We’ve posted about Swedish oat milk maker Oatly several times here at Techdirt and never for good reasons. The company has a reputation as a trademark bully and abuser, starting with its failed attempt to lock out rival companies from using the word “oat”, even though that is a product descriptor, as well as its attempt to lock up the generic word “barista” in Australia.
But the fact that Oatly has been on our naughty list in the past doesn’t change the simple fact that its recent victory over dairy trade group Dairy UK is the good and proper outcome. At issue was a trademark application Oatly put in for its slogan, “Post Milk Generation.”
Oat milk brand Oatly is known for its extravagant messaging and eye-catching packages. The Swedish company registered the slogan “Post Milk Generation” in 2019.
However, Dairy UK, the trade association of the British dairy industry, soon challenged the trademark. It argued that the term could not be used “in relation to products that are not mammary secretions.”
That argument came from a UK regulation from 2013 restricting companies from describing products as “milk” if the product was not literal milk, hence the amazing “mammary secretions” requirement. The opposition failed, though it took four years to reach that conclusion. Oatly correctly and successfully argued that its slogan wasn’t describing its product at all, but instead referred to the type of folks that would buy oat milk, the post-milk generation.
However, lawyers for Oatly successfully argued that “Post Milk Generation” does not breach the regulation because it describes the likely consumer rather than the product.
Justice Richard Smith rejected Dairy UK’s claims that Oatly’s use of the term could cause confusion. Instead, he ruled that Oatly’s slogan makes it clear that the products are “for consumers who no longer consume dairy milk.”
And it’s a good slogan, as more and more people turn away from traditional dairy sources for milk and instead embrace plant-based “milks.” There are all kinds of health and environmental reasons for doing this, with the growth of the movement creating, you know, a post-milk generation of customers.
Honestly, the only surprising part of this ruling is that it took four years to get here.
Qualified immunity rulings are an unqualified mess. The question doesn’t revolve around whether or not rights were violated. In most cases, they were.
Instead, the question revolves around whether or not the rights violation was “clearly established.” The Supreme Court created this doctrine decades ago. And ever since then, it has been making it more difficult to demonstrate rights violations are so obvious even the officers committing them would have known they were violating rights.
The Supreme Court has started to walk back a bit of its jurisprudence, suggesting courts be a little less specific when searching case law for on-point cases. But that’s very recent and it has yet to become more than a sporadic trickle when it comes to lower courts being a bit less exacting when issuing qualified immunity rulings.
This is one of the clear ones, though. The Second Circuit Appeals Court says officers can’t tell pretty much everyone involved in the jail admissions process an arrestee has ingested drugs and then fail to do anything whatsoever about this dangerous situation.
The ruling [PDF] opens with a recitation of the facts. And the facts are as depressing as they almost certainly are common.
Terrelle Thomas was the passenger in a vehicle stopped by police officer Daril Foose. According to the officer, Thomas spoke as though he had “cotton mouth” and was possibly concealing a “large amount of an unknown item” inside his mouth. The officer also observed that Thomas’s lips were “pasty white” and his face was “covered” with a “powdery substance.”
Officer Foose believed Thomas had consumed an unknown (but presumably illicit) drug (or drugs) during the stop to avoid being caught with them in his possession. However, Thomas told Officer Foose he only had marijuana in his possession and that his “white pasty” lips could be explained by the candy cigarette he had recently consumed.
It wasn’t a very credible alibi and it was soon undone by the officer’s next observation:
Officer Foose quickly concluded this was a lie because she “observed cocaine rocks fall out of . . . Thomas’s shirt . . . and she failed to find any candy cigarettes.”
Thomas was arrested. While he was awaiting processing, Officers Foose and (jail officer) Dan Kinsinger informed four other officers that they believed Thomas had ingested cocaine. All of the officers testified that they saw physical indications that this was likely the case, citing many of the same things Officer Foose had. One even remarked that this likely meant Thomas would need immediate medical attention.
Corporal Johnsen “acknowledged the seriousness of ingesting cocaine by warning . . . Thomas that he could possibly die from ingesting drugs.”
The officers agreed Thomas should be moved to a nearby detention center, even though this detention center lacked the medical equipment to verify whether or not Thomas had ingested narcotics. This didn’t make much sense, given that all the officers agreed this is most likely what had happened. It made even less sense considering Officer Foose’s actions were (supposed to be, anyway) guided by her employer’s policies.
Harrisburg Police Department policy dictates that officers take arrestees to the hospital if the arrestees have “consumed illegal narcotics in a way that could jeopardize their health and welfare.“
That was ignored. Thomas was moved to a detention center with inadequate medical facilities. Not that it would have mattered. No one bothered to provide any sort of medical attention to the arrestee, despite being informed Thomas had mostly likely consumed an unknown amount of crack or cocaine.
Instead, this happened:
[T]he officials placed Thomas in a cell without any medical care or observation. Less than two hours after Thomas’s arrest, surveillance video showed Thomas falling backwards onto the floor, hitting his head, and suffering cardiac arrest.
It was only at the point that Thomas was in the process of dying that anyone involved in his arrest or jailing paid any attention to his health. By then, it was too late. He died three days later in intensive care. The cause of death was exactly what the officers talked about, but refused to take any action to resolve: “cocaine and fentanyl toxicity.”
The lower court denied qualified immunity to officers Johsen, Salazer, Banning, Foose, Carriere, and probation officer Kinsinger, ruling that the officers had violated Thomas’s rights by failing to intervene (with each other’s indifference to his drug ingestion) and failing to provide medical care — both rights the lower court considered to be clearly established.
The Appeals Court upholds about half of this. It allows the officers to escape the failure to intervene charges, but won’t grant them immunity to sidestep their refusal to seek or render medical assistance to an overdosing arrestee.
The officers claimed the lower court wasn’t specific enough when analogizing the facts of this case to past case law clearly establishing a right to medical assistance in situations like these. Wrong, says the Appeals Court. The correct amount of specificity was used. Just because it wasn’t specific enough to allow these officers to escape the lawsuit doesn’t mean it was the wrong standard.
We may rely on general principles to find that the facts here present a violation that is “so obvious” “that every objectively reasonable government official facing the circumstances would know that the [Officers’] conduct. . . violate[d] federal law when [they] acted.” In such a case, “general standards can ‘clearly establish’ the answer, even without a body of relevant case law. In other words, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”
And it’s painfully obvious in this case that the officers should have known their actions were unconstitutional.
As applied to the facts of this case, we hold therefore that when an officer is aware of the oral ingestion of narcotics by an arrestee under circumstances suggesting the amount consumed was sufficiently large that it posed a substantial risk to health or a risk of death, that officer must take reasonable steps to render medical care.
It’s just that simple. All the officers agreed Thomas had ingested an unknown quantity of narcotics. All of them likely knew (although only one said it out loud) that Thomas was likely in a life-threatening situation (albeit one of his own making). One officer definitely knew PD policy required seeking immediate medical care. But they all agreed to move someone on the verge of a fatal overdose to a jail with inadequate medical facilities. Then they just walked away from this, allowing the jailers to engage in their own indifference until Thomas went into cardiac arrest.
Because this cadre of cops and jailers decided doing nothing was better than doing the bare minimum, they’re still on the hook for Thomas’s death. Sure, other people will be paying the bill when the inevitable settlement arrives, but these officers will no longer have the luxury of pretending they’re too (legally) stupid to be held accountable for their actions.
Half a decade ago we documented how the U.S. wireless industry was caught over-collecting sensitive user location and vast troves of behavioral data, then selling access to that data to pretty much anybody with a couple of nickels to rub together. It resulted in no limit of abuse from everybody from stalkers to law enforcement — and even to people pretending to be law enforcement.
While the FCC purportedly moved to fine wireless companies for this behavior, the agency still hasn’t followed through. Despite the obvious ramifications of this kind of behavior during a post-Roe, authoritarian era.
Nearly a decade later, and it’s still a very obvious problem. The folks over at 404 Media have documented the case of a stalker who managed to game Verizon in order to obtain sensitive data about his target, including her address, location data, and call logs.
Her stalker posed as a police officer (badly) and, as usual, Verizon did virtually nothing to verify his identity:
“Glauner’s alleged scheme was not sophisticated in the slightest: he used a ProtonMail account, not a government email, to make the request, and used the name of a police officer that didn’t actually work for the police department he impersonated, according to court records. Despite those red flags, Verizon still provided the sensitive data to Glauner.”
In this case, the stalker found it relatively trivial to take advantage of Verizon Security Assistance and Court Order Compliance Team (or VSAT CCT), which verifies law enforcement requests for data. You’d think that after a decade of very ugly scandals on this front Verizon would have more meaningful safeguards in place, but you’d apparently be wrong.
Keep in mind: the FCC tried to impose some fairly basic privacy rules for broadband and wireless in 2016, but the telecom industry, in perfect lockstep with Republicans, killed those efforts before they could take effect, claiming they’d be too harmful for the super competitive and innovative (read: not competitive or innovative at all) U.S. broadband industry.
In fact, any time the FCC proposes doing absolutely anything about lax privacy standards in wireless or broadband, Republicans work in perfect synchronicity with Comcast, Verizon, and AT&T to demonize and crush the effort. They’re currently trying to block an FCC effort requiring that broadband providers do a better, faster job informing customers about hacks and data breaches.
The Republican party not only never has to truly own this dangerous policy decision in the press, you can often watch as cable news outlets present Republicans like Marsha Blackburn, Ted Cruz, or Brendan Carr as good faith privacy reformers (see their performative outrage about TikTok).
At the same time, Congress, as a whole, has proven too corrupt to pass even a basic privacy law for the internet era, despite no limit of problematic scandals. In part because there’s a massive coalition of companies across numerous industries lobbying against it, but also because this lax data-hoovering system we’ve constructed helps the government avoid having to get actual warrants.
So what we get is this steady beat of ugly and avoidable privacy scandals we’ve chosen to do nothing about. Those in power have effectively decided that making money is more important than market health, human safety, or pretty much anything else. Eventually, there will be a scandal at a scale so disturbing it finally shakes Congress out of its corrupt slumber, and it’s going to be a doozy.
In 2023, the extreme ideology of “human extinction from AI” became one of the most prominent trends. It was followed by extreme regulation proposals.
As we enter 2024, let’s take a moment to reflect: How did we get here?
Alina Constantin / Better Images of AI / Handmade A.I / CC-BY 4.0
2022: Public release of LLMs
The first big news story on LLMs (Large Language Models) can be traced to a (now famous) Google engineer. In June 2022, Blake Lemoine went on a media tour to claim that Google’s LaMDA (Language Model for Dialogue Application) is “sentient.” Lemoine compared LaMDA to “an 8-year-old kid that happens to know physics.”
This news cycle was met with skepticism: “Robots can’t think or feel, despite what the researchers who build them want to believe. A.I. is not sentient. Why do people say it is?”
In August 2022, OpenAI made DALL-E 2 accessible to 1 million people.
In November 2022, the company launched a user-friendly chatbot named ChatGPT.
People started interacting with more advanced AI systems, and impressive Generative AItools, with Blake Lemoine’s story in the background.
At first, news articles debated issues like copyright and consent regarding AI-generated images (e.g., “AI Creating ‘Art’ Is An Ethical And Copyright Nightmare”) or how students will use ChatGPT to cheat on their assignments (e.g., “New York City blocks use of the ChatGPT bot in its schools,” “The College Essay Is Dead”).
2023: The AI monster must be tamed, or we will all die!
The AI arms race escalated when Microsoft’s Bing and Google’s Bard were launched back-to-back in February 2023. It was the overhyped utopian dreams that helped overhype the dystopian nightmares.
A turning point came after the release of New York Times columnist Kevin Roose’s story on his disturbing conversation with Microsoft’s new Bing chatbot. It has since become known as the “Sydney tried to break up my marriage” story. The printed version included parts of Roose’s correspondence with the chatbot, framed as “Bing’s Chatbot Drew Me In and Creeped Me Out.”
“The normal way that you deal with software that has a user interface bug is you just go fix the bug and apologize to the customer that triggered it,” responded Microsoft CTO Kevin Scott. “This one just happened to be one of the most-read stories in New York Times history.”
From there on, it snowballed into a headline competition, as noted by the Center for Data Innovation: “Once news media first get wind of a panic, it becomes a game of one-upmanship: the more outlandish the claims, the better.” It reached that point with TIME magazine’s June 12, 2023, cover story: THE END OF HUMANITY.
Two open letters on “existential risk” (AI “x-risk”) and numerous opinion pieces were published in 2023.
The first open letter was on March 22, 2023, calling for a 6-month pause. It was initiated by the Future of Life Institute, which was co-founded by Jaan Tallinn, Max Tegmark, Viktoriya Krakovna, Anthony Aguirre, and Meia Chita-Tegmark, and funded by Elon Musk (nearly 90% of FLI’s funds).
The letter called for AI labs “to immediately pause for at least six months the training of AI systems more powerful than GPT4.” The open letter argued that “If such a pause cannot be enacted quickly, governments should institute a moratorium.” The reasoning was in the form of a rhetorical question: “Should we develop nonhuman minds that might eventually outnumber, outsmart, obsolete, and replace us?”
It’s worth mentioning that many who signed this letter did not actually believe AI poses an existential risk, but they wanted to draw attention to the various risks that worried them. The criticism was that “Many top AI researchers and computer scientists do not agree that this ‘doomer’ narrative deserves so much attention.”
The second open letter claimed AI is as risky as pandemics and nuclear war. It was initiated by the Center for AI Safety, which was founded by Dan Hendrycks and Oliver Zhang, and funded by Open Philanthropy, an Effective Altruism grant-making organization, run by Dustin Moskovitz and Cari Tuna (over 90% of CAIS’s funds). The letter was launched in the New York Times with the headline, “A.I. Poses ‘Risk of Extinction,’ Industry Leaders Warn.”
These statements resulted in newspapers’ opinion sections being flooded with doomsday theories. In their extreme rhetoric, they warned against apocalyptic “end times” scenarios and called for sweeping regulatory interventions.
Dan Hendrycks, from the Center for AI Safety, warned we could be on “a pathway toward being supplanted as the earth’s dominant species.” (At the same time, he joined as an advisor to Elon Musk’s xAI startup).
Zvi Mowshowitz (Don’t worry about the vase substack) claimed that “Competing AGIs might use Earth’s resources in ways incompatible with our survival. We could starve, boil or freeze.”
Michael Cuenco, associate editor of American Affairs, asked to put “the AI revolution in a deep freeze” and called for a literal “Butlerian Jihad.”
Eliezer Yudkowsky, co-founder of the Machine Intelligence Research Institute (MIRI), asked to “Shut down all the large GPU clusters. Shut down all the large training runs. Track all GPUs sold. Be willing to destroy a rogue datacenter by airstrike.”
Conjecture’s Connor Leahy, who said, “I do not expect us to make it out of this century alive; I’m not even sure we’ll get out of this decade,” was invited to the House of Lords, where he proposed “a global AI ‘Kill Switch.’”
All the grandiose claims and calls for an AI moratorium spread from mass media, through lobbying efforts, to politicians’ talking points. When AI Doomers became media heroes and policy advocates, it revealed what is behind them: A well-oiled “x-risk” machine.
Since 2014: Effective Altruism has funded the “AI Existential Risk” ecosystem with half a billion dollars
This funding did NOT include investments in “near-term AI Safety concerns such as effects on labor market, fairness, privacy, ethics, disinformation, etc.” The focus was on “reducing risks from advanced AI such as existential risks.” Hence, the hypothetical AI Apocalypse.
2024: Backlash is coming
On November 24, 2023, Harvard’s Steven Pinker shared: “I was a fan of Effective Altruism. But it became cultish. Happy to donate to save the most lives in Africa, but not to pay techies to fret about AI turning us into paperclips. Hope they extricate themselves from this rut.” In light of the half-a-billion funding for “AI Existential Safety,” he added that this money could have saved 100,000 lives (Malaria calculation). Thus, “This is not Effective Altruism.”
In 2023, EA-backed “AI x-risk” took over the AI industry, AI media coverage, and AI regulation.
Nowadays, more and more information is coming out about the “influence operation” and its impact on AI policy. See, for example, the reporting on Rishi Sunak’s AI agenda and Joe Biden’s AI order.
In 2024, this tech billionaires-backed influence campaign may backfire. Hopefully, a more significant reckoning will follow.
Dr. Nirit Weiss-Blatt, Ph.D. (@DrTechlash), is a communication researcher and author of “The TECHLASH and Tech Crisis Communication” book and “AI Panic” newsletter.
Back in April we noted that the EU had designated 17 sites as “VLOPs” (Very Large Online Platforms), the “ROUSs” (Rodents of Unusual Size) of the internet. Some of those sites are still contesting the designation, but in the meantime, the EU Commission has dug deep into its porn viewing habits and designated three more sites, all adult content focused, as VLOPs. Pornhub, Stripchat, and XVideos (not to be confused with ExTwitter’s videos), are all designated as VLOPs, and needing to comply with the DSA’s VLOP obligations by February 17th of 2024.
Pornhub, generally recognized as the largest adult content site around, has suggested that it disagrees with the designation, telling the media that it only has 33 million users in the EU, which is below the VLOP threshold. So, it would not be surprising to see one or all of these sites challenging the designation.
Given some of the controversies around adult content sites and how well they handle certain content, the much more stringent requirements on these sites may represent a pretty big challenge.
Most specifically, the DSA’s requirements regarding “strong protection of minors” may represent a challenge, not because the sites don’t want to protect minors, but if you are required to protect minors, you first have to identify minors using your service, which means age verification. And most age verification tools actually put children at more risk, so if the only way to “protect minors” is to put them at risk, it’s a bit of a conundrum.
The adult content industry has been leading the pushback on age verification laws in the US, noting that they’re not against making sure kids don’t access their sites, but they want to make sure that it can be done in a way that isn’t a privacy/speech nightmare, which they feel is using device based identification, rather than site-based (there are tradeoffs with this approach as well, but that’s a separate issue).
Still, while the industry has used the 1st Amendment to fight these issues in the US, it obviously doesn’t have that weapon to use in the EU. So, at least from what’s been said so far, it sounds like they may just fight the designation based on thresholds first.
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Governments know the difference between right and wrong. It’s just that they often don’t seem to care.
This is a small-ish wrong, but it’s a wrong nonetheless. Like far too many other state bodies charged with policing vanity plate messages, the South Dakota Motor Vehicle Division has a problem giving its tacit blessing to other people’s speech.
Since the selected message (central to this lawsuit is the MVD’s rejection of “REZWEED”) is printed on a government-issued plate, states that want to deter as many vanity plates as possible pretend everyone seeing the plate would assume the government is uttering the phrase “REZWEED.”
But, of course, no one actually thinks that, not even the state officials and the lawyers who represent them. Everyone understands any message on a vanity license plate is one delivered by the purchaser of the plate, not the government they purchased it from.
And that’s how these state agencies ended up being sued. The state Department of Revenue (which apparently has the final call) rejected the “REZWEED” plate requested by resident Lyndon Hart. It did this despite approving other plates that might be considered just as questionable if someone were to presume (stupidly) that a vanity plate’s content implies government support of the brief message the plate contains.
When the government lays down rules but then enforces them inconsistently, it starts creating constitutional problems. The state’s inability to abide by its own statutes was exposed by the ACLU, which represented Lyndon Hart in this lawsuit. Here’s how the state was handling things before it got sued:
It’s OK to be a “HELLCAT,” but not a “HELLBOY.” Don’t tell anybody to “HLDMYBR,” but it’s fine to go on a “BEERRUN.” And don’t say “IH8U,” but “YUH8ME” is acceptable.
Why was “REZWEED” objectionable? Maybe because the state government isn’t all that happy that state residents were able to obtain partial legality of marijuana purchase/use. Governor Kristi Noem asked a bunch of law enforcement agencies to sue on the state’s behalf to get a legal weed referendum approved by popular vote struck down. But she and her state buddies were unable to prevent the legalization of medical marijuana. And the first beneficiaries of medical licenses were the state’s reservations. Hence: REZWEED.
South Dakota will no longer deny personalized license plate requests on the basis that they may “carry connotations offensive to good taste and decency” after the ACLU filed a lawsuit against the state.
[…]
“The standard is deemed severed from the statute and has no force and effect in the issuance of personalized plates or in the recall of any previously issued personalized plate,” the settlement agreement document said.
So, there’s nothing in the consent decree [PDF] forcing the state to admit it unconstitutionally denied plates to residents. But at least the state won’t be able to keep violating the First Amendment moving forward.
The statute is amended will be amended to remove blanket judgments about “good taste and decency.” (The state website still shows the old law, as of prior to this agreement.)
On top of that, the Department of Revenue website must post a notice on its website informing plate owners and purchasers that the new policy will no longer utilize a “good taste and decency standard.” And anyone whose plate was denied in the past can reapply to obtain previously rejected plates.
As for the plaintiff, REZWEED is theirs to keep. And so are these other options, which suggest a fleet of vehicles now capable of advertising/celebrating the availability of medical marijuana via reservation licenses and dispensaries.
The personalized plates “REZWEED”, “REZSMOK”, or “REZBUD” issued to Plaintiff will not be recalled in the future so long as personalized plates are allowed by the legislature and Plaintiff is in continued compliance with all personalized license plate requirements consistent with this Consent Decree.
Let the good times roll. Medical weed is here to stay, it would appear. Fortunately, its arrival has forced the state government to give back the part of the First Amendment it took from citizens when it decided it had the final say on “good taste and decency.”
By now we’ve well established that this particular series of media mergers — which began with AT&T’s doomed acquisition of Time Warner and ended with Time Warner’s subsequent spin off and fusion with Discovery — were some of the dumbest, most pointless “business” exercises ever conceived by man.
The idiotic saga burned through hundreds of billions in debt, saw more than 50,000 people lose their jobs, killed off numerous popular brands (like Mad Magazine and HBO), created oceans of animosity among creatives, and resulted in a Max streaming service that’s arguably dumber and of notably lower quality than when the entire expensive gambit began.
And executives at Warner Bros Discovery appear to have learned absolutely nothing from the experience.
The New York Times indicates that Warner Bros Discovery boss David Zaslav is in early talks to merge with yet another company, this time Paramount (CBS). These mergers provide absolutely no real benefit to the broader world; they exist exclusively so the fail upward brunchlords in charge can nab giant tax breaks and put “savvy dealmaker” on their resumes.
But they also showcase how the executives in charge are completely out of original ideas.
That said, the New York Times coverage of this latest wrinkle is… not good.
Outside of the massive debt load, the paper doesn’t seem to think it’s important to inform readers about the endless, pointless, and clearly harmful chaos from the company’s last two shitty mergers. The 50,000+ layoffs from the last two deals aren’t even mentioned. Neither is the endless frustration among creatives who lost their livelihoods or watched their projects get crushed underfoot for no coherent reason.
The Times also apparently believes that there’s “ample business logic” in the deal, because they claim it will provide Warner Brothers Discovery HBO Max Paramount CBS Plus with greater leverage in negotiations with cable TV companies:
“There is ample business logic in a tie-up of Warner Bros. Discovery and Paramount. Paramount’s bundle of TV networks, which include MTV, Nickelodeon and Comedy Central, could give Warner Bros. Discovery greater leverage in negotiations with cable distributors like Comcast and Charter.”
The problem with the NYT’s claim is that traditional cable TV is facing what could be its final death knell. We just got done noting how traditional cable TV networks (many of the ones the Times lists above as important assets) have effectively turned into mindless rerun-airing zombies, and most current cable TV channels likely won’t even exist in a few years.
Gone is the originality of HBO, replaced with a growing mountain of reality TV programs about dumb people having sex on islands. Accompanied by a huge increase in weird and annoying service restrictions and higher prices. That’s going to drive users not just to free alternatives like YouTube or TikTok, but back to piracy after a decade of inroads with U.S. consumers.
Again, these media mergers are utterly pointless, harmful constructs that actively undermine the brand and long-term health of these companies. And, as the NYT demonstrates, the very real human harms of this pointless consolidation are simply edited out of the frame like one of Stalin’s political enemies, ensuring nobody learns anything as we repeat the process in idiotic perpetuity.
