10th Circuit Reminds Cop That A Driver Doing Nothing Suspicious Is Not Reasonable Suspicion To Extend A Stop

Legal Issues

from the reasonable-is-the-baseline dept

Law enforcement officers rarely care about enforcing traffic laws. Moving violations may produce a little extra revenue for the city or state, but it doesn’t do much for the officers performing the stops.

Pretextual stops? The leveraging of any perceived moving violation in hopes of performing a vehicle search? That’s where the money is, thanks to lax civil asset forfeiture laws and cop-friendly judges. And that’s where the action is. Any stop contains the possibility of a big bust or, at the very least, an opportunity to walk off with someone else’s cash or vehicle.

The courts don’t mind pretextual stops, so long as officers maintain the pretext for as long as possible. But if the pretext doesn’t hold, the officers must end the stop. That’s the law of the land, thanks to the Supreme Court’s Rodriguez decision. If the officer doesn’t have probable cause to extend a traffic stop, the stop ends when the stated objective (citation, warning, etc.) has been achieved.

Reasonable suspicion is an extremely low bar. And, for years, cops have been building case law with dubious testimony that suggests almost anything a driver does (or has in their car) is reasonably suspicious. This list of “reasonably suspicious” things now encompasses 99.99% of all drivers have or do, from having discarded food containers in their car to “acting nervous” to “acting not nervous enough” to having a car that’s too clean.

In other words, it’s all suspicious when a cop is involved. Fortunately, courts are sometimes willing to push back against this ever-expanding list of “suspicious” behavior.

This recent Tenth Circuit Court of Appeals decision [PDF] is one of those pushing back. An obviously pretextual stop ended with the discovery of contraband. But, as the decision points out repeatedly, the ends don’t justify the means.

Here’s how this all started:

Mr. Luis Alfonso Leon was stopped by law enforcement after he was observed illegally driving in a passing lane. During the traffic stop, the officer began to suspect Mr. Leon was trafficking drugs. A search of his vehicle uncovered seventy-six pounds of methamphetamine, and Mr. Leon was charged with one count of possessing methamphetamine with intent to distribute.

The illegal action triggering this stop? Driving in the left lane without passing anyone. Not really the sort of thing cops are really interested in. However, it was just enough to justify the stop of Leon by Colorado State Trooper Shane Gosnell, who was likely far more interested in the out-of-state plates than the fact Leon was treating the fast lane like the slow lane.

(And, of course, the cop apologists will light up the comment thread with comments suggesting the discovery of drugs justified everything that happened prior to that discovery. To those commenters, I suggest you pore over the Constitution again and find the part where it says the ends justify the means. People challenging evidence used against them are the ones fighting for constitutional rights. People hassled for no reason and, after having their car tossed, decide it’s a sacrifice they must make to fight the Drug War rarely file lawsuits. Bootlicking robs all of us of our rights. And that includes the rights of those who think the government should have more rights than citizens.)

Following the stop for the alleged moving violation, Trooper Gosnell approached the vehicle (completely normal behavior) and saw stuff with his eyes (completely normal behavior).

As he approached the truck, Trooper Gosnell made several observations. First, he noticed disorganized boxes and clothing in the backseat. Second, he observed food wrappers, a soda bottle, an energy drink can, and religious pamphlets in the front. Based on these conditions, he believed the vehicle had “a lived-in or hard-traveled look.” Supp. Rec., vol. IV at 14. Finally, he saw a single key in the ignition.

The trooper “observed” things he might have observed in any vehicle at any time. However, he decided the things he “observed” were indicative of criminal activity (abnormal behavior! except not for cops!).

The trooper asked for the normal stuff (license, registration). He received it. The registration was expired but Leon explained he had just purchased the truck from a friend in Minnesota. He also explained he had lived in Arizona for most of his life but was now looking to live in Minnesota. He also offered that he was planning to stop in Denver to see if there was a religious convention occurring that he could attend and possibly might stay the night there.

All of this would have added up if Trooper Gosnell hadn’t been so sure it didn’t.

During this interaction, Trooper Gosnell believed Mr. Leon was “overly cooperative” and “super nervous.” Supp. Rec., vol. IV at 23. He found Mr. Leon’s answers to his questions to be indirect and felt Mr. Leon was attempting to control the conversation.

A combination of these circumstances led Trooper Gosnell to suspect Mr. Leon was involved in drug trafficking and to ask for the mileage on the truck. After running some checks and returning Mr. Leon’s documents, Trooper Gosnell asked for Mr. Leon’s consent to search the vehicle. Mr. Leon refused consent, but Trooper Gosnell decided to conduct a dog sniff of the vehicle’s exterior. The K-9 alerted to the odor of narcotics, and Trooper Gosnell and another officer searched the vehicle. The officers found seventy-six pounds of methamphetamine and placed Mr. Leon under arrest.

Bullshit, says the Tenth Circuit. Trooper Gosnell did not have what he needed to extend the stop (which occurred when Gosnell asked for the truck’s mileage). Nor did he have the suspicion needed to hold Leon until a drug dog could perform a sniff of the vehicle.

The trial court said Trooper Gosnell’s actions were supported by reasonable suspicion, reciting (almost word-for-word) Gosnell’s assertions about his reasonable suspicion.

The potential origin of the trip from Arizona, which is known to be a drug hub; traveling from that destination to Minnesota; vague travel plans; unsure how long he was going to be in Denver; vague reasons for even being in Denver; attempting to control the conversation; inconsistent statements regarding where he was currently living; the Arizona driver’s license; the Minnesota registered vehicle; the condition of the interior of the vehicle; and Mr. Leon’s nervousness . . . .

This is all wrong, says the Appeals Court, starting with the stupidity that is “drug hubs,” an assertion that pretty much declares all of America to be either a drug source or a drug destination.

First, the characterization of Arizona and Minnesota as drug hubs or destinations adds nothing to the reasonable suspicion calculus. […] Moreover, it is not clear that Trooper Gosnell knew or believed Mr. Leon was traveling to Minnesota. In fact, the government argues Mr. Leon did not disclose his final destination and that his failure to do so was suspicious.

Nor were the travel plans Leon discussed with the trooper in any way “suspicious.”

Mr. Leon’s plans were at most unusual, not logistically unrealistic. Although we have found travel plans suspicious when “it begged credulity to think that the purported purpose of the trip could justify the travel plans,” United States v. Lopez, 849 F.3d 921, 927 (10th Cir. 2017), there is nothing in the record to suggest Mr. Leon was on a restricted timeline and Trooper Gosnell did not inquire into Mr. Leon’s plans after stopping at ISKCON [the religious convention]. Nor do we find it suspicious that Mr. Leon planned to play his trip in Denver by ear. Assuming Mr. Leon was traveling all the way to Minnesota from Arizona, stopping in Denver where there was a personal point of interest would not be all that unusual.

And there was no inconsistency in Leon’s statements about his travel plans and residency, despite the lower court (mistakenly) assuming otherwise.

The district court relied on Mr. Leon’s inconsistent statements about where he lived. But Mr. Leon did not actually make an inconsistent statement. Early in the traffic stop, Trooper Gosnell asked him if he was from Arizona. Mr. Leon answered affirmatively but clarified that he was transitioning to Minnesota. In response, Trooper Gosnell noted the Minnesota plates. After Mr. Leon confirmed he was traveling from Phoenix that day, Trooper Gosnell asked him how long he had been living “out there.” Dashboard Camera Footage at 4:50–4:51. Mr. Leon explained that he received permanent residency in 2014 but lived in Arizona as a child. When Trooper Gosnell then inquired into Mr. Leon’s connection to Minnesota and how he came into possession of the truck, Mr. Leon explained his transition, noting that he originally went to Minnesota because of a woman and was now living with his friend Marco who helped him get the truck. At the time of the Rodriguez moment, Mr. Leon had not made any inconsistent statement about where he was living.To the extent the district court found otherwise, it was clearly erroneous.

As for the other additives to Trooper Gosnell’s “reasonable suspicion” equation, the Appeals Court is even less impressed by these factors.

Moreover, we afford no weight to the condition of the vehicle’s interior, which
had food wrappers, soda and energy drink containers, miscellaneous boxes, and clothes.

First, food wrappers and drink containers are items you would find in any vehicle on a road trip. […] The lived-in or hard-travelled appearance Trooper Gosnell noted may be consistent with drug trafficking trips but it is also characteristic of most road trips. The fact that Mr. Leon had purchased the car just a few weeks prior does not change our analysis; a car being used for a road trip is likely to accumulate some degree of mess regardless of how long it has been owned.

Second, although Trooper Gosnell explained that some traffickers use a “cover load” to make a trip seem legitimate, he failed to explain why he believed the contents of Mr. Leon’s vehicle were part of a cover load rather than indicative of legitimate travel or even how such a distinction could be made. We are not persuaded that the presence of boxes or clothing, whether neatly arranged or disorganized, raises an inference of reasonable suspicion.

“Nervous” driver? This means nothing, says the Tenth Circuit.

[W]e have consistently held that ordinary nervousness bears little weight in the reasonable suspicion calculus. This is because most motorists experience some degree of nervousness when stopped by police and “unless the police officer has had significant knowledge of a person, it is difficult, even for a skilled police officer, to evaluate whether a person is acting normally for them or nervously.”

The same goes for the officer’s assertions that Leon might have been driving the truck as a mule, unaware of its contents, but somehow still responsible for the contraband inside the vehicle. But that assertion goes against all the evidence the trooper already possessed when he suddenly decided he had the reasonable suspicion needed to extend the stop and search the truck.

To the extent Trooper Gosnell found these factors suspicious because they suggested Mr. Leon was traveling in a third-party vehicle, we afford them no weight. Prior to the Rodriguez moment, Mr. Leon told Trooper Gosnell the truck belonged to him, which Trooper Gosnell confirmed by looking at the title transfer. At that point, it would have been clear to a reasonable officer that Mr. Leon was not traveling in a third-party vehicle and could not distance himself from the vehicle as a defense.

Having perhaps recognized all this “reasonable suspicion” might not be all that “reasonable,” the government also added this to its arguments.

On appeal, the government urges us to consider an additional factor: Mr. Leon purchased the vehicle for a suspiciously low price of $500, which was listed on the title. We decline to consider this factor in our de novo review of reasonable suspicion for two related reasons. First, the government did not raise this factor below, and the district court did not appear to consider it.

The Appeals Court isn’t obligated to consider this last-minute addition to the government’s arguments. But even so, it takes time to explain why it wouldn’t consider this evidence of anything, much less supportive of its reasonable suspicion assertions.

We conclude that the record on this point is inadequately developed because it is devoid of details concerning the condition of the vehicle and market rates at the time of purchase, which is context needed to measure the probativeness of the price Mr. Leon paid.

While things might have seemed sketchy, they weren’t constitutionally sketchy.

The factors cited by the district court and the government are not inconsistent with drug trafficking, but they are also not meaningfully indicative of drug trafficking.

And away goes the 76 pounds of meth discovered, along with the conviction this evidence secured. Hopefully, the lessons learned (and made precedent through publication) discourage officers from pretending normal driver behavior is somehow suspicious. But, given the odds, it seems safe to say this will do nothing to prevent cops from converting minor moving violations into fishing expeditions.

Filed Under: 10th circuit, colorado, colorado state police, reasonable suspicion, shane gosnell, traffic stop

The Enshittification Of Streaming Continues As Amazon Starts Charging Prime Video Customers Even More Money To Avoid Ads

Failures

from the enshittify-ALL-the-things! dept

Thanks to industry consolidation and saturated market growth, the streaming industry has started behaving much like the traditional cable giants they once disrupted. As with most industries suffering from “enshittification,” that generally means imposing obnoxious new restrictions (see: Netflix password sharing), endless price hikes, and obnoxious and dubious new fees geared toward pleasing Wall Street.

Case in point: Amazon customers already pay $15 per month, or $139 annually for Amazon Prime, which includes a subscription to Amazon’s streaming TV service. In a bid to make Wall Street happy, Amazon has apparently decided it makes good sense to start hitting those users with entirely new streaming TV ads, then charge an additional $3 per month to avoid them:

“US-based Prime members will be able to revert back to an ad-free experience for an additional $2.99 per month on top of their existing subscription. Prime memberships in the US cost $14.99 per month, or $139 per year if paid annually. Pricing for the ad-free option for other countries will be shared “at a later date.”

Of course imposing new annoyances you then have to pay extra to avoid is just a very small part of Amazon’s overall quest to boost revenues at the cost of market health, competition, customer satisfaction, and the long-term viability of its sellers.

Ideally, competition in streaming is supposed to result in companies improving product quality and, ultimately, competing on price. But eager to feed Wall Street’s insatiable and often myopic need for improved quarterly returns at any cost, streaming giants have begun extracting additional pounds of flesh wherever and however they can, product quality and consumer satisfaction be damned.

That (combined with stupid and pointless mergers and “growth for growth’s sake” consolidation) results in streaming services that are increasingly expensive, lower quality than ever (see the decline of HBO as one shining example), and don’t much care about the consumer experience. That’s before you get to the endless industry layoffs or the media industry’s protracted unwillingness to pay creatives a living wage.

All overseen by a suite of unremarkable, fail-upward, overpaid executives (see: Warner Brothers Discovery CEO David Zaslav) who show absolutely no indication that they genuinely understand the industry they do business in or have any real empathy for employees or consumers. The result is higher prices, worse product quality, lower employee pay, plenty of industry chaos, and enshittification.

So, it’s not terribly surprising short-sighted executives can’t see this is the exact trajectory and decision making process that opened the traditional cable industry to painful and protracted disruption, ensuring history simply repeats itself in perpetuity.

Filed Under: advertisements, amazon prime, competition, consumers, enshittification, price hikes, streaming, tv
Companies: amazon

Elon May Have Accidentally Revealed How ExTwitter Usage Has Dropped Massively Since His Takeover

Failures

from the fun-with-numbers dept

Over the last few months, Elon Musk and Linda Yaccarino keep trying to claim that exTwitter is actually growing and more used than ever. Yaccarino has talked about “largest usage days” without defining the term, and Elon says it’s “user-seconds per day of phone screentime as reported by iOS & Android” even though that’s not actually a stat that anyone uses.

Meanwhile, multiple other reports have suggested otherwise. Similarweb has repeatedly noted that its stats show exTwitter’s traffic trending downward. Apptopia, which tracks app usage, has said that the actual time spent on the Twitter app has tracked downward all year since there was an initial post-Elon bump:

And a new report, again from Apptopia, is saying that its app downloads have sunk to new lows as well. Looking at Data.ai’s app download charts, the exTwitter app… is barely in the top 100 downloads. At last look, it was 96th. Which is embarrassing. More people are downloading the Jersey Mike’s app and “GeometryDash” than exTwitter.

That’s for downloads. What about usage? Well, according to Data.ai, exTwitter is now 25th in active users… right after the Samsung Clock.

But… even more notably, Elon Musk may have accidentally revealed how much exTwitter usage had dropped himself — mainly by hoping that people won’t notice how he changed the metrics being used. You see, at the same time that Elon was talking about potentially putting exTwitter behind a paywall, he also claimed that he site now has 550 million users who generate “100 million to 200 million posts per day.”

During the livestream, Musk also divulged some new metrics from X, saying it now has 550 million “monthly users,” who generate 100 million to 200 million posts per day.

Some people took that to mean that his running of exTwitter was a success, since when he took it over, the ex-Twitter (as opposed to exTwitter) management were reporting 237.8 million users. But, that’s wrong. The two things are being measured very differently, and when you break it down, Musk seems to be admitting a pretty big drop in exTwitter usage.

The 237.8 million was “mDAU” or monetizable daily active users and the first two words there are important in how Musk’s number and old Twitter’s numbers are different. As we explained (and which Musk never seemed to understand), mDAU was actually a much more conservative estimate on users, because it excluded anyone they could not monetize (meaning bots, some foreign countries, etc.). The whole point of mDAU was to be more accurate in telling advertisers how large the potential audience reach is.

Second, Twitter’s number is daily active users. Musk’s number was monthly active users. DAU/MAU ratios are actually a useful tool in determining just how sticky an app is (basically it’s looking at what percentage of your monthly users visit every day). Years ago, Sequoia Capital noted that the “industry standard” for DAU/MAU is between 10% and 20% with it being very rare for a company to be over 50%. Andrew Chen from Andreessen Horowitz has shared similar numbers, noting that if you’re DAU/MAU is 20% that’s good. And “World Class” is 50%.

Of course, this differs based on the type of app, and exTwitter is more likely to be an app that people come back to use more regularly than something like Uber or whatever. So, it seems at least somewhat likely that its DAU/MAU is somewhere closer to 50% than 20% (giving exTwitter the benefit of the doubt here!). The last stats that I found that determined a DAU/MAU for Twitter came in 2020 from The Audience Project, which put Twitter’s DAU/MAU at about 52%.

But, remember, mDAU is significantly lower than just DAU, as mDAU excludes bots and other unmonetizable accounts (remember, Musk’s big complaint was that mDAU OVER counted bots, which is why it’s hilarious that the numbers he’s now trotting out don’t even try to exclude bots). So if we assume that mDAU is 80% of DAU (which is well below Musk’s own estimate of 33% bots!), that would mean that the DAU would basically be 300 million, and if we have a 50% DAU/MAU that would put the MAU pre-Musk at around 600 million.

And now he’s bragging about… 550 million (which isn’t even in any official report, so who knows how accurate it is, given his propensity to exaggerate).

That suggests a noticeable decline in users.

Even if the mDAU/DAU ratio is closer, the MAU was at a minimum somewhere close to the 550 million he’s now claiming.

Supporting this even further, the good folks at DataReportal do phenomenal work tracking data on social media platforms, and they’ve been tracking the market that exTwitter’s own internal tools tell advertisers regarding potential market reach. And they found… something weird.

When they looked in January, Twitter’s AdManager said that there were 556 million user accounts that could be reached via ads. In April… it said 177.2 million! DataReportal knew that was too steep a drop, and reached out to Twitter, only to see that number disappear from the AdManager tool. exTwitter re-enabled the tool later in April, again with MUCH LOWER figures on accounts: 373 million. DataReportal charted all of this, and it’s… eye opening:

They note that there are many possible explanations for this change, including problems with the data, human error, and other things as well. The report goes on to conclude that traffic appears to be “slipping” but not in freefall. This would be consistent with my back of the envelope calculation above that exTwitter at 550 million monthly users is likely somewhat below the pre-Elon high of around 600 million.

But… we’re not done yet. Because the other data point Musk revealed: “100 million to 200 million posts per day” also tells us something.

That is… below what Twitter used to have. Way below. A study in 2019, that had tracked tweets per day from 2012 through 2019 showed that in 2019 tweets per day were between 320 and 340 million per day. Or… somewhere around twice what Musk is claiming today.

If Musk is accurate in saying that there are between 100 and 200 million “posts” per day (he no longer calls them tweets), that would mean not only are users dropping by some amount, and download dropping by a noticeable amount, but the number of posts per day has fallen off a cliff.

None of this speaks well to exTwitter’s chances at survival. Beyond the advertising revenue, which the company already admits is down by 50%, downloads are dropping, users appear to be dropping, and the usage by the remaining users may be significantly down as well, based on Musk’s own statements.

No wonder he seems increasingly desperate.

Filed Under: dau, elon musk, linda yaccarino, mdau, twitter traffic
Companies: twitter, x

Daily Deal: Adam Elements Mag 3 Magnetic 3-in-1 Foldable Travel Charging Station

Deals

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

Charge more devices while saving space with Adam Element’s Mag 3 Magnetic 3-in-1 Foldable Travel Charging Station. This charging station replenishes your iPhone, Apple Watch, and AirPods in one shot. The foldable design minimizes the size for storage and traveling, while the included USB-C charging cable supports up to 15W of power. Charging both vertically and horizontally, the Mag 3 offers secure magnetic connections and precise alignment for effortless messaging and video viewing while your iPhone is energized wirelessly. It’s on sale for $75.97.

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

CBP Tells Senator Ron Wyden It Will Stop Buying Location Data From Third Parties

Privacy

from the definitely-the-most-trustworthy-of-pinkie-swears dept

In 2018, the Supreme Court handed down the Carpenter decision. That decision built on the one declaring phones off limits without a warrant — one delivered four years earlier. The rationale was this: phones are always on, all-knowing, and everywhere all the time.

Given the amount of data generated by everyday smartphone use, the Supreme Court (in these two decisions) decided to expand Fourth Amendment coverage not only to phones, but to the location data they generated continuously in order to provide service to phone owners.

The Carpenter decision said obtaining long-term location data from cell service providers now required a warrant. These records were no longer mere “third party” records. Instead, they were records capable of allowing the government to track a person’s whereabouts (and infer things about those locations). As such, probable cause was needed to obtain these records — ones now removed from the blanket coverage of the Third Party Doctrine.

Faced with this new reality, the government began searching for warrantless alternatives. Brokers hoovering data from unaware phone users (via installed apps that may or may not have warned them location data would be gathered) became the new source for third party records. In fact, this collection of data was one third party removed from the original third party: the app collecting the data.

Given this distance, the government assumed it was constitutional to do the same thing the Carpenter decision prohibited, since it wasn’t gathering location data directly from cell service providers. And by “government,” I mean pretty much all of it. The feds got on top of it, spending tax dollars to provide the DEA, ICE, CBP, Defense Department, and many other federal agencies with location data harvested from phone app users.

Once this new collection became public knowledge, other components of the federal government — namely, certain legislators actually interested in protecting Americans’ rights — got involved. Senator Ron Wyden led the charge to end this warrantless collection of location data determined by the highest court in the land to be protected by the Fourth Amendment (albeit within narrow confines).

Congressional investigations were opened into this new breed of data merchants. That did little to deter federal agencies from purchasing data from brokers currently under investigation. Legislators applied more pressure. But these actions had little result… at least, up until now.

As Joseph Cox reports for the recently-formed 404 Media, the CBP has, at least for the time being, assured Senator Wyden it will no longer purchase location data from opportunistic brokers.

Customs and Border Protection (CBP) has told Sen. Ron Wyden that it plans to stop using commercially sourced smartphone location data at the end of this month, Wyden’s office told 404 Media.

This is good news. But there are caveats, the first of which is the timing. Apparently, the CBP is willing to collect it all until the end of this month, which seems a bit opportunistic for someone promising to kick the data broker habit cold turkey.

Then there’s this, which suggests the CBP has found another source for this data — one that has not, as of yet, been made public.

CBP told 404 Media it determined the agency does not have a current need to buy more access to such data. 

No “current need” to “buy more access.” Hmm. I wonder what that means in plain English. It could be that it’s found another source for this data. Or it could mean it’s currently in possession of so much data, it doesn’t feel the need to add more to its current collection. Or it could mean the data harvested by data brokers is less useful than alternatives that may actually require warrants.

The latter might be the most likely explanation, at least according to statements obtained by Cox and 404 Media. Sure, it’s easy to gather location data in bulk from brokers, but the data collected from (likely intermittent) app use is going to be incomplete. And, in cases, where suspects are already difficult to identify, the data may only serve to obscure the intended target, rather than help law enforcement hone in on its prey.

Agencies have not necessarily been successful at tracking individual targets with such data. Senator Wyden’s office previously found that the criminal investigation unit of the IRS tried and failed to track criminal suspects in a year-long Venntel contract.

Of course, the government isn’t adverse to throwing good money at bad intel. That’s how so many government contractors remain lucrative. But when results matter, paying for access to inconsistent data may frustrate federal agents enough they’re willing to give up heavily criticized collection methods and actually act a bit more constitutional when performing investigations.

Whatever the case, it’s probably best federal agencies begin weaning themselves off this particular data teat. A lot of federal agencies are already considered flagrant rights violators. And not just because they routinely violate rights. A Republican cabal with considerable power is seeking to punish the so-called “deep state” by limiting surveillance powers. While the CBP and its foreigner-ousting directives may align with these Republicans’ interests, the overall distrust of federal surveillance efforts might see warrantless collections like these curbed in the future.

And that means Senator Wyden may have unlikely allies willing to push through his legislation that would mandate warrants for collecting location data from sources not specifically covered by the Carpenter decision. Sometimes the best bedfellows Americans can have are the strange ones.

Filed Under: cbp, data, data brokers, dhs, privacy, ron wyden

Netflix Settles Dispute With South Korean ISP That Demanded Extra Money Just Because ‘Squid Game’ Was Popular

Broadband

from the please-pay-me-extra-for-absolutely-no-reason dept

A few years ago we noted how a South Korean ISP named SK Broadband had sued Netflix, demanding that the streaming giant pay it more money simply because the hit series Squid Game was so popular. It was one small part of a global push by broadband providers to force streaming companies to pay them extra money for no coherent reason.

After several years of fighting, Netflix and SK Broadband have quietly settled their dispute, with Netflix promising to utilize some ambiguous SK AI products in exchange for both sides dropping their lawsuits:

“SK Broadband and parent SK Telecom announced in a joint statement with Netflix that they had agreed on a partnership to release joint products and seek ways to use artificial intelligence (AI) products being developed by SK.”

While the two sides have settled, these sort of feuds are only really heating up.

Big ISPs from AT&T to SK Broadband have tried to argue that because streaming services are driving more network usage, streaming providers somehow owe broadband ISPs even more money. But it’s a ridiculous premise; both Netflix and its customers already pay significant sums for bandwidth (especially here in the U.S. where monopolies abound, competition is muted, and prices are artificially inflated).

ISPs design their networks for maximum potential peak load. It’s completely irrelevant how popular some content traveling over your network is. Your job as a telecom operator is to design networks that easily flex to handle a surge in capacity, regardless of traffic type, because you’re already being paid handsomely by companies and consumers alike (and usually subsidized by government in some fashion).

If you’re an ISP whose network can’t handle the short-lived network traffic boost that comes from a popular TV program, it’s because you’re not designing your network and investing in capacity properly. It’s not suddenly the content company’s job to pay you more money to fix a problem you created through cutting corners or under-investment. Especially in the heavily subsidized U.S.

The problem: regulators and politicians in countries like South Korea have spent too much time listening to greedy ISPs, and constructed a regulatory paradigm that normalizes the quest by broadband providers to get more money for doing absolutely nothing. A similar lobbying effort by telecoms has seen some traction in Europe, and has also long been a dream of telecom lobbyists here in the U.S.

If the telecom industry’s EU gambit succeeds (they’ve proposed forcing companies like Netflix to pay a troll toll directly to big telecoms), it’s going to reheat the net neutrality war here in the States in a major way.

Such efforts have always been little more than monopolies abusing their power to bully and extort others; but monopolies have had good luck convincing corrupt regulators to pretend this is all very serious, above board policymaking altruistically aimed at shoring up broadband access. It almost always involves some claim that companies like Netflix get a “free ride” on the internet (they don’t because nobody does).

It’s all greedy bullshit dressed up as serious policy. The details shift slightly over the years, but the quest is always the same: fool regulators into letting telecoms offload ordinary network upgrade costs onto somebody else. It was greedy bullshit when AT&T demanded that Google pay it huge sums of additional money in 2005 for “riding its pipes,” and it’s still bullshit now.

Filed Under: broadband, high speed internet, korea, net neutrality, squid games, streaming, telecom
Companies: netflix, sk broadband

Leaker Of Those FTC Microsoft Documents Revealed: It Was Microsoft Doing An Oopsie

Say That Again

from the whoops dept

As many of you are probably already aware, a massive leak of internal documents at Microsoft occurred this week, all of which came out of the FTC’s challenge to Microsoft’s purchase of Activision Blizzard. We discussed a small portion of that leak a few days ago when we talked about Microsoft’s decision to take the next Elder Scrolls game exclusive to Microsoft platforms. But there was a great deal more that was leaked in the trove of documents that were included, both from internal company documents and emails. The reveals from those documents include:

• A potential new Xbox controller
• Microsoft apparently not thinking Baldur’s Gate 3 was any good, calling it a “Second-run Stadia PC RPG”
• Xbox chief Phil Spencer blaming management and workers for studio closures
• Plans for the next Xbox slated for 2028
• Phil Spencer’s apparent desire and plans to buy Nintendo
• Information about forthcoming new games
• A disc-less version of the current Xbox

Spencer himself addressed the leaks, both externally and internally to staff, which of course also leaked out.

Spencer hints that Microsoft’s plans may have changed, particularly as some documents were from last year, but others were from years prior. “I know this is disappointing, even if many of the documents are well over a year old and our plans have evolved,” says Spencer in his internal memo.

In a similar briefer statement shared on X (formerly Twitter), Spencer says: “We’ve seen the conversation around old emails and documents. It is hard to see our team’s work shared in this way because so much has changed and there’s so much to be excited about right now, and in the future. We will share the real plans when we are ready.”

Left out of all that was a very clear statement as to who the known “leaker” was: Microsoft. And that’s really point one I want to address in Spencer’s statement. The passive language being used here doesn’t make it clear that Microsoft is the one that FUBAR’d this. But that is indeed what happened. It wasn’t someone at the FTC. It wasn’t someone in the court. It was Microsoft doing an oopsie.

“The FTC was not responsible for uploading Microsoft’s plans for its games and consoles to the court website,” tweeted Douglas Farrar, director of its Office of Public Affairs. He later shared a new court order released by the judge in the case, Jacqueline Scott Corley. It called for both the FTC and Microsoft to meet again to go over the issues with exhibits, and placed the blame squarely on the latter for the latest leak.

“The Court ordered the parties to meet and confer and provide the Court with a secure cloud link to the admitted exhibits with the redactions set forth in the Court’s orders,” she wrote. “Microsoft provided the link on September 14 and the Court uploaded the exhibits to [the] internet page established for this case.”

There you have it. But there’s another thing I’d like to point out when it comes to Spencer’s statements, specifically where he laments how the public is going through these documents and reaching what he is calling the wrong conclusions, either because they’re misinterpreting the content of the leaked documents, or because those documents are outdated.

Well, the problem with that lament is that Phil Spencer has routinely said one thing publicly and then gone ahead and done another. He told us Xbox exclusives weren’t the future, but that’s all there seems to be these days at Microsoft. Microsoft acquisitions weren’t supposed to result in fewer people being able to play games from those series in fewer places, except that’s exactly what happened.

And yet here we are, with Spencer himself complaining that the public is reaching the wrong conclusions having read internal documents and emails, some of which were from Spencer himself. But where else is the public supposed to go to get real insight and information as to what Microsoft is going to do?

Certainly not Spencer himself, which is my point. If he wanted to be able to tell the public, “Hold up, that information is old and wrong, wait until I tell you what the plans are.”, well, then he shouldn’t have been so misleading all this time.

Filed Under: ftc, leak, phil spencer, xbox
Companies: activision blizzard, microsoft

Countries Eye Weight Tax To Counter Public Safety Threat Of Extremely Heavy, Large EVs

(Mis)Uses of Technology

from the once-again-doing-absolutely-nothing-to-prepare-for-this-obvious-problem dept

The United States is already a global leader in traffic-related fatalities, with a thirty-percent jump in the last decade. That’s in contrast to every other developed country, which saw a decline.

So of course it’s a perfect time to flood American highways with a parade of extremely heavy EVs with unprecedented acceleration. Some of which are extremely pointy and feature half-cooked automation technology with a growing body count.

The electric Ford Lightning, for example, is a whopping 6,500 pounds. The Hummer EV is even heavier, clocking in at 9,000 pounds. Its battery alone weighs more than a Honda Civic. Experts have pointed out the significant safety ramifications of this transition for a while, but it’s still not clear that we’ve prepared the regulatory and policy landscape for such a transition.

Even if you don’t want a giant, extremely heavy EV, the tendency to purchase such vehicles creates an arm race for everyone interested in protecting their family on the road. That in turn causes a shift away from smaller EVs in a bid to feed the elemental materials needed for ever larger EV batteries.

That very quickly starts to deflate many of the benefits of EVs as a safer, more environmentally friendly alternatives. Hoping to counter that shift, some countries have increasingly been pushing for a weight tax on EV vehicles:

“Norway, a pioneer in EV use, is considering a weight-based tax to steer buyers away from the fattest EVs (the Norwegian government recently eliminated EV purchase incentives). France already has one on SUVs. Buyers of new diesel and gasoline vehicles must pay a tax of €10 ($14.58) a kilo (2.2 pounds) above 1.8 tons. The weight threshold is to be reduced. EVs are exempt, but as those vehicles become heavier and more popular, it seems they will get swept into the weight-based tax net.”

A smattering of localities have tried to prepare for the threat. DC, for example, has imposed a creative vehicle registration fee schedule that has heavy EV truck and SUV owners paying higher registration fees than lighter EV sedans. But it’s an outlier.

Federally we’re doing… nothing to try and counterbalance the potential safety threat. There are occasionally calls to impose a weight tax on EVs, but they’ve gone nowhere out of fears they’ll stifle industry growth, innovation, or our love for accountability-optional freedom. Instead we’ve just generally offered a catch all $7,500 federal tax credit for all EV purchases, provided they’re less than 14,000 pounds.

Much like Tesla’s half-baked and severely misrepresented self-driving technologies, it seems pretty clear we’re going to let the corpses pile up first, then maybe figure out policy solutions down the road a decade after the fact. Surely that will work out great for everybody involved. Especially cyclists and pedestrians already traversing overtly hostile transit design on the daily.

Filed Under: cars, ev, safety, traffic fatalities, trucks, weight tax

It Feels Like The Only Reason ExTwitter Still Has A Trust And Safety Team Is So Elon Can Lay Them Off

Content Moderation

from the yeah,-sure,-that'll-bring-back-the-advertisers dept

Almost everyone I’ve seen talking about this new Insider article about how Elon had a special layoff just of trust and safety employees has shared it with the line “wait, there are still trust & safety employees?”

Elon Musk recently laid off more Twitter employees working on the platform’s trust and safety efforts, roles typically crucial to keeping a social media platform safe for advertisers.

The cuts happened the first week of September, according to two people familiar with the company, one of the first targeted layoffs since he shrunk operations earlier this year. While this layoff only affected a handful of people, five to 10, it was focused entirely on workers in trust and safety.

The article goes on to note that the trust and safety team, which no longer appears to have someone officially running the team (since Ella Irwin quit), has now gone from what had been about 230 people to somewhere around 20:

Now, the team is a fraction of its original size, according to the people familiar. One of the people said there are currently about 20 full-time employees on the trust and safety team, some of whom were contract workers who were promoted over the summer to full-time roles at the company, not long after Linda Yaccarino joined as Twitter’s CEO. The employees mainly engage in content moderation, the person familiar added, while a few members of the team work in legal or policy.

The article further notes that there used to be trust and safety roles working across the entire company, in product, legal, and policy, to ensure that the company didn’t view trust and safety as an afterthought, but rather was a core element of the business.

Now, it is most clearly an afterthought.

It’s unclear what prompted the latest layoff. Since the early layoffs late last year and early this year, Elon insisted that the layoffs were over. Linda Yaccarino has claimed that the company was hiring (though apparently she just meant a bunch of TV execs with no internet experience).

Meanwhile, all this is happening at a time when Musk is claiming that it’s the Anti-Defamation League that is causing advertisers to leave the site, not the fact that the site is a mess and it’s literally damaging the brands that continue to advertise there.

Of course, it’s not difficult to see how this is playing out. Elon has long made it clear that he thinks everything can be handled by AI, so that trust and safety becomes an engineering role now, where the only people working on any of this are simply trying to improve the AI. But all of the evidence so far suggests it’s not working very well, like pretty much all of Elon’s hunches about how to run a social media site.

Filed Under: brand safety, content moderation, elon musk, trust and safety
Companies: twitter, x