Texas Legislature Says You Can't Teach About Racism In Schools, But Social Media Sites Must Host Holocaust Denialism

from the these-things-might-be-connected dept

Everything is bigger in Texas, even the act of unconstitutional spitting on the 1st Amendment. We've already talked about the blatantly unconstitutional bill, HB20, that picks up where Florida's already-declared-unconstitutional bill leaves off, and makes it even worse. Well, that bill was voted on Friday and Texas Republicans approved it by a vote of 76 to 44.

But, as Adam Kovacevich noted on Twitter, some Democratic legislators wanted to make sure that the Republicans supporting such a gross infringement of the 1st Amendment were on the record for what they supported. So they introduced amendments to carve out the "must carry" rules for Holocaust denialism, terrorist content, and vaccine disinformation. And Republicans made sure to reject all three amendments, thereby explicitly admitting that with their bill they want to make sure that websites are forced to carry vaccine disinformation, terrorist content, and Holocaust denialism.

Now, to be clear, all three of those things are (mostly) protected under the 1st Amendment. But so is the right for a website to remove them and not be associated with them. Anyway, 73 Texas legislators said that websites should not be able to takedown "vaccine misinformation." Literally, that's what they voted against:

And, reading the amendment on terrorist content, it appears that no website will be allowed to remove ISIS-promoting content any more, which is an interesting choice by Texas Republicans.

And then there's the Holocaust denialism bit. Social media sites will have to include it as well. I'm kind of surprised that the legislators introducing this amendment didn't also do one explicitly about "critical race theory." Now that really would have tested things. After all, this very same Texas legislature that, earlier this year, passed an equally unconstitutional bill that says teachers in Texas can't openly talk about America's racist past.

And, I guess that is at least consistent. You must post stuff denying the holocaust, but suggesting that there is systemic bigotry? Well, that's beyond the pale.

Filed Under: 1st amendment, content moderation, critical race theory, free speech, hb20, holocaust denial, racism, social media, terrorists, texas

Texas Legislature Has Another Ridiculous And Unconstitutional Content Moderation Bill; Say Goodbye To Email Filters

from the it-does-what-now? dept

You may recall last month we wrote about how the Texas legislature -- even after seeing a similar Florida bill go down in the flames of Constitutional fire -- decided to launch a special legislative session solely to focus on passing culture war legislation that plays well with ignorant voters. The bill we saw last month was in the Senate and was SB5. Now there's another bill in the House called HB20, and it's really, really dumb.

First, it tries to just outright declare social media websites common carriers, despite them possessing basically none of the characteristics of a traditional common carrier. As a side note, I find it funny how Republicans these days are obsessed with this idea of randomly declaring companies "common carriers," as they spent decades fighting against any attempt to call broadband companies common carriers, and insisting that common carrier concepts were the root of socialism or something. But, apparently, when it comes to culture wars, things like principles, consistency, and just basic common logic go out the window in favor of nonsense.

Incredibly, this bill doesn't just talk about social media -- but sweeps up email services as well. Hope you enjoyed having email filters, because Texans, you can kiss those goodbye. The legislature thinks that not forcing junk you don't want into your account violates the spammer's rights apparently. I only wish I were joking, but an actual person in a legislature put this nonsense in a bill:

IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED. An electronic mail service provider may not intentionally impede the transmission of another person ’s electronic mail message unless:

(1) the provider is authorized to block the transmission under Section 321.114; or

(2) the message contains a computer virus, as defined by Section 33.01, Penal Code, obscene material, material depicting sexual conduct, or material that violates other law.

Now, 321.114 is Texas's anti-spam law, so there's a weird contradiction here. You can't block messages... except if you think it's spam. That'll be fun to sort out in court. Of course, there are all sorts of reasons for filters that have nothing to do with spam. I get a ton of email, so I use a special filtering service that routes my mail to different boxes -- including sending certain PR emails straight into the trash. As I read this bill, that would no longer be allowed in Texas.

And this includes monetary fines. So the PR folks who are mad that I never read their emails could sue for $10 for each message "unlawfully impeded" and $25,000 for each day that their emails are so impeded as well.

I mean, seriously, what the fuck does the Texas legislature think its doing here, trying to effectively ban email filtering?

Anyway, the rest of the bill is the usual garbage -- demanding a bunch of busywork about clearer explanations of terms of service and transparency reports, while making it possible for the Texas Attorney General to sue a website if it moderates in a way the Attorney General believes is unfair (hey, that's unconstitutional!).

The whole thing is garbage that is better off used for kindling in the next Texas ice storm, not as an actual bill. It would be an absolute nightmare for social media and email providers. And for what? Because some ignorant fools think they're being targeted for their edgy ideas, when the reality is that some websites just don't want to deal with assholes? Texans, stop being babies, and grow up.

Filed Under: 1st amendment, content moderation, email, section 230, social media, texas

Texas School District's Facial Recognition System Capable Of Capturing A Single Student's Image More Than 1,000 Times A Week

from the Panopticon-ISD dept

Facial recognition tech is making its way into schools, subjecting minors to the same tech that still hasn't proven its worth in the adult world. Like many other surveillance encroachments, this acquisition and deployment was prompted by violence and fear.

Alfred Ng of The Markup has obtained documents detailing a system in use in some Texas schools, one acquired as a potential answer to a uniquely American existential threat.

The school district originally purchased AnyVision after a mass shooting in 2018, with hopes that the technology would prevent another tragedy. By January 2020, the school district had uploaded 2,967 photos of students for AnyVision’s database.

This seemingly small number only covers a few months of use by the Santa Fe (Texas) Independent School District. Prior to its official rollout, the district ran a short test using an even larger set of photos.

With more than 5,000 student photos uploaded for the test run, AnyVision called the results “impressive” and expressed excitement at the results to school administrators.

“Overall, we had over 164,000 detections the last 7 days running the pilot. We were able to detect students on multiple cameras and even detected one student 1100 times!” Taylor May, then a regional sales manager for AnyVision, said in an email to the school’s administrators.

It seems like the perfect tool to track students individually as they go about their school day. The 1,100 hits for a single student is considered a sign of the software's effectiveness, something administrators seem unhealthily enthusiastic about.

And that's not all the district did with its new tech. It also lent it to local law enforcement officers who were trying to identify a suspected drug dealer they believed was a student. The school's cops contacted AnyVision which uploaded the provided photos and ran it against images captured by its system.

The company says the software is watchlist-based, limiting users to targeting persons of interest. Private retailers use it to keep shoplifters and other criminals out of stores. Schools can target suspected sex offenders by using publicly available mugshots from law enforcement databases.

But this trial run suggests the district isn't interested in limiting itself to watchlists. The user guide [PDF] obtained by The Markup makes it clear the software can log all faces that pass by equipped cameras. It's this kind of broad collection that enables more than 100,000 "detections" in a single week and allows students to be pinpointed 1,000 times during a five-day school week.

There are controls available in the software, but it's not clear the district is using any of them.

The software offers a “Privacy Mode” feature in which it ignores all faces not on a watchlist, while another feature called “GDPR Mode” blurs non-watchlist faces on video playback and downloads. The Santa Fe Independent School District didn’t respond to a request for comment, including on whether it enabled the Privacy Mode feature.

As for AnyVision, it says hey, it's just the provider.

“We do not activate these modes by default but we do educate our customers about them,” AnyVision’s chief marketing officer, Dean Nicolls, said in an email.

This lack of clarity or comment suggests the district is using the tech for all-purpose surveillance rather than utilizing it in the targeted fashion idealized in public statements and marketing brochures. The public statements by the district's board claim there's no invasion of privacy here, just another layer of protection. While the first part of the statement may be technically true given the lack of an expectation of privacy on school grounds, the latter is much more difficult to quantify as a justifiable offset for always-on surveillance.

Filed Under: anyvision, facial recognition, schools, surveillance, texas

Texas Legislature Sees Florida's Social Media Bill Go Down In Unconstitutional Flames; Decides 'We Can Do That Too!'

from the seriously,-guys? dept

The Republican grievance culture wars about the internet are never ending. The Grand Old Party -- which once presented itself as believing in private property rights, keeping government out of business, and mocking "snowflakes" for playing victim all the time -- has shown its true colors as being for everything it previously insisted it was against. As we noted earlier this year, a bunch of states with Republican controlled legislatures and governors have been proposing blatantly unconstitutional bills to try to prevent social media companies from moderating disinformation and propaganda. Utah was the first state to pass such a bill, but Governor Spencer Cox wisely vetoed it, noting the Constitutional concerns.

Next out of the gate was Florida, where Governor Ron DeSantis chose poorly, signing the bill that was thrown out last week for being blatantly unconstitutional under basically any standard of review. As we've noted, this is all performative nonsense, playing to a base that wants to insist it's the aggrieved victims, because sometimes when they violate a website's policies, they face consequences.

Incredibly, though not surprisingly, Texas legislators have looked at Florida's giant constitutional mess of wasted taxpayer funds and said, "yeah, let's do that!" Earlier this year, Texas proposed another awful social media content moderation bill, but the legislative session ended without it being voted on. Rather than move on to dealing with actual problems, Texas launched a special legislative session with a long list of culture war grievances -- including the social media bill.

And so the bill has be re-introduced and it's arguably even more blatantly unconstitutional than the Florida bill. Most of the first part of the bill is just creating a ton of silly and wasteful compliance paperwork -- requiring social media websites to do a lot more to actually moderate content on their site, including having someone people can call, having an official appeals process, and explaining to people in exact terms why they were moderated (this gambit is a favorite of trolls and assholes, who want this information solely to disingenuously insist that they didn't break the rules, or to insist that others who broke similar rules were treated differently, usually by removing any and all context from those decisions).

But then the bill veers into even more ridiculous territory. First, it defines "censorship" to mean things that are clearly not censorship. Even if you disagree with the basic premise that moderation is not censorship, the Texas bill defines "censorship" so broadly to make the term meaningless:

"Censor" means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.

De-monetizing is censorship? De-boosting is censorship? In what world? I mean, Fox News refuses to put me on the air to express my views about their propaganda. Is that censorship? The bill does exempt news organizations, but still. Under this bill, it seems that search ranking is censorship. After all, whoever is ranked below the top spot has been "de-boosted" and not provided "equal access or visibility." I can't wait until I can sue Google for not putting Techdirt at the top of every search!

The bill then tries to prohibit its definition of "censorship" for viewpoints.

CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user ’s expression, or a user ’s ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression or another person’s expression; or
(3) a user’s geographic location in this state or any part of this state.

So, you cannot ban Nazis any more. Or bigots spewing hatred. Sounds great, Texas. I mean... actually, sounds totally blatantly unconstitutional, and a clear waste of Texas taxpayers money, as you will have to go to Court and defend this law that will easily be tossed out as unconstitutional. But, who cares about that when there's a culture war to fight, and an opportunity to whine about how you're the victim again?

Filed Under: 1st amendment, censorship, content moderation, florida, section 230, texas, transparency

Texas Supreme Court Completely Confuses Section 230, Makes A Total Mess Of FOSTA

from the gotta-love-those-state-courts dept

So, this is... not great. Last year we wrote about a ridiculously bad ruling in Texas regarding a string of what certainly appear to be vexatious lawsuits that try to blame Facebook for sex trafficking. Texas's Supreme Court has now made its ruling on the matter and... it completely upends the limits of FOSTA by literally ignoring what the law explicitly says, and insisting it must mean something different. It is one of the strangest rulings I've ever seen.

The key issue is that Facebook sought a writ of mandamus, basically asking the Court to say "these lawsuits can't go forward because of Section 230." But that apparently requires the Justices on Texas's Supreme Court to read Section 230, as amended under FOSTA, and understand what it actually says. However, Justice Jimmy Blacklock apparently couldn't be bothered to do that. You can kind of get a sense of where this is going from the opening:

We do not understand section 230 to “create a lawless no-man’s-land on the Internet” in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking. Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157, 1164 (9th Cir. 2008) (en banc). Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking. Congress recently amended section 230 to indicate that civil liability may be imposed on websites that violate state and federal human-trafficking laws. See Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), Pub. L. No. 115-164, 132 Stat. 1253 (2018). Section 230, as amended, does not withdraw from the states the authority to protect their citizens from internet companies whose own actions—as opposed to those of their users—amount to knowing or intentional participation in human trafficking.

I mean, it's true that Section 230 does not "create a lawless no-man's-land on the Internet." What it does is say that the law applies to the party actually breaking the law and not to the tool or service that they used to do so. But the end of the paragraph is already a bit confused about how FOSTA works, so that's a bad omen. Things are going to get silly in this ruling.

From there, Blacklock spews some nonsense about how Section 230 is not clear -- which is simply not true at all. Indeed, right after saying it's not clear, he admits that basically all the courts have decided to read Section 230 and promises that his court won't go against those rulings -- even though that's exactly what he's about to do. There's a long digression about Justice Thomas' random musings on Section 230 -- which go against what every other court has decided -- and then admits that (again) this court shouldn't go against what all the courts have actually said about Section 230, which disagree with Thomas' random unbriefed musings.

The ruling does reject some of the outlandish arguments from the plaintiff, trying to say that you can get around Section 230 with negligence and product liability claims. It correctly notes that those are in fact barred by Section 230.

It's then on page 23 that the ruling completely runs off the rails. At issue: does Section 230 pre-empt Texas' state laws regarding sex trafficking in civil cases like these. The obvious and only answer is "yes, it absolutely does." This isn't even remotely up for debate because this very issue was discussed and debated in the run-up to FOSTA. Some of the original FOSTA proposals included opening up Section 230 so that state sex trafficking laws would not be pre-empted by 230 -- but as many people pointed out, that would open up quite a mess, as such laws are drastically different in every state, and would create a massive loophole for mischief in Section 230. So, instead, Congress clearly and explicitly limited FOSTA to say that Section 230 would no longer apply to federal sex trafficking laws in civil cases. It's pretty clear from the text that was added to Section 230 in FOSTA:

(5)No effect on sex trafficking law

Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

(A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

You see how it specifically names 18 USC 1591? That's because that's the federal sex trafficking law. And, again, this was added explicitly after debate in Congress that included some proposals that would apply FOSTA broadly to all state sex trafficking laws -- and that idea was rejected by Congress -- and the law was written to clearly say it only referred to federal sex trafficking law.

But Justice Blacklock ignores all of that, and rather than looking at what the law actually says, notes that because the Plaintiff reads the law wrong, there's an open question here.

Both parties argue that FOSTA’s changes to section 230 support their positions. As Facebook understands FOSTA, the 2018 amendments carved out particular causes of action from the scope of what section 230 otherwise covers. These carved-out claims include a civil action under 18 U.S.C § 1595 and certain state criminal prosecutions but not civil human-trafficking claims under state statutes. Although a state-law claim under section 98.002 looks much like the federal cause of action created by section 1595, the similarity does not transform Plaintiffs’ statutory claims into suits “brought under” section 1595. In Facebook’s view, Congress’s “meticulous . . . enumeration of exemptions . . . confirms that courts are not authorized to create additional exemptions.” Law v. Siegel, 571 U.S. 415, 424 (2014).

Plaintiffs disagree. They concede that FOSTA does not explicitly except civil humantrafficking claims under state statutes from section 230’s reach. But FOSTA’s silence in that regard does not answer whether such claims fell under section 230 to begin with. According to Plaintiffs, the effect of FOSTA was not, as Facebook assumes, to carve out discrete claims that would otherwise have been barred by section 230. Instead, FOSTA reflects Congress’s judgment that such claims were never barred by section 230 in the first place. Under this reading, FOSTA’s “exception” to section 230 immunity for federal section 1595 claims is not merely an exception. Instead, it is Congress’s announcement of a rule of construction for section 230(c), under which human-trafficking claims like those found in section 1595 were never covered by section 230. In Plaintiffs’ view, by indicating that Backpage was wrong and that section 230 should not be interpreted to bar federal civil statutory human-trafficking claims, Congress must also have been indicating that analogous state civil statutory human-trafficking claims likewise are not barred. After all, there is no conceivable difference between the two categories of claims with respect to whether they “treat” defendants as “speakers or publishers.”

But... that's literally not even remotely true. FOSTA was absolutely to carve out discrete claims that would have otherwise been barred by Section 230. That was what the entire debate was about. The Plaintiff's lawyer is making shit up, whole cloth.

And Justice Blacklock bought it. This is embarrassing.

For two reasons, we find Plaintiffs’ view of FOSTA’s impact more convincing. First, what Facebook calls FOSTA’s “exceptions” to section 230 are not introduced with statutory language denoting carve-outs (such as “notwithstanding” or “except that . . .”). Instead, Congress instructed that “[n]othing in [section 230] . . . shall be construed to impair” certain claims. The U.S. Supreme Court, in interpreting a materially identical proviso, declined to view it “as establishing an exception to a prohibition that would otherwise reach the conduct excepted.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 582 (1988). Rather, the language in question “ha[d] a different ring to it.” Id. A clause stating that the provision to which it applies “‘shall not be construed’ to forbid certain [activity],” was, in the Court’s view, better read as “a clarification of the meaning of [the provision] rather than an exception” to its general coverage. Id. at 586. The Court agreed with the Eleventh Circuit, which had also understood the “shall not be construed” clause as “explain[ing] how the [section] should be interpreted rather than creating an exception” to it. Fla. Gulf Coast Bldg. & Constr. Trades Council v. NLRB, 796 F.2d 1328, 1344 (11th Cir. 1986). Other courts have construed similar statutory language in the same way.

Following this line of reasoning, we do not read FOSTA’s instruction that “[n]othing in [section 230] . . . shall be construed to impair or limit any . . . civil action brought under [18 U.S.C §] 1595” to merely except section 1595 claims from the scope of what section 230 would otherwise cover. Rather, the FOSTA proviso announces a rule of construction applicable to section 230. Congress’s mandate that section 230 not “be construed” to bar federal civil statutory human-trafficking claims necessarily dictates that section 230 must not be construed to bar materially indistinguishable state civil claims either. The elements of the two claims are very similar. If liability under federal section 1595 would not treat defendants as “speakers or publishers” within the meaning of section 230, it is hard to understand how liability under Texas’s section 98.002 could possibly do so.

As lawyer Ari Cohn notes, none of this makes any sense at all. The whole point of FOSTA was not a "rule of construction" to explain general ideas on what Section 230 would and would not apply to, but a very specific carveout for federal sex trafficking laws. It's in the freaking statute. They wouldn't name the law if that wasn't what they were specifically carving out.

Then, it gets worse. Justice Blacklock reads way more into the "sense of Congress" part of FOSTA than is reasonable.

Second, another textual indicator favors Plaintiffs’ understanding of FOSTA’s effects. The “Sense of Congress,” enacted as part of FOSTA’s text, was that “section 230 of the [CDA] was never intended to provide legal protection to . . . websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” Pub. L. No. 115-164, § 2. If section 230 was “never intended” to immunize defendants against claims brought pursuant to 18 U.S.C § 1595, it stands to reason that the provision also never afforded immunity from analogous state-law causes of action....

That is completely misreading what Congress was saying here. They were explicitly carving out federal sex trafficking laws from Section 230 because (they claim) that the original Section 230 went too far in carving out that law. And that law explicitly. Because they name that law. And, it's not that they didn't think about state sex trafficking laws. Again, they did so. There was vigorous debate on that very point. And, the next two lines in the law both mention state sex trafficking laws, and when they may be used in criminal prosecutions regarding sex trafficking against an internet service provider. In other words, Congress wasn't just giving some rambly "oh all sex trafficking laws are exempt from 230" kind of message. It explicitly says that federal sex trafficking law is exempt from 230 for civil suits, and some aspects of state laws can be exempt if they match federal law in criminal cases.

It's impossible to read that and say "oh Congress actually meant that state laws were always carved out from Section 230 civil cases." If that were true, then why would it explicitly carve them out for criminal cases in the very next line? It's mind-bogglingly ridiculous that this is how Justice Blacklock read the law.

As for the whole "sense of Congress" point, that's basically meaningless, and Facebook tried to argue that, but Justice Blacklock says that you can use it if there's ambiguity. But there's no ambiguity in what the law says. Facebook pointed to what the law says. The plaintiff made up some nonsense argument. You don't just throw up your hands and say "well, there are two different ideas here, so it's ambiguous." It's not.

Even more bizarre then, is the conclusion, in which Justice Blacklock says it's up to Congress to modernize the laws -- which he just totally reinterpreted on his own.

The internet today looks nothing like it did in 1996, when Congress enacted section 230. The Constitution, however, entrusts to Congress, not the courts, the responsibility to decide whether and how to modernize outdated statutes. Perhaps advances in technology now allow online platforms to more easily police their users’ posts, such that the costs of subjecting platforms like Facebook to heightened liability for failing to protect users from each other would be outweighed by the benefits of such a reform. On the other hand, perhaps subjecting online platforms to greater liability for their users’ injurious activity would reduce freedom of speech on the internet by encouraging platforms to censor “dangerous” content to avoid lawsuits. Judges are poorly equipped to make such judgments, and even were it otherwise, “[i]t is for Congress, not this Court, to amend the statute if it believes” it to be outdated.

Except, uh, Congress did update the law in 2018, and that's the part that's being debated here -- and they updated it explicitly to say that civil suits only are exempted for federal sex trafficking law, and Justice Blacklock ignores that and throws up his hands, insisting that Congress really meant that state laws were never covered by 230, which is just ahistorical nonsense.

Of course, the case is not done with yet, and Facebook might still win (it should) on the merits as the case moves forward, but this just cut a giant hole in 230, and lawyers like the one driving this case are likely going to rush into that hole to file a ton of frivolous and vexatious lawsuits against all sorts of websites, claiming they violated sex trafficking laws. In theory, Facebook could appeal this to the Supreme Court, but that seems incredibly risky these days.

The real irony, of course, is that the only reason FOSTA became law in the first place was because of Facebook's strong support of the law, and now look how that's turned out?

Filed Under: annie mcadams, civil laws, civil lawsuits, exemption, federal law, fosta, jimmy blacklock, section 230, sex trafficking, texas
Companies: facebook

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit Strips Immunity From Cops Who Ended A Mental Health Crisis By Restraining A Man To Death

from the unfortunately-it-took-a-death-to-obtain-this-result dept

The Fifth Circuit is the worst place to bring a civil rights lawsuit against law enforcement officers. But that may slowly be changing, thanks in part to the Supreme Court, which has played its own part in making qualified immunity an almost insurmountable obstacle in civil cases. Over the past few months, the Supreme Court has reversed and remanded two cases handled by the Fifth Circuit Court of Appeals, ruling that the lower court's extension of qualified immunity was the incorrect conclusion.

This case [PDF] may reflect the Supreme Court's qualified immunity attitude adjustment. Or it just may be that there's no excusing what happened here: a man suffering a mental health crisis being helped to death by San Antonio (TX) police officers.

Jesse Aguirre was reported to dispatchers by drivers on a heavily traveled eight-lane highway. Drivers noted Aguirre seemed to be "mentally disturbed" and possibly in danger of being injured or killed since he was walking on the thin media strip dividing the eight lanes of traffic. Officers arrived at the scene and things just kept getting worse for Aguirre. Fortunately, it was all documented by the dashcam on an officer's vehicle.

Here's the first "offer" of "help" Aguirre received from a police officer:

Officer Gonzales was the first to arrive. She left her vehicle blocking the left-most eastbound lane and approached Aguirre on foot with her firearm pointed at him, ordering him to “come here” and threatening, “I’m going to shoot you, m-----r-f----r.”

Lovely. Gonzales continued to walk after Aguirre, joined by Officer Morgan (also pointing a gun) and Mendez (pointing a Taser). Aguirre then stopped and placed his hands on the concrete median barrier. All three officers rushed Aguirre, grabbing him and placing him in handcuffs. According to the video, Aguirre did not "visibly resist" being handcuffed. The officers then tossed the handcuffed man over the cement barrier, causing him to land on his head.

More officers arrived. And they apparently felt the unresisting man needed more "assistance" dealing with his apparent mental health crisis.

After one or two more officers arrived, they assisted in moving Aguirre from the car hood to the ground onto his stomach next to the median with his hands still cuffed behind him. The video does not show that Aguirre resisted during this maneuver, but instead that he stumbled with the Officers toward the median. After Aguirre was placed prone on his stomach, Officer Gonzales pushed his legs up and crossed them near his buttocks and kneeled forward on Aguirre’s legs, holding them near Aguirre’s bound hands in a hog-tie-like position. Officer Mendez knelt with one knee on the ground and the other on Aguirre’s back, later changing position to hold Aguirre’s shoulders and cheek down against the pavement with his hands. Officer Mendez testified that he was using part of his body weight to hold Aguirre down, thus applying pressure to Aguirre’s back and neck. Officers Morgan and Arredondo then joined Gonzales and Mendez, placing their hands on Aguirre’s arms and back to hold him prone in the maximal-restraint position.

More officers arrived, including a supposed "medical tech officer" (Benito Juarez) but there's nothing on video suggesting he handed out any medical advice or paid any attention to the handcuffed man's condition. One officer noted Aguirre's lips were turning blue but chalked that up to "drug use," rather than the ongoing asphyxiation that was actually occurring.

Aguirre remained hogtied face-down on the pavement for more than five minutes. At some point during that time he stopped breathing, but it was only noticed by the large group of officers after he had spent five-and-a-half minutes in that position. Once they realized he had stopped breathing, the officers turned Aguirre over and the "medical tech officer" jogged off to get some medical equipment.

But no one really seemed to care.

At this point, the Officers appear to be in good spirits; according to the Plaintiffs, in the dashcam videos, Juarez can be seen smiling as he jogs to his vehicle, and several other Officers likewise appear to be smiling and laughing as they await Juarez’s return around Aguirre’s body. Juarez returned at a walk with his medical bag approximately one minute after he left.

It wasn't until more than four more minutes had elapsed that any officer attempted to perform CPR. But it was too late. Aguirre was dead. The autopsy report confirmed what the dashcams had caught: the restraint method had asphyxiated Aguirre. The conclusion: "due to restraint by police, this case is classified as a homicide."

Despite this direct link between their actions and Aguirre's death, the officers wanted qualified immunity. The court refuses to extend it. The amount of force used to restrain Aguirre was excessive. The situation did not call for maximal restraint of a cooperative subject, especially given the criminal act (which is still a stretch) at the center of it.

Defendants do not attempt to show that the severity of any crime committed by Aguirre weighed in favor of the level of force used by the Defendant Officers. In fact, defendants do not articulate any criminal investigatory function justifying their actions, and instead rely on the existence of a threat to the public safety—namely, the potential danger to motorists and himself that Aguirre’s mental disturbance and walking along the median of the eight-lane highway caused. At most, the crime at issue was a traffic offense.

[...]

This factor thus weighs against it being reasonable or necessary to place Aguirre in the maximal-restraint position for over five minutes.

And the cops can't swing the court their way by providing testimony that was often directly contradicted by their own dashcam recording.

In their declarations below, the Defendant Officers stated that Aguirre was resisting and they feared that he would break away and run into traffic, causing a dangerous collision and potentially dragging one of the Officers with him. But the Plaintiffs’ summary judgment evidence and this court’s own review of the video evidence at minimum raise genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting or even physically capable of posing an immediate safety threat that would justify the Defendant Officers in using extraordinarily dangerous force by placing and holding him in the prone maximal-restraint position that led to his death.

The court also points out that the fact the officers suspected Aguirre had recently used drugs should have resulted in more caution being taken while restraining him, rather than less. Even the go-to excuse for in-custody deaths -- "excited delirium" -- is supported by plenty of documentation that shows hog tying suspects or holding them down with body weight increases the risk of death.

But at the end of it, the thing that undoes these officers' planned exit from this lawsuit is their own video. The court brings it up again in support of its qualified immunity denial.

Although the Officers presented their own version of events that included claims of Aguirre’s resistance—including, for example that he “was resisting and trying to pull away from” the Officers while walking near the westbound side of the median, “was still resisting” when placed on the hood of the car, and “continued to resist by shifting his body around and trying to break free” while pinned against the hood of the patrol car—these averments in contravention of what the police dashcam videos show do no more than reinforce that genuine disputes as to material facts exist at this stage of the litigation.

Clearly established enough, adds the Fifth, even without a case directly on point. The difference between "hog tying" and "maximal prone restraint" isn't enough to make it unclear to these "reasonable" officers whether the use of these nearly identical techniques in situations like this would be "excessive."

Whether or not the Supreme Court's recent hints nudged this in the right direction, at least the correct conclusion was reached: restraining someone to death -- especially an unresisting someone -- clearly violates their rights.

Filed Under: 5th circuit, jesse aguirre, mental health, police, qualified immunity, san antonio, texas

After 40 Years Of Being Wrong, Texas Rangers Finally Decide Hypnosis Isn't A Viable Investigative Technique

from the when-modern-policing-meets-your-crazy-aunt's-hobby dept

Never let it be said that cops are not open-minded.

Sure, everyone with a darker-than-white skin tone moving around in any part of the city deemed unsafe by the same people charged with keeping it safe are almost always considered de facto criminals, but cops are still very willing to explore alternate avenues when it comes to arresting and criminally charging people.

Let's take a look at cops and their willingness to suspend their disbelief. Anyone accused of a crime is inherently untrustworthy: guilty until proven innocent. This includes people they've killed for doing nothing more than, say, threatening to kill themselves. The only good criminals are those who are willing to work with cops. These criminals have reputations that are unassailable and cops are willing to fabricate the paperwork needed to keep assailing of their reputations to a minimum.

Cops and prosecutors have, for years, relied on "experts" who were often no better than YouTube conspiracy theorists. For years, law enforcement has said things like bite marks, hair samples… even mass-produced clothing should be admitted as damning evidence of criminal acts. And everyone indulged them.

We've finally reached the critical mass needed to turn criticism of cop means and methods into mobilization. Years after it should have been apparent this was abject bullshit, the Texas Rangers are finally abandoning an investigative "technique" that has done little more than propel the storylines of horror movies since its inception.

The Texas Department of Public Safety has ended the controversial practice of using hypnosis to investigate crimes.

A department spokesman said the hypnosis program ended in January 2021, more than forty years after its inception, because its officers are now relying on better investigative practices.

First: FORTY FUCKING YEARS? Really?

Second, "better investigative practices" would seem to be anything but this. A Ranger with a divining rod and a backpack full of healing crystals could presumably turn up better leads than this method -- one that, let's not forget, the Texas Rangers relied on for four decades.

And yet, the Rangers persisted. The last documented case didn't happen sometime during the Satanic Panic of the 80's (something else faith in hypnosis managed to make worse). It happened only months ago.

The Rangers used hypnosis to investigate an attempted kidnapping as recently as October 2020, just two months before the program was ended.

While there may be some therapeutic value to hypnosis, there's almost no evidence supporting the assumption that hypnotizing victims and witnesses will result in usable evidence. "This thing their brain said" should be considered so far removed from "hearsay" as to be completely inadmissible.

But while the Texas Rangers have finally decided to abandon hypnosis in favor of literally anything not so ridiculously stupid, doesn't mean other law enforcement agencies are following suit. The Rangers may have made the first move, but others are so sure it works they're not willing to give up this ultra-specious investigative method.

Even without the program, local police departments may still be using hypnosis to investigate crimes. More than 800 law enforcement officers statewide have been approved to use hypnosis as an investigative tool since the 1980s, and Dallas and Houston once boasted the most hypnotists on staff.

Can you even imagine making such a boast? It's like telling people you've got the most Tarot readers on hand for their fortune-adjacent law enforcement needs. Step right up and get your fortune told! Oh, sorry, the cards say you've committed some crimes or whatnot. Sometimes it just works out that way. Let's get you processed.

But the acolytes are having a hard time letting go of this bogus investigative technique, especially those who were getting paid to make the Texas Rangers dumber.

Marx Howell, one of the chief practitioners of police hypnosis in Texas, said he was not aware that the Department of Public Safety ended the program and expressed disappointment in the decision

“It is a viable investigative technique under certain circumstances in certain types of cases where you don’t have any other leads,” Howell told The News. “If DPS has stopped it, that will be a major effort to use hypnosis that has gone away.”

So, when you have no other leads, you just do whatever the fuck? Is that the thought process at Ranger HQ? Toss science out the window and scatter tea leaves on the breakroom table just because an investigation has been dead-ended? Jesus. That's worse than just plain sad. That's self-induced delusion so strong one wonders how many times Howell has stood in front of a mirror telling himself he's getting sleepy.

At least the Rangers have dumped this. Hopefully, other agencies will join them in abandoning a technique that offers almost zero investigative benefits but plenty of ways to deprive people of their rights and freedoms.

Filed Under: evidence, hypnosis, investigations, texas, texas rangers

Google's Efforts To Be Better About Your Privacy, Now Attacked As An Antitrust Violation

from the wait,-what? dept

We've talked a lot in the past about how almost no one seems to actually understand privacy, and that leads to a lot of bad policy-making, including policy-making that impacts the 1st Amendment and other concepts that we hold sacred. Sometimes, it creates truly bizarre scenarios, like the arguments being made by Texas's Attorney General in the latest amended antitrust complaint against Google.

As you'll likely recall, back in December, Texas's Attorney General Ken Paxton -- along with nine other states -- filed an antitrust lawsuit against Google. There were some bits in the laws that suggested some potentially serious claims, but the key pars were heavily redacted. Of the non-redacted parts there were really embarrassing mistakes, including claiming that Facebook allowing WhatsApp users to backup their accounts to Google Drive was giving Google a "backdoor" into WhatsApp communications.

That makes the latest amended complaint even more bizarre. It attacks Google for doing more to protect its users' privacy. As you remember, a couple weeks ago, Google noted that as it got rid of 3rd party cookies in Chrome, it wasn't going to replace it with some other form of tracking. This is, clearly, good for privacy. It is, also, good for Google, since it's better positioned to weather a changing ad market that doesn't rely on 3rd party cookies tracking you everywhere you go.

So the new amended complaint takes a move that is clearly good for everyone's privacy and whines that this is an antitrust violation.

Google’s new scheme is, in essence, to wall off the entire portion of the internet that consumers access through Google’s Chrome browser. By the end of 2022, Google plans to modify Chrome to block publishers and advertisers from using the type of cookies they rely on to track users and target ads. Then, Google, through Chrome, will offer publishers and advertisers new and alternative tracking mechanisms outlined in a set of proposals that Google has dubbed Privacy Sandbox. Overall, the changes are anticompetitive because they raise barriers to entry and exclude competition in the exchange and ad buying tool markets, which will further expand the already dominant market power of Google’s advertising businesses.

Google’s new scheme is anticompetitive because it coerces advertisers to shift spend from smaller media properties like The Dallas Morning News to large dominant properties like Google’s. Chrome is set to disable the primary cookie-tracking technology almost all non-Google publishers currently use to track users and target ads. A small advertiser like a local car dealership will no longer be able to use cookies to advertise across The Dallas Morning News and The Austin Chronicle. But the same advertiser will be able to continue tracking and targeting ads across Google Search, YouTube, and Gmail—amongst the largest sites in the world—because Google relies on a different type of cookie (which Chrome will not block) and alternative tracking technologies to offer such cross-site tracking to advertisers. By blocking the type of cookies publishers like The Dallas Morning News currently use to sell ads, but not blocking the other technologies that Google relies on for cross-site tracking, Google’s plan will pressure advertisers to shift to Google money otherwise spent on smaller publishers.

No good deed goes unpunished. Yes, it is true that Google's move will undoubtedly harm companies that rely on intrusive 3rd party cookies. But that's good for privacy. And it's funny that this is coming in the very same antitrust lawsuit that whines that one of Google's antitrust problems is that it snoops on WhatsAspp (when it doesn't). Here, Google is clearly taking a stand -- the same stand that Mozilla and Apple took earlier -- against creepy and problematic 3rd party cookies, and it gets spun by Texas's AG as an attack on "small advertisers."

I'm kind of curious what the AGs bringing this lawsuit are aiming for here. Yes, I get that the entire point is just to attack Google, but if they win, do they want to require Google to be worse about privacy? Because that's ridiculous.

The complaint does try to argue that Google's Privacy Sandbox isn't really about privacy, and that it's all a "ruse." It even (selectively) quotes an old EFF blog post that rightly calls out some of the problems with the Privacy Sandbox approach. But the EFF blog post is not -- as the amended complaint implies -- suggesting that Google should allow more 3rd party cookie tracking. It's just calling out some of the other problems of the Privacy Sandbox. No one is arguing that Privacy Sandbox is a panacea for privacy issues. And no one is arguing that Google is magically all "good" for online privacy -- indeed there are plenty of legitimate reasons to be concerned about Google's impact on privacy. But the announcement it made recently was, quite clearly, a step in the right direction for privacy, and while it may make life difficult for intrusive advertisers who rely on other methods of advertising, that's really on those advertisers to be better.

There are other things in these lawsuits that may be damning for Google and its practices. I'm still really interested in learning about the redacted sections, which might reveal actual bad practices. But, it's not encouraging at all that Texas's AG is taking a step towards better protection of user privacy as some sort of evidence of nefariousness -- and doing so in the very same complaint arguing that part of the reason Google violates antitrust laws is that it "violates the privacy" of Android users (via the WhatsApp backup feature).

Filed Under: 3rd party cookies, advertising, antitrust, ken paxton, privacy, privacy sandbox, texas, tracking
Companies: google