All year long, there have been reports talking about how the Pirate Party in Iceland were poised to take control over the Icelandic government in the elections. Many publications acted like it was a foregone conclusion. However, if anything should be obvious this year, what the polls and the press are telling you about likely outcomes of elections should be taken with a large grain of salt. So we didn't report on it -- even after the election when the Pirate Party did well, but still came in third place. However, with the top two parties failing to build a coalition to form a new government, the Iceland Pirates have been given a shot and they're hard at work trying to build a coalition that will form the government.
Of course, this still isn't a guarantee -- and there's already talk of having to hold another election, but hopefully the Pirates can put together something. While it does feel like many people involved in Pirate Parties have underestimated what it actually takes to govern, it would certainly be interesting -- especially in Iceland -- to see what they could do.
The party appears to be taking a measured approached to a task viewed by many as exceeding urgent and pressing. Members of the parliamentary party spent all weekend discussing the issues between themselves, with no representatives of any other parties involved.
“We don’t want this this to be a rushed or botched job. We want to do things properly,” says Pirate MP Einar Aðalsteinn Brynjólfsson.
“Of course, it is time for a new government to be formed – otherwise we could be heading for a constitutional crisis. The current government is a caretaker government with a limited mandate.”
Hopefully the parties can work out their differences and create a coalition government led by the Pirates. Icleand has swung back and forth on the pendulum of supporting true internet freedom in the past, but having the Pirates in charge could lead to some interesting and worthwhile experiments. And, in an age where too much reasonable anger at old line politicians is being directed towards ultra-nationalistic campaigners who tend to look backwards rather than forward, it will be worthwhile to see what a party with a truly forward looking agenda could accomplish.
Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.
But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.
So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:
According to the class
action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket
report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to
charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of
extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the
PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in
one case would have no impact on liability in the other case. Therefore, the Court will not
dismiss the suit based on the first-to-file rule.
Personally, I think both cases have merit, but they are definitely on different issues.
As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:
This Court need not reach those legal issues because, unlike Fisher,
plaintiffs here do not claim a billing error. Therefore, even if the notification requirement
constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality
of the fee schedule. Likewise, even if users were required to exhaust their claims for billing
errors, that requirement would not apply to the claim in this case. In sum, the PACER policy
statement provides no basis for dismissing this suit.
At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.
Bethesda has something of a complicated history on our pages. The company is at once often terrible on matters of enforcing its intellectual property in a protectionist manner, while also occasionally acting quite good on matters of connecting with its fans in a meaningful and downright sweet manner. Few and far between have been the stories of those two separate philosophies intersecting, but we have such an instance now as Bethesda has demanded any Bethesda trademark words be removed in metatags on the website for DoomRL, a fan-made rogue-like inspired by the classic Doom games.
It's a strangely worded letter in a couple of respects. First, the letter seems to be focused on the use of words and/or phrases trademarked by Bethesda/ZeniMax within the metatags for the DoomRL website, as opposed to making any sort of copyright claim on the game itself. In other words, it's not at all clear from the threat letter whether or not the company is objecting to the fan-game in any way, or just the use of the metatags. If the latter, the threat makes very little sense. The text on the website doesn't mention Bethesda or ZeniMax at all and only mentions ID Software to credit it for being the creators of the Doom franchise. The trademarks that appear to be in question are references to Doom itself.
And these are a game, a website, and references that are years old. The game appears to have been in production for at least six years and has been publicized on the web for about as long. It's a game that doesn't resemble any actual Bethesda property and is instead a fan's new take on the franchise, offered for free. I don't read any objection into the game itself in the threat letter, so why make such a big deal over the use of the Doom name itself? Is Bethesda cool with a fan making a Doom inspired game, so long as that fan never mentions it to anyone?
As a result of the threat, however, creator Kornel Kisielewicz has decided to scrap DoomRL for a successor that doesn't include any Doom IP. This is about the time that defenders of copyright and trademark will chime in to suggest that intellectual property enforcement has led to the creation of new intellectual property, thus fulfilling its purpose... except that isn't really true. It's basically the same game, just with the added effort of pretending like it's something it wasn't originally. Yay?
And, more importantly, the stripping of references to Doom helps Bethesda how, exactly? What was once a native expansion of the franchise as an expression of love from a fan, one which could only serve to point new potential customers back to the original game series, has instead become something independent of that series. Kisielewicz has even started a Kickstarter for the sanitized game to now profit off of it, instead of acting as a free promoter for Bethesda's game. At best, Bethesda loses out on a free marketing vector for its Doom franchise, while at worst some in the gaming public will want to punish the company for this aggressive behavior. How exactly is this kind of IP bludgeoning a better option than working with the fan/creator?
So we've talked a bit about the privacy implications of smart toys, and the fact that people aren't exactly thrilled that Barbie now tracks your childrens' behavior and then uploads that data to the cloud. Like most internet-of-not-so-smart things, these toys often come with flimsy security and only a passing interest in privacy. As such we've increasingly seen events like the Vtech hack, where hackers obtained the names, email addresses, passwords, and home addresses of 4,833,678 parents, and the first names, genders and birthdays of more than 200,000 kids.
Unsurprisingly, the collection of kids' babbling while in the company of smart toys continues to ruffle feathers. This week, a coalition of consumer advocates including the Consumer's Union filed suit against Genesis Toys, the maker of two such toys, the My Friend Cayla doll and the i-Que Intelligent Robot. According to the full lawsuit (pdf), the toy maker is violating COPPA (the Childrens’ Online Privacy Protection Act of 1998) by failing to adequately inform parents' that their kids conversations and personal data collected by the toys are being shipped off to servers and third-party companies.
With the toys being marketed to "ages 4 and up" and being mostly used by kids under age 18, the lawsuit states the companies selling and collecting this toy data are violating COPPA. Under COPPA, companies gathering kids data have to provide notice to, and obtain consent from parents regarding data collection. They also have to provide parents tools to access, review and delete this data if wanted, as well as the parental ability to dictate that the data can be collected, but not shared with third parties. The complaint suggests neither Nuance or Genesis Toys are doing any of this.
And again, privacy is just part of the equation. There's also the fact that these toys just aren't all that secure. A report by the Norwegian Consumer Council (pdf) found that a lot of the data being transmitted by these toys is done so via vanilla, unencrypted HTTP connections that could be subject to man in the middle attacks. Reconfiguring the devices to create in-home surveillance tools was also "very easy and requires little technical know-how," according to the report.So again, much like all internet of things devices, companies were so excited to integrate internet connectivity, they effectively forgot about user privacy and security. Are we perhaps noticing a ongoing theme yet?
The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.
Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."
Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:
The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright
Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The
Register should be given the authority to promulgate regulations to ensure that the system works efficiently.
As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.
Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."
The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:
The Register of Copyrights and Copyright Office Structure
The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice
to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and
Currently, the Register is not subject to the same nomination and consent process as other senior government officials.
To ensure that the American people have an opportunity to provide input into the selection of future Registers of
Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and
consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add
several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.
Copyright Office Advisory Committees
As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have
quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies.
Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the
private sector to federal agencies. This model should be duplicated at the Copyright Office.
The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees
to advise the Register on critical issues. Members of these committees should reflect a wide range of views and
interests. Permanent advisory committees should be created that focus on issues that include but are not limited to
the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to
libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be
term limited and the ability of individuals to serve on more than one committee should be limited.
The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.
Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.
Earlier this year, AT&T announced that it planned to shell out $100 billion to acquire Time Warner. That comes on the heels of the company spending $70 billion to acquire DirecTV. Why is AT&T spending countless billions on content and a legacy satellite TV provider when the lion's share of the company's broadband network desperately needs upgrading? Because fixed and wireless broadband subscriber growth has slowed, and telco executives believe they need to turn to content and advertising (read: slinging videos at Millennials) to please investors.
Under fire for the anti-competitive repercussions of its latest deal, AT&T testified this week before the Senate Judiciary Subcommittee on Antitrust, Competition Policy & Consumer Rights. As you might expect, AT&T and Time Warner both breathlessly insist that there are absolutely no downsides to the companies' merger, adding the deal would be an incredible boon to consumers and the video market alike:
"Together, AT&T and Time Warner will disrupt the entrenched pay-TV models giving customers more options, creating more competition for cable TV providers,” AT&T CEO Randall Stephenson said.
“By joining forces, we will accelerate the development and delivery of the next generation of video services that provide consumers with greater choice, convenience, value, and affordability,” Time Warner CEO Jeff Bewkes told lawmakers in prepared testimony.
The problem is that's not really true. Most streaming providers are worried that AT&T, which just launched its new "DirecTV Now" streaming service, will make it harder than ever for streaming competitors to license the content (HBO, etc.) they need to compete. Similarly, many (including the outgoing FCC) are concerned that AT&T's decision to zero rate this DirecTV Now content (exempting AT&T's content from usage caps while still penalizing competitors) twists and distorts the open market. AT&T already effectively eliminated a TV market competitor when it acquired DirecTV. Now it's tilting the playing field unfairly in its favor.
These concerns received fleeting lip service at this week's hearing. Instead, the committee spent a significant amount of time listening to folks like Mark Cuban, who attended the hearing to lavish praise on AT&T's latest mega-merger:
“We need more companies ... with the ability to compete with Apple, Google, Microsoft, Amazon and Facebook. Delivering content to consumers in this app-driven world is not easy, it is very expensive and difficult. ... Alone, it will be very difficult, if not impossible for either AT&T or Time Warner to compete with any of the companies I've mentioned. Together it will still be difficult, but a combined entity at least gives them a chance to battle the dominant players in the marketplace and increase consumer choice and competition for consumer attention."
So one, AT&T is a massive telecom conglomerate that not only owns its own core and last mammoth nationwide network, but also is already the biggest TV provider in the country after its DirecTV acquisition. This scale provides AT&T immeasurable benefits in content negotiations, and the idea that it was in any way difficult for AT&T to compete in this space is laughable. That's before you even mention AT&T's incredible and often comedic lobbying influence on state and federal telecom and media policy. A helpless little daisy, AT&T is not.
And while DirecTV Now might bring some added streaming competition to the space, it's not like Apple, YouTube, Hulu, Sling TV, Sony, HBO and countless other companies aren't flooding into the streaming video space as well. The competition is already coming to this market. Another mega-merger doesn't help this competition, it actively harms it. AT&T is a company with a long, rich history of anti-competitive behavior and defrauding its own customers on multiple occasions. That it will use this expanded size and power in an anti-competitive fashion isn't theoretical. This is what AT&T does.
But zero rating is complicated. Understanding the perils of vertical integration and the threat of one company owning the content and the conduit is difficult. Realizing that AT&T all but owns state and federal government is inconvenient. As such, Cuban tried to trot out a somewhat bizarre little story in which he argues that the AT&T merger would be really wonderful for joe, beer-drinkin' consumer, because, uh, algorithms:
"I would also like to point out one other important element of consumer choice that an AT&T and Time Warner merger would improve.
Each of the largest content companies I have mentioned so far, Facebook, Google, Amazon, Microsoft and Apple present much if not all of their content algorithmically. As a Facebook user I don’t get to pick what content I get to see in my newsfeed. I can try to influence it, but Facebook algorithms control what I see.
In the future, it won’t be algorithms that choose what we see, our choices will be driven by some form of Artificial Intelligence learning from trillions of disparate inputs.
Meanwhile, for those of us who still enjoy our TV the old-fashioned way, on our couch, cold beverage in one hand and remote in the other, there is a lot to be said for having a company that can afford to continue to offer us that choice. As much of a geek as I am, I like having the choice of searching through a programming guide to see what’s on rather than an algorithm telling me what I should watch. I think a lot of consumers would like to see that choice continue as well."
So one, that entire story makes no goddamned sense. Because Apple, Google and Facebook use algorithms in their news feeds, it's a good idea to let a company with a massive history of anti-competitive behavior grow immeasurably larger? AT&T somehow will provide us with purer access to programming guides free of the nefarious influence of Silicon Valley artificial intelligence? That's so illogical I can't even deconstruct the point Cuban's trying to make. It's like arguing that forest fires are good because pineapples exist.
Granted we've noted a few times that while Cuban has a solid grasp of a number of issues, net neutrality, telecom and media issues aren't among them. As such, he should probably be the last person testifying on the subject before Congress. In fact in writing this piece, I stumbled upon something I wrote for Techdirt back in 2014 when (again) trying to highlight that Cuban doesn't really understand net neutrality:
"Of course Cuban has already made his fortune. Were we to take 1995 Mark Cuban (who was busy building Broadcast.com) and transplant his business into the modern era under AT&T, Verizon and Comcast -- you can be damn sure he'd be taking a very different approach to these issues. Cuban has spent a decade making it abundantly clear he doesn't understand net neutrality, the telecom market or the potential pitfalls of these new cap exempt business models. Perhaps we should put Mark Cuban, Donald Trump and all the rest of the billionaires with plenty to say but little actual understanding in charge of the telecom industry. At least we'd get some entertainment value out of the equation while the Internet burns.
Clearly I opened a portal to another dystopian dimension, and for that I'm truly sorry.
Make it easier on yourself to charge your phone while you stay in bed or on the couch with a 3-pack of these 10-ft Samsung-Certified Micro-USB Cables, on sale for $25. These cables are ready to charge your smartphone, tablets, cameras, and any other micro-USB compatible devices you may have.
Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.
Sometimes you wonder just how ridiculous some legacy industries can be. The latest is the News Media Alliance, which is apparently the new name of what was the Newspaper Association of America. Just a few months ago, we were mocking that organization's ridiculous proposal that readers of newspaper websites should be forced to allow invasive ad trackers, and that adblockers shouldn't be allowed. And believe it or not, now the group has even worse suggestions. It has sent a "white paper" to Donald Trump with the types of things it's looking for from a Trump administration. The white paper is really just a 3 page memo dressed up slightly with the term "white paper" at the top -- as opposed to a carefully developed plan.
But the really ridiculous bit is that these media publications -- who regularly rely on fair use, are asking Trump to dump fair use:
Strong copyright protection is needed. Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content. Today, the news media industry invests roughly $5 billion each year in long-form investigative journalism. Our nation’s copyright laws must be structured and implemented in a way that allows for a return on this massive investment. Today, outdated interpretations of copyright laws mean that the industry is currently forced to give away much of its product for free. The government needs to put in place copyright protections that allow news organizations and other content creators to fairly benefit from their critical efforts and investments.
“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.
This is dumb on so many levels. First, the claim that newspapers don't get any revenue from the likes of Google is ridiculous, when you consider how much they whine and freak out if Google removes them from search. They get revenue in the form of traffic from aggregators. If they're bad at monetizing it, that's one thing, but that's not the aggregators' fault.
Second, copyright laws should never be designed with the idea of making sure it enables recouping an investment. Because copyright is not the business model. Copyright is a mechanism that creates a business model, and that business model may or may not be successful. Just saying you invest $5 billion and therefore copyright needs to cover that nut makes no sense. I could just as easily claim that I'm going to invest $5 billion in improving Techdirt -- and therefore Trump needs to make sure that there's a business model to allow me to recoup that? No, that's crazy. It's not the government's job to make sure your own bad business decisions still pay off.
Third: the media attacking fair use is insane. Newspapers regularly rely on fair use in their reporting, and the group is shooting itself in the foot in asking Trump to take away that tool. This is especially true given that Trump himself has insisted he wants to "open up our libel laws" with the specific aim of harming newspapers. Remember, this is the context in which he said he was going to open up such laws:
If I become President, oh, are they going to have problems. They're going to have such problems.
... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.
.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...
While he was specifically talking about libel laws, as we've seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary "safety valve" on copyright's free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech -- just as he's been promising to attack their free speech -- is ludicrous.
About the only saving grace in all of this is that Trump acts as if he hates the big newspapers so much, that perhaps he'll have no desire to make them happy by following through on this idiotic suggestion.
In the meantime, if you work for a news organization that is a member of the News Media Alliance, maybe ask them why they're undermining a core principle of free speech in asking for fair use to be limited?
A very interesting (read: wtf) case from Texas [PDF] -- one that resulted in criminal charges of official oppression against a Dept. of Family and Protective Services employee -- posits that there may be yet another warrant exemption: the "I don't approve of your lifestyle and/or choices" exception.
This "exception" has often been used by actual parents when searching rooms/electronic devices of their children, but private searches usually don't violate the Fourth Amendment. Searches using the same moral prerogative, when performed by agents of the state, do.
The case involves a warrantless search of a 15-year-old's cellphone by Natalie Reynolds, a Department supervisor. The Sheriff's Department located the runaway teen (referred to only as "A.K." throughout the decision) and turned her over to Reynolds. Reynolds confiscated A.K.'s personal belongings, including her cellphone, which she then decided to search for a number of stated reasons -- none of which was allowable under state case law, much less the Supreme Court's Riley decision.
The Riley decision is only referenced in a footnote, as the illegal searches were performed in 2012, roughly two years before the Supreme Court arrived at its conclusion. But that didn't prevent the court from finding state precedent that upheld Reynold's conviction.
Reynolds' coworkers provided plenty of testimony against her, rebutting her assertion that her search and seizure of the teen's cellphone was somehow related to finding A.K. somewhere to live.
Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds, Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified that Reynolds remained in possession of the cell phone because she believed it contained contact information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department, testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone, Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s cell phone contained contact information relating to drug dealers and that “they” needed to “finish their investigation.”
A.K. testified that she became very upset when Ross and Reynolds refused to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further, A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve Lamb and Michael Watts, and there was no evidence presented that either of these men was considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as to why she was questioned about her relationship to either man.
Reynolds tried to argue that her warrantless search of the cellphone was also somehow related to "exigent circumstances" -- that there was an "emergency regarding A.K.'s physical and emotional wellbeing." The state itself disagreed with Reynold's assertion.
The State maintains that Reynolds, as a representative of the Department, cannot claim that she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’ when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator attempting to build a case for either herself or law enforcement.” The State points to Reynolds’ affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”
Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales. Also, contrary to her stated concerns about A.K. having no place to go, the state points out that a placement facility had already been found at the point Reynolds decided to take A.K.'s phone and search it for "drug evidence."
The court notes that there are a wealth of warrant exceptions available to state agents when performing searches. Reynold's opinion of A.K.'s lifestyle, however, isn't one that's been recognized by any court -- or anyone possessing a modicum of common sense, actually.
Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone.
That's not how the Fourth Amendment works. And Reynolds' narrative about the phone's search somehow being related to caring for A.K.'s wellbeing doesn't hold up when compared to the facts.
Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor.
Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located. A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.
The conviction for official oppression is upheld. Oddly, as is pointed out at FourthAmendment.com, this sort of behavior by law enforcement officers usually only results in suppression of evidence, rather than official oppression charges. Lots of wrongful arrests and warrantless searches would seem to fit the language of the statute once the officer's immunity has been stripped.
A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful…
And yet, this charge is almost never brought, much less successfully prosecuted -- yet another way law enforcement operates at a lower level of culpability than the rest of the government. And far, far lower than what is expected of the citizens they serve.
In 2014 Sprint owner Softbank gave up on its planned merger with T-Mobile after regulators at the DOJ and FCC made it clear they planned to block the deal. And, just like the blocking of AT&T's attempted T-Mobile merger, this wound up being a good thing, as it protected what passes for competition in the wireless space, driving T-Mobile to compete even more intensely. That said, Softbank CEO Masayoshi Son hasn't given up on a Sprint T-Mobile merger, back in August making it abundantly clear he'd be trying again should the FCC see a shift in leadership:
"There’s a key figure who will determine if Son makes another run at T-Mobile: the yet-to-be named new head of the FCC. If Son feels that person is more amenable to a combination to take on market leaders AT&T Inc. and Verizon Communications Inc., he will probably try again, said the people, who asked to not be identified because the matter is private."
Fast forward to this week, and Son appears to have found a ray of hope named Donald Trump.
Trump and Son met this week at Trump Tower in Manhattan, shortly afterwards announcing a "new plan" to bring $50 billion in investment and 50,000 new jobs to the United States. Trump was quick to proclaim on Twitter that this investment and job growth was solely thanks to his existence:
Masa (SoftBank) of Japan has agreed to invest $50 billion in the U.S. toward businesses and 50,000 new jobs....
In short, the $50 billion investment and the 50,000 jobs are largely fairy tale numbers wholly unrelated to Donald Trump doing much of anything. It's also worth noting that when asked, Son himself wasn't actually willing to specifically credit Trump with any of it:
"...The contours of the deal Trump announced Tuesday appear in line with the company’s previous investment plans. In October, SoftBank announced it would create a $100 billion fund – with the backing of Saudi Arabia – in a bid to become the “biggest investor in the technology sector,” Son said at the time.
Son on Tuesday did not say whether the new investment pledge was a result of Trump's victory, but he did say he was celebrating Trump's White House win.
"I just came to celebrate his new job,” Son said. “I said, ‘This is great, the U.S. will become great again.’"
So in short, Softbank's investment pledges have absolutely nothing to do with Trump, and were announced before Trump even won the election. Not that you'd know that by reading 90% of the news coverage about the plan. Meanwhile, where these 50,000 jobs will be coming from -- and whether they'll actually materialize at all -- is anybody's guess. The job growth certainly isn't happening at Sprint, where the company under Softbank ownership has been consistently laying off thousands of employees as it tries to trim $2.5 billion in operation expenses annually after years of continued missteps.
It's relatively clear Masayoshi Son is pining for an FCC that will let the company finally fuse Sprint with T-Mobile. And there's every indication he'll be getting his wish from the new FCC. Trump's telecom advisors are a who's who of industry-tied think tankers and lobbyists, all of whom have publicly stated the FCC should be hamstrung and defunded. One of them doesn't even believe telecom monopolies are real. Their selection for FCC boss, whoever it is, is extremely unlikely to support using regulatory authority to block mega-mergers, regardless of Trump's campaign promises to stop such deals.
While massive job creation promises are routinely bandied about in the run up to telecom mega-mergers, those promises never actually materialize. In fact the opposite happens as redundant positions are eliminated and customer support and service corners are cut to accommodate the debt taken on from the deals. Meanwhile, eliminating a major player in the wireless space results in consistently worse service and higher prices. This is, despite ample historical precedent, a lesson we're culturally unwilling to intellectually digest. Rinse, wash, repeat.
That said, this little public relations fracas was still a win for Trump and Masayoshi Son. Trump gets to falsely take credit for a several-month-old plan he had nothing to do with, and Son gets to fill Trump's head with the idea that if he supports his looming merger -- money, jobs and miracles will rain from the sky.