Vizio Fails To Dodge Class Action Over Its Spying 'Smart' Televisions

from the watching-you-watching-me dept

So if you hadn't been paying attention, most of the "smart" products you buy are anything but intelligent when it comes to your privacy and security. Whether it's your refrigerator leaking your gmail credentials or your new webcam being hacked in minutes for use in massive new DDoS attacks, the so-called "smart" home is actually quite idiotic. So-called smart-televisions have been particularly problematic, whether that has involved companies failing to encrypt sensitive data, to removing features if you refuse to have your daily viewing habits measured and monetized.

Last month Vizio joined this not-so-distinguished club when it was discovered that the company's TVs had been spying on users for the last several years. Vizio's $2.2 million settlement with the FTC indicates that the company at no time thought it might be a good idea to inform customers this was happening. The snooping was part of a supposed "Smart Interactivity" feature deployed in 2014 that claimed to provide users with programming recommendations, but never actually did so. In short, it wasn't so much what Vizio was doing, it was the fact the company tried to bullshit its way around it.

And while Vizio may have settled the FTC investigation into its snooping televisions, the company now faces an additional class action after a California federal judge late last week denied the company's motion to dismiss. The court ruled that Vizio customers' claimed injuries were "sufficiently concrete" to bring suit under the Video Privacy Protection and Wiretap Acts:

"Congress has determined that the interception of a person’s electronic communications and the unauthorized disclosure of a person’s video viewing history are sufficiently harmful to warrant private causes of action," and in response to Vizio's contention that the information it allegedly discloses is not personally identifiable, adds, "Taken to its logical conclusion, Defendants’ argument absurdly implies that a court could never enter judgment against a plaintiff on a VPPA claim if it found that the disclosed information was not within the statutory definition of personally identifiable information; instead, it would have to remand or dismiss the action for lack of jurisdiction."

U.S. District Court judge Josephine Staton also supported the lawsuit's claim of "highly offensive" conduct by Vizio by reiterating that the "Smart Interactivity" feature that did the spying was difficult to disable (impossible, initially), and was often reset after every Vizio firmware update:

"Plaintiffs point to a report by the security software company Avast, which concluded that Smart Interactivity’s “off” function was not operational “for months, if not years.” So, even if consumers believed they had opted out of Vizio’s data collection practices, Vizio was still collecting their data for a considerable period. In addition, Vizio’s...Smart Interactivity software switches back on without warning if the Smart TV ever reverts to the factory settings—as can occur through Vizio’s software updates. Consumers would likely not realize for a significant period that Vizio’s collection and disclosure software has been re-enabled because the opt-out feature is allegedly buried in an obscure settings menu."

So many of these companies wouldn't be facing settlements and lawsuits if they'd simply been transparent about what they were collecting in the first place. But time and time again we see "smart" IOT vendors trying to bullshit their way around what they're doing, bury settings that control privacy settings under layers of intentionally intimidating menus, or simply refuse outright to offer consumers working opt out tools in the first place.

Filed Under: class action, iot, smart tvs, video privacy, wiretap act
Companies: vizio

Judge Nixes PS3 Linux Class Action Settlement As Class's Lawyers Victimize The Class A Second Time

from the class-dismissed dept

We've made the point for several years now that the way class action lawsuits are handled in America is flawed in fundemental ways. What was supposed to be a method for enabling large groups of the aggrieved to pool resources against much larger and better-funded entities has instead devolved into a procedure that appears almost perfectly designed to enrich unscrupulous lawyers while the class itself gets a laughable percentage any monetary damages.

We get to see these flaws in practice yet again, this time in an update for the story that simply will not die: the legal action over Sony removing the PS3's ability to run Linux, which it advertised when the console launched. The class action suit had reached a proposed settlement, only to have the presiding judge nix it, essentially over concerns that the class was being victimized all over again, this time by its own lawyers.

The California judge presiding over the litigation is now killing the proposed settlement amid concerns the lawyers representing the class haven't explained why they should get $2.25 million for their legal services, especially considering that the deal has made it burdensome on gamers to get their cash. Of the gamers who tried to get their $55 refund, 25 percent have been rejected.

"The Court has concerns, based upon how the notice and claims process preceded, the results it produced, and the disproportionality of the attorneys’ fees versus the class recovery, that the settlement agreement is not fair, reasonable, and adequate."

Judge Yvonne Gonzalez separates her concerns into two categories: the cut taken by the class's lawyers and the burden on the class in attempting to collect on the settlement. For the question about the lawyers' fees, the numbers are pretty ridiculous. The maximum the class would be compensated under the settlement would be just over $600,000. For this award, the class's lawyers would be compensated $2.25 million. In submitting the settlement to the court, there was apparently no attempt to justify this fee, which is perhaps because any justification would be difficult to formulate for a case that the court notes never got further than discovery and a grand total of two motions before the court.

This lack of evidence is all the more concerning in light of the fact that the litigation here never progressed beyond a motion to dismiss and an appeal of that motion. While some discovery was apparently conducted, that discovery does not nearly approach the level that would have been required to take the case to class certification, or beyond. Without billing records or some more detailed explanation of the basis for the fee request, the Court is without sufficient information to determine whether the request is reasonable.

And then there are the hoops members of the class would have to jump through should they attempt to collect. The same lawyers happy to take four-times the money as the entire class had apparently agreed to settlement conditions including the following:

Here are some of the hoops that were required for both groups to get the refund: proof of purchase, a console serial number, and the Playstation Network Sign-in ID used with the Fat PS3 between November 1, 2006 and April 1, 2010. Class A members were also required to prove use of the Other OS functionality and a statement under the penalty of perjury that the Linux operating system was installed and used. Consumer Class B members had to provide a statement under the penalty of perjury that they knew about the Other OS functionality and relied upon the Other OS functionality in making the decision to purchase a Fat PS3, "and intended at the time of your purchase to use the Other OS functionality." There were also other hurdles, including forcing gamers to obtain a "temporary ID" from the settlement administrator that Sony would use to check against its own records to verify purchase of a Fat PS3.

So, claimants would have to provide all kinds of proof of all kinds of everything in order to collect on the settlement...and obtain a temporary ID so that Sony could verify much of that same information in its own records. If that seems like the settlement was designed to throw up as many annoying barriers as possible to collecting the maximum $55 per claim, it's likely because that's exactly what occurred. The court notes that this kind of circular runaround is likely to discourage claims.

Class action lawsuits: great in theory, brutally corrupt in practice. It's nice to see a court recognize this and look out for the public to keep them from being victimized all over again.

Filed Under: class action, lawyers, linux, ps3

Barrett Brown's Donors Sue DOJ/FBI For Monitoring Their Donations

from the what-kind-of-world-do-you-want-to-live-in? dept

We've written numerous stories about Barrett Brown, the reporter who was sentenced to 63 months in jail after being pressured into signing a plea deal. If you don't recall, Brown's "crime" was trying to get a bunch of people together to crowdsource an investigation into the famous Stratfor email hack. The feds went after him for posting a link (yes, posting a link) to a group to investigate, and because some of the Stratfor info included credit card data, the feds argued that Brown was trafficking in stolen credit cards. Really. And while the feds eventually dismissed the specific charges related to the links, the judge justified the long sentence against him because he copy/pasted that link.

The whole thing was a travesty. Brown is thankfully out of jail now, but earlier this week, Kevin Gallagher, who helped organize a legal defense fund for Brown, sued the Justice Department over claims that the DOJ illegally tracked and monitored everyone who donated to support Brown. Gallagher is looking to make this a class action lawsuit. You can read the full complaint here. From the filing:

The government agents responsible for the arrest and prosecution of the journalist violated the First Amendment by seeking the identities of the donors to the crowd-funding campaign, as well as the amounts of each donation. This violation began when Assistant United States Attorney Candina Heath sent a subpoena (the “WePay Subpoena”) to WePay, Inc. (“WePay”), the host of the crowd-funded legal defense fund, directing WePay to send “any and all information” pertaining to the legal defense fund to Special Agent Robert Smith of the Federal Bureau of Investigation (“FBI”). The subpoena claimed that the information it requested would be used at the trial of the jailed journalist. However, the identities of, and the amounts donated by, the journalist’s supporters are completely irrelevant to the charges levied against the journalist. On information and belief, the WePay Subpoena was part of a larger scheme by Ms. Heath and Mr. Smith to unlawfully surveil the donors in violation of the First Amendment. As the Ninth Circuit has recognized, “[t]he right of those expressing political, religious, social, or economic views to maintain their anonymity is historic, fundamental, and all too often necessary. The advocacy of unpopular causes may lead to reprisals – not only by government but by society in general. While many who express their views may be willing to accept these consequences, others not so brave or so free to do so will be discouraged from engaging in public advocacy.”

The lawsuit further argues that the subpoena violated the Stored Communications Act (part of ECPA), because it sought the content of electronic communications without a warrant. That's because, in using WePay, donors were able to also include messages of support for Barrett Brown -- and the feds requested that info without a warrant (and the content was less than 180 days old, which still does require a warrant). That's... a problem.

The details of the lawsuit also question whether or not the administrative subpoena that was used to request the info was issued under false pretenses (i.e., it was claimed that the info was necessary for the prosecution of Brown, but instead of being sent to the prosecution team, it was sent instead to the FBI):

The WePay Subpoena indicated that the information it requested would be used in the trial of Barrett Brown. Oddly enough, however, instead of asking WePay to send its response directly to Ms. Heath, the prosecutor, or to lodge its response with the court, the WePay Subpoena compelled WePay to produce information directly to Agent Smith of the FBI. This renders the WePay Subpoena improper under Federal Rule of Criminal Procedure 17(c). It also demonstrates that Defendants’ claimed purpose of using the information produced in response to the WePay Subpoena at Barrett Brown’s trial was purely pretextual. The true goal of the WePay Subpoena, rather, was to facilitate the unlawful surveillance of the anonymous donors to the crowd-funding campaign.

I have no idea if this case has any chance at all. My suspicion is that the courts will figure out a way to dump it pretty quickly, but at the very least, it should call attention to the question of why the FBI felt that it needed all of the info on everyone donating to Barrett Brown, a journalist they railroaded into jail.

Filed Under: barrett brown, class action, doj, donations, ecpa, fbi, first amendment, kevin gallagher, sca, stored communications act

Judge Says Lawsuit Over PACER Fees Can Continue... As A Class Action

from the get-your-receipts-out... dept

Last April, a few legal advocacy groups banded together to sue the US government over PACER fees. PACER is the court system's electronic access system whose fees are only supposed to help it break even on the "costs" of delivering courtroom documents in PDF form. Suffice to say, the fees exceed the costs and the money doesn't seem to be going towards making PACER a better system.

To sum up very briefly, PACER:

• works and looks like crap
  • 1998 crap, to be more specific
• fees are $0.10/page for nearly everything
  • including search results
• the search function works like crap
  • 1992 crap

Working (and looking) like outdated crap is one thing. Being charged by the federal government for pages your tax dollars helped create is another. PACER keeps working like crap and the US court system's administration keeps pretending the documents are stored in file cabinets and are being copied by hand for members of the public at a library-copy-machine rate of 10 cents a page.

In December, the presiding judge denied the government's attempt to dismiss the case. The government argued that members of the public agreed to whatever PACER felt like charging through some bureaucratic clickwrap.

The court disagreed with the government's assertions -- most likely because the government seemed confused about the lawsuit's purpose. The government argued that billing errors and overcharges weren't the government's fault -- and even if they were, users had agreed to pay first and ask questions later. The court pointed out this wasn't about billing errors, but whether the fees collected were lawful in the first place.

Now, the case has moved one step further -- again in favor of the public. As Politico's Josh Gerstein reports, the general public is being extended an invitation to participate in this bit of grievance redressing.

U.S. District Court Judge Ellen Huvelle said in an opinion she will allow anyone who paid so-called PACER (Public Access to Court Electronic Records) fees between April 2010 and April 2016 to be part of the class in the suit, which alleges that the government is violating a 2002 law that says fees for using the system should not exceed the costs to operate it.

In the opinion [PDF], the judge takes the government to task for its attempt to turn the proposed class action into something that only affects the original plaintiffs -- and then only affects these plaintiffs because they're supposedly so far removed from the normal PACER user.

According to defendant, named plaintiffs are not adequate representatives because “[t]heir interests in free PACER access for their favored subset of PACER users diverge from the interests of those PACER [users] seeking to minimize their costs of PACER use.”

This is the government hinting that the original plaintiffs perhaps use PACER too much, and as such, should definitely be giving Uncle Sam (US Courts division) a hand by shelling out 10 cents per page. The court points out that the plaintiffs have never alleged otherwise, but that their class action lawsuit would be beneficial to those who are both desiring access to public documents, but less likely to have as much disposable cash flow. These would be people the nonprofits are in the business of assisting. So, as Judge Huvelle points out, they're the perfect lead plaintiffs for the class action suit.

Named plaintiffs are not exempt from PACER fees and thus share with the other class members an interest in reducing the fees. The PACER fees that named plaintiffs have paid are low relative to their annual revenue and other costs of litigation. Because of their multimillion dollar annual budgets, named plaintiffs have averred that they cannot represent that they are unable to pay PACER fees, and as a result, they cannot qualify for exemptions. (Tr. 3-4.)

Thus, named plaintiffs must pay PACER fees and accordingly have an interest in reducing those fees. In fact, the nonprofit organizations who are named plaintiffs in this case make particularly good class representatives. They are interested in reducing PACER fees not only for themselves but also for their constituents. As nonprofit organizations, named plaintiffs exist to advocate for consumers, veterans, and other public-interest causes…

Thus, named plaintiffs have dual incentives to reduce PACER fees, both for themselves and for the constituents that they represent.

Now that it's a class action lawsuit -- one with thousands of potential plaintiffs at a minimum -- the government is going to have to work even harder to prevent taxpayers' money from being returned to taxpayers.

Filed Under: class action, fees, pacer

California Man Brings Class Action Lawsuit Against Apple For Not Preventing Drivers From Doing Stupid Stuff

from the white-knight-and-his-windmills dept

There's lots of "me too" litigation flying right now. Multiple plaintiffs have advanced the theory that because terrorists kill people and terrorists use social media platforms to communicate, it somehow follows that social media platforms are at least partially responsible for terrorists killing people.

Bed legislation tends to follow tragedies. So does bad litigation. In the aftermath of a car accident that killed a five-year-old girl, a lawsuit was brought against Apple for supposed negligence -- solely because it has yet to implement a patented lockout mechanism that might have prevented the driver who killed the plaintiff's daughter from using Facetime while driving.

The key is "might have." The key is also a little understood aspect of intellectual property like patents. Just because a patent is acquired does not mean the company obtaining it has the means to put it to use. Nor does it indicate it ever plans to put the patent to use. It's an exclusionary process meant to keep others locked out for a certain period of time more than a leading indicator of any company's immediate plans for the future.

Partly due to a fundamental misunderstanding of patent filings, a "me too" class action lawsuit has lobbed into a California court, piggybacking off the negligence lawsuit filed late last year.

A California man has levied a class action lawsuit against Apple in Los Angeles Superior Court over the company’s decision to not implement technology that would prevent drivers from texting while behind the wheel.

Julio Ceja, who was rear-ended by a driver allegedly distracted while using her iPhone, isn’t seeking monetary damages (save for legal fees). Instead, Ceja hopes Apple will be forced to halt sales of its iPhones in The Golden State until a lock-out mechanism preventing people from using their smartphones while driving is implemented.

The lawsuit [PDF] proposes a potential class of EVERY PERSON IN CALIFORNIA, thanks to the popularity of cell phones and the increase in distracted driving accidents.

Of course, this legal effort attempts to shift the burden of personal responsibility to cell phone manufacturers. Ceja's concerns about distracted driving may be justified, but his desire to see the government force Apple to implement an as-yet-unused patent by blocking phone sales is thoroughly misguided. The lawsuit only targets Apple and only because Apple is in possession of this granted patent. The state's millions of Android (and tens of Windows phone) users would presumably be free to rear end Ceja and others while distracted by their non-iPhones.

Chances are this will be tossed before it advances too far, with the court pointing out that Apple is free to handle its unused patents however it feels and that any solution lies with the state's legislature, rather than the court. Of course, this will result in misguided legislation that targets cell phones specifically while ignoring all sorts of distracted driving that has nothing to do with electronic devices. But this solution makes a hell of a lot more sense than a court-ordered injunction that allows distracted drivers to offload their culpability on an unused patent. And it would the responsibility where it should be: on drivers who pay more attention to their phones than the road.

Filed Under: california, car accidents, class action, julio ceja, patents
Companies: apple

Court Tells Nursing Home Company That Law Firm's Ads Targeting It Are Not A Form Of Trademark Infringement

from the sorry,-but-not-liking-something-doesn't-make-it-infringement dept

Eugene Volokh of the Volokh Conspiracy points to a recent Georgia Supreme Court decision [PDF] that lets trademark holders know that just because some use of their trademark is less than complimentary doesn't mean the use "tarnishes" the brand.

McHugh Fuller Law Group, using nursing home surveys published by the federal government, often seeks to gather litigants for class action suits against possibly-abusive nursing homes/employees. In this case, it decided PruittHealth-Moultrie's survey responses warranted further litigation. It published an ad seeking "suffering loved ones" who might be interested in suing the nursing home -- one that prominently used the nursing home's logo and name.

Naturally, PruittHealth felt this use of its trademark to be disparaging, as it hinted that the company was mistreating its residents. It sued for damages, claiming the law firm's use of its name and logo "diluted" the brand. But its argument had nothing to do with the normal sort of "dilution" often claimed in court. PruittHealth didn't feel potential customers would be misled, but rather that its use in this form took the PruittHealth name down a notch or two.

At issue in this case is tarnishment, which OCGA § 10-1-451 (b) describes as “subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement” adopted and used by a person, association, or union “if there exists a likelihood of injury to business reputation … of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.” This theory of liability “has had some success when defendant has used plaintiff’s mark as a mark for clearly unwholesome or degrading goods or services.”

PruittHealth testified that it began receiving calls from concerned customers about the patients in its care as a result of the ad. McHugh Fuller testified that it had received 200 queries, resulting in 11 filed lawsuits -- not necessarily a rebuttal of PruittHealth's "likelihood of injury" claims.

The Supreme Court, reversing the state appeals court decision, points out that things that may result in damage to trademark holders are not always "tarnishing" under Georgia state law.

However, not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim. See 6 Callman § 22:19. Tarnishment can occur “only if the defendant uses the designation as its own trademark for its own goods or services.”

[...]

Here, McHugh Fuller was advertising its legal services to individuals who suspect that their loved ones have been harmed by negligent or abusive nursing home services at a specific PruittHealth nursing home. The ad used PruittHealth’s marks in a descriptive manner to identify the specific PruittHealth facility; indeed, McHugh Fuller was counting on the public to identify PruittHealth-Moultrie by the PruittHealth marks used in the ad. The ad did not attempt to link PruittHealth’s marks directly to McHugh Fuller’s own goods or services. McHugh Fuller was advertising what it sells – legal services, which are neither unwholesome nor degrading – under its own trade name, service mark, and logo, each of which appears in the challenged ad. No one reading the ad reproduced above would think that McHugh Fuller was doing anything other than identifying a health care facility that the law firm was willing to sue over its treatment of patients. In short, the ad very clearly was an ad for a law firm and nothing more.

PruittHealth may not have liked what the advertising insinuated (and, indeed, fielded concerned phone calls because of the advertising) but that alone is not enough to bring claims of trademark tarnishment. Advertising is full of unfavorable insinuations and unflattering comparisons, and this law firm's litigant fishing expedition is no different than ads claiming Corporation X's service is less than spectacular while using Corporation X's trademark in the ad copy.

Contrary to PruittHealth’s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark.”

PruittHealth's idea of how trademark law should be enforced goes far beyond expanding Georgia's trademark tarnishment law. It rubs right up against speech protected by the federal government.

Moreover, interpreting OCGA § 10-1- 451 (b) expansively to prohibit the use of PruittHealth’s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. [...] “Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.” New Kids on the Block, 971 F2d at 307.

This isn't one of the more egregious examples of using IP protections to shut people up that we've seen. But the end result of PruittHealth's lawsuit -- had the appeals court's decision been allowed to stand -- would have been indistinguishable from the more hamfisted bullying efforts detailed at Techdirt over the years.

Filed Under: class action, law firm, nursing home, trademark

DirecTV Faces RICO Class Action For Bungling Business Installs, Then Demanding $15,000 For Theft Of Service

from the thieves-and-liars dept

For several years now DirecTV (now owned by AT&T) has been the focus of a series of lawsuits focused on the NFL's Sunday Ticket exclusive arrangement. More specifically, the lawsuits have claimed that the exclusive arrangement violates antitrust law, resulting in a monopoly that charges often absurd prices to small businesses. Sports bars in particular have to shell out payments of up to $122,895 per year for NFL Sunday Ticket, while those same bars pay significantly less for Major League Baseball's comparable offering.

But a new lawsuit filed against DirecTV this week accuses the company of something notably different. Doneyda Perez, owner of Oneida's Beauty and Barber Salon in Garden Grove, has filed a RICO class action against DirecTV for intentionally selling businesses residential-class TV service, then hitting these customers with penalties of up to $15,000 several years later for failing to subscribe to business-class service. There's a lot to go through in this case, but before we start, it's at least worth pointing out that RICO class action cases are almost always ridiculous -- even if there does appear to be questionable behavior here.

Since at least 2013 customers have complained that DirecTV salesmen and installers visit what they clearly see are businesses, sell them residential TV service, and don't even mention that DirecTV offers anything else. Then, a few years later, "investigators" employed by DirecTV show up snooping around, without making it particularly clear who they are or what they're doing. This was documented in a different 2013 Dallas Morning News Story about the same practice:

"The man sitting at the counter at Zeke’s Kitchen restaurant in Garland is acting suspicious. He doesn’t want any food but takes a glass of water. He says he’s waiting on a friend, but no one shows up. He asks that the channel be changed on the restaurant TV. Then the man steps outside and begins taking pictures of the restaurant. When owner Brandon “Zeke” Roberson asks him what he’s doing, the man runs off. Roberson’s wife, Julie, thinks it’s suspicious enough that she makes a note of it on the restaurant office’s calendar: “Very strange acting man. Ran off when Brandon asked why he was taking pictures outside."

Only later do the businesses realize that the investigator works for DirecTV, which then demands huge payments for unpaid back bills from what are often small and struggling companies:

"The man is a fraud investigator for DirecTV, sent to find out if the Robersons are TV signal thieves. Did they sign up for a residential TV account but use it at their commercial establishment? In June, DirecTV cuts off the restaurant’s service. Then DirecTV’s collection lawyers notify the Robersons that they owe $15,000 in back bills. It’s the darkest day in the restaurant’s history. So much so that the couple have to close the place to catch their breath."

Their lawyers dig in only to find this is a pretty common occurrence nationwide, citing "hundreds" of similar occurrences -- something seemingly supported by this latest class action. While it's possible that poorly trained subcontracted installers are playing a role in not adequately informing businesses of their options (one installer admits as much), DirecTV consistently decides to pursue massive penalties anyway. And AT&T, which bought DirecTV for $69 billion last year, isn't exactly trying hard to make things right, informing the media this week that this is just an issue of "basic fairness":

"This is a matter of basic fairness for all of our customers,” AT&T said to FierceCable in a statement. “Businesses that are not paying commercial rates for programming are taking unfair advantage of neighboring businesses that do. We are confident these claims will be rejected."

So yes, it's just "basic fairness" to sell a business one class of service, then turn around and demand they need to shell out $15,000 because your salespeople and installers are at worst part of a plan to defraud paying consumers, and at best clueless about the product they're selling.

Filed Under: business, class action, nfl sunday ticket, residential, rico, satellite tv, shakedown
Companies: at&t, directv

New Jersey Man Files Lawsuit Over Pokemon Go After A Few Players Politely Knocked On His Door

from the horrible-pain-and-suffering dept

Since Pokemon Go launched last month, we've seen an endless stream of players oddly forget that "augmented reality" doesn't mean the rules of traditional reality no longer apply. Players have spent the last month playing the game in some admittedly "inappropriate" places, while wandering in and out of private property or unsafe areas in a quest to capture virtual monsters. This did, as you might expect, involve a slight learning curve for the nation's police departments as they slowly figured out what augmented reality was:Apparently fed up with the phenomenon (or just looking for a payday), a New Jersey man last Friday filed a lawsuit in California federal court against Niantic Labs and Nintendo. The 16-page complaint is quick to play up complaints about Pokemon Go players catching monsters in places like the Holocaust Memorial Museum, and says the game makers actively invited "unwanted incursions" on to private property when they populated reality with augmented reality monsters:

"Niantic has encouraged Pokémon Go’s millions of players to make unwanted incursions onto the properties of plaintiff and other members of the class—a clear and ongoing invasion of their use and enjoyment of their land from which defendants have profited and continue to profit."

The lawsuit is seeking class action status, an injunction and damages, disgorgement or other monetary relief. And it's no wonder; plaintiff Jeffery Marder's own experience with the game sounds utterly terrifying; involving five whole people politely knocking on his door to ask if they could capture monsters in his yard:

"At least five individuals knocked on plaintiff's door, informed plaintiff that there was a Pokemon in his backyard, and asked for access to plaintiff's backyard in order to 'catch' the Pokemon. Defendants have shown a flagrant disregard for the foreseeable consequences of populating the real world with virtual Pokemon without seeking the permission of property owners."

How the plaintiff survived such a harrowing ordeal is not spelled out in the complaint. Marder's lawyer and the law firm representing him (Jennifer Pafti of Pomerantz) have been busy on the class action front, having lead class actions against everyone from Fitbit to Etsy in recent years. For what it's worth, the guidelines for the game urge players to "not trespass, or in any manner gain or attempt to gain access to any property or location where you do not have the right or permission to be."

So while potentially annoying, there's no actual harm being done by the game manufacturers, who at least make an effort to remind players that the rules of reality still apply in augmented reality games. Either the players are trespassing, harassing others and violating the law here in the real world -- or they aren't. There's (clearly) no law prohibiting people from being annoying or stupid, and while Mr. Marder's experience of having five people politely knock on his door certainly must have been traumatizing, it's a stretch to suggest Niantic and Nintendo are actively encouraging public stupidity.

Filed Under: class action, pokemon, pokemon go, trespassing
Companies: niantic, nintendo

Sony Settlement Gives PS3 Owners $9 After Company Made Console Less Useful Via Firmware Update

from the just-renting dept

We've noted countless times how in the modern computing era, you don't really own what you think you own. You don't really own the music or books that can arbitrarily disappear on your devices, and you no longer really own a wide variety of hardware that can be dramatically changed (often for the worse) via firmware update months or years after purchase. If you're extra lucky, you'll shell out $300 for a piece of hardware that one year later simply won't work at all. With intelligent automobiles and the rise of the internet-of-not-so-smart things, that's more true now than ever.

Case in point: back in 2010 we noted how Sony issued several firmware updates for its Playstation 3 gaming console that effectively made the console less useful. One specifically (PS3 software update 3.21) removed the console owner's ability to load alternative operating systems like Linux. But tinkerers being tinkerers, some users found ways to use the feature to expand the console's functionality in all kinds of creative ways. Fearing a loss of control and potential spike in piracy, Sony decided to make the console significantly less useful.

Sony was ultimately sued via class action for the decision. After six years of litigation, Sony has agreed to settle the dispute by doling out a whopping $9 to each console owner that bought a PS3 based on Sony's promises to provide "Other OS" functionality, and $55 to each PS3 user that managed to get Linux running on the console. Like most class actions it's the attorneys who'll reap the most benefits, Sony doling out $2.25 million in attorneys' fees for the lawyers who brought suit (though it's worth noting even this wouldn't be possible today thanks to TOS mouse print banning class actions and requiring binding arbitration).

Sony's lawyers at several points tried to claim that the update was "voluntary," refusing to acknowledge that users that refused to install the firmware couldn't actually use it for much of anything:

"...Sony said the update was voluntary. However, without updating, console owners couldn't connect to the PlayStation Network, play any games online, play any games or Blu-ray movies that required the new firmware, play any files kept on a media server, or download any future updates. Before the settlement, Sony argued that its terms of service allowed it to remove the Other OS feature and that the functionality wasn't that big of a deal for most console owners."

Part of the settlement requires that PS3 owners show "some proof of their use of the Other OS functionality" -- which after six years may not be all that easy for impacted users. While it's nice to see PS3 owners get a little something after six years of litigation, the overall trend in technology remains one where consumers can't tinker with the hardware they "own," can't be sure the hardware will adhere to day one marketing promises, have no guarantees that the gear will even work even one year down the line, and can't sue if what they own is intentionally downgraded or crippled by the manufacturer. Progress!

Filed Under: class action, firmware, linux, playstation 3, ps3, settlement
Companies: sony

Citizens On Terrorist Watchlist - Including A 4-Year-Old Boy - Sue Government For Violating Their Rights

from the a-database-fueled-by-faith-and-fear dept

A class-action lawsuit has been filed in Virginia challenging the government's terrorist watchlist. Eighteen plaintiffs -- including a 4-year-old boy who was placed on the watchlist at the age of 7 months -- claim their placement on the watchlist is discriminatory and has deprived them of their rights.

The government's super-secret watchlist for suspected terrorists is, for the most part, the end result of the collective hunches of hundreds of intelligence and law enforcement employees. Despite the lack of anything approaching evidence, people are shrugged onto the watchlist at an alarming rate. The lawsuit points out that only 16 people were on the government's "No Fly" list in 2001. By 2013, the list had 47,000 names on it.

The larger federal watchlist -- overseen by the Terrorist Screening Center, which approves nearly every nomination forwarded to it (98.96%) -- is even more comprehensive. According to the information the plaintiffs have obtained, this database is growing at the rate of 20,000 names per year.

Not all of the plaintiffs are forbidden from flying or leaving the country. All of them, however, have cut back on airline use as every plaintiff has been given the TSA's "SSSS" designation, which brands them (again, without any evidence) as suspected terrorists. Because of their watchlisting, the plaintiffs are routinely subjected to extra scrutiny when traveling -- including detentions that can last for hours.

For others on the list, it's even worse. Once out of the county, all bets are off.

On December 20, 2010, Mr. Gulet Mohamed arrived at the Kuwait International Airport to renew his visa, just as he had done every three months since he arrived in Kuwait.

After an abnormally long wait of several hours, Mr. Mohamed contacted his brother in Virginia via email to inform him that the visa process was taking longer than usual. This is the last communication anyone received from Mr. Mohamed for more than a week.

While at the airport, two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport

During Mr. Mohamed's abduction, he was repeatedly beaten and subjected to severe torture by his interrogators. Mr.Mohamed's interrogators struck him in the face with their hands regularly and in Mr. Mohamed's estimate more than a hundred times. The interrogators whipped his feet and forced by his interrogators to stand for prolonged periods of time. At one point, the interrogators threatened to run currents of electricity through Mr. Mohamed's genitals. In another instance, Mr. Mohamed's arms were tied to a ceiling beam and left in that position until he lost consciousness.

Even while in the US, plaintiffs on the watchlist have been subjected to lengthy detention in holding cells, had their electronic devices seized and taken to nearby CBP or FBI offices to be examined, and pressured to become government informants in exchange for the "privilege" of boarding airplanes.

The lawsuit also notes that despite the recent ruling that the redress program for the government's "no fly" list is unconstitutional, the alterations made are still far from adequate. It also points out that the government has disingenuously been "delisting" people whenever challenged, rather than risk having its hunch-based nomination process subjected to additional judicial scrutiny.

On top of that, the lawsuit points out that the nomination process itself is highly suspect. Nominations appear to be based on race, religion and protected First Amendment activity, rather than any suspicion of involvement in terrorism. In addition, nominations to the watchlist also appear to be based on a presumption of guilt by association -- if one family member is nominated and placed on the list, it's a safe bet that anyone related to that member will be listed shortly thereafter.

The plaintiffs are asking the court to examine a multitude of Constitutional violations stemming from the government's abuse of its terrorist watchlists. If this suit is granted class status, it will make it that much harder for the government to simply delist plaintiffs and hope the legal challenge goes away.

[Public shaming time: this is being reported everywhere thanks to the Associated Press, which can't be bothered to provide any of its millions of readers with an actual copy of the filing. Techdirt may not have as many resources as AP, but it does know how to navigate PACER and make court filings available to its readers.]

Filed Under: class action, virginia, watch list