Elon Loses His Favorite Law Firm In Data Scraping Case Because They Played Both Sides

Legal Issues

from the least-shocking-news-of-the-day dept

It’s pretty rare to see a judge disqualify a law firm from taking on a case. But Judge William Alsup has done just that, disqualifying the litigation powerhouse law firm Quinn Emanuel from representing ExTwitter in a big data scraping case.

We wrote about this case back in May, highlighting both the importance and complexities of it. There are all sorts of questions about whether or not scraping content from the public web should be allowed or not. Companies like Facebook have fought against it for years, but other companies were less concerned about it until recently. And that’s because over the last couple of years, they’ve realized that AI companies are willing to pay millions of dollars to get access to that data.

Both Meta and ExTwitter have targeted Bright Data, one of a number of scraping companies. So far, Bright Data has won lawsuits against both companies. Courts have said, “hey, look, this is public information, and you can’t sue someone for collecting public information.”

In the ExTwitter case, Judge Alsup gave the company about a month to try to file an amended complaint to see if the company could salvage any sort of legitimate claim. Just before that deadline, some lawyers from Quinn Emanuel (one of Elon’s favorite law firms) made an appearance on behalf of ExTwitter (basically, because the original complaint was so trounced, Elon was handing the case over to Quinn in hopes they could rescue it).

However, the folks at Bright Data were a bit surprised by this and quickly filed a motion to disqualify Quinn from the case, noting that Quinn had been retained and done work with Bright Data in its nearly identical case against Meta. This meant that (1) they would have inside knowledge of Bright Data and its litigation strategy and (2) they were effectively “switching sides” in a case, which is a huge legal ethical problem.

When Meta and Bright Data filed dueling lawsuits against each other, Bright Data engaged Quinn, Emanuel, Urquhart & Sullivan, LLP for advice. Now, Quinn has switched sides, representing X in suing Bright Data to prevent public web scraping and to shut down the same services at issue in the Meta case. Doing so violates the core tenets of loyalty and confidentiality under California’s Rules of Professional Responsibility. Quinn must be disqualified.

Quinn shot back that it had really done nothing too big or important for Bright Data, hadn’t learned anything confidential, and that this was another case anyway (this one is about ExTwitter, not Meta!)

The fact that different Quinn Emanuel attorneys (who are now ethically walled), pursuant to a tailored engagement letter, previously billed 30.6 hours for discrete, peripheral advice regarding a specific lawsuit in which Bright Data allegedly breached a different social media platform’s different terms and conditions should not result in X being deprived of its chosen attorneys at Quinn Emanuel in a case concerning Bright Data’s breach of X’s terms of use and other claims.

Judge Alsup is not known for putting up with bullshit, and has disqualified Quinn, and did so in fairly stringent terms. I’d call this a minor benchslap.

X does not dispute the central facts or law undergirding Bright Data’s motion. In its own words, “disqualification becomes mandatory” if the X and Meta matters are “substantially related.” And it tallies a team of nine attorneys who provided an overall assessment of the Meta litigation. Save for what it acknowledges are “minor wording” differences between Meta’s and X’s Terms, it agrees the cases are virtually identical, involving the same Bright Data services and conduct, and the same legal issues for the overlapping claims. The cases are irrefutably “substantially related.”

X argues this is not dispositive because Quinn’s role in the Meta case was too short-lived, “discrete,” or “limited” to trigger any ethical obligation beyond that, no matter how related it is. But the disqualification inquiry focuses on the relatedness of the cases and whether the lawyer had a “direct and personal” contact with the former client. That Quinn was not lead counsel is irrelevant. Nor can Quinn escape disqualification by characterizing its engagement as “limited.” That is just lawyer argument. The facts are that Quinn was hired to provide an overall assessment of the Meta litigation, and its report covered all aspects of the case, including procedural issues, discovery, strengths and weakness of the claims, defenses, and other issues.

And what about the fact that that case was about Meta, and this one is about ExTwitter? Judge Alsup wasn’t born yesterday.

True, X says, but irrelevant, because X was not mentioned by name. But cases can be substantially related even if the plaintiff is different. X concedes it geared its advice to place Bright Data in the best position procedurally and substantively to defend future claims by other website operators. That these other operators were referred to categorically, rather than by name, does not render Quinn’s advice immaterial, given that the conduct and governing law are the same.

Faced with undeniable factual and legal similarity, X tries changing the test. “To determine whether a substantial relationship exists,” it says, Bright Data must show that “any information Quinn Emanuel acquired … is material to the X Matter.” Q.Br. 8-9. But “this type of inquiry is outlawed.” Farris v. Fireman’s Fund Ins. Co., 119 Cal. App. 4th 671, 683 n.10 (2004). Under Rule 1.9(a), access to confidential information is irrelevant; and under Rule 1.9(c), access is presumed in substantially related matters. Neither rule would make sense if Bright Data had to prove that Quinn has confidential information to avoid proving that fact.

Regardless, Quinn possesses a wealth of material information. X’s efforts to minimize this through lack of recollection and disregard for the connections between the two cases cannot overcome the facts. Elan Transdermal Ltd. v. Cygnus Therapeutic Sys., 809 F. Supp. 1383, 1392- 93 (N.D. Cal. 1992) (“The Court, reading the stack of declarations from Irell attorneys, all proclaiming their ignorance …, is reminded of the words of Hamlet’s mother: ‘The lady doth protest too much, methinks.’”). Quinn prepared and received attorney work product, and engaged in multiple attorney-client communications, going to the heart of the legality of the services at issue. Not even the Quinn Report’s primary author claims irrelevance.

And, just to drive the point home:

The Court, it says, should use its “equitable” powers to forgive its past transgression and sanction its continuing ethical violation. But California courts do “not engage in a ‘balancing of equities’ between the former and current clients. The rights and interests of the former client will prevail.”

There’s a lot more in the opinion, but Judge Alsup is not at all impressed by the arguments Quinn lawyers are making here. I mean:

In any event, Quinn’s representation was not narrowly circumscribed. It was not asked to opine on some arcane or peripheral issue of, say, tax law or even copyright law. Bright Data retained Quinn because it was lead counsel in hiQ and familiar with Bright Data’s scraping technology from discovery in that case. Avisar ¶ 2. Quinn was given broad remit to advise on all of Bright Data’s defenses and strategies in the Meta cases. That is not “peripheral;” it is core.

Nor is there merit to X’s argument that Quinn’s advice was only tangentially relevant to this case. Quinn concedes it provided advice with an eye towards future suits by “other” website operators. Skibitsky ¶ 11. To minimize this fact, Ms. Skibitsky observes that Bright Data only quoted from the Quinn Report’s Executive Summary. Id. at ¶ 18. But the very purpose of an Executive Summary is to highlight the most important points in the Report. And this one was even in bold italics. One does not do that for unimportant points. Nor does Ms. Skibitsky deny that Quinn extensively discussed these issues with Bright Data’s Board. At most, she states that she can’t recall which “specific website operators” were discussed. Id. But that does not change the undisputed fact that she and her colleagues discussed Bright Data’s strategy for defending the identical services from identical claims by other website operators.

And thus, sorry Elon, Quinn needs to sit this one out.

Filed Under: both sides, conflicts of interest, data scraping, ethics, legal ethics, william alsup
Companies: bright data, quinn emanuel, twitter, x

Daily Deal: Rosetta Stone

Deals

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

Embark on the journey of language learning with the Rosetta Stone lifetime subscription for all languages. Rosetta Stone has been the go-to software for language learning for the past 27 years. With its immersive and intuitive training method, you might be reading, writing, and speaking a new language with confidence in no time. It’s on sale for $190.

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

Fourth Circuit Finds In Favor Of Geofence Dragnet Deployed To Catch Robbery Suspect

Privacy

from the some-strange-ideas-about-the-word-voluntary dept

Back in 2022, a federal court responded to a challenge of a geofence warrant with some good questions. But its ultimate ruling was a shrug. A geofence warrant obtained by investigators searching for a bank robbery suspect covered a whole lot of ground, subjecting hundreds of innocent people to a search of their geolocation records.

In this decision, the court actually arrived at the conclusion that the search was probably illegal and unsupported by probable cause to effect the search. That the search was performed by Google and not law enforcement itself didn’t matter.

The original geofence warrant covered 17.5 acres in Midlothian, Virginia — an area that included not only the robbed bank but a nearby church and its parking lot.

After getting the warrant approved, the investigators served it to Google. Google did a little pushing back and the final version shrunk the area a bit, but it still covered a whole lot of non-bank robbers, considering the request was for all geolocation data generated in this area between 4:20 and 5:20 pm.

The lower court said the good faith exception salvaged the search, even if it was illegal, because how were investigators supposed to know that casting a 1.75-acre, one-hour dragnet might implicate the privacy rights enshrined by the Fourth Amendment. The court had enough problems with its own ruling that it raised these valid points about the questionable constitutionality of geofence warrants:

[T]he Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.

But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (“At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual’s privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a “right without a remedy.”

Those concerns aren’t shared by the Fourth Circuit Appeals Court. It has responded [PDF] to Okello Chatrie’s appeal with an affirmation of the lower court’s (limited and reluctant) blessing of the investigative dragnet. And it goes further than that, claiming the location data gathered by Google doesn’t come with an expectation of privacy attached.

[W]e find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.

But that assumption runs contrary to the points raised by the US Supreme Court in the Carpenter decision. In that case, it held that collecting long-term cell site location data required the use of a warrant. It also pointed out the base assumption contained in the Third Party Doctrine (that anything shared voluntarily with third parties has no expectation of privacy) doesn’t always apply. While people understand they’re sharing information with their bank in order to avail themselves of bank services, they don’t always understand that cell towers and service providers like Google are collecting information on them hundreds of times a day. None of that is affirmative, so it’s a bit misleading to call something no one has any power to stop (not if they want access to cell service or other third party services) “voluntary.”

The Fourth Circuit says Google location data collection, however, is voluntary. That’s because several steps must be taken to allow Google to collect this data. (This has not always been the case and, in the past, Google has been known to collect this data even when users have opted out of this data collection.) It says the Third Party Doctrine applies, denying Chatrie’s challenge of the warrant.

The third-party doctrine therefore squarely governs this case. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he “t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government.” He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.

So, in the eyes of the majority, the government doesn’t even really need a warrant to collect this data. It could have just sent Google a request for the information without having to run it by a judge first. As the dissent points out, that’s because even the government believes this is the sort of search that necessitates the use of a warrant.

At the heart of this appeal, the majority opinion concludes that the government has a virtually unrestricted right to obtain the Location Data History of every citizen. But I believe the government needs a warrant to obtain such Location History data. And that’s something the government itself apparently believed at the time it conducted the respective intrusion, since it sought and obtained a warrant in this matter.

That, of course, does nothing for Chatrie. But it does show the government thinks there’s an expectation of privacy in this data, even though the Fourth Circuit claims there isn’t.

But the bigger point is the problem courts generally don’t address because they don’t have to: the intrusions created by geofence warrants that cannot possibly be supported by probable cause, which means the warrants will almost always be deficient. But the thousands or millions of people whose records are searched have no standing to challenge the search because they never even know it happened.

[G]eofence intrusions are even broader than the intrusion in Carpenter because there is no limit on the number of users police can include in a geofence. With CSLI, police at least had to provide a specific phone number to search, so they had to identify a criminal suspect before they could pry into his or her historical CSLI data. By stark contrast, geofence intrusions permit police to rummage through the historical data of an unlimited number of individuals, none of whom the police previously identified nor suspected of any wrongdoing. Indeed, the very point of the geofence intrusion is to identify persons whose existence was unknown to police before the search.

Both the majority and the dissent make good points. I’d argue the dissent makes the better points. But in the end, it’s the majority ruling that matters. And, in this circuit, the ruling seems to say investigators don’t even need warrants to perform these searches. There’s one option left for Chatrie and it’s the Supreme Court. The nation’s top court is going to need to deal with this issue and its relation to Carpenter eventually and Chatrie’s case is as good as any to serve that purpose.

Filed Under: 4th amendment, 4th circuit, geofence, geofence warrant, good faith, okello chatrie, reverse warrant, virginia
Companies: google

Just A Reminder: Authoritarians Don’t ACTUALLY Support ‘Antitrust Reform’

Overhype

from the fascism-is-not-your-friend dept

A few years ago you might recall there was a three year news cycle about how the modern Trump GOP was somehow “serious about antitrust reform this time.” The party, which has never met a consolidated monopoly it didn’t adore (see: airlines, telecom, pharma, health, energy), was suddenly getting credited in the press for being a serious player in reining in the worst impulses of corporate power.

In reality, the GOP was seeking leverage against a handful of tech companies to bully them away from moderating right wing political propaganda on social media. Most of the disjointed efforts to actually crack down on corporate power or monopolization were badly crafted and went absolutely nowhere, though tech giants did ultimately scale back disinfo moderation efforts ahead of a pivotal election.

Funny, that.

I feel like we’re at risk of entering another, similar cycle with the selection of J.D. Vance as the Republican nomination for Vice President. Stories are already starting to flow discussing Vance’s bonafides as a very serious antitrust reformer, and somebody very serious about reining in corporate power. Here’s how Reuters frames it, for example:

“Vance is one of several Republican lawmakers, including U.S. Senator Josh Hawley of Missouri and Florida U.S. Representative Matt Gaetz, called “Khanservatives” for their agreement with the FTC chair that U.S. antitrust law has a broader purpose than keeping prices down for consumers.”

If you recall, Josh Hawley was plastered around the media as the poster child of a new era of right wing interest in antitrust reform, buoyed at times in post-leftist circles by folks like Matt Stoller. But Hawley’s interest in antitrust reform proved entirely hollow, because authoritarians and the oligarchs that coddle them only really care about one thing: power and unchecked wealth accumulation.

Democrats and more traditional Republicans also have this fixation, but authoritarianism is a truly next-level affair that holds zero interest in democracy, the rule of law, or the public interest, and holds even less reservation about the indiscriminate use of violence. Bullying corporations to support bigotry-fueled fascism should never be conflated with good faith efforts to rein in corporate power or police monopoly.

This superficial support for antitrust reform is a pseudo-populist effort to win over low information voters that may not be fully versed with the full brutal impact of real-world authoritarianism.

It’s also intended to obscure the real goal: forcing social media giants to take the knee to the interests of authoritarians, for whom a major cornerstone of power is online propaganda and disinformation. Authoritarians that also very much dream of a future where there are no repercussions for widespread criminality, cruelty, and fraud. It’s hard not to miss the impact of those efforts so far.

The U.S. press is often complicit with this con. See here, for example, where Reuters frames Trump, despite everything we know about his corruption, as somebody actually interested in “antitrust reform” (as opposed to a petty tyrant waging a weird and unproductive grievance campaign against largely amoral self-serving corporate giants he has, falsely, misinterpreted as predominantly left wing because they very briefly tried to stop a few racists from being assholes on the internet):

“Scrutiny of Big Tech would not be a departure for Trump. The FTC and Department of Justice under Trump initiated investigations into Meta, Amazon, Apple, Google over alleged antitrust violations. All four companies were eventually sued, and have denied wrongdoing.”

These weren’t investigations as so much as they were performance art designed to bully. And if you hadn’t noticed, they were very ineffective at actually policing consolidated corporate power, but very effective in chasing big companies away from everything from moderating election lies to embracing bare-bones inclusivity initiatives.

Vance will occasionally veer from party orthodoxy to score brownie points with rural constituents (see recent opposition to successful GOP efforts to kill a low income broadband subsidy program). But he’s not going to, say, suddenly support giving the FCC the funding and authority to take aim at Comcast’s clearly harmful telecom monopoly, or start body checking pharmaceutical empires.

When you scratch below the surface on a lot of this stuff you’ll routinely find it’s simply performance.

The primary interests of the Federalist Society and the tech titan VCs payrolling Vance and friends isn’t truly cracking down on monopoly power, or limiting the power of corporations. The primary goal is the almost total lobotomization of what’s left of regulatory power (see: recent Supreme Court rulings), and the dismantling of government efforts to rein in corporate fraud.

Even if Vance isn’t just a stuffed suit authoritarian opportunist speaking out of both sides of his mouth to earn brownie points with rural voters (and I most assuredly think that, like Hawley, that’s the case,) he’s not going to be operating in any sort of political environment that allows him to pursue those interests.

A Trump Presidency means an immediate and abrupt end to the Lina Khan antitrust reform outlets like The Verge and Reuters insist Vance is a big fan of. And make no mistake: backed by a suite of disastrous and corruption-fueled Supreme Court rulings, a second Trump administration is going to absolutely crush what’s left of U.S. corporate accountability and oversight, wreaking complete havoc across consumer protection, public safety, internet policy, and labor and environmental reform.

If you think any of that actually ends well for actual American employees, consumers, and small businesses without seven-figure lobbying budgets and a trust fund, good luck.

Filed Under: antitrust, antitrust reform, authoritarianism, chevron, consumer protection, donald trump, fascism, fcc, ftc, jd vance, lina khan, populism, regulatory

New Zealand Joins Australia In Denying Geographical Indicator Trademark For ‘Basmati Rice’

Trademark

from the GI-tract dept

While the vast majority of what I get to read about when it comes to intellectual property law generally, and trademark law specifically, makes me roll my eyes, the concept of geographic indicator trademarks actually isn’t one of them. The application of GI marks certainly does get my fur up often times, but the concept as laid out by WIPO, for instance, really doesn’t.

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place.

This speaks directly to the concept of trademark law, generally speaking. Trademarks are designed to do two things, primarily. First, to inform the buying public as to the source of a good or service. Second, to protect against knockoffs of trademark-protected products from tarnishing the reputation of those protected products due to poor quality of the knockoffs. For instance, “Swiss made” watches have a geographic indicator mark, which means that you can’t say your watch is Swiss made unless it was, you know, made in Switzerland. That seems reasonable.

Which brings us to basmati rice. This rice variant has its origins hundreds of years ago in India. India has been trying to get GI marks on the term “basmati” in the same annoying way as France has for “champagne” for years now, but has been denied both in Australia and, more recently, in New Zealand.

The Intellectual Property Office of New Zealand (IPONZ) has turned down the Government of India’s application for the GI trademark of basmati rice. New Zealand has cited reasons for rejecting India’s trademark application, mainly due to the farming and production of basmati rice beyond the Indian region. (1). The Agricultural and Processed Food Products Export Development Authority (APEDA), also recognised as Indian authorities for the protection and registration of Indian exports, filed the trademark application to the relevant countries. The authorities have also previously failed to trademark ‘BASMATI’ in Australia.

So here we have to separate two things. It’s true that basmati rice originated from India. But when the buying public worldwide, or in New Zealand in this case, buys basmati rice, the question is whether they do so believing the rice itself came from India or if they suffer in the quality of the product when it does not. And the answer according to the New Zealand government to those questions is a resounding “no.” There don’t appear to be any real allegations that the quality of the product is meaningful when we’re talking about the basmati variety grown in other countries. And there are several countries that have their own lengthy history of growing the variant.

Both New Zealand and Australia governments rejected India’s trademark or GI application on related grounds, citing the basmati rice as ‘not only grown in India’ or similar. IPONZ stated that basmati rice is produced in multiple rice-producing countries, including Pakistan, considered second after India in basmati rice production. IPONZ decided India’s application demonstrated contributions from neighbouring countries to the basmati rice market. On these grounds IPONZ refused to grant exclusive rights of the term ‘BASMATI’ to the Indian authorities. Although, India has a 100-year history of basmati rice farming as compared to Pakistan’s 75-year history. Moreover, The Trade Development Authority of Pakistan had also applied for the ‘BASMATI’ trademark certification late last year to protect its rights, the case is still pending. IPONZ recently issued its decision declining the Government of India’s certification application for the BASMATI word mark, citing the existence of rice growers outside of India who also have a right to use the term.

It isn’t only Pakistan that exports basmati rice, actually. Variants are also grown in Indonesia, Kenya, and even in the United States. And if your average New Zealander isn’t at the store buying basmati rice under the assumption that it was grown in India, then a GI trademark simply isn’t warranted.

This has the looks of a country trying to rewind the clock and take ownership of a cultural item that long emigrated outside of its borders. Perhaps there was a time in the past where a GI mark for basmati would have made some sense. In 2024, however, it very much does not.

Filed Under: australia, basmati rice, geographical indication, iponz, new zealand, trademark

NYPD Officers Take Griping About Paperwork To New Level As New Reporting Law Goes Into Effect

Legal Issues

from the cry-more dept

New York’s finest just don’t want to have to do the work that comes with being a cop. They’ve really never wanted to do it.

A new law requires officers to collect more data during more encounters with New York residents, which has kicked off a new wave of bitching from those who think they should be above the law, especially laws they don’t like.

The controversial new city law requiring NYPD cops to file reports on all low-level investigative stops with New Yorkers officially kicked off Monday — and rank-and-file officers weren’t happy.

“A huge pain in the ass,” one law enforcement source told The Post.

Well, that clears up the problem. It’s a huge pain in the ass, apparently. And even the mayor, Eric Adams, agrees with the cops. The law managed to pass despite his veto, but at least he’s being halfway gracious about it.

“We need our officers on patrol, not doing paperwork, but it’s the law, and we must follow the law,” Adams told 1010 WINS.

But is it really “controversial,” as the pro-cop New York Post puts it? And is it even really all that new?

What’s being asked of officers isn’t all that much more than they do now. The “reports” on low-level stops isn’t really a huge amount of additional reporting. It only asks officers to document the “aggregate number” of these stops per shift.

The next level of stops — where cops stop and question people or seek consent for a search — requires more in-depth reporting. Each one will have to be documented separately and contain demographic information on the people stopped.

The New York Post article leads with the complaints before delivering this paragraph, which suggests these low-level stops won’t trigger the law’s requirements for anything more specific than an approximate guess on total “level 1” stops per shift.

The internal order makes clear that cops don’t have to report on casual encounters with the public unless officers develop reasons to collect information or suspicion that a crime has been committed.

The thing is this is what’s been in place for years, ever since a federal judge found the NYPD’s “stop and frisk” program to be a vehicle for routine rights violations more than a decade ago. The NYPD was ordered by Judge Shira Scheindlin to document these stops, including the demographic information of people stopped, since the program had mainly been used to harass minorities.

Three years later, not much had changed. Lots of violations of Judge Scheindlin’s order were discovered, the most prominent being the apparent utter refusal to properly document these stops. This new law simply codifies what’s been in place for more than decade, albeit in a way that makes it a bit more difficult for the rank-and-file to ignore.

On top of that, a law went into effect at the beginning of 2023 that required officers to document traffic stops (including stops of bicyclists) in a similar fashion. This was the direct result of officers deciding to move stop-and-frisk from the sidewalks to the roadways in hopes of avoiding the court-ordered paperwork.

The pattern is obvious. Laws and court orders demand more documentation. Cops whine about each iteration, either unwilling or unable to recognize that it is their own actions (or rather, inaction, in these cases) that generates legislation and court orders mandating additional reporting on stops. If they’d just gotten on top of it ten years ago, they might not have been the recipients of consecutive new laws crafted for the sole purpose of making them do their damn jobs properly.

Bitch away, coppers. But until you’re willing to do the job right, the rest of the government will just keep piling on the paperwork.

Filed Under: new york, nypd, police misconduct, police stops, stop and frisk

How The Other EV Transition — To E-bikes — Is Changing The World

Innovation

from the power-to-the-people dept

One of the most important transitions taking place today in technology is the shift to electric vehicles (EVs). Most attention is focused on electric cars. That’s in part because they are big glamorous items, and they have high-profile cheerleaders like Elon Musk. But there is another side to this transition to electric power, less glamorous but arguably more important, at least in some parts of the world. This is the shift to electric bicycles — e-bikes.

According to a recent article in Bloomberg, battery-powered ebikes now outsell pedal-only models in several European countries. You might think that would be great for the local environment. But Philippe Crist, a micromobility researcher at the Paris-based International Transport Forum, the transportation arm of the OECD, points out why that might not be the case. Asked by Bloomberg whether e-bikes have demonstrably reduced emissions from transportation, he replied:

I don’t know for sure, but I suspect it has not. Again, most e-bike buyers [in Europe] — not all, but most of them — are replacing a bicycle, so they were biking already. Of course, lifecycle emissions from bikes of all kinds are far lower than from cars.

By contrast, the uptake of e-bikes in the US has real benefits:

Compared to Europe, in North America you have a greater population of people who’ve never cycled for everyday travel. For that reason there are more people in North America who are buying an e-bike as their first adult bicycle, or using the e-bike to get places or do chores that they’ve not used a bike for before. So the benefits of e-bike adoption in North America may be greater than in Europe, because more car trips could be replaced.

That’s good news for US cities. But in other parts of the world, the shift to ebikes has a more direct positive impact on the lives of people. For example, in Bangladesh e-rickshaws are widely used, but were illegal until a couple of months ago. An article on the Rest of the World site explains:

There are between 2 million and 4 million e-rickshaws in the country, which have operated without any regulations or monitoring. Once the new regulations come, e-rickshaws will rule Bangladesh’s roads, according to experts who have studied the vehicle’s usage.

Rickshaws powered by electric motors not only make the physically demanding job of a rickshaw driver easier. They open up the profession to women, with important knock-on benefits for their independence. CBC News reports on an example from India:

A faded battery-powered rickshaw weaves in and out of traffic in New Delhi’s northwestern Jahangirpuri neighbourhood on a weekday morning, looking for passengers before sputtering into a narrow space in a row of brightly-coloured three-wheelers to charge its dying battery.

Behind the wheel is Suman, a 36-year-old mother of four, who takes pride in her chosen profession. Suman, who like many Indians goes by only one name, fought against the wishes of her husband and extended family to drive an e-rickshaw to provide for her daughters, who range from four to 18 years old.

As Suman explained:

“The best thing about an e-rickshaw is that you are not working under someone,” Suman told CBC News. “You can make some money, then take a break when the kids need to be sent to school.”

These very basic e-rickshaws, which cost around $1,500 to buy in India, lack the massive impact — both metaphorical and literal — that ultra-heavy EVs have in the US. But they may well change for the better the lives of many more people.

Follow me @glynmoody on Mastodon and on Bluesky.

Filed Under: bangladesh, bicycles, ebikes, electric vehicles, elon musk, EVs, india, rickshaws

Meta Tells Court Section 230 Shouldn’t Empower Users And Third Party Apps

Legal Issues

from the why-oh-why-are-we-doing-this? dept

Meta has a long history of making sure no one but Meta, or Meta-approved apps, can operate on top of its services. And now, in a new court filing, it’s going to somewhat ridiculous lengths to try to stop one developer from making sure he won’t get sued for creating a tool that automates clicking some buttons in the Facebook UI.

In early May, I had a long post about a kinda wacky lawsuit filed by Ethan Zuckerman against Meta, in which he argued that (among other things) a mostly-ignored clause in Section 230 gave him (and anyone else) immunity for building middleware level products that operated on larger social media sites.

I won’t go over all the background again, but the key part is that Section (c)(2)(B) of 230 says:

No provider or user of an interactive computer service shall be held liable on account of any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

With “paragraph (1)” being the lack of liability for any action taken in good faith to restrict access to content deemed to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

While Section 230 is often (misleadingly) discussed as providing social media platforms some sort of unwarranted liability shield, the argument Zuckerman is making is that this clause means that he couldn’t face legal liability if he were to create a tool that would (in this particular example) allow Facebook users to go in and unfollow everything and everyone they follow with the click of a button and allow those users to then share some data with academic researchers.

This lawsuit caused way more chatter among tech policy and law watchers than I’m used to. It was a really novel approach. Some definitely worried that if the lawsuit succeeded, it might make certain bad actors immune from certain lawsuits. But, frankly, I still don’t see that. As I explained, the claims here don’t prevent sites from taking technical measures (blocking, rate limiting, etc.). They only seek to stop Meta from using questionable legal theories, such as CFAA claims of “unauthorized access” to bully developers with threats of huge fines (or even criminal charges).

So, while I wasn’t sure the litigation strategy would work, I am hopeful that it succeeds. It could help establish a more vibrant market for middleware, giving users more control over their own data, as well as the apps and services that they use. In fact, it would bring us back a bit towards the earlier internet world, where building on top of other services was considered normal.

Meta has now filed its motion to dismiss in the case. I’m a little surprised not just by the argument, but by how weak it is. That’s not to say it won’t succeed, as it gives plenty of opportunities for a judge to just toss out the case (judges, especially in the 9th Circuit, seem to really hate declaratory judgment, especially in non-IP cases).

The crux of the argument is this: Zuckerman hasn’t yet created his “Unfollow Everything 2.0” app, and therefore there is no actual controversy, so the case should be dismissed.

The Court should decline Plaintiff’s request to invoke this Court’s limited jurisdiction to issue an advisory opinion about a non-existent tool. Plaintiff’s claims—which are contingent on facts that cannot be known until after he has created and released Unfollow Everything 2.0 and Meta has had an opportunity to evaluate how the tool actually works—are not ripe for review under either Article III of the Constitution or the Declaratory Judgment Act, 28 U.S.C. § 2201. Even if the claims were ripe, jurisdiction under the Act remains discretionary, and there are a host of prudential reasons why exercising jurisdiction would not make sense here. Adjudicating Plaintiff’s claims would require needless rulings on hypothetical applications of California law, would likely result in duplicative litigation, and would encourage forum shopping. Nor is it clear that Plaintiff has a bona fide plan to launch this tool. He has widely spoken about this case in the media, going so far as to characterize it as an opportunity for courts to “shap[e] policy.”1 The Court should reject Plaintiff’s invitation to issue such an advisory opinion and follow the more prudent course of declining jurisdiction.

But, of course, that ignores the very clear chilling effects issue related to this case. Yes, Zuckerman has not released such an app because he saw the legal threats that the creator of Unfollow Everything 1.0 received, as well as Meta’s past legal actions going after companies like Power Ventures. This isn’t a theoretical issue. Meta has shown that it will absolutely engage in lawfare to go after third-party app builders, and thus there is a real controversy and concern here.

Within this, there are some other odd mini-arguments, including the fact that since Meta can change how the “unfollow” button works, the eventual app might work differently, and thus the case is not yet ripe for court.

But, that seems to be a weird way of admitting that Meta has the technical ability to break the app, which no one denies, and no one is challenging. But if the ability to technically break a middleware product means you can never challenge the threat of legal liability… well… that wouldn’t make any sense at all.

Even so, Meta’s lawyers argue that the case should still be dismissed, even if the judge determines that the chilling effects are enough to allow the case to move forward. But they do so by pulling a sleight of hand move to avoid discussing the actual issues:

First, use of Unfollow Everything 2.0’s anticipated automation of Facebook processes would violate Meta’s Terms of Service (“Terms”), which prohibit accessing or collecting data from Facebook “using automated means.”

So what? The whole point of the lawsuit is that in the event that such an app violates such policies, Meta still remains able to use technical measures to stop or block the app, just not legal ones.

Then there’s this very, very strange and legally wrong argument:

Plaintiff’s invocation of section 230(c)(2)(B) of the Communications Decency Act, 47 U.S.C. § 230 et seq., is without merit, as (1) section 230(c)(2)(B) does not immunize Plaintiff from his contractual obligations under Meta’s Terms as a matter of law; (2) it is highly unlikely from Plaintiff’s allegations that he would qualify as an “interactive computer service” provider; and (3) the allegations do not show that Plaintiff’s tool would “restrict access” (rather than “restrict availability”) of content

This paragraph gets so many things wrong, I’m not sure where to begin. We’ll get back to the argument about contractual claims in a minute, but I want to focus on the idea that Zuckerman would not qualify “as an interactive computer service.”

That doesn’t matter.

The law clearly says (and multiple courts have reinforced) that the liability protection applies to “providers or users.” And he is absolutely a user. The fact that he might not be a provider is meaningless. There’s an entire section devoted to this argument, and I don’t understand why Meta thinks it matters, unless they think that the judge (like some amateur Section 230 commentators) will somehow skip over the “or user” part of Section 230.

As for the claim that 230(c)(2) should not bar liability based on contracts liability, I don’t think that’s right and I also don’t think Meta realizes the harm it might be doing in arguing that. Because people in the past have certainly brought “breach of contract” claims against Meta over content moderation decisions, and Meta has relied on 230 to get them dismissed. Be careful what you litigate for, Meta.

Finally, as for the claim that Zuckerman’s app would only “restrict availability” rather than “restrict access,” this seems like a meaningless distinction. What is the actual difference here? How are those different things? It kinda feels like Meta saying “if we call this something different, maybe we can pretend the law doesn’t apply to us.”

Indeed, so much of what Meta is arguing here seems to be about pretending that Zuckerman is saying they can’t use technical means to block his app. But the lawsuit isn’t arguing that at all. It is just focused on making sure that Meta can’t threaten him with a baseless lawsuit for creating an app that is useful to a small group of users, and that simply automates a feature that Meta already makes available to any user directly.

Meta cites some earlier Section 230 cases, such as Alex Berenson’s case against Twitter or the seminal Barnes v. Yahoo. Meta uses these examples to argue that 230(c)(2) liability protections don’t apply to breach of contract claims. However, this twists what actually happened in those cases, which were related to questions around content moderation and whether or not employees of the companies had made additional promises above and beyond the terms of service to do (or, in the Berenson case, not do) certain things.

That is wholly different from what Zuckerman is arguing here: that 230, and its policy of encouraging third-party tools for dealing with content issues online, should make these apps immune from civil liability from the platforms.

One other note on this: in the original lawsuit, Zuckerman and his lawyers from the Knight First Amendment Institute point out (a few times) that he’s hoping to use his Unfollow Everything 2.0 app for academic research. In the Motion to Dismiss, Meta argues that this is meaningless because Meta has policies and offerings in place for researchers to get access to certain data.

Meta supports rigorous and independent research into the potential impact social media services like Facebook may have on the world, and it makes available tools and processes to help researchers gain access to information and analytical capabilities to support their research through a privacy-protective approach. See, e.g., Research Tools and Data Sets, Meta Transparency Center, https://transparency.meta.com/en-gb/researchtools/; Our Approach, Facebook Open Research & Transparency, https://fort.fb.com/approach. Plaintiff does not indicate whether he has considered using these tools or why his research could not be conducted through them.

Who cares? There’s no legal requirement that you use only approved methods of doing research. Why even make this argument?

Anyway, I’m still not convinced Zuckerman will succeed with this legal theory, but Meta’s motion to dismiss seems really off base in multiple ways.

Filed Under: adversarial interoperability, ethan zuckerman, middleware, section 230, unfollow everything
Companies: meta

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