Reason Shows How To Properly Respond To A Questionable Social Media Takedown: By Calling It Out

from the speak-up dept

Content moderation at scale is impossible to do well. I will keep repeating this point forever if I must. Now, I recognize that when you're on the receiving end of a content moderation decision that you disagree with, it's natural to feel (1) angry and (2) that it's a personal affront to you or a personal attack on your view of the world. This is a natural reaction. It's also almost certainly wrong. The trust and safety teams working on content moderation are not targeting you. They have policies they are trying to follow. And they need to make a lot of subjective calls. And sometime they're wrong. Or sometimes you just have a different view of what happened.

The publication Reason recently had a video pulled down from YouTube, and rather than freaking out and talking about how YouTube is "out to get" them, they instead wrote an article that clearly said that they support YouTube's right to make whatever content moderation decisions it wants, but also calmly explained why they think this decision was probably a mistake. As the article notes:

It remains essential to defend YouTube's right to make poorly reasoned and executed content moderation decisions; any government regulation of speech on social media is likely to backfire and hamper the free exchange of ideas. But it's also essential to recognize and critique censorious overreach if we want the market to respond to such errors. And a healthy market response is exactly what we need when the boundaries of acceptable discourse are being hemmed in by large companies susceptible to political pressure.

And, frankly, it's not that difficult to make some educated guesses on how the video ended up being moderated. It was a video from early in the pandemic about self-described DIY biohackers looking to see if they could create their own vaccines for COVID. Given what was known about COVID-19 at the time, and the speculative/experimental nature of DIY biohacking, some of the thoughts and ideas were probably a bit out there. The video described people who were trying to create their own "knockoff" versions of the mRNA vaccines (which have now proven to be massively successful), in part because of the (certainly at the time) reasonable belief that the FDA would be impossibly slow in approving such vaccines. In retrospect, that didn't really happen (though there are arguments about how the FDA could have moved even faster).

So, you can easily understand how a content moderation review of the content of such a video might flag it as potentially medical misinformation -- or even potentially dangerous. After all, it's talking about injecting a non-FDA approved "vaccine" (and one that, at the time, was highly experimental and hadn't gone through rigorous clinical trials). But, within the context (when it was done, what was being said, how it was framed), there's a strong argument that it should have been left up (and, indeed, has certain historical relevance to talk about the various approaches that people were considering early in the pandemic).

But, this is the very nature of content moderation and why we consider it so impossible to do well at scale. Context is always so important, and that can even include temporal context. Without thinking about the context when the video went up, it could appear to be more questionable a year and a half later. Or not. It's all pretty subjective.

But, Reason's response is the correct one. It's not blaming YouTube. It's not taking the decision personally, or acting like its viewpoints were systematically targeted. It recognizes that opinions may differ, that YouTube has every right to manage its platform how it wants, but also that Reason can use other means to push a response and counter-argument. If only others who felt similarly wronged were willing to do the same.

Filed Under: content moderation, more speech, section 230, takedowns
Companies: reason, youtube

Appeals Court Tosses Cop's Attempt To Hold Twitter Responsible For Him Being Shot By A Gunman

from the law-firms-must-be-hoping-for-a-first-round-draft-pick dept

The 1-800-LAW-FIRM/Excolo Law losing streak continues. The lawyers at those firms have been preying on the victims of terrorist attacks for a few years now, presumably promising them some form of justice that can only be obtained by filing futile, flawed, completely doomed lawsuits that attempt to hold social media companies directly responsible for the criminal acts of terrorists.

This lawsuit -- facing its second rejection in a row -- was one of the stupidest filed by these law firms. Jesus Retana, a Dallas police officer, was wounded during a mass shooting perpetrated by Micah Johnson. The lawsuit attempted to use the AITA (Anti-International Terrorism Act) to hold Twitter responsible for the alleged "radicalization" of Johnson by Hamas, an entity the US government has declared a terrorist organization.

The Fifth Circuit Appeals Court finds this attempt to tie Twitter to Micah Johnson and his shooting of Dallas police officers as legally unbelievable as the lower court did. There's no discussion of Section 230 immunity, which would shield Twitter from this litigation, because the rest of the allegations are so baseless there's no reason to bring it up. (h/t Eric Goldman)

The court says [PDF] not only is there no link between Hamas, Twitter, and Micah Johnson, there's also no link between Hamas and the shooting in Dallas. And there's certainly no international terrorism justifying the accusations of Twitter's supposed violation of international terrorism laws.

An act of international terrorism is one that “occur[s] primarily outside the territorial jurisdiction of the United States, or transcend[s] national boundaries.” We cannot conclude that the Dallas shooting transcended national boundaries. We sympathize with Plaintiffs, but this shooting was committed by a lone shooter entirely within the United States. He might have been radicalized in part by Hamas, but Hamas did not plan the shooting or even take credit for it.

There's also no connection between Johnson and Hamas in the 96 pages of the original lawsuit, nor in its current amended state. Linking Johnson to Hamas is crucial, especially if the plaintiffs want to claim Twitter helped Hamas radicalize the shooter. That link simply isn't there.

Johnson was a self-radicalized shooter who merely “liked” the Facebook pages of “black separatist hate groups” that had communicated with Hamas. And, while Johnson met with Ms. X and indicated that he sympathized with Hamas’s objectives, that occurred two years prior to the Dallas shooting.

It was a shooting perpetrated by a US citizen on US soil with no solid ties to any international terrorist group. No international terrorist group took credit for the attack. There was no international terrorism. The AITA claim fails. Again.

So does the allegation of secondary liability.

We also hold that Defendants did not “knowingly” and “substantial[ly]” assist Hamas in the Dallas shooting, again because the shooting was committed by Johnson alone and not by Hamas either alone or in conjunction with Johnson. The district court was correct in concluding that Defendants are not secondarily liable under the ATA.

This case was dismissed by the district court in December 2019. At that point, it was these law firms' TWELFTH straight loss in federal courts. That win-loss record hasn't improved since then. Unfortunately, these firms seem to have no problem finding new victims of terrorist acts to use as fodder for DOA lawsuits.

Filed Under: blame, intermediary liability, jesus retana, micha johnson, responsibility, terrorism
Companies: 1-800-lawfirm, excolo law, twitter

Spielberg's Production Company Inks Multi-Film Deal With Netflix, I Guess To Win A Bunch Of Emmys Instead Of Oscars

from the about-face dept

Way back in the ancient history of 2019, famed director Steven Spielberg became something of the front man for the aging Hollywood crowd that sees streaming services as somehow deficient when he announced plans to push the Academy to disallow Oscar nominations for films that appeared first on streaming services, arguing they should instead be considered for Emmys. Spielberg's plans were for naught, however, as the Academy refused to ban stream-first films from nominations. This led to Spielberg, directly and through mouthpieces, walking back his very clear intentions so as to pretend that he felt differently than was the reality. I'll stress again that all of this occurred all of two years ago.

Which is part of what makes it strange that Spielberg's production company, Amblin Partners, just inked a multi-film deal with Netflix.

In a press release on Netflix's website, the two companies announced that the partnership will result in "multiple new feature films per year." As is often the case, today's press release was accompanied by prewritten statements by various executives involved, including Spielberg himself. The quote attributed to him says:

At Amblin, storytelling will forever be at the center of everything we do, and from the minute [Ted Sarandos, Netflix co-CEO and chief content officer] and I started discussing a partnership, it was abundantly clear that we had an amazing opportunity to tell new stories together and reach audiences in new ways. This new avenue for our films, alongside the stories we continue to tell with our longtime family at Universal and our other partners, will be incredibly fulfilling for me personally since we get to embark on it together with Ted, and I can’t wait to get started with him, [Scott Stuber, Netflix head of Global Film], and the entire Netflix team.

The obvious immediate question that comes to mind is to wonder aloud just how many Emmys Spielberg thinks he can win under this partnership. Snark aside, it's worth noting that Amblin doesn't solely produce films by Spielberg and that the production company has already produced some streaming hits on Netflix, most notably The Trial of the Chicago 7, as noted in the ArsTechnica post.

Still, it's quite an about face for a world famous director, who, only 2 years ago, was plainly arguing that films that release on streaming services like Netflix are somehow a different animal than those that first enjoy a theatrical release. That whole argument was flawed for multiple reasons, including just how much movie content is now primarily enjoyed via streaming, coupled with the shoddy job theatres have done in actually fulfilling their value-add propositions, otherwise known as the only real reason why the public should want to go to the theatre instead of watching a film at home.

If Spielberg can be dragged into modernity, that's a good thing. But we shan't forget his previous statements, if for no other reason than they should probably serve as a warning to any other "get off my lawn" crowd members who want to pretend like culture doesn't change.

Filed Under: emmys, oscars, steven spielberg, streaming
Companies: amblin, netflix

Iowa's Top Court Says Cops Can't Search People's Garbage Without A Warrant

from the [starts-selling-COME-BACK-WITH-WARRANT-trash-bags] dept

Pretty much everywhere in the United States it's accepted that if the public has access, law enforcement has access. This is the legal theory behind things like automatic license plate readers (anyone can see a license plate), utility pole-mounted cameras (anyone can see someone's front yard), and (to our benefit) recordings of public officials (if they're performing their public duties).

This theory (along with the theory of abandonment) tends to govern people's trash. Once it is outside the house and made accessible to sanitation services, it can be accessed by anyone, including law enforcement officers. Sifting through trash that has been "abandoned" is one of several ways officers compile the probable cause for search warrants.

Trash can't tell you everything but it can give you some idea what's going on inside a house. Conclusions are drawn from what's been observed in trash cans and officers move in. Sometimes they're horribly, horribly wrong. Sometimes they draw the correct inferences and make a successful bust. In either case, warrantless access to people's trash has been considered lawful for years.

Until now.

The Iowa Supreme Court [PDF] says garbage being abandoned for pickup by sanitation workers still has an expectation of privacy. (via We Are Iowa)

The state's top court breaks away from years of accepted jurisprudence to extend constitutional protections to residents' trash. But only the state's Constitution. The Fourth Amendment still doesn't cover trash pulls.

In this case, officers performed a couple of warrantless trash pulls, finding evidence of alleged drug production or use (poppy seeds, empty poppy seed packets, fabric pieces that tested positive for morphine). Using this as a basis for a search warrant, officers searched the house and found something else.

The police executed the warrant at Wright’s residence on November 21. They discovered a baggie containing two grams of marijuana and several capsules of Vyvanse, a prescription drug for which Wright had no prescription.

So, not the drugs the officers thought they would find, but drugs nonetheless. Nicholas Wright challenged the warrantless search of his trash, claiming this violated his rights.

Wright made two arguments in support of his motion. First, he argued Heinz physically trespassed on his property. Second, he argued he had a reasonable expectation of privacy in the contents contained in his trash bags. Wright argued the search warrant ultimately issued was without probable cause if the evidence obtained from the warrantless seizures and searches of his trash bags were suppressed.

The district court disagreed with Wright's assertions. So did the state appeals court. The state's top court, however, sees things differently. It takes its time getting to the point, but does perform the invaluable service of running down both state and federal interpretations of the Fourth Amendment and the state's own Article I Section 8, its Fourth Amendment equivalent. The court reaches this conclusion:

Current Fourth Amendment jurisprudence is a mess.

Instead of saying things are too screwed up to weigh in on a case like this -- one already rejected by two other courts -- the Iowa Supreme Court decides to set some precedent. It says taking trash is both a search and a seizure under the state Constitution.

Heinz meaningfully interfered with and “seized” the garbage bags and papers and effects contained therein when he removed the garbage bags from Wright’s trash bins, took possession of them, and transported them to the police station for further inspection.

[...]

It is equally apparent Heinz engaged in a search when he opened the garbage bags and rummaged through them.

A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court's Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.

Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”

That what was searched was "only" trash doesn't matter. A search was performed without a warrant specifically to find evidence of criminal activity.

We have little trouble concluding the property at issue is protected within the meaning of article I, section 8. Opaque garbage bags are containers, and containers are an “effect” as originally understood. See United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982). The fact that the containers happen to be garbage bags rather than, say, expensive luggage, is not of constitutional consequence. There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.” . [...] In addition, Heinz opened the garbage bags and searched through the contents. The contents included other personal property, including two pieces of mail addressed to Wright. Letters are certainly papers. Further, “[l]etters . . . are in the general class of effects,” and “warrantless searches of such effects are presumptively unreasonable.” Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.

The court also says there was no "abandonment" of the trash, contrary to the state's arguments. State law says only licensed trash collectors can haul away trash. The leaving of trash outside the house is done with the assumption that only an "authorized collector" -- entities governed by their own set of state and city laws -- will move or otherwise access trash bags and their contents. Even when it's left outside to be collected, residents still maintain control of these possessions until an authorized collector takes possession. Cops aren't authorized collectors.

In moving his trash to the alley for collection, Wright agreed only to convey his property to a licensed collector. Wright would have the right to retrieve the property prior to collection and the right to exclude all others from rummaging through his garbage bins prior to collection.

The court also says there's a limited expectation of privacy in the contents of garbage bags. While this privacy evaporates once the bags are collected and processed by sanitation companies, it existed at the point the officer took the bags and searched the contents.

This is the precedent set in Iowa by this decision:

We hold Officer Heinz conducted an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution when he acted without a search warrant and removed opaque trash bags from waste bins set out for collection behind a residence, took possession of the trash bags, transported them to a different location, opened the bags, and searched through the contents.

The case goes back to the lower court. The evidence will be suppressed but Wright's conviction still stands for now. It will be up to the state to prove its case without the evidence found in the trash bags, which then formed the basis for the search that resulted in Wright's arrest. That's not going to be easy.

This essentially makes trash pulls illegal. At the very least, it forbids cops from opening bags to take a look at their contents. Residents using clear trash bags won't necessarily be covered by this decision, since anything observable by other citizens can also be seen by officers.

This may result in law enforcement working more closely with sanitation companies to find some way to mark garbage officers would like to search and create a chain of custody that allows this evidence to be used to obtain search warrants or present in court. Once the bag hits the dump or processing center, it's open season.

Filed Under: 4th amendment, garbage, iowa, search, warrant

Texas Consumers Lose Control Of Their Thermostats, Get Another Crash Course In Value Of Competent Regulators

from the you-don't-own-the-things-you-buy dept

When last we checked in with Texas utility customers, they were literally freezing to death thanks to repeated underinvestment in the state's utility grid. The Texas utility grid is a unique mish-mash of competitors on its own grid resulting from a massive deregulation effort that didn't really deliver what was promised. The convoluted mess is overseen by state regulators -- detached from federal authority -- which have spent a decade ignoring reports calling for a hardening of the grid in the face of climate catastrophe.

Texas consumers have continued to pay higher and higher prices for power. At the same time, state regulators have continued to prioritize the revenues of utility companies over the welfare of the public, and generally (with the occasional exceptions) refused to take the necessary hardening of utility grids in the face of climate change seriously. The results have been what everybody should have expected: an unreliable power grid in the face of both winter and summer extremes created by a destabilizing climate.

During the recent heat wave, some Texans were shocked to wake up to find that their local energy company had turned up their thermostats in the night to save energy. Houston locals weren't exactly thrilled to wake up sweating in the night to the sound of dehydrated, crying infants. Customers had apparently signed up for a "sweepstakes" where the fine print in a massive, overlong end user agreement gave control of their own AC thermostats over to the local utility:

"The family’s smart thermostat was installed a few years ago as part of a new home security package. Many smart thermostats can be enrolled in a program called "Smart Savers Texas." It's operated by a company called EnergyHub.

The agreement states that in exchange for an entry into sweepstakes, electric customers allow them to control their thermostats during periods of high energy demand. EnergyHub’s list of its clients include TXU Energy, CenterPoint and ERCOT.

Groups like the EFF had already raised some concerns about privacy and the loss of consumer control when it comes to the use of "smart meters" (another subject most regulators have been useless on). But that concern largely focused on how the data collected from such devices (which gives a pretty detailed readout of your daily behavior) was being monetized and sold or shared with law enforcement without consumers' explicit consent. Losing complete control of a device you own (your thermostat) adds an entirely new wrinkle to the battle of maintaining some level of control over the technology you buy.

Of course you wouldn't need to trick users into giving up control of their thermostats using sweepstakes and mouseprint if the grid was capable of handling fluctuations. And the grid would be able to handle fluctuations if Texas utility regulators hadn't spent the better part of the last decade fecklessly collapsing in the face of energy sector lobbying pressure time after time:

"Lawmakers and regulators, including the PUC and the industry-friendly Texas Railroad Commission, which regulates the oil and gas industry, have repeatedly ignored, dismissed or watered down efforts to address weaknesses in the state’s sprawling electric grid, which is isolated from the rest of the country."

It's all propped up by a bizarre mythology of rugged independence that's really just obfuscating quite boring and ordinary greed. What the body count has to look like before genuine regulatory reform is implemented or utilities start taking the threat seriously remains to be seen.

Filed Under: smart homes, smart thermostats, sweepstakes, texas, thermostats

As Everyone Rushes To Change Section 230, New GAO Report Points Out That FOSTA Hasn't Lived Up To Any Of Its Promises

from the garbage-in,-garbage-out dept

As you may have heard, tons of politicians are rushing to introduce new and different bills to undermine or repeal Section 230 of the Communications Decency Act -- a bill that is rightly credited for enabling a more open internet for freedom of speech. As you may recall, in early 2018 we had the first actual reform to Section 230 in decades -- FOSTA. It was signed into law on April 11th, with tons of politicians insisting it was critical to protecting people online. We had so many quotes from politicians (and a whole campaign from Hollywood stars like Amy Schumer) claiming (falsely) that without FOSTA, children could be "bought and sold" online.

One thing the bill did include (in Section 8) was a requirement that 3 years after the bill passed, the GAO should put out a report on how effective it has been. It's a few months late (the GAO does excellent work, but tends to be overworked and under-resourced) but on Monday the GAO finally released its study on the effectiveness of FOSTA. And... it basically says that all of the critics claims were exactly right.

Before FOSTA became law, co-author of Section 230, Senator Ron Wyden warned:

I fear that the legislation before the Senate will be another failure. I fear it will do more to take down ads than take down traffickers. I fear it will send the bad guys beyond the grasp of law enforcement to the shadowy corners of the dark web, where everyday search engines don’t go, but where criminals find safe haven for their monstrous acts....

[....]

In my view, the legislation before the Senate will prove to be ineffective, it will have harmful unintended consequences, and it could be ruled unconstitutional.

[....]

But the bill before us today will not stop sex trafficking. It will not prevent young people from becoming victims.....

So, now that we're three years in, what has the GAO found? That, just as predicted, the law was not at all necessary, and has barely been used, and the very, very few times it's been used in court, it's been ineffective:

Criminal restitution has not been sought and civil damages have not been awarded under section 3 of FOSTA. In June 2020, DOJ brought one case under the criminal provision established by section 3 of FOSTA for aggravated violations involving the promotion of prostitution of five or more people or acting in reckless disregard of sex trafficking. As of March 2021, restitution had not been sought or awarded. According to DOJ officials, prosecutors have not brought more cases with charges under section 3 of FOSTA because the law is relatively new and prosecutors have had success using other criminal statutes. Finally, in November 2020 one individual sought civil damages under a number of constitutional and statutory provisions, including section 3 of FOSTA. However, in March 2021, the court dismissed the case without awarding damages after it had granted defendants' motions to dismiss.

So... why did we need it again? Why was it so urgent? Why were Senators, Members of Congress, Hollywood stars, and others practically shoving each other aside to say that we needed this yesterday? And now, it's barely been used?

The report also shows -- again as many of us predicted -- that post FOSTA, law enforcement has had more difficulty tracking down those engaged in sex trafficking. Not because there is less trafficking, but because they're harder for law enforcement to find or access the details:

The current landscape of the online commercial sex market heightens already-existing challenges law enforcement face in gathering tips and evidence. Specifically, gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas; platforms’ use of complex payment systems; and the increased use of social media, dating, hookup, and messaging/communication platforms.

The relocation of platforms overseas makes it more difficult for law enforcement to gather tips and evidence. According to DOJ officials, successfully prosecuting those who control online platforms—whether their platforms are located domestically or abroad—requires gathering enough evidence to prove that they intended that their platforms be used to promote prostitution, and, in some cases, that they also acted in reckless disregard of the fact that their actions contributed to sex trafficking.

Of course, in the runup to passing FOSTA, everyone kept talking about Backpage -- that FOSTA was needed to takedown Backpage, the company that everyone insisted was terrible. Except... as everyone now knows, the DOJ took down Backpage without FOSTA. Perhaps, the real issue had nothing to do with the law itself, and plenty to do with the DOJ not doing much on this issue. Or, worse, the DOJ recognizing that maybe Backpage wasn't the evil bogeyman that politicians and the press were making it out to be.

After all, leaked government documents later showed that Backpage was actually working closely with law enforcement to track down traffickers. So, guess what the report has found now? Thanks to FOSTA and also to the takedown of Backpage, the FBI is now finding it really really difficult to actually track down traffickers:

According to a 2019 FBI document, the FBI’s ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com. According to FBI officials, this is largely because law enforcement was familiar with backpage.com, and backpage.com was generally responsive to legal requests for information. In contrast, officials said, law enforcement may be less familiar with platforms located overseas. Further, obtaining evidence from entities overseas may be more cumbersome and time-intensive, as those who control such platforms may not voluntarily respond to legal process, and mutual legal assistance requests may take months, if not years, according to DOJ officials.

So... end result: the government is barely using FOSTA and it's now significantly more difficult to find sex traffickers.

And, of course, the report doesn't even touch on the fact that things FOSTA did do to harm sex workers, putting them more at risk. It also doesn't talk about how lots of legitimate sites, such as dating sites and Tumblr, started aggressively blocking content that was likely perfectly legal, out of fear that FOSTA would open them up to criminal liability.

So, here's the big question: as a ton of politicians are pushing for big massive changes to Section 230, will they listen to us this time when we warn them about the possible consequences of such changes? Or will they dismiss us and insist that we're lying like they did last time? And who will go ask the politicians and Hollywood stars who swore that FOSTA was so absolutely necessary, how they respond to the fact that it didn't work, isn't being used, has made it more difficult to stop actual trafficking and has put actual lives in danger? Because all of that seems kind of important.

Filed Under: fosta, gao, intermediary liability, law enforcement, section 230, sex trafficking

Daily Deal: The Dynamic 2021 DevOps Training Bundle

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

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Filed Under: daily deal

Kansas Court Rejects Government's 'Reverse Warrant,' Sets Ground Rules For Future Requests

from the getting-some-of-that-crucial-bulwarking-done dept

We haven't seen a lot of legal challenges to so-called "reverse warrants." This is likely due to their relative novelty. It's probably also due to the fact that no one "targeted" by these warrants knows about them until well after an investigation has been closed.

Reverse warrants don't target people or places. They target (and I'm using that term loosely) areas roughly defined/confined by GPS coordinates. Everything inside the geofence is a target. Working backward from the data obtained from companies like Google, investigators try to determine which of these data points is their suspect.

For the time being, it's mostly up to the judges reading the warrant affidavits to raise challenges to the methods used or the broadness of request. And, so far, we've only seen one rejection of a reverse warrant, albeit one rejected twice by consecutive judges (a magistrate and a district court judge).

Now we have one more rejection to examine, coming to us via FourthAmendment.com. A magistrate judge in Kansas has rejected [PDF] the government's attempt to obtain location data from Google. The magistrate notes that judges all over the nation should expect to see more of these as time goes on and should be aware of the constitutional issues at play when the government works backwards from bulk data to identify a criminal suspect. Because this investigative technique is only expected to become more common, this judge has decided to set some ground rules for the government's future attempts to work its way backwards to probable cause.

The court issues this written order not only to address the subject application, but also to provide guidance for future search warrant applications involving geofence technology given the relatively sparse authority on this issue.

And the court is doing this because this warrant just doesn't cut it, constitutionally speaking.

Here, the application and accompanying affidavit are not sufficiently specific or narrowly tailored to establish probable cause or particularity. The court therefore denies the application without prejudice.

The order doesn't detail the federal crime suspected of being committed but does note it involves a heavily trafficked business. The government is seeking location data on every device in the area during a one-hour period. That isn't narrow enough for the court.

The application here establishes probable cause that a crime was committed at the subject business establishment during the relevant one-hour time period. However, it does not establish probable cause that evidence of the crime will be located at the place searched—that is, Google’s records showing the location data of cell phone users within the geofence boundaries.

The court notes it's obviously true that Google's data would show what devices were in the business during this time period, but goes on to point out the flaws in the warrant affidavit. The warrant request, as written, fails to provide a link between the data sought and the suspected criminals.

The court has considered the agent’s statements in the current application based on his training and experience, and finds that they are too vague and generic to establish a fair probability—or any probability—that the identity of the perpetrator or witnesses would be encompassed within the search. For beginners, the affidavit does not suggest that any relevant perpetrator or witness even had a smartphone. In Arson, the court relied on an affidavit that explained that that co-conspirators probably would have been coordinating their efforts by phone. Here, the affidavit contains no analogous explanation, whether based on the agent’s training and experience or based on the facts of the investigation. To the contrary, the affidavit suggests only that the culprit was a lone pedestrian in the early morning hours who was caught on surveillance footage. The affidavit conspicuously omits any suggestion that the surveillance footage shows that the individual had a cell phone.

Almost everyone carries a phone wherever they go. Almost. And there's no reason to believe the phone being gradually targeted here would be transmitting location data to Google. Android devices may make up 85% of the market, but that's not enough market share for the court to ignore the assumptions made by the agent seeking the warrant. iOS users don't always send location data to Google. Android users have the option to deny Google access to location data. The judge says there's too much unknown to allow this warrant to be granted without modification.

The judge also says the warrant makes a mockery of probable cause by allowing the government to treat every person in the area as a suspect until proven otherwise.

The application also does not address the anticipated number of individuals likely to be encompassed within the targeted Google location data. This also goes to the particularity requirement, which is intertwined with probable cause. If a geofence warrant is likely to return a large amount of data from individuals having nothing to do with the alleged criminal activity—as in Pharma I & II—the sheer amount of information lessens the likelihood that the data would reveal a criminal suspect’s identity, thereby weakening the showing of probable cause.

And that may result in a whole lot of incidental targeting that could negatively affect the rights and freedoms of people who had nothing to do with the alleged crime.

[T]he geofence boundary appears to potentially include the data for cell phone users having nothing to do with the alleged criminal activity. The boundary encompasses two public streets, so anyone driving their automobile by the target location during the relevant time period could be identified in the data. Google Maps also indicates that the subject building contains another business, which the application does not address. The government is also seeking data within the geofence’s “margin of error,” meaning that it seeks location-point data outside of the geofence but which could conceivably fall within the geofence if the margin of error would permit the device to be located within the parameters. See Pharma II, 481 F. Supp. 3d at 745 n.11 (describing the margin of error). As a result, the warrant may return data from users who are outside of the radius of the geofence. Id. Google Maps shows that the area just outside of the perimeter of the geofence includes residences and other businesses that could be implicated by the margin of error.

The government supplied no data or specifics on the expected margin of error nor did it explain what steps it would take to ensure it only gathered as much info as needed to identify its suspect.

The court also says the time period of the data sought is far too long and too disconnected from the criminal activity.

The application also does not adequately justify the time period requested. It seeks an hour of data, which is longer than what was at issue in either Pharma I & II or Arson. And the nexus between the alleged criminal activity and this one-hour duration is weak. According to the affidavit, video surveillance footage shows the suspect at three discrete times. The proposed geofence’s temporal scope ranges from just before the second sighting to approximately 10 minutes after the suspect fled the scene. The affidavit does not explain why the government does not seek data from the time period surrounding the first sighting, and it does not explain why the government seeks data for the entire period between the second and third sighting.

The government will be given another chance to request this data. But it will need to provide far more information and include far more limitations than it did with its first pass. This is now the minimum expectation for reverse warrants, at least in this court.

The court… issues this opinion to provide fair notice that geofence warrant applications must sufficiently address the breadth of the proposed geofence and how it relates to the investigation. It is not enough to submit an affidavit stating that probable cause exists for a geofence warrant because, given broad cell phone usage, it is likely the criminal suspect had a cell phone. If this were the standard, a geofence warrant could issue in almost any criminal investigation where a suspect is unidentified. The Fourth Amendment requires more, particularly where the warrant implicates the privacy interests of individuals who have nothing to do with the alleged criminal activity.

If the government wants to work its way backwards to a suspect, it needs more particularity and better probable cause to do so.

Filed Under: 4th amendment, kansas, reverse warrant
Companies: google

You Don't Own What You've Bought: Peloton Treadmill Edition

from the everything-costs-money dept

We've written so many stories about how you don't own what you've bought any more due to software controls, DRM, and ridiculous contracts, and it keeps getting worse. The latest such example involves Peloton, which is most known for its extremely expensive stationary bikes with video screens, so that you can take classes (usually on a monthly subscription). I will admit that I don't quite understand the attraction to them, but so many people swear by them. The company also has branched out into extremely expensive treadmills with the same basic concept, but that product has been in the news for all the wrong reasons lately, after a six year old child died in an accident with the device (for what it's worth, that article links to a page on the Peloton site where the article says Peloton posted an open letter to its customers about the accident, but the letter is no longer at that link).

The death kicked off an investigation by the US Consumer Product Safety Commission, which then told Peloton it should recall the treadmills and that people should not use them if there are children or pets nearby and apparently you should lock yourself in a room with them:

If people want to keep using the Tread+, they should only do so in a locked room and they should keep other objects away, the agency said. It advised people to unplug the treadmill while not using it and to keep the key to turn it on elsewhere and away from the reach of kids.

In a move that seemed guaranteed to generate bad PR, Peloton fought back against the recommendation calling it "inaccurate and misleading." It wasn't a very good look, and a few weeks later the company did, in fact, issue a recall -- though reports note that very few people will take the company up on the recall.

Not surprisingly, the company is also now facing some class action lawsuits. In that article, it notes that even for people who do not return their recalled Peloton treadmills, the company will issue a software update to try to maintain better safety and avoid children (and pets) from trying to use the device:

Peloton announced that they will refund the machine, which costs $4,295, and are working on a mandatory software update that will automatically lock the Tread+ after each use and require a unique password to be used to unlock the machine.

That automatic lock and password idea sounds sensible enough, given the situation, but in order to get it to work, but apparently Peloton hasn't figured out how to make that work for customers who bought the treadmill and aren't using its subscription service for classes. The Tread+ does have a "Just Run" mode, in which it acts like a regular treadmill (with the video screen off). But, as Brianna Wu discovered, the company is now saying that the "Just Run" mode now requires a subscription to work with the lock. The company is waiving the cost of such a subscription for three months, and it's unclear from the email if that means that after the three months they're hoping to have the "Tread Lock" working even for non-subscription users:

If you can't see it, the image is an email from Peloton customer support saying:

We care deeply about the safety and well-being of our Members and we created Tread Lock to secure your Tread+ against unauthorized access.

Unfortunately at this time, 'Just Run' is no longer accessible without a Peloton Membership.

For this inconvenience, we have waived three months of All-Access Membership for all Tread+ owners. If you don't see the waivers on your subscription or if you need help reactivating your subscription, please contact our Support team....

Now, it's possible that the subscription part is necessary to update the software to enable the lock mode, but that seems... weird. After all, there must have been some sort of software upgrade that locked out the "Just Run" mode in the first place.

And, obviously, you can understand why (given what happened), Peloton wants to make sure that everyone has upgraded with these new safety features. But the email is woefully unclear on whether or not after the three months of free membership, you'll have to start paying the $40/month to keep using the treadmill, or if it just becomes a quite expensive piece of weird furniture.

I get the need to deal with the risk of harm... but you'd think that the company would have done a better job of making sure it did so in a manner that didn't mean forcing people into a subscription they might not want. Indeed, as basically anyone could have predicted, once this started getting attention, Peloton promised that it was working hard to figure out a way to re-enable "Just Run" without a subscription. Of course, if that was always the plan, you'd think that the email would have said something, because otherwise, this concern was wholly predictable.

Either way, it's yet another reminder of how we don't truly own what we've bought any more thanks to such software locks and the ability to update things after they've been purchased, including taking away features. And that should concern everyone.

Filed Under: drm, just run, ownership, recall, safety, treadmill
Companies: peloton