Twitch Once Again Trips Over Its Own Tongue Messaging Ad Policy Change To Creators

Failures

from the here-we-go-again dept

How does simple communication and the rollout of new polices remain so very, very difficult for Amazon’s Twitch platform? Over the past several years, we have written up many posts of all the ways that Twitch has sucked out loud when it comes to communicating with its creators, particularly when it comes to policy changes the platform decides to make. It changed how it responds to DMCA takedown requests without bothering to tell anyone about it, for instance. Then it turned its vaunted affiliate program into essentially a pay-to-play scheme. All the while, creators have been subject to DMCA abuse, Twitch started playing silent games demonitizing some creator content, and it failed to promptly inform creators that it had banned as to the reason for those bans.

Has it gotten better? Not really, no. The most recent news is that Twitch decided to change up its rules and policies on how streamers can partner with advertisers on the platform in a manner that has the potential to have massive effects, before quickly retreating from its own announcement.

On June 6, popular streaming service Twitch rolled out a set of new advertisement rules that spell trouble for streamers large and small. The rules are directly related to branded content streamers add into their streams, which are a crucial source of revenue for creators, and the new set of rules could very well mean major consequences for your favorite streamers.

In the aftermath of the announcement, streamers took to Twitter and Twitch to lament the changes, with big names like Asmongold threatening to leave Twitch entirely. Twitch released some clarifications via Twitter, but it’s unclear what rules will actually be in place come July 1.

Here, again, we have an example of Twitch being so inept when it comes to basic communication to its own community that nobody knows how to react other than to be completely pissed off. So what was in the new rule changes? Several things! On-stream logos of advertising partners were restricted to less than 3% of what’s on the screen, for instance. But that only applied to a digital logo, leading to some hilarious, albeit frustrating, workarounds.

Sort of defeats the entire purpose, no? But that wasn’t the only change. Another change was the enforcement of a ban on embedded pre-recorded ads within the stream itself, including embedded banners from advertisers. And that really was the bigger deal.

Branded content is a major source of income for streamers, as the controversial 50/50 revenue split of September 2022 left them feeling exploited by the Amazon-owned company. Contracts with gamer-marketed soft drinks or gaming peripherals allow them to manually place banners into their streams, with the money from that partnership going directly into their pocket—not being split down the middle like the revenue from ads that play through Twitch.

“The big creators are the ones who get fucked by this almost exclusively,” CEO of Ping Labs and former Twitch employee Theo Browne told Kotaku over the phone. “And that’s what’s scary—the top 100 streamers on Twitch just got told they’re not allowed to make 80 percent of their revenue the way they’re used to making it. This is gonna have repercussions.”

But it’s not just the biggest streamers this would hit. There are plenty of unintended consequences that would come to be by this policy change. The best example of that are events and charity streams. Events are typically done so infrequently that the ability to make good revenue from advertising partners instead of primarily from viewer subs will be impossible under these new rules. So events will just… go away from the platform?

As for charity streams, streamers may not be able to embed content or show information on the screen for the charities the stream is intended to benefit. After all, such content could be considered advertising for the charity, right? So do charity streams, and all the benefit that occurs from those streams, also just simply go away?

And, as seems to always be the case, the problem is once again how Twitch communicates, or not, with its own greatest resource: its creative community.

“I think what this signifies more than anything is that if Twitch is talking to creatives, they’re only doing enough to feel good about making bad decisions, not to prevent them from making bad decisions,” Browne suggested. “Even if this was done for legal reasons or like external pressure from the ad team—the ad team has been trying really hard to make it easier for Twitch to sell ads…if some advertiser goes to Twitch, and they see their ad play on top of the streamer playing another ad, they’re not going to be happy. So I can see why they’d be motivated to make these changes, but they did not do any of the necessary homework or effort to do this in a way that doesn’t directly harm creators and their perception of Twitch.”

As I mentioned, Twitch beat a hasty retreat from its own announcement the very next day. Just as the backlash to all of this hit its crescendo, Twitch attempted to shake the etch a sketch.

Meaning that the only real result of Twitch’s policy announcements is to have reputational egg all over its face. Policies generally won’t change, creators get what they want while still being pissed that the platform thought any of this was a good idea, and Twitch got to be embarrassed out in full view the public.

All because it can’t be bothered to do communicate with its own community properly.

Filed Under: branded content, embedded ads, policies, sponsorship, streaming, ugc
Companies: amazon, twitch

Gigabyte Motherboards Came With Sloppy Backdoor Users Had No Idea About

(Mis)Uses of Technology

from the trust-no-one dept

It’s always interesting to me to watch and see what gets attention in the security and privacy space. For example, everybody spent the last two years suffering absolute embolisms at the idea that TikTok was a threat to privacy, but nobody much seems to care that an absolute ocean of “smart devices,” from your router to your television, routinely come with paper-mache-grade security.

Hardware you expect to be secure (like door locks advertised as a security upgrade) routinely… aren’t. That frequently applies to core technologies you don’t spend a whole lot of time thinking about, from routers to PC components.

Last week, cybersecurity company Eclypsium issued a report that they’d discovered a hidden backdoor in the firmware of motherboards sold by the Taiwanese manufacturer Gigabyte. Code within the firmware activates each time a PC using these motherboards restarts. It’s supposed to help update the motherboard’s firmware, but it was implemented… poorly:

The firmware does not implement any cryptographic digital signature verification or any other validation over the executables. The dropped executable and the normally-downloaded Gigabyte tools do have a Gigabyte cryptographic signature that satisfies the code signing requirements of Microsoft Windows, but this does little to offset malicious use, especially if exploited using Living-off-the-Land techniques (like in the recent alert regarding Volt Typhoon attackers). As a result, any threat actor can use this to persistently infect vulnerable systems either via MITM or compromised infrastructure. 

Whoops! The flawed implementation, as they note, doesn’t adequately inform the end user, and could then be exploited by bad actors, undermining the trust PC owners have that their core devices are inherently secure. Their blog post lists 271 models of Gigabyte motherboards are impacted by this flaw. The company isn’t responding to requests for comment.

Despite the widespread potential impact of the problem, I’m going to assume I won’t see any Senators showing up on cable news freaking out about the issue.

Filed Under: backdoors, gigabyte, hardware, motherboard, pc components, privacy, security
Companies: gigabyte

NSO Competitor QuaDream Shutting Down After Finding It Can’t Make Money If It Can’t Sell To Human Rights Abusers

Failures

from the heckuva-business-model-you-got-there,-malware-merchants dept

NSO Group is on the ropes after years of self-inflicted damage metastasized into months of negative news coverage. Since worldwide exposure of its customers’ abuse of its malware, as well as exposing the sort of people NSO chose to deal with, the company has discussed getting out of the offensive spyware business — a move that might simply become a much shorter phrase: going out of business.

Its competitors are no better. Not only are the products offered by fellow Israeli exploit hawkers like Candiru and QuaDream less elegant than NSO’s premium “Pegasus” product, the competitors have shown they’re equally willing to mix it up with the leaders of countries with miserable human rights records. And, just like NSO Group, its customers are more than willing to use powerful spyware to target critics, journalists, activists, and opposition leaders.

The US blacklisted Candiru and NSO Group. Israel, forced to respond after its favored spyware company produced headlines too big to ignore, finally created a blacklist of its own, forbidding local tech companies from selling their products to some of their biggest (but now, former) customers.

QuaDream hoped to fill the void left by NSO’s seeming exit from the market. It did this by trying to plant its flag on restricted ground — just one of several details included in this report by Israeli news outlet, Haaretz.

Claims that Pegasus was used by Moroccan operators to attempt to target a phone linked to French President Emannuel Macron sparked a small diplomatic crisis between Jerusalem and Paris, with then-Defense Minister Benny Gantz visiting France to try to assuage their concerns.

According to sources, NSO failed to obtain authorization to renew its Morocco contract. QuaDream, whose talks with Morocco began earlier, didn’t receive a green light, either.

Heading back to blacklisted countries appeared to be QuaDream’s business model. Since it couldn’t compete with NSO in Europe, it began pitching deals in Asia, Africa, and in several Arab nations. Meeting with blacklisted governments doesn’t necessarily violate the Israeli government’s export restrictions, but it seems like an extremely inefficient way to drum up business since it’s unlikely the government would grant sales licenses, at least not while the international press heat is still noticeable.

Of course, QuaDream — at that point — still apparently did international business through a Cyprus-based front company, so it may have been planning to secure deals and route around restrictions by having its extraterritorial bag man handle the handoff. But even if that was the plan, it was undercut by a legal dispute over money QuaDream’s front company (InReach) alleged was never paid to it by the Israeli spyware seller.

A series of unforced errors (which includes courting autocrats) has now reduced to QuaDream to less than the sum of its parts. According to the Haaretz report, the company is now holding a “GOING OUT OF BUSINESS” sale since it can no longer make money the way it used to: by selling spyware to autocrats.

With no ability to make new deals, and both these and other efforts failing to reach fruition – albeit for different reasons – the firm decided to cut its losses and close up shop.

QuaDream is now working to sell off some of its assets to local competitors, according to two of the sources. Its research teams and outgoing staff are interviewing with other offensive cyber firms, they say.

That confirms what was suspected a few months ago, when QuaDream held an all-hands meeting to inform several pairs of hands their services would no longer be needed.

Adding injury to injury, an employee apparently accidentally leaked some of its code online, which may harm the market price of the malware code it hopes to unload as its completes its implosion.

Pieces of QuaDream’s code, which was leaked by an employee, likely by mistake, revealed not just the existence of Reign, but also Blue Spear – a previously unknown program that seems to serve as the web interface through which the targeted devices are likely infected. (Click here for a full technical analysis)

Chances are QuaDream won’t be the last of the malware merchants located in Israel to fold. The market can only support so many exploit providers. And the market — at least for now — has been severely restricted by the Israeli government, reducing the list of government-approved customers from 100 countries to only 35. Anyone left on the supply side is pitching the same stuff to the same people. The ones willing to pay a premium to spy on their political enemies (rather than criminals or terrorists) are, for the moment, no longer an option. Plenty of supply, but very little legitimate demand. And these companies have no one to blame but themselves for the situation they’re in now.

Filed Under: human rights, spyware, surveillance
Companies: quadream

Elon Musk Says Twitter Is Going To Get Rid Of The Block Feature, Enabling Greater Harassment

Failures

from the screams-in-trust-and-safety dept

One of the most important tools for trust and safety efforts is the “block” feature, allowing a user to entirely block someone else from following them. Yes, on Twitter you can get around this by going into incognito mode, but overall, the feature is a very useful tool for those being harassed to limit access to their abusers. Indeed, one of the biggest criticisms early on of the (still in invite-only beta) Bluesky social media app was that it opened its doors to thousands of users before they had implemented a “block” feature (that has since been added). Lots of people argued that launching social media today without the “block” feature is malpractice.

Elon Musk, however, seems to be going in the other direction.

On Wednesday, in reply to someone on Twitter complaining about being blocked, Elon said that “blocking public posts makes no sense” and saying that “it needs to be deprecated in favor of a stronger form of mute.”

This also comes just weeks after Twitter’s adjusted API policy effectively killed one of the most useful 3rd party tools for users on Twitter to avoid harassment: BlockParty.

Block Party’s anti-harassment tools for Twitter will be on indefinite hiatus as of May 31. It’s been a privilege to help you set your boundaries for the last four years. Together, we blocked and muted millions of trolls. 

We’re heartbroken that we won’t be able to help protect you from harassers and spammers on the platform, at least for now; we fought very hard to stay, and we’re so sorry that we couldn’t make it happen. 

And, of course, all of this comes right after Twitter’s trust & safety boss (who wasn’t particularly experienced with trust & safety work) resigned. So it seems that, yet again, Musk is winging it, and making decisions based on what the worst of his fans want, rather than what actually is best for the ecosystem he manages.

The underlying assumption here from Musk is that the only reason to use “block” is if you don’t want to hear from someone. But that’s wrong. That’s what the mute button is for. Block is an anti-harassment tool to help people avoid having stalkers, abusers, harassers, and the like being able to follow your every word without at least some level of friction.

Considering that Musk himself was so concerned with “doxing” of his public information, you’d hope he’d recognize that, but again Musk seems to view the safety of everyone on Twitter as if it’s identical to his own experience, and his own threat model.

Of course, there’s also the simple fact that the block feature is costly in terms of Twitter compute power:

So, even though he was, himself, an aggressive blocker for a while, more recently he’s urged people to stop using the block feature, and removed everyone from his own block list a few months back. Of course, it appears that even he went back on that promise, because there are reports of him blocking new people since his grand unblocking.

Separately, there’s the fact that there was the infamous “BlockTheBlue” campaign that sought to get Twitter users to block anyone who was subscribed to Twitter Blue, which has really pissed off Musk. Perhaps to the point that this is also a reason he wants to get rid of the block button?

Either way, this is yet another example of a situation where there’s a lot of actual expertise out there, but Musk ignores it all based on (1) his own gut instincts, (2) the requests of the terribly disingenuous people he follows, and (3) a desire to decrease Twitter server costs.

And all while making the website significantly less safe for a large segment of users.

Filed Under: block, elon musk, harassment, trust & safety
Companies: twitter

Court Tosses Phone Evidence After First Warrant Was Too Vague And Second Warrant Was Too Late

Legal Issues

from the reasonable-AND-timely dept

For searches to be compliant with the Constitution, their underlying warrants need to be just as compliant. Warrants have been required for cell phone searches since 2014, thanks to the Supreme Court’s Riley decision.

Nearly a decade on, and the government is still suffering periodic bouts of unreasonableness when performing phone searches. We recently covered a case where evidence was suppressed because the FBI took more than three years to crack a phone and performed a search anyway, despite agreeing to time limits placed on the original warrant by the magistrate judge.

This case, coming to us via FourthAmendment.com, involves two problematic warrants, both of which combine to hand the government a loss in the evidence department. The decision [PDF], handed down by a New York trial court, says the government failed twice when handling searches related to a domestic dispute between Naquan Smith and his girlfriend — one that allegedly involved Smith brandishing a gun.

Smith’s girlfriend filed domestic violence complaints following two consecutive incidents, occurring November 28 and 29 of 2021. An additional report from a neighbor reporting a man carrying a gun led to the recovery of a gun at a field near the apartment Smith resided in. During the course of his arrest, Smith’s iPhone was seized. A search warrant was obtained four days after Smith’s arrest on November 29.

But this warrant was pretty much a worthless piece of paper and was successfully challenged by Smith’s lawyer following his indictment.

In a decision dated July 20, 2022, the court found the warrant application failed to provide case-specific facts to establish reasonable cause to believe that Smith used the Iphone to communicate about the incident and that relevant evidence would be found on the iPhone. The affidavit contained no allegation that anyone observed Smith using his cell phone before, during or after the time of the incidents. Rather than providing case-specific facts, the supporting affidavit merely offered generalized conclusions that individuals who engage in domestic violence and illegally possess firearms use cell phones to communicate regarding past and future criminal actions. Thus, the search warrant application lacked the necessary support for a Fourth Amendment privacy intrusion.

Somehow that bit of legal fiction was approved by a judge. While there are criminal acts that involve regular phone communications, domestic violence generally isn’t one of them. And the apparent ditching of the gun suggested Smith was trying to distance himself from physical evidence, so it would seem unlikely he would have confided in anyone else about this weapon.

The first search warrant was executed on December 2, 2021. A year later — and six months after the first search warrant was successfully challenged in court — the investigator applied for a second search warrant. And somehow, this one was also granted.

On December 3, 2022, this court was presented with a new search warrant application for the Iphone, supported by an affidavit from the same officer, who by then had achieved the rank of detective. The detective repeated the background information that was supplied in the first application, but supplemented it with additional details, including a description of text message exchanges between the complainant and Smith the day of the incident, and also between the defendant’s brother and Smith as the police were attempting to apprehend them. The People represented that no fruits of the first search warrant application were utilized in the People’s application for the second search warrant.

That last assertion seems suspect, to say the least. The text messages the investigator claimed weren’t derived from the first unconstitutional search were used to shore up the rest of the shaky assertions that were seemingly copy-pasted from the original (deficient) warrant.

The court says the second warrant was valid and provided probable cause for a search. But that’s not the end of the discussion. There’s the matter of timeliness. And that’s where the second warrant falls apart. The court quotes Second Circuit precedent, derived from a case involving a seized tablet.

The Second Circuit employs a four factor test to discern whether the application is timely: (1) the length of time before seeking a search warrant; (2) the importance of the seized property to the defendant; (3) whether the defendant had a reduced property interest in the seized item; and (4) the strength of the prosecution’s justification for the delay. United States v. Smith, 967 F3d 198 (2d Cir. 2020). Federal courts have invalidated search warrant applications where the prosecution delayed for merely a period of days.

Almost every factor is in play here, but the court emphasizes the second prong: a phone is even more crucial to day-to-day existence than a tablet computer.

At issue here is a cell phone, arguably even more valuable to the owner because of its greater inter functionality. This court concludes that although probable cause for the Iphone searches was made out in the December, 2022 application, the search then was not in accord with the Fourth Amendment. Under the four factor test the Second Circuit articulated, the People’s unreasonable delay in seeking this application outweighs other considerations.

But also important is the justification of any delayed searches by the state. Nothing was offered here.

The People’s search warrant application ran afoul of the legislative intent that the defense have access to all discoverable material as soon as possible. The People served and filed their certificate of readiness in this case on April 23, 2022. On July 20, 2022, the court issued its decision granting the defendant’s motion to controvert the first search warrant. On September 29, 2022, with no change in the parties’ respective positions, the court directed them to be ready for hearings and trial on November 10, 2022. The People offer no cognizable explanation for why they waited until after the original hearing and trial date was set to resurrect their search for the target items, or why there was any need to do so ex parte.

It runs counter to the legislative intent to permit the People to declare their readiness, yet continue to obtain investigative material for their use at trial from the defendants without his knowledge. The court must assume that the People filed their certificate of readiness in good faith, and that no information derived from these searches would be necessary to try the defendant.

Notice also the “ex parte.” The government sought a search warrant without notifying the defense of its intention to do so by using the judicial backdoor. Only after it had performed this search did it bother to inform the defense. That’s trial by ambush. And, fortunately for the defendant, the court has tossed the evidence derived from this second, secret, and long-delayed warrant.

It’s not like there isn’t any legal guidance or precedent in cases like these. The New York trial court quoted plenty in its brief, but pointed, rejection of the second warrant. But apparently the side with all the law on it just doesn’t much care for laws and legal precedent that might dissuade it from doing what it wants.

Filed Under: 2nd circuit, 4th amendment, naquan smith, probable cause, riley, timeliness, warrant

Daily Deal: StackSkills Unlimited

Deals

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

StackSkills is the premier online learning platform for mastering today’s most in-demand skills. Now, with this exclusive limited-time offer, you’ll gain access to 1000+ StackSkills courses for life! Whether you’re looking to earn a promotion, make a career change, or pick up a side hustle to make some extra cash, StackSkills delivers engaging online courses featuring the skills that matter most today, both personally and professionally. It’s on sale for $45.

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

The Sanctions Hearing For ChatGPT Using Lawyers… Did Not Go Well

Legal Issues

from the did-they-get-chatgpt-to-testify? dept

By now you’ve heard of the lawyer who used ChatGPT for his legal research, and it made up fake cases. We’ll again remind you that Joshua Browder, the founder of DoNotPay insisted that this same underlying technology was so sophisticated that he offered $1 million to a lawyer who would let it make arguments in front of the Supreme Court.

Anyway, some stuff has been happening in the underlying case, in which the judge ordered the two lawyers associated with the case, Peter LoDuca and Steven Schwartz, from the law firm of Levidow, Levidow & Oberman to explain what the fuck they were thinking.

First off, both lawyers (smartly) lawyered up with lawyers from outside their own firm. Second, on Wednesday, they filed their required response to Judge Kevin Castel’s order to show cause, which was effectively the two lawyers throwing themselves on the mercy of the court. The shortest summary of the 29 page document is “we may be ignorant and stupid, but we’re not malicious — and sanctions should only be put on malicious lawyers” And also “we’re super duper sorry, and everyone’s mocking that, so isn’t that punishment enough?”

However, even within that filing there were some issues. When filing a legal brief, it normally includes a “Table of Authorities” which includes citations to every other case named in the document. In this case, though, that actually represented a kind of challenge, because (you’ll recall, though whoever created this document did not…) that the whole reason we’re in this mess is that Schwartz (under LoDuca’s signature) included citations to made up cases that ChatGPT had given him. And, this response, in explaining what happened, mentions some of those cases, with the main one being the entirely fictitious: “Varghese v. China Southern Airlines.”

But, because the response includes a discussion of ChatGPT providing that cite (and others) those fake cases are mentioned in the brief… meaning whoever put together the Table of Authorities included the fake cases that were mentioned. Really. The highlighted cases here do not exist:

There was at least one other such fake case in the Table of Authorities as well. On Thursday morning, LoDuca and Schwartz filed an amended reply, and while the docket does not mention the reason for the amendment, I note that the three non-existent cases have disappeared from the Table of Authorities.

Also on Thursday, though, was the courtroom hearing about all this, and Inner City Press’s Matthew Russell Lee covered the hearing in detail. It did not go well for either LoDuca or Schwartz.

My larger takeaway from their response to the OSC was that I’m sure that they’re telling the truth that they were largely ignorant and stupid, rather than malicious, but it’s still horrifically bad lawyering. You can blame “generative AI” all you want, but the real mistake here, for which there is no excuse, was their failure to actually check on the cases they referenced.

There’s a process lawyers are expected to go through whenever they cite cases in a filing, called “Shepardizing” the citations, which is the process of checking to see if the cases are still good citations: i.e., have there been more recent rulings that overrule or reverse the original rulings, or which make the older rulings no longer good law. That process, alone, should show if a case, say, doesn’t even exist. But these lawyers did not do that. And that’s 100% on them, not on ChatGPT or their lack of understanding for how ChatGPT works.

The lawyers’ excuse — that they used a tool called FastCase, but due to a billing snafu only had access to state court cases, not federal — is not particularly convincing. Because there are lots of other ways to find federal cases… including Google. And, on top of that, once they were notified that opposing counsel (and, it appeared, the judge) could not find the cited cases, pretty much anyone would search a little deeper than just going right back to ChatGPT.

And… more or less that’s what the judge was interested in discussing. First, the judge went after LoDuca, whose signature was on the docs, but who has now admitted that he was just signing everything that Schwartz put in front of him without really reviewing it (this was because LoDuca is admitted to the federal courts in the federal district, while Schwartz is not).

Already, this is questionable enough, in that LoDuca was signing stuff without really checking it over, but also the judge got him to admit that he had lied to the court regarding a vacation when asking for an extension of time (Schwartz was the one who was actually going on vacation). From Inner City Press’s transcription:

Judge Castel: Do you recall writing to me you were going on vacation? And the Court giving you until April 25?

LoDuca: Yes.

Judge Castel: Was it true you were going on vacation?

LoDuca: No, judge.

Lying to a judge is super bad. They don’t like that.

The judge also called out the many warning signs as to why LoDuca and Schwartz should have realized how things went wrong, and didn’t seem to be willing to just accept their “we were dumb, but not malicious” reasoning as acceptable.

But the real mess started when Schwartz was put under oath. The judge quizzed him about the tools he uses for research, and got him to admit that he has access to LexisNexis at the local bar association, but has never signed on to use it. He also admits that when he used ChatGPT he wasn’t just asking it for legal research, but he was asking it to effectively make his argument for him.

Judge: Did you prepare the March 1 memo?

Schwartz: Yes. I used Fast Case. But it did not have Federal cases that I needed to find. I tried Google. I had heard of Chat GPT…

Judge Castel: Alright – what did it produce for you?

Schwartz: I asked it questions

Judge Castel: Did you ask Chat GPT what the law was, or only for a case to support you? It wrote a case for you. Do you cite cases without reading them?

Schwartz: No.

Judge Castel: What caused your departure here?

Schwartz: I thought Chat GPT was a search engine

Judge Castel: Did you look for the Varghese case?

Schwartz: Yes. I couldn’t find it.

Judge Castel: And yet you cited it in your filing.

Schwartz: I had no idea Chat GPT made up cases. I was operating under a misperception.

I mean, all of that is problematic, but it’s basically the judge getting Schwartz on record that he didn’t do the most basic work that he should have been doing. So the judge pressed a little deeper, suggesting that any reasonable lawyer would do more to verify the cases:

Judge Castel: Mr. Schwartz, I think you are selling yourself short. You say your verify cases.

Schwartz: I, I, I thought there were cases that could not be found on Google.

Judge Castel: Six cases, none found on Google. This non existent case Varghese, the excerpt you had was inconsistent, even on the first page. Can we agree that’s legal jibberish?

Schwartz: I see that now. I just thought it was excerpts

Judge Castel: When Avianca said you cited non existent cases?

Schwartz: They said they couldn’t find them. I figured I’d go back – but I continued to be duped by Chat GPT. I wanted to be transparent to the court. I went to Chat GPT –

Judge: We’re not up to that.

And then things get really stupid. As the judge is exploring how a lawyer could get things this wrong, there is this ridiculously cringeworthy exchange:

Judge Castel: Avianca put your cases in quotations… You know what F.3d means, right?

Schwartz: Federal district, third department?

Judge Castel: Have you heard of the Federal Reporter?

Schwartz: Yes.

Judge Castel: That’s a book, right?

Schwartz: Correct.

Judge Castel: So how could you say you thought they were unpublished?

Schwartz: My unfamiliarity with Federal cases. The cite [site?] looked legitimate. I looked up the judge.

Judge Castel: Their reply was only 5 pages. What was your reaction?

Schwartz: The same

Okay, so Schwatz doesn’t practice in federal court, but, uh, it’s shocking that he appears unfamiliar with the Federal Reporter, or that “F.3d” means the third series of the Federal Reporter (also meaning that the case, in theory, if it existed, was published in… the third series of the Federal Reporter. It is not the “3rd department of the federal district”).

I’m trying to think of a more common analogy to explain how wrong this is, and it’s kind of like… asking a web developer what HTML stands for, and having them say it’s Hidden Treasure Mapping Logic.

Just saying: it’s bad.

The judge, who isn’t missing much, also called out that Schwartz’s affidavit used different fonts, and wondered how it was prepared such that the fonts changed throughout the document.

After the lawyers, again, begged for mercy, and Avianca reminded the court they just want the case dismissed, the judge closed the hearing and will issue a decision sometime soon.

One other side note: on Wednesday, someone also tried to file an amicus brief, trying to argue that the judge should be careful if he issues sanctions not to do so in a way that cuts off actual beneficial uses of legal AI tech. It’s a reasonable enough request, but district courts tend to hate amicus briefs, and in this case the problem with the lawyers was not their use of AI, but their failure to do basic lawyering around checking their cites.

Filed Under: ai, chatgpt, citations, generative ai, kevin castel, peter loduca, steven schwartz
Companies: avianca, levidow

FCC ‘Fines’ Right Wing Bullshitters Wohl, Burkman $5 Million For Voter Robocall Scam

Scams

from the this-is-why-we-can't-have-nice-things dept

It’s never fully appreciated the way we’ve let scammers, scumbags, and assorted bullshit artists hijack the nation’s top voice communications platform. Or that we’ve let marketing industry lobbyists slowly degrade the authority of the one U.S. regulator capable of actually doing something about it.

Case in point: the FCC this week announced that it has fined right wing propaganda and bullshit artists Jacob Wohl and Jack Burkman $5,134,500 for 1,141 illegal robocalls the duo made in a bid to confuse and mislead voters. More specifically, the FCC notes in a press release that the pair tried to scare marginalized voters in key neighborhoods away from voting by mail in a bid to boost Trump:

The robocalls in this case, made on August 26 and September 14, 2020, told potential voters
that if they voted by mail, their “personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card
companies to collect outstanding debts.” The recorded messages identified Burkman and Wohl by name and claimed to be made by “Project-1599.”

The problem, unfortunately, is this “fine” will likely never actually be collected. The FCC’s authority, boxed in after years of court rulings and lobbying by industries that don’t want their ability to annoy you constrained, is quite limited. It can issue fines, but it amusingly can’t actually collect them.

Actually collecting those fines falls to the DOJ, which historically either can’t track down the sleazebags in question, or can’t be bothered. For example, one study found that the FCC fined robocallers $208 million between 2015 and 2019, but only $6,790 (!!) was ever collected.

Activists and the FCC have argued for broader authority here, but our corrupt Congress has generally responded by doing the opposite and trimming FCC authority on most issues related to consumer protection (see: net neutrality, broadband privacy, media consolidation).

As a result, every six months the FCC comes out with some big announcement about how they’ve implemented some new half-assed effort to address robocalls. And while there has been some progress, the data still tends to speak for itself:

One reason is that the multiple industries that have shredded FCC authority and robocall rules via lobbying and legal victory have ensured the feckless bureaucrats at the FCC keep the focus fixated securely on scammers (not that we’ve addressed those either). When in reality, the vast majority of robocalls come from “legit” companies utilizing many of the same tactics as scammers:

The National Consumer Law Center (NCLC) has spent years providing insights and solutions on this problem. They issued a recent report that’s worth a read if you’re at all curious why we’ve allowed a major communications platform to be hijacked by garbage merchants and snake oil salesmen.

The group has testified for years how numerous industries have lobbied to ensure robocall rules have vast loopholes, so their own harassment of consumers (using many of the same tools “scammers” use) isn’t included in any solution. This, of course, includes debt collectors, who have been shown to harass people they already know can’t pay with sometimes hundreds of calls per day.

Another problem: for years (especially back when they netted money from call minute volume) telecom giants received a cut of the proceeds, so they were glacially slow in cracking down (much like they were on text message scams) because they were getting a cut of the proceeds. That led to decades of delays the industry-friendly FCC still kind of just pretends never happened.

That’s not to say the FCC hasn’t made some progress within the confines of their steadily eroded authority. They’ve glacially pushed the industry toward implementing more concrete anti-call spoofing tech, and they’ve taken aim at smaller sleazy middlemen if they know the case will be a slam dunk. But like most things consumer protection, the FCC’s lack of backbone is apparent.

But the broader problem remains that traditional industries have once again lobbied our federal consumer protection regulators into apathetic tatters, and we’ve normalized the end result. Most of us simply don’t answer our phones anymore, and act as if fixing this problem is some complex and impossible algebra. But the path forward was obvious for years, it just required shaking off corruption. And, well…

Filed Under: fcc, fraud, jack burkman, jacob wohl, lobbying, regulatory capture, robocalls, scams

US Patent Office Proposes Rule To Make It Much Harder To Kill Bad Patents

Patents

from the why-does-the-pto-want-more-bad-patents? dept

So, this is bad. Over the last few years, we’ve written plenty about the so-called “inter partes review” or “IPR” that came into being about a decade ago as part of the “America Invents Act,” which was the first major change to the patent system in decades. For much of the first decade of the 2000s, patent trolls were running wild and creating a massive tax on innovation. There were so many stories of people (mostly lawyers) getting vague and broad patents that they never had any intention of commercializing, then waiting for someone to come along and build something actually useful and innovative… and then shaking them down with the threat of patent litigation.

The IPR process, while not perfect, was at least an important tool in pushing back on some of the worst of the worst patents. In its most basic form, the IPR process allows nearly anyone to challenge a bad patent and have the special Patent Trial and Appeal Board (PTAB) review the patent to determine if it should have been granted in the first place. Given that a bad patent can completely stifle innovation for decades this seems like the very least that the Patent Office should offer to try to get rid of innovation-killing bad patents.

However, patent trolls absolutely loathe the IPR process for fairly obvious reasons. It kills their terrible patents. The entire IPR process has been challenged over and over again and (thankfully) the Supreme Court said that it’s perfectly fine for the Patent Office to review granted patents to see if they made a mistake.

But, of course, that never stops the patent trolls. They’ve complained to Congress. And, now, it seems that the Patent Office itself is trying to help them out. Recently, the USPTO announced a possible change to the IPR process that would basically lead to limiting who can actually challenge bad patents, and which patents could be challenged.

The folks over at EFF are rightly raising the alarm about just how bad this could be if it goes into effect.

The U.S. Patent Office has proposed new rules about who can challenge wrongly granted patents. If the rules become official, they will offer new protections to patent trolls. Challenging patents will become far more onerous, and impossible for some. The new rules could stop organizations like EFF, which used this process to fight the Personal Audio “podcasting patent,” from filing patent challenges altogether. 

The wording of the proposed changes seems to be written in a manner to be as confusing as possible. But there are a few different elements to the proposal. One part would limit who can bring challenges to patents under the IPR system, utilizing the power of the director to do a “discretionary denial.” For example, it would say that “certain for-profit entities” are not allowed to bring challenges.

Why? That’s not clear. But what difference does it make if the operation bringing the challenge to a bad patent is for-profit or not-for-profit? A bad patent is a bad patent, and often for-profit entities have the resources to actually hunt down the necessary prior art and to hire the best patent lawyers to bring a credible IPR challenge.

But the more worrisome change is this one:

Recognizing the important role the USPTO plays in encouraging and protecting innovation by individual inventors, startups, and under-resourced innovators who are working to bring their ideas to market, the Office is considering limiting the impact of AIA post-grant proceedings on such entities by denying institution when certain conditions are met.

Basically, if a patent holder is designated as an “individual inventor, startup” or “under-resourced innovator” then their patents are protected from the IPR process.

But, as anyone studying this space well knows, patent trolls often present themselves as all three of those things (even though it’s quite frequently not at all true). Patent trolling operations love to present themselves as the “small inventor,” even if they just got a terrible patent and sat on it waiting for someone to build something successful that — if you squint — can be presented in way that if someone doesn’t read carefully they might think violates the patent.

And, again, none of this should matter. A bad patent is a bad patent. Why should the USPTO create different rules that protect bad patents? If the patent is legit, it will survive the IPR process.

As EFF notes:

Many patent trolls would be exempt from IPRs altogether. The USPTO would prohibit anyone from challenging the patents of “small entities” and “under-resourced inventors.” But it’s trivially easy for even the most litigious patent trolls to portray themselves as “small inventors.” It happens all the time, and the USPTO rules buy into this sham. Many “inventors” are patent attorneys who have learned to game the system; they haven’t invented anything other than patents. Patent trolls that have sued hundreds of small businesses, and even public transportation systems, including Shipping and Transit LLC and various Leigh Rothschild entities, have claimed to be “inventor owned” businesses. 

If these rules were in force, it’s not clear that EFF would have been able to protect the podcasting community by fighting, and ultimately winning, a patent challenge against Personal Audio LLC. Personal Audio claimed to be an inventor-owned company that was ready to charge patent royalties against podcasters large and small. EFF crowd-funded a patent challenge and took out the Personal Audio patent after a 5-year legal battle (that included a full IPR process and multiple appeals). 

If you click through to the EFF page they show how you can provide comments to the USPTO on why it should not move forward with this plan, so if you’re concerned about giving patent trolls more power to abuse bad patents to stop innovation, please consider sending in a comment.

Filed Under: ipr, patent trolls, patents, uspto