So we've been noting how (thanks to FOIA requests) the FCC has been caught completely making up a DDOS attack in a bizarre, ham-fisted attempt to downplay public opposition to their net neutrality repeal. In short, agency e-mails confirm agency staffers routinely fed false claims to gullible reporters that the FCC website outages caused by John Oliver's coverage of the repeal were the result of a malicious attack, then used those false claims to further prop up the bogus narrative. The goal was apparently to try and downplay massive public backlash to what Americans overwhelmingly believe to be shitty, corruption-fueled policy.

Not too surprisingly, the FCC has gone radio silent in response to press inquiries on this from numerous press outlets. For such a normally chatty agency, that suggests that FCC lawyers are well aware that this entire fracas could prove to be legally problematic, given the repeated false DDOS claims to the reporters, press, and public (pdf). Most of the e-mails provided so far via FOIA requests are heavily redacted, suggesting there's likely much more to this story that's going to emerge over time.

Meanwhile, Senators Brian Schatz and Ron Wyden this week pressed the issue, sending the FCC a letter demanding more insight into the DDOS attack that never was. In the letter, the duo ask for any and all FCC evidence on the phantom attack, and the results of any internal FCC investigations that may have occurred so far:

"On May 9, 2017, we sent you a letter regarding alleged cyberattacks on the Federal Communication Commission's Electronic Comment Filing System during that month. There was also an ECFS issue involving the net neutrality proceeding in 2014. In our letter we asked that you keep Congress fully briefed as to your investigation.

Beyond your initial internal analyses that you reference in your June 15, 2017, response, have any subsequent FCC or third-party (e.g., vendor, contractor, or government agency) analyses or investigations verified that a cyberattack on ECFS occurred in 2017 and, if so, that the attack is best classified as a DDoS attack? If not, why was no investigation conducted? Please provide any and all reports, findings, and other relevant details of any such investigations."

Of course from reading the news, the Senators already know the FCC appears to have zero hard evidence that the attack occurred, and previous claims that internal "analysis" had confirmed the attacks were false. Democrats have been hoping to use the repeal of net neutrality to their advantage during the midterms, and the fact evidence proves the FCC lied during their justifications for the move is likely to be politically problematic for the "freedom restorin'" FCC.

Meanwhile, the nonpartisan GAO is currently investigating both this scandal and the identity theft and fraud that occurred during the net neutrality repeal. There's likely several more layers to this story, some of which are likely to be revealed during the net neutrality court challenges that should take flight sometime in the next few weeks.

We've discussed for a while how the FCC appears to have completely made up a DDOS attack in a bizarre effort to downplay the "John Oliver effect." You'll recall that both times the HBO Comedian did a bit on net neutrality (here's the first and the second), the resulting consumer outrage crashed the FCC website. And while the FCC tried to repeatedly conflate genuine consumer outrage with a malicious attack, they just as routinely failed to provide any hard evidence supporting their allegations, resulting in growing skepticism over whether the FCC was telling the truth.

Last week, e-mails obtained via FOIA request revealed that yes, FCC staffers routinely misled journalists in order to prop up this flimsy narrative, apparently in the belief they could conflate consumer outrage with criminal activity. The motive? It was likely for the same reason the FCC refused to do anything about the identity theft and bogus comments we witnessed during the repeal's open comment period: they wanted to try and downplay the massive, bipartisan public opposition to what the lion's share of Americans thought was an idiotic, corruption-fueled repeal of popular consumer protections.

Understandably with so much going on, the story floated semi-quietly under the cacophony of other national outrages. But the FCC's response to the story has proven to be somewhat comical all the same.

One of the FCC staffers accused of making false statements about the DDOS attack was recently departed FCC IT chief David Bray. Original reports stated that Bray and other staffers had been feeding this flimsy DDOS narrative to gullible reporters for years, then pointing to these inaccurate stories as "proof" the nonexistent attack occurred. Under fire in the wake of last week's report, Bray first doubled down on his claims, adding that the 2014 "attack" hadn't been publicized because former FCC boss Tom Wheeler covered it up. But Wheeler himself subsequently stated in a report late last week that this was unequivocally false:

"When I was in the greenroom waiting to come in here, I got an email from David Bray, who said 'I never said that you told us not to talk about this and to cover up,' which was the term that got used. Which of course is logical, because as the Gizmodo article that you referenced pointed out, A) FCC officials who were there at the time said it didn’t happen, [and] B) the independent IT contractors that were hired said it didn’t happen. So if it didn’t happen it’s hard to have a cover up for something that didn’t happen."

Since this story was first published, the Trump FCC (which you'll recall bragged it would be super transparent) has gone radio silent about the story. Multiple requests for comment from numerous news outlets have been ignored since the story broke:

"The FCC has gone dark on this issue. It is refusing to answer questions from reporters. It is even refusing to go on the record to say it stands by its own story about a malicious cyberattack causing its system to crash for a second time last year....(FCC media relations contact Brian Hart) did not respond to multiple follow ups. In fact, his office has not responded to related inquiries for the past eight days. And not just from Gizmodo; it did not respond to Newsweek nor Ars Technica either. When somehow reached by Nextgov, it declined to say anything at all.

It's understandable the FCC doesn't want to chat about why it's withholding data and repeatedly making false statements (pdf) to the press and public, especially given the GAO is currently investigating this whole kerfuffle. Between this and the identity theft and comment fraud during the net neutrality repeal's public comment period, one gets the aching suspicion there's a few additional layers to this story that have yet to be unearthed. Both issues may also make an appearance during legal efforts to get popular net neutrality rules restored.

You might remember that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss Trump FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. That's not a particular shock; the FCC's website has long been seen as an outdated relic from the wayback times of Netscape, hit counters, and awful MIDI music.

But then something weird happened. In the midst of all the media attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by former FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:

"Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC."

But the FCC's claims were seen as suspect by numerous security experts, who say the crash showed none of the usual telltale signs of an actual DDOS. And reports subsequently emerged indicating that the "analysis" the FCC supposedly conducted never actually occurred. When media outlets began noticing that something fishy was going on, the Trump FCC issued a punchy statement accusing the media of being "completely irresponsible." No evidence was ever provided to journalists or lawmakers that pressured the agency for hard data proving the claims.

Fast forward to this week, and new internal FCC e-mails obtained via FOIA request show that yes, the FCC did routinely try to mislead the public and the press with repeated claims of DDOS attacks that never actually happened:

"The FCC has been unwilling or unable to produce any evidence an attack occurred—not to the reporters who’ve requested and even sued over it, and not to U.S. lawmakers who’ve demanded to see it. Instead, the agency conducted a quiet campaign to bolster its cyberattack story with the aid of friendly and easily duped reporters, chiefly by spreading word of an earlier cyberattack that its own security staff say never happened."

The story is worth a read, and highlights how former FCC CIO David Bray and FCC media relations head Mark Wigfield repeatedly fed false information about the nonexistent attack to reporters, then used those (incorrect) stories to further prop up their flimsy claims about the DDOS:

"Bray is not the only FCC official last year to push dubious accounts to reporters. Mark Wigfield, the FCC’s deputy director of media relations, told Politico: “there were similar DDoS attacks back in 2014 right after the Jon Oliver [sic] episode.” According to emails between Bray and FedScoop, the FCC’s Office of Media Relations likewise fed cooked-up details about an unverified cyberattack to the Wall Street Journal.

The Journal apparently swallowed the FCC’s revised history of the incident, reporting that the agency “also revealed that the 2014 show had been followed by DDoS attacks too,” as if it were a fact that had been concealed for several years. After it was published, the Journal’s article, authored by tech reporter John McKinnon, was forwarded by Bray to reporters at other outlets and portrayed as a factual telling of events. Bray also emailed the story to several private citizens who had contacted the FCC with questions and concerns about the comment system’s issues."

The story isn't going to get much mainstream traction thanks to numerous other instances of cultural idiocy we're all currently soaking in, but it's fairly amazing all the same. In short, the FCC appears to have completely concocted a fake DDOS attack in a ham-fisted effort to try and downplay the massive public opposition to its extremely-unpopular policies.

Of course that's pretty standard behavior for an agency that also blocked a law enforcement inquiry into fraud during the public comment period, likely also an effort to downplay massive public opposition to the repeal. It's also pretty standard behavior from a Trump administration that enjoys using bullshit to distract from the fact that countless policies (like repealing net neutrality) run in stark, violent contrast to the admin's "populist" election message.

This isn't likely to be the end of this story, and more details are likely to surface in the looming lawsuits against the FCC attempting to restore net neutrality.

The Inspector General of the FBI has released a report detailing the incidents leading up to FBI Deputy Director Andrew McCabe's firing. Whether or not these were the reasons the White House chose to can him isn't confirmed, but the report [PDF] does show there was plenty of justification for his termination.

According to the report, McCabe violated FBI policy multiple times during the investigation process with dishonest or misleading answers while under oath. On top of that, his unauthorized disclosure of the status of a Clinton Foundation investigation to a Wall Street Journal reporter violated department policy on media relations.

The leaks appear to have been McCabe's damage control efforts. The Wall Street Journal had already published an article detailing McCabe's involvement in his wife's unsuccessful 2015 state senate campaign. During this run, McCabe's wife received $675,000 from a political action committee run by the state's governor (Terry McAuliffe) who had "long-standing ties to Bill and Hillary Clinton."

Given Clinton was one of the candidates in the 2016 presidential race, suggestions were made that McCabe should recuse himself from the investigation. The FBI's official statement said McCabe's supervision of the investigation did not begin until after his wife's senate campaign was over. But the WSJ article painted a different picture: McCabe's office provided personnel and resources to the Clinton Foundation investigation while his wife was still campaigning (and receiving money from a PAC tied to a Clinton buddy).

With another article two days away, the WSJ reached the FBI for comment on McCabe's involvement. At that point, McCabe apparently took a hands-on approach. The info the WSJ had contradicted McCabe's own narrative about recusing himself from the investigation. Instead, the journalist had sources stating McCabe had tried to kill the Clinton Foundation investigation.

According to Special Counsel’s contemporaneous notes of the call and testimony to the OIG, she and AD/OPA learned during the first call that Barrett had sources who were adamant that McCabe gave a purported order to “stand down” on the CF Investigation before the 2016 presidential election, implying that McCabe wanted to shut down the investigation for improper reasons.

McCabe -- engaging in several texts and phone calls with FBI media intermediaries -- provided the WSJ with a different narrative. The OIG report quotes the WSJ article:

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals.

The Justice Department official was “very pissed off,” according to one person close to McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant. . . .

“Are you telling me that I need to shut down a validly predicated investigation?” Mr. McCabe asked, according to people familiar with the conversation. After a pause, the official replied “Of course not,” these people said.

Following this spin attempt, McCabe then began ringing up field offices and "admonishing them for leaks." These would be the same leaks McCabe provided to the WSJ. While officials in New York and DC remember these calls from McCabe, McCabe apparently does not.

From that point on, the report details several divergences between McCabe's sworn statements and those of others, like then-FBI director James Comey. McCabe, however, could not present a clear timeline of this authorization when questioned by FBI investigators. And so it goes for several pages, with McCabe's testimony being disputed by everyone else involved. Not only does Comey not recall there being any leak authorization, but that McCabe himself presented the leak to Comey as unauthorized.

I have a strong impression he conveyed to me “it wasn’t me boss.” And I don’t think that was by saying those words, I think it was most likely by saying “I don’t know how this shit gets in the media or why would people talk about this kind of thing,” words that I would fairly take as “I, Andy, didn’t do it.” And I actually didn’t suspect Andy, after conversations with [my chief of staff], my worry was, was his aide [Special Counsel] doing it.

McCabe's Chief of Staff also had no idea McCabe was behind the leak. In fact, the COS felt the leak did more harm than good, benefitting McCabe at the expense of the FBI and DOJ.

I just can't imagine that the Deputy would have authorized the leak. It just doesn't seem to serve, I mean, I guess it serves, it serves the purpose of the Deputy by saying, hey look, do you want us to shut this thing down? I guess it serves Andy in that way, but it really, it really highlights a dysfunction between the FBI and the, and DOJ. And to that end, it doesn't really serve the greater good.

The denials of wrongdoing by McCabe are rebutted thoroughly by the OIG report. Some are as simple as noting clear discrepancies between McCabe's testimony and that of others involved. Some are even worse, showing someone running a fine-tuned surveillance apparatus somehow thought his own communications would escape the attention of investigators.

[W]with regard to McCabe’s claim that he did not know where Special Counsel was or what she was doing during the relevant time period, FBI records show that McCabe was in frequent telephone and text communication with Special Counsel during that time period and had several communications with her regarding her calls with [WSJ journalist Devlin] Barrett, including a 51 minute call after her first call with Barrett and a 23 minute call after her final call with Barrett. McCabe’s own text messages reflect that McCabe was keenly interested to learn about the results of Special Counsel’s calls with Barrett. We therefore found that McCabe’s claimed ignorance regarding Special Counsel’s activities on those days was demonstrably false.

Unfortunately, there's a portion of the populace that feels anyone the Trump Administration fires is a martyr to the Resistance cause. And they're putting their money where their bias is. McCabe's legal defense crowdfunding effort raised more than $500,000, showing there are plenty of Americans willing to hand additional money to a well-paid public servant who committed career suicide by apparently covering up his involvement in a self-serving leak.

McCabe's legal team has issued a response [PDF] to the OIG report which takes issue with a few of its conclusions. About the only rebuttal with merit is related to the leak. As his legal team points out, McCabe was authorized to selectively leak information to journalists, much like many high-ranking government officials. The rest of it is little more than semi-plausible explanations as to why there might be an incredible amount of inconsistencies in McCabe's sworn testimony.

There are reasons to be concerned about how the firing was handled. McCabe was basically 24 hours away from qualifying for a pension, so the decision to fire him rather than let him resign looks more vindictive than judicious. And while McCabe's leak may have given some people the impression FBI investigations weren't subject to personal political leanings, it appears to have been pushed out to clear McCabe of any Clinton-related suspicions, rather than serve the greater purpose of protecting the reputation of the FBI or DOJ.

Richard Liebowitz of Liebowitz Law Firm has had a bad couple of weeks in court. Unfortunately for him, as one of the most prolific copyright trolls, that's kind of where he makes his home. According to two recent orders handed down by two different judges, Liebowitz has filed more than 500 copyright cases in the Southern District of New York alone over the last two years, most often representing photographers.

Booth Sweet LLP -- which has gone head-to-head with other copyright trolls -- pointed out the most recent loss Liebowitz has suffered. His lawsuit is still ongoing, but the court has ordered him to post a $10,000 bond to cover the legal fees he'll be responsible for if he loses. And if a judge is ordering a bond, it's likely because the judge expects the lawsuit to end badly for the person ordered to front the cash.

The order [PDF] is an entertaining read for people who detest copyright trolls. (Hey! Welcome to Techdirt!) Liebowitz is suing Hearst Communications over the publication of a photo he says belongs to his client, Ray Reynolds. Reynolds claims he gave the photo to the Trump campaign but expressly forbade its release to anyone else. The photo was given to Elle magazine to accompany an article about Melania Trump. Reynolds sued, and apparently chose poorly when it came to representation.

It's nothing but bad news for the prolific troll. The order begins with a recounting of Liebowitz's lies/omissions/failures.

The complaint in this action alleged that the defendant published plaintiff’s photograph without a license or plaintiff’s permission. It did not reveal that the plaintiff had in fact provided the photograph to the Campaign.

At the initial conference held on December 8, when asked how the defendant could have gotten the photograph, Mr. Liebowitz did not explain that the plaintiff had actually given the photograph to the Campaign. Instead, he speculated that Hearst may have taken the photograph from an article that the plaintiff had licensed to publish the photograph.

That's already a bad start, but a footnote makes it even worse.

Mr. Liebowitz failed to appear at the pretrial conference scheduled for December 1, despite being required as principal trial counsel to appear at the conference. Instead, without seeking prior permission to do so, Mr. Liebowitz sent an associate.

The court then recounts the facts. The photos are registered with the copyright office. The plaintiff asserts he gave them to the Trump Campaign for it to use for campaign-related stuff. Hearst maintains the Trump Campaign gave Elle the photo to use with the Melania Trump article. As the court points out, this would appear to be in line with the photographer's demands: the photo was used in an article put together with the assistance of the Trump Campaign. No violation of any contract, oral or written. And there appears to be no contract of any sort. Just the photographer's claim Elle engaged in copyright infringement by using it on its website. Having nothing in writing will make this case almost impossible to win. The court quotes from copyright law:

All grants of exclusive rights in a copyright must be made in writing.

The court doesn't say the plaintiff has no chance of winning this suit. But it does say the chances of him winning the suit are barely above zero.

Although he was not forthcoming in either the complaint or when first addressing the Court at the initial pretrial conference, Mr. Liebowitz understood before filing this lawsuit that the plaintiff gave the photograph to the Campaign for its use and that the photograph had been used in a story with which the Campaign was obviously cooperating. Among other things, Mrs. Trump is quoted in the article. There is no indication in the record that Mr. Liebowitz has ever learned of any explicit or even implied agreement between the plaintiff and the Campaign that restricted the Campaign’s use of the photograph in any way. His client only claims that he did not intend to allow the Campaign to share the photograph, but has provided no evidence of an agreement to that effect between him and the Campaign. If Mr. Liebowitz had spoken with defense counsel before filing this action, he would have had occasion to consider all of the facts recited above and to consider whether it was appropriate to sue Hearst at all, or whether he should sue not only Hearst but also the Campaign.

The court notes the 500 cases Liebowitz has filed in this court over the last two years. It also notes his recent sanctioning by this court (more on that in a minute). It then points out several of his cases have been dismissed for being frivolous. On top of that, the court says it's not the only court that has required Liebowitz to pay up front for impending lawsuit losses.

Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action.

Hearst wanted a $105,000 bond. The judge trims it down to 10% of this demand, noting Liebowitz's self-declared insolvency.

The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

(Maybe don't take all your cases on contingency.)

Of course, the court has no reason to believe this assertion, considering Liebowitz's past performance.

Given the plaintiff’s impecuniosity, the immediate imposition of bond in an amount limited to $10,000 is appropriate. The defendant will be given an opportunity to take discovery of the plaintiff’s financial condition and the parties will be heard as to whether any additional bond requirement should be imposed in this case.

Then it smacks him one more time before signing off.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.

As noted in this decision, Liebowitz has been sanctioned by SDNY courts previously. Via The Trademark Blog, here's Liebowitz being threatened with yet another sanctioning by an SDNY judge. This order [PDF] was handed down less than a month ago and it stems from the plaintiff voluntarily dropping the lawsuit as soon as the defendant filed a motion to dismiss.

It starts out -- like the one above -- with a footnote detailing Liebowitz's failure to comply with rules he's surely familiar with, given the large number of lawsuits he's filed in this district.

The notice of the initial pretrial conference contains explicit language that the plaintiff is to “notify all attorneys in this action by serving upon each of them a copy of” the notice and the Court’s individual practices. The plaintiff is “to file proof of such notice with the Court.” The plaintiff failed to comply with this notice; the electronic case filing system (“ECF”) contains no entry indicating that the plaintiff duly served defendant’s counsel with the notice. This is not the first such failure on the part of plaintiff’s counsel before this Court and other courts in this district.

Then the court notes the lawsuit -- filed in New York against a small Idaho publication -- contains nothing indicating this court should have jurisdiction to hear the case. The defendant's motion to dismiss on these grounds prompted a quick withdrawal of the lawsuit. The court finds this suspicious, but declines to award legal fees to the defendant.

Here, the plaintiff voluntarily dismissed his claims after the defendant served a Rule 68 offer and filed a motion to dismiss for lack of personal jurisdiction. In opposition to this motion for fees, the plaintiff does not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. Based on the record before the Court, it appears that the filing in this district was “frivolous, unreasonable, or groundless.” CRST, 136 S.Ct. at 1652 (citation omitted). Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll,” filing over 500 cases in this district alone in the past twenty-four months. Thus, whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.

No fee shift, but there's a warning suggesting Liebowitz could be on the hook for fees in the future, especially if he decides to keep dumping cases into this district.

In an exercise of this Court’s discretion it declines to award fees on this occasion. If Mr. Liebowitz files any other action in this district against a defendant over whom there is no nonfrivolous basis to find that there is personal jurisdiction, the outcome may be different.

Nothing seems to have slowed Liebowitz's troll but perhaps back-to-back bench slaps might, especially if the lawyer is so broke he can't rub two settlements together. Someone working on contingency with a horrendous court track record probably doesn't have tons of cash to front to keep his speculative invoicing racket afloat.

Dashcams -- unlike body cameras -- have been around for years. So while it might be understandable an officer could forget his actions are being documented by his new-ish body camera-- say, when he heads into an alley to plant evidence -- it's difficult to draw the same conclusion when an officer apparently forgets his dashcam is recording his bogus traffic stop.

In a criminal case resulting in suppressed evidence, Officer William Davis of the Dayton (OH) Police seems to have done exactly that. His bogus traffic stop resulted in the discovery of marijuana and a firearm, but none of that matters now. What was captured by his cruiser's dashcam undercut his assertions and sworn testimony. That has lead to an Ohio appeals court's memorable decision, in which it's declared the lower court was correct to rely on dashcam footage -- rather than the officer's testimony -- when the two narratives diverged. (via FourthAmendment.com)

On a dark, rainy night Officer Davis and Officer Bryan Camden were speeding down a street when a vehicle pulled out in front of them. (Literally speeding: speed limit was 35 mph. Despite the adverse driving conditions, the cruiser was travelling at 43 mph.) Apparently miffed he had to ease back to the posted speed limit, Officer Davis (with Camden's help) began to compose an alternate reality in which a traffic violation had occurred. The problem for the state -- which hoped to retain the evidence obtained during the resulting traffic stop -- is the entire thing was caught on camera. This included the officers' retcon of events in progress. From the decision [PDF]:

As the cruiser approached the intersection of Hoover and Elmhurst, Wilson’s vehicle (a 2015 Chevy Traverse SUV) turned right from Elmhurst onto Hoover in front of the cruiser. Officer Davis testified that only two or three car lengths separated the vehicles when Wilson pulled out and that he (Davis) “had to hit the [brakes] to avoid running into the rear of [Wilson’s] vehicle;” the trial court found this testimony to be not credible. Instead, after a review of the cruiser video, the trial court found that Wilson pulled onto Hoover “no less than 306 feet – or more than eighteen (18) car lengths – in front of the cruiser.” The trial court further stated that “[a] slamming on of the cruiser’s brakes would necessarily have precipitated a sudden dip of the cruiser’s nose – a dip completely absent on the video.” Rather, the trial court found that the cruiser “gently decelerated” from a speed of 43 miles per hour to the posted speed limit.

No traffic violation occurred and yet the officers seemed determined to stop the vehicle that had mildly offended them with its entry into traffic.

The officers remarked to each other about the out-of-state license plates on Wilson’s vehicle (a rental) and discussed towing Wilson’s vehicle. When the traffic light turned green, both vehicles moved forward to turn left onto North Gettysburg. At this juncture (over one and a half minutes after Wilson pulled onto Hoover), the officers engaged in the following exchange, which the trial court concluded was “staged”:

Davis: “He pulled out there, pulled right in front of me!”

Camden: “He pulled out in front of us.”

Davis: “Had to hit the brakes to avoid * * *.”

Camden: “Yeah, they had a – a failure to yield.”

Courts usually look the other way when dealing with pretextual stops. That has scaled back a bit in the wake of the Rodriguez decision, but still remains in play if a court can find some way to believe an officer might have believed a traffic violation had occurred. These officers might have received the same deference if only their cruiser's camera hadn't made it crystal clear the violation was completely concocted by two officers looking for a reason to pull someone over.

A stop and a search ensued, resulting in citations for failure to yield and marijuana possession, as well as an arrest for improper handling of a firearm in a vehicle. Officer Davis claimed this was a by-the-book search and arrest. But to do so, he had to continue misrepresenting the events while under oath.

Davis testified that he provided Miranda warnings to Wilson and that Wilson answered a few questions and then requested an attorney. For reasons that Davis could not explain at the suppression hearing, the Miranda warnings and statements by Wilson following those warnings were not recorded on the cruiser video.

The appeals court then quotes the lower court, stating that if any traffic violation occurred here, it was committed by the police officers, rather than the person they pulled over.

[T]he Court finds as a matter of fact and law that Defendant did not fail to yield to the cruiser because the cruiser was not proceeding in a lawful manner. Rather, the cruiser was itself speeding on a dark, rainy night at low visibility further compromised by road glare. By proceeding in such a reckless manner – and in violation of both state and local law – Ofc. Davis forfeited the preferential status afforded a lawful driver under the right-of-way statute.

With no good faith in evidence anywhere, the good faith exception is denied. The appeals court also dismisses the state's claim the lower court overstepped its bounds by doing its own calculations on the distance between the vehicles involved. Nor did the trial court err on its finding there was no articulable suspicion a moving violation had occurred, thus no reason for the officers to perform a stop.

On this record and with deference to the trial court’s factual findings, we cannot find error in the trial court’s legal conclusion that the officers lacked a reasonable suspicion of criminal activity, namely a violation of R.C. 4511.43(A), to justify the traffic stop. The trial court specifically found that the officers were exceeding the speed limit when Wilson turned onto Hoover Avenue and that the cruiser merely “gently decelerated” to the posted speed limit after Wilson turned onto the road; there was adequate distance (regardless of the specific number of feet or car lengths) between the cruiser and Wilson. Given the trial court’s findings, which are substantially supported by the record, the officers had no reasonable suspicion that Wilson’s actions created an “immediate hazard” and that he failed to yield when he turned onto Hoover. In the absence of a reasonable suspicion of criminal activity, the trial court did not err in suppressing any evidence found as a result of the unlawful stop.

With the evidence gone, the charges should soon be dismissed. This will negate two felonies and a misdemeanor, thanks to an officer who apparently forgot his dashcam was on. There's nothing quite like being burnt by your own recording. The easiest fix -- but least likely to occur -- is to perform your public servant duties in accordance to the law and with an eye on respecting the rights of those you serve. Unfortunately, this seems to be a last resort -- something only to be done after tampering with recordings or routine "failure" to active recording devices has run its course.

We've pretty well established by now that the FCC's repeal of net neutrality is being justified by a lot of fluff and nonsense with no factual basis in reality. Like claims that net neutrality killed sector investment, which are easily debunked by SEC filings, earnings reports, and numerous public CEO comments to investors (who, unlike you, they're legally not allowed to lie to). From Ajit Pai's claims that net neutrality emboldens fascists in North Korea and Iran, to his most recent claim that net neutrality fears were overhyped because Twitter still somehow works, blatant bullshit is the foundation of this entire repeal effort.

For years now, one constant bit of bullshit spread by ISPs was the claim that the Obama-era White House somehow "illegally pressured" Tom Wheeler's FCC into passing tougher net neutrality rules. As we noted at the time that claim was nonsensical, since there's no law stopping the White House from expressing its opinion on what policy should be. From Bill Clinton urging then FCC boss Reed Hundt to ban alcohol ads on TV, to George W Bush telling then FCC boss Michael Powell to deregulate media ownership, such behavior is historically perfectly normal.

Again, this fact didn't stop ISPs and their water carriers in Congress and key media outlets from repeatedly trying to claim that Obama engaged in all manner of shifty behavior to force the FCC to create the rules. The Wall Street Journal in 2014, for example, professed that "unusual, secretive efforts inside the White House" caused FCC boss Tom Wheeler to shift his position from weaker, Title I based rules, to tougher Title II based rules. The idea that Obama's White House had undertaken a covert "federal takeover of the internet" quickly became gospel across countless partisan echoverses.

The criticism was enough to drive investigations in both the Senate and by the FCC’s Inspector General. And while nobody from either government body could be bothered to tell the public the outcome of these investigations, Motherboard recently filed several FOIA requests that now show the outcome of these investigations wound up being a giant bupkis:

"After reviewing more than 600,000 emails, the independent office found that there was no collusion between the White House and the FCC: “We found no evidence of secret deals, promises, or threats from anyone outside the Commission, nor any evidence of any other improper use of power to influence the FCC decision-making process."

Which again, was what we suggested back in early 2015. None of the claims that heralded Obama's "illegal takeover of the internet" had the slightest bit of evidence in support of them, noted the FCC Inspector General's report:

"Nothing we found refuted the factual findings in the Senate Staff Report,” the IG wrote (bolding by agency). “More importantly, nothing we found in the complete, unredacted record evidenced any undue influence that would have militated in favor of a more comprehensive investigation."

What the Inspector General found, then, were career public servants doing their job: “Nothing in these, or in any other emails appeared to indicate there was pressure to delay the Order from the December meeting from any source other than concerned FCC staffers,” the report found, adding that there was “no indication” that a draft of the net neutrality regulations had been circulated improperly.

Obama's first FCC boss Julius Genachowski was arguably a wishy washy fence sitter. But his replacement Tom Wheeler wound up actually being the rare type of person capable of changing his mind based on the available evidence. And when the available evidence (and the courts) made it clear that you can't have effective net neutrality rules without classifying ISPs as common carriers until Title II of the Communications Act, that's exactly what Wheeler did. He didn't make an evidence-based decision because of some secret White House cabal, he did it because that was his fucking job. And he's subsequently been punished for it.

Of course the very idea that net neutrality (aka wanting a healthy, competitive internet) is somehow partisan was already bullshit in and of itself. It's a construct built by the telecom industry's lobbying and policy apparatus, perpetuated by numerous ISP-funded groups. The express goal is to divide the public, sow dissent, and stall meaningful reform of a broken, uncompetitive market. If you hadn't noticed, this tactic has proven immeasurably successful.

Earlier this year, we covered the horrific story of the death of a 5'4" 110-lb. 18-year-old at the hands of the Mesquite (TX) police department. The teen, suffering from a bad acid trip, was tased multiple times, threatened with death by an officer, and left to die in a jail cell with little more than a cursory nod towards his health and wellbeing.

Graham Dyer's parents were unable to obtain any details about their son's death from the Mesquite PD. The department refused to turn over records, pointing to state law allowing it to withhold records on arrested suspects who never faced criminal charges. This exemption may have made sense to lawmakers at the point it was passed. But in-custody deaths are inherently questionable. This exemption does little more than give law enforcement agencies everything they need to cover up misconduct.

Fortunately, Dyer's parents didn't stop there. They asked the FBI to open an investigation into their son's death. The FBI closed its investigation without forwarding it to the DOJ for charges but the investigation did serve at least one purpose: it allowed Dyer's parents to finally obtain records related to their son's last night on earth.

What they found was horrifying. Video showed their son thrashing around in the back of a police car, incoherent and completely unrestrained. Captured audio captured an officer threatening to kill their son if he didn't calm down. The in-car video also showed the same officer repeatedly tasing their son in the testicles. (The officer claims he was aiming for the "inner thigh" but Dyer kept moving. Considering a taser is effective almost anywhere it's placed, why place it so close to a person's testicles unless you're hoping to "accidentally" tase that part of the arrestee?) They also saw their son dragged from the police car at the jail sally port, laying on the floor with an officer's foot on his head.

Without these records from the FBI, the Dyers would never have known what led to their son's death. The Mesquite PD's refusal to turn over records also served its own purpose: it ran the clock on the statute of limitations. The state can no longer bring criminal charges against the officers -- despite the DA saying there's evidence of criminal behavior.

But that can't prevent the officers from being sued. The Dyers have taken the Mesquite PD to court and now, at long last, the PD is being forced to hand over the documents it refused to give to the teen's parents. What's in these documents -- and the officers' testimony -- only adds to the portrait of these officers' depraved indifference.

To begin with, the officers who arrested Dyer showed almost zero concern for his wellbeing. Not once did they consider bringing the teen to a nearby hospital. Nor was any sort of health check given when Dyer was turned over to the local jail. But the arresting officers had every reason to believe Dyer might be seriously injured.

While being loaded into a cruiser, Dyer banged his head several times against the car. During the first mile on the drive to the city jail, he slammed his head 19 times against the side door, back seat or metal cage separating the car’s front and back.

Halfway to the jail, in what they have described as an attempt to calm him down, the officers pulled to the side of the road. One used his Taser, shocking Dyer in his testicles.

Some police departments call for a medical evaluation after Taser use. Instead of diverting to the emergency room a half-mile away, however, the officers resumed driving. No additional restraints were applied, and during the second half of the trip Dyer hit his head against the car’s interior 27 more times.

At the jail, officers unloaded the handcuffed and leg-tied Dyer onto the sally-port floor outside the jail. There, they watched him bang his head again on the concrete pad.

According to their own testimony, none of the officers informed jail staff about possible head trauma suffered by Dyer. Nor did anyone ask for medical care until after Dyer had been laying motionless in a jail cell for two hours.

On top of that, the officers' stories -- backed by apparently falsified reports -- are falling apart.

The Dyers have noted that, at the least, the depositions given by the five police officers who responded to the middle school on Aug. 13, 2013, have challenged the official version of Graham’s arrest that police initially presented to them.

In their pleadings, police described Graham and his friends as belligerent and combative. But in individual depositions, the officers conceded the teens were mostly cooperative. Graham, for example, was kept on the ground for more than 10 minutes with modest effort, they said.

[...]

In their original incident report, the Mesquite officers had written: “Dyer could not calm down and walk to the patrol unit, therefore officers had to carry Dyer to the patrol unit.” Yet the video depicts him walking to the cruiser.

At the jail, the police report again described Graham as combative: “It took multiple officers and detention officers to remove Dyer from the back seat of the patrol unit, escort him inside the jail, and placed him in a restraint chair and padded cell for his safety.” The video, however, shows him lying mostly motionless on the ground.

It's a compound lie. Dyer was never placed in a restraint chair. He laid on the concrete floor until officers booked him and left him in a cell to finish dying.

Even though the statute of limitations prevents the DA from bringing charges against the officers, it doesn't prevent the Mesquite PD from handing out its own discipline. But it has done nothing. All officers involved in Dyer's death remain employed.

Fortunately, the FBI's investigation has given the Dyers the documentation they need to pursue legal action against the Mesquite PD. But that may be the only good to have come out of this. A bill brought by a state rep to close the exemption the Mesquite PD used to wait out the statute of limitations died on the House floor. And in the end, it won't be the involved officers paying for the teen's death, it will be the state's taxpayers.

For a decade now one major ISP talking point against net neutrality is that it hurts the sick and disabled. Verizon, for example, has tried to pretend that net neutrality rules hurt the hearing impaired because it prevents them from getting access to prioritized medical services like video relay or other technologies. Comcast has frequently trotted out this argument as well, as in an FCC filing (pdf) earlier this year claiming that net neutrality rules simply must die because they're preventing the sick and disabled from getting access to advanced telemedicine technologies:

"...the Commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public. For example, a telepresence service tailored for the hearing impaired requires high-definition video that is of sufficiently reliable quality to permit users “to perceive subtle hand and finger motions” in real time. And paid prioritization may have other compelling applications in telemedicine. Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it."

You may be shocked to learn that this isn't, nor has it ever been, true. Both the discarded 2010 rules, and the 2015 rules, carve out mammoth, tractor-trailer-sized exemptions for medical services. In the 2015 rules, the FCC was careful to distinguish between "Broadband Internet Access Services (BIAS)" (generalized internet traffic like browsing and app data) and "Non-BIAS data services," which are often given prioritized, isolated capacity to ensure lower latency, better speed, and greater reliability. VoIP services, pace makers, energy meters and all telemedicine applications fall under this category and are exempt from the rules.

You'll be equally shocked to learn that this has nothing to do with helping the sick -- and everything to do with making more money. ISPs want to eliminate the paid prioritization restrictions so they can sell content and service companies an unfair advantage in the market. Deals that give industry giants prioritization, optimal routing and the lowest latency, while startups, non-profits and educational institutions sit twiddling their thumbs at a notable disadvantage. This goal is precisely why Comcast is already walking back its promises on this front as repeal nears.

You'd think, as FCC Boss so immensely familiar with the rules he's so eager to dismantle, that Ajit Pai would realize that the claim that net neutrality hurts the sick is a dated and grotesque bit of scare mongering. Yet last week, as he tried to defend himself from massive criticism that he was selling out consumers and the health of the internet, Pai gave yet another speech (pdf) during which he doubled down on the idea:

"By ending the outright ban on paid prioritization, we hope to make it easier for consumers to benefit from services that need prioritization -- such as latency-sensitive telemedicine. By replacing an outright ban with a robust transparency requirement and FTC-led consumer protection, we will enable these services to come into being and help seniors."

Again: there is no "outright ban," and the rules clearly already carve out giant holes for this traffic. Not to be outdone, this claim that killing net neutrality magically helps the sick was also included in the FCC's facts-optional fact sheet (pdf) it circulated last week to "set the record straight":

"FACT: Restoring Internet freedom will lead to better, faster, and cheaper broadband for consumers and give startups that need priority access (such as telehealth applications) the chance to offer new services to consumers."

But again, nothing in the rules stopped this from happening already, meaning that Pai once again feels the need to lie about something that can be fact-checked by anybody willing to spend a little time actually reading the 2015 rules (pdf). Of course when you're pushing what's potentially the most despised bit of tech policy kerfuffle since SOPA with little to no support from the actual public, manufactured bogeymen are apparently all that's left to fall back on.

I want to start out this post by making a key point: I know that it's become fashionable to launch into personal and ad hominem attacks on people we disagree with politically of late. We've sought to avoid doing that here on Techdirt, even if we often will criticize people and their positions in stark terms. Over the past few days, however, the ad hominem attacks on FCC chair Ajit Pai by some have been absolutely disgraceful -- and absolutely counterproductive. I disagree with Pai quite a lot (as you'll see below). But the venom and attacks he's received from many are not just unfair and misguided, but only serve to bolster the idea that the people arguing against him are unhinged from reality. I've met Pai a few times and have found him to be both thoughtful and intelligent. I still believe that he is deeply misguided about multiple important issues, but we can debate those issues without resorting to personal attacks. I hope that others will follow suit.

Ever since Ajit Pai became chair of the FCC he's been systematically undoing more or less everything his predecessor, Tom Wheeler, accomplished during his (perhaps surprisingly) effective chairmanship. To do that, Pai has engaged in a series of statements and positions that, at best, have involved misrepresentations of reality. There are a number of these that may be worth exploring, but I want to focus on one that I'll refer to as Ajit Pai's Big Lie, because it's the key argument he's made, underlining his reasoning for chucking out the existing net neutrality rules. Here is the opening paragraph from the FAQ that Pai released last week, setting out his reasoning... and also succinctly presenting Ajit Pai's Big Lie:

Over twenty years ago, President Clinton and a Republican Congress established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” For decades, Commission policies encouraged broadband deployment and the development of the Internet. That ended two years ago. In 2015, the Commission imposed heavy-handed, utility-style regulation on Internet service providers (ISPs). Since then, broadband investment has fallen for two years in a row—the first time that that’s happened outside a recession in the Internet era. And new services have been delayed or scuttled by a regulatory environment that stifles innovation.

You might think that the "Big Lie" is the idea that the 2015 rules killed investment. And that is a lie. Actual evidence from financial reports has proven that completely false repeatedly. But, that's a smaller lie here. Ajit Pai's Big Lie is the idea that gutting all net neutrality protections is somehow returning FCC policy to the way things were two years ago, and that "for decades" the FCC kept out of this debate. All of that is wrong. And, unlike the other lie concerning investment -- where Pai and others can fiddle with numbers to make his claims look right -- Ajit Pai knows that the Big Lie is false.

Pai likes to point back to the Telecommunications Act of 1996 as his starting point in claiming that the internet is free from regulations, and suggests that things just changed with the 2015 FCC order. But he literally knows this is wrong. First of all, for all his talk of using 1996 as the starting date to show "decades" of supposedly unchanged FCC positions on this, he conveniently leaves out that the FCC didn't actually classify cable broadband as an information service... until 2002. That's from the FCC's own announcement about it. And this was fought out in court, eventually leading to the Brand X Supreme Court ruling in 2005 that said the FCC had the right to determine if broadband was an information service or a telco service (which is why the 2015 order has been upheld).

And, even then, telco (i.e., DSL) based broadband was still classified under Title II. It was only in 2005 that the FCC officially reclassified telco-based broadband as an information service, rather than a Title II covered telco service. This move actually stripped broadband of the one feature that had created the most competitive markets: the requirement to share their lines.

So, as a starting point, the idea that there's been a consistent policy position from 1996 until 2015 is simply wrong. The FCC itself changed the classification of broadband providers in 2002 and again in 2005.

Next, the idea that "net neutrality" itself is a new concept that only came about with the 2015 order is complete and utter hogwash. And, again, this is something that Pai knows well. If you go back through the previous four FCC chairs -- under both Democrat and Republican administrations -- they all supported net neutrality. They just struggled with how to implement it. In 2004, then FCC chair Michael Powell presented his "guiding principles" for "preserving internet freedom." In that document, Powell laid out an early argument for net neutrality (before the term had really caught on), noting that it was important that broadband providers offer up full access to the entire internet equally.

In that speech, he actually warned of why it would be dangerous for an internet access provider to block a competing VoIP service, and that the FCC "must keep a sharp eye on market practices that will continue to evolve rapidly." And, indeed, a year later, when Powell discovered that a small ISP named Madison River was blocking VoIP calls via Vonage, Powell's FCC fined Madison River using Title II as the justification (the consent decree refers to 47 USC 208, which is part of Title II).

So we had a Republican FCC chair who clearly supported net neutrality and used Title II to make it happen. How the hell can Ajit Pai square this with his claim of no one using Title II or supporting net neutrality until Tom Wheeler's 2015 order?

And we're just getting started. Powell's successor was Kevin Martin -- another Republican under President George W. Bush. Martin also strongly supported net neutrality and, in many ways, kicked off the process that eventually resulted in Wheeler's order. It was under Martin's watch that it was discovered that Comcast was throttling BitTorrent and the FCC issued an order telling Comcast to knock it off. By that point, the FCC had already (see above) made it clear that broadband was not a Title II service, so it relied on other parts of its claimed mandate to issue the order.

That went to court and the court said that the FCC did not have the proper authority to police such a net neutrality violation under the existing rules. The court said that the FCC was trying to stretch its ancillary authority too far -- that even though the FCC wanted to, it could not enforce net neutrality requirements on information services. Basically, the court was telling the FCC it fucked up in reclassifying broadband away from Title II, even as it still believed in the importance of net neutrality (and, yes, again, as a reminder, this was under a Republican FCC).

That's why the next FCC chair, Julius Genachowski, proposed a different set of rules for net neutrality in 2010. However, under tremendous pressure from the broadband providers, Genachowski punted and tried to craft net neutrality rules without reclassifying broadband companies under Title II. Verizon (who helped write the rules) still sued over these new rules... and won. Basically, the court said (again) "Hey, FCC, you clearly want net neutrality, but the only way to do that is to reclassify broadband under Title II."

It was only then, with the next FCC chair, Tom Wheeler, that the FCC actually did so. And that's why Wheeler's Open Internet order has been held up in court already.

But read through all of this carefully, and try to square this with Ajit Pai's Big Lie -- that since 1996, broadband has been treated one way, and there's been no FCC push for net neutrality. The FCC considered broadband covered by Title II for nearly a decade after the Communications Act of 1996, and even as it was reclassifying broadband to be an information service, every single FCC chair expressed strong support for net neutrality and tried to enforce it against those who violated those principles. It was only because the courts pushed back, and noted that if the FCC wanted to enforce net neutrality, broadband needed to be Title II, that the FCC made that switch, supported with both the backing of the court (in those earlier rulings and following the order) and plenty of evidence for why it was necessary.

For Pai to argue that he's trying to bring things back to how they were from 1996 to 2015, he has to ignore all of that history. He's not taking us back to that era. He's doing something worse. He's wiping out the rules that courts said were necessary to enforce the FCC's long-held position on net neutrality. And, more importantly, he's reversed course on the FCC's long-held position on net neutrality.

And he's doing so with his Big Lie that he's merely reverting back to where things used to be.