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Posted on Techdirt - 7 May 2021 @ 9:22am

UK Court Overturns 39 Convictions Of Post Office Workers Caused By Buggy Software

from the shittiest-skynet-ever dept

Never underestimate the power of technology to destroy lives. Flawed software used for the last 20 years by the UK postal service resulted in dozens of wrongful criminal convictions which are only just now being overturned.

Judges have quashed the convictions of 39 former postmasters after the UK's most widespread miscarriage of justice.

They were convicted of stealing money, with some imprisoned, after the Post Office installed the Horizon computer system in branches.


The clearing of the names of 39 people follows the overturning of six other convictions in December, This means more people have been affected than in any other miscarriage of justice in the UK.

The notoriously buggy software debuted in 1999. Apparently it was unable to do math properly, resulting in reported cash shortages that actually weren't happening. Some employees attempted to make up these faux shortfalls with their own money by digging into savings or remortgaging their homes. Rather than address the problematic software, the UK Post Office went into prosecutorial overdrive, bringing cases against employees at the rate of one per week… for fourteen years straight. A total of 736 employees were prosecuted by the Post Office from 2000 to 2014.

And yet, the UK Post Office continued to rely on software that was actively destroying lives.

Marriages broke down, and courts have heard how some families believe the stress led to health conditions, addiction and premature deaths.

"The past nine years have been hellish and a total nightmare. This conviction has been a cloud over my life," said former Oxfordshire sub-postmaster Vipinchandra Patel, whose name was cleared late last year.

Seema Misra was pregnant with her second child when she was convicted of theft and sent to jail in 2010. She said that she had been "suffering" for 15 years as a result of the saga.

By the end of 2019, the Post Office had agreed to settle claims brought by 555 employees. And now the last of the wrongful convictions have been overturned. But, so far, no one at the Post Office or Fujitsu (the software developer) has been held accountable for the nearly 20-year run of destruction they oversaw.

That could change in the near future. The UK court seems completely unimpressed with the Post Office's actions (or lack thereof).

At the Royal Courts of Justice in London, Lord Justice Holroyde said the Post Office "knew there were serious issues about the reliability of Horizon" and had a "clear duty to investigate" the system's defects.

But the Post Office "consistently asserted that Horizon was robust and reliable" and "effectively steamrolled over any sub-postmaster who sought to challenge its accuracy", the judge added.

Sure, everyone at the Post Office seems pretty apologetic now. But that's after 15 years of ignoring the problem and choosing to believe software rather than the people hired to do the job. Tech can make things better and increase productivity, but it's rarely flawless and generally shouldn't be considered more trustworthy than the people who have to interact with it on a daily basis.

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Posted on Techdirt - 4 May 2021 @ 3:33pm

Lawsuit: Cops Trashed An Attorney's Home In Retaliation For Successfully Defending A Suspect Against Murder Charges

from the system-never-likes-being-beaten dept

An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.

Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.

This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:

Just three days after D. Reynolds acquittal, Defendants targeted Ms. Reynolds for retaliation. Defendants broke down the front door of Ms. Reynolds‘ home after she had offered to let them in, "searched" Ms. Reynolds' home for an individual by destroying her personal possessions, including those entirely irrelevant to a search for a person and left Ms. Reynolds traumatized, knowing that she could be targeted by police for engaging in constitutionally protected activity.

There may be some open dispute about the motivation for these actions, but the actions themselves can't be denied. The raid drew a crowd, some of whom filmed the PD's violent entry into the unlocked house -- the same house Reynolds had left unlocked and invited the officers to search. It also attracted the attention of a local news crew.

The lawsuit fills out the details of the raid. And the narrative throws a considerable amount of shade at the participating officer with one impeccably worded paragraph.

Despite both screen door and storm door at the front entrance of Ms. Reynolds' home remaining unlocked, SWAT officers used an entry tool attached to the front of an armored vehicle to puncture the screen door and rip it free from Ms. Reynolds' home in its entirety.

In so doing, SWAT officers damaged the screen door beyond repair, heavily damaged the door frame surrounding the front entry, and tore vinyl siding from the exterior of Ms. Reynolds' newly remodeled home.

SWAT officers then entered Ms. Reynolds' home by turning the doorknob of the storm door which remained on Ms. Reynolds' home, still unlocked, and pushing the door open in the manner a door is designed to operate.


But that wasn't the end of the destruction. Remember, officers were searching for a 17-year-old murder suspect, not an easily hidden amount of contraband.

During the search of Ms. Reynolds' home, SWAT officers opened and searched all the drawers in Ms. Reynolds' kitchen and detached Ms. Reynolds' appliances from the walls of her home.

SWAT officers flipped the mattresses off all the beds in Ms. Reynolds' home and tore all of the clothes from the closets in the bedroom.

SWAT officers tore the cushions off Ms. Reynolds' furniture and emptied the contents of open soda cans onto the floor.

What the fuck.

On top of that, Reynolds alleges the warrant affidavit was nothing but a bunch of lies stitched together carelessly to give the PD permission to destroy her house -- a warrant rendered unnecessary by Reynolds' consenting to a search hours earlier. The narrative in that affidavit involves an ATF officer, their CI, and the assumption that the most likely place for a wanted murderer to be hanging out would be at the house of an attorney who had just successfully defended someone from a murder charge.

Given the timing and the three hours of apparently gleeful destruction, this certainly looks retaliatory. And, of course, it will be portrayed by the PD as just regular old cop stuff completely unrelated to local prosecutors and PD detectives "losing" a murder case. The end result of these efforts can't be denied. Neither can the violent entry which was captured by citizens' cameras. All that's left is the defensive assertions of "reasonable" officers -- all of which felt tearing apart an attorney's house was the best way to locate a human being.

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Posted on Techdirt - 3 May 2021 @ 3:41pm

Fifth Circuit Strips Immunity From Cops Who Ended A Mental Health Crisis By Restraining A Man To Death

from the unfortunately-it-took-a-death-to-obtain-this-result dept

The Fifth Circuit is the worst place to bring a civil rights lawsuit against law enforcement officers. But that may slowly be changing, thanks in part to the Supreme Court, which has played its own part in making qualified immunity an almost insurmountable obstacle in civil cases. Over the past few months, the Supreme Court has reversed and remanded two cases handled by the Fifth Circuit Court of Appeals, ruling that the lower court's extension of qualified immunity was the incorrect conclusion.

This case [PDF] may reflect the Supreme Court's qualified immunity attitude adjustment. Or it just may be that there's no excusing what happened here: a man suffering a mental health crisis being helped to death by San Antonio (TX) police officers.

Jesse Aguirre was reported to dispatchers by drivers on a heavily traveled eight-lane highway. Drivers noted Aguirre seemed to be "mentally disturbed" and possibly in danger of being injured or killed since he was walking on the thin media strip dividing the eight lanes of traffic. Officers arrived at the scene and things just kept getting worse for Aguirre. Fortunately, it was all documented by the dashcam on an officer's vehicle.

Here's the first "offer" of "help" Aguirre received from a police officer:

Officer Gonzales was the first to arrive. She left her vehicle blocking the left-most eastbound lane and approached Aguirre on foot with her firearm pointed at him, ordering him to “come here” and threatening, “I’m going to shoot you, m-----r-f----r.”

Lovely. Gonzales continued to walk after Aguirre, joined by Officer Morgan (also pointing a gun) and Mendez (pointing a Taser). Aguirre then stopped and placed his hands on the concrete median barrier. All three officers rushed Aguirre, grabbing him and placing him in handcuffs. According to the video, Aguirre did not "visibly resist" being handcuffed. The officers then tossed the handcuffed man over the cement barrier, causing him to land on his head.

More officers arrived. And they apparently felt the unresisting man needed more "assistance" dealing with his apparent mental health crisis.

After one or two more officers arrived, they assisted in moving Aguirre from the car hood to the ground onto his stomach next to the median with his hands still cuffed behind him. The video does not show that Aguirre resisted during this maneuver, but instead that he stumbled with the Officers toward the median. After Aguirre was placed prone on his stomach, Officer Gonzales pushed his legs up and crossed them near his buttocks and kneeled forward on Aguirre’s legs, holding them near Aguirre’s bound hands in a hog-tie-like position. Officer Mendez knelt with one knee on the ground and the other on Aguirre’s back, later changing position to hold Aguirre’s shoulders and cheek down against the pavement with his hands. Officer Mendez testified that he was using part of his body weight to hold Aguirre down, thus applying pressure to Aguirre’s back and neck. Officers Morgan and Arredondo then joined Gonzales and Mendez, placing their hands on Aguirre’s arms and back to hold him prone in the maximal-restraint position.

More officers arrived, including a supposed "medical tech officer" (Benito Juarez) but there's nothing on video suggesting he handed out any medical advice or paid any attention to the handcuffed man's condition. One officer noted Aguirre's lips were turning blue but chalked that up to "drug use," rather than the ongoing asphyxiation that was actually occurring.

Aguirre remained hogtied face-down on the pavement for more than five minutes. At some point during that time he stopped breathing, but it was only noticed by the large group of officers after he had spent five-and-a-half minutes in that position. Once they realized he had stopped breathing, the officers turned Aguirre over and the "medical tech officer" jogged off to get some medical equipment.

But no one really seemed to care.

At this point, the Officers appear to be in good spirits; according to the Plaintiffs, in the dashcam videos, Juarez can be seen smiling as he jogs to his vehicle, and several other Officers likewise appear to be smiling and laughing as they await Juarez’s return around Aguirre’s body. Juarez returned at a walk with his medical bag approximately one minute after he left.

It wasn't until more than four more minutes had elapsed that any officer attempted to perform CPR. But it was too late. Aguirre was dead. The autopsy report confirmed what the dashcams had caught: the restraint method had asphyxiated Aguirre. The conclusion: "due to restraint by police, this case is classified as a homicide."

Despite this direct link between their actions and Aguirre's death, the officers wanted qualified immunity. The court refuses to extend it. The amount of force used to restrain Aguirre was excessive. The situation did not call for maximal restraint of a cooperative subject, especially given the criminal act (which is still a stretch) at the center of it.

Defendants do not attempt to show that the severity of any crime committed by Aguirre weighed in favor of the level of force used by the Defendant Officers. In fact, defendants do not articulate any criminal investigatory function justifying their actions, and instead rely on the existence of a threat to the public safety—namely, the potential danger to motorists and himself that Aguirre’s mental disturbance and walking along the median of the eight-lane highway caused. At most, the crime at issue was a traffic offense.


This factor thus weighs against it being reasonable or necessary to place Aguirre in the maximal-restraint position for over five minutes.

And the cops can't swing the court their way by providing testimony that was often directly contradicted by their own dashcam recording.

In their declarations below, the Defendant Officers stated that Aguirre was resisting and they feared that he would break away and run into traffic, causing a dangerous collision and potentially dragging one of the Officers with him. But the Plaintiffs’ summary judgment evidence and this court’s own review of the video evidence at minimum raise genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting or even physically capable of posing an immediate safety threat that would justify the Defendant Officers in using extraordinarily dangerous force by placing and holding him in the prone maximal-restraint position that led to his death.

The court also points out that the fact the officers suspected Aguirre had recently used drugs should have resulted in more caution being taken while restraining him, rather than less. Even the go-to excuse for in-custody deaths -- "excited delirium" -- is supported by plenty of documentation that shows hog tying suspects or holding them down with body weight increases the risk of death.

But at the end of it, the thing that undoes these officers' planned exit from this lawsuit is their own video. The court brings it up again in support of its qualified immunity denial.

Although the Officers presented their own version of events that included claims of Aguirre’s resistance—including, for example that he “was resisting and trying to pull away from” the Officers while walking near the westbound side of the median, “was still resisting” when placed on the hood of the car, and “continued to resist by shifting his body around and trying to break free” while pinned against the hood of the patrol car—these averments in contravention of what the police dashcam videos show do no more than reinforce that genuine disputes as to material facts exist at this stage of the litigation.

Clearly established enough, adds the Fifth, even without a case directly on point. The difference between "hog tying" and "maximal prone restraint" isn't enough to make it unclear to these "reasonable" officers whether the use of these nearly identical techniques in situations like this would be "excessive."

Whether or not the Supreme Court's recent hints nudged this in the right direction, at least the correct conclusion was reached: restraining someone to death -- especially an unresisting someone -- clearly violates their rights.

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Posted on Techdirt - 29 April 2021 @ 10:44am

US Postal Service Is Surveilling Social Media Services Because It Apparently Has Plenty Of Time And Money To Waste

from the to-inquire-about-this-program,-please-send-SASE-to-iCOP dept

The United States Postal Service is still in the spying business. The USPS has been scanning pretty much every piece of mail that runs through its system, creating a massive database of metadata that serves whatever purpose the USPS imagines it does. "National security" or whatever the fuck.

When not helping the DEA find cash and the occasional drug shipment, the USPS is also apparently keeping tabs on social media users. This includes social media services with smaller, but perhaps more concerning, user bases. The name of the game is still "national security," but it's unclear why the Postal Service -- which has a hard enough time divvying up its limited resources -- is engaged in this sort of surveillance.

A two-page report [PDF] from the USPS's "iCOP" (Internet Covert Operations Program) [again, why is this actually a thing?] -- first reported by Yahoo News -- details the internet sleuthery of US Postal Service Inspectors.

The law enforcement arm of the U.S. Postal Service has been quietly running a program that tracks and collects Americans’ social media posts, including those about planned protests, according to a document obtained by Yahoo News.

The details of the surveillance effort, known as iCOP, or Internet Covert Operations Program, have not previously been made public. The work involves having analysts trawl through social media sites to look for what the document describes as “inflammatory” postings and then sharing that information across government agencies.

Again, this effort seems like -- at best -- a redundancy. Nearly every law enforcement agency has its own social media monitoring program. The DHS and its (mostly useless) Fusion Centers routinely compile information on social media posts. The FBI pretty much considers itself a national security agency at this point and has its own surveillance programs. And plenty of freelancers compile open source info from public posts in their spare investigative time.

But the USPS is in the mix too. And it seems to be treading very close to the First Amendment line.

“Analysts with the United States Postal Inspection Service (USPIS) Internet Covert Operations Program (iCOP) monitored significant activity regarding planned protests occurring internationally and domestically on March 20, 2021,” says the March 16 government bulletin, marked as “law enforcement sensitive” and distributed through the Department of Homeland Security’s fusion centers. “Locations and times have been identified for these protests, which are being distributed online across multiple social media platforms, to include right-wing leaning Parler and Telegram accounts.”

Planned protests are what's known as free speech round these parts, iCOPs. While there's always a chance someone might stumble across a few true threats, casting a net over the… um… 'Net to trawl for incriminating shitposts seems like an extremely questionable use of the government's time.

The two-pager points out that the most worrying stuff inspectors came across emanated from Parler. But even at its most concerning, the iCOP effort came up with nothing but some wasted tax dollars and a few incursions into inalienable rights territory.

“No intelligence is available to suggest the legitimacy of these threats,” it adds.

The civil liberties experts contacted by Yahoo for comment were more baffled than aghast, although there was certainly some of the latter because it's concerning when you can't think of a single good reason the USPS should be surveilling social media outlets. And this seems to have nothing to do with the US Postal Inspectors' purview, which should only cover criminal acts involving the mail system. Just because everyone's texting and IMing instead of sending letters and postcards doesn't mean the USPS should be allowed to start surveilling communications methods that no longer involve postage stamps.

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Posted on Techdirt - 28 April 2021 @ 12:16pm

US Department Of Education Now Investigating Florida Sheriff's Student 'Pre-Crime' Program

from the Sheriff-showing-some-indicators-of-criminal-activity dept

The Pasco County (FL) Sheriff's Office decided to bring some of its predictive policing nonsense indoors. It also started looking for smaller targets. The program used to harass residents over things like uncut lawns and missing mailbox numbers was extended to schoolchildren, who were subjected to the same sort of spreadsheet bullshit. Low grades? Miss a few school days? Victim of domestic violence?

According to the Pasco County Sheriff "juvenile intelligence analysts," these were all risk factors that could signify future criminal behavior. The Sheriff claimed it wasn't trying to pre-crime children, but its own documentation said "analysts" should use the so-called "predictors" to "identify at-risk youth who are destined to a life of crime."

Not only is the program arguably morally wrong, it's also generally wrong. Predictive policing rarely works as intended since it relies on skewed data. Those inputs produce more skewed data, sending officers into the same areas they already believe criminal activity will occur and aims them at the same people they've already assumed are criminals. It's basically confirmation_bias.xls. But this program targets kids and uses data it's not clear the Sheriff's Office has any legal right to access.

That means the program may also be legally wrong. As in "illegal." Analysis of the program and the data-sharing agreements with schools by student privacy advocates resulted in the determination that this access to student data without parental consent violated FERPA (Family Education Rights and Privacy Act) -- a federal student privacy law passed in 1974.

This conclusion prompted Congressional reps to step in and request a federal investigation into Pasco County's pee-wee league pre-crime program. Four months after that request was made by Representative Robert C. Scott, the US Department of Education is moving forward with its review of the program.

The Tampa Bay Times reported in November that the school district shared information on student grades, discipline and attendance with the Sheriff’s Office, which used the data to compile a secret list of schoolchildren it believed could “fall into a life of crime.”

The federal education department is now looking into the arrangement, a spokesman said Friday.

The investigation follows calls for a review by U.S. Rep. Robert C. Scott, who leads the House Committee on Education and Labor. In a statement, Scott said he was “encouraged” that the education department had accepted his request. He called the Pasco program “disturbing.”

Now that the federal government is involved, the Pasco County Sheriff's Office appears to be hastily revising its program. While it still claims the program does not label kids as criminals (despite what its own documentation says), it has started to change what data it accesses and how it obtains that access.

The law enforcement agency said that deputies, who serve in the role as school resource officers, do have access to student grades. But the agency said for the first time that students were being added to any list for review only if they had committed a crime. Aside from its school resource deputies, the agency said that Sheriff’s Office employees can see whether a student has been flagged by the district’s early warning system — not whether they had been flagged for a specific reason, such as grades or attendance.

Starting to do the right thing after months of negative press and multiple investigations isn't really doing the right thing. It's just damage control. But the Sheriff's Office already spent months or years screwing up and that's going to still come to light even if it's not trying to stop violating federal regulations.

And the Sheriff's Office still seems pretty defensive for an agency that believes it's done nothing wrong. Rather than simply defer comment until the investigation concludes, the Sheriff's Office issued a multi-paragraph comment to the Tampa Bay Times that starts out by attacking the credibility of the paper whose initial report was based entirely on the Sheriff Office's own documents.

We have no additional comment beyond what was previously provided to the Tampa Bay Times. However, we’re proud of our partnership with Pasco County Schools and the work our members do to ensure safety to students, staff and families in our community. Additionally, I’m providing you with the below, which details much of the misinformation the Times has misconstrued through the course of their reporting and sets the record straight on facts vs slant.

As always, it is our sincere hope that the Times uses this opportunity to set the record straight on their own reporting and the previous fallacies they’ve published.

The statement does its own misleading by claiming the things the Sheriff's Office is doing now are the things it has always done, despite that clearly not being the case. It's trying to backdate its culpability with this statement and that may work for small parts of the court of public opinion, but it's not going to change the course of the ongoing investigation.

Even if one is inclined to take the Sheriff's Office at its word, the fact that it "only" determined 330 students to be "at risk" for future criminal behavior is still disturbing. While identifying at-risk students can be helpful and perhaps head off future criminal acts, the Office's predictive policing program mainly serves up constant harassment to anyone selected by the software as a potential criminal. Rather than deter criminal activity, the program makes it impossible for people to break free of the criminal justice deathcycle by subjecting them to meaningless citations, extra court appearances, and frequent visits from deputies who apparently have nothing better to do with their time.

This sort of harassment isn't going to help at-risk students. And it will definitely negatively impact those caring for them, making it all the more likely something already tenuous will break completely, resulting in further hardship for everyone involved. The Pasco Sheriff's Office had made it clear it's not there to help. It has openly stated the program is there to harass people into suing or moving. And it thinks it okay to direct this same attitude at kids.

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Posted on Free Speech - 28 April 2021 @ 10:49am

Malaysian Government Claims Insulting The Queen With A Spotify Playlist Is A Threat To National Security

from the to-be-fair,-your-highness,-it-does-have-some-absolute-bangers dept

The government of Malaysia has never been shy about censoring uppity citizens for doing things like, say, exposing massive government corruption. But it also has some royalty to shield from the content created by disgruntled citizens. That's why it recently welcomed a "fake news" law into the fold, giving the government (and the royalty it ultimately serves) yet another censorial weapon to deploy.

A local artist is the latest under the jackboot, accused of making Queen Tunku Azizah Aminah Maimunah feel bad by compiling a [checks report] Spotify playlist.

Malaysian police arrested an artist on Friday for allegedly insulting the queen by posting a satirical playlist online.

The playlist riffed off a recent controversy over the royal family and coronavirus vaccines.

The artist was detained for uploading a playlist featuring a portrait of the queen and songs that included the word "jealously," senior police official Huzir Mohamed said in a statement.

Fahmi Reza actually had to take his seditious business to Apple after Spotify kept taking down his playlist. It's still up at Apple Music for the moment (archived here) and it contains plenty of songs containing variations of the word "jealous."

Yeah, it's kind of just one joke, really. But it's obviously an effective one. The playlist turns the Queen's dismissive response to concerned subjugates against her. According to local reports, the Queen secured COVID vaccines for herself and her family through some powerful United Arab Emirates connections. When residents complained, the Queen pithily asked them if they were "jealous."

So, obviously a deserving target of criticism. But when the most deserving target has all the power, things tend to turn out badly for those doing the criticizing. Somehow, this jealousy-focused playlist threatens the security of the Malaysian people.

Fahmi was being investigated for breaking Malaysia's sedition and communications laws. He faces up to three years if convicted under the act, Huzir said.

"Tough action will be taken without any compromise against anyone who intentionally threatens public security," the police official added.

Three years for a one-joke playlist. And it makes the point with all the subtlety a 101-song playlist composed with the assistance of a single search term can. But equally unsubtle is the government's response. Insulting the royal family may be bad form but it shouldn't be illegal. And this definitely doesn't threaten the security of the nation. It only highlights the insecurity of the family sitting at the top of the country's org chart.

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Posted on Techdirt - 28 April 2021 @ 6:28am

Google Says Pretty Much Everything Shields It From Being Sued Over Things Telegram Users Said

from the google-to-judge:-your-honor-what-even-is-this dept

An ambassador who last worked as a US ambassador more than two decades ago recently sued Apple and Google for… well, let's go to the tape. Apparently, it's somehow these two companies' fault that Telegram users make anti-Semitic comments and otherwise make "Ambassador Marc Ginsberg" (as the plaintiff refers to himself in his complaints) feel unsafe.

Ginsberg owns two phones -- one of each variety. That's why he's suing both Apple and Google. There's no indication Ginsberg has ever downloaded or used Telegram. Nor is there any indication he's even seen firsthand any of the content he's suing about. But in both lawsuits, he claims the mere existence of Telegram in app stores has personally harmed him and somehow devalued both of the phones he uses.

These lawsuits make no sense. And that's why Ginsberg has retained the representation of Keith Altman, last seen chucking lawsuit after lawsuit into federal courts claiming Facebook, Twitter, and YouTube are directly responsible for real-life terrorist attacks. So far, the firms last associated with Altman and his particularly stupid brand of litigation have yet to secure a win at any level of the federal court system.

Google was last to be sued but the first to respond. And it raises the expected defenses, including the "the plaintiff has chosen the wrong defendant." (h/t John Roddy)

Google's motion to dismiss [PDF] starts with a few facts that make it pretty much unnecessary for anyone -- including the presiding judge -- to read any further. Here's the opener:

Plaintiffs Ambassador Marc Ginsberg and the organization he founded, the Coalition for a Safer Web, assert that several of Telegram’s 500 million third-party users have used Telegram to send messages that contain hateful rhetoric or promote extremism. Neither Telegram nor any of its users are parties to this case, and Plaintiffs have apparently not made any effort to pursue claims against them.

Instead, Plaintiffs have sued Google. They seek to hold Google liable for the content of messages exchanged through Telegram’s platform based on Google’s role as the operator of Google Play, an online platform where users can access a wide variety of digital content and download applications, including Telegram. Plaintiffs do not allege that Google played any role in creating, operating, or moderating content on Telegram, or that it contributed to the objectionable content disseminated by Telegram’s users. Plaintiffs nevertheless assert that Google should have removed the Telegram app from Google Play, and that it violated California’s Unfair Competition Law (“UCL”) and negligently inflicted emotional distress on Plaintiffs by failing to do so. While Plaintiffs’ goals of combating anti-Semitism and hate speech are important, they have chosen the wrong target for their campaign.

Even if Ginsberg had been slightly less moronic in his litigation, he still wouldn't have been likely to succeed. Telegram's main defense would be the same as Google's: Section 230 immunity applies. It would apply to Telegram if it was being sued for content generated by its users. And it doubly applies to Google, which is another step removed, since its only connection to Telegram is the fact that the app can be downloaded from Google's app store.

There's a recent case directly on point dealing with Section 230 immunity and app store moderation. That's the one Google quotes:

This Court recently applied Section 230 to bar a similar set of claims arising from Google’s alleged failure to remove third-party apps from Google Play. Coffee, 2021 WL 49338, at *6. The plaintiffs there alleged that Google violated state consumer protection laws by allowing certain video game apps to be published. The Court dismissed the claims as a matter of law, explaining that, because plaintiffs “[sought] an order requiring Google to screen apps offered through its Google Play store and exclude those containing [certain content],” they were demanding that Google engage in “conduct that [was] squarely within the role of a publisher.” Id. So too here: “Google cannot be held liable for merely allowing []developers to provide apps to users through the Google Play store, as ‘providing third parties with neutral tools to create web content is considered to be squarely within the protections of § 230.’”

But even if those two assertions are ignored, the case contains another massive failure. To seek redress, you must have an actionable injury. There's nothing here that indicates the Ambassador has suffered anything more than being subjected to bad legal advice.

Even setting aside immunity under Section 230, Plaintiffs still fail to state a claim. First, Plaintiffs lack standing to sue under the UCL. A UCL claim requires economic injury, specifically “lost money or property,” resulting from the alleged misconduct. Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 325-26 (2011). But Plaintiffs have alleged no such injury. Instead, they contend that Ginsberg’s phone supposedly declined in value because Google kept Telegram on Google Play. This theory makes no sense. Ginsberg does not even allege that he downloaded Telegram from Google Play or used the app on his device. He certainly offers no plausible explanation of how his phone could have lost value merely because the Telegram app remained available in Google Play for other people to download and use.

This suit should be tossed immediately. I'm sure the one against Apple will be met with the same defenses and the same early exit for the other target of Ginsberg's garbage litigation. It may suck to find out app users are saying bigoted things about Jews, but there's no legal action to be had here. Even if the former ambassador was able to discover the identities of those saying these things, a lot of it would be protected speech and very little of it would actually create a cause of action worth pursuing in court. The world can be a shitty place. Lobbing stupid sue-balls at the biggest targets you can find doesn't make it any better.

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Posted on Techdirt - 27 April 2021 @ 10:46am

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

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

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

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

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

The allegations Miller sued over are incredibly disturbing.

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

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

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

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

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

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

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

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

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

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Posted on Techdirt - 27 April 2021 @ 6:32am

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

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

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

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

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

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

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

And here's what it actually did:

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

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

Here are two of the other "industry" contributors:

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

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

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

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

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

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

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

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

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Posted on Techdirt - 26 April 2021 @ 3:42pm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Posted on Techdirt - 26 April 2021 @ 12:11pm

Florida Governor Signs Law That Punishes Protesters For Protesting, Denies Them Bail

from the bunch-of-assholes-being-protected-by-an-even-bigger-asshole dept

Even though Florida didn't see many of the anti-police violence protests that spread across the nation in the wake of the George Floyd killing, its legislature and its governor have apparently decided protesters have it too easy. Governor Ron DeSantis feels the best approach to handling people fed up with police brutality and their lack of accountability is to throw more protesters (and rioters) in jail more often, and for longer.

Here are just some of the expansions signed into law by DeSantis:

The law defines “riot” in an absurdly overbroad way, if just three people “meet together to commit a breach of the peace,” triggering all kinds of enhanced penalties for those involved. If nine people are involved and traffic is blocked, participants can be charged with “aggravated rioting.”

Shockingly, it would allow peaceful protesters to be charged with a crime if other people at a demonstration they attend do something violent. “Those individuals who do not engage in any violent conduct under this bill can be arrested and charged with a third-degree felony and face up to five years in prison and loss of voting rights,” said an official with ACLU Florida.

On top of that, it forbids anyone arrested under the new law from being released prior to their first court appearance, creating what appears to be an unlawful presumption of guilt that bypasses bail and bond options for those still only accused of violations.

The law [PDF] also expands protections for state monuments (even [or, perhaps, especially] the Confederate ones) and undercuts any local efforts to reduce police department budgets by moving funds to social services or other options that might allow people in mental distress to be handled by someone who isn't armed and "reasonably" scared. If even a single local official disagrees with law enforcement budget reductions, the state can step in and veto the changes.

Considering the root of these protests lies in the lack of accountability shown by law enforcement agencies, the law's targeting of unhappy citizens makes it clear Florida cops won't be punished for violating rights and won't be expected to treat residents with respect. More power has been given to law enforcement agencies -- powers that can be used to easily disrupt and dismantle protests by people unhappy with the services they're paying for.

If the goal is to exacerbate an already tense situation, Governor DeSantis has accomplished that. He -- along with the state reps who voted for this bill -- has made it clear he believes it's the state's taxpayers who are wrong. This broadly written law that criminalizes the actions of bystanders will convert riot police to goon squads, allowing them to cage as many disgruntled citizens as possible. This treatment will presumably continue until the public's morale improves and they finally start viewing the people beating and imprisoning them as the righteous warriors cops believe they are.

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Posted on Techdirt - 26 April 2021 @ 6:25am

Signal Founder Cracks Cellebrite Phone Hacking Device, Finds It Full Of Vulns

from the distinct-lack-of-'what-if-this-feel-into-the-wrong-hands'-thinking-by-Ce dept

A pretty hilarious turn of events has led to Cellebrite's phone hacking tech being hacked by Signal's Moxie Marlinspike, revealing the tech law enforcement uses to pull data from seized phones is host to major security flaws.

According to Marlinspike, the Cellebrite came into his possession thanks to some careless package handling.

By a truly unbelievable coincidence, I was recently out for a walk when I saw a small package fall off a truck ahead of me. As I got closer, the dull enterprise typeface slowly came into focus: Cellebrite. Inside, we found the latest versions of the Cellebrite software, a hardware dongle designed to prevent piracy (tells you something about their customers I guess!), and a bizarrely large number of cable adapters.

This must be what actually happened. I mean, there's a photo of a Cellebrite lying on the street. That should end any senseless law enforcement speculation about this device's origin story.

The fun starts immediately, with Marlinspike finding all sorts of things wrong with Cellebrite's own device security. This would seem to be a crucial aspect considering Cellebrite performs raw extractions of unvetted data from seized phones, which could result in the forced delivery of malware residing on the target device. But that doesn't appear to concern Cellebrite, which seems to feel its products will remain unmolested because they're only sold to government agencies.

Since almost all of Cellebrite’s code exists to parse untrusted input that could be formatted in an unexpected way to exploit memory corruption or other vulnerabilities in the parsing software, one might expect Cellebrite to have been extremely cautious. Looking at both UFED and Physical Analyzer, though, we were surprised to find that very little care seems to have been given to Cellebrite’s own software security. Industry-standard exploit mitigation defenses are missing, and many opportunities for exploitation are present.

Just one example of this carelessness is unpatched DLLs residing in the Cellebrite system software. One DLL used to handle extracted video content hasn't been updated since 2012, ignoring more than 100 patches that have been made available since then.

This means it wouldn't be much of a hassle to target Cellebrite devices with code that could corrupt not only the current data extraction but also the results of every previous extraction performed by that device.

[B]y including a specially formatted but otherwise innocuous file in an app on a device that is then scanned by Cellebrite, it’s possible to execute code that modifies not just the Cellebrite report being created in that scan, but also all previous and future generated Cellebrite reports from all previously scanned devices and all future scanned devices in any arbitrary way (inserting or removing text, email, photos, contacts, files, or any other data), with no detectable timestamp changes or checksum failures. This could even be done at random, and would seriously call the data integrity of Cellebrite’s reports into question.

That's a major problem because phone extractions are performed to secure evidence to use in criminal cases. If law enforcement agencies can't trust the data they've extracted or rely on the reports generated by Cellebrite to perform searches, they're going to find their evidence tossed or impossible to submit in the first place.

Further inspection of Cellebrite's software also shows the company has ported over chunks of Apple's proprietary code intact and is using it to assist in iPhone extractions. Presumably, Cellebrite hasn't obtained a license from Apple to use this code in its devices (and redistribute the code with every device sold), so perhaps we'll be hearing something from Apple's lawyers in the near future.

This table-turning was likely provoked by Cellebrite's incredibly questionable claim it had "cracked" Signal's encryption. Instead, as more information came out -- including its use in criminal cases -- it became clear Cellebrite did nothing more than anyone could do with an unlocked phone: open up the Signal app and obtain the content of those messages.

Fortunately for everyone not currently working for Cellebrite, a delivery incident occurred and a phone-hacking device was impacted. Signal isn't worried that Cellebrite can break its encryption. In fact, it doesn't appear to be worried at all. This examination of Cellebrite hacking tools will only result in a small cosmetic refresh for Signal.

In completely unrelated news, upcoming versions of Signal will be periodically fetching files to place in app storage. These files are never used for anything inside Signal and never interact with Signal software or data, but they look nice, and aesthetics are important in software. [...] We have a few different versions of files that we think are aesthetically pleasing, and will iterate through those slowly over time. There is no other significance to these files.

Maybe this will force Cellebrite to care a bit more deeply about its security and the security of its customers. Or maybe it will brute force its way past this, assuming its customers still have that "our word against yours" thing that tends to work pretty well in court. But it's not the only player in the phone-cracking field. So it might want to step its security game up a bit. Or at least stop picking fights with encrypted services.

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Posted on Techdirt - 22 April 2021 @ 3:42pm

Detroit PD Detective Sued For His (Second) Bogus Arrest Predicated On Questionable Facial Recognition Searches

from the fool-yourself-once... dept

On January 9, 2020, facial recognition tech finally got around to doing exactly the thing critics had been warning was inevitable: it got the wrong person arrested.

Robert Williams was arrested by Detroit police officers in the driveway of his home. He was accused of shoplifting watches from a store on October 2, 2018. The store (Shinola) had given Detroit investigators a copy of its surveillance tape, which apparently was of little interest to the Detroit PD until it had some facial recognition software to run it through.

This was the dark, grainy image the Detroit PD felt was capable of returning a quality match:

That picture is included in Williams' lawsuit [PDF] against the Detroit Police Department. Even in the best case scenario, this picture should not have been uploaded to run a search against. It's low quality, poorly-lit, and barely shows any distinguishing facial features.

What makes it worse is that all facial recognition AI -- across the board -- performs more poorly when attempting to identify minorities. That's the conclusion reached by an NIST study of 189 different algorithms. It's not just some software. It's all of it.

The Detroit PD chose to run with that photo. Then it decided the search results it had were close enough to probable cause to effect an arrest, even though the software used stated clearly search results should not be used this way. The search was performed by the Michigan State Police from the grainy image submitted by the Detroit PD. A report was returned but investigators were cautioned against trying to turn this into probable cause:


The report was also light on any other details that might have indicated Robert Williams was actually the shoplifter in question.

The Investigative Lead Report contains neither the “score” generated by the facial recognition system representing the level of confidence that Mr. Williams’s photo matched the probe image, nor the other possible matches that, upon information and belief, should have been returned by the system.

The Detroit Police Department did not attempt to ascertain the “score” generated by the facial recognition search nor request the other possible matches to the probe photo.

Two months after the PD obtained these search results, the investigation was turned over to another detective, Donald Bussa. At the point he assumed control of the investigation, Bussa was supposed to be operating under the PD's new facial recognition policy that acknowledged the limitation of the tech and stated search results would need to be peer reviewed to ascertain their accuracy. This didn't happen.

Defendant Bussa, however, ignored the new policy. Even though the facial recognition search “identifying” Mr. Williams as the shoplifter was generated by a woefully substandard probe image and had never been peer reviewed by DPD officers, as required by the new policy, Defendant Bussa decided to rely on the lead anyway.

Bussa assembled a "six pack" of suspect photos that contained an image taken from Williams' expired drivers license. (Before this investigation took place, Williams had secured a new license and an updated photo.) He tried to speak to the staff at Shinola but management refused to cooperate, stating that it was not interested in having its employees appear in court. Unable to speak to the sole eyewitness who had actually conversed with the shoplifting suspect, Detective Bussa decided to bypass Shinola completely.

Defendant Bussa then arranged to conduct a six-pack photo identification with Katherine Johnston. Ms. Johnston, then employed by Mackinac Partners, was contracted by Shinola for loss prevention services.

Defendant Bussa had no legitimate basis whatsoever for asking Ms. Johnston to participate in an identification procedure. Ms. Johnston was not an eyewitness. Ms. Johnston was not in the Shinola store at the time of the incident and has never seen Mr. Williams or the alleged shoplifter in person. Indeed, Ms. Johnston’s sole relation to the incident was that she had watched the same low-quality surveillance video that Detective Bussa possessed.

Bussa sent Detective Steve Posey out with the loaded "six pack" to pretty much guarantee Williams was selected as the prime suspect.

The photo array was not a blind procedure—Posey knew that Mr. Williams was the suspect. Indeed, Posey’s sheet was nearly identical to that given to Ms. Johnston, except that Mr. Williams’s name was printed in red while all other names were printed in black.

Ms. Johnston identified Mr. Williams’s expired license photo as matching the person she had seen in the grainy surveillance footage, and answered the question “Where do you recognize him from?” with “10/2/18 shoplifting at Shinola’s Canfield store.”

With that, Bussa went out to get an arrest warrant and the rest is facial recognition history. He secured this warrant by omitting some key details, like the fact the suspect was picked out of a facial recognition database using a low quality image. It also did not note that the person who picked Williams out of Bussa's loaded lineup wasn't even at the store the day the shoplifting happened. And it didn't mention Bussa's bypassing of Detroit PD policies that were put in place to prevent exactly this sort of false identification.

The lawsuit also points out that the same software and the same two detectives were involved in another false arrest -- one that occurred five months before the PD arrested Williams. Detective Bussa and Detective Posey used unvetted search results to arrest Michael Oliver for an assault he didn't commit. Even if the facial recognition software had done its job accurately (which it didn't), the tech would not have noticed something far more obvious: the suspect's arms (as captured in the phone recording) were unmarked. Michael Oliver's arms are covered with numerous tattoos.

Williams alleges a long list of violations he's hoping to hold Detective Bussa (and his supervisor) accountable for. It's going to be pretty difficult for the detective to argue he operated in good faith in the Williams arrest. After all, he'd already followed the same broken process to falsely arrest someone else months earlier. Then he ignored the PD's policy on facial recognition tech. He also ignored the big, bold warning printed across the search results he obtained from the State Police. And none of this information -- which would have undercut his probable cause assertions -- made its way into his warrant request.

Any reasonable officer would know a lot of what Detective Bussa did was wrong. But Bussa would know this more than even the most reasonable of officers because it wasn't the first time he'd screwed up.

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Posted on Techdirt - 22 April 2021 @ 10:51am

Captive Markets Are Just Hostages; Or Why Your McDonalds Never Seems To Have A Functioning Shake Machine

from the it-would-be-a-shame-if-your-machine-didn't-work...-oh-wait dept

McDonald's shake/ice cream machines are notoriously flaky. The most common response to requests for ice cream are sullen statements that the machine is down. It's so much a part of popular culture, an enterprising individual crafted a bot that lets people know which machines are up and which machines are going to be a waste of their time.

To be sure, the shake/ice cream device used in almost every McDonalds is a complicated piece of machinery. Not only does it need to provide two different kinds of ice cream-related products from the same machine, but it must do it while operated by employees whose fast food careers can be measured in days, if not hours.

But there's got to be a better way. And there probably is. But the company that makes the machines -- Taylor Restaurant Equipment -- doesn't want there to be a better way. It wants it to be Taylor's way... or no way at all.

A captured market is always a great thing... for product makers. As long as you don't care about end users -- whether they're people seeking ice cream or people wondering why they can't use their scanner because they're out of cyan ink -- you can corner a market and let the endless revenue streams wash over you.

A lot of companies have discovered this one simple trick: the best captive audience is one you hold hostage. That's how Taylor runs its ice cream machine business. It has hooked up with major players in the fast food industry and has limited franchisees' ability to handle any issues with their equipment on their own.

When the shake machine is down, no one onsite can fix it. That goes beyond planned obsolescence to planned incapacity. Wired has a fascinating article that touches on how Taylor has muscled everyone else out of the market by making its machines solely beholden to Taylor techs. (Please go read it. It is worth every minute of your time.) This means every franchisee must sign a lengthy service agreement if they expect to provide this product to customers on a far-from-regular basis.

Some enterprising hackers found out how to bypass the built-in problems Taylor inserts into every machine it sells. There's a code that allows access to the inner workings of the machine -- one that can also help translate its cryptic error messages. If franchisees had this information, they could do their own troubleshooting and repairs, rather than paying Taylor techs exorbitant amounts to, I don't know, press the reset button to allow the resumption of service.

So two years ago, after their own strange and painful travails with Taylor’s devices, 34-year-old O’Sullivan and his partner, 33-year-old Melissa Nelson, began selling a gadget about the size of a small paperback book, which they call Kytch. Install it inside your Taylor ice cream machine and connect it to your Wi-Fi, and it essentially hacks your hostile dairy extrusion appliance and offers access to its forbidden secrets. Kytch acts as a surveillance bug inside the machine, intercepting and eavesdropping on communications between its components and sending them to a far friendlier user interface than the one Taylor intended. The device not only displays all of the machine’s hidden internal data but logs it over time and even suggests troubleshooting solutions, all via the web or an app.

Franchise owners loved it. McDonalds was somewhat ambivalent... at least at first. Taylor hated it. It gave franchisees easily understandable information on their $18,000 machines, allowing them to head off problems and take care of issues that rose frequently, like inattention to detail when cleaning the machine or -- as in one case cited in Wired's report -- an overly enthusiastic employee loading up the machine with too much mix.

Taylor considers literally any information extracted from its machines to be proprietary. It spent months trying (without avail) to obtain a Kytch of its own to, presumably, reverse engineer or sue into nonexistence. One McDonalds exec apparently saw the value of the product, though, and gave it some free advertising during a franchisee conference.

But in the end, Taylor won. It used its leverage to hold McDonalds hostage, which resulted in every franchisee feeling the cold steel of Taylor's shake gun pressed to its head. It told franchisees use of the device would void the warranty. Then it made a device of its own to cut Kytch out of the market.

The very next day, McDonald’s sent another note to franchisees announcing a new machine called Taylor Shake Sundae Connectivity that would essentially duplicate many of Kytch’s features. The note ended with a repeat of its boldfaced warning not to use Kytch.

As McDonald’s restaurant owners canceled hundreds of subscriptions, trials, and commitments to install Kytch over the next months, the startup’s sales projections evaporated. Finding new customers became impossible. Their sole, flabbergasted salesperson quit.

Who needs to break knees when you can just instantly void franchise agreements? And who needs Stockholm Syndrome when the only other approved option for McDonalds franchisees is made in Italy and can cost thousands of dollars more?

But franchisees buy the machine. They own it. But they're unable to do anything with their purchase unless Taylor says it's ok. And right-to-repair laws won't change much -- not when McDonald's can literally end the lease on the property the restaurant is sitting on.

The fix is in. And actual fixes are expensive, thanks to only-game-in-town pricing that benefits Taylor and leaves customers wondering when the shake machine will be back up. If there's one thing to take away from this (beyond the borderline extortion masquerading as a business model), it's this: if the machine is down, don't yell at the employees. They can't do anything about it. And neither can the owner, most likely. Send your complaints to Taylor Restaurant Equipment, which is almost solely responsible for the inconvenience.

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Posted on Techdirt - 21 April 2021 @ 1:43pm

China Pushing Explicitly-Biased Facial Recognition Standards And Local Tech Companies Are Pitching In To Help

from the [clippy-bmp]-it-looks-like-you're-trying-to-commit-genocide dept

Facial recognition tech is plagued by bias, most of it unintentional. That's why it tends to perform more poorly when attempting to recognize minorities and women. Law enforcement doesn't tend to view these problems as bugs since it, too, operates with many of the same biases. But these are usually the byproduct of faulty inputs, which can be exacerbated by choices made by end users.

In China, the bias is the point. The Chinese government's persecution of its Uighur population has seen local tech companies tasked with providing surveillance tools that single out Uighur Muslims so the government can more efficiently control them.

Huawei is building a system that provides the government with "Uighur alarms" whenever a suspected Uighur passes in front of the government's millions of cameras. According to Huawei, this is still in the testing phase, which means nothing more than there's a plan for it to be put to use. Even if it's no more accurate at identifying Uighurs than it is at identifying criminals, it will likely be good enough to put to real-world use. Collateral damage to innocent residents isn't the sort of thing that slows surveillance rollouts in China.

China wants even more facial recognition power. And it has several partners willing to help it out, even if it means the tech will be used to oppress people, rather than protect people from things like crime and security threats.

China enlisted surveillance firms to help draw up standards for mass facial recognition systems, researchers said on Tuesday, warning that an unusually heavy emphasis on tracking characteristics such as ethnicity created wide scope for abuse.

The technical standards, published by surveillance research group IPVM, specify how data captured by facial recognition cameras across China should be segmented by dozens of characteristics - from eyebrow size to skin color and ethnicity.

"It's the first time we've ever seen public security camera networks that are tracking people by these sensitive categories explicitly at this scale," said the report's author, Charles Rollet.

New standards issued by the Chinese government mandate detection of certain traits, including ethnicity and skin color. These mandates don't just affect the cameras the government owns. They also require this tech be built into cameras operated by private businesses and residential structures.

And it's no longer limited to areas where the Uighur population is largest. It's intended to cover the entire country. The standards issued by the government don't specify which ethnicities the government is most interested in, but other documents seen by IVPM spell it out pretty explicitly.

The police standards above only mention "ethnicity" in the context of China's 56 official ethnic groups. Uyghurs are not explicitly mentioned by these standards, despite the fact that Chinese police often integrate Uyghur-detecting AI software in their security camera networks.

However, a Chinese facial recognition company, Bresee, which is owned by Uniview's parent company TransInfo, uploaded an explainer to its website that "EthicCode" is meant for tracking Uyghurs and Tibetans ('Zang' people in Chinese) specifically.

As is always the case when more details come out about the Chinese government's latest tech company aided affront to humanity, the tech companies named have stepped up to offer very carefully worded non-denials. Here are two US government blacklisted surveillance camera manufacturers (Dahua and Hikvision) not denying they will be contributing to the deployment of tech targeting certain ethnic groups.

Dahua described as "false" media reports that it had helped draft government standards for detecting individual ethnic groups.

"Dahua was not involved in creating the database section of the document that mentions ethnic groups," the company added in an emailed statement.

Asked about the IPVM report, a Hikvision spokesman said the company was "committed to upholding the highest standards and respect for human rights".

"As a manufacturer that does not oversee the operation of our products, we do ensure our cameras are designed to protect communities and property," he added.

Dahua: We didn't write the standards we will be following. Hikvision: Hey, we just make the stuff. Pretty much the upper extent of backbone allowed by an authoritarian government that isn't going to take "no" for an answer. That's why the mandates exist. And if these companies want to continue to exist, they'll do what they're told.

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Posted on Techdirt - 21 April 2021 @ 9:38am

Filming Cops Is The Best Accountability Tool: Officer Derek Chauvin Convicted Of Murder For Killing George Floyd

from the one-down,-hundreds-to-go dept

This isn't an endpoint. This is only a beginning. This is one small step forward for accountability. It doesn't change the police culture that not only allows, but encourages, this sort of force deployment. But it does send the warning that juries may not be as deferential to police officers as they've been historically.

To successfully prosecute a cop, you have to want to do it. Too many prosecutors would rather not expend the effort needed to hold their comrades-in-arms accountable for their actions. But every so often, a cop engages in such a callous display of violence, even those normally on the side of law enforcement can't condone their actions.

That's what happened to former-officer, current-convicted-murderer Derek Chauvin. Thanks to bystanders and their recording devices -- especially then-17-year-old Darnella Frazier, whose recording of the 10-minute ordeal was instrumental in building a case against Chauvin -- this one cop wasn't able to escape the consequences of his actions. For nearly 10 minutes, Chauvin pressed his knee into George Floyd's neck. He ignored Floyd's increasingly-distressed statements that he couldn't breathe. He ignored a fellow officer who informed him he could no longer detect a pulse. He remained in place, looking for all the world like the personification of every racist policy this nation has enacted, until George Floyd was dead.

And for that callous and reckless display of power, Derek Chauvin will be going to jail. The Minneapolis jury convicted him of all three counts. Here's the recording of that moment, which cathartically includes the cuffing of Chauvin by sheriff's deputies.

There are three counts, but Chauvin will only be sentenced for the most serious charge: second-degree unintentional murder. That's perhaps still unsatisfactory (nothing about Chauvin's actions appeared to be "unintentional") but it's better than we've come to expect from our criminal justice system when it's forced to address the actions of law enforcement officers.

Let's not forget that without the recordings made at the scene by citizens and nearby surveillance cameras, it's likely no charges would have been filed.

This is how the Minneapolis PD originally described a white cop pressing his knee into the neck of an unarmed black man until he was dead:

Man Dies After Medical Incident During Police Interaction

May 25, 2020 (MINNEAPOLIS) On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress. Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.

Two officers arrived and located the suspect, a male believed to be in his 40s, in his car. He was ordered to step from his car. After he got out, he physically resisted officers. Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.

At no time were weapons of any type used by anyone involved in this incident.

Oh, and just in case you worried about this particular aspect...

No officers were injured in the incident.

The death was apparently unrelated to the act of violence perpetrated on George Floyd by Officer Derek Chauvin. At least according to the Minneapolis PD, which whitewashed this press release and whitewashed it again before posting it. But once the videos started showing up on social media, it could no longer ignore what anyone could plainly see had happened. This wasn't a "medical incident." It was -- as the jury declared -- a murder.

Police reform efforts are still important. This blip on the zero-accountability radar shouldn't be treated as a sign things are fixed. It shouldn't even be an indicator that things are getting better. But hopefully some law enforcement agencies will recognize the public is, at best, unimpressed with their efforts and their careless disregard for all lives that aren't "blue," but especially those that aren't white.

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Posted on Techdirt - 21 April 2021 @ 4:36am

Law Enforcement Officials Confirm Clearview's Facial Recognition Tech Is Mostly Useless

from the well,-you-get-what-you-pay-for... dept

A stash of public records recently obtained by BuzzFeed shows far more law enforcement agencies have experimented with Clearview's facial recognition software than previously acknowledged. The searchable data shows Clearview is still something law enforcement is interested in experimenting with. And there's probably more to this story, given that nearly 1,200 agencies refused to respond to BuzzFeed's requests.

Clearview boasts something most other facial recognition tech companies can't: billions of images and a host of other personal info attached to those images. Unlike other databases that usually draw from public records like mugshot databases and DMV files, Clearview scrapes the web to compile its database, pulling photos and other info from the billions of public posts/accounts hosted by platforms like Twitter, Facebook, and LinkedIn.

As the amount of input increases, so does the margin of error. But Clearview routinely overstates its accuracy. Last year, it claimed it "passed" the ACLU's facial recognition test. The ACLU disputed this claim, pointing out Clearview had not actually run the test as designed and that its software used things not commonly used by law enforcement, like clear photos and a database full of scraped images and personal info. Clearview's ability to properly recognize photos of senators and Congressional reps wasn't a sign of success, but rather the end result of playing with a loaded deck that linked clear, high-quality photos to Congressmembers' social media accounts and official websites.

But the experimentation continues, urged on by Clearview's baseless claims of miraculous facial recognition technology. Jake Laperruque -- writing for the Project on Government Oversight (POGO) -- points out the company has routinely overstated the tech's effectiveness.

Clearview AI’s pitches to law enforcement disclosed in public records requests are shockingly boastful. The company claims to have “the most accurate facial identification software worldwide” and to consistently produce accurate results “in less than five seconds.” The company even goes so far as to tell police that using its software will make them “realize you were the crazy one” for not believing face recognition would perform the same as it does in outlandish TV depictions like “NCIS, CSI, Blue Bloods.”

You can make these outlandish claims when you're not willing to submit your tech to examination by outside experts. Sure, you can make them. But you shouldn't expect people to believe them. All the free passes handed out to law enforcement officers haven't resulted in a showering of accolades and a bunch of closed cases. First-hand experiences reported to BuzzFeed show law enforcement remains unimpressed with Clearview's product. Here are just a few of the damning quotes compiled by POGO:

“Photos entered were of known individuals, including themselves and family members. The software did not yield accurate results and they ceased using it prior to the end of the 30 day trial period.” —Kathy Ferrell, public information officer, Smyrna Police Department

“We didn’t find it to be very useful so we stopped using it. Half the searches were on us to see what it would pull up. We were getting very poor results.” —Barry Wilkerson, police chief, St. Matthews Police Department

“We had one detective who had access two or three years ago after attending a social media investigation course. He said he used it several times but was never successful in finding accurate matches and discontinued its use.” —Brian Gulsby, spokesperson, Daphne Police Department

Despite this, Clearview continues to overstate its accuracy. Its pitches remain aggressive and highly imaginative. The reality, however, is still disappointing. And that is reflected in its internal memos, which acknowledge the limitations that affect all facial recognition tech also affect Clearview's product. The only "advantage" it has is a database containing more than a billion scraped photos.

But bigger doesn't mean better. And it sure as shit doesn't mean more accurate, as law enforcement officers who've test driven the product can attest. All it means is Clearview is trying to turn its internet Xerox into the go-to product for rights violations.

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Posted on Techdirt - 20 April 2021 @ 3:43pm

Appeals Court: No Immunity For Cops Who Punched A Man Hanging From A Second Story Window And Tased Him When He Hit The Ground

from the I-didn't-see-a-weapon-but-I-didn't-*not*-see-a-weapon-either dept

It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.

This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.

The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.

But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

According to Peroza-Benitez, as he was hanging from the windowsill with his hands, his feet “dangling,” C.I. Haser “repeatedly” punched him in the temple region of his head with a closed fist. App. 173. C.I. Haser testified that he punched Peroza-Benitez “[o]ne or two times . . . . [p]robably two,” with the purpose being to “stun” and “disorient” Peroza-Benitez into compliance “to help him out.”

That's a weird way of helping. Haser's next attempt to "help out" was even weirder.

It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought “we’re like, screw it, you want to fall, you’re gonna fall. So we let go of him.”

Peroza-Benitez fell. And as he fell, Officer Daniel White made quite the set of observations:

Officer White indicated to his fellow officers that he was ready to assist should Peroza-Benitez fall. Officer White did not observe a weapon, or “the absence of one,” in Peroza-Benitez’s hands as he fell from the window.

Schrodinger's weapon: one that exists in two states until an officer feels comfortable testifying one way or the other. Officer White's did/didn't statement was made to excuse his response to the suspect falling and breaking his leg: the deployment of his Taser.

Officer White tased Peroza-Benitez after he struck the concrete steps. Officer White, without providing a verbal warning, deployed his taser in dart mode for a 5-second cycle. Accounts differ as to the exact duration of time that elapsed between Peroza-Benitez landing in the stairwell and getting tased, ranging from “as soon as he hit the concrete” to “less than five seconds.” However, the parties agree that Peroza-Benitez was tased either immediately or almost immediately upon landing.

Some of the cops (including Officer White) claimed the suspect "lunged forward" as if he was going to start running on his broken leg. The plaintiff claims he was temporarily knocked out after his head hit the concrete. Both Officer White and C.I. Haser claimed qualified immunity shielded their actions. The Second Circuit says they're both wrong.

Here, Peroza-Benitez was unarmed, injured, covered in his own blood, and hanging from a second-story window by his hands, feet dangling, when C.I. Haser – knowing Peroza-Benitez to be unarmed – punched him “repeatedly” in the head with a closed fist. C.I. Haser’s punches “stunned and disoriented” Peroza-Benitez, causing him to fall over ten feet into a below-ground concrete stairwell. Accordingly, we rely on a modification of the District Court’s definition: The Fourth Amendment right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death.

Previous case law dealing with stunning suspects in precarious positions all deal with Taser deployments. The end result is the key, not the method used.

Officer Smith – who was with C.I. Haser at the window – testified that it is “against protocol” to “tase someone on the roof” because if “they fall off, that’s not going to be good. We’re not gonna tase someone that’s on a roof.” App. 53. The same exact logic applies to deliberately punching someone “to stun” them, App. 187, when that person is hanging out of a window.

The same goes for Officer White. Case law may not be exactly on point but a reasonable officer should know that tasing a possibly unconscious person was excessive force.

Viewing the facts in the light most favorable to Peroza-Benitez – again, as we must do at summary judgment – Peroza-Benitez was tased by Officer White while lying unconscious after having fallen over 10 feet into a below-ground, concrete stairwell. The duration of time that elapsed between Peroza-Benitez hitting the ground and getting tased does not change the fact that, in the light most favorable to Peroza-Benitez, he was tased while visibly unconscious and after multiple seconds had elapsed, App. 264, such that a reasonable jury could find that Officer White should have known that he was tasing an unconscious individual.

The case heads back to the lower court and -- if this law enforcement agency chooses not to settle -- a jury will get to decide whether or not rights were violated. According to what the court sees here -- and the admissions made by the officers involved -- there's a pretty good chance this will end in the plaintiff's favor. More factual development isn't going to change the fact one cop said "screw it" and let the suspect fall. And it won't change Officer White's response to someone falling off a second-story windowsill into an alley filled with cops: a swift tasing of someone in no position to escape.

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Posted on Techdirt - 20 April 2021 @ 11:53am

Federal Court Tells Minnesota State Police To Stop Attacking, Harassing, And Arresting Journalists Covering Protests

from the really-shouldn't-have-to-be-told-this dept

Minneapolis, Minnesota was still on edge when a cop shot another unarmed black man. The trial of former officer Derek Chauvin is still underway. Last May, Chauvin knelt on the neck of George Floyd for over nine minutes -- including two minutes after another officer was unable to detect a pulse.

With this hovering in the air, another senseless killing by an officer set everything off. Again. 26-year-veteran officer Kim Potter (who served a year as the head of the police union) turned a "routine traffic stop" into a homicide when Daunte Wright broke free from another officer and jumped back into his car. Potter yelled "Taser! Taser! Taser!" while pointing her gun at Wright. She shot him once, which was enough to kill him. Potter's service weapon was holstered on her right side. The Taser she supposedly thought she had in her hand was holstered on her left. The Taser was bright yellow. The gun she shot Wright with was not.

Officer Potter resigned but it didn't change anything. She has been arrested and charged with second-degree manslaughter. Potter's error -- which seems completely inexplicable given the location, distance, color, and weight of the weapons she confused -- turned Brooklyn Center, Minnesota into ground zero for more protests and riots. And the Chauvin trial continues, promising more of the same if the end result is unsatisfactory.

More of the same is also being observed by protesters and the journalists covering them. Protests around the country following the George Floyd killing were greeted by police violence. Journalists and legal observers were often targeted with the same crowd control efforts deployed against protesters and rioters. In far too many cases, officers (especially federal officers sent in to "help") appeared to specifically target journalists for abuse, including harassment and close-range deployments of pepper spray, tear gas, and other crowd control efforts.

This targeted harassment of well protected First Amendment activity has resulted in lawsuits. So far, the government has always come out on the losing end. The same goes for Minnesota, where a judge has just approved a restraining order forbidding officers from targeting or arresting journalists. Here's Tony Webster's coverage of the mid-protest litigation:

A Minnesota federal judge has issued a temporary restraining order barring Minnesota state law enforcement from using force against journalists or ordering them to disperse while covering protests. The ruling does not apply to local law enforcement or the National Guard, however.


In a 22-page order, Judge Wilhelmina M. Wright cited examples of police treatment of the press over the past week, including police orders specifically directed to members of the press to vacate protest areas, and incidents of journalists being pepper sprayed, physically grabbed, or hit by projectiles.

There are limitations and it doesn't affect every agency policing protests. But the allegations aren't theoretical. There's plenty of evidence cops are going after journalists specifically. A letter [PDF] sent to Governor Tim Walz and the heads of three state law enforcement agencies on behalf of multiple press outlets contains disturbing documentation of officers targeting journalists.

The letter follows the restraining order put in place by a federal judge -- one that appears to have been immediately violated by officers, including those specifically told by their agency (the Minnesota State Police) to leave journalists alone.

[A]s discussed on our call, reports from journalists on the ground indicate that over the last several days—and even last night after the TRO was in effect—law enforcement officers have engaged in widespread intimidation, violence, and other misconduct directed at journalists that have interfered with their ability to report on matters of intense public interest and concern.

The letter contains a long list of violations committed by law enforcement officers who knew they were dealing with journalists.

Two separate photojournalists on assignment for The New York Times were harassed by officers. In one instance, a Minneapolis State Patrol Captain recognized the photojournalist, rushed out of a police line, and grabbed him. The officer then pulled the journalist behind the police line where another officer held his hands behind his back and took his phone. When the journalist asked “why,” the officer said: “Because that’s our strategy right now.”


Carolyn Sung, an Asian-American CNN producer, was thrown to the ground and arrested by state troopers Tuesday night while trying to comply with a dispersal order. As Sung tried to leave the area as directed, troopers grabbed Sung by her backpack and threw her to the ground, zip-tying her hands behind her back. Sung did not resist and repeatedly identified herself as a journalist working for CNN and showed her credentials.


On April 13, while in a car with others, police officers surrounded the car, banging on the windows and doors with wooden sticks and yelling to get out. The driver of the car was dragged out and arrested; another photographer in the car was taken out and talked to. The New York Times journalist was repeatedly hit by officers while in the car, and the officers also tried to break his camera.

On the night the restraining order went into effect, journalists were kettled by Hennepin County deputies. After they were released, they ran into another set of officers one block north of where they were first detained. These officers ordered them to "line up for processing," which took the form of each journalist being ordered to produce ID, lower their face masks, and be photographed by the officers.

Then there were incidents like these, where press members, clearly marked as "press" in fluorescent "press" vests, were pepper-sprayed by an officer standing just a few feet away from them.

The Minnesota State Police issued its own orders following the approval of the restraining order. It admits its policy used to be to temporarily detain and photograph journalists. That's no longer the case. Officers may still ask to see credentials but they're barred from taking pictures of press members or their press passes. The rest of the MSP's orders follow the specifications of the restraining order, which says officers will no longer be able to arrest journalists for not complying with dispersal commands while noting this is the "primary change" affecting how MSP officers "interact with the press."

But there have been no similar pledges to respect journalists and their rights from other law enforcement agencies. Perhaps they're all waiting to be told specifically by federal judges to stop violating rights, even though it's clear similar actions by government agencies not named in the suit would be just as much of a violation.

This remains unsettled and journalists will continue to be targeted and attacked by law enforcement officers. And if it's this bad now, it's only going to get worse once the Derek Chauvin verdict is delivered. Journalists can provide crucial documentation of police activity during these protests. And it seems clear many officers would prefer this didn't happen.

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Posted on Techdirt - 20 April 2021 @ 9:44am

MyPillow CEO Sues Dominion For Violating His Company's Right To Say The Things About Election Fraud It Definitely Isn't Saying

from the [rereads-headline]-...-look,-I-just-work-here... dept

Trump supporter and pillow manufacturer Mike Lindell was among those sued for defamation by Dominion Voting Systems over weeks of wild allegations about voter fraud that followed Donald Trump's loss at the polls in the 2020 election. Mike Lindell and his company, MyPillow, joined such luminaries as Rudy Giuliani and former Trump legal team member Sidney Powell as a recipient of a billion-dollar libel lawsuit.

Now, Mike Lindell is fighting back. He's attempting to dismiss Dominion's lawsuit, claiming his alleged libel was nothing more than heated commentary touching on important political issues. More credibly, he's asking his company to be dismissed from the lawsuit because his company did not make any of the statements Dominion is suing over.

Less credibly, he's filed a lawsuit [PDF] of his own against Dominion, claiming that naming his company as a defendant in a lawsuit somehow violates his company's rights. Considering this suit is only supposed to be about Dominion's "silencing" of MyPillow, the complaint spends a lot of its run time trotting out supporting evidence for the claims about Dominion Lindell says his company never made.

That leads to some really weird assertions by Lindell, like the claim that naming a company in a lawsuit is an attempt to silence anyone associated with MyPillow and/or allegations of election fraud.

Dominion’s true purpose is not simply to silence Mike Lindell, but to silence anyone else who might speak out on election fraud. Thus, Dominion also sued the company Mike Lindell founded, MyPillow, and hence its hundreds of employees, some of whom are co-owners. Dominion did not sue MyPillow because MyPillow made statements about Dominion. MyPillow made no such statements. Instead, by suing MyPillow, Dominion seeks to punish MyPillow’s CEO, Mike Lindell, for his statements. Dominion also seeks to send a message to others: “Shut up or else.”

But who is Dominion shutting up? Lindell claims it's trying to silence MyPillow, even though he also claims there's nothing to be silenced.

Having never commented on the election or Dominion, MyPillow has nonetheless borne the full wrath of Dominion’s illegal campaign of intimidation.

So, the speech MyPillow isn't engaging in needs to be protected… otherwise it won't feel comfortable continuing to not offer its opinion on topics of public debate.

Dominion is using the legal process as a weapon to suppress free speech. In contrast, MyPillow brings this action to open debate and expand free speech. Indeed, MyPillow would move this entire debate to the public square for a full airing of all facts and opinions on the subject. This lawsuit is brought in support of the marketplace of ideas and to remedy the grave harm that has been suffered by MyPillow as a result of Dominion’s suppression of speech and attacks on the Company.

Now, there may be some "grave harm" to be examined, but probably not under these claims. MyPillow has lost customers due to Mike Lindell's actions (and reactions to those actions, like Dominion's libel lawsuit). But none of that can plausibly be traced to Dominion adding MyPillow as a defendant in a civil lawsuit, especially since it's likely to be dropped as a defendant once the court handles Lindell's motion to dismiss.

Then there's the question of how one private company (Dominion Voting Systems) can violate the rights of another private company (MyPillow), especially when the only thing involved at this point is a single libel lawsuit. Lindell theorizes Dominion is actually a government actor and that's how rights can be violated. But even if Dominion is considered a government actor, its government work is limited to production and support of voting software and hardware. The lawsuit brought against Lindell for defamation is not part of its government role.

What follows these accusations is a bunch of narrative that supposedly supports the claims about Dominion Lindell says MyPillow never made. Then it's back to the action, where Dominion suing a handful of people for libel is every censorial cliche all at once.

Dominion’s campaign descends from a long and sad history in this country, the McCarthy era in which lives and organizations were destroyed, and families torn apart, for being labeled a Communist. Just as during that era being associated with a suspected Communist could end a professional career, so too today, those who, like MyPillow are merely associated with a critic of Dominion and the integrity of the 2020 election, face expulsion from public life in large parts of America. Dominion is using today’s cancel culture to eliminate dissent and to cover up the election issues that compromised the 2020 result.

Oh, McCarthyism? As in Sentor Joseph McCarthy, an actual government actor? Or is this some off-brand McCarthyism that can only be waged by private contractors supplying tech to government agencies? Cancel culture should help fill out your batshit lawsuit bingo cards, although it is disappointing Lindell never chooses to refer to Dominion as "woke."

And then there's more about how much MyPillow has been harmed:

Even giant, publicly traded retailers are not immune from public opinion and political pressures. Fearing retribution in the marketplace, many of MyPillow’s commercial suppliers and buyers have as a direct result of Dominion’s crusade terminated longstanding relationships with MyPillow which were projected to grow.

If Lindell was being honest, he would understand it was his public statements that caused this to happen, not Dominion's lawsuit. The list of things that have happened to MyPillow -- including the loss of social media accounts and employees being harassed -- can be directly tied to Lindell's "heated political commentary." You know, the baseless allegations of widespread voter fraud that have yet to be proven anywhere.

This sort of thing may work in a motion to dismiss:

MyPillow has never entered the public debate about the 2020 election; again, it has made no statement about Dominion whatsoever.

But it makes absolute zero sense in a standalone lawsuit filed by MyPillow, especially when its followed by this:

Defendants’ illegal campaign to punish and silence their critics violates the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions and agents under the Fourteenth Amendment and 42 U.S.C. § 1983.

According to Lindell's own claims, MyPillow is not, nor has it ever been, a critic of Dominion. You can't sue over speech you haven't made. You can make a claim about prior restraint, but that's going to fail because Dominion isn't a government entity, nor has it secured a court order forbidding Lindell's company from "entering the public debate."

Just really amazing stuff in here:

Defendants’ reprisal actions were motivated, at least in part, by MyPillow’s and its CEO’s exercise of their free speech rights protected under the First Amendment and, as applied against the states and their political subdivisions and agents, the Fourteenth Amendment.

Again, the rights Lindell swears MyPillow isn't utilizing.

Galaxy brain litigation:

As the result of Defendants’ actions, and as expected and intended by them, Plaintiff suffered the loss of substantial property interests, including, but not limited to, loss of long-standing business relationships, loss of supplier contracts, and loss of access to promotional access in media.

Plaintiff was not provided due process in connection with the loss of its property interests caused by Defendants.

I guess Lindell is unaware of the lawsuit he's currently trying to dismiss. That litigation is due process exemplified. Dominion has made accusations. Lindell is being given the opportunity to dispute those allegations. This is literally the due process he's claiming has been denied him by Dominion's lawsuit. (Also, Dominion isn't a government entity so the rights violation claims are still utterly ridiculous even without this absurdity piled on top.)

To sum up: the claims will fail because they are terrible, but mostly because they are also being brought against a non-government entity under the theory that it's actually a government entity. I assume the judge handling this will read it as a motion to dismiss that was filed in the wrong court and kindly ask Lindell to stop wasting the court's time.

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