Louis Vuitton’s Opposition To Trademark For Gardening Tools Fails Spectacularly

Trademark

from the fail-fail-fail dept

Every once in a while you get a trademark bullying story that meets a just and proper end. Almost a year ago, we discussed how Louis Vuitton, famous maker of luxury fashion products and infamous trademark bully, did its bullying thing when it opposed the trademark application for a company in the UK called L V Bespoke. Louis Vuitton asserted that only it could use the letters “L” and “V” in its branding and further alleged that, because it uses those letters on metal affixed to its luxury items, it was further problematic in this case because L V Bespoke also makes things with metal. Lost in all of that was the simple fact that L V Bespoke makes gardening products and that the metal it works with are gardening support stakes. If you don’t believe this whole thing was really that stupid, go read the post. It was.

But Louis Vuitton is big and L V Bespoke is a tiny company without the legal warchest to match its interlocutor. The founders of the company, from which it derives its “L V” name, are Lawrence and Victoria Osborne and it would have been extremely easy for the two to cave to the fashion giant’s demands and either rebrand the company or close up shop. Fortunately, that didn’t happen and the UKIPO has sided with L V Bespoke and has granted it the mark.

“It’s a great way to start the new year and we can finally wholeheartedly embrace the branding of our business. To not have the worry of having to rebrand or rescope our business is a huge relief. We’ve had the handbrake on our business for the last six months awaiting this decision, so it’s been a long time coming,” said Victoria.

This is obviously the right decision, but we also shouldn’t allow the fact that this went on for months and months to go without more than a mere shrug of our shoulders. Louis Vuitton absolutely knew, or should have known, that this opposition was made without even a hint of merit. It bullied this small company because it could. I can’t think of another explanation for the opposition. And that opposition took a very real toll on Lawrence, Victoria, and their business.

“It’s been challenging both mentally and financially. Mentally it’s been hugely challenging for us as a family not knowing whether or not we can continue to grow our business with the presence and identity that we already have,” she said.

“Everything has come as a huge relief and I hope the next six months aren’t as challenging as what the last have been awaiting this decision so we can finally move forward,” she continued.

And to be clear, it wasn’t just emotionally taxing, having to fight this nonsense. The business had to spend the dollar-equivalent of nearly $20,000 to combat the opposition, while the final decision in the outcome only requires Louis Vuitton to reimburse L V Bespoke a quarter of that in costs. In other words, a small business had to spend the equivalent of nearly $15,000 out of pocket merely because one of the largest and wealthiest luxury designer brands on the planet decided to make nonsensical trouble.

That’s pretty shitty and draws the obvious point: there needs to be more punishment for filing absolutely senseless trademark oppositions such as this.

Filed Under: gardening tools, likelihood of confusion, trademark
Companies: l v bespoke, louis vuitton

Colorado Passes Its Third ‘Right To Repair’ Bill

Policy

from the fix-your-own-shit dept

Despite the best efforts of automakers and companies like Apple, states continue to push forward with popular “right to repair” reforms that make it easier and more affordable for consumers to repair tech they own.

While they vary in potency, New York, Oregon, California, Massachusetts, Colorado, Maine, and Minnesota have all now passed some flavor of right to repair reforms. Colorado just got done passing its third such bill. The first two ensured that consumers had access to the parts, tools, and documentation they needed to repair agricultural equipment and powered wheelchairs.

This latest bill broadens the state protections considerably, ensuring that consumers have the tools, parts, and manuals to be able to repair everything from blenders and refrigerators to laptops and cell phones to appliances and IT equipment. Unsurprisingly, right to repair activists are pretty happy about it:

“Everything breaks at some point and when it does, we should have the freedom to fix it,” said Danny Katz, CoPIRG executive director. “Right to Repair gives us options when our products fail. This bill empowers consumers, letting us choose when, where, and how we fix our products. And having options saves us time and money while reducing the amount of waste that we produce.”

Again, the quality of state right to repair legislation can vary greatly. Many state bills intentionally carve out many of the worst offenders when it comes to efforts to monopolize repair (game consoles, cell phones, medical equipment, agricultural gear, cars). New York state’s bill was watered down post-passage by Democrat Governor Kathy Hochul almost to the point of uselessness.

But while numerous companies (like Apple) keep trying to claim that these reforms pose significant new privacy or security threats to consumers, they’re not having much luck. While U.S. consumer protection is generally on the ropes, right to repair reform efforts aren’t slowing down, and continue to see widespread, bipartisan support from annoyed American consumers.

Filed Under: colorado, consumer protection, hardware, reform, repair, repair monopoly, right to repair, state law

5th Circuit Appeals Court Applauds Itself For Properly Handling An Obvious Denial Of Immunity

Legal Issues

from the obviously-we-care-enough-to-make-the-right-call-when-no-other-call-can-be-made dept

The Fifth Circuit Appeals Court has a particularly antagonistic relationship with long-held constitutional rights. It is, without argument, the most cop-friendly circuit in the nation — one that has managed to surpass even the generous immunity-or-else guidelines set down by the Supreme Court often enough that the nation’s top court has had to roll back rulings from this set of circuit judges.

The addition of Judge Don Willett, while welcome, has done little more than slightly increase the number of fiery dissents. Otherwise, it’s been business as usual, with the Fifth Circuit playing the fool for legislators and bad cops alike, limiting citizens’ rights while giving the government more power… and more ways to get away with unconstitutional fuckery.

So, this decision [PDF], while still entertaining (and then slightly horrific), is little more than a court congratulating itself for doing the job it’s expected to do, rather than the job it has always done. (h/t Volokh Conspiracy)

A little backstory on the case: Texas resident Austin Hughes is a former cop and current (at least when this incident happened) Uber driver. Having witnessed some apparent drunk driving, Hughes decided to follow the driver and perform a citizen’s arrest while waiting for law enforcement officers to finish off the job with a non-citizen’s arrest.

Former cops likely understand the intricacies of citizen’s arrests far better than citizens themselves, who rarely perform these acts of public service — acts that definitely aren’t covered by the extra rights afforded to actual law enforcement officers. Austin Hughes knew what to do and what steps to take to ensure law enforcement could very smoothly take over the arrest job once they arrived at the scene.

But none of that happened. Yes, some officers showed up but they decided the clearly drunk person was the most trustworthy party and arrested Hughes for the crime of… taking a drunk driver off the road. (Bold emphasis mine. Underlined emphasis is the court’s.)

When [Houston Police Department] Officers Michael Garcia and Joshua Few arrived on the scene (roughly 17 minutes after Hughes’s initial 911 call), they re-handcuffed the drunk driver and asked Hughes to meet them at a nearby gas station so they could take his statement. At the gas station, Officer Garcia interviewed the drunk driver while Officer Few interviewed Hughes. Hughes recounted his observations of the pickup truck’s erratic movements, the driver’s multiple collisions with the median and concrete barrier, and his assessment of the driver’s intoxication. Hughes also told Few “he used to be a police officer.” When Garcia finished taking the drunk driver’s statement, he asked Hughes for his Uber passengers’ contact information. Hughes explained that Uber’s privacy policies prevented him from accessing that information. But he showed Garcia his Uber app, including the details of his most recent trip. Later, at Garcia’s request, Hughes emailed Garcia screenshots of his Uber trip details. Inexplicably, the officers did not arrest the drunk driver.

Few and Garcia then prepared an incident report. According to Hughes’s complaint, the report recounted the drunk driver’s statement to Garcia at the scene:

On 3-23-2019 I was at a flea market with Jesse and his friends (Uber drivers [sic] alias). Jesse said that we could go back to his place and that he lived on 59 south near downtown. I told Jesse that I lived on I10 and he said that he would take me home later. I said okay because I had been drinking on night [sic] and had more than 7 beers. I was too drunk to drive but I had a friend at the bar that could of [sic] taken me home. Jesse said let’s go to his house and he offered to drive so we went. Mid way [sic] during the trip I was not familiar with where I was at. I started to ask Jesse where he was taking me. I finally asked Jesse to just take me home and[ ]that is when he got mad. Jesse asked if I had something going on with his wife. I told Jesse no. Jesse then asked me what I got going on with his wife. I was confused and asked what he meant. Jesse said he knows there is something going on. Jesse stopped my truck on the freeway and got out of it. He came to my passenger side door and was trying to get me out of the car. I was confused at this point and only wanted to know what was going on. Jesse kept telling me I am fucked and how I was going to be deported. I was on the freeway so I could not just get away from Jesse. Finally Jesse told me to turn around and put my hands behind my back. When I did not do it fast enough Jesse kneed my legs to force me to comply. I asked Jesse why he was doing this and who gave him the right to do this. Jesse told me he was a police officer. Jesse then put me in handcuffs. My leg was hurting making it hard for me to stand and I had scratches on my wrists from him trying to handcuff me.

Somehow, this rambling statement involving an apparent domestic dispute, a flea market that was apparently still open until 2 am (in which you could acquire and consume “more than 7 beers”), and someone named “Jesse” handcuffing someone else (rather than “Austin,” which was the actual name of the former cop/current Uber driver who performed the citizen’s arrest) was treated as credible. Austin Hughes’ statement — delivered by a sober person with plenty of documentation that backed up his assertions about his recent Uber fare — was treated as criminally suspect, resulting in the two HPD officers arresting Hughes for “impersonating an officer.”

The lawsuit followed. The lower court denied qualified immunity to the officers. The Fifth Circuit Appeals Court affirms this ruling… far too smugly. Here’s the leadoff to the opinion, which can barely be heard above the sound of self-congratulatory applause (emphasis in the original):

For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up.

Austin Thompson Hughes is a Good Samaritan. After 2:30 a.m., Hughes called 911 to report a pickup truck swerving violently across a four-lane highway in Houston. While Hughes was on the phone with emergency dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes pulled behind the drunk driver and effectuated a citizen’s arrest in accordance with Texas law. But when police officers arrived at the scene, they let the drunk driver go and then arrested Good Samaritan Hughes. (Seriously.) Piling insanity on irrationality, the officers then charged Hughes with a felony for impersonating a peace officer. Hughes spent thousands of dollars defending against the frivolous criminal charges before the City of Houston dropped them. Then Hughes brought this § 1983 suit against the two officers who victimized him. The district court denied qualified immunity. We affirm. (Obviously.)

Hey, the Fifth: we already know qualified immunity “can be invoked under absurd circumstances.” There’s nothing to “worry” about. I mean, it HAPPENED HERE. The problem isn’t the invocation. It’s the response to the invocation — a response that applies rules made repeatedly worse by the US Supreme Court and decides it applies to “absurd circumstances” because the circumstances are novel enough there’s no on-point case law to apply to it. When all the discussion has ended, courts (especially the Fifth Circuit Appeals Court) tend to grant immunity, rather than recognize a clear rights violation has occurred that cannot be wiped from the record with the invocation of qualified immunity.

The parentheticals are just as self-serving. This is a court coming to a very obvious conclusion but serving it up as an indication of its willingness to respect the Constitution more than cops who try to bypass it. Applauding your efforts in a case that clearly falls outside of even the Supreme Court’s mandated deference to law enforcement is just kind of gross. This part of a footnote on page 13 makes it clear exactly how easy it was to affirm the denial of qualified immunity in this case. And because it’s crystal clear, it’s more than a bit unseemly that the Fifth Circuit would open up its decision by putting its self-satisfaction front and center.

This case does not involve excessive force, or split-second decisions, or the chaos of a chase. Rather, it involves a simple, clearly established rule that all officers should know at all times under Franks and Winfrey: Do not lie.

Beyond the obviously correct conclusion (the denial of immunity), the only other thing the ruling gets right is its final conclusion: that it’s amazing the same government that decided the “impersonating an officer” charge was not supported by the evidence still felt it was worth fighting in court, including this failed appeal of the lower court’s decision:

It is unclear which part of this case is more amazing: (1) That officers refused to charge a severely intoxicated driver and instead brought felony charges against the Good Samaritan who intervened to protect Houstonians; or (2) that the City of Houston continues to defend its officers’ conduct.

When you’re backing a case that is so obviously a loser even the Fifth Circuit feels comfortable taking pot shots at it, you should probably quit while you’re behind. The city should have written a check to Austin Hughes the moment he filed his lawsuit. At the very latest, it should have done it after receiving the lower court’s denial of qualified immunity. This case was a loser from the moment these two cops arrived on the scene. It should never have gotten this far. And it definitely shouldn’t have been used as an opportunity to gloat by a judicial circuit that gets these cases wrong far more often than it gets them right.

Filed Under: 5th circuit, austin hughes, citizen's arrest, good samaritan, qualified immunity

Can ChatGPT Violate Your Privacy Rights If It Doesn’t Store Your Data?

Too Much Free Time

from the this-makes-no-sense dept

If you were to ask someone to state the birthday of someone else, and the person asked just made up a date, which was not the actual birthday, would you argue that the individual’s privacy had been violated? Would you argue that there should be a legal right to demand that the person explain how they came up with the made-up date and to permanently “store” the proper birth date in their mind?

Or would you simply laugh it off as utter nonsense?

I respect the folks at noyb, the European privacy activists who keep filing privacy complaints that often have significant consequences. noyb and its founder, Max Schrems, have pretty much single-handedly continued to rip up US/EU privacy agreements by highlighting that NSA surveillance simply cannot comply with EU data privacy protections.

That said, noyb often seems to take things a bit too far, and I think its latest complaint against OpenAI is one of those cases.

In the EU, the GDPR requires that information about individuals is accurate and that they have full access to the information stored, as well as information about the source. Surprisingly, however, OpenAI openly admits that it is unable to correct incorrect information on ChatGPT. Furthermore, the company cannot say where the data comes from or what data ChatGPT stores about individual people. The company is well aware of this problem, but doesn’t seem to care. Instead, OpenAI simply argues that “factual accuracy in large language models remains an area of active research”. Therefore, noyb today filed a complaint against OpenAI with the Austrian DPA.

I have to admit, sometimes I kinda wonder if noyb is really a kind of tech policy performance art, trying to make a mockery of the GDPR. Because that’s about the only way this complaint makes sense.

The assumptions underlying the complaint are that ChatGPT is something that it is not, that it does something that it does not do, and that this somehow implicates rights that are not implicated at all.

Again, Generative AI chat tools like ChatGPT are making up content based on what they’ve learned over time. It is not storing and collecting such data. It is not retrieving data that it has stored. Many people seem to think that ChatGPT is somehow the front end for a database, or the equivalent of a search engine.

It is not.

It is a digital guessing machine, trained on tons of written works. So, when you prompt it, it is probabilistically guessing at what it can say to respond in a reasonable, understandable manner. It’s predictive text on steroids. But it’s not grabbing data from a database. This is why it does silly things like make up legal cases that don’t exist. It’s not because it has bad data in its database. It’s because it’s making stuff up as it goes based on what “sounds” right.

And, yes, there are some cases where it seems closer to storing data, in that the nature of the training and the probabilistic engine is that it effectively has a very lossy compression algorithm that allows it to sometimes recreate data that closely approximates the original, but that’s still not the same thing as storing data in a database, and in the example used by noyb — a random person’s birthday — that’s simply not the kind of data that is at issue here.

Yet, noyb’s complaint is that ChatGPT can’t tell you what data it has on people (because it doesn’t “have data” on people) and that it can’t correct mistakes (because there’s nothing to “correct” since it’s not pulling what it writes from a database that can be corrected).

The complaint is kind of like saying that if you ask a friend of yours about someone else, and they repeat some false information, arguing that that friend is required under the GDPR to explain why they said what they said and to “correct” what is wrong.

But noyb insists this is true for ChatGPT.

Simply making up data about individuals is not an option. This is very much a structural problem. According to a recent New York Times report, “chatbots invent information at least 3 percent of the time – and as high as 27 percent”. To illustrate this issue, we can take a look at the complainant (a public figure) in our case against OpenAI. When asked about his birthday, ChatGPT repeatedly provided incorrect information instead of telling users that it doesn’t have the necessary data.

If this is actually a violation of the GDPR, noyb’s real complaint is with the GDPR, not with ChatGPT. Again, this only makes sense for an app that is storing and retrieving data.

But that’s not what’s happening. ChatGPT is probabilistically guessing at what to respond with.

No GDPR rights for individuals captured by ChatGPT? Despite the fact that the complainant’s date of birth provided by ChatGPT is incorrect, OpenAI refused his request to rectify or erase the data, arguing that it wasn’t possible to correct data.

There is no data to correct. This is just functionally wrong. It’s like filing a complaint against an orange for not being an apple. It’s just a fundamentally different kind of service.

Now, there are some attempts at generative AI tools that do store data. The hot topic in the generative AI world these days is RAGs, “retrieval augmented generation,” in which an AI is also “retrieving” data from some sort of database. noyb’s complaint would make more sense if it found a RAG that was returning false information. In such a scenario, the complaint would fit.

But when we’re talking about a regular old generative AI model without retrieval capabilities, it makes no sense at all.

If noyb honestly thinks that what ChatGPT is doing is violating the GDPR, then there are only two possibilities: (1) noyb has no idea what it’s talking about here or (2) the GDPR is even more silly than we’ve argued in the past, and all noyb is doing is trolling to make that clear by filing a laughably silly complaint that exposes how poorly fit the GDPR is to the technology in our lives today.

Filed Under: chatgpt, data, data protection, eu, gdpr, generative ai, hallucinations
Companies: noyb, openai

California Supreme Court Makes It A Bit More Difficult For Cops To Engage In Unconstitutional Stops

Legal Issues

from the time-to-start-being-real-cops-I-guess dept

Well, things certainly suck for cops looking to hassle minorities and/or engage in roadside fishing expeditions in California. And the cops have no one to blame but themselves.

Five hundred thirty-five agencies conducted a total of 4,575,725 stops from January 1, 2022 to
December 31, 2022.

Black individuals were stopped 131.5 percent more frequently than expected, given their relative proportion of the California population, using a comparison of stop data and residential population data.

Need more?

A Los Angeles Times investigation found deputies search 85% of bike riders they stop even though they often have no reason to suspect they’ll find something illegal. Most bicyclists were held in the backseat of patrol cars while deputies rummaged through their belongings or checked for arrest warrants.

The Times’ analysis of more than 44,000 bike stops logged by the Sheriff’s Department since 2017 found that 7 of every 10 stops involve Latino cyclists, and bike riders in poorer communities with large nonwhite populations are stopped and searched far more often than those in more affluent, whiter parts of the county.

Redefining “California stop,” millions of stops per year at a time. Cops stop more minorities, find less contraband, continue to harm their relationship with the communities they serve… and then do the same thing again and again, year after year.

Up until recently, anyway. A law that went into effect at the beginning of this year changed some of that bad math. The new law requires officers performing traffic stops to lead with the pretext. In other words, rather than ask the stupid question pretty much every driver has heard at some point in their life (“Do you know why I pulled you over?”), California law enforcement officers must inform drivers why they’ve been pulled over before they get back on their pretext/fishing expedition bullshit.

We’ll see how that has worked out next year when all the traffic stop stats are in. In the meantime, things are getting even better for California residents. The new law says the pretext must, at the very least, be presented to drivers right up front.

This recent California Supreme Court ruling adds even more limits to stops, traffic or otherwise.

On Thursday, the court ruled to restrict the grounds under which police can stop and hold people for questioning. It stems from the case The People vs. Marlon Flores.

“The only thing he did was, he was standing by a car at night in an area that the police deemed to be a high-crime area. And his so-called odd behavior was that he, the police say, he ducked down, trying to tie his shoes. And was seeming to avoid police interaction,” Kim said.

The court ruled that police can’t detain someone on the street just because that person tries to avoid contact with them.

The Cliff Notes version is this: it’s no longer reasonable for officers to portray someone merely avoiding contact with them as “reasonably suspicious” enough to detain them and pester them with further questions.

It’s the right call to make. You know who wants to talk to cops voluntarily? A very small percentage of the population: namely, people reporting crimes and… other cops. That’s about it. I don’t want to talk to cops and I haven’t committed any crimes for pretty much the entirety of my life. Most people don’t want to get hassled either, especially since every stop is just an opportunity for bored/opportunistic officers to find something that might lead to an arrest or, preferably, a sizable seizure of some citizen’s cash.

This decision [PDF] flips the script on pretextual stops, forcing the state’s cops to allow citizens to engage in their own pretexts to avoid having to converse with cops.

In this case, the person subjected to an unlawful stop did nothing more than bend down to tie their shoelaces, which the officers took to mean they were deliberately avoiding a conversation — something they considered to be inherently suspicious behavior.

Officer Guy testified that he detained Flores because he believed Flores acted “suspicious[ly]” by “attempting to conceal himself from the police” and then “pretend[ing] to tie his shoe.” The officer suspected Flores was “loitering for the use or sales of narcotics.” Guy gave no reason why he thought so, other than the area and Flores’s behavior upon seeing the police.

Wrong, says the court, even if Flores ducking down to tie his shoes was nothing more than a ruse meant to avoid having to converse with the officers. (The court also notes that this ducking was momentary and Flores remained in sight for far longer than he remained hidden… so, pretext or not, it wasn’t much of a ruse, ultimately.)

We need not determine the precise moment this detention took place. There is no dispute that Flores was detained before any incriminating evidence was recovered. One fair interpretation of the facts is that Flores initially tried to avoid being seen by the officers. Thereafter, and somewhat inconsistently, he stood and was in view for several seconds. He then failed to acknowledge the officers’ approach, and sought to avoid interacting with them. But as we explain, this behavior, along with Flores’s presence in a high crime area at night, did not provide a particularized and objective basis for suspecting that Flores was doing something illegal.

It is settled that a person may decline to engage in a consensual encounter with police.

The court then goes into more detail as it completely dismantled the bullshit “suspicion” assertions of the involved officers.

The fact that Flores was present in a “known narcotic[s] area[],” where the officer had arrested someone for drug-related crimes the night before, does not tip the scales in favor of detention. Notably, Officer Guy did not see Flores engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct. He did not see Flores interact with anyone, or retrieve or hide anything. […] He did not see anyone in the immediate vicinity. No one had called for help or to report a crime in progress. The hour was not particularly late. Although the officer testified that he suspected Flores of “loitering,” he did not see Flores standing in that location for more than a few moments before the officers pulled up in their patrol car.

When Guy approached on foot, he saw Flores moving his hands near his feet. But the officer did not say Flores appeared to hide or discard anything. Rather, he opined that Flores was “pretend[ing] to tie his shoe.” Guy testified that the Nissan was parked at a red curb. But he did not explain how Flores’s presence next to an illegally parked car justified a detention under the totality of the circumstances.

And here’s where the judicial hammer comes down:

Police officers and private individuals may well occupy the same public space and have no particular interaction. They may also engage in consensual encounters. But before an officer can compel compliance with a show of authority, articulable facts must support a reasonable suspicion of criminal activity. In the absence of such facts, the person is constitutionally protected and empowered to go on his or her way.

It’s nothing more than an affirmation of Fourth Amendment rights (as well as similar rights enshrined by the California Constitution), but it still needed to be said out loud by a court capable of generating precedent. And it had to be reiterated because police officers simply choose to ignore these long-held rights if they think they can get away with it.

So, what happened here isn’t necessarily on par with the law passed by the California legislature but it still sets limits on police stops: namely, that reasonable suspicion actually has to be reasonable (rather than just vague statements about “it was night” or “I once saw a crime here”) to justify detaining someone, no matter how momentarily.

And even though it’s just an affirmation of earlier rulings and long-held rights, cops are still getting angry about this ruling:

In an email to ABC7 News, Tracy McCray, president of the San Francisco Police Officers Association calls this another example of California’s criminal justice system working to protect criminals.

She writes: California’s politicians and courts are making it harder and harder for police officers to do their job to protect the communities we serve. The California Supreme Court just opened a giant loophole that will be used by thousands of drug dealers, gang members, sex traffickers, and burglars who will attempt to use this very subjective standard to get back on the street as soon as possible to victimize the people who live, work and travel here. Observing the actions of those we encounter is a critical part of police work and has never been grounds alone for an arrest. Unfortunately, that will not matter when every public defender and criminal defense attorney in the State rushes to file appeals to get their clients freed because they were ‘just nervous.'”

lol cry more, copper. This isn’t a “loophole.” This just clamps down a bit on law enforcement’s abuse of constitutional rights. But go on with your bad self. If these are the sort of stupid statements you’re willing to send out following a pretty innocuous ruling, I cannot wait to see what you’ll actually try to claim in court.

Filed Under: 4th amendment, california, pretextual stops, racism

Daily Deal: MagStack Foldable 3-in-1 Wireless Charging Station with Phone Stand & 20W Adapter

Deals

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

MagStack is the perfect on-the-go wireless charging station that also transforms into a phone stand for FaceTime or video playback while charging. This 3-in-1 foldable design featuring 3 wireless charging spots, enables charging for up to 3 devices simultaneously, including iPhone, Apple Watch, AirPods Pro, AirPods with Wireless Charging Case, other Qi-compatible Android phones, and Bluetooth earbuds. With its versatile foldable design, MagStack also folds into a space-saving single-device charger for your phone or earbuds. It’s on sale for $48.

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

New Study: No, Social Media Does Not Hurt Offline Friendships For Kids

Studies

from the the-kids-may-be-alright dept

We keep pointing to research that suggests the narrative around “social media is bad for kids” is simply not supported by the data. Over and over again, we see studies that suggest that adults are overreacting to a few limited cases. Sometimes, problematic social media use seems to be due to a lack of systems in place to help with mental health issues, leading kids to spend more time on social media because they aren’t getting the support and help that they need.

One of the key points that came out of Jonathan Haidt’s problematic recent book was that he claimed one of the real downsides to social media was that it took kids away from spending time with other kids. And, this might feel reasonable. Lots of parents, certainly, have stories of kids staring at mobile device screens and seeming to have a less active social life from when the parents were kids.

But is it actually accurate?

A fascinating new study out of Norway suggests that Haidt (and the conventional wisdom many people believe about this) could be absolutely wrong.

Using five waves of biennially collected data from a birth cohort assessed throughout age 10–18 years (n = 812), we found that increased social media use predicted more time with friends offline but was unrelated to future changes in social skills. Age and sex did not moderate these associations but increased social media use predicted declined social skills among those high in social anxiety symptoms. The findings suggest that social media use may neither harm nor benefit the development of social skills and may promote, rather than displace, offline interaction with friends during adolescence. However, increased social media use may pose a risk for reduced social skills in socially anxious individuals.

Again, this seems to support much of the previous data we’ve seen suggesting that social media use is not inherently harmful for kids, and could actually be helpful in creating a new avenue for socializing with other kids in some cases.

But, the second part of the findings also confirms the other point we’ve raised here. For some adolescents, often those who are already struggling with mental health, they may end up turning to social media in response to a lack of other resources and help. This seems to be supported by the finding that social media could “pose a risk of reduced social skills in socially anxious individuals.”

Both of these findings support what we’ve been discussing all along: rather than focusing on outright bans for social media, the better focus should be on providing more mental health resources for kids (perhaps even inserting some of those resources and tools into social media apps) and working on better ways to determine that small cohort who are struggling.

Obviously, there may also be limits to this research as well. It’s based on an ongoing study in Trondheim, Norway, doing a long-term study on children born there in 2003 and 2004. It is entirely possible that young people in Trondheim are not representative of the wider world (or even just young people in Norway). But, at the very least, the depth and detail in the Trondheim Early Secure Study (TESS) suggests that they have pretty detailed data on this particular cohort.

Because the initial, overarching aim of TESS was to study mental health, we oversampled for children with emotional and behavioral problems, thus increasing variance and statistical power. More specifically, children were allocated to four strata according to their SDQ scores (cut-offs: 0–4, 5–8, 9–11, and 12–40), and the probability of selection increased with increasing SDQ scores (0.37, 0.48, 0.70, and 0.89 in the four strata, respectively (i.e., the higher SDQ scores, the higher odds for being drawn to the study)). This oversampling was corrected for in the analyses. In total, 1250 of those who consented were drawn to participate. From age 4 onwards (N = 1007) participants have been thoroughly assessed at the university clinic every second year, with 8 data waves completed, including information from the participant’s parents and teachers.

Also, the research on social media use was pretty in-depth as well and didn’t just rely on kids checking a box or something.

Social media use was assessed by semi-structured interviews conducted by the same trained personnel at all measurement points. Participants were asked about platforms used, overall frequency of use, and specific social media behavior. The main outcome constitutes the monthly sum of liking, commenting, and posting, which captured the participants’ responses to the following questions: 1)‘How often do you like other’s updates?‘; 2) ‘How often do you write comments to other’s updates or photos?‘; 3) ‘How often do you post (written) updates on your own social media sites?‘; 4) ‘How often do you post photos’? At ages 16 and 18, we also asked 5) ‘How often do you post selfies?‘. The questions were not specific to certain social media platforms, but as the participants were interviewed, the interviewers would provide examples of social media sites if needed, or in other ways facilitate a correct recall (e.g., ‘If you think about last week … ‘).

We also validated our main analysis and tested whether the results were replicated when using an alternative means of measuring the frequency of social media use, captured by interview at ages 10, 12, and 14 (total frequency of checking social media per day) and objectively measured at ages 16 and 18 (daily time spent on social media apps according to the phone’s screen time application).

They also closely measured time spent with friends through structured interviews. The data here appears to be pretty robust, whether or not the sample is representative of a wider set of young people.

While this particular research is the first of its kind, it seems to align with some other previous research:

To the best of our knowledge, the present study is the first to examine the relation between social media use and time spent with offline friends at the within-person level and capturing the years from late childhood to emerging adulthood. Importantly, during adolescence the boundaries between offline and online peer interactions are blurred, with offline friends also being online friends (van Zalk et al., 2020) being the new norm.

Our results align with studies showing that connecting with others and maintaining relationships are important motivations for adolescents’ use of social media (Ellison et al., 2007; Kircaburun et al., 2020; Park et al., 2009), connecting with people known from offline contexts being of particular importance (Reich et al., 2012). Use of online resources is found to reinforce already existing friendships (Desjarlais & Willoughby, 2010), which may explain why social media use promotes more time spent with friends face-to-face. Although one hypothesized mechanism for the association between social media use and time spent with friends is increased closeness with friends, potentially due to more self-disclosure, neither friendship closeness nor social anxiety moderated effects in the current study. However, it should be noted that we assessed closeness to best friend, whereas the outcome measure (i.e., time spent with friends face-to-face) did not differentiate between best friend and other friends, possibly contributing to the null finding.

Online interactions not only fuel existing relationships, but also enhance the initiation of new ones (Koutamanis et al., 2013), with more than half of US adolescents having made new friends online (Lenhart, 2015). Thus, it might also be that the relationship between increased social media use and time spent with friends is partly due to new friendships.

At the very least, this brings us back to where we were before, noting that the issue of kids and mental health, especially as it relates to social media use, is complicated. It does not appear to be as simple as “good” or “bad.” It’s good for some people. It’s bad for some people.

But, the idea that it somehow replaces in-person interactions does not appear to be supported by this particular study of this particular group of kids. Instead, it suggests the opposite.

Filed Under: jonathan haidt, kids, mental health, moral panic, norway, offline friends, social media, trondheim

TikTok Dances Into Court, Slams Ban As Unconstitutional

Legal Issues

from the and-off-we-go dept

While I’m still waiting for TikTok to release its 30-second long dancing interpretation of why the TikTok ban is unconstitutional, at least it’s now going to court to make the argument for real. It took maybe a week or so longer than expected, but TikTok and ByteDance have now officially filed their lawsuit challenging the constitutionality of the TikTok ban law.

This lawsuit was always going to happen, and now it’s here. The complaint does not mince words:

Congress has taken the unprecedented step of expressly singling out and banning TikTok: a vibrant online forum for protected speech and expression used by 170 million Americans to create, share, and view videos over the Internet. For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide.

That law — the Protecting Americans From Foreign Adversary Controlled Applications Act (the “Act”) — is unconstitutional. Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership. According to its sponsors, the Act responds to TikTok’s ultimate ownership by ByteDance Ltd., a company with Chinese subsidiaries whose employees support various ByteDance businesses, including TikTok. They claim that the Act is not a ban because it offers ByteDance a choice: divest TikTok’s U.S. business or be shut down.

But in reality, there is no choice. The “qualified divestiture” demanded by the Act to allow TikTok to continue operating in the United States is simply not possible: not commercially, not technologically, not legally. And certainly not on the 270-day timeline required by the Act. Petitioners have repeatedly explained this to the U.S. government, and sponsors of the Act were aware that divestment is not possible. There is no question: the Act will force a shutdown of TikTok by January 19, 2025, silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.

I’ve pointed out that I agree that this bill is unconstitutional. In talking to various legal experts about it, I’d say that the feeling is not universal. Around 70% or so of the legal experts I’ve spoken to think it’s unconstitutional, leaving some who believe that there is constitutional justification for this.

The petition points out that this law is inconsistent with the First Amendment (as an attack on free speech) and the Fifth Amendment (over due process and principles of fairness), and the law is a Bill of Attainder targeting one company by name. The petition argues that there were much less aggressive ways of achieving whatever policy goal the US government is seeking without banning the app outright (or forcing divestiture). Specifically, TikTok points repeatedly to the years-long negotiations process the company has had with CFIUS (the Committee on Foreign Investment in the United States) to make it clear that TikTok was not a threat, including making a variety of promises and putting in place ways to check that the company was living up to those promises.

The petition also points out that there have been no legislative findings regarding TikTok, just random conjecture.

In dramatic contrast with past enactments that sought to regulate constitutionally protected activity, Congress enacted these extreme measures without a single legislative finding. The Act does not articulate any threat posed by TikTok nor explain why TikTok should be excluded from evaluation under the standards Congress concurrently imposed on every other platform. Even the statements by individual Members of Congress and a congressional committee report merely indicate concern about the hypothetical possibility that TikTok could be misused in the future, without citing specific evidence — even though the platform has operated prominently in the United States since it was first launched in 2017. Those speculative concerns fall far short of what is required when First Amendment rights are at stake.

It also points out that it had previously agreed to “Project Texas” the last time the government tried to ban the service and has made certain “commitments” to CFIUS regarding its use of data, including agreeing that CFIUS can shut down the service if TikTok is found to have violated such agreements (I don’t recall hearing about this particular detail before).

As part of this engagement, Petitioners have voluntarily invested more than $2 billion to build a system of technological and governance protections — sometimes referred to as “Project Texas” — to help safeguard U.S. user data and the integrity of the U.S. TikTok platform against foreign government influence. Petitioners have also made extraordinary, additional commitments in a 90-page draft National Security Agreement developed through negotiations with the Committee on Foreign Investment in the United States (“CFIUS”), including agreeing to a “shut-down option” that would give the government the authority to suspend TikTok in the United States if Petitioners violate certain obligations under the agreement.

Unsurprisingly, the lawsuit points out that President Trump’s attempt to ban TikTok failed badly, as the court found no legitimate basis for the ban.

The complaint details more of the CFIUS negotiations, which had previously been mostly behind closed doors. It suggests that the company was willing to work with the US government to prove it wasn’t doing anything problematic, but the US government effectively stopped talking.

Between January 2021 and August 2022, Petitioners and CFIUS engaged in an intensive, fact-based process to develop a National Security Agreement that would resolve the U.S. government’s concerns about whether Chinese authorities might be able to access U.S. user data or manipulate content on TikTok, as well as resolve the pending CFIUS dispute. During that time, Petitioners and government officials communicated regularly, often several times a week — including several in-person meetings — about the government’s concerns and potential solutions. The result was an approximately 90-page draft National Security Agreement with detailed annexes embodying a comprehensive solution addressing the government’s national security concerns. Notably, the draft National Security Agreement provided that all protected U.S. user data (as defined in the agreement) would be stored in the cloud environment of a U.S.-government-approved partner, Oracle Corporation, which would also review and vet the TikTok source code.

From Petitioners’ perspective, all indications were that they were nearing a final agreement. After August 2022, however, CFIUS without explanation stopped engaging with Petitioners in meaningful discussions about the National Security Agreement. Petitioners repeatedly asked why discussions had ended and how they might be restarted, but they did not receive a substantive response. In March 2023, without providing any justification for why the draft National Security Agreement was inadequate, CFIUS insisted that ByteDance would be required to divest the U.S. TikTok business.

As for the actual grounds on which the petition is based, it obviously starts with the First Amendment:

The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const., amend. I.

By banning all online platforms and software applications offered by “TikTok” and all ByteDance subsidiaries, Congress has made a law curtailing massive amounts of protected speech. Unlike broadcast television and radio stations, which require government licenses to operate because they use the public airwaves, the government cannot, consistent with the First Amendment, dictate the ownership of newspapers, websites, online platforms, and other privately created speech forums.

Indeed, in the past, Congress has recognized the importance of protecting First Amendment rights, even when regulating in the interest of national security. For example, Congress repeatedly amended IEEPA — which grants the President broad authority to address national emergencies that pose “unusual and extraordinary threat[s]” to the country — to expand protections for constitutionally protected materials. 50 U.S.C. §§ 1701–02. Accordingly, under IEEPA, the President does not have the authority to even indirectly regulate “personal communication” or the importation or exportation “of any information or informational materials,” id. § 1702(b)(1), (3) — limitations that are necessary “to prevent the statute from running afoul of the First Amendment,” Amirnazmi, 645 F.3d at 585. Yet Congress has attempted to sidestep these statutory protections aimed at protecting Americans’ constitutional rights, preferring instead to simply enact a new statute that tries to avoid the constitutional limitations on the government’s existing statutory authority. Those statutory protections were evidently seen as an impediment to Congress’s goal of banning TikTok, so the Act dispensed with them.

As TikTok points out, the ban hurts the First Amendment rights of both the Americans who use the platform (though it’s not as clear that TikTok can represent them) and TikTok itself. This argument pulls heavily from the Texas/Florida NetChoice cases that the Supreme Court is still considering, but TikTok calls out the US government’s briefing in that case:

First, Petitioner TikTok Inc. has a First Amendment interest in its editorial and publishing activities on TikTok. See Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995). TikTok “is more than a passive receptacle or conduit for news, comment, and advertising” of others; TikTok Inc.’s “choice of material” to recommend or forbid “constitute[s] the exercise of editorial control and judgment” that is protected by the First Amendment. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Alario v. Knudsen, — F. Supp. 3d —, 2023 WL 8270811, at *6 (D. Mont. Nov. 30, 2023) (recognizing TikTok Inc.’s First Amendment editorial rights).

As the government itself has acknowledged, “[w]hen [social media] platforms decide which third-party content to present and how to present it, they engage in expressive activity protected by the First Amendment because they are creating expressive compilations of speech.” Br. for United States as Amicus Curiae at 12–13, Moody v. NetChoice LLC, No. 22-277 (U.S.), 2023 WL 8600432; see also id. at 18– 19, 25–26.

Second, TikTok Inc. is among the speakers whose expression the Act prohibits. TikTok Inc. uses the TikTok platform to create and share its own content about issues and current events, including, for example, its support for small businesses, Earth Day, and literacy and education.18 When TikTok Inc. does so, it is engaging in core speech protected by the First Amendment. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011); NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1210 (11th Cir. 2022), cert. granted, 144 S. Ct. 478 (2023). The Act precludes TikTok Inc. from expressing itself over that platform.

Then, there is a long (but quite readable!) analysis of why this case requires strict scrutiny and why the law fails strict scrutiny (not narrowly tailored, there are less rights-limiting means to achieve whatever policy goal, etc.). But it also points out that even if the court goes with intermediate scrutiny, the law would still fail for not being “narrowly tailored.”

From there, TikTok makes the Bill of Attainder arguments. This one had appealed to me early on, as it seems pretty clear that the bill qualifies. It literally names TikTok. Still, a bunch of lawyers have pointed out that the courts have, in the past, made it pretty hard to win Bill of Attainder cases. This is because they require not just that it be narrowly targeted at a single party, but that it also involve “punishment,” which the courts often view very narrowly.

That said, there’s no reason not to raise this argument, so as not to cut it off as a possibility. Anyone looking at a common sense view of the law has to admit that it’s a pretty clear Bill of Attainder.

Article I of the U.S. Constitution prohibits Congress from passing any bill of attainder. U.S. Const. art. I § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). A bill of attainder is “legislative punishment, of any form or severity, of specifically designated persons or groups.” United States v. Brown, 381 U.S. 437, 447 (1965). The protection against bills of attainder is “an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.”…

By singling out Petitioners for legislative punishment, the Act is an unconstitutional bill of attainder.

The Act inflicts “pains and penalties” that historically have been associated with bills of attainder. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474 (1977). Historically, common “pains and penalties” included “punitive confiscation of property by the sovereign” and “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,” among others. Id. As described above, the Act confiscates Petitioners’ U.S. businesses by forcing ByteDance to shutter them within 270 days or sell on terms that are not commercially, technologically, or legally feasible. See supra ¶¶ 26‒29. For the same reason, the Act bars Petitioners from operating in their chosen line of business.

After that, there’s an equal protection/due process claim:

There is no conceivable reason for treating Petitioners differently than all other similarly situated companies. Even if Congress had valid interests in protecting U.S. users’ data and controlling what content may be disseminated through global platforms that would be advanced through the Act, there is no reason why those concerns would support a ban on Petitioners’ platforms without corresponding bans on other platforms. Nor is there any rational reason why Congress would ban Petitioners’ platforms while allowing any other company “controlled by a foreign adversary” — regardless of the national security threat posed by that company — to sidestep the Act’s reach by simply offering an application that “allows users to post product reviews, business reviews, or travel information and reviews,” but changing nothing else about the company’s operations, ownership structure, or other applications.

Finally, there’s a “Takings Clause” argument which strikes me as the weakest (but, then again, it’s put last and not all that well developed):

The Takings Clause provides that “private property” shall not be “taken for public use, without just compensation.” U.S. Const. amend. V, cl. 5. The Act does just that by shutting down ByteDance’s U.S. businesses or, to the extent any qualified divestiture alternative is even feasible (it is not), compelling ByteDance to sell those businesses under fire-sale circumstances that guarantee inadequate compensation.

All in all, it’s a well-argued brief, making basically all of the arguments everyone was expecting to be made here. The law required this petition be brought straight to the DC Circuit appeals court, so we get to skip the fun of a random judge at a district court making some ridiculous ruling. Instead, we’ll see what a panel of appeals court judges think. No matter what happens, this case is going to the Supreme Court.

I’ve seen some people saying that no argument will work because the conservative majority on the court will ignore anything in favor of “China bad!” but I’m not convinced of that. From what we’ve seen in recent cases, there are still at least some Justices on the court who seem to believe in a principled First Amendment take. We’ll just have to see if there are enough of them.

Filed Under: 1st amendment, 5th amendment, bill of attainder, cfius, dc circuit, due process, equal protection, strict scrutiny, takings clause, tiktok ban
Companies: bytedance, tiktok