Canada’s Online News Act (C-18) Has Been An Unmitigated Disaster; Why Does California Still Want To Move Forward With Its Version?

Journalism

from the who-could-possibly-think-this-is-still-a-good-idea? dept

We’ve written a bunch of stuff about the obvious to anyone who understands the internet problems of Canada’s C-18, now dubbed the Online News Act. The fundamental premise behind it is to break the open internet, as an obviously corrupt forced wealth transfer from one disfavored industry to an industry that helps get politicians elected. Everything about this concept is bad, as we recently discussed with Paul Matzko, who reviewed the history of these types of laws and how they’ve done serious damage to journalism.

To date, Canada’s Online News Act has been a total clusterfuck. Meta has made the reasonable business decision to no longer allow news to be posted to its websites, which has not reduced Meta’s traffic one bit, but has harmed Canadian news sites. As the Canadian news site FreezeNet recently noted, the officials who supported C-18 and insisted that everyone was lying when they pointed out these problems have now, themselves, taken to flat out lying about the law and its impact, falsely claiming that the bill has nothing to do with linking (even as officials have admitted that you only have to pay the tax if the companies allow links). They also seem to be living in a fantasy land, as pointed out by law professor Michael Geist (also a guest on our podcast about this bill):

That’s Geist noting:

Heritage Minister Pascale St-Onge tells US media conference Bill C-18 is a “win-win” solution. Urges other countries to stand with Canada. As Canadians know, the reality is it has been lose-lose-lose for users, media outlets, and the platforms. Now a model for what not to do.

Ridiculously, politicians in the US still want to move forward with their versions of this disaster. Just last week, there was a very silly conference in DC entirely about pushing these corrupt, open internet-breaking, crony corporate welfare bills. Canadian Heritage Minister Pascale St-Onge was there, along with Amy Klobuchar, who is pushing a similarly disastrous bill in the US Senate, and California Assembly member Buffy Wicks talking up how her bill (which has been pushed back to next year) will help “level the playing field” for journalists (what does that even mean?).

However, today, the Chamber of Progress, a trade group for internet companies, sent a letter to Wicks, highlighting how (contrary to her claims about bills like this helping journalists), the Online News Act in Canada has been a total and complete disaster for everyone, including journalists.

The letter is chock full of quotes from Canadians highlighting just how bad the law is for Canada, first highlighting how, if they help journalism companies at all, they massively distort the market to just the largest news providers, and screw over the smaller ones:

“This whole experience has me shaken. The reality is I made a huge mistake launching an innovative media business *in Canada*. There was massive government risk I didn’t take seriously ”- Chris Dinn, Founder and Publisher of Torontoverse (News Startup)

“Unfortunately, Bill C-18 misunderstands that crisis, misdiagnosing why news advertising revenue has collapsed, and who is at fault for it. As a result, Bill C-18 ‘fixes’ the problem through a convoluted system that makes news producers increasingly dependent on and subservient to both online platforms and government, threatening their critical role in holding these powerful bodies accountable.” – Openmedia, a community-driven organization that works to keep the Internet open, affordable, and surveillance free

It also quotes others highlighting how badly C-18/Online News Act is harming journalism companies, including the CEO of Village Media, noting that the bill is going to take away 15% of its traffic for no reason at all, and with no real benefit. And plenty of others as well:

“Let’s get something straight. Canadian news organizations did not and does not unanimously support Bill C-18. Digital-only news publications like Narcity Media Group, Village Media, and ZoomerMedia Limited wanted nothing to do with this.” – Chuck LaPointe, CEO, Narcity Media

“The act known as Bill C-18 is based on the assumed truth of the unproven allegation that Big Tech companies help themselves to the content produced by news organizations and refuse to share the profits they accrue from that larceny. Always wobbly, that cornerstone assumption has turned out to be pure fantasy.” – Peter Menzies, past vice-chair of the Canadian Radio and Television Commission (CRTC) and is a Senior Fellow at the Macdonald-Laurier Institute

There are many more quotes in the letter as well, including from Sue Gardner at Privacy International, who used to be executive director at Wikimedia Foundation, and head of the CBC’s website (i.e., she understands both the internet and journalism):

Bill C-18—which is really no more than a shakedown of the platforms in order to prop up the dying business models of legacy incumbents—just isn’t good enough. It’s lazy and it’s not in the public interest. Canada deserves better.

There are many, many more quotes from all sorts of experts in that letter, which one hopes that Wicks will actually take seriously. As the letter itself explains, the basic fundamental purpose of a tax is to get less of whatever it is that you are taxing, so it’s bizarre that Wicks would push a bill whose result will be less journalism:

As you know well, typically taxes are reserved for behaviors that policymakers are attempting to discourage, such as alcohol, tobacco, or even sugary beverages. For instance, California’s taxes on sodas have been shown by the Public Health Institute to unequivocally reduce soda consumption.

Similarly, taxing news links – as CJPA does – will undoubtedly lead platforms to shut off news links, as they have in Canada. Journalism at its core is about informing people and broadening the reach of objective truth. Taxing shared links is not only antithetical to this principle, but it discourages the exchange of valuable information.

If passed, CJPA will likely have the same impact in California as Canada’s law has had: Harm to both Californians and small news publishers. Large media organizations who can build their own direct connection to consumers may be fine, but small news publishers will undoubtedly be harmed.

Will Wicks listen to the experts this time? We’ll see. Last year we warned her directly that her AADC bill had serious 1st Amendment problems, and she dismissed our concerns. And yet a court just concluded that her bill infringes on 1st Amendment rights, just as we predicted.

So, maybe, instead of dismissing anyone who criticizes her bills, Wicks should take the time to actually speak to experts who can highlight all the ways that her bill will harm Californians and especially California news organizations like my own?

Filed Under: buffy wicks, c-18, california, canada, cjpa, journalism, link tax, media, online news act, pascale st-onge

Europol Tells EU Commission: Hey, When It Comes To CSAM, Just Let Us Do Whatever We Want

Privacy

from the think-ONLY-of-the-children-pls dept

When it comes to the children, Wu-Tang Europol is for the children.

According to a recent report by Balkan Insight, Europol (Interpol but without the across-the-pond component), the only thing that should matter is the kids. Europeans’ rights and privacy should be sidelined — possibly forever! — until European law enforcement can put a dent in CSAM sharing.

The European police agency, Europol, has requested unfiltered access to data that would be harvested under a controversial EU proposal to scan online content for child sexual abuse images and for the AI technology behind it to be applied to other crimes too, according to minutes of a high-level meeting in mid-2022.

The meeting, involving Europol Executive Director Catherine de Bolle and the European Commission’s Director-General for Migration and Home Affairs, Monique Pariat, took place in July last year, weeks after the Commission unveiled a proposed regulation that would require digital chat providers to scan client content for child sexual abuse material, or CSAM.

[…]

In the meeting, the minutes of which were obtained under a Freedom of Information request, Europol requested unlimited access to the data produced from the detection and scanning of communications, and that no boundaries be set on how this data is used.

To be fair (and there’s really no reason to be), the pitch appeared back when the EU government seemed a lot more certain it would be able to impose client-side scanning on service providers. This imposition would basically make encryption irrelevant if not actually criminal. To engage in scanning of users’ data and content, end-to-end encrypted services would need to remove at least one end of the encryption. Once that’s removed, anyone (not just the Europol cops) could conceivably eavesdrop on online conversations.

Most of those plans have been discarded, thanks to strong opposition from activist groups and, surprisingly, a large number of EU member nations. On top of that, EU government entities tasked with vetting the proposal also found it would violate rights on the regular.

But it’s not just about the kids, although that was Europol’s original leverage point. The “for the children” argument tends to short-circuit opposition, forcing those opposed to outrageous government mandates to “side” with child molesters. It shouldn’t work as well as it does, since it’s been a cliche for decades. But it still works. And it still works often enough that Europol not only demanded access to combat CSAM but to use this same access to search for criminal activity wholly unrelated to the sexual exploitation of children.

“No boundaries” is pretty close to a direct quote from the Europol demand. The law enforcement agency basically asked that it be allowed to access everything for the purposes of possibly detecting other criminal somethings.

“All data is useful and should be passed on to law enforcement, there should be no filtering by the [EU] Centre because even an innocent image might contain information that could at some point be useful to law enforcement,” the minutes state. 

Sure. Why not. Let’s not fuck around. Europol wants a police state supported by always-on surveillance of any and all content uploaded by internet service users. Stasi-on-digital-steroids. Considering there’s any number of EU members that harbor ill will towards certain residents of their country, granting an international coalition of cops unfiltered access to content would swiftly move past the initial CSAM justification to governments seeking out any content they don’t like and punishing those who dared to offend their elected betters.

And because cops will always help out cops, even Europol’s supposed voice of reason decided it was better to scan everything than address (apparently comparatively minor) concerns about violating several European privacy laws.

According to an internal Europol document, the agency’s own Fundamental Rights Officer raised concerns in June 2023 about possible “fundamental rights issues” stemming from “biased results, false positives or false negatives”, but gave the project the green light anyway.

Kind of takes the “fundamental” right out of Fundamental Rights. The officer at least recognized the “fundamental” rights. But they ultimately decided Europol should have what it wants, even if it’s at the expense of the rights of the policed.

Meanwhile, the revolving door spins. A Europol official has exited the public sector to work for Thorn — the AI/facial recognition tech firm last seen as a major FBI supplier in a GAO report that noted the FBI hasn’t bothered to do much training before cutting agents loose to do whatever they want with powerful tools that have a long history of false positives and built-in bias.

According to information available online, Cathal Delaney, a former Europol official who led the agency’s Child Sexual Abuse team at its Cybercrime Centre, and who worked on a CSAM AI pilot project, has begun work the US-based organisation Thorn, which develops AI software to target CSAM.

Delaney moved to Thorn immediately after leaving Europol in January 2022 and is listed in the lobby register of the German federal parliament as an “employee who represents interests directly”. 

So, those lobbying directly as public officials for expanded surveillance powers are completely comfortable with moving on to private sector companies that would directly and immediately benefit from expanded surveillance powers. The US is definitely going to have to step up its game if it wants to continue to be the leader of the free world’s most revolving doors.

For the moment, it appears Europol’s wishes have been denied. But only because the EU government is currently unwilling to completely abdicate its responsibility to the millions of EU residents it serves. Europol is presumably biding its time, waiting for the day when the government finally has the support — or the gall — to tell EU citizens “fuck your rights.” But until that happens, it appears Europol will continue to advocate for widespread surveillance that goes far beyond the “for the children” pitch it used to open this conversation.

Filed Under: csam, europol, law enforcement, privacy, surveillance

Daily Deal: The Ultimate Learn Unreal Game Development Bundle

Deals

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

Learn Unreal, C++, and game development with the Ultimate Learn Unreal Game Development Bundle. This series of highly-rated Unreal Engine courses, created in collaboration with Epic Games, can help! Anyone who wants to learn to create games: Unreal Engine is a fantastic platform that enables you to make AAA-quality games. It’s on sale for $35.

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

What Will Be The Impact Of The AI & Streaming Data Language In The New WGA Contract?

Movie Industry

from the consequences dept

As you’ve likely heard, earlier this week the WGA worked out a tentative agreement with the Alliance of Motion Picture and Television Producers (AMPTP) on a new contract that ended their months-long strike. By all accounts, this looks like a big win for the WGA, which is fantastic and long overdue.

The AMPTP seemed to recognize it had no leg to stand on and seemed to hope that its best strategy was to “wait out” the writers. That doesn’t appear to have worked very well. The new pay rates and guarantees seem like a big win for writers. The WGA negotiating team appears to have done a fantastic job on those fundamental negotiating points, and it’s a clear (well deserved) win for the writers.

Throughout the strike there was a lot of attention paid to the AI demands (perhaps even more attention was paid to that than the underlying economic questions), and I’m not quite sure how I feel about where things came down on that front.

As some have pointed out, in the end, the AI agreement can be read as a near complete capitulation to the writers, as it says that the producers can’t use AI to write a basic script and then hand it off to a human writer at a lower payscale to clean up. However, it does (and this is a really good thing) allow the writers themselves to figure out how to make use of AI for themselves as a productivity tool, which… makes sense. Empower the writers to figure out if it’s a useful tool, rather than thinking that the AI is going to produce anything worthwhile on its own.

One interpretation of all of this is that somewhere in the ~150 day strike, the producers had enough time to play around with AI and realize that it just isn’t able to replace writers like they appeared to hope it would do originally. As we pointed out here, though, AI can be a super useful tool in the writers hands to avoid having to deal with the drudgery part of the job, allowing them to spend more time on the actual creative act of writing. And so the framing of the agreement, at least, where it’s about empowering the writers to use the tools where necessary seems good.

But there was something that bugged me about the language of it, which writer/director/actor (and Techdirt podcast guest) Alex Winter points out in a new Wired piece: while the agreement is framed in a way that seems beneficial to the writers, it requires them to really trust the studios, as there appear to be lots of ways that they might get around what’s in the agreement. And the producers aren’t necessarily the most trustworthy folks out there. As Alex notes, the studios had been experimenting with AI prior to this and he’s not sure if they’ll just drop those initiatives. It might just be that they won’t tell writers what the AI did.

It’s hard to imagine that the studios will tell artists the truth when being asked to dismantle their AI initiatives, and attribution is all but impossible to prove with machine-learning outputs.

The other tidbit that a lot of people are celebrating is the agreement that streaming platforms will now share specific data on “the total number of hours streamed,” which has mostly been a secret. This was another big demand of the writers, mainly as part of their effort to get some sort of residuals setup going for streaming.

But, as a very interesting episode of the Search Engine podcast recently discussed, in the early days of streaming, the fact that streaming platforms didn’t share viewer data was seen as a benefit to many writers/actors/directors. It meant that they weren’t competing over numbers all the time, and weren’t focused on making something that would appeal to the widest possible audience.

That meant that a much wider variety of content was greenlit for some of those platforms, as they (especially Netflix, but also Amazon) wanted to have a really diverse set of creative shows and movies to entice people to pay the monthly subscription fee to see whatever they wanted. In that scenario, the specific numbers for any particular movie or show don’t matter as much, so long as there was enough diverse content available on the platform that it made users feel comfortable coughing up their monthly subscription fee. Indeed, that actually created incentives for more niche, quirky, diverse, wacky, experimental content, with no one ever needing to be concerned with “how is it performing?”

So, there is some reasonable fear that now that they will have to share the viewer data (privately to the WGA, not publicly), that could change. The incentive structure gets messed up a bit. There will be more incentives to create mass market content, and less ability to just create cool, different content that might appeal to a niche audience enough to get people to sign up for the monthly payment.

Now, a (reasonable!) retort to that is that the “we need all this diverse content!” made sense in the early landgrab days, but perhaps makes a lot less sense with the streaming market reaching some sort of saturation level where users are beginning to bail, and Wall St. is demanding more profits and less investment out of these platforms. If we’re already seeing streaming platforms pulling shows off the platforms for the tax breaks, perhaps this move away from supporting the weird and the wacky and the diverse was already going away no matter what.

Overall, though, it’s nice to see the writers get a strong contract that improves the underlying economics in ways that are important to their ability to make a living writing. I’m less sure that the AI language will be that impactful, though, and I’m curious to see how the incentives on the streaming side play out.

The one other bit I’m curious about: I’m kind of wondering if this experience will cause writers/actors/directors to increasingly look to route around the producers. Yes, for big productions they’re still necessary, but as tools for high quality moviemaking become increasingly cheaper and more widely accessible, I’m wondering if we’ll see a rise in more high quality self-produced works (or community produced works) that are then streamed not through the big subscription services, but elsewhere (YouTube, obviously, but it wouldn’t surprise me to see services like a “Substack-for-video” kind of thing pop up at some point).

After all, the producers can’t screw over the actual creative folks… if they’re not involved any more.

Filed Under: ai, data, incentives, movies, production, streaming, writers, writers strike
Companies: amptp, wga

A Volunteer Army Is Deploying Dirt Cheap Broadband In NYC

Wireless

from the do-it-yourself dept

A few years ago during one of our Greenhouse forums, activist Terique Boyce wrote about how an all-volunteer army had been spending their days deploying free broadband to NYC residents. It’s the latest example of frustrated communities building their own infrastructure after decades of being ripped off and underserved by powerful, local broadband monopolies.

NYC Mesh is the brainchild of a bunch of ex-Charter (Spectrum) employees who got unceremoniously shitcanned after participating in what was one of the longest ongoing strikes in U.S. history. They funneled their angst into a sort of guerilla activist project that installs wireless mesh networking antennas and routers on the top of buildings to deliver affordable (sometimes free) broadband.

CNET has done a good profile piece on the project, which charges users a $50 fee for the installation and a pay-what-you-can monthly donation to keep the network operating. DIY’ers can install the service for free. Subscribers are encouraged to share their connections with other locals. The organization says it never disconnects users for non-payment.

These aren’t the kind of next-gen fiber connections you want to run a business off of, but they do provide essential access to marginalized neighborhoods that can’t afford broadband from their regional monopoly (in NYC that’s usually Charter/Spectrum or Verizon):

“NYC Mesh is not an internet service provider, but a grassroots, volunteer-run community network. Its aim is to create an affordable, open and reliable network that’s accessible to all New Yorkers for both daily and emergency internet use. Santana says the group’s members want to help people determine their own digital future and “bring back the internet to what it used to be.”

Around a thousand U.S. communities have built some flavor of community-owned and operated broadband network, whether it’s something like NYC Mesh, fiber deployed by the city-owned utility, a local cooperative, or a direct municipal broadband build. As always, these communities wouldn’t be deploying their own networks if not for market failure at the hands of regional monopolies.

“ISPs are always trying to maximize profits. We are just trying to connect our members for the lowest cost possible,” says Brian Hall, one of the lead volunteers and founders of NYC Mesh. 

Federal policymakers talk a lot about the “digital divide,” yet routinely fail to address the core reason for it: we turned broadband into a luxury good dominated by a handful of extremely political powerful regional monopolies, hellbent on nickel-and-diming customers trapped by a lack of competition. We didn’t block mergers, we didn’t hold them accountable, and we somehow act surprised at the result.

Instead of directly tackling monopoly power (in fact the folks at the FCC under both parties routinely can’t even admit there’s a problem in public facing statements), we enjoy throwing billions in taxpayer subsidies at said monopolies in the hopes that this time, our “bad luck” will finally change.

Meanwhile, a growing list of communities countrywide have grown tired of waiting for competent federal broadband policy, and continue to take matters into their own hands. Often with zero messaging or policy support from federal regulators purportedly dedicated to “bridging the digital divide.”

Filed Under: broadband, high speed internet, mesh networking, nyc, nycmesh, wireless

Funniest/Most Insightful Comments Of The Week At Techdirt

Techdirt

from the so-sayeth dept

This week, our first place winner on the insightful side is That One Guy deploying an overused (and often abused) quote for, in this case, a very apt purpose — responding to right wing denial about Republicans pushing to censor the internet:

Sure all the evidence shows it’s republicans censoring things but…

“The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
― George Orwell, 1984

As for the second place winner, it’s also the first place winner on the funny side. The comment is from Strawb, responding to the federal judge who said drag performances are not protected speech because they aren’t “political” enough:

Ah yes, that all-important, often-overlooked clause of the first amendment: “You have the right to free expression(except if your expression isn’t very political)”.

For editor’s choice on the insightful side, we start out with an anonymous comment responding to the very incorrect notion that non-binary identities are some sort of brand new, artificial invention:

Clearly you have no interest in history… Or other cultures for that matter.

In no particular order:

• The Hijras of India
• The Akkadian Empire (Of particular note is an story about Ishtar being rescued from the underworld by Asu-shu-namir, who is explicitly stated to be non-binary)
• Related to above, the Assyrians (particularly in relation to the cult of Inanna, whom later merged with other deities to become Ishtar)
• The Faʻafafine of Samoa (admittedly contentious debate due to western cultures having quite the culture clash in terms of gender ideology)
• Two-Spirit (umbrella term, used by various native American tribes)

In addition, There is scholarly debate as to whether or not the eunuchs were effectively treated as a third gender… For that matter they also debate (starting with the early Christian Theologian Tertullian) whether or not Jesus was an eunuch.

Next, it’s an anonymous comment about California’s version of FOSTA and the misguided belief that all issues can be solved without collateral damage if the nerds would just nerd harder:

We need a permalink article in the same vein as ‘You’re wrong about Section 230’ perhaps titled: “The Nerd Harder Fallacy.”

These bills and the people that cheerlead them suffer from the misapprehension that spam(bots), misinformation, CSAM, sex trafficking, youth mental illnesses and dysmorphias, etc. are really simple problems to solve, but Big Tech refuses to solve them because ‘profits,’ and so we need strong laws to force them to ‘deal with it.’

This is why court defeats don’t faze them. Court decisions on 1st Amendment grounds or standing issues sound like technicalities, not explanations on why their whole concept is wrong.

Asimov wrote “…an uninformed public tends to confuse scholarship with magicians…”
An XKCD comic was captioned “In C[omputer] S[cience] it can be hard to explain the difference between the easy and the virtually impossible.” Educating and convincing people that these are actually hard problems is going to be difficult, but is the only hope for the open Internet.

Over on the funny side, we’ve already had our first place winner above, so we move on to second place and another comment from That One Guy. It’s also about the judge denying free speech protections to drag shows:

Any day now…

Well I’m sure the usual talking heads always uncomplaining about ‘liberal judges legislating from the bench’ will be swift in their condemnation of this judge as well, I mean this is pretty blatantly a judge applying his own bigotry to suit his desires to squash speech he doesn’t like and to hell with the first amendment so I’m sure they’ll get right on condemning him for such a glaring abuse of power and attack on the first amendment.

For editor’s choice on the funny side, we start out with Nimrod and one more comment on that post:

Dress Codes

Since they’ve made attire such an issue, I submit that all elected officials should be required to wear oversized wingtip shoes, bright colored wigs and red rubber noses so that everyone is completely aware of exactly who and what they are.

Finally, it’s Stephen T. Stone with a response to a commenter fearmongering about overpopulation:

This sounds like something a comic book villain would say before trying to wipe out a significant chunk of human life.

That’s all for this week, folks!

This Week In Techdirt History: September 24th – 30th

Techdirt

from the that-was-then dept

Five Years Ago

This week in 2018, a district court ignored the real issues when it dismissed the EFF’s constitutional challenge to FOSTA, while we looked at how the law was becoming another tool for silencing people you dislike, legislators were pushing for even more draconian laws under the guise of fighting sex trafficking, and the effort had begun to rewrite history and claim FOSTA took down Backpage. The New York Times sued the FCC over its refusal to adequately respond to FOIA requests about fake net neutrality comments, a bunch of people tried to explain the First Amendment to Jeff Sessions, and free speech warrior hypocrite Jordan Peterson was threatening and filing defamation lawsuits over criticism.

Ten Years Ago

This week in 2013, Universal Music tried to use copyright to kill a wacky mashup comic, only to face a strong fair use counternotice and then back down after realizing it was a stupid, stupid crusade. Spain ratcheted up its anti-piracy laws to even more ridiculous levels with criminal penalties for linking to infringing material, while more and more research was showing that copyright law is based on fundamentally incorrect assumptions. The Brazilian president blasted the US over NSA spying in front of world leaders at the UN, while Senator Leahy was slamming them in congress, and Senators Wyden and Udall introduced a bill aimed at comprehensive reform of surveillance programs.

Fifteen Years Ago

This week in 2008, China was blocking all online talk about its contaminated milk disaster, while France managed to make it more or less illegal to mention alcohol brands online. TorrentFreak discovered that a big anti-piracy contractor favored by Hollywood was running some porn websites on the side, while a whose who of entertainment and tech companies were founding yet another anti-piracy lobbying group. We looked at the RIAA’s playbook of making sure it owns any new business models, the European Parliament rejected laws that would kick file sharers off the internet, and the Senate passed the bill that would give the White House a new copyright czar.

Filed Under: history, look back

Court: Apparently Vindictive Detainment And Strip Search Are, Yep, Constitutional Violations

Legal Issues

from the being-an-asshole:-almost-always-a-rights-violation dept

You can be a law enforcement officer without being a complete asshole. I know it rarely seems to be the case, but it’s completely possible to command respect while still treating others with respect. And while assholery tends to go hand-in-hand with enforcing the law far too often, the end result of being vindictive and rude is almost always a handful of violated rights.

And that’s where qualified immunity comes into play. The Supreme Court created this doctrine under the theory that it would protect officers from the unintended consequences of split-second decisions made during tense, fast-moving situations they occasionally find themselves in.

That was the intent. But this immunity has been invoked to shield officers from the consequences of actions provoked neither by immediate danger nor time constraints. Instead, it’s something officers assume is more likely than not to excuse them from lawsuits, even when courts find they’ve violated rights. The officers are free to go, so long as they violated rights in a way that hasn’t been foreclosed by precedent.

Sometimes though, the roll of dice goes the plaintiff’s way. That’s the case here in a decision [PDF] handed down by the Sixth Circuit Court of Appeals.

It all started innocently enough. On June 5, 2014, 67-year-old Christopher Murphy sat in an Elmira, New York bus terminal, waiting for the bus taking him to his medical appointments. He boarded the bus and, shortly thereafter, police officers arrived and took him off the bus. They arrested him on a bench warrant for misdemeanor offenses related to the city’s property maintenance codes.

So far, so innocuous. Misdemeanor offenses. Code enforcement. Bench warrant. All of this should have been settled quickly, quietly, and without a strip search. Instead, officers handcuffed Murphy to a waist chain and sat him down in City Hall to wait to see a judge. The judge arrived and Murphy’s bail was set at $750. Murphy only had $400 on him, so the judge remanded him to the Elmira PD officers until he made bail or until his next hearing, which was nearly two hours later.

He was fingerprinted, photographed, and processed. Five minutes after that, his girlfriend showed up with the bail money. The officers told her Murphy was now in the custody of the Sheriff’s Department and she would need to post bail at the county jail.

Once at the county jail, Murphy was fingerprinted yet again by Glenn Gunderman, a jail employee from the Sheriff’s Department. Here’s what Gunderman told Murphy initially:

As Murphy was being fingerprinted, Gunderman said to him “[y]our bail’s sitting out there and we’re going to cut you loose” or “[w]e’ve got to cut you loose.” Gunderman also said that
Camilli [Murphy’s girlfriend] — who was attempting to post Murphy’s bail and secure his release — was “making a real fuss, making a real commotion” about the delay. Murphy’s impression was that he would be released “immediately.”

That didn’t happen. Instead, lots of other stuff did, most of it at the hands (and I mean that literally) of Admissions Officer William Washburn.

After about an hour, and about an hour before Murphy was due back in court, the Booking and Admissions Officer — defendant-appellee William Washburn — removed him from the cell. Washburn brought Murphy to a small room and conducted a visual body cavity search, requiring Murphy to disrobe, lift his scrotum, and spread his buttocks.Washburn did not touch Murphy during the search, which lasted around ten minutes.

After the search was completed, Washburn escorted Murphy out of the search room. Washburn gestured to other officers with his thumb and forefinger, which Murphy understood as mockingly connoting that he had a small penis. Murphy was then brought back to the holding cell.

On top of this insult, Washburn added more constitutional injury.

At least two or three times, in the presence of other deputies, Gunderman said “[t]his guy’s bail’s out there. We’ve got to cut him loose.”

Washburn responded: “No. We’re not done with him yet. He’s not going anywhere. He’s going to sit in my jail for a while.” Washburn made comments to this effect both before and after the strip search.

Murphy was held for two hours, and for at least an hour after he had made bail. On top of that, there was the strip search, which was neither supported by jail policy or the Constitution itself. Jail policy said strip searches were only justified if there was reasonable suspicion a detainee might be hiding contraband. Murphy was arrested on a bench warrant for city code violations while waiting for a bus, hardly the sort of thing that suggests the (perhaps hidden) presence of contraband.

According to policy, all strip searches were recorded on a “Strip Search Justification Sheet.” But the sheet Washburn presented to the court showed nothing more than “Per Post 1” in the space reserved for “explanation of the grounds or reasons for conducting the search.” The rest of the form was blank.

Washburn’s testimony — which came in the form of a sworn affidavit (he did not actually testify in court) — didn’t clear anything up. Instead, it was vague, recursive, and written in the exonerative tense.

According to Washburn, the notation “per Post 1” on the Justification Sheet meant that some supervisory officer — he did not identify whom — had authorized the search. Washburn contended that the strip search “was necessarily based on reasonable suspicion” because the Policy required it to be; moreover, Washburn averred, neither he nor any other officer “directed to perform the search[] would have had the discretion to disobey the order.” On this basis, Washburn argued, even assuming “for purposes of this motion only” that he had conducted the search, he “would have lacked discretion as to whether or not to perform” it because it “would have occurred solely based upon a direct order from a superior pursuant to Chemung County Jail policy.”

Huh. The search was justified because jail policy required it to be justified. Settle down there, Perry Mason.

Somehow, the lower court was fine with all of this. The Sixth Circuit, however, not so much.

At no point in this litigation have defendants purported to identify a legitimate penological purpose for the strip search. Furthermore, there was evidence that Washburn’s actions were motivated by malice. He mocked Murphy about the size of his penis. And when another officer noted that Murphy’s bail was “out there” and they needed “to cut him loose,” Washburn responded in a manner that could be understood to exhibit malice by saying that Murphy would not be going anywhere and was going to sit in “my” jail “for a while.” On these facts, a reasonable jury could readily conclude that Washburn was acting not to further legitimate penological concerns but purely out of vindictiveness.

On top of that, Washburn just simply isn’t a credible witness.

First, the record is muddled as to whether Washburn was in fact following the directions of a superior officer. Washburn denies conducting the strip search and argues only hypothetically that if he did, he would have been following orders. […] Washburn does not state that any order was actually given, and no evidence has been provided as to the identity of any officer who might have given an order for the search.

Moreover, Washburn’s self-serving testimony that the entry “per Post 1” on the Justification Sheet meant that a superior officer had ordered the search was not necessarily believable. Second, on this record, a reasonable jury could find that Washburn was responsible, in whole or in part, for the decision to strip search Murphy. The Justification Sheet, which was supposed to set forth the reason for the search and identify the officer who authorized it, does not provide any reason for the search, does not reveal who (if anyone) authorized the search, and provides no detail about how the search was authorized other than the cryptic designation “per Post 1.” Doc.

Contrary to Washburn’s assertion that he did not conduct the search, the Justification Sheet identifies him as the “Search Officer.” […] The absence of reasonable suspicion for the search, Washburn’s failure to properly document the search or indicate which superior officer approved it, the crude gesture he made after the search, and his comments about Murphy sitting in “my” jail “for a while” despite bail having been posted are all circumstances from which a reasonable jury could infer that Washburn was acting of his own volition and not pursuant to the orders of a superior.

The same can be said for the two-hour delay, which was largely exacerbated by Washburn’s apparently animus towards Murphy.

Again, construing the record in Murphy’s favor, Gunderman cautioned Washburn two or three times that Murphy’s bail was “out there” and that he had to be released. Yet, Washburn ignored Gunderman and deliberately kept Murphy in “my” jail “for a while.” Moreover, Washburn subjected Murphy to a strip search gratuitously, without reasonable suspicion, in contravention of the Policy. Washburn’s words and his crude gesture suggest that his actions were not merely negligent but, instead, that he was actively hostile.

And that means these are constitutional violations outside the protection of qualified immunity. Even if they might seem small compared to other rights violations we’ve covered, they’re still violations and they never needed to happen. Instead of being able to smugly walk away from the complaints of a person he vindictively humiliated, Washburn will have to return to court to explain himself to a jury.

Filed Under: 4th amendment, 6th circuit, christopher murphy, detention, qualified immunity, strip search, william washburn

Publisher Wants $2,500 To Allow Academics To Post Their Own Manuscript To Their Own Repository

Culture

from the this-is-not-open dept

As a Walled Culture explained back in 2021, open access (OA) to published academic research comes in two main varieties. “Gold” open access papers are freely available to the public because the researchers’ institutions pay “article-processing charges” to a publisher. “Green” OA papers are available because the authors self-archive their work on a personal Web site or institutional repository that is publicly accessible.

The self-archived copies are generally the accepted manuscripts, rather than the final published version, largely because academics foolishly assign copyright to the publishers. This gives the latter the power to refuse to allow members of the public to read published research they have paid for with their taxes, unless they pay again with a subscription to the journal, or on a per article basis.

You might think that is unfair and inconvenient, but easy to circumvent, because the public will be able to download copies of the peer-reviewed manuscripts that the researchers self-archive as green OA. But many publishers have a problem with the idea that people can access for free the papers in any form, and demand that public access to the green OA versions should be embargoed, typically for 12 months. There is no reason for academics to agree to this other than habit and a certain deference on their part. It’s also partly the fault of the funding agencies. The open access expert and campaigner, Peter Suber, explained in 2005 why they are to blame:

Researchers sign funding contracts with the research councils long before they sign copyright transfer agreements with publishers. Funders have a right to dictate terms, such as mandated open access, precisely because they are upstream from publishers. If one condition of the funding contract is that the grantee will deposit the peer-reviewed version of any resulting publication in an open-access repository [immediately], then publishers have no right to intervene.

Accepting embargoes on green OA at all was perhaps the biggest blunder made by the open access movement and their funders. Even today, nearly 20 years after Suber pointed out the folly of letting publishers tell academics what they can do with their own manuscripts, many publishers still demand – and get – embargoes. Against this background, ACS Publications, the publishing wing of the American Chemical Society, has come up with what it calls “Zero-Embargo Green Open Access” (pointed out by Richard Poynder):

A number of funders and institutions require authors to retain the right to post their accepted manuscripts immediately upon acceptance for publication in a journal, sometimes referred to as zero-embargo green open access (OA). More than 90% of ACS authors under these mandates have a simple and funded pathway to publish gold OA in ACS journals.

For those not covered by an institutional read and publish agreement or through other types of funding, ACS offers the option to post their accepted manuscripts with a CC BY license in open access repositories immediately upon acceptance. This option expands this small subset of authors’ choices beyond the existing option to wait 12 months to post at no cost.

Great news? Well, no, because a hefty new fee must be paid:

The article development charge (ADC) is a flat fee of $2,500 USD and is payable once the manuscript is sent for peer review. The ADC covers the cost of ACS’ pre-acceptance publishing services, from initial submission through to the final editorial decision.

That is, if academics publish a paper with the ACS, their institution must pay $2,500 for the privilege of being allowed to post immediately the accepted manuscript version on their own institutional server – something that should have been a matter of course, but was weakly given up in the early days of open access, as Suber pointed out. There is a feeble attempt to justify the cost, on the basis that the $2,500 is for “pre-acceptance publishing service”. But this apparently refers to things like peer review, which is generally conducted by fellow academics for free, and decisions by journal editors, who are often unpaid too. In general, the costs involved in “pre-acceptance publishing” are negligible.

“Zero-Embargo Green Open Access” sounds so promising. But it turns out to be yet another example of the copyright industry’s limitless sense of entitlement. Publishing is constantly finding new ways to extract money from hard-pressed academic institutions – money that could be used for more research or simply paying underfunded researchers better.

This is a personal issue for me. In 2013, I spoke at a conference celebrating the tenth anniversary of the Berlin declaration on open access. More formally, the “Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities” is one of three seminal formulations of the open access idea: the other two are the Bethesda Statement (2003) and the original Budapest Open Access Initiative (2002) (all discussed in Walled Culture the book, free digital versions available). I entitled my speech “Half a Revolution”, and the slides I used can be freely downloaded from SlideShare, along with many more of my presentations.

My Berlin talk concluded with a call to action under the slogan “Zero Embargo Now” (ZEN). Back then, I looked forward to a world where all academic papers would routinely be available under green OA immediately, without any embargo. I’m still waiting.

Follow me @glynmoody on Mastodon. This post originally appeared on Walled Culture.

Filed Under: academic research, embargo, gold open access, green open access, open access, research, zero-embargo green open access
Companies: acs publishing

Let’s Go! Supreme Court Grants Cert To Hear Cases About Social Media Moderation Laws In Florida & Texas

Legal Issues

from the big-case-time dept

This isn’t exactly a surprise. Everyone has expected this pretty much from about the time that Ron DeSantis insisted he had a plan to regulate social media, but it got delayed by a year, because it seemed that the Supreme Court just didn’t want to deal with it yet, and punted by asking the White House to weigh in. And weigh in they did, telling the Court to take the case, but not all of it. And that’s now what the Supreme Court has done, agreeing to hear the NetChoice/CCIA challenges to Florida and Texas’s laws regulating social media moderation.

This means that the Supreme Court is finally going to review whether or not states can force websites to host speech they disagree with. That’s important, because the somewhat obvious answer to this question should be “hell no.” And that should be obvious to people across the political spectrum. Tragically, people across the political spectrum seem eager to use this power to force social media to moderate the way they want.

Unfortunately, the Supreme Court will not be reviewing everything about those laws. They agreed only to grant cert on the first two questions, about moderation restrictions and the requirement to explain every moderation decision, but not the transparency mandate part or the question about viewpoint discrimination. Here’s the list of questions that they were asked to review, and you can see that they’re skipping over the last two.

That’s too bad, because, as we’ve discussed in the past, the transparency parts are actually really important. And leaving those in place will lead to real mischief. Of course, the Supreme Court can only avoid this issue for so long. The decision not to hear the transparency parts seems like another issue that the Supreme Court is just punting on (as it does), that it will have to deal with later.

Indeed, the failure to review that part is setting up a potentially really interesting fight. That’s because there are social media transparency mandate laws in some very different states. Florida and Texas both have them, but there’s also one in New York and one in California (again, highlighting how both sides of the political spectrum view this tool as a weapon to pressure companies to moderate the way they want them to).

So the Supreme Court is currently ignoring the question about transparency mandates, but with Eugene Volokh challenging the NY law and Elon Musk challenging the California law (both of which I think are good lawsuits), it’s setting up a potentially really weird scenario in which you have all of these converging on the Supreme Court together. And while the 5th Circuit has made it clear it has no problem ruling that certain things are okay “if Republicans do it,” it may be a bit more difficult for the Supreme Court to do that in a case that directly highlights the contradiction. Is it possible for the Supreme Court to say that “Mark Zuckerberg must be transparent, but Elon Musk doesn’t have to?” I mean, sure, anything’s possible, but it seems like a pretty big stretch.

Either way, this is going to be a really big and important Supreme Court case regarding the future of internet regulations.

Filed Under: 1st amendment, content moderation, florida, section 230, supreme court, texas, transparency
Companies: ccia, netchoice