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TODAY IN GARBAGE HUMAN BEINGS:

Cincinnati police officer Kevin Brown’s decision to fire a Taser at an 11-year-old girl suspected of shoplifting from a grocery store in August immediately drew criticism from city officials and advocates.

But Ohio state Representative John Becker had a different take. Had it been his daughter, he announced in an August newsletter, “I’d be ashamed and embarrassed that she did something stupid enough to get herself tased.”

This is even worse than the police union's take on the incident, which referred to the completely expected backlash as "kneejerk." But, hey, I guess deciding to tase an 11-year-old in the back -- one who reportedly was all of 4'11'' and 90 pounds -- couldn't possibly be portrayed as a kneejerk reaction by a law enforcement officer. When force isn't truly needed, we can be sure some cops will deploy it anyway.

But Rep. John Becker's take is the hottest take of all. Anyone tased by a cop -- even an 11-year-old -- is a person who brought that crackling, barbed punishment down on themselves. There's no reason to question the wisdom or necessity of the Taser deployment. Rather, we should question ourselves. And perhaps society. But mostly ourselves.

Becker also addressed police shootings in his newsletter. If his child were shot by police, he wrote, “rather than blaming the cop, I’d be blaming myself and endlessly soul searching to figure out how I failed as a parent and why my kid grew up to be a punk.” He added, “Based on the evidence of what I see on television, it often times appears to me that justice was delivered to the dead punk.”

"Based on the evidence of what I see on television…" Holy shit. This is an elected representative. And he thinks the TV is giving him the "evidence" he needs to make snap judgments on tased kids. Blame the victim. And blame the victim's parents.

The police chief -- in a surprisingly reasonable statement -- said the Taser deployment was "unnecessary."

Back to Becker:

Becker also told The Appeal that if police tase a child, “it could be an indication of a parenting problem.” He added, “If I were to do research, I would expect to find that kids that come from two parent in-tact [sic] supportive families are less likely to get in trouble with the authorities than kids that came from tougher environments.”

"If I were to do the research…" Would this be research beyond the television watching that's given Becker such keen insight into officer-involved shootings? Who knows? Becker's certainly not going to do the research. He's just going to stick by his electro-guns and blame victims of cop violence for being raised badly or otherwise being harmed by the disintegration of the nuclear family unit -- the 2.5 children born to married heterosexuals who have managed to weather an escalating divorce rate, porn, video games, movies, television, the internet, social media, Satanism, multiple pagan-based holidays, postal rate hikes, alternate sexual orientations, public school indoctrination, Daylight Savings Time, mandatory vaccinations, HAARP projects (known and unknown), President Obama, Brown v. Board of Education, morning-after pills, weird Twitter, the removal of prayer from schools, the Simpsons, artistic expression in general, and whatever else has reduced the American way of life to a hideous nightmare where punk kids manage to live their whole lives without being deservedly tased by blameless, saintly police officers.

Becker is an idiot, but let's pretend the research he didn't do actually says what he thinks it will say. Even if a majority of kids tased/killed by cops are raised by single and/or inattentive parents, that doesn't justify force deployments that far exceed the danger presented by the developing situation. This 11-year-old was tased in the back by an officer who was taller, weighed more, and had the ability to summon any number of additional officers if it appeared this preteen was going to, I don't know, grow a foot, add 100 pounds of weight, and produce an arsenal of weapons before the officer got the mild shoplifting situation under control.

If you agree with John Becker, you're probably John Becker. Or a cop who hates using force reasonably or responsibly. But you're definitely not the sort of person who can be trusted with government power.

Imagine a scenario:

You have a Facebook page, on which you've posted some sort of status update. Maybe an update from your vacation. Maybe a political idea. Maybe a picture of your kids. And someone comes along and adds a really awful comment on your post. Maybe they insult you. Maybe they insult your politics. Maybe they insult your kids.

Would you want to be legally obligated to keep their ugly comments on your post? Of course not. You'd probably be keen to delete them, and why shouldn't you be able to?

Meanwhile, what if it was the other way around: what if someone had actually posted a great comment, maybe with travel tips, support for your political views, or compliments on how cute your kids are. Would you ever want to be legally obligated to delete these comments? Of course not. If you like these comments, why shouldn't you be able to keep sharing them with readers?

Now let's expand this scenario. Instead of a Facebook page, you've published your own blog. And on your blog you allow comments. One day you get a really awful comment. Would you want to be legally obligated to keep that comment up for all to see? Of course not. Nor would you want to be legally obligated to delete one that was really good. Think about how violated you would feel, though, if the law could force you to make these sorts of expressive decisions you didn't want to make and require you to either host speech you hated or force you to remove speech that you liked.

And now let's say that your website is not just a blog with comments but a larger site with a message board. And let's say the message board is so popular that you've figured out a way to monetize it to pay for the time and resources it takes to maintain it. Maybe you charge users, maybe you run ads, or maybe you take a cut from some of the transactions users are able to make with each other through your site.

And let's say that this website is so popular that you can't possibly run it all by yourself, so you run it with your friend. And now that there are multiple people and money involved, you and your friend decide to form a company to run it, which both gives you some protection and makes it easier to raise money to invest in better equipment and more staff. Soon the site is so popular that you've got dozens, hundreds, or even thousands of people employed to help you run it. And maybe now you've even been able to IPO.

And then someone comes along and posts something really awful on your site.

And someone else comes along and posts something you really like.

Which gets to the point on this post: if it was not OK for the law to be able to force you to maintain the bad comments, or to delete the good ones, when you were small, at what point did it become OK when you got big – if ever?

There is a very strong legal argument that it never became OK, and that the First Amendment interest you had in being able to exercise the expressive choices about what content to keep or delete on your website never went away – it's just that it's easier to see how the First Amendment prevents being forced to make those choices when the choices are so obviously personal (as in the original Facebook post example). But regardless of whether you host a small personal web presence, or are the CEO of a big commercial Internet platform, the principle is the same. There's nothing in the language of the First Amendment that says it only protects editorial discretion of small websites and not big ones. They all are entitled to its protection against compelled speech.

Which is not to say that as small websites grow into big platforms there aren't issues that can arise due to their size. But it does mean that we have to be careful in how we respond to these challenges. Because in addition to the strong legal argument that it's not OK to regulate websites based on their expressive choices, there's also a strong practical argument.

Ultimately large platforms are still just websites out on the Internet, and ordinarily the Internet allows for an unlimited amount of websites to come into being. Which is good, because, regardless of the business, we always want to ensure that it's possible to get new entrants who could provide the same services on terms the market might prefer. In the case of platform businesses, those may be editorial terms. Naturally we wouldn't want larger companies to be able to throw up obstacles that prevent competitors from becoming commercially viable, and to the extent that a large company's general business practices might unfairly prevent competition then targeted regulation of those specific practices may be appropriate. But editorial policies are not what may prevent another web-based platform from taking root. Indeed, the greater the discontent with the incumbent's editorial policies, the more it increases the public's appetite for other choices.

The problem is, if we regulate big platforms by targeting their editorial policies, then all of a sudden that loss of editorial freedom itself becomes a barrier to having those other choices come into being, because there's no way to make rules that would only apply to bigger websites and not also smaller or more personal ones, including all the nascent ones we're trying to encourage. After all, how could we? Even if we believed that only big websites should be regulated, how would we decide at what stage of the growth process website operators should lose their right to exercise editorial discretion over the speech appearing on their sites? Is it when they started running their websites with their friends? Incorporated? Hired? (And, if so, how many people?) Is it when they IPO'd? And what about large websites that are non-profits or remain privately run?

Think also about how chilling it would be if law could make this sort of distinction. Would anyone have the incentive to grow their web presence if its success meant they would lose the right to control it? Who would want to risk building a web-based business, run a blog with comments, or even have a personal Facebook post that might go viral, if, as a consequence of its popularity, it meant that you no longer could control what other expression appeared on it? Far from actually helping level the playing field to foster new websites seeking to be better platforms than the ones that came before, in targeting editorial policies with regulation we would instead only be deterring people from building them.

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Pre-order your copy of CIA: Collect It All today »

It's been a while since we've mentioned our version of the CIA's internal training card game, that we Kickstarted back in April. For those who backed it, you've been receiving all the various updates on it -- including allowing everyone to download the rulebook. And now the game is officially in production -- which also means this may be your last chance to purchase a physical copy. While we're printing up some extra copies beyond what's already been ordered, at this point we're only doing this one printing of the game, and that'll be it. You can still pre-order the game here, and as we get closer to selling out the initial run we'll turn it off.

If you don't recall, this project grew out of the CIA telling the world about some of the internal training card and board games it had developed, leading to some FOIA requests that revealed the heavily redacted details of some of these games. We picked one of them -- which the CIA calls Collection Deck -- and turned it into our own game, entitled: CIA: Collect It All. It's a fast paced card game, in which players take on the role of CIA analysts, trying to collect enough information, using a variety of different spycraft techniques, to deal with various crises. Of course, as with the real world, other forces seek to get in the way and block the analysts from collecting all of the information they need.

For our version of the game, we had to fill in a whole bunch of redacted cards, completely redo the design, and add in some other fun aspects to the game -- including an entirely different "storytelling" variant which allows you to use the same cards for a very different kind of game (still based on the CIA).

After completing the redesign, filling in all of the redacted bits, adding new rules, rewriting the entire rulebook from scratch and more, we finally received our first prototype, and have approved it going into full production. We've initially ordered more than we sold via Kickstarter, but not a huge amount, so if you want a physical copy, it makes sense to put your order in soon.

Much like the giant ISPs he's clearly beholden to, Ajit Pai isn't particularly happy about California's efforts to pass meaningful net neutrality rules. The state's shiny new law recently passed the state assembly and senate, and is awaiting the signature of California Governor Jerry Brown. ISPs recently met with Brown in a last-minute bid to get him to veto the bill (a very real possibility) despite widespread, majority public support.

Pai last week took some time to whine about California's bill at the Maine Heritage Policy Center, a "free market" think tank supported by (shockingly) major ISPs. In his speech, Pai insisted that California's attempt to protect consumers is somehow both "extreme" and "illegal":

"Of course, those who demand greater government control of the Internet haven’t given up. Their latest tactic is pushing state governments to regulate the Internet. The most egregious example of this comes from California. Last month, the California state legislature passed a radical, anti-consumer Internet regulation bill that would impose restrictions even more burdensome than those adopted by the FCC in 2015."

We've been over this so many times it hardly warrants a response. But it should be clear that states only took the steps to pass state-level net neutrality laws after Pai made it repeatedly, aggressively clear that his agency could not care less about the welfare of consumers. Killing net neutrality, supporting the elimination of broadband privacy protections, gutting FCC consumer protection authority, thwarting efforts to improve cable box competition, and eroding broadband programs for the poor all highlight this fact. Didn't want states intervening? Don't be so aggressively hostile to consumers.

From here, Pai proceeds to again try to claim that what California is up to is somehow "illegal," which also (surprise) isn't true:

"The broader problem is that California’s micromanagement poses a risk to the rest of the country. After all, broadband is an interstate service; Internet traffic doesn’t recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.

Among other reasons, this is why efforts like California’s are illegal."

At ISP behest, Pai included language in the FCC's net-neutrality-killing "restoring internet freedom" order that attempts to pre-empt (read: ban) states from protecting consumers in the wake of FCC apathy. And while Pai keeps trying to claim the FCC has this authority, the courts so far have not seen it that way. In part because when Pai decided to roll back ISP classification of common carriers under the Telecom Act, he also eliminated any potential rights the FCC had to tell states what to do.

That's a point California Senator Scott Weiner was quick to make in his own statement:

"SB 822 is necessary and legal because Chairman Pai abdicated his responsibility to ensure an open internet. Since the FCC says it no longer has any authority to protect an open internet, it’s also the case that the FCC lacks the legal power to preempt states from protecting their residents and economy. When Verizon was caught throttling the data connection of a wildfire fighting crew in California, Chairman Pai said nothing and did nothing. That silence says far more than his words today.

Like any good disinformation magician, Pai hopes that if he repeats these falsehoods often enough, they'll magically become true. But it's hard to tapdance around the fact that the vast, bipartisan majority of Americans hate their cable and phone companies and support these rules for good reason -- and by ignoring the will of the public and refusing to rein in monopoly providers with three decades of anti-competitive behavior under their belts, it's Pai that's the radical one.

The Sixth Circuit Appeals Court has taken a look at some of President Trump's campaign trail trash talk and decided urging fans to remove protesters wasn't incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)

The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it. There's nothing wrong with that. It's the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to "get 'em out of here."

The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump's "get 'em out of here" directly caused them harm and violated the state of Kentucky's riot incitement law.

The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs' own statements to undo their assertions. But it's not happy with the lower court's decision to apply a less strict standard to Trump's wording to give the plaintiffs a better shot at hitting the mark with their state claims ("incitement to riot"). Applying the plausibility standard -- that Trump's "get 'em out of here" could have conceivably incited a riot -- makes no sense if the lower court wasn't willing to apply that same standard to words Trump said directly after that.

Focusing on the former statement, the district court held that it “implicitly” encouraged the use of violence. Id. at 727. Yet, even if “get ’em out of here,” standing alone, might be reasonably construed as implicitly encouraging unwanted physical touching, the charge here is “inciting to riot.” The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible—especially where any implication of incitement to riotous violence is explicitly negated by the accompanying words, “don’t hurt ’em.” If words have meaning, the admonition “don’t hurt ’em” cannot be reasonably construed as an urging to “hurt ’em.”

Even if the appeals court had decided Trump's words (but only some of them) didn't mean what they appeared to mean ("don't hurt 'em" = "hurt 'em"?), the president would still be able to walk away from this lawsuit intact. What Trump said during his campaign was not a threat nor any other speech standing outside the protections of the First Amendment.

Under the Brandenburg test, only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment. This looks like a close analogue for the kind of speech required to make out the charge of inciting to riot under Kentucky law. It follows that if we were to hold that plaintiffs’ allegations do state a plausible incitement-to-riot claim under Kentucky law, the claim might be expected to fall outside the protection of the First Amendment under the Brandenburg test. What comes with the constitutional standard, however, is an illustrative body of case law. And what this case law makes clear is that, even if plaintiffs’ allegations could be deemed to make out a plausible claim for incitement to riot under Kentucky law, the First Amendment would not permit prosecution of the claim.

As the court notes, what Trump said may have been taken by attendees as an invitation to inflict violence. Trump may even have hoped some would act on these urges even with the tossed-off addition of "don't hurt 'em." But what he said was Constitutionally protected, no matter how unsavory or subjectively threatening the expelled protesters might have felt his statements were. For the court to step in and declare these words illegal would be a step too far.

[A]s a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. The First Amendment demands governmental tolerance of speech, in the name of freedom…

The court isn't there to second-guess the speaker's intent. It's there to weigh the Constitutionality of the statements. "Get 'em out of here" isn't capable of directly inciting violence. The government has steered clear of punishing far worse speech in far more volatile situations. The court says it's not willing to cross that line, especially not when the perceived incitement was immediately negated by the next words out of Trump's mouth.

Earlier this year, we wrote about what seemed to be a fairly serious breach of security at the world's largest biometric database, India's Aadhaar. The Indian edition of Huffington Post now reports on what looks like an even more grave problem:

The authenticity of the data stored in India's controversial Aadhaar identity database, which contains the biometrics and personal information of over 1 billion Indians, has been compromised by a software patch that disables critical security features of the software used to enrol new Aadhaar users, a three month-long investigation by HuffPost India reveals.

According to the article, the patch can be bought for just Rs 2,500 (around $35). The easy-to-install software removes three critical security features of Aadhaar:

The patch lets a user bypass critical security features such as biometric authentication of enrolment operators to generate unauthorised Aadhaar numbers.

The patch disables the enrolment software's in-built GPS security feature (used to identify the physical location of every enrolment centre), which means anyone anywhere in the world -- say, Beijing, Karachi or Kabul -- can use the software to enrol users.

The patch reduces the sensitivity of the enrolment software's iris-recognition system, making it easier to spoof the software with a photograph of a registered operator, rather than requiring the operator to be present in person.

As the Huffington Post article explains, creating a patch that is able to circumvent the main security features in this way was possible thanks to design choices made early on in the project. The unprecedented scale of the Aadhaar enrollment process -- so far around 1.2 billion people have been given an Aadhaar number and added to the database -- meant that a large number of private agencies and village-level computer kiosks were used for registration. Since connectivity was often poor, the main software was installed on local computers, rather than being run in the cloud. The patch can be used by anyone with local access to the computer system, and simply involves replacing a folder of Java libraries with versions lacking the security checks.

The Unique Identification Authority of India (UIDAI), the government body responsible for the Aadhaar project, has responded to the Huffington Post article, but in a rather odd way: as a Donald Trump-like stream of tweets. The Huffington Post points out: "[the UIDAI] has simply stated that its systems are completely secure without any supporting evidence." One of the Aadhaar tweets is as follows:

It is because of this stringent and robust system that as on date more that 50,000 operators have been blacklisted, UIDAI added.

The need to throw 50,000 operators off the system hardly inspires confidence in its overall security. What makes things worse is that the Indian government seems determined to make Aadhaar indispensable for Indian citizens who want to deal with it in any way, and to encourage business to do the same. Given the continuing questions about Aadhaar's overall security and integrity, that seems unwise, to say the least.

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For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

According to Swedish Internet provider Bahnhof, which keeps track of these cases on a dedicated website, records are being broken this year.

“Thousands of Swedes have received threatening letters from law firms which accuse them of illegal downloading. They are asked to pay a sum of money, ranging from a couple of thousand Swedish Kronors up to several thousand, to avoid being brought to justice,” Bahnhof Communicator Carolina Lindahl notes. “During 2018 the extortion business has increased dramatically. The numbers have already exceeded last year’s figures even though four months still remain.”

The over 35,000 individuals targeted totals more than the number of targets in the last two years combined. It also totals more than all of the filesharing cases in the United States and Canada combined. And, in case the point isn't sinking in just yet, that's insane. And, again, while Bahnhof today is using all of this data in its messaging to the public as to why they should be Bahnhof customers, the company's long-term goal is actually to get the government involved to clarify the law and disallow this business practice.

“It’s time to reverse the trend before another 100, 1000 or 10,000 individuals have to join the growing group of victims. The practice of sending extortion letters to internet users solely based on IP-addresses does not meet any requirements of legal certainty and must be stopped,” Bahnhof’s Communicator stresses.

“We want to see a reform of copyright law aimed at promoting artistic creation instead of the commercial interests of the copyright industry.”

It remains to be seen just how high the victim count must go before the Swedish government indeed does its job.

So this is somewhat unexpected, but Rep. Doug Collins has introduced HR 6714, a bill to make federal court records free to the public.

H.R. 6714, the Electronic Court Records Reform Act, would guarantee free public access to federal court records through the Public Access to Court Electronic Records (PACER) system, which currently charges the public a fee to access documents. The bill would also require updates to the PACER system, including adding a function to enable all users to search its catalog of court documents easily. Currently, litigants are handicapped because they cannot conduct research through the system.

The bill would further support legal professionals and the general public by consolidating the Case Management/Electronic Case Files (CM/ECF) system. The CM/ECF system was designed to increase efficiency for all stakeholders within the judicial system, but it is compartmentalized among different courts. This makes locating records and filing documents difficult and inefficient. The Electronic Court Records Reform Act would unify these disconnected systems under the Administrative Office of the U.S. Courts in order to ensure uniform access to all federal litigants.

This would be... amazing. We've spent years highlighting the massive problems with PACER, the federal court system that charges insane amounts for basically everything you do, just to access public records, and which functions very much like it was designed around 1995. There are a few court cases arguing that PACER fees are illegal and a recent ruling in one of those cases agreed. As we noted at the time, that was hardly the final word on the matter. A bill like the ones Collins introduced would be an amazing leap forward in giving public access to court documents.

Unfortunately, it's unclear if the bill has any support beyond Collins, but this is the kind of thing you would hope that Congress could get behind.