Posted on Techdirt - 23 February 2017 @ 1:02pm
California's IMDb-targeting "ageism" law looks as though it won't be able to survive the website's Constitutional challenge -- an outcome that should have been foreseen while the bill was still in its crafting phase. The law was passed to address apparent age discrimination by movie studios. For whatever reason, the California legislature decided the best way to handle this was to force a web site to stop publishing actors' ages, rather than just, you know, enforcing the state's existing anti-discrimination laws. Sure, other similar sites would also (theoretically) be affected, but IMDb is the only one that's actually been sued by an aggrieved actress over its publication of facts.
Politico's Josh Gerstein reports the presiding federal judge doesn't see much to like in the new law and has granted a temporary restraining order to IMDb while
everything gets sorted out it rolls to its inevitable victory.
A federal judge has barred the State of California from enforcing a new law limiting online publication of actors' ages.
Acting in a case brought by online movie information website IMDb, U.S. District Court Judge Vince Chhabria ruled Wednesday that the California law likely violates the First Amendment and appears poorly tailored to proponents' stated goal of preventing age discrimination in Hollywood.
The order [PDF] is only three pages long, but it's more than enough space to detail the serious problems with California's law.
With respect to the first part of the preliminary injunction test, it's difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content.
Going beyond the First Amendment issue, Judge Chhabria goes on to attack the premise underlying the ridiculous legislation.
To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of anti-discrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
The Screen Actors Guild, which supports the new law, expressed its disappointment in the judge's ruling and stated it was "looking forward" to presenting evidence that targeting IMDb for publishing actors' ages will somehow reduce discriminatory practices by movie and TV studios. I'm looking forward to that as well, although for very different reasons than SAG is. Defending indefensible laws isn't much fun for those doing the defending, but it's an incredibly entertaining spectator sport.
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Posted on Techdirt - 23 February 2017 @ 11:49am
Perhaps no entity generates more fake news than the FBI's counterterrorism unit. Several times a year, a press release is issued announcing the bust of a so-called terrorist. Almost invariably, the "terrorist" has been handcrafted through the relentless intercession of undercover FBI agents.
Here's how the DOJ website describes its latest self-crafted anti-terrorism coup:
Robert Lorenzo Hester, Jr., 25, of Columbia, Missouri, was charged in a criminal complaint with attempting to provide material support to the Islamic State of Iraq and al-Sham (ISIS), a designated foreign terrorist organization. Hester was charged in federal court based on his role in making preparations to launch a terrorist attack with persons he believed were associated with ISIS, who were actually undercover law enforcement personnel.
And here are the far more mundane and sad details behind the official statement, as provided by Murtaza Hussain of The Intercept.
Robert Lorenzo Hester of Columbia, Missouri, didn’t have the $20 he needed to buy the 9-volt batteries, duct tape, and roofing nails his new FBI friends wanted him to get, so they gave him the money. The agents noted in a criminal complaint that Hester, who at one point brought his two small children to a meeting because he didn’t have child care, continued smoking marijuana despite professing to be a devout Muslim.
This is the supposed terrorist who would have killed hundreds of people on President's Day if the FBI hadn't stepped in to intervene. But the FBI's "intervention" looks suspiciously like "encouragement…" or "entrapment."
[T]he only contact Hester had with ISIS was with the two undercover agents who suggested to him that they had connections with the group. The agents, who were in contact with him for five months, provided him with money and rides home from work as he dealt with the personal fallout of an unrelated arrest stemming from an altercation at a local grocery store.
Undercover agents began working with/on Hester shortly after this arrest. Seizing on his anti-government social media posts [good lord], the agents told Hester they could put him in touch with someone with direct terrorist connections. This "direct connection" was just another FBI agent. It was the FBI that suggested acquiring weapons. And it was the FBI who chose to take Hester seriously, despite his nonexistent terrorist group ("the Lion Guard") sporting a name that had been pulled from a cartoon his children watched.
It was also an FBI agent who suggested that even thinking about planning a terrorist attack was an irrevocable act -- and that entertaining second thoughts about committing acts of violence would be rewarded with acts of violence.
The agent cautioned Hester that once he decided to proceed there was “no turning back.” He also told Hester that under no circumstances was he to do conduct any sort of operation on his own. The agent, referred to in the complaint as UC-2, then “threatened to come back and find HESTER if he learned that HESTER reneged on the promise. For emphasis, and for the purpose of mitigating the security threat posed by HESTER, UC-2 displayed a knife and reminded HESTER that UC-2 knew where HESTER and his family lived, among other forceful words.”
After threatening his family, FBI agents continued to push Hester forward with "his" plan to commit an act of terrorism. His plans required $20 worth of supplies… which Hester couldn't afford. But Hester did promise to be more materially-supportive in the near future:
Hester promised that he would help buy ammunition for the weapons once he had received the money from his tax refund.
A lot of the FBI's standard counterterrorism M.O. is on display here. The agency prefers to work with people in desperate or dire circumstances -- people who don't have the financial independence or mental toughness needed to create and carry out plans on their own. And when they get cold feet, agents apparently suggest their dire circumstances will be made even worse. The end result is the government congratulating itself for rounding up "terrorists" that likely never would have gone beyond anti-government Facebook posts if they'd been left alone. And for the few who appear capable of committing violent acts, the government pushes these people towards extremism rather than attempt to pull them back from this precipice.
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Posted on Techdirt - 23 February 2017 @ 9:43am
There aren't many rights extended to anyone in the "Constitution-free zones" we like to call "borders." You may have rights 100 miles inland, but the government's needs and wants outweigh citizens' and non-citizens' rights wherever immigration officers roam. According to the Supreme Court, warrants are required for cell phone searches. But neither the Constitution nor Supreme Court rulings apply within 100 miles of the border, where the government's needs and wants are considered more important than the protections they can avail themselves of everywhere else in the country.
Senator Ron Wyden is looking to change that. Rather than cede more ground to the rights-swallowing concept of "national security," Wyden is looking to change the laws governing the "Constitution-free zones."
Sen. Ron Wyden will soon introduce legislation to prevent Customs and Border Patrol agents from demanding the passwords to online accounts and mobile devices from American travelers without a warrant.
In a letter to Secretary of Homeland Security John Kelly dated Feb. 20, the Democratic senator from Oregon said border searches that take place without a warrant circumvent the right to privacy and “weaken our national and economic security.”
We'll see how that sits with John Kelly. Kelly appears to be on board with the new administration's "extreme vetting" immigration stance. He's offered to take the DHS's requests for immigrants' social media account info to the next level -- moving it from a voluntary request on visa application forms to mandatory demands for account passwords. Chances are, Kelly has about as little use for citizens' rights as he has for non-citizens in general. The security of the nation is prized above presenting the appearance of a Constitutional republic to the outside world.
Given the current climate in the White House, the legislation will be facing a steep uphill grade. But while we wait for the security vs. privacy legislative fistfights to commence, perhaps DHS head John Kelly will help us pass the time by explaining exactly what it is that he feels gives him the right to search devices without a warrant and/or demand this country's visitors hand over their social media account passwords. From Wyden's letter [pdf]:
1. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password traveler?
2. How is CBP use of a traveler's password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?
3. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to data? How are such demands consistent with the Fifth Amendment?
4. How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?
5. How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?
Then again, perhaps not. Government officials are kind of used to ignoring questions they don't feel like answering. This will put Wyden back in a familiar position: repeatedly asking unanswered questions of agency officials at any Congressional hearing his opponents can't keep him from attending.
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Posted on Techdirt - 22 February 2017 @ 9:43pm
House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.
A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as "stingrays" that sweep up information about the movements of innocent Americans while tracking suspected criminals.
“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. "Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times."
What the bill would do is codify the DOJ's "Stingray Best Practices" policy, which implemented a warrant requirement for cell site simulator deployment -- albeit one that wasn't really a requirement because it wasn't statutorily-required. This would be the statutory requirement the DOJ's better-late-than-never approach to constitutionality was missing.
But the bill doesn't limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn't covered by the Fourth Amendment.
The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone's movements.
This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment's confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don't like the answer/non-answer they're presented with.
The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.
The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today's connected, always-online world. But this is not the sort of thing it's ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans' privacy. This bill, if passed, wouldn't necessarily fix what's wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.
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Posted on Techdirt - 22 February 2017 @ 2:42pm
Unless the Supreme Court decides to weigh in on this long-running SLAPP lawsuit (highly unlikely -- and unlikely to be appealed to that level), it looks like it's finally the end of the line for Dr. Edward Tobinick and his quest to silence a critic of his questionable medical practices.
Quick recap: Dr. Tobinick claimed he could treat Alzheimer's, strokes, and other neurological maladies by repurposing an immunosuppressant drug. Dr. Steven Novella disagreed with Tobinick's unsubstantiated claims and wrote a few blog posts detailing his problems with Tobinick's treatments.
Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.
Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.
Novella is not alone in his criticism of Tobinick's untested treatment methods. Early on in the case, Marc Randazza summarized the general medical community mood.
Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practice.
Hoping to avoid an anti-SLAPP ruling or the judicial scrutiny that normally comes with defamation complaints, Tobinick tried to frame his censorship pleas as trademark law violations, claiming Novella's blog posts were "commercial speech" designed to interfere with his ability to earn an income treating people with questionable drug repurposing.
The lower court didn't care much for Tobinick's arguments. It found no merit in his severely-stretched Lanham Act claims and, better yet, applied California's anti-SLAPP law to the lawsuit Tobinick filed in Florida.
Tobinick appealed. And all he's really succeeded in doing is generating more legal fees he'll be responsible for. The Eleventh Circuit Appeals Court has upheld [PDF] the lower court's decision, handing Dr. Novella, attorney Marc Randazza, and the First Amendment a significant win. (If you're a fan of oral, the arguments can be found here.)
Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick Appellants”) appeal the district court’s orders striking INR CA’s state law claims pursuant to California’s anti-SLAPP statute, twice denying amendment of the Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.
As for Tobinick's attempt to keep an anti-SLAPP law from another state from killing his Florida lawsuit, the appeals court points out that if this was an issue Tobinick wanted addressed, he needed to raise it with the lower court, rather than use the appeals process to develop unexplored options.
The Tobinick Appellants waived their challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge “what about the issue of anti-SLAPP statutes applying in diversity cases in federal court?” the Tobinick Appellants’ counsel responded “[t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.”
No exception to waiver saves the Tobinick Appellants’ claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state law claims.
The appeals court is even less kind to Tobinick's Lanham Act violation accusations -- all of which hinge on defining Novella's blog posts as commercial speech. Not only did Tobinick repurpose trademark law in an attempt to turn a baseless libel lawsuit into something that might survive the first motion to dismiss, but his Lanham Act arguments rely on a conspiracy theory Alex Jones himself might find implausible.
As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex “funneling” scheme to generate profit for Dr. Novella, in which the Tobinick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions. This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.
Even if it were more easily-connected, Novella's speech would still be protected and not in violation of the Lanham Act. The court points out Novella's medical practice has no overlap with Tobinick's. Furthermore, the content of Novella's articles -- the examination of a potentially-dangerous misapplication of immunosuppressant drugs -- is very much in the public interest, which only strengthens its First Amendment protections.
As the court points out, finding critical speech that results in revenue a violation of the Lanham Act would do serious harm to the most famous beneficiaries of the First Amendment.
To be sure, neither the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novella’s informative articles. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that “[i]f a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.”
Furthermore, as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability.
This puts Dr. Tobinick back where he was in October 2015: on the hook for legal fees because he figured the best response to speech he didn't like was a bogus Lanham Act lawsuit. And, as is of particular relevance given recent events, more courts are applying states' anti-SLAPP laws to baseless lawsuits, regardless of the jurisdiction in which they're filed.
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Posted on Techdirt - 22 February 2017 @ 10:45am
Those who thought the domestic surveillance Ed Snowden exposed was perfectly acceptable and lawful are finding it much harder to stomach with Trump in charge. The Lawfare blog, which routinely hosts articles supportive of government surveillance activities, has taken on a new tone over the past few months. The lesson being learned: if a power can only be trusted in certain people's hands, then it really can't be trusted in anyone's. This belated realization is better than none, but one wonders if the drastic change in tone would have followed an election that put Hillary Clinton in the White House.
That's not to say the first month of Trump's presidency has borne any resemblance to a "peaceful transition of power." The federal government isn't just leaking. It's hemorrhaging. Underneath the recent ouster of Mike Flynn, Trump's former National Security Advisor, is something disturbing.
What's disturbing isn't the surveillance -- although in "normal" circumstances it might be. Flynn was dumped because recorded phone calls captured him discussing sanctions with Russian officials. This domestic surveillance isn't unheard of. The fact that this information -- including the content of the calls -- was leaked to the public is more notable.
Calls to foreign officials are fair game for US surveillance efforts. The last-minute removal of restraints on sharing unminimized US persons data/communications by the Obama administration just served to ensure Flynn's calls would end up in the hands of multiple federal agencies. The timing of the loosened restrictions is worth noting though, as Marcy Wheeler does in this post about the Flynn ouster.
Finally, remember that for a great deal of SIGINT, FBI wouldn’t need a warrant. That’s because Obama changed the EO 12333 sharing rules just 4 days after the IC started getting really suspicious about Flynn’s contacts with Russia. That would make five years of intercepts available to FBI without a warrant in any counterintelligence cases, as this one is.
But what Lawfare's Adam Klein is concerned with isn't the sharing of unminimized communications between agencies. As he points out in his post, all of that's perfectly legal. What he's more concerned with is the actions of the intelligence community, which has made all of this public.
[T]his case illustrates why surveillance law treats U.S.-person information with the same healthy fear we associate with nuclear waste and biohazard material—that is, with the vigilance reserved for things that are inherently dangerous if not closely guarded. As Eli Lake wrote this week in Bloomberg View, selective leaking of U.S.-person information “gives the permanent state” (or political appointees entrusted with the information) “the power to destroy reputations from the cloak of anonymity.” Even if not leaked to the press, such information can be misused: J. Edgar Hoover and his subordinates infamously used salacious information gleaned from FBI surveillance of Martin Luther King, Jr., to pressure King to retreat from public life.
That's what's happening and that's a cause for concern. The NSA and others have always had these powers, but we were assured they wouldn't be abused. In this case, the abuse isn't in the collection or dissemination (all of it now "lawful"), but in the use of leaked information to kick out a National Security Advisor.
Trump has made few friends in the intelligence community since he became president, comparing the CIA to Nazis and making comments about unprofessional behavior. The problem for Trump is he's fighting with agencies particularly well-armed to take him down. But that's not what we want from our intelligence agencies. They're not tools of government accountability. They're tools for totalitarianism restrained only by oversight and a rigorous set of rules. (I mean, in theory...) But the IC appears to be ignoring the checks and balances put in place to guard against the destruction of the government's head by its body.
It's one thing to cheer for the public flailing of a President you don't like. It's quite another to cheer on the dangerous, easily-abusable network of domestic surveillance that makes it possible.
So, the issue here is more the leaks than the surveillance. The surveillance has its own problems, but the willingness to leak information damaging to US persons -- even if it prevented someone who possibly shouldn't be a National Security Advisor from keeping his job -- is a disturbing indicator of just how much power these agencies (at least 16 of them) now wield, thanks to information sharing.
The other problem is the hypocritical way Trump and his supporters are dealing with the leaked info. Trump wants an investigation to uncover the source of the leaks. Fair enough (albeit somewhat hypocritical, given his love of Wikileaks...). But the House Oversight Committee and Trump himself have no interest in taking a deeper look into the allegations against Mike Flynn. Nonsensically, House Oversight Committee head Devin Nunes said the recording of the phone calls was itself "disturbing." This is something someone involved in intelligence oversight should already know is a perfectly lawful interception under statutes he helps shape and define.
It's a dangerous time to be a whistleblower, as the administration appears far more interested in going after leaks it doesn't like than potentially-illegal behavior by its own staff. And it's just as dangerous to be the target of intelligence committee animosity. No more dangerous than it's always been, but in recent days, we've been given a pretty clear picture of how quickly lawful surveillance can ruin a person's life.
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Posted on Techdirt - 22 February 2017 @ 3:17am
The European Commission is still (slowly) moving forward with its plan to dump a link tax on service providers like Google, Facebook, etc. in hopes of propping up local news outfits. The plan has been in the works for a couple of years now and it's looking like the longer the planning goes on, the less likely it is to result in something that makes its advocates happy.
A long report from Politico details the current state of this doomed venture. And it is doomed. Even if implemented in a way that makes news outlets happiest, the end result will be less incoming traffic from some of the most-used sites in the world. Some news agencies aren't so sure this is the way forward.
“Other stakeholders are challenging the provision … questioning not only whether this is the best way of addressing concerns of press publishers vis-a-vis digital technologies, but also questioning whether the Commission proposal is adequately restricted to such concerns,” Therese Comodini Cachia, the Maltese rapporteur shepherding the proposal through Parliament, told POLITICO.
Translation: Opponents of the plan, including some small web publishers, worry it could choke traffic to their sites by creating a thicket of regulations that will dissuade Google and other platforms from driving users to them. These critics also argue that a publisher’s right will create a “link tax” (a phrase that supporters liken to a slur) but won’t achieve its backers’ main aim: to save the news sector’s broken business model.
That's the problem with short-sighted legislation like this: it fails to consider the options available to those hit with the link tax. And it's not as though there's no information available that indicates what the future would hold for supposed beneficiaries of the link tax. Past efforts in Spain and Belgium to institute a link tax (targeting Google) resulted in the search engine pulling out of the market by dumping any search results that might have resulted in tax liability.
Then there are the numerous ways it might affect the average computer user -- beyond finding fewer local articles on Facebook or fewer search results when Googling.
The plan’s loudest critic has been Green MEP Julia Reda. Originally elected as a member of the Pirate party, Reda’s encyclopedic knowledge of copyright has made her a respected adversary for the publishers. She’s shown a particular knack for condensing the legalese of copyright reform into alarmist soundbites. She has argued, for example, that the Commission proposal could affect how articles are shared on Twitter, something both the Commission and the publishers deny.
As is to be expected, the lack of forward progress is being blamed on Google. Proponents of the link tax are complaining about Google's lobbying efforts in Europe, as though the company should do nothing more than sit down, shut up, and start paying FOR DRIVING TRAFFIC TO THEIR WEBSITES.
Opponents of the tax say it's not up to the EC to force other companies to prop up struggling businesses. Those advocating for the tax say it's not up to the EC to question the soundness of their business decisions. It's about ownership… or so they claim.
The publishers counter that it’s not up to Parliament to analyze the merits of their commercial strategy. What’s at issue is a basic question of ownership, and the publishers say it is incumbent on legislators to protect their rights. In the pre-digital age, such protections weren’t necessary because news content didn’t fall victim to large-scale piracy. The internet, the publishers argue, has changed that because articles can be disseminated far and wide with a few clicks.
This attitude speaks directly to the concerns raised by Green MEP Julia Reda. The publishers view sharing as piracy -- a view not shared at all by millions of people who post links on social media and, again, help drive traffic to the sites. Very few people share news articles by taking entire posts and redistributing them through third parties. And Google -- the top target in the proposed legislation -- does nothing remotely approaching this bizarre definition of piracy with its links to sources and small snippets of article text.
That disconnect between what publishers feel is "right" and what the rest of the world believes is acceptable is yet another nail in this legislation's coffin. Even if it passes, it won't do what publishers hope it will. Google will stop linking to European content. People will find less and less local content being shared. And for all the complaining about Google's lobbying efforts, publishers have no problem touting their own as a reason the terrible proposed legislation might one day become law.
Despite the skepticism, the publishing lobby remains sanguine, confident that its deep political connections will ultimately see the legislation through.
“The news media sector is optimistic that policymakers agree on the need for a publishers’ right,” said Wout van Wijk, executive director of News Media Europe, a lobbyist for press publishers. “Such a right will create the legal certainty needed for further investments and innovation to guarantee a free and pluralistic media landscape in Europe.”
Granting this right won't fix publishers' problems. It might give them more ways to sue, but flagging new agencies can't be legislated back into fiscal health -- especially if it means levying taxes on US companies to prop up European entities. In the end, publishers may get what they THINK they want, but they won't be seeing any return on the lobbying investment. Anything that discourages the free (as in "open") dissemination of information tends to work out worst for those compiling the information. A link tax is just a band-aid to be applied to the internet's surface, unable to staunch the blood flow of the new publishing industry's internal wounds.
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Posted on Techdirt - 21 February 2017 @ 4:46pm
In 2009, April Yvette Smith was arrested on drug dealing charges and spent 80 days in jail. The charges were ultimately dropped by the district attorney, but by the time it happened, Smith had already lost her job. The same can't be said for the officer who obtained her arrest warrant. His job was always secure. The only thing he's lost -- seven years after the fact -- is his immunity from Smith's civil rights lawsuit.
The chain of events leading to Smith's wrongful arrest are as horrible as they are stupid. Somewhere between Barney Fife and the banal evil of law enforcement ineptitude lies Officer Jason Munday. It starts with a "wired" confidential informant and ends in an indifferent "investigation" that sounds as though Munday just got bored sitting around the office.
Here's how it began, as detailed in the Fourth Circuit Court of Appeals opinion [PDF]:
On March 10, 2009, officers Munday and McGinley conducted an undercover investigation using a confidential informant, Rufus Lynch Sr. The officers searched Lynch, wired him with audio and video recorders, and gave him sixty dollars. Lynch then went to 728 East Pine Street, where he purchased crack cocaine from two individuals. After the transaction, Lynch returned to the officers. He told the officers that he purchased drugs from April Smith, a black female. The detective’s notes identify April Smith as such: “B/F April Smith,” and “April B/F skinny $20 1 rock in plastic, Smith 40s.”
So far, so good… except for the many small details that collaborated to ensure the recording was useless.
Because the audio recorder had no batteries, it failed to record the transaction. And because the camera wired to Lynch pointed in the wrong direction, the video recording did not capture the drug sale. The video instead shows an unidentified black woman sitting on a front porch, and two other individuals standing on the porch.
Sending out someone to collect recordings and ending up with something approaching hearsay isn't the best way to begin an investigation. But that didn't stop Munday from moving slowly and fitfully towards an arrest he had no probable cause to make.
At some point during the next nine months, Munday scanned police databases for residents of Lincoln County named April Smith with criminal records. He then stumbled upon April Yvette Smith, a black woman who lived in Lincoln County and had been convicted of selling crack cocaine in 1993, 1997, and 2005. His search also revealed at least two other April Smiths with criminal records. He had no indication that the woman who sold crack cocaine to Lynch in March 2009 had a criminal record, or was even a Lincoln County resident. And the record reflects no further attempt by Munday to investigate Smith or connect her to the crime.
Having wrapped up his ultra-cursory investigation, Munday applied for an arrest warrant, snagging one of the April Smiths he had come across during his desktop browsing -- nine months later and eleven miles away from the site of the drug sale that wasn't properly recorded.
April Smith spent the next 80 days in jail, facing potential prosecution. Munday presumably went back to half-assing his way through his law enforcement career.
The lower court granted Munday immunity, stating that probable cause existed to arrest pretty much any April Smith who fit at least part of the description. The Appeals Court disagrees.
[E]ven ignoring Smith’s weight, a criminal history, common race, common gender, and unfortunately common name is not enough to establish probable cause.
When applying for an arrest warrant, Munday simply did not have enough information for any reasonable or prudent person to believe there was probable cause. He lacked any information connecting Smith’s conduct to the contours of the offense, and certainly lacked enough evidence to create any inference more than mere suspicion.
As the court points out, Munday did nothing that even approached the definition of "investigation." All he did was browse a criminal record database and decide someone named April Smith was going to get a rap and a ride. For all the policework that went into this, Munday may as well have used a dartboard to generate his "probable cause."
[T]o find the offender, Munday merely ran a broad search in the department’s database of individuals with criminal histories, looking for a woman of the same name. And when he found multiple individuals, at least two of whom were black women named April Smith weighing between 130 and 140 pounds, he chose one for no immediately apparent reason.
There is no evidence that Munday attempted to identify Smith as the black woman in the video footage. There is no evidence that the officers showed Lynch a photo of Smith to establish the identification. There is no evidence that the officers investigated Smith herself, or found any indication that Smith frequented the site of the drug sale that day, that month, or at all. Indeed, there is no explanation whatsoever for the nine-month delay between Lynch saying a black woman named April Smith sold crack cocaine to him and the issuance of an arrest warrant for April Yvette Smith.
Citing a previous case handled by this circuit, the Appeals Court calls Officer Munday out for his abject failure to perform any investigative work whatsoever before moving forward with an arrest.
“Horner was ‘not required to exhaust every potentially exculpatory lead or resolve every doubt’” to show probable cause. Id. at 190 (quoting Miller v. Prince George’s County, 475 F.3d 621, 630 (4th Cir. 2007)). But he still had to conduct some level of investigation. And he did. Munday conducted none.
And so, the court concludes Munday can't have the immunity granted to him by the lower court. The warrant he applied for was so lacking in probable cause, the court cannot possibly extend him this legal nicety.
[E]ven a glance shows that Munday was unreasonable if he believed he had probable cause. Smith did have a criminal history for possessing and selling cocaine. But as discussed above, Munday had no evidence about her conduct whatsoever, let alone any evidence connecting her to the crime in question. It would be unreasonable for any officer to view Munday’s dearth of evidence as sufficient to establish probable cause. As a result, qualified immunity does not apply.
Because Munday failed to do his job, April Smith (allegedly) lost hers. Smith has already faced the consequences of Officer Munday's actions. Now, it's Munday's turn.
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Posted on Techdirt - 21 February 2017 @ 11:52am
In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.
Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:
Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”
Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”
Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:
Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”
Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.
After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.
First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.
At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established.
The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.
We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities.
This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.
We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.
To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.
In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.
The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.
Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.
The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552.
The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.
To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.
Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.
The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.
If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.
Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:
Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.
Except that most people "waiting for a supervisor" don't do so while:
b.) sitting in the back of a locked squad car
The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.
The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.
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Posted on Techdirt - 21 February 2017 @ 9:40am
President Trump appears to have thrown his support behind asset forfeiture, even as the issue has begun reaching critical mass in the mainstream media. (It's been thoroughly covered by more libertarian publications like Reason for years.) In addition to not being able to "see anything wrong with it," Trump jokingly suggested he'd ruin the careers of politicians mounting reform efforts.
His recent executive orders appear to back this "gloves off" approach to criminal justice. In addition to singling out immigrants as troublemakers, the orders ask law enforcement officials to take a look around and see if they're being constrained by any state or federal laws. Presumably, any recent forfeiture reform legislation would fall under this heading as it prevents law enforcement agencies from acting in the way they've become accustomed: seize first, convict later... if at all.
With Jeff Sessions in place as attorney general, asset forfeiture appears to be headed for the wrong kind of renaissance. Sessions is a firm believer in the general rightness of taking aways citizens' property and due process simultaneously because, as he sees it, the process only affects people who've "done nothing but deal dope their whole lives."
Now, there's this: Rep. Jim Sensenbrenner is offering up another bill with a clumsily reverse-engineered acronym -- one that could further pervert the incentives of asset forfeiture. (via Watchdog.org)
Today, Congressman Jim Sensenbrenner introduced the Build Up Illegal Line Defenses With Assets Lawfully Lifted (BUILD WALL) Act of 2017 in the House of Representatives.
This legislation would require the U.S. Attorney General to provide a detailed report on the amount of annual profits brought into the United States by Mexican drug cartels, as well as a study of how the Department of Justice can increase assets seized from such cartels.
Additionally, the BUILD WALL Act would use money forfeited from drug traffickers to fund increased border security on the U.S./ Mexican border. This defense could include a wall, another type of physical barrier, and/or a technology-supported solution. The use of this funding would ease the financial burdens on taxpayers and help build stronger relations between the United States and Mexico while fighting back against drug trafficking in both countries.
While Sensenbrenner's statements mention Mexican drug cartels, the reality is that the billions the cartels make from drug sales are safely back in Mexico and (mostly) out of reach of US law enforcement. That leaves everyone on this side of the border, who can now be viewed as unwilling donors to the cause. If Trump's ever going to be able to, uh, BUILD WALL, he's going to need several billion more dollars than was stated in his original estimate. That's where Mr. and Mrs. Interstate Traveler come into play. A few hundred dollars here and there, and eventually it adds up to real wall-building money.
This means the federal government would be looking to take a larger share of any revenue generated from asset forfeiture in partnerships with local law enforcement. This may not make the local boys happy, but considering many of them use these partnerships to route around local forfeiture restrictions, they can't complain too much about the slightly-smaller cut of the proceeds, when the alternative might be nothing at all.
Lawmakers who support DJT's Folly are casting about in hopes of landing a few billion in wall funding. Mexico has only extended a middle finger in response to the Wall Plan, so it's up to us Americans to make a billionaire's dreams come true. If that means having our cash, cars, and houses seized without accompanying criminal allegations, much less convictions, so be it. The security of our nation depends on our unwilling sacrifice. This wall must be built to ensure our nation is only susceptible to the thieves already in our midst.
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Posted on Techdirt - 21 February 2017 @ 6:33am
It looks like Apple decided to drop in on flyover country in hopes of thwarting a "Right to Repair" bill pending in the Nebraska legislature. It did not go well.
[T]he prospect of a Cupertino-based megacorporation losing business to local repair shops isn't a very sympathetic argument at the Nebraska statehouse. And so Apple has tried a slew of other tactics, according to state Sen. Lydia Brasch, who was recently visited by Steve Kester, an Apple state government affairs specialist.
"Apple said we would be the only state that would pass this, and that we would become the mecca for bad actors," Brasch, who is sponsoring the bill, told me in a phone call. "They said that doing this would make it very easy for hackers to relocate to Nebraska."
Apple probably expected its heavy-handed (and stupid -- more on that in a bit) "suggestion" to be taken more seriously by podunk legislators in the middle of nowhere. Unfortunately for Apple, Brasch isn't just a legislator in a state mainly known for corn and football-as-religion.
Brasch is not only an Apple customer, but she's a farmer who has had to deal with plenty of repair-blocking BS from companies like John Deere. She also has a background in computer science and an apparent tendency to not let corporate lawyers talk down to her.
Not only did Apple pick the wrong legislator to threaten, its threat is incoherent. I've spent most of the last 15 years in the Midwest and, trust me, it would take far more than a right-to-repair bill's passage to make Nebraska a mecca of anything. (Beyond college football, he said to head off the Cornhusker faithful most likely already demanding a retraction…)
Then there's the thing about "hackers." There's more than one type of hacker, but Apple dropped it as a pejorative term in hopes of conjuring images of hoodied figures sitting in dark rooms with the local SWAT team on speed dial and deploying some sort of encryption… you know, the evil kind.
All sorts of nonsensical arguments are already being raised in response to a handful of right-to-repair bills around the nation. The corporate version of "you'll shoot your eye out" has been deployed to portray DIY repair jobs as hospitalizations waiting to happen.
The idea that it's "unsafe" to repair your own devices is one that manufacturers have been promoting for years. Last year, industry lobbyists told lawmakers in Minnesota that broken glass could cut the fingers of consumers who try to repair their screens, according to Gay Gordon-Byrne, executive director of Repair.org. Byrne said she will also testify at the Nebraska hearing and "plans to bring band aids."
Apple's take is this: the "hacker mecca" thing plus a very short parade of not-all-that-horribles.
Brasch said the representatives made two other main arguments: They said repair could cause lithium batteries to catch fire, and said that there are already enough authorized places to get iPhones repaired, such as the Apple store.
Define "enough." As Brasch points out, getting her devices repaired "conveniently" involves setting up an appointment at the nearest Apple store, which is 80 miles from where she lives. Apple certainly doesn't mind taking money from rurally-located customers when selling devices. But it's not nearly as willing to make repairing their purchased products actually convenient.
And it's not just Apple. Other phone manufacturers have spoken to Brasch in an attempt to get her to drop the legislation, or at least rewrite it in their favor.
"They said just take out the 'phone' part of the bill and we'll go away," Brasch said. "That's tempting, but we need to repair consumer technology too."
Brasch's bill sprung out of her frustration with repairing her farm's equipment, which has been made increasingly difficult by John Deere's refusal to allow anyone other than repair shops it makes to profit from touching its products. Phone manufacturers have the same attitude. They express faux concern about consumer safety while preventing consumers from having any control over how their purchased devices are repaired. The concern most of these companies have for their consumers only extends as far as their ability to purchase add-ons, new products, and inconvenient repairs at non-competitive prices. The battle is over bottom lines, not consumer safety, no matter how it's spun and no matter how many hacker-based horror stories are spun.
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Posted on Techdirt - 17 February 2017 @ 10:49am
In what looks to be the FNG currying favor with the new boss, rookie Congressman Jim Banks is introducing a bill that would turn the DHS's social media prying from something it would like to do to something it has to do.
Congressman Jim Banks (IN-03) today will introduce the Visa Investigation and Social Media Act (VISA) of 2017, legislation to strengthen the vetting process for visa applicants. The bill is the first piece of legislation that Congressman Banks will introduce.
While CBP and DHS have been asking incoming foreigners for social media info for a while now, the process has been voluntary -- or at least as voluntary as any process can be when one side holds all the power. New DHS Secretary John Kelly suggested this would expand further in the near future, moving from requests for social media handles to demands for account passwords.
Rep. Banks appears to be making a move to codify the DHS's requests for social media info. It doesn't go so far as to demand account passwords, but it would make examination of foreigners' social media accounts part of the vetting process. The bill's text hasn't been posted yet, but here's what Rep. Banks' website says the legislation will include.
The VISA Act of 2017 would require the Department of Homeland Security to include the following in the background check of any individual applying for a visa to the United States:
A review of the applicant’s publicly available social media activity (i.e. public tweets, YouTube videos, Facebook photos and posts);
An interview of each applicant who is age eleven years or older;
A fraud-prevention check of each applicant’s documentation; and
A requirement that the applicant provide an English translation of his or her documentation.
Rep. Banks says this is no different than the process companies use to vet new hires. That's a truly bogus comparison. While some companies view applicants' social media posts when considering them for employment, very few are demanding social media account information as part of the application process. Those that do tend to drop the policies as soon as they're made public. (And child labor laws pretty much rule out interviews of tweens and teens.)
What's most troubling about this new rep's bill is its complete uselessness. The only real change it makes is dropping three years from the interview requirement (from 14 to 11). Everything else is something Customs already does. Vetting of social media posts has been part of the process for months. Banks' bill just makes it a requirement for the DHS to perform social media checks on all applicants. The legal ball will get pushed downhill, which will force applicants to hand over this info. ("In compliance with [insert US Code info here], DHS/CBP require applicants to provide social media account information, etc.") This may make it easier for the DHS to start demanding passwords, but the bill limits itself to public posts.
As for the rest of it, it's completely redundant. Extensive background checks are run on all applicants against several databases and Customs has required an English translation of visa applicants' documentation for years.
Banks likes corporate analogies so he should be aware his effort looks like a new hire trying to make his mark -- not by being a valuable addition to the company -- but by enthusiastically offering up worthless suggestions that signal your "Company Man" virtues to upper management.
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Posted on Techdirt - 17 February 2017 @ 9:47am
President Trump's three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation -- especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these "law and order" orders, implying that they were to blame for much of the perceived crime problem.
That's in addition to some off-the-cuff remarks Trump made during a meeting with several sheriffs, where he suggested there was no need to reform asset forfeiture and joked that those pushing reform efforts should have their careers ruined by the nation's top (proxy) cop: Donald Trump.
The president may unequivocally have law enforcement's back for the next four years (at minimum), but the nation's top cops don't have his. Or, at the very least, they don't agree with Trump's hardline, anti-crime, pro-cop-always stance. In a report [PDF] filled with suggestions for the new president, a coalition of police chiefs, district attorneys (including Manhattan decrypto warrior Cyrus Vance), and other police officials agree that the ideas Trump is pushing so far are only going to make the nation's policing -- and the nation's relationship with police -- worse.
While Trump has been calling for longer sentences, increased law enforcement presence, and projected a zero tolerance approach to everything until crime rates lower (or at least his perception of crime rates -- the stats don't back up his claims), this group says throwing the book at everyone is just going to perpetuate criminal activity.
We urge the Administration and Congress to carefully consider new crime policies, and adopt and support those that fight crime effectively. Decades of experience have convinced us of a sobering reality: today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety. We need not use arrest, conviction, and prison as the default response for every broken law. For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.
Once inmates are released, they struggle to find employment, housing, and other necessities that would re-integrate them into society. Facing few legitimate opportunities, many ex-offenders return to crime. The higher the incarceration rate for such offenders, the less safe the citizenry. We must instead consider those policies that better preserve public safety. Dangerous, violent offenders should be behind bars, but incarceration is not necessarily the best tool to put non-violent offenders back on the road to productive, law-abiding lives.
The report also points out that throwing money at the problem hasn't helped either. Money is useful, but only if it's spent on useful activities.
Each year, the federal government spends billions in criminal justice grants to support overwhelmed police department and government budgets. For example, the Department of Justice offered $5.5 billion in grants to local agencies in 2016. These dollars fund law enforcement efforts to investigate and prosecute crimes. However, to a large degree, these outlays are not targeted at fighting violent and serious crime. In fact, some of these dollars are expended on antiquated law enforcement tools, such as dragnet enforcement of lower-level offenses. This misses an opportunity to prioritize resources towards more effective ways of fighting violent and serious crime in the states. Without such change, states will continue inefficient enforcement techniques.
Also discussed are sentencing reform, increased efforts to better deal with drug addicts and the mentally ill (something that doesn't involve regular deployments of force/jail time) and a heavier focus on community policing. What it doesn't contain are suggestions to roll back all of this to the mid-80s and pretend we have something like a crack epidemic to attend to. The conclusory paragraph says -- contrary to Trump's viewpoint -- that efforts in these areas will result in better law enforcement and safer communities.
But while many police officials and prosecutors disagree with Trump, police unions disagree with police officials (and prosecutors) -- albeit without going through the trouble of producing a report that explains their side of things.
“I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”
These comments are illuminating. In both cases, constitutionally-adherent policing is viewed as "soft." That's how far the pendulum has actually swung, despite Ramos' assertion to the contrary. Many police officers act as though the Constitution only applies to people they never interact with. For everyone else, their rights are whatever rights the officer feels they have at the time. As long as these rights don't prevent them from doing what they want, citizens are free to enjoy them. If not, take the complaint to court where various levels of immunity will routinely allow Constitutional violations to go unpunished.
A long list of DOJ investigations confirm law enforcement's generally negative attitude towards the people they police. First, an "us vs. them" attitude dehumanizes anyone not wearing a badge. Effective policing is unconstitutional policing, and cops aren't going to let a bunch of rights get in the way of cracking heads and asserting their authority. Undoubtedly, officials like Canterbury and Ramos view sentencing reform, community policing, curbing non-essential arrests, handling mental illness with more care, etc. as "soft" as well. And the new president appears to be onboard with this backwards thinking -- where adhering to the Constitution is a luxury a supposedly-besieged law enforcement community can no longer afford.
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Posted on Techdirt - 16 February 2017 @ 3:43pm
Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.
This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.
During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."
While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via FourthAmendment.com)
[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.
The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.
Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.
There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.
Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.
Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).
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Posted on Techdirt - 16 February 2017 @ 11:57am
We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.
How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.
The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.
If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.
Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.
The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.
The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.
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Posted on Techdirt - 16 February 2017 @ 9:47am
Credit where credit is due: Trump has done more to preserve the full CIA Torture Report than Obama ever did. On his way out the door, the DOJ fought on his behalf in federal court, arguing against an order to deposit the full report with the court clerk for preservation in the ongoing trial of Abd al-Rahim Al-Nashiri, who has alleged he was waterboarded while detained by the CIA.
Barack Obama did stuff one copy of the full report in his presidential archives before Trump took over, perhaps in response to fears that the incoming president might make the whole thing vanish. Trump did mention his support for the use of torture on more than one occasion, and it would have been somewhat inconvenient to have an official document laying around saying torture is bad and the US shouldn't do it.
Maybe it's oneupmanship or maybe the Trump's legal counsel feels it has too much on its plate already, but as the New York Times' Charlie Savage reports, Team Trump is handing over a full copy of the Torture Report to the court as requested.
[A]s the Obama era came to an end, two Federal District Court judges for the District of Columbia ordered the executive branch to provide a copy of the report to the court’s security officer, and today, on the deadline set by one of them, the Trump administration complied rather than appeal.
A one-page notice of compliance [PDF] was issued by the White House on February 10th.
Respondents are filing this notice to advise the Court that, in accordance with the orders entered in the above captioned cases on December 28, 2016, and January 23, 2017,2 on February 6, 2017, the Government deposited for the Court Information Security Officers (CISOs) for secure storage a complete and unredacted electronic copy of the Senate Select Committee on Intelligence Committee Study of the CIA’s Detention and Interrogation Program (2014). Specifically, the Government deposited the electronic copy that had been previously delivered to the Department of Justice Office of Legislative Affairs.
The last sentence of the notice kills me. The government apparently carried the electronic copy from the DOJ's Office of Legislative Affairs to the court clerk. The clunky wording suggests this copy no longer resides at the DOJ and that the court has this particular copy of an electronic document in its hands -- one that could be copied infinitely with no discernible loss in quality or content.
Considering the full report is still classified, there are definitely plenty of dissemination control procedures in place. But without any further information to go on, the notice gives the appearance that the DOJ Office of Legislative Affairs no longer has a copy of the full report. So, that can be put on the scorecard of places the document no longer can be found, even though it could be distributed anywhere with minimal effort, cost, or replication of anything more than 1s and 0s.
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Posted on Techdirt - 16 February 2017 @ 3:40am
Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.
As to Section 230, the court found that Google's delisting efforts weren't in "good faith." The reason cited was e-ventures' claim that the delisting was in "bad faith." So much for this seldom-used aspect of Section 230: the "Good Samaritan" clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for "viewed in the light most favorable to the non-moving party." Apparently, Google's long history of spam-fighting efforts is nothing compared to an SEO wrangler's pained assertions.
The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Google's search rankings were protected speech, its statements about how it handled search engines weren't. And, for some reason, the court felt that Google's ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its "editorial judgment."
It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.
Fortunately, this wasn't the final decision. As Eric Goldman points out, last year's denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But there's not much to celebrate in this decision as the court has (again) decided to route around Google's Section 230 "Good Samaritan" defense.
Regarding 230(c)(2), the court says “spam” can qualify as “harassing” or “objectionable” content (cite to e360insight with a but-see to the Song Fi case). Still, the court says e-ventures “brought forward enough circumstantial evidence” about Google’s motivations to send the case to a trial. By making it so Google can’t even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.
Had it ended there, Google would be still be facing e-ventures' claims. But it didn't. The court takes another look at Google's First Amendment claims and finds that the search engine provider does actually have the right to remove "spammy" links. Beyond that, it finds Google even has the First Amendment right to remove competitors' content. From the order [PDF]:
“[T]he First Amendment protects as speech the results produced by an Internet search engine.” Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice of material to go into a newspaper . . .—whether fair or unfair—constitute[s] the exercise of editorial control and judgment” that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.
And the court walks back its earlier conclusion -- the one that seemed to find profit-motivated "editorial judgment" to be unworthy of First Amendment protections.
Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.
The case is now dismissed with prejudice which bars e-ventures from complaining about Google's delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldn't. It's unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:
Of course Google can de-index sites it thinks are spam. It’s hard to believe we’re still litigating that issue in 2017; these issues were explored in suits like SearchKing and KinderStart from over a decade ago.
The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldn't prevail.
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Posted on Techdirt - 15 February 2017 @ 3:43pm
CSIS (Center for Strategic and International Studies) has just released its report on encryption and it comes to the same conclusions many other reports have: encryption is good for everyone and law enforcement fears are overstated and mostly-unrealized. (h/t Kevin Bankston)
The report [PDF] opens up with this statement:
It is in the national interest to encourage the use of strong encryption. No one we interviewed in law enforcement or the intelligence community disagreed with this.
The disagreement comes when law enforcement is prevented from pursuing investigative leads because of encryption. According to FBI Director James Comey and Manhattan DA Cyrus Vance, encryption is already a huge problem for law enforcement and will only get exponentially worse in the next few years. The CSIS report rebuts both of these statements.
While encryption use is growing rapidly, the share of traffic that is both of interest to law enforcement and unrecoverable is still relatively small. Most companies use encryption that allows law enforcement agencies to recover plaintext data. Most e-mail, if it uses encryption, also allows for recovery. Currently, an estimated 18 percent of global communications traffic is end-to-end encrypted. It is estimated that 22 percent of communications traffic will be end-to-end encrypted by 2019.
This is far from the encryption apocalypse promised by Comey and Vance. There's an incremental increase taking place, not an exponential one. What could pose serious problems, though, is encryption-by-default on smartphones. As the report points out, if Android devices go the way of iPhones, 99% of the world's phones would keep law enforcement locked out.
But that's only if law enforcement isn't able to access data and communications through device manufacturer/service provider cooperation, third-party app developers, email providers, and other, more old-fashioned techniques. One sure way to beat device encryption is to obtain the passcode from the user. This won't help much when the phone's owner is dead or can't be located, but compelling the production of a password is still far from settled, constitutionally-speaking. For phones secured with a fingerprint, owners are likely out of luck. A couple of courts have already reached the conclusion that providing a fingerprint isn't testimonial and has no Fifth Amendment implications.
CSIS could have put together a better estimate on how many investigations are thwarted by encryption, but law enforcement agencies -- even those fronted by encryption opponents -- aren't interested in sharing this data with the public. The report points out that the problem remains mostly theoretical. Without data, all we have are assertions from law enforcement officials that something must be done. Failure to legislate backdoors or bans will apparently lead to a sharp uptick in criminal activity… except that's not happening either. The report points out that there's no data linking increased default encryption to increases in criminal activity.
As for the world's terrorism, encryption is seldom a barrier to investigations or surveillance. There's no shortage of access points to intercept communications while they're still decrypted (or post-encryption stripping). According to the CSIS report, 90% of the world's instant messages are still accessible by law enforcement, even without interception. With surveillance data-sharing being the new normal in the US, law enforcement agencies will be able to dip into NSA collections to obtain communications that might otherwise be inaccessible through a suspect's device.
The report notes that there's likely no consensus to be reached on the encryption issue. Because it protects both criminals and the innocent, it's difficult to see a nation's government -- at least those in the Western half of the world -- deciding to eliminate innocents' protections in hopes of nabbing a few more criminals. In the United States -- where certain rights have been long enshrined (if far too frequently ignored) -- the chance of anti-encryption legislation remains lowest. And, as the report's authors note, if the US doesn't make a move to curb encryption, it's unlikely the rest of the free world will do so on their own.
The law enforcement agencies making the most noise about encryption are doing the least to help their own cause. Most of what's offered is anecdotal, rather than data-based. According to the FBI's own testimony, it only has about 120 inaccessible phones in its possession. As for other law enforcement agencies, the numbers are mostly unknown. Those that have chosen to make their numbers public have failed to show anything more than the expected rise in inaccessible phones due to default encryption. While the locked devices may number in the hundreds (Cy Vance's office says 423 locked phones were seized in a two-year span, which -- according to the office's numbers -- is still only a third of the devices in law enforcement custody), they're still in the minority of those obtained.
These numbers will increase as the use of encryption increases, but if law enforcement and intelligence agencies don't like the way the future looks, they really only have themselves to blame. The report notes that the Snowden leaks -- which detailed massive surveillance programs operating under almost-nonexistent oversight -- prompted an encryption revival, both in terms of individuals doing more to ensure their privacy as well as well as device manufacturer encryption implementation.
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Posted on Techdirt - 14 February 2017 @ 10:44am
Kamala Harris -- former California Attorney General and current US Senator -- may have failed in her attempt to take Backpage down, but her dubious legacy lives on. The same day the US Supreme Court denied certification to an appeal of a decision in favor of Backpage and its Section 230 protections, Backpage shut down its adult ads rather than face additional prosecution/persecution from misguided politicians like Harris.
While all those who went after Backpage pat themselves on the back for making NO DIFFERENCE WHATSOEVER in the battle against sex traffickers, those involved in the day-to-day work of tracking down sex traffickers down aren't nearly as thrilled.
As has been noted here on multiple occasions, shutting down a service used by some for illegal activity just buries the illegal activity even deeper underground. Backpage's adult ad closure means traffickers will be moving to other venues -- ones not being actively watched by law enforcement, no doubt including sites they're not even aware of. As for sex workers who used Backpage to advertise adult services, they've simply moved their ads to other sections of the site. So, all the grandstanding has done nothing to harm sex traffickers. It has done a bit of damage to sex workers. But it's caused the most harm to law enforcement.
David Meyer Lindenberg of Fault Lines points out that those actually involved with the fight against sex trafficking are angered by the vindictive prosecution of Backpage. It may have helped net Kamala Harris a new job where she can screw things up at the federal level, but it's done nothing to combat trafficking.
He highlights a handful of quotes from a Miami Herald article on the Backpage adult ad shutdown.
“It would be a mistake for investigators or prosecutors to assume that trafficking will decrease because of the shutdown of Backpage’s escort ads,” said Jane Anderson, a former Miami-Dade assistant state attorney who now works for AEquitas, an anti-human trafficking resource organization for prosecutors.
“In fact, investigators and prosecutors must now be even more proactive and resourceful to uncover trafficking that is occurring on lesser known websites, including other areas of Backpage.”
“It’s a symbolic crusade,” said Kimberly Mehlman-Orozco, an author and criminology professor at George Mason University who serves an expert witness in human-trafficking cases. “They’re trying to get some accolades and look like the heroes. It’s having a negative effect on the ability for law enforcement to rescue victims and prosecute offenders. The best we can do is facilitate the capabilities of police to investigate.”
That's the damage done whether or not you believe Backpage was used by sex traffickers. Realistic stats on sex trafficking are almost nonexistent and almost any law enforcement sweep designed to haul in traffickers just nets a bunch of consenting adults. What's never found is anything approaching the horror stories used to turn hysteria into perpetual funding -- the theory that thousands of teens are being forced to perform sexual acts by traffickers and (most ridiculously) shuttled around the country to serve attendees of major events ranging from the Super Bowl to local stock shows.
As Lindenberg notes, the only people celebrating this amazingly-hollow victory are those who abused their power to target a site over third-party content.
It’s notable how few people have come forward to defend what happened. The most vocal messages of support came from the participants themselves, who made a point of congratulating each other for their role in bringing it about. And when Florida prosecutors and the staff of Reason magazine agree that an act of government was ill-advised, you can be pretty sure it wasn’t the greatest idea ever.
That's how government power works. It's rarely effective, and it almost always results in unintended losses.
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Posted on Techdirt - 13 February 2017 @ 11:53am
PayPal is ubiquitous. And that's unfortunate. Over the years, the payment platform has earned a reputation for acting in a way that can charitably be described as "hellishly inconsistent." For little to no reason, users have found their accounts shut down or suspended. And, thanks to US laws meant to prevent the PayPal-ing of material support to foreign terrorists, PayPal has been suspending accounts for innocuous payments containing certain trigger words in the descriptions.
The latest victim of PayPal's inscrutable policies and unapproachable customer service is a small Canadian newspaper. As the CBC reports, the small paper's attempt to enter a few of its stories for consideration for national newspaper awards resulted in the bricking of both the sender's and the receiver's accounts.
A community newspaper's payment to enter a feel-good story about a family of Syrian refugees in an awards competition prompted PayPal to freeze the account of a national media organization after flagging the suspicious transaction, The Canadian Press has learned.
The weekly Flin Flon Reminder entered the article — titled "Syrian family adapts to new life" — last month as part of its submissions to the annual Canadian Community Newspaper Awards. The feature story from July 2016 outlines the challenges and triumphs as the family settled in the Manitoban town of 5,100 and the community's willingness to make them feel welcome.
The word "Syrian" set off PayPal's auto-monitor, which blocked the Flin Flon Reminder's $240 in entry fees. (To be considered for the awards, submitters must pay $60 per article submitted -- and it would appear Flin Flon submitted four of them.)
It would be one thing if the payment was flagged and then reviewed. But nothing in the story suggests PayPal took a second look at this until a larger media outfit -- the CBC -- started asking questions.
PayPal didn't limit itself to killing the sender's account. It suspended the receiver's account as well.
This week, Durnin called News Media Canada — formerly Newspaper Canada — to find out what had happened. They realized PayPal had frozen the News Media Canada account, said Nicole Bunt, who processes the awards entries.
PayPal supposedly reviews flagged payments within 72 hours. No one involved heard anything from PayPal until after the CBC's inquiries. The belated response from PayPal: "Um... US law mumble mumble mumble."
"You may be buying or selling goods or services that are regulated or prohibited by the U.S. government," PayPal said in an email to News Media Canada.
Oh, really? This is some spectacular review work by PayPal, considering both the sender and the receiver are located entirely in Canada. While US law may govern US transactions processed by the company, they should have little to no effect on completely extraterritorial transactions.
And the sole reason for PayPal's dual account nuking? The word "Syrian" being in the submission to the newspaper awards.
The note also requested a "complete and detailed explanation of the transaction" and the purpose of the payment, which identified with the story's headline.
That's the problem with keyword flagging. All it's ever going to do is produce false positives and inconvenience hundreds of non-terrorists. The algorithms deployed by PayPal are looking for terms no terrorist is going to use when transferring funds to allies. It works on the stupidest of assumptions: that memo lines are going to filled with suspicious keywords when actual nefarious transactions are taking place.
If you're going to build a US law-compliant service that relies on tragically flawed logic, the least you can do is actually review flagged transactions in a timely manner and provide actual people customers can talk to, to sort out these issues.
Instead, PayPal appears to have left this payment-vetting process to the machines and made it all but impossible to speak to someone who might be able to derive something from context. And it makes it worse by subjecting other countries to US law, whether or not the flagged transaction violates laws in the country where the funds are changing hands.
Then there's this kicker at the end of the CBC article.
PayPal did not immediately explain its process.
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