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  7. <title>Techdirt.</title>
  8. <description>Easily digestible tech news...</description>
  9. <link>https://www.techdirt.com/</link>
  10. <language>en-us</language>
  11. <image><title>Techdirt.</title><url>https://ii.techdirt.com/s/t/i/td-88x31.gif</url><link>https://www.techdirt.com/</link></image>
  12. <item>
  13. <pubDate>Mon, 22 Jul 2019 19:49:01 PDT</pubDate>
  14. <title>Dear AHL: Get Your App Shit Together Because You&#39;re Freaking Us Out</title>
  15. <dc:creator>Timothy Geigner</dc:creator>
  16. <link>https://www.techdirt.com/articles/20190711/15163142572/dear-ahl-get-your-app-shit-together-because-youre-freaking-us-out.shtml</link>
  17. <guid>https://www.techdirt.com/articles/20190711/15163142572/dear-ahl-get-your-app-shit-together-because-youre-freaking-us-out.shtml</guid>
  18. <description><![CDATA[ <p>
  19. There are many, many ways for big companies' attempts to use social media or smart apps to go horribly wrong. Usually these happenings involve either hacked into accounts repurposed for lulz, rogue employees having a bit too much to drink on beer Friday and then going off, or companies doing something stupid and then blaming either of the previous for it.
  20. </p>
  21. <p>
  22. And <a href="https://deadspin.com/the-ahl-app-melted-down-and-demanded-6-000-from-a-guy-1836255637">then there's the American Hockey League's mobile app</a>, which for some reason alerted users that Stewart Zimmel apparently both owes someone $6k and threatens to punch people in the throat.
  23. </p>
  24. <blockquote>
  25. <p>
  26. <em>The American Hockey League's long-awaited schedule announcement for the 2019&ndash;20 season hit a minor road block on Wednesday, when the code behind the official app of the NHL&rsquo;s top minor league became self-aware and demanded money from Stewart Zimmel. At least, that&rsquo;s one way to interpret these confusing but very real screenshots of push notifications sent to users today, which accused Zimmel of threatening to punch someone named Ian Bowman in the throat &ldquo;nemours times&rdquo; (sic).</em>
  27. </p>
  28. </blockquote>
  29. <div class="centered">
  30. <blockquote class="twitter-tweet"> <p lang="en">Something doesn&rsquo;t seem right with the AHL app notifications <a href="https://t.co/nDSp4EuvPQ">pic.twitter.com/nDSp4EuvPQ</a>
  31. </p>
  32. <p>
  33. &mdash; Sean Shapiro (@seanshapiro) <a href="https://twitter.com/seanshapiro/status/1148956632942030854?ref_src=twsrc%5Etfw">July 10, 2019</a>
  34. </p>
  35. </blockquote>
  36. <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
  37. </div>
  38. <p>
  39. It wasn't just this one Twitter user, either. Others stared quizzically at their phones, wondering why Stewart Zimmel won't just pay back what he owes, not to mention why he would go around throat-punching people. Far from this being some one-off thing, the app later began displaying screenshots of communications in which someone named Zimmel kinda does threaten to punch someone in the throat. And, because the internet is a wonderful place, some people began trying to figure this mystery out.
  40. </p>
  41. <blockquote>
  42. <p>
  43. <em>Stewart Zimmel, for those wondering, is the COO of a company called HockeyTech, according to his LinkedIn. HockeyTech bought the company Zimmel previously worked for, Buzzer Apps, in 2018. Bowman, according to an older fragment of the Buzzer Apps LinkedIn page that&rsquo;s archived on Google, used to work for the company too. It seems safe to assume that he worked on the AHL app&mdash;or at least knew how to hack it&mdash;and also that he feels he&rsquo;s owed $6,000 from Zimmel.</em>
  44. </p>
  45. </blockquote>
  46. <p>
  47. The AHL has since gotten its app back under control, meaning that it is no longer sending users screenshots of threats of violence... so that's good. On the other hand, it really shouldn't be that hard to keep this kind of stuff from happening. And if you're going to launch an app that can push notifications to the public's phones, it's probably best to have some checks in place to keep this sort of thing from happening.
  48. </p><br /><br /><a href="https://www.techdirt.com/articles/20190711/15163142572/dear-ahl-get-your-app-shit-together-because-youre-freaking-us-out.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190711/15163142572/dear-ahl-get-your-app-shit-together-because-youre-freaking-us-out.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190711/15163142572/dear-ahl-get-your-app-shit-together-because-youre-freaking-us-out.shtml?op=sharethis">Email This Story</a><br />
  49. ]]></description>
  50. <slash:department>crossing-lines</slash:department>
  51. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190711/15163142572</wfw:commentRss>
  52. </item>
  53. <item>
  54. <pubDate>Mon, 22 Jul 2019 15:28:18 PDT</pubDate>
  55. <title>Judge Tosses Crazy Copyright Lawsuit Over Gigi Hadid Photo</title>
  56. <dc:creator>Mike Masnick</dc:creator>
  57. <link>https://www.techdirt.com/articles/20190721/00123342623/judge-tosses-crazy-copyright-lawsuit-over-gigi-hadid-photo.shtml</link>
  58. <guid>https://www.techdirt.com/articles/20190721/00123342623/judge-tosses-crazy-copyright-lawsuit-over-gigi-hadid-photo.shtml</guid>
  59. <description><![CDATA[ <p>
  60. Last month, we wrote a fairly long post about some interesting elements (demonstrating the flimsiness of "copyright" existing for many photographs) in a copyright lawsuit <a href="https://www.techdirt.com/articles/20190626/17233242482/crazy-copyright-suit-over-gigi-hadid-posting-photo-herself-to-instagram-shows-absurdity-inherent-photo-copyrights.shtml">filed against model Gigi Hadid</a> for reposting a cropped paparazzi photo on her Instagram. As we noted in that post, despite all of the interesting arguments made regarding copyright and photos, it seemed clear that this case was going to get tossed on purely procedural grounds -- namely that the lawsuit, filed by a photo agency called Xclusive-Lee (who may or may not even hold the rights to the photo), was filed <b>prior to the photo receiving a registration</b> from the Copyright Office. Back in March, the Supreme Court said that copyright law is quite clear that you <a href="https://www.techdirt.com/articles/20190307/00075841752/supreme-court-says-course-you-need-to-register-your-copyright-before-you-can-sue-copyright-trolls-hollywood-freak-out.shtml">need to wait until the registration is obtained.
  61. </a>
  62. </p>
  63. <p>
  64. Here, that was not the case. It was filed before the registration was granted, and thus it's no surprise that (as first pointed out <a href="https://www.hollywoodreporter.com/thr-esq/gigi-hadid-beats-instagram-post-copyright-lawsuit-1225393" target="_blank">by the Hollywood Reporter</a>) that <a href="https://assets.documentcloud.org/documents/6208049/418514600-Xclusive-v-Hadid-Order-on-MTD.pdf" target="_blank">this case was thrown out</a> for that reason alone.
  65. </p>
  66. <blockquote><em>
  67. <p>
  68. Assuming, without deciding, that Plaintiff has sufficiently pled that it owns a valid
  69. copyright in the Photograph, the Court concludes that Plaintiff’s copyright infringement claim
  70. should nevertheless be dismissed due to Plaintiff’s failure to comply with the registration
  71. requirement. As the Supreme Court has held, the registration requirement is “[a] statutory
  72. condition” under which a plaintiff must obtain registration of a copyright in a work “before filing
  73. a lawsuit” based on infringement of that work.
  74. </p>
  75. </em></blockquote>
  76. <p>
  77. The judge mocks the weak attempt by Xclusive-Lee's lawyers to argue that because this lawsuit was filed before the Supreme Court made it's ruling, that the court can magically ignore the Supreme Court. Not how it works.
  78. </p>
  79. <blockquote><em>
  80. <p>
  81. Acknowledging the holding in Fourth Estate, Plaintiff argues, in effect, that because it filed
  82. the complaint in this matter before the Supreme Court’s decision in Fourth Estate, and because
  83. prior to Fourth Estate, the Second Circuit had left “the application/registration rule . . . issue to the
  84. discretion of individual District Court judges”....
  85. Fourth Estate should not preclude Plaintiff’s infringement claim in this case. The Court disagrees.
  86. There is no doctrinal basis on which this Court can decline to apply a Supreme Court
  87. decision that would otherwise apply merely because that Supreme Court decision was issued after
  88. the filing of the complaint at issue in this case. Indeed, Plaintiff cites no case law supporting its
  89. position. In Fourth Estate, the Supreme Court decisively held that &sect; 411(a) requires a plaintiff to
  90. have already been granted registration from the Copyright Office prior to commencing an action
  91. for copyright infringement. See Fourth Estate, 139 S. Ct. at 888. Although Fourth Estate postdated Plaintiff’s filing of its complaint, it is nevertheless binding on all lower federal courts unless
  92. and until the Supreme Court decides to revisit it.... For this
  93. reason, Plaintiff’s observation that the Second Circuit may have provided for a different result
  94. prior to Fourth Estate is of no moment.
  95. </p>
  96. </em></blockquote>
  97. <p>
  98. Ah well. Exactly as expected. Still, it will be interesting to see if the issues raised earlier do start to show up in future cases.
  99. </p><br /><br /><a href="https://www.techdirt.com/articles/20190721/00123342623/judge-tosses-crazy-copyright-lawsuit-over-gigi-hadid-photo.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190721/00123342623/judge-tosses-crazy-copyright-lawsuit-over-gigi-hadid-photo.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190721/00123342623/judge-tosses-crazy-copyright-lawsuit-over-gigi-hadid-photo.shtml?op=sharethis">Email This Story</a><br />
  100. ]]></description>
  101. <slash:department>as-expected</slash:department>
  102. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190721/00123342623</wfw:commentRss>
  103. </item>
  104. <item>
  105. <pubDate>Mon, 22 Jul 2019 13:35:53 PDT</pubDate>
  106. <title>Oakland, California On Its Way To Becoming The Third US City To Ban Facial Recognition Tech</title>
  107. <dc:creator>Tim Cushing</dc:creator>
  108. <link>https://www.techdirt.com/articles/20190721/09211542624/oakland-california-way-to-becoming-third-us-city-to-ban-facial-recognition-tech.shtml</link>
  109. <guid>https://www.techdirt.com/articles/20190721/09211542624/oakland-california-way-to-becoming-third-us-city-to-ban-facial-recognition-tech.shtml</guid>
  110. <description><![CDATA[ <p>
  111. For the third time in two months, a US city has banned the use of facial recognition tech by local government agencies.
  112. </p>
  113. <p>
  114. San Francisco started this movement (oh god please let it be a movement) <a href="https://www.techdirt.com/articles/20190515/16252042217/city-san-francisco-bans-use-facial-recognition-tech-government-agencies.shtml">back in May</a>, booting the tech out of the city before local agencies had even gotten a chance to fool around with it. Earlier this month, Somerville, Massachusetts <a href="https://www.techdirt.com/articles/20190627/21011442491/somerville-massachusetts-becomes-second-us-city-to-ban-facial-recognition-tech.shtml">took home the silver</a> in the anti-surveillance-state games, enacting a local ban on facial recognition tech.
  115. </p>
  116. <p>
  117. Oakland, California has <a href="https://sanfrancisco.cbslocal.com/2019/07/16/oakland-officials-take-step-towards-banning-city-use-of-facial-recognition-tech/">become the third city in the nation move forward with a facial recognition tech ban</a>, as KPIX reports:
  118. </p>
  119. <blockquote>
  120. <p>
  121. <em>The city of Oakland on Tuesday took a first step towards banning the use of facial recognition technology by city employees, including the Oakland Police Department.</em>
  122. </p>
  123. <p>
  124. <em>The City Council voted unanimously to approve the ordinance, which would prohibit police from both acquiring the software or using it at all, including if used by other police agencies.</em>
  125. </p>
  126. </blockquote>
  127. <p>
  128. This won't become official until September, when the council will reconvene for a second -- and final -- vote on the ordinance. It seems unlikely a majority of councilmembers will switch positions in the next 60 days, so local agencies with an eye on acquiring this tech should probably put those dreams to bed.
  129. </p>
  130. <p>
  131. This ban appears to be slightly broader than those enacted elsewhere. It forbids government agencies from using the tech even when partnering with non-city agencies that might have this tech in their possession.
  132. </p>
  133. <p>
  134. And a little homework goes a long way. The city council's president wrote a report on all the downsides of facial recognition tech, including its <a href="https://www.techdirt.com/articles/20190506/13533942150/new-data-london-metro-police-facial-recognition-tech-shows-still-wrong-96-percent-time.shtml">lack of accuracy</a> and its tendency to <a href="https://www.techdirt.com/articles/20180518/10000439863/report-confirms-deep-flaws-automated-facial-recognition-software-uk-warns-use-us-is-spreading.shtml">err more often</a> when attempting to identify minorities.
  135. </p>
  136. <p>
  137. This ban will cramp the Oakland PD's style a bit. It already uses facial recognition tech via a database owned by the San Mateo County Sheriff. It argued that it should still be allowed to do this, but the council disagreed, voting for a ban that locks them out of the Sheriff's database. Hopefully, that language will be retained when it comes up for a final vote in September.
  138. </p><br /><br /><a href="https://www.techdirt.com/articles/20190721/09211542624/oakland-california-way-to-becoming-third-us-city-to-ban-facial-recognition-tech.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190721/09211542624/oakland-california-way-to-becoming-third-us-city-to-ban-facial-recognition-tech.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190721/09211542624/oakland-california-way-to-becoming-third-us-city-to-ban-facial-recognition-tech.shtml?op=sharethis">Email This Story</a><br />
  139. ]]></description>
  140. <slash:department>beat-it,-face-jockeys</slash:department>
  141. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190721/09211542624</wfw:commentRss>
  142. </item>
  143. <item>
  144. <pubDate>Mon, 22 Jul 2019 12:04:12 PDT</pubDate>
  145. <title>LAPD Infiltrated An Anti-Fascist Protest Group Because The First Amendment Is Apparently Just A Suggestion</title>
  146. <dc:creator>Tim Cushing</dc:creator>
  147. <link>https://www.techdirt.com/articles/20190719/19211642618/lapd-infiltrated-anti-fascist-protest-group-because-first-amendment-is-apparently-just-suggestion.shtml</link>
  148. <guid>https://www.techdirt.com/articles/20190719/19211642618/lapd-infiltrated-anti-fascist-protest-group-because-first-amendment-is-apparently-just-suggestion.shtml</guid>
  149. <description><![CDATA[ <p>
  150. Maybe the LAPD <a href="https://www.techdirt.com/articles/20190317/14031341811/lapd-watchdog-says-departments-data-based-policing-is-producing-nothing-wasted-time-rights-violations.shtml">doesn't have the experience</a> its counter-coastal counterpart has in inflicting damage to rights and liberties, but it's trying, dammit! The NYPD's brushes with the Constitution are <a href="https://www.techdirt.com/articles/20160827/17531435367/inspector-general-finds-nypds-surveillance-muslims-routinely-violated-consent-decree-guidelines.shtml">numerous and perpetual</a>. The LAPD may have spent more time working on the Fourth and Fifth Amendments during <a href="https://www.pbs.org/wgbh/pages/frontline/shows/lapd/scandal/cron.html">its Rampart peak</a>, but now <a href="https://www.latimes.com/california/story/2019-07-19/lapd-informant-recorded-trump-protesters">it's rolling up on the First Amendment like a repurposed MRAP on a small town lawn</a>.
  151. </p>
  152. <blockquote>
  153. <p>
  154. <em>The Los Angeles Police Department ordered a confidential informant to monitor and record meetings held by a political group that staged protests against President Trump in 2017, a move that has drawn concern and consternation from civil rights advocates.</em>
  155. </p>
  156. <p>
  157. <em>On four separate occasions in October 2017, the informant entered Echo Park United Methodist Church with a hidden recorder and captured audio of meetings held by the Los Angeles chapter of Refuse Fascism, a group that has organized a number of large-scale demonstrations against the Trump administration in major U.S. cities, according to court records reviewed by The Times.</em>
  158. </p>
  159. </blockquote>
  160. <p>
  161. Perhaps no entities show more concern about opposition to fascism than law enforcement agencies, for some weird and completely inexplicable reason. Somehow, this investigation involved the Major Crimes Division, which felt the need to get involved because of all the major criminal activity that is the hallmark of protest groups.
  162. </p>
  163. <p>
  164. What sort of major crimes are we talking about? Well, let's just check the record&hellip;
  165. </p>
  166. <blockquote>
  167. <p>
  168. <em>Police reports and transcripts documenting the informant&rsquo;s activities became public as part of an ongoing case against several members of Refuse Fascism who were charged with criminal trespassing&hellip;</em>
  169. </p>
  170. </blockquote>
  171. <p>
  172. I see the term "major" has been redefined by the Major Crimes Division to encompass anything it might feel the urge to investigate. Supposedly, this incursion on the First Amendment was the result of an "abundance of caution" following reports of violent clashes between anti-fascists and alt-right demonstrators at other protests/rallies.
  173. </p>
  174. <p>
  175. Again, the LAPD seems to not understand the meaning of the words it uses, because an "abundance of caution" should have resulted in steering clear of First Amendment-protected activities, rather than infiltrating them.
  176. </p>
  177. <p>
  178. Also, an abundance of caution might have resulted in the LAPD checking out the other set of theoretical combatants, but the Los Angeles Times reports a police official said <em>no attempt</em> was made to infiltrate any far-right protest groups.
  179. </p>
  180. <p>
  181. "Major." "Caution." "Consistency." These words are beyond the department's comprehension. And here's the kicker: the Major Crimes Division did not send its informant in until <em>after</em> the demonstration was already over, the freeway had already been blocked, and criminal trespassing charges had already been brought. This wasn't an investigation. It was a fishing expedition targeting people who don't like fascists that used the First Amendment as a doormat. Calls to the LAPD's Irony Division were not returned.
  182. </p>
  183. <p>
  184. I guess we're all supposed to feel better about this now that the LAPD has promised to investigate itself over its First Amendment-infringing infiltration. But it seems a department that routinely struggles to use words properly and cannot steer clear of the Constitutional shoreline shouldn't be trusted to run a fax machine, much less an internal investigation.
  185. </p><br /><br /><a href="https://www.techdirt.com/articles/20190719/19211642618/lapd-infiltrated-anti-fascist-protest-group-because-first-amendment-is-apparently-just-suggestion.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190719/19211642618/lapd-infiltrated-anti-fascist-protest-group-because-first-amendment-is-apparently-just-suggestion.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190719/19211642618/lapd-infiltrated-anti-fascist-protest-group-because-first-amendment-is-apparently-just-suggestion.shtml?op=sharethis">Email This Story</a><br />
  186. ]]></description>
  187. <slash:department>'let's-prove-their-point!'-the-Major-Crimes-Division-exclaimed</slash:department>
  188. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190719/19211642618</wfw:commentRss>
  189. </item>
  190. <item>
  191. <pubDate>Mon, 22 Jul 2019 10:44:00 PDT</pubDate>
  192. <title>For All Of Trump&#39;s Complaints About Social Media &#39;Censorship&#39;, The White House Itself Moderates Content Similarly To Social Media Sites</title>
  193. <dc:creator>Mike Masnick</dc:creator>
  194. <link>https://www.techdirt.com/articles/20190719/23273342619/all-trumps-complaints-about-social-media-censorship-white-house-itself-moderates-content-similarly-to-social-media-sites.shtml</link>
  195. <guid>https://www.techdirt.com/articles/20190719/23273342619/all-trumps-complaints-about-social-media-censorship-white-house-itself-moderates-content-similarly-to-social-media-sites.shtml</guid>
  196. <description><![CDATA[ <p>
  197. As you may have heard, a couple weeks ago, President Trump hosted what he called a "social media summit," where he brought in various Trump-supporting social media people, and where they all got to whine about the completely made up concept of anti-conservative censorship on social media sites (and, because I know the same three of you are going to show up in the comments and scream your heads off that I'm being blind to such censorship: you have yet to show any actual evidence to support your claims -- and, no, a few anecdotes of trolls, assholes, revisionists and propagandists being blocked does not actually prove your point). Trump gave a long speech at that event, most of which <a href="https://slate.com/news-and-politics/2019/07/trump-social-media-summit.html" target="_blank">made literally no sense</a>. However, he seemed pretty damn sure that social media sites are censoring conservatives.
  198. </p>
  199. <blockquote><em>
  200. <p>
  201. But we run out of here… Shadow-banned, a hundred percent. You look at what’s going on. You know, I could go… The blocking, just the basic blocking of what we want to get out. The fact that they don’t let them join. They don’t. There was…. There’s no doubt in my mind that I should have millions and millions…
  202. </p>
  203. <p>
  204. I have millions of people, so many people I wouldn’t believe it. But I know that we’ve been blocked. People come up to me, and they say, “Sir, I can’t, I can’t get you. I can’t follow you. They make it impossible.” These are people that are really good at what they do. They say they make it absolutely impossible. And you know we can’t have it. We’re not going to let it happen.
  205. </p>
  206. <p>
  207. Josh, we’re not going to let it happen. And you know, if they did it on both sides, if it were done to the other side, to the other group… And I’m representing everybody. I do, I represent everybody. I fully understand liberal. I fully understand Democrat. We want to get along. We want to make sure that everybody loves each other, if that’s possible. And maybe, I really believe it is.
  208. </p>
  209. </em></blockquote>
  210. <p>
  211. Also, during the talk, he briefly admitted that he <a href="https://twitter.com/atrupar/status/1149426066559242241" target="_blank">understands why sites have kicked off some of these people</a> before then going back to saying it's unfair:
  212. </p>
  213. <div class="centered">
  214. <blockquote class="twitter-tweet" data-conversation="none" data-theme="light"><p lang="en">TRUMP: &quot;Some of you were [banned from social media platforms] for absolutely no reason. I mean in all fairness some of you I could almost understand it. I mean some of you guys are out there. But even you should have a voice ... I mean it&#39;s genius, but it&#39;s bad.&quot; <a href="https://t.co/EmGoLS1M9V">pic.twitter.com/EmGoLS1M9V</a>
  215. </p>
  216. <p>
  217. &mdash; Aaron Rupar (@atrupar) <a href="https://twitter.com/atrupar/status/1149426066559242241?ref_src=twsrc%5Etfw">July 11, 2019</a>
  218. </p>
  219. </blockquote>
  220. <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
  221. </div>
  222. <p>
  223. Of course, as Charles Duan notes at the Washington Examiner, if the White House is really upset about social media platforms kicking people off, it might want to check its own house first. Because on the <a href="https://petitions.whitehouse.gov/" target="_blank">"We The People"</a> petition site, the White House itself appears to <a href="https://www.washingtonexaminer.com/opinion/trump-wants-an-unbiased-social-media-platform-he-should-have-the-government-make-one?_amp=true&#038;__twitter_impression=true" target="_blank">take a surprisingly similar approach</a> to that of the big social media companies.
  224. </p>
  225. <blockquote><em>
  226. <p>
  227. Or consider We the People again. Surprisingly, the White House petition site has a stringent content moderation policy, prohibiting petitions for commercial endorsements, obscenity, profanity, and “degrading slurs.”
  228. </p>
  229. </em></blockquote>
  230. <p>
  231. And, from there, he notes that this policy might <b>actually</b> violate the 1st Amendment, given that it is a government site, and the government cannot engage in viewpoint discrimination. Indeed, after last month's Supreme Court ruling that said that it was viewpoint discrimination for the US Patent and Trademark Office to <a href="https://www.techdirt.com/articles/20190624/11271742468/supreme-court-now-says-that-trademark-office-cant-reject-immoral-scandalous-trademarks.shtml">reject trademarks on "immoral and scandalous"</a> marks, following a similar ruling from two years ago barring the rejection of <a href="https://www.techdirt.com/articles/20170619/11545037617/supreme-court-reminds-us-government-that-hate-speech-is-fact-free-speech.shtml">"disparaging" remarks</a>, it's difficult to see how banning petitions that have "degrading slurs" would actually pass Constitutional muster.
  232. </p>
  233. <p>
  234. But, really, that's an aside to the larger point, which is that <b>in practice</b> the Trump administration appears to be <b>more willing to kick bigots and racists off its own platform</b> than the Obama administration was.
  235. </p>
  236. <blockquote><em>
  237. <p>
  238. How that policy has been applied is even more concerning. In 2017, a white nationalist group <a href="https://whiterabbitradio.net/unlike-obama-trump-white-house-prohibits-petition-that-opposes-white-genocide" target="_blank" rel="nofollow">alleged</a> that the We the People content moderator had removed the group’s petition on college funding. I have no love for white nationalists, but kicking them off a White House petition page is plainly viewpoint-based censorship. Ironically, the group noted that the Obama administration had allowed the same petition, so it was the Trump White House that was censoring far-right views.
  239. </p>
  240. </em></blockquote>
  241. <p>
  242. That links takes you to a white nationalist page whining about the "We The People Moderator" (seriously) rejecting a petition to "defund anti-white colleges that censor criticism of white genocide."
  243. </p>
  244. <p>
  245. In other words, Trump's own White House is doing exactly the kind of moderation that Trump's own White House is attacking Silicon Valley companies for.
  246. </p>
  247. <p>
  248. Duan's article makes a further point: if Trump and the White House (or Senators Ted Cruz and Josh Hawley) are really so concerned about the lack of social media sites "respecting" the First Amendment (which they, as private companies, are not bound by), there is literally nothing stopping the White House or Congress from setting up their own sites that <b>would</b> be bound by the First Amendment, as a government project.
  249. </p>
  250. <blockquote><em>
  251. <p>
  252. Yet if Trump, Cruz, and others want a politically neutral, unbiased platform, there’s a simple solution: They should make one. Call it “freespeech.gov” and guarantee that all ideologies will be treated equally.
  253. </p>
  254. <p>
  255. [....]
  256. </p>
  257. <p>
  258. Perhaps counterintuitively, a public social media service actually fits right in to the government’s traditional role. In the real world, traditional <a href="https://fas.org/sgp/crs/misc/LSB10141.pdf" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://fas.org/sgp/crs/misc/LSB10141.pdf&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNF9osQTZTuPqT4xcPN8nP8DY2GvEQ"><u>public forums</u></a> include streets, parks, and town halls — all government-run property. Such venues are perfect for political neutrality because the First Amendment demands it. Officials <a href="https://scholar.google.com/scholar_case?case=2205493593660669069" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://scholar.google.com/scholar_case?case%3D2205493593660669069&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNH4AbzJNT7GrZJU2FusmcJ2MHiChA"><u>can restrict</u></a> the time, place, and manner of speech on public grounds, but they <a href="https://scholar.google.com/scholar_case?case=5541076601148584638" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://scholar.google.com/scholar_case?case%3D5541076601148584638&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFRHjHYmp7S2Q3IUEWJjPPqstuTiQ"><u>cannot discriminate</u></a> among viewpoints. The <a href="https://scholar.google.com/scholar_case?case=7369966442251414810" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://scholar.google.com/scholar_case?case%3D7369966442251414810&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFdFSGMYX-yOvAJDNpa343KERFHGQ"><u>village park</u></a> of Skokie, Illinois, must be as open to neo-Nazis as anyone else.
  259. </p>
  260. <p>
  261. A <a href="http://freespeech.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=http://freespeech.gov&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFZhsScI1wthsQdeBs5tZnQND8hAQ">freespeech.gov</a> platform would be a virtual public square, so the First Amendment itself would prohibit anti-conservative or other bias. Contrast this to Republicans’ currently favored approach of legislating political neutrality on platforms. Private platforms are emphatically not public forums, as the Supreme Court has <a href="https://scholar.google.com/scholar_case?case=16846166712547461971" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://scholar.google.com/scholar_case?case%3D16846166712547461971&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNEfTo3yMzovxq5HCvJc1VE6vcfPpA"><u>explained</u></a>, and worse yet, this neutrality legislation might be an unconstitutional <a href="https://texaslawreview.org/the-law-of-compelled-speech/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://texaslawreview.org/the-law-of-compelled-speech/&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFu1PvMVxGgNRUENhG-Hg430afGvg"><u>compelled-speech</u></a> mandate.
  262. </p>
  263. <p>
  264. Little stands in the way of building <a href="http://freespeech.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=http://freespeech.gov&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFZhsScI1wthsQdeBs5tZnQND8hAQ">freespeech.gov</a>. The government has its digital consultancies <a href="https://18f.gsa.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://18f.gsa.gov/&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNHqq4u34-b4Z1wLL6ACaLtYNlYxzg"><u>18F</u></a> and the <a href="https://www.usds.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.usds.gov/&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFw_6_E15HXuhUyc0yAkRr4lE0fyw"><u>U.S. Digital Service</u></a> to produce the technology. It has already created the “<a href="https://petitions.whitehouse.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://petitions.whitehouse.gov/&#038;source=gmail&#038;u...33dDHpbpt2US1sEcQ"><u>We the People</u></a>” White House petitions website, a virtual public square where hundreds of thousands of users call for <a href="https://www.latimes.com/nation/politics/trailguide/la-na-trailguide-updates-petitions-for-obama-to-recognize-1483049705-htmlstory.html" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.latimes.com/nation/politics/trailguide/la-na-trailguide-updates-petitions-for-obama-to-recognize-1483049705-htmlstory.html&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNGFE9ngWKG8s2l0Zcgj2Rsr1yl1xA"><u>everything</u></a> from deporting Justin Bieber to building a Death Star. A <a href="http://freespeech.gov/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=http://freespeech.gov&#038;source=gmail&#038;ust=1563284639336000&#038;usg=AFQjCNFZhsScI1wthsQdeBs5tZnQND8hAQ">freespeech.gov</a> site would likely be popular as well — after all, what teenager could resist sharing dank memes under a .gov URL?
  265. </p>
  266. </em></blockquote>
  267. <p>
  268. This is a valid point all around. If Trump, Hawley and Cruz insist that there needs to be a social media platform that is "neutral," the only place they actually have the Constitutional authority to make that happen is on a site set up by the government itself.
  269. </p>
  270. <p>
  271. And then, as it appears the Trump administration (and the President himself) recognize, they might finally "understand" why these sites kick people off.
  272. </p>
  273. <p>
  274. So, the next time you see any government official whining on about private companies not hosting all speech, there's a simple response: the government has the power (and even the skills) to do it itself. The only reason not to, of course, is if this is all stupid political grandstanding and an attempt to "work the refs" into getting social media sites to leave up harassers, abusers, trolls, and propagandists who just happen to be supporting the President and his allies.
  275. </p><br /><br /><a href="https://www.techdirt.com/articles/20190719/23273342619/all-trumps-complaints-about-social-media-censorship-white-house-itself-moderates-content-similarly-to-social-media-sites.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190719/23273342619/all-trumps-complaints-about-social-media-censorship-white-house-itself-moderates-content-similarly-to-social-media-sites.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190719/23273342619/all-trumps-complaints-about-social-media-censorship-white-house-itself-moderates-content-similarly-to-social-media-sites.shtml?op=sharethis">Email This Story</a><br />
  276. ]]></description>
  277. <slash:department>oh,-look-at-that</slash:department>
  278. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190719/23273342619</wfw:commentRss>
  279. </item>
  280. <item>
  281. <pubDate>Mon, 22 Jul 2019 10:39:00 PDT</pubDate>
  282. <title>Daily Deal: The Microsoft PowerShell Certification Bundle</title>
  283. <dc:creator>Daily Deal</dc:creator>
  284. <link>https://www.techdirt.com/articles/20190722/10192642632/daily-deal-microsoft-powershell-certification-bundle.shtml</link>
  285. <guid>https://www.techdirt.com/articles/20190722/10192642632/daily-deal-microsoft-powershell-certification-bundle.shtml</guid>
  286. <description><![CDATA[ <p>
  287. The <a href="https://deals.techdirt.com/sales/the-microsoft-powershell-certification-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=the-microsoft-powershell-certification-bundle_072219&#038;utm_term=scsf-334717&#038;utm_content=a0x1P000004MTlb&#038;scsonar=1">Microsoft PowerShell Certification Bundle</a> has 3 courses to get you up to speed with PowerShell. You'll cover a variety of topics crucial to understanding PowerShell so you can automate small daily tasks and improve your work efficiency. Gradually, you'll scale up towards more complex tasks. You'll also discover how to automate your daily work related to Active Directory Management, and how to integrate with non-Microsoft products as well. It's on sale for $19.
  288. </p>
  289. <div class="centered">
  290. <a href="https://deals.techdirt.com/sales/the-microsoft-powershell-certification-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=the-microsoft-powershell-certification-bundle_072219&#038;utm_term=scsf-334717&#038;utm_content=a0x1P000004MTlb&#038;scsonar=1"><img src="https://i.imgur.com/dS1rMfT.jpg" title="source: imgur.com" width="400"/></a>
  291. </div>
  292. <p>
  293. <em>Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.</em>
  294. </p><br /><br /><a href="https://www.techdirt.com/articles/20190722/10192642632/daily-deal-microsoft-powershell-certification-bundle.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190722/10192642632/daily-deal-microsoft-powershell-certification-bundle.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190722/10192642632/daily-deal-microsoft-powershell-certification-bundle.shtml?op=sharethis">Email This Story</a><br />
  295. ]]></description>
  296. <slash:department>good-deals-on-cool-stuff</slash:department>
  297. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190722/10192642632</wfw:commentRss>
  298. </item>
  299. <item>
  300. <pubDate>Mon, 22 Jul 2019 09:29:00 PDT</pubDate>
  301. <title>Telecom Union Got Hoodwinked Into Supporting AT&#38;T&#39;s Shitty Merger</title>
  302. <dc:creator>Karl Bode</dc:creator>
  303. <link>https://www.techdirt.com/articles/20190718/13315942611/telecom-union-got-hoodwinked-into-supporting-atts-shitty-merger.shtml</link>
  304. <guid>https://www.techdirt.com/articles/20190718/13315942611/telecom-union-got-hoodwinked-into-supporting-atts-shitty-merger.shtml</guid>
  305. <description><![CDATA[ <p>
  306. You may be shocked to learn this, but nearly all of the promises AT&#038;T made in the lead up to its $86 billion merger with Time Warner wound up not being true.
  307. </p>
  308. <p>
  309. The company's promise that the deal wouldn't result in price hikes for consumers? <a href="https://www.techdirt.com/articles/20180702/09332640153/fresh-off-merger-att-jacks-up-price-streaming-video-service.shtml">False</a>. The company's promise the deal wouldn't result in higher prices for competitors needing access to essential AT&#038;T content like HBO? <a href="https://www.theverge.com/2018/11/2/18055780/att-dish-hbo-battle-warnermedia-cable-streaming-battle-future">False</a>. AT&#038;T's promise they wouldn't hide Time Warner content behind exclusivity paywalls? <a href="https://www.techdirt.com/articles/20190711/07244942566/att-breaks-another-merger-promise-making-friends-exclusive.shtml">False</a>. The idea that the merger would somehow create more jobs at the company? <a href="https://www.techdirt.com/articles/20190618/07430842417/att-lays-off-thousands-after-nabbing-billions-tax-breaks-regulatory-favors.shtml">False</a>.
  310. </p>
  311. <p>
  312. Of course the press and public aren't the only folks AT&#038;T misled. To glean the support of the telecom sector's biggest union, the Communications Workers of America, AT&#038;T apparently promised that newly acquired Time Warner (and subsidiary) workers would be able to join the union. But when the time came to actually allow those employees in, guess what? AT&#038;T <a href="https://www.bloomberg.com/news/articles/2019-07-18/union-says-at-t-reneged-on-deal-made-before-time-warner-merger">suddenly declared that wouldn't be happening</a> for the vast majority of them:
  313. </p>
  314. <blockquote><em>
  315. <p>
  316. "<u>Of about 22,000 U.S. employees who previously worked at Time Warner, AT&#038;T claimed the agreement applies to at most 82</u>, a union official wrote in a letter attached to a June court filing. CWA, which already represents about 90,000 AT&#038;T employees, has asked a judge to order arbitration. In May, the company asked that the case be dismissed, saying the company has “the right to determine” which employees are covered by unionization provisions."
  317. </p>
  318. </em></blockquote>
  319. <p>
  320. Granted if you spend five seconds looking at the history of major mergers in the telecom and media space, none of this should be surprising.
  321. </p>
  322. <p>
  323. Merger after merger, a universe of amazing promises are revealed that post deal, never actually materialize. Any conditions that are affixed are usually <a href="https://www.techdirt.com/articles/20150422/04580130746/comcast-merger-chances-stall-as-regulators-realize-comcast-meddled-hulu-management-ignored-nbc-deal-conditions.shtml">theatrically hollow</a>, and adherence to them is rarely enforced. In AT&#038;T's case, not a <em>single merger condition was affixed to the deal</em>, thanks in large part to a <a href="https://www.techdirt.com/articles/20190226/09424041676/judge-ruling-att-merger-again-highlights-broken-antitrust-enforcement-court-myopia.shtml">comically-myopic ruling by U.S. District Court Judge Richard Leon</a>, who was oblivious to AT&#038;T's plan to use the death of net neutrality, regulatory capture at the FCC, and ownership of essential content as a <a href="https://www.techdirt.com/articles/20181220/08015941270/att-lets-users-avoid-broadband-capsif-they-use-ats-own-streaming-service.shtml">competitive bludgeon</a> in the streaming wars to come.
  324. </p>
  325. <p>
  326. At some point, you'd think that major telecom unions would stop supporting megadeals that almost uniformly result in higher prices, less competition, and fewer jobs (given redundant positions are pretty uniformly eliminated a year or two after the ink is dry). But the CWA pretty routinely can't help itself; it also breathlessly supported AT&#038;T's 2011 merger with T-Mobile, which was <a href="https://www.techdirt.com/articles/20110831/12471915752/surprise-justice-department-says-attt-mobile-merger-would-be-anticompetitive.shtml">ultimately blocked</a> for being exceptionally terrible. Fortunately the CWA seems to recognize the latest megamerger proposal, T-Mobile's <a href="https://cwa-union.org/news/releases/cwa-t-mobilesprint-merger-remains-anticompetitive-harmful-american-workers-and-should">planned $26 billion merger with Sprint</a>, is going to be bad for the sector as well.
  327. </p>
  328. <p>
  329. At some point you'd think that everybody in the chain, from unions and consumers to the press and antitrust enforcers, would realize these industry megadeals are almost always uniformly harmful. Pre-merger promises never materialize, prices routinely go up, and job losses abound; yet each and every time there's a new megadeal proposed we appear to have learned nothing, just like some purgatorial version of Charlie Brown and Lucy football.
  330. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/13315942611/telecom-union-got-hoodwinked-into-supporting-atts-shitty-merger.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/13315942611/telecom-union-got-hoodwinked-into-supporting-atts-shitty-merger.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/13315942611/telecom-union-got-hoodwinked-into-supporting-atts-shitty-merger.shtml?op=sharethis">Email This Story</a><br />
  331. ]]></description>
  332. <slash:department>ill-communication</slash:department>
  333. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190718/13315942611</wfw:commentRss>
  334. </item>
  335. <item>
  336. <pubDate>Mon, 22 Jul 2019 06:23:00 PDT</pubDate>
  337. <title>FTC&#39;s YouTube Privacy Settlement Pisses Everyone Off; Perhaps We&#39;re Doing Privacy Wrong</title>
  338. <dc:creator>Mike Masnick</dc:creator>
  339. <link>https://www.techdirt.com/articles/20190719/16580042617/ftcs-youtube-privacy-settlement-pisses-everyone-off-perhaps-were-doing-privacy-wrong.shtml</link>
  340. <guid>https://www.techdirt.com/articles/20190719/16580042617/ftcs-youtube-privacy-settlement-pisses-everyone-off-perhaps-were-doing-privacy-wrong.shtml</guid>
  341. <description><![CDATA[ <p>
  342. It's becoming a tradition. A week ago, we wrote about a Friday evening news "leak" (almost certainly from Facebook) about the FTC <a href="https://www.techdirt.com/articles/20190714/01002842583/ftc-facebook-why-5-billion-fine-is-both-too-little-too-much.shtml">approving a settlement</a> with Facebook over privacy violations. And, this past Friday evening, there was a similar news dump about a <a href="https://www.washingtonpost.com/technology/2019/07/19/ftc-approves-settlement-with-google-over-youtube-kids-privacy-violations/?noredirect=on&#038;utm_term=.26b937de8ea8" target="_blank">similar settlement with YouTube</a> (though at a much lower dollar amount). In both cases, the Friday evening news dump was almost certainly on purpose -- in the hopes that by Monday, something bigger will have caught the news cycles' attention. Thankfully, <a href="https://www.techdirt.com/articles/20180810/17491840412/defense-slow-news.shtml">we don't work that way</a>.
  343. </p>
  344. <p>
  345. Let's cut to the chase, though. No one (outside of, perhaps, YouTube/Google/Alphabet execs) is "happy" with this. Pretty much everyone will point out, accurately, that a "multi-million dollar" fine is effectively meaningless to YouTube. No one believes that this will magically lead to a world in which internet companies take privacy more seriously. No one believes this will lead to a world in which anyone's privacy is better protected.
  346. </p>
  347. <p>
  348. And while I'm sure some people will complain about the amount (pocket change for Google), I'm not sure the amount really makes much of a difference. Remember, last week's angry response to the $5 billion that the FTC is allegedly getting from Facebook. That's a much higher amount (by a massive margin) the largest the FTC has ever gotten from a company.
  349. </p>
  350. <p>
  351. Perhaps there's a larger issue here: this system of expecting private companies and overworked/understaffed federal (or state) agencies to somehow manage our privacy for us <b>does not work</b> -- no matter what your viewpoint on all of this is. Perhaps we should be looking for solutions where users themselves get better direct control over their data, and aren't reliant on giant fines or government bureaucrats "protecting" it for them. Because if we're just going to go through this charade over and over and over again, it's not clear what the benefit is for anyone.
  352. </p>
  353. <p>
  354. If you don't trust Google/Facebook, then no fine is going to be enough. If you do trust them to hold onto the data they collect, then this whole thing feels like a bit of privacy theater. No one ends up happy about it, and nothing is actually done to protect privacy. I've been pointing out for a while now that we're bad at regulating privacy because most people <a href="https://www.techdirt.com/articles/20180803/12153440362/were-bad-regulating-privacy-because-we-dont-understand-privacy.shtml">don't understand privacy</a>, and I think these kinds of things are a symptom of that. There's this amorphous concept out there of "privacy," and people -- egged on by media stories that aren't always accurate -- have a concern that the companies don't do a very good job protecting our privacy. <b>And they're right about that.</b> But, there's no agreement on what privacy means or how you actually "protect" it. And the only tools in the toolbox right now are fines or crazy, confusing, misguided regulations that seem to only lock in large players and hand them an even more dominant position (allowing them to do more things that people are uncomfortable with).
  355. </p>
  356. <p>
  357. There needs to be a better approach -- and it has to be one that starts more from first principles about what it is that we're actually trying to accomplish here, and what will actually get us there. What we have now is not that.
  358. </p><br /><br /><a href="https://www.techdirt.com/articles/20190719/16580042617/ftcs-youtube-privacy-settlement-pisses-everyone-off-perhaps-were-doing-privacy-wrong.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190719/16580042617/ftcs-youtube-privacy-settlement-pisses-everyone-off-perhaps-were-doing-privacy-wrong.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190719/16580042617/ftcs-youtube-privacy-settlement-pisses-everyone-off-perhaps-were-doing-privacy-wrong.shtml?op=sharethis">Email This Story</a><br />
  359. ]]></description>
  360. <slash:department>friday-news-dumps</slash:department>
  361. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190719/16580042617</wfw:commentRss>
  362. </item>
  363. <item>
  364. <pubDate>Sun, 21 Jul 2019 12:00:00 PDT</pubDate>
  365. <title>Funniest/Most Insightful Comments Of The Week At Techdirt</title>
  366. <dc:creator>Leigh Beadon</dc:creator>
  367. <link>https://www.techdirt.com/articles/20190721/10595742625/funniest-most-insightful-comments-week-techdirt.shtml</link>
  368. <guid>https://www.techdirt.com/articles/20190721/10595742625/funniest-most-insightful-comments-week-techdirt.shtml</guid>
  369. <description><![CDATA[ <p>
  370. This week, our first place winner is <a href="https://www.techdirt.com/user/darkflite">Gary</a> with a simple and important take on the idea of <a href="https://www.techdirt.com/articles/20190712/00382242577/drug-prices-are-so-insane-that-ny-times-is-recommending-us-govt-just-seize-patents.shtml#c3">the government seizing pharma patents</a>:
  371. </p>
  372. <blockquote style="font-style:italic;">
  373. <p>
  374. What? The government can't just go around seizing property left and right!
  375. </p>
  376. <p>
  377. <b>Good things Patents aren't property</b> - they are limited licenses granted by the Feds that can and should be yanked if abused. You have no intrinsic "right" to exclusivity only a government backed and unnecessary monopoly.
  378. </p>
  379. </blockquote>
  380. <p>
  381. In second place, we've got <a href="https://www.techdirt.com/user/aphexbr">PaulT</a> with an answer to the question of why CBP tends to <a href="https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml#c15">add years to males' estimated ages and subtract them from females' estimated ages</a>:
  382. </p>
  383. <blockquote>
  384. <p>
  385. <em>So they can turn the males into adult criminals and justify locking them up and boost crime statistics... and also turn the females into victims and similarly boost crime related to immigration.</em>
  386. </p>
  387. </blockquote>
  388. <p>
  389. For editor's choice on the insightful side, we start out with <b>SirWired</b> giving a rundown on the reality of <a href="https://www.techdirt.com/articles/20190717/08010042603/claims-5g-health-risks-are-frequently-based-single-20-year-old-flawed-graph.shtml#c160">supposed health dangers of 5G and other wireless signals</a>:
  390. </p>
  391. <blockquote style="font-style:italic;">
  392. <p>
  393. <b>The basic physics here aren't that hard.</b>
  394. </p>
  395. <p>
  396. Skin attenuates radio signals. Period. End of Story. There is no conceivable mechanism by which 5G could cause health issues at any dose a consumer would be exposed to. The only effects on tissue would be due to simple heating, which are not going to be significant at the small fractions of a watt smartphones run at. I'm not sure what there is to study.
  397. </p>
  398. <p>
  399. There might be separate considerations for workers maintaining live transmission towers, which are already accounted for in existing occupational-health requirements.
  400. </p>
  401. <p>
  402. (And the strange fixation on brain cancer makes even less sense! If, for the purposes of argument, we pretended that 5G phones emitted, say, x-rays, there are cancer-susceptible organs that would be much more affected than your brain; notably the skin, salivary glands, and thyroid. Your brain is on the other side of your skull, and bone attenuates radiation quite well.)
  403. </p>
  404. <p>
  405. P.S. (If you want to read up on the literature about the topic, ignore any text entirely that does not specify frequency, dose, and duration. And if they do specify those three crucial items, actually pay attention. If you do pay attention, you'll see that the research shows a glimmer of an effect at well-in-excess of consumer doses for days. If you don't pay attention, it'll be like proclaiming "Driving past an asphalt plant is bad for you" after reading a study about people cleaning out tanks full of exotic volatile petrochemicals at an oil refinery for years on end.)
  406. </p>
  407. </blockquote>
  408. <p>
  409. Next, we've got a comment from Project Gutenberg volunteer <a href="https://www.techdirt.com/user/jhellingman">Jeroen Hellingman</a> noting that we left something out of our calculations about <a href="https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml#c128">the storage media needed to store all music or movies</a>:
  410. </p>
  411. <blockquote style="font-style:italic;">
  412. <p>
  413. At Project Gutenberg, we've spend like 30 years to digitize almost 60.000 books. You will need about 100GB to download them all. Even in the unlikely case you can read one book a day, you'll still need two life-times to read them all.
  414. </p>
  415. <p>
  416. Now start looking at the millions of books on Archive.org..., or although illicit, Library Genesis.
  417. </p>
  418. </blockquote>
  419. <p>
  420. Over on the funny side, our first place winner is <a href="https://www.techdirt.com/user/thatoneguy">That One Guy</a>, who identified a fatal flaw in the notion of <a href="https://www.techdirt.com/articles/20190711/13380642571/pennsylvania-legislators-quickly-quietly-passed-law-that-strips-power-reform-minded-da.shtml#c86">making politicians wear lie detectors</a>:
  421. </p>
  422. <blockquote>
  423. <p>
  424. <em>Terrible idea, the thing would constantly be going off, deafening anyone around them. Better by far to attach a truth telling device, you'd only rarely hear that beeping if it was attached to a politician.</em>
  425. </p>
  426. </blockquote>
  427. <p>
  428. In second place, we've got an anonymous theory about the London police's questionable claim that their facial recognition technology <a href="https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml#c30">only makes an error in "one in 1,000" instances</a>:
  429. </p>
  430. <blockquote>
  431. <p>
  432. <em>That comma is a decimal separator, not a thousands separator...</em>
  433. </p>
  434. </blockquote>
  435. <p>
  436. For editor's choice on the funny side, we start out with <b>Glenn</b> pointing out <a href="https://www.techdirt.com/articles/20190702/22064642519/no-shirt-no-shoes-no-facescan-no-service-welcome-to-21st-century-convenience-store-shopping.shtml#c27">the most basic issue with widespread deployment of facial recognition</a>:
  437. </p>
  438. <blockquote>
  439. <p>
  440. <em>Thank god that no two people look alike!</em>
  441. </p>
  442. </blockquote>
  443. <p>
  444. And finally, we've got <a href="https://www.techdirt.com/user/btr1701">btr1701</a>, who figured out <a href="https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml#c415">the cause of Netflix's first-ever subscriber loss</a>:
  445. </p>
  446. <blockquote style="font-style:italic;">
  447. <p>
  448. <b>Sheesh</b>
  449. </p>
  450. <p>
  451. One guy changes his password and Netflix loses 130,000 viewers...
  452. </p>
  453. </blockquote>
  454. <p>
  455. That's all for this week, folks!
  456. </p><br /><br /><a href="https://www.techdirt.com/articles/20190721/10595742625/funniest-most-insightful-comments-week-techdirt.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190721/10595742625/funniest-most-insightful-comments-week-techdirt.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190721/10595742625/funniest-most-insightful-comments-week-techdirt.shtml?op=sharethis">Email This Story</a><br />
  457. ]]></description>
  458. <slash:department>say it loud</slash:department>
  459. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190721/10595742625</wfw:commentRss>
  460. </item>
  461. <item>
  462. <pubDate>Sat, 20 Jul 2019 13:00:00 PDT</pubDate>
  463. <title>This Week In Techdirt History: July 14th - 20th</title>
  464. <dc:creator>Leigh Beadon</dc:creator>
  465. <link>https://www.techdirt.com/articles/20190720/12341642620/this-week-techdirt-history-july-14th-20th.shtml</link>
  466. <guid>https://www.techdirt.com/articles/20190720/12341642620/this-week-techdirt-history-july-14th-20th.shtml</guid>
  467. <description><![CDATA[ <p>
  468. <b>Five Years Ago</b>
  469. </p>
  470. <p>
  471. This week in 2014, new revelations from Edward Snowden painted <a href="https://www.techdirt.com/articles/20140714/10462727873/latest-snowden-revelations-suggest-gchq-is-just-like-4chan-trolls-with-more-firepower.shtml">a bad picture of the culture at the GCHQ</a> while, in an interview, he also described the NSA practice of <a href="https://www.techdirt.com/articles/20140717/11505227920/snowden-says-nsa-employees-routinely-passed-around-naked-photos-that-had-been-intercepted.shtml">"routinely" passing around intercepted nude photos</a> &mdash; something the agency quickly insisted <a href="https://www.techdirt.com/articles/20140718/05364127925/nsa-snowdens-claims-passing-around-nudie-pics-we-totally-wouldnt-allow-that-if-we-knew-about-it.shtml">it would stop if it knew about it</a>. The NSA was also saying it had more emails from Snowden when he still worked for the agency, but <a href="https://www.techdirt.com/articles/20140711/09292427852/nsa-confirms-it-has-more-snowden-emails-it-just-isnt-going-to-release-them.shtml">would not release them</a>.
  472. </p>
  473. <p>
  474. Also this week in 2014: Google finally dumped its ill-fated <a href="https://www.techdirt.com/articles/20140715/14165427881/years-later-google-finally-dumps-its-ill-advised-real-names-policy-drops-all-restrictions-names.shtml">real names policy</a>, the MPAA was <a href="https://www.techdirt.com/articles/20140711/18044627859/mpaa-stretches-dmca-to-breaking-point-with-questionable-take-down-request-popcorn-time-repositories.shtml">going after Popcorn Time</a>, and the Supreme Court <a href="https://www.techdirt.com/articles/20140717/14215827921/supreme-court-tells-conan-doyle-estate-to-take-hike-consider-sherlock-holmes-public-domain.shtml">refused</a> the Arthur Conan Doyle estate's last-gasp attempt to <a href="https://www.techdirt.com/articles/20140716/17211527902/conan-doyle-estate-asks-supreme-court-to-step-block-sherlock-holmes-being-public-domaind.shtml">stop Sherlock Holmes from becoming public domain</a>.
  475. </p>
  476. <p>
  477. <b>Ten Years Ago</b>
  478. </p>
  479. <p>
  480. This week in 2009, we saw the <b>ninth</b> misguided <a href="https://www.techdirt.com/articles/20090712/2345015521.shtml">lawsuit over trademark in Google AdWords</a>, the Guinness Book of World Records used a bogus takedown to <a href="https://www.techdirt.com/articles/20090713/1847545531.shtml">try to hide the records of a very embarrassing website fail</a>, New Zealand was considering copyright reform but <a href="https://www.techdirt.com/articles/20090714/1131145547.shtml">not really anything meaningful</a>, and the newly-hugely-popular <em>So You Think You Can Dance</em> was <a href="https://www.techdirt.com/articles/20090710/0402235514.shtml">blocked from doing a Michael Jackson tribute</a>. A Norwegian ISP was <a href="https://www.techdirt.com/articles/20090712/2349455522.shtml">fighting back against the Pirate Bay ban</a>, the National Portrait Gallery was threatening Wikimedia over <a href="https://www.techdirt.com/articles/20090713/0203135526.shtml">downloading public domain images</a>, and Stephen Fry stepped up as <a href="https://www.techdirt.com/articles/20090713/1936485534.shtml">an ally against corporate copyright abuse</a>.
  481. </p>
  482. <p>
  483. <b>Fifteen Years Ago</b>
  484. </p>
  485. <p>
  486. This week in 2004, the CEO of Streamcast was presenting evidence of <a href="https://www.techdirt.com/articles/20040712/0056224.shtml">collusion among record labels</a> to blacklist file sharing companies, while a somewhat unclear study was suggesting <a href="https://www.techdirt.com/articles/20040713/1433239.shtml">BitTorrent usage was way up</a>. The RIAA was predictably <a href="https://www.techdirt.com/articles/20040714/0048201.shtml">defending the INDUCE Act</a> (which it basically wrote) in a letter <a href="https://www.techdirt.com/articles/20040714/1645241.shtml">full of misleading and untrue statements</a>, while at the same time some people were asking if the agency's new anti-filesharing system Audible Magic was <a href="https://www.techdirt.com/articles/20040714/0331221.shtml">in violation of wiretapping laws</a>, and its counterpart in Canada was <a href="https://www.techdirt.com/articles/20040712/1711250.shtml">fighting against a court ruling</a> that said ISPs don't have to turn customer names over to the industry.
  487. </p><br /><br /><a href="https://www.techdirt.com/articles/20190720/12341642620/this-week-techdirt-history-july-14th-20th.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190720/12341642620/this-week-techdirt-history-july-14th-20th.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190720/12341642620/this-week-techdirt-history-july-14th-20th.shtml?op=sharethis">Email This Story</a><br />
  488. ]]></description>
  489. <slash:department>what-was</slash:department>
  490. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190720/12341642620</wfw:commentRss>
  491. </item>
  492. <item>
  493. <pubDate>Fri, 19 Jul 2019 19:39:00 PDT</pubDate>
  494. <title>Gibson Guitar Formalizes Its Hands-Off IP Enforcement Approach With Authorized Partnership Program</title>
  495. <dc:creator>Timothy Geigner</dc:creator>
  496. <link>https://www.techdirt.com/articles/20190716/11274742598/gibson-guitar-formalizes-hands-off-ip-enforcement-approach-with-authorized-partnership-program.shtml</link>
  497. <guid>https://www.techdirt.com/articles/20190716/11274742598/gibson-guitar-formalizes-hands-off-ip-enforcement-approach-with-authorized-partnership-program.shtml</guid>
  498. <description><![CDATA[ <p>
  499. As I mentioned when we recently <a href="https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml">discussed</a> Dean Guitars' pushback and counter-suit against Gibson Guitar's trademark lawsuit, Gibson CEO James Curleigh's vague declaration of a <a href="https://www.techdirt.com/articles/20190702/10545442512/gibson-guitar-declares-shift-ip-enforcement-after-most-recent-public-backlash.shtml">relaxed</a> position on IP enforcement has calcified into something of an official corporate program. It's not all bad, but it's not all good either.
  500. </p>
  501. <p>
  502. We'll start with the good. Gibson has decided to recognize that there are fans inspired by its designs who want to create their own guitars and even sell them on occasion. In recognition of this, Gibson is <a href="https://guitar.com/news/industry-news/gibson-authorized-partnership-program/">starting an "authorized partnership" program</a> to allow those creators to build guitars without fear of legal threat.
  503. </p>
  504. <blockquote>
  505. <p>
  506. <em>The initial stages of the Program will see Gibson grant several boutique builders permission to create guitars based on the body shapes that it claims to own. The agreement involves specific terms set by Gibson, reports NewsChannel 5: chief among them that the boutique brands must acknowledge these shapes do indeed belong to Gibson.</em>
  507. </p>
  508. <p>
  509. <em>&ldquo;We&rsquo;ve entered into some agreements with three or four boutique guitar companies, and basically, they actually love Gibson, and we actually love them,&rdquo; Curleigh said in the interview. &ldquo;We just have to have a conversation around where the lines are between shapes and names, etc. And what&rsquo;s amazing is, as soon as we enter into those conversations, it leads to a collaborative, creative conversation. So it&rsquo;s going to work basically, it&rsquo;s essentially an agreement where they acknowledge: &lsquo;Yup, these are your shapes,&rsquo; and we say, &lsquo;you can use them.'&rdquo;</em>
  510. </p>
  511. </blockquote>
  512. <p>
  513. While it's a step forward for Gibson to enable these companies to create and build off of the inspiration from Gibson, you can already see hints of that old protectionist attitude creeping back in. In order to enter into this sort of agreement, first these companies must bow at the alter of Gibson by acknowledging that it holds trademarks on many of its designs. While that may be something approaching SOP for these types of partnership or licensing agreements, the current legal battle with Dean Guitars puts this very much in question. Whether Gibson does in fact hold valid trademarks on its most treasured guitar designs is subject to the outcome of Dean's counter-suit, in which Dean attempts to invalidate many of those trademarks entirely.
  514. </p>
  515. <p>
  516. Regardless, putting so much emphasis on the acknowledgement that Gibson has these valid trademarks feels like the vestigial remains of the company's old protectionist policies. And, while Curleigh insists that he isn't trying to build this as a revenue stream for Gibson, the agreements do also allow the company to control how many of these 3rd party guitars get sold and to demand royalty fees, so there's that.
  517. </p>
  518. <p>
  519. Add to all of that that Curleigh isn't exactly giving up litigation as an option, too, and one wonders just how much a shift in company culture this is all going to be.
  520. </p>
  521. <blockquote>
  522. <p>
  523. <em>&ldquo;My last resort, I can tell you as a leader, is always going to be legal. But if a company or a brand leaves us, or me, with no choice, I have to follow that direction,&rdquo; the CEO continued. &ldquo;I don&rsquo;t want to, but part of our brand and our business is intellectual property, and kind of half of the value of some companies are in that. We have to preserve and protect [our trademarks], but I think we can do it in a way that&rsquo;s not confrontational, it&rsquo;s more collaborative.&rdquo;</em>
  524. </p>
  525. </blockquote>
  526. <p>
  527. These types of subtle changes can indeed have outsized effects, but it's all in the follow through. Again, this is for sure a step in a positive direction for Gibson, which has traditionally been <em>very</em> protective of its perceived IP. What remains to be seen is if this is really the cultural change Curleigh promised.
  528. </p><br /><br /><a href="https://www.techdirt.com/articles/20190716/11274742598/gibson-guitar-formalizes-hands-off-ip-enforcement-approach-with-authorized-partnership-program.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190716/11274742598/gibson-guitar-formalizes-hands-off-ip-enforcement-approach-with-authorized-partnership-program.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190716/11274742598/gibson-guitar-formalizes-hands-off-ip-enforcement-approach-with-authorized-partnership-program.shtml?op=sharethis">Email This Story</a><br />
  529. ]]></description>
  530. <slash:department>not-bad,-not-great</slash:department>
  531. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190716/11274742598</wfw:commentRss>
  532. </item>
  533. <item>
  534. <pubDate>Fri, 19 Jul 2019 15:38:48 PDT</pubDate>
  535. <title>Researchers Build App That Kills To Highlight Insulin Pump Exploit</title>
  536. <dc:creator>Karl Bode</dc:creator>
  537. <link>https://www.techdirt.com/articles/20190717/06400242602/researchers-build-app-that-kills-to-highlight-insulin-pump-exploit.shtml</link>
  538. <guid>https://www.techdirt.com/articles/20190717/06400242602/researchers-build-app-that-kills-to-highlight-insulin-pump-exploit.shtml</guid>
  539. <description><![CDATA[ <p>
  540. By now the half-baked security in most internet of things (IOT) devices has become a bit of a running joke, leading to amusing Twitter accounts like <a href="https://twitter.com/internetofshit?lang=en">Internet of Shit</a> that highlight the sordid depth of this particular apathy rabbit hole. And while refrigerators <a href="https://www.techdirt.com/articles/20150824/06411532041/internet-not-so-smart-things-samsungs-latest-smart-fridge-can-expose-your-gmail-password.shtml">leaking your gmail credentials</a> and tea kettles that <a href="https://www.cnet.com/g00/news/smart-tea-kettle-home-wi-fi-security-hot-water/?i10c.encReferrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8%3D">expose your home networks</a> are entertaining in their own way, it's easy to lose sight of the fact that the same half-assed security in the IOT space also exists on most <a href="https://www.techdirt.com/articles/20170901/14141638133/0-day-vulnerability-exposes-thousands-att-broadband-customers-to-attack.shtml">home routers</a>, your <a href="https://www.techdirt.com/articles/20150721/08391831712/newsflash-car-network-security-is-still-horrible-very-dangerous-joke.shtml">car</a>, your <a href="https://www.techdirt.com/articles/20170110/07273936449/after-lawsuits-denial-pacemaker-vendor-finally-admits-product-is-hackable.shtml">pacemaker</a>, and countless other essential devices and services your life may depend on.
  541. </p>
  542. <p>
  543. Case in point: just about two years ago, security researchers discovered some major vulnerabilities Medtronic's popular MiniMed and MiniMed Paradigm insulin pumps. At a talk last year, they <a href="https://www.wired.com/story/pacemaker-hack-malware-black-hat/">highlighted how</a> a hacker could trigger the pumps to either withhold insulin doses, or deliver a lethal dose of insulin remotely. But while Medtronic and the FDA warned customers about the vulnerability and issued a recall over time, security researchers Billy Rios and Jonathan Butts found that initially, nobody was doing much to actually fix or replace the existing devices.
  544. </p>
  545. <p>
  546. So Rios and Butts got creative in attempting to convey the scope and simplicity of the threat: they built an app that could <a href="https://www.wired.com/story/medtronic-insulin-pump-hack-app/">use the pumps to kill a theoretical patient</a>:
  547. </p>
  548. <blockquote><em>
  549. <p>
  550. "We’ve essentially just created a universal remote for every one of these insulin pumps in the world," Rios says. "I don’t know why Medtronic waits for researchers to create an app that could hurt or kill someone before they actually start to take this seriously. Nothing has changed between when we gave our Black Hat talk and three weeks ago."
  551. </p>
  552. </em></blockquote>
  553. <p>
  554. To target a specific insulin pump, a hacker would need to know the proper serial number of the device they're targeting. But the app simplifies this process by quickly running through all potential serial numbers until it hits the correct one. The gambit seems to have worked: a week after the team demonstrated its proof of concept app to FDA officials in mid-June of this year, Medtronic announced a voluntary recall program. Years after Medtronic first learned about the flaws in these devices, there's now a structure in place that allows patients to use the devices if they want, and replace them for free if they don't.
  555. </p>
  556. <p>
  557. That said, the researchers are still quick to point out that this kind of dysfunction (offering potentially fatally compromised products but having no avenue to correct them) is fairly common in the medical sector:
  558. </p>
  559. <blockquote><em>
  560. <p>
  561. "...the climate for medical device vulnerability disclosures is still clearly fraught if researchers feel that they need to take extreme, and even potentially dangerous, steps like developing a killer app to spur action.
  562. </p>
  563. <p>
  564. "If you think about it, we shouldn't be telling patients, 'hey, you know what, if you want to you could turn on this feature and get killed by a random person.' That makes no sense," QED Security Solutions' Rios says. "There should be some risk acceptance; this is a medical device. But an insecure feature like that just needs to be gone, and they had no mechanism to remove it."
  565. </p>
  566. </em></blockquote>
  567. <p>
  568. And of course that's not just a problem in the medical sector, but most internet-connected tech sectors. As security researcher Bruce Schneier <a href="https://www.schneier.com/blog/archives/2017/02/security_and_th.html">often points out</a>, it's part of a cycle of dysfunction where the consumer and the manufacturer of a flawed product have already moved on to the next big purchase, often leaving compromised products, and users, in a lurch. And more often than not, when researchers are forced to get creative to highlight the importance of a particular flaw, the companies in question enjoy <a href="https://www.techdirt.com/articles/20180411/23143939610/open-letter-ending-attacks-security-research.shtml">shooting the messenger</a>.
  569. </p><br /><br /><a href="https://www.techdirt.com/articles/20190717/06400242602/researchers-build-app-that-kills-to-highlight-insulin-pump-exploit.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190717/06400242602/researchers-build-app-that-kills-to-highlight-insulin-pump-exploit.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190717/06400242602/researchers-build-app-that-kills-to-highlight-insulin-pump-exploit.shtml?op=sharethis">Email This Story</a><br />
  570. ]]></description>
  571. <slash:department>remote-fatality</slash:department>
  572. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190717/06400242602</wfw:commentRss>
  573. </item>
  574. <item>
  575. <pubDate>Fri, 19 Jul 2019 13:33:22 PDT</pubDate>
  576. <title>Why Carl Malamud&#39;s Latest Brilliant Project, To Mine The World&#39;s Research Papers, Is Based In India</title>
  577. <dc:creator>Glyn Moody</dc:creator>
  578. <link>https://www.techdirt.com/articles/20190718/02430642607/why-carl-malamuds-latest-brilliant-project-to-mine-worlds-research-papers-is-based-india.shtml</link>
  579. <guid>https://www.techdirt.com/articles/20190718/02430642607/why-carl-malamuds-latest-brilliant-project-to-mine-worlds-research-papers-is-based-india.shtml</guid>
  580. <description><![CDATA[ <p>
  581. <a href="https://www.techdirt.com/blog/?tag=carl+malamud">Carl Malamud</a> is one of Techdirt's heroes. We've been writing about his campaign to liberate US government documents and information for over <a href="https://www.techdirt.com/articles/20080904/0433382169.shtml">ten years</a> now. The journal Nature has a report on a new project of his, which is in quite a different field: academic knowledge. The idea will be familiar to readers of this site: to <a href="https://www.nature.com/articles/d41586-019-02142-1">carry out text and data mining (TDM) on millions of academic articles, in order to discover new knowledge</a>. It's a proven technique with huge potential to produce important discoveries. That raises the obvious question: if large-scale <a href="https://www.techdirt.com/blog/?tag=data+mining">TDM</a> of academic papers is so powerful, why hasn't it been done before? The answer, as is so often the case, is that copyright gets in the way. Academic publishers use it to control and impede how researchers can help humanity:
  582. </p>
  583. <blockquote><em>
  584. <p>
  585. [Malamud's] unprecedented project is generating much excitement because it could, for the first time, open up vast swathes of the paywalled literature for easy computerized analysis. Dozens of research groups already mine papers to build databases of genes and chemicals, map associations between proteins and diseases, and generate useful scientific hypotheses. But publishers control -- and often limit -- the speed and scope of such projects, which typically confine themselves to abstracts, not full text.
  586. </p>
  587. </em></blockquote>
  588. <p>
  589. Malamud's project gets around the limitations imposed by copyright and publishers thanks to two unique features. First, Malamud "had come into possession (he won't say how) of eight hard drives containing millions of journal articles from Sci-Hub". Drawing on <a href="https://www.techdirt.com/blog/?company=sci-hub">Sci-Hub</a>'s huge holdings means his project doesn't need to go begging to publishers in order to obtain full texts to be mined. Secondly, Malamud is basing his project in India:
  590. </p>
  591. <blockquote><em>
  592. <p>
  593. Over the past year, Malamud has -- without asking publishers -- teamed up with Indian researchers to build a gigantic store of text and images extracted from 73 million journal articles dating from 1847 up to the present day. The cache, which is still being created, will be kept on a 576-terabyte storage facility at Jawaharlal Nehru University (JNU) in New Delhi.
  594. </p>
  595. </em></blockquote>
  596. <p>
  597. India was chosen because of an important court battle that concluded two years ago. As Techdirt reported then, it is <a href="https://www.techdirt.com/articles/20170309/07340536878/photocopying-textbooks-is-fair-use-india-western-publishers-withdraw-copyright-suit-against-delhi-university.shtml">legal</a> in India to make photocopies of copyright material in an educational context. Malamud's contention is that this allows him to mine academic material in India without the permission of publishers. But he also believes that his TDM project would be legal in the US:
  598. </p>
  599. <blockquote><em>
  600. <p>
  601. The data mining, he says, is non-consumptive: a technical term meaning that researchers don't read or display large portions of the works they are analysing. "You cannot punch in a DOI [article identifier] and pull out the article," he says. Malamud argues that it is legally permissible to do such mining on copyrighted content in countries such as the United States. In 2015, for instance, a US court cleared Google Books of copyright infringement charges after it did something similar to the JNU depot: scanning thousands of copyrighted books without buying the rights to do so, and displaying snippets from these books as part of its search service, but not allowing them to be downloaded or read in their entirety by a human.
  602. </p>
  603. </em></blockquote>
  604. <p>
  605. The fact that TDM is "non-consumptive" means that the unhelpful attitude of academic publishers is even more unjustified than usual. They lose nothing from the analytical process, which is merely extracting knowledge. But from a sense of entitlement publishers still demand to be paid for unrestricted computer access to texts that have already been licensed by academic institutions anyway. That selfish and obstructive attitude to TDM may be about to backfire spectacularly. The Nature article notes:
  606. </p>
  607. <blockquote><em>
  608. <p>
  609. No one will be allowed to read or download work from the repository, because that would breach publishers' copyright. Instead, Malamud envisages, researchers could crawl over its text and data with computer software, scanning through the world's scientific literature to pull out insights without actually reading the text.
  610. </p>
  611. </em></blockquote>
  612. <p>
  613. The thing is, if anyone were by any chance interested in reading the full text, there's an obvious place to turn to. After all, the mining is carried out using papers held by <a href="https://whereisscihub.now.sh/">Sci-Hub</a>, so…
  614. </p>
  615. <p>
  616. Follow me @glynmoody on <a href="https://twitter.com/glynmoody">Twitter</a>, <a href="https://joindiaspora.com/people/4cfe755c2c1743364f000890">Diaspora</a>, or <a href="https://mastodon.social/@glynmoody">Mastodon</a>.
  617. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/02430642607/why-carl-malamuds-latest-brilliant-project-to-mine-worlds-research-papers-is-based-india.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/02430642607/why-carl-malamuds-latest-brilliant-project-to-mine-worlds-research-papers-is-based-india.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/02430642607/why-carl-malamuds-latest-brilliant-project-to-mine-worlds-research-papers-is-based-india.shtml?op=sharethis">Email This Story</a><br />
  618. ]]></description>
  619. <slash:department>sci-hub-to-the-rescue-again</slash:department>
  620. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190718/02430642607</wfw:commentRss>
  621. </item>
  622. <item>
  623. <pubDate>Fri, 19 Jul 2019 11:58:00 PDT</pubDate>
  624. <title>Very Confused Judge Allows Bizarre Copyright Lawsuit Against Cloudflare To Continue</title>
  625. <dc:creator>Mike Masnick</dc:creator>
  626. <link>https://www.techdirt.com/articles/20190718/17562542612/very-confused-judge-allows-bizarre-copyright-lawsuit-against-cloudflare-to-continue.shtml</link>
  627. <guid>https://www.techdirt.com/articles/20190718/17562542612/very-confused-judge-allows-bizarre-copyright-lawsuit-against-cloudflare-to-continue.shtml</guid>
  628. <description><![CDATA[ <p>
  629. In the past, law professor Eric Goldman has suggested that when it comes to infringing content, courts have an uncanny ability to ignore the actual law, and make up their own rules in response to the belief that "infringement bad!" An ongoing lawsuit against Cloudflare seems to be a case in point. As covered by TorrentFreak, a judge has <a href="https://torrentfreak.com/repeat-copyright-infringer-case-against-cloudflare-can-continue-court-rules-190716/" target="_blank">allowed a case against Cloudflare to move forward</a>. However, in doing so, it seems clear that the judge is literally ignoring what the law says.
  630. </p>
  631. <p>
  632. The case itself is... odd. In <a href="https://www.courtlistener.com/recap/gov.uscourts.cacd.728126/gov.uscourts.cacd.728126.1.0_1.pdf" target="_blank">the complaint</a>, two makers of bridal dresses are upset about the sale of counterfeits. Now, if we're talking about counterfeits, you'll probably think that this is a trademark lawsuit. But, no, Mon Cheri Bridals and Maggie Sottero Designs are trying to make a copyright case out of this, because they're arguing that sites selling counterfeits are using their copyright-protected photos to do so. And Cloudflare is, apparently, providing CDN services to these sites that are selling counterfeit dresses using allegedly infringing photographs. It is odd to go after Cloudflare. It is not the company selling counterfeit dresses. It is not the company hosting the websites of those selling counterfeit dresses. It is providing CDN services to them. This is like suing AT&T for providing phone service to a counterfeit mail order operation. But that's what's happening. From the complaint:
  633. </p>
  634. <blockquote><em>
  635. <p>
  636. The photographic images of Plaintiffs’ dress designs are the lifeblood of
  637. Plaintiffs’ advertising and marketing of their dress designs to the consuming public.
  638. Plaintiffs invest hundreds of thousands of dollars each year in the development of
  639. sophisticated marketing campaigns which involve the engagement of models and
  640. photographers and the coordination of expensive photoshoots to capture the appropriate
  641. “look” of the campaign for a particular line of dresses. Plaintiffs’ ability to market their
  642. unique dress designs to consumers is driven largely by the images of their dresses which
  643. appear on their websites and in other marketing materials.
  644. </p>
  645. <p>
  646. Plaintiffs, along with other members of the formalwear industry, are the
  647. victims of a massive Internet scheme to advertise and sell products using the copyrighted
  648. images of their dresses. These Internet websites, including ones serviced by Cloudflare
  649. which are the subject of this Complaint, have manufactured, imported, distributed, offered
  650. for sale and sold counterfeit goods, including bridal gowns, social occasion dresses, prom
  651. dresses and other formalwear using copyrighted images of Plaintiffs’ dresses, they continue
  652. to do so to this day.
  653. </p>
  654. </em></blockquote>
  655. <p>
  656. Again the legal violation here seems very, very far removed from Cloudflare, and yet it's Cloudflare these companies are suing. In response, Cloudflare submitted a <a href="https://www.courtlistener.com/recap/gov.uscourts.cacd.728126/gov.uscourts.cacd.728126.23.1.pdf" target="_blank">fairly thorough and detailed motion to dismiss</a>, highlighting how there's no actionable claim against Cloudflare.
  657. </p>
  658. <blockquote><em>
  659. <p>
  660. The Court should dismiss this action for several reasons. First, the plaintiffs have not alleged facts that meet the standard for contributory infringement in the Supreme Court’s landmark case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, (2005), and the Ninth Circuit’s most recent restatement of its jurisprudence in Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9thCir. 2018). The plaintiffs have not alleged that Cloudflare’s service is so devoted to infringement that it is incapable of substantial non-infringing use. Nor can the plaintiffs cure that defect by amendment: plaintiff Maggie Sottero Designs is a Cloudflare customer. Second, the plaintiffs cannot allege, or ever show, that Cloudflare has actively and intentionally encouraged its customers, by clear expression or other affirmative steps, to infringe upon the plaintiffs’ copyrights. No facts exist to support such a claim. For that reason, the plaintiffs allege only Cloudflare’s passivity in failing to terminate customers whom the plaintiffs accuse of being infringers. They cannot state a viable claim because the alleged inaction does not suffice to create contributory infringement liability.
  661. </p>
  662. </em></blockquote>
  663. <p>
  664. That is all pretty important. But there's also a second defect in the complaint. It confuses the law.
  665. </p>
  666. <blockquote><em>
  667. <p>
  668. The plaintiffs’ invocation of the Digital Millennium Copyright Act, 17 U.S.C. &sect; 512, has no bearing on the contributory infringement claim for two reasons. First, the DMCA is relevant only as providing a remedies limitation after a determination of liability. There is no basis for Cloudflare’s liability to begin with. Second, the plaintiffs ground their irrelevant DMCA argument on a fatal error in their notifications of claimed infringement: they had in mind the wrong subsection of the DMCA, applicable only to hosting providers, instead of the subsection that applies to system caching providers like Cloudflare. They therefore failed to provide in the notifications additional elements that were necessary for Cloudflare. The plaintiffs cannot cure these defects in an amended pleading.
  669. </p>
  670. </em></blockquote>
  671. <p>
  672. This all requires a bit of explanation. First, "contributory" infringement is a concept that is not technically in the statute, but was invented by the Supreme Court in the <a href="https://www.techdirt.com/articles/20050627/0859258.shtml">Grokster decision</a> back in 2005. However, the Supreme Court made it clear that for their to be contributory infringement, the party in question had to take <b>affirmative steps to encourage or induce</b> the infringement. Here, the bridal dress companies make literally no attempt to show any such activity (perhaps because there was none).
  673. </p>
  674. <p>
  675. Second, for Cloudflare to be engaged in contributory infringement, under the <a href="https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.">Betamax case</a>, the dress companies would separately need to show that Cloudflare's service is incapable of substantial non-infringing uses (the standard that was used to declare the VCR legal). That's why the Cloudflare motion to dismiss notes that one of the plaintiffs is, in fact, a Cloudflare customer (and has been for years). That certainly goes a long way towards showing that the plaintiffs <em>know</em> that Cloudflare has substantial non-infringing uses.
  676. </p>
  677. <p>
  678. The second part is even more bizarre. The DMCA's safe harbors in <a href="https://www.law.cornell.edu/uscode/text/17/512" target="_blank">Section 512</a> of the law apply differently to different types of internet companies. Section (a) is for "transitory digital network communications" (i.e., internet access providers. Section (b) is for "system caching" (i.e., CDN providers). Section (c) is for providers of "information residing on systems or networks at direction of users" (i.e., hosting providers) and Section (d) is for "information location tools" (i.e., search engines). There are slightly different rules associated with each one.
  679. </p>
  680. <p>
  681. I should note that it's a good thing that the drafters of the DMCA actually were cognizant enough of the different types of players here. As I noted just recently, things get really funky when policymakers and courts <a href="https://www.techdirt.com/articles/20190712/14400642581/failure-courts-regulators-to-understand-difference-between-infrastructure-providers-edge-providers-is-going-to-be-problem.shtml">fail to distinguish</a> between different providers of different services. And here, the judge doesn't even seem to care.
  682. </p>
  683. <p>
  684. From the above list, you'll see that it's pretty clear that Cloudflare is covered under section (b) as it's providing CDN services to the sites in question. Oddly, however, the "takedown notice" that the bridal dress companies provide <b>doesn't even appear to be addressed to Cloudflare</b> and doesn't appear designated for Cloudflare at all. Indeed, it appears to be <a href="https://www.courtlistener.com/recap/gov.uscourts.cacd.728126/gov.uscourts.cacd.728126.1.2.pdf" target="_blank">addressing a hosting provider</a>. Not a CDN. In fact, in the letter, it references 512(c) and not 512(b) and talks about sites "your company hosts" (Cloudflare doesn't host any sites).
  685. </p>
  686. <div class="centered">
  687. <a href="https://imgur.com/H2p5ICp"><img src="https://i.imgur.com/H2p5ICp.png" width=500 /></a>
  688. </div>
  689. <p>
  690. As Cloudflare explained to the court, everything about this is just wrong.
  691. </p>
  692. <blockquote><em>
  693. <p>
  694. Moreover, while the plaintiffs claim that Cloudflare “failed to take the appropriate action required by law in response to these notices,” see Complaint ¶ 32, the plaintiffs neither offer sufficient facts about any communications nor allege facts showing what “appropriate action” Cloudflare was supposed to take, the failure of which would constitute clear expression or other affirmative steps to foster infringement.7 The sample communication the plaintiffs attach as Exhibit B does not contain any reference to Cloudflare at all; the language suggests that the plaintiffs’ agent directed the communication to a hosting service, not a provider of pass-through and caching services such as Cloudflare: “please be advised that this message serves as the 4th formal notice under the DMCA that a website that your company hosts . . . is illegally duplicating and reproducing at least one copyrighted work . . . .” Dkt. 1-2 (emphasis added). The communication also identifies itself explicitly as a notification “under Section 512(c) . . . .” But Cloudflare is a system caching provider under section 512(b), not a hosting provider under section 512(c), and notifications of claimed infringement under section 512(b) require essential additional information that Exhibit B lacks. See 17 U.S.C. § 512(b)(2)(E)(ii) (requiring statement that the source website of the cached material has removed or disabled access to it at the source or that a court has ordered it to do so). The information in Exhibit B is thus irrelevant to Cloudflare. Because the plaintiffs identified Exhibit B as a sample of their communications, they cannot cure a pervasive defect in both their communications and their allegations that rely upon those communications.
  695. </p>
  696. </em></blockquote>
  697. <p>
  698. This is actually a pretty big deal. Other courts have tossed out DMCA cases entirely for deficient notices.
  699. </p>
  700. <p>
  701. Finally, one other element in this case. It was originally filed in the Central District of California, but along the way got moved to the Northern District. Along with the move, the bridal dress companies filed an amended complaint, in which they tried to fix some of the many deficiencies in the original, and this just gave Cloudflare <a href="https://assets.documentcloud.org/documents/6206786/Gov-Uscourts-Cand-339512-40-0-2.pdf" target="_blank">a second chance</a> to explain why the whole thing was nonsense. In this motion, Cloudflare dives deep on the difference between the different parts of DMCA 512 and what it covers:
  702. </p>
  703. <blockquote><em>
  704. <p>
  705. The core defect of the plaintiffs’ case is their misunderstanding of the significant difference between <b>web hosting services</b>, which Cloudflare does not provide, and <b>Internet security and website optimization services</b>, which Cloudflare does provide. (Cloudflare explains its services more fully below.) The plaintiffs cannot allege that their notifications of claimed infringement were adequate for Cloudflare or that Cloudflare failed to take any simple measures that were available in the face of their communications... which the plaintiffs describe as a “sample” of “takedown notices” they sent to Cloudflare, lays bare the plaintiffs’ error.... The notice does not refer to Cloudflare. It simply identifies an (allegedly) “infringing domain,” speaks “To Whom it May Concern,” and then discusses “a website that your company hosts.” ... The exhibit also expressly references section 512(c) of the Digital Millennium Copyright Act (DMCA), a provision that relates to web hosting services and not to Cloudflare’s services. See 17 U.S.C. &sect; 512(c). It thus fails to contain additional information that is necessary for notifications of claimed infringement to services like Cloudflare under 17 U.S.C. &sect; 512(b)(2)(E). The amended complaint repeatedly makes clear that Cloudflare provides services to websites, which use other hosting services. Cloudflare does not itself host its customers’ websites.
  706. </p>
  707. </em></blockquote>
  708. <p>
  709. In <a href="https://assets.documentcloud.org/documents/6206788/Gov-Uscourts-Cand-339512-43-0-1-1.pdf" target="_blank">responding to this</a>, the lawyer for the dress makers <b>simply doubles down on the false claim that Cloudflare is hosting the content</b>. It's... quite incredible. Also, the dress makers try to get around the lack of inducement by saying that the actual standard is "material contribution" and not "inducement."
  710. </p>
  711. <blockquote><em>
  712. <p>
  713. In a clever sleight of hand, Cloudflare tries to sidestep the fact that it stores client website content, including infringing content, on its data servers in order to provide internet users with quicker, safer access to the infringing content. Ignoring the settled law which distinguishes between the “inducement” and “material contribution” pillars of contribution liability, Cloudflare conflates these two pillars in arguing that Plaintiffs’ claims, which are based only on the material contribution theory of contributory copyright infringement, do not satisfy the more demanding standard used to evaluate the inducement theory for contributory infringement. Cloudflare’s entire motion is therefore a strawman.
  714. </p>
  715. </em></blockquote>
  716. <p>
  717. Except, literally all of that is wrong. This is not a question of different interpretations or different ways of looking at the law. This argument is just wrong. Indeed, as Cloudflare <a href="https://assets.documentcloud.org/documents/6206787/Gov-Uscourts-Cand-339512-46-0-2.pdf" target="_blank">pointed out to the judge</a> in response, the "material contribution" standard was used <b>before Grokster</b> in the 9th Circuit, but since that ruling came down, the 9th Circuit (as instructed by the Supreme Court in Grokster) now says that the proper test is whether or not there was inducement:
  718. </p>
  719. <blockquote><em>
  720. <p>
  721. Before Grokster, the Ninth Circuit’s standard included “material contribution” language, but the Ninth Circuit has since conformed its standard to the Supreme Court’s teaching. (“Our tests for contributory liability are consistent with the rule set forth in Grokster.”) There is no third category of contributory infringement beyond what the Supreme Court articulated....
  722. </p>
  723. <p>
  724. [....]
  725. </p>
  726. <p>
  727. Material contribution is not a separate “theory” of contributory infringement but instead a way of characterizing imputed intent.
  728. </p>
  729. </em></blockquote>
  730. <p>
  731. There is so much about this case that is just... bizarre and ridiculous. And yet, the judge basically shrugs about all of this and says the case may continue. And, incredibly, he gives no real reasons why other than basically saying that the (very wrong) arguments of the bridal dress shops are correct. The entire order denying the motion to dismiss is three paragraphs. Literally, that is it.
  732. </p>
  733. <blockquote><em>
  734. <p>
  735. Cloudflare’s main argument – that contributory liability cannot be based on a defendant’s knowledge of infringing conduct and continued material contribution to it – is wrong. See Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) (“[O]ne contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.”); see also Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir. 2017) (“[A] computer system operator is liable under a material contribution theory of infringement if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.” (internal quotations and italics omitted)). Allegations that Cloudflare knew its customer-websites displayed infringing material and continued to provide those websites with faster load times and concealed identities are sufficient to state a claim.
  736. </p>
  737. <p>
  738. 2. The notices allegedly sent by the plaintiffs gave Cloudflare specific information, including a link to the offending website and a link to the underlying copyrighted material, to plausibly allege that Cloudflare had actual knowledge of the infringing activity. This is sufficient, at least at the pleading stage. A prior judicial determination of infringement was unnecessary.
  739. </p>
  740. <p>
  741. 3. Cloudflare’s challenge to the sufficiency of the notices under 17 U.S.C. section 512 is misplaced. Section 512 limits available relief based on certain safe harbors. Cloudflare has not shown that its conduct should be considered under one safe harbor rather than under another safe harbor (and thus has not shown that the alleged notice would need to be formatted in one way rather than another). In any event, this issue is neither dispositive to the action nor appropriate for resolution at this stage of the case.
  742. </p>
  743. </em></blockquote>
  744. <p>
  745. This... is, again, simply incorrect. It completely misreads the law and previous cases. Paragraph three here is the most troubling of all. As noted above, Cloudflare is not a hosting service. It is not relying on the 512(c) safe harbors, but the 512(b) safe harbors, because it is a 512(b) service. And the judge literally ignores that and says that the company "has not shown that its conduct should be considered under one safe harbor rather than under another safe harbor" even though that's <b>exactly</b> what its filings repeatedly do.
  746. </p>
  747. <p>
  748. I'm at a near total loss as to how the judge made this decision, because it is so far outside what the statute and case law (especially in the 9th circuit) say, that I can only conclude he decided to go with Eric Goldman's concept that when there's some infringement somewhere, all precedent and the letter of the law go out the window.
  749. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/17562542612/very-confused-judge-allows-bizarre-copyright-lawsuit-against-cloudflare-to-continue.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/17562542612/very-confused-judge-allows-bizarre-copyright-lawsuit-against-cloudflare-to-continue.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/17562542612/very-confused-judge-allows-bizarre-copyright-lawsuit-against-cloudflare-to-continue.shtml?op=sharethis">Email This Story</a><br />
  750. ]]></description>
  751. <slash:department>that&#39;s not what the law says?</slash:department>
  752. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190718/17562542612</wfw:commentRss>
  753. </item>
  754. <item>
  755. <pubDate>Fri, 19 Jul 2019 10:44:00 PDT</pubDate>
  756. <title>Public Records Request Nets User&#39;s Manual For Palantir&#39;s Souped-Up Surveillance Software</title>
  757. <dc:creator>Tim Cushing</dc:creator>
  758. <link>https://www.techdirt.com/articles/20190716/19112442601/public-records-request-nets-users-manual-palantirs-souped-up-surveillance-software.shtml</link>
  759. <guid>https://www.techdirt.com/articles/20190716/19112442601/public-records-request-nets-users-manual-palantirs-souped-up-surveillance-software.shtml</guid>
  760. <description><![CDATA[ <p>
  761. <a href="https://www.techdirt.com/blog/?company=palantir">Palantir</a> is the 800-pound gorilla of data analytics. It has created a <a href="https://www.techdirt.com/articles/20130927/17175624683/helping-build-surveillance-state-is-good-business-palantir-gets-196-million-more-funding.shtml">massive surveillance apparatus</a> that pulls info from multiple sources to give law enforcement convenient places to dip into the data stream. Law enforcement databases may focus on criminals, but Palantir's efforts focus on everyone. Whatever can be collected is collected. Palantir provides both the data and the front end, making it easy for government agencies to not only track criminal suspects, but everyone they've ever associated with.
  762. </p>
  763. <p>
  764. Palantir is big. But being the biggest player in the market doesn't exactly encourage quality work or accountability. Multiple problems have already been noticed by the company's numerous law enforcement customers -- including the company's apparent inability to <a href="https://www.techdirt.com/articles/20170815/14235738007/palantirs-law-enforcement-data-stranglehold-isnt-good-police-policed.shtml">responsibly handle data</a> -- but complaints from agencies tied into multi-year contracts are pretty easy to ignore. Palantir says it provides "actionable data." Sounds pretty cool, but in practice this means things like <a href="http://www.ocregister.com/2013/02/08/police-confuse-truck-for-dorners-shoot-at-3-in-torrance/">cops firing guns at innocent people</a> because the software spat out faulty suspect/vehicle descriptions.
  765. </p>
  766. <p>
  767. Agencies must see the value in Palantir's products because few seem willing to ditch these data analytics packages. The company does a fairly good job dropping a usable interface on top of its data haystacks. It sells well. And it's proprietary, which means Palantir can get into the policing business without actually having to engage in the accountability and openness expected of government agencies.
  768. </p>
  769. <p>
  770. Fortunately for the public, government agencies still have to respond to public records requests -- even if the documents sought detail private vendors' offerings. <a href="https://www.vice.com/en_us/article/9kx4z8/revealed-this-is-palantirs-top-secret-user-manual-for-cops">Vice has obtained part of a user's manual for Palantir Gotham</a>, which is used by a number of state and federal agencies. This software appears to be used by "fusion centers," the <a href="https://www.techdirt.com/articles/20130924/10470524637/documents-obtained-aclu-show-fusion-centers-broad-surveillance-americans-everyday-activities.shtml">DHS-created abominations</a> that do serious damage to civil liberties but produce very little usable intelligence.
  771. </p>
  772. <p>
  773. The <a href="https://assets.documentcloud.org/documents/6204567/PALANTIR-Guide.pdf">manual</a> [PDF] seems to be written for the California law enforcement agencies that work with local fusion centers. The amount of data Palantir's software provides access to is stunning:
  774. </p>
  775. <blockquote>
  776. <p>
  777. <em>The Palantir user guide shows that police can start with almost no information about a person of interest and instantly know extremely intimate details about their lives. The capabilities are staggering, according to the guide:</em>
  778. </p>
  779. <p>
  780. <ul> <li>
  781. <p>
  782. <em>If police have a name that&rsquo;s associated with a license plate, they can use automatic license plate reader data to find out where they&rsquo;ve been, and when they&rsquo;ve been there. This can give a complete account of where someone has driven over any time period.</em>
  783. </p>
  784. </li> <li>
  785. <p>
  786. <em>With a name, police can also find a person's email address, phone numbers, current and previous addresses, bank accounts, social security number(s), business relationships, family relationships, and license information like height, weight, and eye color, as long as it's in the agency's database.</em>
  787. </p>
  788. </li> <li>
  789. <p>
  790. <em>The software can map out a person's family members and business associates of a suspect, and theoretically, find the above information about them, too.</em>
  791. </p>
  792. </li> </ul>
  793. </p>
  794. </blockquote>
  795. <p>
  796. For all of this to work, Palantir needs data. Lots and lots of data. The software pulls info from law enforcement databases, public records, and other sources the manual doesn't discuss. It mentions email addresses and bank records as responsive to searches. All of this is dumped into the user-friendly front end, allowing government agencies to recreate people's lives and movements. Another couple of clicks and officers can start doing the same thing for every person linked -- however tenuously -- to the original target.
  797. </p>
  798. <p>
  799. There's been a lot of discussion of Palantir's contributions to the surveillance state. These documents finally give the public a glimpse of the front end. That's a lot of power at a number of people's fingerprints and it's being deployed with zero oversight or accountability.
  800. </p><br /><br /><a href="https://www.techdirt.com/articles/20190716/19112442601/public-records-request-nets-users-manual-palantirs-souped-up-surveillance-software.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190716/19112442601/public-records-request-nets-users-manual-palantirs-souped-up-surveillance-software.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190716/19112442601/public-records-request-nets-users-manual-palantirs-souped-up-surveillance-software.shtml?op=sharethis">Email This Story</a><br />
  801. ]]></description>
  802. <slash:department>big-data,-tiny-accountability</slash:department>
  803. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190716/19112442601</wfw:commentRss>
  804. </item>
  805. <item>
  806. <pubDate>Fri, 19 Jul 2019 10:39:00 PDT</pubDate>
  807. <title>Daily Deal: The Cloud Computing Architect Certification Bundle</title>
  808. <dc:creator>Daily Deal</dc:creator>
  809. <link>https://www.techdirt.com/articles/20190719/09400642613/daily-deal-cloud-computing-architect-certification-bundle.shtml</link>
  810. <guid>https://www.techdirt.com/articles/20190719/09400642613/daily-deal-cloud-computing-architect-certification-bundle.shtml</guid>
  811. <description><![CDATA[ <p>
  812. Cloud computing has revolutionized industry and changed the way businesses manage their digital infrastructure.The <a href="https://deals.techdirt.com/sales/the-cloud-computing-architect-certification-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=the-cloud-computing-architect-certification-bundle_052119&#038;utm_term=scsf-326568&#038;utm_content=a0x1P000004HJWH&#038;scsonar=1">Cloud Computing Architect Certification Bundle</a> has nine courses geared to help you get familiar with one of technology's fastest growing fields. There are 3 introductory courses to introduce to the basic concepts of cloud computing. After those, the other courses cover Microsoft Azure, AWS and Google Cloud Platform. It's on sale for $39.
  813. </p>
  814. <div class="centered">
  815. <a href="https://deals.techdirt.com/sales/the-cloud-computing-architect-certification-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=the-cloud-computing-architect-certification-bundle_052119&#038;utm_term=scsf-326568&#038;utm_content=a0x1P000004HJWH&#038;scsonar=1"><img src="https://i.imgur.com/Q8vArYG.jpg" title="source: imgur.com" width="400"/></a>
  816. </div>
  817. <p>
  818. <em>Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.</em>
  819. </p><br /><br /><a href="https://www.techdirt.com/articles/20190719/09400642613/daily-deal-cloud-computing-architect-certification-bundle.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190719/09400642613/daily-deal-cloud-computing-architect-certification-bundle.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190719/09400642613/daily-deal-cloud-computing-architect-certification-bundle.shtml?op=sharethis">Email This Story</a><br />
  820. ]]></description>
  821. <slash:department>good-deals-on-cool-stuff</slash:department>
  822. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190719/09400642613</wfw:commentRss>
  823. </item>
  824. <item>
  825. <pubDate>Fri, 19 Jul 2019 09:25:44 PDT</pubDate>
  826. <title>The CASE Act: The Road To Copyright Trolling Is Paved With Good Intentions</title>
  827. <dc:creator>Stan Adams</dc:creator>
  828. <link>https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml</link>
  829. <guid>https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml</guid>
  830. <description><![CDATA[ <p>
  831. <em>We've written a few times in the past about the <a href="https://www.techdirt.com/blog/?tag=case+act">serious problems with the CASE Act</a>, a bill that will create a thriving industry of copyright trolling and shakedowns. On Thursday, the Senate Judiciary Committee <a href="https://twitter.com/SenJohnKennedy/status/1151906206040186880" target="_blank">passed the CASE Act</a> out of Committee, meaning that it could go to the floor for a full vote. Stan Adams, from CDT, has written <a href="https://cdt.org/blog/the-case-act-the-road-to-copyright-trolling-is-paved-with-good-intentions/" target="_blank">a detailed, and thoughtful critique</a>, noting that even if there are good intentions behind the CASE Act, it has many, many problems. We're reposting it here, under CDT's CC-BY license.</em>
  832. </p>
  833. <p>
  834. Sometimes ideas based in good intentions are so poorly thought out that they would actually make things worse.
  835. This seems to be especially prevalent in the copyright world of late (I'm looking at you,
  836. <a href="https://cdt.org/blog/doing-the-wrong-thing-for-the-wrong-reasons-article-13-replaces-safe-harbors-with-upload-filters-which-wont-help-artists-but-will-hurt-the-internet/">Articles 15 and 17
  837. of the EU Copyright Directive</a>), but the most recent example is the
  838. <a href="https://www.congress.gov/116/bills/s1273/BILLS-116s1273is.pdf">Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act)</a>.
  839. This bill intends to give photographers and small businesses a more streamlined way to enforce their rights with respect to online infringements by
  840. reducing the costs and formalities associated with bringing infringement claims in federal court. Pursuing infringement claims can be expensive and time-consuming, so this may sound like a good thing, especially for rightsholders with limited resources. It is not.
  841. </p>
  842. <p>
  843. The CASE Act would establish a quasi-judicial body within the Copyright Office (part of the legislative branch) empowered to hear a limited set of claims, make "determinations" about whether those claims are valid, and assign "limited" damages. The bill structures the process so that it is "voluntary" and lowers the barriers to filing claims so that plaintiffs can more easily defend their rights. Without the "quotes", this description might sound like a reasonable approach, but that's because we haven't talked about the details. Let's start at the top.
  844. </p>
  845. <p>
  846. The bill would establish a Copyright Claims Board (CCB) in the Copyright Office. This would not be a court and would be entirely separated from the court system. The only option to appeal any of the CCB's determinations, based on the CCB's legal interpretation, would be to ask the Register of Copyrights to review the decision. It would be theoretically possible to ask a federal court to review the determination, but only on the grounds that the CCB's determination was "issued as a result of fraud, corruption, misrepresentation, or other misconduct" or if the CCB exceeded its authority. So if you disagree with the CCB's legal interpretation, or even its competence to make a decision, you are out of luck. This raises red flags about potential due process and separation of powers problems under the Constitution.
  847. </p>
  848. <p>
  849. The "small claims" part of the bill is also troubling, in that the CCB can award damages up to $30,000 per proceeding. This amount is only considered small in the context of copyright statutory damages, which range between $750-30,000 per work infringed, unless the infringement was willful, in which case, damages can be $150,000 per work. The $30K cap is a <a href="https://www.nolo.com/legal-encyclopedia/small-claims-suits-how-much-30031.html">2x-10x multiple of the maximum awards for small claims courts in 49 of 50 states</a>. (Side note: what's going on, Tennessee?) So losing a single small-claims action before the CCB could be a financial disaster for many people, potentially for nothing more than uploading a few pictures to your blog.
  850. </p>
  851. <p>
  852. You may be thinking, "I won't infringe copyright, I'll just make sure not to use any protected works." Here's why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy. You may know the photographer or there may be clues indicating who likely owns the rights, such as watermarks or attribution information (photo courtesy of x). However, the only sure way to identify the rightsholder for any given work is to <a href="https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&#038;PAGE=First">check with the Copyright Office</a> to see who registered the work.
  853. </p>
  854. <p>
  855. Even though the Supreme Court recently <a href="https://cdt.org/blog/copyright-at-the-supreme-court/">ruled that the registration process must be completed</a> (either the Copyright Office granted or denied the application for registration) before filing infringement claims, registration <em>is not required</em> to bring an action under the CASE Act. This leaves everyone (other than the original author/photographer) with no guaranteed way to determine who holds the rights to unregistered works. Even if you identified someone as a potential rightsholder, it could be difficult or impossible to verify their claim of ownership without the <a href="https://www.copyright.gov/rrc/">official recognition by the Copyright Office</a>. So even if you are acting in good faith and attempt to obtain permission before using a work, you may not be able to do so and there is no guarantee that you will have obtained permission from the correct party, leaving you exposed to claims via the CASE Act.
  856. </p>
  857. <p>
  858. For example, you see an image (perhaps a vacation photo) on a friend's social media page and ask their permission to share it with your network. They agree and you share, not realizing that your friend copied that image from somewhere else, perhaps a travel company website. Your friend did not have the rights to that photo, and you made and distributed an unauthorized copy, exposing you to the possibility of an infringement claim from the actual photographer. Sharing that single photo could cost you $7500.
  859. </p>
  860. <p>
  861. So, to recap, it may be impossible to obtain the correct permissions to use a work, and using a work with or without permission (relying on the fair use doctrine) may leave you exposed to claims up to $30,000, which will be determined by a panel of non-judges, whose decision you will have almost no way to appeal. Once their decision is final, you are also barred from relitigating your loss in federal court (unless you can prove fraud, etc). You may remember that this process is "voluntary." Let's talk about what that means in reality.
  862. </p>
  863. <p>
  864. The process created in the CASE Act allows defendants to opt-out of the process. Specifically, defendants are given 60 days from when they are notified of the claim to tell the CCB that they do not wish to be subject to the procedure. (This is how the bill's drafters hope to skirt around all the constitutional issues—by getting people to voluntarily give up their due process rights and willingly accept the legal determinations of a non-judicial body.) So it's easy, right? Simply opt-out.
  865. </p>
  866. <p>
  867. Yes, for many would-be defendants, especially the more legally sophisticated ones like large internet companies, opting out of each claim brought against them is not likely to be difficult, even if it is time and resource intensive. However, think about what you might do if you received an envelope claiming to be from a governmental body you have never heard of and asserting that you are potentially liable for infringing copyright. Many would simply ignore it or simply not understand the significance or the potential consequences. Others might perceive this notification as a form of phishing or a potential scam. 60 days elapse and you are now subject to the determinations of the CCB. The next letter you receive may be correspondence from a law firm (on behalf of the claimant) offering you a settlement deal that lets you buy your way out of the legal fight and the possibility of a $30,000 liability. Now what should you do: settle or try to defend yourself at the risk of a higher liability amount?
  868. </p>
  869. <p>
  870. This litigation model is often called "trolling" and the CASE Act sets up a process that serves that model well. Sure, the process is voluntary, which means that only the least legally savvy people will be defendants. Yes, the statutory damages are reduced (compared to those available through federal courts), but they are still plenty high enough to push defendants toward settlement, especially given the limited options for appeal.
  871. </p>
  872. <p>
  873. Despite its good intentions, the CASE Act is a legal disaster waiting to happen.
  874. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/11385842610/case-act-road-to-copyright-trolling-is-paved-with-good-intentions.shtml?op=sharethis">Email This Story</a><br />
  875. ]]></description>
  876. <slash:department>this-will-be-bad</slash:department>
  877. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190718/11385842610</wfw:commentRss>
  878. </item>
  879. <item>
  880. <pubDate>Fri, 19 Jul 2019 06:18:44 PDT</pubDate>
  881. <title>Netflix Sees First Subscriber Losses Ever</title>
  882. <dc:creator>Karl Bode</dc:creator>
  883. <link>https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml</link>
  884. <guid>https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml</guid>
  885. <description><![CDATA[ <p>
  886. Netflix has certainly enjoyed its flight to the top of the heap of the streaming space, now streaming video to 60.1 million US subscribers. That's more than pay TV giants like AT&#038;T or even Comcast, who've done their best (via <a href="https://www.techdirt.com/articles/20181220/08015941270/att-lets-users-avoid-broadband-capsif-they-use-ats-own-streaming-service.shtml">usage caps</a> and <a href="https://www.techdirt.com/articles/20181113/09561641042/att-ceo-continues-his-fake-calls-real-privacy-net-neutrality-laws.shtml">lobbying shenanigans</a>) to unsuccessfully hamper Netflix's meteoric rise.
  887. </p>
  888. <p>
  889. But there's some indication that the company may have started to reach its high water mark. Netflix this week revealed it lost <a href="https://www.bloomberg.com/news/articles/2019-07-17/netflix-plunges-as-price-increase-leads-to-u-s-customer-losses">130,000 subscribers last quarter</a>, the company's <em>first quarterly subscriber loss in history</em>. The losses come despite Netflix having spent $3 billion on programming last quarter, and another $600 million to market its its wares. The loss was quick to rekindle memories of Netflix's bumbled Qwikster, price hike debacle from <a href="https://www.techdirt.com/articles/20110920/00351516020/netflix-were-sorry-about-huge-price-increase-so-uh-qwikster.shtml">back in 2011</a>:
  890. </p>
  891. <blockquote><em>
  892. <p>
  893. "Investors had been forgiving about the spending and the debt -- so long as customers grew at record rates. But the loss of subscribers in the U.S. was the first since the Qwikster debacle, and it suggests Netflix may be running into price resistance or the limits of the addressable domestic market. The company has forecast it can reach as much as 90 million customers in the U.S., compared with 60.1 million currently."
  894. </p>
  895. </em></blockquote>
  896. <p>
  897. In a <a href="https://s22.q4cdn.com/959853165/files/doc_financials/quarterly_reports/2019/q2/Q2-19-Shareholder-Letter-FINAL.pdf">letter to investors</a>, Netflix downplayed the rise of streaming competition, blaming the losses on its own price hikes and a fairly underwhelming content slate during the quarter:
  898. </p>
  899. <blockquote><em>
  900. <p>
  901. "Our missed forecast was across all regions, but slightly more so in regions with price increases. We don’t believe competition was a factor since there wasn’t a material change in the competitive landscape during Q2, and competitive intensity and our penetration is varied across regions (while our over-forecast was in every region). Rather, we think Q2’s content slate drove less growth in paid net adds than we anticipated.
  902. </p>
  903. </em></blockquote>
  904. <p>
  905. Given all the premature hand wringing and predictions of doom that surrounded Netflix after the Qwikster face plant, anybody suggesting Netflix will suddenly start to free fall is likely jumping the gun. Netflix's third quarter kicked off with the launch of <em>Stranger Things</em> season three, which will likely help drive subscriptions skyward again. And Netflix executives also seem to be slowly realizing that throwing around billions of dollars for mediocre international content at a mind-boggling scale may not be the winning strategy they originally surmised.
  906. </p>
  907. <p>
  908. That said, this is only really the beginning of Netflix's challenges. Giants like <a href="https://www.techdirt.com/articles/20190627/11202942488/streaming-tv-sector-still-doesnt-realize-exclusives-will-drive-users-back-to-piracy.shtml">Disney</a>, <a href="https://www.techdirt.com/articles/20190711/07244942566/att-breaks-another-merger-promise-making-friends-exclusive.shtml">AT&#038;T</a>, and <a href="https://www.techdirt.com/articles/20190627/11202942488/streaming-tv-sector-still-doesnt-realize-exclusives-will-drive-users-back-to-pi">Comcast</a> are all rushing to pull their growing slate of TV shows and movies from Netflix and shift them exclusively to their own new streaming platforms. Studies suggest that nearly every broadcaster will launch their own streaming service <a href="https://www.dslreports.com/shownews/Study-Every-Broadcaster-Will-Offer-a-Streaming-Service-by-2022-141445">by 2022</a>. That's not only going to create greater losses due to competition, but the added cost and confusion of so many exclusivity silos is going to likely drive <a href="https://www.techdirt.com/articles/20190627/11202942488/streaming-tv-sector-still-doesnt-realize-exclusives-will-drive-users-back-to-piracy.shtml">a significant number of users back to piracy</a>, something the streaming sector hasn't really figured out yet.
  909. </p>
  910. <p>
  911. In other words, despite a lot of pearl clutching Netflix is likely to clear its current hurdles. It's the rise of an ocean of streaming exclusives (especially by telecom providers given the death of net neutrality) and a shift back to piracy Netflix will really need to worry about over the next five years.
  912. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/08110142608/netflix-sees-first-subscriber-losses-ever.shtml?op=sharethis">Email This Story</a><br />
  913. ]]></description>
  914. <slash:department>adapt-or-perish</slash:department>
  915. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190718/08110142608</wfw:commentRss>
  916. </item>
  917. <item>
  918. <pubDate>Fri, 19 Jul 2019 03:15:44 PDT</pubDate>
  919. <title>London Metropolitan Police&#39;s Facial Recognition System Is Now Only Misidentifying People 81% Of The Time</title>
  920. <dc:creator>Tim Cushing</dc:creator>
  921. <link>https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml</link>
  922. <guid>https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml</guid>
  923. <description><![CDATA[ <p>
  924. The London Metropolitan Police's spectacular run of failure continues. Sky News reports the latest data shows the Met's facial recognition tech is <a href="https://news.sky.com/story/met-polices-facial-recognition-tech-has-81-error-rate-independent-report-says-11755941">still better at fucking up than doing what it says on the tin</a>.
  925. </p>
  926. <blockquote>
  927. <p>
  928. <em>Researchers found that the controversial system is 81% inaccurate - meaning that, in the vast majority of cases, it flagged up faces to police when they were not on a wanted list.</em>
  929. </p>
  930. </blockquote>
  931. <p>
  932. Needless to say, this has raised "significant concerns" by the sort of people most likely to be concerned about false positives. Needless to say, this does <em>not</em> include the London Metropolitan Police, which continues to deploy this tech despite its only marginally-improved failure rate.
  933. </p>
  934. <p>
  935. In 2018, <a href="https://www.techdirt.com/articles/20181218/16562041265/london-metropolitan-police-deploy-facial-recognition-tech-sporting-100-failure-rate.shtml">it was reported</a> the Metropolitan Police's tech was misidentifying people at an astounding 100% rate. False positives were apparently the <em>only</em> thing the system was capable of. Things had improved <a href="https://www.techdirt.com/articles/20190506/13533942150/new-data-london-metro-police-facial-recognition-tech-shows-still-wrong-96-percent-time.shtml">by May 2019</a>, bringing the Met's false positive rate down to 96%. The sample size was still pretty small, meaning this had a negligible effect on the possibility of the Metropolitan Police rounding up the <em>unusual</em> suspects the system claimed were the usual suspects.
  936. </p>
  937. <p>
  938. Perhaps this should be viewed as a positive development, but when a system has only managed to work its way up to being wrong 81% of the time, we should probably hold our applause until the end of the presentation.
  939. </p>
  940. <p>
  941. As it stands now, the tech is better at being wrong than identifying criminals. But what's just as concerning is the Met's unshaken faith in its failing tech. It defends its facial recognition software <a href="https://www.technologyreview.com/f/613922/london-polices-face-recognition-system-gets-it-wrong-81-of-the-time/">with stats that are literally unbelievable</a>.
  942. </p>
  943. <blockquote>
  944. <p>
  945. <em>The Met police insists its technology makes an error in only one in 1,000 instances, but it hasn&rsquo;t shared its methodology for arriving at that statistic.</em>
  946. </p>
  947. </blockquote>
  948. <p>
  949. This much lower error rate springs from Metropolitan Police's generous accounting of its facial recognition program. Its method compares successful and unsuccessful matches with the total number of faces processed. That's how it arrives at a failure rate that sounds much, much better than a system that is far more often wrong than right.
  950. </p>
  951. <p>
  952. No matter which math is used, it's not acceptable to deploy tech that's wrong so often when the public is routinely stripped of its agency by secret discussions and quiet rollouts. Here in the US, <a href="https://www.techdirt.com/articles/20190627/21011442491/somerville-massachusetts-becomes-second-us-city-to-ban-facial-recognition-tech.shtml">two cities</a> have banned <a href="https://www.techdirt.com/articles/20190515/16252042217/city-san-francisco-bans-use-facial-recognition-tech-government-agencies.shtml">this tech</a>, citing its unreliability and the potential harms caused by its deployment. Out in London, law enforcement has never been told "No." A city <a href="https://www.techdirt.com/articles/20141112/06534529115/londons-third-wall-surveillance-function-creep.shtml">covered by cameras</a> is witnessing surveillance mission creep utilizing notoriously unreliable tech.
  953. </p>
  954. <p>
  955. The tech is being challenged in court by Big Brother Watch, which points out that every new report of the tech's utter failure only strengthens its case. Government officials, however, aren't so sure. And by "not so sure," I mean, "mired in deep denial."
  956. </p>
  957. <blockquote>
  958. <p>
  959. <em>The Home Office defended the Met, telling Sky News: "We support the police as they trial new technologies to protect the public, including facial recognition, which can help them identity criminals.</em>
  960. </p>
  961. </blockquote>
  962. <p>
  963. But it <em>clearly</em> does not do that.
  964. </p>
  965. <p>
  966. It misidentifies people as criminals, which isn't even remotely close to "identifying criminals." It's the exact opposite and it's going to harm London residents. And the government offers nothing but shrugs and empty assurances of public safety.
  967. </p><br /><br /><a href="https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190707/18134542534/london-metropolitan-polices-facial-recognition-system-is-now-only-misidentifying-people-81-time.shtml?op=sharethis">Email This Story</a><br />
  968. ]]></description>
  969. <slash:department>any-year-now...</slash:department>
  970. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190707/18134542534</wfw:commentRss>
  971. </item>
  972. <item>
  973. <pubDate>Thu, 18 Jul 2019 19:57:36 PDT</pubDate>
  974. <title>Why The Appearance Of A One Terabyte microSD Card Means The War On Unauthorized Music Downloads Is (Almost) Over</title>
  975. <dc:creator>Glyn Moody</dc:creator>
  976. <link>https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml</link>
  977. <guid>https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml</guid>
  978. <description><![CDATA[ <p>
  979. <a href="https://en.wikipedia.org/wiki/Moore%27s_law">Moore's Law</a> is well known. But many people think it's about how chip processing power keeps increasing. It's actually about the number and/or density of components on silicon. As such, it applies just as much to memory storage products as to processor chips. It's why <a href="https://mashable.com/review/sandisk-extreme-1tb-microsd-card-review/">you can now buy a one terabyte microSD card for $449.99</a>. Never mind the price: although it's steep, it will inevitably tumble in the next few years, just as happened with lower-capacity microSD cards. What's much more important is what you can store with one terabyte on a tiny, tiny card. Mashable has done the calculations:
  980. </p>
  981. <blockquote><em>
  982. <p>
  983. About 1,000,000 e-books (at an average size of 1MB per e-book)
  984. </p>
  985. <p>
  986. About 200,000 photos (12-megapixel iPhone XS Live Photos at an average size of 5MB) or 500,000 photos (12-megapixel iPhone XS photos at an average size of 2MB)
  987. </p>
  988. <p>
  989. About 250,000 iTunes songs (at an average size of 4MB for an average 4-minute tune)
  990. </p>
  991. <p>
  992. About 222 Full HD movies from iTunes (at an average of 4.5GB per movie)
  993. </p>
  994. </em></blockquote>
  995. <p>
  996. Perhaps the most interesting one there is the music. <a href="https://newsroom.spotify.com/company-info/">Spotify says it has over 50 million tracks on its service</a>. That means a 256 terabyte microSD could probably hold every track on Spotify, and thus most of the recorded music that is generally available in a digital form. Even with today's one terabyte card, you can probably store the complete catalog of songs in a particular style or genre, which is what many people will be most interested in.
  997. </p>
  998. <p>
  999. In any case, assuming Moore's Law continues to hold, it will soon be possible to buy a 256 terabyte microSD card. Yes, it will be pricey to begin with, but progressively cheaper. At that point, moves to stop unauthorized sharing of music online will be even more pointless than they are now. People won't need to download lots of stuff from dodgy sites any more; they'll just find a friend who has a 256 terabyte microSD card loaded up with all recorded music, and make a copy. After that, they just need to update the parts that interest them -- or find someone with a more recent complete collection.
  1000. </p>
  1001. <p>
  1002. The same will happen to videos, although that's a little way off, since something like a 256 <em>petabyte</em> microSD card will be needed to hold every film that has been digitized. But it too will come, just as the milestone one terabyte capacity has finally arrived, however improbable that might have seemed a few years ago.
  1003. </p>
  1004. <p>
  1005. Follow me @glynmoody on <a href="https://twitter.com/glynmoody">Twitter</a>, <a href="https://joindiaspora.com/people/4cfe755c2c1743364f000890">Diaspora</a>, or <a href="https://mastodon.social/@glynmoody">Mastodon</a>.
  1006. </p><br /><br /><a href="https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190717/09425442604/why-appearance-one-terabyte-microsd-card-means-war-unauthorized-music-downloads-is-almost-over.shtml?op=sharethis">Email This Story</a><br />
  1007. ]]></description>
  1008. <slash:department>war-on-video-downloads-over-after-that</slash:department>
  1009. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190717/09425442604</wfw:commentRss>
  1010. </item>
  1011. <item>
  1012. <pubDate>Thu, 18 Jul 2019 15:28:47 PDT</pubDate>
  1013. <title>Dean Guitar Counter-Sues Against Gibson Guitars, Attempts To Invalidate Several Trademarks</title>
  1014. <dc:creator>Timothy Geigner</dc:creator>
  1015. <link>https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml</link>
  1016. <guid>https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml</guid>
  1017. <description><![CDATA[ <p>
  1018. Earlier this month, we <a href="https://www.techdirt.com/articles/20190702/10545442512/gibson-guitar-declares-shift-ip-enforcement-after-most-recent-public-backlash.shtml">discussed</a> how Gibson Guitar CEO James Curleigh had recently announced a shift in its IP enforcement strategy to try to be more permissive. That has since calcified into an actual formal plan, but we'll get into that more in a separate post because there is enough good and bad in it to be worth discussing. What kicked Curleigh's reveal, however, was backlash from a recent lawsuit filed by Gibson against Armadillo Distribution Enterprises, the parent owner of Dean Guitars. Dean sells several guitars that Gibson claims are trademark violations of its famed "flying v" and "explorer" body shapes. There are differences in the designs, to be clear, but there are also similarities. Even as Curleigh's plans for a more permissive IP attitude for Gibson go into effect, this lawsuit continues.
  1019. </p>
  1020. <p>
  1021. But not without Armadillo punching back, it seems. In response to the suit, <a href="https://guitar.com/news/dean-seeks-trademark-cancellation-against-gibson-alleges-dealer-interference/">Armadillo has decided to counter-sue</a> with claims that Gibson's designs are not only too generic to be worthy of trademark protection, but also that Gibson's actions constitute interference with its legitimate business. We'll start with the trademarks.
  1022. </p>
  1023. <blockquote>
  1024. <p>
  1025. <em>The most potentially impactful aspect of the filings relates to the issue of the trademarks of the Flying V, Explorer and ES-335 body shapes. These marks were a key part of Gibson&rsquo;s original counterfeiting claim, and as part of its defence, Armadillo is not only trying to prove that the claims are without merit, but crucially it also seeks to get the trademarks cancelled altogether.</em>
  1026. </p>
  1027. <p>
  1028. <em>&ldquo;The above designs have been prominently used and promoted for years and, in some instances, decades,&rdquo; the suit reads. &ldquo;All the while, Gibson sat on its purported rights and failed to object.&rdquo; The suit goes on to claim that Dean has invested millions of dollars promoting and marketing guitars with those shapes in that period, and as such, &ldquo;some of Gibson&rsquo;s accused trademarks are invalid because they are generic and/or incapable of serving as a source identifier for guitars&rdquo;.</em>
  1029. </p>
  1030. </blockquote>
  1031. <p>
  1032. As the article points out, there is precedence for this. A decade ago, Fender lost the right to trademark several guitar designs that it had failed to protect, while Gibson itself fell victim to this same thing in the early 2000s. While some may point to this as being evidence that companies <em>must</em> aggressively protect their intellectual property, I would argue that such designs of guitars are not great source-identifiers for the public and probably shouldn't have been afforded trademark protection to begin with. Regardless, if Gibson once again allowed others to use variations of these designs, that point is moot, as the designs would have become generic in the marketplace.
  1033. </p>
  1034. <p>
  1035. As to the interference with Dean's business in the market, it seems that Gibson didn't only contact Dean about the alleged infringement, but dealers of guitars as well.
  1036. </p>
  1037. <blockquote>
  1038. <p>
  1039. <em>The suit cites the example of Carlino Guitars &ndash; a guitar shop in Medford, Massachusetts &ndash; which it claims was sent cease and desist letters by Gibson in April and May 2019. The letters allegedly demanded the removal of all Dean V and Z guitars from the shop&rsquo;s website, accused them of being party to trademark infringement by stocking Dean instruments, and threatened the store with legal action if they didn&rsquo;t comply.</em>
  1040. </p>
  1041. <p>
  1042. <em>The suit claims that based on &ldquo;information and belief&rdquo; that Gibson sent similar letters to other dealers and retailers, &ldquo;with the intent of disruption Armadillo&rsquo;s sales and contractual relationships&rdquo;.</em>
  1043. </p>
  1044. </blockquote>
  1045. <p>
  1046. This is fairly aggressive on the part of Gibson, as these guitar dealers are stocking Dean guitars with the good faith understanding that they aren't selling counterfeit products. And, frankly, given Gibson's failure to protect their supposedly valid trademarks in the past, it sure reads as though Gibson jumped the gun on sending out these legal notices to dealers before getting its own lawsuit over the trademark claims adjudicated. With that move, Dean's counterclaim probably rests on how the court judges the trademark issue, which is an avenue of legal exposure that is unnecessary for Gibson to have endured. I'm a bit surprised the company's legal team wasn't more cautious.
  1047. </p>
  1048. <p>
  1049. In the end, because of Gibson's aggressive enforcement stance, even as the company is proclaiming a new era of relaxed IP enforcement, there is now the very real risk of the company losing its trademarks and incurring costs.
  1050. </p>
  1051. <blockquote>
  1052. <p>
  1053. <em>The counterclaim demands the cancellation of Gibson&rsquo;s Flying V, Explorer and ES-335 body shape trademarks, and seeks the &ldquo;maximum damages permitted by law&rdquo; for the alleged interference caused by the company&rsquo;s communication with Dean and Gibson dealers.</em>
  1054. </p>
  1055. </blockquote>
  1056. <p>
  1057. The outcome of this will be interesting, if only to see if Gibson will suffer one final blow for its previously aggressive trademark enforcement.
  1058. </p><br /><br /><a href="https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190710/14370842555/dean-guitar-counter-sues-against-gibson-guitars-attempts-to-invalidate-several-trademarks.shtml?op=sharethis">Email This Story</a><br />
  1059. ]]></description>
  1060. <slash:department>dis-chord</slash:department>
  1061. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190710/14370842555</wfw:commentRss>
  1062. </item>
  1063. <item>
  1064. <pubDate>Thu, 18 Jul 2019 13:31:00 PDT</pubDate>
  1065. <title>Latest Huawei &#39;Smoking Gun&#39; Still Doesn&#39;t Prove Global Blackball Effort&#39;s Primary Justification</title>
  1066. <dc:creator>Karl Bode</dc:creator>
  1067. <link>https://www.techdirt.com/articles/20190708/08542242537/latest-huawei-smoking-gun-still-doesnt-prove-global-blackball-efforts-primary-justification.shtml</link>
  1068. <guid>https://www.techdirt.com/articles/20190708/08542242537/latest-huawei-smoking-gun-still-doesnt-prove-global-blackball-efforts-primary-justification.shtml</guid>
  1069. <description><![CDATA[ <p>
  1070. We've noted a few times now how the protectionist assault against Huawei hasn't been supported by much in the way of <a href="https://www.techdirt.com/articles/20190520/09150442239/google-joins-evidence-optional-assault-huawei.shtml">public evidence</a>. As in, despite widespread allegations that Huawei helps China spy on Americans wholesale, nobody has actually been able to provide any hard public evidence proving that claim. That's a bit of a problem when you're talking about a global blackballing effort. Especially when previous investigations as long as 18 months <a href="https://www.reuters.com/article/us-huawei-spying/exclusive-white-house-review-finds-no-evidence-of-spying-by-huawei-sources-idUSBRE89G1Q920121017?feedType=RSS&#038;feedName=technologyNews&#038;utm_source=dlvr.it&#038;utm_medium=twitter&#038;dlvrit=56505">couldn't find evidence of said spying</a>, and many US companies have a history of ginning up security fears simply because they <a href="https://www.washingtonpost.com/business/technology/huaweis-us-competitors-among-those-pushing-for-scrutiny-of-chinese-tech-firm/2012/10/10/b84d8d16-1256-11e2-a16b-2c110031514a_story.html?utm_term=.49d29f478ef9">don't want to compete with cheaper Chinese kit</a>.
  1071. </p>
  1072. <p>
  1073. That said, a new report (you can find <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3415726">the full thing here</a>) dug through the CVs of many Huawei executives and employees, and found that a small number of "key mid-level technical personnel employed by Huawei have strong backgrounds in work closely associated with intelligence gathering and military activities." This full Twitter thread by the study's author is also worth a read:
  1074. </p>
  1075. <div class="centered">
  1076. <blockquote class="twitter-tweet" data-lang="en"><p lang="en">So it is finally here: reveal day. I am proud to announce I have written a paper with help from a variety of people that comes from a massive leaked database of Chinese CV&#39;s that shows just how close Huawei and Chinese state security services are. 1/n <a href="https://t.co/Knyo4OCz5B">https://t.co/Knyo4OCz5B</a>
  1077. </p>
  1078. <p>
  1079. &mdash; Huawei HR Director Balding (@BaldingsWorld) <a href="https://twitter.com/BaldingsWorld/status/1147259303268454400?ref_src=twsrc%5Etfw">July 5, 2019</a>
  1080. </p>
  1081. </blockquote>
  1082. <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
  1083. </div>
  1084. <p>
  1085. Yes, Huawei's claims that it had absolutely no meaningful ties to state intelligence services has always likely been bullshit. And many of the connections between the military and intel services and these employees are fairly obvious. Some employees went so far as clearly indicating that they worked for the government and Huawei simultaneously. 11 employees attended a Chinese a military academy that also researches “information warfare," though the report doesn't indicate if they actually participated in said research.
  1086. </p>
  1087. <p>
  1088. That said, the paper isn't the <a href="https://nationalpost.com/news/world/smoking-gun-huawei-staff-employment-records-link-them-to-chinese-military-agencies">smoking gun</a> it's being covered as on some fronts. The paper clearly notes that while some employees may have flitted between government and intel services and Huawei, actually connecting them to any hostile actions or spying in the US or UK wasn't possible. Like here in the paper, for example:
  1089. </p>
  1090. <blockquote><em>
  1091. <p>
  1092. Third, in addition to titular and experiential activity that ties Jingguo to state security activities, it is possible to tie work from his CV to reported cases of Huawei information gathering. It is not possible to directly tie his routers or his code to the specific products in question, but based upon the timeline, work described, and geographic responsibility, there is a clear match with work described on Huawei activity in Italy and network security with code being injected that would allow Huawei to access the network and traffic.
  1093. </p>
  1094. </em></blockquote>
  1095. <p>
  1096. So, yes, some folks in the Chinese military and intelligence services have also worked at Huawei. And many likely used those experiences to help the company craft surveillance technologies likely used in China. Given intelligence agencies around the world routinely cultivate, implant, or recruit folks in industry, this kind of cross germination really isn't all that surprising.
  1097. </p>
  1098. <p>
  1099. That said, these kinds of connections aren't that uncommon in the US or UK, either. AT&#038;T, for example, is effectively <a href="https://www.techdirt.com/articles/20180627/10011640118/investigation-shows-att-really-likes-being-surveillance-business.shtml">bone grafted to the NSA</a> at this juncture. AT&#038;T's ties to the NSA are so total, you'd be fairly hard-pressed to point out where AT&#038;T ends and the NSA begins, especially if you've spent any time reading about the allegations by <a href="https://www.eff.org/deeplinks/2018/07/eight-att-buildings-and-ten-years-litigation-shining-light-nsa-surveillance">whistleblowers like Mark Klein</a>, or <a href="https://theintercept.com/2016/11/16/the-nsas-spy-hub-in-new-york-hidden-in-plain-sight/">AT&#038;T and the NSA's often shady surveillance buildings</a> peppered across the country. AT&#038;T's employees are <a href="https://www.techdirt.com/articles/20130901/23253224379/att-has-employees-embedded-govt-providing-near-realtime-searches-nearly-every-phone-call.shtml">embedded with the US government</a>. The relationship is so uniform, AT&#038;T employees frequently act as intel analysts.
  1100. </p>
  1101. <p>
  1102. Would we be cool then with, say, overseas companies banning AT&#038;T from global markets given obviously close ties to US intelligence? While there's little doubt that China engages in some horrific behaviors when it comes to censorship, surveillance, torture, and worse, the narrative du jour continues to be that when the US or UK does this sort of stuff (like that time the NSA <a href="https://mashable.com/2014/03/22/nsa-huawei/">hacked into Huawei to backdoor gear</a>) a patriotic press deems it "good." But when the Chinese do it, it requires massive wholesale blackballing efforts and endless pearl clutching. On this front, the press often lets patriotism muddy the waters.
  1103. </p>
  1104. <p>
  1105. And again, the Huawei blackballing effort (which some smaller companies say will <a href="https://www.theverge.com/2019/1/28/18196351/huawei-government-trump-china-rural-internet">actually hurt them</a>) is based largely on the claim that Huawei routinely spies on <em>Americans specifically</em>, something there's still no clear evidence of. The question also needs to be asked: If you don't trust Huawei, who is OK to trust? Do we trust Cisco, whose hardware has been <a href="https://arstechnica.com/tech-policy/2014/05/photos-of-an-nsa-upgrade-factory-show-cisco-router-getting-implant/">intercepted by the NSA in transit</a> to aid US surveillance efforts? Do we trust AT&#038;T? Do we trust anybody? Are these standards applied evenly across companies and countries? Is this concern being extended to the Chinese gear in the <a href="https://www.techdirt.com/articles/20180604/07134939961/yet-another-study-shows-internet-things-is-privacy-security-dumpster-fire.shtml">internet of broken things</a>, your router, or smart fridge? If Chinese gear is in <em>everything</em>, why stop with just Huawei?
  1106. </p>
  1107. <p>
  1108. There are <a href="https://www.fastcompany.com/90344450/dont-ban-huawei-do-this-instead">plenty</a> of <a href="https://www.washingtonpost.com/technology/2019/06/07/huawei-ban-threatens-us-national-security-tech-companies-warn-trump-administration/?utm_term=.99f63fcbad14">folks</a> arguing that you can be concerned about Huawei's potential security issues without engaging in ham-fisted protectionism. Folks argue that there are <a href="https://www.techdirt.com/articles/20190219/10363341631/uk-suggests-us-worries-about-huawei-spying-are-being-overblown.shtml">better, systemic approaches</a> to improving internet security that don't require the sort of herky-jerky, protectionist policy hyperventilation of the Trump administration. But these voices have pretty routinely been drowned out by those driven more by patriotism or <a href="https://www.washingtonpost.com/business/technology/huaweis-us-competitors-among-those-pushing-for-scrutiny-of-chinese-tech-firm/2012/10/10/b84d8d16-1256-11e2-a16b-2c110031514a_story.html?utm_term=.49d29f478ef9">profits</a> than any genuine, measured interest in a consistently fact-based approach to better security.
  1109. </p><br /><br /><a href="https://www.techdirt.com/articles/20190708/08542242537/latest-huawei-smoking-gun-still-doesnt-prove-global-blackball-efforts-primary-justification.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190708/08542242537/latest-huawei-smoking-gun-still-doesnt-prove-global-blackball-efforts-primary-justification.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190708/08542242537/latest-huawei-smoking-gun-still-doesnt-prove-global-blackball-efforts-primary-justification.shtml?op=sharethis">Email This Story</a><br />
  1110. ]]></description>
  1111. <slash:department>ill-communication</slash:department>
  1112. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190708/08542242537</wfw:commentRss>
  1113. </item>
  1114. <item>
  1115. <pubDate>Thu, 18 Jul 2019 11:58:00 PDT</pubDate>
  1116. <title>Appeals Court Shoots Down The Unconstitutional &#39;Non-Disparagement&#39; Clauses Baltimore Attaches To Lawsuit Settlements</title>
  1117. <dc:creator>Tim Cushing</dc:creator>
  1118. <link>https://www.techdirt.com/articles/20190711/16261842574/appeals-court-shoots-down-unconstitutional-non-disparagement-clauses-baltimore-attaches-to-lawsuit-settlements.shtml</link>
  1119. <guid>https://www.techdirt.com/articles/20190711/16261842574/appeals-court-shoots-down-unconstitutional-non-disparagement-clauses-baltimore-attaches-to-lawsuit-settlements.shtml</guid>
  1120. <description><![CDATA[ <p>
  1121. When the City of Baltimore agreed to settle with a victim of police brutality, it inserted the usual clauses that come with every settlement. There was the standard non-admission of wrongdoing, along with a "non-disparagement" clause the city's attorney told courts was used "in 95% of settlements" to prevent those being settled with from badmouthing the entity they sued.
  1122. </p>
  1123. <p>
  1124. <a href="https://www.baltimoresun.com/news/crime/bal-city-to-pay-63k-to-woman-police-shocked-with-taser-20140909-story.html">Ashley Overbey received a $63,000 settlement</a> from the city for allegations she was beaten, tased, verbally abused, and arrested after calling officers to her home to report a burglary. When a local newspaper published a story about the settlement, the City Solicitor chose to disparage Overbey by saying she was "hostile" when the police arrived at her home. As the comments filled up with invective against Overbey, she showed up in person to fire back at her detractors, claiming the police had been in the wrong and detailing some of the injuries she suffered.
  1125. </p>
  1126. <p>
  1127. The City -- which had chosen to skew public perception <em>against</em> Overbey by commenting on the settlement -- decided Overbey's defense of herself violated the non-disparagement clause. So, it clawed back half of her settlement -- $31,500 -- for violating its STFU clause.
  1128. </p>
  1129. <p>
  1130. Overbey sued again, claiming this clause violated her First Amendment. Now, seven years after police showed up at her home and treated like the perpetrator -- rather than a victim -- of a crime, the Fourth Circuit Court of Appeals has <a href="https://assets.documentcloud.org/documents/6189285/Settlement-Gag-Orders.pdf">ruled</a> [PDF] these non-disparagement clauses are unconstitutional bullshit.
  1131. </p>
  1132. <p>
  1133. The City argued Overbey's acceptance of the clause was actually an action of free expression. By opting for a payout, she was (and I am quoting the City here) "<em>exercising her right not to speak in exchange for payment</em>." Alternatively, it argued that even if it was an unconstitutional waiver of rights, the court has no reason to intercede and nullify the clause.
  1134. </p>
  1135. <p>
  1136. The court agrees that it's a waiver of rights, but disagrees about what it's allowed to do about it:
  1137. </p>
  1138. <blockquote>
  1139. <p>
  1140. <em>We hold that the non-disparagement clause in Overbey&rsquo;s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.</em>
  1141. </p>
  1142. </blockquote>
  1143. <p>
  1144. It goes on to point out that the government has no business compelling speech -- i.e., violating someone's decision to not speak about something. But that's not what's going on here. The clause penalizes settlement recipients for <em>choosing</em> to speak, which is definitely <em>not</em> Constitutional.
  1145. </p>
  1146. <blockquote>
  1147. <p>
  1148. <em>Overbey&rsquo;s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in this case. No one tried to compel Overbey to make speech she did not want to make; no one tried to punish Overbey for refusing to say something she did not want to say. Instead, Overbey agreed, on pain of contractual liability to the City, to curb her voluntary speech to meet the City&rsquo;s specifications. In doing so, she waived the First Amendment protections that would have otherwise shielded her speech from government sanction.</em>
  1149. </p>
  1150. </blockquote>
  1151. <p>
  1152. While it is possible for people to voluntarily waive their rights in certain situations, the discussion of a settled lawsuit isn't one of these situations. Especially not when it deals with issues of considerable public interest, like allegations of police misconduct and abuse. The clause inserted into settlement agreements also drives a wedge between public agencies and the public they serve, contributing to the omnipresent distrust. In a case like this, the only purpose the clause serves is to silence speech the government doesn't like.
  1153. </p>
  1154. <blockquote>
  1155. <p>
  1156. <em>Standing shoulder to shoulder with the citizenry&rsquo;s interest in uninhibited, robust debate on public issues is this nation&rsquo;s cautious &ldquo;mistrust of governmental power.&rdquo; Citizens United, 558 U.S. at 340. This mistrust is one of the &ldquo;premise[s]&rdquo; of the First Amendment, id., and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. <strong>Indeed, when the government (1) makes a police-misconduct claimant&rsquo;s silence about her claims a condition of settlement; (2) obtains the claimant&rsquo;s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant&rsquo;s promise by, in essence, holding her civilly liable to itself, <u>there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking</u></strong>.</em>
  1157. </p>
  1158. </blockquote>
  1159. <p>
  1160. That unconstitutionality voids the clause.
  1161. </p>
  1162. <blockquote>
  1163. <p>
  1164. <em>Accordingly, we conclude that enforcement of the non-disparagement clause at issue here was contrary to the citizenry&rsquo;s First Amendment interest in limiting the government&rsquo;s ability to target and remove speech critical of the government from the public discourse.</em>
  1165. </p>
  1166. </blockquote>
  1167. <p>
  1168. The court has zero patience for the City's exhausting arguments about how unfair this is to the City:
  1169. </p>
  1170. <blockquote>
  1171. <p>
  1172. <em>As the City would have it, Overbey &ldquo;sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.&rdquo; Id. at 39. <strong>Essentially, the City argues that half of Overbey&rsquo;s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey&rsquo;s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money</strong>. Needless to say, this does not work in the City&rsquo;s favor. We have never ratified the government&rsquo;s purchase of a potential critic&rsquo;s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.</em>
  1173. </p>
  1174. </blockquote>
  1175. <p>
  1176. The City will now have to give back the other half of Overbey's money. You can't beat the hell out of the First Amendment and expect to cash out. Litigants in Baltimore -- and elsewhere in the circuit -- have been freed to discuss the details of their cases in public without fear of reprisal. Hopefully, this will reduce the percentage of settlements with gag orders from 95% to 0% very quickly.
  1177. </p><br /><br /><a href="https://www.techdirt.com/articles/20190711/16261842574/appeals-court-shoots-down-unconstitutional-non-disparagement-clauses-baltimore-attaches-to-lawsuit-settlements.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190711/16261842574/appeals-court-shoots-down-unconstitutional-non-disparagement-clauses-baltimore-attaches-to-lawsuit-settlements.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190711/16261842574/appeals-court-shoots-down-unconstitutional-non-disparagement-clauses-baltimore-attaches-to-lawsuit-settlements.shtml?op=sharethis">Email This Story</a><br />
  1178. ]]></description>
  1179. <slash:department>court-says-it-won't-be-a-bagman-for-hush-money</slash:department>
  1180. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190711/16261842574</wfw:commentRss>
  1181. </item>
  1182. <item>
  1183. <pubDate>Thu, 18 Jul 2019 10:44:00 PDT</pubDate>
  1184. <title>CBP, DHS Using Quasi-Scientific Guesswork To Turn Adult Immigrants Into Minors</title>
  1185. <dc:creator>Tim Cushing</dc:creator>
  1186. <link>https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml</link>
  1187. <guid>https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml</guid>
  1188. <description><![CDATA[ <p>
  1189. Our nation's immigration agencies wield a <a href="https://www.techdirt.com/articles/20190212/17035541582/ice-set-up-fake-college-to-bust-immigrants-trying-to-legally-stay-country-while-they-earned-degrees.shtml">considerable amount</a> of power. <a href="https://www.techdirt.com/articles/20180627/13312940119/ice-rigged-vetting-tool-to-make-sure-it-can-always-keep-immigrants-locked-up.shtml">So much power</a>, in fact, that they're free to dump incoming immigrants off the space-time continuum at will. If a CBP officer decides a person isn't the age they say they are, they can alter the person's age so it matches the officer's beliefs.
  1190. </p>
  1191. <p>
  1192. How does the CBP accomplish this neat little trick? Well, oddly, it involves X-rays. <a href="https://www.thisamericanlife.org/679/transcript">A recent episode of This American Life</a> details the surreal nature of this CBP-induced time warp -- one it inflicted (repeatedly!) on a 19-year-old Hmong woman coming to the United States to reunite with her fiance.
  1193. </p>
  1194. <p>
  1195. Yong Xiong was questioned by Customs officers at the Chicago airport. The CBP officer thought she was being trafficked and didn't believe the birth date on her passport. After a round of questioning meant to determine whether or not Yong was being trafficked, the CBP officer arrived at the conclusion she <em>was</em>, despite the officer marking "No" on ten of the eleven trafficking indicators.
  1196. </p>
  1197. <p>
  1198. So, how does the CBP try to determine someone's age when officers don't believe the person or the documents in front of them? They call in a dentist. Yong's teeth were x-rayed to determine her age. This may involve science on the front end, but the back end is mainly educated guesswork.
  1199. </p>
  1200. <p>
  1201. From This American Life's Nadia Reiman:
  1202. </p>
  1203. <blockquote>
  1204. <p>
  1205. <em>The dentist took the X-ray. No one would talk to me on the record about this, but because it's the government, there is a massive paper trail. And not just in Yong's case. I'm going to go deep on these tooth X-rays for a second, so bear with me. They're used in all kinds of immigration cases, not just trafficking. And a lot rides on the results. If you're under 18, you have more protections. You get put into a shelter instead of a detention center. It's harder to get deported.</em>
  1206. </p>
  1207. <p>
  1208. <em>But tooth X-rays are just not a very precise way to determine someone's age. The way it works is they measure how developed the roots of your molars are, and then based on that, the dentist can determine your age, but only within a range, usually around five years. So these X-rays can't tell you the difference between a 17-year-old and a 19-year-old. The same teeth might belong to a 15-year-old or a 20-year-old.</em>
  1209. </p>
  1210. </blockquote>
  1211. <p>
  1212. In Yong's case, the CBP was sure she was being trafficked. Since the officer already thought that, the CBP leaned toward the lower end of the dentist's estimate.
  1213. </p>
  1214. <blockquote>
  1215. <p>
  1216. <em>In the documents, the dentist writes, quote, "The range of possible ages is 14.76 to 19.56 years." In other words, it's totally plausible that Yong could be 19 as she's been saying.</em>
  1217. </p>
  1218. </blockquote>
  1219. <p>
  1220. Instead of accepting this as evidence that might back the birth date on Yong's passport, the CBP agent gave her a new birth date: January 1, 2000. This instantly turned Yong into a minor and the CBP placed her in a juvenile shelter. She continued to tell staff and counselors she was 19 and needed to head to Minneapolis to meet with her family and fiance. The staff told her they couldn't do anything about this because the paperwork said she's a minor.
  1221. </p>
  1222. <p>
  1223. This isn't true. They <em>are</em> able to make changes to these dates, but no one at this detention center was willing to do that. Well... they weren't willing to change her birth date to make her an adult again. Instead, as Yong approached her fake 18th birthday -- January 1, 2018 -- the DHS decided to make her even <em>younger</em>:
  1224. </p>
  1225. <blockquote>
  1226. <p>
  1227. <em>It turns out ORR [Office of Refugee Resettlement] resubmitted the X-rays of Yong's teeth to a second dentist who concluded Yong could be anywhere between 15 and 20 years old. After which, ORR did change her birth date. But they used the lowest end of the range possible. The documents say DHS, the agency that oversees everything related to immigration, told them to. Her new, new birth date is now September 1, 2002.</em>
  1228. </p>
  1229. </blockquote>
  1230. <p>
  1231. A wrist X-ray was performed to determine "bone age." The results said Yong was most likely 18. The doctor interpreting them for the DHS decided this simply wasn't true and issued a conclusion saying Yong is <em>15</em>, but with "advanced bone age."
  1232. </p>
  1233. <p>
  1234. After 14 months in a juvenile detention center, Yong is finally released by the DHS&hellip; as a minor, into the custody of her aunt. A couple of weeks later, the DHS stated to her lawyer it would no longer "contest" the "contents" of her passport. The single contested "content" was Yong's true birth date. The US government graciously allowed Yong to become 22 again, after 14 months of treating her like a teenager.
  1235. </p>
  1236. <p>
  1237. Yong is not an isolated case. The DHS routinely uses wide-ranging estimates to arbitrarily assign birth dates to immigrants and asylum seekers. For whatever reason, CBP tends to add years to males and subtract them from females. This results in people like Yong being treated as minors for months or years. In other cases, it turns unaccompanied minors into adults and places them in adult detention facilities.
  1238. </p>
  1239. <p>
  1240. <a href="https://theconversation.com/immigration-agents-x-raying-migrants-to-determine-age-isnt-just-illegal-its-a-misuse-of-science-96771">This report from The Conversation detailing the x-ray "aging"</a> of two unaccompanied teens says CBP's reliance on this process is illegal.
  1241. </p>
  1242. <blockquote>
  1243. <p>
  1244. <em><a href="https://www.state.gov/j/tip/laws/113178.htm">Federal law</a> dictates that X-rays in cases where adult age is not obvious be used only in concert with other methods, such as verification of documentation and interviews. This makes sense because X-rays only provide orienting information rather than a definitive answer.</em>
  1245. </p>
  1246. <p>
  1247. <em>The recent court cases demonstrate that ICE has broken the law by exclusively relying on X-rays for age determination, ruling that the teens be released back into ORR&rsquo;s custody as minors. Are these cases isolated or illustrative of a bigger problem? <a href="https://www.documentcloud.org/documents/4450510-DHS-OIG-Report-on-ICE.html">A 2008 report</a> by the Office of Homeland Security found that it was not only unclear how often ICE needed to resort to X-rays to assist with age determination, but unknown how common it was for them to rely solely on X-ray results. Without accurate numbers, there is no way to know how widespread the practice is or how to improve the process.</em>
  1248. </p>
  1249. </blockquote>
  1250. <p>
  1251. Nothing has improved since then. And part of the reason nothing has improved is that the same Congress that expressed concern about the DHS's reliance on X-rays to determine immigrants' ages <a href="https://www.latimes.com/local/lanow/la-me-ln-immigrant-age-migrants-ice-dental-teeth-bangladesh-20190602-story.html">pushed the DHS to continue to rely on the X-rays</a>.
  1252. </p>
  1253. <blockquote>
  1254. <p>
  1255. <em>In 2007 and again in 2008, the House Appropriations Committee called on the Department of Homeland Security to stop relying on forensic testing of bones and teeth. But it was the <a href="https://www.state.gov/j/tip/laws/113178.htm">Trafficking Victims Protection Reauthorization Act of 2008</a> that declared age determinations should take into account &ldquo;multiple forms of evidence, including the non-exclusive use of radiographs.&rdquo;</em>
  1256. </p>
  1257. </blockquote>
  1258. <p>
  1259. Apparently, the "non-exclusive" part of the law is being ignored. Nothing but an X-ray and a CBP officer's hunch turned 19-year-old Yong Xiong into a 17-year-old. And nothing but an X-ray made her even younger... even as she aged 14 months right in front of the government's eyes.
  1260. </p><br /><br /><a href="https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190716/07135142592/cbp-dhs-using-quasi-scientific-guesswork-to-turn-adult-immigrants-into-minors.shtml?op=sharethis">Email This Story</a><br />
  1261. ]]></description>
  1262. <slash:department>and-vice-versa</slash:department>
  1263. <wfw:commentRss>https://www.techdirt.com/comment_rss.php?sid=20190716/07135142592</wfw:commentRss>
  1264. </item>
  1265. <item>
  1266. <pubDate>Thu, 18 Jul 2019 10:39:00 PDT</pubDate>
  1267. <title>Daily Deal: Pay What You Want: The Lean Six Sigma Certification Training Bundle</title>
  1268. <dc:creator>Daily Deal</dc:creator>
  1269. <link>https://www.techdirt.com/articles/20190718/09584642609/daily-deal-pay-what-you-want-lean-six-sigma-certification-training-bundle.shtml</link>
  1270. <guid>https://www.techdirt.com/articles/20190718/09584642609/daily-deal-pay-what-you-want-lean-six-sigma-certification-training-bundle.shtml</guid>
  1271. <description><![CDATA[ <p>
  1272. Pay what you want for the <a href="https://deals.techdirt.com/sales/pwyw-complete-lean-six-sigma-certification-training-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=pwyw-complete-lean-six-sigma-certification-training-bundle_071819&#038;utm_term=scsf-333688&#038;utm_content=a0x1P000004MRdU&#038;scsonar=1">Lean Six Sigma Certification Training Bundle</a> and you get access to the Design of Experiments (DOE) course and the Measurement Systems Analysis course. If you beat the average price on the site, you'll unlock 6 more courses including the Lean Six Sigma Green, Yellow and Black Belt courses, the Statistical Process Control course, and more.
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  1274. <div class="centered">
  1275. <a href="https://deals.techdirt.com/sales/pwyw-complete-lean-six-sigma-certification-training-bundle?utm_source=techdirt.com&#038;utm_medium=referral&#038;utm_campaign=pwyw-complete-lean-six-sigma-certification-training-bundle_071819&#038;utm_term=scsf-333688&#038;utm_content=a0x1P000004MRdU&#038;scsonar=1"><img src="https://i.imgur.com/3gvW6jU.jpg" title="source: imgur.com" width="400"/></a>
  1276. </div>
  1277. <p>
  1278. <em>Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.</em>
  1279. </p><br /><br /><a href="https://www.techdirt.com/articles/20190718/09584642609/daily-deal-pay-what-you-want-lean-six-sigma-certification-training-bundle.shtml">Permalink</a> | <a href="https://www.techdirt.com/articles/20190718/09584642609/daily-deal-pay-what-you-want-lean-six-sigma-certification-training-bundle.shtml#comments">Comments</a> | <a href="https://www.techdirt.com/articles/20190718/09584642609/daily-deal-pay-what-you-want-lean-six-sigma-certification-training-bundle.shtml?op=sharethis">Email This Story</a><br />
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