Daily Deal: The JavaScript DOM Game Developer Bundle

from the good-deals-on-cool-stuff dept

The Techdirt Deals Store is having a semi-annual sale from July 28 to August 4. Get 15% off of physical products using the code ANNUAL15. Get 30% off apps and software with the code ANNUAL30. Get 60% off of online courses with the code ANNUAL60.

The JavaScript DOM Game Developer Bundle has 8 courses to help you master coding fundamentals. Courses cover JavaScript DOM, Coding, HTML 5 Canvas, and more. You'll learn how to create your own fun, interactive games. It's on sale for $30.

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Filed Under: daily deal

House Republicans Introduce Ridiculous, Contradictory, Unconstitutional Package Of 32 Bills About Section 230 And Content Moderation

from the performative-nonsense dept

If you read Techdirt, you already know that there have been literally dozens of ridiculous Section 230 reform bills introduced over the last few years. On Wednesday, the House Republicans on the Energy & Commerce Committee decided to not just add to the batch, but to flood the entire zone with a package of thirty-two more Section 230 reform bills. I mean, if you're going to go that far, why not go all the way and write 230 reform bills?

I'm not going to go through every bill. That would be a total waste of everyone's time. These bills are not designed to do anything constructive at all. They are not designed to pass. They are not designed to reform Section 230. They are designed for one reason and one reason only: to act as performative grandstanding for a deliberately ignorant base who are kept in ignorance by politicians pushing bills like this nonsense.

What I will note, however, is how many of the bills in this package clearly contradict one another (and just how many are obviously unconstitutional under the 1st Amendment in that they seek to regulate speech). In some ways, the package of 32 bills shows why all this focus on Section 230 is nonsense in the first place, and the difficulties of content moderation itself. For example, you have the "Preserving Constitutionally Protected Speech" bill from Reps. Cathy McMorris Rodgers and Jim Jordan. That one would punish websites that remove constitutionally protected speech (which is an unconstitutional attack on those websites' 1st Amendment rights). But, uh, then you have things like bills to require companies to remove cyberbullying and remove doxxing (among a few other things).

Of course, neither cyberbullying nor doxxing are well defined in those bills, but in both cases the speech described is almost certainly protected under the 1st Amendment. So you have some bills saying removing any speech that is protected by the 1st Amendment should lead to punishment, and other bills that say you are required to remove speech that is protected by the 1st Amendment or face massive penalties. Did no one bother to actually look at this collection of bills and realize they don't work together?

There are also a bunch of bills that seem to restate what the law already is. For example, there's one requiring companies to remove child sexual abuse material (though the bill uses the now disfavored term "child porn.") Except, um, that's already the case. Saying it with emphasis in a new law doesn't change that.

Anyway, I'm hard pressed to find anything even remotely sounding like a reasonable idea in all of these bills, but to be fair, I didn't have time to go through all 32 bills in full. Perhaps they can pass a bill to force someone to content moderate these 32 bills to algorithmically show me which ones actually have reasonable ideas, and which ones are just performative nonsense. I fear that the final tally will show that all 32 bills are performative nonsense.

Filed Under: 1st amendment, censorship, congress, content moderation, house, house energy and commerce committee, must carry, republicans, section 230

Exec That Tried To Send Critical Reporters A Dead Pig Blames 'The Drinking Culture At eBay'

from the bad-ideas-all-around dept

Last year, you might recall how a group of eBay executives were arrested for a truly bizarre (an understatement) stalking and harassment campaign aimed at critical reporters. Angry at the critical coverage of eBay by a small news site (Ecommercebytes.com, published by David and Ina Steiner), a team of six eBay executives and employees engaged in a year long campaign of terror against the couple that included death threats, spying on them, and even sending them everything from dead cockroaches and a bloody pig mask. The crew even tried to send the reporters a dead pig, though it never managed to ship.

These weren't really low-level employees, either. They included eBay’s senior manager of global intelligence, a manager of eBay's global intelligence center (GIC), a contractor who worked as an intelligence analyst within the GIC, and a senior manager of special operations for eBay’s global security team --and a former cop. And all of them lost their jobs for their decision to engage in this bizarre campaign of terror against what's really just a fairly ordinary and polite industry trade outlet run by a couple of genuinely decent people.

This week saw the manager of eBay's global security team Philip Cooke plead guilty to the charges in court. At his sentencing hearing, Cooke insisted that it was eBay's "drinking culture" that was apparently responsible for his atrocious judgement:

"A former eBay security official who pleaded guilty for his role in a cyberstalking conspiracy has asked for leniency in sentencing while blaming his actions in part on a "drinking culture" at eBay that contributed to his alcoholism.

"eBay had a bar on campus that opened at 3:00 p.m., and drinking was part of the culture, with alcohol present throughout the office space where it was typical to take morning shots of alcohol with co-workers," a sentencing memorandum for 56-year-old defendant Philip Cooke said yesterday. It was filed in US District Court for the District of Massachusetts."

It's pretty hard to blame gin and tonics for a campaign that required this much focus, attention, and detail. The real and obvious problem was the corporate rot that infected eBay's overall corporate culture (and still may). Cooke was ultimately promoted by eBay to director of security operations and given a raise to $205,000 in June 2020 -- ten months after the campaign began -- before ultimately losing his job once allegations came to light a few months later. If the story had never gone public, there's a not insubstantial chance he'd still be working at eBay.

Last week, the Steiners filed an unsurprising lawsuit (pdf) against the executives. But that lawsuit also included former eBay CEO Devin Wenig and eBay Chief Communications Officer Steven Wymer, who were not originally charged by the DOJ. The lawsuit accuses both of sanctioning the behavior from the highest levels of eBay leadership. According to the complaint, the two executives:

"provided the other Defendants with carte blanche authority to terminate the reporting of the Steiners by whatever means necessary, with Defendant Wymer expressing "... I want to see ashes. As long as it takes. Whatever it takes." Defendant Wymer promised the defendants he would "embrace managing any bad fallout" if the plan went south, further directing, "We need to STOP her." All of the horrific, vicious and sickening conduct that followed was committed by employees of eBay and PFC, while acting in the scope of their employment under the authority of and for the benefit of eBay and PFC."

Again it's astonishing the lengths these guys went to in order to harass a fairly small and relatively polite blog. There is some incredible culture rot needed for an effort like this to materialize and persist for so long. If this is how they felt about a fairly innocuous trade blog, you can only imagine their disdain for bigger outlets that do more serious investigative reporting. The idea that this was just a strange one off caused by just a few errant, sauced executives still seems a little hard to believe.

Filed Under: critics, david steiner, devin wenig, drinking, harassment, ina steiner, intimidation, philip cooke, reporters, steven wymer
Companies: ebay, ecommercebytes

Oversight Report Says Commerce Dept. Investigative Unit Went Rogue, Engaged In Biased, Retaliatory Investigations

from the power-corrupts dept

Years after it was granted too much power, a federal internal investigations unit created during the presidency of George W. Bush is finally having its dirty laundry aired. The Senate Commerce Committee -- years after the fact -- is finally delivering some oversight of an entity created to root out internal threats.

The ITMS (Investigations and Threat Management Service) operated largely under the radar, thanks to its housing within the Commerce Department -- an entity that very rarely raises too many eyebrows. But its reach extended far past the confines of this department. And it was given broad discretion to initiate investigations -- something that led directly to the Justice Department crafting new rules for espionage investigations after a series of failed prosecutions indicated the intel coming from the ITMS was extremely questionable.

It was the ITMS that initiated the investigation of a US citizen of Chinese descent who did nothing more than share publicly-available information with a Chinese government official -- an official who happened to be a friend of Department of Weather Services employee Sherry Chen. Chen's prosecution was just a leading edge indicator of the ITMS's lack of accountability and incredible amount of power.

The report [PDF] released by the Commerce Committee shows the ITMS wasn't as much interested in rooting out internal threats as it was in rooting out government employees of certain nationalities.

Although many investigations targeted legitimate threats, the ITMS appears to have opened cases on a variety of employees for the purpose of exaggerating the unit’s ability to uncover security risks within the civil service. The unit targeted visible employees across the Department, including award-winning professionals whose background investigations had been successfully adjudicated by other agencies. These probes often resulted in suspended or revoked security clearances, although subsequent reviews largely determined that the unit’s allegations lacked merit. The ITMS also broadly targeted departmental divisions with comparably high proportions of Asian-American employees, ostensibly to counter attempts of espionage by individuals with Chinese ancestry. Former and current ITMS employees became subjects as well for challenging the lawfulness of the unit’s practices.

Saying the unit went rogue isn't hyperbole. It's a fact.

Poor management and weak oversight allowed the ITMS to operate outside the norms of the law enforcement community. Deficient policies and procedures outlining the unit’s investigative capabilities led to repeated instances of malfeasance, including the purposeful prolonging of investigations, unauthorized use of secured messaging systems, and overclassification of documents to protect the unit from external scrutiny.

The first bullet point of the report's "Findings" spells it out explicitly.

Investigating threats against the Secretary of Commerce and the Department’s assets without a clearly defined mission ultimately led to the mutation of the ITMS into a rogue, unaccountable police force across multiple presidential administrations.

The ITMS originally had no power of its own. Its power was derived from the US Marshals Service, which provides protection to the Commerce Department and its "critical assets." It's the last term that caused trouble. Authority to protect "critical assets" allowed the ITMS to abuse the poorly-defined term to open investigations and engage in activities that went beyond its original purview, as well as limits placed on the Marshals Service.

This lack of oversight, accountability, and respect for the Constitution led directly to the DOJ dismissing prosecutions originating from ITMS investigations. ITMS investigators engaged in highly-questionable activities, including concealing their identities, seizing government computers and devices to perform warrantless searches, and picking the locks of government offices and personal storage containers owned by government employees. Whenever these tactics were challenged by government employees, these employees soon found themselves subjected to additional ITMS scrutiny.

Tactics the general public never would have condoned were bought and paid for with tax dollars.

Because of inadequate oversight by the Inspector General’s office, the unit’s improper exercises of law enforcement powers likely resulted in preventable violations of civil liberties and other constitutional rights, as well as a gross abuse of taxpayer funds.

In 2005, the ITMS was limited to protecting tangible assets, like federal facilities. This began to morph as it was given discretion to look for threats to intangible "assets," like "U.S. economic advancement" and "Departmental functions." This then expanded to cover anything the ITMS felt was "inadequately protected." As its purview expanded, the ITMS granted itself plenty of new law enforcement powers, despite receiving no permission or direction to do so from Congress, its apparently-absent oversight, or the US Marshals Service.

Once it had expanded its area of coverage to include whatever it wanted to throw resources and Constitutional violations at, the ITMS began doing things like this:

Without a defined meaning of what constituted a critical asset from the Marshals Service, the ITMS conducted investigations typically reserved for domestic law enforcement agencies. Many were conducted in an overzealous manner whereby agents abused steps in the investigative process. In one instance, the ITMS investigated Sherry Chen, an award-winning, Chinese-born hydrologist employed at the Department, on charges of espionage and providing false statements after she allegedly downloaded and distributed unclassified information to a foreign national. Agents reportedly interrogated her for seven hours and told her she could never discuss the interrogation with anyone, including her superiors. In a lawsuit filed against federal officials, Chen said that ITMS agents “ignored exculpatory evidence throughout the interview, reached false conclusions without even a cursory investigation of underlying facts, and reported false results reflecting their racial and ethnic bias.”

And even when the ITMS couldn't find anything substantial to justify its investigations, it still found something to bring to federal prosecutors.

In one document, ITMS officials described to agents a broad range of offenses for which referrals to federal prosecutors could be made. Substantive offenses included racketeering, money laundering, and theft of government property, espionage, economic espionage, and computer fraud. More commonly, however, ITMS agents sought to charge targets of its criminal investigations with offenses such as obstruction, conspiracy, making false statements to federal agents, and resistance to search.

The ITMS went past believing it was a law enforcement agency with zero accountability to believing it was an intelligence agency with a similar lack of accountability. And, like other law enforcement agencies who believe themselves to be intelligence agencies, the ITMS engaged in "investigations" predicated on little more than last names or native language.

Whistleblowers claim, for example, that agents were directed to run ethnic surnames through secure databases even in the absence of evidence suggesting potential risk to national security, indicating that immutable characteristics served as a pre-text for initiating investigations. Documents show that the ITMS also ran broad keyword searches of email accounts using a broad variety of terms and phrases in Mandarin Chinese, such as “state key laboratory,” “overseas expert consultant,” “Ministry of Science and Technology,” “funding support,” “government support,” and “highly secret.” Multiple whistleblowers claimed that the unit worked with officials at the CIA and FBI to devise the list of search terms and review the results.  

[...]

One former senior Commerce Department official described the indiscriminate targeting of Chinese-Americans as a “fine line between extra scrutiny and xenophobia, and one that ITMS regularly crossed.” This official also discovered a case into a Chinese-American employee at the Department left open for four years without any indication of investigative diligence to close the matter, claiming that the ITMS “targeted her purely because of her ethnic Chinese origin.” The official also believes that ITMS leaders directed agents to “launch the investigation for the purpose of raising the heat so high that she became radioactive and would have to leave the Department,” despite no indication that she presented a national security threat after her emails had been pulled and agents surveilled her on Department premises and at her home.

The ITMS also surveilled US citizens who weren't government employees, opening investigations into people associated with foreign visitors to Commerce Department buildings. And it monitored social media accounts that raised questions about the 2020 Census' accuracy, forwarding all flagged posts to the FBI's Foreign Influence Task Force. Most of the accounts flagged had less than 100 followers. No threats were determined to be credible, and yet the investigations into these accountholders remained open all the way through the end of 2020.

Abuse of power, retaliation, unjustified investigations, violated rights, racial profiling… all of this overseen by no one and tracked solely by an Excel spreadsheet that provided no way for investigators to attach documentation or submit findings. With no internal tracking or external oversight, millions of tax dollars were misspent and resources utilized to engage in fruitless, pointless, or retaliatory investigations. In the end, the ITMS was mainly concerned about sustaining its own existence.

One former senior official even described the network as a “vanity project” designed to showcase an unusual volume of open cases rather than facilitate a user-friendly system for agents to use in processing them. The official said leadership of the ITMS is more interested in appearing productive to retain the ability to investigate a wide variety of purported threats with broad discretion––and continue receiving funding from Congress––than processing cases within an acceptable period of time.

The entire report is harrowing, showing how much damage a government entity can do when its purview is nearly unlimited and its oversight nearly nonexistent. This report will hopefully result in the ITMS being brought into check, but Commerce oversight still needs to explain why it allowed the ITMS to run rogue for more than a decade before it finally decided to step in and do something about it.

Filed Under: china, commerce department, investigations, itms, senate commerce committee

Senator Kennedy Continues To Push My Buttons With His Ridiculously Dumb 'Don't Push My Buttons' Act

from the that's-not-how-any-of-this-works dept

Last fall, Senator John Kennedy of Louisiana (a supposedly smart Senator who seems to have decided his political future lies in acting dumber than 95% of all other Senators) introduced an anti-Section 230 bill. He's now done so again in the new Congressional session. The bill is, once again, called the "Don't Push My Buttons" Act and introducing such a piece of total garbage legislation a second time does not speak well of Senator Kennedy.

The bill is pretty short. It would create an exception to Section 230 for any website that... uses algorithms to rank content for you based on user data it collects. Basically, it's taking a roundabout way to try to remove Section 230 from Facebook, Twitter, and YouTube. It is not clear why algorithmic ranking has anything to do with Section 230. While social media sites do tend to rely on both, they are separate things. Indeed, part of the reason why social media sites rely on algorithms is because Section 230 helps make sure they can host so much user-generated content, that there needs to be algorithmic rankings to make those sites useable.

So, in practice, if this became law, all it would really serve to do is to make social media sites totally unusable. Either, websites would have to stop doing algorithmic ranking of content (which would make the sites unusable for many people) or they'd start massively moderating content to avoid liability -- making sites nearly unusable.

And, of course, there's an exemption to this exemption which makes the whole thing useless. The bill will allow algorithms... if the user "knowingly and intentionally elects to receive the content." So, all that will happen is every social media service will show you total garbage with a pop up saying "hey, we can straighten this out for you via our algorithm if you just click here" and everyone will click that button.

And that's not even getting into the constitutional problems with this bill. It's literally punishing companies for their editorial (ranking) choices. That's Congress regulating expression. I don't see how this bill would possibly survive 1st Amendment scrutiny. But, of course, it's not designed to survive any scrutiny at all. It's to serve as ever more grandstanding for Senator Kennedy to pretend to be looking out for a base he knows is ignorant beyond belief -- and rather than educating them, he's playing down to them.

Filed Under: algorithms, content moderation, john kennedy, push my buttons act, ranking, section 230

The FTC Is Driving Away Good Economists In Favor Of Political Henchmen

from the let-them-speak dept

Shut up and get in line — that's the message Federal Trade Commission Chair Lina Khan recently broadcasted to FTC staffers. Within her first month as a new commissioner, Khan ordered a stop to all public speaking for "an all-hands-on-deck moment." Evidently, she wants the FTC speaking with only one voice — her own. The gag order is going to run out the top economists and harm the FTC's long-term effectiveness.

Khan rose to academic stardom at a young age as a vocal critic of Big Tech, especially Amazon. In her most famous writing, Amazon's Antitrust Paradox, she argued for stronger antitrust enforcement even when companies are lowering prices for consumers. Khan's preferred antitrust approach would be a complete overhaul of the current antitrust system and would require a lot of work. However, even if one agrees with Khan that antitrust needs to be rewritten and that this is an all-hands-on-deck moment, Khan's current regime will make that impossible by running out her employees, especially Ph.D. economists.

Imagine yourself as a recent Ph.D. in economics from a hotshot university. You're 30 years old, and you just spent 6 years in graduate school, earning $20,000. Before that, you may have spent two years as a research assistant to a professor, earning just as little. You're a top student in your program and have lots of career options in front of you. You could go work at Amazon or Netflix and earn $200,000 a year, base salary. After living on a strict diet of research and Top Ramen in graduate school, that sounds pretty good.

Traditionally, federal agencies, like the FTC, compete for the best economists the same way universities compete. They can't match the pay of an Amazon, but they can offer economists a valuable perk: the ability to do research and engage with the scientific community as part of the job.

For many economists, who have already demonstrated their passion for research by writing a dissertation and completing a Ph.D., doing research is a huge perk that most private companies don't offer. The FTC knows this. In their own job postings for PhD economists, the FTC explicitly emphasizes their economists' ability to do research. To date, that hiring strategy has worked pretty well for them. Many economists at the FTC are top-notch researchers, with thousands of citations, an impressive feat for a full-time researcher at a university. When the FTC hires new PhDs, they are saying "you can work in public service and still be a successful researcher."

Khan's recent policies signal the FTC is now less committed to research and independent thinking. Public academic seminars, where economists present their findings to colleagues throughout the profession, are a key part of the research and publication process. If you cut off economists' ability to present their research and get feedback, you cut off the ability to do research.

The real damage will take some time to show itself. Even if the gag order does not run out the current economists, who may be loyal to the FTC after years, the order will still hurt the agency over time. Any successful agency needs to hire quality employees year in and year out. If this policy persists, the FTC will have trouble down the line hiring and retaining high-quality employees, especially economists.

Khan might not think she needs these economists right now; after all, she has made clear she opposes the economic approach to antitrust. But when the FTC takes companies to court, as we can expect it will do even more often under Khan, it needs expert witnesses to persuasively argue its case. The private companies pay $1,000 per hour for economists at the top of the profession. The FTC must hire top talent too.

If you were against antitrust enforcement and wanted to ruin the FTC from within, Khan's strategy would be nearly perfect. Step 1: Run out all the competent lawyers and rigorous, scientific economists. Step 2: Bring forth a bunch of cases that are poorly argued and lack an economic defense. Step 3: Lose those cases at the current Supreme Court and set a bunch of precedents against the FTC.

Brian Albrecht is an assistant professor of economics at Kennesaw State University. He holds a Ph.D. in economics from the University of Minnesota. He is a Young Voices contributor and writes a weekly economics newsletter (pricetheory.substack.com). Follow him on Twitter: @briancalbrecht.

Filed Under: antitrust, economists, ftc, lina khan, panels, presentations, research

New York's Mental Health Response Pilot Program More Responsive, Less Likely To End In Hospitalization Than Sending Out Cops

from the conclusions-that-should-have-been-obvious-from-the-outset dept

Earlier this year, the city of New York announced plans to send mental health professionals out to deal with mental health issues, rather than the standard-issue cops-and-EMS response teams. It's an idea that's gained recent popularity, given the difficulty law enforcement officers seem to have when dealing with things they're not specifically trained to handle. And by "difficulty," I mean a lot of people who need professional help were instead being "treated" with force deployment, arrests, and the far-more-than-occasional killing.

It's an idea so simple and intuitive it's a wonder it's taken this long to be experimented with in a small number of cities. The success stories seen elsewhere indicate this is something worth trying, if for no other reason than to free up limited law enforcement resources to handle the sort of thing law enforcement officers are trained to handle.

The results [PDF] are back on the trial run of New York City's "B-HEARD" (Behavioral Health Emergency Assistance Response Division) and they're similarly encouraging. (via Insider)

It was a limited deployment, but a successful one.

Under the pilot, teams operate seven days a week, 16 hours a day in Zone 7, which includes East Harlem and parts of Central and North Harlem in the 25, 28, and 32 police precincts. In 2020, there were approximately 8,400 mental health 911 calls in Zone 7, the highest volume of any dispatch zone in the city. During the 16 hours a day when B-HEARD teams were operational from June 6 – July 7, 2021, there were approximately 16 mental health 911 calls each day in Zone 7.

B-HEARD doesn't handle calls that involve weapons or "immediate risk of violence," but the team still handled 25% of all mental health emergency calls. The number would likely have been higher with more coverage, as police were routed to some calls when B-HEARD members were unavailable or in the midst of handling a call.

Despite these limitations, the B-HEARD team provided more help to more people than the traditional police response would have.

In 95% of cases, people received assistance from B-HEARD teams, higher than 82% for traditional (NYPD/EMS) 911 response.

So, greater responsiveness. And rather than simply turf mental health calls to the nearest hospital, B-HEARD teams were able to provide on-site help. The traditional (police-EMS) response resulted in 82% of calls ending with a ride to the hospital. With B-HEARD, the number dropped to 50%. One-quarter of all calls handled by B-HEARD were taken care of on-site, including de-escalation and referrals to counseling or other care options. Another 20% of cases resulted in B-HEARD transporting persons to community-based care locations.

And the police are more apt to call in B-HEARD than the other way around, suggesting officers are happy to utilize mental health care professionals if they're available.

NYPD has requested onsite assistance from B-HEARD 14 times.

B-HEARD teams have requested onsite assistance from NYPD 7 times.

There's no reason this shouldn't continue to work. And it should scale easily. Should. A lot depends on talking entities like the NYPD into diverting some of their (outsized) budgets towards hiring team members and funding their continued existence. If officers on patrol are utilizing the new teams, they obviously see the value of having mental health professionals on call. And if the beat officers can see the benefits, hopefully the brass isn't so disconnected from day-to-day operations that it would stand in the way of helping both the officers they oversee and the people who are paying the NYPD to keep them safe.

Filed Under: b-heard, mental health, ny, nyc, nypd, police

Devin Nunes' Lawyer Loses (Again) On Blatantly Silly RICO Lawsuit Against Google For 'Anti-Conservative Bias' In Search Results

from the where-are-the-sanctions? dept

Devin Nunes' lawyer, Steven Biss has an impressively long track record of losing increasingly silly lawsuits for a variety of clients (beyond just Nunes). Back in January we wrote about a court dismissing a RICO lawsuit brought by "DJ Lincoln Enterprises" against Google, claiming that its search results involved anti-conservative bias. We didn't even mention that Biss was the lawyer on that case, but he was. And, as is all too typical in Biss cases, he never, ever, gives in, even after a court has made it clear the case is going nowhere. Following the January dismissal, Biss filed an amended complaint, and Google had to ask for it to be dismissed again -- and (as you would likely have guessed) the court has quickly and easily dismissed the case.

Basically, the court notes that the second amended complaint isn't all that different from the complaint that was already dismissed. And the changes that were made were, well, not particularly convincing. On the RICO claims:

In its prior Order, the Court ruled that Plaintiff failed to plausibly allege the existence of two distinct entities—a “person” and an “enterprise” that was not simply the person referred to by a different name—for the purpose of pleading the RICO claims because the purported enterprise consisted only of related (not distinct) corporate entities and miscellaneous unidentified individuals or entities.... (“We do not quarrel with the basic principle that to establish liability under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.”). Plaintiff now alleges that a RICO enterprise consisted of Defendant together with “Alphabet, Inc., its CEO and Board of Directors, YouTube, its CEO and Board of Directors, and outside third-party engineers, search engine optimizers, and digital sales marketing consultants (identified above).” .... Alphabet, Inc. is Defendant’s parent company, YouTube is a video-sharing platform that Defendant owns and operates, and Plaintiff has pled no allegations to show that the unnamed CEOs and Board of Directors members were not operating in their official capacities for Alphabet, Inc. and YouTube. ... As the Court previously held, Plaintiff has not alleged facts showing that Defendant, Alphabet, Inc., YouTube, and their officers, agents, or employees are separate entities for RICO purposes, rather than a single “person.” ... Thus, Plaintiff has not demonstrated that these entities and individuals on their own could form a RICO enterprise. Plaintiff does not argue otherwise.

As to the “outside third-party engineers, search engine optimizers, and digital sales marketing consultants,” Plaintiff identifies those entities as “Godaddy.com, Bernstein-Rein (b-r.com) and Ucodice.com.” ... But Plaintiff has not pled concrete, non-conclusory facts to support a plausible inference that each of these outside entities knew about and shared a fraudulent or otherwise criminal common purpose with the purported RICO enterprise. Cf. Cisneros v. Petland, Inc., 972 F.3d 1204, 1211-15 (11th Cir. 2020) (explaining that a RICO claim requires a “common purpose of engaging in a course of conduct among the enterprise’s alleged participants” and affirming the dismissal of a RICO claim where the plaintiff failed to plead concrete facts plausibly supporting an inference that the purported enterprise’s participants shared a fraudulent purpose); Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1352-55 (11th Cir. 2016). Plaintiff alleges in a conclusory manner that the outside entities shared Defendant’s common purpose to misrepresent its corporate philosophy and business model, to induce Plaintiff to modify its website and business practices, and to discriminate against political conservatives and their businesses. ... Plaintiff has failed to identify any specific actions taken by any particular outside entity. Moreover, the outside entities’ conduct that is alleged at a high level of generality—providing information about how to improve website search results—is innocuous conduct that does not itself demonstrate a fraudulent purpose.... Even if the outside entities are distinct from Defendant and could form a RICO enterprise with Defendant, Plaintiff has not plausibly alleged that the outside entities were part of the enterprise because the allegations do not support an inference that the outside entities shared the purported enterprise’s common purpose.

As for straight up "fraud," the court points out that the second amended complaint just... fails entirely to make a claim.

The allegations in the Second Amended Complaint do not satisfy the requirements of Rule 9(b). Plaintiff alleges that Defendant engaged in fraud by inducing Plaintiff to make costly modifications to its website to improve search results, when such modifications would not in fact improve the website’s search results. ... Plaintiff makes only generalized allegations that Defendant communicated with Plaintiff between 2016 and 2018 in emails, blogs, and online chats.... At minimum, Plaintiff has not identified the precise statements that Defendant made to Plaintiff or the dates on which the statements were made.3 Plaintiff has provided no explanation for why it is unable to plead with the specificity that Rule 9(b) requires when the communications at issue were with Plaintiff itself. Plaintiff’s pleading of affirmative misrepresentations that allegedly constitute fraud is insufficient under Rule 9(b).

Also, um, Google not informing you that it's biased against conservatives (especially considering there's no evidence to support that claim) is not, by itself, "fraud."

Plaintiff also bases its fraud claims on omissions, alleging that Defendant behaved fraudulently by failing to disclose certain information to Plaintiff. Specifically, Plaintiff alleges that Defendant failed to disclose that it is biased against political conservatives and that, due to that bias, Defendant would ensure that no modifications Plaintiff could make to its website would improve search results. ... As the Court stated in its prior Order, knowing non-disclosure of information may support a fraud claim under Florida law if a duty to disclose existed.... Plaintiff does not argue that, to the extent its fraud claims are based on omissions, it is unnecessary to show a duty to disclose for any of the claims. Rather, Plaintiff argues that its allegations show that Defendant did have a duty to disclose.... (“Google was in possession of information that Lincoln had a right to know because of (a) Google’s position of superior knowledge and Lincoln’s lack of access to and lack of opportunity to discover the truth, (b) Google’s superior bargaining power and Lincoln’s dependence on Google for advice, counsel and protection regarding Search, and (c) because of the relation of trust and confidence between Google (and its trusted partners) and Lincoln.”);... (“Lincoln reposed trust and confidence in Google, which Google accepted. . . . As a result, a fiduciary relationship arose between Google and Lincoln.”).

Possession of superior knowledge alone does not create a duty to disclose under Florida law. Cordell Consultant, Inc. Money Purchase Plan & Tr. v. Abbott, No. 11-80416-CIV, 2012 WL 13148744, at *3 (S.D. Fla. July 11, 2012) (stating that a duty to disclose between parties to an arms’ length transaction based on exclusive and superior knowledge “does not exist in the absence of a fiduciary or other special or confidential relationship of trust because there is no duty imposed on either party to protect or benefit the other”). And it is unclear why any disparity in the parties’ “bargaining power” is relevant when Plaintiff does not allege that the parties were bargaining; Plaintiff provides no explanation on this point.

So now the case has been dismissed yet again, and the judge has said no more amended complaints allowed.

The Court concludes that giving Plaintiff further opportunities to attempt to correct these deficiencies, which would undoubtedly lead to Defendant filing a fourth Motion to Dismiss, is inappropriate.

Here's the bit I'm still trying to understand. All of these Biss cases fail. And fail easily. They're so obviously vexatious lawsuits with no chance of winning. So what is the point here? Filing lawsuits is not free, and someone has to be paying Biss to file so many garbage lawsuits. It remains unclear who is footing the bill for so many lawsuits and why they want to keep filing such frivolous lawsuits that are bound to fail.

Filed Under: anti-conservative bias, rico, search, steven biss
Companies: dj lincoln, google

Governments Accused Of Spying On Journalists And Activists With NSO Group Malware Are Now Suing Journalists And Activists

from the all-hosted-by-a-country-that-really-knows-how-to-host-a-war-or-two dept

I don't think anyone foresaw the immense amount of fallout that would result from the revelation that Israeli malware purveyor NSO Group's Pegasus software is being used to target phones belonging to journalists, activists, religious leaders, and high-ranking government officials. After all, some of this was already common knowledge, thanks to investigations by Citizen Lab and others delving into the inner workings of this powerful spyware.

The malware maker had already weathered plenty of negative press, thanks to its customers' questionable use of its products, as well as NSO Group's willingness to sell powerful exploits to enemies of Israel with long human rights abuse rap sheets.

The company is now trying to regain control of the narrative, but its statements and responses have raised more questions than they've answered. NSO claims it has nothing to do with the list of 50,000 potential target phone numbers seen by journalists (a list that contains nearly 200 journalists' phone numbers). It also says it has "no visibility" on customers' use of its malware, which undermines the strength of this denial. NSO also claims it cuts off governments who abuse the product to target journalists, religious leaders, and government officials, but [taps statement above] if NSO doesn't know what customers are doing with the malware, it seems highly unlikely the company is in any position to start cutting customers off.

It's not just NSO Group that's angry. Entire governments are now pissed off by these revelations. Not everyone is angry for the same reason, though.

In France, the revelation that President Emmanuel Macron's phone was on the list of NSO-linked numbers has resulted in Macron and 14 other French ministers acquiring new phones and numbers. The French government has also opened an investigation into the Moroccan government's use of NSO's Pegasus software, which is seemingly where the targeting of French officials originated.

Over in Morocco, the government is angry that it's been named as one of the main perpetrators of questionable targeting.

Morocco has filed defamation claims against Amnesty International and a French NGO who claim its intelligence services used the Pegasus mobile phone spyware against dozens of French journalists, lawyers for the government said Thursday.

"The Moroccan state ... wants all possible light cast on these false allegations from these two organisations, who make claims without any concrete or demonstrative evidence whatsoever," the lawyer, Olivier Baratelli, said in a statement.

Somewhat awkwardly, this defamation action is being pursued in France, where Moroccan government activities are now facing scrutiny from French investigators.

But even Moroccan government officials weren't exempt from the government's alleged spying efforts.

On Tuesday, Radio France claims the country’s monarch was on the list, as well as “a large number” of Moroccan royals.

The list is said to include the king’s wife Lalla Salma Bennani; his cousin Prince Moulay Hicham Alaoui, nicknamed the “red prince” for his progressive views; a former son-in-law of the late King Hassan II; entrepreneur Fouad Filali; and Hassan II’s former bodyguard, Mohamed Mediouri, who is the current king’s stepfather.

“But what is most surprising, when you look closely at this list, is that the sovereign himself is among those whose numbers were selected as potential Pegasus targets,” the report says.

And the government has placed journalists under surveillance in the past, undermining its new claims that it has never used the software nor purchased exploits from NSO Group.

[Amnesty International] found that [Moroccan journalist] Omar Radi’s phone was subjected to multiple attacks using a sophisticated new technique that silently installed NSO Group’s notorious Pegasus spyware. The attacks occurred over a period when Radi was being repeatedly harassed by the Moroccan authorities, with one attack taking place just days after NSO pledged to stop its products being used in human rights abuses and continued until at least January 2020.

So, there's a lot to unpack and hopefully the court will start doing that when it begins handling the Moroccan government's defamation claim. If there's any truth to the allegations, one would expect the lawsuit to be dropped if the Moroccan government is ordered to turn over information on its surveillance tech and spying activities.

Morocco isn't the only aggrieved national government, though. More litigation is in the works, courtesy of the Algerian government, which says it was falsely accused of utilizing the spyware to snoop on targets. This legal action will also be taking place in France.

Algeria said on Friday that it had filed a defamation claim against media watchdog Reporters Without Borders (RSF) after it back-pedalled accusations that the North African country had possessed Israeli-made Pegasus spyware.

Algeria's embassy in France said the complaint related to declarations the France-based organisation published on its website on July 19.

RSF had initially identified Algeria as among the countries possessing the spyware, developed by Israeli firm NSO Group, but on Friday it issued a correction.

RSF has since apologized for the error, but that isn't stopping the Algerian government from making a whole bunch of noise about the mistake.

"As well as their defamatory and false nature, these unacceptable allegations pertain to the manipulation of RSF, which is known for its relentlessness towards Algeria," the embassy said.

That's pretty mild compared to the doth-protest-too-much blustering of Morocco's Foreign Minister Nasser Bourita, who must be getting paid by the word to issue responses.

Morocco has also chosen to trust justice, at home and internationally, added Bourita, who denounced a “smokescreen”, and a “fabricated bluff (…) without any proof”, calling for “shedding light on the facts, far from controversy and slander.”

However, “this is what neither Forbidden Stories nor Amnesty International do. They base their stories solely on pure speculation”, Bourita said, noting that certain papers that are under the banner of Forbidden Stories “serve agendas that are well known for their primary hostility towards Morocco” and are ulcerated by the Kingdom’s successes under the leadership of King Mohammed VI.

This is mere hostility. This is not journalism. It is large-scale sabotage, he said.

And so it goes for several paragraphs, punctuated by the occasional even-hotter take.

“Is this a campaign? Yes! Is it denigration? Certainly! Is it orchestrated? It could not be otherwise! By whom? Time will tell,” he said.

Ah, "time will tell." Or will it? Sometimes it doesn't. Sometimes no one learns anything because the secrecy surrounding national security efforts meshes with NDAs signed by surveillance tech customers and, before anything gets really interesting, lawsuits get dropped and verbose rants are replaced with "requests for comment were not returned."

Whatever the provenance of The List, it has become a Pandora's Box for NSO Group. Never mind the fact NSO didn't actually open the box itself. It's open and NSO will have to start dealing with the mess it's created.

Filed Under: defamation, france, malware, morocco, surveillance
Companies: nso group