Groups Worry New Text Message Spam Filters Aren't Being Built Transparently, Could Harm Legit Outreach Efforts

from the i-don't-trust-your-trust-score dept

As we noted recently, the wireless industry has been developing a new "trust score" to determine who is or isn't worthy of being able to send text message spam. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of. The problem: a growing roster of groups are worried about the transparency of the process, noting that the Milan-based company (Kaleyra) running this new "Campaign Registry" hasn't been forthcoming or consistent when it comes to details of the system, launching in June.

Text messaging campaigns remain hugely effective, with 90 percent of text messages are read within 3 minutes. But a chorus of groups from Sierra Club to Planned Parenthood are growing increasingly worried that the overall system, dubbed 10DLC, could result in many of them losing their ability to engage in outreach:

"In recent weeks, a coalition of liberal and progressive advocacy groups have mounted a campaign to put the brakes on 10DLC, rejecting the characterization of their messages as spam and raising concerns that the blunt 10DLC rules will hamper one of their most effective organizing tools. The opaque registration and vetting process, the groups warn, could lead to discrimination against smaller organizations with less-established track records, as well as overwhelm them with new and higher fees."

With companies like AT&T at the helm of decision making on the issue, you should be able to understand their concern given AT&T's long, dodgy history. Particularly when it comes to the process being non-transparently hijacked to limit communications on issues not particularly near and dear to AT&T and friends hearts, like labor organizing:

"Though AT&T and T-Mobile claim 10DLC is intended to reduce unwanted text messages, these restrictions in actuality will quash grassroots advocacy, labor union organizing, and progressive movement building,” the letter states. “We strongly urge AT&T and T-Mobile to reconsider the damage that 10DLC will cause. We are also calling on leaders in Washington to exercise your executive and legislative authority to defend citizen engagement and call on AT&T and T-Mobile to reverse these restrictions."

The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and were even more heavily embraced by the Trump campaign.

Ideally you'd like a government agency like the FCC or Congress to transparently develop rules in open collaboration with consumers, stakeholders, and experts adequately represented. Instead, you've got a coalition of private companies with dodgy track records working on non-transparent "trust scores" that could limit the impact and outreach of countless organizations, regardless of party. For example, if the trust score is dictated by arrest records, would that mean activist groups whose members are often arrested at peaceful protests would suddenly find themselves labeled too problematic to verify?

"While the details of the trust scoring system are not well understood, it’s been likened to running a credit score on each group. “They could be looking at things like a group’s personal tax history, members’ criminal histories, they could also be googling to find groups associated with people they deem unsavory,” said Don Calloway, founder of the National Voter Protection Action Fund, which uses peer-to-peer messaging to combat voter suppression. “Grassroots orgs have members who get arrested all the time in peaceful protests."

The fact that many of these groups don't know how this trust score is being calculated just months before launch speaks for itself.

This being the wireless industry, there's also the threat that they could view this entire system as yet another revenue model, unfairly saddling less affluent organizations with fees and surcharges they won't be able to afford. As such, you can see how letting the wireless industry lead the show could result in its two major concerns (avoiding liability, generating revenue) driving most decision making processes. While it's certainly possible many of these worst-case scenarios won't come to pass, given the history of the telecom industry, and the total lack of regulatory oversight at the moment, it's definitely worth keeping an eye on.

Filed Under: political outreach, spam, text messaging, transparency, trust score
Companies: at&t

Senator Bill Hagerty Believes Compelled Speech Is 'Liberty'; And Anyone Upset With Moderation Choices Should Be Able To Sue

from the we've-always-been-at-war-with-eastasia,-senator dept

Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander's old seat, and he's kicking off his tenure with a bang... of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today's GOP apparently believes that they can throw the Constitution out the window... as long as they (1) claim they're owning the libs, and (2) pretend that they're tearing up the Constitution to save the Constitution.

In this case, Hagerty has put out a piece in the Wall Street Journal -- which will publish any anti-Section 230 screed no matter how factually challenged -- to talk about a new bill he's preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he's doing it by claiming it is about "protecting liberty." The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be "Clueless Senator Wants To Take Away Internet Freedom."

Let's dig in.

For too long Americans have watched Big Tech trample on the principles of the First Amendment—free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That’s why I’m taking action to hold these corporations accountable.

So much nonsense in just one paragraph. First off, the 1st Amendment protects against government intrusions into speech, and so it's literally impossible for "Big Tech" to "trample on the principles of the First Amendment" unless they're being compelled to do so by government actors. Second, nothing "big tech" does harms "free speech, freedom of thought and belief, free assembly and the open exchange of ideas." You can still do that all over the internet. You just can't force one particular site to host your nonsense if they feel it violates their policies.

Republicans like Hagerty used to talk up the importance of private property rights, but apparently that goes out the window when Facebook decides it doesn't want Nazis and conspiracy theorists on its property any more.

Finally, "hold these corporations accountable" for what, exactly? They have every right to run their own private property the way they want to. They cannot be compelled to host speech they do not feel they wish to host.

Today, I’m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights—rather than the whims of big companies—as the guide for what Americans can say or hear in today’s public square.

Amusingly, in searching for the actual text of this bill, I initially couldn't find anything. I could only find (1) this WSJ op-ed, and (2) Bill Hagerty promoting the bill on... Twitter and Facebook, two of the "big tech" platforms he complains are censoring his speech. Eventually I found a copy of the bill not on the government website where it should be posted, but on Scribd... yet another private social media company. I've uploaded a copy to Document Cloud for easier access.

However, for someone who has a law degree (does Vanderbilt offer refunds?), he sure seems confused about the Bill of Rights. The Bill of Rights protects against government intrusion of our rights -- and that includes the right not to have the government compel speech. This bill is not about "restoring the Bill of Rights" it's about violating it. Companies have always had the right to determine what speech is on their platform. It's why the NY Times won't ever publish my op-ed about how "Bill Hagerty Is A Bad Senator Who Hates The Bill of Rights."

The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers—such as trains or phone networks, which are essential to everyday goings-on, connecting people and information—have historically been subject “to special regulations, including a general requirement to serve all comers” without discrimination. The same logic should apply today to Big Tech.

Each paragraph seems to stuff itself with more wrong than the previous one. First of all, if the issue is "little meaningful competition," then the answer should be to focus on increasing competition, not putting on even more regulations that would lock in today's largest players. But, of course, even the idea that they face "little meaningful competition" is laughable. As you start looking at just how many players there are in the realm of today's "public square," you've got Facebook (including Instagram and WhatsApp), YouTube, Twitter, Snapchat, Reddit, TikTok, Discord, Clubhouse, Medium, Substack, Imgur, Vimeo, DailyMotion and many, many more. And if none of those work for you, you can set up your own blog or your own website. Just the fact that in the past couple of years TikTok, Clubhouse, Zoom, Discord, and Substack and a bunch of others have all basically come out of nowhere and built up a huge audience certainly suggests that there remains plenty of openings for competition.

We've already responded to Clarence Thomas's bizarre unbriefed musings, but let's dig in a little deeper on this whole "common carrier" idea. The nature of common carriers is entirely different from the nature of social media. Common carriers tend to be (1) commodity style services (such that replacing one with another leads to basically the same service) that (2) transport goods/people/information from one place to another. Neither condition applies to social media. Every social media site is different from one another, and you can't just swap out one for the other. It's not a commodity style service. Indeed, since social media is about community, each site takes a different approach to try to attract the community they want. They're not offering up a utility style service. Second, they are (for the most part!) hosting content, rather than just transmitting it from one location to the other. If you're transmitting, then the arguments for common carrier regulations are stronger, but if you're hosting, it just doesn't make any sense.

Finally, I'm going to go out on a limb here and say that Bill Haggerty opposes net neutrality (these days, basically all Republicans do). Yet, with net neutrality (involving commodity services and data transport) there is a much stronger common carrier argument. So it's bizarre to see him suggesting this here where it does not make any sense. Indeed, in looking at the text of the actual bill, it explicitly excludes broadband providers! So, this just doubles down on how full of shit this bill is. It tries to impose common carrier obligations on those who don't meet the definition, but explicitly excludes the companies that do meet the definition and which are significantly less competitive than social media!

Unfortunately, our laws haven't kept pace with this technological reality. The statutes governing free speech and the free exchange of ideas online haven't been updated in a quarter-century. Since it was passed in 1996, Section 230 has been stretched from its original intent—the promotion of the free exchange of ideas online—into a license for companies like Facebook and Twitter to censor.

Again, the exact intent of 230, as explained multiple times by its co-authors, including Republican Chris Cox, was to encourage companies to actively moderate their websites to create family friendly communities. Hell, the bill itself was in response to the Prodigy ruling, in which a judge said that by doing any moderation, the "family friendly" Prodigy became liable for any content that was left up. Cox worried that this would fill the internet with garbage, and make it unusable by children, because websites would avoid any moderation. So, the paragraph above is just wrong historically.

In recent months, these platforms have effectively smothered newspaper stories that they found inconvenient for their loudest users’ preferred candidates.

This is not true. (1) They did not "smother" those newspaper stories, and the actions taken by the platforms got those stories much more attention. (2) The reasons those stories were stopped from sharing was due to legitimate concerns that they violated platform policies -- and had nothing to do with any "preferred candidate."

Big Tech companies have silenced mainstream American political figures, while leaving up Iran’s Supreme Leader Ali Khamenei’s account, even as he tweets hateful things, including calls to “eliminate Israel” and discussions of how to do so. These platforms have censored and editorialized with blatant political bias—writing progressive ideology into their content policies or scrubbing dissent against Covid lockdowns off their sites. Moderate and conservative viral content is suppressed. Twitter blocked the account of the New York Post over its reporting on Hunter Biden, while Amazon removed from its streaming service an acclaimed documentary on Justice Thomas during Black History Month. Implicit in these censorship practices is an apparent belief that Big Tech has the right to shape what Americans can learn and believe—a totalitarian concept that runs contrary to U.S. values.

There's a lot of selective cherry-picking in here that ignores tons of stories on the other side. It ignores the times the platforms have bent over backwards to give online trolls and rabble rousers extra space to avoid being called out for "bias." It ignores all the times the platforms have taken down people for other policy violations. And it reframes every one of these stories to avoid explaining why the content and users in question violated long standing policies that the platforms had in place for useful reasons.

My bill would (1) abolish Section 230, (2) treat Big Tech—defined as any interactive computer service platform with more than 100 million active monthly users world-wide—like a common carrier that must provide reasonable, nondiscriminatory access to all consumers, and (3) prohibit political censorship by Big Tech.

(1) Would lock in the power of big tech by making it nearly impossible for newcomers to be able to withstand the legal liability of hosting 3rd party content -- which would directly undermine Hagerty's own claims of how the real problem is a lack of competition. (2) Would, again, lock in those big providers and guarantee that those sites become unusable as they would fill sites with spam, hate, harassment, bigotry, porn, and more. (3) Would violate the 1st Amendment.

Other than that, Senator, have you got any other stupid ideas?

In addition to not discriminating against political opinions their employees personally dislike, social-media companies should be required to provide basic consumer transparency regarding their products, given that many Americans rely on them for news and information. The 21st Century FREE Speech Act would require platforms to disclose their content management and moderation practices to users, so that consumers can understand and better manage the information they receive.

Every one of these websites already has publicly accessible user policies and releases transparency reports. But if being a website that Americans "rely on for news and information" is the characteristic here -- will this bill also require that Fox News release a transparency report regarding how it chooses which stories and which guests to put on air? Or nah?

The 21st Century FREE Speech Act would abolish Section 230 in favor of a liability protection framework that marries that section’s original intent with the practical implications of the enormous technological change that has ensued over the past 25 years. Liability protection would remain in place for third-party speech and family-friendly moderation of specifically defined obscene or lewd content, without providing limitless special protection for platforms’ own speech and viewpoint censorship. This legislation provides the liability protection necessary to spur continued innovation, without giving companies carte blanche to censor speech on political, religious, or other grounds.

Oh, I see. You're creating a policy that treats different speech differently. Which is pretty clearly not allowed under the 1st Amendment. You must have learned about it at law school.

Ultimately, the 21st Century FREE Speech Act is about promoting free speech, thought and exchange of ideas.

Compelling speech -- including abuse, hate, and harassment -- is the opposite of promoting free speech.

As Justice Oliver Wendell Holmes Jr. , put it in a 1919 Supreme Court opinion concerning the censorship issue of his day, the prosecution of printers of an anti-U.S. leaflet during World War I: “The theory of our Constitution” is that “the ultimate good desired is better reached by free trade in ideas” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

And yet, your bill would kill off this market, and refuse to allow private companies to create spaces where speakers feel free to say what they want.

This freedom to think, discuss and determine one’s own beliefs is the foundation of American liberty and opportunity. Washington can’t allow Twitter and Facebook to eliminate these freedoms. We owe it to our children and grandchildren to ensure they are preserved.

And this bill does the opposite of that. We also owe our children and grandchildren not to have Congress mock the 1st Amendment with bills like yours.

As for the actual bill, it's even dumber than I expected. It limits moderation protections to a very narrow class of content, and then puts ridiculous (easily unconstitutional) limits on those. It says you can only moderate "obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, or unlawful" content. At first, I thought this meant that all spam must be allowed, but in the clarifications, the bill notes that spam can be moderated as "harassing" content... which is bizarre.

The bill also includes a ridiculous private right of action, that would allow any user to sue any website if the person is "aggrieved" by a moderation choice, and can ask a court to get an injunction, barring the moderation decision and award $500. Holy shit. Every single website would immediately shut down their comments (including ours). This is wildly unconstitutional. For all of Hagerty's high and mighty talk about the 1st Amendment, this is a massive infringement upon the 1st Amendment rights of anyone operating a website (not to mention their own private property rights).

There have been so many bad and unconstitutional attempts to change and reform 230, but this one is just completely disconnected from reality. The people of Tennessee deserve better. Elect better Senators, people.

Filed Under: 1st amendment, bill hagerty, common carriers, compelled speech, content moderation, free speech, net neutrality, private property, section 230

Appeals Court Says Former Trump Advisor Can't Sue Over Reporting Based On Court Documents

from the sworn-statements-considered-truthful-until-otherwise-indicated dept

You can be angry about things said about you in court filings. But you really can't sue about them. Reporting based on court documents is almost (!) always protected by the First Amendment. After all, those making the statements in court are swearing what they're saying is true. Those reporting on sworn statements have no reason to believe otherwise, even if it's eventually revealed the assertions were false.

That's the tough lesson being learned by Jason Miller, a former Trump advisor who sued Gizmodo for reporting on court filings stating he had spiked a smoothie with an abortion pill to head off an inconvenient pregnancy. Miller has always claimed this accusation is false. Splinter -- a now-defunct website owned by Gizmodo -- reported on allegations made by another Trump staffer, A.J. Delgado, back in 2018.

Since then, Miller has been trying to sue Gizmodo for defamation. But there's no defamation here, as the Eleventh Circuit Court of Appeals affirms in its decision [PDF]. The lawsuit was filed in New York, which activates local civil rights laws which grant a "fair and true report" privilege to journalists who report on court filings. That proves instrumental in this dismissal, even though the First Amendment would have covered it as well.

The allegations Miller sued over are incredibly disturbing.

On Friday, September 14, 2018, Ms. Delgado filed a supplement to an earlier motion for the court to consider a psychological evaluation of Mr. Miller. Essentially, the supplement stated that Ms. Delgado was informed in the summer of 2018 that Mr. Miller (while married) had an affair in 2012 with a stripper in Florida referred to as Jane Doe; that Mr. Miller had sexual intercourse with Ms. Doe; that Ms. Doe became pregnant; that Mr. Miller visited Ms. Doe and gave her a beverage which, unbeknownst to her, contained an abortion pill; that Ms. Doe wound up in a hospital emergency room, bleeding heavily, and almost went into a coma; that the pill induced an abortion; and that Ms. Doe’s unborn child died. The supplement identified Ms. Delgado’s initial source for this information and stated that Ms. Doe had later confirmed the story to a journalist.

Miller tried to have this sealed, claiming it would (obviously) harm his reputation and adversely affect paternity proceedings he was currently involved in. Before any action could be taken, Splinter posted an article by Katherine Krueger that ran under this title:

Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant with 'Abortion Pill'

There's nothing untrue about the headline. That's exactly what the court documents alleged. The body of the article expanded on the claims made by A.J. Delgado, reporting only about what was contained in the statement.

Nevertheless, Jason Miller sued. That the document was later sealed by the court doesn't matter. For a brief period of time it could be accessed by anyone. That it was accessed by a site with some reach doesn't change anything.

Miller and the person supposedly slipped the abortion pill swore in court this incident never happened. Denials abounded. For better or for worse, these statements don't matter: what was reported on at the time it was reported is protected by New York law, if not the First Amendment. The district court agreed with Gizmodo. So does the Eleventh Circuit. The only hitch is the state's matrimonial proceedings laws, which can sometimes result in the stripping of this privilege, given the sensitive (and often heated) results of those proceedings.

Ultimately, the rights granted to journalists trump the rights granted to combatants in "matrimonial proceedings."

[W]e note that Shiles has not been extended to reports of public matrimonial proceedings, even though, like sealed records, they are inherently personal in nature, and the allegations made and voiced in such proceedings can be used to promote public scandal, damage reputations, or coerce a settlement.

That's the lesson to be learned here. If documents are available -- even temporarily -- to the public, they can't be considered the basis for defamation. They're sworn statements and should be treated as true until a court says otherwise. A regular person could have drawn the same conclusions from the submitted statements and posted their conclusions on their own. Just because the same thing happened on a website with considerable inbound traffic doesn't change anything. The privilege afforded by the state covers it. And so does the First Amendment, even if the court doesn't have to reach that conclusion.

Filed Under: defamation, fair and true report, jason miller, journalist privilege, litigation privilege, new york
Companies: gizmodo

Daily Deal: The 2021 WordPress Wizard Bundle

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

The 2021 WordPress Wizard Bundle has 6 courses to help you learn how to build your own site with no coding experience required. The focus is on creating a WordPress site with your own domain and Web hosting and doing it the right way. While it is possible to use free online hosted blog solutions, the goal here is to build something that you control, manage, and can grow at your own pace. You'll learn how to work with Elementor, how to work with WordPress themes, how to secure your website, and how to use it to run a business. The bundle is on sale for $20.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

James O'Keefe Sues Twitter For Defamation... For Shutting Down His Account

from the this-is-not-going-to-go-well dept

You may have heard recently that James O'Keefe, the guy behind "Project Veritas" -- a propaganda outlet whose brand of highly edited, surreptitiously recorded videos are often followed by actual media having to come in and debunk the misleading bits -- had his Twitter account shut down recently. He immediately threatened to sue Twitter, and last week he actually did so.

The crux of the lawsuit is that because a reporter claimed that Twitter told him O'Keefe's account was banned for "operating fake accounts," that's defamation. The lawsuit notes that back in February, Twitter also banned the Project Veritas account. In that case, it was because one of Project Veritas' videos allegedly revealed "private information" which violated its rules. In that case, the private information (according to the lawsuit) was that the video showed the house number of a Facebook executive who they were trying to interview. In the lawsuit, O'Keefe's lawyers try to make a big deal of the fact that real media organizations sometimes show where people live as well, leaving out the fact that this does not matter one tiny bit. Twitter sets the rules on its own platform, and when it's making decisions on the rules, they often involve context (and that context may include Project Veritas' long history).

But the key part of the lawsuit is the claim that because a Twitter spokesperson told the media that O'Keefe violated its policy against "fake accounts," and O'Keefe claims he didn't operate fake accounts, this is defamatory. The arguments in the case are going to make some of you laugh:

The false accusation that Mr. O’Keefe operated “fake accounts” is particularly damaging for Mr. O’Keefe because Mr. O’Keefe is a journalist. As such, his reputation for transparency and accurate reporting is fundamental to his profession.

That is... uh... not quite what many people would call Mr. O'Keefe's reputation.

By accusing Mr. O’Keefe of “operating fake accounts,” Twitter was directly attacking Mr. O’Keefe’s fitness for his profession by accusing him of “misleading others” and by effectively running a disinformation outlet akin to the much-discussed “Russian interference”/disinformation bots that plagued the 2016 election and which inspired some political operatives to engage in similar tactics in 2017....

Indeed, Twitter’s entire “fake accounts” policy, which it accused Mr. O’Keefe of violating by stating that he “operat[ed] fake accounts,” stems from the Russian disinformation campaign.

Thus, by claiming Mr. O’Keefe operated “fake accounts,” Twitter was saying Mr. O’Keefe could not be trusted as a journalist because he was “misleading others” via disinformation in the manner the Russian government is widely accused of doing to interfere in the U.S. political process.

That all sounds nice. But if you actually read the Twitter policy in question, it's a lot broader than O'Keefe's lawyers make it out to be. It's quite broad and has to do with a lot more than Russian disinfo accounts. Here's just part of it:

You may not use Twitter’s services in a manner intended to artificially amplify or suppress information or engage in behavior that manipulates or disrupts people’s experience on Twitter.

We want Twitter to be a place where people can make human connections, find reliable information, and express themselves freely and safely. To make that possible, we do not allow spam or other types of platform manipulation. We define platform manipulation as using Twitter to engage in bulk, aggressive, or deceptive activity that misleads others and/or disrupts their experience.

Platform manipulation can take many forms and our rules are intended to address a wide range of prohibited behavior, including:

• commercially-motivated spam, that typically aims to drive traffic or attention from a conversation on Twitter to accounts, websites, products, services, or initiatives;
• inauthentic engagements, that attempt to make accounts or content appear more popular or active than they are;
• coordinated activity, that attempts to artificially influence conversations through the use of multiple accounts, fake accounts, automation and/or scripting; and
• coordinated harmful activity that encourages or promotes behavior which violates the Twitter Rules.

In other words, it's quite broad. And lots of people have been caught up in similar account bans over the past few years, including the Krassenstein brothers who became famous for their anti-Donald Trump tweets, as well as a weird (and somewhat silly) "non-partisan" political party. So, for anyone arguing that this policy is used just against "conservatives," the evidence certainly suggests otherwise. It also does not at all suggest that anyone dinged under this policy is engaged in Russian-style disinformation campaigns.

Like so many of these lawsuits, this one appears to be more performative than serious. It's not difficult to predict how this will end up.

Filed Under: content moderation, defamation, fake accounts, first amendment, free speech, james o'keefe, policies
Companies: project veritas, twitter

UK Child Welfare Agency's Anti-Encryption 'Research' Ignored Everything It Didn't Want To Hear

from the when-'consulting'-just-means-'cherry-picking' dept

In late March, the UK's National Society for the Prevention of Cruelty to Children (NSPCC) started injecting its anti-encryption views into the major papers via some press releases and statements claiming encryption was the "biggest threat to children online." It also claimed its stance was supported by a soon-to-be-released report, which had gathered opinions and analysis from a number of stakeholders.

Its report debuted a few weeks later. Put together with the assistance of PA Consulting, the supposedly "balanced" report came to the conclusion the NSPCC arrived at earlier: end-to-end encryption is bad. That this wasn't greeted with gasps of shock by readers and receptive journalists shows just how much the UK government's disdain for encryption has gone mainstream. The NSPCC wasn't saying anything new about encryption. It was simply saying what the UK government has been saying for years: it doesn't care for encryption because it believes encryption aids criminals far more often than it protects innocent people, including the children the NSPCC claims to be so worried about.

The NSPCC presents its report as a research paper, but the list of stakeholders it actually chose to engage with guaranteed the report would result in the conclusions the child safety agency desired to see in print. As Barry Collins points out in his vetting of the report, the supposedly wide-ranging group of contributors was actually just a bunch of entities -- many with ties to the UK government -- which were already opposed to the deployment of end-to-end encryption by messaging platforms.

Here's what the NSPCC said it was doing to compile this report:

“The NSPCC commissioned PA Consulting to collate the viewpoints of a broad range of stakeholders, representing civil society organisations, industry, law enforcement and governments, to identify potential mitigations and trade-offs that should be considered.”

And here's what it actually did:

In total, PA Consulting interviewed 16 organisations when gathering evidence for the report, although it names only 15 of them. Only one of them could be described as a ‘civil society organisation’; six are from industry; seven are either law-enforcement, government (including the Home Office itself), or bodies that work for the protection of children; and one falls into the ‘other’ camp.

The industry members were apparently chosen for their willingness to echo the NSPCC's narrative. Vivace says it's a "consortium of the best and the brightest in the security industry." Maybe that's true, but it's also funded by the UK Home Office, so it's hardly an independent "consortium."

Here are two of the other "industry" contributors:

Thorn “builds technology to defend children from sexual abuse”, and has vociferously opposed the introduction of end-to-end encryption on its own blog.

Crisp Thinking is a social-media monitoring company, who last year announced a partnership with INHOPE, “the global network combatting Child Sexual Abuse Material”, which works directly with law-enforcement agencies.

That leaves just a handful of contributors that aren't already in favor of breaking encryption. And the single "civil society organisation" asked to contribute was Global Partners Digital. While Global Partners tends to be supportive of encryption and resistant to backdoors and other efforts to undermine user security, it's hardly the most well-known of civil organizations when it comes to encryption policy and security research, as Barry Collins points out. Others like Privacy International, Big Brother Watch, and the Open Rights Group could have been asked for input, but weren't.

Those who actually spoke out in favor of encryption were apparently sidelined by PA Consulting. One member contacted by the consulting firm summed up the experience this way:

In our work, we try to be constructive wherever possible. I was contacted by PA Consulting for an interview last September or October. And I think during that interview it was very obvious from the start that this wasn’t going to be a neutral technical analysis of encryption and the impacts that it has on different policy objectives, like tackling child abuse online.

It was obviously very much driven out of the desire by the NSPCC, I think, speaking quite frankly, to have a strong evidence base to justify their opposition to the use of end-to-end encryption.

The same went for comments going against NSPCC's narrative when the draft was circulated to participants. Very little of what was said in opposition to the report's slant made it into the final version.

If the UK government wants support for its anti-encryption efforts, it needs to do better than basically lying to people. The NSPCC has its duty to protect children. But it can't do that job if encryption goes away. What protects adults (and, yes, criminals) also protects minors. Framing this disingenuous report as "research" is ridiculous. Undermining everyone's security "for the children" is actually dangerous.

Filed Under: encryption, fear mongering, going dark, uk
Companies: nspcc, pa consulting

Ocean Spray Seeks Declaratory Relief After Soda Company Threatens It With Confused Trademark C&D

from the hang-ten dept

While we've seen plenty of instances of confused attempts at trademark bullying backfire on a company, this post will deal with one of the worst I've seen. Most of you will likely be familiar with the company Ocean Spray, best known as a purveyor of all kinds of cranberry-infused fruit drinks. You will likely be less familiar with Wedge Water, LLC, a company that makes fruit juice infused water products. The company also does business as Wave Soda, promoting its soda-alternative drinks.  

Well, according to a lawsuit filed by Ocean Spray seeking declaratory relief that it did not infringe any trademarks with its own "wave" branding, Wedge Water / Wave Soda sent a cease and desist notice to Ocean Spray demanding that it cease using its own federally registered trademark. More on that in a moment, but here is what the complaint notes about the C&D.

The Letter accuses Ocean Spray of infringing “Wave Soda’s” trademark and trade dress rights through Ocean Spray’s line of OCEAN SPRAY WAVE products. According to the USPTO database, there is no registration for the mark NEW WAVE owned by an entity named Wave Soda, LLC. As noted above, according to the USPTO database, Wedge Water, LLC is the owner of record of U.S. Registration No. 5571632 for mark NEW WAVE.

The Letter advises that Wave Soda, LLC, is a “rapidly growing beverage company based in San Marcos, California.” A search of the database of the California Secretary of State, however, reveals no record for an LLC named Wave Soda, LLC in San Marcos, California, or at all. Despite the fact that there are many brands of sparking water with fruit juice and a small amount of caffeine for sale on Amazon, Mr. Levine’s letter claims that his client “pioneered an entirely new product category.”

The Letter emphasizes that the surfer motif is an important part of Wave Soda’s branding: “Wave’s growing team shares [the founder’s] passion for beverages and an active lifestyle—the Wave Soda Surfboard and VW van are not just for show” (emphasis added).

It goes on from there. The complaint, which includes the C&D letter in full, notes that the notice didn't offer any specifics as to what was infringing, offered no possibility of a settlement other than the cessation of Ocean Spray using its own mark, and that the letter in general is "utterly confusing as to who owns the trademarks and trade dress claimed in The Letter." All of this, the complaint goes on, has led the company to seek declaratory relief.

Frankly, the C&D is fairly shitty as far as these things go. But the actual legal claims, based on the suit, seem to be even more confused. This dispute led Ocean Spray's legal team to start looking into the trademarks claimed by Wedge Water. The complaint notes that Wedge Water applied for a mark for "New Wave" on a variety of goods, but the "intent to use" application failed to demonstrate that the applied for marks were actually in use in commerce. Instead, Wedge Water's attorneys appear to have supplied some art renderings of what the branding would be. In other words, Wedge Water wasn't actually using the marks in question before July of 2018. The filing notes that Ocean Spray was using its federally registered "Wave" trademark since at least 2013.

Plaintiff Ocean Spray requests an order declaring that its use of the marks WAVE as part of the mark OCEAN SPRAY WAVE, and the OCEAN SPRAY WAVE trade dress do not infringe Wedge Water’s alleged trademark and trade dress rights. With respect to the word marks WAVE as part of the mark OCEAN SPRAY WAVE and OCEAN SPRAY WAVE, Ocean Spray asserts priority over Wedge Water. Even if the marks are confusingly similar, (which Ocean Spray does not concede), Ocean Spray has prior rights and is not infringing any claimed rights of Wedge Water.

And because of that priority, and likely because of Wedge Water's attempt to play trademark bully, the lawsuit includes a second count beyond the declaratory relief, seeking also to cancel Wedge Water's trademark in favor of Ocean Spray's.

Ocean Spray has standing to request cancellation of the NEW WAVE Registration because it has reason to believe that it will be injured by the continued registration of same. Ocean Spray has reason to believe that it will be injured because Defendant/Registrant or its alter ego, the purported Wave Soda, LLC, has asserted in The Letter that Ocean Spray’s use of its OCEAN SPRAY WAVE trademark infringes the NEW WAVE mark. The Letter asserts, and thus admits, that there is a likelihood of confusion between OCEAN SPRAY WAVE and NEW WAVE.

Whoops. What retort could Wedge Water possibly have? Its own C&D letter suggested that there would be public confusion between the marks...and the trademark registrations sure do indicate that Ocean Spray's mark was registered first.

Live by the trademark, die by the trademark and all of that. You have to imagine at this point that Wedge Water is regretting having ever sent that threat letter to begin with.

Filed Under: declaratory relief, soda, trademark, wave
Companies: ocean spray, wave soda, wedge water

Louisiana Drug Warriors Bungle Surveillance So Badly Their Target Catches Them Placing A Tracking Device On Her Car

from the points-for-enthusiasm,-I-guess dept

You'd think a team of highly trained professionals working in the narcotics enforcement field would be a bit more careful than this. (via Jalopnik)

A woman who was recently arrested for drugs said she found a tracking device on her vehicle over the weekend. She said she watched law enforcement officers place it on her car Friday.

The device was found under the passenger side of her car. It's a black box with a lithium battery inside and a large magnet.

The woman, Tiara Beverly, was arrested last month on "serious drug charges." A few days after her arrest, five officers showed up at her door to ask about someone she knew. She had no answers for them and went down and filed a complaint against the state troopers because she felt they had treated her poorly during this interaction.

Two days later, she saw people hanging around her car. A day after that, she found the tracking device. Not sure what it was (she thought it might have been a bomb) and not particularly keen to interact with law enforcement again at that point, she spoke to the NAACP to find someone to approach law enforcement for her.

That's when law enforcement finally decided to open up about the device now in Beverly's possession:

Eugene Collins [Baton Rouge NAACP President] said State Police contacted him Monday demanding the return of the device.

"They asked me to return the box," Collins said. "It could make the situation more difficult for me."

Why this would make things "more difficult" for a third party not actually in possession of the tracking device is unknown. Either way, the device was ultimately returned to law enforcement after it was found attached to a utility pole across the street from a local middle school.

But the device wasn't found by the agency demanding its return or by the investigators unwilling to speak about the super-sensitive tracking device because doing so would jeopardize the investigation officers were currently bungling. It was found by WBRZ reporters following up on Tiara Beverly's story.

At least the statement provided to WBRZ says the State Police got a warrant for the tracker. That at least appears to comply with Supreme Court precedent. But everything else about it appears incredibly amateurish. Warrant or not, investigators would be better off not being seen attaching tracking devices to criminal suspects' vehicles. It kind of defeats the purpose of surreptitious tracking when the installation is less than surreptitious.

This isn't the first time a surveillance target has discovered, removed, and, consequently, received threats from law enforcement for "taking" something investigators willfully attached to someone else's property. But judging from that viral experience, there's not much in it for the target of this attempted surveillance either.

A Redditor who found an FBI tracking device attached to his car received a visit from agents after he removed the device and asked questions about it on Reddit. The FBI made angry noises about any lack of cooperation from the target of its failed surveillance attempt being perceived as its own criminal act, but in the end, no additional charges were filed. Unfortunately, a lawsuit brought against the FBI failed because it wasn't clear at that point that warrants were needed and all other privacy violation allegations were dismissed because the person chose to bring it to the attention of Reddit, which soon brought to the attention of journalists and commentators all over the nation.

This is just officers being bad at their job. They're probably not going to get another chance to turn Beverly's vehicle into rolling probable cause. They had a shot and they blew it. Then they got angry and never even bothered to track down the current location of the device investigators said should be immediately returned to them because of their ongoing investigation.

Filed Under: louisiana, surveillance, tiara beverly, tracking device

Patent Troll Sable Networks Apparently Needs To Learn A Lesson: Cloudflare Wants To Destroy Another Troll

from the never-fight-a-patent-troll-war-against-cloudflare dept

In The Princess Bride, the character of Vizzini famously says: "Ha ha, you fool! You fell victim to one of the classic blunders! The most famous of which is 'never get involved in a land war in Asia,' but only slightly less well-known is this: 'Never go in against a Sicilian when DEATH is on the line.'" I don't know if it's surpassed either of those yet, but quickly moving up the list would be "Never try to patent troll Cloudflare." Apparently, the patent troll Sable Networks has just made exactly that blunder.

About a decade ago, the online retailer Newegg pioneered the strategy of attacking back on patent trolls. The entire patent trolling business model is based on the fact that it is almost always cheaper to settle a patent trolling case than to fight it and win. A full patent trial will cost over a million dollars easily, and sometimes multiples of that. But many patent trolls file a ton of lawsuits, hoping to settle each for well less than what it takes to fight in court. It's a true extortionate scam. Newegg, however, took the long view, and recognized that if it refused to give in and refused to settle, eventually the trolls would realize that it simply wasn't ever worth suing Newegg. Newegg even made "Never Settle" t-shirts to advertise its strategy to trolls. And, eventually, it worked. Though it did involve a few costly patent trials, patent trolls mostly learned to steer clear of Newegg.

A few years ago, Cloudflare got its first patent troll lawsuit, and decided to take Newegg's never settle strategy and kick it up a notch or three. Instead of just saying it wouldn't settle, Cloudflare set out to completely destroy the patent troll who sued it (an operation called Blackbird Technologies). In response to the lawsuit, Cloudflare launched something called Project Jengo, in which it sought to crowdsource prior art not just for the patent used against Cloudflare, but every single patent in Blackbird's portfolio -- and to hand out cash awards to those who found such prior art. It also went after the lawyers at Blackbird for violating legal ethics rules.

Cloudflare's campaign against Blackbird was a huge success. The company easily won in court and Blackbird became a shell of its former self. Prior art was discovered on some of its patents, the firm filed way fewer troll lawsuits, and it appeared that its staff had dwindled.

Patent troll Sable Networks perhaps should have researched all of this before suing Cloudflare over a sketchy patent that Cloudflare doesn't infringe on. However, Sable Networks chose poorly.

Sable Networks and its lawsuit fit neatly within the same troubling trends we were trying to address the first time we launched Project Jengo. Sable is taking ancient, 20-year-old patents and trying to stretch those patents lightyears beyond what they were meant to cover. It has already sued over a dozen technology companies targeting a wide range of different products and services, and by extending its claims to a company like Cloudflare suggests it may next try to stretch its claims to people that merely use routers … namely, anyone that uses the Internet.

We think Sable’s choice to bring these lawsuits on such a tenuous basis should come with some risk related to the underlying merits of its patents and its arguments, so we are sponsoring another prior-art contest seeking submissions to identify prior art for all of Sable’s active patents. We are seeking the help of the Cloudflare community to identify prior art — i.e., evidence that the patented technology was already in use or known before the patent application was filed — that can be used to invalidate Sable’s patents. And we will make it worth your while, by offering $100,000 to be shared by the winners who are successful in finding such prior art.

Again this time, we are committing $100,000 to be split among entrants who provide what we determine to be the most useful prior-art references that can be used in challenging the validity of Sable’s patents. You can submit prior-art references as long as Sable’s case is pending against us (Sable Networks, Inc. v. Cloudflare, Inc., No. 6:21-cv-00261-ADA (W.D. Tex.)), which means until Sable drops the case fully (and with prejudice — meaning Sable can’t re-file later), there’s a settlement, or the case has been resolved by the court and all appeal rights are exhausted.

Every three months for two years or until the case ends, whichever comes first, we will select winners from the submissions to date, and give out a portion of the $100,000 as awards. Once the case ends, we will select final winners from all submissions and award the remaining funds.

Once again, Cloudflare is not just looking to invalidate the four patents Sable asserted against Cloudflare, but all 10 patents Sable currently holds.

The blog post also details the ridiculousness of the lawsuit at issue. Sable Networks picked up the discarded patents of Caspian Networks, a failed router company (that was previously known as Packetcom). As Cloudflare notes, once the current owners of the company decided to go patent troll, they pulled out the usual trolling playbook:

In the first round of litigation, Sable filed, and later promptly settled, eight lawsuits asserting infringement of Sable’s router patents. The defendants in those cases (including Cisco and Juniper Networks) provide a range of Internet services, but they all at least manufacture and sell network equipment.

Interestingly, all of those cases were settled just before Sable would have had to do two things that would have actually put its legal claims to the test: (1) respond to an administrative proceeding before the US Patent & Trademark Office (“USPTO”) challenging the validity of its patents; and (2) attend a hearing before the district court where the judge would have determined the proper interpretation and scope of the patent claims. So Sable filed cookie-cutter cases against eight defendants, waited for the defendants to respond, then settled the cases before meaningfully litigating its claims or facing a binding court or administrative ruling, which may have addressed, or likely undermined, Sable’s overly-broad assertion of those patents.

Shortly after settling the original eight cases earlier this year, Sable turned around and filed six new lawsuits against a new batch of technology companies, this time including Cloudflare. Unlike the earlier named defendants, Cloudflare is not in the business of making or selling routers or switches. Sable’s infringement claim therefore is not a close one, and now it’s picked a defendant that is eager to fight back.

Cloudflare's blog post about this also lays out how these patent troll shakedowns work, and note that after a previous decline (thanks in part to some key Supreme Court cases and the impact of patent reform from Congress a decade ago), it appears that patent trolls are on the rise again:

Patent trolls like Sable proliferate because of a distorted incentive structure fueled by the astronomical costs associated with defending against even bogus patent claims. According to the 2019 Report of the Economic Survey by the American Intellectual Property Law Association, the median litigation cost for defending claims of patent infringement brought by a non-practicing entity through trial and appeal was staggering $4,500,000 for big cases (i.e., cases with more than $25 million at risk). Even for small cases that had less than $1 million at stake, the median defense cost was $750,000.

Knowing that most defendants will settle at a percentage of their expected litigation costs long before infringement claims see the inside of a courtroom, patent trolls see only upside from each additional lawsuit they file. Their business model is built around filing as many lawsuits as possible regardless of the strength of their legal claims, because they know most defendants will pay to settle before the merits of their case are put to the test. They therefore take vague technology patents issued years ago and apply them as broadly as imaginable to new technologies and new companies. Most of these trolls are non-practicing entities who don’t have their own products in the marketplace but merely exist to extract a tax on other companies.

After declining in numbers for a few years, patent lawsuits were up last year about 12% over 2019, and increased activity by non-practicing entities buying patents suggested even further growth among such lawsuits in the future. The Electronic Frontier Foundation observed similar increases in patent troll filings in 2020, highlighted a case where one patent troll decided that the middle of a pandemic was a good time to sue a company that makes COVID-19 tests, and noted that “some patent owners actually saw the rise of the COVID-19 health emergency as a business opportunity.” This trend is showing no signs of slowing down — according to a recent report, there was a 43.3% increase in patent litigation in Q1 of 2021 compared to the same period a year ago, and non-practicing entities had their busiest Q1 since 2015, fueled by the litigation finance industry that is flush with capital.

If you think you can dig up some prior art regarding this particular patent troll, you might be able to score some cash at the same time, and help take down a pure, unadulterated evil: blood sucking companies who are exploiting a system for money, while contributing absolutely nothing to innovation, but rather taking away from actual innovators. And, on top of that, you can help send a message to other patent trolls that maybe their "easy money" won't always be so easy, and that there can be some serious consequences to such a shakedown.

Filed Under: crowdfunding, never settle, patent trolling, patent trolls, prior art, project jengo, routers
Companies: caspian networks, cloudflare, sable networks