Rachel Dolezal's Copyright Follies: Sues CBS For Copyright Infringement In Case That Won't End Well

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine's attorneys called into question that "exclusive licensing agreement," Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself -- which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal's copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we'll probably cover only a few of them. However, I did notice that it wasn't Liebowitz who was representing her -- which makes sense since last we'd heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called "Copyright Justice" even though his law firm's website mostly focuses on real estate law...) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC ("LLF"), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it's not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz's is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn't yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don't think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened... in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there's an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it's unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can't show that she actually knew or should have known about the publication earlier.

But... that's still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the "damages" from 2018 through 2021... for an article published in 2015. It's hard to see much in the way of provable damages there.

And... despite the fact that copyright law has (insane) statutory damages, those aren't available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can't even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys' fees, which is also asked for.

We haven't even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the "author" of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don't see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it's the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn't seem like any would apply here.

And, finally, there's fair use. The image was used in conjunction with a news article and was relevant to the reporting. It's difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho... or Liebowitz.

Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs

Daily Deal: The 2021 Complete AWS DevOps Engineer Bundle

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

The 2021 Complete AWS DevOps Engineer Bundle has 11 courses to help you hone your skills, prepare for exams, and get you on your way to becoming a DevOps engineer. Courses cover AWS Database, cloud automation, Lambda, Docker and more. It's on sale for $40.

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

Filed Under: daily deal

California City Drops Lawsuit Against Journalists; Admits It Failed To Secure Files Supposedly Accessed Illegally

from the unfortunately-this-now-leaves-the-taxpayers-exposed dept

The city of Fullerton, California spent nearly two years trying to turn some local journalists into criminals. Bloggers, who contributed to the digital publication Friends for Fullerton's Future, dug into files posted publicly by the city and got sued for doing nothing more than anyone with a link to the city's shared folder could have done.

Here's the beginning of this ridiculousness, via the EFF.

The city sued two journalists and Friends for Fullerton’s Future based on several claims, including an allegation that they violated California’s Comprehensive Computer Data and Fraud Act when they obtained and published documents officials posted to a city file-sharing website that was available to anyone with an Internet connection. For months, the city made the file-sharing site available to the public without a password or any other access restrictions and used it to conduct city business, including providing records to members of the public who requested them under the California Public Records Act.

The city obviously expected records requesters to only access the records they requested. But the city made almost no effort to restrict access, so anyone with a link could access other unprotected files and folders. That some people chose not to limit themselves to the files they requested was a problem the city could have handled without getting accusational and litigious. But that's not the route Fullerton chose. And now it's paying for this blown judgment call.

In the settlement, the city abandoned its Section 502 claims and admitted that its allegations did not accurately reflect its security practices for the Outbox folder. The settlement states “[t]he City acted on its belief that access controls were in place” when it filed its lawsuit and “that its primary goal was to retrieve confidential documents for the protection of city employees, residents and those doing business with the City.”

[...]

The settlement also requires the city to pay Ferguson and Curlee $60,000 each as well as $230,000 for their attorney’s fees and costs.

The settlement [PDF] is quite a read. It does what so few settlements do: admit fault. The city makes it clear none of the journalists did anything wrong and that any unexpected access was due to lax security, rather than any attempt to circumvent (apparently nonexistent) protective measures.

In the process of gathering and reviewing documents in response to PRA requests, city staff began placing large volumes of records in the file sharing account for attorney review and redaction, believing these files and folders placed therein were secure and that access was restricted to city staff and the City Attorney's office. However, due to errors by former employees of the City in configuring the account, the files and folders were in fact accessible and able to be downloaded by the public.

Once downloaded, some of the files placed on the shared drive required passwords to open, but due to lax password controls, Defendants, and possibly others, would have been able to open (unzip) many of the files without bypassing access controls because the same passwords may have been re-used for multiple files and/or were disclosed in public records.

There's more. Here's the "this is on us" admission:

Based on the City's additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now understands that documents were not stolen or illegally taken from the shared file account as the City previously believed and asserted. Rather, the documents were made inadvertently available by the City in response to PRA requests.

And, finally, this sort of exculpatory anti-climax:

The City wishes to acknowledge its misunderstanding of the situation…

Well, it's better than nothing, even if its "misunderstanding" involved more than $200,000 in legal fees and claims that the state's CFAA-analogue (the Comprehensive Computer Fraud and Data Act) was broken by people who did nothing more than access files the city left accessible.

Better than that is the stipulation that all of these admissions by the city be posted in a "conspicuous location" on the city's website for at least the next six months. That will make it a little more difficult to sweep this "misunderstanding" under the rug with a broom made of $350,000 of tax dollars. Hopefully, it will also discourage other future "misunderstandings" by other government agencies that fail to erect even the most basic security measures.

Filed Under: california, ccdfa, cfaa, fullerton, journalism, transparency

Frontier Communications Sued Yet Again For Lying About Its Pathetic Broadband Speeds

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

For a long time we've talked about the fact that if you really want to understand why U.S. broadband is expensive and mediocre, you should take a good hard look at Frontier Communications. The regional phone company in 25 states has, for years, been accused of neglecting to adequately upgrade or repair its network, despite millions in wasted taxpayer subsidies. Protected from both competition and accountability thanks to state and federal corruption, the company has happily price gouged captive customers without facing real penalties.

In recent years that has shifted slightly thanks largely to individual states like Washington, New York, and Minnesota, which have all sued the company at various times for neglecting its network, advertising speeds its sluggish DSL lines can't deliver, or inundating its subscribers with bullshit fees and surcharges (a neat trick that lets ISPs advertise one price, then charge you a much higher rate).

This week Frontier found itself again under fire for, you guessed it, lying about its broadband speeds and overcharging consumers for substandard service. This latest suit (pdf) was jointly filed by the FTC, the attorneys general from Arizona, Indiana, Michigan, North Carolina, and Wisconsin, and the district attorneys’ offices of LA County and Riverside County, California. Like previous suits, the new FTC suit accused Frontier of advertising speeds it knows its aging and distance-constrained DSL lines can't deliver, failing to disclose those limits to consumers, and overbilling subscribers based on speeds they can't actually get.

Granted there's a reason Frontier keeps getting sued without much changing. And that's because the fines levied upon regional telecom monopolies are usually a small fraction of the money made from exploiting captive consumers (and local governments). As such, the penalties are just viewed as the cost of doing business, get quickly brushed aside, and little really changes in the underlying market mechanics.

Thanks to the Trump administration's net neutrality repeal (which also gutted FCC consumer protection authority), the FCC is now limited as to what it can do to thwart this behavior. That left (as telecom lobbyists intended) most oversight to the FTC, which can't make new rules, lacks the resources and staff to adequately tackle telecom (on top of fifty million other obligations across a universe of other sectors) and is limited to enforcement actions in instances where it's extremely clear a company is engaged in "unfair and deceptive" behavior under the FTC Act.

The telecom lobby knew all of this, which was the whole point of the net neutrality repeal. That was acknowledged by acting Commissioner Rebecca Slaughter in a statement on the lawsuit:

"As important as this case is, it also shows why the FTC can never fully fill the regulatory gap left in the wake of the repeal of Net Neutrality at the FCC, the expert agency on telecommunications services,” Acting Chair Rebecca Kelly Slaughter said of the lawsuit.

“The FTC will do what we can to hold broadband providers accountable,” she added. “But the pandemic has underscored the essential nature of internet access; just like the country’s water, electricity, and phone services, ISPs require direct and on-going oversight. That active oversight by the proper regulator may have prevented these violations."

While these scattershot enforcement actions do help somewhat, you can't fix US broadband dysfunction without targeting its two root causes: regional monopolization and state and federal corruption. There are a million ways to do that: restore FCC consumer protection authority, properly fund and staff regulators, ramp up flimsy antitrust enforcement in telecom, embrace genuine pro-competition policies incumbents won't like (including supporting community broadband), stop mindlessly rubber stamping every idiotic merger that comes down the road, and hold telecom companies accountable for repeated empty pre-merger promises. If none of that works and they remain absolutely dedicated to obnoxious behavior, break them up.

But US policy leaders decidedly don't want to actually do any of that. One, because these companies are politically powerful campaign contributors in a pay to play system. They're also tightly tethered to our intelligence and law enforcement apparatus, further reducing any political incentive to hold them accountable. So instead we get government policy (and a lot of press coverage and rhetoric) that treats the resulting problems as ambiguous issues that just dropped out of the sky one day (see: endless lip service about the "digital divide") without acknowledging that corruption and monopolization are the obvious cause.

Filed Under: broadband speeds, fcc, ftc, truth in advertising
Companies: frontier communications

Unofficial Amiibo Guidebook That Was Essentially Advertising Nintendo Products Gets Nintendo'd

from the nintendon't dept

Nintendo really can't help itself. With the company's storied reputation for valuing strict control of all things intellectual property over literally everything else, we have detailed plenty of occasions where this restrictive attitude seems to work directly against the company actually selling things. From DMCAing fan-made ports of Nintendo's games to antiquated game systems, to getting fan-made expressions of Nintendo fandom taken down from 3rd party creation games like Dreams, to just DMCA carpet-bombing a wide range of fan-made games that serve as homages to Nintendo properties, the company has made it very clear that it will choose strict control over being good to its fans at every opportunity. Even, as is so often the case, when that means getting content taken down that essentially serves as an advertisement for Nintendo products.

Perhaps this has never been more evident than when Nintendo recently got a Kickstarter project shut down, as that project was for a guidebook to Nintendo Amiibo products.

Made by Ninty Media, the unofficial amiibo handbook was designed as a guidebook that catalogued every single amiibo available at the time of the book’s release. Not only does this compendium show off every amiibo, it also gives fun facts about each character listed, and even has estimated prices to help those trying to purchase these desired figures today. The Kickstarter for the book launched last month and has long surpassed its initial goal of £3,000 with £36,172 at the time of its being taken down.

However, that Kickstarter has now come to a halt thanks to this new dispute from Nintendo. Viewing the copyright notification on the Kickstarter page reveals that it is under dispute due to the use of the amiibo logo on the cover of the book, along with some of Nintendo’s other design marks. Paul Murphy, the man behind the amiibo handbook, along with other projects from Ninty Media, has posted on Twitter that he would respond shortly to this claim, demonstrating that the book isn’t cancelled yet. But he did offer refunds to anyone who contributed to the Kickstarter in the event that he loses the dispute.

Now, a couple of things I should stipulate right up front. First, Nintendo is well within its rights to take this action. Use of Nintendo's branding and imagery certainly runs afoul of copyright and trademark laws. Second, it was fairly silly of the makers of this book to use that branding and imagery, including font-types, without ever having reached out to Nintendo for any kind of approval. That would be the case if this were a book about the products of "Company X", but when it's Nintendo? C'mon, guys.

So, with those stipulations out of the way, we can now get into just how stupid this all is on Nintendo's part as well. First, again, Nintendo doesn't have to spit directly in the faces of its fans.

Given Nintendo’s history, it’s unsurprising that what have been dubbed by many as the “Nintendo Ninjas” are at it again. Similar to Nintendo’s past cases, it’s a dispute where Nintendo is legally in the right, but dubious in its morality. The more of these projects Nintendo cancels, the clearer the message that Nintendo is against these types of fan projects. It’s not a good message to send to the community, and it harms the relationship Nintendo has with its consumers.

And then let's add to all of that that this book would essentially serve as a giant advertisement for Nintendo's Amiibo products. There are a zillion ways the company could have worked amicably with this Kickstarter project so as to both protect its IP, say with a cheap or free license to use the assets in question, while also ensuring that a book for Amiibo enthusiasts still got released. By all accounts, such possibilities were never even explored by Nintendo.

That's not surprising any longer, but it remains quite disappointing. If we acknowledge that this book generally didn't serve any real threat to the monetary income of Nintendo, and likely would have been a boon instead, there was literally nothing to lose and everything to gain if Nintendo had chosen to be human and cool in this instance.

Instead, it takes a hit on the relationship front with its fans and loses out on the free advertising for Amiibo products. Great job.

Filed Under: amiibo, copyright, trademark, unofficial amiibo handbook
Companies: kickstarter, nintendo, ninty media

G7 And Technical Standards: Blink And You Might Have Missed The New Battleground

from the governments-encroaching dept

Amid all the news about the third wave of the COVID-19 Pandemic and the politics behind the vaccination roll out, you might have missed the Ministerial Declaration from the G7 Digital and Technology Ministers’ meeting. As per tradition, the G7 Digital Ministerial provides the opportunity for the seven richest countries of the world to declare their commitments and vision on the type of digital future they would like to see. The document is non-binding but it has the tendency to provide some useful insights on the way the G7 countries view digital issues and their future positions in multilateral fora; it is also informative of other, more formal, multilateral processes. On 28 April 2021, a statement was made addressing key technology issues and opportunities including security in ICT supply chains, Internet safety, free data flows, electronic transferable records, digital competition and technical standards.

Yes, you read that right - technical standards. In the last several years technical standards have moved from the realm of engineers into wider politics. News stories have been replete with China’s efforts to become a competitive force on 5G, AI and facial recognition standards and its wish to be developed internationally based on their national rules, culture and technology. But the public eye turned more closely to China when it was discovered that the facial recognition standards being developed by China in the UN system were from countries on the US sanctions list and used by China for monitoring Uighurs.

None of this is new. For the past few years and for anyone who has been paying attention, China has been strategically positioning itself in various standards bodies realizing that shifting from a unipolar to a multipolar world order cannot happen unless it is capable of demonstrating a more strategic and competitive approach to the domination of the west. What was the tipping point, however, that made the seven richest countries in the world offer explicit language on standards inserted into their declaration? Everything seems to be pointing to the "newIP" standard proposal, recommending a change in the current Internet technology, that was put forward by Huawei and supported by China in the International Telecommunications Union (ITU). Although this new standard did not manage to pass the ITU’s study group phase, it did raise the eyebrows of the West. And, rightly so. 

Historically, Internet standards have paved their own path and have majorly managed to stay outside of politics.  In one of the earliest Requests for Comments (RFC), the definition of a standard was specific and narrow:  a standard is “a specification that is stable and well-understood, is technical competent, has multiple, independent and interoperable implementations with operations experience, enjoys significant public support, and is recognizably useful in some or all parts of the Internet”. 

Traditionally, governments have had a hands-off approach in the development and deployment of standards related to the Internet; their development was part of the consensus-based, community-driven process developed and nurtured by the Internet Engineering Task Force (IETF) and their deployment was left to the market.  A standard’s life has always depended on its utility and contribution to the evolution of the Internet. 

This seems to be the case less and less. Over the past years, governments have shown increasing interest in the development of standards, and have sought ways to inject themselves into Internet standardization processes. There are two distinct ways that this trend has emerged. First, there's China, which actively seeks to displace the current Internet infrastructure. That was clear in the attempt with the “newIP” proposal. China has been strategic in not directly suggesting a complete rejection of the Internet model; instead, its claims have been that the Internet cannot meet future technologies and needs and, therefore, a new infrastructure, developed  and nurtured by governments, is necessary. The second trend continues to support the open, market-driven standards development processes, but seeks ways for governments to be more actively involved. This, so far, has mainly been interpreted as identifying ways to provide incentives for the creation and deployment of certain standards, often those deemed strategically important. 

Even though these approaches reflect different political and governance dimensions - China supports a top-down approach over the West’s bottom-up model - they do share one commonality: in both cases, politics are becoming part of the standardization process. This is entirely unlike the past 30 years of Internet development. 

This could have significant implications in the development and future of the Internet. There are benefits from the current structure: efficiency, agility and collaboration. The existing process ensures quick responses to problems. But, its main advantage is really the collective understanding that standards are driven by what is “good for the Internet”; that is, what is required for the Internet’s stability, resilience and integrity. 

This doesn’t mean that this process is perfect. Of course, it comes with its own limitations and challenges. But, even then, it is a tested process that has worked well for the Internet throughout most of its existence. It has worked - despite its flaws - because it has managed to keep political and cultural dimensions separate. Participants, irrespective of background, language, and political persuasion have been collaborating successfully by having the Internet and what's good for it, as their main objective. 

On the contrary, intergovernmental standards are driven by political differences and political motives. They are designed this way. This is not to say that governments should not be paying attention to the way standards are developed. But, it is crucial to do so in ways that do not seek  to upend a model that is tested and responsive to the needs of the Internet. 

Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.

Dominique Lazanski is the Director of Last Press Label, and a Consultant in International Internet and Cybersecurity Standards and Policy.

Filed Under: china, g7, governments, internet standards, multistakeholder, politics, standards

Redditors Launch A 'Rescue Mission' For Embattled Sci-Hub, With The Ultimate Aim Of Building A Decentralized Version

from the but-what-about-protecting-Elbakyan? dept

Techdirt has just written about belated news that the FBI gained access two years ago to the Apple account of Alexandra Elbakyan, the founder of Sci-Hub. This is part of a continuing attempt to stop the widespread sharing of academic papers, mostly paid for by the public, and currently trapped behind expensive paywalls. You might think somebody helping scholars spread their work to a wider audience would be rewarded with prizes and grants, not pursued by the FBI and DOJ. But of course not, because, well, copyright. It's easy to feel angry but helpless when confronted with this kind of bullying by publishing giants like Elsevier, but a group of publicly spirited Redditors aim to do something about it:

It's time we sent Elsevier and the USDOJ a clearer message about the fate of Sci-Hub and open science: we are the library, we do not get silenced, we do not shut down our computers, and we are many.

They have initiated what they term a "Rescue Mission for Sci-Hub", in order to prepare for a possible shutdown of the site:

A handful of Library Genesis seeders are currently seeding the Sci-Hub torrents. There are 850 scihub torrents, each containing 100,000 scientific articles, to a total of 85 million scientific articles: 77TB. This is the complete Sci-Hub database. We need to protect this.

The Redditors are calling for "85 datahoarders to store and seed 1TB of articles each, 10 torrents in total". The idea is to download 10 random torrents, then seed them for as long as possible. Once enough people start downloading random torrents using these seeds, the Sci-Hub holdings will be safe. That would then lead to the "final wave":

Development for an open source Sci-Hub. freereadorg/awesome-libgen is a collection of open source achievements based on the Sci-Hub and Library Genesis databases. Open source de-centralization of Sci-Hub is the ultimate goal here, and this begins with the data, but it is going to take years of developer sweat to carry these libraries into the future.

The centralized nature of Sci-Hub is certainly its greatest weakness, since it provides publishers with just a few targets to aim for, both legally and technically. A truly decentralized version would solve that problem, but requires a lot of work, as the Reddit post notes. Still, at least this "rescue plan" means people can do something practical to help Sci-Hub; sadly, protecting Elbakyan is harder.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic papers, alexandra elbakyan, censor-proof, copyright, distributed
Companies: sci-hub

Violent, Bigoted Cop Accused Of Beating Another Cop Is Upset His Text Messages Expose Him As A Violent Bigot

from the petard-toting-mfers-getting-themselves-hoisted dept

Lawyers for a cop accused of beating an undercover cop during a 2017 protest are pretty angry prosecutors have let the public know just what kind of bigoted dirtbag the indicted officer is.

St. Louis police officer Dustin Boone -- along with four other officers -- attacked undercover officer Luther Hall. Boone is white. Detective Hall is black. This is relevant information, even if Boone's lawyers are claiming his texts -- which contain plenty of bigotry -- aren't. Boone's legal rep is seeking to have prosecutors sanctioned for bringing Boone's texts to his prosecution.

Boone's attorney, Patrick Kilgore, argues in a court filing that the now-public information is "inflammatory, irrelevant, and highly prejudicial" and disclosing them violates a judge's order to file much of the information under seal. He notes that the St. Louis Post-Dispatch wrote about the texts and other information from the prosecutors' filing and claims it could taint the jury pool and keep Boone from receiving a fair trial.

They're definitely "inflammatory." How could they not be? These are former officer Boone's own words. And they seem relevant as they make it pretty clear how easily a bigot like Boone could "mistake" a black undercover officer for a protester in need of a beating. Here's Boone in a group text [PDF] to other St. Louis police officers a few months prior to the beating he's now facing charges for:

It's already a state of emergency! There are r niggers running wild all across the city and even if/when we catch them..... they don't get in any trouble because there are plate lips running the CAO!

Here's what the CAO reference means:

CAO is apparently a reference to the St. Louis Circuit Attorney's Office, which is under the supervision of the city's first Black circuit attorney, Kim Gardner.

That's not the only one containing the n-word. This term was used in a group text to "Kayla, Kelsea, Mom, Ashley Marie, Dad" that reads:

What city r we in?

These fuckin niggers r the same as St. Louis niggers.

So, the lawyer for this lovely person wants these texts tossed and prosecutors sanctioned for introducing "highly prejudicial" information. And, to be fair, it will certainly make jurors feel things about Boone that they likely wouldn't have felt without them. But is it too unfair? It certainly seems relevant -- not just because of how Boone apparently views black people, but because it also shows how gleefully he participated in the beating of a fellow officer.

Prosecutors say that Boone hooked his phone on his uniform and livestreamed Hall's beating for Ditto. The hour-long video wasn't saved, but prosecutors say Ditto's messages back and forth with Boone prove that she watched what happened — and that Boone was involved. Afterward, Ditto wrote "That was SOOOOOO COOL!!!!"

Perhaps the most memorable part of this exchange (other than Boone's sudden contrition after the news came out he had beaten an undercover detective) is his girlfriend's response to the beating. Everyone tells you "just comply" with cops' orders if you don't want to get hurt. Here's a civilian take, and it's a good one considering it's from someone who was in a personal relationship with a cop:

But damn you guys need to practice more. Even I was confused. One guy was sayin HANDS DOWN, HANDS DOWN.

Next dude saying HANDS UP.

Then HANDS DOWN, HANDS DOWN, GET YOUR FUCKIN HANDS UP.

And that's not the end of the disturbing communications. There are multiple texts celebrating excessive force use -- including Boone's efforts to ensure these beatings weren't captured by nearby CCTV cameras or bystanders. There's a text suggesting Boone stole money from a crime scene. There's a whole string of texts detailing he and his fellow officers' abuse of prescription drugs like Adderall and Concerta.

Here's his recommendation to fellow officer Kyle Santa who was asking on behalf of another police officer.

Depends on if he wants to feel like he feels like seeing in HD and making night turn into day (adderall) or if he just wants to feel a really really focused white guy (concerta). Adderall is essentially cocaine base in a compressed pill form……. It's pretty special. It makes u chew on ur tongue and like ur lips like a crack head and u can't stop talking for the first 8 hours. It is also nearly impossible to get drunk AND cures hangovers in a matter of 11 minutes.

Sure, I can see why Boone's lawyer wants these messages kept out of court. They make his client look like a violent, racist drug addict. That's certainly not going to help -- not when his lawyer is trying to clear him of charges related to the violent beating of a black man… one that Boone seemingly would never have regretted if the beating victim hadn't turned out to be a fellow officer.

Even if Boone's lawyer manages to get these texts tossed and the prosecutors sanctioned, they'll hopefully be enough to prevent Dustin Boone from ever wearing a badge again. And it should serve as a wakeup call for all the officers he worked with -- the ones who ignored his violence, racism, and drug abuse until he made the only unforgiveable mistake: beating up another cop.

Filed Under: dustin boone, luther hall, police, police brutality, racism, st. louis, text messages

Parler Was Allowed Back In The Apple App Store Because It Will Block 'Hate Speech,' But Only When Viewed Through Apple Devices

from the fracturing dept

Last month we noted that Apple told Congress that it was allowing Parler's iOS app to return to its app store, after the company (apparently) implemented a content moderation system. This was despite Parler's then interim CEO (who has since been replaced by another CEO) insisting that Parler would not remove "content that attacks someone based on race, sex, sexual orientation or religion." According to a deep dive by the Washington Post, the compromise solution is that such content will be default blocked only on iOS devices, but will be available via the web or the sideloaded Google app, though they will be "labeled" as hate by Parler's new content moderation partner, Hive.

Posts that are labeled “hate” by Parler’s new artificial intelligence moderation system won’t be visible on iPhones or iPads. There’s a different standard for people who look at Parler on other smartphones or on the Web: They will be able to see posts marked as “hate,” which includes racial slurs, by clicking through to see them.

Hive is well known in the content moderation space, as it is used by Chatroulette, Reddit and some others. Hive mixes "AI" with a large team of what it refers to as "registered contributors" (think Mechanical Turk-style crowdsourced gig work). Of course, it was only just last year that the company announced that its "hate model" AI was ready for prime time, and I do wonder how effective it is.

Either way, this is interesting for a variety of reasons. One thing we've talked about in the past with regards to content moderation is that one of the many problems is that different people have different tolerances for different kinds of speech, and having different moderation setups for different users (and really pushing more of the decision making to the end users themselves) seems like an idea that should get a lot more attention. Here, though, we have a third party -- Apple -- stepping in and doing that deciding for the users. It is Apple's platform, so of course, they do get to make that decision, but it's a trend worth watching.

I do wonder if we'll start to see more pressure from such third parties to moderate in different ways to the point that our mobile app experiences and our browser experiences may be entirely different. I see how we end up in such a world, but it seems like a better solution might be just pushing more of that control to the end users themselves to make those decisions.

The specific setup here for Parler is still interesting:

Parler sets the guidelines on what Hive looks for. For example, all content that the algorithms flag as “incitement,” or illegal content threatening physical violence, is removed for all users, Peikoff and Guo said. That includes threats of violence against immigrants wanting to cross the border or politicians.

But Parler had to compromise on hate speech, Peikoff said. Those using iPhones won’t see anything deemed to be in that category. The default setting on Android devices and the website shows labels warning “trolling content detected,” with the option to “show content anyway.” Users have the option to change the setting and, like iOS users, never be exposed to posts flagged as hate.

Peikoff said the “hate” flag from the AI review will cue two different experiences for users, depending on the platform they use. Parler’s tech team is continuing to run tests on the dual paths to make sure each runs consistently as intended.

Of course, AI moderation is famously mistake-prone. And both Parler and Hive execs recognize this:

Peikoff said Hive recently flagged for nudity her favorite art piece, the “To Mennesker” naked figures sculpture by Danish artist Stephan Sinding, when she posted it. The image was immediately covered with a splash screen indicating it was unsafe.

“Even the best AI moderation has some error rate,” Guo said. He said the company’s models show that one to two posts out of every 10,000 viewed by the AI should have been caught on Parler but aren’t.

I do question those percentages, but either way it's another interesting example of how content moderation continues to evolve -- even if Parler's users are angry that they won't be able to spew bigotry quite as easily as previously.

Filed Under: content moderation, hate speech, ios, platforms
Companies: apple, hive, parler

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