Daily Deal: Trio 3-in-1 Aluminum Desktop Charging Stand

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

Who wants to work on a messy desk? Focus on your productivity and not on tangled wires with this Trio 3-in-1 Aluminum Desktop Charging Stand. This stand holds your phone vertically or horizontally for the perfect angle to read messages, watch videos, listen to music and play games. It also has two other slots for your smartwatch and wireless earphones. With built-in cable management, this stand helps organize your cables to avoid knotting. Each slot has enlarged anti-scratch rubber cushions to prevent your devices from slipping and scratching. It comes in 4 different colors and is on sale for $20.

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

Congressional Committee Calls On GAO To Investigate Whether Patent Office Director Is Putting Thumb On The Scale Of Patent Reviews

from the very,-very-interesting dept

The chair and ranking member of the House IP subcommittee that covers intellectual property is now asking the Government Accountability Office (GAO) to investigate whether or not the Director of the Patent Office is pressuring the important Patent Trial and Appeal Board (PTAB) to make certain decisions on the validity of patents. There's a lot of important background here, but it's all kind of fascinating how two big legal issues are coalescing in this result, in which the USPTO's own legal arguments may reveal how the Director has been unfairly influencing decisions. The two key points to understand are (1) the Inter Partes Review (IPR) process, and (2) questions about the constitutionality of certain appointments -- both of which are issues that we've covered for years, that seem deep in the weeds, but turn out to be quite important.

First, we've got the IPR process. This was an effort that was put in place with the America Invents Act (AIA) back in 2012. It was a recognition (FINALLY) that the Patent Office was approving way too many bad and overly broad patents, that were then being abused to shake down companies. The fact that the USPTO was approving so many awful patents was a built in bug (or feature?) of the way the patent system works.

The process for getting a patent is not truly adversarial. You have the party seeking the patent, and the examiner. Yet examiners were often judged on how many applications they dealt with, rather than the quality of the patents they approved. So there's no party arguing for why something does not deserve a patent. In theory, the examiner might do that, but the incentive structure there is broken as well. There is something called a "final" rejection from a patent examiner, but it's not actually final, since the party seeking the patent can continue to file renewed requests/appeals forever. And with the Patent Office getting heat for having too long a backlog, sooner or later, there are strong incentives for the examiner to just approve a patent to get it off his or her docket.

Rather than fix the many inherent problems in this setup, the AIA introduced a compromise that was better than nothing. It would create this special PTAB, which anyone could use to challenge a previously granted patent. At that point (usually once someone started threatening or suing over a patent) then finally, there would be a more careful review, with an adversarial process, to examine whether or not the patent should have been granted in the first place. Patent trolls and their friends have hated the whole IPR process since it began and have tried a variety of ways to challenge it. In 2018, the biggest legal challenge to the whole IPR process was rejected by the Supreme Court, who said that of course the PTO can invalidate the patents it never should have granted.

But that hasn't stopped the efforts by trolls and friends to invalidate the IPR process. The latest attempt is in the US v. Arthrex case, in which it is argued that the "judges" on the PTAB are unconstitutional for violating the Constitution's appointments clause. That case was heard by the Supreme Court a few months ago and a ruling should be coming soon.

And that takes us to the other deep in the weeds issue we've talked about for over a decade: whether or not appointments to various quasi-legal tribunals within the executive branch violate the Constitution's appointments clause. The Appointments Clause says certain "principle officers" of the government, including judges, need to be nominated by the President and approved by the Senate. There have been questions for years about whether or not certain roles that were appointed by various department heads violated this clause. Back in 2012, for example, a court said that the Copyright Royalty Board nominations were unconstitutional (though the court then immediately worked around that issue with a sort of wink and a nudge).

So, now the question at the heart of Arthrex is whether or not the PTAB judges are constitutionally appointed, since they're appointed not by the President with the consent of the Senate, but directly by the director of the Patent Office. And, in that case, the US government (defending the constitutionality of the PTAB judges) claimed that they were not principal judges, but rather "inferior officers" who could be appointed by the PTO director. That's all very interesting, but a key argument made by the government in defending that was that the PTO Director controls the PTAB judges, including how they decide cases.

And while that may be necessary to prove that their appointments were constitutional under the Appointments clause, it rang some alarm bells because it sure as hell suggested that the PTAB might be deciding whether or not patents are valid not based on the evidence before it but based on what the PTO director wanted. And that would be a big problem.

And, so that finally gets us to the latest bit of news, in which Reps. Hank Johnson and Darrell Issa, a bipartisan sort of odd-couple who head up the IP subcommittee are asking the GAO to look into whether or not the USPTO director is actually pressuring the PTAB judges into deciding the validity of patents one way or the other:

Recently, the Supreme Court granted certiorari in United States v. Arthrex, Inc., an appeal from a Federal Circuit decision that determined that APJs were “primary officers of the United States” and, thus, unconstitutionally appointed without Senate confirmation. In that appeal, the government’s position is that APJs are instead “inferior officers” who do not require Senate confirmation because they are subject to significant oversight and control by the Director of the USPTO, who is a Senate-confirmed political appointee. The government argues that this control includes, for example, the ability of the Director to dictate the outcome of PTAB cases by controlling which APJs decide which cases (i.e., APJs who will decide each case as the Director wishes) and by providing policy directives that APJs are obligated to follow.

If the government’s arguments are accurate, PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority (e.g., statutes, regulations, court precedents) available to the parties. This possibility raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.

There is then a long list of fairly specific requests for the GAO to investigate that could raise some eyebrows. Here are just a few:

The policies, written or unwritten, that exist at the USPTO to effectuate each of the above mechanisms, as well as the statutory or other legal authority that forms the basis for each of the above mechanisms.

How APJs understand the role of the Director in the decisions they reach in AIA cases, including APJs’ awareness of the above mechanisms and associated policies and the number of APJs who have been subject to one or more of them. Also, the impact that the exercise of these mechanisms and policies have had on the decision-making of APJs in AIA cases.

Whether any APJs have objected or dissented, or attempted to object or dissent, to the above mechanisms and policies, or the exercise of those mechanisms and policies in specific AIA cases. If so, the results of those objections and the processes that were made available to APJs to object or dissent. Also, how APJs understand the extent to which they may object or dissent.

How often the Director, or a designate thereof, has directly influenced or changed a decision in a specific AIA case (i.e., inter partes review, post-grant review, or covered business method review). Also, the way those decisions were influenced or changed by the Director, and the mechanisms that were used to influence or change those decisions.

Whether specific notice was provided to the parties in those cases indicating that the Director, or designate thereof, was influencing or changing a decision in the case, and the information included in any such notice. Also, whether the decisions themselves document that influence or change, and explain the reasoning or justification for it.

In other words... either the Patent Office director is unfairly controlling or strongly influencing PTAB IPR decisions or the Patent Office lied to the Supreme Court. The most charitable explanation, of course, is that the PTO director could step in and order certain decisions, but has chosen not to. But even that would be worrisome and problematic. None of this looks particularly good for the PTO.

Filed Under: appointments, darrell issa, gao, hank johnson, inter partes review, ipr, patents, ptab, uspto

Limited Competition Means US Broadband Prices Can Vary Drastically On The Same Block

from the do-not-pass-go,-do-not-collect-$200 dept

For years we've noted how a lack of competition means consumers across the country pay dramatically different prices for the same or worse service. For example a customer in Chattanooga, Tennessee can pay $70 or less for gigabit service, thanks to competition between Comcast and the regionally owned community broadband network.

But live in any of the countless US markets that major broadband providers have neglected (despite decades of major subsidies, tax breaks, and the near-mystical promises surrounding mindless deregulation), and you're often facing the choice of either an apathetic telco with sluggish, neglected DSL, or, more likely, a regional cable monopoly (Charter or Comcast) that charges significantly more money thanks to regional monopolization.

Over at Stop the Cap!, Phil Dampier recently showcased how the presence or absence of competition can even result in customers having to pay up to $40 more per month for the same or sometimes slower service. Not only that, users in more competitive markets enjoy longer promotion rates (often two years rather than just one). Even the fees charged by the regional monopoly (one major way they hit consumers with dramatically higher prices than advertised) are significantly higher at homes that lack any real competition:

"Spectrum charges a hefty $199.99 compulsory installation fee for gigabit service in non-competitive neighborhoods. Where fiber competition exists, sometimes just a street away, that installation fee plummets to just $49.99."

When asked to explain itself, Charter engaged in some tap dancing:

When contacted by Ars, Charter said that "Spectrum Internet retail prices, speeds, and features are consistent in each market—regardless of the competitive environment." But "retail prices" are the standard rates customers pay after promotional rates expire. Stop the Cap showed that Charter's promotional rates vary between competitive and noncompetitive areas.

Charter told Ars that its promotional offers are affected by several factors, including "location."

So while retail (post promotion) rates might be similar from block to block (which often isn't the case regardless of what Charter states), the local cable monopoly uses contract length, promotional rates, and fees to charge significantly different rates. That makes it more difficult for policymakers, consumers, and the press to analyze pricing is quite by design. And it's a major reason why the cable lobby, for years, has fought against the FCC sharing consumer pricing data, knowing full well that once you clearly illustrate the impact of regional monopolization and limited competition, somebody might get the crazy idea to try and actually fix it.

Filed Under: broadband, competition, fcc, prices

Funniest/Most Insightful Comments Of The Week At Techdirt

from the you-said-it dept

This week, our first place winner on the insightful side is PaulT on our post about a bizarre Washington Post opinion piece defending Florida's content moderation law, responding to parts of the op-ed and parts of our post:

"the removal of Project Veritas’s James O’Keefe from Twitter provide more than enough proof to justify the reaction."

A guy famous for lying in order to dishonestly manipulate political races is proof of a reaction? OK, but I'm not sure the thing you meant to prove is the thing you proved..

"O'Keefe was banned because Twitter claimed he was artifically amplifying his tweets"

Oh, and he was banned for attacking the platform hosting him and not for the other content of his posts? OK...

"You can't just say -- as Olsen does -- that because there are regulations on broadcast TV and radio, that there's no problem with applying similar rules to totally private systems that don't rely on public spectrum."

Well, you can say that, but it would be hoped that more people understand the completely stupid idea of doing so.

In second place, it's Stephen T. Stone with a comment on our post about Iowa prosecutors attempting to jail an activist for sharing documents with journalists:

To everyone who thinks moderation is censorship:

No, this situation is attempted censorship. Hell, it might even be a successful attempt — after all, if Viet Tran knows he has police and prosecutors watching him closely after his humiliating-to-the-state victory in court, he might think twice before sharing any documents in the future if he has the absolute legal right to share those documents.

Y’all want to talk about censorship? Here’s your opportunity. But know that you won’t be taken even the least bit seriously if you conflate this situation — this attempt at using governmental power as a way to shut someone up — with Twitter banning someone for posting, say, anti-queer slurs.

For editor's choice on the insightful side, we start out with another comment from PaulT, this time in response to someone seeking "an honest argument against Section 230":

We can only hope that day will come. I, for one, can't wait for the day where I have a reasonable argument to get my teeth into as to why innocent bystanders should be held accountable for things that happened on their property without their prior knowledge, rather than the endless whining of losers who refuse to take responsibility for the consequences of their actions...

Next, it's dan8mx responding to the claim that calling it "compelled speech" when social media companies are forced to host content is "unconvincing":

Social media companies don't want to host this stuff, but the government is telling them they have to.

I guess the "question" is: how is that not compelled speech?

Over on the funny side, our first place winner is Bobvious with a comment about Trump's many bankruptcies:

And you can read all about them in Chapter 11 of his upcoming autobiography.

In second place, it's radix with a comment about Trump shutting down his blog:

This one only lost money for one month! Great success! One of the best Trump ventures of all time!

For editor's choice on the funny side, we start out with smbryant and a comment about repair monopolies turning farmers into activists — though it was actually two comments that are here compressed into one:

You'd think they'd be a little more careful...

...before they pissed off a bunch of people who already have pitchforks close to hand

Finally, it's an anonymous comment about the Trump blog shutdown:

Trump should sue himself for anti-Trump bias.

That's all for this week, folks!

This Week In Techdirt History: May 30th - June 5th

from the collected-recollections dept

Five Years Ago

This week in 2016, we were pleased to see a dearth of support for the Burr-Feinstein anti-encryption bill, but not so happy about the 4th circuit rolling back its warrant requirement for cell site location info. We were also watching the fallout from the second ruling in the Oracle/Google trial and digging into just what happened in an episode of our podcast. Meanwhile, an independent musician was suing Justin Bieber and Skrillex over a sample they didn't use, just as two recent rulings from around the world looked like they might clear the copyright barriers to sampling. And one court gave a very bad copyright ruling, saying that remastered old songs can get a brand new copyright.

Ten Years Ago

This week in 2011, the copyright nonsense was widespread, with an EMI executive saying people should pay again to stream their own music, and both an industry lawyer and the RIAA talking about the supposed evils of the public domain. The push was on to criminalize more infringement too, with some senators seeking to make embedding videos a felony and the RIAA wanting to do the same for music subscription service password sharing. Amidst all this, we took a deep dive into why the PROTECT IP Act would break the internet.

Fifteen Years Ago

This week in 2006, Canada was doling out entertainment industry propaganda to kids in the form of an embarrassing new character called Captian Copyright (who might have himself been engaging in infringement), while the industry was hard at work on the next generation of terrible DVD copy protection. We took a closer look at some easily-misinterpreted statements about net neutrality from the creator of BitTorrent, and at an early example of a still-ongoing tradition: fake public comments about net neutrality. But there was no need to worry about a lack of regulation, because AT&T's chairman promised they would absolutely definitely not violate net neutrality principles.

Filed Under: history, look back

Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

from the stay-tuned dept

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.

The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).

This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).

It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.

That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch’s counterarguments have merit. That its lawsuit seeks “only the disclosure of public records,” rather than to establish criminal or civil liability, does not render the Speech or Debate Clause inapplicable. Appellant Br. 10. To the contrary, Judicial Watch “is no more entitled to compel . . . production of documents . . . than it is to sue congressmen.” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). To the extent Judicial Watch maintains that “legislative independence is not at issue in this case” because it seeks “public records that are not confidential in nature,” it misunderstands the immunity afforded by the Speech or Debate Clause. Appellant Br. 10–11. Notwithstanding the records’ confidentiality, “legislative independence is imperiled” when a “civil action . . . creates a distraction and forces [congressmen] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503; see Brown & Williamson Tobacco Corp., 62 F.3d at 415.

The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.

Today, the court has no occasion to decide whether the Speech or Debate Clause bars disclosure of public records subject to the common-law right of access in all circumstances. Nor need it consider whether and how the application of the Clause relates to the two-step inquiry to determine whether the common-law right of access applies. See Washington Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir. 1994). The parties did not raise, and our precedent does not address those issues.

However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:

I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing....

She then more or less begs for a test case on this question:

We have never considered the Speech or Debate Clause’s application to a common law right of access claim and the parties simply cite a single district court case where the two doctrines were raised, Pentagen Technologies International v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In Pentagen Technologies, the plaintiffs brought a common law right of access claim against the Committee on Appropriations of the United States House of Representatives, seeking “to review and copy a series of investigative reports” that were not released to the public. 20 F. Supp. 2d at 42. The Committee on Appropriations asserted the reports were protected from disclosure by the Speech or Debate Clause. Id. at 43. Although the district court “conclude[d] that investigative reports [were] protected from compulsory disclosure by the Speech or Debate Clause,” it reached that conclusion only after determining that the investigative reports were “not ‘public records’ as defined by WLF II” and that “[t]here thus exist[ed] no common law right of access to the reports.” Id. at 45. If the Speech or Debate Clause in fact provided absolute protection from disclosure— including protection from a common law right of access claim—the district court’s “public records” analysis would have been unnecessary.

And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.

So... that's interesting.

As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.

That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.

Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:

Judge Henderson explained that if a sought document is a “public record,” the government’s interest in keeping the document secret should be balanced against the public’s interest in disclosure. Judicial Watch at *11. A “public record,” she notes, is “a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id., quoting WLF-II, 89 F.3d at 905.

The Torture Report is a public record under this longstanding framework and today’s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.

This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.

This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.

When asked about this new public access request, McClanahan told me:

Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.

I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report

Newly-Released Body Cam Footage Shows Louisiana State Troopers Beating A Man To Death

from the followed-by-months-of-lies-and-obfuscation dept

Two years after cops killed Ronald Greene following a car chase, the Louisiana State Police have finally released the recordings. Greene led officers on a high-speed chase before being stopped, subdued, and ultimately killed. Here's how the State Police described it two years ago when it still had control of the narrative.

Greene allegedly sped away, and a chase continued for over 20 miles until Green wrecked near the intersection of Louisiana 2 and Highway 143 in Union Parish.

After the wreck, troopers allegedly attempted to take Greene into custody. An altercation with troopers allegedly followed until Greene was handcuffed.

According to LSP, Greene became unresponsive after emergency responders arrived on the scene and died on the way to the hospital.

Lots of really passive writing here, with an altercation "allegedly following" and Greene magically "becoming unresponsive" but not until after emergency responders arrived.

But the LSP said something completely different to Greene's family.

Greene’s family has said that police initially told them he died on impact when his car crashed on May 10, 2019, after a police pursuit.

And the officers told the coroner's office roughly the same thing:

An initial crash report from state police did not mention there was a struggle between Greene and the officers.

The final report from the coroner's office noted the injuries were inconsistent with those sustained from a car crash. It noted Greene had a fractured sternum and multiple contusions. It also noted the LSP seemed uninterested in helping the office perform an accurate autopsy.

The autopsy, prepared by the Union Parish Coroner's Office, states in its opinion section that lacerations of Greene's head were "inconsistent with motor vehicle collision injury and most consistent with multiple impacts from a blunt object."

The report notes that "no written incident report was provided despite requests," and that "no detailed information regarding the motor vehicle collision ... was provided. It also notes that "no emergency services medical records were provided" to the coroner's office.

The fix was already in. The coroner's office ultimately decided there was no one to blame for the death other than the injuries and the substances in Greene's system, ultimately chalking it up to cardiac arrest. But now that the recordings have been released, it's pretty clear Greene might have survived the encounter with LSP officers if they hadn't been so enthusiastic about beating him.

Louisiana state troopers were captured on body camera video stunning, punching and dragging a Black man as he apologized for leading them on a high-speed chase -- footage of the man’s last moments alive that The Associated Press obtained after authorities refused to release it for two years.

“I’m your brother! I’m scared! I’m scared!” Ronald Greene can be heard telling the white troopers as the unarmed man is jolted repeatedly with a stun gun before he even gets out of his car along a dark, rural road.

That was just the beginning. The entire ordeal lasted almost 45 minutes. For much of the recording, Greene and the officers can't be seen. When they do reappear, Greene is covered in blood and already pretty much unresponsive. And he's surrounded by people who have no interest in keeping him from dying.

The 46-minute clip shows one trooper wrestling Greene to the ground, putting him in a chokehold and punching him in the face while another can be heard calling him a “stupid motherf---—.”

Greene wails “I’m sorry!” as another trooper delivers another stun gun shock to his backside and warns, “Look, you’re going to get it again if you don’t put your f---—- hands behind your back!” Another trooper can be seen briefly dragging the man facedown after his legs had been shackled and his hands cuffed behind him.

Instead of rendering aid, the troopers leave the heavyset man unattended, facedown and moaning for more than nine minutes, as they use sanitizer wipes to wash blood off their hands and faces.

“I hope this guy ain’t got f------ AIDS,” one of the troopers can be heard saying.

The fine public servants of the Louisiana State Police, wondering whether the beating they've just inflicted might possibly injure them. And there's more. One trooper, Chris Hollingsworth, can be heard in a separate recording telling other troopers at the station that he "beat the everliving fuck" out of Greene.

There should be more recordings. But of course there aren't. Another trooper, Kory York, was suspended without pay for failing to activate his body cam. Six troopers responded to the scene but only one appears to have activated his camera. At one point during the sole recording, the microphone is deactivated, leading to even less information being captured.

The LSP may claim no coverup took place but that's hard to square with the initial reports handed to Greene's family and the coroner's office -- both of which suggested a car accident was to blame for Greene's injuries and death. And it took the LSP 474 days to even bother opening up an investigation into the incident, suggesting LSP officials either didn't want to know what they'd find or, more likely, didn't want to give the public any way of discovering what had actually happened that night.

If you want the public to trust you, you can't lie to them for months and let a questionable incident go uninvestigated for a year-and-a-half. The Louisiana State Police has proven itself unworthy of trust -- both in its inaction and its officers' actions, which needlessly ended a man's life and went mostly undocumented because the troopers knew better than to record their own excessive force and rights violations. It shouldn't take two years for the truth to come out.

Filed Under: body cam, louisiana, louisiana state police, ronald greene, transparency

Supreme Court Finally Limits Widely Abused Computer Hacking Law... But Just A Bit

from the it's-a-start dept

For many years we've written about the problems with the CFAA. That's the supposedly "anti-hacking" law, with both civil and criminal components, that makes it a violation to use a computer in a manner that "exceeds authorized access." Law enforcement and the courts in the past often (though not always) took an extremely broad read of "unauthorized access" in a such a manner that basically all sorts of cases that involved a computer included CFAA claims. And even if all the other claims fell away, the CFAA claims often lasted, which is why it has been dubbed "the law that sticks." Part of the underlying issue is that law enforcement and some courts wanted to read "unauthorized access" to include using a computer system you had legitimate access to, but for unauthorized purposes.

Famously, this has included cases around not abiding by terms of service that were never read, seemingly benign password sharing, scraping your own data off a web page, and perhaps most troubling of all, downloading too many files.

This week, the Supreme Court finally ruled on the CFAA and its limits in the Van Buren case, which we've covered before, including why the Supreme Court needed to push back on some courts' broad interpretation of the law.

The case involved Nathan Van Buren, a former police sergeant who abused his access to law enforcement databases to run a search that he had no legitimate law enforcement reason for. Now, there are all sorts of reasons people should condemn Van Buren for abusing his power. But the key question in the case was whether or not doing so violated the CFAA and was a form of hacking because the access was unauthorized.

Thankfully, the Supreme Court correctly rules that this particular use did not violate the CFAA. While it may have violated the police department's policies, that does not make it "exceed authorized access."

Beyond that, though, the 6 to 3 decision is... well... a bit of a mess. It could have clearly stated that merely violating a policy while having full practical access to a computer system means there's no CFAA violation. And at times, it seems to suggest that's what it's saying. But it doesn't say that entirely clearly... and, in fact, there's a weird footnote (footnote 8) that seems to undermine that premise.

For present purposes, we need not address whether this inquiry turns only on technological (or “code-based”) limitations on access, or instead also looks to limits contained in contracts or policies.

This has raised some eyebrows among many commentators, though it's all too common with the Roberts Supreme Court these days, in which the court declines to make a clear bright line rule on things it easily could, instead trying to narrowly limit the decisions. Of course, sometimes that's good, but unfortunately it often muddles things as may be the case here.

The actual reasoning behind the decision is interesting in its own way, and includes a detailed discussion on the meaning of the word "so." Specifically, what does "so" mean here:

“to access a computer with authorization and to use such access to obtain . . . information in the computer that the accesser is not entitled so to obtain.”

And thus, you get a debate over what exactly that "so" is doing in there (regulation drafters beware!):

The parties agree that Van Buren “access[ed] a computer with authorization” when he used his patrol-car computer and valid credentials to log into the law enforcement database. They also agree that Van Buren “obtain[ed] . . . information in the computer” when he acquired the license-plate record for Albo. The dispute is whether Van Buren was “entitled so to obtain” the record.

“Entitle” means “to give . . . a title, right, or claim to something.” Random House Dictionary of the English Language 649 (2d ed. 1987). See also Black’s Law Dictionary 477 (5th ed. 1979) (“to give a right or legal title to”). The parties agree that Van Buren had been given the right to acquire license-plate information—that is, he was “entitled to obtain” it—from the law enforcement computer database. But was Van Buren “entitled so to obtain” the license-plate information, as the statute requires?

Van Buren says yes. He notes that “so,” as used in this statute, serves as a term of reference that recalls “the same manner as has been stated” or “the way or manner described.” Black’s Law Dictionary, at 1246; 15 Oxford English Dictionary 887 (2d ed. 1989). The disputed phrase “entitled so to obtain” thus asks whether one has the right, in “the same manner as has been stated,” to obtain the relevant information. And the only manner of obtaining information already stated in the definitional provision is “via a computer [one] is otherwise authorized to access.” Reply Brief 3. Putting that together, Van Buren contends that the disputed phrase—“is not entitled so to obtain”—plainly refers to information one is not allowed to obtain by using a computer that he is authorized to access. On this reading, if a person has access to information stored in a computer— e.g., in “Folder Y,” from which the person could permissibly pull information—then he does not violate the CFAA by obtaining such information, regardless of whether he pulled the information for a prohibited purpose. But if the information is instead located in prohibited “Folder X,” to which the person lacks access, he violates the CFAA by obtaining such information.

The Government agrees that the statute uses “so” in the word’s term-of-reference sense, but it argues that “so” sweeps more broadly. It reads the phrase “is not entitled so to obtain” to refer to information one was not allowed to obtain in the particular manner or circumstances in which he obtained it. The manner or circumstances in which one has a right to obtain information, the Government says, are defined by any “specifically and explicitly” communicated limits on one’s right to access information. Brief for United States 19. As the Government sees it, an employee might lawfully pull information from Folder Y in the morning for a permissible purpose—say, to prepare for a business meeting—but unlawfully pull the same information from Folder Y in the afternoon for a prohibited purpose—say, to help draft a resume to submit to a competitor employer.

The Government’s interpretation has surface appeal but proves to be a sleight of hand. While highlighting that “so” refers to a “manner or circumstance,” the Government simultaneously ignores the definition’s further instruction that such manner or circumstance already will “‘ha[ve] been stated,’” “‘asserted,’” or “‘described.’” Id., at 18 (quoting Black’s Law Dictionary, at 1246; 15 Oxford English Dictionary, at 887). Under the Government’s approach, the relevant circumstance—the one rendering a person’s conduct illegal—is not identified earlier in the statute. Instead, “so” captures any circumstance-based limit appearing anywhere—in the United States Code, a state statute, a private agreement, or anywhere else. And while the Government tries to cabin its interpretation by suggesting that any such limit must be “specifically and explicitly” stated, “express,” and “inherent in the authorization itself,” the Government does not identify any textual basis for these guardrails. Brief for United States 19; Tr. of Oral Arg. 41.

Van Buren’s account of “so”—namely, that “so” references the previously stated “manner or circumstance” in the text of §1030(e)(6) itself—is more plausible than the Government’s. “So” is not a free-floating term that provides a hook for any limitation stated anywhere. It refers to a stated, identifiable proposition from the “preceding” text; indeed, “so” typically “[r]epresent[s]” a “word or phrase already employed,” thereby avoiding the need for repetition. 15 Oxford English Dictionary, at 887; see Webster’s Third New International Dictionary 2160 (1986) (so “often used as a substitute . . . to express the idea of a preceding phrase”). Myriad federal statutes illustrate this ordinary usage. We agree with Van Buren: The phrase “is not entitled so to obtain” is best read to refer to information that a person is not entitled to obtain by using a computer that he is authorized to access.

The Government’s primary counterargument is that Van Buren’s reading renders the word “so” superfluous. Recall the definition: “to access a computer with authorization and to use such access to obtain . . . information in the computer that the accesser is not entitled so to obtain.” §1030(e)(6) (emphasis added). According to the Government, “so” adds nothing to the sentence if it refers solely to the earlier stated manner of obtaining the information through use of a computer one has accessed with authorization. What matters on Van Buren’s reading, as the Government sees it, is simply that the person obtain information that he is not entitled to obtain—and that point could be made even if “so” were deleted. By contrast, the Government insists, “so” makes a valuable contribution if it incorporates all of the circumstances that might qualify a person’s right to obtain information. Because only its interpretation gives “so” work to do, the Government contends, the rule against superfluity means that its interpretation wins. See Republic of Sudan v. Harrison, 587 U. S. ___, ___ (2019) (slip op., at 10).

But the canon does not help the Government because Van Buren’s reading does not render “so” superfluous. As Van Buren points out, without “so,” the statute would allow individuals to use their right to obtain information in nondigital form as a defense to CFAA liability. Consider, for example, a person who downloads restricted personnel files he is not entitled to obtain by using his computer. Such a person could argue that he was “entitled to obtain” the information if he had the right to access personnel files through another method (e.g., by requesting hard copies of the files from human resources). With “so,” the CFAA forecloses that theory of defense. The statute is concerned with what a person does on a computer; it does not excuse hacking into an electronic personnel file if the hacker could have walked down the hall to pick up a physical copy. This clarification is significant because it underscores that one kind of entitlement to information counts: the right to access the information by using a computer. That can expand liability, as the above example shows. But it narrows liability too. Without the word “so,” the statute could be read to incorporate all kinds of limitations on one’s entitlement to information. The dissent’s take on the statute illustrates why.

It then goes into a rebuttal of the dissent, which takes on a different interpretation of "so" but feels that it can get to a reasonable outcome by focusing, instead, on "entitled." But the majority decision notes that such a reading results in problems:

The dissent’s approach to the word “entitled” fares fine in the abstract but poorly in context. The statute does not refer to “information . . . that the accesser is not entitled to obtain.” It refers to “information . . . that the accesser is not entitled so to obtain.” 18 U. S. C. §1030(e)(6) (emphasis added). The word “entitled,” then, does not stand alone, inviting the reader to consider the full scope of the accesser’s entitlement to information. The modifying phrase “so to obtain” directs the reader to consider a specific limitation on the accesser’s entitlement: his entitlement to obtain the information “in the manner previously stated.” Supra, at 7. And as already explained, the manner previously stated is using a computer one is authorized to access. Thus, while giving lipservice to Van Buren’s reading of “so,” the dissent, like the Government, declines to give “so” any limiting function.

The dissent cannot have it both ways. The consequence of accepting Van Buren’s reading of “so” is the narrowed scope of “entitled.” In fact, the dissent’s examples implicitly concede as much: They all omit the word “so,” thereby giving “entitled” its full sweep. See post, at 3–4. An approach that must rewrite the statute to work is even less persuasive than the Government’s.

The majority also points out that the government's own focus on "exceeds authorized access" is equally problematic, first in that it ignores the definition in the actual law:

The Government falls back on what it describes as the “common parlance” meaning of the phrase “exceeds authorized access.” Brief for United States 20–21. According to the Government, any ordinary speaker of the English language would think that Van Buren “exceed[ed] his authorized access” to the law enforcement database when he obtained license-plate information for personal purposes. Id., at 21. The dissent, for its part, asserts that this point “settles” the case. Post, at 9.

If the phrase “exceeds authorized access” were all we had to go on, the Government and the dissent might have a point. But both breeze by the CFAA’s explicit definition of the phrase “exceeds authorized access.”

But, more importantly, the government's approach creates a series of ridiculous interpretations:

By contrast, the Government’s reading of the “exceeds authorized access” clause creates “inconsistenc[ies] with the design and structure” of subsection (a)(2). University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As discussed, the Government reads the “exceeds authorized access” clause to incorporate purposebased limits contained in contracts and workplace policies. Yet the Government does not read such limits into the threshold question whether someone uses a computer “without authorization”—even though similar purpose restrictions, like a rule against personal use, often govern one’s right to access a computer in the first place. See, e.g., Royal Truck & Trailer Sales & Serv., Inc. v. Kraft, 974 F. 3d 756, 757 (CA6 2020). Thus, the Government proposes to read the first phrase “without authorization” as a gates-up-or-down inquiry and the second phrase “exceeds authorized access” as one that depends on the circumstances. The Government does not explain why the statute would prohibit accessing computer information, but not the computer itself, for an improper purpose.

The Government’s position has another structural problem. Recall that violating §1030(a)(2), the provision under which Van Buren was charged, also gives rise to civil liability. See §1030(g). Provisions defining “damage” and “loss” specify what a plaintiff in a civil suit can recover. “‘[D]amage,’” the statute provides, means “any impairment to the integrity or availability of data, a program, a system, or information.” §1030(e)(8). The term “loss” likewise relates to costs caused by harm to computer data, programs, systems, or information services. §1030(e)(11). The statutory definitions of “damage” and “loss” thus focus on technological harms—such as the corruption of files—of the type unauthorized users cause to computer systems and data. Limiting “damage” and “loss” in this way makes sense in a scheme “aimed at preventing the typical consequences of hacking.” Royal Truck, 974 F. 3d, at 760. The term’s definitions are ill fitted, however, to remediating “misuse” of sensitive information that employees may permissibly access using their computers. Ibid. Van Buren’s situation is illustrative: His run of the license plate did not impair the “integrity or availability” of data, nor did it otherwise harm the database system itself.

Finally, and rightly, the majority opinion recognizes just how much the CFAA would criminalize under the government's interpretation:

To top it all off, the Government’s interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity.....

If the “exceeds authorized access” clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals. Take the workplace. Employers commonly state that computers and electronic devices can be used only for business purposes. So on the Government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA. Or consider the Internet. Many websites, services, and databases—which provide “information” from “protected computer[s],” §1030(a)(2)(C)—authorize a user’s access only upon his agreement to follow specified terms of service. If the “exceeds authorized access” clause encompasses violations of circumstance-based access restrictions on employers’ computers, it is difficult to see why it would not also encompass violations of such restrictions on website providers’ computers. And indeed, numerous amici explain why the Government’s reading of subsection (a)(2) would do just that— criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook

The majority was written by new Justice Amy Coney Barrett, and joined by Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. The dissent was written by Justice Thomas, with Chief Justice Roberts and Justice Alito.

Overall, the thrust of the decision is good, with a few oddities and that one weird footnote. But it's much better than simply accepting the government's warped interpretation of the CFAA.

Filed Under: authorized access, cfaa, exceeds authorized access, supreme court, van buren