This Week In Techdirt History: September 18th – 24th

Techdirt

from the back-in-the-day dept

Five Years Ago

This week in 2017, the Senate was moving ever closer to passing SESTA, as it held a hearing that showcased the issues with the bill. We wrote about the many reasons it was so terrible, and noted that it put just about every single online service at risk, but Senator Blumenthal seemed perfectly happy for it to kill small internet companies. Meanwhile, the EFF resigned from the W3C over the secret vote that approved DRM in the HTML standard, the FCC was sued for ignoring a FOIA request about fraudulent net neutrality comments, and UK PM Theresa May made the insane demand that internet platforms remove “extremist content” within two hours.

Ten Years Ago

This week in 2012, we looked at a curious line in the original Copyright Act that appeared to explicitly outlaw disruptive innovation, while the Internet Archive took a stand based on another line in the Copyright Act and said it can archive and show every TV news program. The MPAA and RIAA were freaking out over the sale of foreign-purchased content, the woman who rose to infamy by repainting a fresco of Jesus was trying to claim copyright and demand money, and we looked at a strange anomaly by which a letter written in 1755 was somehow still covered by US copyright law.

Fifteen Years Ago

This week in 2007, the Canadian recording industry was suddenly coming out against the private copying levy it had fought so hard for, while the US copyright czar was praising the DMCA, the MPAA was continuing to try to convince ISPs to act as its private copyright police, and a Harvard bookstore was trying to claim copyright on book prices. A case involving an evangelical ministry raised the question of whether you can issue DMCA takedowns over content you’ve broadly declared to be in the public domain, while the Pirate Bay was preparing to sue entertainment companies for their constant attacks on it.

In The Beginning…

This week in 1997, another edition of the Up To Date newsletter that would become Techdirt went out on September 20th. It contained a huge number of items, including a fun little prediction about the possible emergence of an “appliance web” (I guess this was before someone coined the term “internet of things”).

Filed Under: history, look back

Fifth Circuit Grants Immunity To Cop Who Decided To Violently Arrest Family That Called To Report A Crime

Legal Issues

from the no-service,-no-protection dept

If you want your rights violated, all you need to do is call a cop. If you want your rights upheld, you’ll probably want your rights to be violated in another federal circuit.

We can learn something from this decision. But it won’t be things we want to learn. Instead, it shows how courts (especially this one) will protect cops who decide the best way to respond to a reported crime is to verbally and physically assault the people reporting the crime.

Here’s what started off this regrettable chain of events, as retold in the plaintiffs’ request for en banc hearing by the Fifth Circuit. (via the Volokh Conspiracy)

[Jacqueline] Craig called the police after her neighbor, Itamar Vardi, admitted to choking her son for accidentally dropping raisins on the sidewalk in front of Vardi’s home.

There was a criminal act here. And it wasn’t the “littering” the Fifth Circuit vaguely alludes to in its decision [PDF]. It was the alleged assault of child by an adult, one apparently provoked by an accidental act.

The mother did what she could to prevent things from escalating before law enforcement arrived.

Craig waited for law enforcement to arrive with several members of her household, including her daughter, then nineteen-year-old, Brea Hymond who began recording the encounter. While waiting for law enforcement to arrive, Craig can be seen in the recording preventing another man from confronting Vardi. She reassured the man that she had contacted police and asked that he allow law enforcement to deal with the assault on her son.

But escalation was apparently all the responding officer (William Martin) had in mind. Rather than attempt to address the alleged assault, he decided to go after those who had initially reported the crime. (A previous 911 was placed by a resident (presumably Vardi) who claimed many people were on his property “arguing” and “throwing trash.” This call was followed by Craig’s call reporting the assault.)

Officer Martin responded to the call on his own. He activated his body camera once he had arrived on the scene. He spoke to both parties — one who claimed to be the victim of littering and one who claimed her son had been physically assaulted. Martin chose sides.

When Martin arrived at the scene, he spoke with the male complainant; Martin then approached Craig to obtain her version of the events. Craig told Martin that the man had grabbed her son, A.C., after A.C. had allegedly littered. In response, Martin asked: “Why don’t you teach your son not to litter?”

Well, Officer Martin, why don’t you teach adults it’s not ok to choke other people’s children? An equally valid question given the circumstances. The child’s mom made a good point, but it was delivered to someone who had already apparently decided which side he was going to take.

Craig, visibly agitated, told Martin that it did not matter whether her son had littered, asserting that the man did not have the right to put his hands on her son. Martin replied: “Why not?”

At least the Fifth Circuit calls these questions by Officer Martin “provocation.” Craig was still irate but one of her daughters tried to de-escalate the situation. That effort was rewarded with more escalation by the officer.

Martin asked why she was shouting at him, to which Craig responded: “Because you just pissed me off telling me what I teach my kids and what I don’t.” Martin replied in a calm voice: “If you keep yelling at me, you’re going to piss me off, and I’m going to take you to jail.” Immediately after this exchange, J.H., Craig’s fifteen-year-old daughter, stepped between Craig and Martin and put her hands on Craig’s forearms. Martin grabbed J.H. and pulled her away from her mother.

Another family member showed up, Craig’s fourteen-year-old daughter, K.H. K.H. pushed Officer Martin. Martin unholstered his Taser and shoved Craig to the ground. He then walked Craig and J.H. to his cruiser. J.H. resisted and the officer “shoved her to the ground” and placed his hand on the back of her neck. K.H. reappeared and attempted to prevent Martin from placing her mother and sister in the car. The officer told her to move. She didn’t. He allegedly “struck” K.H. “in the throat” to move her. The officer then kicked J.H.’s leg when she refused to lift it into the back seat.

All this escalation provoked a response from teens in Craig’s household. The officer’s violent acts against these teens are considered to be nothing more than justified police work by Officer Martin. The court says one daughter (J.H.) was resisting arrest, justifying the shove, neck grab, and kick that followed. K.H. was obstructing the officer, which justified the strike to the throat.

But there was someone else present on the scene, and this is the qualified immunity issue being reconsidered here. Brea Hymond, another member of the family being arrested, recorded the encounter. Supposedly her recording of the arrest and her shouting was all the “resistance” necessary to justify Officer Martin’s use of force.

Here’s how this is depicted in the Fifth Circuit decision:

Throughout Martin’s encounters with and arrests of Craig and J.H., Hymond shouted at him while photographing what was transpiring from a close range. After placing Craig and J.H. in the back of his police car, Martin turned to Hymond to arrest her for interfering. He grabbed her by the wrist, put her up against the side of the police vehicle, and attempted to wrangle her cell phone out of her hands, which he eventually did. As he attempted to restrain her, Hymond tried to raise her hands and continued to scream at him. He handcuffed her and then put her up against the vehicle a second time. Although Hymond was in handcuffs, she continued to resist. Martin told Hymond that she was under arrest and asked if she understood, but she continued shouting without answering.

[…]

Hymond was also twisting her body as she shouted, and she walked away from the squad car at one point. Martin moved her back. Hymond continued shouting and twisting. She turned her head halfway to her left in an attempt to look at Martin. Martin then began asking Hymond for her name and age. As Martin continued to ask, Hymond began twisting her body more aggressively, her body briefly moved up and down as if she were jumping, and she moved her head even more to her left to look squarely at Martin. All the while she continued to shout at Martin.

Officer Martin called his lifting of Hymond’s handcuffed arms a “compliance technique,” one he swore to the court was not excessive. Hymond referred to it as a “hyper-extension” of her arms, apparently applied solely because she refused to identify herself, rather than as a response to any physical resistance.

Martin’s description of his actions (the one utilized by the Fifth Circuit) kind of grinds down the edges of what actually happened here, which gives credence (by subtle omission) that Hymond’s resistance demanded this application of force against a handcuffed person. Here’s what the record shows (and by record, I mean the multiple recordings), recounted with a bit more honesty and accuracy by the Institute of Justice in its petition for a rehearing.

After Martin secured Hymond’s mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone’s safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymond—who had been recording the incident from a distance and yelling at the officer that she was doing so—grabbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for “interfering.” But Martin’s display of authority did not end there.

While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin “kick her,” referring to J.H. In response, Martin started questioning Hymond: “How old are you? What is your name?” Hymond did not immediately answer his questions. So, with Hymond’s hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow,
purposeful staccato: “What. Is. Your. Name?”

That’s the crucial issue. The “pain control technique” was meant to prompt a response, rather than restrain a resisting arrestee. Even the Fifth Circuit court admits as much, even as it decides against the plaintiff, who, it says, simply did not provide enough evidence to counter what’s plainly observable on the officer’s body cam recording.

Nothing in our opinion should be construed as suggesting, much less holding, that officers may use pain maneuvers to force non-resisting individuals to respond to questioning. We hold only that, consistent with our precedent, an officer may use reasonable force on someone “actively” resisting arrest.

But it will be construed this way. It will be taken to mean officers can use force to provoke responses to questions, so long as they can claim the handcuffed person was still resisting arrest, even if the resistance was to nothing more than an officer’s questions.

In the end, we have an officer showing up to a scene to address two contradictory narratives before deciding that only one party (the one not alleged to have committed a violent crime) deserved his attention. After insulting the child’s mother and suggesting it was ok for adults to choke other people’s children for littering, he arrested the mother and one daughter for the apparent crime of not shutting up. And he arrested a third family member for the crime of not shutting up while recording the arrest. That arrest culminated in the apparent appliance of force solely for the purpose of making the third arrestee “respect” the officer by answering his questions. All of this is held to be constitutional by the Appeals Court. And whatever wasn’t strictly constitutional had never been clearly held otherwise by the court.

This is not the most egregious violation of rights given a pass by this court. But it’s just another in a long string of questionable calls that encourage excessive force deployment and misconduct by officers in the Appeals Court’s jurisdiction. Small wins like this generate ripple effects that will manifest later as truly horrifying abuses of people’s rights. And because the court has refused to generate precedent, these too will be forgiven.

Filed Under: 5th circuit, qualified immunity, william martin

The Most Famous Blunder Of Content Moderation: Do NOT Quote The Princess Bride

Content Moderation

from the inconceivable dept

We’ve written stories about people having difficulty recognizing people joking around quoting movies. Sometimes it ends up ridiculously, like the guy who was arrested for quoting Fight Club and had to spend quite some time convincing people he wasn’t actually looking to shoot up an Apple store. We’ve also talked a lot about the impossibility of doing content moderation well at scale. Here’s a story where the two collide (though in a more amusing way).

Kel McClanahan is a well known lawyer in national security/FOIA realm, and the other day on Twitter was lucky enough to have a discussion with Cary Elwes, the actor perhaps best known for his role as Westley in the best movie ever made, The Princess Bride. Kel did what one does after getting to have such a discussion, which was to celebrate it on Twitter.

As one does once the discussion turns to The Princess Bride, people start quoting the movie, which remains one of the most quotable movies of all time.

At one point in the ensuing conversation, Kel had a chance to trot out one of those quotable lines:

That’s Kel saying “I’ll most likely kill you in the morning,” the classic line (SPOILERS!) that Westley says was told to him each night by the Dread Pirate Roberts.

Take a guess what happened next? Yup.

That’s Twitter telling Kel that his tweet, quoting The Princess Bride violated its policies on “abuse and harassment” and asking him to delete it to get back into his account. Eventually Twitter reversed course and gave Kel his account back.

It’s easy to laugh this off (because, well, it is funny). But, it’s also a useful lesson in the impossibility of content moderation. In general, absent any context, “I’ll most likely kill you in the morning” sure could come off as a threatening statement, one that could be seen as abusive or harassing. In many scenarios, that statement would be abusive or harassing and would make users on a social media platform feel unwelcome and threatened.

But, in context, it’s quite clear that this is a joke, a quote from a funny movie.

The issue is that so much of content moderation involves context. This is something that critics of content moderation (both those who want more and those who want less) never seem to fully grasp. How does a content moderator (whether AI or human) have enough context to handle all sorts of issues like this? Do you need to train your AI on classic movies? Do you need to make sure that everyone you hire has seen every popular movie and knows them by heart and can recognize when someone is quoting them?

How do you deal with a situation where someone tries to hide behind the quote — but is actually threatening someone? (Not what Kel did here, but just noting, you can’t just say “okay, leave this line if it’s quoting a movie”).

The point is that it’s ridiculously complicated.

Many people — especially policymakers and the media — seem to think that content moderation is obvious. You take down the bad stuff, and you leave up the good stuff.

But a ridiculous amount of content moderation involves trying to interpret statements where you don’t (or, more often, can’t) know the actual context. Is the comment between friends joking around? Is the comment made to be threatening? Is there a deeper meaning behind it? Is it quoting a movie? What if it’s an inside joke between people?

These things are not easy because there is no easy answer.

And that includes “do nothing.” Because if you do nothing at all you end up in a world in which the world’s worst people embrace that to legitimately threaten and harass people.

This is why I keep saying content moderation is impossible to do well. It’s not that people aren’t trying hard enough. It’s that it’s literally impossible to fully understand all the context. And it’s silly to expect that anyone can.

I asked Kel if he had any thoughts on all this, and here’s his take on the whole thing:

I’m bemused that Twitter’s AI suspended me for a comment that the purported target of the “threat” liked and responded to, but I guess if I’m going to go to Twitter Jail for posting a movie quote, the best way to do so is with the OG movie star in the thread.

Filed Under: content moderation, kel mcclanahan, masnick's impossibility theorem, quotes, the princess bride

FDA Streisands NyQuil Chicken Into Being A Thing Based After Moral Panic Press Release

Overhype

from the streisanding-the-moral-panic dept

What is it with government agencies and the media teaming up to Streisand some dumb thing that almost no one has ever done or heard about, and turning it into a thing that everyone knows about?

Back in the heady days of 2018, the American Association of Poison Control Centers released a press release warning people about “potential poison exposure to single-load laundry packets.” The press release noted that poison control centers had “received well over 50,000 calls relating to liquid laundry packet exposures.” Within a day, the media turned this into “teens are daring each other to eat Tide pods.” And then there were tons of stories on the supposed “Tide pod challenge” that dumb kids were up to.

Except it was basically all nonsense. The actual data (which was also in that press release, though you had to get to the third paragraph — and who would ever bother reading that far?) was that a very, very small number of “intentional” exposure cases, and not all of those were ingestion. In fact, the grand total of idiots who intentionally put a Tide pod in their mouth was 86 over a period of two years. But, of course, with the press release and the media craziness, it was a story that was just too good to put into actual perspective. Especially because it allowed the media to jump into the kind of story it absolutely loves to write: kids doing dumb things on the internet.

The media eats these kinds of stories up.

And that’s true even though the number of videos on social media of teens calling people idiots for even daring to think of putting a Tide pod in their mouth far, far outnumbered the extraordinarily few videos of people actually putting a Tide pod in their mouth. As some people have noted, it’s way more dangerous to talk about teenagers as if they’re all too stupid to know not to put a Tide pod in their mouth.

But the media absolutely can’t resist.

Last year we wrote about lots of hand-wringing by the media and schools over a supposed TikTok challenge to slap a teacher. Except, again, it seemed mostly based off of a made up list that parents and school officials passed around on Facebook (not TikTok), and that the media blew up into such a big thing that schools literally shut down to avoid this made up threat of violence.

There was also the widely spread claim, without any support, that TikTok was giving teenagers Tourette syndrome (which, you know, is not how that works).

Anyway, that all takes us to this week, where the FDA (for whatever reason) released a consumer alert saying that people shouldn’t cook their chicken in NyQuil, calling it “a recent social media challenge.”

And, holy shit did this go viral:

You also had the usual “social media is evil” people who seem like they should know better, jump on board with the moral panicking:

But, of course, like all the earlier examples, this basically turned out to be a whole lot of hot air and nonsense, and adults freaking out over things that kids weren’t actually doing on social media.

As the fine folks at Buzzfeed tracked down, the whole thing started as a shitpost on 4chan where someone made a joke about cooking chicken in NyQuil. Also:

BuzzFeed News found some now-deleted TikToks from earlier this month in which people stitched themselves reacting with horror to those earlier viral videos, but did not make the chicken themselves.

In other words, it wasn’t ever a thing. It was a joke, and some people reacting to the joke.

And, then, of course, the FDA Streisanded the whole idea into becoming a thing.

According to data a TikTok spokesperson sent to BuzzFeed News, there were only five searches for NyQuil chicken content on the app on Sept. 14, one day before the FDA posted its statement. By Sept. 21, searches on the topic had increased by more than 1,400 times.

Nice work FDA and the gullible media. You did it. You made NyQuil Chicken into a thing that people knew about (and still, no one would be eating).

I’d like to hope that at some point people (and especially the media) would be a lot more skeptical of these kinds of moral panics, but I imagine we’ll all be dining on a gourmet meal of Tide Pods and NyQuil Chicken before that actually happens.

Filed Under: fda, moral panics, nyquil chicken, poison control, social media, streisand effect, the kids these days, tide pods

Federal Court Says Warrantless Seizure Of Vehicles Over Unpaid Fees Violates The Constitution

Legal Issues

from the illegal-parking-apocalypse-is-upon-us dept

A federal court delivers another blow to tireless enforcers of parking violations, ensuring we will soon be at the mercy of parking scofflaws everywhere.

First, it was the Sixth Circuit Appeals Court, ruling (twice!) that marking tires with chalk to track how long cars had been parked in spaces was an impermissible intrusion into people’s private property, comparable to the Fourth Amendment violation the US Supreme Court said occurred when officers warrantlessly placed a tracking device on a suspect’s car.

In between the two Sixth Circuit rulings, a California federal court said the same thing: find a less intrusive way to monitor parking. Chalking tires is a violation of rights.

More parking violations, more violated rights, says another federal court. The Southern District of New York, handling a lawsuit filed by a finance company against the city that towed and impounded a vehicle it held the lien on, has declared the warrantless seizure of cars over unpaid fines and fees to be unconstitutional. (via FourthAmendment.com)

Santander Consumer USA, which held the lien to Kate Mensah’s vehicle, sued both the City of Yonkers and its partner in these constitutional violations, APOW Towing.

Santander’s claims have already been settled. The decision [PDF] briefly discusses this victory before moving on to award the company nearly $100,000 in legal fees.

The background is this: Santander financed the 2017 Nissan purchased by Kate Mensah. The City of Yonkers towed and impounded the Nissan over an expired registration and unpaid parking tickets. Mensah requested a hearing over the fines, resulting in some of them being dismissed. The remaining amount ($1,367.63) had to be paid before the vehicle would be released from the impound. Mensah agreed to a payment plan and completed the payoff roughly two months after the car was towed.

However, before the car was towed, Mensah had defaulted on the loan, putting it back in Santander’s legal possession. The company, however, had not yet taken physical possession of the Nissan. So, when Mensah went to get “her” car, she was told Santander had taken possession of it. Santander did not actually remove the car from impound until October 2020.

Santander sued in June 2020, shortly after discovering where its car currently resided. In April 2021, Mensah filed a motion to intervene, claiming the city had unlawfully deprived her of use of her car from January 2020 to the date Santander repossessed the car.

Santander won this battle. It received an agreement and settlement from the city mandating that it immediately contact lienholders when towing and impounding vehicles.

Good stuff. But it gets better. The court also sided with Mensah, whose vehicle technically did not belong to her at the point it was towed by the city. The court says she still had a property interest in the defaulted vehicle.

Yonkers argues that Mensah lacks standing to challenge the seizure of the Vehicle because, having defaulted on her loan payments to Santander, Mensah lost any property rights in the Vehicle. The Court disagrees.

“The Second Circuit has held that a plaintiff who has purchased a vehicle through an
installment plan may retain a property right in the vehicle if [s]he has made substantial payments
on the agreement.” Maxineau v. City of New York (E.D.N.Y. June 18, 2013) Here, Mensah took out a $47,160 loan on the Vehicle, payable in $655 monthly installments. By the date of Santander’s repossession of the Vehicle, Mensah owed an outstanding balance of $29,951.55 on the loan. “[T]he Court concludes on this record that [Mensah] had enough equity in the Nissan to have a property interest in the vehicle under the Fourteenth Amendment.”

The city argued this was all constitutional because it was obligated to “protect the public from the operation of such expired and suspended vehicles.” How much the operation of untaxed vehicles actually endangers the public is never specified in the city’s arguments. And the city appears to shirk this stated duty once it has collected the fines that prompted the towing in the first place.

Although the release required Mensah to certify that she would re-register the Vehicle before operating it on public streets, once she paid the outstanding tickets, “any restraint by [Yonkers] for [Mensah] to obtain her Vehicle from [APOW] was removed and [Mensah] had no more obligation to [Yonkers] that would prevent [her] from obtaining her Vehicle and having her Vehicle returned to her by [Yonkers].” Thus, according to Yonkers’ policy, once the fines are paid, “[t]he vehicle is returned whether it is [registered] or not . . . .” Thus, Yonkers’ public safety argument fails, and the Court finds no other justification for Yonkers’ warrantless seizure of the Vehicle.

The seizure was unsupported. And then there are the problems with due process.

Turning to the Fourteenth Amendment, Yonkers claims that it provided Mensah with notice prior to the Vehicle being towed, but states that Mensah did not receive said notice because she “changed addresses without advising the City and New York State Department of Motor Vehicles.” However, Yonkers does not provide the Court with any documentation of such a letter, and, in fact, an employee with the PVB [Parking Violations Bureau] admits in an affidavit that because “the PVB only learned of th[e] Vehicle’s expired registration at approximately 1:00AM on January 24, 2020[,] there was no reasonable way for the PVB to notify [Mensah] to have her arrange for a tow of this Vehicle.”

The conclusion? Warrantlessly towing vehicles over unpaid fines and fees violates the Constitution. Twice.

In sum, like the defendants in Harrell, Rosemont, and Grimm, Defendants seized the Vehicle without a warrant, notice, or pre-deprivation hearing. And unlike in Duffy, Defendants did not warn Mensah in person or otherwise that they were going to tow the Vehicle. Thus, in the absence of pre-towing notice, Defendants’ warrantless seizure of the Vehicle violated the Fourth and Fourteenth Amendments, and Mensah is entitled to summary judgment on these claims.

This will undoubtedly be appealed. But the city of Yonkers should take a look at revising this process so it provides more Fourth and Fourteenth Amendment for vehicle owners. Otherwise, it may find itself having to terminate this form of parking enforcement completely if the next judiciary level decides to convert the lower court’s ruling into binding precedent.

Filed Under: 4th amendment, asset seizure, cars, fines, impound, parking, seizure, yonkers

Daily Deal: HP EliteBook 725G3 (Refurbished)

Deals

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

Impressively thin and light, the HP EliteBook 725G3 empowers users to create, connect, and collaborate, using enterprise-class performance technology that helps keep them productive in and out of the office. Combining high-performance technology with an AMD A10 processor, Intel Integrated HD Graphics, and 8GB RAM, this refurbished laptop gives you seamless browsing throughout. With a 44WHr Li-ion polymer battery, this refurbished 12.5″ laptop delivers up to 7 hours of performance for only a fraction of what a new device would cost you. It’s on sale for $230.

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

Did The 5th Circuit Just Make It So That Wikipedia Can No Longer Be Edited In Texas?

Content Moderation

from the bang-up-job,-andy dept

I wrote up an initial analysis of the 5th Circuit’s batshit crazy ruling re-instating Texas’s social media content moderation law last week. I have another analysis of it coming out shortly in another publication (I’ll then write about it here). A few days ago, Prof. Eric Goldman did his own analysis as well, which is well worth reading. It breaks out a long list of just flat-out errors made by Judge Andy Oldham. It’s kind of embarrassing.

But there is one point in the piece that seemed worth calling out and highlighting. There is something of an open question as to what platforms technically fall under Texas’ law. The law defines “social media platform” as follows:

“Social media platform” means an Internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images. The term does not include:

(A) an Internet service provider as defined by Section 324.055
(B) electronic mail; or
(C) an online service, application, or website:

(i) that consists primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider; and
(ii) for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of the content described by Subparagraph (i)

The operative “anti-censorship” provision only applies to such social media platforms that have “more than 50 million active users in the United States in a calendar month.” Leaving aside that no one really knows how many active users they truly have, the definition above sweeps in a lot more companies than people realize.

In its filings in the case, Texas had claimed that the only companies covered by the law were Facebook, Twitter, and YouTube. Judge Andy Oldham, in his ridiculous ruling, stated that “the plaintiff trade associations represent all the Platforms covered by HB 20.”

But, from the definition above, that’s clearly false. First off, it’s not even clear if Twitter actually qualifies. As we’ve learned (oh so painfully), Twitter no longer even reports its “monthly active users,” but instead chooses to release its “monetizable daily active users” which is not even close to the same thing. When it last did post info on its monthly active users, apparently it was only 38 million — meaning it might not even be subject to the anti-censorship provisions of the law!

But also, there are other platforms which are not members of either trade association, and yet still qualify under the definition above. Law professor Daphne Keller put together a list of public information on internet company sizes for Senate testimony earlier this year, and it’s a useful guide.

One name that stands out: Wikipedia. According to Keller’s estimate, it has more than 97 million monthly active users on the site. It meets the definition under the law. It’s a website that is open to the public, allows a user to create an account and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images.

It doesn’t meet any of the exceptions. It’s not an ISP. It does not provide email. It does not consist “primarily” about news, sports, entertainment or “other information or content that is not user generated.” Wikipedia is all user generated. And the interactive nature of the site is not incidental to the service. It’s the whole point.

So… Wikipedia qualifies.

Now… how does Wikipedia comply?

Under the law, Wikipedia cannot “censor” based on “the viewpoint of the user.” But, Wikipedia is constantly edited by users. Even if you were to claim that a user chose to edit an entry because of the “viewpoint” of the content, how would Wikipedia even prevent that?

Wikipedia must also create (I’m already laughing) an email address where users can send complaints and a whole “complaint system.”

I don’t see how that can happen.

Anyway, it’s possible this means that Wikipedia can no longer stop people from adding more and more content (true or not) to Judge Andy Oldham’s profile, because having users take it down would potentially violate the law (but don’t do that: vandalizing Wikipedia is always bad, even if you’re trying to make a point).

The entire law is based on the idea that all moderation takes place by the company itself, and not by users.

It’s also possible that Reddit is swept up under the law (it’s unclear if they have enough US users, but it’s close), and again, I don’t see how it can comply. Moderation there is multi-layered, but there is user voting, which certainly might be based on viewpoints. There are admin level moderation decisions (so, under this law, Reddit might not have been able to ban a bunch of abusive subreddits). But, each subreddit has its own rules and its own moderators. Will individual subreddit moderation run afoul of this law? Can subreddits even still operate?

¯\_(ツ)_/¯

No one knows!

Discord might also be close to the trigger line and again, I don’t see how it could comply, since each Discord server has its own administrators and moderators.

On Twitter, someone noted that the job board, Indeed.com claims to have over 250 million unique visitors every month. That was as of 2020, yet some more recent numbers show it much higher, with the latest monthly numbers (from May of this year) showing over 650 million visits. Visits and users are not the same, but it’s not difficult to see how that turns into over 50 million active users in the US.

And… that creates more problems, as the lawyer noted to me on Twitter, if someone now posts a job opening on Indeed that violates the EEOC by saying certain races shouldn’t apply, well, under the Texas law, Indeed would have to leave that ad up (though, under the EEOC they’d have to take it down).

This just part of the reason we have a dormant commerce clause in the Constitution that should have gotten this law tossed even earlier, but alas…

Anyway, if the law does actually go into effect, we’re going to discover lots of nonsense like this. But that’s because the Texas legislature, the Texas executive branch, and foolish judges like Andy Oldham don’t actually understand any of this. They’re just real angry that Donald Trump got banned from Twitter for being an ass.

Filed Under: 5th circuit, andy oldham, content moderation, hb 20, wikipedia
Companies: discord, indeed, reddit, wikipedia

Starlink Service Starts To Slow Down As Limited Capacity Rears Its Head

Broadband

from the disruptive,-it-ain't dept

We’ve noted a few times that Elon Musk’s Starlink broadband service is great if you have no other options. It’s also great if you’ve spent an eternity stuck on an expensive 3 Mbps DSL line straight out of 2003, or a traditional, capped, expensive satellite broadband connection. Being able to get 100 Mbps in the middle of nowhere is a great thing, assuming you can afford it.

But most Starlink press coverage doesn’t really talk much about the fact that the service doesn’t have the capacity to be as disruptive as it’s claiming it will be. Wall Street analysts suggest that Starlink can serve about a million users worldwide over the next few years. For context, somewhere between 20 and 40 million US residents lack broadband, and another 83 million live under a monopoly.

The laws of physics and limited capacity aren’t playing well with Musk’s continued decisions to expand access to the service (RVs, airlines, luxury yachts). Over the last year there’s been increasing reports of significant service slowdowns as reality begins to inject itself into the equation. Now speedtest provider Ookla has measured it, and notes the service has slowed significantly in most countries:

The fact that degraded Starlink service is still faster that many DSL “broadband” providers speaks well to the service’s utility, but the growing congestion isn’t a great sign for a service many claim will revolutionize US broadband access. Combined with Starlink’s often nonexistent customer service, I suspect you’re going to be seeing a lot more grumbling over the next few years as congestion increases.

Ultimately Starlink wants to launch additional waves of next-generation satellites that dramatically boost capacity, but even assuming this all goes swimmingly, Wall Street analysts estimate the max subscriber total (worldwide) could top out at around 6 million. That’s still, even in a best case scenario, a tiny dent in US overall connectivity needs. And again, that assumes Starlink will remain financially viable.

Fixing US broadband requires driving fiber to as many areas as possible, then pushing 5G into most of the gaps (even Musk has admitted 5G plays a better role here). While Starlink can help, it shouldn’t be portrayed as a magic bullet, and over-hyping it to fluff Musk’s stock holdings can act as a bit of a policy and subsidy distraction from better, more reliable, and certainly more affordable broadband solutions.

Filed Under: 5g, cable, digital divide, dsl, fiber, high speed internet, starlink, telecom, wireless
Companies: spacex, starlink

New Data From The Bureau Of Prisons Indicates Bail Reform Won’t Make Americans Less Safe

Legal Issues

from the being-tough-on-crime-having-no-effect-on-crime dept

Along with the call for law enforcement reforms following the inflection point created by Minneapolis police officer Derek Chauvin’s murder of George Floyd, there has been increasing demand for bail reform.

Bail reform isn’t new. It’s something activists and politicians have attempted to achieve for years. The problem with bail is that it exacerbates what’s already a multi-tiered justice system. Those who can easily afford to make bail regain their freedom. Those who can’t lose not only their freedom, but their jobs, homes, and sometimes their families while they sit in jail as pre-trial detainees — constitutionally guaranteed a presumption of innocence while being otherwise indistinguishable from those who have been declared guilty.

In essence, bail punishes the poor for being poor and rewards the rich for being rich.

Then there’s America’s love of all things jail. This country throws more people in jail per capita than even autocratic regimes, the latter of which at least can see immediate improvements in public behavior by jailing critics, dissenters, and activists.

Tough-on-crime types continue to argue that leniency and/or bail reform will allow criminals (which apparently includes those still retaining a presumption of innocence) to run amok, committing crimes and threatening public safety, pushing us one step closer to a criminal apocalypse.

The data does not support these ridiculous claims. When bail reform went into effect in New York City, cops, prosecutors, and certain politicians claimed crime rates would spike. That simply did not happen. In fact, data provided by the Mayor’s Office showed 97% of those released without bail had not been re-arrested for committing other crimes.

Federal data is showing the same thing. It’s not bail reform. It’s COVID. Thousands of prisoners were released during the pandemic (which is still ongoing, so don’t be shitty when someone asks you to wear a mask) by the Bureau of Prisons. Almost none of them re-offended. Here’s C.J. Ciaramella with more details for Reason.

Of the more than 11,000 federal inmates who were released to home confinement during the COVID-19 pandemic, 17 were returned to prison for committing new crimes, according to the Bureau of Prisons (BOP).

In response to a query from Keri Blakinger, a reporter for The Marshall Project, the Bureau of Prisons said that of the 17, 10 committed drug crimes, while the rest of the charges included smuggling non-citizens, nonviolent domestic disturbance, theft, aggravated assault, and DUI.

These releases were due to a pandemic relief bill passed in March 2020, signed into law by then-President Trump as the pandemic began its spread across the United States. A recidivism rate of 0.15% is a sound rejection of law enforcement hyperbole about the danger of allowing people to regain their freedom prior to fully “repaying their debt to society” (whatever that means).

Somehow, tough-on-crime people believe people are less likely to offend following their full sentences than anytime earlier. These same people also believe people merely accused of committing crimes are more dangerous than other people who’ve never been convicted (or accused) of crimes. None of that makes sense and the data continues to show they’re baseless. What’s left after the data is done subtracting the bullshit is little more than these people’s inexplicable desire to destroy lives.

Filed Under: bail reform, criminal justice reform

5th Circuit Awards Immunity To Cop Who Decided A Suicidal Man Should Be Tased While He Had A Noose Around His Neck

Legal Issues

from the if-you-want-to-die,-a-cop-can-help-you! dept

Oh, Fifth Circuit Court of Appeals. Whatever will you do next?

The qualified immunity complaints of Judge Don Willett notwithstanding, the Fifth Circuit is where you go if you want batshit decisions that run contrary to common sense, much less established constitutional law. If you need a decision that sides with the government — no matter how bizarre the government action — you appeal rational decisions and roll the dice on irrationality.

The Fifth Circuit recently handed us a completely inexplicable decision that said social media moderation isn’t a First Amendment issue. And if it is a First Amendment issue, it’s because private companies are somehow capable of violating constitutional rights. Compelled speech is the name of the game in the Fifth Circuit, which recently sided with Texas’ unconstitutional social media law in a decision handed down by a judge who was appointed by Donald Trump and had previously worked as Texas Governor Greg Abbott’s general counsel.

This is also the same Appeals Court that said qualified immunity protected cops who tased a man soaked in gasoline (but was carrying no weapons), igniting him and the house he was in, killing him and destroying the house.

That brings us to this decision, handed down in August, but somehow escaped my attention. Fortunately, Clearly Established, which tracks qualified immunity decisions, highlighted this one in its most recent roundup.

It’s more of the same for the Fifth Circuit Appeals Court, which remains the cop-friendliest place on earth™. It’s another case where a mental health call turned into an execution, because many cops believe the only response to any unfamiliar situation is the application of violence.

And that’s exactly what happened here. Maria Ramirez placed a 911 call, expressing her concern that her son, 30-year-old Daniel Ramirez, was planning to commit suicide by hanging himself from the basketball hoop in her backyard.

Maria did not tell the dispatcher that Daniel had a weapon because why would she? Daniel was not carrying a weapon. The dispatcher did not tell the responding officer (El Paso PD officer Ruben Escajeda) that Daniel had a weapon because why would they? They had received no information stating anything about the presence of a weapon.

Despite the lack of any information pointing to this being anything more than a distress call seeking help to prevent a suicide, Officer Escajeda decided he was the one in need of saving. From the decision [PDF]:

When Escajeda arrived minutes later, at 10:40 p.m., he found the lights off. He became concerned, asking himself “Why [was] the house so dark, inside and . . . outside?” Without announcing his presence, he proceeded to the back yard, gun drawn.

An odd response to a suicide call, but to each his own. It gets odder from there. Officer Escajeda’s testimony becomes internally contradictory shortly thereafter.

He decided not to wait for other officers because he felt “urgency to prevent a suicide.”

Good, good, good… except:

Concerned he could be walking into an “ambush,” Escajeda repeatedly ordered Daniel to show his hands to ensure he had no weapon.

So, which was it? Was it a suicide or an ambush? If it was the former, move quickly. If it’s the latter, maybe call for backup. Officer Escajeda, hoping to secure immunity, argued it was both. And these competing concerns justified his use of force — a force deployment that killed the person he claimed mere sentences earlier he was trying to save.

Daniel’s hands stayed around the rope. So, Escajeda holstered his gun, moved closer, and tased Daniel in the abdomen for five seconds. Daniel’s body tensed and Escajeda saw Daniel’s fists squeeze harder and heard a “crunch” or “gargle.” Escajeda then removed the rope from around Daniel’s neck and lowered him to the ground. He administered CPR on Daniel and felt a faint pulse in his neck. Other officers arrived seconds later and assisted Escajeda with CPR. Paramedics arrived soon after and took Daniel to a nearby emergency room where he was pronounced dead at 11:24 p.m. An autopsy concluded Daniel’s death was caused by hanging.

Well, yes. By hanging. But a hanging that could have possibly been prevented, but was instead made inevitable by the officer’s taser deployment, one that definitely appeared to be unjustified.

The lower court denied immunity to the officer, citing precedent that clearly established “officers may not use a taser against a subdued person who neither committed any crime nor who resisted the officer’s authority.”

The Appeals Court, however, disagrees with this basic, logical premise. Instead, it says precedent provides no case on point and, beyond that, the officer said the magic words about fearing for his safety. And that’s enough to give the Appeals Court the opportunity to both award immunity and avoid further discussion of the underlying incident, much less add it to its precedent.

Contrary to the plaintiffs’ arguments, Escajeda did not have Daniel “subdued” and under his control when he used the taser. To the contrary, Escajeda faced a “tense, uncertain, and rapidly evolving” situation, Plumhoff, 572 U.S. at 774, wholly unlike those faced by the officers in Bush, Newman, and Martinez.

Escajeda used the taser precisely because Daniel was not in custody and Escajeda was unsure whether the strange scenario he faced posed a threat to his safety. Perhaps his fear that he might be walking into an “ambush” was unfounded; in that event, the tasing could be excessive under prong one of the analysis. But even so, no authority cited by the plaintiffs remotely addresses the situation Escajeda faced. It follows, then, that Escajeda could not have been on notice that his single use of the taser was clearly unlawful.

The Supreme Court has periodically warned lower courts to not discuss situations too generally when dealing with immunity claims. Contrarily, it has also warned lower courts to not to allow specificity to get in the way of recognizing obvious rights violations even though there is no precedent exactly on point. Given these two competing options, the Fifth Circuit says it prefers specificity.

Furthermore, the district court did not “frame the constitutional question with specificity and granularity.” The court asked about the proper use of tasers “against a subdued person.” That is too general. It is one thing to ask whether police may tase someone after they have handcuffed him and put him face-down on the ground. It is quite another to ask whether an officer may tase someone who may be hanging himself, who may or may not have a weapon, who does not respond to the officer’s commands—all when the officer approaches him rapidly, alone, and in the dark.

It may be “quite another” question when “specificity and granularity” are compared to analogous cases not exactly on point. But this decision does more harm than good by allowing cops to place themselves in danger, act quickly, and walk away from the poor decisions they made after placing themselves under this stress. The officer approached the suicidal man “rapidly, alone, and in the dark.” If he truly believed the situation was dangerous, he would have acted differently, perhaps waiting for backup or seeking assistance from the man’s mother. Instead, the officer presented testimony that said he wanted to prevent a suicide but approached the scene as though he was the only one in danger of being harmed.

Contradictory motives are a sign of post-fuck up rationalization. The officer had options but placed himself in danger (a completely subjective statement) and then increased the perceived danger by “rapidly evolving” the situation. He should not be rewarded for doing his job poorly. But that is what happened here and continues to happen with alarming regularity in cases handled by this particular appeals court.

Filed Under: 5th circuit, daniel ramirez, qualified immunity, ruben escajeda, texas