Nielsen Forced To Pull Report Offline After It Shows ESPN Losing More Subscribers Than Ever

from the head-firmly-in-the-sand dept

ESPN has been losing hand over fist as consumers shift to streaming alternatives and new "skinny" TV bundles of smaller channels. The company is estimated to have lost roughly 7 million subscribers in just a few years, and a recent survey found that 56% of consumers would drop ESPN in a heartbeat if it meant saving $8 a month on their cable bill (the estimate of how much ESPN costs each subscriber). The losses are largely thanks to ESPN executives failing to see the cord-cutting threat coming. Apparently it's difficult to identify shifting viewership trends with your head buried squarely in the sand.

Fast forward to this week, when viewer-monitoring firm Nielsen released a report stating that ESPN lost more subscribers than ever last quarter. According to the original Nielsen report, ESPN lost 621,000 homes in a single month, as well as losing 607,000 ESPN2 households, and 674,000 ESPNU homes. Interestingly, ESPN was quick to complain that these numbers were in error:

"The Nielsen numbers represent a dramatic, unexplainable variation over prior months’ reporting, affecting all cable networks. We have raised this issue with Nielsen in light of their demonstrated failures over the years to accurately provide subscriber data. The data does not track our internal analysis nor does it take into account new DMVPD entrants into the market."

As a result, Nielsen was forced to issue a statement saying it was pulling the findings for review:

"Nielsen is investigating a larger than usual change in the November 2016 Cable Network Coverage Universe Estimates (versus the prior month). We take the accuracy of our data very seriously and are conducting a thorough analysis to determine whether or not there is an issue with these estimates. In the meantime, we have removed the November 2016 Cable Network Coverage Universe Estimates file from the Answers portal and ask clients not to use the numbers that were posted Friday. We are working closely with clients and will alert them on the findings of our internal review."

While it's entirely possible Nielsen did make a mistake, this isn't the first time the company has been willing to withhold data simply because the cable and broadcast industry didn't like what the data indicated. In 2014, Nielsen backed away from including broadband-only household data in the firm's local TV ratings service because broadcasters didn't like what that data said. The company spent many years denying that cord cutting was real, then simply changed the name of cordcutting to "zero TV households" when it was forced to actually ackowledge the trend was real.

Again, Nielsen may have flubbed the data and the estimates could be a little too high (given past trends likely not by much), but it's also entirely possible this is just part of an ongoing attempt by the cable and broadcast industry to shield itself from the reality of evolving markets.

Filed Under: cord cutting, monitoring, subscribers, tv
Companies: espn, nielsen

ACLU Dumps Docs On Social Media Monitoring Firm Geofeedia; Social Media Platforms Respond By Dumping Geofeedia

from the if-access-is-the-only-thing-you're-selling,-what-happens-when-it's-gone? dept

Surveilling citizens engaged in First Amendment-protected activity? That's just how Geofeedia rolls.

Records obtained by the ACLU show the private company pitched its "firehose" connection to Facebook, Twitter, and Instagram as a way to monitor the situation in Ferguson (during the 2014 protests) and "stay one step ahead of the rioters."

Geofeedia itself didn't do anything illegal. It simply provided a one-stop shop for social media monitoring of public posts. It's the way it was pitched that was a problem. Rather than sell it as a way to keep law enforcement informed of criminal activity, its sales team highlighted its usefulness in monitoring protestors and other First Amendment activity.

The documents the ACLU obtained show the company paid these three social media services for "firehose" attachments -- beefed-up API calls that allowed Geofeedia to access more public posts faster than law enforcement could do on its own.

Instagram had provided Geofeedia access to the Instagram API, a stream of public Instagram user posts. This data feed included any location data associated with the posts by users. Instagram terminated this access on September 19, 2016.

Facebook had provided Geofeedia with access to a data feed called the Topic Feed API, which is supposed to be a tool for media companies and brand purposes, and which allowed Geofeedia to obtain a ranked feed of public posts from Facebook that mention a specific topic, including hashtags, events, or specific places. Facebook terminated this access on September 19, 2016.

Twitter did not provide access to its “Firehose,” but has an agreement, via a subsidiary, to provide Geofeedia with searchable access to its database of public tweets.

Of all of these companies, only Twitter took proactive steps to prevent API calls from being used for proxy surveillance.

In February, Twitter added additional contract terms to try to further safeguard against surveillance. But our records show that as recently as July 11th, Geofeedia was still touting its product as a tool to monitor protests. After learning of this, Twitter sent Geofeedia a cease and desist letter.

Well, it's all over now. It's not just Twitter demanding Geofeedia stop turning its service into an extension of law enforcement's worst urges. It's everyone. The ACLU dumped its documents and, shortly after, the companies dumped Geofeedia.

After reviewing the report, Facebook cutoff Geofeedia’s access to commercially available data from its social platform and from Instagram, which it owns.

On Tuesday, Twitter said they were also cutting off the Chicago social media company’s access.

So much for the business model. Twitter cited its long-standing policy of preventing its service from being used as a surveillance tool -- a policy it exercised earlier this year when cutting off Dataminr's access to its APIs for selling its collected communications to US intelligence agencies.

Facebook simply stated that Geofeedia's API use was "unauthorized," something it probably should have realized well before the ACLU shamed it into cutting off the company's access.

Geofeedia, meanwhile, has stated it will meet with all "stakeholders," which apparently means Twitter, Facebook, and various government agencies. Users of these services haven't been invited to do anything more than vote with their digital feet.

For all the call-and-response, the underlying fact is that Geofeedia didn't have access to anything any individual user didn't. It may have had more of it faster and a front end that made surveillance/monitoring easier, but it wasn't gathering tweets or posts from private accounts or otherwise accessing anything not already viewable by the public.

But its sales tactics were a bit concerning. The company pretty much encouraged law enforcement agencies to engage in some very questionable monitoring.

Using Geofeedia’s analytics and search capabilities and following the recommendations in their marketing materials, law enforcement in places like Oakland, Denver, and Seattle could easily target neighborhoods where people of color live, monitor hashtags used by activists and allies, or target activist groups as “overt threats.” We know for a fact that in Oakland and Baltimore, law enforcement has used Geofeedia to monitor protests.

Geofeedia claims to be interested in protecting the civil liberties of Americans, while at the same time nudging law enforcement agencies towards undermining those protections. Because of that, it's now probably looking at handing out some refunds, seeing as its all-seeing-APIs have been cut off and all it can really offer at this point is part-owner positions in a fast-growing pariahship.

Filed Under: apis, government, monitoring, social media, surveillance
Companies: aclu, facebook, geofeedia, instagram, twitter

Local Lawyers Challenge New Kuwaiti Law Creating Mandatory DNA Database Of All Citizens And Visitors

from the hands-off-my-genome dept

One of the most extraordinary government surveillance projects in the world is being rolled out in Kuwait, and involves creating a mandatory DNA database of all citizens and visitors. An article in New Scientist confirms that the system is now under construction:

The government has already begun to enact the law, collecting samples from people they suspect of having falsely claimed Kuwaiti nationality, as well as members of the police and military. From November, all Kuwaitis wishing to renew passports will have to submit DNA samples, while the country's embassies around the world have been told to notify potential visitors that they will be required to give a DNA sample upon arrival in the country.

The good news is that a bunch of public-spirited Kuwaiti lawyers are fighting back:

When the law was passed in July last year, Adel AbdulHadi of the Kuwaiti law firm Adel AbdulHadi & Partners and his colleagues began researching and drafting their challenge to it. Their principal argument is that the law violates privacy and human rights provisions in the country's own constitution, as well as those enshrined in international treaties to which Kuwait is a signatory.

To their credit, the lawyers are funding the challenge themselves, as they feel so strongly that the law should be struck down.

As the article points out, collecting DNA is hardly likely to be a very effective way of deterring would-be terrorists from entering the country. Equally, finding someone's DNA at the site of a terrorist explosion tells you little: by their very nature, such attacks cause tissues from bombers and victims alike to be scattered widely, making forensic DNA analysis difficult. On the other hand, there is considerable scope for abuse:

DNA samples could be used for other purposes, such as identifying illegal immigrants, or determining paternity in country where adultery is a punishable offence.

The New Scientist article offers no views on how likely it is that the legal challenge will succeed. We can only hope that it does, because once such a system is successfully implemented in one country, others are sure to see it as an example that they can follow.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: dna, dna database, kuwait, monitoring, privacy, surveillance

Administration Says Child Porn Provides A 'Model' For Hunting Terrorists Online

from the it-could-not-be-more-wrong dept

The administration is trying to draft tech companies into the War on Terror. Encryption -- despite being given an unofficial "hands-off" by President Obama -- is still being debated, with FBI Director James Comey and a few law enforcement officials leading the charge up the hill they apparently want to die on.

One of the aspects discussed was how to deter online communications involving terrorists. Trying to deputize tech companies is a non-starter, considering the potential for collateral damage. But that's not stopping the administration from trying to do exactly that, and it's willing to deploy the most terrible participant in its parade of horrors.

“I do have a lot of confidence that those companies that are run by patriotic Americans are not interested in seeing their tools or their technology used by terrorists to harm innocent Americans,” [White House press secretary Josh] Earnest told reporters in Washington before the meeting occurred. “That’s certainly not what they were designed for.”

[...]

“There is a precedent for us to confront this kind of problem,” Earnest said. “We know that there are some people who try to make money based on the selling and trafficking of child pornography and they are using websites to do that. And we have been able to work effectively with the tech community to counter those efforts.”

Earnest makes two implications here, both of them disingenuous. The first is that any reluctance expressed by tech companies should be viewed as evidence these companies just don't love America enough. The second is that an unwillingness to intervene on the US government's behalf is hypocritical, considering the voluntary efforts these companies undertake to identify and remove child pornography.

The problem is that alleged terroristic content and child pornography aren't comparable -- at least not to the extent that the administration portrays it. For one, child pornography -- for the most part -- is difficult to mistake for protected speech. One of the few exceptions to the First Amendment deals specifically with this content. In addition, most identified files have unique hashes which can readily be identified when they pop up elsewhere on the web.

The other problem is that even if files associated with terrorism or potential acts of terrorism are uniquely identifiable via hashes, that doesn't immediately elevate possession of these files to a criminal act. Jonathan Zittrain at Just Security points out that this makes all the difference in the world.

To be sure, child pornography filtering — and reporting — may be a place to draw a clear line. Not only is child pornography near-universally reviled and banned, but the matching algorithm for previously-identified images boasts no false positives, and, perhaps most important, possession of the file is not only clear evidence of the crime, but quite typically the crime itself. A terrorist to-do list is primarily only evidence, not itself a crime.

The hypothetical situation proposed in Zittrain's post -- that Google, et al begin to treat terrorist content like child pornography -- is a potential ground zero for all sorts of collateral damage. Google already scans email for child porn (as well as for potential advertising keywords), but adding terrorism to this short list would put dissidents, journalists, researchers and activists in the government's crosshairs. Possession of terrorist-related materials isn't a criminal act, but that wouldn't prevent unwarranted (in the original sense, not the Fourth Amendment sense [although that wouldn't be far behind…]) surveillance of citizens who aren't terrorists or terrorist sympathizers.

And once Google has expanded its dragnet to include terrorist material, it wouldn't take long for other aggrieved parties to jump on the proxy surveillance bandwagon. After all, a criminal offense is a criminal offense -- whether it's the circulation of terrorist-related content or anything else certain entities feel needs more policing on the Wild West Web.

If a search for contraband documents expands beyond the comparatively well-bounded area of child pornography, there could be little stopping it from progressing incrementally to an Orwellian level of invasiveness. For example, to prevent claimed copyright infringement, we could see services compelled to scan private communications for musical tracks or videos, or links to that content. Facebook has at times done just that for its private messaging service. Whatever one’s views on copyright, the upside of applying the search technique there is surely lower than that of catching murderers, though the logic underlying the search may ultimately prove powerful enough to make it common.

Add to that the fact that the government -- once it has persuaded Google, etc. to look for certain content -- will continue to add to the list of things tech companies should look for. Child porn is Patient Zero. Terrorism seems to be the next step. After that, mission creep is inevitable.

Zittrain does provide reasons why Google should scan for terrorist material, and they sound exactly like the reasons the government would state when pressuring tech companies to engage in further pro bono web policing: the additional searches would be minimally intrusive and could conceivably save lives. But the problem remains unaddressed by the "positives" of these tactics. Child porn possession is a crime. Possession of a circulated plan for a terrorist attack is not. It may be suspicious but it is not, in and of itself, a criminal act.

Finally, even with a tailored search for files with unique hash values, the search itself is still a general search. It would be an automated dragnet encompassing not only users of whatever service deployed it, but also those sending email/messages/etc. to users of that service. That's a "general search" -- the kind the Fourth Amendment is supposed to deter -- no matter how the government spins it. And it will spin it, if it gets a chance. That's why the pressure is being applied towards voluntary actions rather than legislated "fixes." If the government can talk Google and its competitors into performing its general searches for it, it can avoid dealing with the constitutional issues that would certainly arise if it chose to perform this on its own.

Filed Under: child porn, fbi, filtering, james comey, monitoring, terrorism, white house

Verizon App Lets Non-Unionized Workers Record, Report Unionized Labor

from the if-you-see-something-say-something dept

There's a number of reasons Verizon is slowly exiting the fixed-line broadband business and focusing on wireless. One, wireless is notably less regulated than Verizon's aging copper lines, which are saddled with "cumbersome" requirements that they keep these services (since they were largely paid for by taxpayer subsidies) active for folks like your grandma. Wireless is also far less unionized, with around 2% or less of Verizon's 38,000 unionized workers employed on the wireless side. Since the data is usage-capped, wireless also has huge profit growth potential as Internet video explodes on mobile networks.

So hanging up on fixed-line assets makes business sense and is something the company has been working hard at, even if, as its treatment of Hurricane Sandy victims illustrated, this isn't always done with much tact or honesty.

Verizon's currently engaged in contract negotiations with the company's 38,000 unionized workers at the CWA and IBEW, whose contracts expired August first. Negotiations haven't been going so well, with the CWA threatening to strike and Verizon busily training 15,000 replacement workers should that happen (though, even with the contract expiring, the parties have agreed to keep negotiating without a strike for now). But Verizon's also taking some other interesting precautions. The company is giving non-unionized workers an app in the hopes that they'll record union workers engaged in bad behavior. Verizon says this isn't to collect useful dirt on union employees, but to protect the company's infrastructure:

"Amy Seifer, Verizon associate general counsel for labor and employment, told RCR Wireless News, “The app serves three primary purposes: the first is a means for our management employees to report or document an unsafe situation, unlawful act, or violation of our code of conduct, and it will also be used by managers who have been assigned to these union positions for the duration of the strike to ask questions about installations or repairs they are handling. It also provides a means for our employees to submit suggestions on process improvements."

In the age of everyone recording everyone else, it's not too surprising that Verizon wants to keep a closer eye on union workers. But curiously Verizon's interpretation of what can and can't be recorded is, you'll be shocked to learn, not exactly equitable. According to Verizon's worker code of conduct (pdf), these union workers being recorded technically can't record Verizon or these other non-unionized employees:

"1.8.2 Use of Recording Devices

In many jurisdictions, use of recording devices without the consent of both parties is unlawful. Unless you are participating in an approved observation program or you have obtained prior approval from Security or the Legal Department, you may not record, photograph, or videotape another employee while the employee is at work or engaged in business activities or access another employee’s systems, records or equipment without that employee’s knowledge and approval. In addition, unless you receive prior approval from the Legal Department, you may never record, photograph or videotape any customer, business provider or competitor without that person’s knowledge and approval."

Apparently, apps that let non-unionized employees track, monitor and report on unionized workers would be one such "approved observation program." Union workers, should they strike next week, apparently won't be enjoying the same privilege.

Filed Under: broadband, installation, monitoring, unions
Companies: cwa, ibew, verizon

Ridiculous 'Terrorist Reporting' Provision In Intelligence Authorization Would Undermine The First Amendment

from the don't-let-it-pass dept

A few weeks ago, we wrote about a troubling provision that the Senate Intelligence Committee had inserted into this year's intelligence authorization bill, which would require social networks to report to the government any "terrorist activity" they see on their systems. As we noted, this has all sorts of problems, and seems more designed to (1) generate headlines and (2) chill free speech than do anything useful. Thankfully, Senator Ron Wyden has put a hold on the bill specifically over this provision.

“There is no question that tracking terrorist activity and preventing online terrorist recruitment should be top priorities for law enforcement and intelligence agencies,” Wyden said, in a statement for the record today. “But I haven’t yet heard any law enforcement or intelligence agencies suggest that this provision will actually help catch terrorists, and I take the concerns that have been raised about its breadth and vagueness seriously.”

“Internet companies should not be subject to broad requirements to police the speech of their users,”Wyden continued.

But the issue goes even deeper than that. As Markham Erickson has written, there are significant free speech concerns raised by this provision, in large part because "terrorist activity" is not defined at all. Anywhere. It's just this vague term -- and given that companies may face liability for not reporting "terrorist activity" to the government, you can bet an awful lot of perfectly fine and protected speech is going to get reported. And that's worrisome.

A key problem with Section 603, however, is that the trigger for the reporting mandate is based on the vague and undefined term “terrorist activity.” This term is not a term of art in the US criminal code and arguably goes well beyond criminal activity to speech that is protected under the First Amendment.

Erickson also points out that the comparison that supporters have made of this bill to one that requires companies to report child porn, is that child porn is "per se unlawful and never protected speech" under the US Constitution. But "terrorist activity" is just vague.

The NCMEC reporting obligations, however, relate to images that are per se unlawful and are never protected speech under the US Constitution. A government mandate that an Internet company report facts and circumstances connected to the vague and overbroad term “terrorist activity” certainly would result in overbroad reporting to the government of speech that is protected under the First Amendment.

And, on top of that, this move would give other countries a blueprint for how to demand tech companies hand over information on users:

More troubling, if adopted, the provision would serve as a global template for other countries to impose reporting requirements for activities those jurisdictions deem unlawful. This would be particularly problematic with countries that regulate speech, including political speech, and with authoritarian regimes that would demand that Internet companies police their citizens’ activities.

And, finally, as noted, with such a vague term, and the threat of serious liability, companies are going to be pressured into serious over-reporting:

Section 603 also creates a practical compliance problem. Because no one knows the definition of “terrorist activity,” how does one counsel a client to establish a compliance protocol under the proposal?

Any company would be at risk that if it did not report “terrorist activity,” it could be liable if there were a subsequent event that resulted in loss of life, limb, or property. Likely, this would result in designing a protocol to over-report anything that could be considered “terrorist activity.” Given the massive scale of content shared and created on the Internet daily, this would result in reporting of items that are not likely to be of material concern to public safety and would create a “needle in the haystack” problem for law enforcement. This serves no one’s purposes and adds privacy concerns to the First Amendment concerns noted above.

This creates a perverse incentive for a company to avoid obtaining knowledge of any activity that would trigger the reporting requirement—the exact opposite of what the proponents of the legislation want. Yet, designing such an avoidance protocol is nearly impossible. If even one low-level employee received an over-the-transom email about a “terrorist activity,” knowledge of the activity can be imputed to the entire company – exacerbating the potential liability faced by an Internet company.

Of course, these days, it seems like most in the Senate go by headlines rather than actual understanding of the issues. Hopefully, at least this one time, they'll actually listen to Senator Wyden.

Filed Under: chilling effects, free speech, intelligence rauthorization, monitoring, ron wyden, senate intelligence committee, social media, terrorist activity

Senate Intel Committee Wants Facebook, Twitter & YouTube To Report 'Terrorist-Related' Content

from the NSA:-Home-Version dept

Well, we finally received some surveillance reform with the passage of the USA Freedom Act, which, even with its built-in six-month waiting period is still more surveillance reform than we've seen in the past thirty years. So, of course, the intelligence "community" is seeking to counterbalance its "losses" with gains from the private sector. Self-spying will have to replace government spying, if we're expected to run a secure nation.

Social media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee.

The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.

But there is a silver lining, although it makes absolutely no sense.

It would not require companies to monitor their sites if they do not already do so, said a committee aide…

So… to better secure the nation, companies that already do this thing would be forced to continue doing this thing, even though they've had no problem doing so voluntarily. Those who don't wish to do this won't be forced to do it. The only change then would be the "reporting" aspect, which I imagine is also already in place for most of those voluntarily removing terrorist-related content.

The Senate Intelligence Committee is wasting tax dollars on redundancy, and not the good kind of redundancy that keeps government entities from permanently destroying public records. This is the bad kind of redundancy that is "fighting terrorism" by telling companies to do the thing they already do, unless they don't, in which case, never mind.

The government isn't out of stupid, though.

Although officials are generally pleased to see such accounts taken down, they also worry that threats might go unnoticed.

“In our discussions with parts of the executive branch, they said there have been cases where there have been posts of one sort or another taken down” that might have been useful to know about, the aide said.

On one hand, the government complains that leaving the content up could result in "radicalization" of the few citizens that haven't already been swept up by the FBI's Radicalization Program. On the other, it complains that taking the content down makes it harder to keep an eye on those radicalizing potential terrorists. Its solution is to act like the Internet's Recyle Bin. Toss your terrorist posts here so we can browse them before deletion.

Service providers and tech companies are calling it a violation of users' privacy and state that additional monitoring and adding another step in the takedown process will be technically difficult. National security experts, however, aren't nearly as concerned about privacy violations or technical hurdles. National security is the priority. Everything else is just extraneous noise.

“In a core set of cases, when companies are made aware [of terrorist content], there is real value to security, and potentially even to the companies’ reputation,” said Michael Leiter, a former director of the National Counterterrorism Center, now an executive vice president with Leidos, a national security contractor. “Rules like this always implicate complex First Amendment and corporate interests. But ultimately this is a higher-tech version of ‘See something, say something.’ And in that sense, I believe that there is value.”

The technical problems are skirted completely and the tiny nod towards citizens' privacy is swallowed up by "see something, say something" and "value." Intelligence at any cost -- especially if the majority of the cost is absorbed by civil liberties and the private sector.

This casual dismissal of concerns is unsightly. Here's a Senate Intelligence Committee aide also lowballing the cost to people's rights and tech companies' bottom lines:

The committee aide said the measure presents “a pretty low burden” to companies, who would have to report only activity that has been reported to them. “We have heard from federal law enforcement that it would be useful to have this kind of information,” he said.

Basically, it's the same non-argument Michael Leiter makes: "value" and "use" to government agencies is really the only thing that matters. These other concerns aren't even worthy of a thoughtful response.

It's highly discouraging to see that the same mentality prevails despite nearly two years of damaging (to the intelligence community's public reputation, not its actual capabilities) leaks. These reps of the intel world can't even be bothered to sincerely address the public's concerns. All they can think about is how "useful" this would be to them.

And so, they've put together a half-assed law (in response to a Facebook-"enabled" terrorist attack) that can't even be bothered to enforce the strengths of their very minimal convictions. It's almost as though the intelligence community said, "This would be kind of nice to have. Why don't you guys see if you can get that for us?" If the community truly felt this information was "valuable" and "useful," the proposed law would demand that all companies comply, rather than limiting it to those who voluntarily police their platforms. But it doesn't. It just asks for some companies to do what they already do and for others to add them to the "reported posts" mailing list. It's nothing more than an attempt to create informal government informants with the added bonus of turning voluntary actions into mandatory requirements.

Filed Under: monitoring, reporting, senate intelligence committee, social media, terrorism, user generated content
Companies: facebook, twitter, youtube

German Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown Process

from the that's-troubling dept

YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:

“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”

While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.

Filed Under: contentid, copyright, germany, liability, monitoring, music, staydown, takedown, youtube
Companies: gema, google, youtube

Supreme Court Says Lifetime GPS Monitoring Of Sex Offenders May Be Unconstitutional

from the slowly-restoring-the-Fourth dept

Most people would agree that cops slapping a GPS device on a suspect's vehicle for months or years at a time would have Fourth Amendment implications. It's often the length of the intrusion that has bothered courts the most (and mostly at state level, not federal), not the initial surreptitiousness of the GPS placement. Once it starts resembling a long-term tracking of a person's movements, some courts (including the Supreme Court) have declared a warrant requirement should be in place.

When it comes to tracking recidivist sex offenders for the rest of their lives, most people -- and most courts -- don't see this as much of an issue. Both involve the long-term tracking of individuals, but more people can stomach the idea of permanent tab-keeping on known sex offenders than on people only suspected of criminal activity.

The context matters -- at least in terms of how much of the population views the potential intrusion. But context doesn't matter when it comes to the Fourth Amendment, as the US Supreme Court recently ruled.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that state’s high court. The Court’s short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

What's interesting about this recent unanimous ruling is that it extends Fourth Amendment protections to convicted criminals, rather than just to suspected criminals. It's also a very short opinion -- partially due to the lack of dissent -- that gets straight to the heart of why the lower court's decision was wrong, starting with its rejection of the ruling in US v. Jones.

The only explanation provided below for the rejection of Grady’s challenge is the quoted passage from State v. Jones. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.

The State further argued that the Jones decision did not apply because the monitoring program is civil in nature, rather than criminal. The Supreme Court corrects this misconception.

It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.

More ridiculously, the State tried to claim that a lifetime monitoring program may not actually collect information about the subject's movements and whereabouts -- a non-conclusion it reached by dumping the burden of proof on the plaintiff. This, too, is treated harshly by the Justices.

Without evidence that it is acting to obtain information, the State argues, “there is no basis upon which this Court can determine whether North Carolina conducts a ‘search’ of an offender enrolled in its SBM program.” Ibid. (citing Jones, 565 U. S., at ___, n. 5 (slip op., at 7, n. 5) (noting that a government intrusion is not a search unless “done to obtain information”)). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does:

“The satellite-based monitoring program shall use a system that provides all of the following:

“(1) Time-correlated and continuous tracking of the geographic location of the subject . . . .
“(2) Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements.” N. C. Gen. Stat. Ann. §14–208.40(c).

The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a Cite as: 575 U. S. ____ (2015) 5 Per Curiam subject’s body, it effects a Fourth Amendment search.

While the Supreme Court didn't go so far as to rule all such tracking programs as Fourth Amendment searches, it did vacate the state Supreme Court's decision and makes it clear that lower courts are to address this issue, rather than gloss over potential Fourth Amendment ramifications.

Filed Under: 4th amendment, gps, monitoring, supreme court, torrey dale grady

Publishers Actively Monitoring Testing Students' Social Media Posts For Possible Cheating

from the to-maintain-test-integrity-but-also-because-we-can dept

Major corporations are actively monitoring social media during standardized tests. This is being done to "protect" the "integrity" of test questions and answers. None of this is particularly surprising, other than the fact that a member of school administration was the one to blow the whistle on it.

Students in New Jersey are in the middle PARCC testing right now. This is a new standardized test which is administered by Pearson. It's not without its detractors; many parents are opting their kids out of the test, and after what Pearson just did I'm sure the number will grow.

A blogger by the name of Bob Braun got his hands on an email one NJ school district superintendent sent out to a mailing list. Said email discusses a dire "security breach" in which a student tweeted a mention of the recent PARCC test.

The superintendent's email wasn't sent to remind teaching staff to keep a better eye on testing students. It was sent to inform the rest of them about a situation she (Elizabeth Jewett) found unacceptable. [all emphasis hers]

Good morning all,

Last night at 10 PM, my testing coordinator received a call from the NJDOE [New Jersey Department of Education] that Pearson had initiated a Priority 1 Alert for an item breach within our school. The information the NJDOE initially called with was that there was a security breach DURING the test session, and they suggested the student took a picture of a test item and tweeted it. After further investigation on our part, it turned out that the student had posted a tweet (NO PICTURE) at 3:18PM (after school) that referenced a PARCC test question. The student deleted the tweet and we spoke with the parent -- who was obviously concerned as to her child's tweets being monitored by the DOE. The DOE informed us that Pearson is monitoring all social media during PARCC testing. I have to say that I find this disturbing -- and if our parents were concerned before about a conspiracy with all the student data, I am sure I will be receiving more letters of refusal once this gets out (not to mention the fact that the DOE wanted us to also issue discipline to the student). I thought this was worth sharing with the group.

Well, the news has gotten out, spreading from Bob Braun's blog to the New York Times and Washington Post. Pearson remains unapologetic for its protection of its test turf, noting that it only monitors public social media posts and cross-references those to ensure it's only reporting currently-testing students to various education agencies. All well and good, but when a private company wields the power to nudge public schools into disciplining students for so-called "security breaches," it's a bit of a problem.

This widespread coverage has prompted several educational entities to take action.

In response to parent concerns, states using Pearson’s new PARCC exam did ask the company to stop cross-checking the names of students suspected of making inappropriate posts against the company’s list of registered test-takers. And New Jersey officials said Thursday that they would review the monitoring process to make sure student privacy is not compromised.

But Pearson isn't the only company keeping an eye on students for school administrators. Politico's coverage contains statements from a number of social media monitoring companies that provide surveillance tools and reporting to a variety of institutions.

Caveon is monitoring social networks on behalf of Pearson to safeguard against leaks of Common Core testing questions. Others -- like the infamous Geo Listening -- are there simply to monitor and report.

Enter the surveillance services, which promise to scan student posts around the clock and flag anything that hints at bullying, violence or depression. The services will also flag any post that could tarnish the reputation of either the student or the educational institution. They’ll even alert administrators to garden-variety teenage hijinks, like a group of kids making plans to skateboard on school property .

Some of the monitoring software on the market can track and log every keystroke a student makes while using a school computer in any location, including at home. Principals can request text alerts if kids type in words like “guns” or “drugs,” or browse websites about anorexia or suicide. They can even order up reports identifying which students fritter away hours on Facebook and which buckle down to homework right after dinner.

Other programs scan all student emails, text messages and documents sent on a school’s online platform and alert school administrators — or law enforcement — to any that sound inappropriate.

Some of the tools run covertly. Others are expressly pointed out by administration to increase the deterrent factor. Some even go so far as to cross-reference multiple social media accounts in order to strip away students' anonymity on networks where no "real name" is required.

These companies generate tons of data and possible "hits," but how useful are they? Gaggle, a service that scans emails, texts and discussion boards for "anything inappropriate," says it sends "thousands" of alerts to schools every year. But its contribution to a better-behaved student body is decidedly minimal.

In Deerfield, Gaggle has unearthed just one serious incident in the past the 18 months — an eighth-grader emailing a nude photo of herself, [Deerfield Superintendent Michael] Lubelfeld said.

The same goes for the other monitoring software deployed by Lubelfeld's school district -- which monitors students' computer usage. Only a "few violations" have been detected despite its constant presence.

Sure, the accounts may be public and there's no expectation of privacy in tweets, Facebook posts and school computer usage, but Pearson's monitoring didn't restrict itself to testing hours or even, indeed, school hours. The scope of these companies' surveillance lends itself to tons of false positives, and this can have a very negative effect on students who are going to find themselves punished for off-campus behavior -- or worse, for doing nothing wrong at all.

Filed Under: cheating, monitoring, privacy, social media, standardized tests, surveillance
Companies: pearson