of running a free, non-profit recursive resolver platform that protects end users against malware and phishing. We are not a for-profit company with lawyers on retainer.

And that’s why the lawsuits keep coming – in the hope that one day the people defending the Internet, as Quad9 and Cloudflare have done with success, run out of money or management time to devote to these fights. It’s a risk that has not gone away, despite these recent wins.

Follow me @glynmoody on Mastodon.

Filed Under: cologne, copyright infringement, dns, dresden, germany, italy, leipzig, quad9, switzerland
Companies: cloudflare, quad9, sony music

Florida Supreme Court: Victims’ Rights Law Can’t Be Used To Block Reporting On Police Misconduct

Legal Issues

from the flow-my-tears,-the-policeman-said dept

No one’s more willing to abuse a law than a cop. They pretend they don’t understand the complexities of laws when it suits them. But they’re always right on top of any law that might protect them from the consequences of their own actions.

Enter the somewhat infamous “Marsy’s Laws” that have been passed in several states around the nation. These laws give more rights to crime victims, including (in certain cases) forbidding the publication of the names of crime victims.

It’s that part of these laws that has been leveraged by law enforcement officers accused of misconduct or criminal activity of their own. As long as they can claim they were “victims” of crime, journalists (and others) are blocked from publishing their names.

It happened in Florida in 2021. Two officers who killed someone invoked the law (via their union reps) to shield their identities, claiming they were actually the victims here, even though both officers are still alive. According to these officers, they were victims of assault by the person they killed. As such — and according to Florida’s version of Marsy’s Law — they were allowed to shield their names from the public.

This resulted in an injunction being secured by the officers preventing the publication of their names. The Florida Court of Appeals reversed a lower court decision that said the law was not designed to shield officers acting in their official capacity, even if they were actually victims of actual crimes. Fortunately, that injunction was dissolved a week later by a judge less inclined to believe a victim’s rights law was designed to protect officers suspected of deploying excessive force.

Now, as CBS News reports (but without including a copy of the decision), law enforcement officers are no longer permitted to invoke the state’s victims’ rights law to shield their identities from the general public.

A 2018 constitutional amendment designed to bolster victims’ rights “does not explicitly” shield the identities of police officers – or any other people – from disclosure, the Florida Supreme Court ruled in a major decision on Thursday.

The unanimous opinion, authored by Justice John Couriel, came in a dispute over the identities of two Tallahassee police officers involved in separate use-of-force incidents in which they were threatened. 

There is no categorical identity shield in the law, according to the state’s top court. So, this decision [PDF] will affect regular people, as well as the law enforcement officers hoping to retain their anonymity. In this case, it wasn’t reporters seeking the officers’ names (although they were) targeted by this lawsuit. The officers (who were involved in separate deadly force incidents) sought to block the City of Tallahassee from releasing their names.

The court notes it’s not here to decide whether or not such a right to anonymity should exist or who it should apply to. It’s here to determine what the law actually says. And the law cited by these officers doesn’t say what they think it does.

Marsy’s Law guarantees to no victim—police officer or otherwise— the categorical right to withhold his or her name from disclosure. No such right is enumerated in the text of article I, section 16(b) of the Florida Constitution. Nor, as a matter of structure, would such a right readily fit with two other guarantees contained in article I: the right expressed in section 16(a) of the criminally accused “to confront at trial adverse witnesses,” and the right found in section 24(a) of every person to inspect or copy public records.

That suggests sending the law back for a rewrite to create this categorical right (one that could be used by police officers who’ve killed someone) will only create more friction between the victims’ rights law and other rights established by the same state constitution.

The key here is what the constitutional amendment actually says. And what it says is nothing about a categorical protection for crime victims’ names.

Marsy’s Law speaks only to the right of victims to “prevent the disclosure of information or records that could be used to locate or harass” them or their families. Art. I, § 16(b)(5), Fla. Const. One’s name, standing alone, is not that kind of information or record; it communicates nothing about where the individual can be found and bothered.

To be sure, a name is a good starting point if someone wants to “locate or harass” someone. But publishing a name alone is not a violation of the victims’ rights law. Publishing other connective information would be. And there are other laws on the books that deal with harassment, so there’s no reason to interpret the amendment as superseding other rights already granted to Florida residents.

The court goes on to note laws can be established that shield people’s identities, pointing to various protections involving medical records. If the legislature meant to expressly prevent the publication of crime victims’ names alone, it certainly could have done so. (Not that it necessarily would have survived a constitutional challenge.) It didn’t do that here. And because it didn’t, these cops (along with crime victims who aren’t protected by the extra rights granted to law enforcement officers) cannot prevent the mere publication of their names.

The lower court’s ruling is reversed. Cops can’t use a law meant to protect the most vulnerable members of society to shield themselves from public accountability. If they want to keep their names out of the news, they should perhaps exercise a bit more discretion when deploying deadly force.

Filed Under: florida, marsy's law, police misconduct, victim rights

We Teamed Up With Bluesky To Tell The Supreme Court How State Social Media Laws Don’t Take Into Account User Empowerment

Content Moderation

from the empowering-users-is-important dept

As you know, the Supreme Court is now considering the NetChoice/CCIA cases challenging two similar (but not identical) state laws regarding social media moderation. The laws in Florida and Texas came about around the same time, and were clearly written to target ideological speech. Both of them put restrictions on how certain social media apps can moderate or even recommend certain speech.

As you’ll recall, district courts in both states found the laws obviously unconstitutional attacks on the 1st Amendment. On appeal, things went differently. The 11th Circuit agreed that most of the Florida law was unconstitutional (we think they’re wrong about the part they weren’t concerned with too). But the 5th Circuit went rogue and said that of course states can set whatever moderation laws they want (which is in conflict with later 5th Circuit rulings regarding state pressure on moderation, but I digress).

Anyway, you can follow along on the docket for the case at the Supreme Court, where NetChoice/CCIA filed their brief recently. This week, a bunch of amicus briefs are being filed, some of which are really interesting.

I wanted to focus on one brief in particular in this post: our own, written by Cathy Gellis. We teamed up with Bluesky (the alternative microblogging service that is building a federated protocol for social media) and Chris Riley (in his personal capacity as the operator of a Mastodon instance) to make some points that we don’t think other amici are likely to make.

The key point we tried to make is that so much of the arguments being thrown back and forth are really about who it is that gets to determine how a website moderates: should it be the government or should it be the website? If those are the only two options there are, then it already does seem obvious that it should be the website, not the government.

But, the key to our brief is pointing out that this assumes, falsely, that this is the only possible model out there. Instead, we highlight, that it is possible to envision a world in which users themselves get to decide, and any ruling that says the government gets to decide would fundamentally make that kind of user freedom and empowerment impossible.

A fundamental part of my Protocols, Not Platforms article (which, in part, helped inspire Bluesky) was that it would empower users to have more control themselves, or at least let them choose which intermediaries they trust to help them with algorithms and moderation, rather than relying on the same platform that they use for the hosting of the content itself.

For example, Bluesky has an amazingly useful feature called “custom feeds” and it has created a marketplace of algorithms so that you can create your own algorithms and share them with others, or you can just decide to use someone else’s algorithm (or even adapt it further yourself). That is, rather than relying on a company like Twitter or Facebook to decide what you should see, on Bluesky, you get to make those decisions yourself, or hand them off to someone you trust.

But, in that architecture, it means that Bluesky often won’t even know what algorithms people are using (the algorithms don’t have to live on Bluesky’s servers, indeed, Bluesky itself might never even be aware of them). But should these laws (or laws like them) apply to Bluesky, that kind of ecosystem basically would be effectively barred, because the law would limit what kinds of algorithms could work on Bluesky, and Bluesky itself would have no way to control those third party algorithms.

This ecosystem of platforms is necessary in order for there to be meaningful choices in what expression Internet users experience online. Platform choice, and the customization algorithmic choice enables, are what helps realize the expression-promoting value of the Internet and ensures it captures a diversity of expression by putting the choices of what expression to be exposed to in the hands of users. It is not for the government to take away this choice, creating a platform or algorithmic monoculture, which is what the Florida and Texas laws threaten.

Similarly, we used the example of how comments here at Techdirt are moderated, in which much of the moderation is actually handled by community votes, and how there’s no way to comply with these laws for such community moderation practices either:

But while the Copia Institute’s moderation practices can be described in broad strokes, they cannot be articulated with the specificity that the Texas law would require. For instance, the law requires that platforms disclose their moderation standards. See, e.g., TEX. BUS. & COM. CODE § 120.051. And it also puts limits on how platforms can do this moderation. See, e.g., TEX. CIV. PRAC. & REM. CODE § 143A.002 (banning certain moderation decisions, including those based on the “viewpoint” of the user expression being moderated). But even if the Copia Institute wanted to comply with the Texas law, it could not. For instance, it could not disclose its moderation policy because its moderation system is primarily community-driven and subject to the community’s whims and values of the moment. Which also means that it could not guarantee that moderation always comported with a preannounced “Acceptable Use Policy,” which the Texas law also requires. TEX. BUS. & COM. CODE § 120.052. It would also be infeasible to meet any of the Texas law’s additional burdensome demands, including to provide notice to any affected user, TEX. BUS. & COM. CODE § 120.103, maintain a complaint system, TEX. BUS. & COM. CODE § 120.101,24 or offer a process for appeal,25 TEX. BUS. & COM. CODE § 120.103. None of these faculties are features the Copia Institute has the resources or infrastructure to support. In other words, the Texas law sets up a situation where if the Copia Institute cannot host user-provided content exactly the way Texas demands, it effectively does not get to host any user-provided content at all. Or, potentially even worse, it would leave Techdirt in the position of having to host odious content, including content threatening to it, its staff, or others in its reader community, in order to satisfy Texas’s moderation requirements.

There are all sorts of other important 1st Amendment reasons why these laws are deeply problematic. But we assumed (almost certainly correctly) that the briefs from NetChoice/CCIA and other amici will cover all of that.

Our brief was more focused on highlighting how these issues go beyond just the 1st Amendment concerns of big websites, but how they might impact a new generation of social media platforms, like Bluesky and Mastodon, whose very models and infrastructure are fundamentally different from the “giant silos” of today’s major social media platforms.

Too much of the discussion assumes that there are only two parties who might have a say in the moderation of social media: governments and the platforms. But we want to make the court aware that a new generation of services are focused on enabling the users themselves to make that choice, and if these laws are allowed, it could wipe out that possibility.

Filed Under: community moderation, content moderation, decentralized, federation, fediverse, florida, protocols, social media, supreme court, texas
Companies: bluesky, ccia, copia institute, netchoice

Wyoming’s Top Court Says It’s OK To For Cops To Steal Money Obtained From Legal Drug Sales

Legal Issues

from the nation's-road-pirates-strike-again! dept

Possibly legally-obtained funds traveling from Point A to Point B? Those belong to the law enforcement middlemen. That’s how Wyoming’s top court explains things, in a decision [PDF] that says money obtained from legal drug sales in other states can be stolen by cops who operate in a state where this drug isn’t legal.

Those who pass through Wyoming with large quantities of cash beware — the state can confiscate cash linked to drug marketing that might be legal elsewhere, but is illegal here.  

Wyoming Supreme Court Justice Keith Kautz penned a Thursday opinion on behalf of the high court, saying that the state can keep $75,000 found in possession of a man who was reportedly transporting the cash and marijuana as he passed through from Illinois to California. The state can keep that money because it was linked to drug transactions that would be illegal if committed in Wyoming.  

Holy hell. That is a bad ruling. There’s an “if” in that sentence, and that “if” draws the line between legality and illegality. That should matter. If the out-of-state transactions were legal in those states (this case involves both California and Illinois — two states that have legalized marijuana in some form), the simple fact that the funds passed through a state that hasn’t legalized marijuana use/purchases shouldn’t matter.

But the court here holds that it does. Even though no crime was committed in Wyoming, the state’s highest court says nothing else matters but the fact that marijuana possession/use/distribution is illegal in Wyoming.

Not that this should surprise anyone. Wyoming’s forfeiture laws, despite recent reforms, still leave a lot to be desired. That any reform actually occurred is something of a miracle, considering the state’s top lawmakers still seem to believe taking money from random people (without prosecuting them for alleged crimes) somehow slows the flow of drugs in (or through) a state no one really considers to be a top destination for narcotics. And they still insist this is true, even when cops do things like take $92,000 from a traveling musician just because he violated the state’s seat belt law.

In this case, $75,000 was at stake. That was enough to push the state attorney general, Bridget Hill (whose office directly benefits from forfeitures) to appeal the lower court’s ruling, which sided with the person who had his money stolen by Wyoming law enforcement officers.

The decision notes there was possible criminal activity afoot when Lorenzo Gallaga was pulled over by state troopers for doing 84 mph in a 75 mph zone on Interstate 80.

On July 29, 2020, a Wyoming highway patrol trooper stopped Mr. Gallaga for speeding while he was driving westbound on Interstate 80 in Laramie County. Mr. Gallaga told the trooper he was traveling from Illinois to California. As they were talking, the trooper smelled raw marijuana; when questioned about the smell, Mr. Gallaga “produced a carton of hemp cigarettes as the explanation for the odor.” The trooper detained Mr. Gallaga to search the vehicle, which yielded $75,000 in U.S. currency and numerouscontrolled substances including marijuana, concentrated tetrahydrocannabinols (THC), and MDMA (otherwise known as Ecstasy). Law enforcement also discovered five cell phones and written records showing transactions involving the sale of marijuana products. Downloads from the cell phones revealed voicemails discussing what law enforcement believed to be marijuana growing and distribution operations.

Now, most of the “controlled” substances (excluding the MDMA) were only “controlled” in Wyoming. They were legal elsewhere, including the two states (California, Illinois) Gallaga referenced during the traffic stop. Not only that, but he provided the most-likely source for the “raw marijuana” the state trooper claimed he smelled. The phones and MDMA weren’t discovered until after Gallaga was arrested and his car was searched more thoroughly before being towed.

At the point the legalized theft occurred, the trooper had nothing more than a speeding ticket and a logical explanation for the origin of the weed odor. The “downloads” obtained later add nothing to the probable cause, seeing as they likely discussed completely legal grow operations and transactions in either California or Illinois.

Sure, criminal charges were brought. But the state DA realized it would be far more profitable (and easy) to pursue this under civil forfeiture, which means the state troopers and the DA could be expected to profit from this unexpected windfall without ever having to prove Gallaga’s money or THC was illegal (or illegally-obtained) in the state of Wyoming.

Consequently, the government opted to move forward with a civil forfeiture, which it believed would be an easy win. Much to its surprise, it suffered a loss in the lower court, even as that court admitted Gallaga’s testimony did not create a credible paper trail for the money or the drugs found in his possession. Even so, the most uncomfortable fact could not be denied: if any criminal activity occurred, it did not occur in Wyoming. (All emphasis mine.)

Based upon its findings of fact, the district court concluded the State “proved by clear and convincing evidence that, on and prior to July 29, 2020, [Mr.] Gallaga was actively engaged in the cultivation, promotion, use, sale, and distribution of controlled substances” in other states, specifically California and Illinois. Nevertheless, it ruled the $75,000 was not subject to forfeiture because the State did not “prove any date or location of any purported or intended exchange” of money for controlled substances, “no dollar amount of such an exchange, no specific quantity of controlled substance, and no identified participant other than [Mr.] Gallaga.”

According to the court, the State did not prove Mr. Gallaga “intended to, or did, business of any sort in Wyoming” or that the currency “was furnished in exchange for a controlled substance in violation of the Wyoming Controlled Substances Act[.]” Instead, Mr. Gallaga merely “pass[ed]-through” Wyoming with the currency. In other words, the district court concluded Mr. Gallaga had not violated the Wyoming Controlled Substances Act.

The higher court says none of this matters. What matters is whether or not it’s easy to steal stuff in the supposed furtherance of enforcing state and federal drug laws. The state does not need to prove Gallaga is guilty of violating state law. All it needs to show is (at a standard much lower than probable cause) that the money might have been obtained by actions that are illegal in Wyoming, but not necessarily illegal in Gallaga’s home state or destination state (Illinois and California). If you drive through Wyoming to conduct legal drug business in other states, I guess you should probably leave your money at home.

The State also proved the $75,000 was proceeds of, or used to facilitate, a conspiracy to cultivate and distribute marijuana, as required for forfeiture under § 35-7-1049(a)(viii). Contrary to the district court’s conclusion, the State was not required to show the currency was proceeds from a specific transaction or exchange of controlled substances so long as it proved a connection between the currency and the conspiracy to engage in conduct which would violate the Wyoming Controlled Substances Act.

Well, that’s fucked up. No government at any level will bring criminal charges (or extremely weak criminal allegations) against people conspiring to commit a completely legal act. But this decision says Wyoming’s law enforcement is more than welcome to do this, especially if it allows people to walk away from dismissed charges but only if they do so without their personal property that has been seized by opportunistic law enforcement officers.

Lots of things “would” violate law. But they only violate law when they actually violate law. In this case, drug transactions taking place in two states where such drug transactions are legal has nothing to do with Wyoming law, which only governs activity that takes place within the borders of Wyoming.

Having ignored all logic, the state Supreme Court comes to this conclusion:

The State met its burden of proving by clear and convincing evidence the $75,000 seized from Mr. Gallaga was traceable to the exchange of controlled substances or otherwise used to facilitate activities which, if undertaken in this state, would violate the Wyoming Controlled Substances Act.

And there it is. The state’s highest court says things that violate state law allow officers to seize property and bring criminal charges even if the state can’t demonstrate — at any level — the illegal activity took place within the state’s borders.

This is an insane holding. Even if just restrict ourselves to traffic violations, this means Wyoming cops can cite people for not having a front license plate (even if it’s not required in their home state) or for emissions violations (even if the driver’s home state has no such emissions requirement). This makes everyone who passes through Wyoming subject to the particularities of its laws, even when drivers aren’t residents, aren’t expected to know the local laws, and would be — in the other 49 states — fully compliant with state regulations.

State laws apply to state residents. For everything else, federal law and the Constitution control. This decision says what might be illegal in Wyoming controls the activities of people who just happening to be using its roads temporarily. This is a bullshit decision backed by bullshit reasoning. The lower court had it right: Gallaga did not commit criminal activity within Wyoming’s borders. Everything that followed his stop was just law enforcement enriching itself at the expense of someone just passing through.

Filed Under: asset forfeiture, civil asset forfeiture, legalized theft, lorenzo gallaga, wyoming