Regular readers of Techdirt will be all too familiar with the problem of corporate sovereignty — the ability of companies to sue entire countries for alleged loss of profits caused by government action. Also known as investor-state dispute settlement (ISDS), there have been indications that some countries are starting to drop ISDS from trade and investment treaties, for various reasons. But a worrying report from Corporate Europe Observatory suggests that we are about to witness a new wave of corporate sovereignty litigation. Hard though it may be to believe, these cases will be claiming that governments around the world should be reimbursing companies for the loss of profits caused by tackling COVID-19:
In the midst of a crisis like no other, the legal industry is preparing the ground for costly ISDS suits against government actions that address the health and economic impacts of the coronavirus pandemic. In written alerts and webinars law firms point their multinational clients to investment agreements’ vast protections for foreign investors as a tool to “seek relief and/or compensation for any losses resulting from State measures”
No claims have been filed yet, but experts are so worried about this threat that they have called for an immediate moratorium:
on all arbitration claims by private corporations against governments using international investment treaties, and a PERMANENT RESTRICTION on all arbitration claims related to government measures targeting health, economic, and social dimensions of the pandemic and its effects.
Law firms specializing in corporate sovereignty are already well advanced in their preparations for demanding money from governments because of the “damage” the pandemic response has inflicted on corporate profits. Corporate Europe Observatory links to numerous reports and client alerts from these ISDS firms, which spell out the grounds on which big claims might be filed. These include:
ISDS claims against government action to provide clean water for hand-washing
Challenging relief for overburdened public health systems
Lawsuits against action for affordable drugs, tests and vaccines
Investor attacks on government restrictions for virus-spreading business activities
ISDS suits against rent reductions and suspended energy bills for those in need
Disputes over debt relief for households and businesses
Legal action against financial crises measures
Tax justice on trial
Suing governments for not preventing social unrest
The idea that governments around the world struggling to contain the pandemic and save thousands of lives might also have to fight such ISDS claims in court, and even pay out billions in fines when funds are needed for rebuilding lives and businesses, is bad enough. But the fact that law companies evidently have no qualms about recommending the use of corporate sovereignty in these difficult circumstances is a hint of even worse to come.
If these kinds of ISDS actions succeed, and governments are ordered to make huge payments to companies because of national pandemic responses, it is highly likely that similar cases could and would be brought over action to tackle climate change. That in itself might discourage some countries from adopting urgently needed measures. And for those that do, there is the prospect of big fines at just the time when maximum resources will be needed to deal with the environmental, social and economic effects of a climate catastrophe.
There was a window of opportunity for cops following the George Floyd killing. Floyd, suspected of nothing more than passing a fake $20 bill, was killed by Officer Derek Chauvin of the Minneapolis PD. Chauvin placed his knee on Floyd’s neck until he was dead. This act lasted for nearly nine minutes — and for nearly three minutes after Chauvin checked for a pulse and found nothing. Yet he persisted, and none of the three cops around him stopped him.
Chauvin has been criminally charged and is under arrest. We’ll see where that takes us. But the opportunity was there for the rest of the nation’s cops to separate themselves from this “bad apple.” Cop defenders ignore what bad apples do to barrels, but we won’t. Chauvin is a symptom. He is not the disease.
As protests broke out around the nation, law enforcement agencies responded. While a small number attempted to find middle ground with aggrieved citizens, most acted as though they were a law unto themselves in these troubled times.
One site got it completely right — a site that so often offers up hot takes that it is the source of its own meme. Slate, of all places, nailed this call:
Also in today’s criminal justice news, police in Louisville KY – who just watched police in Minneapolis MN arrest a CNN reporter live on-air – say “hold my whiskey” and deliberately shoot a reporter and her cameraman
Photos taken by @PLBarghouty show HuffPost senior reporter Chris Mathias (@letsgomathias), with press badge clearly visible, being taken into custody by the NYPD. Chris was on assignment for HuffPost covering the protests in Brooklyn. pic.twitter.com/EWcWNoFjMW
“You are part of the problem, if not the entire problem.” – MPD officer
Minneapolis Police called our journalist the “entire problem” & threatened he “would get baked” as he filmed them at 31st & Blaisdell after curfew a block away from #GeorgeFloydProtests at the 5th Precinct. pic.twitter.com/K25MIapPcf
I just got hit by a rubber bullet near the bottom of my throat. I had just interviewed a man with my phone at 3rd and Pine and a police officer aimed and shot me in the throat, I saw the bullet bounce onto the street @LAist@kpcc OK, that’s one way to stop me, for a while pic.twitter.com/9C2u5KmscG
— Adolfo Guzman-Lopez (@AGuzmanLopez) June 1, 2020
This should come as no surprise. When the shit goes down, no rights will be respected. The Fourth tends to go first, but the First is often right behind it.
First, we had to deal with the coronavirus and government grabs for power. And this is where we are now: trying to limit a rational response to hundreds of years of racism, manifested as Officer Chauvin’s decision to place his knee on the neck of a black man until long after the man was dead.
The streets are filled with cameras. Cops control most of them. But they can’t control journalists. So, they seek to intimidate them by making it clear their presence isn’t welcomed. The current situation may heighten the response but it has been this way for years. Cops have made it clear — and they’ve been backed by the Commander-in-Chief — the press is the enemy. Journalists record things and those recordings usually make their way to many people — far more than the average internet rando could hope to rope in. If you can’t control the narrative, you can always attempt to control the journalists.
When chaos is on the menu, the cops can still try to maintain control of the reporting. And most of their sins will be forgiven because the situation was unforeseeable. But when it’s happening, we can see it. We can see what they do and how they react. And, because they react badly, every unblinking eye must be closed. The power must remain centralized, and if that means taking a few journalists out, so be it.
We’ve noted repeatedly how interstate inmate calling service (ICS) companies have a disturbingly cozy relationship with government, striking (technically buying) monopoly deals that let them charge inmate families $14 per minute. Worse, some ICS companies like Securus Technologies have been under fire for helping the government spy on privileged inmate attorney communications, information that was only revealed in 2015 after Securus was hacked. Given the apathy for prison inmates and their families (“Iff’n ya don’t like high prices, don’t go to prison, son!”) reform on this front has been glacial at best.
The 2015 Hacker-obtained data featured 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note were the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:
“This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that?s certainly something to be concerned about,? said David Fathi, director of the ACLU?s National Prison Project. ?A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not.”
Two former prisoners and a criminal defense attorney sued Securus for the practice, and last week Securus quietly settled that suit (pdf) after spending years insisting that the recording of privileged calls was a system error. While the company promised to improve its lax use of call recording technology, most of the more significant demands were stripped from the final settlement:
“The lawsuit had sought $5,000 for anyone whose conversation was wrongly recorded ? resulting in a damages payout as high as $70m ? though the class action’s lawyers ultimately dropped the demand after the courts repeatedly ruled against them on what they needed to prove to win the case. A US federal judge in San Diego decided the lawyers would have to prove that Securus intended to record the privileged calls. They appealed the decision, and the Ninth Circuit refused to hear the case.”
Securus has promised to cover attorney costs of $840,000 and $20,000 to each of the class representatives while denying any wrongdoing.
Granted this is just one small subset of the problem that is Securus’ cozy, monopolized relationship with the US law enforcement and prison apparatus, which in addition to aggressively overcharging inmate families for 20 years, has also resulted in scandals relating to the abuse of sensitive location data obtained from mobile carriers. That scandal also resulted in some performative wrist slaps and a few pinky swears as US lawmakers and regulators, with very few exceptions, continue to look the other direction.
Clearview is currently being sued by the attorney general of Vermont for violating the privacy rights of the state’s residents. As the AG’s office pointed out in its lawsuit, users of social media services agree to many things when signing up, but the use of their photos and personal information as fodder for facial recognition software sold to government agencies and a variety of private companies isn’t one of them.
[T]he term “publicly available” does not have any meaning in the manner used by Clearview, as even though a photograph is being displayed on a certain social media website, it is being displayed subject to all of the rights and agreements associated with the website, the law, and reasonable expectations. One of those expectations was not that someone would amass an enormous facial-recognition-fueled surveillance database, as the idea that this would be, permitted in the United States was, until recently, unthinkable.
Thus, when an individual uploads a photograph to Facebook for “public” viewing, they consent to a human being looking at the photograph on Facebook. They are not consenting to the mass collection of those photographs by an automated process that will then put those photographs into a facial recognition database. Such a use violates the terms under which the consumer uploaded the photograph, which the consumer reasonably expects will be enforced.
This is somewhat the same point multiple companies have made with their (ultimately ineffective) cease-and-desist orders: we have not agreed to allow Clearview to harvest data from our sites and sell that collected data to others.
Whether or not selling this scraped collection to law enforcement agencies is unlawful in Vermont remains to be seen. But Clearview is fighting back in court, raising a truly questionable Section 230 defense against the AG’s lawsuit.
Clearview is represented by Tor Ekeland, who has been truly useful in defending people against bogus prosecutions. But Ekeland appears to believe Section 230 is a net loss for the public, so it’s interesting to see him raise it as a defense here.
Clearview’s motion to dismiss [PDF] compares Clearview to Google, claiming its bots crawl the web and cache images (and other data) on servers. However, Clearview claims it collects “far less data” than comparable search engines. According to its filing, Clearview does not collect any identifying info either — at least not intentionally. It only harvests photos and their metadata. The company says only 10% of the photos in its 4-billion photo database have any metadata attached.
However, this doesn’t mean the software can’t compile a staggering amount of information on a person and return this long list in response to an uploaded facial photo. To comply with California data privacy laws, Clearview has given state residents the opportunity to see what Clearview has gathered on them. It’s a lot.
The depth and variety of data that Clearview has gathered on me is staggering. My profile contains, for example, a story published about me in my alma mater’s alumni magazine from 2012, and a follow-up article published a year later.
It also includes a profile page from a Python coders’ meetup group that I had forgotten I belonged to, as well as a wide variety of posts from a personal blog my wife and I started just after getting married.
The profile contains the URL of my Facebook page, as well as the names of several people with connections to me, including my faculty advisor and a family member…
Clearview’s assertions about the personal information it intentionally gathers are meant to head off the Vermont AG’s claims that the company is violating state privacy laws. It’s also meant to portray Clearview as no more damaging to privacy than search engines like Google and no more nefarious than a Google search. The problem is cops are less likely to trust a Google search and more likely to trust a company that says it has 4 billion images and 600 law enforcement “partners,” even if the search results are equally questionable.
But on to the Section 230 argument, which is kind of amazing in its audacity.
Clearview is entitled to immunity under the CDA because: (1) Defendant is an interactive computer service provider or user; (2) Plaintiff’s claims are based on “information provided by another information content provider;” and (3) Plaintiff’s claims would treat Defendant as the “publisher or speaker” of such information.
These are the base claims. There’s more to it. But this is a company raising a defense afforded to service providers who host third party content. Here, there is no third party content — at least not in the sense that we’re used to. The “third parties” Clearview deals with are government agencies, who contribute no content of their own and only search the database of scraped photos using uploaded images.
In addition, the Vermont AG is not seeking an injunction against Clearview because of any particular content in its database. For example, the lawsuit is not predicated on defamatory content a user created. Instead, it’s suing Clearview because its method of database compilation ignores the state’s privacy laws. It’s hard to imagine how Section 230 fits this particular action, but this filing attempts to do exactly that.
First, Clearview asserts it’s a search engine just like Google. And if Google can’t be sued for violating privacy rights of users of other sites whose personal photos/information show up in Google searches, neither can Clearview.
The Attorney General seeks to prohibit Clearview from accessing or using publicly distributed photos, none of which Clearview AI created. Clearview AI’s republication of third-party content is the result of its search engine algorithm, which in this instance happens to be a biometric facial algorithm. The underlying technology does not transform Clearview into an information content provider that would be ineligible for CDA immunity. The CDA protects the publication of search engine results.
[…]
Clearview’s publication of its biometric facial algorithms results does not make it an information content provider any more than Google becomes one when it publishes its search algorithm results. Simply put, “[i]f a website displays content that is created entirely by third parties, … [it] is immune from claims predicated on that content.”
If Clearview did not create the content, it cannot be held responsible for its use of it — even if end users never specifically agreed to be part of a database accessible by law enforcement.
The motion also says Clearview cannot be viewed as a publisher, since all it has done is created (with scraped content) a searchable database of third-party content.
Vermont’s complaint cannot change the fact that it is targeting Clearview for performing the exact same functions as corporations like Google and Microsoft. Vermont claims that, “at a minimum, Clearview ‘must obtain the other party’s consent before’ using consumers’ photos from any website.” Google, in contrast, is said to “respect the Terms of Service of the websites they visit.” But Google searches are filled with information that individuals wanted to remain private, such as nonconsensually distributed intimate images. Nevertheless, Google has repeatedly been protected by §230 because courts have correctly viewed it as a publisher.
[…]
Clearview’s use of a complex algorithm does not negate the fact that it is performing the traditional role of a publisher. The Second Circuit emphatically rejected a claim that Facebook’s “matching” algorithm deprecated its status as a publisher. The Second Circuit has stated that, “we find no basis in the ordinary meaning of ‘publisher,’ the other text of Section 230, or decisions interpreting Section 230, for concluding that an interactive computer service is not the ‘publisher’ of third-party information when it uses tools such as algorithms that are designed to match that information with a consumer’s interests.”
The state has responded [PDF] to Clearview’s Section 230 assertions and has made the obvious point: this legal action isn’t being brought over content generated by third parties that would normally be met with immunity arguments. It’s being brought over Clearview’s acquisition and use of third-party content that state residents never agreed to being harvested/used by the facial recognition tech company.
The injurious information that Clearview claims gives it Section 230 immunity are the photographs that it screen-scraped. But the photographs themselves, as they were posted on the internet by their owners, are not injurious, and do not give rise to any of the State’s claims. Put another way, the State’s cause of action is not properly against millions of individuals who posted anodyne photographs on the internet.
The State’s claims are not based on the specific information at issue. The photographs themselves do not give rise to any of these claims. The State’s claims are for unfairness, deception, and fraudulent acquisition of data. Compl. ¶¶ 76-86. Specifically, Clearview’s conduct in acquiring the photographs through fraudulent means (see Section VI infra, discussing use of term “fraudulent”), storing them without proper security, applying facial recognition technology in a manner meant to violate privacy and infringe civil rights, and providing access to the database to whomever wanted it without concern for the safety or rights of the public, give rise to the State’s claims.
The state’s counter-argument hinges on a close reading of Section 230 — one that turns on a certain voluntary action by third parties.
Section 230 requires that the information at issue be provided by the third-party content provider. Again, the common thread in Section 230 cases is that the Information Content Provider posted the offensive information on the defendant’s servers. Here, no Vermont consumer could have intentionally provided any photographs to Clearview’s servers, because prior to the discovery in January of this year that Clearview had 3 billion photographs in a New York Times exposé, the general public did not know that Clearview existed.
It also points out how Clearview differs from the search engines it tries to compare itself to favorably.
Clearview is not a search engine like Google or Bing. Clearview’s App does something that no other company operating in the United States, including search engine companies, has ever done. In fact, search engine companies that are capable of creating a product like Clearview’s refused to do so for ethical reasons.
The state isn’t impressed by Clearview’s arguments and sums everything up with this:
For the fact pattern to apply, the photographs themselves would have to somehow be unfair or deceptive and the State’s claims would more properly be brought against the individuals.
In essence, the lawsuit isn’t about objectionable content hosted by Clearview, but objectionable actions by Clearview itself. That’s why Section 230 doesn’t apply. I’m not sure how the local court will read this, but it would seem readily apparent that Section 230 does not immunize Clearview in this case.
Online privacy can’t be solved by
giving people new property rights in personal data. That idea is
based on a raft of conceptual errors. But consumers are already
exercising property rights, using them to negotiate the trade-offs
involved in using online commercial products.
People mean
a lot of different things when they say “privacy.”
Let’s stipulate that the subject here is control of personal
information. There are equal or more salient interests and concerns
sometimes lumped in with privacy. These include the fairness and
accuracy of big institutions’ algorithmic decision-making,
concerns with commodification or commercialization of online life,
and personal and financial security.
Consumers’ use of online services
will always have privacy costs and risks. That tension is a
competitive dimension of consumer Internet services that should never
be “solved.” Why should it be? Some consumers are
entirely rational to recognize the commercial and social benefits
they get from sharing information. Many others don’t want their
information out there. The costs and risks are too great in their
personal calculi. Services will change over time, of course, and
consumers’ interests will, too. Long live the privacy tension.
Online privacy is not an all-or-nothing
proposition. People adjust their use of social media and online
services based on perceived risks. They select among options, use
services pseudonymously, and curtail and shade what they share. So,
to the extent online media and services appear unsafe or
irresponsible, they lose business and thus revenue. There is no
market failure, in the sense used
in economics.
Of course, there are failures of the
common sort all around. People say they care about privacy, but don’t
do much to protect it. Network effects and other economies of scale
make for fewer options in online services and social media, so there
are fewer privacy options, much less bespoke privacy policies. And
companies sometimes fail to understand or abide by their privacy
policies.
Those privacy policies are contracts.
They divide up property rights in personal information very subtly—so
subtly, indeed, that it might be worth reviewing what
property is: a bundle of rights to possess, use,
subdivide, trade or sell, abandon, destroy, profit, and exclude
others from the things in the world.
The typical privacy policy vests the
right to possess data with the service provider—a bailment, in
legal terminology. The service provider gets certain rights to use
the data, the right to generate and use non-personal information from
the data, and so on. But the consumer maintains most rights to
exclude others from data about them, which is all-important privacy
protection. That’s subject to certain exceptions, such as
responding to emergencies, protecting the network or service, and
complying with valid legal processes.
When companies violate their privacy
promises, they’re at risk from public enforcement actions—from
Attorneys General and the Federal Trade Commission in the United
States, for example—and lawsuits, including class actions.
Payouts to consumers aren’t typically great because
individualized damages aren’t great. But there are economies of
scale here, too. Paying a little bit to a lot of people is expensive.
A solution? Hardly. It’s more
like an ongoing conversation, administered collectively and
episodically through consumption trends, news reporting, public
awareness, consumer advocacy, lawsuits, legislative pressure, and
more. It’s not a satisfactory conversation, but it probably
beats politics and elections for discovering what consumers really
want in the multi-dimensional tug-of-war among privacy, convenience,
low prices, social interaction, security, and more.
There is appeal in declaring privacy a
human right and determining to give people more of it, but privacy
itself fits poorly into a fundamental-rights framework. People
protect privacy in the shelter of other rights—common law and
constitutional rights in the United States. They routinely dispense
with privacy in favor of other interests. Privacy is better thought
of as an economic good. Some people want a lot of it. Some people
want less. There are endless varieties and flavors.
In contrast to what’s already
happening, most of the discussion about property rights in personal
data assumes that such rights must come from legislative action—a
property-rights system designed by legal and sociological experts.
But experts, advocates, and energetic lawmakers lack the capacity to
discern how things are supposed to come out, especially given ongoing
changes in both technology and consumers’ information wants and
needs.
An interesting objection to creating
new property rights in personal data is that people might continue to
trade personal data, as they do now, for other goods such as low- or
no-cost services. That complaint—that consumers might get what
they want—reveals that most proposals to bestow new property
rights from above are really information regulations in disguise.
Were any such proposal implemented, it would contend strongly in the
metaphysical contest to be the most intrusive yet impotent regulatory
regime yet devised. Just look at the planned property-rights system
in intellectual property legislation. Highly arguable net benefits
come with a congeries of dangers to many values the Internet holds
dear.
The better property rights system is
the one we’ve got. Through it, real consumers are roughly and
unsatisfactorily pursuing privacy as they will. They often—but
not always—cede privacy in favor of other things they want
more, learning the ideal mix of privacy and other goods through trial
and error. In the end, the “privacy problem” will no more
be solved than the “price problem,” the “quality
problem,” or the “features problem.” Consumers will
always want more and better stuff at a lower cost, whether costs are
denominated in dollars, effort, time, or privacy.
Jim Harper is a visiting fellow at the American Enterprise Institute and a senior research fellow at the University of Arizona James E. Rogers College of Law.
(Those of you who’d like to read a transcript, rather than watch this powerful performance by Orlando Jones [possibly for “Dear God, I’m still at work” reasons], can do so here.)
This is the history of black Americans. For a few hundred years, they weren’t even Americans. And even after that — even after the Civil War — black Americans spent a hundred years being shunted to different schools, different neighborhoods, different restrooms, different bus seating, different water fountains. They are not us, this land of opportunity repeatedly stated.
Integration was forced. It was rarely welcomed. Being black still means being an outsider. Four hundred years of subjugation doesn’t just end. This is how the story continues:
A hundred years later. You’re fucked. A hundred years after that. Fucked. A hundred years after you get free, you still getting fucked out a job and shot at by police.
Fucked.
That’s George Floyd. The Minneapolis resident allegedly passed a counterfeit $20 bill at a local store. The penalty was death — delivered extrajudicially by Minneapolis police officer Derek Chauvin. Officer Chauvin put his knee on the neck of the handcuffed Floyd for 8 minutes and 46 seconds. This continued for more than two minutes after Officer Chauvin had checked Floyd’s pulse and stated he “couldn’t find one.”
A man was dead under Chauvin’s knee and yet he never moved. No one around him moved either. The other three officers at the scene watched Officer Chauvin kill a man, and not a single one of them did anything to prevent this from happening.
The good news is they’ve all been fired. The other news — with the “good” excised — is Officer Chauvin is being criminally charged. That’s only news. Buy your insurance now because it’s almost guaranteed Minneapolis will burn again once a jury has had a shot at this thing.
First, there’s the murder charge. We all want this but there’s little that supports it. It looks like murder, but the state has to prove things it’s probably not going to be able to prove — especially when the people doing the prosecuting aren’t all that interested in prosecuting cops.
Third-degree murder is the most minimal of murder charges and even that might not be enough to drag Officer Chauvin into the crushing wheels of the carceral state. As Scott Greenfield explains, there doesn’t appear to be enough to justify this charge in what’s been seen in multiple videos. It appears Chauvin deployed a restraint technique that’s been given a thumbs up by multiple law enforcement agencies.
Former police officer Derek Chauvin was charged with Murder 3, a not-insignificant charge even if it lacks the panache of Murder 1, with a potential sentence of 25 years in prison. Unlike intentional murder, the mens rea under Minnesota Statutes § 609.195 requires only a “depraved mind.”
609.195 MURDER IN THE THIRD DEGREE.
(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.
Yet, the complaint filed by the Hennepin County Attorney made almost no effort to assert that the elements of the charge were met, that Chauvin was “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
While the video clearly showed Chauvin’s knee on Floyd’s neck, which was naturally assumed, for obvious reasons, to have been the cause of death, that alone does not suffice to meet the element that it was an “act eminently dangerous.” It’s hardly an undangerous immobilization technique, but it’s also not an uncommon restraint, and is a permissible use of force in Minneapolis. That it’s only supposed to be used to restrain someone actively resisting gives rise to a departmental violation, but doesn’t elevate a lawful use of force to an eminently dangerous act.
If that falls, we’re left with manslaughter. And that probably won’t be enough to convince anyone Chauvin has been punished enough for continuing to use his knee to “restrain” Floyd for almost three minutes after a cop couldn’t detect his pulse.
“I am worried about excited delirium or whatever,” Lane said.
From that, we run into the details of the coroner’s report. These are preliminary, so they will change. But the exonerative text is already in there, ready for deployment by tough-on-crime politicians, media personnel willing to act like PD stenographers, police union officials (and the police union in Minneapolis is one of the worst), and anyone else seeking to justify Chauvin’s actions.
George Floyd didn’t die because Officer Chauvin crushed Floyd’s neck with his knee for almost nine minutes — most of which were spent with Floyd stating he couldn’t breathe. He died because he was going to die, with or without Officer Chauvin’s intercession.
The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.
George Floyd died of heart disease, you guys. It coincidentally killed him while he was having his neck compressed by a cop who checked his pulse and discovered he was likely already dead and continued to compress his neck for another two minutes. Also peep the “potential intoxicants,” which probably gave George Floyd the superhuman strength he needed to stay alive for seven of those nine minutes before succumbing to “coronary artery disease.”
If Chauvin walks, Minneapolis burns again. Multiple cities burn. Unlike other killings of black men by cops, this has prompted intense protests across the nation. This one — committed in full view of multiple phones and at least one nearby CCTV camera — shows cops do not give a fuck who is watching. They will do what they want to do and roll the dice on a favorable ruling by federal courts.
LET IT BURN. LET IT ALL BURN.
In response to this killing, Minneapolis burned. Looting accompanied the protests, as is often the case. We can argue about the positive/negative effects of looting for as long as you want in the comment threads, but let’s take a look at a couple of facts.
We have had riots in America for years. And looting. Those arguing that the destruction of businesses during these protests is counterproductive need to have their memories refreshed. This nation began with the looting of British ships. A whole offshoot of the “rule of law” party (also the “free speech” party, which is currently headed by someone seeking to directly regulate social media platforms) named itself after protesters who boarded British ships and threw their merchandise overboard.
Even if you decry the the destruction of local businesses which may not have the funds to recover from this unexpected turn of events, you cannot argue with protesters going straight to the source of the problem.
Police precinct set on fire on the third day of demonstrations as the so-called Twin Cities of Minneapolis and St. Paul seethed over the shocking police killing of a handcuffed black man
And, as a bonus, the thin blue line between us and chaos being filmed abandoning their posts and leaving us to the chaos they could never protect us from, no matter how many black men they killed.
This is the moment Minneapolis police abandoned, fled the police precinct during the protests for #JusticeForGeorge – minutes later the precinct went up in flames pic.twitter.com/thYDXBThLe
The cops fucked this up. The cops should pay. Unfortunately, it will be taxpayers funding the rebuilding of the Third Precinct station in Minneapolis, but, by all means, burn every cop car, precinct, etc. that stands between black Americans and the respect of their rights.
The message is clear: cops are the problem, not the solution. Burn the shit that means something to them — the stuff that protects them from the people — and see where we all are at the end of the day.
Let’s take the long view. What has this accomplished? Here’s a list of riots sparked by police violence against minorities — one dating back nearly 60 years.
1965: Los Angeles 1967: Newark 1967: Detroit 1968: King assassination 1980: Miami 1992: Los Angeles 2001: Cincinnati 2014: Ferguson 2015: Baltimore 2016: Charlotte
What did that get us? Burning small parts of the system to the ground got us Nixon (who ran on a “tough on crime” platform following the riots in the 1960s) and a immensely-harmful drug war that has done nothing to slow the supply of drugs but has done everything to improve the bottom lines of PDs and prosecutors.
Cops haven’t changed. And they haven’t changed despite having every reason to. Several dozen cop shops are operating under consent decrees with the Department of Justice because they can’t be trusted to not violate rights en masse on their own. The rest are still acting like it’s a war zone out there, cladding themselves in cast-off military gear and equipment even as crime rates remain at historic lows. It’s tough to be a cop out there, say cops, even as unimpeachable data says otherwise to a bunch of impeachable cops.
But let’s just say you’re arguing that riots/protests/looting don’t solve anything. Let’s look at the data again. Here are the years where nothing happened:
Did not attacking cops help then? Did leaving retail outlets intact make policing better? Did a lack of looting force cops to realize their systemic bias was hurting communities? Did all of this non-action bring us to a better place in terms of our relationship with law enforcement? (Those of you who are not minorities can put your hands down. Thanks.)
Short answer: it did not. The boot stamping on a human face forever is the past, present, and future. This image was personified by Officer Chauvin, who placed his knee on the neck of a human being suspected of passing a counterfeit $20 bill until he died. And continued to perform this inadvertently symbolic move for nearly another three minutes after that.
If it’s going to burn — and it should — it should start with those who have earned the flames. Cop cars are burning. Police stations are burning. Good. There is nothing wrong with this. The cops pretended to fear us whenever it was convenient. They claimed their subjective fear that someone might have a weapon justified every bullet they pumped into a person. Then they did nothing when people carrying actual guns marched on government buildings to demand access to restaurants and haircuts.
Fuck them. If you’re going to cry about the threats separating you from making it home to your family every night, at least be consistent. And if you can’t be consistent, at least restrain yourself from killing non-resistant people in the street in front of several cameras. And for fuck’s sake, if you can’t do that last part, it just means you don’t fear the public and their representatives. It means you think the courts will clear you, if not your own department and union. No public official deserves this much deference, trust, or unearned protection.
YOU OWE US.
That obligation has never changed. The only thing that has changed is the other branches of the government, which have decided — either through QI rulings or deference to police unions — that the public matters less than those sworn to serve it.
This is not me wading into a recent controversy with my eye on harvesting clicks. This is me — and this site — covering the abuses perpetrated by law enforcement agencies for years. There is nothing anomalous about this event. It just shows accountability can’t be brought solely by the mute witnesses of criminal acts by law enforcement officers. We have our cameras pointed at them. They have their own cameras. And yet, they still don’t care.
If this is how they want it, we have the power to give it to them.
Be the god of righteous hellfire. All these years of not setting fire to the possessions of an invading force intent on treating fellow citizens as enemy combatants has done nothing.
Joe Biden had a golden opportunity to actually look Presidential, and stand up for free speech and the 1st Amendment at a moment when our current President is seeking to undermine it with his Executive order that is designed to intimidate social media companies into hosting speech they’d rather not, and scare others off from fact checking his lies. And he blew it. He doubled down on the ridiculous claim that we should “revoke” Section 230.
A spokesperson for the campaign told The Verge Friday that the former vice president maintains his position that the law should be revoked and that he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods.
In other words, he wants to go even further than Trump and literally wipe out free speech online. Of course, the problem with that “proposed legislation” is that it’s clearly unconstitutional and the man who wishes to be President still thinks that Section 230 does what the 1st Amendment actually does. He’s simply wrong in claiming that taking away 230 will magically make Facebook liable for spreading false info.
Indeed, as we’ve pointed out multiple times, the claim that taking away 230 will make Facebook liable for false info is itself false info. But Biden (and Facebook and anyone else) are protected in repeating that false info because of the 1st Amendment.
Biden’s ongoing attacks on free speech are truly unfortunate — especially given that Trump’s silly Executive order basically put the issue on a tee for Biden to respond to. And instead, we get a plan to go even further than Trump in trying to harm the internet that enables the speech of so many people.
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There’s kind of a lot going on in America right now — what with widespread protests about police violence (leading to more police violence), and we’re still in the middle of the largest pandemic in a century. You’d think some of those things would be priorities for Congress, but instead, Senate Republicans have decided that now is the time to pushing ahead with helping Hollywood by examining how to make copyright worse. Even the Washington Post is completely perplexed as to how this could possibly be a priority right now.
?I don?t think we have yet felt the urgency of acting immediately? on further help for those devastated by the pandemic, McConnell said two weeks ago. Now, with 100,000 dead and 40 million out of work, he still talks of waiting a month.
So what makes Senate Republicans feel the urgency of acting immediately? What would make them Take It to the Limit?
Actually, I can. The Eagles singer and drummer has been summoned by the Senate Judiciary subcommittee to testify Tuesday about the functioning of the Digital Millennium Copyright Act?s ?Notice-And-Takedown System.?
Henley, of course, is one of the wealthiest musicians in history, considering that he was a founding member of the Eagles, a band that literally has both the best selling album of all timeAND the third best selling album of all time. Yes, in the top 3 best selling albums of all time, Don Henley’s on two of ’em.
If Don Henley is hurting for money, I’m going to suggest that it ain’t copyright that’s the problem. But this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.
Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.”
[….]
“People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.”
Really, none of this makes any sense. You’d think (1) that right now wouldn’t be the time to focus on copyright, (2) that Republican Senators wouldn’t be in such a rush to aid Hollywood (which is generally not known for its support of the GOP), and (3) that of all the possible people to testify, they’d pick a rich rocker who’s big complaint about the internet is that it allows the kids these days to be creative. But for whatever reason, this is what the Republican leadership in the Senate feels is most important right now. Helping super rich rockers who dislike the kids get even richer at the expense of the public.
Two years ago, an investigation by the Associated Press and Princeton computer scientists found that Google services on both Android and Apple routinely continued to track user location data, even when users opted out of such tracking. Even if users paused “Location History,” the researchers found that some Google apps still automatically stored time-stamped location data without asking the consumer’s consent.
Fast forward two years later, and Arizona Attorney General Mark Brnovich has sued Google for violating the Arizona Consumer Fraud Act over the practice. The lawsuit (pdf), filed in Maricopa County Superior Court, is based off of an investigation begun by Brnovich’s office back in 2018. Like the aforementioned AP report, the AG found that Google’s settings didn’t actually do what they claimed they did in regards to ceasing location data tracking:
“Google told users that “with Location History off, the places you go are no longer stored.” But as the AP article revealed, this statement was blatantly false ? even with Location History off, Google surreptitiously collects location information through other settings such as Web & App Activity and uses that information to sell ads. At the same time, Google?s disclosures regarding Web & App Activity misled users into believing that setting had nothing to do with tracking user location. Google?s account set-up disclosures made no mention of the fact that location information is collected though Web and App Activity, which is defaulted to ?on,” until early-to mid-2018.”
To be very clear, that’s bad. Companies (especially companies that have spent years under fire for privacy abuses) should be transparent about what they’re collecting, clearly communicate that to end users, and not try to hide opting out under layers of confusing menus. This is, of course, the kind of stuff that would be thwarted by a very simple privacy law that required transparency, working opt out tools, and included penalties for companies that misled users. You know, the kind of basic rules that were passed by the FCC back in 2016, then immediately demolished by telecom lobbyists thanks to the GOP-controlled Senate one year later, just as they were about to take effect.
“At some point, people or companies that have a lot of money think they can do whatever the hell they want to do, and feel like they are above the law,? Brnovich said. ?I wanted Google to get the message that Arizona has a state consumer fraud act. They may be the most innovative company in the world, but that doesn?t mean they?re above the law.”
While this is all well and good, and Google certainly deserves penalties for not being transparent about how basic privacy settings work, the lawsuit continues to highlight a bizarre asymmetry in policymakers’ concerns about privacy. While Google’s failure here was bad, it’s a far cry from the location data scandals that recently rocked the telecom sector. There, carriers were found to have been selling access to huge swaths of location data to pretty much any nitwit with a nickel. This data was then repeatedly, aggressively abused, by everybody from law enforcement to folks pretending to be law enforcement, to stalkers.
The scope of those scandals were utterly monumental, yet the punishment was virtually nonexistent. The worst that happened was a performative FCC fine that will likely be litigated down to next to nothing over the next year, then forgotten entirely. Many AGs were utterly absent from that particular dance of dysfunction, despite claims to be eagerly cracking down on companies that are “above the law.” There were no lawsuits filed against AT&T, Verizon, or T-Mobile. And while the FCC did finally act, it wound up being little more than a belated wrist slap.
We’ve noted this bizarre tech and privacy policy asymmetry more than a few times, yet it doesn’t seem to really change, with “big tech” getting the lion’s share of heat and attention, while adtech, telecom, and other equally problematic sectors routinely engage in the same or worse behaviors yet see far less scrutiny. If we are ever going to craft a meaningful privacy law in the United States (and I remain skeptical that’s happening without first seeing an historic scandal well beyond what we’ve seen already), policymakers are going to need to take a far broader, bird’s eye view of the modern privacy problem.
