California Looking To Protect You From The Scourge Of Airlines Not Mentioning Privacy Policies You Don't Read

from the i-feel-so-much-safer dept

Back in October, we wrote about how California Attorney General Kamala Harris was threatening United Airlines over Twitter, because their mobile app apparently didn't prominently display the app's privacy policy. California has a silly law that requires privacy policies. Now, Harris has actually sued Delta airlines over the same thing. Of all the illegal things that Harris could be going after, is focusing on mobile apps that don't prominently display their privacy policy really the best use of her time and my taxpayer dollars?

The whole infatuation with privacy policies is, frankly, stupid. They do nothing to actually increase your privacy. Since the only thing they do is hold you to your own rules, they actually encourage companies to take your privacy less seriously, since to avoid possible liability, they're likely to craft privacy policies that aren't as strict. Furthermore, no one reads those things. Forcing companies to display a broadly written policy designed to limit their liability, which no one cares about and no one will read... just seems like a complete waste.

Of course, as we've discussed before, this is exactly what state Attorneys General do all the time. They pick some random issue they can grandstand about, and then pick on companies over those issues, putting all sorts of public pressure on them, solely for the purpose of generating headlines about how they're "protecting consumers" or some other bogus claim... and then they use those headlines for when they run for higher office. The Attorney General slot is quite frequently seen as a stepping stone to becoming governor, and so many AGs abuse the position with these kinds of legal threats and lawsuits almost entirely to be used as campaign fodder. It's sad and pathetic and does little to actually protect the public.

In Harris' press release about the lawsuit, she makes this silly claim: "Losing your personal privacy should not be the cost of using mobile apps, but all too often it is." But that's ridiculous. Just because Delta doesn't link to its privacy policy from the app doesn't mean that users lose their personal privacy.

The only encouraging thing here is that looking through the comments on the Ars Technica article linked above, they seem almost universally to be against Harris for filing such a silly and pointless lawsuit. Maybe, one day, we can hope that such pointless grandstanding is seen for what it really is: a cynical ploy to make an Attorney General look good in the press, rather than any legitimate legal issue.

Filed Under: california, kamala harris, mobile apps, privacy, privacy policies
Companies: delta

Gawker's Anti-SLAPP Victory Could Be Good For The Web - But Judge Refuses To Publish The Ruling

from the step-up,-california dept

A few months ago, Eric Goldman wrote about a good ruling by a California court to knock out a bogus defamation claim against blog site Gawker. There were a few interesting elements to the ruling, including that it used California's anti-SLAPP law, and that it was willing to look at the context of the use of certain words like "scam." But, most importantly, it noted the fact that the Gawker piece included numerous links/citations to sources, which meant that anyone could dig deeper to understand the details themselves.

The problem with the ruling is that, as good as it was, the court decided to issue it as an "unpublished" ruling, meaning that it has limited use as a precedent elsewhere. Goldman then sought to have the court revisit that decision and, instead, to fully publish the decision. Unfortunately, in a one line ruling, the court has now rejected that request (pdf):

The request for an order directing publication of the opinion in the above-entitled appeal is denied.

That's it. End of story. No explanation. No publication. That's really kind of ridiculous. What is the court afraid of? It made the ruling. Why not stand behind it, and make it easier for similar bogus cases to be quickly shot down by the courts?

Filed Under: anti-slapp, california, defamation, precedents

Judge Quickly (But Temporarily) Blocks New CA Law That Takes Away Anonymous Speech Rights

from the quick-response dept

So, we had just written about the unfortunate (if expected) news that voters in California had overwhelmingly passed a ballot measure which (among other things) would take away anonymous speech rights from anyone on the state's sex offender list (which could include things like people arrested for urinating in public, or consensual sexual activity between teenagers). That seemed both extreme and unconstitutional. We noted that we expected the law to be challenged, though I had assumed it might wait until the law was used. Instead, the EFF and ACLU immediately teamed up to challenge the law, arguing that it was unconstitutional:

"Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics," said EFF Staff Attorney Hanni Fakhoury. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."

And... before I could even finish writing about the challenge, the judge issued a temporary restraining order, blocking the implementation of the law.

In this case, the Court finds that Plaintiffs have raised serious questions about whether the challenged sections of the CASE Act violate their First Amendment right to free speech and other constitutional rights. In addition, the balance of hardships tips sharply in favor of issuing a TRO. Defendant Harris’s counsel represented to the Court that the State would be in no position to enforce the law until March 20, 2013. The harm to Defendants of a TRO therefore appears to be minimal. Plaintiffs, by contrast, would suffer the potential loss of their “ability to speak anonymously on the Internet,” which is protected by the First Amendment... Such “loss of First Amendment freedoms . . . unquestionably constitutes irreparable injury.” .... Additionally, the Ninth Circuit has “consistently recognized the ‘significant public interest’ in upholding free speech principles,” ..., and that “it is always in the public interest to prevent the violation of a party’s constitutional rights,” ..... The Court therefore finds that Plaintiffs have satisfied the standard for a TRO.

Of course, now the state will need to waste taxpayer money defending this awful part of the law. It would have been nicer if it had never been on the ballot in the first place.

Filed Under: california, free speech, sex offenders, temporary restraining order

California Proposition Outlawing Anonymous Internet Usage For Broadly Defined 'Sex Offenders' Passes

from the too-extreme dept

Yesterday, we wrote about a questionable ballot measure in California that, in an attempt to create harsher penalties for human trafficking, also included numerous problematic components, including banning anonymous speech for anyone on the sex offenders list -- which you can get on for a very broad list of offenses, many of which the public does not associate with being a "sex offender." As we noted, since the core argument in favor of the proposition is such an emotional item, and is well-intentioned, it was likely that the measure would pass -- and it did, with 80% of the vote. Unfortunately, you can now expect the internet provision to be abused -- and likely challenged in court, leading to a wasteful legal fight spending California taxpayer dollars to defend an almost certainly unconstitutional provision. Wouldn't it be nice if we could focus on actual problems instead of lumping in all sorts of other things?

Filed Under: anonymous speech, california, free speech, sex offenders

California Ballot Measure Will Likely Ban Anonymous Speech If You Were Arrested For Urinating In Public

from the that's-not-constitutional dept

Here in California, of course, we have a number of (often excessively confusing) ballot measures every election season, and this year is no exception. I've spent a fair amount of time going through the various ballot measures myself in determining how I'd vote on them, and it quickly becomes clear that -- as with so much in government -- the devil is in the details, and the details are often hidden or purposely shoved aside. Take, for example, ballot measure 35. The "summary" version of it sounds like something that many would support:

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

Human trafficking is certainly a big concern. However, there are a lot of details here. That "disclose Internet activities and identities" part is already a concern. And, many of us have heard the horror stories of how states put all sorts of people on "sex offenders" lists for things that aren't sex offenses -- things like urinating in public or (perhaps slightly more controversial) two teenagers engaging in consensual sexual activity.

It turns out that the internet stuff in this bill is massively problematic. Unfortunately, some "voter guides" completely ignore the issue. A popular California voting guide from KCET barely mentions the internet part of the measure, and positions it as something of a no-brainer to support. But, if you look at the details, they're pretty scary:

Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used. There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior. For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.

The LA Times posted a forceful editorial against the provision, noting that it's all about punching emotional buttons rather than a legitimate law enforcement issue:

It punches most of the usual emotional buttons, appealing to voters' sympathy for victims and disgust with perpetrators who are the closest thing the United States has to modern-day slavers. And in calling for longer sentences, it follows the same assumptions as other tough-on-crime initiatives born in fear or anger rather than thought: Punish people more severely and they will offend less. Merely by being on the ballot, the measure implies that the Legislature would not or could not deal with the issue.

That's false. Lawmakers became convinced in 2005 that state and federal laws dealing with kidnapping, extortion and other crimes were not keeping up with human trafficking, and they adopted a law that was painstakingly crafted with input from law enforcement, victims, advocates and others. That law has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged. Proposition 35 would subvert that work and substitute a web of poorly drafted laws that expand the sex offender registry, divert resources from victims and, most important, could not be adjusted to keep up with changing circumstances without yet another ballot measure.

The ACLU has stepped up and tried to remind people that it's likely unconstitutional in that it removes the right to speak anonymously over issues completely unrelated to any crime:

The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.

Unfortunately, because this is an emotional issue, it's likely going to pass, and then there's going to be a huge mess as it's put into practice, followed almost certainly by lawsuits challenging the constitutionality of the provision. Emotionally driven issues tend to make bad law, and it seems like this is no exception.

Filed Under: anonymity, california, free speech, human trafficking, sex offenders, social media

California Attorney General Uses Twitter To Threaten United Airlines With Possible Legal Action

from the pointless-privacy-policies dept

Can we just admit that laws requiring privacy policies are a dumb idea? They make almost no sense. No one reads them. And the laws requiring them don't require that you actually keep info private... just that you have one of those privacy policies that no one reads and no one cares about. The only ways you get in trouble are (a) if you don't have a privacy policy or (b) if you don't abide by your privacy policy. Thus, the basic incentive is to write a privacy policy that is opaque and which no one will read -- and which says "you have no privacy at all, we can do whatever we want with your data" so you could never violate it.

But grandstanding politicians see this as an easy and cheap way to be seen as "protecting the little guy" even though it does nothing along those lines. It appears that California Attorney General Kamala Harris may be jumping into the fray -- and bizarrely using Twitter to passive aggressively threaten United Airlines. In a tweet, she asks the company where its privacy policy is on its mobile app:

Fabulous app, @united Airlines, but where is your app’s #privacy policy? 1.usa.gov/SWGCTm

— Kamala Harris (@KamalaHarris) October 12, 2012

That link is to California's law that requires privacy policies. But, once again, we're at a loss to see what this does for actual privacy, if anything. If the app doesn't have a privacy policy, does that change how United Airlines uses people's data? Doubtful. Is anyone who uses the app actually reading the privacy policy? Doubtful. If they do, will they understand it? Unlikely. So, what does this kind of thing do? You'd think that there were, perhaps, more pressing things for the state to focus on rather than harassing companies on Twitter.

Filed Under: apps, california, kamara harris, privacy policy
Companies: twitter, united airlines

If You've Already Lost A SLAPP Suit, Perhaps Don't Threaten Someone For Writing About You Losing Your SLAPP Suit

from the just-saying dept

We've written about SLAPP (Strategic Lawsuits Against Public Participation) many times in the past -- and they're frequently about people using the legal system to try to silence someone who wrote something that portrays them in a way they don't like. Thankfully, California and a few other states have decent anti-SLAPP laws that allow such lawsuits to be tossed out fairly quickly. But those who file SLAPP lawsuits still quite frequently have a difficult time coming to grips with the fact that people can report factually on stuff that still makes them look bad. It appears we have one such case happening now (sent in by Tom), which may be leading up to the possibility of a rare double-SLAPP, in which someone potentially files a SLAPP lawsuit against someone who reported on them losing another SLAPP lawsuit. How meta would that be?

Let's take a step back. In May of this year, Steve Pond at TheWrap.com published an article about accusations being made against a San Francisco socialite Elisabeth Thieriot by film producer Raul Julia-Levy. The details aren't particularly important, other than this: there was a documentary being worked on about the Mayan calendar. There was a falling out between Thieriot, who helped finance the film, and the film's producer, Raul Julia-Levy. As the original article makes clear, there have been accusations made that Julia-Levy's credibility isn't that strong -- but the article did report accurately that he has made certain accusations against Thieriot, that she filmed without a valid permit and that she fled the country with footage, despite being asked to stay.

Thieriot then sued TheWrap for defamation, but last month, an LA court dismissed the claim on anti-SLAPP grounds, noting that Thieriot failed to show that the statements made in the original article were false, or that the statements were made maliciously. The failure to prove that the statements were false is pretty much the end of any defamation claim, and the anti-SLAPP process makes it quick and easy... and opens up Thieriot to the possibility of having to pay TheWrap's legal fees.

Plaintiff fails to produce evidence showing that the statements in the article were false. The article reports on allegations made by levy against plaintiff.... The article at multiple points indicates that the accusations came from Levy and the article at no point states that plaintiff actually committed the alleged acts. The article does not state that plaintiff has been charged with any crime. Indeed, the article at several points indicates that Levy had been previously accused of dishonesty.

Basically, standard-issue dismissal thanks to California's lovely anti-SLAPP law. So that's SLAPP, the first.

Next up, we have a blog called SFCitizen.com who, it should be admitted, has a bit of a history of mocking Thieriot. Not surprisingly, the blog posted about the dismissed SLAPP suit, with a post entitled Pwned! Area Socialite Elisabeth Thieriot Loses Her “SLAPP” Lawsuit against Journalists in L.A. – Mayan Prophecy. It basically repeats the basic points of the story, though clearly in a mocking fashion. Not much to it.

And then... Thieriot apparently decides that, despite having already lost a SLAPP suit, that she's going to threaten this other blogger for writing about the fact that she lost her SLAPP suit. The argument shown in the letter that Thieriot's lawyers allegedly sent, which was posted to the SFCitizen site, is that because the blogger only stated (the factual info) that she had lost her SLAPP suit... without also including information on the reliability of the source for the original TheWrap column, this somehow was a form of defamation. While the blog's title suggests it's been "sued," it appears that it's just been nastygrammed at this point. But that letter certainly appears to be threatening a nearly identical kind of SLAPP suit, in which they claim defamation over things that are true as stated, but which Thieriot feels doesn't properly give deference to her side of the story. We all saw how it turned out the first time around. Could it be time for a double-SLAPP on someone filing a SLAPP over someone reporting on how they lost their original SLAPP? Exciting times...

Oh, and we can't let this one go without pointing out that I'd thought most lawyers by this point had learned that lines like "you are not authorized to disclose the contents of this letter publicly or to disseminate it..." only serve to make whoever sent the letter look ridiculous for claiming things that simply have no basis in anything. Apparently, however, there are still some out there.

Filed Under: california, elisabeth thieriot, slapp

California To Commission 50 Open Textbooks For 2013; Finnish Teachers Write One In A Weekend

from the just-can't-wait dept

Techdirt has been following open textbooks for some time now, and 2012 looks to be a bumper year for them. Here, for example, is a major initiative in the US:

California college students hit with tuition increases in recent years will get a little financial help after Gov. Jerry Brown signed legislation Thursday to create a website on which popular textbooks can be downloaded for free.

Twin bills by Senate President Pro Tem Darrell Steinberg (D-Sacramento) will give students free digital access to 50 core textbooks for lower-division courses offered by the University of California, California State University and California Community College systems. Hard copies of the texts would cost $20.

The bill establishes a new California Open Education Resources Council, which will be required to choose the 50 core textbooks and then:

to establish a competitive request-for-proposal process in which faculty members, publishers, and other interested parties would apply for funds to produce, in 2013, 50 high-quality, affordable, digital open source textbooks

which would be released under a cc-by license. The move is likely to be significant nationally, as an article in The Textbook Guru points out:

The ripple effect of this legislation should spread way past California and throughout the whole country. With quality publisher-grade peer-reviewed options becoming newly available in open format and competing against the high-priced publishers' textbooks, faculty will need to pause to review these and see how they can be used in their classroom.

After all, if high-quality textbooks are freely available in digital form -- or hence for low prices as printed copies -- hard-pressed universities elsewhere in the US (and internationally) would be crazy not to consider them. The cc-by license means that the text can be freely modified for local needs as necessary, or translated.

As the above indicates, those 50 titles won't be ready until next year. Meanwhile, in Finland, some teachers decided to produce something a little sooner:

A group of Finnish mathematics researchers, teachers and students write an upper secondary mathematics textbook in a booksprint. The event started on Friday 28th September at 9:00 (GMT+3) and the book will be (hopefully) ready on Sunday evening.

You can find the book's LaTeX source code in a repository on Github: it's under the same cc-by license as the California books, so you can adapt it freely -- if you can read Finnish....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: california, creative commons, education, finland, learning, open textbooks, sharing, textbooks

California's Law Barring Demands For Social Media Passwords Sounds Good... But Might Not Be

from the ain't-that-always-the-case? dept

We've been seeing a fair bit of cheering around the news that California became the latest state to sign into law rules that bar organizations and schools from demanding social media passwords from employees and students. In theory, this seems like a good idea. After all, we've heard of more than a few cases where students and employees were asked for their passwords. But we've questioned if there should be a law here, or if people can just deal with it themselves.

And while many people are cheering on California's new law, Eric Goldman points out that we should be wary of the potential for significant unintended consequences. He worries about the broad definitions of what's really covered (hint: it goes beyond just "social media" even though that's all anyone's discussing). More importantly, he worries about the line between "personal" and "professional" accounts. Obviously, if you are managing, say, your employer's Twitter account, it's reasonable for them to have your password. And if it's just your own personal account, it's not. But... that assumes that those two categories are mutually exclusive and distinct, when the reality is they're often not. People use personal accounts for work related things all the time. It wasn't that long ago that we wrote about a dispute concerning who owned a LinkedIn account -- the company or the employee -- when many of the contacts were due to the employment situation. It's not so easy, and Goldman sees trouble ahead:

Thus, the law assumes that social media accounts have only two states: personal or not-personal. Sadly, that’s completely contrary to the cases I’m seeing in court right now. Instead, social media accounts fit along a continuum where the endpoints are (1) completely personal, and (2) completely business-related–but many employees’ social media accounts (narrowly construed, ignoring the statutory overbreadth problem) fit somewhere in between those two endpoints. Indeed, employers and employees routinely disagree about whether or not a social media account was personal or business-related. See, e.g., Insynq v. Mann, Eagle v. Sawabeh, Maremont v. SF Design Group, Kremer v. Tea Party Patriots, and PhoneDog v. Kravitz.

And, he points out, since it's important for companies to have the passwords to "corporate" accounts, while the law makes it illegal to ask for them on "personal" accounts, there's clearly going to be conflict when accounts fall somewhere into that blurry middle, as many of them do:

Putting the two concepts together, employers should require that employees provide them with login credentials for social media accounts relating to their business; but the law makes it illegal for employers to ask for login credentials to “personal” accounts. This puts employers in an obvious squeeze: employers may not know which employee accounts are purely personal and which are a mix of personal and business-related; the statute doesn’t expressly allow employers to access mixed account; and the statute doesn’t give employers a defense if they demand the login credentials because they reasonably but mistakenly thought the account was all or partially business-related. Courts will likely have to create common law exclusions for employers trying to get access to mixed accounts, but only after much angst, confusion and costly–and avoidable–litigation.

So while the intent may be good, the actual law may have some significant problems and costs associated with it. And for what? Was this really that big of a problem? Yes, there were some stories of it happening, but there was no indication that it was really that common. On top of that, in many cases, individuals could handle the situation on their own, without needing the law to back them up.

Filed Under: california, passwords, social media