As Tulsi Gabbard's Silly Attention Seeking Lawsuit Against Google Falters, She Files Equally Silly Lawsuit Against Hillary Clinton

from the a-slapp-asset dept

As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them... even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a "state actor" (it's not), and that Google's moderation choices were a violation of California's civil rights law, the Unruh Act.

What got much less attention was that in September, Gabbard's lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness.

Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she's sued Hillary Clinton for defamation. The actual complaint is really bad. It's laughable, and the lawyers who signed their names to it -- Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge -- should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I'm guessing they don't much care about their own reputation as lawyers.

At issue, Hillary Clinton made some -- admittedly stupid -- comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate.

PLOUFFE: [Trump is] going to try to drive people not to vote for him, but to say you can’t vote for them either...

CLINTON: They’re also going to do third party again. And I’m not making any predictions, but I think they’ve got their eye on somebody [Gabbard] who is currently in the Democratic primary and are grooming her to be the third-party candidate. She’s the favorite of the Russians, they have a bunch of sites and bots and other ways of supporting her so far. And that’s assuming [Green Party 2016 candidate] Jill Stein will give it up, which she might not, because she’s also a Russian asset.

Again, these comments are silly, bordering on conspiracy theories in the same vein that our current President likes to buy into all too often. But it's not even remotely defamatory. At no point does she make any false statements of fact about Gabbard. First off, the 1st Amendment and the courts' interpretation of it gives great leeway to political speech, considering that's kind of the whole point behind the 1st Amendment. As such, the courts will almost certainly take this as standard overheated political rhetoric.

Second, breaking down what Clinton said, it makes no factual claims about Gabbard herself -- but rather about "the Russians." She may be wrong about what the Russians are doing, but that's not defamatory towards Gabbard. Whether or not the Russians do favor Gabbard, or whether or not the Russians would like her to run as a 3rd party candidate, or whether or not they have a bunch of sites and bots promoting her -- that's all about the Russians. Even the "Russian asset" comment (which Clinton never directly states about Gabbard, but implies by saying it is "also" true of 2016 third party candidate Jill Stein), is not defamatory. A Russian asset doesn't mean someone who is purposefully doing the bidding of the Russian government. That would be a Russian agent. Simply saying someone is an asset to the Russians, means that they're valuable in some way to the Russians, and not that the Russians' control them. And, as such, it's clearly a statement of opinion.

Clinton can argue that the Russians benefit from a Gabbard campaign -- and other people (including Gabbard, if she chose) could argue the other side. And that is the nature of political debate. But it is not defamatory to state your opinion, no matter how silly it might be.

But, of course, it appears that Gabbard and her lawyers at Pierce Bainbridge are not actually interested in righting any legal wrongs with these lawsuits. They just are ways to rile up a base and get her name back in the headlines. Even David Frum at the Atlantic has noted that these are lawsuits for attention from a Presidential candidate who is not going to win anything.

But then, much of Gabbard’s complaint reads less like a legal argument than a stump speech. It is not easy to imagine that any federal judge would look with much favor on the relentless boasting and self-promotion in a lawsuit that opens:

1. Tulsi Gabbard has lived her life with one guiding principle: putting the needs of others before her own. That’s why she joined the Army National Guard. That is why she campaigned for and was elected to the United States House of Representatives. And that is why she is running for President.

The 14-page brief crams in 13 references to Gabbard’s service in the Army National Guard.

Rather than being structured to convince a judge, the brief wishes to invite belief in an alternative universe where Hillary Clinton is running for president in 2020—and where Gabbard somehow presents an important obstacle to Clinton’s ambitions.

This is not unlike the lawsuit against Google, which excited a clueless base who insisted to us that Gabbard must have a strong case and Google would be taken down by it. Yet, of course, Gabbard's own amended complaint, in which she dropped all of the claims that people kept telling me were easy wins for her, made no news at all.

This seems to be an all too common path taken by some politicians these days. Rile up your base by filing frivolous lawsuits. This is why we actually need stronger anti-SLAPP laws in every state, plus a federal anti-SLAPP law. It is, of course, notable, that Gabbard's suit against Clinton was filed in the Southern District of New York, and NY's anti-SLAPP law is incredibly weak and is unlikely to apply in this instance (it only applies to statements made while petitioning the government).

Filed Under: 1st amendment, anti-slapp, defamation, free speech, hillary clinton, russian asset, slapp, tulsi gabbard
Companies: google

The 'Race To 5G' Is A Giant Pile Of Lobbyist Nonsense

from the ill-communication dept

We've noted for a while that the "race to 5G" is largely just the byproduct of telecom lobbyists hoping to spike lagging smartphone and network hardware sales. Yes, 5G is important in that it will provide faster, more resilient networks when it's finally deployed at scale years from now. But the society-altering impacts of the technology are extremely over-hyped, international efforts to deploy the faster wireless standard aren't really a race, and even if it were, our broadband maps are so terrible (by design) it would be impossible to actually determine who won.

The idea that we're "racing China to 5G," and need to mindlessly pander to U.S. telecom giants to win said race, has also become a mainstay in tech policy circles and tech coverage for two or three years now. We're at the point where 5G (like the blockchain or AI) now exists as a sort of policy pixie dust to be sprinkled around generously by lobbyists and K Street beggars looking to wow luddite lawmakers, even if the underlying arguments often make no coherent sense. When 5G is fused with overheated national security concerns, it becomes even more incoherent.

Enter former Representative Mike Rogers, who last week announced he was heading a new 501(c)4 group dubbed 5G Action Now. 5G Action Now frames itself as an objective third party outfit that is just apparently really excited about 5G, insisting its goal is to "educate members of Congress and the American people" to better understand the "race to 5G":

"5G Action Now was founded to establish the United States as the worldwide leader in 5G. Our goal is to elevate the conversation regarding American national security and the economic benefits of winning the 5G innovation and deployment battle against China. 5G will spur economic growth in rural America, create an environment for technological expansion, and put the U.S. on strong national security footing for generations to come."

Mike's bio around the internet usually reveals how he's also a "security advisor" for AT&T, though oddly his bio over at the 5G Action Now website excludes this fact. The ambiguous venture appears to have numerous telecom backers, including a coalition of European and Canadian satellite companies looking for all the usual fare: weakened regulatory oversight, more subsidies, and a bigger slice of the publicly-owned airwaves to make a profit off of. It's more of a "race to government protection" or a "race to fatter revenues" than any kind of race to meaningful 5G domination or consumer benefit.

The group's website is filled with rhetoric about how 5G is a "battle with China," hinting at some immense unforeseeable calamity should the Chinese government deploy 5G quickly to human beings you'll never meet, half a world away:

Press outlets that buy into this rhetoric usually "forget" to mention that while the US technically "won" the race to 4G (by being first to deploy it) that didn't wind up mattering much. U.S. consumers pay some of the highest prices for wireless service in the developed world, for 4G services that are routinely ranked as some of the slowest in the OECD. Thanks to regulatory capture, corruption, and mindless M&A mania (like the looming Sprint T-Mobile merger), it's a problem that's not going away anytime soon. 5G is not, contrary to what you'll be told by industry and stenographing journalists and evangelists, some mystical panacea.

There's a reason AT&T, Verizon, and T-Mobile are fighting efforts to adequately map 5G, and have routinely over-inflated 5G availability claims overall. The "race" rhetoric is largely an illusion created by companies eager to do the bare minimum in exchange for as many subsidies, regulatory favors and tax breaks they can grab. This mindless regulatory capture has resulted in a US Telecom sector that routinely ranks in the middle of the pack in every metric that matters. While 5G will be a good thing when deployed at scale, it's foolish to think the new wireless technical standard will address the deeper rot that plagues the sector.

We didn't win the race to 4G, and we're unlikely to win the "race to 5G," either. Why? Because U.S. telecom policy involves effectively pandering to the every whim of mono/duopolists, then standing around with a dumb look on our faces as prices soar, coverage lags, and Kafka-esque customer service headlines become the norm. Yes, 5G will be fast. It's also going to be hugely expensive and filled with arbitrary nickel and diming restrictions courtesy of the Trump FCC's decision to effectively give up on all consumer protection.

The "race" rhetoric serves one larger purpose: it ensures that nobody pauses to think about policy considerations like prices, open networks, consumer rights, or even coverage to lower income and rural areas. It results in a country that can't apparently repair its bridges or feed the public, but can easily throw another $1.5 billion at telecom giants that are in absolutely no need of subsidization or more tax breaks. At some point, you'd think we'd learn to stop throwing billions of unaccountable dollars at companies with a thirty-year track record of failing repeatedly to live up to their end of the bargain.

Filed Under: 5g, hype, mike rogers, race to 5g
Companies: at&t, verizon

Funniest/Most Insightful Comments Of The Week At Techdirt

from the something-said dept

This week, our first place winner on the insightful side is an anonymous commenter who responded to a suggestion about rules for returning seized money with a simpler idea for reform:

There should be a law that money and property cannot be seized without charges being brought, and cannot be kept without a conviction.

In second place, we've got Stephen T. Stone with an evergreen comment that can be referred to every time there is another attack on Section 230:

Quick reminders vis-á-vis 47 U.S.C. § 230:

1. Without 230, a vast portion of the Internet wouldn’t even exist.
2. 230 puts liability where it belongs: on the people responsible for the speech.
3. 230 doesn't protect a platform from liability in re: any speech for which the platform is directly responsible.
4. 230 has no “neutrality” provision.
5. 230 helps facilitate the sharing of speech on third party platforms; the First Amendment gives you the right to share that speech in the first place.

For editor's choice on the insightful side, we've got a pair of complementary comments about online speech. First, it's an anonymous commenter with a reminder that having your odious speech privately moderated is not a free speech issue:

Except that isn't happening.

If it were, it would still 1) not be censorship, and 2) within their rights to do so.

Funny how when the right-ish side controlled most media and corporations, there wasn't a problem. Now, if you are even center, or just not extreme-right enough, you are a leftist suppressing the poor oppressed right. Even when it isn't happening.

If you mean people who are racist, sexist, and advocate violence, yeah, they tend to get moderated. Sorry if that is your "unpopular political view".

People all over the spectrum get moderated for shit, sometimes sensibly, and sometimes incorrectly. "X censors the right" is just another "War on Christmas". Bunch of whiny, spoilt snowflakes.

To go along with that, it's Stephen T. Stone again with the point that, on the other hand, even odious speech is protected from legal intervention and DMCA abuse:

Whoever filed that DMCA claim used a government-backed legal claim as an attempt to censor speech. I don’t care if the person being censored is a damned White supremacist; they don’t deserve to have their speech silenced by way of a bullshit copyright claim.

Over on the funny side, our winners are both irresistible quips about the bizarre story of Mohammed bin Salman apparently hacking Jeff Bezos' phone. First place comes from an anonymous commenter:

New phone. Who dis autocratic ruler?

And Who Cares offered up the second place winner:

The world is really unfair.
You need to be rich and powerful to get scammed by a real prince while I, a mere average Jane/Joe, only get these fake Nigerian princes.

For editor's choice on the funny side, we start out with an anonymous comment about flawed facial recognition technology:

But we tested it...

We loaded it with the headshots of all 20 white males in the office, and it's able to recognize them consistently... so that means it should work for everyone everywhere, amirite?

And finally, it's another anonymous commenter responding to someone else who, also anonymously, suggested people make their own encryption technology because Apple's encryption "isn't really useful anyway":

Nice try Bill

That's all for this week, folks!

This Week In Techdirt History: January 19th - 25th

from the as-it-happened dept

Five Years Ago

This week in 2015, newly released documents from the Snowden leak revealed how the UK's GCHG collected emails from journalists and used compromised hardware to get data from iPhones, and how the NSA harvested data from other surveillance agencies. We also learned more about the DEA's role in the surveillance world, while the FBI was touting another of its own manufactured-then-foiled terror plots as evidence that the PATRIOT Act should be renewed.

Meanwhile, a European Parliament report called for wide-ranging copyright reform that was actually good, a court soundly rejected the attempt by Omega to abuse copyright to stop Costco selling its watches, and Cory Doctorow rejoined the EFF to lead a project to eradicate DRM. Also, James Bond entered the public domain in Canada, which is worth highlighting because we came up with a darn good headline if I do say so myself.

Ten Years Ago

This week in 2010, the US was trying to strongarm Costa Rica into adopting draconian IP laws by blocking sugar from the US market, Italian lawmakers were pushing their own draconian provision to require government authorization for all video uploads, Oxford University made the bizarre decision to ban students from using Spotify, and EU trade negotiators were calling Canada's public comment period on copyright law "a tactic to confuse". BPI was insisting that UK ISPs were overstating the cost of a three strikes program, and the IFPI was loudly complaining about piracy in its annual report that conveniently omitted its own study showing file sharers also buy lots. ACTA secrecy was in full swing, with bloggers getting kicked out of consultations in Mexico and the UK government telling MPs they couldn't see the details. And in one better-than-nothing-I-guess development, the judge who oversaw the Jammie Thomas-Rasset case reduced the completely insane damages of $80,000 per song to the less astonishing (but still arbitrary) figure of $2,250 per song.

Fifteen Years Ago

This week in 2005, radio broadcasters were gearing up to be the newest entrants in the already overcrowded world of music download stores, TV broadcasters were trying to come up with ways to compete with DVRs, and Sony's Ken Kutaragi surprisingly admitted that DRM held up the company's innovation. The "war on file sharing" nabbed its first prisoners in the form of two men who plead guilty to "conspiracy to commit felony copyright infringement", while one state senator in California was promoting the idea that developers of file-sharing programs should be jailed.

Filed Under: history, look back

Leaked Document Suggests Possible Facial Recognition Ban In Europe

from the an-unlikely-outcome-but-we-can-hope dept

Bans of facial recognition tech are popping up across the United States. Facial recognition tech use by law enforcement is currently banned in the state of California and a few cities in Massachusetts have blocked local government agencies from deploying the tech.

Given the tech's relative inability to do its job, along with a host of other concerns including built-in biases that make it far more likely minorities will suffer the effects of false positives, lawmakers are finally putting the brakes on approving facial recognition use by government agencies.

A white paper leaked to Euractiv appears to indicate the biggest ban so far is under consideration in Europe -- one that would affect most of the continent.

The European Commission is considering measures to impose a temporary ban on facial recognition technologies used by both public and private actors, according to a draft white paper on Artificial Intelligence obtained by EURACTIV.

If implemented, the plans could throw current AI projects off course in some EU countries, including Germany’s wish to roll out automatic facial recognition at 134 railway stations and 14 airports. France also has plans to establish a legal framework permitting video surveillance systems to be embedded with facial recognition technologies.

Noting that the GDPR requires certain information disclosures by companies and agencies deploying the tech, the white paper [PDF] suggests going live with facial recognition tech might be unworkable, given that every person passing by an AI-enabled cam would have to consent to data collection. It suggests a moratorium might be the best solution until all the regulatory kinks can be worked out.

Building on these existing provisions, the future regulatory framework could go further and include a time-limited ban on the use of facial recognition technology in public spaces. This would mean that the use of facial recognition technology by private or public actors in public spaces would be prohibited for a definite period (e.g. 3-5 years) during which a sound methodology for assessing the impacts of this technology and possible risk management measures could be identified and developed.

That's just one of the five options being considered by the European Commission. Unfortunately, it doesn't appear to be one of its favorites. The paper says the most likely approach the Commission will take is a combination of options 3, 4, and 5. The ban is option 2.

But the GDPR definitely causes problems for the rollout of facial recognition tech in public places -- something the government agencies itching to deploy it don't appear to have considered seriously. It's pretty much unworkable unless the governments rolling these out are going to claim that being in a public place waives GDPR protections.

The desire to subject citizens to biometric collections may result in a rewrite of the GDPR or a blanket exception for collections in public places. This will only make a bad law worse.

But overall, the paper makes it clear the tech will be subject to tight regulation and much more oversight than we've seen deployed in the United States. Amendments to safety and liability laws are being considered that would allow tech companies to be held responsible for data breaches or misuse of collected biometric information. There would also be some sort of "trusted vendor" program put in place that would push companies to meet certain standards before they can be considered for government applications.

The ban is a long shot but it's still in the running. Given the number of changes that may need to be made to make facial recognition tech comply with existing European privacy laws, a temporary moratorium might be the best call to make. Clearly, the legal atmosphere in Europe isn't exactly welcoming for new data collection tech. But the narrative that more surveillance = safer countries will always have powerful proponents, which may override the privacy concerns of millions of European citizens and subject them to mass surveillance.

Filed Under: eu, europe, facial recognition

Reminder: Our Public Domain Game Jam Of 1924 Works Has One More Week

from the don't-miss-out dept

Here's a quick reminder that we're running a Gaming Like It's 1924 game jam, asking people to come up with both digital and analog games using newly public domain works from 1924. While the US spent decades not allowing any new works into the public domain, that changed last year (finally!), and now we're slowly getting works into the public domain drip by drip. But what good is a public domain if it's not used to inspire new creative works? So, as we did last year, we're running this contest for the month of January. All the rules are at the link above, but there are lots of great tools and templates out there for anyone wanting to try their hand at creating something.

As always, Duke's Center for the Study of the Public Domain has a great list highlighting some newly public domain works, and there are some concepts and ideas in there that could be turned into really great games -- like E.M. Forster's A Passage to India or Hugh Lofting's Doctor Doolittle's Circus. And, of course, I remain curious if anyone will make a game out of George Gershwin's famed song "Rhapsody in Blue," considering that his family is upset about the whole concept of the public domain, and fought against it for years.

Anyway, here's a chance to have fun and be creative. You don't need to be a game designer. You don't have to come up with something super polished. Just experiment a little and see if you come up with something cool.

Filed Under: 1924, copyright, game jam, public domain

YouTube Streamer Hit With Demonetization Over Copyright Claims To Numbers '36' And '50'

from the wut? dept

We've long had discussions about how wide open for abuse and error YouTube's copyright and demonetization practices are. Between the hamfisted method by which the accused is treated as guilty from the get go, to the impossibility of doing large-scale policing like this in a way that's even moderately good, to the avenue for abuse that all of this creates, the fact is that YouTube's stance on copyright is a mess. The end result of all of this is that creators on YouTube operate in constant peril of having their accounts suspended or video revenues taken by others with the recourse for fraud and error being convoluted and lengthy. For a site that is in the business of content creation, that's a real problem.

And it's a problem that can get quite ridiculous, as evidenced by one recent streamer who had two videos demonetized over claims by a third party that she infringed its copyrights... on the numbers "36" and "50."

Now, if you're wondering who in the world is claiming trademarks on these two random numbers, it appears to be a company in the YouTube content creation business as well. Why they think they own the copyright on those two numbers and can use them to siphon the income of innocent YouTube streamers is anybody's guess.

The claim, made by media company Fullscreen, was simply over the number “36.” There wasn’t anything else to do with what media they were trying to protect, or any timestamps, just that the number “36” was not AnneMunition’s property.

Fullscreen describe themselves as a “social content company for talent and brands” on their company website. They are owned by Otter Media, a subsidiary of WarnerMedia, who doesn’t hold the license for The Witcher 3, or any trademarks related to the number “36.”

This is problematic for AnneMunition’s YouTube channel, because while claims are active, Fullscreen takes all monetization for the video. While the videos are over two years old, with both having very little views, they still leave a stain on her YouTube record.

Now, I fully expect that YouTube will get this corrected fairly quickly, as there is nearly zero chance that there is anything remotely valid about this copyright claim. But that really isn't the point. For YouTube's system and process to so clearly favor the accuser, particularly given how much error and abuse there is in all of this, is not sustainable. At some point, content creators will simply have had enough and go somewhere else. That might be far off on the horizon, but it's going to come eventually if some kind of change isn't made on YouTube's part.

Filed Under: anne munition, copyright, numbers
Companies: fullscreen, twitch

Twitter Asks Judge To Dismiss Devin Nunes' Frivolous Lawsuit Via Section 230

from the expect-nunes-to-join-the-anti-230-crowd dept

It's kind of incredible that Devin Nunes' first frivolous, censorial lawsuit is still going on -- but it is. This is the one against two satirical Twitter accounts that made fun of Nunes, as well as political strategist Liz Mair and Twitter the company itself. Twitter had tried to get the case dismissed on jurisdictional grounds, saying the case belonged in California, but that failed. Now Twitter has played the next obvious card: saying that Section 230 of the CDA prevents Nunes from suing it over the satirical accounts. Tragically, the Fresno Bee has not posted the actual legal filings, and they're in a state court that does not make them easily accessible to the public, so I don't have the full filing yet. Update: The filing is here and embedded below. However, from the Fresno Bee's account, it appears that Twitter is making a pretty typical CDA 230 argument:

“Congress granted providers of online platforms like Twitter broad immunity from claims that seek to hold them liable for harms caused by defamatory or otherwise harmful content that appeared on the provider’s platform but were created by third parties,” the motion to dismiss reads. “(The law) protects such providers not only from liability but also from being subjected to the burdens of discovery or other aspects of litigation.”

The federal law referenced specifically states that no providers of an “interactive computer service” should be treated as “the publisher or speaker” of things said by a third party on their platform.

The filing highlights that the negligence claim against Twitter is really just an attempt to route around 230:

“The sole claim (Nunes) asserts against Twitter — for negligence — rests entirely on the theory that Twitter did not prevent third parties from posting the statements on the Twitter platform and/or did not do enough to remove the statements after they were posted,” Twitter’s new motion reads.

If the judge in the case actually understands Section 230, this should be an easy dismissal for Twitter. However, to date, the judge has made a series of perplexing decisions that seem to go against most understanding on other laws. That doesn't mean he won't eventually dismiss the case, but it might make folks worry that this judge is more inclined than he should be to let the case move forward for the time being.

Of course, assuming the judge actually does dismiss the claims against Twitter on 230 grounds, I fully expect, Rep. Devin Nunes to join the chorus of clueless elected officials seeking to end Section 230.

Filed Under: devin cow, devin nunes, free speech, intermediary liability, section 230
Companies: twitter

SmileDirectClub Is Trying To Silence Criticism By Tying Refunds To Non-Disparagement Agreements

from the I-see-you're-unhappy-with-our-product.-Let-me-make-you-unhappy-about-our-ser dept

The New York Times has noticed a company with the word "smile" in its name really isn't all that friendly. Nearly 2 years ago, SmileDirectClub sent legal threats to Gizmodo after a post discussing the potential drawbacks of getting your teeth fixed over the internet was published under the title "You Could Fuck Up Your Mouth With SmileDirectClub."

Nothing about the article was false. Not even the title. SmileDirectClub sells teeth-straightening devices over the internet. Most teeth-straightening devices are provided by orthodontists after x-rays and in-person examinations. SmileDirect is, well, more direct, claiming it can provide the right dental appliance without all the in-person stuff by having customers send in a mold of their teeth or by visiting a "Smile Shop" to have their mouth and teeth scanned.

The potential to have things go wrong -- especially when your only consultation during the teeth-straightening process is online chats with SmileDirect's dental staff -- is far from nonexistent. Appliances like these can cause more problems rather than fixing the one they were purchased for.

All of this was covered in the article and everything said about SmileDirect's business model was truthful. This didn't stop SmileDirect's legal reps from filing a defamation lawsuit in defamation lawsuit-friendly (pre-anti-SLAPP law) Tennessee. SmileDirect said all sorts of ridiculous things about clickbait and Peter Thiel's takedown of Gawker, but really didn't make any actionable libel allegations. That SmileDirect voluntarily dismissed its lawsuit less than a week after it filed it as good an endorsement as any for the stupid arguments in its complaint.

Anyway, the NYT is on the case now that more people are unhappy with their dental appliances and SmileDirect is more forceful in preventing unhappy people from complaining about its products and services. Here's how SmileDirect conducts business with its end users.

No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub's dental device. This removes some of the company's liability. If the customer didn't actually get this done, it can't hold SmileDirect responsible for problems that might have been caught with a real exam. Since the company appears to target people who want to avoid dental exams and save money on dental appliances, plenty of customers aren't being honest when they check that first consent box.

Then the form gets a whole lot darker.

The form also states that they cannot sue the company for any reason.

Arbitration: the best friend of every questionable company. And there's more. The company offers a very limited warranty that's tied to a very big gag order.

SmileDirectClub offers refunds within 30 days after the aligners arrive. Anything after that is considered outside the company’s official refund policy and comes with the nondisclosure provision, which it said it began using in 2016.

If your mouth does get fucked up by a SmileDirect product, you can't tell anyone about it. Refunds past the 30-day mark are handed out with restrictions that help the company keep its online reputation as squeaky-clean as possible.

When some... customers requested refunds, SmileDirectClub asked them to sign the confidentiality provision. The agreement prohibited the customers from telling anyone about the refund and required them to delete negative social-media comments and reviews, according to a copy viewed by The New York Times.

If this is a nondisparagement clause, it's illegal. The Consumer Review Fairness Act that went into effect in 2017 outlaws exactly what's happening here.

[T]he Act makes it illegal for a company to use a contract provision that:

1. bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;

2. imposes a penalty or fee against someone who gives a review; or

3. requires people to give up their intellectual property rights in the content of their reviews.

Hmm. Here's a customer complaint filed with the FDA:

I requested a refund and i was told that i have to sign a release form to be refunded. The terms of that release form include that i cannot even mention the existence of the form, seek any additional compensation for damages and (this is most concerning) i could not share any information about my negative experience publicly. And if i had already posted anything in social media about my experience, i had to remove it before they would refund me.

Looks pretty illegal to me. SmileDirectClub's critics may only be a small percentage of its customers, but they cannot legally be silenced this way. Tying refunds to gag orders is the worst form of customer service. It's pretty much just fine print extortion. SmileDirect wants unsatisfied customers to keep their fucked-up mouths shut. And now, with some nationwide coverage, it's going to realize turning refund payments into hush money does nothing to keep your reputation intact.

Filed Under: anti-slapp, consumer reviews, defamation, dental work, gag order, slapp, teeth, threats
Companies: smiledirectclub

Daily Deal: The C++ Programming Bundle -- Beginner to Expert

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

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Filed Under: daily deal