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Posted on Free Speech - 17 September 2019 @ 10:45am

Hotel Owner Files Libel Suit Against Reviewer For Calling Nazis Nazis, Gets Support From Austrian Court

from the weird-flex dept

Turns out the truth is no defense to accusations of libel… at least not in Austria. And not when someone's reputation needs to be protected from [rereads article] substantially true statements. The standard for defamation in Austria comes nowhere close to what we're used to in the United States. The bar is low for the plaintiff and a bunch of insanity for the defendant who said true things and still got dinged for it. (h/t Techdirt reader Rose Crowell)

Here's the background, as detailed by Philip Oltermann for The Guardian:

A German man is being sued by the owners of a four-star hotel in Austria after posting online reviews in which he criticised them for decorating their lobby with a portrait of a “Nazi grandpa” in a uniform adorned with a swastika.

The man, named in court documents as Thomas K, and his wife visited the hotel in the village of Gerlos in the Tyrolean Alps last August. After check-in, they noticed two framed pictures on a wall near the hotel’s entrance, hung above a flower arrangement. One showed a young man wearing a uniform with an eagle and swastika badge, the other an older man.

Using a pseudonym, K posted reviews on Booking.com and TripAdvisor about a week after his visit, one in German and one in English, under the subject header: “At the entrance they display a picture of a Nazi grandpa.”

The review went on to question the wisdom of posting photos of people in Nazi uniforms at a hotel entrance, suggesting it might be the owners' way of sending some sort of message about their biases or sympathies.

The hotel owners were not pleased to be subtly equated to the photos they had placed at the hotel entrance, so they tracked down the reviewer using the phone number provided to Booking.com and sued him for defamation.

First, the owners claimed that the pictures of the men in "Nazi" uniforms were actually just pictures of relatives who were members of the Wehrmacht, not the Nazi party. So, they were just in the army controlled by Nazis, not actually card-carrying Nazis, which seems to be splitting hairs just a bit much when the photos showed a person in a Nazi uniform. They also claimed these were the only photos they had of these relatives, so I guess the guest should have been more understanding.

That was one of the libel claims -- one made in a country where it's apparently possible to defame the dead. Except it wasn't actually libel. It was a fact.

After researching the identity of the two men in the photographs at the German National Archives in Berlin, K was able to prove that both of the men had in fact joined the Nazi party, in 1941 and 1943 respectively. The hotel’s owners said they had not been aware of their relatives’ membership.

Right, so that's settled then. They were Nazis. The reviewer called them Nazis. It's no longer a question of libel. Except that somehow it still is.

The court presiding over the case issued an injunction. Not because of the Nazis being called Nazis but because of something the court decided the reviewer said, even though there's really nothing in the review but a statement of (apparently unprotected) opinion.

The Innsbruck court nonetheless took the unusual step in July of granting the hotel a preliminary injunction against K, arguing that his review had also implied that the hotel owner shared or sympathised with National Socialist ideas.

But this is what the reviewer actually said:

This made us wonder what the hotel owners are trying to tell us with this image. This incident speaks volumes about the current state of affairs in this region of Austria.

That's speculation. It's not flattering speculation but it isn't -- or at least it shouldn't be -- libel. But that's the initial conclusion the court has reached. Why? Because in Austria, the owners' interest in "protecting their reputation" is more important than hotel guests expressing their opinions.

I'm not sure what the Austrian expression for "fucked up" is, but that's what this is: libel that never happened based on factual assertions that somehow have managed to keep a disgruntled reviewer tied up in court.

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Posted on Techdirt - 17 September 2019 @ 6:49am

House Intelligence Committee: Intelligence Community Is Burying A Whistleblower Complaint That May Involve Wrongdoing By The White House

from the fuck-us,-I-guess dept

Well. This is awkward. Congressional oversight of our intelligence agencies is actually being performed by the overseers. The House Intelligence Committee -- or at least Rep. Adam Schiff -- wants to know what's being withheld by the Office of the Director of National Intelligence.

Something fucked up has happened and the ODNI doesn't want to talk about it. What "it" is remains unknown, but it's apparently damaging enough the Intelligence Community is blowing off its obligations to its oversight.

“A month ago, a whistleblower within the intelligence community lawfully filed a complaint regarding a serious or flagrant problem, abuse, violation of law, or deficiency within the responsibility or authority of the Director of National Intelligence. The Inspector General of the Intelligence Community found that complaint not only credible, but urgent. More than ten days since the Director was obligated to transmit the complaint to the intelligence committees, the Committee has still not received the disclosure from the Director, in violation of the law.

“A Director of National Intelligence has never prevented a properly submitted whistleblower complaint that the IC IG determined to be credible and urgent from being provided to the congressional intelligence committees. Never. This raises serious concerns about whether White House, Department of Justice or other executive branch officials are trying to prevent a legitimate whistleblower complaint from reaching its intended recipient, the Congress, in order to cover up serious misconduct."

Given the ONDI's refusal to cooperate and Schiff's angry letter, it's probably safe to assume this whistleblowing involves domestic surveillance and another abuse of the NSA's powers. If it was just some "inadvertent" collection of phone records or someone blowing tax dollars by pretending to telecommute, this would have been handed over to the HIC. But this one has been denoted as being of "urgent concern," which suggests an abuse of collection authorities.

Not for nothing do whistleblowers take the next flight to Hong Kong. Going through the proper channels just gets complaints buried and possibly separates the whistleblower from their source of income. This one went through the proper channels. And the proper channels extended a wordless middle finger to Congressional oversight in response.

The ODNI claims it has no obligations to its oversight.

On September 13, 2019, the Committee received a letter from the ODNI declining the Chairman’s request and stating that the DNI, contrary to an unambiguous statutory command, is withholding the complaint from the Committee because, in part, it involves confidentially and potentially privileged communications by persons outside the Intelligence Community.

Wrong! That's not how this works. Intelligence oversight committee members are "read in." They're allowed to check this stuff out. That's why they hold closed-door sessions and invoke national security concerns when pressed by the public to be a bit more forthcoming about the IC's activities. If the ODNI considers its work to be too "sensitive" for its oversight, we have a problem. I mean, we already have problems, but now the ODNI has placed itself outside the control of the government that created it. If it can reject this demand, it can reject any form of control at all. We don't need the ODNI to be a law unto itself.

Here's the kicker: given the ODNI's recalcitrance, the Intelligence Committee is drawing some very concerning conclusions about the nature of the withheld report.

The Committee can only conclude, based on this remarkable confluence of factors, that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials. This raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.    

Fantastic. If true, the Administration is weaponizing the Intelligence Community. And someone on the inside is "urgently concerned." If it is the Administration, it can try to Executive Order its way out of this mess. But if it does, this branch is compromised. I mean, more so. That's bad news for America and Americans. And yet another reminder that, when it comes to whistleblowing, the "proper channels" are for silencing concerned employees rather than holding our public servants accountable.

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Posted on Techdirt - 16 September 2019 @ 1:30pm

USPTO Drops Its Demands For Applicants' Green Cards

from the begrudgingly-slides-back-into-its-own-lane dept

The US Patent and Trademark Office's side venture into immigration enforcement has come to an abrupt end. It recently instituted a US attorney requirement for foreigners filing trademark applications with the Office. This was apparently done to limit the flow of bogus trademark applications, a large number of which originated in China.

This wasn't the problem. The problem was that the USPTO started requiring examiners to verify the immigration status of non-US citizens applying for trademarks. It was no longer enough to provide some form of address verification, like a utility bill. The USPTO was now demanding proof of permanent residence, which would limit applications by non-US citizens living in this country to green card holders.

Notably, the USPTO does not require applicants to be legal residents of the United States. And only recently did it even require applicants from foreign countries to retain a US attorney for filing.

After receiving a bit of backlash for branching out into immigration enforcement, the USPTO is backing down on its demands for green cards. Paul Singer of WGBH (who broke the original story) has more details on the rollback.

Friday morning, the trademark office scrapped the guidance and issued new instructions that dropped any reference to immigration status. The new guidelines to staff say only that an applicant may be asked to provide proof of residence at the U.S. address, such as a lease or a utility bill.

The new instructions also remove provisions that would have required foreign applicants declaring U.S. addresses to provide proof of legal status even if they had obtained a U.S. trademark attorney. The change makes it clear that proof of address is only needed in cases where the applicant does not have a U.S. attorney.

This walk-back indicates the USPTO was looking to be in the immigration business but had trouble getting examiners to buy in on the new focus. If it was a wholly legitimate directive, there'd be no reason to alter it so soon after its enactment. Now that this directive has been clarified, examiners can go back to doing their actual job -- fielding ridiculous trademark applications -- and stop worrying about whether they're going to have to start sharing cubicle space with ICE officers.

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Posted on Techdirt - 16 September 2019 @ 10:44am

Ninth Circuit Upholds Its Previous Declaration That Cops Stealing Your Stuff Doesn't Violate The Constitution

from the and-cops-are-still-not-on-notice-they-can't-just-steal-stuff dept

Earlier this spring, the Ninth Circuit Appeals Court basically said it's okay for cops to steal property from citizens. This isn't because stealing is okay. It isn't. It's illegal. It's that stealing someone's possessions after they've been seized with a warrant doesn't violate the Constitution.

In this case, officers, who were engaged in an illegal gambling investigation, raided a couple's home, walking away with far more property than they officially said they did:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

Despite it being apparently obvious that being illegally stripped of personal possessions would interfere with a person's direct interest in the property they no longer have, the court extended qualified immunity to the officers. It reasoned that theft, while illegal, isn't unconstitutional, even when it's the government stealing from citizens.

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

The Ninth Circuit then withdrew this opinion, suggesting it may have had second thoughts about allowing officers to engage in theft so long as they have a warrant. It needn't have bothered. The superseding opinion [PDF] changes nothing. It points out that only one other circuit has reached the conclusion that theft by law enforcement officers violates the Constitution, but that opinion was unpublished, which means it simply doesn't count.

Since there's no precedent out there in the federal court system, the Ninth isn't going to go out of its way to create some.

We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment. The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).

Not addressing it now means having to write ridiculous paragraphs like this in order to prevent officers from being sued for stealing stuff during searches.

We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”

I'm pretty sure the officers knew it was wrong to steal. It's a thing pretty much everyone knows. That they wouldn't have been "on notice" that it violated the Constitution seems almost beside the point. But since the officers raised a qualified immunity defense, we're left with this absurd outcome.

Appellants have failed to show that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim.

The court recognizes what it's doing. But it claims to be bound by [checks notes] lack of precedent, which makes this footnote's recognition of the obvious especially meaningless.

Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong. We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.

Unfortunately, this closing statement is still true.

Not all conduct that is improper or morally wrong, however, violates the Constitution.

But when the conduct involves government employees illegally depriving people of their belongings, it would seem to violate the right to be free from unreasonable searches and seizures. The search may be protected by a valid warrant, but making off with property that isn't targeted (or even present on the inventory sheet) sure sounds like an unreasonable seizure.

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Posted on Techdirt - 16 September 2019 @ 3:23am

New Mexico City Starts Crowdfunding Effort To Pay For Its Stupid Defense Of Constitutional Violations

from the self-righteous-but-not-self-sufficient dept

Is it good for governments to supplement their normal crowdfunding efforts (taxes) with something more voluntary? That's the question posed by this great Legally Weird post, which provides a number of examples of city governments asking citizens to dig a little deeper to pay for government things.

Whether or not they can is an unanswered legal question. No one appears to have challenged any of these efforts on policy grounds. Considering giving is completely voluntary, the efforts are usually harmless and underfunded. Whether or not they should engage in crowdfunding is a much more interesting question, although most answers will probably boil down to whether or not the person answering agrees with what the funds are being raised for.

Government crowdfunding efforts have been initiated to pay for park trash receptacles, to remove a Confederate statue, and to supply a public defenders' office with a much-needed cash infusion. Then there's the case that the Legally Weird post leads with.

The city of Bloomfield, New Mexico is asking citizens to pay its legal fees for it. The crowdfunding effort created by Brad Ellsworth, the city's finance officer, hopes to raise enough money to finish paying the $700,000 the city owes to the ACLU.

When we ask rhetorically why governments pursue highly-dubious litigation using public funds, this is the sort of thing we're talking about. The city came out on the losing end of a lawsuit filed by the ACLU on behalf of two Bloomfield Wiccans who disagreed with the city's placement of a Ten Commandments monument on the city hall lawn.

The city argued the separation of church and state was intact because the monument was paid for and created by private citizens. It even contained a disclaimer to that effect on the monument itself. The case eventually made its way to the Tenth Circuit Appeals Court, which found in favor of the ACLU. The court said that permanent monuments erected on city property are government speech, even if they're privately-funded.

The city countered the monument wasn't permanent. It said those providing the monuments needed to re-apply for prime city hall lawn position every 10 years. The court said there was no meaningful difference between ten years and permanent when the city placed no limit on renewals. The city petitioned the US Supreme Court, but the top court saw no reason to take up the case.

Fortunately, the city's residents didn't have to pay for this litigation. The Alliance Defending Freedom provided the city with pro bono legal services, saving taxpayers a considerable amount of money. But the city lost, and it now owes $700,000 to the ACLU.

Obviously, the city never prepared for this eventuality. The city has until 2021 to pay this debt off and has decided to make its first payment of $233,000 to the ACLU this year, using city budget funds. Its crowdfunding effort asks anyone -- city residents included -- to cough up the remaining $467,000. Its GoFundMe page contains a very self-serving statement that portrays the city as a fierce First Amendment warrior, rather than a participant in a project that violated the Establishment Clause of the Constitution.

In an effort to protect and defend private citizens' First Amendment rights, the City of Bloomfield opposed the ACLU's efforts to remove a former Ten Commandments historical monument from the front lawn at City Hall. The Ten Commandments historical monument sat alongside several historical monuments, including the Declaration of Independence, Bill of Rights, and the Gettysburg Address. With overwhelming public support, the City of Bloomfield opposed the ACLU's efforts by appealing all the way to the Supreme Court of the United States. Unfortunately, the District Court ruled in favor of the ACLU and the City of Bloomfield was ordered to remove the Ten Commandments historical monument, which has since been completed. The Ten Commandments historical monument now resides on property owned by the Bloomfield First Baptist Church.  

An unfortunate result of the City of Bloomfield seeking to defend its private citizens' First Amendment rights is that, because the City of Bloomfield lost the litigation, the City is required to reimburse the attorneys' fees and costs of the ACLU relating to the Ten Commandments litigation. The City owes $467,000.00 in attorneys' fees which must be paid by June 30, 2021. Given the overwhelming public support during the litigation, the City is reaching out to concerned citizens in an effort to help crowd fund the remaining balance owed in attorneys' fees. The City appreciates all of the support private citizens can offer.

To call the response "tepid" would be an insult to room-temperature tap water. More than two weeks into its campaign, the city has only managed to raise $1,775 -- 0.38% of its goal. Comments on the page suggest people aren't happy the city's attempt to stick citizens with the legal bill it racked up, especially after it apparently told residents this lawsuit wouldn't cost them a cent.

Sadly, the residents unwilling to donate to the city's crowdfunding effort will end up paying for this futile, stupid legal battle anyway. When this fails -- and it will -- the remaining balance will be paid off using tax dollars that definitely would be better spent on almost anything else.

Far too many municipalities are willing to use public funds to pursue dubious legal claims -- claims many residents likely don't support. And when they lose, that is added to the public's tab. Bloomfield's idiotic defense of Constitutional violations isn't an anomaly. The only thing that makes it stand out is its use of a crowdfunding platform to pay the legal bill. Otherwise, it's business as usual: the defense of unsupportable positions with the involuntary support of the public.

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Posted on Techdirt - 13 September 2019 @ 1:39pm

Ninth Circuit Reverses Course While Quoting Its Own Precedent Saying Otherwise; Says Section 230 Doesn't Cover Anti-Competitive Moderation

from the our-earlier-finding,-while-good,-is-now-not-good,-so... dept

The Ninth Circuit Appeals Court has resuscitated a lawsuit against Malwarebytes filed by litigious software company Enigma. Enigma Software tends to sue people who say bad things about its antivirus offerings and since there's a lot of people doing that, the company seems to spend a fair amount of time in court.

Enigma ran into the Section 230 wall in the lower court by claiming Malwarebytes' designation of its software as a threat was an unfair business practice. It said Malwarebytes scans were locating its offerings on people's computers, informing them the software was shady, and quarantining it. Enigma alleged this was anti-competitive. And if it wasn't that, it was probably some sort of trademark thing, blah blah blah Lanham Act. (This claim sneaks into a lot of lawsuits involving Section 230 protections and Enigma tried this tactic in a defamation lawsuit it filed against BleepingComputer. It's a dodge, not a cognizable legal argument.)

Malwarebytes prevailed at the district court level by citing a Ninth Circuit Appeals Court ruling finding that filtering software or services is also protected by Section 230 of the CDA. In the cited case, antivirus software company Kaspersky secured a dismissal from a lawsuit brought by an aggrieved adware purveyor. That decision said any material a provider feels is objectionable (in this case, adware) can be removed by the provider.

That's what the court said then. What it's saying now is something different, and that appears to be only because the Ninth Circuit feels Malwarebytes and Enigma Software are actually competitors, even if Enigma has yet to earn the same amount of respect Malwarebytes has. From the decision [PDF]:

This case differs from Zango in that here the parties are competitors. In this appeal Enigma contends that the “otherwise objectionable” catchall is not broad enough to encompass a provider’s objection to a rival’s software in order to suppress competition. Enigma points to Judge Fisher’s concurrence in Zango warning against an overly expansive interpretation of the provision that could lead to anticompetitive results. We heed that warning and reverse the district court’s decision that read Zango to require such an interpretation. We hold that the phrase “otherwise objectionable” does not include software that the provider finds objectionable for anticompetitive reasons.

That's a pretty broad interpretation of a decision the Ninth Circuit says it's not going to interpret broadly. Malwarebytes has plenty of legitimate reasons to protect its users from Enigma's offerings that go beyond neutering a competitor. Enigma's reputation seems to have improved over the last couple of years, but its history is littered with rogue software designations, questionable customer service tactics, and, of course, the tendency to sue anyone who doesn't view Enigma as positively as Enigma views itself.

So, designating this competitor's software as questionable isn't necessarily about keeping a competitor off users' computers. That subtlety is lost in this reversal by the Ninth Circuit, which feels Enigma has plausibly alleged anti-competitive practices.

It also (perhaps more correctly) finds that Enigma can continue pursuing its Lanham Act claims about trademark infringement. The court (correctly) notes Section 230 does not provide immunity against intellectual property claims. Not that the false advertising claim raised here has any merit. It doesn't. But being right on this point doesn't make the decision any better. Litigants hoping to dodge Section 230 immunity tend to throw in trademark-related claims as filler, hoping this bogus deployment of their intellectual property protections will allow them to survive a motion to dismiss. It works here. So that means litigants will keep cramming these bullshit claims into their bullshit lawsuits.

Not only does this make things worse for defendants in the circuit (and there will be a lot of them considering how many tech companies are located in California) but it ignores one crucial aspect of Malwarebytes' designation of Enigma software as dangerous: Malwarebytes flagged Enigma's software in response to users' preferences.

Malwarebytes and Enigma have been direct competitors since 2008, the year of Malwarebytes’s inception. In their first eight years as competitors, neither Enigma nor Malwarebytes flagged the other’s software as threatening or unwanted. In late 2016, however, Malwarebytes revised its PUP-detection criteria to include any program that, according to Malwarebytes, users did not seem to like.

After the revision, Malwarebytes’s software immediately began flagging Enigma’s most popular programs— RegHunter and SpyHunter—as PUPs. Thereafter, anytime a user with Malwarebytes’s software tried to download those Enigma programs, the user was alerted of a security risk and, according to Enigma’s complaint, the download was prohibited, i.e. Malwarebytes “quarantined” the programs.

This move was predicated on users' preferences, which puts it about as close to user-generated content as possible, without allowing users to directly control Malwarebytes' threat database.

The end result is what matters, at least in the Appeals Court's limited analysis. Section 230 was supposed to increase competitiveness, not limit it, so…

We cannot accept Malwarebytes’s position, as it appears contrary to CDA’s history and purpose. Congress expressly provided that the CDA aims “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services” and to “remove disincentives for the development and utilization of blocking and filtering technologies.” § 230(b)(2)–(3). Congress said it gave providers discretion to identify objectionable content in large part to protect competition, not suppress it. Id. In other words, Congress wanted to encourage the development of filtration technologies, not to enable software developers to drive each other out of business.

On the plus side, it also doesn't buy Enigma's argument that Section 230 immunity only involves the policing of material that is sexual and/or violent in nature. It covers more than that, but does not -- at least in this opinion -- protect the blocking of competitors' software offerings.

The dissent says this is the wrong decision to make. Section 230's language does cover Malwarebytes' flagging of Enigma software. If the law needs to be fixed, legislators need to fix it. The court shouldn't litter the circuit with bad precedent in lieu of Congressional action.

The majority opinion seeks to limit the statute based on the fact that the parties are competitors. See Majority Opinion, p. 4. However, nothing in the statutory provisions or our majority opinion in Zango supports such a distinction. Rather the “broad language” of the Act specifically encompasses “any action voluntarily taken [by a provider] to restrict access to . . . material that the provider . . . considers to be . . . otherwise objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). Under the language of the Act, so long as the provider’s action is taken to remove “otherwise objectionable” material, the restriction of access is immunized. See id. The majority’s real complaint is not that the district court construed the statute too broadly, but that the statute is written too broadly. However, that defect, if it is a defect, is one beyond our authority to correct.

But that's not what happened here. Enigma will get to drag this litigation out even longer. It may not even win it. But it will serve as a warning to others tempted to flag Enigma's offerings as less-than-desirable. And that's probably the only win it really needs.

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Posted on Free Speech - 13 September 2019 @ 12:01pm

After Being Sued, Mississippi Rewrites Its Unconstitutional Ban On The Use Of Meat Words By Vegan Food Producers

from the try-it-again,-but-without-all-the-favoritism dept

Mississippi legislators -- apparently guided by "threatened" cattle farmers -- decided to rewrite its product-labeling laws. It enacted a statute forbidding producers of non-meat products from using meat-associated terms to describe their products. This unconstitutional requirement was put in place to supposedly reduce customer confusion, but the labels targeted made it clear their products -- hamburgers, hot dogs, etc. -- contained zero meat.

"Vegan hot dogs" was no longer acceptable. Neither was the ubiquitous term "veggie burger." The law required plant-based products to disassociate themselves completely from the meat products they were emulating. Very few people have been tricked into buying veggie products when they meant to purchase beef. But consumers looking to replace meat products with veggie alternatives might find it a bit more difficult to figure out what products they're replacing when the descriptive terms aren't all that descriptive.

The state was sued by Upton's Naturals Co. and the Plant Based Food Association. Represented by the Institute for Justice, the plaintiffs sought an injunction blocking the law's enforcement and a declaration that the law itself was unconstitutional.

It appears the state has decided to craft a new statute -- one that doesn't violate the First Amendment -- rather than continue to fight this in court. Scott Shackford has the details at Reason.

Today the Institute of Justice announced what appears to be a successful end to the fight. The Mississippi Department of Agriculture has withdrawn the regulations it proposed to enforce the law and introduced a new set of regulations. Under the new proposal, it's still wrong for a plant-based food product to be labeled as "meat" or a "meat food product," but there will be exceptions for products that include an appropriate qualifying term on the label, such as "plant-based," "meatless," "vegetarian," or "vegan."

The proposed change [PDF] still needs to be adopted and put into force, but this will allow Upton's and others to continue selling their plant-based products without having to alter their packaging or labeling. What the new law would require is something these companies already do:

112.01 Labeling Requirements

1. A plant-based food product label shall not be false or misleading.

2. A plant-based food product shall not be labeled as a “meat” or “meat food product” as defined by Miss. Code Ann. §§75-33-3(1)(b) and 75-35-3(g). For purposes of this section, a plant-based food product will not be considered to be labeled as a “meat” or “meat food product” if one or more of the following terms, or a comparable qualifier, is prominently displayed on the front of the package: “meat free,” “meatless,” “plant-based,” “veggie-based,” “made from plants,” “vegetarian,” or “vegan.”

Governments can regulate speech to a limited extent. But the exceptions must be very narrowly-crafted and serve a "compelling" government interest. Pushing one set of competitors out of the market with ridiculous, unconstitutional speech restrictions isn't the sort of things a government should do, especially if it has to violate the Constitution to do it.

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Posted on Techdirt - 13 September 2019 @ 9:38am

High-Level DOJ Official Latest Gov't Employee To Be Caught Watching Porn While On The Clock

from the it's-always-those-wankers-up-top,-he-said-literally dept

It's good to know government employees are hard at work. (This statement mainly applies to male employees.)

Throughout the past several years, internal investigations have rooted out a bunch of government employees who are wasting tax dollars by visiting websites and viewing content no doubt strictly prohibited by workplace policies. We're talking porn. Lots of porn. Just incredible amounts of porn consumption.

These apparently non-essential personnel have racked up some amazing porn stats. Some SEC employees were reprimanded (but not fired) for spending up to 98% of their workdays watching porn. An employee at the US Geological Survey's [cough] EROS Center visited 9,000 porn webpages en route to infecting the agency's computer system with malware. An EPA employee spent their work hours compiling a comprehensive library of over 9,000 pornographic images.

It's not just the federal government either. The City of Baltimore's Department of Public Works discovered an employee was spending about half the work week (~20 hours) watching porn on the clock. Over in the UK -- home of the always-impending porn filters -- government employees accessed porn 300,000 times over a 14-month period.

Porn consumption is apparently a government tradition -- one that spans the world and is celebrated by all levels of governing bodies.

Here's yet another data point, emanating from the US Department of Justice. (via NextGov)

The DOJ's Inspector General was tipped to some in-office porn viewing by a high-ranking official. This was no office drone. This was a Deputy Assistant Attorney General. Its investigation confirmed what was suspected: more porn consumption on a government computer.

From the one-page summary [PDF] released by the OIG:

The OIG investigation substantiated the allegation that the then DAAG viewed sexually explicit images on the DAAG’s government computers, in violation of DOJ policy. An OIG forensic examination of two DOJ computers issued to the DAAG determined that the computers contained data regarding numerous sexually explicit website searches, visits to websites hosting sexually explicit videos, sexually explicit search engine terms, and sexually explicit images.

The DAAG then lied about their porn habits. This is a bold move, considering lying to investigators is a criminal offense. Of course, it's only the rarest of government officials who are ever charged with lying to investigators. This one was no exception. The DAAG resigned before the investigation was concluded and no criminal charges were brought.

That's the quality of help we're paying for. They're people who should be held to a higher standard than private sector employees. But they never are. Fireable offenses rarely result in firing. Massive amounts of wasted time result in reprimands, rather than demotions or termination. And yet, we're supposed to act like the government has our best interests in mind when it engages in a tiny bit of oversight. These employees and their enablers are jerking far more than themselves around.

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Posted on Techdirt - 12 September 2019 @ 1:29pm

Houston Police Officer Who Led Botched Raid That Killed Two People Now Facing Felony Murder Charges

from the some-of-the-best-criminals-are-cops dept

The increasingly-awful story of the Houston Police Department's botched drug raid continues to develop. Earlier this year, the Houston PD raided the house of Dennis Tuttle and Rhogena Nicholas. By the time the bullets stopped flying, the couple of 21 years was dead.

The raid was predicated on a tip from a confidential informant who said he saw lots of heroin and some guns in the residence while performing a controlled buy. No heroin was found. The gun described by the informant was never found. What was found was personal use amounts of marijuana and cocaine, neither of which were mentioned by the informant.

The informant never existed. The heroin supposedly purchased from the residence actually came from the console of an officer's police car. The affidavit obtained by Officer Gerald Goines was apparently filled with lies about a controlled drug buy that never happened and statements from an informant who had never visited the Tuttle residence. The actual tip the officers acted on was one phoned in by Rhogena Nicholas' mother, who complained about the couple using drugs in their house.

Goines wasn't the only liar. Other officers on the scene lied as well. The narrative officers presented was one of being greeted by weapon-wielding residents during the no-knock raid. An independent forensic examination of the home contradicted many of the claims made by officers in their reports.

The police chief finally distanced himself from the officers' actions, but only after enough information had come to light to show everything about the raid was a lie. Investigations have been opened on the PD and the officers involved. The two officers who led the raid are having their past investigations examined by the PD and the DA's office says this could affect as many as 14,000 cases. Not that the Houston PD is exactly being cooperative. The DA's office has had to threaten legal action to get the department to turn over paperwork linked to Officer Gerald Goines and Officer Steven Bryant.

These officers are no longer facing multiple investigations into the drug task force work. They're now facing criminal charges as well.

Gerald Goines, the ex-Houston police officer who led the controversial no-knock raid on Harding Street, has been charged with two counts of felony murder, as KHOU 11 Investigates reporter Jeremy Rogalski first reported.

His attorney, Nicole DeBorde, said Goines was surprised by the charges.  

Goines surrendered Friday afternoon and his bond was set at $150,000 on each charge. Goines made bond Friday evening.

He is required to wear a GPS monitor and won't be allowed to have weapons or leave Harris County.

His partner in cop crime isn't facing murder charges, but is on just as short a leash as Goines.

Former Officer Steven Bryant, who was involved with the Harding Street warrant, is charged with second-degree tampering with a government document. His bond was set at $50,000. He will also wear a GPS monitor and can't leave Harris or Fort Bend counties.

Meanwhile, the HPD chief continues to reassure himself this isn't the tip of a corroded iceberg, but rather just an anomaly he can go back to ignoring when the press finds something else to occupy itself with.

However, Houston Police Chief Art Acevedo believes it's not a department wide problem.

"We've been looking at a lot of cases and we have yet to see it again, any evidence of any systemic issues," Acevedo said.

Maybe no cop on the force is as awful as these two. But cops don't just go straight from the academy to falsifying affidavits and engaging in deadly raids over drugs that came from a cop car, rather than a crime scene. They start small. And if no one stops them, it eventually grows to something that can't be contained. Chief Acevedo needs to dig a little deeper. If he's not seeing anything, it's not because it's not there. It's because he's not really looking for it.

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Posted on Free Speech - 12 September 2019 @ 3:23am

Student Sues College After Being Told Not To Exercise His First Amendment Rights Without The School's Permission

from the students-shouldn't-be-seen-or-heard dept

Another public university is getting sued over its unconstitutional speech policies. While schools can place some restrictions on students' speech, they can't just carve out blanket exceptions that allow them to treat the First Amendment as a privilege it might extend to students if they've filled out all the proper paperwork.

Jones County Junior College student Mike Brown managed to First Amendment his way right into a conversation with the campus police chief. At this school, you have to ask permission before you can speak to other students, apparently. Here's the write-up from FIRE (Foundation for Individual Rights in Education), which is representing Brown in his lawsuit against the college.

In April, Brown and two other individuals held up a sign designed to poll students on the legalization of recreational marijuana. But Jones College administrators quickly summoned campus police because the group hadn’t filled out the proper paperwork — which requires administrative approval and a minimum three-day waiting period before “gathering for any purpose” anywhere on campus.

Brown and another student were taken to the police chief’s office while their friend, a non-student, was escorted to his car and told to leave immediately and not return, or he’d face arrest. Back in the chief’s office, the police chief told Brown he should have known better than to blatantly exercise his free speech rights on campus without administrative approval.

Ah, to be young and living in the Land of the Free, being told by law enforcement that your protected speech needs to be approved ahead of time by a public institution's administrators. Here's the policy that Jones JC has written -- the one being challenged in court. According to this, on-campus speech has a three-day waiting period.

Any student parade, serenade, demonstration, rally, and/or other meeting or gathering for any purpose, conducted on the campus of the institution must be scheduled with the President or Vice President of Student Affairs at least 72 hours in advance of the event. (Forms available in Student Affairs) Names of the responsible leaders of the groups must be submitted to the institution at the time of scheduling.

While schools can place a few restrictions on speech to ensure classes aren't interrupted and campus traffic isn't impeded, they cannot simply create blanket prohibitions that require student speech to be pre-approved. As the lawsuit points out, the campus is large and contains many areas where students could gather without disrupting the school day.

JCJC’s property is made up of several hundred acres and its Ellisville campus has many open, publicly accessible areas, outdoor green spaces, sidewalks, and pedestrian plazas and thoroughfares where student speech and expressive activity would not interfere with or disturb access to college buildings or sidewalks, impede vehicular or pedestrian traffic, or disrupt campus operations or the college’s educational functions. Yet, the entire campus is off-limits to any student expression without the prior approval of JCJC administrators at least three to five days ahead of time through an undefined scheduling process that grants JCJC unfettered and arbitrary discretion to prohibit student expression on the basis of content or viewpoint.

As an added bonus, the student handbook also prohibits "public profanity" on campus, which is about as ridiculous an imposition on free speech as requiring students to ask the school's permission to speak freely. That restriction comes into play in this complaint because a prior run-in with the campus' speech police (who were also literally police officers) involved a "free speech ball" being thrown around by a bunch of adults that administrators claimed was "covered with profanities" during its earlier foray into First Amendment violations.

The lawsuit asks for the court to give the students of JCJC back their First Amendment rights by declaring the school's speech policy unconstitutional. This step was taken because the college decided to ignore FIRE's earlier offering to help it write a more constitutional policy. Now, it gets to defend it in court and explain to judges why it feels it doesn't need to respect students' rights. That should be fun.

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Posted on Techdirt - 11 September 2019 @ 10:44am

DOJ Wants Apple, Google To Hand Over Names And Phone Numbers Of 10,000 App Users

from the government-still-in-the-pointless-acquisition-business dept

Let's hope this isn't the only scope discussed by the court handling this case, detailed here by Thomas Brewster of Forbes.

[T]he government wants Apple and Google to hand over names, phone numbers and other identifying data of at least 10,000 users of a single gun scope app, Forbes has discovered. It’s an unprecedented move: Never before has a case been disclosed in which American investigators demanded personal data of users of a single app from Apple and Google. And never has an order been made public where the feds have asked the Silicon Valley giants for info on so many thousands of people in one go.

Well, "made public" might be overstating things. The DOJ did not want this made public but the document it wanted sealed made it to the public docket briefly before being disappeared by the court system. It targets users of the Obsidian 4 app, which controls rifle scopes made by American Technologies Network Corp.

What the government claims this is about barely seems connected to what it's asking for.

The Immigration and Customs Enforcement (ICE) department is seeking information as part of a broad investigation into possible breaches of weapons export regulations. It’s looking into illegal exports of ATN’s scope, though the company itself isn’t under investigation, according to the order. As part of that, investigators are looking for a quick way to find out where the app is in use, as that will likely indicate where the hardware has been shipped.

Acquiring the data of thousands of innocent app users isn't going to benefit government investigators in any great way. Sifting through tons of garbage data doesn't make anyone's job any easier. What it will do is give the government a lot of information on people not suspected of engaging in criminal acts -- data it can hold onto indefinitely if no one's paying attention.

And it's a lot of information. The DOJ is seeking phone numbers and names linked to accounts that have downloaded the app. It also wants data on when users used the app. All this in furtherance of an investigation that doesn't seem to contain much investigating at this point.

It’s unclear just whom ICE is investigating. No public charges have been filed related to the company or resellers of its weapons tools.

With this data grab, the government will have a chance to explore its options. If investigating weapon manufacturers isn't proving fruitful, maybe someone else in the 10,000+ pool of "suspects" will prove to be a more interesting target. The government isn't above fishing for criminal activity when performing supposedly-targeted searches. And if it wanders too far afield from its original aim, it can always argue the "fish" at the end of its 10,000 lines would have been "inevitably discovered" during the course of its fishing expedition.

Unfortunately, we don't know (yet) whether this ridiculous data request was granted. If a judge somehow managed to sign off on this, there's a good chance it will be rethought once Google or Apple tell the government they're not going to be handing over massive amounts of data the government hasn't shown it needs, much less has earned access to.

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Posted on Free Speech - 11 September 2019 @ 3:22am

Months After Christchurch Shooting, The Australian Government Is Issuing Site-Blocking Orders Targeting Footage Of The Incident

from the oh-right-we-were-supposed-to-be-doing-something dept

Following the Christchurch shooting in New Zealand, governments sprang into action to declare the internet to be the real villain. It wasn't. And isn't. But that didn't stop a strange series of policies from being enacted.

The New Zealand censorship board declared footage of the shooting -- captured by the shooter himself -- illegal. Once it had made it illegal to share or possess, it went after those who did, resulting in at least one person being sent to prison for making the footage available online.

The Australian government followed suit. It declared the footage illegal, putting pressure on social media companies and service providers to take down uploaded copies "expeditiously." This term wasn't defined in the rushed legislation. Nor were companies given any guidance on what amount of time was considered "reasonable" to react to reports of uploaded footage in order to avoid $168,000 (per incident) fines. Presumably the Australian government would know reasonableness when it saw it and fine accordingly.

Companies did what they were vaguely instructed to do. So did Australian internet service providers. The Guardian reports blocking efforts began immediately, with ISPs targeting any site where the footage was hosted. To date, these efforts have resulted in the blocking of 43 websites. It appears ISPs are maintaining their own blocklists, since the government hadn't bothered to hand down any guidance on its recently-passed "abhorrent content" law.

Months after the fact, the Australian government is finally codifying the block orders it's issuing.

To avoid legal complications the prime minister, Scott Morrison, asked the e-safety commissioner and the internet providers to develop a protocol for the e-safety commissioner to order the websites to block access to the offending sites.

The order issued on Sunday covers just eight websites, after several stopped hosting the material, or ceased operating, such as 8chan.

To have these blocks lifted, sites have to take down the material. But the review process lags behind the takedowns. Block orders are only reviewed every six months by the e-safety commissioner's office.

There are obviously speech concerns that aren't being addressed by this process or the legislation that prompted these site-blocking efforts. The footage and the shooter's manifesto are undeniably newsworthy. They are also of interest to researchers and any number of law enforcement agencies. Unilaterally declaring these illegal turns these parties into criminals. The law doesn't appear to contain any exceptions for journalists, researchers, or anyone else who may have a legitimate reason to possess or share this content.

The Australian government is fine with this because the e-safety commissioner has unilaterally declared this content to be so bad there can be no legitimate reason for anyone to have it in their possession.

“The slippery slope argument I keep seeing [is] this is not obscene content or objectionable content [but] it’s clearly illegal. I don’t see any public interest in making this kind of material that is designed to humiliate and to incite further terrorist acts and hatred.”

Well, okay. I guess as long as a government official can't see any public interest, there must be no public interest concerns. These blocking orders may be targeting specific content that's fairly distinctive, but the e-safety commissioner's statement ignores the breadth of the law, which targets far more than these two pieces of content.

The Sharing of Abhorrent Violent Material bill creates new offences for content service providers and hosting services that fail to notify the Australian federal police about or fail to expeditiously remove videos depicting “abhorrent violent conduct”. That conduct is defined as videos depicting terrorist acts, murders, attempted murders, torture, rape or kidnap.

There goes a whole lot of newsworthy content, including content that may have investigative or evidentiary value. The vagueness of the law encourages proactive efforts from social media companies, which is going to result in a lot of false positives, as well as the memory-holing of content that's arguably of public interest, no matter how "abhorrent" that content may be.

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Posted on Techdirt - 10 September 2019 @ 9:31am

White House Pushing Proposal That Would Subject Mentally Ill People To Increased Surveillance

from the people-with-mental-problems-will-definitely-respond-positively-to-this dept

The White House has decided we're going to power through our mass shooting crisis by aiming our surveillance apparatus in the direction of the mentally ill. In addition to claiming we might be able to find the next mass shooter by tracking fitness trackers, the administration is pushing for a mental health-based "solution" that would increase the stigma of not being "normal."

The White House is considering a controversial proposal to study whether mass shootings could be prevented by monitoring mentally ill people for small changes that might foretell violence.

Former NBC Chairman Bob Wright, a longtime friend and associate of President Trump’s, has briefed top officials, including the president, the vice president and Ivanka Trump, on a proposal to create a new research agency called HARPA to come up with out-of-the-box ways to tackle health problems, much like DARPA does for the military, say several people who have briefed.

HARPA (a takeoff of the military's DARPA project) stands for Health Advanced Research Projects Agency. HARPA's webpage says things about uncured diseases and promises to "put patients first," but the administration's commandeering of its resources pretty much guarantees more law enforcement officers lacking the training to address mental health issues will be put in contact with people with mental health issues more frequently. Perhaps the Trump administration thinks we can avoid a mass shooting by increasing the number of people shot by cops one at a time.

A three-page proposal from HARPA contains a clunky acronym and some very scary ideas. The route to a mass shooting-free America runs through millions of devices owned by millions of US citizens.

Advisers to Wright quickly pulled together a three-page proposal — called SAFEHOME for Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes — which calls for exploring whether technology like phones and smartwatches can be used to detect when mentally ill people are about to turn violent.

No one has any idea how this is supposed to work. No one seems to know whether it can even be done. Administration officials, however, aren't asking the only question that matters: should this be done?

In addition to generating a massive amount of false positives for law enforcement and HARPA analysts to sort through, there's the very real concern that such a program would put tons of people under surveillance and still not do anything to solve the problem it's supposed to be addressing.

Most concerning, [Marisa Randazzo] said, is that the proposal is based on the flawed premise that mental illness is directly linked to mass shootings. “Everything we know from research tells us it’s a weak link at best,” said Randazzo, who spent a decade conducting such research for the Secret Service and is now CEO of a threat assessment company called Sigma.

There is violence associated with mental illness, but not the violence this administration is targeting. Suicide is the problem going unaddressed. But since Trump believes mass shooters are all mentally ill, that's what HARPA will likely focus on. Unfortunately, it will be working against available data.

[S]tudies of mass shooters have found that only a quarter or less have diagnosed mental illness. Researchers have noted a host of other factors that are more significant commonalities in mass shooters: a strong sense of grievance, desire for infamy, copycat study of other shooters, past domestic violence, narcissism and access to firearms.

It also runs contrary to the government's own research work. A Pentagon study on mass shootings said simply that prediction-oriented programs don't work. Threat assessment is far more productive than amassing a bunch of biometric data and hoping to find a pattern that indicates someone's going to engage in mass murder.

But this is what the administration wants to pursue: widespread surveillance based on the faulty assumption that this will produce anything other than negative results.

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Posted on Techdirt - 10 September 2019 @ 3:11am

Ring Has A 'Head Of Face Recognition Tech,' Says It's Not Using Facial Recognition Tech. Yet.

from the currently-not-doing-this-thing-we're-considering-doing dept

Amazon has developed facial recognition tech it's inordinately proud of. Known as "Rekognition," it's not nearly as accurate as its deliberately misspelled moniker suggests it is. It drew Congressional heat last year when it misidentified a number of Congress members as criminals.

There has been no interplay between Amazon's Rekognition software and the Ring doorbell cameras its subsidiary is pushing to cops (who then push them to citizens). Yet. Maybe there will never be. But it's pretty much an inevitability that Ring cameras will, at some point, employ facial recognition tech.

There's probably no hurry at the moment. The doorbell camera company doesn't seem all that concerned about optics -- not after partnering with 400 law enforcement agencies en route to securing 97% of the doorbell camera market. When not writing press releases and social media posts for cop shops, Ring is waging a low-effort charm offensive with vapid blog posts meant to boost its reputation as a crime-fighting device while burying all the questionable aspects of its efforts -- like encouraging "sharing" of footage with law enforcement so they don't have to go through the hassle of obtaining a warrant.

Ring is toughening up a bit in the face of all this bad press. It's engaging directly with critics on Twitter to rebut points they haven't made and answer questions they didn't actually ask. It responded to the ACLU's post that theorized about Amazon's forays into surveillance tech, positing that the company's Rekognition software and Ring doorbell cameras make for a dynamic surveillance duo -- one that faces outwards from millions of private homes around the nation.

Ring says it does not use facial recognition tech in its doorbells. It has made this statement multiple times in the past couple of weeks. That's good news. But it's not the end of the story. Nicole Nguyen and Ryan Mac of BuzzFeed are countering Ring's PR push by pointing out that it's a little weird for a company that says it does not use facial recognition tech to employ someone directly tasked with exploring facial recognition opportunities. (via Boing Boing)

While Ring devices don’t currently use facial recognition technology, the company’s Ukraine arm appears to be working on it. “We develop semi-automated crime prevention and monitoring systems which are based on, but not limited to, face recognition,” reads Ring Ukraine’s website. BuzzFeed News also found a 2018 presentation from Ring Ukraine's "head of face recognition research" online and direct references to the technology on its website.

Maybe the stateside version isn't ready to mix in the tech, but its Ukraine arm seems poised to explore this option. The presentation BuzzFeed located was created by Oleksandr Obiednikov, who listed himself as Ring's "Head of Face Recognition Tech" in his presentation about "alignment-free face recognition."

Ring's US operations also indicate Ring is looking into this, even if it hasn't added the tech yet.

In November 2018, Ring filed two patent applications that describe technology with the ability to identify “suspicious people” and create a “database of suspicious persons.”

So, the company's assertions about facial recognition tech appear to be true, but only because it has added the qualifier "currently" to its statements. The pairing of doorbell cameras to unproven, often-inaccurate facial recognition tech is all but assured. Ring's denials would be a whole lot more palatable if it wasn't exploring this option elsewhere in the world.

We may only be on the outskirts of a corporation-enabled dystopia at the moment, but a future full of unblinking eyes containing biometric scanning capabilities is swiftly approaching. And this surveillance state won't be the product of the show of force by the government but the result of private companies using law enforcement to expand their user base with a series of "would you kindly?" requests.

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Posted on Techdirt - 9 September 2019 @ 8:03pm

Investigation Uncovers Mass Purging Of Phoenix Police Department Misconduct Records

from the clean-slates-for-all! dept

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.

Police unions have defended such things as tossing flashbang grenades into rooms containing infants and the elimination of drug testing for officers. They've repeatedly tried to thwart legislation that would provide more public access to police misconduct records and have often verbally attacked anyone who questions the actions of law enforcement.

What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.

Justin Price's report on the whitewashing powers of the Phoenix (AZ) PD's union contract is a jaw-dropping read. But it's not an anomaly. There are contracts like this in place all over the nation. But AZ Central's investigation shows just how much has been swept under the rug to "protect" cops from the people they serve.

Phoenix Police Sgt. Philip Roberts was suspended from the force for 30 days after an internal investigation concluded he failed to properly manage a 2015 incident where officers shot and killed a mentally ill man.

Lt. Dalin Webb received a written reprimand for his 2013 arrest on domestic violence charges in which he reportedly shoved his wife and choked his teenage son.

Officer Joshua Wayne Beeks was suspended for 15 days when the Department discovered he was involved in three unauthorized high-speed pursuits in a single year that killed two people.

But there's little indication in Phoenix Police Department personnel and internal investigations records that those officers were ever disciplined.

That's because Roberts, Webb and Beeks, like hundreds of other Phoenix police officers in recent years, were allowed to erase records of their misconduct from files kept by the Police Department.

The practice, which the Department refers to as "purging," has been standard for more than two decades under the police union's contract, but the public has been unaware of it.

The contract also prohibits misconduct detailed in the purged records from being considered in future disciplinary investigations or performance evaluations.

If the goal is to keep bad cops employed indefinitely, it's been super-effective. Over 500 of the city's 3,000 officers have had their pasts memory-holed by the union contract, covering over 600 misconduct incidents ranging from failure to complete reports to deployments of excessive force.

The purging prevents even internal investigators from discovering patterns of misconduct that should result in harsher discipline or termination. It also prevents plaintiffs suing officers over violated rights from obtaining key background info that could indicate an officer is a longtime abuser of citizens. In one case cited in Price's report, the PD began purging an officer's records as soon as the officer had been served.

The lack of a paper trail results in things like this happening:

Purged records don't appear in a file review.

Those records also don't show up during annual performance evaluations.

Officer Kevin McGowan, for example, earned top marks in his 2015 evaluation despite being disciplined for serious misconduct during the previous year.

An internal investigation concluded McGowan used excessive force when he stomped on an 18-year-old man’s neck, driving his face into the tile floor of a convenience store and knocking out three of the man's teeth.

The incident was captured in surveillance footage taken from the store.

McGowan was initially fired, but the union interceded and he ended up with only a 30-day suspension. A few years later, the disciplinary files were purged, resulting in this cop being commended for being such a great cop. Phrases like "positive attitude" and "community contributor" were tossed around by supervisors unaware of McGowan's recent past.

AZ Central's investigation involved comparing the list of disciplinary files sent to the city's Human Resources Department by the Fiscal Management Bureau with the list of misconduct records maintained by the PD's Professional Standards Bureau. What's considered to be an officer's "permanent record" is maintained by the city's HR department. "Maintained" is definitely overstating things.

By cross-referencing the two sets of records, The Republic identified hundreds of disciplinary cases that had been hidden from internal affairs and the Department's leadership.

Over five years, records of 90% of all sustained misconduct investigations had been erased.

Some of these records are supposed to be maintained for at least five years, according to the contract language. But AZ Central found multiple cases where files had been memory-holed ahead of schedule. Files detailing incidents that resulted in suspensions of over 80 days are never supposed to be purged, but the investigation discovered many of those were missing as well.

The PD explains away all this opacity by saying it increases officer morale. And of course it would. Many employees in many different fields would feel better about themselves and their jobs if they knew their misconduct would never be used against them. But the PD doesn't serve itself. Or at least, it shouldn't. It serves the public. And nothing about this union contract shows any concern about the public or its morale.

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Posted on Techdirt - 9 September 2019 @ 1:33pm

Appeals Court Says An IP Address Is 'Tantamount To A Computer's Name' While Handing The FBI Another NIT Win

from the [extremely-superintendent-chalmers-voice]-good-lord dept

Fortunately, this profoundly-wrong conclusion is buried inside a decision that's merely off-base. If it was the crux of the case, we might have witnessed a rush of copyright trolls to the Eleventh Circuit to take advantage of the panel's wrongness.

But this decision is not about IP addresses… not entirely. They do play a part. The Eleventh Circuit Court of Appeals is the latest federal appellate court to deny suppression motions filed over the FBI's use of an invalid warrant to round up suspected child porn consumers. The "Playpen" investigation involved the FBI seizing a dark web child porn site and running it for a few weeks while it sent out malware to anyone who visited the site. The FBI's "Network Investigative Technique" (NIT) sent identifying info back to the FBI, including IP addresses and an assortment of hardware data.

As the court notes in its decision [PDF], pretty much every other appeals court has already gotten in on this action. (Spoiler alert: every other appeals court has granted the FBI "good faith" even though the DOJ was actively pursuing a law change that would make the actions it took in this case legal. The violation of jurisdiction limitations by the FBI's NIT was very much not legal when it occurred.)

By our count, we become today the eleventh (!) court of appeals to assess the constitutionality of the so-called “NIT warrant.” Although the ten others haven’t all employed the same analysis, they’ve all reached the same conclusion—namely, that evidence discovered under the NIT warrant need not be suppressed. We find no good reason to diverge from that consensus here…

That being said, there are some interesting issues discussed in the opinion, but here's where it kind of falls apart. The Eleventh Circuit may be joining ten (!) other circuits in upholding the FBI's illegal search, but it's the first to make this preposterous claim while doing so. (h/t Orin Kerr)

In the normal world of web browsing, an internet service provider—Comcast or AT&T, for example—assigns an IP address to every computer that it provides with internet access. An IP address is a unique numerical identifier, tantamount to a computer’s name.

That's… just completely wrong. An IP address doesn't identify a device any more than it identifies a person or location. It is very definitely not "tantamount to a computer's name." The court uses this erroneous conclusion for pretty benign ends -- to veto the DOJ's belated attempt to rebrand its NIT malware as a "tracking device" in order to salvage its invalid search warrant. Even so, this slip-up is embarrassing, especially in a decision that contains a great deal of technical discussion.

But I suppose all's well that ends unsurprisingly. The Eleventh Circuit agrees with the other circuits: the warrant obtained was invalid from the moment it was obtained as it allowed the FBI to perform searches outside of the jurisdiction in which it was issued. But there's no remedy for the two alleged child porn consumers. As the court states here, the error was the magistrate judge's, who should never have signed a warrant granting extra-jurisdictional searches. According to the Eleventh Circuit, the FBI agent had every reason to believe the granted warrant was valid and that the searches could be executed. No one's evidence is getting suppressed and no one's convictions are being overturned.

The problem with this assumption is that it glosses over the issue of the DOJ's Rule 41 politicking, which was well underway when this FBI agent approached a judge with a warrant that asked permission to violate a rule that hadn't been rewritten yet. To call this "good faith" presumes a lot about the FBI and its investigators. It concludes they were unaware of the DOJ's petitioning of the US court system to rewrite Rule 41 when everything about this case points to the fact that these investigators knew about the proposed rule change and knew this NIT deployment wasn't legal at the point they handed the affidavit to the magistrate.

In the end, it's another unearned win for the FBI. And it's one that comes paired with a tech gaffe that's going to sound very appealing (!) to IP trolls.

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Posted on Free Speech - 9 September 2019 @ 9:10am

YouTube Lets Indonesian Government Block Satirical Video That Criticizes The Indonesian Government

from the you're-not-helping dept

Recent protests in West Papua have made things uncomfortable for the Indonesian government. The protests were triggered by recordings of Indonesian military personnel taunting Papuans and calling them racial slurs. The Indonesian government responded to the protests by shutting down internet access and seeking to arrest a prominent West Papua civil rights lawyer for allegedly spreading "fake news."

West Papua was formerly its own nation but it was handed over to the Indonesian government in 1969 following a "free choice" voting process that saw about 1,000 "delegates" chosen by the Indonesian military override the will of the country's residents, making it officially a province under the Indonesian government's control. That's obviously not working out well for Papuans.

If you're wondering how West Papua has arrived at this flash point, this hilarious/disturbing video produced by The Juice Media explains the whole thing. And it explains the Australian government's complicity in the Indonesian government's subjugation of the West Papuan people. (NSFW language throughout. Here's an annotated script if you'd rather read about it.)

That explains where the nation is at now, and why its people want to be free of their Indonesian overlords. It also explains why no one nearby is riding to their rescue, since it's clear the Australian government would rather maintain its ties with the regime presiding over West Papua than try to help clear a path to independence.

That also explains why The Juice Media was recently informed this video can no longer be viewed in Indonesia. It appears the government has filed a legal complaint targeting the video embedded above, resulting in it being blocked in Indonesia.

For whatever reason, The Juice Media is completely unable to challenge this decision by YouTube. A screenshot of the account's dashboard doesn't even show the complaint, nor does anything sent to the account by YouTube explain what law was broken or which government entity filed the complaint.

The problem with YouTube complying with local laws is that many local laws are written solely for the purpose of making censorship easier. Allowing the Indonesian government to target content it doesn't like to keep its citizens from learning more about its abuses just ensures more abuses will occur. The cycle will continue until someone decides the spread of information is more important than staying in the good graces of authoritarians.

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Posted on Techdirt - 6 September 2019 @ 3:33pm

Cops Digitally Erase Suspect's Facial Tattoos To Make Him Look More Like The Robbery Suspect Caught On Camera

from the police-officers-dig-deep,-find-new-lows dept

When the police have already decided who they like for some unsolved crime, almost nothing will stop them from getting their man. Investigations are supposed to involve investigating. But when a handful of tipsters said a black man robbed a bank, the Portland PD went to work trying to pin four bank robberies on one man. (via Simple Justice)

The problem with this man was his list of distinguishing features. He had several -- all as plain as the tattoos on his face. (All photos via court documents.)

That's Tyrone Lamont Allen's booking photo. This is an image of the suspect captured by a bank's security system.

The first thing that jumps out of this photo is the lack of things that jump out. No tattoos on the face capture by bank cameras. Plenty of tattoos on the "suspect" the Portland police decided to arrest. But at least investigators did a little footwork first. And a little Photoshop work as well.

Here's the photo they used of Allen in lineups shown to bank tellers at robbed banks.

Yeah, that's Tyron Allen -- minus everything that makes him distinctively Tyrone Allen. This is what the Portland PD did to steer witnesses into handing them the suspect they wanted to arrest.

[W]hen Portland police suspected Allen was involved in four bank and credit union heists, and none of the tellers reported seeing tattoos on the face of the man who robbed them, police digitally altered Allen’s mugshot.

They covered up every one of his tattoos using Photoshop.

“I basically painted over the tattoos,’’ police forensic criminalist Mark Weber testified. “Almost like applying electronic makeup.’’

Police then presented the altered image of Allen with photos of five similar-looking men to the tellers for identification. They didn’t tell anyone that they’d changed Allen’s photo.

Some of the tellers picked out Allen.

All of this came out in court, leading to a large number of lawyers and laypersons alike to say WTF. Allen's lawyer said the police basically "rigged the outcome" of the photo lineup. He's not wrong. But his client is not the first person this has happened to. Rigging lineups is a cop tradition. The only distinctive feature of this one is the use of Photoshop to remove distinctive features.

Now, as Scott Greenfield points out, someone with a lot of facial tattoos and a predilection for bank robberies might realize those two qualities aren't a good mix. Allen could have altered his appearance so no teller would tell cops "look for the guy with all the face tattoos." (Reminder: none of the tellers told the cops to look for a guy with a lot of face tattoos.) But that would only have made Allen memorable for other reasons.

If a guy wanted to rob a bank, knowing he had rather unique facial characteristics that would make him very easy to ID, he could “sanitize” his appearance with makeup. But upon closer scrutiny, the theory has a flaw: the amount of makeup necessary to cover up Allen’s facial tats would itself have become an identifying characteristic. Even assuming he was highly skilled in the application of makeup, it would require so much makeup to accomplish a complete cover-up that the description would have been “guy in baseball cap, glasses and face covered in makeup.”

Having been caught implying all black guys look alike if you remove the stuff that makes them individuals, the government is now actually arguing that this is no different than digitally removing the hat and glasses the suspect in the camera footage is wearing. Altering photos is apparently "standard practice among investigators," according to Detective Brett Hawkinson, an 18-year veteran of altering lineup photos and the lead investigator on this case. He's the one who gave the orders to digitally delete Allen's tattoos before putting his face in the PD's photo lineup.

Yes, this is standard practice. The lead investigator could name no official policy instructing cops to remove distinctive facial features from lineup photos, but of course there wouldn't be. It's an unofficial "standard practice" -- things cops do because of the gaping void where honesty and accountability should be. No one says this is how things should be done. But this is how things are done.

This incident was particularly egregious. And it came out in court. Now more people are finding out exactly what law enforcement agencies mean when they use the word "investigation." It's rarely a search for unknown criminal suspects. More often, it's cops working backwards from foregone conclusions. This is ugly and cheap and the antithesis of the image law enforcement likes to present to the public: the good guys fighting the good fight. They're fighting dirty and they like easy wins and easy days as much as anyone in the private sector. If the corner you have to cut is the distinguishing features that would rule out your favorite suspect, so be it.

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Posted on Techdirt - 6 September 2019 @ 12:07pm

Third Circuit Says TSA Officers Can Be Sued Directly For Abuses And Rights Violations

from the trimming-the-edges-of-sovereign-immunity dept

Good news has arrived for the long, long, oh so very long list of travelers who've had their rights abused by TSA agents. Reversing its own decision, the full panel of Third Circuit Appeals Court judges has removed TSA agents from "can't be sued" list.

Originally, the court had held that Transportation Security Officers (TSOs) were immune from civil lawsuits under the Federal Tort Claims Act. For the most part, federal government employees can't be sued directly. Previously, this covered TSA employees, whom the Third Circuit claimed were not "investigative or law enforcement officers" -- one of the few exemptions from this blanket immunity.

That ended Nadine Pellegrino's lawsuit against the TSA agents who behaved abusively during her "extended screening." Here's a description of those events from the Third Circuit's reversal:

As Pellegrino passed through the security checkpoint, she was randomly selected for additional screening. A TSO began examining her bags, but she stopped him and requested a more discreet screening. In a private room, several TSOs combed through Pellegrino’s luggage, papers, and other effects. One allegedly counted her coins and currency, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO also spilled the contents of several containers and was so rough with her belongings that her jewelry and eyeglasses were damaged. Frustrated, she told the TSOs that she would report their conduct to a supervisor.

The screening ended, but the TSOs’ alleged torment did not. Pellegrino was left to clean up the mess created by the search, a task that took several trips to and from the screening room. As she was repacking her first bag, one of the TSOs claimed that Pellegrino struck her with it. On a trip to retrieve another bag, another TSO allegedly blocked Pellegrino’s access to it, forcing her to crawl under a table to reach it. When she did so, the table tipped over, and the TSO claimed Pellegrino struck her in the leg while she was collecting the bag. Pellegrino denies striking either TSO and alleges she heard both say to one another, “[Y]ou saw her hit me, didn’t you?”

It got worse from there. The TSOs decided to respond with a complaint of their own. They took a bunch of bullshit allegations to local prosecutors, which resulted in Pellegrino being charged with ten (!) criminal acts, including assault, making terroristic threats (!!), and "possession of an instrument of crime" (her luggage) (!!!).

All of those charges eventually vanished when the TSA failed to produce a recording of the extending screening and a TSO gave contradictory testimony in court.

This decision [PDF] revives Pellegrino's lawsuit. The court says TSOs are authorized to search people and their belongings. This moves them into "investigative/law enforcement" territory and out from underneath the immunity blanket.

The court finds that TSOs meet every requirement needed to become the sort of federal employee that can be sued directly. No more sovereign immunity for these agents, who are officers "empowered by law to execute searches."

To repeat, the complete proviso definition for an “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). By its plain terms, the phrase “empowered by law” narrows the scope of “officer[s]” covered from the set of all “officer[s] of the United States” to the subset of those with the authority to, among other things, “execute searches.”

Turning, then, to the statutory authority of TSOs, they are empowered by law to conduct “the screening of all passengers and property.” 49 U.S.C. § 44901(a). Screening, in turn, is defined in part as a “physical examination,” including a “physical search.” Id. § 44901(g)(4) (regarding screening of luggage). Hence TSOs are “empowered by law” within the meaning of the proviso.

As to the "searches" part of the provision:

TSO screenings are “searches” (i) as a matter of ordinary meaning, (ii) under the Fourth Amendment, and (iii) under the definition provided in Terry v. Ohio, 392 U.S. 1 (1968). Attempts to distinguish (iv) between administrative and criminal “searches” are divorced from the plain text, and any distinction, if one must be made, should account for (v) the fact that TSA searches extend to the general public and involve examinations of an individual’s physical person and her property.

The government tried to argue that passengers cannot sue over alleged Fourth Amendment violations because they trade their rights for the privilege of boarding airplanes. The court says this isn't correct and it certainly isn't a voluntary exchange.

The Government does not dispute that holding. Instead, it contends that consent by passengers cancels the Fourth Amendment’s effect. But the presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment. [...] In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.

The government also tried to save TSOs from lawsuits by claiming these highly-intrusive airport searches were merely "administrative," the groin-grabbing equivalent of grabbing regulatory files from a local business. The court not only disagrees, but dunks on the government's terrible argument.

To begin, TSO screenings often involve invasive examinations of the physical person. As even the panel majority in this case acknowledged, TSA searches are “rigorous and intimate for individuals.” Pellegrino, 896 F.3d at 230. This sets them apart from other administrative searches that involve only inspections of property or the environment.

[...]

Next, the risk of abuse is greater for TSO screenings than for most other administrative searches. Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential for abuse in borne out by Pellegrino’s own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations.

The final word on TSOs and their immunity? They no longer have any.

Words matter. This core tenet of statutory interpretation channels our conclusion today: TSOs are “investigative or law enforcement officers” as defined in the Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s] of the United States” by dint of their title, badge, and authority. They are “empowered by law to execute searches” because, by statutory command and implementing regulation, they may physically examine passengers and the property they bring with them to airports. And the TSOs’ searches are “for violations of Federal law” given that their inspections are for items that federal law bans on aircraft (often with criminal consequences).

If security officers violate rights (they do) and damage people's property (they do), then they should be held accountable for their actions. The TSA certainly doesn't seem interested in doing this, so it's left up to the courts to handle it. In this circuit, TSOs can be sued, but this doesn't change anything for those residing outside of this jurisdiction. If the government decides to challenge this decision, it may open itself up to a Supreme Court declaration that gives the entire nation the ability to directly sue TSA security officers. It will be interesting to see what it chooses to do, given the potential downside for its employees.

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Posted on Techdirt - 6 September 2019 @ 9:17am

Federal Gov't Gives Customs Officers Permission To Break Social Media Platform Rules Forbidding Fake Accounts

from the all-in-service-of-the-greater-good dept

The scanning of visa and green card applicants' social media accounts during the application process continues to escalate. Even though the program hasn't shown itself to be effective in keeping the country free of terrorists or criminals, the DHS and its components continue to believe this is an essential part of our national security infrastructure.

If the ultimate goal is to create a worldwide chilling effect on speech, then this program is coming along nicely. Knowing immigration and customs officers are going to be taking a deep dive into your social media accounts results in a lot of self-censorship, since it's not entirely clear what screeners are looking for. Presumably, this has been left to officers' discretion, which means it's a "we'll know it when we see it" situation.

Performing a deep dive means having access to as much of an account as possible. Limits placed on site visitors without an account appears to be frustrating customs officers. So, they've officially been given permission to create fake accounts to better access the content they're screening.

U.S. Citizenship and Immigration Services officers can now create fictitious social media accounts to monitor social media information on foreigners seeking visas, green cards and citizenship.

An updated Homeland Security Department review of potential privacy issues dated July 2019 that was posted online on Friday essentially reversed a prior ban on officers creating fake profiles.

A USCIS statement explaining the change says fake accounts and identities will make it easier for investigators to search for potential evidence of fraud or security concerns as they decide whether to allow someone entry into the U.S.

The federal government may say it's okay for personnel to do this. But it's not okay with the platforms they'll be using. Twitter immediately offered a statement pointing out the creation of fake accounts (and the use of Twitter data for "persistent surveillance") violates its terms of use.

Facebook -- which has already pointed this out to local law enforcement agencies -- said the same thing in the statement it released the day after the USCIS gave customs officers the fake account green light.

“Law enforcement authorities, like everyone else, are required to use their real names on Facebook and we make this policy clear,” Facebook spokeswoman Sarah Pollack told The Associated Press in a statement Tuesday. “Operating fake accounts is not allowed, and we will act on any violating accounts.”

I guess maintaining law and order means breaking the rules. I imagine the DHS and its components will proceed with their fake account creation despite these statements because without an account, passive surveillance of foreigners will be much more limited.

For whatever it's worth, the USCIS has placed some limits on the use of fake social media accounts. They can only be used to passively view targeted accounts and aren't allowed to "follow" or "friend" any targeted accounts. Officers must also undergo annual training, although what that entails hasn't been described in detail.

Foreigners planning to visit the United States are at the mercy of an ultra-vague policy that encourages federal officers to violate the policies of privately-owned social media platforms. No doubt this will turn out well for everyone involved and not result in a ton of abuse.

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