Remember that quaint mantra from a few years back, "You can't compete with free!" The misguided idea behind the quip was that if the public could get your product for free, typically in digital form via the internet, then you were sunk. Dunzo. Kaput. The problem with this thinking is that selling a product has always had to be about more than an infinitely reproducable digital file, making any claim that "you can't compete with free" exactly two words too long. And, of course, we've seen so many counterexamples in which people and companies very much compete with free, and in fact make a killing at it, so as to make this theory essentially dead. We recently touted the fact that Nintendo is barely able to keep its Nintendo NES Mini in stock as perhaps the ultimate example of this, given how pretty much every computer and smartphone can get all those same games and functions via emulators.

Well, it looks like others noticed this success Nintendo has had competing with free and have decided that they can do so as well. Sony has decided to jump into the retro console market with its Playstation Classic console, despite that it too has emulators available roughly everywhere.

It’ll be out on December 3 in the US, Canada, Europe, Japan and Australia, and includes games like Final Fantasy VII, Jumping Flash, Ridge Racer Type 4, Tekken 3, and Wild Arms. There’ll be 20 bundled titles in total, but those five are the only ones announced at the moment.

The PlayStation Classic will include two original PS1 controllers and a HDMI cable, and cost US$99.99 (€99.99 in Europe, AUD$150 in Australia).

And guess what? It's going to sell like crazy. And that's because the reason for buying one goes beyond simply wanting to play a Playstation game. Anyone wanting to do that could simply download one of many emulators and game files and have at it. You know, "free." But this console will compete with free the exact same way Nintendo did: by having a small, slick console that reeks of nostalgia and serves as a conversation piece, all while having the available ports and cords for a modern day television on which to play it.

Frankly, that's not exactly a ton of work to do to compete with free. There's no secret sauce. No magic formula. Just make what people want, don't make it laughably expensive, and reap the rewards.

If there's something our nation's courts do well, it's make life as difficult as possible for anyone caught in its gears. The premise of "innocent until proven guilty" has been made a mockery by prosecutors who stack charges until defendants give up and give in. Plea deals end more than 90% of criminal cases before they ever go to trial.

Criminal infractions subject only to tickets and fines become jailable offenses as well, once the courts are finished piling on. A $50 parking ticket can balloon into hundreds or thousands of dollars in fees and the routine issuance of bench warrants assures some who have committed moving violations spend a few hours or days in jail as part of the process.

The New Jersey Judicial Commission recognizes the problem. It's having trouble working towards a solution, but at least it's trying. Much like anywhere else in the country, depriving drivers of their licenses in lieu of collected fees doesn't do anything to help the state collect fines. People with suspended licenses either can't get to work or take a calculated risk to ensure their income flow doesn't come to a halt. With automatic license plate readers flagging drivers with suspended licenses, cops are finding it easier to turn small driving infractions into life-crippling situations.

The Judicial Commission's report [PDF] makes it clear how devastating this can be for drivers unable to pay steadily-increasing fees. (h/t The Newspaper)

In a survey conducted of individuals that had at that time or previously had their license suspended, 42% lost their jobs as a result of the suspension; 45% who lost their job as a result of the suspension could not find another job; and 88% of those that were unable to find another job reported a decrease in income.

Some of this devastation is the fault of the courts, which have not been fully assessing citizens' ability to pay fines in a timely manner. But some of this lands on prosecutors, who punitively ratchet up charges for no discernible reason, as in this example provided by the Commission.

Julie received a speeding ticket for traveling 65 in a 55 mph zone. The ticket was payable, and could be paid online on NJMCdirect.com for a penalty of $95.00. That amount included the fine, court costs, and surcharges. Because a guilty finding results in 2 motor vehicle points being assessed by MVC, Julie appeared for her court date to seek a different result. After discussion with the prosecutor, the charge was amended to unsafe driving, N.J.S.A. 39:4-97.2, a violation that carries no motor vehicle points but a $250 surcharge. Julie’s total penalties went from $95 to $389.

If these fees aren't collected quickly enough, courts often end up yanking people's driving privileges. This swiftly escalates normal tickets into unpayable territory, especially once everything leeching off the court system asks for its cut of the take. This is a "small sample" of fees that may be tacked onto normal misdemeanor citations at the judge's discretion.

$100 assessed on domestic violence offenders to fund grants for domestic violence prevention, training, and assessment, as created by N.J.S.A. 2C:25-29.4;

$250 for the Computer Crime Prevention Fund for disorderly persons/petty disorderly persons violations under Title 2C, Chapter 20, as created by N.J.S.A. 2C:43-3.8; $500 for the Drug Enforcement and Demand Reduction Fund for disorderly persons/petty disorderly persons violations under Title 2C Chapter 35, controlled dangerous substances, or Chapter 36, drug paraphernalia, as created by N.J.S.A. 2C:35- 15;

$50 criminal laboratory fee for each conviction under Title 2C, pursuant to N.J.S.A. 2C:35-20a;

$50 for the Victims of Crime Compensation Office for disorderly persons/petty disorderly persons violations under Title 2C, and certain Title 39 violations, as created by N.J.S.A. 2C:43- 3.1a(2)(a), (c); and

$75 for the Safe Neighborhoods Services Fund for disorderly persons/petty disorderly persons violations under Title 2C, and N.J.S.A. 39:4-50, driving under the influence, as created by N.J.S.A. 2C:43-3.2.

The outcome for the courts and prosecutors is clear: there's money to be made destroying lives. The New Jersey court system made $400 million in profit in 2017 alone. The excess revenue was split between the courts and local governments.

Few within the system want to see this steady flow of excess income interrupted. Some positive changes have been made in some New Jersey courts, providing those with an inability to pay fines with greater leniency and other restitution options. But other courts have seen the process of administering justice devolve into pure graft.

Chief Justice Stuart Rabner issued an April 17, 2018 memorandum to all judges of the Municipal and Superior Courts regarding fines and penalties in Municipal Court. In that memo, Chief Justice Rabner highlighted two recent events that demonstrate the precise conduct this Committee was convened to address. The first was a Municipal Court judge who “diverted fines against defendants in a way that generated more revenue for municipalities and less for the county.” That Municipal Court judge pled guilty to a fourth-degree crime of falsifying records, and is barred from ever holding public office. The second relates to a Municipal Court judge who opened a 2014 court session “by announcing that any fines imposed were due that day, and that any defendants who refused to pay would be sentenced to county jail.” The judge later fined a defendant $239, including court costs, and when that defendant was unable to make a payment, the judge sentenced him to five days in jail and had him arrested.

The Committee has handed down a long list of recommendations to change New Jersey's court system for the better. It includes reminding them that the US Supreme Court has ruled it's unconstitutional to jail people for their inability to pay fines -- something that seems to be ignored with alarming regularity. It recommends doing away with standardized fine collection and provide judges with more leeway to reduce fines and fees as needed when indigent citizens are affected.

It also suggests there be more direct monitoring of other tactics -- like contempt charges and bench warrants -- that seek to impose higher fees on defendants if not depriving them of their freedom on top of their income. Failure to curb these two tactics just sends those already in financial distress into holes they may never be able to escape. At this point, the New Jersey court system has 2.5 million outstanding bench warrants related to traffic tickets and misdemeanors. Continuing to add to this total serves no purpose and shows the system is doing a ridiculously poor job collecting outstanding fees and/or deterring future violations.

Perhaps the best suggestions are the simplest: hit drivers with restricted licenses rather than suspensions and write off old fees/fines where the offense was minor, like parking tickets. This should clear several thousand bench warrants immediately and provide indigent drivers with the ability to continue making a living while paying back court fees and fines.

The government isn't supposed to be a profit-driven entity. But the way most court systems are set up, this becomes almost inevitable. Tech advances like plate readers and traffic cams have greatly increased court systems' cash flow by automating the process of ticketing and locating drivers. The problem is these governments now feel this revenue stream should continue unchecked and uninterrupted, with annual increases generally expected by all who benefit from it. This perverts incentives and turns the justice system into a revenue generator that grinds up and spits out those unlucky enough to find themselves tangled up in it.

For those not familiar with the Star Trek: the Next Generation cannon, in the episode "Hero Worship" the Enterprise receives a distress call from somewhere deep in space, and in responding discovers a heavily-damaged ship with just one survivor. While the Enterprise crew is investigating what happened to the ship, they soon realize that they are being pounded by energy waves, and eventually it dawns on them that these waves could eventually destroy their ship like they apparently did the other. As the Enterprise tries to channel more and more power to its shields to protect itself from the battering, the waves hitting the ship become more and more violent. Until finally – spoiler alert! (although let's be honest: the episode basically telegraphs that this will be the solution) – Commander Data realizes that the waves are reflecting back the energy the Enterprise is expending, and that the solution is to cut the power or else be destroyed by the slapback.

This is a sci fi story illustrating a phenomenon with which we're all familiar. It's that basic principle: to every action there is an equal and opposite reaction. And that's what's happening as people demand more censorship from platforms like Twitter, and then get more outraged when platforms have inevitably censored things they like. Of course increased calls to remove content will inevitably result in increased calls not to. And of course platforms' efforts to comply with all these competing demands will just make the platform more unusable until, like the wrecked ship, it will have torn itself apart to the point that it's hardly recognizable.

As the Enterprise crew learned, solutions don't always require figuring out ways to expend more energy. Sometimes they involve disengaging from a struggle that can never be won and finding new ways to view the problem. And when it comes to platform moderation, that same lesson seems relevant here.

Because just as the challenge facing the Enterprise was not actually to overpower the energy rocking it, that is not really the platforms' challenge either. The essential, and much less pugilistic, challenge they face is to figure out how to successfully facilitate the exchange of staggering amounts of expression between an unprecedented number of people. Content moderation is but one tool, but it's not the only one available, nor is it the best one for achieving that ultimate goal. Platforms shouldn't need to completely control the user experience; instead they need to deliver the control users need to optimize it for themselves. Being fixated only on the former at the expense of the latter is doomed to be no more successful than when the Enterprise was focused on doing nothing but feeding more power to the shields. In the end it wouldn't have saved the ship, because ultimately the solution it needed was something far less antagonistic. And the same is just as true for platforms.

Internet platforms of course are not fictional starships. And unlike fictional starships they can't depend on artificial intelligence to set them on the right path. Theirs is a very human exercise, that first requires understanding the human beings who use their systems and then ensuring that the interfaces of these systems are built in accordance with how those users expect to use them, and need to.

Which itself is a lesson the story teaches. The survivor of that wrecked ship happened to have been a child, who was worried that it was he who had accidentally destroyed his ship when he stumbled during a wave attack and hit a computer console during his fall. The Enterprise crew assured him there was nothing he could have done to hurt anything. The engineers who had designed those consoles understood what their users needed from their interfaces, including the protection the interfaces needed to afford, and the enormous stakes if users didn't get it. And that's what the people building computer systems always need to do, no matter what the century.

Back in the spring of 2013, just a month or so before Ed Snowden started revealing all sorts of surveillance shenanigans, there was another important revelation: the Obama DOJ had gone way overboard in spying on journalists, including grabbing the phone records of some AP reporters (without letting them know) and, even worse, telling a court that a Fox News reporter was a "co-conspirator" with a leaker in order to get his phone and email records.

The Obama administration's war on the press has been well documented on this site, with many in the press highlighting how he was the most secretive -- not to mention the most aggressive in abusing the Espionage Act to target leakers and journalists more times than every other President combined prior to him. Once those two stories above came out, the DOJ initially promised to create new guidelines, though, when those guidelines came out, they seemed pretty limited and left a lot of avenues open for the government to spy on journalists, including using National Security Letters -- the meaningless "letters" the FBI/DOJ often hands out like post-it notes, demanding all sorts of info with zero due process, and frequently with an indefinite gag order.

Back in 2015, we noted that the Freedom of the Press Foundation was suing the DOJ demanding the details of the rules used around those national security letters, given that the DOJ didn't want to release them. Earlier this week, the Freedom of the Press Foundation stated that (thanks to the lawsuit), the DOJ has now revealed its rules for seeking FISA Court orders spying on journalists, which are different than its rules for collecting general information from journalists (and different than the rules for the FBI to use NSLs, which is still secret).

As Trevor Timm, Freedom of the Press's executive director, points out, the rules revealed here are "much less stringent" than the (already not that stringent) rules the DOJ came out with in 2015. Basically, the rules state that if the DOJ wants to get a FISC order on a journalist... it has to get approval from the Attorney General or Deputy Attorney General. That's much less than the regular DOJ guidelines that involve a multi-part test to make sure that surveillance of the journalist is actually critical to the investigation and not simply a shortcut to info (or, worse, a way to harm journalistic sources).

If you can't read that, it just says:

This memorandum directs the National Security Division ("NSD") to implement the following procedures that are designed to ensure that the Attorney General ("AG") or Deputy Attorney General ("DAG") reviews those FISA applications targeting known media entities or known members of the media, so that review of such FISA applications occurs at even higher levels than otherwise permitted by FISA and existing AG orders.

And some may argue that having to escalate such FISA applications to the tippy-top of the DOJ represents some level of oversight, that oversight only goes as far as you can trust the Attorney General. And when's the last time we had an Attorney General anyone actually trusted (I can't ever remember having such an AG...). Indeed, our current AG, Jeff Sessions has publicly stated that he wants to prosecute more journalists and has suggested that he's even less interested in balancing the careful interests and rights of journalists than his predecessors.

And, of course, we still have no idea what rules the FBI uses for its NSLs. However, as Timm points out, it's pretty ridiculous that the FISC rules have now been declassified but the FBI's NSL rules remain secret:

If these rules can now be released to the public, why are the FBI’s very similar rules for targeting journalists with due process-free National Security Letters still considered classified? And is the Justice Department targeting journalists with NSLs and FISA court orders to get around the stricter “media guidelines”?

Jeff Sessions is still quoting a bad study to score points with law enforcement officials. Earlier this year -- while speaking to the National Association of Police Organizations -- he cited a study by two Chicago lawprofs that supposedly drew a connection between violent crime spikes in Chicago and a settlement with the ACLU, reached after years of police misconduct and abuse.

The Attorney General's point was clear: misconduct and abuse are what's keeping criminal activity at bay. Constitutionally-sound police work lets the criminals win. The problem with Sessions' assertions -- and the law profs' conclusions -- is several cities with consent decrees or settlements in place have seen violent crime rates continue to go down, indicating there's really no provable connection between violent crime rates and so-called "limitations" on police activity.

Nevertheless, he persists. Speaking to the VALOR Survive and Thrive Conference, Sessions chose to quote the same faulty study again. (Quick sidebar: VALOR stands for "Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability."Really.) [h/t Ryan Reilly]

More people were murdered in Chicago in 2016 than in New York and Los Angeles combined—even though Chicago has one-fifth of the population of those two cities.

The situation was so bad that nearly a quarter of the nationwide increase in homicide that year happened in Chicago alone.

This did not need to happen. In 2015 and 2016, Chicago had the same police on patrol and the same prosecutors in court, but dramatically different results.

So what happened?

According to a study by two professors from the University of Utah—one of whom is a former federal judge—the consent decree mandated a major change in Chicago’s community-based policing—including Terry stops—that allowed this bloodshed to take place.

The professors found that the increased crime cost a staggering $1.5 billion and noted that 78 percent of its victims were African-American and 16 percent were Latino. Ninety-four percent of the victims were minorities.

What happened is officers refused to do their jobs. Some saw the agreement as a trap. Others just didn't feel like making an effort.

The ACLU consent decree required police officers to submit a detailed report to the ACLU, a former federal judge, and a publicly available database after every single Terry stop.

John’s predecessor as United States Attorney, Zachary Fardon, said in an open letter to the City that the ACLU agreement “[told] cops if you go talk to those kids on the corner, you’re going to have to take 40 minutes to fill out a form, and you’re going to have to give them a receipt with your badge number on it.”

And he noted that as a result, by January 2016, “the city was on fire” because “the rule of law, law enforcement, had been delegitimized.” That is a devastating analysis.

Reporting by the Chicago Sun Times confirms this, stating in January 2016, that Chicago officers say that “they fear getting in trouble for stops later deemed to be illegal and the new [required forms] take too much time to complete.”

Roughly the same thing happened in New York City, but there were no increases in violent crime. Officers were supposed to justify stops and produce documentation. The difference is NYPD officers continued to make stops, rather than abandon their duties. There are still unanswered questions about the legitimacy of some NYPD stops, thanks to missing mandatory paperwork, but the court-ordered overhaul of the department's stop-and-frisk program did not result in the apocalypse promised by the outgoing mayor.

Simply put, Chicago police officers don't want to engage in Constitutional policing -- not if it means spending a bit more time filling out paperwork. The supposed "gotcha" moments will never occur if stops align with the Constitution, the agreement, and include the required paperwork. Abdicating your responsibilities has unpleasant outcomes, especially if you're in the business of law enforcement. A spike in violent crime is one conceivable result. But don't blame the agreement. Blame the officers for their lack of interest in respecting the rights of others.

Sessions goes even further in these remarks, though. He blows past the so-called "ACLU effect" the Chicago law profs claimed to have pinpointed in their study to blame the ACLU (and others) directly for spikes in violent crime.

There's a clear lesson here: if you want more shootings and more death, then listen to the ACLU, Black Lives Matter, or Antifa. If you want public safety, then listen to the police professionals who have been studying this for 35 years.

This is the sort of thing high-ranking officials shouldn't be seriously thinking, much less saying out loud in front of other public officials in law enforcement. This is Sessions saying the ends justify the means and groups seeking accountability from their public servants have the blood of crime victims on their hands just because they want officers to respect the Constitution.

Then he contradicts this assertion by citing falling crime rates in Los Angeles and New York -- both of which have been hit with settlements and consent decrees that altered how officers go about their daily business. Somehow he feels this doesn't undermine his "ACLU effect" comments or his willingness to saddle ACLU and BLM with the end result of police officers refusing to do their jobs.

And if it isn't the ACLU killing citizens, it's everyone who doesn't immediately stand and salute the Thin Blue Line flag.

The proof is in. It can no longer be denied: disrespect and lack of support for police officers has real world consequences.

Leaders must understand and affirm the important and dangerous work of our officers. Failure to support our professionals undermines the pro-active policing that has been shown to save lives.

The proof isn't in. The study he cites decides correlation is causation. The examples he gives about other major US cities undermine the vaunted "ACLU effect" conjured up by Chicago law profs. All Sessions has is some anecdotes and a deep disdain for anyone that isn't a cop or a prosecutor. American citizens are apparently whiny children who wouldn't know good policing if it stopped them on the street, threw them to the ground, and stood on their necks.

Respect is earned. Sessions -- and those echoing his sentiments -- believe it's something certain people are owed. And the more he tries to collect on their behalf, the more likely he is to diminish the respect the American public has for him.

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So many defamation lawsuits that we see are so obviously bogus on their face that often it feels like we should reconsider the rules for defamation in the first place. Over and over again we see defamation lawsuits that are obviously SLAPP suits, in which the powerful seek to silence those who criticize them. This lawsuit is one of the rare cases where it does not appear to be a SLAPP suit at all -- and, Elon Musk almost seemed to force the hand of Vern Unsworth into suing him for defamation. Musk, who is a visionary innovator, but who has been involved in increasingly bizarre behavior of late, kicked a bunch of this off with a tweet back in July calling Vern Unsworth a "pedo guy" after Unsworth criticized his submarine plan.

If you somehow missed all of this, there were 12 children trapped in a cave in Thailand, and Musk got intrigued by the rescue attempts and very quickly worked with his own engineers to design and prototype a small submarine that might be used to help rescue the kids. There were a lot of mixed reports on all of this, from some thanking and appreciating Musk making such an effort (he even flew to Thailand with the sub) to others mocking him for shoving himself into the rescue efforts. Wherever you stand on that debate, it really makes no difference for what came next. While some of those involved in the rescue thanked Musk for trying (even though his sub wasn't needed), Unsworth, who had spent years mapping the caves and was widely credited for both bringing in the more experienced divers and for helping the rescuers find the kids in the first place, was unimpressed by Musk's sub and said so. Specifically, he called it a PR stunt, said it had no chance of working, and said "he can stick his submarine where it hurts."

Musk -- quite understandably -- didn't appreciate those comments. However, his response calling Unsworth a "pedo guy" really seemed to come out of nowhere, followed up by Musk later betting a Twitter follower "a signed dollar" that it was true. However, soon after, Musk semi-apologized saying:

... my words were spoken in anger after Mr. Unsworth said several untruths & suggested I engage in a sexual act with the mini-sub, which had been built as an act of kindness & according to specifications from the dive team leader.

This is still slightly odd, as I don't think anyone thought Unsworth was legitimately suggesting Musk "engage in a sexual act with the mini-sub," but whatever. The issue appeared to be over, but Musk apparently just couldn't let it die. In August, when someone reminded him of his comments, Musk suggested he actually stood by his original comments by implying the lack of a defamation lawsuit suggested the original statements were true:

You don't think it's strange he hasn't sued me? He was offered free legal services.

Ryan Mac, a reporter at Buzzfeed, then wrote about how Unsworth had not only lawyered up (weeks before Musk's tweet) but also sent Musk a letter warning him of the impending lawsuit (again, sent well before Musk's tweet). In response to this Musk engaged in a truly bizarre series of emails with Mac, in which he not only reiterated some of his claims about Unsworth, but went even further, claiming Unsworth had moved to Thailand "for a child bride who was about 12 years old at the time" and also telling Mac to "stop defending child rapists."

Musk didn't supply any evidence to Mac, despite being asked directly if he could back up those claims. Mac's own reporting also failed to turn up evidence to back up those claims, and also debunked the lesser claims by Musk that Unsworth was "banned from the site" of the rescue divers.

And, that takes us to the actual complaint filed against Musk in federal court in California. The complaint is pretty thorough. It lays out the specific statements that it says are false and defamatory and rebuts them. Ken "Popehat" White notes that some of the statements are pretty clearly not defamatory -- as they're either opinion or hyperbole. But the emails to Buzzfeed with the direct statements including claiming Unsworth took a minor bride certainly appear to go over the line. White notes that there are defenses to this -- including a lack of actual malice (i.e., when Musk said those statements he believed them to be true and had no reason to think they were false). That... might actually fly. But, as White also notes, it seems highly unlikely that Musk can get this dismissed under California's anti-SLAPP law, as at least a few of these statements involve direct statements of fact and (at least on their face) don't appear to be supported by disclosed facts. White doesn't think the original "pedo guy" claim rises to the level of defamation, but that one could go either way. But, still, it really looks like the totally unnecessary emails to Buzzfeed are what really put Musk in a difficult spot in this lawsuit.

Still, the bigger issue for Musk is that the lawsuit notes Unsworth is also planning to file a similar lawsuit in the UK, where defamation laws are significantly more friendly to the plaintiffs, putting a burden on Musk to support his statements. Musk, of course, has basically all the money in the world to defend himself, and I do wonder if he'll try to file a counter-defamation lawsuit against Unsworth over Unsworth's comments (since Musk kept claiming they were false as well). If he does, it seems like Unsworth would actually have much stronger defenses against Musk, as none of Unsworth's comments appear to rise to defamation no matter how you look at them.

Perhaps Musk will decide to fight these cases out in court, though it wouldn't surprise me to see him just pay up to settle the cases and get them over and done with. But, as far as defamation cases go, this one seems a lot more legit than many of the ones we normally see.

You might recall that when the Trump FCC killed net neutrality, the public comment period (the only chance consumers had to actually offer their opinion) was plagued with all manner of identity theft and bogus comments. Oddly, the FCC didn't seem too concerned that dead people were filing comments to the FCC website supporting their extremely unpopular decision, and even actively blocked law enforcement investigations into what happened. It's worth noting that similar campaigns to generate bogus support for unpopular policies have plagued other government agencies in the post-truth era.

Annoyed by the FCC's lack of transparency and its refusal to respond to FOIA requests for additional data, journalist Jason Prechtel sued the FCC in late 2017. This week, a ruling (pdf) by Christopher Cooper of US District Court for the District of Columbia ordered the FCC to hand over at least some of the data. The ruling requires that the FCC hand over email addresses that were used to submit .CSV files, which in turn contained the bulk comments. The order did not, however, grant Prechtel's request for server logs, which could help detail who used specific APIs.

In his ruling, Cooper stated that understanding what went wrong would help prevent fraud in other proceedings moving forward (something, again, the FCC has shown it's really not too concerned about):

"In addition to enabling scrutiny of how the Commission handled dubious comments during the rulemaking, disclosure would illuminate the Commission's forward-looking efforts to prevent fraud in future processes...It is surely in the public interest to further the oversight of agency action to protect the very means by which Americans make their voices heard in regulatory processes."

Yes, go figure.

The FCC argued it couldn't disclose this e-mail data because it would violate consumer privacy, but consumers were told by the FCC when they made these comments that their e-mail addresses would likely be made public, "mitigating any expectation of privacy," the Judge declared. Again, the FCC's disinterest in getting to the bottom of this issue can't be over-stated, the agency ignored nine inquiries over a period of five months by New York State investigators looking for more data on the problem, and (like that DDOS the agency was caught fabricating) refused to seriously respond to journalists' inquiries.

In a blog post, Prechtel stated that he's not sure when he'll actually get access to the data, but was pleased that the court saw the importance for transparency surrounding the FCC's historically-unpopular policy:

"Regardless of how the rest of the case plays out, this is already a huge victory for transparency over an issue that has gone unanswered by the FCC and its current leadership for too long. Of course, it may be a matter of months before we actually get to see the records I won (or may still win), and learn who else was submitting bulk comments to the FCC that we don’t already know about. Even then, the full scope of the records I asked for only goes through early June 2017, and doesn’t encompass several more months of millions of comments the FCC went ahead and let flood into their system in spite of all the high-profile controversy."

A big source of the bogus comments appear to have originated with GQ Roll Call, on behalf of an "anonymous client" (which most assume is either a major broadband provider like AT&T or Comcast, or some other proxy partisan organization they covertly fund). Hopefully the data, whenever it arrives, helps shine a little more light on precisely what it is the FCC pretty clearly doesn't want exposed to the light of day.

The Ninth Circuit Appeals Court has upheld the stripping of immunity from a school resource officer who clearly violated the rights of multiple students, but still felt the need to be told twice by consecutive federal courts.

School is school and kids will get in fights. Some accusations about bullying brought several seventh grade students to the school's office, along with Deputy Luis Ortiz. Ortiz reached the limits of his training and experience extremely quickly when he was unable to determine who was bullying who or why these seventh grade students wouldn't give him the respect he so clearly felt he was owed. So, here's how he made the most (constitutional violations) of a bad situation. From the decision [PDF]:

On October 8, 2013, a group of seventh grade girls (twelve and thirteen year-olds) were handcuffed, arrested, and transported in police vehicles from their middle school campus to the police station. An assistant principal had asked a school resource officer, Sheriff’s Deputy Luis Ortiz, to counsel a group of girls who had been involved in ongoing incidents of bullying and fighting. School officials gathered the girls in a classroom to wait for Deputy Ortiz. The group included both aggressors and victims, and the school did not identify or separate them.

When he arrived on campus, Deputy Ortiz initially intended to verify the information the school had given him and to mediate the conflict. Within minutes, however, Deputy Ortiz concluded that the girls were being unresponsive and disrespectful. He decided to arrest the girls because, as he explained to them, he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” Deputy Ortiz stated that he did not care “who [was] at fault, who did what” because “it [was] the same, same ticket, same pair of handcuffs.”

Ortiz's decision to arrest a bunch of students to "prove a point" was corroborated by his own recording, which undermines the arguments he raised trying to secure immunity. The court doesn't appear to be pleased it has to handle a case where the defendant is so very clearly in the wrong, but it does what it can to ensure Ortiz will be at least as displeased as the judges are.

There's nothing nice said here about Ortiz's actions and the court sees no reason to hedge its opinion with faint praise for law enforcement in general. At best, it admits handling school situations like these can be complicated, but the complexity of the situation doesn't excuse Ortiz's probable cause-less mass arrest of middle school students.

Deputy Ortiz clearly stated that the justification for the arrests was not the commission of a crime, since he did not “care who is at fault,” nor the school’s special need to maintain campus safety, but rather his own desire to “prove a point” and “make” the students “mature a lot faster.” The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.

[...]

Deputy Ortiz faced a room of seven seated, mostly quiet middle school girls, and only generalized allegations of fighting and conflict amongst them. Even accounting for what Deputy Ortiz perceived to be nonresponsiveness to his questioning, the full-scale arrests of all seven students, without further inquiry, was both excessively intrusive in light of the girls’ young ages and not reasonably related to the school’s expressed need.

As for any questions about whether or not it had been clearly established officers cannot arrest students to "prove a point," the court quickly dispenses with that discussion:

At the time of the students’ arrest, it was clearly established that a police seizure at the behest of school officials must, at a minimum, be “reasonably related to its purpose, and must not be ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’” Defendants do not—and indeed, cannot—meaningfully contest Deputy Ortiz’s motivation for the arrests, which he stated multiple times. No reasonable officer could have reasonably believed that the law authorizes the arrest of a group of middle schoolers in order to prove a point.

The court is also unimpressed by the officers' attempt to lie their way into the clear.

Defendants… claim that the students’ behavior in the classroom justified the arrest because there was reason to believe the students would engage in imminent fights. That assertion is belied by the audio record of the encounter, which “quite clearly contradicts the version of the story told by” the officers. The students were mostly silent, only speaking to respond to the questions posed to them. But even taking at face value Deputy Ortiz’s claim that the girls were being disrespectful to him, and whispering among themselves, this conduct in no way rose to the level of probable cause that could have justified their arrests.

In fact, as the court notes, Ortiz never attempted to determine which students were engaged in bullying before arresting them. The three plaintiffs suing him were all victims of the bullying and they were rung up just like the instigators.

There's no ducking the lawsuit. On top of that, Ortiz (and another officer named in the lawsuit) will be facing state claims in addition to the federal civil rights violation allegations. Without a doubt, officers sometimes arrest people simply to "prove a point." But usually they'll do it with a bit more subtlety and try to eliminate any recordings that might undermined their official narrative. Ortiz was so determined to teach a bunch of uncooperative seventh graders a lesson, he completely forgot to make the arrest minimally plausible.

We have been tracking milestones in the maturity of eSports as a real cultural pastime for several years now, given how eSports almost perfectly intersects two main topics here at Techdirt: technology and digital economies. While those that claimed eSports would become a real thing have long been the recipients of skeptical narrow eyes, pro gaming has already zoomed past a number of important checkpoints on its way to legitimacy. Tournaments were heavily viewed overseas at first, but pro gaming then became recognized by universities for athletic scholarships. Next came coverage of tournaments on ESPN, followed eSports leagues being created by some of the major professional sports leagues in America and abroad. Even the IOC kicked around the idea of including eSports in future Olympic Games.

While the latest milestone perhaps isn't as grand as the opening of leagues and new broadcast channels, it is still a notable development that the very first pro gamer will be featured on the cover of ESPN The Magazine this week. That honor will go to Tyler "Ninja" Blevins, who has amassed an enormous following on Twitch and elsewhere.

Ninja revealed the cover on Twitter and said "So excited to be the first professional gamer to be featured on @espn the Magazine. Cover and profile will be shown on Sports Center tomorrow in the 7 AM EST hour."

We'll have to forgive ESPN for the hamfisted Playstation controller icons that accompany the cover image, I suppose. The bottom line is that this ESPN cover is reflecting the popularity of pro gaming, not creating it. Ninja has recorded streams viewed by over a half a million people, putting his viewership at levels that rival smaller professional sports events. Given the adoption of eSports by younger generations, ESPN needs to cater to those interests, if only for purely business reasons.

Still, ESPN is a mainstay in the professional sports world. It's no small thing that eSports has reached a place to be featured on the cover of its magazine. In other words, anyone waiting for this whole eSports fad to wane in popularity appears to have been waiting in vain.