Court Shoots Down Cop’s Attempt To Instruct Jury That He’s Innocent Just Because He Wasn’t The FIRST Violator Of Rights

Legal Issues

from the facts-don't-care-about-your-desire-not-to-be-sued dept

Are you familiar with “felony murder?” Let’s talk about it. It’s a handy way to send more people to prison for more years just because they participated in a crime that contained a murder. While I can (sort of) understand the deterrent effect of laws like these, the simple fact is felony murder laws hold all crime participants liable for a murder if anyone involved in the initial criminal act kills somebody during the commission of the crime.

It’s “bystander liability,” but for criminals. Any crime is everyone’s crime, even if your only real participation in the crime was sitting in the car or acting as a lookout or assisting in the criminal conspiracy. “Don’t do the crime if you can’t do the time,” as the adage goes. But this law expects people to do the time for crimes they didn’t actually commit.

Then there’s bystander liability. If someone witnesses a criminal act, it might be proved that they had an obligation to prevent it from happening or, at the very least, to not participate in the actual criminal act.

Somehow, cops feel felony murder and bystander liability are legal concepts that should never apply to their acts. (They do, though.) That’s how we arrive at the point a cop being sued for constitutional violations attempted to instruct the jury it would be impossible to find him guilty of anything.

Here’s what happened following the court’s rejection of Officer Maze’s proposed jury instructions, courtesy of the Associated Press:

A federal court jury in Oxford on Thursday ruled that Southaven officers Zachary Durden and Samuel Maze had not violated the civil rights of Ismael Lopez when Durden shot him to death in 2017. The verdict came after a four-day trial in a lawsuit by Claudia Linares, the widow of Lopez, who sought $20 million in compensation.

“The verdict was that the jurors did not believe that the use of force used by Officers Durden and Maze was excessive in light of all the facts that they considered,” attorney Murray Wells told WREG-TV.

Those facts are borne out by the docket, which shows the jury found both officers not guilty of rights violations. And maybe that’s the correct decision. At least it was considered by a jury, rather than short-circuited by generous applications of qualified immunity.

This is what led to this lawsuit. Officers arrived at the home of Ismael Lopez and Claudia Linares late one night in 2017. The officers were serving a domestic violence warrant but had the wrong address. They knocked on the door without identifying themselves (wtaf?!). The door opened and a dog ran out. Officer Maze shot the dog and then (less than a couple of seconds later, according to Maze’s testimony), Officer Durden fired multiple shots at Ismael Lopez, who was still inside the home.

Lopez was struck in the back of the skull and died. This incident was initially given this description by the employer of these two officers, the Southaven (KY) police department:

The report says Durden shot Lopez, and Maze shot the family’s dog. Durden has since resigned.

The nine-page report says Lopez died from a gunshot wound to the back of his head. District Attorney John Champion has said Lopez refused commands to put a rifle down.

A third officer at the scene “corroborated” this official narrative, claiming Lopez had ignored several shouted instructions to “drop” the rifle. No recording of this incident survives. (Most likely, no recording was ever created.) Odds are, this narrative was generated after the fact as cover for the inexplicable killing of Lopez.

Lawyers for Lopez, who died before he could be taken to a hospital, have disputed that he pointed the gun at officers. They noted his fingerprints and DNA were not found on the rifle, which was recovered more than six feet away from his body. They suggested that Durden shot Lopez because the officer was reacting to Maze shooting the dog.

This suggestion is supported by the findings of shooting investigation, in which it was noted Lopez was found lying dead in the prone position, handcuffed, and several feet away from the rifle laying on the couch.

Lopez’s widow sued the two officers. The cops’ lawyers argued (among other things) that Lopez had no constitutional rights because he was not a legal resident of the United States.

Fortunately, all of this went before a jury, despite the government’s best efforts to prevent this from going to trial. Officer Samuel Maze, however, felt the only way he could survive a jury’s judgment was to instruct it that it could not possibly find him liable in this case.

According to Maze, he could not be found liable for his contribution to this tragedy because he didn’t actually shoot Lopez himself. His proposed jury instructions misstated the law, misinforming juries that an officer can’t be sued for excessive force if he did not actually engage in a “seizure” of the victim of the excessive force.

Wrong, says the judge. The order [PDF] rewriting the jury instructions (and rejecting Maze’s motion for reconsideration) spells out — in detail — how wrong the officer’s proposed jury instructions are.

Under Maze’s understanding of the law, in a situation where multiple officers are pointing their weapons at an armed suspect in a standoff, any of the officers is entirely free to be the first to fire his weapon, so long as he takes care to miss the suspect. An officer is even free to do so with malicious intent, hoping that his shot will cause his fellow officers to follow suit and kill the suspect. He may, under defendant’s understanding of the law, do so completely secure in the knowledge that any legal liability resulting from the shooting will be faced by others, and not himself. Under defendant’s theory of the law, the fact that the malicious officer took care not to strike, or “seize,” the suspect is the beginning, middle and end of the Fourth Amendment analysis, and a court may look no further. This court regards this as an unconscionable result and it will not accept that the law requires such a result…

The court goes on to criticize Officer Maze’s “myopic” view of Fourth Amendment law — one that ignores Fifth Circuit precedent. According to Maze’s proposed jury instructions, “bystander liability” simply ceases to exist. The court points out it definitely does exist. Not only that, this legal doctrine is supported by years of Fifth Circuit Fourth Amendment rulings.

While not all of it may be exactly on point, accepting Officer Maze’s interpretation of the law would be, as the court says, ridiculous.

This court believes that the fact that both Gates and the bystander liability case law provide for liability of each officer in this context is not some extraordinary leap of logic applicable only to supervisors or bystanders, but, rather, a common-sensical application of joint causation principles which is applicable whenever two officers commit two objectively unreasonable acts or omissions which combine to cause a seizure in violation of the Fourth Amendment. Under these circumstances, what possible rationale would permit dismissal of one of the officers, who — again — committed an objectively unreasonable act which was a proximate cause of a Fourth Amendment violation, simply because another officer was the only one to physically seize the suspect? None that makes any sense to this court.

The court rejects the officer’s proposed jury instructions, adding to it instructions of its own. Those instructions note Officer Maze did not fire the fatal shot that killed Lopez, but instructs the jury to consider whether Maze’s (missed) shot at the dog was itself an unreasonable use of force and whether his possibly unreasonable shot may have prompted Officer Durden to open fire (the next set of possibly unreasonable actions). Basically, the court is saying these events were not separate. They did not occur in a vacuum. And it won’t allow Officer Maze to instruct the jury to pretend they did.

In the end (as noted above), the officers were cleared of wrongdoing. And that makes the sign-off by this court a bit more bittersweet.

The above approach makes complete sense to this court, and it believes that refusing to apply this common-sensical approach to joint causation issues simply because Maze is neither a supervisor or a bystander would be an absurd result. Of course, the “clearly established” prong is known for producing absurd results, at it at least seems possible this case will eventually be mounted above its fireplace as another example of that fact. But this court will not be the one to put it there.

All too true. The court knows it. The sentence about the “clearly established prong” producing “absurd results” has a footnote appended that quotes from Fifth Circuit Appeals Court Judge Don Willett’s scathing take on qualified immunity, specifically this paragraph of his blistering dissent in a case involving a warrantless search of private medical records:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

At least this court isn’t willing to join the long list of participants in the HOUSE ALWAYS WIN scheme the Fifth Circuit presides over while often directly encouraging this sort of absurdity. Sure, the cops walk on this one, but at least one court did what it could to prevent them from obtaining an entirely unearned win.

Filed Under: bystander liability, claudia linares, crime, felony murder, ismael lopez, oxford, samuel maze, zachary durden

Co-Sponsor Of Unconstitutional AADC Law Completely Misrepresents Court’s Ruling, Showing His Lack Of Attention To Detail

Say That Again

from the running-your-mouth dept

Last week, we wrote about a federal district judge in California, Beth Labson Freeman, tossing out California’s Age Appropriate Design Code (AB 2273) as unconstitutional under the 1st Amendment. The ruling was careful and thorough, which did not surprise me, having sat through the oral arguments on the matter, where it seemed that the judge was asking all the right questions.

I fully expect California Attorney General Rob Bonta to appeal this ruling, but the state and legislators who supported the bill have been mostly quiet on the matter. However, late in the week, the Republican co-sponsor of the bill, Jordan Cunningham (who has since left the California Assembly), who introduced the bill with Democrat Buffy Wicks, gave some quotes to a newspaper that show he didn’t even read the decision, while insisting that he thinks it’ll win on appeal. He believes the appeal is strong mainly because he says the Court applied the strictest level of scrutiny (the highest bar):

When asked about the injunction, Cunningham told the Washington Examiner that he felt “profound disappointment” but believes the decision to be “quite vulnerable to appeal.” He said that the decision “overreached and applied the strictest level of scrutiny possible.

“We spent hundreds of hours of work on this bill shaping it, getting it through the legislature,” he said. “I mean, it passed the state assembly for 74 to zero.”

Cunningham said that the injunction blocks the AADC under the legal standard of First Amendment-related “strict scrutiny.” The standard requires the government to prove that the law is the “least restrictive means” to advance a “compelling” government interest related to speech. But the AADC doesn’t affect speech, Cunningham argued.

This is interesting for many reasons, not least of which is that the District Court did not apply strict scrutiny. Which anyone who read the case would know, because the judge literally said:

the Court will assume for the purposes of the present motion that only the lesser standard of intermediate scrutiny for commercial speech applies because, as shown below, the outcome of the analysis here is not affected by the Act’s evaluation under the lower standard of commercial speech scrutiny.

Literally, the key part of the ruling was that the court chose not to even figure out if intermediate or strict scrutiny should apply, because if the law couldn’t even pass intermediate scrutiny (and it could not!) it didn’t even matter whether or not strict scrutiny applied.

I don’t know about you, but I think if you’re the guy who co-sponsored the unconstitutional bill that just got thrown out as unconstitutional, and a reporter asks you about it, it would sorta make sense to (1) read the ruling, and (2) not make stuff about it. But, I guess that’s why I’m not in the California Assembly. I prefer to actually read the homework.

Either way, it’s bizarre and blatantly obviously wrong, but honestly par for the course for Cunningham to say that the bill was only found unconstitutional because the court used “the strictest level of scrutiny possible.”

Of course, it’s this level of attention to detail that got us into this mess in the first place. Even though plenty of people explained the constitutional infirmities in the law to many legislators, including directly to Cunningham himself, they all brushed it off and ignored the concerns, sure of their own correctness.

Cunningham is no longer in the Assembly, and this sort of mistake really doesn’t matter, but it really does show the extreme arrogance, combined with ignorance, that has the California legislature constantly doing this sort of thing. They just put their fingers in their ears and pretend that reality is whatever they want it to be.

Filed Under: 1st amendment, aadc, ab 2273, intermediate scrutiny, jordan cunningham, strict scrutiny

After Passing Online Safety Bill, UK Government Gets Back To Harassing Meta About Its End-To-End Encryption

Overhype

from the yeah-well-we-still-want-the-thing-we-always-wanted dept

Last week, it appeared ever so briefly, the UK government might be finally giving up on its desires to legislate at least one end of messaging services’ end-to-end encryption. Having faced resistance from nearly every encrypted service (all of which threatened to exit the UK if anti-encryption mandates were put in place) as well as internal reports strongly suggesting undermining encryption would be a truly terrible idea, it seemed those pushing the Online Safety Bill were finally willing to accept the uncomfortable fact that breaking encryption only results in broken encryption. What it doesn’t do is end the online harms the UK government felt this bill addressed.

But the concession wasn’t much of a concession. Nothing changed in the wording of the bill. All that really happened is a couple of proponents suggested the UK government wouldn’t pull the trigger on encryption-breaking demands immediately. This concession was surrounded by statements suggesting government officials truly thought the only thing standing between it and “safely” broken encryption was recalcitrant techies working for services like WhatsApp and Signal.

Parkinson said that Ofcom, the tech regulator, would only require companies to scan their networks when a technology was developed that was capable of doing so.

[…]

“As has always been the case, as a last resort, on a case-by-case basis and only when stringent privacy safeguards have been met, [the legislation] will enable Ofcom to direct companies to either use, or make best efforts to develop or source, technology to identify and remove illegal child sexual abuse content — which we know can be developed,” the government said.

The Online Safety Bill has now been passed by the UK Parliament. And, as Glyn Moody recently pointed out, all the anti-encryption language remains intact.

[UK] Technology Secretary Michelle Donelan insisted that nothing had changed in the long-awaited legislation, after privacy campaigners earlier this month claimed a victory following widespread reports of a shift in the Government stance on encryption.

Now that the bill has passed with the anti-encryption mandates still intact, it looks like the UK government is going back to leaning hard on uncooperative tech companies in hopes of pressuring them into abandoning encryption plans prior to the implementation of the new law. Facebook has long been the target of criticism from governments around the world that seem to feel they’re entitled to demand Meta not protect its Facebook Messenger service with end-to-end encryption.

Years of ignored requests are culminating in a last-minute push by UK legislators, as Natasha Lomas reports for TechCrunch:

In an interview on BBC Radio 4’s Today Program this morning, [Home Secretary] Suella Braverman claimed the vast majority of online child sexual abuse activity that U.K. law enforcement is currently able to detect is taking place on Facebook Messenger and Instagram. She then hit out at Meta’s proposal to expand its use of E2EE “without safety measures” to the two services — arguing the move would “disable and prohibit law enforcement agencies from accessing this criminal activity [i.e. CSAM]”.

Saying that one of the most popular messaging services is responsible for the most CSAM reports doesn’t really say anything more than the service has a lot of users. It doesn’t mean Meta somehow cares less about limiting the sharing of CSAM than other, less popular services. And I have no idea what “safety measures” Braverman thinks can be attached to E2EE services without, you know, removing at least an E or two.

Braverman doesn’t know or doesn’t care. Or both. Her further comments indicate she’d prefer Meta just maintained its less-than-secure status quo, sacrificing users’ privacy and security in favor of government gains.

First, there’s the stick:

Asked by the BBC what the government would do if Meta goes ahead with its E2EE rollout without the additional measures she wants, Braverman confirmed Ofcom has powers to fine Meta up to 10% of its global annual turnover if it fails to comply with the Online Safety Bill.

Then there’s the carrot — Bravermen says she wants to “work constructively” with Meta to create some sort of magical form of encryption Meta can break at will without compromising user security.

Then there’s the insanity:

“My job is fundamentally to protect children not paedophiles, and I want to work with Meta so that they roll out the technology that enables that objective to be realised. That protects children but also protects their commercial interests,” she said. “We know that technology exists…” 

Really? Where is it? Can you point to any examples of this encryption that remains secure despite deliberately introduced flaws? Have you tried it out? Have you performed a security audit on it? SHOW ME ON THE PUBLICLY RELEASED GOVERNMENT REPORT WHERE THIS TECHNOLOGY ALREADY EXISTS.

While it’s true tech exists to detect hashes that match known CSAM, no tech exists to perform hash-matching on E2EE communication services. The only way to do this is to perform scanning on one side of the communication. And to do that, you have to remove the encryption from one end. Some have suggested this is a solution to the problem. But the only tech company that considered moving forward with voluntary client-side scanning abandoned that plan shortly after hearing from everyone (anti-encryption legislators excepted, of course) what a bad idea that would be.

So, in a sense, the tech does exist. But it’s not something anyone truly concerned about safety, security, or privacy would consider to be a real solution to the CSAM problem. But that’s what the UK government wants: insecure services that allow it to take a look at anyone’s communications. And that should never be considered an acceptable outcome.

Filed Under: encryption, end to end encryption, ofcom, online safety bill, suella braverman, uk
Companies: facebook, meta

With Basically Zero Press Coverage At All, California Assembly Passes Its Own Version Of FOSTA

Policy

from the fucking-hell dept

It is quite incredible to me how, over the last five years or so, the California legislature has pushed over a dozen absolutely horrific, dangerous (and often unconstitutional) laws to completely undermine the very principles of an open internet… and it gets basically no attention at all.

Last year, it felt like we at Techdirt were the only news site covering a slate of absolutely horrific bills. And, of the two that got through, AB 2273 (the “age appropriate design code”) and AB 587 (the social media “transparency” bill) are both facing constitutional challenges, with 2273 already being declared obviously unconstitutional under the 1st Amendment.

The California legislature could have saved itself a lot of nonsense and trouble if it had just listened to us last year when we highlighted the problems with both bills.

I’m not sure the media anywhere covered either of those bills in detail, whereas on Techdirt, we had many, many, many articles highlighting all of the problems with both bills.

This year, we’ve been covering even more bills, including SB 680 (on “social media addiction,” which is just a rewrite of a different bill from last year that didn’t pass) and AB 1394, which can be described as a kind of mini-California FOSTA, in which there is a private right of action, allowing anyone to sue social media companies for any child sexual abuse material (CSAM) that shows up on their platforms. Thankfully, SB 680 didn’t move forward. But 1394 did.

As we explained a few weeks ago, this bill gets everything exactly backwards, and will make the problems of CSAM on websites inevitably worse. I won’t go through all of the arguments all over again, but I’ll just highlight the most egregious: the law puts liability on websites for “knowingly” aiding and abetting CSAM on their platforms. The 1st Amendment requires that knowingly standard, but what you’ve now done is create very strong incentives for websites to stop fighting CSAM. Because if they’re fighting it, they are admitting they know that it happens, and that puts them in liability because of this stupid, stupid bill.

It’s a dangerous bill. We’ve already seen how a similar system works in FOSTA around “sex trafficking,” which resulted in the shutting down of all sorts of vital resources for sex workers. And now, with 1394, you can expect that all sorts of vital assets to help the victims of CSAM are about to shut down as well.

So, of course, California passed the bill, and Gavin Newsom is expected to sign it any day now. Great job California: you just made it harder to fight CSAM. I hope Newsom and bill sponsors Buffy Wicks and Heath Flora are proud of this disastrous bill.

And, yet, this bill got basically no media attention at all. We wrote our article about it. John Perrino, from the Stanford Internet Observatory, wrote an article at Tech Policy Press noting that “nobody seems to be talking about” this bill, which could have huge ramifications for the internet.

We’re just one tiny media site on the internet with basically no budget. Contrary to the claims of some rather annoyingly wrong people, we’re not funded by “big tech” and we’re not “big tech lobbyists.” Indeed, I’d prefer that we returned to a world of highly competitive, decentralized “little” or even “personal” tech over “big tech” any day. But these kinds of bills are going to make that impossible.

The media critique of these bills shouldn’t fall on our overworked shoulders. And yet it does. And that makes me feel like we failed with this one. We wrote the one article about it and it seems like it wasn’t nearly enough to raise the alarm before this bill got passed. Gavin Newsom could still veto it, but everyone tells me that he’s eager to sign it, just like he was eager to sign the Age Appropriate Design Code that just got declared unconstitutional.

And that’s because when it got declared unconstitutional there’s no one in the media in Sacramento to go back to Newsom and ask him: “Hey, why did you sign that obviously unconstitutional bill that Techdirt called out as unconstitutional?” Instead, everyone forgets that Newsom not only eagerly signed the bill, but literally begged NetChoice not to sue over the bill, even though a judge has properly called out the myriad problems with the bill.

When we let politicians like Buffy Wicks and Gavin Newsom keep passing and signing unconstitutional problematic bills, and never go back and ask them why they did so — especially when the problems of those bills were not just clear, but clearly highlighted by some of us — we simply encourage more of the same nonsense, and a quicker demise to the open web.

And that only works to “big tech’s” advantage. Google and Meta have buildings full of lawyers. They really don’t care about these bills. They can handle them. These laws create larger problems for everyone else instead, and leave Google and Meta in control over the the internet, rather than letting us take back our own internet.

Filed Under: ab 1394, abetting, aiding, buffy wicks, california, csam, fosta, gavin newsom

Daily Deal: The Big Data And Analytics Master Toolkit

Deals

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

Most modern companies put a lot of stock into data when making crucial business decisions. As such, they require employees who understand how to work with mass amounts of data, and effectively analyze it to get a holistic view of the company. These skills aren’t just reserved for analysts, they’re valuable for professionals in any capacity. As such, the Big Data and Analytics Master Toolkit presents some of the major data analytics tools in use today: SPSS, Minitab, SAS, and R Studio. With over 201 hours of content, you’ll be ready to use any of those tools to help in your work. It’s on sale for $40.

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

Can Google Be Held Liable For Man Who Died Following Google Maps Over A Collapsed Bridge?

Legal Issues

from the tragic-story dept

There’s a pretty well known scene from The Office, when Michael Scott (played by Steve Carrell) follows his GPS device’s instructions (incorrectly, obviously) and drives into a lake:

The writer of that scene says the inspiration was a number of stories of people doing exactly that. In fact, in the earlier days of Techdirt, we wrote about a number of such stories. And not just once. But many times. Many, many times. Many, many, many times. When it happened on The Office, it was funny. In some of the links here, when no one got hurt, it was also kind of funny. But… when someone ends up dying because of it, it’s not funny at all.

Tragically, though, it happened again last year, where Philip Paxson followed his GPS to a bridge that had collapsed a decade ago and was effectively non-existent, and had not been repaired. And now Paxson’s wife is suing. The story is making headlines because beyond suing the private property owners who own the property where the bridge had been, they’re suing Google, because Google Maps recommended Philip drive over the bridge.

The horrifying bit, to me, is the simple fact that there were allegedly no barriers or other warning signs telling people that the bridge was out (and had been for years). I could see that simple fact (if accurate), leading to serious problems for the property owners (the bridge was over private property, and apparently it was not the local government’s responsibility).

The Google part… however… seems like a long shot, legally speaking. The complaint is designed to tug at your heart strings, and everything about the situation seems unfortunate and tragic. But can Google be held liable? That’s a tougher argument to make, though the lawyers here try valiantly to do so.

Normally, though, all liability falls on the driver to be aware of their own surroundings and the road ahead of them. While the complaint, repeatedly, notes that he drove down this road late at night, when there was no external lighting and it was “pitch black” out, his car must have had headlights, which can be pretty bright. And if he was paying attention to the road in front of him, it seems like he should have noticed that a large section of the bridge was missing.

That said, the part that makes this slightly trickier, is that the complaint has clear evidence that Google was informed of the broken bridge, as a nearby resident had alerted the company to the issue using Google Maps’ “Suggest an Edit” feature, and the complaint shows an acknowledgement from Google to that resident that it had received her “suggested edit” (nearly two years before the accident.)

The complaint also shows another “suggested edit” after the accident, telling Google that someone had died there while following Google Maps. As the complaint notes, when the lawyers checked again in April of this year (nearly half a year after the accident), Google Maps still listed the non-existent bridge as drivable.

Yikes?

That’s pretty bad, no matter how you look at it, but I’m still not sure that it’s so bad that Google will be found liable. Google Maps tries to map the entire world, and it likely receives a very large number of edit requests on a regular basis, and not all of them are legit. Indeed, people have written about how sneaky competitors might use “suggest an edit” to harm a business. Which means that Google can’t just rely on the submitted data as accurate, and will likely often have to send someone out to check on these things. It seems likely that not everything gets checked, and the backlog may take a while. Also, the first “notification” in the complaint came in the midst of the COVID pandemic lockdowns, which makes me wonder if Google Maps checkers were less able to check on these things as well at the time.

On top of that, another photo in the complaint itself shows the bridge in daylight, which seems to suggest that while there may not have been barriers blocking the bridge, there did appear to be trees growing across the road. From the images in the complaint, the car ended up against the far wall in the image below. And you can see what appear to be trees, or very large weeds of some kind growing there, which he would have had to drive through to reach the hole if he was driving from that side. If, instead, he was somehow driving from the foreground side, the fact that his car ended up wedged against that far wall, might also suggest he was going quite fast for such a road.

Still, every bit of this story is tragic and unfortunate. The bridge should have been blocked off and clearly marked as non-existent. Google should have been better about responding to user requests to update the map to avoid showing that as a legitimate road.

But… it’s unclear to me that this raises to the level of negligence required for the case to succeed against Google.

Filed Under: bridge, google maps, gps, liability, philip paxson
Companies: google

Activists Say California Is Backtracking On Plan For Statewide Affordable Broadband

Broadband

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

While the California legislature often screws up tech policy, they’ve generally been pretty good on broadband. At least in relation to most U.S. states. California was among the first in the country to pass a net neutrality law after the telecom industry got Trumpists to dismantle federal rules.

The state also unveiled a major broadband plan a few years ago that, among other things, aims to spend $3.5 billion to create a massive, open access “middle mile” fiber network in a bid to boost competition. It’s part of a broader quest to make broadband both more affordable and more competitive (see our Copia report from last year discussing the potential impact of open access fiber).

The open access network is designed to dramatically drive down market entry costs for all ISPs in the state, but it was generally a broadside against incumbent regional monopolies like AT&T. AT&T, unsurprisingly, first worked to undermine the bill during crafting, and has whined about it ever since.

Facing a budget deficit as well as “inflation and rising construction costs,” state leaders announced earlier this year they’d be making some notable cuts to the program. As usual, the folks most impacted by the cuts wound up being low income, minority, and otherwise marginalized populations, who’ve already routinely found themselves “redlined” by giant telecom monopolies disinterested in upgrading them.

But folks in impacted neighborhoods like East Oakland and South Central Los Angeles were quick to express their annoyance at the cuts. And with the help of tech activism orgs like the EFF, have managed to get Governor Newsom to reverse course:

“Inflation and rising construction costs still constrain the state’s allotted $3.87 billion for these expansions, said Liana Bailey-Crimmins, director of the California Department of Technology. However the state is still determined to universalize broadband service in California.”

Activists I’ve spoken to aren’t sure that the state will follow through and fully restore funding to these already neglected areas. Many, like Patrick Messac, director for #OaklandUndivided, an internet advocacy nonprofit, noted that the decision to prioritize cuts to long-marginalized neighborhoods speaks to a deeper problem in both policymaking and data collection:

“I’m still concerned that the state isn’t doing anything to address the underlying issue, which is the discriminatory” data that the state used to identify which regions to scale back from, Messac said.

And the promised funding, which Messac said he is still not sure will come, leaves him unsettled.

“So many promises have been broken to Black and brown communities” — the communities Messac said would be disproportionately harmed by the state’s prior decision to scale back on broadband expansions — “that it makes it difficult to celebrate this moment.”

The FCC is engaged in a proceeding that’s supposed to take aim at the way big telecom monopolies intentionally screw over poor and minority neighborhoods, but like so much the generally feckless FCC does, it’s wholly unclear if the inquiry will result in meaningful action.

What California originally promised — investment in a core open access fiber network in a bid to drive competition to market and reduce costs — is precisely the sort of thing federal telecom regulators refuse to do. For decades the FCC has played a form of regulatory theater wherein they talk a lot about the “digital divide,” while proposing superficial fixes for the symptoms of monopoly power, but generally lack the backbone to assault monopoly power straight on.

New York City had considered something similar — a major open access fiber network that all competitors could compete over — but the Adams administration effectively gutted that project in the middle of project planning after repeated complaints by Comcast and Verizon.

Fixing expensive, spotty, and sluggish U.S. broadband access requires a frontal assault on monopoly power. But so far only a few states (like Washington and California) have genuinely had the backbone to even think about trying. A growing parade of long-frustrated towns, from Chattanooga to Palo Alto, have even decided to build their own community-owned networks.

Federal policymakers have repeatedly had the opportunity to assault monopoly power by cracking down on monopoly fraud, supporting open access fiber networks, and embracing community broadband.

But instead of doing that, federal regulators have generally just thrown billions in subsidies at the very same monopolies directly responsible for patchy, expensive U.S. broadband in the first place. That lack of leadership has driven a few states, like California, to take aim at the problem themselves.

But for every California, there are at least a dozen states whose broadband policy approach genuinely involves simply doing whatever AT&T and Comcast wants. And even in California, unsurprisingly, keeping incumbent telecom monopolies from undermining the occasional quest to do the right thing on affordable broadband access is a full time job.

Filed Under: broadband, california, digital divide, fcc, high speed internet, redlining

Funniest/Most Insightful Comments Of The Week At Techdirt

Techdirt

from the so-sayeth dept

We’ve got one commenter taking both top spots on the insightful side this week, but also… not really. Because in what I believe is a first, our top winner on the insightful side is Samuel Abram commenting on the previous comments post to celebrate a comment from last week, by Stephen T. Stone, that didn’t quite make the list (and it’s a very good comment). Got that? Here it is:

I want to give a shoutout to my favorite insightful comment of the week, which is this one by Stephen T. Stone:

Trans people are being denied gender affirming healthcare in multiple states thanks to specifically targeted laws, whereas cis people (including teenagers!) can get gender affirming treatments such as breast enhancements without any real trouble. Trans people are being targeted by laws that try to force them out of the public sphere by way of determining what public restrooms they have to use⁠—something cis people will never have to worry about. Trans people are being murdered, harassed into suicide, blamed for crimes against children that they didn’t commit, and generally treated like subhuman filth by conservative jackoffs only because trans people are transgender.

You may not think that’s persecution because trans people aren’t being systematically rounded up into concentration camps or murdered in the streets by a military police group. But that’s the thing about persecution: It never starts with death camps⁠—but on a long enough timeline, it sure as hell ends there. The only way to stop that from happening is to stop the persecution. To do that, you must first admit the persecution is real.

First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

The point of that bit of prose: Those who would have defended you against persecution will already be gone thanks in part to you and your indifference towards their persecution. Before you know it, the leopards you thought would never eat your face are making you their next meal. And no one will stop them because the people who might’ve saved you already learned their lesson from your indifference: They’re not you, so they don’t need to speak out when the leopards (fascists) come for your face (your life).

Transgender people are being persecuted regardless of your position on the matter. Will you be courageous and raise your voice against that persecution, or will you be a coward and stay silent as the persecuted suffer and die?

I really felt it was a powerful defense against the genocide that is happening in the US right now against Trans people.

In second place on the insightful side, it’s one of Samuel’s own comments, on our post about Elon Musk talking about paywalling ExTwitter:

To Koby, Matthew M Bennett, and all of the Elon Stanboys…

To every Elon defender here, I say this:

You think X/Twitter is doing so great, eh? Pay up. Put your money where your mouth is.

For editor’s choice on the insightful side, we start out with a comment from Somewhat Less Anonymous Coward in reaction to ExTwitter’s dwindling trust and safety team:

20 trust and safety people for purported 350m active users? I don’t even have a witty comment on that one, this is just staggering.

Next, it’s an anonymous comment about the Biden Administration seeking a deal where it oversees content moderation on TikTok:

Still with the “concerns” about privacy/security somehow leading to control of moderation. How the hell does this work?

The TikTok thing, while being a bunch of xenophobic security theatre, is also a bunch of bafflegab to get a foot in the door. “Well, TikTok is controlled by the government, so shouldn’t all the things be controlled by the government?”

Over on the funny side, our first place winner is an anonymous comment about Musk’s abject failure to eliminate bots leading to the idea of a paywall:

So his solution to kill the bots is to make the product far worse than the bots ever did.

[insert Obi-Wan meme here]

“It was said that you would destroy the bots, not join them!”

In second place, it’s another anonymous comment from that post:

“Twitter Blue failed, so now EVERYONE has to use Twitter Blue! By making it cheaper for everyone!”

I… I’m gonna need to actually develop a drinking habit to handle Elon’s stupidity.

For editor’s choice on the funny side, we’ll start out with Bobson Dugnutt and one more comment about the proposed paywall:

What’s worse than a Nazi bar? A Nazi bar with a cover charge.

And finally, it’s an anonymous comment that could easily go on the insightful side too, regarding the sorry state of the Supreme Court:

There aren’t any justices anymore. Just Justifiers.

That’s all for this week, folks!

This Week In Techdirt History: September 17th – 23rd

Techdirt

from the such-as-it-was dept

Five Years Ago

This week in 2018, Ajit Pai was whining about California’s net neutrality effort, while a court ordered the FCC to hand over data on bogus public comments about net neutrality, and Congress failed to invite a single consumer advocate to its upcoming hearings about broadband privacy rules. A Swedish ISP gave us a look at just how bad copyright trolling was getting in the country, and the Music Modernization Act in the US was getting ready to bring old sound recordings into the public domain. This was also the week that Elon Musk’s “pedo tweet” got him into a defamation lawsuit.

Ten Years Ago

This week in 2013, there were some criticisms over what the New York Times considered newsworthy in the NSA leaks, while the fallout continued with the Brazilian president snubbing Obama, and all the agency rank-and-file were still tossing out the same talking points. The FISA court revealed its “secret interpretation” of the Patriot Act, in which it pretended that every member of Congress had been given details about bulk surveillance, and we wondered why the interpretation was secret in the first place. Meanwhile, a judge decided the Prenda buck would stop with Steele and Hansmeier, and Charles Carreon finally gave up his ill-fated legal quest.

Fifteen Years Ago

This week in 2008, we wondered why the police sometimes call the RIAA to investigate crimes, and why NASA was auctioning off patents the public paid for. The RIAA, for its part, was going after one of its harshest critics and legal opponents, while Apple sparked controversy by banning a podcast app from the App Store for competing with iTunes, leading to mounting backlash. A big law firm was abusing trademark law to block the reporting of public info, NBC was bragging about how it made it harder for people to watch the Olympics, and in a convergence of IP nonsense, a company was trying to patent pre-settlement letters for copyright infringement. Also, this was the week that Bandcamp launched.

Filed Under: history, look back