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Posted on Techdirt - 27 August 2015 @ 3:34pm

City of San Jose Looking To Attach Automatic License Plate Readers To Garbage Trucks

from the proxy-police dept

Because automatic license plate readers just aren't efficient enough -- what with their ability to capture hundreds, if not thousands, of plate scans per hour -- San Jose's city government is looking to deputize other businesses and their vehicles in its quest to achieve 100% coverage of the city.

Mayor Sam Liccardo and Councilmen Johnny Khamis and Raul Peralez proposed that the city consider strapping license plate readers to the front of garbage trucks, allowing them to record the plates of every car along their routes. The data would be fed directly to the Police Department from the privately operated trash trucks, prompting an officer to respond to stolen vehicles or cars involved with serious crime.

"We can cover every street at least once a week and possibly deter thieves from coming into our city," Khamis said. A committee chaired by Liccardo that sets the council's agenda voted Wednesday to continue exploring the idea.
San Jose won't be the first city to use non-police vehicles to do its plate scanning. As was covered here earlier this year, Hampton, Virginia has mounted an ALPR to a "city van" and uses the data collected to chase down the city's tax evaders -- a term that includes anyone who owes $5 or more to the city. Another town doesn't even use a city vehicle. Isle of Wight completely outsources its plate scanning efforts, putting it solely in the hands of a private company with its own plate scanners.

While it's true that a vehicle parked on a public street (or one that can be viewed from a public street) has no expectation of privacy, the amount of data gathered still raises privacy-related concerns. It's one thing to view a vehicle on a public street with a set of human eyes. It's quite another when this set of "eyes" compiles thousands of plate-location records and stores them for weeks or months. Once that happens, it's no longer just random cars on random streets. It's long-term tracking.

At this point, the plan is still in its proposal stage. City officials say at least one sanitation company is already on board with the proposed program.
Khamis said Wednesday's action is only the first step in a long process. The proposal calls for city officials to explore the "feasibility, legality and civil liberties implications" of garbage-truck mounted license plate readers. Questions the council members asked the city to consider include the process of transferring license data from the private garbage trucks to the police, whether they would be subjected to the same or different policies governing police car license readers and whether other cities have taken similar measures and how they worked.
Beyond the civil liberties implications, the city needs to examine the reality of what it's doing: using public funds to purchase law enforcement equipment to place on private vehicles. And it needs to ask itself whether the people providing these funds -- taxpayers -- are on board with the use of private companies as an extension of law enforcement. It also needs to examine its motives thoroughly. Just because there's no expectation of privacy doesn't necessarily mean government bodies should strive for 100% exploitation of these areas.

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Posted on Techdirt - 27 August 2015 @ 2:15pm

Judge Finds No One To Like In Lawsuit Brought By Ripoff Report Against Overreaching State Prosecutor

from the Section-230-but-an-afterthought dept

Ripoff Report has always been targeted by some very creative legal efforts, thanks to its aggressive use of its Section 230 protections. Forced to find other ways to remove allegedly defamatory content, plaintiffs have tried everything from questionable copyright lawsuits to extortion allegations. Not much of it has stuck.

Ripoff Report not only plays Section 230 hardball, but it often brings lawsuits against those who have attempted to remove third-party content through dubious legal means. In this case, covered by Eric Goldman, Xcentric (Ripoff Report's host/parent company) is seeking a preliminary injunction against Iowa county prosecutor Ben Smith, who has relentlessly pursued the company in hopes of finding a link between certain third party contributors and the company itself.

The judge presiding over the lawsuit isn't impressed with either side. In the course of this opinion, which partially grants Xcentric's demand for an injunction, there are no winners: just two brutish louts engaged in questionable tactics.

Goldman notes there is a Section 230 nexus, but it's only a small part of the overall lawsuit -- one that Xcentric has deployed as an offensive weapon to head off further harassment by Ben Smith. (Goldman compares it to Google's lawsuit against Mississippi attorney general Jim Hood).

Xcentric raises a very questionable CDA claim, arguing that the protections grant it "immunity" from further prosecutorial actions related to content contributed by someone named "Meade." The judge finds that to be a bit of a stretch.

Plaintiffs argue that they are entitled to immunity under the CDA because – despite their financial relationship with Meade – they were not information content providers with regard to any of the allegedly-unlawful posts about the state’s witnesses. At this stage of the case, however, they have failed to demonstrate a likelihood of success on their claim that the CDA protects them from criminal liability for any potential violation of Iowa Code Section 720.4. This is because there is substantial evidence suggesting that the plaintiffs materially contributed to the alleged illegality of the information at issue.


I am not fully convinced of Magedson’s credibility on this issue. Xcentric paid Meade a large amount of money and Magedson has strong feelings about Richter’s case. I simply do not believe that he was blissfully unaware of what Meade was planning to post.
As Goldman notes, this sort of relationship is much "closer" than most other cases where Section 230 protections are invoked.

This isn't the only thing the judge finds questionable about Xcentric's claims and tactics. There's more criticism contained elsewhere in the opinion. While he does find its First Amendment claims credible, its assertions of Fourth and Sixth Amendment violations are less convincing.
[P]laintiffs contend that Smith violated their rights under the Fourth Amendment. According to their briefs, this argument is based on Smith’s application for, and execution of, a search warrant. The only evidence of record concerning a search warrant is the application and warrant concerning Anna Richter’s home… [Richter was charged with first-degree murder by Ben Smith, something a Ripoff Report review claimed was a bogus charge.]

Even if the plaintiffs had strong arguments on the substantive merits of this claim (and I am hardly convinced that they do), they did not address the crucial issue of standing. Fourth Amendment rights are personal and cannot be asserted vicariously. In order to have standing to complain about an allegedly-unreasonable search, a party must have a reasonable expectation of privacy in the area searched…

Plaintiffs have made no effort to show that they had a reasonable expectation of privacy with regard to Anna Richter’s home or any of the items seized from that home.
Xcentric's Sixth Amendment claims are even weaker.
Citing no authority, plaintiffs contend Smith violated their Sixth Amendment rights by obtaining and reviewing communications subject to the attorney-client privilege and by filing an ethics complaint against their counsel.

Plaintiffs’ failure to reference supporting authority is a major clue about the merits of this claim. I have not, through independent research, located any case law that might support the claim, as currently framed. Among other things, it is undisputed that Smith has not yet charged plaintiffs with any offense. But see Texas v. Cobb, 532 U.S. 162, 172 (2001) (Sixth Amendment right to counsel attaches only to charged offenses).

Perhaps there is a non-frivolous Sixth Amendment argument to be made, but plaintiffs have not taken the trouble to make it.
And circling back to Xcentric's First Amendment claims, Judge Leonard Strand finds its demand for an injunction to be more than a little hypocritical.
I also find plaintiffs’ proposed item I (enjoining Smith from “[t]hreatening, intimidating, accusing or otherwise stating that plaintiffs’ lawyers are violating any laws in representing plaintiffs”) to be inappropriate and sadly ironic. After loudly championing the importance of First Amendment freedoms in this case, plaintiffs have proposed a gag order that would restrain Smith’s speech.
But Smith is far from blameless. The judge also smacks the prosecutor around for his obsessive harassment of Xcentric, prompted by criticism of him hosted at Ripoff Report -- all of which was done supposedly to "protect" state's witnesses.
While Smith contends he is acting solely for the benefit of various witnesses who have been targeted on Ripoff Report, I find that he has acted, at least in part, for retaliatory reasons. For starters, I am amazed that Smith offered no direct evidence, such as copies, of any Ripoff Report posts that have allegedly harassed or defamed any witnesses who testified against Richter. Instead, he chose to provide only his own characterizations of the statements at issue...

If Smith’s investigatory tactics have truly been motivated by a desire to protect the State’s witnesses from harassing or defamatory posts on Ripoff Report, it would have been a fine idea for him to offer those statements into evidence.
The judge finds Smith's actions to be -- at least in part -- clearly retaliatory. The opinion lists several examples of how Smith's handling of Xcentric varied greatly from his pursuit of any other entity facing similar charges.
Smith admits that he has worked over a thousand hours and has issued over one hundred subpoenas during his investigation into Ripoff Report. Smith presented no evidence that in his role of Sac County Attorney, he has devoted similar time and resources into other investigations of potential misdemeanor offenses.


He wrote a 119-page, singled-spaced affidavit in support of an application to obtain a search warrant, relying on avowed enemies of Ripoff Report for substantial portions of its contents. He then filed the application as public record, rather than sealing it as is his usual practice. This allowed him, in effect, to publicly air his allegations about the plaintiffs before filing any charges.


More troubling, and what I find to be most persuasive, is what Smith did with privileged and confidential information after obtaining it by his myriad of subpoenas. Upon obtaining communications that clearly appear to be between Xcentric and its own counsel (e.g., Ex. 8), Smith did nothing to advise Xcentric of this fact. Nor did Smith do anything to preserve their confidentiality. Instead, he put at least one such communication (Ex. 8) into evidence in a proceeding and provided other presumably privileged communications to third-parties, including various enemies of Ripoff Report. He also disclosed Xcentric’s financial and banking information to third-parties, thus allowing that information to become public. While disclosing privileged and confidential information to others, Smith did not require those individuals to enter into non-disclosure agreements. He has provided no legal justification for this.
It's ugly all over, and Judge Strand is only willing to grant Xcentric some of what it requested. The injunction issued prevents prosecutor Ben Smith from doing the following:
A. Bringing criminal charges against Xcentric or Magedson related to any postings related to criticisms of the State or its evidence presented in State v. Richter.

B. Continuing the investigation of Xcentric and Magedson such as sending search warrants or subpoenas to their banks, email providers and other service providers.

C. Reading Xcentric’s privileged attorney-client communications.

D. Disclosing Xcentric’s attorney-client privileged communications to others.

E. Disclosing Xcentric’s financial and banking records to others.

F. Disclosing Magedson’s personal and private communications to others.

G. Disclosing any communications or information obtained through investigation of Xcentric or Magedson.
It would seem items C-F shouldn't need an injunction. These are things a prosecutor shouldn't be doing in the first place. Unfortunately, Smith's past actions prove he's severely in need of outside guidance. As for Xcentric, it may have a solid First Amendment claim, but its invocation of Section 230 protections is less sturdy than it would normally be, thanks to its for-pay relationship with a contributor.

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Posted on Techdirt - 26 August 2015 @ 3:23pm

If You're Selling Gift Cards Over The Internet, There's A Patent Troll Coming For You

from the let's-just-forget-about-all-that-'music'-stuff-that's-so-integra dept

An integral aspect of the dark art of patent trolling is knowing an exploitable patent inside and out. Patent 6,233,682 (the '682 patent, as it's referred to in lawsuits [which is pretty much the only place it's being referred to]) is titled "Distribution of musical products by a web site vendor over the internet." It was originally granted to its creator, New York businessman Bernard Fritsch, in 2001 and was actually used in the creation and delivery of a music service.

At the time of the patent's issuance, its listed inventor Fritsch worked for a subsidiary of Inc., a company founded in 1995 that tried to sell music online.

The patents were intended to help MCY market a proprietary system for the digital delivery of music and other media products, according to MCY.

Though MCY made an effort to sell music for some time, it no longer exists, at least online — its site is occupied by a domain-name placeholder and has been since January 2005.
In March of 2010, the '682 patent was acquired by a patent troll d/b/a Sharing Sound, LLC. Naturally, Sharing Sound was located in Longview, Texas, from where it could avail itself of the friendly east Texas court system. It used this patent (along with another, very similar patent originally obtained by Fritsch -- patent 6,247,130, also titled "Distribution of musical products by a web site vendor over the internet") to extract settlements from Wal-Mart, Amazon, Gamestop, Netflix and several others before exhausting the patents' apparent "usefulness."

Another patent troll, also "located" in the east Texas region, acquired both patents in July of this year. The timeline looks like this:
06/25/2015 - Batarga, LLC files as domestic limited liability corporation in Texas.
07/20/2015 - Batarga acquires both of Sharing Sound's patents.
08/21/2015 - Batarga files first patent infringement suit.
Seeing as the previous troll had already wrung the market dry of settlements and licensing fees by targeting big players in the media distribution, these two "music distribution, but on the internet" patents would seemingly be of little use.

But hope springs eternal when the barrier to entry is just a nominal filing fee. Batarga, LLC has found an exploitable claim in the '682 patent (a claim that's not included in the nearly-identical '130 patent).
12. A method for distributing products over the Internet, comprising:

displaying a login screen on a video monitor that allows a user to enter an unique identifier for accessing database information;

confirming the validity of the entered unique identifier; and

displaying a shopping list that lists items for purchase as selected by said user, the listed items being in digital format suitable for downloading to a user's computer connected to the Internet and being in other media format suitable for shipping to said user.
By cherry-picking this claim from the numerous music-related claims surrounding it, Batarga feels it has a legal basis for extracting licensing fees/settlements from a number of entities who don't offer music for sale via their websites.

Batarga is filing lawsuit after lawsuit in the East Texas district -- 20 of them as of August 24th. And all of them targeting... clothing retailers?

So, if music is no longer the lynchpin of trolling with this nominally music-related patent, what's the angle? GIFT CARDS. But on the internet.
Defendant has directly infringed, and continues to directly infringe, at least Claim 12 of the ’682 Patent in violation of 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by offering for sale on its website ( gift cards in both digital and physical forms, thereby illegally using the patented method of distributing products over the Internet encompassed by the ’682 Patent.
The "doctrine of equivalents" allows patent trolls to indulge in more speculation when speculatively invoicing. In this case, Batarga can't really claim these non-music-selling entities are infringing on its "internet music distribution" patent, but it can claim that things they do are somewhat similar to a single claim within the entirety of a music sales-related patent.

And it's not as though the original patents weren't of questionable validity to begin with. By the time Fritsch had applied for his patents, online music sales already existed and there were plenty of previous patents that covered the same ground his did. At least Fritsch used his to start an online music distribution platform. These two companies have done nothing more than secure mailboxes and empty offices in the dusty East Texas towns, and their sole interaction with the parties affected are filings delivered by local lawyers.

And as long as we're checking villains for hearts of pyrite, at least Sharing Sound's abuse of the lousy, unoriginal patents was limited to the "music" aspects integral to the bulk of the claims. Batarga is stripping down the entire patent to a single paragraph -- one that would seemingly make anyone selling anything over the internet a target for infringement allegations.

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Posted on Techdirt - 26 August 2015 @ 12:44pm

Court Dismisses Ripoff Report's Malicious Prosecution Lawsuit Against People Who Sued It Five Years Ago

from the no-winners;-just-multiple-losers dept

There aren't too many user-generated-content-reliant sites that defend their Section 230 turf more viciously than Ripoff Report. This has earned it a thuggish reputation, something its pay-for-play quasi-reputation management offerings do little to dispel. For better or worse (and it's definitely some of each), Section 230 is the Ripoff Report's load-bearing center.

Because of its entrenched defense, those hoping to skirt the site's Section 230 protections have tried a number of questionable legal gambits. One person got a court to assign him the copyright on a particularly nasty review, which he then used to pursue a copyright infringement lawsuit against the site. In this case, the Asian Economic Institute attempted to quash critical reviews by claiming Ripoff Reports was engaged in extortion (with its for-pay "Corporate Advocacy Program," which advocates on behalf of aggrieved companies).

This Section 230-dodging tactic didn't work. The court found little that backed up AEI's racketeering claims -- claims that shifted mid-trial when Ripoff Report revealed it had secretly recorded all of its phone conversations with the plaintiffs.

Rather than enjoy its victory, Ripoff Reports (as Xcentric) filed its own lawsuit against the AEI principals, alleging malicious prosecution. Proving once again that two wrongs don't make a right, the Ninth Circuit Court of Appeals has found… well, not exactly for the defendants (the former AEI plaintiffs), but rather that Xcentric (the company behind Ripoff Report) was capable of filing equally-baseless lawsuits. From the opinion:

Xcentric Ventures appeals the district court’s grant of summary judgment and judgment on the pleadings in favor of defendants Mobrez and Llaneras and Rule 12(b)(6) dismissal of defendant Borodkin in Xcentric’s malicious prosecution action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. We agree with the district court that Xcentric cannot prove an element of its malicious prosecution claims, that the underlying claims were brought or continued without factual or legal probable cause. We also deny Borodkin’s motion for sanctions.
As the court points out, the very low bar of "legal probable cause" was met by the defendants' prior extortion claims. That the claims ultimately were determined to be without merit does not raise the original lawsuit to the level of "malicious prosecution." The appeals court affirms the lower court's decision.

The former plaintiffs (now defendants) are also graceless winners. Rather than walk away from the twice-dismissed lawsuit, Mobrez and Llanernas approached the Ninth Circuit Appeals Court and asked it to publish the decision it had rendered more than two months earlier. Why? Well, apparently so they could show the world that they too were capable of having a questionable lawsuit against them dismissed -- much like theirs against Xcentric was five years earlier. Um... touché?

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Posted on Techdirt - 26 August 2015 @ 8:28am

James Clapper Says Intelligence Community Has 'Duty To Warn' Endangered People... Sort Of

from the exceptions-apply dept

Steven Aftergood of the Federation of American Scientists directs us to a recently-released document issued by James Clapper (DNI) that formalizes something that the US has long held in principle, but had yet to commit to paper.

Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

A U.S. intelligence agency “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate,” the new directive states. “This includes threats where the target is an institution, place of business, structure, or location.”
The directive also covers, remarkably, non-US persons. The broad wording that pulls a lot of non-person "persons" under the "duty to warn" umbrella raises some questions about the included agencies' (FBI, NSA, CIA) duty to warn private companies about attacks of the "cyber" variety. Marcy Wheeler of emptywheel:
As I have noted, NSA has secretly defined “serious bodily harm” to include threat to property — that is, threats to property constitute threats of bodily harm.

If so, a serious hack would represent a threat of bodily harm (and under NSA’s minimization procedures they could share this data). While much of the rest of the Directive talks about how to accomplish this bureaucratically (and the sources and methods excuses for not giving notice), this should suggest that if a company like Sony is at risk of a major hack, NSA would have to tell it (and the Directive states that the obligation applies for US persons and non-US persons, though Sony is in this context a US person).

So shouldn’t this amount to a mandate for cybersharing, all without the legal immunity offered corporations under CISA?
It would appear to order the NSA and other government intelligence agencies to be forthcoming about impending (or ongoing) attacks. If interpreted in this fashion by the ODNI, it would appear to make CISA-ordained sharing redundant and ask the intelligence community to put aside its own interest in exploitables and preserving "means and methods" in favor of a "duty to warn."

Or not. There are several exceptions.
a. The intended victim, or those responsible for ensuring the intended victim's safety, is already aware of the specific threat;
b. The intended victim is at risk only as a result of the intended victim's participation in an insurgency, insurrection, or other armed conflict;
c. There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes;
d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations;
e. The information resulting in the duty to warn determination was acquired from a foreign government with whom the U.S. has formal agreements or liaison relationships, and any attempt to warn the intended victim would unduly endanger the personnel, sources, methods, intelligence operations, or defense operations of that foreign government; or
f. There is no reasonable way to warn the intended victim.
So, this voluntary assumption of a mostly-moral obligation to warn others of danger does not cover most criminals (apparently, the ODNI is fine with criminals killing/harming each other) or any situation where warning an entity of an impending attack would compromise intelligence agencies and their objectives. This would seem to eliminate warnings of cyberattacks, seeing as most relevant information would be hopelessly entangled in the cybersecurity efforts of multiple government agencies.

Marcy Wheeler points out that these exceptions could explain the FBI's lack of interest in warning Occupy Wall Street members of an assassination plot. Of course, the directive didn't officially take effect until July 21, 2015. At the point the FBI decided against warning certain American citizens of assassination threats, the "duty to warn" was nothing more than an altruistic ideal. It was under no legal obligation to do so, and its investigation of Occupy Wall Street probably justified its unwillingness to keep these "insurrectionists" out of harm's way.

The new directive doesn't really make this any more mandatory than it was back when it was unwritten and completely voluntary. Steven Aftergood points out the DNI's directive mentions both the National Security Act of 1947 and Executive Order 12333, but neither of these contain any wording that would legally compel intelligence agencies to honor a "duty to warn."

That being said, there's at least some anecdotal evidence that intelligence agencies have carried out their "duty to warn" in the past. Aftergood's post links to a former intelligence officer's recounting of exercising the "duty to warn" in Iraq.

A US citizen who was mixing good deeds (water supply work) with proselytizing (handing out Bibles to Iraq citizens) found himself the target of the Iranian Islamic Revolutionary Guards Corp. The IRGC implemented a Bible "buy-back" program, offering $5 for every Bible handed out by this "do-gooder." Iraqis soon turned this into a revenue stream, selling Bibles to the Guards and heading back to the missionary for fresh copies. The IRGC then decided it was sick of spending money to make money zero headway in the religious superiority game and decided to kill the Bible supplier. This news made its way back to the CIA task force, which then attempted to pass the warning on to the do-gooding Bible pusher. Incongruity ensued.
So, I get the tasking to warn Doug under the "duty to warn" policy. I gather up a few of our Kurdish guard force and another American to go to the village and pass the warning on to Doug. I can imagine his confusion. We roll into town, something like a cross between the Rat Patrol and Pancho Villa, Toyota pickups with mounted 12.7mm’s, Alanis Morissette blaring on the CD player - you get the picture.

I knocked on the door (I asked the locals, "Wayn al-Amrikan?" [Where's the American?]) and a gringo answers. I ask if he is Doug so-and-so. He says he is, but looking at our obviously loaded-for-bear entourage, asks who we are.

I reply, "We’re from the State Department."

He looks at us, AK-47’s and Browning High-Powers all over the place.

I quietly said, "Just work with us here, Doug."

"What exactly do you want?" he asks. Obviously he was not a fan of the CIA mucking around in "his" area.

I explain, "We have information that the Iranians, who believe you are proselytizing Christianity, are planning to kill you. We are advising you to leave Iraq for your own safety and that of your family (he had actually brought his Dutch wife and 10-year old son with him)."

Incredulously, he asked me, "Do you have anything more specific, more concrete than the fact they plan to kill me?"

I was a bit taken aback - "The IRGC is going to kill you - Doug so-and-so. How much more specific do we have to be?"
So, altruism exists. And inasmuch as it doesn't interfere too greatly with national security aims and/or ongoing investigations, people will be warned. But the ODNI's new "directive" doesn't add any additional obligations that weren't in place earlier. In fact, it seems to have been put down on paper mainly to explicitly list all the times the intelligence community won't be obligated to warn others of danger.

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Posted on Techdirt - 26 August 2015 @ 5:02am

Prominent Salt Lake City Residents Sue The NSA Over Mass Warrantless Surveillance During The 2002 Olympics

from the statute-of-limitations-may-be-a-problem dept

All the cool kids are suing the NSA these days. The EFF and ACLU led the way, suing the NSA before suing the NSA was cool. Others followed as a series Snowden/Greenwald split releases gained popularity (culimating in Greenwald leaving The Guardian to start his own label website). Most recently, those abused by the NSA for their whistleblowing efforts enlisted the help of the frequently more-entertaining-than-effective Larry Klayman to sue the NSA (and many others) for the retaliatory actions that followed their whistleblowing efforts.

The AP reports (without attaching the relevant filing, because information wants to be free omitted) that former Salt Lake City mayor Rocky Anderson is suing the NSA for "mass warrantless surveillance" conducted during the 2002 Winter Olympics, which were held less than six months after the 9/11 attacks.

Rocky Anderson may be suing the NSA, but it appears he's only doing so by hitching his name to a pre-existing lawsuit. Anderson's name isn't found among the listed plaintiffs, which basically makes him a "similarly situated party" -- indistinguishable from the average Salt Lake City resident except that the press is willing to publish his statements.

"I was outraged by this," Anderson said Wednesday. "Fundamentally, we want to get to the truth and expose what our government is doing."

Anderson says he learned about the program from a 2013 report in the Wall Street Journal and has since confirmed it with an unnamed agency source.
The suit names the NSA, FBI, George W. Bush, Michael Hayden, Dick Cheney and 50 "Does." What's alleged in the filing is the interception of data and communications in the Salt Lake City area for the duration of the Winter Olympics.
The NSA, in conjunction with the FBI, planned and implemented a mass warrantless program—for which there was no probable cause, completely outside the Constitution and outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the Games, from February 8, 2002 (Opening Ceremony) through February 24 (Closing Ceremony), over everyone within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.

That surveillance included the interception and key-word spotting analysis of the contents of every text message sent and received, every email sent and received, and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance. In some instances, people or telephone numbers were targeted by the NSA and FBI and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis, without a warrant and without probable cause.
In support of these allegations, it cites the exposure of the "Stellar Wind" program in 2005, as well as other confirmations of the warrantless wiretapping authority granted after the 9/11 attacks.

The plaintiffs' standing relies on very simple assertions: that they made phone calls and sent text messages/emails during the Winter Olympics. Given what we know about the NSA's bulk collection programs, this is all that's really needed to make these allegations. Ex-mayor Rocky Anderson says he knows "about 200 others" who could make similar claims, but the barrier of entry for this class is low enough that thousands of residents and non-residents could join the proceedings, if granted class action status by the court. Here are the class stipulations:
All individuals in the United States who sent or received a phone call, text message, or email from or to a location within Salt Lake City or within an area including and adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of the defendants were engaged in warrantless surveillance of communications by telephone, text messaging, or email during the time of December 1, 2001 to February 24, 2002 (or whenever it is established the warrantless surveillance took place).
The lawsuit alleges First and Fourth Amendment violations, as well as violations of FISA, the Wiretap Act and the Stored Communications Act. It also cites similar violations of Utah's Constitution.

I'm not sure this suit has any chance of surviving a motion to dismiss by the government. While standing is easier to achieve now that leaked documents have verified the specifics of the NSA's collection programs, the courts have generally granted more deference to the government's "national security" arguments. What is (slightly) helpful is that the Second Circuit found the Section 215 bulk collection isn't actually authorized by the Patriot Act. While Utah resides outside of that Circuit, decisions that question the legitimacy of bulk surveillance still may prove useful to the plaintiffs' claims.

If there's going to be any retribution for the NSA's abuses, it will probably have to wait until the Supreme Court takes a swing at it. And by the time it does, the question about the legality of its bulk collection program (under Section 215) will be largely moot, thanks to the passage of the USA Freedom Act. While lawsuits like these have been mostly fruitless in their pursuit of favorable judgments, they have proven useful for shaking loose previously-hidden documents and legal justifications for warrantless, domestic surveillance.

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Posted on Techdirt - 25 August 2015 @ 1:55pm

Court Reverses Previous Decision; Upholds Suspension For Student Who Rapped About School Employee Misconduct

from the this-speech-we-said-was-protected?-yeah...-I-guess-it-isn't-anymore... dept

Late last year, we covered a Fifth Circuit Court of Appeals decision pertaining to a high school student who was suspended from school because he uploaded a "disruptive" rap song to his Facebook account. While the song was vulgar and hinted at violence towards a school employee (who was allegedly taking advantage of female students), it was recorded and uploaded off-campus during non-school hours.

The divided decision found in favor of the student (Taylor Bell) and overturned his suspension. As the decision noted then, most of the claimed "disruption" was solely in the minds of the school administration.

At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school's work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when (Coach Michael) Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption.
Because of the division in opinions in the original panel's decision, an en banc review was granted. And the pendulum has now swung in the other direction and Bell's suspension has been upheld.
Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities”). Because that standard is satisfied in this instance, the summary judgment is AFFIRMED.
The 101-page decision, containing both additional concurrences and dissents, focuses more closely on the "disruptive" aspects of Bell's speech. Contrary to the original finding of the three-judge panel last year, the en banc review sees enough "disruption" to justify the school's actions.
Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.

It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist—to educate.

If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined. Put succinctly, “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951– 52 (Fisher, J., dissenting). As stated, the school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording.
So, because the disruption could "reasonably" be "forecast" (even if there is little evidence such forecasted disruption ever occurred), the school did not err in punishing Bell for off-campus activities.

Judge E. Grady Jolly, in a concurring opinion, goes even further than the majority decision (which did not examine the "true threat" aspects of Bell's rap track) and declares certain forms of student speech wholly unprotected.
Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.
Not a statement anyone can really disagree with, but also an area the en banc panel didn't explicitly cover and also one mostly ignored by the school, which could have pursued criminal charges instead if they truly believed Bell's track was an "actual threat." (Instead, the school found Bell so "threatening" it didn't confront him about this track until nearly the end of the school day.)

The dissent, written by Judge James L. Davis, is scathing in its assessment of the majority's decision to grant deference to the presumed sanctity of the learning environment. In doing so, the majority has allowed two things to happen, both of them bad.

First, it has loosened the restrictions governing schools' punishment of students for off-campus behavior.
[T]he majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.
Even worse, the opinion sets a precedent that implicitly states certain public figures may not be criticized by certain individuals.
Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern.
Bell's rap song was a response to multiple complaints from female students about inappropriate comments and sexual overtures from two of the school's coaches. These complaints became sworn affidavits once the legal process was underway. So, even with the violent imagery, the track dealt mostly with the alleged misconduct of school employees. The en banc decision turns this sort of criticism into punishable behavior, especially if a school can "reasonably foresee" a possible disruption. Whether or not this disruption actually occurs is largely inconsequential.

Judge Davis says this is free speech, alright, if you like your "free speech" surrounded by scare quotes.
Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel.
The majority does note that social media's ability to "bleed" into school life poses problems unanticipated by earlier decisions (like 1969's Tinker), but rather than explore that issue further, it simply decided on- and off-campus behavior were roughly inseparable if negative discussion of school employees in involved. The very low bar of "reasonably foreseeable disruption" grants schools leeway to arbitrarily punish off-campus speech. Anything can be "reasonably foreseeable," if enough imagination is applied and enough empathy is granted to these projections by the courts. And any post facto lack of disruption seemingly does nothing to harm schools' arguments in defense of their overreactions.

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Posted on Techdirt - 25 August 2015 @ 5:07am

Whistleblowers Band Together To Sue FBI, NSA And DOJ For Malicious Prosecution, Civil Liberties Violations

from the jury-trial-request-will-never-be-obliged,-that's-for-sure dept

This should be fun. A bunch of whistleblowers that were hounded, surveilled and prosecuted/persecuted by the US government are banding together to sue all the big names in domestic surveillance.

Thomas Drake, Diane Roark, Ed Loomis, J. Kirk Wiebe and William Binney have filed a civil rights lawsuit against the NSA, FBI, DOJ, Michael Hayden, Keith Alexander, Chris Inglis, Robert Mueller and a handful of others. They will be represented by Larry Klayman, who has some experience suing intelligence agencies.

The claims arise from the government's treatment of these whistleblowers after they started making noise about the NSA's surveillance programs. More specifically, the lawsuit points to the short-lived internet surveillance program THINTHREAD, which was ignored and abandoned in favor of something more expensive, but less protective of Americans' communications.

Plaintiffs worked in various roles on developing and perfecting a candidate program called THINTHREAD which was capable of performing the technical work desired by the NSA for surveillance of the internet efficiently, effectively, and at very low cost.
THINTHREAD was put into operation successfully but only on a demonstration basis. It was approved to demonstrate that it worked, but not officially commissioned for actual operational use.

Despite the Plaintiffs demonstrating that THINTHREAD actually worked, the NSA ignored THINTHREAD as a candidate for performing the desired surveillance of the internet and telephone communications, because THINTHREAD was inexpensive and highly effective, yet Lt. General Michael Hayden had made a corporate decision to “buy” externally rather than “build” internally the solution deemed necessary to harvest internet data.
$4 billion went into another program called TRAILBLAZER (THINTHREAD's internal development cost, by contrast, was only $4 MILLION), along with five years of development. In the end, TRAILBLAZER never worked properly and was abandoned by the NSA in 2006.

This wasteful "funneling" of funds to preferred government contractors was reported to the Dept. of Defense by four of the whistleblowers, under the heading of waste, fraud and misuse of taxpayers' money. The DoD wasn't happy. It issued a scathing internal report. But the NSA wasn't interested in having its faults pointed out. It sent the DOJ after the whistleblowers, using an unrelated leak of information about the NSA's expansive domestic surveillance programs to the New York Times as the impetus for a series of raids.

According to the filing, the raids were retaliatory. The government had already determined the plaintiffs had nothing to do with the leaks reported on by the New York Times. And it used faulty affidavits to justify the corresponding raids.
In fact, the affidavit for the search warrants are themselves based upon an illegal, warrantless phone tap and refer to a conversation illegally intercepted between Plaintiff Roark and Plaintiff William Binney, although misrepresenting the call’s contents. Further, the ultimate pretext for the search, a paper describing THINTHREAD at a high level that Binney had given the FBI, was falsely claimed by NSA to be classified. Thus, the search warrant affidavit is not only false but illegal.
The lawsuit also attempts to use the breadth and reach of known surveillance programs as proof the government knew the whistleblowers had nothing to do with the NYT leak.
Moreover, as later revealed by Edward Snowden, the NSA was even then, with the assistance of cooperating telephone and telecommunications companies, conducting mass interception and surveillance of all telephone calls within the domestic United States for the very purpose – at least so they claimed – of detecting both external and internal threats against the national security of the United States.

Therefore, through those phone and internet records, the Defendants had actual evidence at the time of the false affidavit and retaliatory searches and seizures that none of the Plaintiffs had communicated with the The New York Times or other journalists, except that Plaintiff Drake on his own had spoken confidentially with regard to public and /or unclassified information to the Baltimore Sun.
The end result of the FBI, NSA and DOJ's actions in response to whistleblowing (largely performed through proper channels) is a host of alleged civil liberties violations and other abuses, starting with the violation of 1998's Whistleblower Protection Act. From there, the whistleblowers allege violations of their First, Fourth and Fifth Amendment rights, along with malicious prosecution, intentional infliction of emotional distress and abuse of process.

It will be interesting to see where this goes. The government likely won't be able to dismiss the suit quickly, but the plaintiffs are going to run into a ton of immunity claims that will be buttressed by invocations of national security concerns. Their lawyer -- Larry Klayman -- has occasionally displayed his inability to distinguish between actionable claims and conspiracy theories, a tendency that doesn't improve the plaintiffs' chances of succeeding. But of all the outcomes I imagined for the stories of Drake, Binney, et al, taking these agencies on directly in federal court wasn't one of them.

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Posted on Techdirt - 24 August 2015 @ 8:27am

Quebec Decides It Needs ANOTHER Hate Speech Law, Only One That's Worse Than The Law It Already Has

from the if-it-ain't-broke,-keep-trying-to-break-it-[fixes-tbd] dept

The best way to combat speech you find offensive is more speech. Despite it being the best way to handle these situations, it's also the least-used option. And, in legislators' hands, "more speech" is rarely on the table. But "more law" almost always is.

An editorial from the Montreal Gazette discussing the Quebec government's proposal for a new "hate speech" law not only points out the potentially damaging side effects of the poorly-drafted bill, but other aspects that should have prevented it from ever getting this far in the legislative process.

To begin with, there are already laws in place to deal with "hate speech."

Certain types of communication are considered unacceptable, particularly speech that intentionally incites others to violence or hatred against a particular group. The Criminal Code already provides for this, and more importantly, it sets out clear parameters for the successful prosecution of hate-speech offences and specifies the conditions under which statements that some may see as hate speech are legally permissible. And as with all crimes, conviction requires proof beyond a reasonable doubt.
There it is. A law already exists to address these issues. But this law apparently has problems -- like "clear parameters" and requirements for "proof beyond a reasonable doubt." The new law will have neither of those.
The legislation, in its current form, fails even to define hate speech, leaving the grounds for a complaint to the provincial human rights commission open to interpretation. Also of concern is that the complainant may remain anonymous. Once a complaint is received, the bill would grant the commission sweeping new powers to investigate an alleged offence, and to then forward cases to the human rights tribunal for action.

The tribunal, in turn, could decide — based on a level of proof that it determines itself — whether a person has engaged in or disseminated hate speech, or “acted in such a manner as to cause such acts to be committed.” If so, fines could be levied and names added to a publicly available list for an indeterminate period of time.
These changes for the worse have been prompted by critics of the existing law, as it fails to criminalize enough speech and raises the bar too high for those hoping to punish people for offending them. Passing this law would allow hecklers to exercise their veto power more frequently, more effectively and, as a bonus, completely anonymously.

The end result, of course, is the chilling of speech. Currently, there's a measure of due process to the proceedings. If this bill passes, that's gone. And with no clear standard expressed in the bill itself, all sorts of previously protected speech will be potentially subject to criminal penalties.

But that's only part of the problem. The other issue is that the bill seems to be a quid pro quo exchange meant to give the government a pass on yet another targeted restriction.
The anti-hate bill was introduced as part of a “package” of sorts, rolled out in June in response to (among other things) concerns about the radicalization of impressionable young people and a rising tide of public anti-Muslim sentiment. The package also included a detailed anti-radicalization strategy and another bill that would ban the wearing of face-coverings while giving or receiving a public service. The face-covering ban will almost exclusively affect Muslims, so the hate-speech bill could be seen as a kind of olive branch to the community, and another way to defend against increasingly vicious anti-Muslim rhetoric in public discourse.
So, the Quebec government wants to crack down on radicalization and force Muslims to look "less Muslim" when engaging with the Quebec government. In exchange, everyone -- not just Muslims -- will be allowed to anonymously report nearly anything that offends them to the commission and allow the bill's vague machinations to take over. It's written from the ground up to be abused. And while it may be a slight nod towards the Muslim community the government is slapping with other restrictions, it's a safe bet that Muslims will also be frequently targeted by hate speech complaints to the tribunal. By leaving the burden of proof entirely in the tribunal's hands, any and all complaints are valid until otherwise determined by a third party in its sole discretion, with no input from the accused. How could that possibly go wrong?

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Posted on Techdirt - 21 August 2015 @ 3:54pm

Courts Aren't Buying Dispensary-Raiding Cops' 'Expectation Of Privacy' Arguments

from the 'expectation-of-privacy'-isn't-'expectation-of-not-getting-caugh dept

We recently covered the complete absurdity that is the Santa Ana police union's legal battle to clear cops caught misbehaving (to put it lightly…) during a raid on a pot dispensary. The cops in question tore cameras out of the wall, disabled the surveillance system and then, when they thought they were "safe," made disparaging comments about a disabled woman, ate presumably pot-laced edibles, played a few rounds of darts and generally behaved like any group of miscreants would if they felt they were unobserved.

Among the numerous laughable claims made in the union's effort to block recordings of these actions from being used against the cops performing these actions is that the recording itself is "illegal" as the officers had an "expectation of privacy" while performing their law enforcement duties in a public areas of a publicly-accessible business.

The suit also claims the video shouldn't be used as evidence because, among other things, the police didn't know they were on camera.

"All police personnel present had a reasonable expectation that their conversations were no longer being recorded and the undercover officers, feeling that they were safe to do so, removed their masks," says the suit.
First off, any expectation of privacy only arose because the officers thought they had disabled all of the cameras. In any other reasonable situation, the presence of cameras would alert both police and members of the public that any expectations of privacy were severely misguided. Surveillance cameras in businesses are the rule, not the exception. Just because these cops missed a camera doesn't make the recording "illegal," nor does it somehow grant them an expectation of privacy that logically doesn't exist.

The legal action seems doomed to failure, even more so now that the Ninth Circuit Appeals Court -- whose jurisdiction includes Santa Ana, California -- has just issued an opinion, backed by Supreme Court decisions, stating that public areas of public businesses carry no expectation of privacy.

This ruling sides with law enforcement over a citizen's objections -- the same thing the misbehaving cops are seeking, but completely in reverse.

In this case, a motel owner (Mahesh Patel) claimed Fourth Amendment violations were committed when officers entered his business and cited him for code violations in plain view. He claimed his private business (as in private ownership) granted him an expectation of privacy that was violated by the officers' entry.

Not so, says the court:
As in Barlow's, the police officers entering the public areas of the Galleria Motel are entitled to observe (without a warrant) anything observable by the public. Camara and See [Supreme Court cases cited by the plaintiff] only allow a commercial property owner to manifest a reasonable expectation of privacy in his property by closing off portions of his business to the public.


The areas of the Galleria Motel open to the public are not within the enumerated items in the Fourth Amendment; therefore, no search occurs when police officers enter those areas. Because the complaint alleged only that police officers entered the public areas of the Galleria Motel, Patel has failed to demonstrate a reasonable expectation of privacy pursuant to Katz, rendering Camara and See inapplicable to this case.
This affirms the lower court's judgment.
The only allegation in the complaint (relevant to this appeal) was Patel's claim that the officers violated the Fourth Amendment. Defendants filed a motion to dismiss for failure to state a claim. The district court granted the motion, holding that neither Patel nor HFS had a reasonable expectation of privacy in the areas of the Galleria Motel that were open to the public.
So, for consistency's sake, if nothing else, cops can't claim to have an expectation of privacy in areas of businesses open to the public, not if the courts are going to deny the same privilege to citizens. But that's exactly what the police union's filing on behalf of the dispensary-raiding cops is trying to achieve.

And, indeed, the judge presiding over the case in Orange County Superior Court has already denied the officers' request for an injunction, stating very briefly that the cops had no expectation of privacy because they were on duty at the time -- never mind everything else about cameras, California's wiretap law (which was invoked by the union) or the public areas of private businesses.

The union is still free to pursue its lawsuit against the police department, but it won't be able to prevent the recordings from being used to investigate the participants of the raid. It will almost certainly appeal this decision, but there's nowhere to go with this particular argument. Even if it makes its way up the chain to the federal appeals court, the Ninth has already expressed its opinion on the privacy expectations of public places... and it used Supreme Court decisions to back its assertions up.

But police unions and badly-behaving police officers are both known to explore every argument available, no matter how incredibly stupid, simply because to do otherwise is to admit wrongdoing. And there's always a chance a system designed to cut cops as much slack as possible will still somehow come through for them.

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Posted on Techdirt - 21 August 2015 @ 1:35pm

Contractor Who Cleared Snowden For His NSA Position Fined $30 Million By The DOJ

from the can-only-assume-Snowden-received-a-cursory-examination dept

The government seems to have lost interest in finding anyone to hang for Snowden's all-access tour of the NSA's internal servers -- access that greatly aided in his absconding with a number of documents revealing the surprising extent of the agency's surveillance programs. It certainly still wants to hang Snowden -- literally, if some legislators get their way.

It has, however, decided to nail one handy scapegoat to the wall. This would be the contractor who allowed Snowden to get in the door in the first place. The Register's Shaun Nichols reports that the DOJ is fining US Investigative Services (USIS) $30 million for generally being completely terrible at the one thing it's supposed to be doing: vetting applicants for sensitive government jobs.

The DoJ announced on Wednesday that US Investigations Services (USIS) will give up a $30m (£19.14m) payment in exchange for settling charges that it violated the US False Claims Act by failing to properly screen applicants for government security clearances.

According to the DoJ, USIS failed to properly screen federal security clearance applicants and, in some cases, submitted incomplete background check reports to the US Office of Personnel Management (OPM).
The USIS wasn't simply mediocre. It was awful. Shortly after Snowden revealed himself as the source of the leaks, USIS was revealed to have riddled the government with security holes over most of the past decade. One contractor was caught interviewing dead people during background checks. Another singlehandedly submitted 1,600 falsified reports.

Then in January of last year, the revelations got even worse. The DOJ accused USIS of faking background checks on 665,000 federal employees -- something the DOJ understatedly called "taking shortcuts."

The USIS won't actually be paying this fine, however. It will instead work its debt off doing the DOJ's dishes doing the same thing it couldn't be trusted to do in the first place when it was still collecting a paycheck. Why this hasn't resulted in a permanent pink slip for the contractor is beyond me, but it does show the government's endless willingness to forgive… well, certain contractors.

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Posted on Techdirt - 21 August 2015 @ 7:06am

TSA At The Movies: Theater Chain Looks To Bring Security Theater To The Movie Theater

from the more-hassle,-same-safety dept

Thanks to a string of theater-related tragedies, going to the theater is about to become as enjoyable as going to the airport.

Following two recent deadly incidents at movie theatres in the US, the Regal Entertainment Group – the nation’s largest movie theater chain – this week added a bag and purse check policy as a security measure in some of the 569 theaters it operates.

“Security issues have become a daily part of our lives in America. Regal Entertainment Group wants our customers and staff to feel comfortable and safe when visiting or working in our theatres,” the chain said in a statement.
This may sound like a harmless bit of "doing something" in response to a few tragic incidents, but there's nothing really harmless about it.

First off, it subjects everyone to the same level of scrutiny -- provided they're carrying a bag of some sort. If you have a purse or backpack or (god forbid) a fanny pack, you're a potential threat. Everyone else? Free to go. Weapons tucked into waistbands or shoved into pockets will go undetected.

And, like the TSA its emulating, the security measures will be easily thwarted and ultimately useless. For every weapon the TSA brags about seizing, many more end up on planes. A recent audit of the TSA's security efforts found it missed 95% of smuggled weapons and explosives. Anyone thinking Regal's security force is going to be better trained and more thorough than the TSA is kidding themselves.

Like the TSA's efforts, this will give moviegoers the illusion of safety, rather than actual safety. An illusion might be comforting enough for most moviegoers and it's all Regal can actually offer. This move is more about PR than reality.
According to a new survey conducted by consumer research film C4, following the Nashville incident, 48% of moviegoers are willing to pay $1 or more per ticket for the additional measures. Nineteen per cent of respondents said they would pay $3 or more.
And I'm sure Regal will be more than happy to take $1-3 more from every moviegoer in exchange for a hassling a few moviegoers. But Regal's move -- while good-intentioned -- is ill-advised. Offering your customers mostly-theoretical protection places responsibility for any future shootings almost solely on each individual theater. Now, if anyone shoots up a theater, Regal will very likely be successfully targeted in wrongful death suits. After all, it instituted additional measures to prevent further shootings... and then failed to prevent a shooting from happening. The additional measures seem unlikely to dissuade anyone but the most easily-deterred shooters from following through with their plans. In exchange for little more than a temporary bump in goodwill, Regal is assuming a great deal of liability.

And given what we know about the most recent theater shootings, a bag check wouldn't have stopped anything. James Holmes, who killed 12 and wounded 70 in Aurora, CO, stashed his weapons in his vehicle. The shooter in Louisiana may have had a backpack (reports are inconclusive), but it wasn't on or near him when police got to him, and a controlled detonation later proved there was nothing harmful inside it. The shooter at the Antioch, TN theater was carrying two backpacks -- one of which was strapped across his chest. When police engaged him, he was also wearing a surgical mask. Most of what was in his bags weren't actually weapons, though. Pepper spray, a hatchet and an Airsoft gun were used in the theater attack. Only one of these is an actual weapon, and Regal's new policy doesn't make it clear what will happen to those who bring in legal items that aren't weapons but the theater decides could be deployed as one.

This focus on bags also makes it clear to potential attackers that security will be looking out for one thing -- backpacks and bags. Avoiding scrutiny simply means not doing that one thing. So, while some moviegoers will be comforted by this security charade being performed on their behalf, many more will be irritated that attending a movie will be nearly as annoying as boarding a plane.

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Posted on Techdirt - 21 August 2015 @ 5:08am

UK Orders Google To 'Forget' News Articles Discussing Previous Right To Be Forgotten Requests

from the the-EU's-internet:-a-recursive-planned-community dept

We knew this day was coming. Ever since the EU decided something called the "right to be forgotten" existed, and that Google (mainly) would be tasked with the "forgetting," the descent into an Inception-esque state of forgetting about forgetting about the forgotten was the illogical next step forward.

Google has been ordered by the Information Commissioner’s office to remove nine links to current news stories about older reports which themselves were removed from search results under the ‘right to be forgotten’ ruling.

The search engine had previously removed links relating to a 10 year-old criminal offence by an individual after requests made under the right to be forgotten ruling. Removal of those links from Google’s search results for the claimant’s name spurred new news posts detailing the removals, which were then indexed by Google’s search engine.

Google refused to remove links to these later news posts, which included details of the original criminal offence, despite them forming part of search results for the claimant’s name, arguing that they are an essential part of a recent news story and in the public interest.
As everyone should have known, forcing a state of forgetfulness more often results in the opposite happening. All Ms. Streisand wanted was for people to stop looking at her house. Now, more than a decade later, many internet denizens can conjure up a mental image of her coastline mansion with minimal effort.

Now, when journalists are informed that certain stories need to be "forgotten," they're obviously going to write about it. And with good reason. A stupid decision by the European Union basically gives almost anyone the right to vanish away facts about their past misdeeds. And journalists are going to be righteously angered that past reporting on factual events just has to "go away." So, they report on the requests. And now those hoping to erase the past are condemned to repeat it. Not fair, says the ICO. Henceforth, more stupidity.

The UK's Information Commission (ICO) seems to know what it's asking is basically a futile gesture with one foot firmly planted in the realm of impossibility, but it's going to ask for it all the same.
[Deputy Commissioner David] Smith said: “Let’s be clear. We understand that links being removed as a result of this court ruling is something that newspapers want to write about. And we understand that people need to be able to find these stories through search engines like Google. But that does not need them to be revealed when searching on the original complainant’s name.”
See? It's so easy. This can all be fixed just by ensuring complainants don't find anything they don't like when using their own name as a search term. There are no specific instructions for Google to follow other than to delist any requested article discussing Google delistings in response to "right to be forgotten" requests.

Obviously, this decision will only result in more articles about requesters and their requests, which will populate search results, leading to more requests to be forgotten, followed by more directives by the various European government bodies, reaching the point where Google will be asked to remove links to articles discussing the removal of links to articles discussing removed links. Repeat until nauseated.

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Posted on Techdirt - 21 August 2015 @ 3:02am

Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission

from the but-I-didn't-think-anyone-would-do-the-thing-I-told-them-they-could-do! dept

A far-too-common story of alleged copyright infringement by a corporation comes to an unexpected resolution. Photographer Art Dragulis took a photo of a rather rustic Maryland scene and uploaded it to Flickr. (from the filing)

Roughly four years later, he discovered Kappa Map Group was using his photo for the cover of its Montgomery County atlas, unbeknownst to him, and as such, also unrecompensed.

Lawsuit-filing ensued. Dragulis claimed Kappa Map Group had no right to use his photo commericially. Seems an almost open-and-shut case, what with any number of entities deciding "anything showing up in a Google image search" = "royalty-free stock photography." And in most cases, this would have been rather straightforward if the photographer himself hadn't undermined his infringement claims years before he ever raised them.

As the opinion notes, any copyright protections Dragulis might have enjoyed were explicitly waived by his choice of licensing back in 2008.
Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.
Dragulis chose to license this picture under Creative Commons BY-SA-2.0, which allows commercial use of the photo in exchange for attribution. As Kappa pointed out in its initial response to Dragulis' filing, it followed the terms of the license explicitly.
Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”
So, everything was exactly what Dragulis wanted, except that he apparently never expected a commercial company to take him up on his CC offer. When one did, it was time to sue. The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome.
Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.
Dragulis heads a little further into the weeds with his arguments, claiming that the "share-alike" portion of the CC license demanded Kappa Map Groups offer its atlas under similar terms -- i.e., for free and with a similar license attached. The court finds this unpersuasive, pointing out the CC license terminology Dragulis invoked only refers to "derivative works," which KGM's atlas isn't. Instead, the court finds the atlas to be a "collective work," one that incorporates the photo "in its entirety in unmodified form."

Dragulis loses on all counts, even with the court entertaining his very belatedly-raised argument that the minimal cropping of his original photo by Kappa somehow made the use of his photo a "derivative work."

If there's a moral to this legal incident, it's this: know the terms of your licensing before you agree to use it. If you want to use a more altruistic licensing form like those offered by Creative Commons, by all means, do so. But don't act like a commercial entity owes you something for complying with the terms you expressly agreed to. Licensor's remorse isn't a legally-recognized tort.

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Posted on Techdirt - 20 August 2015 @ 11:04pm

DOJ Issues First Annual Media Subpoena Report

from the freedom-of-the-press? dept

The DOJ has released its inaugural report on use of subpoenas to obtain information from "media sources." This is part of former Attorney General Eric Holder's nod to transparency -- a nod he gave shortly before leaving office. We'll have to watch this space in 2016 to see if it will actually become an "annual" report. (And if it is, we'll also have to watch this space to see if Reason and Popehat are considered by the DOJ to be "media sources" after tangling with both over the discussion of federal judges and woodchippers.)

That being said, there's some interesting information in here, including the DOJ's hassling of the New York Times.

In connection with the trial of former CIA officer Jeffrey Sterling, who was charged with, and convicted of, offenses related to his unauthorized disclosure of national security information, the Attorney General authorized the Criminal Division and the USAO for the Eastern District of Virginia to issue a subpoena to New York Times reporter James Risen. The authorization was limited to eliciting testimony at trial and/or pretrial hearings confirming (1) that Risen has a confidentiality agreement with a particular source, (2) that Risen authored a particular chapter in his book State of War, (3) that statements attributed to an unnamed source were, in fact, made by an unnamed source, (4) that statements attributed to an identified source were, in fact, made by an identified source, and (5) the existence of a prior non-confidential reporter-source relationship with Sterling.


The subpoena was issued, and Risen testified at a pretrial hearing. He was not called to testify at trial.
That last sentence is particularly interesting as it pretty much glosses over the DOJ's about face on Risen's testimony. It pushed hard to force Risen to testify in hopes of getting him to reveal his confidential source. Risen did testify (pre-trial) but refused to disclose his source's identity. The DOJ then decided that if it wasn't able to get what it wanted from him, then neither should anyone else. It moved to declare Risen an "unavailable witness," in hopes of blocking the defense from using any testimony he would provide against the government. In the DOJ's retelling of the event, its fruitless struggle to obtain information and its subsequent attempt to block further testimony from Risen is reduced to a very short and very neutral sentence: "He was not called to testify."

Of additonal bemusement is the DOJ's interest in determining whether Risen's "unnamed source" was actually an "unnamed source." It appears the government believes it should be the sole provider of "unnamed sources," and then only when such statements deliver the government's unofficial official positions.

The DOJ also tried to compel an unnamed "television news producer" to testify on inflammatory statements made to him by convicted terrorist Khalid al Fawwaz. Although the "transparency" report doesn't name the source targeted by the subpoena, the information the DOJ remains coy about is already in the public domain, as Britain Eakin of Courthouse News Service points out.
Media reports last year identified the witness in question as "60 Minutes" news producer Richard Bonin.

The DOJ says it wanted the producer to testify about anti-American and anti-Semitic statements al-Fawwaz made to him, but that prosecutors ultimately decided not to issue the subpoena when the producer said he would contest it.
Other items listed are more run-of-the-mill, including the subpoenaing of media footage of the 2013 Boston Marathon finish line, as well as other footage/recordings of interest to criminal prosecutions. Subpoenas were also issued to media entities to obtain information related to the DOJ's investigation of these entities for antitrust violations and a "tax-related prosecution."

The government's insatiable desire for redundancy is also on display in the three-page report.
In connection with the prosecution of Roger Key for conspiracy to commit murder-for-hire, attempted murder-for-hire, and aiding and abetting the unlawful discharge of a firearm. the United States Attorney for the Southern District of New York authorized the issuance of a subpoena to a news media entity for the broadcast footage of, and script for, a report concerning a related murder. The news media entity expressly agreed to provide the requested recordings in response to a subpoena.
So far, so good. But...
Ultimately, the news media entity failed to respond to the subpoena.
That sucks, except
[W]hile the subpoena was pending, the USAO negotiated with the defense a stipulation regarding the admissibility of the publicly broadcast report.
Yes, the DOJ subpoenaed a publicly-broadcast news report. I would guess the media entity decided not to respond because the information sought was already publicly available. The DOJ's move to obtain a stipulation while the subpoena was still pending suggests someone involved realized this paperwork was unnecessary to achieve its aims.

The report may be brief, light on specifics (some of it due to ongoing prosecutions) and occasionally needlessly opaque (not identifying Robert Bonin, etc.), but it does retain one distinct advantage over all previous DOJ subpoena reports: this one actually exists! Here's to next year's annual report, which will hopefully give us a look at the DOJ's investigation of comment thread bombast and hyperbole.

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Posted on Techdirt - 20 August 2015 @ 4:01pm

DC Mayor Reverses Course On Body Cam Footage, Opens Up Recordings To Citizens And Researchers

from the putting-the-'public'-back-in-public-records dept

Back in April of this year, Washington DC mayor Muriel Bowser sided with the city's law enforcement against transparency and accountability. The mayor promised to outfit officers with body cams in the wake of several, high-profile police-involved shootings. But two weeks after this promise in her State of the District speech, Bowser tucked a provision into a budget bill that would exempt the footage from public records requests.

Supposedly, this was done in the interests of "privacy," but the blanket exception just meant local law enforcement would never feel compelled to hand over less-than-flattering footage. Bad news, to be sure, but only a few months later and Mayor Bowser has completely reversed course.

Police in the nation’s capital would release more footage from body cameras than in any other major U.S. city under a plan from Mayor Muriel E. Bowser that reverses her previous opposition to making such videos public.

Bowser’s proposal, which has the potential to shed light on thousands of recorded interactions between police and the public, would allow private citizens to obtain copies of video recorded on street corners, during traffic stops and elsewhere outdoors.
There will still be some exemptions. Anything recorded in a private residence would be limited to court proceedings and footage of traffic stops resulting in no arrests or citations will be heavily redacted to prevent the inadvertent release of personal information.

The reason for Bowser's change of heart? Police officers just kept right on killing people.
In a statement to The Post, Bowser cited continued police shootings over the past year as a reason for the change, saying the tide has tilted in favor of greater disclosure even as governments must strike a balance between privacy and transparency.
The balance has been tipped back in favor of the public, thanks to the actions of law enforcement. In addition to making most camera footage responsive to public records requests, DC citizens will also be allowed to view footage of incidents they're involved in by heading to their local police station within 90 days of the event. Access to all footage will be granted to researchers studying the effects of body-worn cameras.

DC cops who thought their videotaped misconduct would be stashed away from the prying eyes of the public aren't going to be thrilled with this reversal. And they have no one to blame but their colleagues.

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Posted on Techdirt - 20 August 2015 @ 1:40pm

Legislators Send Letter To Treasury Department Demanding Release Of Funds Seized In Bogus Structuring Case

from the IRS:-we-won't-do-this-anymore,-but-probably-not-any-LESS,-either dept

Asset forfeiture finally found its way into the mainstream after years of coverage by media outsiders. The sudden increase in negative attention brought about some needed reform efforts. The DOJ issued new guidelines on civil asset forfeiture, as did the IRS, which announced it would no longer pursue seizure of funds under "structuring" statutes unless there was evidence the money came from criminal sources.

One of the victims of the IRS's bogus "structuring" seizures (made pre-policy shift) is Randy Sowers, a dairy farmer who had $63,000 seized by the agency in 2012. The cash came from sales made at local farmers' markets, but the IRS viewed it as a criminal act simply because Sowers never topped the magical $10,000 mark with his deposits.

The Sowers were "working" with the IRS to have the funds returned (this implies a modicum of due process that doesn't actually exist in civil forfeiture). Then Randy Sowers almost screwed things up, as Melissa Quinn of the Daily Signal reports.

While the couple was in the midst of settlement negotiations with the government, hoping to have most of their money returned, Randy Sowers spoke with a reporter from The City Paper in Baltimore, Md., about his experience with structuring and civil asset forfeiture.

On the day the article was published, Stefan Cassella, the assistant U.S. attorney overseeing Sowers’ structuring case, told the family’s lawyer he had a “problem” and was no longer willing to negotiate a settlement amount, according to court filings.
This attitude seems to be common to IRS prosecutors. They don't mind taking your money for the flimsiest of reasons and they don't mind fighting you every step of the way should you choose to challenge the seizure, but goddamn if it doesn't piss them off if you decide to discuss your situation in public.

If you'll recall, another victim of a bogus structuring seizure took his case (mostly anonymously) to a Congressional hearing. The prosecutor in that case reacted just as badly to the public airing of IRS-related grievances. He sent a letter to the Institute of Justice (which is representing the convenience store owner who had $107,000 seized by the IRS) that basically stated any publicity resulting from this would only harm this person's case. Because vindictiveness.
I do not know who did that, and I am accusing no one, but it was not from our office and could only have come from your clients. That was certainly not my intent in making this available. Whoever made [the document] public may serve their own interest but will not help this particular case

Your client needs to resolve this or litigate it. But publicity about it doesn't help. It just ratchets up feelings in the agency.
The prosecutor then offered a take-it-or-leave-it deal of 50% of the seized cash back. C-store owner Lyndon McLellan chose the latter.

Sowers, however, did eventually settle with the IRS, receiving (coincidence?!) half of the seized funds. Why settle when you're clearly in the right? Because it's tough to run a business when your liquid assets have suddenly vanished. Half is better than nothing, especially if you want to remain solvent.

Now, he wants the other half. And he's brought backup.
A bipartisan group of lawmakers on the House Ways and Means Oversight Subcommittee is coming together to ask the Treasury Department to return nearly $30,000 it seized from Maryland dairy farmers in 2012.

The letter, sent August 11 to Treasury Secretary Jack Lew, calls on the agency to return $29,500 the Internal Revenue Service seized from Frederick-based dairy farmers Randy and Karen Sowers through civil asset forfeiture.

The lawmakers also asked Lew to review similar cases and return money seized by the tax agency under the practice.
The letter reminds the Treasury Department that the seizure program is in place to stop money laundering, drug trafficking and disrupt the funding of terrorist organizations. It is not just a quick and dirty way for the government to take money from cash-heavy businesses who frequently deposit cash in sub-$10,000 quantities. In many of these cases, it appears business owners have received bad advice from well-meaning family members or friends. In other cases, the bad advice comes from the bank employees themselves. What doesn't appear to be integral to these disputed cases is any link to criminal activity.

A very long petition for the return of the money has been lodged with the DOJ. It points out that under the agency's current rules, the sort of seizure they've experienced would not even be initiated. It also points out that the couple was apologized to by several members of the Congressional committee and the IRS Commissioner himself. And yet, the Treasury Department refuses to cede any ground on the other half of the Sowers' funds. Hopefully, a three-page letter from a bunch of legislators will compel the return of the Sowers' money -- something their 209-page complaint has yet to accomplish.

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Posted on Techdirt - 20 August 2015 @ 8:20am

Your Toner Is No Good Here: Region-Coding Ink Cartridges... For The Customers

from the all-ink-must-provide-proof-of-citizenship.-that-is-all. dept

Everyone likes buying stuff with a bunch of built-in restrictions, right? The things we "own" often remain the property of the manufacturers, at least in part. That's the trade-off we never asked for -- one pushed on us by everyone from movie studios to makers of high-end cat litter boxes and coffee brewers. DRM prevents backup copies. Proprietary packets brick functions until manufacturer-approved refills are in place.

Here's another bit of ridiculousness, via Techdirt reader techflaws. German news outlet c't Magazin is reporting that Xerox printers are going further than the normal restrictions we've become accustomed to. For years, printer companies have made sure users' printers won't run without every single slot being filled with approved cartridges. This includes such stupidity as disabling every function (including non-ink-related functions like scanning) in all-in-one printers until the printer is fed.

Xerox is going further. Not only do you need to refill the ink, but you have to fill it with local ink. techflaws paraphrases the paywalled, German-language article.

Xerox uses region coding on their toner catridges AND locks the printer to the first type used. So if you use an NA (North America) catridge you can't use the cheaper DMO (Eastern Europe) anymore. The printer's display does NOT show this, nor does the hotline know about it. When c't reached out to Xerox, the marketing drone claimed, this was done to serve the customer better, I kid you not.
Ah, the old "serve the customer better by limiting his/her options," as seen everywhere DRM/DRM-esque restrictions are applied.

But while c't Magazin has only recently stumbled across this issue of region-locked ink cartridges, it's by no means a new issue. Techflaws also points to a 2011 forum post by a user who ran into this problem with his Xerox printer.
I have seen hundreds of posts regarding the rejection of ink based on the location of purchase. I asume that Xerox does this to prevent the purchase of ink not manufactured by them. However - forcing a client to pay for a service for a snippet that needs to be installed in order to use the printer is ABSURD.

I changed from HP to Xerox because I thought it was a trusted name. I have instead learned that in the process of trying to protect against counterfeit - it is the paying customer that will get a non-functioning printer - with no help unless you are willing to pay for the printer to work as it should have to begin with.
So, it appears that if you attempt to forcefeed a Xerox printer not-from-around-here ink, it will potentially brick the device. At that point, you're forced to ask for a Xerox rep to drop by and unlock your purchased printer for you. Here's another confirmation of Xerox's "locals only" ink limitations.
As I live in the UK my ink blocks are for the European market. If I purchase from ebay, ink blocks for the USA or Asian market and insert them into my printer, the printer will stop with a contact your engineer code on the LCD. The printer is now unusable.
The rate charged to the person in the forum post quoted above was $596/hour. There's no missing decimal point there. Sure, it's only 10 minutes of work, but it's $60 being shelled out by a paying customer just so his printer will go back to printing. The only thing actually "broken" is Xerox's business model.

This person notes they switched from HP to Xerox because the latter was supposedly more trustworthy. Apparently not. Printers aren't a business. They're a racket. HP is no better than Xerox. It too will lock your printer to a certain region to ensure you receive only the best customer service purchase only most profitable ink cartridges.

If dates are anything to go by, HP likely pioneered the bullshit that is region-locked ink. This is from a 2005 Slashdot post. (The internal link to the Wall Street Journal is dead, so it has been omitted.)
Looks like the printer cartridge manufacturers will be borrowing techniques from Hollywood. HP introduced region coding for some of the newest printers sold in Europe. HP's US location and US dollar sliding lead to the situation, where cartridge prices in Europe are significantly higher than those in the States. In the Wall Street Journal article HP representative in Europe claims the company doesn't make any money off regional coding for cartridges, and that consumers will win once the US dollar rises over Euro.
Unbelievably, the rep says customers will "win" if an aspect HP can't control (currency exchange rates) happens to shift in the customers' favor. Why not just say consumers will be better off if those scratch tickets are winners? Or if the housing market rebounds and brings the residence housing the HP printer back into the black?

How much have consumers "won" since 2005?

In January of 2005 (when the post appeared at Slashdot), the exchange rate was 1.312 ($$ to Euros). A decade later, the exchange rate is 1.162. The dollar has gotten stronger, but this change is unlikely to have any appreciable effect on the price of "European" ink (wtf even is that, HP, Xerox, et al -- ink is ink). Thanks for the investment tip, HP PR.

Nearly every major printer manufacturer is in on the scam. HP saw an opportunity to increase incremental sales and staked out this territory in 2004. This brave new world of customer-screwing was followed by Lexmark, Canon, Epson and Xerox -- none of which saw anything wrong with illogically restricting ink cartridges to certain regions.

Region coding for DVDs and videogames makes a certain amount of sense, provided you're willing to make a small logic buy-in on windowed releases. But ink? It's not like Australians need to wait six weeks for HP to cut loose ink cartridges so as not to sabotage the US release. The only reason to do this is to tie paying customers into the most expensive ink and toner. This lock-in is cemented by many printers' refusal to recognize third-party replacement cartridges and/or allow refills of existing manufacturer cartridges.

The excuses made for this mercenary behavior would be hilarious if they weren't so transparently dismissive of customers. Every flowery ode to customers' best interests by PR flacks boils down to nothing more than, "Fuck 'em. It's not like they have a choice."

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Posted on Techdirt - 19 August 2015 @ 3:33pm

Woman Catches Cop Beating Handcuffed Suspect; Police Union First In Line To Shoot The Messenger

from the no-one-to-blame-but-everyone-else dept

The presumed illegality of filming police is a law enforcement mental disorder. Far too many officers believe they have the right to perform their public service unobserved. Officers continue to take cameras from bystanders who happen to catch them behaving badly. Abby Phillip at the Washington Post details another apparent act of police misconduct that resulted in more misconduct as officers attempted to shut the recording down.

Just after 4 p.m. Thursday, a woman stood a few feet away from several Miami Police Department patrol cars with her cellphone camera recording. After a few seconds, an officer entered the frame, escorting a handcuffed young black man to the back of a police car.

Suddenly, the officer put his head inside the car door and appeared to punch the suspect.

“Oh!” a woman exclaimed on the recording, reacting to what was unfolding before her. The woman, who the Associated Press identified as Shenitria Blocker, moved closer, and the officer climbed into the back seat of the car. Moments later, the camera shook and the video ended.
Here's the video:

The camera shake was due to an officer's attempt to take Blocker's phone away from her. Blocker says they then ordered her to delete the footage or face being arrested. While the video does show Blocker moving in very close to the police car to get a better view of the action, any arrestable offense would have been limited to "interference," and that would only be legit if she refused to move away from the vehicle when ordered to. No such order was given. Instead, the cop went for the camera and threatened her with arrest.

Even if the cops can't find a sufficiently malleable "violation" to charge photographers with, the law enforcement community (including police departments and, especially, their unions) finds ways to ensure no damning recording goes unpunished.

To its credit, the Miami Police Department has suspended the officer caught punching the handcuffed arrestee and is investigating the incident. On the other hand, it hasn't said anything about the unidentified officer who attempted to take Blocker's phone, nor has it issued a statement affirming the public's right to film police officers.

The Miami Fraternal Order of Police, on the other hand, is going out of its way to deliver its own brand of "justice" for Blocker having the temerity to catch one of its officers behaving badly.
In a statement, the police union said “social media has placed a very negative tone on law enforcement nationwide” and that the officer in question was “protecting our community.”
Ah. So that's what happened. A now-suspended officer didn't punch an arrested man who was already in the back of a patrol car. Social media did. In fact, social media should be made to answer for the hundreds of incidents of police misconduct every year. At the very least, people should stop running to social media with their clips of police abuse because being a cop is hard work.

But the union has gone farther than simply making the ridiculous assertion that all of these police officers captured on film doing the things they were actually doing is nothing more than negative spin by Social Media Co. LLC. It's also attempting to disparage Blocker herself -- ironically, by using the same social media that's apparently destroying the reputation of its suspect-punching police officer.

The union has delivered screenshots of Blocker's since-removed Facebook page, claiming these show Blocker is a bad person and therefore, all video captured by her phone should be disregarded… or something.
The remainder of the union’s statement focused on criticizing Smith, the woman who at the time they believed recorded the video. It highlighted screenshots of Smith’s Facebook page and accused her of posting photos of herself with men who have handguns.
According to the farcical police officers' group, the real problem is men with guns on Facebook pages, not an officer punching a handcuffed suspect. If only the "community" had done more to raise Ms. Blocker right, Unidentified-and-Suspended Officer X wouldn't have had to punch a handcuffed man in the back of his patrol car.
“Our community has accepted behavior that motivates violence in our younger generation. It’s time for the community to take a stand against this reckless behavior and stop the violence,” he continued. “As the saying goes: It takes a village to raise a child. Guns don’t belong in the hands of children.”
So, remember: the next time you see a police officer beating a handcuffed person, remember that somewhere out there, there's a male with a gun and someone's daughter might be friends with him. Ask yourself: what's more important here? The reputation of the misbehaving officer? Or the reputation of the misbehaving officer? And then put the camera away. Because as the union sees it, the only people above reproach are the officers whose abusive actions prompt poorly-thought out and thoroughly ridiculous statements from their unions.

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Posted on Techdirt - 19 August 2015 @ 5:18am

Spanish Police Park In Handicapped Spot, Fine Person Who Caught Them For 'Impugning Their Honor'

from the the-perfect-law-for-those-who-would-be-a-law-unto-themselves dept

A question that is almost always ignored when crafting legislation is "How will this new law be abused?" In the case of Spain's horrific Gag Law (officially [and hilariously] known as the "Citizen Security Law"), the answer is, "As much as possible."

Just a couple of weeks away from a Spanish citizen being fined for calling his local police force "slackers," a Spanish woman has been fined for posting a picture of police car parked in a handicapped spot to her Facebook page.

A Spanish woman has been fined €800 (£570) under the country’s controversial new gagging law for posting a photograph of a police car parked illegally in a disabled bay.

The unnamed woman, a resident of Petrer in Alicante, south-east Spain, posted the photo on her Facebook page with the comment “Park where you bloody well please and you won’t even be fined”.

The police tracked her down within 48 hours and fined her.
If nothing else, the new law has reset law enforcement priorities. If law enforcement is insulted, the perpetrator needs to be tracked down before the trail goes cold.

According to the original report at, differing narratives have emerged. One version of the incident says the officer who parked in the handicapped spot approached the photographer and explained the situation, apparently hoping to prevent a disparaging upload. If so, it didn't take. Another version says the uploader called to apologize to the police, presumably to ward off a citation. If so, that didn't take. And yet another version says there was no interaction between police and the photographer until they showed up at her home to hand her a ticket.

What really happened isn't important, because there's the Official Police Narrative. The spokesman for the police informed Petreraldia that "in an emergency" police are allowed to park wherever they want, so as to expedite the apprehension of suspects.

The "emergency" behind this illegal parking job? An "incident of vandalism in a nearby park."

And, of course, the only other official remnant of this one-two punch of exemplary policework is the €800 ticket.

It seems the police -- if they felt so demeaned by the Facebook post (which was swiftly removed by the original poster) -- could have asked for an apology, rather than €800. Or the department could have offered its explanation of the situation (as it did!), rather than fine the citizen. But the law is the law, and as such, must be abused to the fullest extent allowable.

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