Facial Recognition's Latest Failure Is Keeping People From Accessing Their Unemployment Benefits

from the would-be-fixed-instantly-if-the-CEO-had-to-use-the-system-to-get-paid dept

Is there anything facial recognition tech can't do?

The answer appears to be "yes." Or maybe it's "no." The list of things it can't do well flows from the only thing it's asked to do and can't: recognize faces.

It can't allow you to board a plane at certain airports if it decides you're not the person you actually are. It can't keep you from being arrested if it decides you're someone you're not. And it can't let you on the property if it's deployed by any number of cameras watching any number of private establishments.

The latest thing it can't do is keep unemployed people connected with their unemployment assistance. A private contractor acting as a fraud-fighting middleman is apparently fighting fraud by keeping legitimate recipients of assistance from receiving any assistance. Todd Feathers has more information at Motherboard.

Unemployment recipients have been complaining for months about the identity verification service ID.me, which uses a combination of biometric information and official documents to confirm that applicants are who they claim to be. The complaints reached another crescendo this week after Axios published a “deep dive” article about the threat of unemployment fraud based on statistics provided to the outlet by ID.me.

Some unemployment applicants have said that ID.me’s facial recognition models fail to properly identify them (generally speaking, facial recognition technology is notoriously less accurate for women and people of color). And after their applications were put on hold because their identity couldn’t be verified, many should-be beneficiaries have had to wait days or weeks to reach an ID.me “trusted referee” who could confirm what the technology couldn’t.

Months-worth of complaints can easily be found on Twitter. A steady stream of angry tweets in ID.me's direction undercuts the company's assurances that everything is working fine or, in the event that it isn't, it's all the end users' fault.

In his statement to Motherboard, [IDme CEO Blake] Hall said that facial recognition failures are not a problem with the technology but with the people using it to verify their identity. “For example, if someone uploads a selfie that only shows half their face.”

“We are unaware of eligible individuals who have not been able to verify their identity with ID.me,” he said, and “the wait time for a live video chat session right now is less than five minutes and it has been consistently under 30 minutes all week.”

Hmm. Perhaps Hall should take a scroll through Twitter and try to square his statement with actual users' experiences. Multiple complainants have noted the supposed 24/7 chat is anything but 24/7 and trying to reach someone by phone is even more futile than trying to utilize the seemingly all-but-abandoned online chat service.

While the backend goes neglected, CEO Blake Hall is pushing for more states to utilize ID.me to combat unemployment fraud. The service is currently used by 21 states but ID.me would obviously like that number to be higher. To push that number higher, Hall appears to be pushing other numbers higher. As Feathers points out in his report, Hall's estimate of money lost to unemployment fraud leapt from $200 million in February to $400 million by the time he was approached by Axios earlier this month as it compiled its "deep dive" into the company. While this kind of growth is to be expected over time, the best source for fraud estimates isn't a company that has a financial interest in portraying fraud as a bigger problem than it may actually be.

This is the latest frontier of facial recognition failure. And it will get worse before… well, there's no way of telling if it will ever get better. More automation of services is inevitable. And efforts put in place to prevent abuse of those services will inevitably involve verification processes like these. But if the government is going to rely on third-party tech with this many known problems, it needs to make sure it contractors and its agencies have the people and processes in place to backstop AI decisions and head off more of the (also inevitable) failures.

Filed Under: facial recognition, unemployment benefits

Court Tosses Both FTC And States' Antitrust Cases Against Facebook; You Gotta Have More Than 'Big Facebook Bad'

from the ouch dept

As you'll almost certainly recall, last December the FTC filed an antitrust case against Facebook. That happened the same day 46 states (and DC and Guam) also sued Facebook for antitrust violations in a separate case. Also it was right after the DOJ went after Google on antitrust grounds.

On Monday a judge ruled on both the cases against Facebook -- and dismissed them both. In both cases, the Court highlights the very problems we noted in our initial writeup about these cases. They seem to assume that "obviously" Facebook is a monopoly and "obviously" it's doing anti-competitive bad stuff. But... the problem with insisting that it's all "obvious" is that you have to actually show that in your complaint. And that didn't happen in either of these cases.

The court, fairly easily, dismissed the FTC's case, though left it open for the FTC to amend the case and try again (which it will almost certainly do). The judge highlighted the exact same problem I raised in my post about the key weakness in the case: it fails to show evidence that Facebook has a monopoly.

Although the Court does not agree with all of Facebook’s contentions here, it ultimately concurs that the agency’s Complaint is legally insufficient and must therefore be dismissed. The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a “dominant share of th[at] market (in excess of 60%).” ... Such an unsupported assertion might (barely) suffice in a Section 2 case involving a more traditional goods market, in which the Court could reasonably infer that market share was measured by revenue, units sold, or some other typical metric. But this case involves no ordinary or intuitive market. Rather, PSN services are free to use, and the exact metes and bounds of what even constitutes a PSN service — i.e., which features of a company’s mobile app or website are included in that definition and which are excluded — are hardly crystal clear. In this unusual context, the FTC’s inability to offer any indication of the metric(s) or method(s) it used to calculate Facebook’s market share renders its vague “60%-plus” assertion too speculative and conclusory to go forward. Because this defect could conceivably be overcome by re-pleading, however, the Court will dismiss only the Complaint, not the case, and will do so without prejudice to allow Plaintiff to file an amended Complaint.

In our original post about the case we noted the FTC can't just say "it's obvious this is a monopoly" without anything to back it up, but that's what it tried to do, and that's what the court can't allow. Also, the court seems skeptical that even if the FTC could prove monopoly power that the rest of the case would hold up:

First, even if the FTC had sufficiently pleaded market power, its challenge to Facebook’s policy of refusing interoperability permissions with competing apps fails to state a claim for injunctive relief. As explained herein (and in the Court’s separate Opinion in the States’ case), there is nothing unlawful about having such a policy in general. While it is possible that Facebook’s implementation of that policy as to certain specific competitor apps may have violated Section 2, such finding would not change the outcome here: all such revocations of access occurred in 2013, seven years before this suit was filed, and the FTC lacks statutory authority to seek an injunction “based on [such] long-past conduct.” FTC v. Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019). Regardless of whether the FTC can amend its Complaint to plausibly allege market power and advance this litigation, then, the conduct it has alleged regarding Facebook’s interoperability policies cannot form the basis for Section 2 liability. Second, the agency is on firmer ground in scrutinizing the acquisitions of Instagram and WhatsApp, as the Court rejects Facebook’s argument that the FTC lacks authority to seek injunctive relief against those purchases. Whether other issues arise in a subsequent phase of litigation is dependent on how the Government wishes to proceed.

The details of the ruling really show (as we had suggested earlier) that it appears that the government really tried to rush all these cases, and did so with weak arguments just to get a case started, without thinking that just because you say something is true you can't get a court to buy it without support:

Although the Court, as just explained, finds the contours of the asserted product market plausible, the Complaint is undoubtedly light on specific factual allegations regarding consumer-switching preferences. Given that thin showing, and the fact that the PSN-services product market is somewhat “idiosyncratically drawn” to begin with, the Court must demand something more robust from Plaintiff’s market-share allegations. As it happens, however, those allegations are even more tentative: the FTC alleges only that Facebook has “maintained a dominant share of the U.S. personal social networking market (in excess of 60%)” since 2011, ... and that “no other social network of comparable scale exists in the United States.”... That is it. These allegations — which do not even provide an estimated actual figure or range for Facebook’s market share at any point over the past ten years — ultimately fall short of plausibly establishing that Facebook holds market power. Given that finding, the court need not address the issue of whether the FTC has sufficiently alleged entry barriers.

The question now is what will the FTC do in response. It could try to come back with another attempt with a better market definition -- even though the court seems somewhat skeptical that it could do so successfully. The other option, which some are speculating about, is that the FTC could try again using a totally different legal theory, basically arguing unfair competition, rather than abuse of market power. Of course, as former FTC Commissioner Joshua Wright has detailed, taking this latter approach could lead the courts to significantly limiting the FTC's authority -- meaning it could backfire spectacularly.

As for the States' case against Facebook, it fails for even dumber reasons. When the case was first filed, we noted how it tells a narrative that left out a ton of important context. The case focuses on Facebook's purchases of both WhatsApp and Instagram, and tries to argue that after sucking a bunch of companies in to use Facebook's platform, it then cut back on the API access to functionalities to keep competitors out. That, of course, leaves out the context of reasons why Facebook changed its approach to the API and how it had to deal with situations like Cambridge Analytica's abuse of the API to suck out a ton of data.

But the real problem with the States' case? They brought it way too late. If they had a problem with the purchase of Instagram and WhatsApp, they maybe should have brought the case years ago:

First, the States’ Section 2 and Section 7 attacks on Facebook’s acquisitions are barred by the doctrine of laches, which precludes relief for those who sleep on their rights. Although Defendant purchased Instagram in 2012 and WhatsApp in 2014, Plaintiffs’ suit — which seeks, in the main, to have Facebook divest one or both companies — was not filed until December 2020. The Court is aware of no case, and Plaintiffs provide none, where such a long delay in seeking such a consequential remedy has been countenanced in a case brought by a plaintiff other than the federal government, against which laches does not apply and to which the federal antitrust laws grant unique authority as sovereign law enforcer. If laches is to mean anything, it must apply on these facts, even in a suit brought by states.

As for the API changes? Well, again the court notes there's nothing actually against the law in changing your API policies -- and even if the changes were done for anti-competitive reasons, those changes also happened way, way too long ago:

Second, the States’ Section 2 challenge to Facebook’s policy of preventing interoperability with competing apps fails to state a claim under current antitrust law, as there is nothing unlawful about having such a policy. While it is possible that Facebook’s implementation of that policy as to certain specific competitor apps may have violated Section 2, the Court does not reach that question because all such revocations of access occurred over five years before the filing of the Complaint. Such long-past violations cannot furnish a basis for the injunctive relief that Plaintiffs seek here.

Basically, the problem with the States' case is that they're too damn late.

Many people have taken it for granted that Facebook is clearly violating antitrust law, but the lawyers bringing these cases against the company can't take that for granted, or assume that it's obvious. They have to prove it to a court, and, as these two rulings show, they failed to do so in either case.

Filed Under: antitrust, competition, ftc, market power, states
Companies: facebook

Support For Community Broadband Could Be On Chopping Block As 'Bipartisan Broadband Negotiations' Continue

from the concessions-only-go-one-direction dept

We've already noted how the Biden broadband plan was good, but arguably vague. As in, the outline proclaims that the government will boost competition and lower prices, but it doesn't actually get at all specific about how it actually hopes to do that. For example the plan proposes providing more support for community broadband, but with 17 ISP-backed state laws prohibiting such efforts (and new ones popping up in states like Ohio), it's not clear what that support will actually look like.

Telecom giants like Comcast and AT&T have been relentlessly lobbying both parties. They generally want one thing: more subsidies thrown their direction to fill in the coverage gaps they should have shored up a decade ago, and less money thrown at generating competition across their existing footprints. 83 million Americans live under a broadband monopoly, and incumbents spend countless billable hours covertly working to protect this profitable dysfunction.

As a result, the scope of the Biden broadband plan (and the infrastructure proposal) continue to shrink. The $100 billion plan is now a $65 billion plan, and it seems fairly likely that many of the restrictions AT&T, Verizon, and Comcast have been gunning for will make their way into any final proposal. It's also pretty unlikely Republicans, who consistently try to ban communities from building better, faster broadband networks, will support community broadband:

"Congressional Republicans have tried to ban municipal broadband nationwide, so it's highly unlikely that they would have agreed to Biden's stated goal of giving public networks priority over private ISPs in the next big round of government subsidies."

When it comes to broadband policy, what's often passed as "concession and compromise for the sake of bipartisanship" isn't actually that. In reality it's usually just select Democrats and Republicans, prodded by AT&T and Comcast to weaken proposal language, pretending their opposition is due to being principled spendthrifts. But the same politicians who don't want to spend money on broadband now, saw no problem with throwing billions in tax breaks at these same companies for absolutely no reason or beneficial outcome. So there's no logic to much of this stuff, but we like to pretend otherwise.

It has to be made clear that this country has thrown untold billions in subsidies, tax breaks, and regulatory favors at regional monopolies for networks that are routinely half completed. And notice that when there are "concessions" bandied about, they almost uniformly only seem to go one direction: in the direction of what's beneficial to regional telecom monopolies not coincidentally tethered to our intelligence-gathering apparatus. It's a relentless, corrupted process, all covered up by ambiguous and breathless political support for "fixing the digital divide."

Not to be too cynical; there's still some notable improvements that could be done with the reconciliation process and some grit. But with broadband, generally the outcome of "bipartisan compromise" is almost always immense fecklessness. As in, a broadband plan that talks a lot about "curing the digital divide" and the "miracle of 5G," then just throws yet more poorly tracked subsidies at entrenched broadband monopolies. All while refusing to do much to tackle the increasingly obvious reason US broadband remains mired in mediocrity: regional monopolization and corruption.

Filed Under: broadband, community broadband, infrastructure

Daily Deal: The Corporate Finance Bootcamp Bundle

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

The Corporate Finance Bootcamp Bundle has 11 courses to help you learn new accounting skills. You'll learn how to read and analyze financial statements, how to create financial forecasts and budgets, how to analyze break-even points, and more. Courses also cover purchasing and procurement, commercial management, retail management, and other topics. The bundle is on sale for $40.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Once Again: Content Moderation Often Mistakes Reporting On Bad Behavior With Celebrating Bad Behavior

from the and-it-will-always-do-so dept

On Monday, the Twitter account Right Wing Watch -- which is famous for highlighting some of the nuttier nonsense said by Republicans -- announced that its YouTube account had been permanently banned.

As you can see, that ban was initially put in place over a claim that the videos violated YouTube's Community Guidelines. RWW appealed, and was told that YouTube had "decided to keep your account suspended" even after the appeal.

This sort of thing happens all the time, of course. For over a decade, we've highlighted how demands that social media take down "terrorist" content resulted in the company shutting down accounts that tracked evidence of war crimes. Because the very same videos that might serve as terrorist propaganda can also serve as an archive and evidence of war crimes.

In short, context matters, and that context goes way beyond the content of a video.

And this seems to be the same sort of case. Lots of people (including, somewhat ironically, the Right Wing Watch account itself) have been demanding that social media websites be more aggressive in moderating the accounts of conspiracy theorists and propagandists peddling nonsense about elections and the pandemic and the like. But, in highlighting the examples of extremists promoting that nonsense, RWW is showing the same content itself.

Not surprisingly, after this story started going viral, YouTube said it had been a mistake and reinstated the account:

“Right Wing Watch’s YouTube channel was mistakenly suspended, but upon further review, has now been reinstated,” a YouTube spokesperson told The Daily Beast on Monday afternoon. The social-media site also suggested that the issue was a mistake due to high volume of content and that they attempted to move quickly to undo the ban.

Right Wing Watch also confirmed that YouTube informed the site on Monday afternoon that their channel was back online.

“We are glad that by reinstating our account, YouTube recognizes our position that there is a world of difference between reporting on offensive activities and committing them,” Right Wing Watch director Adele Stan said in a statement after the reinstatement. “Without the ability to accurately portray dangerous behavior, meaningful journalism and public education about that behavior would cease to exist.”

And, indeed, it is true that there is a world of difference, but the important point is that it's not easy to tell that difference when you're a content moderation reviewer just looking at the content. They won't have the context, and it's almost impossible to get them the proper context in an easy to understand manner. Someone not familiar with the RWW account is not going to understand what it's doing without understanding a much wider context in which that account operates.

And, this is just one of many, many, many reasons why content moderation at scale is impossible to do well.

Filed Under: content moderation, reporting, right wing watch
Companies: youtube

Attorney General Says He'll Support Legislation That Bans The DOJ From Targeting Reporters During Leak Investigations

from the sounds-great-but-let's-get-that-on-paper dept

The first half of this year has been periodically interrupted with news of the DOJ's attempts to obtain journalists' phone and email records. The Trump Administration targeted journalists at CNN, the New York Times, and the Washington Post while trying to sniff out the sources of White House leaks.

This wasn't necessarily uncommon behavior for the DOJ. Prior to Trump's arrival in office (along with his open disdain for journalists), the Obama Administration set records for leak investigations and whistleblower prosecutions. Obama's DOJ targeted journalists hundreds of times while Eric Holder was Attorney General.

Following this run of negative press, President Joe Biden stepped up to swear the DOJ would never target journalists again. A few days later, the DOJ decided it should align itself with its boss and also said it would end the practice of seeking journalists' records during leak investigations. An investigation was opened by the DOJ's Inspector General to see how often this was done and whether or not it violated rights/DOJ policies.

This is all well and good but all it takes is a regime change -- something that can happen as often as every four years -- to roll these pledges back and let the DOJ get back to using journalists' communications records to track down their sources. To make it permanent, you need codification.

So, Congress had better get on it, because this promise by the new Attorney General expires when he leaves office.

Attorney General Merrick Garland has endorsed the idea of legislation to create an enduring ban on federal prosecutors subpoenaing reporters or their phone or email records in federal investigations, but he stopped short of announcing an official endorsement on behalf of the Biden administration.

[...]

"You are right in suggesting that the only way to make it permanently durable is through legislation, and I personally will support working with Congress to develop legislation that would make protections for obtaining the press’ records part of the legislation," the attorney general said in response to a journalist's question on the topic.

A lot of journalist shield legislation has come and gone without becoming enshrined into law. It will be no less difficult to get this on the president's desk this time around, as there seems to be some leftover animosity towards the press residing in a number of Congressional reps and Senators.

The DOJ is revamping its internal policies to better fit the public statements made by Merrick Garland. But those too are subject to rewriting if future DOJ officials would rather punish leakers than respect rights. Still, this is more than we've seen from any other DOJ boss in terms of protecting journalists from the DOJ. Obama's Attorney General, Eric Holder, did back legislation creating more protections for journalists, but that failed bill did not explicitly forbid the DOJ from seeking journalists' records.

This is heartening news, even if it's a bit dampened by the reality of passing legislation in DC. Without bipartisan support, it will likely go nowhere. It will be up to the DOJ to enforce its own ban, if that's the direction it decides to go. Trusting the DOJ to not break its own rules has rarely worked in the past. If the DOJ decides later it's more efficient to go after journalists when hunting leakers, it will. And it will find a way to justify its actions, with the easiest route being to quietly scrap internal guidelines preventing it from doing what it wants.

Filed Under: doj, journalism, leaks, merrick garland, surveillance

Ringo Starr Drops Trademark Challenge Against 'Ring O' Sex Toy

from the missed-opportunities dept

First, an apology. I tend to cover much of our trademark beat here at Techdirt. And regular readers here will know that my sense of humor trends towards the juvenile and vulgar. It is with a solemn and heartfelt apology, therefore, that I must report to you all that I somehow missed that there was a trademark fight between famed drummer Ringo Starr and Pacific Coast Holdings IP, LLC, makers of a Ring O -- wait for it -- sex toy. I really should have caught this, but missed it.

The background on this is that Starr's legal team opposed the "Ring O" trademark Pacific Coast Holdings applied for, claiming that the public would be confused into believing that Starr was now somehow in the sex toys business.

Documents filed by his lawyers in 2019 said: "Consumers will likely believe that Opposer's [Starr's] newest venture is sex toys - and this is an association that Opposer does not want."

It must certainly be true that Starr did not want this name on a sex toy. He may have even believed people would think he was somehow associated with sex toys as a result. But his legal team very much should have explained to him that a product name like this doesn't actually constitute trademark infringement, given that there was no other association made with the drummer and that they don't compete with one another in commerce.

While that apparently wasn't done up front, this is all now once again in the news because Starr and Pacific Coast Holdings have entered into a co-existance agreement, part of which includes Starr dropping his opposition.

Now, according to the settlement, Pacific Holdings and Momentum Management have agreed to "avoid any activity likely to lead to confusion" between their product and the musician.

The deal says the companies can only use the name for adult sex aids and desensitising sprays, and must have a space between the "Ring" and the "O".

The companies have pledged not to "degrade, tarnish or deprecate or disparage" Starr's name or image. They also said they wouldn't make any reference or innuendo associating the product with Starr, or give the impression that he's associated with it.

In other words, the company will continue to use the name as it had been, but now stipulate that it won't in the future make any other reference to Ringo Starr. If that's a win, it is certainly a meager one.

It sure would be nice, however, if the famous didn't walk through life with IP rabbit ears attempting to pick up any real or imagined reference to themselves, just waiting to pounce over intellectual property concerns that don't actually exist.

Filed Under: ringo star, sex toys, trademark
Companies: pacific coast holdings

Creating State Action Via Antitrust Law And Making The People Who've Been Wrong About The Constitutionality Of Content Moderation Suddenly Right

from the stopped-clocks dept

The challenge of a 24+ hour legislative session covering multiple bills is that it's hard to keep track of everything that happens. In my last post I wrote about a few impressions and examples that I happened to catch. This post is about another.

Plenty of people on both sides of the aisle have been plenty wrong about content moderation on the Internet. Many Democrats get it very wrong, and so do many Republicans. In the case of people like Reps. Jim Jordan and Matt Gaetz, their particular flavor of wrongness has been to rant and rave about the private editorial decisions platforms have made to remove the speech they think they should have the right to make on these services, no matter what. They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rights—and they are completely and utterly wrong on that point. Platforms are private actors with their own First Amendment rights to choose what speech to associate with. Making those decisions, even in ways some people (including these Congressmen) don't like, is entirely legal and THEIR constitutional right to exercise. It in no way impinges on the First Amendment rights of any would-be user of their service to refuse their expression.

But these Congressmen and some of their similarly-minded colleagues have noticed that if these antitrust bills should become law in anything close to their current form their speech will continue to be denied access to these services. And this time that denial may well represent an unconstitutional incursion on their speech rights. Because it's one thing if the platforms make their own independent editorial decisions on whether to facilitate or deny certain user speech, including these Congressmen's speech. But it's another when government pressure forces platforms' hand to make those decisions in any particular way. And that's what these bills threaten to do.

One such way that they flagged is through the bills' demands for interoperability. Interoperability sounds like a nice idea in theory, but in practice there are significant issues with privacy, security, and even potentially content moderation, especially when it is demanded. Because one of the problems with an interoperability mandate is that it's hard to tell if, in being interoperable, one platform needs to adopt the same moderation policies of another platform they are trying to interoperate with. If the answer is yes, then suddenly platforms are no longer getting to make their own editorial decisions; now they are making editorial decisions the government is forcing them to make. Which means that when they impose them against certain user speech it now is at the behest of the state and therefore likely a violation of those users speech rights, which are rights that protect their speech against state action.

But even if a platform opts not to conform its moderation policies, the constitutional problem would remain. Because if these bills were to become law in their current form, the decision not to conform moderation policies might still be seen to flout the law's requirement for interoperability. And, at least initially, it would be up to the FTC to decide whether it does and thus warrants taking an enforcement action against the platform. But that means that the FTC could easily be in the position of making content-based decisions in order to decide whether the platform's content moderation decision (in this case not to conform) looks like an antitrust violation or not. This situation deeply concerned these Congressmen, who also happen to be of the belief that the FTC is a captured agency prone to making content decisions that conflict with their own preferred viewpoints. While their concerns generally seem overwrought, bills like these start to give them an air of legitimacy. Because regardless of whether the FTC actually is captured by any particular point of view or not, if it is going to make ANY enforcement decision predicated on any expressive decisions, that's a huge Constitutional problem, irrespective of which point of view may suffer or benefit from such government action.

So while it is very difficult to credit the particular outrage of these Congressmen, their alarm illustrates the fundamental problem with these bills and other similar legislative efforts (including some anti-Section 230 bills that these Congressmen favor): these targeted businesses are not ordinary companies selling ordinary products and services where market forces act in traditional market-driven ways. These are platforms and services handling SPEECH. And when companies are in the speech-handling business we can't treat them like non-speech businesses without impinging on those speech interests themselves in an unconstitutional "make no law" sort of way.

But that is exactly what Congress is deliberately trying to do. It is the government's displeasure with how these companies have been intermediating speech that is at the root of these regulatory efforts. It's not a case of, "These companies are big, maybe that's bad, and oops! Our regulatory efforts have accidentally implicated a speech interest." The whole acknowledged point of these regulatory efforts is to target companies that are "different," and the way they are different is because they are companies in the online speech business. Congress is deliberately trying to make a law that will shape how companies do that business. And the fact that its efforts are running headlong into some of the most provocative political speech interests of the day is Exhibit A for why the whole endeavor is an unconstitutional one.

Filed Under: antitrust, content moderation, interoperability, jim jordan, matt gaetz, state action
Companies: amazon, apple, facebook, google

2nd Circuit Upholds Non-Monetary Sanctions Against Copyright Troll Richard Liebowitz

from the lying-liebowitz dept

Here's a quick update on infamous copyright troll Richard Liebowitz. As you may recall, after tons of stories about Liebowitz's horrendously bad activities in and out of court, federal district court Judge Jesse Furman finally threw the book at Liebowitz in an incredible ruling that literally catalogued dozens upon dozens of examples of Liebowitz lying to his and other courts. Furman issued both monetary and non-monetary sanctions. Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client.

Liebowitz whined about how unfair it all was, and appealed the ruling. On Friday, the 2nd Circuit Court of appeals upheld the non-monetary sanctions, saying it will release its opinion on the monetary sanctions shortly. The ruling is pretty short (unlike Furman's explanation of all of Liebowitz's wrongdoing), but the general conclusion is: all the evidence says that Furman was exactly right, so his sanctions order was fine.

In this summary order, we focus on the court’s non8 monetary sanctions. “We review a district court’s imposition of sanctions for abuse of discretion”; however, because the district court is the “‘accuser, fact finder and sentencing judge’ all in one” when imposing sanctions, “our review is ‘more exacting than under the ordinary abuse-of-discretion standard.’” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (citation omitted). A district court abuses its discretion if its sanctions are based on “an erroneous view of the law or on a clearly erroneous assessment of the evidence,” and where its sanctions “cannot be located within the range of permissible decisions.” Id. (citations omitted).

Appellants’ arguments that the district court abused its discretion in imposing the non-monetary sanctions are unavailing. First, the court’s findings that Liebowitz lied and acted in bad faith when he represented to the court that the mediator gave Usherson permission to attend the mediation by phone and when he alleged in the complaint that the photograph was registered were not clearly erroneous. The evidence in the record––for example, the mediator’s testimony and the email exchange between the mediator and Bandshell’s counsel the night before the mediation––supports both conclusions. United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (“When . . . credibility determinations are at issue, we give particularly strong deference to a district court finding.”). Liebowitz’s conduct was also not “colorable” as required to contest the court’s bad-faith finding. See Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114. There exists no “legal or factual basis” to excuse Liebowitz of his duty to reasonably investigate the claims in his complaint. Id.

Second, Appellants’ arguments that the non-monetary sanctions are overbroad because of their nationwide scope fail to persuade. Appellants rely on our decision in Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012), where the law firm made several misrepresentations and the district court only required the firm to file a copy of its sanctions order with future pro hac vice applications in the Southern District of New York. See id. at 148. However, unlike the law firm’s misconduct in Enmon, Liebowitz’s misconduct in this case––including violating multiple court orders, repeatedly lying to the court, and filing a complaint with a false allegation––justify the nationwide scope of the court’s sanctions. Moreover, Liebowitz’s pattern of misconduct before many judges of the Southern District of New York and across the country, described at length in the district court’s opinion, squarely defeats Appellants’ suggestions to the contrary. See, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (affirming “restrictions placed upon [attorney’s] bringing of new actions in all federal district courts” (emphasis added)). See generally Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661 (S.D.N.Y. June 26, 2020).

Finally, the district court did not abuse its discretion by ordering Liebowitz and his firm to include a copy of the deposit files with each copyright infringement complaint they file for a year. Requiring Appellants to include a copy of the deposit files does not impermissibly shift the burden of proof. Although the party challenging the validity of a copyright registration bears the burden of proof, that burden attaches only for presumptively valid copyrights; plaintiffs bear the burden of establishing that presumption. See Urbont v. Sony Music Ent., 831 F.3d 80, 88–89 (2d Cir. 2016); see also Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985). Courts cannot rely on the face of the complaint to establish this presumption in the cases Appellants bring, given that Liebowitz’s associate “admitted that it is the regular practice of [their firm] to file copyright infringement cases without verifying that the works in question are properly registered.” Special App. 19–20; see also Joint App. 483.

There's also a fun footnote dismissing one of Liebowitz's classically silly arguments:

Appellants’ argument that the sanction would impose a substantial burden because deposit files are expensive to obtain is unpersuasive. As the district court noted, Liebowitz often settles cases “‘in the low thousands or tens of thousands of dollars’ . . . a far cry from the $200 to $1,200 cost of obtaining a deposit copy.”

Liebowitz made some other arguments as well, but the Court notes: "We have considered Appellants’ remaining arguments and find them to be without merit." Nice try, Richard.

Filed Under: 2nd circuit, copyright, copyright troll, jesse furman, richard liebowitz, sanctions

Minneapolis Police Officer Derek Chauvin Sentenced To Twenty-Two Years For Killing George Floyd

from the beating-out-his-19-years-as-a-cop-by-a-narrow-margin dept

The police officer who set off months of anti-police violence protests has been sentenced to more than 22 years in prison. Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd by kneeling on his neck for nearly ten minutes… and for more than two minutes after another officer said he couldn't detect a pulse.

This murder was carried out in broad daylight in front of several witnesses. Perhaps the most important witness was the one who filmed the entire killing: 17-year-old Darnella Frazier. Largely because of this recording, Chauvin was unable to elude justice.

Two months after Chauvin's conviction on murder charges, Judge Peter Cahill has handed down a sentence nearly a decade longer than the 10-15 years recommended by state sentencing guidelines. This sentence is far more than Chauvin's lawyer felt was justified. His attorney asked for time served and probation. (Chauvin had been incarcerated for 199 days by the time he was sentenced.) But it's also less than what prosecutors had asked for: a 30-year sentence based on several aggravating factors.

Judge Cahill didn't just hand down a sentence. He also issued a written order [PDF] explaining his decision to depart upwards from the sentencing guidelines. The order is thorough. And the list of aggravating factors includes the public nature of this killing and a reference to the witness who filmed the incident, creating an undeniable version of the facts that made it impossible for Chauvin to walk away from this.

Here's the short version of the court's explanation for its sentencing variance:

[T]he Court found that the evidence at trial proved beyond a reasonable doubt the following four aggravated sentencing factors:

(i) That Mr. Chauvin abused a position of trust and authority;

(ii) That Mr. Chauvin treated George Floyd with particular cruelty;

(iii) That children were present during the commission of the offense;

(iv) That Mr. Chauvin committed the crime as a group with the active participation of three other individuals, former Minneapolis Police Officers Thou Thao, Thomas Lane, and J. Alexander Kueng, who all actively participated with Mr. Chauvin in the crime in various ways.

These are presented in more detail later on in the order.

Mr. Chauvin “abused his position of authority” by using unreasonable force to hold “a handcuffed George Floyd in a prone position on the street”—“a position that Defendant knew from his training and experience carried with it a danger of positional asphyxia”—for more than nine minutes and forty seconds, “an inordinate amount of time.”

“Defendant’s placement of his knee on the back of George Floyd’s neck was an egregious abuse of the authority to subdue and restrain because the prolonged use of this maneuver was employed after George Floyd had already been handcuffed and continued for more than four and a half minutes after Mr. Floyd had ceased talking and had become unresponsive.”

[...]

That “failure to render aid became particularly abusive after Mr. Floyd had passed out, and was still being restrained in the prone position, with Mr. Chauvin continuing to kneel on the back of Mr. Floyd’s neck with one knee and on his back with another knee, for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse.”

Also factoring into the upward variance is the fact that this was no ordinary killing. As the court points out, this was an protracted, painful experience that ended in death -- one that was far crueler than the acts normally associated with murders and assaults.

Mr. Chauvin’s prolonged restraint of Mr. Floyd was also much longer and more painful than the typical scenario in a second-degree or third-degree murder or second-degree manslaughter case. The “prolonged nature of the asphyxiation” makes this offense different in kind than, for example, a near-instantaneous death by gunshot, which is one typical scenario for this type of offense.

[...]

The conduct this Court has deemed particularly cruel also occurred over a longer period and was substantially more painful than a typical third-degree assault, the predicate felony offense for Mr. Chauvin’s second-degree murder conviction. [...] . Chauvin’s conduct went beyond just inflicting “substantial bodily harm.” It “kill[ed] George Floyd slowly”—over the course of almost ten minutes—by inhibiting “his ability to breathe when Mr. Floyd had already made it clear he was having trouble breathing.” Indeed, Mr. Chauvin’s continuation of the assault after Mr. Floyd was no longer conscious and no longer had a pulse—Mr. Chauvin “continu[ed] to kneel on the back of Mr. Floyd’s neck . . . for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse”—plainly sets Mr. Chauvin’s conduct apart from the typical case involving a felony assault that results in substantial bodily harm and death to the victim.

For that, the judge tacks on another ten years. Chauvin -- the second Minneapolis police officer to be convicted of murder in the last two years -- will spend most of the next 15 years in jail and another eight years under supervised release. Nothing done here will bring George Floyd back to life. But the court's willingness to depart upwards when sentencing a former cop should hopefully act as a deterrent towards future police violence.

Filed Under: derek chauvin, george floyd, police brutality, sentencing