I don't get to use the phrase "with alacrity" that often, but Baton Rouge store owner Abdullah Muflahi's filing of a lawsuit against the Baton Rouge police can only be described as that.
Following the shooting of Alton Sterling by Baton Rouge police officers, Muflahi's store was raided by law enforcement officers who took the hard drive containing the store's surveillance camera footage of the altercation. So far, everyone involved has refused to discuss the illegal seizure of Muflahi's recording equipment, deferring to the FBI and its investigation of the shooting -- which would be something if the FBI would answer questions about the seizure and current location of the hard drive.. but it won't talk about it either.
The owner of the Triple S Food Mart in Baton Rouge where Alton Sterling was fatally shot on July 5 says police detained him for hours while seizing his security footage of the incident without a warrant, according to a lawsuit [PDF] filed Monday.
28-year-old Abdullah Muflahi says that police at the scene placed him in a locked police car for four hours and denied him access to his cell phone, preventing him from contacting his family or an attorney.
According to the lawsuit, police wouldn't even allow Muflahi to go back into his store to use the restroom during his detention, forcing him to urinate outside of his store in full view of the public. And his detention didn't end there. Muflahi was taken back to the Louisiana State Police headquarters and held for another two hours while officers questioned him.
This all sounds very suspicious, illegal, and retaliatory. Muflahi not only had CCTV footage of the shooting, but also filmed it with his own cell phone, providing one of the two "unofficial" accounts of the arrest. While it's fantastic that a recent Supreme Court decision may have resulted in officers' reluctance to seize/search Muflahi's cell phone, the Fourth Amendment itself seemed to have little effect on their decision to enter his store and seize his recording equipment without a warrant. While the recording could correctly be described as "evidence," that doesn't excuse a warrantless entry or seizure.
The lawsuit, unfortunately, is a little thin when it comes to establishing anything that might overcome the immunity that shields individual officers from the consequences of their actions. While it does suggest the Baton Rouge Police Department's training is inadequate, it really doesn't go into detail as to why the court should be expected to believe this assertion. However, it does make an allegation that could be interesting if the court decides to explore it.
[Baton Rouge Police Chief Carl Dabadie] has negotiated a contract with a union representing police officers that provides a blanket indemnification for police officers who are sued by the public from all claims no matter what the circumstances under which the claim arise and further provides that meritorious complaints about police officers are purged from employment files after only 18 months. Both contract provisions encourage aggressive conduct by police officers by minimizing consequences.
It's common knowledge that police union contracts are generally constructed to shield officers from not only public scrutiny, but internal misconduct investigations as well. Most of these are complemented by a "Law Enforcement Bill of Rights" that gives officers up to three days to ignore questions about alleged misconduct or excessive force. These "extra rights" are often granted in the face of police union pressure, and the unions themselves are heavily-involved in the drafting of department discipline policies. Unions also help fired officers regain their positions, making it even harder for law enforcement agencies to rid themselves of the "bad apples" continually spoiling the rest of the "bunch."
While there's zero chance any decision would result in an alteration of the union's relationship with the Baton Rouge police department or the policies it helped draft, any discussion would at least shine a little more light on how these unions tend to make bad policing/policies even worse.
The Office of the Director of National Intelligence (ODNI) has been going through something of an awkward phase the last few years. The Office, which is a part of the White House, and is supposed to direct and coordinate various parts of the intelligence community, has been trying to figure out how to be more open and "transparent" to the public since the Snowden documents began flowing. Given that historically the intelligence community has focused on being as secret as is humanly possible, it's not very good at this whole transparency thing. And sometimes it's just really, really awkward. Just try (really) to watch this video it put out on Wednesday, telling US travelers abroad to fear everyone and everything.
That's not to say that there isn't some good advice mixed in there, but it's mixed in with some ridiculous claims, an overreaching level of paranoia, and some incredibly bad acting. The basic premise, though, is that wherever you go, even if you're visiting a US ally country, basically every person you meet has an ulterior motive, and it's to get your digital stuff. The border patrol guy who welcomes you to the country clicks a button that says "INITIATE SURVEILLANCE" (literally) and apparently suddenly every living human being in this foreign country now knows to spy on Frank.
He checks into his hotel, and the person at the front desk is friendly, but apparently having been tipped off by border patrol to spy on Frank, she immediately texts his room number to a sketchy guy. We know he's sketchy because he wears a leather jacket. When Frank heads out of his hotel room, he puts his tablet in the room safe, and as soon as he's gone, Mr. Sketchy comes in and opens the safe and downloads everything. To be clear: hotels are not very secure and people get electronics stolen all the time. And, yes, if you're a serious target, people may target your electronics. Of course, many of those people may actually work for the US government. Isn't that part of how the NSA hacks into various global companies? It seems like this video is giving up more US procedures than anything else.
Then the video just gets weirder. A smug asshole shows up claiming he's someone who "knows better" and tells Frank not to bring so many electronic gadgets with him. He actually recommends getting a burner phone and a throwaway email address for travel overseas. Yes, this is part of the same US intelligence community that has talked about how burner phones have created problems for its surveillance efforts, though which these days also is pretty good at connecting burner phones to individuals by merging various databases together. Smug guy also says not to post on Facebook (or, rather, "Friend Basket" in the video) that you'll be travelling overseas. Now, that's also not necessarily a bad recommendation, but it depends on context quite a bit. If the fear is that you're alerting foreigners to target you, given the earlier paranoia in the video, it's unlikely that those targeting you are finding out because of your social media posts.
Then, the paranoia goes deeper. Frank meets a woman and they agree to go for drinks. Smug Jackass basically says that anyone that friendly to Frank must be evil. Then, he reminds Frank never to send a work email, even though he's traveling for work. And then he actually says: "Besides, who's got time for work? You're traveling! Get out there! Live a little!" Remember that literally a minute earlier, Smug Guy was berating Frank for doing exactly that.
Yes, there are certainly some people where this kind of thing applies to them when travelling abroad. But this video isn't likely to help them, and it applies to a fairly limited population of people. Meanwhile, this video really kinda reveals the paranoia with which the US intelligence community lives. They spy on absolutely everyone, so they assume that absolutely everyone is getting spied on everywhere as well. It's also somewhat bizarre that they're pushing disposable email and burner phones on people while warning about terrorists using the same.
The key messages: the US intelligence community is creepy and smug, and they want you to be deathly terrified of anyone you encounter in a foreign country.
So something fascinating happened in Congress today. No matter what your opinion is on gun control or the various legislative proposals around it that have been up for debate in the past week or so, it's hard to fathom what Congressional Republicans thought they were doing today in shutting off the live video feed from the House floor. A bunch of Democrats decided to hold a sit in on the House floor to push for a vote on some gun legislation. That's a bit of a stunt no matter how you look at it, but the Republicans shot back by helping that stunt get much more attention by not just gavelling the House out of session, but also turning off the live feed of the House floor that flows to C-SPAN and out to the rest of us. C-SPAN doesn't control the cameras and is at the whim of Congress to access that feed, so when the GOP shut off the feed, C-SPAN was left without. This isn't a stupid move that's limited to the Republican side of Congress, apparently. Eight years ago the Democrats did the same thing when they controlled the House and were upset about Republicans trying to focus on a particular issue.
Of course, we now live in a modern technological age, where everyone has the power to broadcast live video in the devices we all carry in our pockets. Thus, despite House rules that forbid any sort of broadcasting from the floor, Rep. Scott Peters started broadcasting from the floor. And even as the Sergeant at Arms tried to stop the broadcasting, more people on the floor started using Periscope, Snapchat and Facebook Live, leading to C-SPAN rebroadcasting those feeds.
C-SPAN claims it's the first time it's done this (and let's not even bother with the copyright questions related to all of this...). But it seems like yet another example of a form of the Streisand Effect. The sit in was designed to get attention, and it certainly would have no matter what. But shutting off the cameras and trying to shut down the entire process only seemed to drive that much more attention to what was going on, and modern technology helped let the story still come out, no matter what the "House rules" happened to say.
For a while now we've warned how "zero rating" (letting some content bypass usage caps) is a creative way for ISPs to tap dance around net neutrality --potentially to public applause. Comcast, for example, exempts its creatively-named "Stream" streaming video service from caps, but claims this doesn't violate net neutrality because the traffic never technically leaves Comcast's network. Verizon exempts its own Go90 video service from caps as well, and to date doesn't even bother justifying the move. Both AT&T and Verizon let companies pay for cap exemption.
And while these programs all laugh in the face of neutrality, many users still tend to applaud the horrible precedent because they believe -- despite paying an arm and a leg for wireless data -- that they're getting something for free.
T-Mobile has been perhaps the most creative in exploiting this belief and implementing zero rating, now exempting some 90 video services from user usage caps and throttling these services to 1.5 Mbps (or 480p) unless a user opts out. But neutrality advocates have repeatedly noted this idea still violates net neutrality given that thousands of startups, educational orgs, and non profits still aren't whitelisted -- and may not even realize they're being discriminated against.
And while T-Mobile has done some great things for consumers the last few years, T-Mobile's response to these concerns has been relatively pathetic, vacillating between lying about how the program works, to insulting net neutrality supporters like the EFF while fighting real net neutrality rules and Title II reclassification. Yet because many in the public don't understand the horrible precedent and just think it's really groovy they're getting free stuff -- T-Mobile's Binge On, happily lives on.
But a new study out of Northeastern University doesn't have much nice to say about T-Mobile's "consumer friendly" zero rating program. The researchers found numerous problems with Binge On, including the fact that T-Mobile's promise of 480p video quality is consistently less:
"T-Mobile says that the resolution for Binge On streaming is 480p (progressive scan) or better, which is considered standard for DVD movies. However, the researchers did not find evidence to back up these claims. In their trials using YouTube, the resolution was only 360p, noticeably blurry on a modern smartphone.
They also found that T-Mobile's systems not only had trouble accurately detecting video services:
"T-Mobile’s detection methods are very simple, so there’s no way they can always be right,” he says. "That means that Binge On is likely slowing down traffic that is not video. This raises serious concerns about compliance with the Open Internet Order."
And they found that the system was manipulable by clever T-Mobile users, potentially allowing them to zero rate services not covered by the program:
"Those simple methods open the door to exploitation as well, allowing subscribers to get free data even for non-video content. The researchers developed simple software that manipulates internet traffic so that it looks like video. For example, it makes any web content—web pages, app downloads, and photos—look like YouTube traffic. “We realized we could make any network traffic zero rated by just putting the right text in the right place," says Choffnes. "That is a security vulnerability -- it's potentially an open cash register that people can take from."
So in short, the report notes that T-Mobile's Binge On isn't accurate, is exploitable, and reduces video quality more than T-Mobile claims. T-Mobile (and zero rating supporters) argue that what T-Mobile's doing is ok simply because users can opt out. But the researchers noted that putting the onus to opt out on frequently non-technical consumers doesn't somehow magically mean net neutrality isn't violated by the underlying precedent. The researchers argue that regardless of public opinion on the subject -- the T-Mobile Binge On is still a net neutrality violation however you'd like to slice it:
"The internet has been hugely successful because it enables innovation, where all new internet applications receive the same network service as incumbents -- it's a level playing field," says Choffnes. "T-Mobile’s policy gives special treatment to video providers that work with them. What if every ISP did this, but in a different way? In such a world, the next Netflix, Hulu, or Pied Piper might never get off the ground because keeping up with ISPs and their policies would leave them chasing their tails."
There's several reasons why we're not seeing the backlash to zero rating we've seen elsewhere in the net neutrality fight. One, again, consumers think they're getting something for free, and don't understand that usage caps are entirely arbitrary constructs to begin with, and not actually even useful for managing network congestion (should it even actually exist). Zero rating also is seeing support from companies that historically supported net neutrality (Google, Netflix) because these companies are benefiting from the additional traffic and ad eyeballs these programs send their direction.
But because consumers don't really understand the slippery slope they're happily having a picnic on -- and Silicon Valley companies are willing to turn a blind eye to these types of net neutrality violations because they profit off of them -- doesn't magically mean what T-Mobile is doing is a good idea.
With the FCC's net neutrality rules now on more secure footing after their major legal win, all eyes now turn to what the FCC intends to do about broadband usage caps and zero rating. While many countries (India, Japan, The Netherlands, Chile) understand the bad precedent at play here and have banned zero rating outright as anti-competitive, the FCC decided to weigh the anti-competitive impact of zero rating on a "case by case basis." And while the FCC is currently conducting a rather glacial inquiry into caps and zero rating, ISPs so far have been allowed to employ the practice with relative impunity.
In short, the FCC's failure to ban zero rating opened the door to net neutrality violations, provided an ISP is just clever about it. Without Netflix or Google's support, and with consumers believing they're benefiting from such models, the FCC is seeing notably less political pressure to act. So while it's wonderful that we've got shiny new net neutrality rules freshly upheld by the court system, they may wind up being useless as carriers and ISPs tap dance over, under and around them -- to thunderous public applause.
For years now Verizon has made it clear that it no longer wants to be in the fixed-line broadband business. Despite countless billions in taxpayer subsidies and numerous unfinished obligations, the company has all-but frozen serious fiber deployments. It has also been either selling off unwanted DSL customers to smaller, ill-equipped telcos (which which almost always ends poorly for everybody except Verizon accountants and lawyers) or has quite literally tried to drive unwanted users away with both rate hikes and apathy.
Instead, Verizon executives decided to try and transform the stodgy old telco into a sexy new Millennial-focused advertising juggernaut. So far that has involved launching the company's Millennial-targeted "Go90" streaming video service, spending $4.4 billion on acquiring AOL, trying to acquire the drifting wreckage that is Yahoo, and developing controversial stealth ad tracking technology to build covert profiles of customer behavior as they wander around the Internet.
Despite the company heavily marketing Go90, zero rating the service so it doesn't count against usage caps, and even giving away data to users that try the service, it has seen extremely limited adoption among Verizon's target demographic. Verizon has refused to release subscriber numbers for the service, and the Go90 app is slowly falling down both the Apple App Store and Google Play rankings. Things have been so underwhelming, Verizon CEO Lowell McAdam was forced to admit to attendees of an investor conference this week that the company may have "over-hyped" the platform:
"It did get a little bit overhyped, and we contributed to that to some extent," McAdam said in a keynote appearance at the 44th Annual J.P. Morgan Conference. McAdam explained that Verizon's strength is in building networks, not necessarily developing popular content. "It's not exactly our strong suit," McAdam conceded.
Granted everybody not at Verizon knew that the company's attempt to magically make an old telco sexy for millennials would be a hard sell, especially given Verizon's long history of trying and failing to be content innovators. The company has long tried and failed when leaning outside of its core competency, whether that's operating its own app store, running a streaming venture with Red Box, or briefly operating a news website where authors were prohibited from talking about things like surveillance or net neutrality. Phone companies, after a generation of regulatory capture and "yes men" boardroom culture -- simply aren't genetically built for real disruption and innovation outside their core competency, no matter how many executives seem to believe otherwise.
McAdam then tried to walk back his comments a little, and tried to argue that Go90 isn't a failure, it's just a vision that's going to take a lot of time, and a lot of money (which won't be spent on networks), to execute:
"We've seen enough success to make us excited about continuing to work it... "Go90 is in a good spot from our perspective, we're going to continue to pursue it. But our expectations are realistic."
As a writer I generally love telecom investor conferences for the simple fact that for whatever reason, phone and cable executives still haven't figured out that the public can hear what's being said at them. What usually happens is a telecom executive will say something uncharacteristically candid, then the company's marketing department will jump in to try and spin the comments a few weeks later. As such it shouldn't be long before Verizon unveils a new marketing barrage that spins McAdam's comments and claims Verizon's quest to become sexy in the eyes of Millennials is going better than ever.
Back in 2012, Netflix and Disney struck a deal wherein Netflix would be the exclusive online provider of Disney content starting in 2016. And while we knew that the deal had been struck, it was only this week that Netflix announced on its blog that the exclusive arrangement would formally begin in September. As of September 1, if you want to stream the latest Disney (and by proxy Marvel, Lucasfilm and Pixar) films -- you need to do it via Netflix.
Given the popularity of the Marvel films and the now-annual release of new "Star Wars" titles, that deal has become bigger and more important than ever, making it a pretty large coup for Netflix. Especially if you consider that Disney is co-owner of Hulu, which is planning to dramatically scale up its own subscription streaming video service later this year or early next. In fact, while Hulu for years was little more than an uninteresting ad for traditional cable, data suggests that Hulu's catalog is now much larger, thanks in large part to Netflix's tight focus on original content.
And while this is good news if you already subscribe to Netflix, this ongoing quest to lock down content in exclusive arrangements has a notable downside as the practice expands. As Hulu, Netflix, and Amazon have tried to each lock down their own exclusives, finding your favorite movie or TV series has become a frustrating game of hunting and pecking to ferret out which provider has the exclusive rights. It's also becoming increasingly confusing for consumers to understand when these deals expire; something that's not effectively communicated by most streaming companies.
And, ironically, while many streaming video customers cut the cable cord due to high prices, exclusive arrangements are now forcing those customers to pay for countless streaming services if they actually want to access all of their favorite shows and movies. There's a certain danger in replacing the cable industry's long-standing walled gardens with newer, different walled gardens, and it's pretty clear most of these companies either don't see the potential pitfalls or, in a rush for eyeballs, just don't care.
And as broadcasters increasingly realize they can cut out the middlemen and launch their own streaming services, it seems inevitable that the exclusivity wars will only get worse. For example, if you want to watch the new "Star Trek" TV series from CBS when it launches in January 2017, you'll need to subscribe to CBS's $7 a month, All Access streaming platform. There's likely going to be a lot more where that came from, especially as Comcast takes a bigger role in managing Hulu (NBC Universal merger conditions preventing it from fiddling with Hulu to prevent anti-competitive shenanigans expire next year).
So while the streaming industry and broadcasters are intent on following the exclusivity concept deep down the rabbit hole, few if any seem to notice that while these kinds of exclusive deals may be good for one company over the short term, they're not going to be great for the broader streaming industry over the long haul. There's a lot of potential here to fracture content availability, confuse paying customers, and drive frustrated customers back to piracy after all of the work done to get them on legitimate platforms in the first place.
We've noted a few times how interstate inmate calling service (ICS) companies have a disturbingly cozy relationship with government, striking (technically buying) monopoly deals that let them charge inmate families $14 per minute. Worse, some ICS companies like Securus Technologies have been under fire for helping the government spy on privileged inmate attorney communications, information that was only revealed after Securus was hacked late last year. Given the apathy for prison inmates and their families ("Iff'n ya don't like high prices, don't go to prison son!") reform on this front has been glacial at best.
As such, ripping off inmate families and delivering sub-par services continues unabated. As many prisons eliminate personal visits, these ICS firms have expanded revenues by pretending to offer next-generation teleconferencing services. But while slightly more economical ($10 for 20 minutes), apparently companies like Securus with no competitors, a captive audience, and no repercussions for sloppy technology haven't quite figured out how to make this whole video chat thing work yet. As a result, inmates who use the services say their experiences are repeatedly abysmal:
"Johnson logged into the Securus Technologies website — a Skype-like communication system used by the Travis County jail — on her PC laptop. But the video player didn't have the latest version of Java. When Johnson installed it, the system insisted she had not. So Johnson tried another laptop — a MacBook this time. Java was working this time, Flash was not.
Thinking the browser might be the problem, Johnson tried launching the video player in Chrome, then switched to Safari before giving up and using the Securus Android app on her phone.
Finally, Coleman's face appeared on screen — barely. For the entire call, a glitch in the system caused Coleman's image to look like a tangle of window blinds. Johnson wanted to talk to Coleman about her case, but through most of the call, she simply repeated, "Hello — can you hear me now?" Johnson was charged $10 for the video visit, even after cutting it a few minutes short of the 20-minute maximum."
In short, Securus is the Comcast of the industrial incarceration sector, and as a result customer support and service is about what you'd expect. 600 prisons in 46 states now have video visitation, and more prisons are doing away with in site visitations monthly, creating yet more revenue opportunities for ICS outfits. Reformers have been arguing that cutting off in-person visitation increases on-site violence by frustrated inmates, and hindering an inmate's ability to maintain outside connections (kind of hard when your wife and child look like pixelated Godzilla) increases the risk of repeat incarceration:
"County officials across the country claim video visitation is good for security. When Renaud got ahold of prison records, they showed that incidences of inmate-on-inmate violence, disciplinary infractions and possession of contraband all rose after Travis County did away with in-person visitation. Because visitation is so new, these statistics are the earliest indication that the pro-security pitch for video visitation is all snake oil.
The past decade in research shows consistently (pdf) that maintaining the relationships the incarcerated will inevitably return to for support once they're released is a powerful agent in keeping them from repeat offenses. One study of over 16,000 incarcerated people found that any visitation at all, even just once, reduced the risk of recidivism by 13% for felony reconvictions."
The problem is that the dysfunction of prison telecom goes bone deep, and reform efforts remain superficial at best. After decades of inaction, the FCC recently tried to impose new price caps of twenty-two cents per minute on ICS companies, but those rules are on hold thanks to a lawsuit from prison telecom operators like Securus that claim prisons face riots if companies can't keep charging consistent rates.
But the core problem remains that such companies get to pay "concession fees" or "site commissions" (read: kickbacks) to prisons for monopoly control over prison inmate communications services. Prisons are paid $460 million annually in such concession fees, and Los Angeles makes $15 million annually off of such fees alone. Obviously that kind of cash quickly kills any attempt at real reform, so not unlike the outside world, prison telecom services remain an ouroboros of profitable dysfunction; a government-sanctioned monopoly with very real human costs, one nobody in the supply chain wants to even examine, much less actually fix.
While we have written quite a bit about major professional sports leagues marching towards expanded streaming options for viewers, and while each league is making progress in that direction, not all of the leagues are equal in how they're going about it. The NHL has been by far the least progressive in this arena, which is somewhat strange given how much more progressive it has been on other issues of modernity. On streaming, however, there seems to be some flip-flopping, with the league banning the use of services like Periscope by journalists, but then seeking to piggyback on baseball's fantastic MLB Advanced Media product to get better streaming to its viewers. The entire point of increased streaming options is to get the product out to as many people as possible, grow the fanbase, and ultimately rake in more money via increased viewership.
Which is what makes is supremely odd to see the NHL fail so hard recently with its streaming product and react to that failure by menacing anyone who might try to route around it. If you weren't already aware, a recent upgrade to the league's NHL.tv product appears to have instituted a refreshed round of blackout rules for games at the exact time when other leagues are attempting to minimize the impact of blackouts. Per Deadspin:
We’ve been getting tips all week from frustrated NHL.tv customers who installed NHL.tv’s new upgrade this week, only to see the entire service dissolve into an malfunctioning mess of blackouts. At pretty much any time when games are on, the @NHLTVSupport account’s mentions are full of hordes of complainers and angry people trying fruitlessly to be able to watch games on the platform they paid $160 for.
In addition to the surprise blackouts suddenly rearing their ugly heads, it appears that NHL.tv is having trouble working across certain devices for whatever reason. Chromebooks in particular appear to be affected, but other devices render the stream into a pixelated hell-scape. This is particularly problematic for a sport that relies so heavily on high-res viewing in order to follow the puck and the action in an arena where color differentiation is much more limited than with other sports.
But adding insult to injury is the all-caps threat clause the NHL slid into the update.
IF YOU CIRCUMVENT OR ATTEMPT TO CIRCUMVENT ANY BLACKOUT RESTRICTION OR OTHER USE RESTRICTION: YOUR SUBSCRIPTION WILL BE SUBJECT TO IMMEDIATE TERMINATION AND A CHARGE OF ONE HUNDRED DOLLARS ($100.00) FOR EARLY TERMINATION WILL BE APPLIED TO YOUR CREDIT OR DEBIT CARD; YOU MAY BE SUBJECT TO LEGAL ACTION; AND THE NHL RESERVES THE RIGHT TO REPORT SUCH MISCONDUCT TO APPROPRIATE LAW ENFORCEMENT AUTHORITIES.
Lovely. So a product that doesn't appear to work as advertised, served up to a customer base that appears to have been ill-informed about the blackout rules subsequently put in place for the product, is now on notice that doing anything to address this beyond waiting for the NHL to get their shit together will lose their subscription, be charged a fine, and be reported to the authorities for legal action.
Not exactly the best way to win over existing and new customers, NHL, particularly given that you're the league that can least afford to lose any fans.
At the time of the release, city attorneys had this to say.
“With respect to the release of videos of police incidents, the City of Chicago is working to find the right balance between the public’s interest in disclosure and the importance of protecting the integrity of investigations and the judicial process,” Stephen R. Patton, the head of Chicago’s Law Department, said Wednesday as the city announced it would no longer fight to prevent the release. “In this case, the city sought a protective order consistent with its decades-long policy. We recognize the policy needs to be updated, and while we await guidance from the Task Force on Police Accountability, we are working to be as transparent as possible.”
These are certainly the right words to be saying after the Laquan McDonald debacle. The city sat on dashcam footage of the shooting for over a year before a judge forced it out of its hands. The video showed a Chicago cop firing 16 shots at McDonald as he walked away from the officer. Transparency isn't exactly the Chicago way and Mayor Rahm Emanuel has been accused of burying the video to better suit his re-election campaign.
But let's not applaud the new transparency supposedly on display here. The city's legal department would likely have kept this video buried as well if it weren't for extenuating circumstances. And by "extenuating circumstances," I mean "misconduct that led to the resignation of two city attorneys."
[W]hether Mosqueda and Sierra acted with excessive force depends, in large part, on what [Officer] Mosqueda heard on the police-car radio that night. Not surprisingly, after they sued, Plaintiffs asked for the recording of what Mosqueda claimed to have heard over the radio, as well as any documents related to the recording. A recording was available. But Plaintiffs did not get it. Documents identifying the location of the recording were also available. But Plaintiffs did not get those either. The discovery responses that they did get led them to believe that no recording of the call or documents were available. From that, Plaintiffs reasonably concluded that Mosqueda was lying—that is, he actually had heard nothing, and the officers executed an overly aggressive traffic stop for their own reasons or no reason at all.
Plaintiffs prepared to present that theory at the trial, as well as the theory that the radio call was an excuse concocted after the shooting with the help of other officers, and the trial began with that presentation. But on the fourth day of trial, it was revealed that there was an OEMC record showing the potential availability of a recording of the call the officers heard that night, and soon afterwards, it was revealed that the recording was in fact still available. The actual recording did not mention that the Aurora had a gun or that the car was wanted for a shooting, but it did describe an Aurora similar to the one Pinex was driving. Plaintiffs' Counsel scrambled to adjust their trial presentation to account for the undisclosed recording, both to defend against it and to use it to support their version, but the jury ultimately found in favor of Mosqueda and Sierra.
The decision points out that this was not an error. The prosecution deliberately withheld the recording it had obtained until the case was already underway. City attorney Jordan Marsh admitted -- prior to jury deliberations -- that he had misled the court as to when he had first obtained this recording.
Judge, as I am thinking about this issue with the CD and Sergeant Lamperis, I represented to the Court yesterday that it was a couple of days ago that I first learned about the CD. I spoke with Jill Maderak at my office — I remember that I was sitting in my office when I did it — I was going over the event queries, and I have to — I have to believe that was sometime last week, because I don't think I would be speaking with her after Court. So it may very well — and certainly, I have talked to her and Ms. Dunaj about the CD multiple times, it may have been that I learned about the CD Thursday or Friday of last week. I don't know. I just wanted to let the Court know that — I may have been mistaken yesterday when it came up that — the first time I heard about it was Tuesday, or I said a couple days before, because I do have that recollection of talking with Jill Maderak in the office. So it may have been prior to trial.
This led directly to the court throwing everything out, awarding the plaintiffs a new trial and compensation for the legal fees -- not just for this lawsuit, but for the new trial still to come.
Mistakes do happen in discovery. Most often, the mistakes are innocent and no fault can be fairly assigned to the lawyer. But when a lawyer acts unreasonably and the other side does not get all the evidence to which it is entitled, then a remedy must follow to prevent the lawyer's negligence from unfairly harming the opponent. Even worse, when a lawyer crosses the line into intentional wrongdoing, then more severe punishment is warranted, because our system of justice depends on the honesty and good faith of lawyers to abide by the rules of discovery. For the reasons detailed below, the Court finds that City Law Department attorney Tom Aumann acted unreasonably during discovery. Worse, based on the record evidence, the Court must conclude that City Law Department attorney Jordan Marsh intentionally concealed the existence of the OEMC record that would have led to the discovery of the Zone 6 Audio before the trial.
Transparency may eventually take hold in Chicago, but it won't be anytime soon. The city has a habit of burying recordings, even to the point that it keeps them hidden from opposing counsel. The city and local police unions have made efforts to ensure the Chicago PD's dirty past stays hidden as well. The city is being forced towards transparency, but its efforts in this area are still mostly borne of political expedience -- whether in service to Mayor Emanuel's falling stock or due to the malfeasance of its own counsel.
On Monday we wrote about T-Mobile flat out lying about the nature of its BingeOn mobile video service -- and after a couple of days of silence, the company has come out swinging -- by lying some more and weirdly attacking the people who have accurately portrayed the problems of the service. As a quick reminder, the company launched this service a few months ago, where the company claimed two things (though didn't make it entirely clear how separate these two things were): (1) that the company would not count data for streaming video for certain "partner" companies and (2) that it would be "optimizing" video for all users (though through a convoluted process, you could opt-out).
There were a bunch of problems with this, starting with the fact that favoring some partner traffic over others to exempt it from a cap (i.e., zero rating) is a sketchy way to backdoor in net neutrality violations. But, the bigger issue was that almost everything about T-Mobile's announcement implied that it was only "partner" video that was being "optimized" while the reality was that they were doing it for any video they could find (even downloaded, not streamed). The biggest problem of all, however, was that the video was not being "optimized" but throttled by slowing down video.
Once the throttling was called out, T-Mobile went on a weird PR campaign, flat out lying, and saying that what they were doing was "optimizing" not throttling and that it would make videos stream faster and save users data. However, as we pointed out, that's blatantly false. Videos from YouTube, for example, were encrypted, meaning that T-Mobile had no way to "optimize" it, and tests from EFF proved pretty conclusively that the only thing T-Mobile was doing was slowing connection speeds down to 1.5 Mbps when it sensed video downloads of any kind (so not even streaming), and that actually meant that the full amount of data was going through in many cases, rather than an "optimized" file. EFF even got T-Mobile to admit that this was all they were doing.
So that makes the response of T-Mobile execs yesterday and today totally baffling because rather than actually respond to the charges, they've doubled down on the blatant lying, suggesting that either it's executives have no idea what the company is actually doing, or that they are purposely lying to their users, which isn't exactly the "uncarrier" way that the company likes to promote.
We'll start with the big cheese himself, CEO John Legere, whose claim to fame is how "edgy" he is as a big company CEO. He's now released a statement and a video that are in typical Legere outspoken fashion -- but it's full of blatant lies.
The video and the typed statement are fairly similar, but Legere adds some extra color in the video version.
Let's parse some of the statements. I'll mostly be using the ones from the written statement as they're easier to cut and paste, rather than transcribe, but a few from the video are worth calling out directly.
I’ve seen and heard enough comments and headlines this week about our Binge On video service that it’s time to set the record straight. There are groups out there confusing consumers and questioning the choices that we fight so hard to give our customers. Clearly we have very different views of how customers get to make their choices -- or even if they’re allowed to have choices at all! It’s bewildering …so I want to talk about this.
Of course, this is a nice, but misleading attempt to frame the conversation. No one is complaining about "giving choices to consumers." They're complaining about (1) misleading consumers and (2) providing a worse overall experience by throttling which (3) directly violates the the FCC's prohibition on throttling. The next part I'm taking from the video itself, rather than the printed statement, because Legere goes much further in the video, including the curses, which magically don't show up in the printed version:
There are people out there saying we’re “throttling.” That's a game of semantics and it's bullshit! That's not what we're doing. Really! What throttling is is slowing down data and removing customer control. Let me be clear. BingeOn is neither of those things.
This is flat out wrong and suggests Legere doesn't even know the details of his own service. As the EFF's tests proved (and the fact that YouTube videos are encrypted should make clear) T-Mobile is absolutely slowing down data. In fact, EFF got T-Mobile to confirm this, so Legere claiming it's "bullshit" is... well... bullshit!
But he's playing some tricky word games here, claiming that throttling is not just slowing down data, but also removing customer control. That's (1) not true and (2) also misleading. For all of Legere and T-Mobile's talk about "giving more options to consumers" or whatever, they're totally leaving out the fact that they automatically turned this on for all users without a clear explanation as to what was happening, leading to multiple consumer complaints about how their streaming videos were no longer functioning properly -- even for users on unlimited data plans.
Customer choice? Sure they could "opt-out" after through a convoluted process that many did not understand. But T-Mobile made the choice for all its users, rather than providing a choice for its customers to make.
Mobile customers don’t always want or need giant heavy data files. So we built technology to optimize for mobile screens and stream at a bitrate designed to stretch your mobile data consumption. You get the same quality of video as watching a DVD, but use only 1/3 as much data (or, of course, NO data used when it’s a Binge On content provider!). That's not throttling. That's a huge benefit.
Again, this is both wrong and misleading. There is no optimization. Legere is lying. They are 100% slowing down the throughput on video when they sense it. The EFF's tests prove as much. Yes, for some video providers when they sense lower bandwidth, they will downgrade the resolution, but that's the video provider optimizing, not T-Mobile. T-Mobile is 100% throttling, and hoping that the video provider downgrades the video.
But in cases where that doesn't happen then it doesn't save any data at all (the EFF test confirmed that the full video file still comes through, just slower).
Also, note the play on words "You get the same quality of video as watching a DVD." At first you think he's saying that you get the same video quality overall, but he's not. He's saying as a DVD, at 480p, which is lower than the 1080p that many HD videos are offered at. And that's what many people are complaining about -- that they'd like to watch videos at the full 1080p, but T-Mobile made the choice that they can't do that unless they go through a convoluted process to turn this off.
Rather than respond to any of this, Legere then claims that "special interest groups" and Google are doing this.... "to get headlines."
So why are special interest groups -- and even Google! -- offended by this? Why are they trying to characterize this as a bad thing? I think they may be using Net Neutrality as a platform to get into the news.
Wait, what? Google -- the same Google that absolutely refused to say anything publicly at all about net neutrality for years during the debate suddenly wants to get into the news by jumping on the net neutrality bandwagon? Does Legere have any idea how ridiculous that sounds? And it's not like Google has a problem getting into the news. And what about EFF and others? Does he really think they need to get extra news coverage?
But note the facts here: at no point does Legere respond to the actual charges leveled against the company. He then concludes by yelling at everyone for daring to complain about this:
At T-Mobile we're giving you more video. More choice. And a powerful new choice in how you want your video delivered. What's not to love? We give customers more choices and these jerks are complaining, who the hell do they think they are? What gives them the right to dictate what my customers, or any wireless consumer can choose for themselves?
Nice. I'm part of the contingent complaining about this and I'm also a T-Mobile customer... and the CEO just called me a jerk while telling me he's fighting for his customers? Really now?
And again this whole statement is blatantly misleading. The "choice" was made by T-Mobile for all users, and getting out of it involves a convoluted process that most don't understand and where none of this was made clear to end users. Beyond violating the FCC's "no throttling" rule, I wonder if it also violates the FCC's transparency rules as well, in which they are required to be much more upfront about how the data is being treated.
Also, the statement above is from the video where we're described as "jerks," but in the written version it leaves out the "jerks" claim, but also includes the following bit mocking YouTube for letting users choose to change the resolution on videos:
YouTube complained about Binge On, yet at the same time they claim they provide choice to customers on the resolution of their video. So it's ok for THEM to give customers choice but not for US to give our customers a choice? Hmmm. I seriously don't get it.
But that's bullshit also. YouTube's choice option there is a clear pulldown on every video shown, so that a user just needs to click on the video their watching and set the resolution. T-Mobile's is a process that's not clear at all, with some users reporting they had to call in and get T-Mobile customer service to turn BingeOn off for their account. To compare the two situations is completely bonkers.
As far as I can tell, Legere either doesn't understand what his own company is doing technically, or knows and is purposely misrepresenting it. Neither of those look good and go against the entire "uncarrier" concept they keep pitching. I'd expect better as a T-Mobile customer than being told that I'm a "jerk" for pointing this out.
And it appears he's not the only one among senior execs at T-Mobile who still don't realize what their own company is doing. On Wednesday at a Citigroup conference, T-Mobile's Chief Operating Officer Mike Sievert
spewed some more nonsense suggesting he, too, has no idea what his own company is doing:
At a Citigroup investor conference Wednesday, T-Mobile executives shot back, saying YouTube’s stance is “absurd.” YouTube is owned by Alphabet Inc. “We are kind of dumbfounded, that a company like YouTube would think that adding this choice would somehow be a bad thing,” said T-Mobile Chief Operating Officer Mike Sievert. He said YouTube hasn’t “done the work yet to become part of the free service.”
Taken at face value, that comment makes no sense. If YouTube hasn't done the work yet to become a part of the free service than why the fuck is T-Mobile slowing down its videos? YouTube wasn't complaining about "adding this choice." YouTube was complaining about direct throttling of video content by T-Mobile, in clear violation of the FCC's prohibition on throttling.
Sievert and Legere both don't seem to understand (1) what YouTube and users are complaining about or (2) what his own company is doing. That's... troubling, given that these are the CEO and COO of the company. It really seems like T-Mobile execs might want to spend some time talking to its tech team to understand the fact that the only thing T-Mobile is doing to video is throttling it down to 1.5 Mbps, rather than any actual "optimization" before spewing more nonsense and calling their own customers "jerks." And, they might want to realize that their claim that this is all "bullshit" is actually complete bullshit. And that their bullshit may very well violate the FCC's rules.
