Funniest/Most Insightful Comments Of The Week At Techdirt

from the so-i-heard dept

This week, our first place winner on the insightful side is James Burkhardt with a response to a common conspiracy theory about election fraud:

The number, 5,000 voters, is the number of same day voter registrations filed. That much is well documented. However, no evidence has been submitted to prove that all of these registrations were Clinton voters. Given that NC considers out of state College students eligible for voting, thousands of 18 year-olds could have easily moved to NC 2 months earlier and not registered to vote because they did not get a NC ID. Since lots of the "evidence" relates to these people not having NC DL/ID, a lot of the evidence that does exist doesn't actually prove voter fraud, but rather that the republican-instituted voter registration policies are operating as intended.

Despite repeated calls and promises of an investigation, there has been no evidence presented that any significant amount of these registrations were fake. No evidence was found or presented of bussing or other widespread voter fraud.

In second place, we've got Thad doing the perennial duty of smacking down a certain terrible source:

If your primary source for a claim is Project Veritas, it's a good sign that your claim is bullshit. The National Enquirer has a better track record.

I wouldn't believe James O'Keefe if he told me it was sunny and hot outside. And I live in Phoenix.

For editor's choice on the insightful side, we start out with wshuff proposing a translation of David Boies' hypocrisy about the free press:

What Boies is saying is that it's a travesty some firm other than his own was paid to kill stories.

Next, we've got an anonymous response to the proposal that it would be better to ignore senators like Josh Hawley when they say crazy things:

I disagree. Lest you forget, these senators have been given the power to create legislation that can and will affect every American citizen, most of whom, not living in Missouri, never even voted for him.

So I am very much for pointing out each and every time an idiot congress person makes an idiotic statement as it brings that much more attention to the fact that we have idiots running our government and they should be voted out.

Over on the funny side, our first place winner is ryuugami with an excellent response to Ohio State University's attempt to trademark "THE":

What [censored] fuck.

In second place, we've got a little ditty from Stephen T. Stone about Gizmodo's new owners telling reporters they can't use encrypted email:

They can check out any time they like, but their emails can never leave.

For editor's choice on the funny side, we start out with a clever anonymous quip in response to our first place insightful winner:

I dearly hope that your college student theory is true, because then it means that Trump could say: "And I would have won the election too if not for those meddling kids!"

And finally, we've got a response from Beefcake to David Boies which surely nobody could be expected to resist:

Oh well, you know what they say

Boies will be Boies.

That's all for this week, folks!

This Week In Techdirt History: August 18th - 24th

from the yesterdays dept

Five Years Ago

This week in 2014, all eyes were on the protests in Ferguson, Missouri where police were threatening and arresting reporters even after, it turned out, they signed a court agreement promising not to. It was a stark example of the broader problem of police militarization, a trend promoted by defense contractors thanks to which police in the suburbs sometimes have more powerful weapons than Marines in Afghanistan, and of course the routine use of tear gas which is a banned chemical weapon except for domestic use thanks to... an exception lobbied for by the US.

Ten Years Ago

This week in 2009, we wondered if there could be any such thing as a fair trial about file sharing given the proliferation and normalization of biased language about "piracy" and "property". Courts were busy insanely slicing and dicing the Superman copyright, the IFPI was insisting that the Pirate Party shouldn't be allowed to hold the positions it does, music publishers were waging their war against lyrics websites, the Associated Press was still utterly failing to explain its plan to DRM the news, and we saw the kickoff of a new copyright maximalist push in the UK after Lord Peter Mandelson spent the weekend with David Geffen. We also took a look at a murky and possibly-apocryphal, but nevertheless interesting, story about what might have been the first-ever copyright trial in 6th century Ireland.

Fifteen Years Ago

This week in 2004, after all the hype, the Google IPO... was delayed by the SEC. Then the company admitted it had been a bit overly optimistic by lowering the IPO range and cutting the number of shares, before finally actually going public and only hitting the bottom price of the reduced range.

Also this week in 2004: music labels were continuing to bet the farm on ringtones being more than a trend, Real was hoping its battle with Apple would spark some good customer responses but apparently forgot it still wasn't a super-popular company, and an appeals court upheld the all-important Grokster decision.

Filed Under: history, look back

Rutgers Forces LA High School To Change Logos Due To Its 'R' Trademark

from the r-you-kidding-me? dept

Over the years, we've seen plenty of aggression from universities when it comes to trademark enforcement. The impetus for much of this was rulings nearly a decade ago that essentially gave universities far broader and more exclusive rights to their school logos. The fallout of those rulings became schools going after all kinds of uses and near-uses of those logos, including a strange war on pastries, and colleges going after high schools for using similar iconography.

The latter continues to the present. The latest version of this is Rutgers, in New Jersey, forcing a Louisiana high school to change its logo because it was essentially the same as Rutgers' famed "R" logo.

New Jersey's flagship university has asked a high school in Louisiana to change its logo because it's identical to the block "R'' that Rutgers has trademarked.

Lincoln Parish Schools official Ricky Durrett tells the Courier News of Bridgewater the company that manages Rutgers' brand requested Ruston High School stop using it.

Rutgers says the high school has 10 years to replace the logo on gear, social media platforms and on the school's website.

The logos, to be fair, are somewhat similar, although it seems that's more a function of them being a single letter than anything else. (Rutgers' is on the bottom.)

On the one hand, look, Rutgers' demand timelines aren't wholly oppressive. Ten years is a nice stretch of time within which Lincoln Parish can work. On the other hand, allowing for such a timeline only seems to solidify the impression that none of this is really necessary to begin with. Is Rutgers really suggesting that someone is going to be confused between the NJ school and LA high school? Is there some odd concern that parents of high school students will think they're supporting Rutgers by buying the high school's apparel? Is anyone, anyone at all, really going to be confused about any of this?

The answer sure feels like "no." Rutgers likely would state that it must take these actions or risk losing its trademark. Except that's only the case if there is the actual potential for confusion and if a court bought that it was operating in the same marketplace as a high school many states away. Both seem unlikely to me.

But, of course, the high school is changing its logo rather than fighting against the much larger Rutgers.

Filed Under: college, high schools, r, ruston high school, trademark
Companies: rutgers

The Oakland PD's Dramatic Drop In Use-Of-Force Incidents Is All Bullshit

from the numbers-massaged-and-manually-pleasured dept

Well, this post of mine has aged terribly.

Back in 2014, I breathlessly reported the Oakland PD's adoption of body cameras had resulted in sweeping improvements to its use of force. Deadly force usage had dropped to nothing, reducing the number of people killed by cops from eight per year to zero.

That still holds. If you just look at dead bodies, you'll see that the Oakland PD had produced zero corpses in the 18 months following the installation of body cameras. But other stats in that report are a bit more questionable.

[Mayor] Jean Quan said Oakland police officers had 2,186 use-of-force incidents in 2009, the last year that no officers wore body cameras, and that number declined to 836 such incidents last year and to only 572 incidents so far this year, with just two weeks remaining.

Were body cams really the panacea? Did this program actually introduce accountability?

Unfortunately, it appears the body cams changed nothing. Precipitous drops in use of force incidents have continued. Year after year, the Oakland PD appeared to improve its relationship to the public in terms of subjecting them to physical restraint or bullets.

But the drop observed here has turned out to be too good to be true. Turns out the easiest way to reduce use of force stats is to… stop reporting uses of force.

[I]n September 2018, the Oakland police’s inspector general, an internal watchdog, found that officers under-reported the number of times they pointed their guns at people. In November, the department’s independent monitor confirmed the inspector general’s determination while also noting multiple cases in which officers struck or wrestled with people and failed to report it.

The report [PDF] by the Oakland PD's Inspector General shows officers fudging numbers to make it appear as though the force was using less force. There may have been little to no improvement whatsoever, even with the addition of body cameras. I mean, thank god the force didn't keep killing eight people a year, but beyond the periodic homicide, there has been little improvement.

Substantial drops in several use of force stats prompted this IG investigation, as well as an internal review initiated by the PD itself. What investigators found was very little change in use of force habits, but a lot of change in use of force documentation.

Pulling a sample of incidents in which use of force would be expected, the OIG found officers simply weren't documenting their force deployments.

All documentation and available video footage for the 47 incidents were reviewed. Of these 47 incidents, the auditors identified 17 in which a reportable use of force went unreported (no use of force form was completed).

You've heard the "bad apples" excuse. It appears the rotten apples within the Oakland PD tend to gravitate towards each other.

Twelve of the 17 incidents of underreporting involved four squads of officers.

It's not all bad news, though. The department was at least forward-thinking enough to believe certain cases might need additional review. This policy would at least give a second pass to "contempt of cop" arrests.

The Chief published a Special Order requiring supervisory review of PDRD footage for incidents involving Penal Code 69, 148, and 243(b)(c) arrests (threatening an officer, resisting arrest, battery on an officer) in late November 2018.

But there's plenty of bad news. The Oakland PD instituted policies meant to compile objective reporting of use of force incidents. But then it undermined its own policies by allowing officers to make judgment calls on reporting.

In practice, a police officer’s “intention” is a dominant factor in determining whether the pointing of the firearm at the subject(s) is reportable, a result of an inadequately designed policy.

Because of these deficiencies, the Oakland PD revamped its policies in 2018. This resulted in a dramatic change in use of force stats, albeit not in the direction one would hope.

[B]eginning in October 2018, the total number of reported uses of force (all types of force) increased dramatically, by nearly 300% between January and May 2018 and January and May 2019.

So, it's mostly bad news, highlighted by the uptick in force deployment post-policy fix. Even with the fixes, the OIG found even more under-reporting.

Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, there were 177 incidents in which the Lead Auditors deemed a reportable weaponless defense technique or pointing of a firearm(s) was used and not reported and documented.

It's not just about guns. These are a few cases the OIG highlights in its report, showing even use of less-than-deadly force went unreported despite the new policies.

1. Officers were in a foot pursuit of a subject and an officer forcefully pushed the subject, causing him to fall on the ground against a fence. The reporting officer stated in his report “no known witnesses.” OIG’s review of the associated video footage identified multiple witnesses on scene when the force in question was used.

2. Officers were attempting to place a subject in handcuffs, and the subject stood up and punched an officer in the face. Another officer wrapped his arms around the subject, physically lifting him off the ground causing them both to fall backwards onto a glass table and then lifted the subject back onto a couch.

3. A detained subject started to run from an officer, and the officer grabbed the subject by the hair and pulled him to the ground. The officer failed to articulate and document in his report that he pulled the subject by his hair.

4. During the search of a subject, the subject turned to run, and the officer grabbed him, causing them both to fall to the ground. The officer also delivered an intentional forearm strike to the subject’s right tricep area while attempting to handcuff the subject.

Cops may complain body cameras are nothing more than "gotcha" devices meant to catch them abusing people and violating their rights. The flow of these policemen's tears would mean oh so much more if the body cameras didn't catch them abusing people and violating their rights. So, if nothing else, the body cameras are exposing what officers hoped to cover up by not filing use of force reports.

Then there's this: cops may argue they don't engaged in biased policing, but the stats belie their protestations of "fair and balanced" enforcement.

There were 12 incidents involving 19 subjects in which the audit found the pointing of the firearm should have been reported as a use of force but was not. Of the 19 subjects, 17 were African American (89%) and 2 were Hispanic (11%).

So, every time a white person has a gun pointed at them by an Oakland PD officer, it gets reported. That seems a bit troublesome.

And there's little reason to believe the ongoing use of body cameras will result in more conscientious policing. Officers apparently believe recording interactions with the public is optional.

Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, the lead auditors determined there were PDRD concerns in 19 incidents. However, 18 of the 19 incidents involved officers not complying with PDRD policy requirements.

Fortunately, the large number of cameras issued ensure there was at least some footage of every use of force incident. Unfortunately for officers who "forgot" to activate their cameras, other officers activated theirs, giving investigators all they needed to discover multiple violations of the PD's body camera policies.

The Oakland PD only looks better on paper. It has barely changed at all since the institution of body cameras and use of force reporting requirements. Some cops hate accountability and many apparently view this as damage to be routed around. Until the PD steps up and starts firing people for violating policy, the practice of fudging the numbers and neglecting camera obligations will continue.

Filed Under: body cameras, lies, oakland, police, statistics, use of force

Federal Elections Committee Chair Is Sick Of Donald Trump's Bullshit: Put Up Or Shut Up About Voter Fraud

from the the-hero-we-need dept

Just days after the two Republican members of the Federal Election Commission (FEC) blocked an investigation into the NRA and its use of Russian funds to influence the election, the chair of the FEC (who voted for that investigation) has pointed out that Donald Trump should put up or shut up with his totally baseless, absolutely insane, claims that "voter fraud" cost him millions of votes in the election.

The letter itself is too good not to share, so I'll reprint it here. Don't miss the kicker at the end.

Mr. President,

Back in February 2017, when you first alleged a voter-fraud scheme of astonishing scale in New Hampshire in 2016, I publicly called upon you to provide your evidence to the American people and the appropriate law enforcement authorities so that your very serious claims could be investigated. I followed up in March 2017 with a letter to you repeating my request.

You have not, so far, provided any proof of these allegations.

Last night, you repeated your claim: "New Hampshire should've been won last time," you told reporters before your rally, "except we had a lot of people come in at the last moment, which was a rather strange situations, thousands and thousands of people, coming in from locations unknown. But I knew where their location was." During your rally, you told the crowd that New Hampshire was "taken away from us."

What I wrote to you in March 2017 is just as true now: Our democracy depends on the American people's faith in our elections. Your voter-fraud allegations run the risk of undermining that faith. Just as seriously, baseless allegation of fraud have been used to rationalize indefensible laws that deter certain U.S. citizens from exercising their right to vote. Words matter, and facts matter.

The American people count on me, as the Chair of their Federal Election Commission, to protect the integrity of our elections. So I ask you, once again, to provide any evidence you may have to the American people and the appropriate law-enforcement authorities to substantiate your claims. The American people are ill-served when our leaders put forward unfounded allegations of voter fraud.

To put it in terms a former casino operator should understand: There comes a time when you need to lay your cards on the table or fold.

This is an excellent letter that will make no difference in the world, unfortunately. The FEC has no real power, and as the vote on the NRA/Russia shows, even if she wanted to do something about it Weintraub is blocked by the others on the Commission. But the larger point is that the President doesn't care. Because he doesn't need to. He will make up whatever he wants, and whatever he needs to soothe his ego of himself and his angry sycophantic fans (yes, I'm looking forward to the comments on this one), because that's really all he's got to go on these days. He can and will ignore the chair of the FEC and he will continue to spout this completely made up nonsense of voter fraud in New Hampshire because it suits his narrative -- and his narrative is always facts-optional.

Filed Under: donald trump, ellen weintraub, evidence, fec, new hampshire, voter fraud

Devin Nunes Discovery Requests Against Twitter, A Fake Cow, And Liz Mair Show Just How Much A Fishing Expedition He's On

from the oh-come-on dept

We've written a few times now about Devin Nunes' ridiculous lawsuit against Twitter, two parody Twitter accounts, and political strategist Liz Mair. In a news interview back in April, Nunes more or less admitted that these lawsuits were fishing expeditions to reveal journalists' sources on articles about himself that he didn't like. Meanwhile, both Twitter and Mair filed motions in the case saying that a Virginia state court is the wrong venue.

The court held a hearing on those motions today, and while the judge has not ruled, the Fresno Bee's article about the hearing lists out Nunes' discovery requests, which show just how much of a fishing expedition this case is. From the Fresno Bee (which is being sued by Nunes in a separate lawsuit):

His discovery requests are extensive, and include:

• The identity of anyone Twitter has done business with in Virginia since 2014
• Any time a Twitter employee has been present in Virginia since 2014
• Any telephone calls by Twitter employees to somewhere in Virginia since 2014
• All emails and text messages of Twitter employees or any of the defendants that mention Nunes
• All information related to the parody accounts @DevinCow and @DevinNunesMom, including phone numbers and all their tweets, messages, likes and retweets
• Everyone who donated to a political fundraising group called Swamp Accountability Project, which bought radio ads against Nunes, from Jan. 1, 2018 to March 18
• Mair’s tax returns dating back to 2016 and a report of her assets and liabilities
• Any communications between Mair or her company that mention Nunes

I mean, almost any one of those is crazy. The identity of anyone Twitter has done business with in Virginia since 2014? Any time a Twitter employee has been present in Virginia? Come on. Obviously, some of those are incredibly weak attempts to show why the case deserves to be in Virginia, but that's not how any of this is supposed to work.

Hopefully the judge sees this for what it is and dumps the whole thing.

For what it's worth, the article does note that the two parody accounts, Devin Nunes' Cow (@DevinCow) and Devin Nunes' Mom (@DevinNunesMom) are both unrepresented in the case:

The parody accounts did not have legal representation, though about 20 people sat in the courtroom in support of @DevinCow, sporting cow shirts, signs, stuffed animals and, in one case, a pair of cow ears.

It's possible that Nunes hasn't even served the two parody accounts yet, which could explain why they don't have lawyers in court yet.

Either way, one hopes that the judge recognizes this case for what it is: a frivolous, speech suppressing, unconstitutional fishing expedition by an apparently hypocritical, thin-skinned Rep. Devin Nunes -- who pretends to be in favor of free speech and against frivolous lawsuits -- and throws out the case entirely.

Filed Under: california, defamation, devin nunes, devin nunes cow, devin nunes mom, discovery, fishing expedition, liz mair, nunes cow, parody, virginia
Companies: twitter

Insurance Companies Are Destroying People's Lives And Cops Are Being Paid To Help Do It

from the all-hail-your-corporate-law-enforcement-overlords dept

Insurance claims result in investigations. This much is a given. Sometimes it involves both insurance companies and law enforcement agencies, depending on what's being investigated. But in many cases, insurance companies are doing the investigative work for law enforcement agencies and pushing prosecutors towards bringing fraud charges against claimants just trying to be compensated for valuables damaged or lost.

The combined power of these two forces is enough to obliterate lives and livelihoods. Kendall Taggart's report for Buzzfeed is a long, horrifying read. It details the close relationship between insurance companies and cops -- one that extends so far as companies paying cops, prosecutors, and expert witnesses to turn valid insurance claims into insurance fraud charges.

A BuzzFeed News investigation has found that Erie, State Farm, Farmers, and other giant home and auto insurers around the country have co-opted law enforcement to intimidate and prosecute their own customers — tactics that can help companies boost their profits and avoid paying claims.

Insurance companies provide financial incentives to scores of police departments, prosecutors, and other public agencies to encourage them to focus on insurance fraud, a crime that has traditionally not been a priority for local law enforcement. In some cases, insurance giants even cover the salaries of dedicated prosecutors, detectives, and investigators whose caseloads consist primarily of referrals from those same companies.

The result is that dozens of premium-paying customers across the United States have faced jail for doing nothing more than filing insurance claims for damages to their property.

In one particularly horrendous case, State Farm destroyed a man's construction business. A 2006 hailstorm in Indiana resulted in 50,000 claims being filed with the insurer. State Farm wasn't happy with the uptick in business, which resulted in hundreds of complaints being filed against the insurer with the state's Department of Insurance.

From all appearances, the insurer decided to scapegoat Joe Radcliff, a contractor who was very busy performing hail damage inspections. Two years after the hailstorm, police arrested Radcliff, telling him he was being charged with 14 felonies.

The insurance company accused Radcliff of deliberately damaging shingles and siding, presumably in hopes of being hired to repair the damage once the insurance check came in. After losing almost all of his customers over the bad press, Radcliff found out State Farm was behind the criminal investigation. The railroading began in earnest one year prior to his arrest, shortly after he spoke to a TV reporter about State Farm's foot-dragging.

State Farm went after Radcliff's customers to try to build its case… but not by asking them if they'd noticed any possible criminal activity. No, State Farm TOLD them they had observed criminal activity and that it would fuck them up too if they refused to help put the contractor away.

State Farm tried to pressure at least four of those homeowners into accusing Radcliff of fraud — telling three of them it would pay for the repairs only if they filed police reports alleging that it was the contractor who had damaged the roofs. In another case, State Farm reversed its own determination that a homeowner’s roof was damaged in the storm after it learned Radcliff was involved, locating new experts who now claimed the contractor had vandalized the property.

The company couldn't get any of Radcliff's customers to testify against him. So it took the info it did have to the state's insurance industry/law enforcement liaison. And it left out everything customers said that refuted the allegations State Farm was making against Radcliff. It took Radcliff until 2013 to clear his name. All charges were dropped when it became apparent State Farm had deliberately withheld exonerative information.

But the damage was done. A business destroyed by a much larger business that didn't want to do the thing it's actually in the business of doing: selling insurance and paying out claims.

It's not so much that insurance companies work with law enforcement during investigations. That's to be expected. But there needs to be a clear line dividing the two and there isn't. The surreptitious purchase of witness testimonies and the direct funding of fraud investigators is only part of the problem. Various government bodies are mixing public and private entities, allowing them to intermingle freely, much like the attendees of the annual insurance fraud conferences they hold.

The public may pay the salaries of public servants, but when it comes to insurance fraud, insurance companies are paying the salaries of investigators and prosecutors.

Insurance company officials make up the majority of [Pennsylvania's Insurance Fraud Prevention Authority] board, which last year doled out $14 million in targeted grants to fund the work of roughly 100 prosecutors, investigators, and support staffers across the state dedicated exclusively to rooting out insurance fraud.

Those law enforcement officials collected $5.6 million in restitution from people accused of insurance fraud in 2018, money that went back to the insurance companies. According to the IFPA’s annual report, the most commonly investigated cases don’t involve sophisticated organized crime rings, but individual policyholders ages 18 to 34 with no prior criminal record.

The incentives are skewed in favor of everyone but the premium payers. Paying customers are being dragged to court, arraigned on charges, and otherwise made miserable simply because they asked for what's owed to them. Rather than just being blown off by shitty customer services reps, they're having their lives ruined by companies that withhold exculpatory evidence and law enforcement personnel who are only too happy to carry their courtroom water for them.

Filed Under: insurance, investigations, police

Daily Deal: VoCore2 Mini Linux Computer Bundle

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

The VoCore2 Mini Linux Computer Bundle gives you a coin-sized computer and a screen that you can set up anywhere. The VoCore2 Ultimate is an open-source Linux computer and a fully-functional wireless router, which can be used as a VPN gateway, an AirPlay music streaming station, a private cloud for data storage, and much more. It comes with the VoCore2 screen, a super-fast screen for high-quality display usage for embedding devices. It's designed for standard USB2.0 devices rather than MIPI or HDMI, while the screen contains the memory to store the picture, allowing you to send data directly through USB. It's on sale for $69.

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

Shut Up David Boies, You Hypocritical, Censorial Oaf

from the don't-even-start dept

NPR has an incredible story about the media and Jeffrey Epstein. You should read the whole damn thing, because no summary here will do it justice. It covers multiple attempts by various large media organizations, including Vanity Fair, the NY Times and ABC to report on Jeffrey Epstein over the years, and how Epstein, intimidated, coaxed and even potentially bought off reporters to get more favorable coverage, or to kill stories outright. It's horrific and awful and everything along those lines. Go read it.

But, I'm going to focus on the fact that NPR quotes David Boies throughout the piece, acting horrified at how the media fell down on this. He's 100% correct about that, but he's the wrong fucking messenger given his own long history doing pretty much exactly what Epstein is reported to have done regarding the media in this particular piece. Boies is defending some of Epstein's victims, and good on him to be a strong advocate for his clients and against Epstein. But this quote is not one David Boies should be making:

"We count on the press to uncover problems, not merely to report on when problems have been prosecuted and when people have been indicted, but to uncover problems before they reach that stage," says David Boies, an attorney for several of Epstein's accusers. "And here you had a terrible problem. A horrific series of abuses."

Shall we review some of the record on David Boies and his attempts to intimidate and silence the press when they tried to "uncover problems before they reach that stage"? As you may recall, one of David Boies' big clients was... Harvey Weinstein. And, as Ronan Farrow at the New Yorker reported in great detail, Boies and his firm seemed to work very, very hard to stop anyone from revealing Weinstein's problems with multiple women.

That article covers how Weinstein hired a bunch of former Mossad and Israeli intelligence officers who had set up a firm called "Black Cube" to try to "extract information" on various Weinstein accusers.

Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan. The same operative, using a different false identity and implying that she had an allegation against Weinstein, met twice with a journalist to find out which women were talking to the press. In other cases, journalists directed by Weinstein or the private investigators interviewed women and reported back the details.

The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories. Weinstein monitored the progress of the investigations personally. He also enlisted former employees from his film enterprises to join in the effort, collecting names and placing calls that, according to some sources who received them, felt intimidating.

You might ask, what does that have to do with Boies? Well, according to the New Yorker, it was Boies who hired Black Cube and signed the contract with them to run this operation to silence Weinstein accusers and block negative stories. He even did this despite a clear conflict of interest (he was trying to suppress a NY Times story while representing the NY Times in a separate case):

In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses, while his firm was also representing the Times, including in a libel case.

And that's not all. Remember the big Theranos scandal and mess, which turned out to be a pretty massive fraud? That only came to light thanks to some whistleblowers at the company who went to a reporter at the Wall Street Journal with their concerns. And can you guess what happened there, too? Yup. In a big Vanity Fair article we learned about an incredibly aggressive campaign to silence the whistleblowers. There's some irony here given that, in this new NPR piece, Boies is criticizing Vanity Fair as one of the publications that "failed" to publish information about Epstein's crimes. But the Vanity Fair piece shows that Boies was heavily involved in the campaign to discredit and silence the whistleblowers:

Shortly after reading the article, Carreyrou started investigating Theranos’s medical practices. As it turned out, there was an underside to Theranos’s story that had not been told—one that involved questionable lab procedures and results, among other things. Soon after Carreyrou began his reporting, David Boies, the superstar lawyer—and Theranos board member—who had taken on Bill Gates in the 1990s and represented Al Gore during the 2000 Florida recount case, visited the Journal newsroom for a five-hour meeting. Boies subsequently returned to the Journal to meet with the paper’s editor in chief, Gerard Baker.

It also notes very threatening letters from Boies' firms to multiple whistleblowers at the company, claiming imminent legal action merely for talking to reporters:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.” Others who spoke to the Journal were met with similar threats.

Rochelle Gibbons, if you haven't read the story, was the wife of a Theranos scientist who had tried to whistleblow within the company, saying the technology didn't work, and had protested internally the fact that Elizabeth Holmes had publicly announced that the tech worked and that they'd be opening "Theranos Wellness Centers" at Walgreens. As he kept talking internally, he was ordered to go meet with Holmes. Fearing he was about to be fired, he tried to take his own life, and died a week later in the hospital. This leads to the following:

When Rochelle called Holmes’s office to explain what had happened, the secretary was devastated and offered her sincere condolences. She told Rochelle Gibbons that she would let Holmes know immediately. But a few hours later, rather than a condolence message from Holmes, Rochelle instead received a phone call from someone at Theranos demanding that she immediately return any and all confidential Theranos property.

The report also notes that Elizabeth Holmes' two day "war room" strategy to figure out how to deal with this reporting exposing the corporate fraud involved multiple "lawyers from Boies, Schiller & Flexner." It does not say that Boies himself was in that room, but given that he wasn't just a lawyer for them, but a member of the board, it would not be surprising to find out that he was a key strategist in that meeting.

And that's not all. While perhaps not nearly as serious as efforts to kill stories about Harvey Weinstein's accusers or Theranos whistleblowers, Boies also personally sent a bunch of totally bogus, censorial letters to basically every publication that wrote about the contents of the hacked Sony Pictures emails. He even sent one to me. The letter, ridiculously, demands that publications not write about the contents of those emails to "help [protect] the First Amendment." Convincing news organizations not to report on news is not protecting the First Amendment, David.

So, yes, Boies is right that it's a travesty that Epstein was able to convince powerful media organizations not to run stories exposing Epstein's misdeeds, but for Boies of all people to be bitching about that is particularly rich, given his own well-documented efforts to do similar things.

Filed Under: david boies, elizabeth holmes, free press, harvey weinstein, jeffrey epstein, stifling free press
Companies: abc, ny times, sony pictures, theranos, vanity fair

Russian Troll Farm Tries Again To Sue Facebook, Despite Having Its Original Complaint Dismissed On 230 Grounds

from the try,-try-again dept

Last month we wrote about how Section 230 of the Communications Decency Act did exactly what it was supposed to do in protecting Facebook from a bogus lawsuit from a Russian news trolling operation, called Federal Agency of News (FAN). Facebook had kicked FAN off its platform soon after the 2016 election, when it realized it was a Russian operation spewing nonsense, often targeting people voting in the 2016 US election. FAN somehow found US lawyers from a previously reputable firm to represent them in this quixotic attempt to sue Facebook. The whole thing flopped, of course, because Facebook is free to kick whomever it wants off its platform, including Russian trolls seeking to spread fake news to influence an election. The court dismissed the case easily under Section 230. All of the Russian attempts to claim it violated their 1st Amendment rights, California civil rights, breach of contract, etc., went nowhere fast.

But, since the court left FAN free to try an amended complaint, it has now filed an amended complaint (first spotted by John Roddy). Somewhat incredibly, it does not appear to make any new arguments. It just repeats the old ones with more emphasis.

The key to the new filing is an incredibly, laughably weak attempt to connect Facebook to the US government, in an attempt to argue that the Constitution applies to Facebook as well. This is almost comically badly done in the complaint. It basically looks for any scrap of evidence of Facebook working with the US government to combat Russian election interference as somehow proof that Facebook magically becomes a state actor.

The United States government has been complicit in Facebook’s efforts to rid the platform of Russian language accounts.

In a United States Intelligence Community report regarding alleged Russian activities and intentions in the 2016 United States presidential election, published in January 2017, the United States Intelligence Community referred to the IRA as an agency of “professional trolls” whose likely financier is “a close Putin ally with ties to Russian intelligence.” United States Intelligence Community, Assessing Russian Activities and Intentions in Recent U.S. Elections, available at: https://www.dni.gov/files/documents/ICA_2017_01.pdf.

[....]

On September 21, 2017, Facebook’s General Counsel, Colin Stretch, stated that Facebook would provide the United States Congress with information related to the 3,000 advertisements Facebook previously located. Colin Stretch, Facebook to Provide Congress With Ads Linked to Internet Research Agency, available at: https://newsroom.fb.com/news/2017/09/providing-congress-with-ads-linked-to-internet-researchagency/.

[....]

On or about September 21, 2017, co-founder, chairman and chief executive officer of Facebook, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is “actively working with the U.S. government on its ongoing investigations into Russian interference” and providing information to the United States Department of Justice Office of Special Counsel (“Special Counsel”), headed by Robert Mueller.

Sorry, but sharing some information on Russian interference with the US government does not, in any way, make Facebook a state actor. Even if what happened was presented honestly (and it is not), at best, it would show that the trolls have an argument against the US government for supposedly telling platforms to remove the Russian trolls' content and accounts. But that's clearly not what happened. And nothing in the complaint comes anywhere close to the standards necessary to turn a private company into a public state actor.

But, hey, FAN's lawyers seem to be happy to give it a shot.

The internet is a public forum available to all persons around the world to post or otherwise publish news articles. It also is intended to allow persons around the world, including citizens of the United States to access news and opinions from entities around the world.

The internet may be a public forum, but Facebook is a private company guys. Nice try.

The “Rules of Facebook” state that anyone who abides by Facebook’s rules and signs a user agreement is entitled to use its forum.

They also state that Facebook can remove your account, so, who cares?

The constitutional protections of the Bill of Rights of the U.S. Constitution apply to all public fora and, since Facebook is a public forum, or at least a limited public forum, the constitutional protections of the Bill of Rights apply to Facebook and the actions it takes to curtail free speech on the internet.

This is not how any of this works -- and indeed, the court, in its ruling last month, totally rejected this. From that ruling, which the lawyers here ignore:

Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google LLC, this Court rejected the notion that “private social media corporations . . . are state actors that must regulate the content of their websites according to the strictures of the First Amendment” under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff’s assertion that “Yahoo!’s services should be seen as a ‘public forum’ in which the guarantees of the First Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to control the content of material on its servers, and appearing on websites that it hosts.” 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held that “Plaintiff’s analogy of [Google and other] Defendants’ private networks to shopping centers and [plaintiff’s] position that since they are open to the public they become public forums is not supported by case law.” 474 F. Supp. 2d 622, 632 (D. Del. 2007).

At bottom, the United States Supreme Court has held that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.

This lawsuit's weak attempt to tie Facebook to the US government is not going to work. This is just Russian trolls throwing money away to expensive US lawyers.

In addition, Facebook also acts at the behest of the government of the United States in its attempts to regulate free speech.

If this were true (and it's not), then their complaint would be with the US government and not Facebook. But you don't see them suing the US government.

Facebook founder and CEO, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is “actively working with the U.S. government on its ongoing investigations into Russian interference.” In addition, it is believed that many of Facebook’s current security personnel are former members of the U.S. intelligence and law enforcement communities.

None of that makes Facebook a state actor.

This agreement between Facebook and the U.S. government constitutes a conspiracy to deny FAN its free speech rights guaranteed under the U.S. Constitution.

Bring on the RICO claims...

This lawsuit is going to get tossed. And probably pretty quickly. I'm guessing the judge won't be particularly happy about it. But, hey, the lawyers will get their cash for filing what they must know is a laughably silly amended complaint.

Filed Under: cda 230, fake news, russian trolls, section 230
Companies: facebook, federal agency of news