California Court Denies Facial Recognition Pariah Clearview’s Anti-SLAPP Motion Over Its Web Scraping Activities

Legal Issues

from the yes,-but-mostly-no dept

Clearview wants to be the best in a shady business. As facial recognition tech has undergone increasing public scrutiny, Clearview has chosen to be the turd floating in the government surveillance punchbowl. Clearview scrapes public websites for pictures and data, and sells access to its immense database and the AI to exploit it to whoever wants it — something that has seen it sued, fined, and ejected from barely polite facial recognition society.

Clearview still seems to believe it’s a net good for society, despite society doing just fine before Clearview came along and scraped up all of its data. But is it? It seems unlikely. The law enforcement wins it touts in its promotional material appear exaggerated. So, it’s a failure on the public safety side of things. This leaves it only one other argument: that it’s not specifically illegal to scrape data from websites and sell data and AI to government agencies.

It’s a good argument, as far as that goes. No one should desire to see the CFAA become even worse. It has spent years being abused to harm researchers and third-parties who build their businesses on savvy exploitation of public data. The difference is Clearview sells this to governments, which may make it less trustworthy, but fully within its (USofA) rights.

Or so it would seem. Well within its federal rights, but perhaps not compliant with state laws and state constitutions. Clearview’s webscraping saw it sued in California state court for violating state privacy laws. In response, Clearview argued it had a First Amendment right to not only scrape websites, but sell the data haul to whoever wanted to purchase access.

In response to being sued for violating California law, Clearview decided it was a First Amendment champion. It tried to get this lawsuit dumped under the state’s anti-SLAPP law, which allows defendants a quick exit if they can show the lawsuit is nothing more than an attempt to silence commentary on issues of public interest.

Clearview is partially correct. This lawsuit was an attempt to prevent Clearview from doing what it does: scrape thousands of websites to obtain billions of data points… all without informing scraping victims that they’re being added to a database accessible by government agencies. But the scraping is perhaps protected under the law, even if the rest of what Clearview does isn’t.

This recent California court decision [PDF], highlighted by Daphne Keller on Twitter, says Clearview may be right about some stuff, but not the stuff that matters in anti-SLAPP motions.

The court says it’s factually undeniable what Clearview does:

Clearview collects the images and biometric information of California residents (including Plaintiffs) without notice or consent by scraping images from websites and platforms, such as Facebook, Twitter, and Venmo.

It also points out Clearview has voluntarily agreed to stop doing certain things in response to being sued in multiple states.

Clearview is legally bound by a Consent Judgment not to license the version of its app that uses the facial vector database to non-government entities, unless otherwise permitted to do so by law.

The crux of the issues examined by the court:

[T]he claims implicate the public policy issue of whether a private corporation can collect, analyze, compile and maintain information on persons for sale to California law enforcement when it would arguably be unlawful (potentially unconstitutional search) if California law enforcement operated a similar program to collect, analyze, and maintain data to identify persons from photographs.

Whether or not use of Clearview AI is lawbreaking by proxy is at stake here, along with Clearview’s ability to continue offering services to California government agencies. Clearview responded to the lawsuit by asking the court to dismiss it under California’s anti-SLAPP law. The court recognizes there are some First Amendment implications here, but says Clearview’s counterpoints aren’t persuasive.

Defendant has not demonstrated that the claims arise from its actions “in furtherance of” free speech “in connection with” a public issue.”

That is explained in more detail shortly thereafter:

First, the biometric analysis and maintenance of the database and the subsequent sale of that information is not “in connection with an issue under consideration or review by a government entity.” (CCP 425.16(e)(2).) The sale of the information is the sale of a law enforcement tool like the sale of cars, uniforms, and computer systems to law enforcement. The sale is not for the purpose of supporting the deliberation of a government body on an issue under consideration or review. It would be a stretch to describe the police investigation of each and every discrete crime as the “consideration or review” of a matter by a government entity.

Second, the biometric analysis and maintenance of the database and the subsequent sale of that information is not “conduct in furtherance of … the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP 425.16(e)(4).)

The biometric analysis and maintenance of the database is not “speech.”

Seeking to shut down Clearview’s web scraping and AI sales is not the equivalent of silencing speech about issues of public interest, even if it’s connected to issues of public interest. What matters is what is being expressed (if anything).

Crime is a public issue, but that does not mean that any sale of any good or service to law enforcement is a contribution to the public discussion…

The lawsuit alleged Clearview misappropriated residents’ info in order to profit from this illicitly (under state law) obtained data. The court says this violation occurred, which makes it almost impossible to dismiss with a motion claiming Clearview is being somehow illegally silenced by the lawsuit.

Clearview’s “appropriation” was the taking of the likenesses from the internet.

Clearview then “used” the likenesses. Clearview was free to use the likenesses, to pass them along, or to participate in commentary on social media on matters concerning the likenesses. That would have been “use” without “advantage.”

Clearview used the likenesses to its “advantage, commercially or otherwise.” The “advantage, commercially or otherwise” consisted of the of the use of the images as the raw material for its biometric analysis, the data in the database, and then as part of the finished product when Clearview sold its services to law enforcement.

All bad news for Clearview. Except for this part, which is good news for Clearview (at least in California). And it’s good news for every entity that scrapes data from websites for any number of reasons.

There is nothing unlawful about (1) scraping the internet for photographs and information.

As it should be. That act should be protected, whether under the First Amendment or any reasonable interpretation of the CFAA. What matters is what’s done with this information. In this case, it’s the packaging for resale to Clearview’s customers. That’s the “advantage” that puts Clearview on the wrong side of California law.

What matters here is that Clearview’s actions would be illegal if cops did it on their own. That Clearview acts as an intermediary does not make its conduct any less illegal. And since its actions fall outside of protected speech, it can’t try to dodge this lawsuit with an anti-SLAPP motion.

This isn’t about speech, as the court concludes. This is about violating California residents’ rights. That’s what has been alleged. Pretending this is about Clearview’s First Amendment rights doesn’t change anything. The lawsuit can continue.

Plaintiffs adequately allege a legitimate privacy interest, a reasonable expectation of privacy, and an egregious breach of social norms.

As has been argued by Clearview, its collection may be constitutional, at least in states where laws haven’t created additional privacy protections that outweigh Clearview’s rights. But that doesn’t work here. Clearview does more than collect. It packages and sells what it collects, all without any consent from the collected. That’s not protected speech. And someone alleging it isn’t is not trying to keep Clearview from participating in discussions about issues of public interest. They just want Clearview to quit fucking around with their data, something that’s definitely not covered by the Constitution.

Filed Under: anti-slapp, california, facial recognition, image scraping
Companies: clearview, clearview ai

If Twitter Goes Down In Flames, What Happens To Its Huge And Historically Important Collection Of Tweets?

Culture

from the something-to-start-thinking-about dept

This blog has just written about the likely loss of a very particular kind of culture – K-pop live streams. Culture is culture, and a loss is a loss. But potentially we are facing the disappearance of a cultural resource that is indisputably more important. I’m talking about Twitter, and its vast store of tweets that have been written over the last 16 years of its existence.

We have rather taken Twitter and its key role in modern culture and public discourse for granted. But the recent purchase of the company by Elon Musk, and his idiosyncratic decisions since doing so, have (a) raised the possibility that Twitter will go bankrupt, as Musk himself has allegedly said, and (b) made people realize how much of value would be lost if that happens.

There is no ongoing independent backup of Twitter. There was to begin with: the US Library of Congress (LoC) signed an agreement allowing it to create a complete Twitter Archive for a while. That ran for 12 years, during which time billions of tweets were collected. As an update on the Twitter Archive explained in 2017, the decision not to collect everything thereafter was taken because of the dramatic increase in the number of tweets; the fact that the Library of Congress only received text, but many tweets were more visual than textual; and the increase in potential tweet length from 140 to 280 characters. The LoC also noted that its partial collection already “documents the rise of an important social media platform”, and that in any case, it does not aim to “collect comprehensively”. As a result, it started adding tweets on a more selective basis. It concluded:

The Twitter Archive may prove to be one of this generation’s most significant legacies to future generations. Future generations will learn much about this rich period in our history, the information flows, and social and political forces that help define the current generation.

I would argue that this was still true after the archive was halted; whether it will be in the future, remains to be seen. Nonetheless, at the very least we are faced with losing many, perhaps most tweets from the years 2017 until 2022. That’s because as far as I am aware, no one else is receiving a full feed of tweets in the way the Library of Congress was. The indispensable Internet Archive holds snapshots, but there is no guarantee it has a particular tweet.

Downloading and storing all tweets directly from the public Twitter service is not possible. That’s not so much for technical reasons – it would be a challenge but surely not beyond today’s advanced systems – but because of copyright. Twitter’s Terms of Service state:

You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

Making copies of billions of tweets without permission would be too risky for any organization to contemplate, given the huge costs involved in such a project. Obtaining that permission from hundreds of millions of Twitter users to make copies of their tweets would be a licensing nightmare. Whatever happens as a result of Elon Musk’s changes to the service, that copyright problem is not something that is going to disappear. As a result, what the Library of Congress rightly called “one of this generation’s most significant legacies to future generations” will always be at risk of disappearing forever, leaving the valuable but incomplete archive the LoC holds, but does not make publicly available.

Follow me @glynmoody on Twitter, or Mastodon. Originally posted to the Walled Culture blog.

Filed Under: archiving, elon musk, history
Companies: twitter

Canada Steals Cultural Works From The Public By Extending Copyright Terms

Copyright

from the stealing-from-the-public dept

We’ve said this before and we’ll say it again: it cannot make sense to extend copyright terms retroactively. The entire point of copyright law is to provide a limited monopoly on making copies of the work as an incentive to get the work produced. Assuming the work was produced, that says that the bargain that was struck was clearly enough of an incentive for the creator. They were told they’d receive that period of exclusivity and thus they created the work.

Going back and retroactively extending copyright then serves no purpose. Creators need no incentive for works already created. The only thing it does is steal from the public. That’s because the “deal” setup by governments creating copyright terms is between the public (who is temporarily stripped of their right to share knowledge freely) and the creator. But if we extend copyright term retroactively, the public then has their end of the bargain (“you will be free to share these works freely after such-and-such a date”) changed, with no recourse or compensation.

That makes no sense.

And yet, countries keep doing it.

Canada has quietly done it: extending copyrights on literary, dramatic or musical works and engravings from life of the author plus 50 years year to life of the author plus 70 years.

Quietly on November 17, 2022, and appearing online this morning, an Order in Council was issued on behalf of Her Excellency the Governor General, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage to fix December 30, 2022 as the day Bill C-19, Division 16 of Part 5 comes into force. What does this all mean? With the passing of Bill C-19 this past June, the Copyright Act was amended to extend the term of copyright for literary, dramatic or musical works and engravings to life of the author plus a period of 70 years following the end of the calendar year in which that author dies. What was unclear at the time of royal assent was WHEN exactly this would come into force — if on or after January 1, 2023, one more year of works would enter the public domain. Unfortunately, we now know that this date has been fixed as December 30, 2022, meaning that no new works will enter the Canadian public domain for the next 20 years.

This should be a huge scandal. The public has been stripped of its rights to share information for twenty years. Based on what? Literally nothing, but demands from heirs of deceased authors to continue to receive subsidies from the very public they just stripped the rights from.

It is beyond ridiculous that any country in the world is extending copyright in this day and age, rather than decreasing it.

Filed Under: canada, copyright, copyright term, copyright term extension, culture, public domain

Wherein The Copia Institute Tells The Supreme Court The Florida Social Media Law Is An Unconstitutional Mess That Needs Its Review

Free Speech

from the don't-wait-to-fix-this dept

The Copia Institute was back at the Supreme Court last week with a new amicus brief urging it to grant review of the Eleventh Circuit’s decision in NetChoice v. Moody. That case, if you remember, took issue with the Florida’s attempt to regulate the Internet with its social media bill (this was the one with the erstwhile “theme park exception.”). And that decision was largely a good one, with some strong language by the Eleventh Circuit explaining how platform moderation was a First Amendment-protected activity that states couldn’t mess with.

So since the Eleventh Circuit decision got so much right, why would we want the Supreme Court to review it? One big reason: because it only got most of it right. We noted at the time several ways where the Eleventh Circuit failed to recognize how certain provisions also offended the First Amendment at the same time it recognized when others did. They matter too, especially since the Eleventh Circuit dissolved the injunction over them.

Another reason is that Florida is petitioning for review over the parts of the Eleventh Circuit decision it lost on. And as long as the Supreme Court may be tempted to grant that review, it made sense to support the NetChoice cross-petition urging review of the bits where it had lost (those parts, as discussed above, where the Eleventh Circuit hadn’t recognized the First Amendment violation).

It would also help to get some clarity over these issues sooner before later because they keep coming up. We still have the NetChoice challenge over the Texas social media law to deal with, where the Fifth Circuit completely ignored the First Amendment concerns involved with state attempts to regulate Internet platforms. A further petition to seek review over that case may yet come, and it may be better for the Court to review all these regulatory attempts contemporaneously, rather than provide more piecemeal review one at a time, because ultimately the same constitutional issues are in play in each such law, regardless of how they are couched in their own statutory language.

Meanwhile, in the next few months the Court is planning to hear two cases on the merits involving Internet platforms: Gonzales v. Google and Twitter v. Taamneh. Those cases more directly implicate Section 230, but it is nevertheless good to take a moment now to remind the Court in these briefs how operative the First Amendment is over the provision of platform services – after all, much of what people say they don’t like about Section 230 is actually what they don’t like about the First Amendment, and courts should be dissuaded from taking out that frustration on the statute, particularly when that statute is so critical to vindicating the platforms’ First Amendment rights. Hopefully this amicus brief illustrating why those First Amendment rights need protecting can help raise the Court’s awareness before it adjudicates these other cases.

As per usual, the Copia Institute filed this brief wearing its two hats: as a longtime commentator on all these issues, and as someone whose own expressive activity stands to be affected by the Florida statute. Potentially directly, because there’s little assurance that the statute couldn’t reach it – and if not this statute, then the next one to get on the books – and because, to the extent that it chills the ability of platforms to remain available to facilitate user expression, that also means that the Copia Institute’s user expression will take a hit. We may, for instance, want to post a link to Techdirt posts on social media platforms to encourage people to come read them, but if there are no social media platforms, it will be hard to reach readers to make them aware of our posts. The irony is that the Florida law claims that it’s about supporting journalistic enterprises, of which Techdirt is one, but as we explained to the Court in our brief, ultimately its meddling will do us no favors. Florida’s meddling is unconstitutional, as is Texas’s, as is the next terrible bill being cooked up by a legislature. Expression is never advanced by eroding the First Amendment. And now is a good time for the Supreme Court to say so.

Filed Under: 11th circuit, 1st amendment, content moderation, florida, free speech, section 230
Companies: netchoice

Ohio Cops Decide First Amendment Doesn’t Exist, Arrest Newspaper Editor For Committing Journalism

Free Speech

from the must-be-the-part-of-Ohio-that-isn't-in-the-USA dept

Ohio cops just can’t seem to get their head around First Amendment protections. A case hopefully en route to a Supreme Court review involves Parma, Ohio cops who decided it was completely legal to arrest a town resident for creating a clearly satirical Facebook page that suggested the Parma PD was offering free abortions in a roaming van and promoting a “pedophile reform” event.

In another case, a cop temporarily managed to obtain an injunction forbidding people from publishing his name while he sued several Cincinnati residents for libel for suggesting he might be a racist. That cop’s name is Ryan Olthaus and he has a long history of use of force complaints.

And, in yet another case, a woman was arrested by Ohio cops for repeating a false rumor that a gun had been found at a school. She did not originate the rumor. She just repeated it. And for that, she was sentenced to 180 days in jail and stripped of access to social media sites for a year.

So, it’s perhaps unsurprising that this state is home to yet another egregious violation of First Amendment rights. An ongoing murder trial involving multiple defendants has resulted in the editor of small local paper being arrested for performing an act of journalism.

As Adam Steinbaugh’s post for FIRE points out, courts permit recordings and broadcasting of criminal trials. There are a few exceptions. The relevant exception here is that witnesses can request their testimony not be recorded or broadcast and, if the court agrees, this permission is revoked during this testimony.

One of the defendants in this trial — Jake Wagner — made this request and had it granted. Nonetheless, someone attending the trial recorded it and passed it on to Derek Myers, who runs the Scioto Valley Guardian. That act of fully protected First Amendment expression led to this:

On Oct. 28, the Guardian published ten minutes of audio — recorded by someone else in violation of the court order — of Jake Wagner’s in-court testimony, with this note:

The Guardian received a portion of Jake Wagner’s testimony on his first day on the witness stand. The Guardian wants to disclose that the audio was not recorded by a member of the media and was submitted to the Guardian’s newsroom by a courthouse source who is authorized to have their cell phone in the room.

Myers was arrested on Nov. 1 pursuant to a warrant obtained by Sgt. Joshua Carver of the Pike County sheriff’s office. That same day, Sgt. Carver seized Myers’ laptop from a room at the courthouse used by journalists reporting on the trial.

There’s more. When Myers entered the courthouse the following day, a deputy ordered him to relinquish his cellphone. At first, the deputy claimed they were forbidden in court rooms (they aren’t). When Myers pointed out he was headed to the journalists’ room, rather than the courtroom itself, the deputy then claimed he had a warrant authorizing the seizure of the device. (He didn’t.)

FIRE went the extra mile and obtained the warrants acquired by the Pike County Sheriff’s Office. As Steinbaugh points out, the search warrant [PDF] had already expired by the time it was executed on November 1. (Unfortunately, it being only 24 hours out of date means good faith will probably be awarded, at least in terms of this issue during the lawsuit that’s almost certainly in the works.)

More importantly, the search warrant only authorized the seizure of Myers’ laptop. It said nothing about his phone. (That’s going to be harder to surmount when the Sheriff’s Office attempts to defends its actions.)

It’s not a matter of the warrant being imprecise about what the Sheriff’s Office was looking to seize and search. Two paragraphs at the opening of the warrant make it clear the office wanted access to the “contents of the computer,” as well as any internal and external drives capable of containing information. Another paragraph later in the warrant provide a physical description of the only device sought by investigators:

Memory storage located in/on a silver/grey in color MacBook laptop (more fully show in Exhibit A) found in the media room of the Pike County Court of Common Pleas.

So, nothing about a phone until a deputy unilaterally decided he was legally allowed to take it simply because Myers refused to voluntarily hand it over.

And even if the warrant is still deemed valid (at least in terms of its apparent expiration, if not its scope), it would still be a warrant unsupported by longstanding law. And it would definitely be a violation of this journalist’s rights.

As the Committee to Protect Journalists rightly pointed out in condemning the arrest and searches, the federal Privacy Protection Act and an Ohio state statute shield Myers from searches of journalistic “work product.” The federal law, in particular, prohibits law enforcement from effectuating any search or seizure of a journalist’s work product unless the journalist has committed a criminal offense other than “receipt, possession, communication, or withholding” the information or materials at issue.

Then there’s the arrest warrant [PDF]. The warrant claims Myers violated the law by ignoring a court order forbidding Myers or anyone else from recording Jacob Wagner’s testimony. That the court’s order was undoubtedly violated is true. That the paper’s editor was the violator is, at the very least, an arguably false claim. The Sheriff’s Office had Myers arrested, but it did so citing a statute that suggest the Office doesn’t actually believe Myers created the illegal recording.

The felony charge listed reads:

DEREK JOEL MYERS did unlawfully and purposely use, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the contents ‘were obtained through the interception of a wire, oral, or electronic communication in violation of sections 2933.51 to 2933.66 of the Revised Code, in violation of Section 2933.52(A)(3) of the Ohio Revised Code.

That accusation says Myers received an illegally-obtained recording. The publication, however, is covered under this law. It’s covered under the First Amendment. Unless the Sheriff’s Office has probable cause that Myers created the recording or was directly involved in ensuring the testimony was illegally recorded, the arrest warrant is also invalid. The court order only forbade the media from recording the testimony. It did not forbid (nor could it) the publication of any illicit recording.

That’s definitely going to cause problems for this prosecution, should prosecutors decide to add themselves to the list of civil rights lawsuit defendants by pursuing this. And it’s going to cause more problems for the involved law enforcement officers, who should have known that targeting a journalist for publishing information in the public’s interest would place them on the wrong side of the Constitution. This wasn’t wiretapping. This was journalism.

And yet, Myers is still considered an accused felon. Myers wants this to go to trial because he is in the right. The reality is that Myers has had to post a $20,000 bond, must submit to alcohol/drug tests [???], and keep his schedule open to attend any court hearings until the charges are either dropped, or he’s cleared by the court.

Why must he do this? Because the government is clearly in the wrong, yet has the luxury of being wrong until proven otherwise. The government suffers no financial loss or restrictions of its powers. It’s only Myers being punished for being good at his job. This is not the way things are supposed to work here in the United States. This is happening because law enforcement is more willing to do what it wants than do what is right.

Filed Under: 1st amendment, derek myers, free speech, jake wagner, ohio
Companies: scioto valley guardian

Daily Deal: OMNIA Q5 5-in-1 Wireless Charging Station

Deals

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

The OMNIA Q5 power station is specifically designed to support iPads, Apple Watch, iPhones, AirPods, and Apple Pencil simultaneously while providing optimum charging ability, storage convenience, and ergonomic with the necessary safety features in place. It’s on sale for $90.

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

Musk Does Have Some Good Ideas: Encrypting DMs Would Be Huge, But…

Privacy

from the it's-not-as-easy-as-he-thinks dept

We’ve been somewhat critical of Elon Musk‘s tenure as Twitter owner and CEO (I think for fairly good reasons), but he does have a few good ideas. Lead among them, wanting to enable encrypted direct messages (DMs). He’s mentioned it before, but also had this slide in a recent internal presentation he gave:

There’s not much to go on with that slide, given that… it just says “Encrypted DMs” and appears to have an image of… existing, unencrypted DMs.

However, Jane Manchun Wong, who is basically a wizard in sniffing out new features and new code being tested on Twitter (and elsewhere) notes that she’s seen snippets of code referencing Signal Protocol for encrypted DMs already showing up inside the Twitter iOS app.

Of course, it appears that’s old code. Like so many things that Elon trots out, these were ideas that Twitter was already exploring, though it did appear that encrypted DMs was shelved. Jane had also spotted encrypted DM testing all the way back in early 2018 as well.

That said, it looks like the new code… is just the old code that Twitter had worked on being dusted off. Former Twitter engineer Brandon Carpenter notes that the code that Jane spotted was really his own code from that 2018 test, quote tweeting Jane and noting “Oh look! Some code I wrote four years ago.”

For what it’s worth, Brandon also laid out one of the issues they had back in 2018, which was in the process of trying to obtain a license from Signal, Moxie Marlinspike, Signal’s founder, ghosted them for weeks when he just decided to go sailing without telling anyone. I’ve seen some people question why anyone would need a license from Signal, considering that Signal Protocol is an open protocol that anyone can use. But, it’s not easy to do it right, and there are many, many reasons to get Signal’s seal of approval before trusting the encryption.

On a… let’s say related note… Twitter’s former Chief Information Security Officer, Lea Kissner wrote out a very interesting and useful thread about the general pitfalls of trying to implement end-to-end encryption, especially in a web app. Suffice it to say it is not easy, and is not something you rush through or things are going to go very, very badly. There are big questions to consider, including how do you handle lost keys, how do you handle stolen keys, how do you handle abuse, and much, much more.

This has all proven challenging for others as well, including Facebook’s very slow efforts to roll out more end-to-end encryption among its various messaging products with a much larger team.

Still, it’s good that Elon considers this important, and one hopes that he can actually get it done, and at least implement less bad answers to some of the many questions that have stymied other teams looking to implement end-to-end encryption. Of course, it may also mean being willing to stand up against government demands and threats regarding encryption, something that we don’t know if Elon is actually willing to do.

On the whole, though, even as he’s made many other mistakes, it’s worth celebrating his stated support for more encrypted messaging.

Filed Under: e2ee, elon musk, encryption, end to end encryption, signal protocol
Companies: signal, twitter

U.S Cable TV Companies Quietly Bled Another 785,000 Paying Customers Last Quarter

Failures

from the couldn't-have-happened-to-a-nicer-fella dept

The “cord cutting” phenomenon the cable and broadcast sector long denied or downplayed simply shows no sign of slowing down. According to the latest data by Leichtman Research, the top U.S. pay TV companies lost another 785,000 subscribers last quarter as younger Americans continue to shift to streaming video, over the air antennas, or free services like TikTok and YouTube.

While alternative pay TV services (streaming on demand and live streaming) services saw a 701,000 subscriber jump during the third quarter, traditional cable companies lost an estimated 981,674 subscribers depart for greener pastures. Phone companies (AT&T, Verizon) and traditional satellite TV companies (DirecTV, Dish) lost 701,000 paying subscribers during the quarter.

Leichtman’s analysis never really answers why consumers continue to flee traditional cable (high prices, bloated channel bundles, bullshit fees, comically terrible customer service), instead only focusing on the fact that this was the third best quarter for streaming services in history:

“Spurred by a strong quarter from Internet-delivered vMVPD services, pay-TV net losses of about 785,000 in 3Q 2022 were more modest than in the first two quarters of the year,” said Bruce Leichtman, president and principal analyst for Leichtman Research Group, Inc. “Not including YouTube TV, which does not regularly report subscriber totals, vMVPDs had nearly 900,000 net additions in the quarter. This was the third most quarterly net adds ever for the top publicly reporting vMVPD services.”

Things are particularly tricky for companies like Comcast and Charter. Generally speaking, their monopoly over broadband access across vast swaths of the country (83 million Americans live under a broadband monopoly) means they can simply recoup their losses by charging captive broadband subscribers more money. Usually this is done via bullshit broadband fees and bullshit bandwidth usage caps.

But both companies are starting to see a small but meaningful surge in competitive threats coming mainly from two fronts: publicly-owned utilities, cooperatives, and municipalities buoyed by $50 billion in looming COVID relief and infrastructure broadband funding, and wireless companies selling fixed home 5G service.

Neither competitive threat is quite large enough to yet drive wholesale change in the uncompetitive broadband industry, but it’s just enough to make recouping losses on the video side just a bit more annoying for everybody’s favorite, deeply entrenched, government-coddled, natural monopolies.

Filed Under: cable, cable tv, competition, cord cutting, customer service, prices, streaming, video

Appeals Court Denies Immunity To Officers Who Fabricated Evidence To Wrongfully Convict A Man For Murder

Legal Issues

from the something-that-happens-far-too-often dept

When cops decide they’ve found the right perp, very little can persuade them to look elsewhere. This tunnel vision has the tendency to take years of freedom away from innocent people. And it would be terrible enough if officers simply refused to consider exonerative evidence. But in this case (like far too many others), the investigators went beyond simply ignoring other evidence to falsifying the “evidence” they had to ensure the person they picked out for the job ended up in jail.

Hillel Aron of Courthouse News Service has the background on this decision [PDF] handed down by the Tenth Circuit Court of Appeals.

In 1999, Floyd Bledsoe, a 23-year-old farmhand, was living in Jefferson County, Kansas, with his wife Heidi, their two young sons and Heidi’s 14-year-old sister Camille Arfmann. Bledsoe’s 25-year-old brother, Tom, lived close by. Tom was “partially deaf” and had “certain intellectual limitations,” according to the lawsuit Floyd Bledsoe would later file, as well as a “history of troubling sexual behavior that included pursuing young girls.”

On Nov. 5, 1999, Camille went missing. Two days later, according to Bledsoe’s lawsuit, Tom told both his Sunday school teacher and his parents that he had killed her. Tom’s parents hired an attorney, Michael Hayes, who took Tom to the Jefferson County Sheriff’s Department that same day. Tom told investigators how he killed Camille and where her body could be found. Hayes turned over the murder weapon — a recently purchased 9 mm handgun. Tom was arrested and charged with homicide.

But Tom would soon change his story, recanting his confession and accusing his brother of the murder.

That led investigators to go after Floyd Bledsoe. And once they were focused on Floyd, they forgot all about Tom. Not only did they refuse to consider his recanting might be a lie, they falsified evidence to ensure the charges against Floyd stuck. Here’s how it started:

Shortly before Tom’s staged recantation,” Tom’s defense attorney “Hayes sought [Bledsoe] out and told him that Hayes was taking Tom off the ‘hot seat’ and putting [Bledsoe] on, or words to that effect.” On November 12, a Kansas Bureau of Investigation (“KBI”) officer, Defendant Johnson, administered lie detector tests to both Tom and Bledsoe. During his exam, Tom recanted his confession and incriminated Bledsoe. But Tom “failed the question” of whether he shot Camille, and was so overcome with guilt immediately after the lie detector test that he confessed again to killing Camille. Nonetheless, the KBI officer told Tom that he should continue lying to implicate Bledsoe.

Floyd Bledsoe, however, passed his lie detector test. KBI investigator Johnson stepped in again to interfere with the investigation.

Defendant Johnson falsified the results, however, inaccurately reporting that Tom had been truthful in denying his involvement in the murder, while Bledsoe had been deceptive in denying that he was involved. Based on those false polygraph results, the prosecutor dropped the charges against Tom…

Tom’s story was the “central piece” of the prosecution’s evidence during Floyd Bledsoe’s trial. According to Bledsoe, prosecutors withheld anything tying Tom to the crime, fabricated a statement from Floyd that undercut his alibi, did not disclose inculpatory statements made by Tom to Floyd’s lawyer, and refused to search Tom’s home or collect any other physical evidence that might have linked Tom to the murder.

After sixteen years in prison, DNA testing cleared Floyd and implicated Tom Bledsoe. Tom Bledsoe committed suicide shortly after this evidence was obtained, leaving behind a suicide note apologizing for framing his brother — a note that mentioned the county attorney (Jim Vanderbilt) “made him do it” and told him to “keep his mouth shut.”

Floyd Bledsoe sued the involved officers for violating his rights. The lower court refused to grant immunity to the officers, noting that the allegations raised by Bledsoe discussed police actions clearly established to be unlawful. The Tenth Circuit Appeals Court arrives at the same conclusion.

The officers raised several arguments for being allowed to walk away from this wrongful conviction. The court doesn’t like any of them, including this attempt to portray the railroading of an innocent man as nothing more than the good faith efforts of law enforcement officers just trying to do their job.

Appellants assert that Bledsoe’s claims are facially implausible because there is an equally possible innocent explanation for their charging Bledsoe—that they honestly, but mistakenly, believed he had killed Camille and that, at most, they were negligent in investigating the crime, which is not actionable under § 1983. […] Similarly, Appellants assert that they are entitled to qualified immunity because, at most, they were mistaken in believing Bledsoe was guilty of Camille’s rape and murder, and their investigation was at most negligent.

Wrong, says the Tenth Circuit. What Bledsoe alleges far exceeds the innocent actions of cops mistakenly going after the wrong perp.

Those arguments mischaracterize Bledsoe’s allegations. Bledsoe alleges that Defendants fabricated false evidence against him, knowingly suppressed exculpatory evidence that would have proven his innocence, and facilitated his arrest, pretrial detention and trial without probable cause to believe he was guilty. None of those alleged actions, by definition, can be done mistakenly or “innocently.”

It’s pretty tough to “innocently” ignore a suspect’s multiple confessions, failed lie detector test, and previous interactions with the murder victim. In fact, the court says, there’s enough in Bledsoe’s allegations to suggest the opposite of innocence: a conspiracy to violate his rights, one participated in by officers, investigators, and prosecutors.

Bledsoe can move forward with his lawsuit. All but one claim survives the multiple defendants’ appeal of the lower court ruling.

For the foregoing reasons, then, we conclude that Bledsoe adequately alleged that each Appellant participated in depriving him of his constitutional rights and that, except for the failure-to-intervene theory, the alleged constitutional violations were clearly established by 1999. Said another way, except for the failure-to-intervene claim, each Appellant was on notice in 1999 that their conduct, as Bledsoe has alleged it—suppressing exculpatory evidence that would have shown Bledsoe’s innocence, fabricating evidence to use against him, and using that evidence to arrest, detain and prosecute him for a crime he did not commit—was unconstitutional. The district court, thus, correctly denied each Appellant qualified immunity on Bledsoe’s substantive constitutional claims, and on his conspiracy and personal participation theories of liability.

This puts Bledsoe closer to obtaining some form of justice for the injustice he spent 16 years subjected to. And this overwhelming denial of qualified immunity to multiple law enforcement defendants on multiple counts will perhaps result in a settlement being offered before this goes much further in court — something that may force the involved entities to hand over evidence showing how much they screwed this innocent man. And that evidence may show this sort of behavior was routine. There’s no reason to believe it isn’t. Everyone sued here seemed pretty comfortable railroading an innocent man, which suggests violating rights was just considered part of the job.

Filed Under: 10th circuit, evidence, fabricated evidence, floyd bedsoe, kansas, kbi, qualified immunity, tom bledsoe

The Czech Republic’s Proposed Version Of Upload Filters Has A Bad Idea That Could Become A Great One

Copyright

from the puzzling-through-upload-filters dept

A clear demonstration that the EU Copyright Directive is a badly-drafted law is the fact that it has still not been implemented in national legislation by all the EU Member States three years after it was passed, and over a year after the nominal deadline for doing so. That’s largely because of the upload filters of Article 17. The requirement to block copyrighted material without authorization while fully preserving users’ rights is probably impossible to put in place in any straightforward way. As a result, national legislators have had to come up with various kinds of approximations when drawing up their local laws.

Over on the Communia blog, Paul Keller has a good exploration of how the Czech Republic is tackling the issue. The current Czech proposal is particularly interesting because it is one of the first to be available after the EU’s top court, the Court of Justice of the European Union (CJEU), brought a little clarity on the safeguards that need to be included in national implementations of Article 17. Notably, the language of the latest version of the Czech law:

…inserts one of the core findings of the CJEU ruling — that platforms can only be required to detect and block content on the basis of the information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by the platforms — into the Czech implementation. While it does so by referencing concepts developed by the [Advocate General in his opinion on the CJEU case], instead of the criteria from the final judgement, it is a welcome addition that will offer a better protection to users’ rights than the literal implementation [originally] proposed by the government.

Another innovation by the Czech lawmakers rightly tries to address the problem of platforms that repeatedly block or remove lawful user uploads. Unfortunately the way it proposes to do that is to shut down the entire platform. As Keller writes:

While it provides a powerful incentive for platforms not to overblock, invoking this remedy would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform.

So what could a more reasonable — and less harmful— remedy look like? What if instead of threatening to shut down the offending platform, [it] threatened to shut down the upload filters instead: If it would prohibit the provision of the automated content recognition (ACR) system for the purpose of blocking or removal of user uploads?

Shutting down upload filters that overblock is a really good idea, since the algorithmic filters lie at the heart of the problem with Article 17. Moreover:

if the scope of the injunctive relief would be limited to banning the continued provisions of overzealous upload filters, the proposed Czech implementation of Article 17 could even become a template for other Member States seeking to bring their implementations in line with the requirements of the CJEU while otherwise staying relatively close to the text of the directive.

Let’s hope the Czech Republic shows the way by adopting Keller’s suggestion, and that other EU countries follow. It won’t turn the Copyright Directive into a good law – nothing could do that – but it will blunt some of its worst effects.

Follow me @glynmoody on Twitter, or Mastodon. Reposted from the Walled Culture blog.

Filed Under: article 17, cjeu, copyright, czech republic, knowledge, overblocking, upload filters