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Posted on Techdirt - 21 March 2018 @ 3:23am

YouTuber Who Trained His Girlfriend's Dog To Be A Nazi Facing Hate Crime Charges In Scotland

from the there's-nothing-not-ridiculous-about-that-headline dept

Across the sea in the UK, offensive speech is still getting people jailed. An obnoxious person who trained his girlfriend's dog to perform the Nazi salute and respond excitedly to the phrase "gas the Jews" is looking at possible jail time after posting these exploits to YouTube under the name Count Dankula. According to Scotland resident Markus Meechan, it was the "least cute" thing he could train his girlfriend's dog to do, apparently in response to her constant gushing about the dog's cuteness.

Meechan's video racked up 3 million views on YouTube, but it really didn't start making news until local police started paying attention.

That April, soon after the video was posted, police knocked on Meechan’s door in Coatbridge, a town in North Lanarkshire, Scotland, he told Alex Jones. The officers told him that he was being charged with a hate crime and that the video could be seen as promoting violence against Jews. They told him to change his clothes, took pictures of his apartment and hauled him off to jail.

There's is no doubt the video is offensive. But offended people have plenty of options to counter Meechan's speech with their own. Unfortunately, the 2003 law being used against him has ensured this counterspeech is solely taking the form of testimony against Meechan.

During the trial, Ephraim Borowski, director of the Scottish Council of Jewish Communities, who lost family members during the Holocaust, said the video was “grossly offensive. It stuns me that anyone should think it is a joke," he said, according to The Times.

"My immediate reaction is that there is a clear distinction to be made between an off-hand remark and the amount of effort that is required to train a dog like that. I actually feel sorry for the dog.”

Meechan says he has no hate for Jews and did it solely to annoy his girlfriend. It was recorded, which means it was meant to entertain YouTube users, some of which likely viewed the video as generally supportive of gassing Jews (which may have helpfully aligned with their own views on the subject). But speech can be offensive without being a hate crime, and the general criminalization of offensive subject matter isn't doing much to curb actual racially-motivated criminal activity. All it's really doing is ensuring UK courts receive a steady stream of defendants who've done nothing more dangerous than publicly display their questionable opinions and terrible senses of humor.

The YouTuber is now facing a year in prison because an unfunny prank came to the attention of local police. Prosecutors are busy trying to prove intent, which should be an uphill battle. Meechan has already issued a public apology, as well as a follow-up video further distancing his distasteful prank from any support for anti-Semitism. Nevertheless, prosecutors are alleging the sole reason for the recording was to cause fear and stir up hatred. That really doesn't seem to be the case despite several bigots deciding the video's release meant they should inundate the local Jewish community council with hateful messages.

Laws enforced in this fashion don't instill a greater respect for rule of law or those who craft bad laws with good intentions. Fifteen years have passed since this law took effect and it's certainly hasn't shown much return on investment. Instead of stomping out hate, it's being used to carve holes in speech protections, ensuring the merely offensive will be given the same punishments as those who actually incite hatred and violent acts.

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Posted on Techdirt - 20 March 2018 @ 10:45am

DOJ Readying Warrants In Carter Page Investigation For Public Release

from the giving-the-Republicans-what-they-may-not-want dept

For the first time since the FISA court opened for national security business, the DOJ is considering declassifying FISA warrant applications. The documents are linked to the FBI's surveillance of former Trump campaign aide, Carter Page. Both sides of the political aisle have asked for these documents, which is something you'd think they'd have wanted to see before issuing their takes on perceived surveillance improprieties.

Devin Nunes -- following the release of his memo -- sent a letter to the FISA court asking it to clear the warrants for public release. The court's reply, penned by Judge Rosemary Collyer, pointed out two things. First, the FISA court had never released these documents publicly, nor was it in the best position to do so. It is only tasked with determining whether or not surveillance is warranted and to what restrictions it must adhere. It does not have the innate power to declassify documents, nor can it arbitrarily decide what documents have gathered enough public interest to outweigh the government's perpetual demands for secrecy.

The court did point out this release could be achieved much faster if Nunes directed his question to the DOJ, which does have the power to declassify its own investigation documents. It doesn't appear Devin Nunes has approached the DOJ but litigants in an FOIA lawsuit have, and they're looking at possibly obtaining the documents Devin Nunes requested from the FISA court.

The government is considering an unprecedented disclosure of parts of a controversial secret surveillance order that justified the monitoring of former Trump campaign aide Carter Page.

Responding to a legal challenge brought by USA TODAY and the James Madison Project, Justice Department lawyers Friday cast the ongoing review as “novel, complex and time-consuming.”

“The government has never, in any litigation civil or criminal, processed FISA (Foreign Intelligence Surveillance Act) applications for release to the public,” Justice lawyers wrote in a five-page filing.

The filing [PDF] notes that the President's unilateral decision (over the DOJ's objection) of releasing the Nunes memo has forced it to reverse some of its Glomar declarations in ongoing FOIA lawsuits, since it's impossible to maintain a stance of non-confirmation and non-denial when the White House is handing out confirmation left and right.

The DOJ has asked for four months to review the documents before returning to the court with its final answer on public release. There will probably be further delays from this point, as the DOJ will need the FISA court to officially unseal documents before it can turn these over to the litigants. It notes the plaintiffs are not happy with this timetable, but points to the presumed complexity of a task it has never undertaken previously as the reason it needs 120 days before the litigation can move forward.

This administration continues to break new grounds in inadvertent transparency. However, the release of these documents may further undermine the Nunes Memo narrative, so legislators and White House officials hellbent on using the FISA court to score political points should be careful what they wish for.

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Posted on Techdirt - 20 March 2018 @ 3:21am

Cops Wanting To Track Movements Of Hundreds Of People Are Turning To Google For Location Records

from the wherein-'probable-cause'-is-defined-as-'maybe-this-might-be-helpful? dept

Police in Raleigh, North Carolina are using Google as a proxy surveillance dragnet. This likely isn't limited to Raleigh. Google harvests an astounding amount of data from users, but what seems to be of most interest to law enforcement is location info.

In at least four investigations last year – cases of murder, sexual battery and even possible arson at the massive downtown fire in March 2017 – Raleigh police used search warrants to demand Google accounts not of specific suspects, but from any mobile devices that veered too close to the scene of a crime, according to a WRAL News review of court records. These warrants often prevent the technology giant for months from disclosing information about the searches not just to potential suspects, but to any users swept up in the search.

The good news is there are warrants in play. This likely isn't due to the PD's interest in "balancing civil rights with public safety," no matter what the government's frontmouths have stated to the press. The WRAL report includes a warrant request containing a footnote indicating Google pushed back when the cops showed up with a subpoena demanding info on everyone who had been in the vicinity of a crime scene.

The State of North Carolina maintains that the information sought herein consists entirely of "record[s]" other than the "content of communications…" Such records, require only a showing that there are reasonable grounds to believe the information sought is relevant and material to an ongoing criminal investigation… Despite this, Google has indicated that it believes a search warrant, and not a court order, is required to obtain the location data sought in this application. Although the Government disagrees with Google's position, because there is probable cause to believe the information sought herein will contain evidence of the criminal offenses specified in this affidavit, the Government is seeking a search warrant in this case.

But the bad news is that warrants are supposed to be tailored to specific searches related to specific suspects. These warrants are allowing law enforcement to obtain information on dozens or hundreds of people entirely unrelated to the criminal act being investigated, other than their proximity to the crime scene.

At least 19 search warrants issued by law enforcement in Wake County since 2015 targeted specific Google accounts of known suspects, court documents show.

But the March search warrants in the two homicide cases are after something different.

The demands Raleigh police issued for Google data described a 17-acre area that included both homes and businesses. In the Efobi homicide case, the cordon included dozens of units in the Washington Terrace complex near St. Augustine's University.

Cellphones -- and any other devices using Google products that serve up location info -- are steady generators of third party records. Conceivably, this puts a wealth of location info only a subpoena's-length away from the government. It appears Google is pushing back, but that tactic isn't going to work in every case. The Raleigh PD may have been willing to oblige Google to avoid a fight in court (and the risk of handing over information about how often it approaches third parties for records and what it demands from them), but not every PD making use of Google's location info stash is going to back down this easily.

Other warrants obtained by WRAL show local law enforcement has collected phone info and location data on thousands of people while investigating such crimes as arson and sexual battery. Despite having no evidence showing the perpetrators of these crimes even had a cellphone in their possession at the time the incidents occurred, agencies approached Google with judge-approved warrants to collect data on people living in nearby apartment units or visiting local businesses near the crime scene.

The government's attorneys believe everything is perfectly fine because no communications or other content is collected. But defense attorneys and rights advocates point out these warrants approach civil liberties from entirely the wrong direction, making everyone in the area a suspect before trimming down the list. In one way, it's a lot like canvassing a neighborhood looking for a suspect. But this analogy only holds if everyone officers approach is viewed as a suspect. This isn't the case in normal, non-Google-based investigations.

After five years as a Wake County prosecutor, Raleigh defense attorney Steven Saad said he's familiar with police demands for Google account data or cell tower records on a named suspect. But these area-based search warrants were new to him.

"This is almost the opposite technique, where they get a search warrant in the hopes of finding somebody later to follow or investigate," Saad said. "It's really hard to say that complies with most of the search warrant or probable cause rules that we've got around the country."

The Wake County District Attorney believes these warrants are solid enough to survive a challenge in court. The government may get its wish. Officers using these to obtain data will likely come out alright, thanks to good faith reliance on approved warrants, but the magistrates approving dragnet collection as an initial investigatory step may have some explaining to do.

The DA says it's just like watching business surveillance video when investigating a robbery. Lots of non-criminals will be captured on tape and their movements observed by officers. But the comparison fails because, in most cases, the criminal act will be caught on tape, limiting further investigation to the perpetrators seen by officers. In these cases, everyone with a cellphone within a certain distance of crime scene becomes a suspect whose movements are tracked post facto by officers who have no idea -- much less actual probable cause to believe -- that any of this data actually points to the suspect they're seeking.

Then there's the problem of effectiveness. Starting an investigation with a geofence and attempting to turn it into a bottleneck that will result in pursuable suspects doesn't seem to be working. According to the documents seen by WRAL, only one person has been arrested for any of the crimes in which police approached Google for data on thousands of users. And in that case, the location data law enforcement requested didn't show up until months after the suspect was charged. It may be there have been more success stories, but routine sealing of documents and warrants tends to make it impossible for anyone outside of the police department to know for sure. But the department knows. And if it has good things to say about this questionable search technique, it hasn't offered to share them with the rest of the public.

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Posted on Techdirt - 19 March 2018 @ 11:57am

The Future The FBI Wants: Secure Phones For Criminals, Broken Encryption For Everyone Else

from the safety's-just-another-word-for-nothing-left-to-lose dept

The old truism is in play again with the FBI's renewed CryptoWar: if X is outlawed, only criminals will have X. In this case, it's secure encryption. The FBI may not be trying to get encryption banned, but it does want it weakened. No backdoors, claims FBI director Chris Wray, just holes for the government to use at its pleasure. So, if the FBI gets it way, the only truly secure encryption will be in the hands of criminals… exactly the sort of people the FBI claims it needs weakened encryption to catch.

For years, a slew of shadowy companies have sold so-called encrypted phones, custom BlackBerry or Android devices that sometimes have the camera and microphone removed and only send secure messages through private networks. Several of those firms allegedly cater primarily for criminal organizations.

Now, the FBI has arrested the owner of one of the most established companies, Phantom Secure, as part of a complex law enforcement operation, according to court records and sources familiar with the matter.

Phantom makes phones solely for criminals, unlike Apple or Android manufacturers, who only have a certain percentage of criminals in their userbases. All of these companies may provide the protection of encryption, but only one actively targets a criminal market. Encryption protects everyone, not just criminals, but that fact is usually paved over with subtle-as-10-tons-of-asphalt comments from the FBI director while portraying the FBI as the nation's white knight and cell phone manufacturers as profit-driven sociopaths.

These companies marketing directly to criminals do more to protect data and communications than vanilla smartphones. Remote wipe capability is built in. Often, cameras and microphones are removed, along with GPS software/hardware. It's more security than most people need, but then again, most people aren't cartel members.

The thing is, the FBI director doesn't care if you're law-abiding. He wants your encryption options limited and weakened so the contents can be accessed. This makes your smartphone more susceptible to being accessed by criminals, rather than just G-men. And these criminals accessing your phone will probably have phones the FBI can't even access, even with backdoors or key escrow or easily-cracked encryption. Chris Wray claims this is all about public safety, but he's willing to make the public less safe to gain the access he wants.

While I understand the concern of the inability to access evidence, the fact remains no solution involving compromised encryption will make the public safer. And while I understand the concern, the concern itself is overstated and accompanied by smoke-and-mirrors presentations. The FBI points to stacks of locked phones, but says nothing about the many tools at its disposal: phone-cracking companies, judges, contempt charges, good old fashioned consent requests, or whether all cases involving these phones remain at a standstill. The FBI does not argue in good faith, and the access it wants can only be had by sacrificing the security and safety of law-abiding citizens.

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Posted on Techdirt - 16 March 2018 @ 3:50pm

Leaked Documents Expose NYPD's Long-Running Lack Of Officer Discipline

from the having-had-it-stuck-to-him,-The-Man-retreats-uneasily dept

Buzzfeed has obtained files the NYPD never wanted the public to see. This isn't the result of a protracted public records battle, but rather the work of an anonymous whistleblower. Presumably, those further up the chain of command are already familiar with the department's disinterest in holding officers accountable, so there's no whistleblowing outlet there. Also, presumably, the Civilian Complaint Review Board's hands are tied and it cannot hand out disciplinary reports for officers never formally disciplined. So, leak it is. And what a leak it is.

Secret files obtained by BuzzFeed News reveal that from 2011 to 2015 at least 319 New York Police Department employees who committed offenses serious enough to merit firing were allowed to keep their jobs.

Many of the officers lied, cheated, stole, or assaulted New York City residents. At least fifty employees lied on official reports, under oath, or during an internal affairs investigation. Thirty-eight were found guilty by a police tribunal of excessive force, getting into a fight, or firing their gun unnecessarily. Fifty-seven were guilty of driving under the influence. Seventy-one were guilty of ticket-fixing. One officer, Jarrett Dill, threatened to kill someone. Another, Roberson Tunis, sexually harassed and inappropriately touched a fellow officer. Some were guilty of lesser offenses, like mouthing off to a supervisor.

At least two dozen of these employees worked in schools. Andrew Bailey was found guilty of touching a female student on the thigh and kissing her on the cheek while she was sitting in his car. In a school parking lot, while he was supposed to be on duty, Lester Robinson kissed a woman, removed his shirt, and began to remove his pants. And Juan Garcia, while off duty, illegally sold prescription medication to an undercover officer.

In every instance, the police commissioner, who has final authority in disciplinary decisions, assigned these officers to “dismissal probation,” a penalty with few practical consequences. The officer continues to do their job at their usual salary. They may get less overtime and won’t be promoted during that period, which usually lasts a year. When the year is over, so is the probation.

There's an NYPD Snowden out there somewhere, exposing the dirty non-secret that is the continued lack of accountability within the largest police force in the nation. New York's Finest, the NYPD calls itself, ignoring the fact that it does almost nothing to ensure it's only staffed with the finest human beings.

Sure, 319 out of 40,000 officers is only a small percentage, but there's nothing in Buzzfeed's blockbuster article that indicates what it's seen is all that's available. What it has seen is only a small part of a larger whole. These are the probation files, which don't include officers dismissed. Add that to the mix and the total rises to over 1,400 officers caught breaking laws and policies -- many of which were allowed to resign while charges were still pending, keeping their records clean and their pension plans intact.

This exposé of kid glove treatment for repeat offenders contains this PR-friendly statement from the deputy commissioner of the office charged with handling internal disciplinary issues. Kevin Richardson, speaking on behalf of the job he's failing to do, made assertions clearly contradicted by the documents in Buzzfeed's possession.

“The department is not interested in terminating officers that don't need to be terminated. We're interested in keeping employees and making our employees obey the rules and do the right thing,” he told BuzzFeed News. “But where there are failings that we realize this person should be separated from the department, this police commissioner and the prior police commissioner have shown a willingness to do that.”

From what's being reported here, "separating" someone from the department is a last resort. And when it is done, it's often done in a way that allows bad officers to move on to other police departments or sit at home collecting a pension for a job well poorly done. Richardson is in denial, but at least he's a bit more reasonable than the Patrolmen's Benevolent Association.

Al O’Leary, a spokesperson for the Patrolmen’s Benevolent Association, the largest police union representing NYPD officers, had a different message: “We’re not going to talk to you about anything negative as far as any of our officers.”

Well, if you won't, others will. Burying your head in the filthy sand doesn't make the problem go away. And it certainly doesn't put an entity willing to stand up for any officer, no matter how egregious their misconduct, in a better light.

Case in point: Officer Raymond Marrero. Marrero is still employed by the NYPD despite being named in four serious complaints in his first six years and racking up $900,000 of lawsuit settlements. This colorful story is just one of Marrero's many abusive escapades.

[I]n early 2009, a former police department volunteer named Louis Deluca confronted a man who, Deluca found out, had groped his brother’s 17-year-old girlfriend. The man took off with his friends, just as Marrero was pulling up. “I was telling him, 'There's some guys that groped a family member of mine,’” Deluca said. “‘They're right around the corner.’”

Marrero and his partner told Deluca to shut up, Deluca said. Incredulous, Deluca called Marrero a cunt. The officers pushed him to the ground and arrested him, according to a lawsuit Deluca later filed.

Back at the precinct, as Deluca was being taken out of the car, Marrero struck him with his police baton, opening up a gash on the top of his head. Another officer said there was so much blood, they had to clean it up with a mop. It took 12 staples at the hospital to close the wound.

In a deposition, Deluca said Marrero told him “You can’t disrespect us in the street like that.” Deluca received a $398,000 settlement, of which Marrero was ordered to pay $4,000.

Marrero pled guilty to several internal charges during this six-year period, including deploying excessive force and lying to department investigators. Despite this, Commissioner Ray Kelly felt Marrero still added value to the force. He was placed on probation and lost 45 vacation days, but was never terminated or asked to resign. An outside commission on police corruption reviewed these files and suggested Marrero be fired, as he "lacked the temperament necessary to be a police officer." This suggestion was ignored.

There's nothing about local laws or NYPD policies that encourage any sort of positive change. The NYPD says local laws allow it to withhold disciplinary records from the public. Disciplinary trials for officers are open to the public… so to speak. They're held without prior announcement of schedules or locations. They're presided over by a police official appointed by the NYPD Commissioner, rather than a neutral adjudicator. And if a top cop decides an accused cop should be terminated, the Commissioner can overturn the ruling. (And even if the Commissioner allowed the discipline to stay in place, there's a good chance the PBA would get the ruling overturned.)

A closed disciplinary does no favors for the public. Unsurprisingly, it does no favors for police officers, either. Bad cops become worse cops as no one's willing to engage in serious deterrence and the system itself is often used to retaliate against good cops who blow the whistle on bad behavior or sue the department for discriminatory practices. Ultimately, no one's accountable to anyone, despite everyone involved being a public servant.

This leak will likely provoke some changes within the department, but with zero oversight, the positive changes likely won't last. My money's on an internal investigation into the leak being the largest expenditure of time and effort as a result of this exposé.

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Posted on Techdirt - 16 March 2018 @ 12:05pm

Federal Judges Says ATF Stash House Stings Are Useless And Ugly

from the in-which-the-ATF-is-informed-its-baby-is-neither-cute-nor-likable dept

A chief federal judge in Chicago has handed down a scathing opinion calling ATF stash house stings an "ends justifies the means" evil that needs to be "relegated to the dark corridors of our past." The opinion shuts the door on two defendants hoping to show the ATF's fake robberies of fake stash houses filled with fake drugs were racially-biased, but it does show even without the taint of bias, the sting operations are exploitative and useless. (via Brad Heath)

The opinion [PDF] has nothing good to say about the stash house stings. It opens with numbers that certainly appear to show racial bias and it doesn't let up from there.

It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District's adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent White. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law cannot be tolerated during these difficult times. It is time for false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.


Our society simply cannot accept a "win at all costs" mentality in the delicate world of law enforcement, which is ultimately dependent on proactive citizen involvement.

The judge then goes on to speak about the valuable work of taking firearms off the streets, but says that this job cannot, and should not, be performed through bogus sting operations -- even in an era where gun violence is seemingly more prevalent. Even when violence against citizens and (especially) law enforcement was at its peak nearly 100 years ago, the ATF never stooped to using complete bullshit to secure a steady stream of criminal defendants.

[E]ven during the low points of the great violence caused by the alcohol wars of Prohibition, the ATP did not seek to use "false alcohol warehouse" tactics against any ethnic organized crime groups to promote public safety. Instead, the ATP used solid investigative work to garner the great public respect of the Elliot Ness era that still lives today as the gold standard of law enforcement. This type of work inspires great public cooperation with law enforcement, unlike the false drug stash house cases before the Court.

Judge Ruben Castillo notes that many ATF sting cases -- like the two before him -- operate under the theory that roping in otherwise uninvolved citizens will somehow result in the seizure of illegal weapons. Some cases, obviously, do result in weapons being taken off the streets. Far more often, the only thing taken off the streets are people with little in the way of criminal records or cash, talked into taking down a fake stash house for a cut of a completely fabricated drugs and money. The fake amounts of drugs in the fake stash house are used to determine sentence lengths, with the ATF asserting -- without exception -- that the quantity of make-believe drugs discussed with sting victims is enough to trigger 20-year minimum sentences.

The judge points out that the government is lucky he's only considering the issues raised by the defendants: alleged Fifth Amendment violations predicated on the apparent bias in the ATF's stash house sting operations. Much of the 73-page opinion discussed expert opinions based on studies of the underlying facts of a decade's-worth of stash house stings. Some evidence of discriminatory selection exists, but it's undercut by most DEA stings being predicated on tips from confidential informants. In other words, maybe CI's are bigoted, but the operations themselves are not, despite a large percentage of defendants being minorities.

The trials of these two defendants will continue. But the concerns expressed by the judge suggest the ATF is no longer welcome to bring stash house sting prosecutions into Judge Castillo's court. This is only one judge of hundreds in the federal system, but it's another federal judiciary voice to add to those who've already expressed concern, if not actual dismay, at the ATF's sting operations.

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Posted on Techdirt - 16 March 2018 @ 9:32am

UN Says Facebook Is Complicit In The Spread Of Anti-Muslim Hate In Myanmar

from the sort-of-right,-but-approaching-the-problem-the-wrong-way dept

The UN has decided it's possibly Facebook's fault things are going so badly in Myanmar. Muslims have been fleeing the country in droves thanks to Myanmar security forces engaging in widespread acts of violence (including rape) against them, urged on by hardline nationalist monks.

For all intents and purposes, Facebook is Myanmar's internet. Loosening of restrictions on social media access has resulted in a large portion of the population getting all their news (along with all the hate speech the UN is complaining about) via the social media giant. The UN is looking into genocide accusations but has decided to speak up against Facebook first.

Marzuki Darusman, chairman of the UN Independent International Fact-Finding Mission on Myanmar, told reporters that social media had played a “determining role” in Myanmar.

“It has … substantively contributed to the level of acrimony and dissension and conflict, if you will, within the public. Hate speech is certainly of course a part of that. As far as the Myanmar situation is concerned, social media is Facebook, and Facebook is social media,” he said.

The UN Myanmar investigator Yanghee Lee said Facebook was a huge part of public, civil and private life, and the government used it to disseminate information to the public.

When there's only one main pipeline of info, everything flows through it, whether it's the official government narrative or government-supported hate speech targeting Myanmar Muslims. The UN feels Facebook has contributed to the violence by not doing enough to remove hate speech.

If these are the UN's conclusions, it's severely late to the party. Last fall, The Daily Beast reported Facebook was instrumental in removing reports of anti-Muslim violence the Myanmar government didn't approve of.

Rohingya activists—in Burma and in Western countries—tell The Daily Beast that Facebook has been removing their posts documenting the ethnic cleansing of Rohingya people in Burma (also known as Myanmar). They said their accounts are frequently suspended or taken down.

The Rohingya people are a Muslim ethnic minority group in Burma. They face extraordinary persecution and violence from the Burmese military; military personnel torch villages, murder refugees, and force hundreds of thousands of people to flee their homes.

Facebook promised to do better after being confronted with this evidence. But it offered no good reason why activists' posts detailing government atrocities were frequently removed and the accounts posting them locked or suspended. The company did not specifically say whether or not it was responding to government requests for content removal, but its transparency report shows almost no activity related to Myanmar's government. If this was solely the result of horrendous judgment calls by Facebook moderators, the end result of its moderation efforts has been the loss of human lives.

Even as Muslims are being silenced, the Myanmar government has used Facebook to push its own narrative to a largely captive audience. Shuna Mia, a Rohingya man who spoke to reporters about government-backed rape and murder was found floating headless in a nearby river the following day. According to this Guardian report, the Myanmar government immediately began rewriting history using Facebook as its soapbox.

The day after Shuna was found dead, someone representing the state counsellor of Myanmar (Aung San Suu Kyi’s official title) posted a photo of a headless body on the office’s Facebook page, stamped with the words “Truth teller BEHEADED”. The post claimed Shuna had told the media that security forces had not committed rape or arson, and suggested he was killed by “Muslim insurgents” in retaliation. That directly contradicted local reports, activists and Shuna’s family, who believe he was abducted and beheaded by security forces for speaking to journalists.

This was just part of the government’s efforts to discredit Rohingya people. On the same day, the same Facebook account posted photos of Rohingya women who said they had been raped by security forces. The label “FAKE RAPE” dismissed the countless reports of sexual violence.

Facebook has always had issues with moderation. Its policies may seem internally consistent, but the way they play out in the messiness of everyday life leaves a lot to be desired. The content it removed may have somehow violated policies or local laws, but posts are apparently viewed in vacuum, removed from political and social context. This isn't necessarily an oversight by Facebook. It's merely reflective of the reality the company deals with: more than a billion users scattered across the globe, operating under a patchwork of speech laws that cannot be applied across all posts from all people.

But the end result of this impossible task is Facebook's inadvertent participation in the spread of anti-Muslim hate that is linked to suspected ethnic cleansing. Unfortunately, the UN's public criticism of Facebook isn't going to help. If Facebook sees more regulation or international pressure headed its way, it's likely to double-down on moderation, resulting in even more suppression of anti-government sentiment. It will get worse for Myanmar Muslims, thanks to Facebook's inadvertent stranglehold on news distribution.

This isn't to say no one should be speaking up about Facebook's contribution to an international problem. It's just that they shouldn't expect things to get better just because they're loudly complaining about it. The problem is the Myanmar government and that's where the UN should focus its efforts. Facebook's contribution is a symptom of the underlying problem, not a root cause.

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Posted on Techdirt - 15 March 2018 @ 3:36pm

Maryland Court System Arbitrarily Decides Public Should No Longer Have Access To Police Officers' Names

from the reverse-regulatory-capture dept

Supposedly completely of its own volition, Maryland's court system has decided to extend extra rights to law enforcement officers. Going to bat for opacity, the Maryland Judiciary has made it harder for the public to find out what officers are doing (or how often they're being sued). This comes against a backdrop where more sunlight would seem essential, what with several Baltimore police officers facing corruption charges in a wide-ranging investigation that has already netted a handful of convictions and guilty pleas.

Citing a favorite cop excuse, the state's courts have decided the public should be less informed.

Maryland’s Judiciary on Friday defended a decision to remove the names of police officers and other law enforcement authorities from the state’s searchable public online court database, saying the change was made in response to “safety concerns raised by law enforcement.”

The change took effect Thursday, following a decision by a judicial rules committee last June. Officers’ names no longer appear on cases they were involved with, and searches using an officer’s name cannot be performed.

The Judiciary claims this "balances" public access to court information with its "obligation" to protect officers from "potential misuse." It did not cite any actual misuse in defense of its position. Nor did it cite any support from law enforcement agencies or "safety concerns" raised by them. While the Anne Arundel County police admitted to lobbying for a change, all the department had asked for was the removal of first names, not removal of officers' names entirely.

Multiple law enforcement agencies contacted by The Baltimore Sun expressed their concern with the Judiciary's decision.

[T]he Maryland State Police said they had not lobbied for such a change, and the [Baltimore] Police Department said they did not agree with it.

A spokesman for Gov. Larry Hogan said: “Public information should be public. End of story.”


Baltimore police said they didn’t lobby for a change and “really don’t see why they got rid of what was already publicly available.”

“We use it too,” chief spokesman T.J. Smith said of the data.

Even more bizarrely, the Judiciary claims this removal only affects "remote access." Supposedly the names of officers can still be accessed by using local court kiosks. This makes no sense. Why would cops be "safer" if their names can only be accessed inside a local court? Wouldn't that make these (apparently imaginary) threats to officer safety much more proximate to the officers affected?

Beyond that, there's the fact that kiosk access is limited. Or, in the case of the Baltimore Circuit Court, kiosks are nonexistent. According to the Sun, the Baltimore court runs searches through an "archaic" computer system (not a kiosk) that does not provide the same search options as its online counterpart.

Local public defenders were unaware officer information was being removed, which seems to be a key oversight in the process. Public defenders are very much a part of the judicial process, yet they were never informed information they need on a daily basis would no longer be available. Already overworked, public defenders will now be forced to visit courts to access officer information and hope that court has kiosks that actually provide the search functions they need.

The Judiciary claims all of this was done in the open and with the consultation of stakeholders. This can't possibly be true since both law enforcement agencies and defense lawyers were apparently unaware of the change until The Baltimore Sun contacted them. The Judiciary's own paper trail suggests this was done under the radar with zero public debate about the rules change.

The committee’s annual report from last year shows that the change was made by eliminating a clause in the section “Access to Judicial Records,” which said, “Unless shielded by a protective order, the name, office address, office telephone number and office e-mail address, if any, relating to law enforcement officers, other public officials or employees acting in their official capacity, and expert witnesses, may be remotely accessible.”

It was unclear whether the change was debated — the rules committee has not posted minutes of its meetings since April 2016.

No one agrees with the Judiciary's change, which is probably why no one was consulted before the change was made. Everyone from city council members to state's attorney candidates to journalists find the change unwarranted, unhelpful, and a serious blow to trust-building efforts between law enforcement agencies and the communities they serve.

This unpopular move from the state judiciary suggests its members will show plenty of deference to law enforcement agencies and officers in the future. And it will continue to do so even when there's plenty of evidence out there showing officers are often untrustworthy, when not completely corrupt. It has a single reason for making this move -- officer safety -- but there's nothing in the judiciary's past that even suggests court records are being used to target police officers. Even local police departments release the names of officers involved in shootings and cases involving apparent excessive force. The Judiciary has decided to roll back transparency at the worst possible time, giving cops extra privileges they weren't even asking for and further damaging the public's trust in their public servants.

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Posted on Free Speech - 15 March 2018 @ 1:29pm

Censorship Creep Is Setting In As Social Media Companies Try To Stay Ahead Of European Lawmakers

from the all-the-speech-you-want,-except-maybe-far-less-than-that,-actually dept

Law professor Danielle Citron -- best known at Techdirt for her attacks on Section 230 immunity -- has written a paper attacking Google, Facebook, etc., but not for the reasons you might think. Her paper [PDF] points out policy changes that have been made by several tech companies not in response to users or US government activity, but to get out ahead of increasing regulatory pressure in Europe. In the recent past, these platforms routinely defended the rights of everyone around the world to engage in free speech, even if that meant offending local governments. Now, with the internet headed towards enforced Balkanization backed by hefty fines, US companies are now routinely engaging in preemptive censorship of content perfectly legal in the US (and arguably legal elsewhere).

More recently, social media companies have revised their speech policies concerning extremist and hateful expression. Unlike previous changes, however, these revisions were not the result of market forces. They were not made to accommodate the wishes of advertisers and advocates. Instead, they were adopted to stave off threatened European regulation. After terrorist attacks in Paris and Brussels in late 2015, European regulators excoriated tech companies for failing to combat terrorist recruitment on their platforms. Their message was clear: online platforms would face onerous civil and criminal penalties unless their policies and processes resulted in the rapid removal of extremist speech.

As Citron points out, much of the content being taken down by Google and others isn't even illegal under more extreme speech laws passed in European nations. The laws written in response to tragedies have managed to turn social media platforms into tools of government oppression.

All of this might enjoy some justification if EU regulators focused their efforts on speech proscribed in their countries. But this has not been the case. Calls to remove hate speech have quickly ballooned to cover expression that does not violate existing European law, including “online radicalization” and “fake news.” EU officials have pressed a view of hate speech that can be extended to political dissent and newsworthy developments. At risk is censorship creep on a global scale.

Companies headquartered in the nation with the most free speech protections are turning their back on protecting free speech. Overblown fears of radicalization have resulted in the removal of content with inherent journalistic value (not to mention possible investigative value) and efforts to clamp down on something no one can seem to define ("fake news") is turning American companies against American values. While there is something to be said about taking steps to prevent the spread of terrorism, the attack on "fake news" presents a real threat to free speech, when all that's at stake there is the careers of politicians and their spin doctors.

The paper notes that it isn't just current laws forcing this change. It's the threat of even more direct regulation of internet service providers. To head off more draconian measures, platforms are trying to guess what lawmakers might find offensive, often aided by moderation-via-heckler's-veto: policing content reported by users. The results have already been disastrous, turning European regulation of speech into darkly-comic embarrassments.

What's being targeted by these haphazard efforts are topics of conversation where more speech, rather than less, would be extraordinarily useful. Terrorism is worldwide problem but a bunch of memory-holing isn't going to make it go away. Convincing those inclined to radicalization to step away from the precipice takes social interaction, as much of it public as possible. If nothing else, a social media paper trail can help track down those who've decided to do harm to others.

The same goes for "fake news." It needs fact-checking, debunking, and rebuttals. Simply making it vanish only further convinces those already swayed by fake news that the content of removed articles must be so full of truth, the government/Big Tech/George Soros paid to have it deleted from the public consciousness. Efforts like these breed conspiracy theorists, rather than deter them.

And it's not just about what's already happening, no matter how disturbing that is. It's what will happen if tech companies don't reverse course and stop acquiescing to every request to engage in further content moderation. Mission creep will set in, pushed along by legislators who'd like to see all sorts of speech they don't like removed from the internet.

Without clear guidelines and specific examples, vague terms are vulnerable to revision and expansion. Consider the Code’s definition of “illegal hate speech”: speech inciting violence or hatred against a group or a member of such a group based on race, religion, national, or ethnic origin. Inciting hatred against a group is an ambiguous concept. It could be interpreted to cover speech widely understood as hateful, such as describing members of a religious group as vermin responsible for crime and disease. But it could also be understood as covering speech that many would characterize as newsworthy. Given the term’s ambiguity, incitement of hatred could extend to criticism of Catholics for covering up priests’ sexual exploitation of children. It could be interpreted as applying to speech challenging Islamic fundamentalism for its homophobia or suppression of women. It could be extended to speech exposing hatred faced by racial minorities.

The lawmakers who've set this system in motion can't be trusted to rein it in before it causes real damage. As Citron notes, they haven't been honest and open about their intentions to this point. There's no reason to believe honesty and transparency are just over the horizon.

Despite the protestations of EU regulators, they are neither voluntary nor the product of meaningful public-private partnerships. Instead, they are the result of government coercion occurring outside the rule of law. What is different about the pressure from states now is that it has brought about changes that risk worldwide censorship creep. Because governments are using terms of service to achieve their ends, the resulting suppression of speech will be global.

The internet is the world's greatest communications tool. It's no wonder so many governments seek to control it. That part isn't surprising. What is both surprising and horrifying is how accommodating major platforms have become. While it's understandable they're uninterested in losing large numbers of users in other countries, they've made decisions to block or delete content that isn't illegal in many of the countries affected by these moderation efforts. What is blocked as "clear" violations of some country's law isn't so clear when given a second look. Even the most heinous terrorism-related posting has value outside of its recruitment drive purpose. The public deserves to know what's being done to humans around the world in the name of major religions.

Hate speech -- something nearly as poorly defined as "fake news" -- has its own value, although little of it is in the words said. It helps those targeted identify possibly dangerous bigots. It lets everyone else know how little value this person adds to a discussion. If it's deleted and its purveyors' accounts suspended, it only serves to harden their hatred and inflate their perception of themselves. Instead of being ignorant and useless, they'll feel they threaten the status quo with the powerful truths, hence the censorship and "persecution" by powerful corporations and governments.

More speech is always better than less speech. But the snowballs rolling downhill from Google, Facebook, and Twitter are gathering speed. And those who feel the only speech worth protecting is speech they like are winning, in some cases without even having to lift a legislative finger.

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Posted on Techdirt - 15 March 2018 @ 3:22am

Clock Runs Out On Perjury Charges For James Clapper, Ensuring He Won't Be Punished For Lying To Congress

from the skating-by-on-DOJ-indifference dept

It almost seems like half a lifetime ago, but only a half-decade has passed since James Clapper lied to Ron Wyden about the NSA's domestic collections. Wyden pointedly asked Clapper during an intelligence committee hearing whether or not the NSA was collecting "any type of data at all" on American citizens. Clapper gave two answers, both untrue: "No, sir" and "Not wittingly."

A couple of months later, the first Snowden leak -- detailing massive amounts of call data being captured in the Section 215 dragnet -- undid Clapper's careful, under-oath lies. Since then, nothing has happened. The DOJ refused to investigate Clapper for lying to his oversight. Clapper exited office a few years later, becoming a go-to national security expert for a variety of news programs. He has since offered a variety of excuses for lying, but none of them are particularly good.

As of March 12, the clock has run on perjury charges. James Clapper has violated federal law and gotten away with it.

Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in March 2013, and offered differing explanations for why.

Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.

Some members of Congress had called for charges to be brought against Clapper, but they seemed based more on Republicans' newfound distrust for the "Deep State" than an honest desire to see a federal lawbreaker brought to justice. One of the reps, however, has held steady in his calls for Clapper's prosecution for the entirety of the last half-decade: James Sensenbrenner.

"Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.

Both the DOJ and James Clapper have refused to comment on the issue. Presumably, both entities are happy the deadline came and went without further development. The "no comment" responses allow both to avoid discussion of the DOJ double standards. But this non-prosecution shouldn't pass without notice.

Jesselyn Radack, a defense attorney who represents Snowden and fellow NSA whistleblower Thomas Drake, however, takes a dim view of Clapper being let off the hook.

“It shows that government officials in positions of power can lie with impunity to Congress and the American people about outrageous abuses, but when ordinary citizens like Reality Winner reveal the truth about the same abuses, they face espionage charges and prison," Radack said, referring to the NSA contractor charged last year for sending the Intercept a report on Russian attempts to hack election systems.

Most people who lie to Congress won't have the luxury of exiting their current positions gracefully before popping in cable newsrooms all over the nation. But Clapper is one of the special ones -- the ones who won't be held accountable because the government takes care of its own, especially when dubious, Congress-approved surveillance programs are in the mix.

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Posted on Techdirt - 14 March 2018 @ 3:43pm

Police Department With Eight Full-Time Officers Acquired 31 Military Vehicles Thru DoD's Surplus Program

from the closing-in-on-a-half-million-in-military-surplus-per-officer dept

The Defense Department's 1033 program has allowed law enforcement to muddy the water on the distinction between police force and military force. Given the right reasoning (most commonly cited: Wars on Terror/Drugs), police departments are allowed to pick up surplus military gear, often for free (utilizing DHS grants) and start pretending they're an occupying force, rather than public servants.

This came to a head following protests in Ferguson, Missouri, where viewers around the world were treated to the sight of local law enforcement rolling up on residents in mine-resistant vehicles while clad in gear that made officers look far more like soldiers than cops. This prompted a rollback of the 1033 program by Obama, limiting the sort of gear police departments could obtain to more innocuous surplus, like computers and furniture.

That has since changed. President Trump, showing his support for all things law enforcement, rolled back Obama's rollback, giving police departments access to assault vehicles and military weapons. With this comes a rollback in trust, as it has been shown giving military gear to cops makes them believe they're soldiers in a war zone, rather than public servants in a community.

Not everyone abuses this program, but those that do, do so spectacularly. An 11-member police force for a Delaware town with 400 residents has availed itself of more than $3 million in 1033 gear over the last five years. This first came to light late last year when documents obtained by Muckrock prompted town officials to wonder why they hadn't been notified of the department's stockpile.

When asked if the Dewey PD could account for all of the items by providing the physical location of items in their possession and paper trails for items sold, Sgt. Cliff Dempsey said, “We’re not going to comment on that matter at this time.”

On the agenda for a Nov. 11 Dewey Beach commissioners’ meeting is the discussion of three options for to the 1033 program:

1. require the DBPD to provide complete accounting for property received through any federal or surplus property program,

2. accept a recommendation from the town’s audit committee to utilize the town’s auditors, or

3. hire an independent consultant to conduct a more comprehensive review.

Some of the military equipment can be located. A recent report by the Milford Beacon contains a photo showing five military trucks and two ATVs parked in the department's storage lot. But that is only a small part of the Dewey PD's total holdings.

[A]mong hundreds of line items turned over between March 2013 and December 2017, the police acquired a total of 12 ATVs, 51 jackets or parkas and 13 space heaters, and 19 trucks of all kinds.

Dewey’s department has just eight full-time and three part-time officers, the town population is less than 400 people and the town itself is a just mile long and two blocks wide.

This includes a mine-resistant armored car and an armored Humvee -- all to oversee 400 people residing in a one-mile, two-block stretch. The justifications for even the more innocuous acquisitions are questionable, if not downright laughable. As the Beacon points out, the Dewey PD requested boats for water rescues, something already handled by a separate beach patrol and the Coast Guard. ATVs were supposedly handed to the department for something termed "homeland security patrols."

Many items were obtained to support the PD's private shooting range, including multiple tractors to shore up backstop berms and parkas to wear on colder days. The location of the range is kept secret by the department and the town was not (knowingly) involved in financing its construction. This secret range is mentioned more than 50 times in the PD's 1033 requests.

Despite this news surfacing last November, town commissioners have yet to receive any answers from the department it apparently can't oversee.

At their Feb. 10 meeting, Commissioner Gary Persinger lamented, “We’re three months down the road and we don’t have information in response to that request.”

As of March 1, [Mayor T.J.] Redefer said had not yet been privy to the departmental justifications of need.

On top of this, the department has apparently been selling some of the surplus it has received. Certain sales are permitted by federal law, but there has been no reporting by the police department detailing the amount of money received or what is being done with the funds. The extensive list of items obtained makes it appear the Dewey PD has stocked and furnished its office at federal taxpayers' expense while avoiding any sort of local accountability.

All of this is legal under state and federal law. In Delaware, law enforcement agencies aren't required to notify local governments about 1033 acquisitions and sales. And so they don't, apparently, even though it would make more sense in the long run to be upfront about it. When details about acquired military equipment remain solely in the hands of law enforcement recipients, the general assumption is something is being abused. After all, if you've done nothing wrong, you've got nothing to hide, right? But as is so often the case, details are uncovered years after the fact and often by unrelated third parties who apparently care more about police oversight than the local governments charged with overseeing their law enforcement agencies.

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Posted on Techdirt - 14 March 2018 @ 10:41am

Judge Says Yahoo Still On The Hook For Multiple Claims Related To Three Billion Compromised Email Accounts

from the if-you-don't-fix-the-front,-you'll-be-paying-on-the-back-end dept

A federal judge is going to let a bunch of people keep suing Yahoo over its three-year run of continual compromise. Yahoo had hoped to get the class action suit tossed, stating that it had engaged in "unending" efforts to thwart attacks, but apparently it just wasn't good enough to prevent every single one of its three billion email accounts from falling into the hands of hackers.

In a decision on Friday night, U.S. District Judge Lucy Koh in San Jose, California rejected a bid by Verizon Communications Inc, which bought Yahoo’s Internet business last June, to dismiss many claims, including for negligence and breach of contract.

Koh dismissed some other claims. She had previously denied Yahoo’s bid to dismiss some unfair competition claims.

Yahoo was accused of being too slow to disclose three data breaches that occurred from 2013 and 2016, increasing users’ risk of identity theft and requiring them to spend money on credit freeze, monitoring and other protection services.

Three billion is a lot of potential class-mates, even though many Yahoos users had moved on to more viable/useful services long before the breach began. That being said, password reuse is common. So is the tendency to have the same user name in place across several platforms. And, needless to say, personally identifiable info stays the same, no matter what platform Yahoo's former users have strayed to.

The complaint -- amended again after news broke that Yahoo's entire user base had been compromised -- notes that Yahoo's "unending" efforts were routinely terrible, if not practically nonexistent. The suit points out multiple Yahoo hosts were compromised in 2008 and 2009. The next year, Google notified Yahoo that its systems were being used to attack Google. And in 2012, Yahoo suffered two breaches, including one stemming from a SQL injection attack that revealed the company unendingly stored passwords in plain text.

A couple of claims have been dismissed but the most damaging -- negligence -- remains. The plaintiffs so far have presented plenty of evidence that Yahoo handled users' PII extremely carelessly. From the decision [PDF]:

First, the contract entered into between the parties related to email services for Plaintiffs. Plaintiffs were required to turn over their PII to Defendants and did so with the understanding that Defendants would adequately protect Plaintiffs’ PII and inform Plaintiffs of breaches. Second, it was plainly foreseeable that Plaintiffs would suffer injury if Defendants did not adequately protect the PII. Third, the FAC asserts that hackers were able to gain access to the PII and that Defendants did not promptly notify Plaintiffs, thereby causing injury to Plaintiffs. Fourth, the injury was allegedly suffered exactly because Defendants provided inadequate security and knew that their system was insufficient. Fifth, Defendants “knew their data security was inadequate” and that “they [did not] have the tools to detect and document intrusions or exfiltration of PII.” “Defendants are morally culpable, given their repeated security breaches, wholly inadequate safeguards, and refusal to notify Plaintiffs . . . of breaches or security vulnerabilities.” Id. Sixth, and finally, Defendants’ concealment of their knowledge and failure to adequately protect Plaintiffs’ PII implicates the consumer data protection concerns expressed in California statutes, such as the CRA and CLRA.

Yahoo also has to keep fighting "deceit by concealment" allegations stemming from its delayed reporting of known security breaches.

Defendants also criticize Plaintiffs for continuing to use Yahoo Mail and taking no remedial actions after learning of Defendants’ allegedly inadequate security. However, Defendants fail to acknowledge that Defendants’ delayed disclosures are likely to have harmed Plaintiffs in the interim. Plaintiffs did not even know that they should take any remedial actions during the periods of Defendants’ delayed disclosures. Moreover, contrary to Defendants’ suggestion, the actions that Plaintiffs took after the fact do not conclusively determine what actions they would have taken if they had been alerted before the fact. The FAC provides at least one good reason why Plaintiffs may not have ceased their use of Yahoo Mail after the fact—namely, Plaintiffs have already established their “digital identities around Yahoo Mail.” Plaintiffs can consistently plead that they took minimal or no action after learning of the security defects but that they “would have taken measures to protect themselves” if they had been informed beforehand.

In total, Yahoo is still on the hook for 9 of 15 allegations related to the massive security breach. And it has no one to blame but itself if new owner Verizon ends up shelling out for damages. Yahoo's terrible security had been a problem for a half-decade before the 2013 breach. Three years later, it became clear everything Yahoo had collected on three billion email accounts was now in the hands of other people. This long line of breaches show Yahoo was very interested in increasing its user base, but much less motivated to protect their info.

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Posted on Techdirt - 14 March 2018 @ 3:23am

Trump Administration Wants To Start Sending Secret Service Agents To Polling Stations

from the Make-America-Grovel-Again dept

Something pretty ugly has been attached as a rider to a routine reauthorization bill. If the bill manages to move forward without this being stripped, future elections would resemble those held by dictatorial governments, where the outcome is assured before the first voter is even intimidated.

President Trump would be able to dispatch Secret Service agents to polling places nationwide during a federal election, a vast expansion of executive authority, if a provision in a Homeland Security reauthorization bill remains intact.

This appears to be the result of Trump's continued insistence he would have won the popular vote if there hadn't been so many illegal votes. Of course, the administration has produced no evidence this happened in the last election. The only story that surfaced as a result of this post-election scrutiny was one involving someone who voted twice… for Trump.

Needless to say, state officials overseeing elections are horrified. The intrusion of the law enforcement branch that works closest with the president would give elections the appearance that Secret Service agents are there to prevent voters from voting for the wrong person. Given Trump's antipathy towards anyone that isn't white with a red hat, dispatched agents would certainly deter those not matching the chosen description from exercising their rights.

State officials are trying to get the attention of unwary Capitol Hill legislators before it's too late. The bill with the rider attached has already passed in the House. The Senate is still looking through its two versions of the reauthorization bill -- one with the rider attached and one that's arguably more respectful of voting rights and the citizens exercising them.

“There is no discernible need for federal secret service agents to intrude, at the direction of the president, who may also be a candidate in that election, into thousands of citadels where democracy is enshrined,” according to a letter opposing the provision that was signed by 19 bipartisan secretaries of state and elections commissioners.

The letter — sent to the Senate’s majority leader, Mitch McConnell, and its minority leader, Charles Schumer, on Friday afternoon —requests that the Senate keep the Secret Service provision from the final legislation. The elections officials described the proposal as “unprecedented and shocking.”

“This is an alarming proposal which raises the possibility that armed federal agents will be patrolling neighborhood precincts and vote centers,” according to the letter, which was obtained by the Globe.

Very few people are going to see the presence of federal agents -- especially from an agency with close ties to the White House -- and think a fair election is in progress. The presence of any federal agents would be cause for concern, if not for the integrity of the election, than for the safety of those voting. Generally, a large law enforcement presence does not indicate safety. It indicates the area they're guarding may come under attack. Either way, this will do nothing for voter turnout and will definitely dissuade those who aren't voting for the party in power from casting their vote.

As it stands now, federal law prohibits federal agents for entering polling places. This rider would eliminate a protection put in place to protect Americans from government intrusion into the democratic process. Dispatching the Secret Service to any place Trump feels might be overrun with fake voters would only give citizens the impression the fix is in. And if it's already been decided, why bother running a federal gauntlet just to show support for your candidates?

Hopefully, common sense will prevail. But given the fact the rider was already approved by one half of legislative branch, relying on common sense seems almost nonsensical.

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Posted on Techdirt - 13 March 2018 @ 10:51am

Iowa Town Threatens Critical Resident With A Lawsuit, Gets Sued By The ACLU Instead

from the First-Amendment-For-(Government)-Dummies dept

A small town in Iowa has decided one of its residents has too much First Amendment. Boldly marching forward in the face of mild criticism, Sibley's government had its lawyer threaten a local man with a lawsuit if he didn't take down or alter his website that criticized the town government for its repeated failure to address a serious problem in the town.

Sibley has less than 3,000 residents but it is the home to a large animal byproduct processing plant. Iowa Drying and Processing went into operation five years ago. Unaffectionately nicknamed the "Blood Plant," IDP's operations were the subject of complaints due to the pervasive foul odor emanating from it.

Local programmer Jeremy Harms set up a website advising people to stay away from Sibley after repeated calls for action were met with a lot of doing nothing by city politicians. His website previously answered the question about relocating to Sibley with "No." Thanks to the city's legal threats, the answer has been upgraded to "Maybe." In addition to pulling his hard "no," Sibley also amended his original post to reflect the few positives the town has.

After his website went locally viral (2,000 hits from a town with less than 3,000 residents), the government decided to act. It didn't approach the Blood Plant about taming the fumes. Instead, it sent a letter to Harms threatening him with a lawsuit if he didn't stop criticizing the town and its government. On top of that, the city's attorney (Daniel Dekoter) ordered Harms to stop talking to the press. These dubious demands were backed by a dubious interpretation of state law.

The Jan. 18 letter stated the original content of was disparaging property in Sibley, which led to a reduction in taxable value of the property. It also stated Iowa recognizes a type of lawsuit called “slander of title,” which involves the disparagement of real estate. The letter stated Harms displayed malice by the fact that he renewed the domain name registration of his website, despite progress being made with the smells, that he chose a website name that would target people interested in moving to Sibley and that he claimed the information was current when it was false.

“In short, that line of reasoning was the legal and factual basis for the threat of litigation,” DeKoter wrote. “I am writing on my own time to explain this, since you or the lawyer you consulted apparently did not view the legal issues from the same perspective that I did.


The letter continued that Harms was within his legal rights to publish the website in its current, altered form, but the opinion of DeKoter is that Harms would do better spending time doing something more helpful to the community of Sibley.

It's a hell of law to cite when engaging in censorship and prior restraint. Good luck getting that one to hold up in court. The law requires false statements and malice, and nothing Harms published even comes close to that. Considering there's press coverage confirming several residents' complaints about the odor of the plant, the basis for the statements made on Harms' website seem very truthful and not published with a reckless disregard for the truth. It takes more than the potential to drive away residents to make this allegation stick, no matter what spin the town's lawyer applied in his follow-up threat to Harms.

Dekoter might feel he can browbeat a town resident with a bunch of legal mumbo jumbo about "slander of title," but he'll have to do better than that answering the ACLU's complaint [PDF], filed on behalf of Mr. Harms. This followed a letter sent in December, in which the city's attorney instructed Harms to either take down the site or start filling it with positive comments about Sibley.

The ACLU's complaint recounts previous news coverage of the Blood Plant's effect on Sibley residents. It also notes that coverage of the issue has now become completely one-sided thanks to the town muscling Harms out of the conversation. As a result of the legal threat, Harms cancelled an interview with local journalists. The resulting article only ran the city's side of the story with no rebuttal from the target of its ire.

This prior restraint allowed city leaders to do what they wanted when speaking to the press, including denying threatening letters were sent. If Harms couldn't speak to journalists, he certainly wouldn't be handing over copies of the two letters he had already received.

The ACLU seeks a permanent injunction against everything the town has threatened, as well as a judgment affirming Harms' right to criticize the government. This should be a quick win for Harms as there's little the First Amendment protects more than criticism of those in power. It is at the heart of this right and anything a government tries to do to shut down criticism will run an unfriendly judicial gauntlet. All that's really unsettled at this point is how much it's going to cost Sibley residents, who not only have to put up with fumes town leaders didn't want to address, but will soon be asked to cover the costs of the town's boneheaded First Amendment violations.

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Posted on Techdirt - 13 March 2018 @ 3:23am

Federal Judge Says Business Names Provided By Reviewers At A Review Site Are Contributory Trademark Infringement

from the shorter-federal-judge:-this-gobbledygook-seems-ultra-plausible dept

I have no idea what is going on with this decision. A federal judge in Michigan has decided a stupid trademark lawsuit is not a stupid trademark lawsuit and is allowing it to go forward. We'll just have to follow along with the decision [PDF] -- brought to our attention by Eric Goldman -- because taking any other route would lead to madness. I mean, more so.

Reliable Carriers sued Moving Sites, LLC for trademark infringement. Did Moving Sites -- particularly its review site -- use Reliable Carriers trademark in any way that would be infringing? The answer appears to be "no," and that's coming straight from the recitation of facts that opens the opinion.

A visitor to TransportReviews can find reviews and contact information for businesses with similar names to Plaintiff. A search for “Reliable” on the site generates 19 listings. Id. Some of these listings include the names and business information of companies infringing on Plaintiff’s Mark, such as RCT Reliable Car Transport LLC, Reliable Auto Shippers, Reliable Auto Transport Carriers, and Reliable Elite Auto Carriers. A visitor to TransportReviews can also find customer reviews. There is at least one instance in which it appears that a review for an infringing company, BK Reliable Transport, Inc., may have actually been intended for Plaintiff.

Users of the site submitted reviews of companies whose names contained the word "reliable." The plaintiff claims some of the company names are infringing. The plaintiff, illogically, sues the third party host of user reviews of companies whose names may be infringing on the plaintiff's trademark. This is where the suit gets tossed because the alleged infringement isn't taking place at TransportReviews. It's taking place at all of the businesses allegedly misusing a registered mark.

But the suit doesn't get tossed. Instead, the judge says it can continue. The judge actually says user reviews hosted at a review site of businesses whose names might be infringing is the review site's problem. The only intelligible part of the opinion states there's no direct infringement. These were only names returned in search results, all of which were input by third party users. The website did not use the plaintiff's mark to identify its own goods or services. In fact, the site never used the names at all other than to serve up relevant hits for users' search terms.

Everything goes sideways after that. The judge decides that because the defendant was notified about this alleged infringement and did not immediately kowtow to a bizarre request directed at completely the wrong party (a middleman hosting third party content that had nothing to do with naming related businesses names that might be infringing), the website can be held responsible for contributory infringement.

Comparing it to a decision involving a flea market operator refusing to kick out vendors selling counterfeit goods, the court says third party reviews of businesses whose names might be infringing is pretty much comparable to someone directly overseeing vendors selling bootleg merch. WTF.

The complaint satisfactorily alleges underlying direct infringement by the companies with listings on TransportReviews. Plaintiff alleges sufficient facts to show that it owns the registered trademark “Reliable Carriers,” that the names of several other businesses listed on TransportReviews infringe on that trademark, and that their use is likely to cause confusion.

Plaintiff has also sufficiently alleged that Defendant knew or had reason to know of this infringement and continued to facilitate it without taking appropriate remedial measures. The complaint alleges that Defendant published the names and business information of the infringing businesses on TransportReviews.

All the plaintiff has "sufficiently" alleged is that it informed a site some names looked like ripoffs of theirs and were probably told to stop emailing/calling since the site did not create the reviews using the names the plaintiff is so worked up about.

It is a stretch to call these actionable allegations, as the judge's decision does. These are speculative invoicing terms of art -- lobbed at the largest party involved in hopes of securing a settlement. The site did not engage in infringement, no matter how much the plaintiff (and the judge, apparently) want to believe it did. The users entered the infringing business names when submitting their reviews. If the plaintiff wants to stop trademark infringement, it should be targeting the 18 other businesses in the search results, not the site where the search results appear.

As for the intermediary defense (basically pointing out that it's not the offending party -- but not via CDA 230, since CDA 230 doesn't apply to trademark claims) that really shouldn't even need to be raised, the judge dismisses it out of hand, declaring it to be an issue that does not need to be addressed.

Defendant’s response–that it is not responsible for the business reviews on its website, which are entered by customers–is a factual allegation outside the scope of the complaint.

This is asinine. The fuck does that even mean? The site can't raise this defense because the plaintiff didn't provide an opening for this discussion in the complaint? This is seriously weird adjudication, suggesting a judge with very limited intellectual property experience is fielding something outside his expertise. Judge Sean Cox even goes so far as to speculate the plaintiff may be able to make a credible contributory dilution argument. Trademark dilution is already a questionable (and twisted) trademark theory -- but it makes even less sense than usual in this context.

At this point, the judge has only gone so far as to say the plaintiff has stated claims credibly enough to pursue this case. But that's the problem: the claims aren't credible, even when viewed in the light most favorable to the plaintiff. If trademark infringement has occurred, it was committed by the companies using similar names that showed up in the site's search results. The plaintiff should be suing them, but has apparently decided it's cheaper to sue 18 other business by proxy.

Maybe Judge Cox just has something against review sites. His is certainly a mess. If this case keeps going this direction, he's only going to be adding to this wall of shame.

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Posted on Techdirt - 12 March 2018 @ 3:38pm

Cop Hits Woman's Car At 94 MPH, Killing Her Infant. Police Arrest Woman For Negligent Homicide.

from the this-will-surely-endear-them-to-the-community dept

This is how things go in the US, where law enforcement is treated like a favored religion and everyone who isn't on the inside is just grist for prosecution mills. Here's the setup, via Matt Pearce.

A Baton Rouge police officer was arrested Friday on a count of negligent homicide, accused of going 94 mph in a Corvette when he caused an off-duty crash on Airline Highway that killed an infant and injured six others.

The officer, Christopher Manuel, 28, was driving north in a 2007 Chevrolet Corvette shortly after 8 p.m. Oct. 12 on Airline Highway when it struck a Nissan at the intersection at Florline Boulevard that was occupied by four adults and three children.

All of the occupants of the Nissan were taken to the hospital. One of those passengers, a 1-year-old baby, Seyaira Stephens, later died.

The van made a left turn in front of the off-duty officer. Both vehicles had a green light. The speed limit on this road was 50 mph. The speed the officer was traveling was verified by his Corvette's black box. Here's the positive news:

Manuel, of 8508 Greenwell Springs Road, was booked into East Baton Rouge Parish Prison on a count of negligent homicide and speeding, Sgt. L'Jean McKneely, police spokesman, said.

The officer was booked and made bond. So far, so good. Here comes the avalanche of bad news.

Manuel, who has been on paid administrative leave since the accident, will remain on paid leave until after an internal investigation is concluded, McKneely said.

Due process, I suppose, even if it was clear the officer was traveling at nearly twice the posted speed limit. Much of the information needed to conclude the investigation was already in his department's hands, thanks to the Corvette's airbag control module, which recorded this data at the time of impact.

But if there's going to be any justice done, it's going to be severely delayed.

That investigation will not begin until he recovers from his injuries and is released to work by a doctor.

That's the sort of thing never extended to lowly civilians. No officer has ever told an injured arrestee to heal up before worrying about answering questions. No law enforcement agency has backburnered an investigation simply because its subject can't move around on their own yet.

But these investigations took no time to complete. No one at the Baton Rouge PD waited around for victims of the officer's reckless driving to be fully healed before they began their arrests.

Just weeks after a Baton Rouge police officer was arrested on negligent homicide and accused of causing a crash that injured several people and killed a baby, the child's mother was also arrested on the same charge because police said she failed to properly secure the baby's car seat.

Brittany Stephens, 20, was arrested Tuesday after police found that her daughter's car seat was not secured and the straps were not adjusted correctly for the child's height, according to her arrest report. Police said the "lack of securing the seat to the vehicle and the loose straps are a contributing factor in the death" of the child and "show gross negligence" on the mother's part.

Ah, the healing power of criminal charges, brought against someone involved in an accident that was no fault of her own. She (and her daughter) were just passengers in the van. Not to worry, the police issued citations to everyone else in the vehicle the officer hit. But the mother of the infant the cop killed is facing the same charges he is. And she's not going to be given a chance to rest up before the police move forward with their investigation. The PD has already wrapped this one up and forwarded charges to the DA's office.

East Baton Rouge District Attorney Hillar Moore III said Tuesday his office has not yet determined whether Stephens or Manuel will face charges, but prosecutors "will review all reports, charges and arrests and make the appropriate decisions based upon facts and law."

There is nothing right about this, not even technically. The reckless driving performed by the officer should nullify the culpability of the people in the car he hit. While Officer Manuel may have had the right of way, his excessive speed changed the contours of the incident. In a case involving law enforcement officers manufacturing a reason to stop a car, a court pointed out unsafe driving by officers nullifies moving violations performed by other drivers.

[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.

This isn't apples-to-apples (the court making this declaration was in Ohio, not Louisiana, where this accident took place) but it's a good rule of thumb. If someone is driving 44 mph over the speed limit, they've effectively forfeited their right-of-way status. A left turn taken in front of a speeding officer should give the officer zero preferential treatment in the eyes of the law. The officer should be 100% culpable for the damage and loss of life. Arresting a mother who lost her infant to an officer's reckless actions is needlessly cruel and serves zero deterrent purpose. Her daughter can't be killed again.

The way the Baton Rouge PD is handling this ensures Officer Manuel's eventual conviction will also have zero deterrent value. It shows officers the PD is willing to arrest victims of their unlawful actions and give them all the time they want -- with pay! -- to heal up before they're forced to confront the results of their recklessness. If the DA is smart, the charges against the mother will vanish and the cop will be rung up for his negligent actions.

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Posted on Techdirt - 12 March 2018 @ 10:40am

The US Government Is Considering Drafting Middle-Aged Hackers To Fight The Cyberwar

from the could-not-have-found-a-worse-way-to-approach-its-personnel-problem dept

There's no time like the near future to be conscripted into military service. Due to citizens' declining interest in being personally involved in the government's multiple Forever Wars, the Commission on Military, National and Public Service is exploring its options. And one of the options on the table is removing restrictions on certain draftees (or volunteers) headed for certain positions in the armed forces.

Got hacking skills? Uncle Sam may want you for the U.S. Army—even if you’re far past traditional draft age.

The National Commission on Military, National and Public Service is seeking public feedback on a slew of possible changes to the way the government handles its selective service requirements, including drafting people with cyber skills regardless of their age or gender.

The commission study was directed by Congress in the 2017 version of the National Defense Authorization Act, an annual defense policy bill, and is due to Congress in 2020.

This expansion would net the government essential personnel needed to fight the still-undeclared Cyberwar. No matter your age or severity of bone spurs, the government might have a desk job for you. And you might not have a say in the matter. If the commission recommends a draft targeting key non-combat personnel, people in their thirties and forties might find themselves parachuting telecommuting into the war zone despite having careers in place elsewhere.

The key points of the Commission's directive [PDF] can be found in this paragraph.

Congress has specifically directed the Commission to consider:

“(1) the need for a military selective service process, including the continuing need for a mechanism to draft large numbers of replacement combat troops;

(2) means by which to foster a greater attitude and ethos of service among United States youth, including an increased propensity for military service;

(3) the feasibility and advisability of modifying the military selective service process in order to obtain for military, national, and public service individuals with skills (such as medical, dental, and nursing skills, language skills, cyber skills, and science, technology, engineering, and mathematics (STEM) skills) for which the Nation has a critical need, without regard to age or sex; and

(4) the feasibility and advisability of including in the military selective service process, as so modified, an eligibility or entitlement for the receipt of one or more Federal benefits (such as educational benefits, subsidized or secured student loans, grants or hiring preferences) specified by the Commission for purposes of the review.”

Congress may be looking to reinstate the draft. It seems we wouldn't need to "draft large numbers of replacement troops" if we weren't continually sending them off to foreign lands to get shot at or blown up. Scaling back our military presence might nip the draft idea in the bud, but with few exceptions, things have only escalated since September 11, 2001, rather than cooled down.

Dropping the age and sex requirement for other positions is wise, but it quickly becomes foolhardy once it's no longer voluntary. The reason the government can't keep the military stocked is it's done all it can over the past 50 years to destroy Americans' faith in it. Things went south reputationally during the Vietnam War, which is the last time the draft was in place. A bungled "military action," punctuated by atrocities, extended for purely political reasons, and ended with what one could generously call a "tie," did little to warm the hearts of American citizens. The years since then have seen "wars on" various ideas declared, with no definitive enemy or endpoint. There's not a lot of enthusiasm left for joining the world's police force, especially when threats to American way of life shift with White House regime changes. The rebels we once sold arms to are now a terrorist organization in need of stomping out by boots on the ground.

That dovetails into the second task of the Commission: "fostering a greater attitude and ethos of service." This is the government's fault and the government needs to fix it. It won't be able to do it overnight or even in time to rustle up a bunch of "replacement troops" to send to whatever area of the world is in need of gunpoint democracy. I'm sure the final report may have something to say about millennials failing to adopt the ethos and pro-American enthusiasm of their generational predecessors, but who could blame them? The Social Security safety net will have dried up before they have a chance to access it and their economic future is in the hands of malicious actors the government has never shown an interest in punishing. (See every administration ever vs. "too big to fail.")

Knowing this ship won't be righted easily may prompt the Commission to suggest something no one would imagine being enacted here. A few pages down, the Commission asks a bunch of questions of itself -- one that would appear to answer another one, but with a "solution" most commonly found in totalitarian dictatorships.

(1) Is a military draft or draft contingency still a necessary component of U.S. national security?

(2) Are modifications to the selective service system needed?

(3) How can the United States increase participation in military, national, and public service by individuals with skills critical to address the national security and other public service needs of the nation?

(4) What are the barriers to participation in military, national, or public service?

(5) Does service have inherent value, and, if so, what is it?

(6) Is a mandatory service requirement for all Americans necessary, valuable, and feasible?

(7) How does the United States increase the propensity for Americans, particularly young Americans, to serve?

Yes, one sure way to "increase participation" is to mandate participation via a draft. Another way is to make it mandatory across the board for all citizens, making the draft redundant. Neither of these efforts will solve other problems like "fostering a greater attitude or ethos of service." If either of these are enacted, the military will be full of people who don't want to be there and who won't have their eye on anything other than the calendar. This will only exacerbate the military's current issues. The only thing it addresses is the need for periodic infusions of cannon fodder.

The cyberwar the government has been gearing up to fight for most the last decade will be another Forever War. Even if it's a bloodless battle, it will be far from harmless. The government already makes policy decisions based on highly-speculative attribution. In the future, it will engage in both cyberwar and conventional war using the same information. There won't be bodies to bury, but someone's going to end up taking out the wrong critical infrastructure or targeting the wrong critical government entity based on political wind shifts. A steady infusion of keyboard warriors may sound like a good idea, but displacing people and uprooting their lives to act on political whims won't restore faith in the US of A. No one's going to be throwing parades for cyberveterans marching home with college money and participation ribbons. And if the tech side of the military industrial complex thinks it already has a problem with insider threats, just wait till it's mostly composed of people who have been pressed into service against their will.

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Posted on Techdirt - 12 March 2018 @ 3:14am

Microsoft Helps Get A Computer Recycler Sentenced To 15 Months In Prison For Offering Unapproved Recovery Disks

from the thanks-for-making-the-world-a-better-place-you-thief dept

To ensure no good deed goes unpunished, Microsoft is trying to get a computer recycler tossed in prison because he almost provided Windows recovery disks to users who needed them. Eric Lundgren, who's made heroic efforts to prevent dangerous computer parts from filling landfills, is facing a 15-month sentence and a $50,000 fine for manufacturing 28,000 recovery disks. His sentence is based on two charges: conspiracy and copyright infringement.

Tom Jackman has the whole story at the Washington Post and it's half-tragedy, half-farce. Lundgren runs a company that prevents tens of millions of pounds of harmful chemicals and metals from ending up in landfills. In return for doing more than his part to save the planet, he'll gets a chance to spend a year in jail and hand Microsoft $50,000 in compensation for sales it never "lost" from recovery discs he never got a chance to distribute. (h/t Techdirt reader Tom Sparks)

Lundgren said he thought electronics companies wanted the reuse of computers to be difficult so that consumers would buy new ones. “I started learning what planned obsolescence was,” he said, “and I realized companies make laptops that only lasted as long as the insurance would last. It infuriated me. That’s not what a healthy society should have.”

He thought that producing and selling restore discs to computer refurbishers — saving them the hassle of downloading the software and burning new discs — would encourage more users to restore their computers instead of discarding them. In his view, the new owners were entitled to the software, and this just made it easier.

The government, and Microsoft, did not see it that way. Federal prosecutors in Florida obtained a 21-count indictment against Lundgren and his business partner, and Microsoft filed a letter seeking $420,000 in restitution for lost sales. Lundgren claims that the assistant U.S. attorney on the case told him, “Microsoft wants your head on a platter and I’m going to give it to them.”

Fortunately, Lundgren has judges in a couple of courts on his side, at least for the time being. US District Judge Daniel T.K. Hurley pointed out to the prosecution that Lundgren hadn't sold any of the recovery discs he had produced. Because of that, he departed downward from federal sentencing guidelines, giving Lundgren less than half of the 36-to-47 months called for.

Judge Hurley appears to feel locking Lundgren up for a few years would be a net loss for society, if not the environment.

“This case is especially difficult,” Hurley told Lundgren at his sentencing last May, “because of who you are today and in terms of who you have become.” The judge received evidence of Lundgren’s recycling company, IT Asset Partners, his projects to clean up e-waste in Ghana and China and a 2016 initiative in which Lundgren’s company repaired and donated more than 14,000 cellphones and $100,000 to “Cellphones for Soldiers” to benefit U.S. soldiers deployed overseas.

The other court on his side -- at least for the moment -- is the 11th Circuit Court of Appeals. Lundgren appealed his sentence and the court agreed to hear the case. This keeps Lundgren out of jail until the appeal is ruled on. It's unclear where the court's sympathies lie, but it is encouraging it didn't dismiss it immediately. Lundgren plans to argue he didn't violate Microsoft's software license or cause it any lost sales. The government will obviously stick to its "head on a platter" argument, presenting Microsoft's absurd "lost sales" theory as actual fact, rather than the ridiculousness it is -- especially when Microsoft spent most of the last couple of years giving away Windows 10 to everyone, including people who didn't want it.

Someone dedicates his life to keeping landfills free of harmful material and the government wants to send him to prison. And it's all based on Microsoft's assertion it would have sold as many recovery disks as Lundgren created if only Lundgren hadn't created them. Ignored is the fact they never were distributed. Also ignored is the dubiousness of "lost sales" assertions, which are always 100% conjecture and always presented as a simplistic equation: "1 Piracy = 1 Lost Sale." But in this case, no sales were lost because no sales were replaced with bootleg boot disks.

And "sales" must be a legal term of art. Microsoft allows anyone to download a recovery disk for free. But in court, these are suddenly worth money because infringement. To ensure someone gets tossed in jail for breaking the chain of planned obsolescence, Microsoft (and prosecutors) want the court to believe the existence of recovery disks that do nothing unless a person already has a licensed copy of Windows has somehow made the company $700,000 poorer. Given the limitations of burned recovery disks, it's impossible to see where infringement even comes into play. And yet here we are, watching prosecutorial discretion morph into putting someone's head on a platter over recovery disks any one of us could download hundreds of times from Microsoft's website without a single murmur about "lost sales" from the tech giant.

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Posted on Techdirt - 9 March 2018 @ 7:39pm

Court Moves Business Owner One Step Closer To Getting Paid Back For Vehicle DEA Destroyed In A Failed Drug Sting

from the Motion-To-Unfuck-The-Situation-granted dept

Almost seven years ago, DEA agents borrowed a truck (and an employee) from Craig Thomas Expeditors. Craig Patty, proprietor and employer of Lawrence Chapa, had no idea this was happening. The DEA never approached Patty and, for all he knew, Chapa was taking the truck down to Houston for some service. This was all a ruse. The DEA loaded Patty's truck with marijuana (and his driver) and went down to Houston to engage in a drug sting.

This wasn't the first sting the DEA had deployed using Patty's truck and his driver. But it was the last. Instead of a controlled purchase followed by several arrests, the DEA ran into an ambush instead. Patty's truck was riddled with bullets, as was Patty's driver. In the middle of it all, a plainclothes cop from one Texas agency was shot by a plainclothes cop employed by another.

After this debacle, Patty was finally informed that his truck and employee had been part of a tragic DEA misfire. He was also informed that the federal government would not be shelling out a single cent to repair the $100,000 worth of damage to the truck. (It said even less about the cost of the life it had taken from Patty's driver.) The DEA said it did not have to pay anything for the damage because it occurred during a law enforcement operation. Patty's insurance company said the same thing.

Patty sued the DEA. This went nowhere. The government argued -- successfully -- that clandestine operations like drug stings don't require notification of citizens whose private property is put to use. It also argued it was immune from liability because undercover operations are more important than protecting assets owned by law-abiding citizens. The court agreed and tossed Patty's case.

This appeared to be the end of it. But I'm happy to report that's not the case. Nearly seven years has elapsed since the DEA destroyed Patty's truck, but a federal judge for the Federal Claims court has said Patty can move ahead with his lawsuit seeking compensation for his "borrowed" truck. (via

The denial of the government's motion to dismiss [PDF] is pretty weedy, but basically comes down to competing interpretations of Patty's allegations. The government argued Patty's complaint alleged illegal actions by the DEA, which would mean this court lacked jurisdiction over the case. The judge points out Patty's complaint doesn't actually do that. What Patty is alleging is something different: a violation of the Takings Clause. The government took property of Patty's without permission and failed to compensate him for the damage done to it.

Defendant relies in part on the fact that plaintiffs assert that the agency’s use of their truck was without permission and an unjustified risk to private property and to the lives of those involved in the LLC. Pls.’ Compl. ¶ ¶ 2, 17, 18, 21. But an assertion of lack of consent to the use is not the same as an assertion of illegality. More importantly, it is not inconsistent with the assertion of a taking. Condemnation actions, whether direct or implied, typically are done over the property owner’s objection.

This changes the legal contours, much to the presumed dismay of the government. It's no longer about apparent theft, but rather the government running roughshod over a citizen's property rights. The government tried to argue it wasn't a taking per se, but rather a form of forfeiture. It didn't say as much in its arguments, but all of its supporting citations dealt with forfeitures in criminal cases or seized evidence. As the court points out, the supporting case law cited by the government does not address the issue at hand.

In each of these cases, the property was evidence in an investigation or the object of the law enforcement action. In none of them did the government simply seize property as a convenience to the government in pursuing unrelated law enforcement.

It then goes on to point out exactly why it won't let the government get away with its false equation.

If defendant’s position is the law, the police power would swallow private property whole. Neither plaintiffs nor their truck were the subject of an investigation, their truck did not belong to a person who was the subject of an investigation, nor was it related, before the fact, to any violation of regulation or statute. Plaintiffs emphasize that neither the LCC nor Mr. Patty had any connection to or dealings with criminal outfits in the state of Texas and that, had it not been for their driver working with the DEA, their truck would have never been involved in the operation. The government instead chose to use plaintiffs’ property as a tool to stage a controlled drug delivery.

Then it goes further, calling out the government for its refusal to admit it screwed a law-abiding citizen out of $100,000+ worth of property -- something the government has done repeatedly in the past and been held accountable for.

Plaintiffs’ claim bears striking similarities to cases in which the government has chosen simply to appropriate private property to secure a benefit for the public. Here, the assertion is that law enforcement officials used private property as a resource for an operation despite lack of consent of the property owner. Using the dichotomy of whether the government action prevented harm to the public or secured a benefit to the public, the government’s action falls within the latter category: it did not seize the truck to prevent a harm to the public caused by or related to the truck or anyone associated with it, but rather the agency chose to use the truck as a resource in ridding the area of controlled substances and criminal activity. It could just as easily have rented a truck and furnished it to Mr. Chapa. Plaintiffs’ truck was not evidence in a criminal prosecution, involved in a police investigation, seized pursuant to criminal laws, or subject to forfeiture proceedings. If what the DEA is alleged to have done here were not compensable, then presumably it could have seized a fleet of trucks or an airplane for the same use.

This moves Patty one step closer for being repaid for the DEA's use of his vehicle. Sure, it's not the DEA's fault its drug sting fell apart and resulted in vehicle damage and the loss of life. But as the court points out, the DEA could have pursued a sting operation without using a private citizen's vehicle. It had plenty of options that wouldn't have put it in the position it's in today. But it chose to do it the easy way, which is now -- seven years after the fact -- turning into the hard way. The DEA worked harder, not smarter. Hopefully, this business owner won't remain screwed for much longer.

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Posted on Techdirt - 9 March 2018 @ 12:01pm

Court Orders Copyright Troll To Post $10,000 Bond After He Lied About His Client's Licensing Agreement

from the dope-on-a-rope dept

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.

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