Our Crowdfund For Our Paper Exploring NFTs Will Be Ending Soon

from the heads-up dept

Last week we announced that we wanted to write a paper exploring the NFT phenomenon, and specifically what it meant with regards to the economics around scarce and infinitely available goods. To run this crowdfund, we're testing out a cool platform called Mirror that lets us mix crowdfunding and NFTs as part of the process (similarly, we're now experimenting with NFTs with our Plagiarism by Techdirt collection).

We were overwhelmed by the support for the paper, which surpassed what we expected. The "podium" feature -- which gave special NFTs to our three biggest backers -- has closed with the winners being declared, but the rest of the crowdfund will remain open until this Thursday evening. We also offered up a special "Protocols, Not Platforms" NFT for the first 15 people who backed us at 1 ETH or above. So far, ten of those have been claimed, but five remain.

Filed Under: crowdfunding, nfts, paper, protocols

Yet Another Move To Funnel Money To Big Copyright Companies, Not Struggling Creators

from the who-is-copyright-for dept

When modern copyright came into existence in 1710, it gave a monopoly to authors for just 14 years, with the option to extend it for another 14. Today, in most parts of the world, copyright term is the life of the creator, plus 70 years. That’s typically over a hundred years. The main rationale for this copyright ratchet – always increasing the duration of the monopoly, never reducing it – is that creators deserve to receive more benefit from their work. Of course, when copyright extends beyond their death, that argument is pretty ridiculous, since they don’t receive any benefit personally.

But the real scandal is not so much that creators’ grandchildren gain these windfalls – arguably something that grandpa and grandma might approve of. It’s that most of the benefit of copyright goes to the companies that creative people need to work with – the publishers, recording companies, film studios, etc.

One of the cleverest moves by the copyright industry was to claim to speak for the very people it exploits must brutally. This allows its lobbyists to paint a refusal to extend copyright, or to make its enforcement harsher, as spitting in the face of struggling artists. It’s a hard argument to counter, unless you know the facts: that few creators can make a living from copyright income alone. Meanwhile, copyright companies prosper mightily: some publishers enjoy 40% profit margins thanks to the creativity of others.

By claiming to represent artists, copyright companies can also justify setting up costly new organisations that will supposedly channel more money to creators. In fact, as later blog posts will reveal, collecting societies have a record of spending the money they receive on fat salaries and outrageous perks for the people who run them. In the end, very little goes to the artists they are supposed to serve.

EurActiv has a report about an interesting new copyright organization:

French publishers are close to launching a new body to collectively negotiate with online platforms, while the dispute with Google raises fundamental questions on how to monetise online content.

The president of the Institute for Digital Fundamental Rights (IDFR), Jean-Marie Cavada, told lawmakers in the French parliament that the set up of the new collective management organisation (CMO) will be completed in the next month.

The new body, which Cavada will lead, is to be in charge of negotiating with online platforms the remuneration of press publishers under the neighbouring right.

This “neighbouring right”, yet another extension of copyright, is being brought in as part of the EU’s Copyright Directive, passed two years ago. It’s interesting to note that the new organisation will be headed up by Jean-Marie Cavada, a French politician who played a leading role in getting the EU’s Copyright Directive passed. It’s a small world.

This “right” is also known as the “snippet tax”, because it basically requires online companies like Google to pay when even tiny excerpts of press materials appear on their sites. A moment’s reflection is enough to show that this is absurd: such snippets are effectively free advertising for publications, and they drive traffic to sites for free – something confirmed by research carried out in 2017 for the European Commission. If anything, press publishers should pay online companies like Facebook, Google and Twitter for the work they do.

But a clever campaign convinced EU lawmakers that the creators – in this case journalists – ought be paid more, and that Big Tech was somehow exploiting their work by displaying short excerpts in search results etc. And so the Copyright Directive was passed requiring online platforms to negotiate payments for the use of snippets, even though this has been a disaster in the two markets – Germany and Spain – where the approach has already been tried. As that 2017 European Commission report found:

After an initial rejection and chilling effect on traffic to their websites, German publishers agreed that news aggregators could take their content without remuneration. Spanish publishers did not have that option and suffered a decline in traffic.

What’s interesting about the French announcement is that its aim is “the remuneration of press publishers”. If you think that journalists working for those publishers will be seeing much or any of that remuneration in the form of extra wages, then I have a bridge you might like to acquire.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon. 

Originally posted to the absolutely wonderful new Walled Culture website.

Filed Under: collection societies, collective management organization, copyright, culture, france, jean-marie cavada, neighboring rights

Area Free Market Proponent Sues Facebook For Defaming Him By Moderating His Personal Marketplace Of Climate Change Ideas

from the libertarian-right-up-until-getting-hit-in-the-wallet dept

Being consistent is hard. Just ask John Stossel, libertarian news commentator and self-proclaimed supporter of free markets and deregulation.

Here's John touting the power of free markets to route around perceived "censorship" by platforms engaging in moderation:

If you can't read/see the tweet, it says:

.@realDonaldTrump just signed an executive order changing #Section230 protections social media companies have - reducing their ability to control what kind of content they allow on their platforms.

Why not just encourage competition? @LBRYio is an excellent example.

If you don't like how you're being served by your current social media provider, feel free to start your own or take your business elsewhere. That's a solution that doesn't involve government intervention and actual censorship.

This is Stossel on free markets and the things he doesn't like about the US legal system:

As a libertarian,[37] Stossel says that he believes in both personal freedom[38] and the free market. He frequently uses television airtime to advance these views and challenge viewers' distrust of free-market capitalism and economic competition.

[...]

Stossel has criticized government programs for being inefficient, wasteful, and harmful.[42] He has also criticized the American legal system, opining that it provides lawyers and vexatious litigators the incentive to file frivolous lawsuits indiscriminately.

This is also John Stossel, albeit more recently:

Former TV journalist John Stossel is demanding at least $2 million in damages from Facebook in a lawsuit he filed against the social media giant, alleging the company defamed him by appending fact-checking labels to two videos he posted about climate change.

How libertarian. Nothing says free market more than asking the government to step in and force a private company to pay $2 million for enjoying its free speech rights and engaging in moderation efforts users agreed to be subjected to in order to use the service. Stossel was always free to take his business elsewhere. Instead, he has decided to engage in the sort of litigation he previously frowned upon at length.

The lawsuit [PDF] proceeds under the no-longer-novel (but still seriously dubious) legal theory that being fact checked is libelous. Stossel, however, proceeds under the opposite assumption:

This case presents a simple question: do Facebook and its vendors defame a user who posts factually accurate content, when they publicly announce that the content failed a “fact-check” and is “partly false,” and by attributing to the user a false claim that he never made? The answer, of course, is yes.

"Of course." "Yes." So says Stossel, unable to cite any court precedent stating this largely because there is no court precedent stating this. Having put his best wrong foot forward, Stossel goes on to claim (at length) that having his climate change-questioning videos labelled as dubious by Facebook somehow resulted in $2 million in reputational damage.

Of course, this ignores several things, even after subtracting the complete lack of judicial precedent. Setting aside the protracted and imaginative legal arguments, let's ask ourselves if Facebook's fact check actually did any damage to Stossel's reputation? Chances are, the labelling only solidified his reputation with users who agree with what Stossel says and had zero effect on users who already find Stossel's takes on climate change dubious. So, there's that part of it.

That's not the legal standard, of course. But the legal standard isn't any easier to meet, especially since Stossel is undeniably a public figure. That raises the bar for defamation. And there's no way Stossel is going to meet it. And assertions like these, while expected in plaintiffs' complaints, are inadvertently hilarious.

This reality is evidenced in the case of Plaintiff John Stossel, an award winning career journalist with a formerly unblemished reputation for truthful and accurate reporting.

Sorry, John, but your reputation is not "unblemished." Many, many people believe you carry water for billionaires and have nothing but contempt for you and your contributions to the marketplace of ideas.

Here's the meat of Stossel's complaint:

Defendants defamed Stossel, with malice. First, they attributed to Stossel a claim he did not make, and which caused his viewers to shun him. Defendants made this false attribution recklessly, before they had even reviewed his video. And even after Stossel brought the issue to Defendants’ attention, Defendants refused to correct their speech, and intentionally left the false attribution online for anyone to see, where it remains today.

Then, Defendants falsely labeled Stossel’s second video report as having failed a “factcheck” and stated that it contained “factual inaccuracies” and was “partly false.” Defendants applied these labels, knowing full well that Stossel’s content contained not a single false fact, and despite the concession by Defendants’ own scientist reviewer that no “specific facts” in the report were “wrong.”

Defendants’ statements are provably false, inherently damaging to Stossel, and were made either with a reckless disregard for their truth or falsity, or with knowledge of their falsity.

Well, we'll see how that plays out. Facebook is free to moderate in any way it deems appropriate, which is frustrating for users, but standard operating procedure for every large social media platform. Inconsistency and blown calls are to be expected because Masnick's Impossibility Theorem.

Stossel is upset because one video was flagged for a claim he didn't make (that climate change did not contribute to California wildfires) but admits later in his narrative that there's a reason it may have been flagged by the fact-checking system. It doesn't make the flagging correct but it does suggest where the system might have erred.

Stossel asked the scientists why his Fire Video would have been flagged as failing a “fact-check,” since the fact-check was directed against a Claim that Stossel never made. In response, Mr. Doerr opined that the video was likely flagged because it contained an interview with Mr. Shellenberger, an environmentalist who criticizes environmental alarmism, and who had previously been “fact-checked” by Defendants.

Does this amount to defamation? Highly unlikely. Instead, it highlights the fallibility of automated systems and human fact checkers, both of which can introduce their own biases when making moderation decisions. Stossel even inadvertently admits this decision was most likely not the result of actual malice (a legal term that has nothing to do with maliciousness, but rather a deliberate disregard for the truth), which is something he needs to clear the libel bar for lawsuits involving public figures.

This defense highlights a central problem with Defendants’ labelling system: since “missing context” is a description that could theoretically be applied to any content – whether five minutes or five hundred minutes in length – Defendants use the label to condemn any content that expresses an opinion with which Defendants disagree, under the pretext of a “fact-check.”

This is a good paragraph for an op-ed or maybe even testimony before a Congressional hearing on social media moderation. But it's no good here because it undercuts the malice assumption and replaces it with something that could be used in Facebook's defense. Since it has millions of minutes of uploaded video to review every day, shortcuts are taken and mistakes are made. But they are not deliberate mistakes. And they are not libelous because they are not factual statements made with a deliberate disregard for the truth.

At least Stossel can point to some actual damages, rather than leaving that part up to the imagination of the court:

[I]mmediately after Defendants affixed their false label on the Alarmism Video in April 2021, there was a dramatic drop in both views of that video and all Stossel’s other videos, and of the associated advertising revenue, which reduced by nearly half, from approximately $10,000 a month to approximately $5,500 a month, and which Stossel otherwise would have received.

Again, there's no guarantee Stossel would have continued to obtain $10,000 a month in perpetuity if not for Facebook's moderation effort. But even if the court assumes that to be true, at best the actual damages are $22,500 at the time of the filing. Not quite the $2 million Stossel believes should be his in addition to the actual damages.

I don't doubt this moderation effort caused Stossel some financial discomfort. I also don't think fact-checking should be handled by people unwilling to actually engage with the content they're moderating. But I also don't believe Stossel has a case. Moderation efforts are protected by the First Amendment. Section 230 also immunizes platforms for making these efforts, allowing them the freedom to experiment and deploy new moderation efforts that may actually be an improvement over what's being experienced now. Without this protection, moderation dies and even mildly controversial users will be the first ones shown the door.

But beyond that, Stossel is arguing against his own personal beliefs. It's hard to maintain your standards when it's your own money on the line, but if he truly believes the free market is self-correcting and no one is forced to use any particular platform to get their message out, he shouldn't engage in a lawsuit that almost certainly going to end in a loss, tying up court resources with allegations bordering on frivolous.

Filed Under: 1st amendment, actual malice, content moderation, defamation, fact checking, free market, john stossel, libertarian, section 230
Companies: facebook

Daily Deal: The Complete NFT And Cryptocurrency Masterclass Bundle

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

The Complete NFT And Cryptocurrency Masterclass Bundle has 6 courses to help you learn all you need to know to create your own NFTS and how to trade cryptocurrency. You'll gain a strong understanding of the NFT world and how they work. You'll also learn some of the most popular methods that you can use to start earning passive income from cryptocurrency. It's on sale for $30. Use the code VIP40 for an additional 40% off.

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

This Thursday, Watch The Techdirt Podcast Live - And Become A Patreon Backer To Call In With Questions!

from the 300-episodes dept

As you may know, we’re fast approaching our 300th episode of the podcast, and to celebrate we’re bringing back the original co-hosts, Dennis Yang and Hersh Reddy, to join Mike Masnick for a special live-streamed episode this Thursday, September 30th at 1pm PT / 4pm ET.

Stay tuned on Thursday morning when we’ll be sharing a link to the YouTube live stream here on the blog and on Twitter. But, for our backers on Patreon, we’re also testing out a new feature that will allow you to call in live and talk to the hosts! If you're already a backer, you can find the link to join via our recording and call-in platform on Patreon in your message inbox and in a backers-only post on our page. If not, now's the time to become a patron and get access to this and other special bonuses! This is the first time we’ve experimented with this feature, so we’re anticipating the possibility of technical issues that prevent it from working — but if all goes well, we’re excited to field your questions and celebrate 300 episodes of The Techdirt Podcast!

Filed Under: live call-ins, live streaming, techdirt podcast
Companies: techdirt

Rep. Jerry Nadler Pushing New Bill That Will Destroy Online Commerce; Make Sure Only Amazon Can Afford The Liability

from the how-does-this-help dept

'Tis the season for terrible, horrible, no good bills to destroy the open internet. First up, we've got Rep. Jerry Nadler, a close friend of the always anti-internet lobbying force that is the legacy copyright industries. Earlier this year he introduced the SHOP SAFE Act, which is due for a markup tomorrow, and has an unfortunately high likelihood of passing out of committee. The principle behind the Act (which Nadler has now updated with a manager's amendment) is that "something must be done" about people buying counterfeit goods online.

Not addressed, at all, is whether or not counterfeit goods online are actually a real problem. I know that industry folks always insist that counterfeiting is a scourge that costs billions, but actual research on this shows something different entirely. A GAO report from years back showed that most of the stats regarding counterfeiting are completely exaggerated and multiples studies have shown that -- far from "tricking" people -- most people who buy counterfeits know exactly what they're doing, and that for many buyers, buying a counterfeit is an aspirational purchase. That is, they know they're not buying the real thing, but they're buying the counterfeit because that's what they can afford -- and if they can afford the real thing at a later date, they will buy it. But nearly all of the public commentary on counterfeiting assumes that the public is clueless, and being "tricked" into buying "dangerous" counterfeits.

The second bad premise behind the SHOP SAFE Act is that the "real problem" is Section 230 (because everyone wants to assume that Section 230 can be blamed for anything bad online). So the core approach of the SHOP SAFE Act is to add liability to websites that allow people to sell stuff online. However, as EFF notes in its write up about the problems with this bill, if you try to sell something via Craigslist or even just via Gmail, the bill would effectively make those companies liable for your sale.

One measure platforms would have to take under SHOP SAFE is verifying the identity, address, and contact information of any third-party seller who uses their services. Imagine if you had to provide a copy of your driver’s license to Craigslist just to advertise your garage sale or sell a used bike. As over the top as that seems, it’s even worse when you think about how this would apply to services like Gmail or Facebook. Should you really have to provide ID to open an email account, just in case you sell something using it? Requirements like this threaten not only competition but user privacy, too.

I don't know why we need to keep explaining this, but when you add more liability to internet platforms, you get fewer internet platforms. This bill would effectively lock in Amazon and a few other giant companies as the only ones who could leap through the convoluted bureaucratic (and privacy-destructive) nonsense that this bill requires. Again, from EFF:

Other provisions of SHOP SAFE put the burden of rooting out counterfeits on platforms, rather than on the trademark holders who are in the best position to know a real from a fake. Most concerning to us is the requirement that platforms implement “proactive technological measures” for pre-screening listings. This provision echoes calls for mandatory automated content filtering in the copyright context.

Just a few months ago, I wrote about a trial regarding claims of counterfeit goods in an online marketplace, and just how much the lawyers leaned on the fact that the platform must know what's real and what's not (when even the trademark holder's own representative admitted she wasn't sure which products were real and which were counterfeit). Yet this bill, like so many other bad intermediary liability laws, presupposes that platforms -- which often have to handle millions of new product listings -- can magically stop all counterfeits from appearing.

It's disappointing (if not at all surprising) that the ABA's "Intellectual Property Law Section" is super thrilled with this bill (I mean, it's like a full employment act for IP lawyers) and claims that it will "facilitated robust e-commerce removal and reporting" in a manner that makes it sound similar to the DMCA's safe harbor provisions (which already have significant overblocking problems). But as EFF notes, this takes the entire principle of the safe harbor ("you're protected from liability if you take these steps") and flips it on its head.

SHOP SAFE’s requirements go far beyond the DMCA’s, while lacking safeguards like a counternotice procedure and penalties for bad-faith takedowns. SHOP SAFE also takes the DMCA’s safe harbor structure and flips it upside down. The DMCA incentivizes platforms to adopt certain policies and practices by providing a true safe harbor—that is, platforms that choose to satisfy the safe harbor requirements can be confident that they cannot be held liable for infringement by their users. SHOP SAFE doesn’t work this way. Instead, it creates a new, independent basis for secondary infringement liability, and it directs that all covered platforms must implement a range of practices or else be held liable for any trademark infringement by their users. The DMCA’s safe harbor framework is preferable because it incentivizes desired behavior while maintaining flexibility for different approaches by different platforms according to their unique characteristics.

Everything about the SHOP SAFE Act seems designed to create problems for the open internet. I know that Rep. Nadler doesn't care about that, but you and I should. Anyone who regularly relies on the internet for buying and selling things should be concerned about this bill and what it will do to the internet. It will make it that much harder for you and I to buy or sell stuff. It will give more power to the giant e-commerce companies, such as Amazon, who can handle the regulatory burdens here, but it will make it nearly impossible for competitors to come along, and will make it effectively impossible for people to do more informal sales to each other using the internet as an intermediary.

It's a dangerous bill and it should not move forward in its current form.

Filed Under: counterfeiting, counterfeits, jerry nadler, liability, marketplaces, section 230, shop safe, shopping
Companies: amazon

Research Shows Apple's New Do Not Track App Button Is Privacy Theater

from the privacy-theater dept

While Apple may be attempting to make being marginally competent at privacy a marketing advantage in recent years, that hasn't always gone particularly smoothly. Case in point: the company's new "ask app not to track" button included in iOS 14.5 is supposed to provide iOS users with some protection from apps that get a little too aggressive in hoovering up your usage, location, and other data. In short, the button functions as a more obvious opt out mechanism that's supposed to let you avoid the tangled web of privacy abuses that is the adtech behavioral ad ecosystem.

But of course it's not working out all that well in practice, at least so far. A new study by the Washington Post and software maker Lockdown indicates that many app makers are just...ignoring the request entirely. In reality, Apple's function doesn't really do all that much, simply blocking app makers from accessing one bit of data: your phone's ID for Advertisers, or IDFA. But most apps have continued to track a wide swath of other usage and location data, and the overall impact on user privacy has proven to be negligible:

"Among the apps Lockdown investigated, tapping the don’t track button made no difference at all to the total number of third-party trackers the apps reached out to. And the number of times the apps attempted to send out data to these companies declined just 13 percent."

Researchers found the new system actually provided users with a false sense of security and privacy when very little had actually changed.

Even when consumers "opted out," most of the apps were still collecting data metrics like volume level, IP address, battery level, browser, cellular carrier, and a long list of other data points, allowing companies to craft elaborate profiles of individual consumers. And little to none of this is being meaningfully disclosed to actual users. Perpetually, the adtech industry tries to argue that none of this is a big deal because much of this data is "anonymized," but that's long been nonsense. Studies repeatedly show that when there are enough data points floating about in the wild, nobody on the internet is truly anonymous.

The fact gets buried in conversations on this subject, but the entire adtech tracking ecosystem, from app makers and "big tech" to telecom and every data broker in between, is a largely unaccountable mess. All operating in a country with no meaningful internet-era privacy law, and privacy regulators that intentionally have a tiny fraction of the resources and funding as their overseas contemporaries. So when you see privacy scandal after privacy scandal emerge, it's important to understand that this is a conscious policy choice driven by greed, not just some organic dysfunction that showed up one random Tuesday.

And unfortunately, so far, most of the big pronouncements by major tech giants about consumer privacy, whether it's Apple's shiny new app privacy button or Google's FLOC technology, aren't doing much to actually fix the problem. And, in some cases, they have the potential to make a bad problem worse. Actually fixing this problem would cost a whole lot of people a whole lot of money, so instead we get (waves hands around at a wide variety of privacy theater) whatever the hell this is supposed to be.

Filed Under: apps, do not track, idfa, ios, privacy, privacy theater
Companies: apple

Following Nationwide Police Brutality Protests, DOJ Steps Up To Issue Incremental Updates To Its Chokehold/No-Knock Warrant Policies

from the goodish-news,-everyone! dept

The Department of Justice is the nominal leader of US law enforcement, even if it really only has direct control of federal officers. That being said, it would have been nice to see the DOJ take the lead on law enforcement issues, rather than gently coast into the police reform driveway late in the proverbial night to add itself to the bottom of the list of reform efforts springing up all over the nation in response to, you guessed it, violence committed by police officers.

Chokeholds have been controversial for forever, but even more so in recent years, as police officers across the nation have killed people they were just supposed to be arresting, using techniques most police departments claim (often after the fact) they've banned for years. The DOJ has never banned chokeholds previously, and it's apparently not going to start now.

The new guidance [PDF] doesn't seem like much of an improvement over the old guidance, which was released more than 17 years ago. The old one said that the DOJ has had a "long-standing policy" that limits use of deadly force to situations where officers have a "reasonable belief" the arrestee "poses an imminent danger of death or serious physical injury to the officer or to another person." This is the same standard that governs almost all use of force by officers all over the nation and it really hasn't stopped them from deploying deadly force unreasonably in situations that could have benefitted from de-escalation and restraint.

The revamped guidance doesn't change much, if anything, about the threat calculus officers must perform before deciding to kill someone by choking them to death.

Given the inherent dangerousness of chokeholds and carotid restraints, and based on feedback from our law enforcement components on these techniques, Department law enforcement agents and correctional officers are hereby prohibited from using a chokehold or a carotid restraint unless that standard of necessity for use of deadly force is satisfied. Accordingly, Department law enforcement components will revise their policies to reflect this guidance prohibiting the use of chokeholds or carotid restraints by Department law enforcement agents and correctional officers, including federal task force officers, unless deadly force is authorized.

It's unclear how deadly force will be "authorized" in mid-arrest, but those are the new rules, which will be buttressed by that old law enforcement standby that's done almost nothing to eliminate excessive force deployments: additional training.

The DOJ also has thoughts about no-knock warrants. These have been portrayed as a necessary abridgement of knock-and-announce warrant service protocol that is supposed to prevent targets from escaping, evidence from being destroyed, and, most importantly, officers from being killed. In practice, however, no-knock warrants have needlessly escalated violence during warrant service, giving officers the excuse they need to greet anything unexpected (and it's all unexpected when you go crashing through someone's door) with a hail of bullets. It also provokes residents to open fire on officers, often mistaking them for criminals attempting to break into their homes.

The DOJ's new guidance basically reiterates what it has always said: that federal officers need compelling reasons to seek no-knock warrants. But the reasons aren't all that compelling, seeing as they're the standard reasons plenty of cops have boilerplated into warrant requests along with claims about danger to officers or evidence destruction no court can possibly verify. In most cases, their requests are approved and officers head off to engage in literal death and destruction with the nominal blessing of whatever magistrate the affidavit was handed to.

Here are the new stipulations the DOJ imaginatively calls "limits."

First, an agent may seek judicial authorization to conduct a "no knock" entry only if that agent has reasonable grounds to believe at the time the warrant is sought that knocking and announcing the agent' s presence would create an imminent threat of physical violence to the agent and/or another person. Prior to seeking judicial authorization for a "no knock" entry, an agent must first obtain approval from both the Criminal Chief Of The relevant U.S. Attorney's Office (or a Deputy Chief in a Main Justice litigating component) and an Assistant Special Agent in Charge or Chief Deputy Marshal in the district. Once judicial authorization is obtained, agents may proceed without "knocking and announcing" their presence unless they learn of facts that negate the circumstances that justified this exception to the "knock and announce" rule.

There are a couple of good things in here, despite the expected deference to officers and their "reasonable grounds to believe." The fact that officers must now seek internal approval before passing on the boilerplate to a magistrate judge might deter officers from compiling deficient affidavits or think twice about not portraying normal warrant service as the federal cop equivalent of rushing the trenches. And it's nice touch that federal cops are asked to dial back the no-knock bum rush if information comes to light indicating the planned warrant service won't be as threatening as previously believed, but it's hard to believe any officer is going to switch back to knock-and-announce when they already have judicial (and supervisory) permission to go in guns blazing.

The new policy also gives officers an opportunity to bypass internal controls and judicial permission.

Second, if an agent did not anticipate the need for a "no knock" entry at the time the warrant was sought, the agent may conduct a "no knock" entry only if exigent circumstances arise at the scene such that knocking and announcing the agent's presence would create an imminent threat of physical violence to the agent and/or another person.

So, if federal officers don't get the warrant they want, they can change it on the fly. The DOJ only asks that they justify the switcheroo after the fact by speaking to higher-ups like the Special Agent in Charge and provide written notice of the at-the-doorstep-audible to the US Attorney's office and/or "relevant Assistant Attorney General."

Here's the better policy change: no-knocks are for officer safety only. No more setting toddlers on fire just because officers think someone inside might be trying to flush a few kilos down the toilet.

Because this policy limits "no knock" entries to instances where there is an imminent threat of physical violence, it is narrower than what is permitted by law - for example, agents must "knock and announce" even when they have reason to believe that doing so could result in the destruction of evidence. In setting the policy this way, the Department is limiting the use of higher-risk "no knock" entries to only those instances where physical safety is at stake at the time of entry.

There is an exception, of course. And for the stupidest, laziest, most predictable reason.

Should an exceptional circumstance arise (e.g., in a national security matter) where no imminent threat of physical violence is present but an agent believes the evidence is so significant, and the risk of its destruction so pronounced, that a "no knock" entry is warranted, judicial authorization for a "no knock" warrant can be sought…

There's a better caveat attached to that. This exception would have to be pre-approved by the US Attorney's office, so it doesn't fall under the exigent circumstances exception listed above.

The good news is the DOJ is thinking about these issues and attempting to address them. The bad news is this barely addresses anything. At best, it prevents federal officers from engaging in violent raids of people's homes solely because they think some evidence might be destroyed. At worst, the changes are so incremental officers arriving via time machine from George W. Bush's first term wouldn't feel particularly out of place. If this is the example the DOJ is setting for local law enforcement agencies around the nation, they'll be more than happy to go back to (deadly) business as usual.

Filed Under: chokeholds, doj, guidance, no knock warrants, police, police brutality