Posted on Techdirt - 3 September 2015 @ 3:04am
Vehicle vanity plates are a form of expression -- albeit one often severely limited by the arbitrary decisions of state agencies. Last year, we covered a man's battle against New Hampshire's Dept. of Motor Vehicles for the right to
be subjected to increased police harassment attach a "COPSLIE" license plate to his car. He won (but probably also lost), in part because his backup vanity plate application -- for a government-hugging "GR8GOVT" -- was approved by the agency.
This put to lie the agency's claim that it only forbade plates that would be "offensive" to a "reasonable person." Many more people would disagree with the sentiment that government is "great" than would find the thought of cops lying "offensive." It didn't help that the agency also pointed out in its rejection paperwork that individual employees found his "COPSLIE" plate insulting -- thereby inserting the agency as a proxy for the average New Hampshirean.
Now, the shoe's on the other foot (to a certain extent...) and the battle is being fought in a different state. First off, it's a cop who's being denied his request for a vanity plate. The common ingredient is a highly-arbitrary rejection process. Here's a very brief summary, from Martha Neil's article for the ABA Journal.
An Indiana cop may be on the verge of regaining his treasured 0INK vanity plate.
The state’s top court heard arguments Thursday on a class action pursued by Greenfield police officer Rodney Vawter, with the help of the American Civil Liberties Union of Indiana, after his renewal application for the 0INK license plate was denied, the Associated Press reports.
Vawter, a rare self-effacing law enforcement officer, had the plate for three years before the state suddenly revoked it, claiming it was "offensive." Of course, the state seems to have no idea what is or isn't offensive, and simply rolls dice/throws darts/flips coins when dealing with vanity plate applications, as Tim Evans of the Indy Star pointed out earlier this year
What's the difference between the words HATER and HATERS?
Nothing other than the letter "s" — unless you ask the Indiana Bureau of Motor Vehicles.
The BMV denied a personalized license plate request for "HATER" but approved one that said "HATERS."
It also denied "SXY" but approved "BIGGSXY." "FOX LIES" was rejected, but "FOX NEWS" was given a thumbs-up. "CNCR SUX" was a no-no, but "WNTR SUX" was A-OK.
The ACLU, which is representing Vawter in his license plate battle, found even more examples of the impossible (and impossibly flexible) "standard"
the state's Bureau of Motor Vehicles applies to plate applications.
Ken Falk, the ACLU's legal director, cited plates the BMV has allowed that also might be deemed offensive, such as "BLK JEW," ''HATE" and "FOXY GMA."
It's this sort of thing that led to a county Superior Court judge declaring the BMV's inconsistent policy unconstitutional back in May. Nevertheless, the state's Solicitor General says the BMV retains the right to reject "offensive messages" -- which apparently covers Vawter's joking self-disparagement. It's taking this all the way to the state's Supreme Court. And rather than approve the "UNHOLY" license plate requested by a KISS fan (after approving others like "BIBLE4ME" and "GODTHANKS"), the BMV has simply chosen to stop
issuing vanity plates until the Supreme Court makes a final decision.
Quite obviously, Vawter's plate would offend roughly zero people -- certainly far fewer than other plates the agency has issued. The fact that Vawter had the plate for three years before the BMV decided to claw it back only adds to general untrustworthiness of the BMV's slippery approval process. As it stands, the system is obviously (and almost flagrantly) unconstitutional. Hopefully, the state Supreme Court will make a final determination and force the BMV to give Vawter back his in-joke/vanity plate. And hopefully this determination will curb the number of rejections handed out by overly-sensitive bureaucrats with more power than skin thickness.
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Posted on Techdirt - 1 September 2015 @ 10:59pm
The Wall Street Journal has obtained a nominal "win" in a Stingray-related legal action aimed at unsealing electronic surveillance orders, but the decision reads more like a loss. Jennifer Valentino-Devries reports:
In the order, made after a series of legal motions brought by the Journal’s publisher, Dow Jones & Co., U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas found that Dow Jones has a legal right to see government applications for surveillance, an idea the U.S. Justice Department had fought. But she agreed with the Justice Department that the requested documents shouldn't be disclosed yet because the 14 applications, dating from 2010 to 2013, all relate to continuing cases.
Yes, the WSJ has a right to see these files… but not until the DOJ decides these investigations are really and truly over -- a determination that has yet to be reached for files zooming past the half-decade mark.
The oral arguments
delivered in June provide a little more insight into the DOJ's thought processes -- mainly that it should be the sole arbiter of document releases. The DOJ went past the constraints of its earlier argument -- that "open" investigations are not subject to "common law access" -- by claiming that documents used in the course of investigations, even closed
ones, are not public records.
I think our position is that "ongoing" is perhaps the wrong word choice in order to determine where the common law right of access and the First Amendment right of access applies. What we would say is that there is significant authority for the government's argument that pre-indictment investigations and the warrants and the applications and the orders that are contained in the context of pre-indictment investigations are not subject to the common law right of access.
Dow Jones had asked the government to provide periodic status updates on these supposedly "open" investigations. The DOJ ignored these requests until prompted by the court, at which point it declared the files to be beyond the reach of the public. Here's the judge's recap of the events:
Dow Jones then filed earlier this year the motion for an updated status report requesting various things: the government to update the report regarding the status of the investigations, and then making public certain versions of the status report, and the sealed appendix. I believe then the government responded as I said, basically saying no updating is necessary here because there is no common presumption of access or First Amendment right.
The court didn't necessarily agree with this assertion but it did find the "balancing test" favored the government's interests. Dow Jones' legal counsel has
asked for some additional transparency in docket filings, which would both provide the public with more information as well as assist the WSJ in determining the accuracy of the DOJ's assertions. (It could potentially aid in sussing out the form of surveillance being used as well.)
I would just make the one small addition that, you know, a lot of these applications have a bunch of different requests kind of all pulled together. We've got pen register, trap and trace, we've got D orders, we've got subpoenas, we've got statutory search warrants. And so I would think that an entry ought to reflect that, particularly as it relates to ongoing access issues.
You know, one -- some of these cases in which we've sought access are called In Re Sealed Application, some are called In Re Pen Register. The last one -- the most recent one is In Re Search Warrant. Well, if it's In Re Search Warrant, then the government's argument that these aren't search warrants looks a lot different. And so I think that the more specificity with regard to the basis of the application would help guide the Court as well as anyone who is seeking access to these to try and determine exactly what types of access might apply.
The DOJ, unsurprisingly, isn't a fan of this idea. The surprising part is that -- in arguing against Dow Jones' proposal -- it basically admitted it deploys multiple investigative tools and techniques using a single, apparently non-specific judicial authorization.
[F]or efficiency purposes, we've tended to bring a lot of these actions under one single document so that we don't have to keep coming back to the judge to get separate authorizations for different types of investigatory techniques in the same investigation, so we've just found it expedient to do that at one time.
There are your parallel construction
and your Stingrays d/b/a pen registers
, etc. And this slips by the court unquestioned.
As it stands now, the DOJ owes the Wall Street Journal a status update in two weeks… and that's about it. The paper may have won the right to unseal these documents, but apparently any future transparency will be left to the discretion of the government.
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Posted on Techdirt - 1 September 2015 @ 10:44am
Canada's law enforcement agencies are still enduring the growing pains of having to respect the privacy and civil rights of Canadian citizens. It's apparently killing them.
At the peak of their power, Canadian law enforcement agencies were asking for ISP subscriber data every 27 seconds. Nearly 1.2 million requests were made in in 2011 alone. That number likely increased over the next couple of years before a Supreme Court decision brought this harvesting to a halt with the introduction of a warrant requirement in 2014 . Prior to that, the only thing keeping Canadian cops from requesting data at an even faster rate was the "five minutes of paperwork" occasionally demanded of them.
Since the warrant requirement went into effect, the Royal Canadian Mounted Police have adopted two tactics to deal with the additional stipulations:
1. Complaining about it (using graphic child abuse imagery, of course).
2. Tossing cases.
Can't win. Won't try. That's the indomitable law enforcement spirit officials are always praising when asking for donations and votes.
The Canadian law enforcement community is now deploying the third prong of its attack on the inconvenience of securing warrants: a strongly-worded resolution
backed by the collective power of the Canadian Association of Chiefs of Police. (h/t Jordan Pearson at Vice
According to the CACP, the government owes Canadian law enforcement immediate access to subscriber information at all times. The resolution begins with this assertion, which everyone is apparently supposed to treat as an long-acknowledged fact.
WHEREAS law enforcement requires real-time, or near real-time access to basic subscriber (customer name and address) information (BSI) as it relates to telecommunications’ customers for investigative reasons…
It then points out what the Supreme Court decision changed (officially recognized Canadian citizens' privacy interest in their own subscriber data) before complaining that ISPs are getting all uppity with them when they show up without a warrant.
WHEREAS since the Spencer decision, the telecommunications companies refuse to provide any basic subscriber information (BSI) in the absence of an exigent circumstance, or a judicial warrant or order, even where there exists no reasonable expectation of privacy…
Well, gee, if we leave the decision of where the "expectation of privacy" lies in the hands of law enforcement, we get what we already got: subscriber data requests every 27 seconds. So, we know law enforcement can't be trusted to make that decision.
And it's not the ISPs place to make "expectation of privacy" determinations. These companies should do what they're doing: demand warrants and court orders. But law enforcement views this as a form of obstruction, albeit a form supported by a court decision.
The resolution's next "WHEREAS" tosses out another assertion everyone's just supposed to agree with, because who's more trustworthy than a group of cops?
WHEREAS there exists no lawful authority designed specifically to require the provision of basic subscriber information, and the problems posed by this gap in the law are particularly acute where there exists no reasonable expectation of privacy in that information.
This complaint/assertion is basically: "We can't make ISPs do anything the law no longer compels them to do." That's kind of how laws are supposed to work. So, the problem is the ruling... and the solution is a legislative undoing of the court's ruling.
THEREFORE BE IT RESOLVED that the Canadian Association of Chiefs of Police supports the creation of a reasonable law designed to specifically provide law enforcement the ability to obtain, in real-time or near real-time, basic subscriber information (BSI) from telecommunications providers.
BE IT RESOLVED: legislative time machine. Law enforcement wants to go back to its pre-Supreme Court decision form, where demands were made (and met) quickly and with a minimum of paperwork or privacy considerations. Nowhere in the in-depth explanation of its "problem" and proposed resolution does it discuss a more limited framework for warrantless requests. The CACP wants the legislature to undo the terrible wrong it has suffered at the hands of the Supreme Court. There are no compromises offered. Canadian cops simply want to be able to freely demand subscriber info without having to jump through any privacy-protecting hoops.
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Posted on Techdirt - 31 August 2015 @ 3:10pm
In the wake of Hurricane Katrina, the federal government stepped up to assure the nation that as horrifically damaging as the storm was, we would all come out of it OK.*
*Offer does not apply to affected residents of New Orleans.
President Bush let us know that FEMA head "Brownie" (born Michael D. Brown) was doing a "heckuva job" botching the government's response. The New Orleans Police Department worked hard to secure critical infrastructure, going so far as to show up in civilian clothes, armed with unapproved weapons. And the FBI, which sent its people to assist in search and rescue operations and to help curtail post-storm looting, made sure an unprecedented tragedy wouldn't go to waste.
MuckRock's Shawn Musgrave points out that, hidden among the 5,000 heavily redacted pages it received in April in "response" to its FBI-Stingray query, the agency's Katrina experience somehow made Stingray acquisition a priority.
A year later, as part of post-Katrina review, the FBI’s WITT requested funding for additional equipment from Harris Corporation, which manufactures the StingRay line of cell phone trackers. Two drafts of the same memo (draft 1) and (draft 2) from July 2006, each with competing redactions, together weave a partial glimpse of WITT’s justification.
“In the summer of 2005, the U.S. Gulf Coast bore the brunt of several hurricanes, including Hurricane Katrina which severely degraded the capabilities of the [redacted],” the memo reads in part. Subsequent, heavily redacted sentences suggest that the storm crippled the FBI’s capacity to conduct certain types of cell phone tracking operations via equipment on-hand at the time of landfall.
Further details are redacted, but it's clear the diminished capabilities pushed IMSI catchers to the front of the acquisition queue. The accompanying purchase order was designated "priority." Previous purchases had only been declared "routine."
The redactions make it impossible to determine why exactly the agency felt the acquisition of more cellphone-tracking technology was a must post-Katrina. Perhaps the agency needed hardware upgrades to existing equipment that functioned in a less-than-ideal manner when local cell infrastructure suffered damage
. Maybe it lent some devices to the New Orleans PD and was having trouble getting them back. Maybe it just wanted more
IMSI catchers. No matter the stated reason, it can safely be assumed that post-act of God requisition processes receive less scrutiny than those made during times of relative peace and safety. Terrorism and drug dealing may have been off the table in terms of justifications, but any good government agency knows "national disaster" is spelled "O-P-P-O-R-T-U-N-I-T-Y." The FBI is no exception.
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Posted on Techdirt - 31 August 2015 @ 11:40am
TorrentFreak's Andy reports that Amazon recently published the MPAA-required "best practices" for handling physical goods as well as content stored or hosted by its cloud services. This doesn't just cover the obvious storage of movies for streaming services, but also works-in-progress by studios utilizing Amazon's web services.
It's comprehensive and loaded with restrictions and stipulations.
[I]n addition to carrying out background screening on all employees and third party contractors, the MPAA demands that all workers sign annual confidentiality agreements that forbid them from talking about protected content.
With an eye on local law, companies must also implement random searches of their workers for traces of MPAA content, including the removal of coats, hats and belts, the emptying of pockets, a full security pat-down, scanning with metal detectors and inspection of electronic devices.
Other obvious demands are included, all aimed at preventing the leak or physical theft of studio goods: no portable devices with storage capabilities, no baggy clothes, and employees' meals must be brought to work in transparent bags.
Interestingly, the MPAA's 2015 agreement
with Amazon actually scales back some of its requirements. Demands that Amazon create an MPAA-specific security team and allow reps monthly access to inspect restricted areas are no longer in force. Other stipulations focused on the specific parameters of on-site, physical security have been loosened or removed completely, as well as specifications for CCTV footage storage, access and retention. The requirement that all involved third parties be CTPAT-certified (Customs Trade Partnership Against Terrorism) has also been dropped, suggesting the MPAA is about done humoring the DHS's paranoiac assertions
that everything has a potential terrorism nexus.
But the adjustments made between the 2013 and 2015 edition of the MPAA's "rules" don't reflect a change in the MPAA's Ft. Knox mindset. Instead, it shows the MPAA shifting its priorities from physical protection to digital protection. The high-profile hacking
of Sony likely contributed to new stipulations like these:
2015 MPAA added the requirements to perform quarterly vuln scans of external IP ranges, secure any point to point connections by using dedicated, private connections and by using encryption. Additionally the requirement to implement baseline security requirements for WAN network infrastructure devices and services.
2015 MPAA added controls around the encryption of content at rest and in motion. Additionally, procedures around the storage of public and private keys.
Also new to this ruleset is a whole section dedicated to "mobile security" that addresses the potential security holes created by a BYOD environment.
The documents show the MPAA can
be forward-thinking when it comes to the distribution of content -- especially when trying to figure out how to stop
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Posted on Techdirt - 31 August 2015 @ 6:08am
For years, New York City mayor Rudy Giuliani and the NYPD waged a small-scale war in Times Square to turn it into a family-friendly tourist attraction on par with Las Vegas. It succeeded... mostly. Porn shops were replaced with toy stores and chain restaurants.
The war continues, even after this overhaul. Anywhere tourists gather en masse will draw the attention of less-desirable city residents. Panhandlers and street performers continue to converge on Times Square, hoping to earn a few bucks from out-of-towners. Much to Bill Bratton and the NYPD's chagrin, Times Square continues to draw a disproportionate amount of New York City's boobs. And topless women.
[A]t midday Thursday, there were 38 costumed panhandlers, five topless ladies and an artist who paints people’s naked bodies in full view in Times Square...
The city is trying to figure out how to keep these topless women out of an area
where tourists can also witness the spectacle that is the nationally-infamous Naked Cowboy
. Nothing seems to be working especially well and any efforts targeting female toplessness specifically will obviously (and correctly) be hailed as sexist (and a possible violation of the First Amendment).
The other element it wishes to banish is a direct result of the city's decision to turn Times Square into Disneyland Lite: costumed street performers. Many dress as Disney/comic book characters and make money by charging tourists for photos with them. Some of these performers are known to become aggressive when photos are taken without "permission." (Read: in exchange for $$$) Others are known to commit more heinous acts
There's been a series of incidents and arrests since then, including accusations of groping by Cookie Monster, and also Woody from "Toy Story."
Spider Man was arrested in 2014 for allegedly demanding tips in an aggressive manner. Earlier this year, a Youtube video went viral of another Spider Man locked in a brawl with a heckler right in front of Toys R Us.
So, New York is still New York even if Times Square isn't really Times Square anymore.
Police commissioner Bratton wants to add more officers... to enforce not much of anything, apparently
Bratton said the unit was in the works for some time but was fast-tracked after the media began focusing on the desnudas and how their kind of panhandling can be “easily spread to other parts of the city.”
That said, Bratton added, “there’s only about one crime reported every day” in Times Square.
This new unit will patrol Times Square and attack "quality of life" issues… like painted women. Or intellectual property infringement
The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.
The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.
Look! It's IP law abuse to the rescue, a favorite tactic of this IP-abusing
First off, these costumed performers would more likely fall under trademark
infringement than copyright
infringement. The characters are covered under trademark law. Creative works using these characters are what's covered by copyright. But that distinction doesn't matter to these blustering officials. They're only concerned with enlisting the public to fight their battles for them. Any differences between copyright and trademark enforcement can be sorted out by Disney, Marvel, et al.
Fortunately, the companies seem less willing to abuse IP law to help out Bratton and the NYPD. Disney's lack of interest in filing lawsuits isn't altruistic, however. It won't participate with Bratton's plan because it doesn't know who
these performers are. The amount of time and money spent to discover this would easily outweigh any compensation gained.
Disney -- being Disney
-- prefers to have legislation written on its behalf.
The bill — which would require the horde of Spider-Men, Mickeys and Minnies and other costumed panhandlers to undergo background checks and carry IDs — was introduced back in September by Councilman Andy King (D-Bronx).
“We have been for years working with previous and current administrations as well as the City Council trying to get legislation passed that would require registration and identification of these costumed characters,” said Disney spokeswoman Zenia Mucha.
This would solve Disney's (and Marvel's) "problem" without either corporation having to look like an IP thug. But the legislation isn't going anywhere and Bratton wants his Time Square free of Mickeys and Spidermen now
. So, he's asking these companies to file baseless and pointless lawsuits almost solely on behalf of Bratton and his cleanup crusade.
The city's top cop is also willing to let Disney, Marvel, etc. work for free
“They want no part of it,” Police Commissioner Bill Bratton said on the John Gambling radio show. “We've encouraged Walt Disney, ‘Put your characters out on Broadway free of charge so people don't have to worry about their kids being groped,’” he said. “We said to them, effectively, ‘Since you control the rights of them, put them out in front of the Disney Theater.' They want no part of it.”
Disney and Bratton may not see eye-to-eye on the specifics
of the solution, but they do agree on one aspect: someone else
should do all the work.
The regulatory angle (licensing performers) Disney prefers puts the city and its police force to work for
the companies. Bratton's suggestions (filing bogus copyright infringement lawsuits, "free" costumed performers) puts the companies to work for
the city. As long as they only agree on this element, nothing will ever move forward.
And once again, we see that government entities -- like many private companies -- are quick to turn to abuse of IP protections once they've run out of good ideas -- or, in this case, when they didn't have any good ideas to begin with.
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Posted on Techdirt - 31 August 2015 @ 3:06am
The FISA Court has approved another three-month extension of the NSA's phone metadata collection, allowing the agency to run out the clock on the USA Freedom Act-triggered "transition period" with no additional stipulations attached. The transition will apparently be "business as usual" right up to the expiration date (Nov. 29, 2015), at which point everything will suddenly be compliant with the new law.
Until that date, the NSA will still collect (and store) phone metadata in bulk. The only limitation in place at this point dates back to February 2014 -- when searches of the data haul were limited to court-approved "selectors" backed by reasonable, articulable suspicion.
The joint statement issued by the Office of the Director of National Intelligence (ODNI) and the DOJ discusses the impact of the USA Freedom Act extensively but makes no mention of court decisions or legal challenges possibly affecting the current collection of phone records in bulk. The FISA court order does mention ongoing lawsuits with implications on the collection as implemented, but simply orders the government to inform it of any changes it may need to make to the renewal order if a decision alters the bulk collection playing field.
The case that most threatened the current bulk collection was conveniently eliminated by the DC appeals court with oddly coincidental timing.
The appeals court decision was published on August 28th. On August 27th, the previous bulk records order expired. The new order commenced on the same day as the publication of the DC court's opinion -- which eliminated the possiblity of an injunction. This occurred nearly 9-1/2 months after arguments were heard from the court (Nov. 14, 2014) more than 18 months after the case was appealed. Synergistically, the court decided to file and publish its decision in favor of uninterrupted bulk collection the same day the NSA's renewal order kicked in.
This suggests the NSA leaned on the administration and the administration leaned on the court. I wouldn't go so far as to suggest the administration influenced the opinion, but it would seem to have been instrumental in the timing of the decision's release.
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Posted on Techdirt - 27 August 2015 @ 3:34pm
Because automatic license plate readers just aren't efficient enough -- what with their ability to capture hundreds, if not thousands, of plate scans per hour -- San Jose's city government is looking to deputize other businesses and their vehicles in its quest to achieve 100% coverage of the city.
Mayor Sam Liccardo and Councilmen Johnny Khamis and Raul Peralez proposed that the city consider strapping license plate readers to the front of garbage trucks, allowing them to record the plates of every car along their routes. The data would be fed directly to the Police Department from the privately operated trash trucks, prompting an officer to respond to stolen vehicles or cars involved with serious crime.
"We can cover every street at least once a week and possibly deter thieves from coming into our city," Khamis said. A committee chaired by Liccardo that sets the council's agenda voted Wednesday to continue exploring the idea.
San Jose won't be the first city to use non-police vehicles to do its plate scanning. As was covered here earlier this year
, Hampton, Virginia has mounted an ALPR to a "city van" and uses the data collected to chase down the city's tax evaders -- a term that includes anyone who owes $5 or more to the city. Another town doesn't even use a city vehicle. Isle of Wight completely outsources its plate scanning efforts, putting it solely in the hands of a private company with its own plate scanners.
While it's true that a vehicle parked on a public street (or one that can be viewed from a public street) has no expectation of privacy, the amount of data gathered still raises privacy-related concerns. It's one thing to view a vehicle on a public street with a set of human eyes. It's quite another when this set of "eyes" compiles thousands of plate-location records and stores them for weeks or months. Once that happens, it's no longer just random cars on random streets. It's long-term tracking.
At this point, the plan is still in its proposal stage. City officials say at least one sanitation company is already on board with the proposed program.
Khamis said Wednesday's action is only the first step in a long process. The proposal calls for city officials to explore the "feasibility, legality and civil liberties implications" of garbage-truck mounted license plate readers. Questions the council members asked the city to consider include the process of transferring license data from the private garbage trucks to the police, whether they would be subjected to the same or different policies governing police car license readers and whether other cities have taken similar measures and how they worked.
Beyond the civil liberties implications, the city needs to examine the reality of what it's doing: using public funds to purchase law enforcement equipment to place on private vehicles. And it needs to ask itself whether the people providing these funds -- taxpayers -- are on board with the use of private companies as an extension of law enforcement. It also needs to examine its motives thoroughly. Just because there's no expectation of privacy doesn't necessarily mean government bodies should strive for 100% exploitation of these areas.
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Posted on Techdirt - 27 August 2015 @ 2:15pm
Ripoff Report has always been targeted by some very creative legal efforts, thanks to its aggressive use of its Section 230 protections. Forced to find other ways to remove allegedly defamatory content, plaintiffs have tried everything from questionable copyright lawsuits to extortion allegations. Not much of it has stuck.
Ripoff Report not only plays Section 230 hardball, but it often brings lawsuits against those who have attempted to remove third-party content through dubious legal means. In this case, covered by Eric Goldman, Xcentric (Ripoff Report's host/parent company) is seeking a preliminary injunction against Iowa county prosecutor Ben Smith, who has relentlessly pursued the company in hopes of finding a link between certain third party contributors and the company itself.
The judge presiding over the lawsuit isn't impressed with either side. In the course of this opinion, which partially grants Xcentric's demand for an injunction, there are no winners: just two brutish louts engaged in questionable tactics.
Goldman notes there is a Section 230 nexus, but it's only a small part of the overall lawsuit -- one that Xcentric has deployed as an offensive weapon to head off further harassment by Ben Smith. (Goldman compares it to Google's lawsuit against Mississippi attorney general Jim Hood).
Xcentric raises a very questionable CDA claim, arguing that the protections grant it "immunity" from further prosecutorial actions related to content contributed by someone named "Meade." The judge finds that to be a bit of a stretch.
Plaintiffs argue that they are entitled to immunity under the CDA because – despite their financial relationship with Meade – they were not information content providers with regard to any of the allegedly-unlawful posts about the state’s witnesses. At this stage of the case, however, they have failed to demonstrate a likelihood of success on their claim that the CDA protects them from criminal liability for any potential violation of Iowa Code Section 720.4. This is because there is substantial evidence suggesting that the plaintiffs materially contributed to the alleged illegality of the information at issue.
I am not fully convinced of Magedson’s credibility on this issue. Xcentric paid Meade a large amount of money and Magedson has strong feelings about Richter’s case. I simply do not believe that he was blissfully unaware of what Meade was planning to post.
As Goldman notes, this sort of relationship is much "closer" than most other cases where Section 230 protections are invoked.
This isn't the only thing the judge finds questionable about Xcentric's claims and tactics. There's more criticism contained elsewhere in the opinion. While he does find its First Amendment claims credible, its assertions of Fourth and Sixth Amendment violations are less convincing.
[P]laintiffs contend that Smith violated their rights under the Fourth Amendment. According to their briefs, this argument is based on Smith’s application for, and execution of, a search warrant. The only evidence of record concerning a search warrant is the application and warrant concerning Anna Richter’s home… [Richter was charged with first-degree murder by Ben Smith, something a Ripoff Report review claimed was a bogus charge.]
Even if the plaintiffs had strong arguments on the substantive merits of this claim (and I am hardly convinced that they do), they did not address the crucial issue of standing. Fourth Amendment rights are personal and cannot be asserted vicariously. In order to have standing to complain about an allegedly-unreasonable search, a party must have a reasonable expectation of privacy in the area searched…
Plaintiffs have made no effort to show that they had a reasonable expectation of privacy with regard to Anna Richter’s home or any of the items seized from that home.
Xcentric's Sixth Amendment claims are even weaker.
Citing no authority, plaintiffs contend Smith violated their Sixth Amendment rights by obtaining and reviewing communications subject to the attorney-client privilege and by filing an ethics complaint against their counsel.
Plaintiffs’ failure to reference supporting authority is a major clue about the merits of this claim. I have not, through independent research, located any case law that might support the claim, as currently framed. Among other things, it is undisputed that Smith has not yet charged plaintiffs with any offense. But see Texas v. Cobb, 532 U.S. 162, 172 (2001) (Sixth Amendment right to counsel attaches only to charged offenses).
Perhaps there is a non-frivolous Sixth Amendment argument to be made, but plaintiffs have not taken the trouble to make it.
And circling back to Xcentric's First Amendment claims, Judge Leonard Strand finds its demand for an injunction to be more than a little hypocritical.
I also find plaintiffs’ proposed item I (enjoining Smith from “[t]hreatening, intimidating, accusing or otherwise stating that plaintiffs’ lawyers are violating any laws in representing plaintiffs”) to be inappropriate and sadly ironic. After loudly championing the importance of First Amendment freedoms in this case, plaintiffs have proposed a gag order that would restrain Smith’s speech.
But Smith is far from blameless. The judge also smacks the prosecutor around for his obsessive harassment of Xcentric, prompted by criticism of him hosted at Ripoff Report -- all of which was done supposedly to "protect" state's witnesses.
While Smith contends he is acting solely for the benefit of various witnesses who have been targeted on Ripoff Report, I find that he has acted, at least in part, for retaliatory reasons. For starters, I am amazed that Smith offered no direct evidence, such as copies, of any Ripoff Report posts that have allegedly harassed or defamed any witnesses who testified against Richter. Instead, he chose to provide only his own characterizations of the statements at issue...
If Smith’s investigatory tactics have truly been motivated by a desire to protect the State’s witnesses from harassing or defamatory posts on Ripoff Report, it would have been a fine idea for him to offer those statements into evidence.
The judge finds Smith's actions to be -- at least in part -- clearly retaliatory. The opinion lists several examples of how Smith's handling of Xcentric varied greatly from his pursuit of any other entity facing similar charges.
Smith admits that he has worked over a thousand hours and has issued over one hundred subpoenas during his investigation into Ripoff Report. Smith presented no evidence that in his role of Sac County Attorney, he has devoted similar time and resources into other investigations of potential misdemeanor offenses.
He wrote a 119-page, singled-spaced affidavit in support of an application to obtain a search warrant, relying on avowed enemies of Ripoff Report for substantial portions of its contents. He then filed the application as public record, rather than sealing it as is his usual practice. This allowed him, in effect, to publicly air his allegations about the plaintiffs before filing any charges.
More troubling, and what I find to be most persuasive, is what Smith did with privileged and confidential information after obtaining it by his myriad of subpoenas. Upon obtaining communications that clearly appear to be between Xcentric and its own counsel (e.g., Ex. 8), Smith did nothing to advise Xcentric of this fact. Nor did Smith do anything to preserve their confidentiality. Instead, he put at least one such communication (Ex. 8) into evidence in a proceeding and provided other presumably privileged communications to third-parties, including various enemies of Ripoff Report. He also disclosed Xcentric’s financial and banking information to third-parties, thus allowing that information to become public. While disclosing privileged and confidential information to others, Smith did not require those individuals to enter into non-disclosure agreements. He has provided no legal justification for this.
It's ugly all over, and Judge Strand is only willing to grant Xcentric some of what it requested. The injunction issued prevents prosecutor Ben Smith from doing the following:
A. Bringing criminal charges against Xcentric or Magedson related to any postings related to criticisms of the State or its evidence presented in State v. Richter.
B. Continuing the investigation of Xcentric and Magedson such as sending search warrants or subpoenas to their banks, email providers and other service providers.
C. Reading Xcentric’s privileged attorney-client communications.
D. Disclosing Xcentric’s attorney-client privileged communications to others.
E. Disclosing Xcentric’s financial and banking records to others.
F. Disclosing Magedson’s personal and private communications to others.
G. Disclosing any communications or information obtained through investigation of Xcentric or Magedson.
It would seem items C-F shouldn't need an injunction. These are things a prosecutor shouldn't be doing in the first place. Unfortunately, Smith's past actions prove he's severely in need of outside guidance. As for Xcentric, it may have a solid First Amendment claim, but its invocation of Section 230 protections is less sturdy than it would normally be, thanks to its for-pay relationship with a contributor.
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Posted on Techdirt - 26 August 2015 @ 3:23pm
An integral aspect of the dark art of patent trolling is knowing an exploitable patent inside and out. Patent 6,233,682 (the '682 patent, as it's referred to in lawsuits [which is pretty much the only place it's being referred to]) is titled "Distribution of musical products by a web site vendor over the internet." It was originally granted to its creator, New York businessman Bernard Fritsch, in 2001 and was actually used in the creation and delivery of a music service.
At the time of the patent's issuance, its listed inventor Fritsch worked for a subsidiary of MCY.com Inc., a company founded in 1995 that tried to sell music online.
The patents were intended to help MCY market a proprietary system for the digital delivery of music and other media products, according to MCY.
Though MCY made an effort to sell music for some time, it no longer exists, at least online — its site is occupied by a domain-name placeholder and has been since January 2005.
In March of 2010, the '682 patent was acquired
by a patent troll d/b/a Sharing Sound, LLC. Naturally, Sharing Sound was located in Longview, Texas, from where it could avail itself of the friendly east Texas court system. It used this patent (along with another, very similar patent originally obtained by Fritsch -- patent 6,247,130
titled "Distribution of musical products by a web site vendor over the internet
") to extract settlements
from Wal-Mart, Amazon, Gamestop, Netflix and several others before exhausting the patents' apparent "usefulness."
Another patent troll
, also "located" in the east Texas region, acquired both patents in July of this year. The timeline looks like this:
06/25/2015 - Batarga, LLC files as domestic limited liability corporation in Texas.
07/20/2015 - Batarga acquires both of Sharing Sound's patents.
08/21/2015 - Batarga files first patent infringement suit.
Seeing as the previous troll had already wrung the market dry of settlements and licensing fees by targeting big players in the media distribution, these two "music distribution, but on the internet
" patents would seemingly be of little use.
But hope springs eternal when the barrier to entry is just a nominal filing fee. Batarga, LLC has found an exploitable claim in the '682 patent (a claim that's not
included in the nearly-identical '130 patent).
12. A method for distributing products over the Internet, comprising:
displaying a login screen on a video monitor that allows a user to enter an unique identifier for accessing database information;
confirming the validity of the entered unique identifier; and
displaying a shopping list that lists items for purchase as selected by said user, the listed items being in digital format suitable for downloading to a user's computer connected to the Internet and being in other media format suitable for shipping to said user.
By cherry-picking this
claim from the numerous music-related claims surrounding it, Batarga feels it has a legal basis for extracting licensing fees/settlements from a number of entities who don't
offer music for sale via their websites.
Batarga is filing lawsuit after lawsuit
in the East Texas district -- 20 of them as of August 24th. And all of them targeting... clothing retailers?
So, if music is no longer the lynchpin of trolling with this nominally music-related patent, what's the angle? GIFT CARDS. But on the internet
Defendant has directly infringed, and continues to directly infringe, at least Claim 12 of the ’682 Patent in violation of 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by offering for sale on its website (shopjustice.com) gift cards in both digital and physical forms, thereby illegally using the patented method of distributing products over the Internet encompassed by the ’682 Patent.
The "doctrine of equivalents
" allows patent trolls to indulge in more speculation when speculatively invoicing. In this case, Batarga can't really claim these non-music-selling entities are infringing on its "internet music distribution" patent, but it can claim that things they do are somewhat similar to a single claim within the entirety of a music sales-related patent.
And it's not as though the original patents weren't of questionable validity to begin with. By the time Fritsch had applied for his patents, online music sales already existed and there were plenty of previous patents
that covered the same ground his did. At least Fritsch used his to start an online music distribution platform. These two companies have done nothing more than secure mailboxes and empty offices in the dusty East Texas towns, and their sole interaction with the parties affected are filings delivered by local lawyers.
And as long as we're checking villains for hearts of pyrite, at least Sharing Sound's abuse of the lousy, unoriginal patents was limited to the "music" aspects integral to the bulk of the claims. Batarga is stripping down the entire patent to a single paragraph -- one that would seemingly make anyone
over the internet a target for infringement allegations.
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Posted on Techdirt - 26 August 2015 @ 12:44pm
There aren't too many user-generated-content-reliant sites that defend their Section 230 turf more viciously than Ripoff Report. This has earned it a thuggish reputation, something its pay-for-play quasi-reputation management offerings do little to dispel. For better or worse (and it's definitely some of each), Section 230 is the Ripoff Report's load-bearing center.
Because of its entrenched defense, those hoping to skirt the site's Section 230 protections have tried a number of questionable legal gambits. One person got a court to assign him the copyright on a particularly nasty review, which he then used to pursue a copyright infringement lawsuit against the site. In this case, the Asian Economic Institute attempted to quash critical reviews by claiming Ripoff Reports was engaged in extortion (with its for-pay "Corporate Advocacy Program," which advocates on behalf of aggrieved companies).
This Section 230-dodging tactic didn't work. The court found little that backed up AEI's racketeering claims -- claims that shifted mid-trial when Ripoff Report revealed it had secretly recorded all of its phone conversations with the plaintiffs.
Rather than enjoy its victory, Ripoff Reports (as Xcentric) filed its own lawsuit against the AEI principals, alleging malicious prosecution. Proving once again that two wrongs don't make a right, the Ninth Circuit Court of Appeals has found… well, not exactly for the defendants (the former AEI plaintiffs), but rather that Xcentric (the company behind Ripoff Report) was capable of filing equally-baseless lawsuits. From the opinion:
Xcentric Ventures appeals the district court’s grant of summary judgment and judgment on the pleadings in favor of defendants Mobrez and Llaneras and Rule 12(b)(6) dismissal of defendant Borodkin in Xcentric’s malicious prosecution action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. We agree with the district court that Xcentric cannot prove an element of its malicious prosecution claims, that the underlying claims were brought or continued without factual or legal probable cause. We also deny Borodkin’s motion for sanctions.
As the court points out, the very low bar of "legal probable cause" was met by the defendants' prior extortion claims. That the claims ultimately were determined to be without merit does not raise the original lawsuit to the level of "malicious prosecution." The appeals court affirms the lower court's decision.
The former plaintiffs (now defendants) are also
graceless winners. Rather than walk away from the twice-dismissed lawsuit, Mobrez and Llanernas approached the Ninth Circuit Appeals Court and asked it to publish
the decision it had rendered more than two months earlier. Why? Well, apparently so they could show the world that they too
were capable of having a questionable lawsuit against them dismissed -- much like theirs against Xcentric was five years earlier. Um... touché?
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Posted on Techdirt - 26 August 2015 @ 8:28am
Steven Aftergood of the Federation of American Scientists directs us to a recently-released document issued by James Clapper (DNI) that formalizes something that the US has long held in principle, but had yet to commit to paper.
Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.
A U.S. intelligence agency “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate,” the new directive states. “This includes threats where the target is an institution, place of business, structure, or location.”
The directive also covers, remarkably, non
-US persons. The broad wording that pulls a lot of non-person "persons" under the "duty to warn" umbrella raises some questions about the included agencies' (FBI, NSA, CIA) duty to warn private companies
about attacks of the "cyber" variety. Marcy Wheeler of emptywheel
As I have noted, NSA has secretly defined “serious bodily harm” to include threat to property — that is, threats to property constitute threats of bodily harm.
If so, a serious hack would represent a threat of bodily harm (and under NSA’s minimization procedures they could share this data). While much of the rest of the Directive talks about how to accomplish this bureaucratically (and the sources and methods excuses for not giving notice), this should suggest that if a company like Sony is at risk of a major hack, NSA would have to tell it (and the Directive states that the obligation applies for US persons and non-US persons, though Sony is in this context a US person).
So shouldn’t this amount to a mandate for cybersharing, all without the legal immunity offered corporations under CISA?
It would appear to order the NSA and other government intelligence agencies to be forthcoming about impending (or ongoing) attacks. If interpreted in this fashion by the ODNI, it would appear to make CISA-ordained sharing
redundant and ask the intelligence community to put aside its own interest in exploitables and preserving "means and methods" in favor of a "duty to warn."
Or not. There are several exceptions.
a. The intended victim, or those responsible for ensuring the intended victim's safety, is already aware of the specific threat;
b. The intended victim is at risk only as a result of the intended victim's participation in an insurgency, insurrection, or other armed conflict;
c. There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes;
d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations;
e. The information resulting in the duty to warn determination was acquired from a foreign government with whom the U.S. has formal agreements or liaison relationships, and any attempt to warn the intended victim would unduly endanger the personnel, sources, methods, intelligence operations, or defense operations of that foreign government; or
f. There is no reasonable way to warn the intended victim.
So, this voluntary assumption of a mostly-moral obligation to warn others of danger does not cover most criminals (apparently, the ODNI is fine with criminals killing/harming each other) or any situation where warning an entity of an impending attack would compromise intelligence agencies and their objectives. This would seem to eliminate warnings of cyberattacks, seeing as most relevant information would be hopelessly entangled in the cybersecurity efforts of multiple government agencies.
Marcy Wheeler points out that these exceptions could explain the FBI's lack of interest in warning Occupy Wall Street members of an assassination plot
. Of course, the directive didn't officially take effect until July 21, 2015. At the point the FBI decided against warning certain American citizens of assassination threats, the "duty to warn" was nothing more than an altruistic ideal. It was under no legal obligation to do so, and its investigation of Occupy Wall Street probably justified its unwillingness to keep these "insurrectionists" out of harm's way.
The new directive doesn't really make this any more mandatory than it was back when it was unwritten and completely voluntary. Steven Aftergood points out the DNI's directive mentions both the National Security Act of 1947 and Executive Order 12333, but neither of these contain any wording that would legally compel intelligence agencies to honor a "duty to warn."
That being said, there's at least some anecdotal evidence that intelligence agencies have carried out their "duty to warn" in the past. Aftergood's post links to a former intelligence officer's recounting of exercising the "duty to warn" in Iraq
A US citizen who was mixing good deeds (water supply work) with proselytizing (handing out Bibles to Iraq citizens) found himself the target of the Iranian Islamic Revolutionary Guards Corp. The IRGC implemented a Bible "buy-back" program, offering $5 for every Bible handed out by this "do-gooder." Iraqis soon turned this into a revenue stream, selling Bibles to the Guards and heading back to the missionary for fresh copies. The IRGC then decided it was sick of spending money to make
zero headway in the religious superiority game and decided to kill the Bible supplier. This news made its way back to the CIA task force, which then attempted to pass the warning on to the do-gooding Bible pusher. Incongruity ensued.
So, I get the tasking to warn Doug under the "duty to warn" policy. I gather up a few of our Kurdish guard force and another American to go to the village and pass the warning on to Doug. I can imagine his confusion. We roll into town, something like a cross between the Rat Patrol and Pancho Villa, Toyota pickups with mounted 12.7mm’s, Alanis Morissette blaring on the CD player - you get the picture.
I knocked on the door (I asked the locals, "Wayn al-Amrikan?" [Where's the American?]) and a gringo answers. I ask if he is Doug so-and-so. He says he is, but looking at our obviously loaded-for-bear entourage, asks who we are.
I reply, "We’re from the State Department."
He looks at us, AK-47’s and Browning High-Powers all over the place.
I quietly said, "Just work with us here, Doug."
"What exactly do you want?" he asks. Obviously he was not a fan of the CIA mucking around in "his" area.
I explain, "We have information that the Iranians, who believe you are proselytizing Christianity, are planning to kill you. We are advising you to leave Iraq for your own safety and that of your family (he had actually brought his Dutch wife and 10-year old son with him)."
Incredulously, he asked me, "Do you have anything more specific, more concrete than the fact they plan to kill me?"
I was a bit taken aback - "The IRGC is going to kill you - Doug so-and-so. How much more specific do we have to be?"
So, altruism exists. And inasmuch as it doesn't interfere too greatly with national security aims and/or ongoing investigations, people will be warned. But the ODNI's new "directive" doesn't add any additional obligations that weren't in place earlier. In fact, it seems to have been put down on paper mainly to explicitly list all the times the intelligence community won't
be obligated to warn others of danger.
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Posted on Techdirt - 26 August 2015 @ 5:02am
All the cool kids are suing the NSA these days. The EFF and ACLU led the way, suing the NSA before suing the NSA was cool. Others followed as a series Snowden/Greenwald split releases gained popularity (culimating in Greenwald leaving The Guardian to start his own
label website). Most recently, those abused by the NSA for their whistleblowing efforts enlisted the help of the frequently more-entertaining-than-effective Larry Klayman to sue the NSA (and many others) for the retaliatory actions that followed their whistleblowing efforts.
The AP reports (without attaching the relevant filing, because information wants to be
free omitted) that former Salt Lake City mayor Rocky Anderson is suing the NSA for "mass warrantless surveillance" conducted during the 2002 Winter Olympics, which were held less than six months after the 9/11 attacks.
Rocky Anderson may be suing the NSA, but it appears he's only doing so by hitching his name to a pre-existing lawsuit. Anderson's name isn't found among the listed plaintiffs, which basically makes him a "similarly situated party" -- indistinguishable from the average Salt Lake City resident except that the press is willing to publish his statements.
"I was outraged by this," Anderson said Wednesday. "Fundamentally, we want to get to the truth and expose what our government is doing."
Anderson says he learned about the program from a 2013 report in the Wall Street Journal and has since confirmed it with an unnamed agency source.
The suit names the NSA, FBI, George W. Bush, Michael Hayden, Dick Cheney and 50 "Does." What's alleged in the filing is the interception of data and communications in the Salt Lake City area for the duration of the Winter Olympics.
The NSA, in conjunction with the FBI, planned and implemented a mass warrantless program—for which there was no probable cause, completely outside the Constitution and outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the Games, from February 8, 2002 (Opening Ceremony) through February 24 (Closing Ceremony), over everyone within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.
That surveillance included the interception and key-word spotting analysis of the contents of every text message sent and received, every email sent and received, and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance. In some instances, people or telephone numbers were targeted by the NSA and FBI and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis, without a warrant and without probable cause.
In support of these allegations, it cites the exposure of the "Stellar Wind
" program in 2005, as well as other confirmations of the warrantless wiretapping authority granted after the 9/11 attacks.
The plaintiffs' standing relies on very simple assertions: that they made phone calls and sent text messages/emails during the Winter Olympics. Given what we know about the NSA's bulk collection programs, this is all that's really needed to make these allegations. Ex-mayor Rocky Anderson says he knows "about 200 others" who could make similar claims, but the barrier of entry for this class is low enough that thousands of residents and non-residents could join the proceedings, if granted class action status by the court. Here are the class stipulations:
All individuals in the United States who sent or received a phone call, text message, or email from or to a location within Salt Lake City or within an area including and adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of the defendants were engaged in warrantless surveillance of communications by telephone, text messaging, or email during the time of December 1, 2001 to February 24, 2002 (or whenever it is established the warrantless surveillance took place).
The lawsuit alleges First and Fourth Amendment violations, as well as violations of FISA, the Wiretap Act and the Stored Communications Act. It also cites similar violations of Utah's Constitution.
I'm not sure this suit has any chance of surviving a motion to dismiss by the government. While standing is easier to achieve now that leaked documents have verified the specifics of the NSA's collection programs, the courts have generally granted more deference to the government's "national security" arguments. What is (slightly) helpful is that the Second Circuit found the Section 215 bulk collection isn't actually authorized
by the Patriot Act. While Utah resides outside of that Circuit, decisions that question the legitimacy of bulk surveillance still may prove useful to the plaintiffs' claims.
If there's going to be any retribution for the NSA's abuses, it will probably have to wait until the Supreme Court takes a swing at it. And by the time it does, the question about the legality of its bulk collection program (under Section 215) will be largely moot, thanks to the passage
of the USA Freedom Act. While lawsuits like these have been mostly fruitless in their pursuit of favorable judgments, they have proven useful for shaking loose previously-hidden documents and legal justifications for warrantless, domestic surveillance.
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Posted on Techdirt - 25 August 2015 @ 1:55pm
Late last year, we covered a Fifth Circuit Court of Appeals decision pertaining to a high school student who was suspended from school because he uploaded a "disruptive" rap song to his Facebook account. While the song was vulgar and hinted at violence towards a school employee (who was allegedly taking advantage of female students), it was recorded and uploaded off-campus during non-school hours.
The divided decision found in favor of the student (Taylor Bell) and overturned his suspension. As the decision noted then, most of the claimed "disruption" was solely in the minds of the school administration.
At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school's work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when (Coach Michael) Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.
Because of the division in opinions in the original panel's decision, an en banc review was granted. And the pendulum has now swung in the other direction and Bell's suspension has been upheld.
Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities”). Because that standard is satisfied in this instance, the summary judgment is AFFIRMED.
The 101-page decision
, containing both additional concurrences and dissents, focuses more closely on the "disruptive" aspects of Bell's speech. Contrary to the original finding of the three-judge panel last year, the en banc review sees enough "disruption" to justify the school's actions.
Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.
It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist—to educate.
If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined. Put succinctly, “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951– 52 (Fisher, J., dissenting). As stated, the school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording.
So, because the disruption could "reasonably" be "forecast" (even if there is little evidence such forecasted disruption ever occurred), the school did not err in punishing Bell for off-campus activities.
Judge E. Grady Jolly, in a concurring opinion, goes even further than the majority decision (which did not examine the "true threat" aspects of Bell's rap track) and declares certain forms of student speech wholly unprotected.
Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.
Not a statement anyone can really disagree with, but also an area the en banc panel didn't explicitly cover and also one mostly ignored by the school, which could have pursued criminal charges instead if they truly believed Bell's track was an "actual threat." (Instead, the school found Bell so "threatening" it didn't confront him about this track until nearly the end of the school day.)
The dissent, written by Judge James L. Davis, is scathing in its assessment of the majority's decision to grant deference to the presumed sanctity of the learning environment. In doing so, the majority has allowed two things to happen, both of them bad.
First, it has loosened the restrictions governing schools' punishment of students for off-campus behavior.
[T]he majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.
Even worse, the opinion sets a precedent that implicitly states certain public figures may not be criticized by certain individuals.
Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern.
Bell's rap song was a response to multiple complaints from female students about inappropriate comments and sexual overtures from two of the school's coaches. These complaints became sworn affidavits once the legal process was underway. So, even with the violent imagery, the track dealt mostly with the alleged misconduct of school employees. The en banc decision turns this sort of criticism into punishable behavior, especially if a school can "reasonably foresee" a possible disruption. Whether or not this disruption actually occurs is largely inconsequential.
Judge Davis says this is free speech, alright, if you like your "free speech" surrounded by scare quotes.
Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel.
The majority does note that social media's ability to "bleed" into school life poses problems unanticipated by earlier decisions (like 1969's Tinker
), but rather than explore that issue further, it simply decided on- and off-campus behavior were roughly inseparable if negative discussion of school employees in involved. The very low bar of "reasonably foreseeable disruption" grants schools leeway to arbitrarily punish off-campus speech. Anything can be "reasonably foreseeable," if enough imagination is applied and enough empathy is granted to these projections by the courts. And any post facto lack of disruption seemingly does nothing to harm schools' arguments in defense of their overreactions.
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Posted on Techdirt - 25 August 2015 @ 5:07am
This should be fun. A bunch of whistleblowers that were hounded, surveilled and prosecuted/persecuted by the US government are banding together to sue all the big names in domestic surveillance.
Thomas Drake, Diane Roark, Ed Loomis, J. Kirk Wiebe and William Binney have filed a civil rights lawsuit against the NSA, FBI, DOJ, Michael Hayden, Keith Alexander, Chris Inglis, Robert Mueller and a handful of others. They will be represented by Larry Klayman, who has some experience suing intelligence agencies.
The claims arise from the government's treatment of these whistleblowers after they started making noise about the NSA's surveillance programs. More specifically, the lawsuit points to the short-lived internet surveillance program THINTHREAD, which was ignored and abandoned in favor of something more expensive, but less protective of Americans' communications.
Plaintiffs worked in various roles on developing and perfecting a candidate program called THINTHREAD which was capable of performing the technical work desired by the NSA for surveillance of the internet efficiently, effectively, and at very low cost.
THINTHREAD was put into operation successfully but only on a demonstration basis. It was approved to demonstrate that it worked, but not officially commissioned for actual operational use.
Despite the Plaintiffs demonstrating that THINTHREAD actually worked, the NSA ignored THINTHREAD as a candidate for performing the desired surveillance of the internet and telephone communications, because THINTHREAD was inexpensive and highly effective, yet Lt. General Michael Hayden had made a corporate decision to “buy” externally rather than “build” internally the solution deemed necessary to harvest internet data.
$4 billion went into another program called TRAILBLAZER (THINTHREAD's internal development cost, by contrast, was only $4 MILLION
), along with five years of development. In the end, TRAILBLAZER never worked properly and was abandoned by the NSA in 2006.
This wasteful "funneling" of funds to preferred government contractors was reported to the Dept. of Defense by four of the whistleblowers, under the heading of waste, fraud and misuse of taxpayers' money. The DoD wasn't happy. It issued a scathing internal report. But the NSA wasn't interested in having its faults pointed out. It sent the DOJ after the whistleblowers, using an unrelated leak of information
about the NSA's expansive domestic surveillance programs to the New York Times as the impetus for a series of raids.
According to the filing, the raids were retaliatory. The government had already determined the plaintiffs had nothing to do with the leaks reported on by the New York Times. And it used faulty affidavits to justify the corresponding raids.
In fact, the affidavit for the search warrants are themselves based upon an illegal, warrantless phone tap and refer to a conversation illegally intercepted between Plaintiff Roark and Plaintiff William Binney, although misrepresenting the call’s contents. Further, the ultimate pretext for the search, a paper describing THINTHREAD at a high level that Binney had given the FBI, was falsely claimed by NSA to be classified. Thus, the search warrant affidavit is not only false but illegal.
The lawsuit also attempts to use the breadth and reach of known surveillance programs as proof the government knew the whistleblowers had nothing to do with the NYT leak.
Moreover, as later revealed by Edward Snowden, the NSA was even then, with the assistance of cooperating telephone and telecommunications companies, conducting mass interception and surveillance of all telephone calls within the domestic United States for the very purpose – at least so they claimed – of detecting both external and internal threats against the national security of the United States.
Therefore, through those phone and internet records, the Defendants had actual evidence at the time of the false affidavit and retaliatory searches and seizures that none of the Plaintiffs had communicated with the The New York Times or other journalists, except that Plaintiff Drake on his own had spoken confidentially with regard to public and /or unclassified information to the Baltimore Sun.
The end result of the FBI, NSA and DOJ's actions in response to whistleblowing (largely performed through proper channels) is a host of alleged civil liberties violations and other abuses, starting with the violation of 1998's Whistleblower Protection Act. From there, the whistleblowers allege violations of their First, Fourth and Fifth Amendment rights, along with malicious prosecution, intentional infliction of emotional distress and abuse of process.
It will be interesting to see where this goes. The government likely won't be able to dismiss the suit quickly, but the plaintiffs are going to run into a ton of immunity claims that will be buttressed by invocations of national security concerns. Their lawyer -- Larry Klayman -- has occasionally displayed
his inability to distinguish between actionable claims and conspiracy theories, a tendency that doesn't improve the plaintiffs' chances of succeeding. But of all the outcomes I imagined for the stories of Drake, Binney, et al, taking these agencies on directly in federal court wasn't one of them.
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Posted on Techdirt - 24 August 2015 @ 8:27am
The best way to combat speech you find offensive is more speech. Despite it being the best way to handle these situations, it's also the least-used option. And, in legislators' hands, "more speech" is rarely on the table. But "more law" almost always is.
An editorial from the Montreal Gazette discussing the Quebec government's proposal for a new "hate speech" law not only points out the potentially damaging side effects of the poorly-drafted bill, but other aspects that should have prevented it from ever getting this far in the legislative process.
To begin with, there are already laws in place to deal with "hate speech."
Certain types of communication are considered unacceptable, particularly speech that intentionally incites others to violence or hatred against a particular group. The Criminal Code already provides for this, and more importantly, it sets out clear parameters for the successful prosecution of hate-speech offences and specifies the conditions under which statements that some may see as hate speech are legally permissible. And as with all crimes, conviction requires proof beyond a reasonable doubt.
There it is. A law already exists to address these issues. But this law apparently has problems -- like "clear parameters" and requirements for "proof beyond a reasonable doubt." The new law will have neither of those.
The legislation, in its current form, fails even to define hate speech, leaving the grounds for a complaint to the provincial human rights commission open to interpretation. Also of concern is that the complainant may remain anonymous. Once a complaint is received, the bill would grant the commission sweeping new powers to investigate an alleged offence, and to then forward cases to the human rights tribunal for action.
The tribunal, in turn, could decide — based on a level of proof that it determines itself — whether a person has engaged in or disseminated hate speech, or “acted in such a manner as to cause such acts to be committed.” If so, fines could be levied and names added to a publicly available list for an indeterminate period of time.
These changes for the worse have been prompted by critics of the existing law, as it fails to criminalize enough
speech and raises the bar too high for those hoping to punish people for offending them. Passing this law would allow hecklers to exercise their veto power more frequently, more effectively and, as a bonus, completely anonymously.
The end result, of course, is the chilling of speech. Currently, there's a measure of due process to the proceedings. If this bill passes, that's gone. And with no clear standard expressed in the bill itself, all sorts of previously protected speech will be potentially subject to criminal penalties.
But that's only part of the problem. The other issue is that the bill seems to be a quid pro quo exchange meant to give the government a pass on yet another targeted restriction.
The anti-hate bill was introduced as part of a “package” of sorts, rolled out in June in response to (among other things) concerns about the radicalization of impressionable young people and a rising tide of public anti-Muslim sentiment. The package also included a detailed anti-radicalization strategy and another bill that would ban the wearing of face-coverings while giving or receiving a public service. The face-covering ban will almost exclusively affect Muslims, so the hate-speech bill could be seen as a kind of olive branch to the community, and another way to defend against increasingly vicious anti-Muslim rhetoric in public discourse.
So, the Quebec government wants to crack down on radicalization and force Muslims to look "less Muslim" when engaging with the Quebec government. In exchange, everyone -- not just Muslims -- will be allowed to anonymously report nearly anything that offends them to the commission and allow the bill's vague machinations to take over. It's written from the ground up to be abused. And while it may be a slight nod towards the Muslim community the government is slapping with other restrictions, it's a safe bet that Muslims will also
be frequently targeted by hate speech complaints to the tribunal. By leaving the burden of proof entirely in the tribunal's hands, any and all complaints are valid until otherwise determined by a third party in its sole discretion, with no input from the accused. How could that possibly go wrong?
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Posted on Techdirt - 21 August 2015 @ 3:54pm
We recently covered the complete absurdity that is the Santa Ana police union's legal battle to clear cops caught misbehaving (to put it lightly…) during a raid on a pot dispensary. The cops in question tore cameras out of the wall, disabled the surveillance system and then, when they thought they were "safe," made disparaging comments about a disabled woman, ate presumably pot-laced edibles, played a few rounds of darts and generally behaved like any group of miscreants would if they felt they were unobserved.
Among the numerous laughable claims made in the union's effort to block recordings of these actions from being used against the cops performing these actions is that the recording itself is "illegal" as the officers had an "expectation of privacy" while performing their law enforcement duties in a public areas of a publicly-accessible business.
The suit also claims the video shouldn't be used as evidence because, among other things, the police didn't know they were on camera.
"All police personnel present had a reasonable expectation that their conversations were no longer being recorded and the undercover officers, feeling that they were safe to do so, removed their masks," says the suit.
First off, any expectation of privacy only arose because the officers thought
they had disabled all of the cameras. In any other reasonable
situation, the presence of cameras would alert both police and members of the public that any expectations of privacy were severely misguided. Surveillance cameras in businesses are the rule, not the exception. Just because these cops missed a camera doesn't make the recording "illegal," nor does it somehow grant them an expectation of privacy that logically doesn't exist.
The legal action seems doomed to failure, even more so now that the Ninth Circuit Appeals Court -- whose jurisdiction includes Santa Ana, California -- has just issued an opinion
, backed by Supreme Court decisions, stating that public areas of public businesses carry no expectation of privacy.
This ruling sides with law enforcement over a citizen's objections -- the same thing the misbehaving cops are seeking, but completely in reverse.
In this case, a motel owner (Mahesh Patel) claimed Fourth Amendment violations were committed when officers entered his business and cited him for code violations in plain view. He claimed his private business (as in private ownership) granted him an expectation of privacy that was violated by the officers' entry.
Not so, says the court:
As in Barlow's, the police officers entering the public areas of the Galleria Motel are entitled to observe (without a warrant) anything observable by the public. Camara and See [Supreme Court cases cited by the plaintiff] only allow a commercial property owner to manifest a reasonable expectation of privacy in his property by closing off portions of his business to the public.
The areas of the Galleria Motel open to the public are not within the enumerated items in the Fourth Amendment; therefore, no search occurs when police officers enter those areas. Because the complaint alleged only that police officers entered the public areas of the Galleria Motel, Patel has failed to demonstrate a reasonable expectation of privacy pursuant to Katz, rendering Camara and See inapplicable to this case.
This affirms the lower court's judgment.
The only allegation in the complaint (relevant to this appeal) was Patel's claim that the officers violated the Fourth Amendment. Defendants filed a motion to dismiss for failure to state a claim. The district court granted the motion, holding that neither Patel nor HFS had a reasonable expectation of privacy in the areas of the Galleria Motel that were open to the public.
So, for consistency's sake, if nothing else, cops can't claim to have an expectation of privacy in areas of businesses open to the public, not if the courts are going to deny the same privilege to citizens. But that's exactly what the police union's filing on behalf of the dispensary-raiding cops is trying to achieve.
And, indeed, the judge presiding over the case in Orange County Superior Court has already denied the officers' request for an injunction
, stating very briefly that the cops had no expectation of privacy because they were on duty at the time -- never mind everything else about cameras, California's wiretap law (which was invoked by the union) or the public areas of private businesses.
The union is still free to pursue its lawsuit against the police department, but it won't be able to prevent the recordings from being used to investigate the participants of the raid. It will almost certainly appeal this decision, but there's nowhere to go with this particular argument. Even if it makes its way up the chain to the federal appeals court, the Ninth has already expressed its opinion on the privacy expectations of public places... and it used Supreme Court decisions to back its assertions up.
But police unions and badly-behaving police officers are both known to explore every argument available, no matter how incredibly stupid, simply because to do otherwise is to admit wrongdoing. And there's always a chance a system designed to cut cops as much slack as possible will still somehow come through for them.
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Posted on Techdirt - 21 August 2015 @ 1:35pm
The government seems to have lost interest in finding anyone to hang for Snowden's all-access tour of the NSA's internal servers -- access that greatly aided in his absconding with a number of documents revealing the surprising extent of the agency's surveillance programs. It certainly still wants to hang Snowden -- literally, if some legislators get their way.
It has, however, decided to nail one handy scapegoat to the wall. This would be the contractor who allowed Snowden to get in the door in the first place. The Register's Shaun Nichols reports that the DOJ is fining US Investigative Services (USIS) $30 million for generally being completely terrible at the one thing it's supposed to be doing: vetting applicants for sensitive government jobs.
The DoJ announced on Wednesday that US Investigations Services (USIS) will give up a $30m (£19.14m) payment in exchange for settling charges that it violated the US False Claims Act by failing to properly screen applicants for government security clearances.
According to the DoJ, USIS failed to properly screen federal security clearance applicants and, in some cases, submitted incomplete background check reports to the US Office of Personnel Management (OPM).
The USIS wasn't simply mediocre. It was awful. Shortly after Snowden revealed himself as the source of the leaks, USIS was revealed to have riddled the government with security holes over most of the past decade
. One contractor was caught interviewing dead people during background checks. Another singlehandedly submitted 1,600 falsified reports.
Then in January of last year, the revelations got even worse. The DOJ accused USIS of faking background checks
on 665,000 federal employees -- something the DOJ understatedly called "taking shortcuts."
The USIS won't actually be paying this fine, however. It will instead work its debt off
doing the DOJ's dishes
doing the same thing it couldn't be trusted to do in the first place when it was still collecting a paycheck
. Why this hasn't resulted in a permanent pink slip for the contractor is beyond me, but it does show the government's endless willingness to forgive… well, certain
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Posted on Techdirt - 21 August 2015 @ 7:06am
Thanks to a string of theater-related tragedies, going to the theater is about to become as enjoyable as going to the airport.
Following two recent deadly incidents at movie theatres in the US, the Regal Entertainment Group – the nation’s largest movie theater chain – this week added a bag and purse check policy as a security measure in some of the 569 theaters it operates.
“Security issues have become a daily part of our lives in America. Regal Entertainment Group wants our customers and staff to feel comfortable and safe when visiting or working in our theatres,” the chain said in a statement.
This may sound like a harmless bit of "doing something" in response to a few tragic incidents, but there's nothing really harmless about it.
First off, it subjects everyone to the same level of scrutiny -- provided they're carrying a bag of some sort. If you have a purse or backpack or (god forbid) a fanny pack, you're a potential threat. Everyone else? Free to go. Weapons tucked into waistbands or shoved into pockets will go undetected.
And, like the TSA its emulating, the security measures will be easily thwarted and ultimately useless. For every weapon the TSA brags about seizing, many more end up on planes. A recent audit of the TSA's security efforts found it missed 95%
of smuggled weapons and explosives. Anyone thinking Regal's security force is going to be better trained and more thorough than the TSA is kidding themselves.
Like the TSA's efforts, this will give moviegoers the illusion
of safety, rather than actual safety. An illusion might be comforting enough for most moviegoers and it's all Regal can actually offer. This move is more about PR than reality.
According to a new survey conducted by consumer research film C4, following the Nashville incident, 48% of moviegoers are willing to pay $1 or more per ticket for the additional measures. Nineteen per cent of respondents said they would pay $3 or more.
And I'm sure Regal will be more than happy to take $1-3 more from every moviegoer in exchange for a hassling a few moviegoers. But Regal's move -- while good-intentioned -- is ill-advised. Offering your customers mostly-theoretical protection places responsibility for any future shootings almost solely on each individual theater. Now, if anyone shoots up a theater, Regal will very likely be successfully targeted in wrongful death suits. After all, it instituted additional measures to prevent further shootings... and then failed to prevent a shooting from happening. The additional measures seem unlikely to dissuade anyone but the most easily-deterred shooters from following through with their plans. In exchange for little more than a temporary bump in goodwill, Regal is assuming a great deal of liability.
And given what we know about the most recent theater shootings, a bag check wouldn't have stopped anything. James Holmes, who killed 12 and wounded 70 in Aurora, CO, stashed his weapons in his vehicle
. The shooter in Louisiana may
have had a backpack (reports are inconclusive
), but it wasn't on or near him when police got to him, and a controlled detonation later proved there was nothing harmful inside it. The shooter at the Antioch, TN theater was carrying two backpacks
-- one of which was strapped across his chest. When police engaged him, he was also wearing a surgical mask. Most of what was in his bags weren't actually weapons, though. Pepper spray, a hatchet and an Airsoft gun were used in the theater attack. Only one of these is an actual weapon, and Regal's new policy doesn't make it clear what will happen to those who bring in legal items that aren't weapons but the theater decides could be deployed as one.
This focus on bags also makes it clear to potential attackers that security will be looking out for one thing -- backpacks and bags. Avoiding scrutiny simply means not doing that one thing. So, while some moviegoers will be comforted by this security charade being performed on their behalf, many more will be irritated that attending a movie will be nearly as annoying as boarding a plane.
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Posted on Techdirt - 21 August 2015 @ 5:08am
We knew this day was coming. Ever since the EU decided something called the "right to be forgotten" existed, and that Google (mainly) would be tasked with the "forgetting," the descent into an Inception-esque state of forgetting about forgetting about the forgotten was the illogical next step forward.
Google has been ordered by the Information Commissioner’s office to remove nine links to current news stories about older reports which themselves were removed from search results under the ‘right to be forgotten’ ruling.
The search engine had previously removed links relating to a 10 year-old criminal offence by an individual after requests made under the right to be forgotten ruling. Removal of those links from Google’s search results for the claimant’s name spurred new news posts detailing the removals, which were then indexed by Google’s search engine.
Google refused to remove links to these later news posts, which included details of the original criminal offence, despite them forming part of search results for the claimant’s name, arguing that they are an essential part of a recent news story and in the public interest.
As everyone should have known, forcing a state of forgetfulness more often results in the opposite happening. All Ms. Streisand wanted was for people to stop looking
at her house. Now, more than a decade later, many internet denizens can conjure up a mental image of her coastline mansion
with minimal effort.
Now, when journalists are informed that certain stories need to be "forgotten," they're obviously going to write about it
. And with good reason. A stupid decision by the European Union basically gives almost anyone the right to vanish away facts about their past misdeeds. And journalists are going to be righteously angered that past reporting on factual events just has to "go away." So, they report on the requests. And now those hoping to erase the past are condemned to repeat it. Not fair, says the ICO. Henceforth, more stupidity.
The UK's Information Commission (ICO) seems to know what it's asking is basically a futile gesture with one foot firmly planted in the realm of impossibility, but it's going to ask for it all the same.
[Deputy Commissioner David] Smith said: “Let’s be clear. We understand that links being removed as a result of this court ruling is something that newspapers want to write about. And we understand that people need to be able to find these stories through search engines like Google. But that does not need them to be revealed when searching on the original complainant’s name.”
See? It's so easy. This can all be fixed just by ensuring complainants don't find anything they don't like when using their own name
as a search term. There are no specific instructions for Google to follow other than to delist any requested article discussing Google delistings in response to "right to be forgotten" requests.
Obviously, this decision will only result in more
articles about requesters and their requests, which will populate search results, leading to more
requests to be forgotten, followed by more directives by the various European government bodies, reaching the point where Google will be asked to remove links to articles discussing the removal of links to articles discussing removed links. Repeat until nauseated.
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