State Supreme Court Says Secret Software Used In Sentencing Determinations Not A Violation Of Due Process Rights

from the not-as-long-as-it's-used-perfectly-within-an-impossible-set-of-confines dept

An algorithm is deciding certain criminal defendants should spend more time in prison. And that determination can't be fully challenged because the code belongs to a private company which provides the software to the government.

Eric Loomis was determined to be a "high risk" defendant, based on something called a "COMPAS score." COMPAS -- Criminal Offender Management Profiling for Alternative Sanctions -- cranks out Presentence Investigation Reports for use in the courtroom, utilizing a number of factors to generate a score that lets judges know how likely the defendant is to re-offend.

The problems with this system are numerous. For one, the code is proprietary, so defendants aren't allowed to examine the factors that lead to this determination, unlike other sentencing guidelines created by the government, which are open to the public to examine.

Another problem is that the algorithm engages in demographic profiling -- generally considered to be a bad thing when it comes to determining criminal behavior.

Back in May ProPublica published an investigation into the risk-assessment software that found that the algorithms were racially biased. ProPublica looked at the scores given to white people and black people and then whether the predictions were correct (by looking at whether they actually committed or didn’t commit crimes); they found that in Broward County, Florida, which was using software from a company called Northpointe, black people were mislabeled with high scores and that white people were more likely to be mislabeled with low scores.

"Fits the profile" is the new "fits the description" -- something that seems predisposed to putting blacks behind bars more frequently and for longer periods of time. Eric Loomis tried to challenge his COMPAS score but got nowhere with it, as the math behind it is locked up by Northpointe, which claims giving a defendant access to its trade secrets would pose a serious risk to its profitability.

Loomis argued that not giving him access posed a serious risk to his freedom. Allowing Northpointe to keep its algorithm secret was a violation of his due process rights, as it presented an unchallengeable score that could be used to keep him locked up longer than the normal range for the criminal activity he was convicted for.

His case went up the ladder to the Wisconsin Supreme Court, which has found [PDF] that defendants being unable to fully challenge a sentencing determination isn't a Constitutional problem.

Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.

We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion. We further conclude that the circuit court's consideration of the read-in charges was not an erroneous exercise of discretion because it employed recognized legal standards.

Accordingly, we affirm the order of the circuit court denying Loomis's motion for post-conviction relief requesting a resentencing hearing.

The downside of this decision is that Northpointe cannot be forced to hand over its algorithm for examination by criminal defendants. The upside is that the court has issues with using COMPAS scores to determine sentence lengths.

[T]he opinion comes with some interesting caveats about things judges need to keep in mind when using risk scores in sentencing decisions: The two most important factors they’re asked to keep in mind is that software has been found to be racially biased and that the software needs to be constantly monitored and updated with new information. (If you’re relying on data from five or ten years ago, it’s not going to be accurate.)

The court also notes in passing that the software was never intended to be used to determine sentence lengths. It was supposed to used by the Department of Corrections to assess risks posed by parolees or those requesting parole. But it does not go so far as to forbid the use of COMPAS scores in sentencing decisions. Nor does it suggest that opening up the algorithm for examination might bring much-needed transparency to the sentencing process. Instead, the Supreme Court says judges must walk a very fine line when utilizing COMPAS scores.

The queasiness that judges feel about algorithmic risk-assesment is reflected in the concurring opinion filed by Justice Patience Drake Roggensack. “Reliance would violate due process protections,” she writes. “Accordingly, I write to clarify our holding in the majority opinion: consideration of COMPAS is permissible; reliance on COMPAS for the sentence imposed is not permissible.”

Unless a whole lot of judicial explanation accompanies every sentencing decision utilizing a COMPAS score, it's going to be almost impossible for defendants to tell whether a judge has just "considered" Northpointe's presentence investigation reports… or "relied" on them. Any sentence not hitting the upper end of the software's recommendations could be viewed as mere "consideration," even if "reliance" might be a more accurate term.

Without being allowed to closely examine COMPAS scores, defendants still aren't being given a chance to challenge any erroneous information that might be included in these reports. The court's reluctance to fully endorse the use of the software in sentencing decisions is a step forward, but it still allows judges to hand down sentences based on secret formulas that have already shown a predilection for recommending longer sentences to certain demographic groups.

Filed Under: algorithms, compas, due process, sentencing, wisconsin

Wisconsin Supreme Court Grants Law Enforcement Broader Justifications For Warrantless Searches

from the hindsight-means-nothing,-says-state-body-that-can-ONLY-examine-things-in-hindsig dept

The Wisconsin Supreme Court has just made it easier for the state's law enforcement officers to search residents' houses without a warrant. A 4-3 decision overturned an appeals court opinion finding the opposite. In doing so, the Supreme Court expanded the reach of the state's "community caretaker function" beyond simply allowing the retention of evidence discovered in "plain sight" to that found behind locked doors as well.

We conclude that the officers in this case reasonably exercised a bona fide community caretaker function when they searched Matalonis's home. The officers therefore were not required to obtain a warrant prior to conducting the search in question, and the evidence of marijuana production they obtained should not be suppressed. Because the search was lawful under the community caretaker doctrine, we need not determine whether the search was also justified as a protective sweep.

The evidence of a marijuana grow operation was behind a locked door. Although Matalonis invited them into the house, he did not agree to a search of this locked room. Other paraphernalia in the house led officers to believe there might be illegal substances on the premises, but uncovered nothing else during the cursory search of the house to determine whether any more victims/perpetrators of the violent act that brought them there in the first place might be on the premises.

According to the majority opinion, the blood found on the locked door justified the warrantless search of the room. As it states, the search may not have been wholly justified in hindsight, but the court isn't here to second-guess officers' actions in circumstances such as these.

It is obvious to all, in hindsight, that Matalonis's home did not in fact contain a "member of the public . . . in need of assistance." But that is not the question before us today. Instead, we must decide whether, "under the circumstances as they existed at the time of the police conduct, [the officers were] engaged in a bona fide community caretaker function." Therefore, we are concerned with the extent of the officers' knowledge at the time they conducted the search, not after.

Hindsight is how the Fourth Amendment is served. If the court refuses to second-guess officers' actions, then there's no reason for it to preside over cases like this at all. It may as well dismiss motions to suppress or civil rights lawsuits out of hand if it's not interested in applying hindsight. Courts are avenues of redress, something that only exists after the fact. With this rationale, the court limits itself to accepting whatever justification officers give for their actions and will apparently base other decisions on the subjective statements of law enforcement rather than the more objective stance the court is supposed to be taking.

As the dissent points out, the discoveries made during the caretaking sweep may have generated probable cause for a search, but probable cause is what officers are supposed to take to judges to obtain warrants -- not to excuse warrantless searches after officers told Matalonis to unlock the door or they'd "kick it down."

On the second floor, in plain view, a police officer did see marijuana and a variety of drug paraphernalia——pipes and other smoking utensils, a small silver grinder, and a ceramic water bong. The officer also encountered a locked door with a few droplets of blood scattered on the door. The officer smelled a strong odor of marijuana coming through the door and heard a fan running behind the door.

The date was January 15; the time was after 3:00 a.m. A reasonable person could infer that a fan is not normally operating at such a date and time merely for purposes of comfortable climate control.

In my view, the officer's observations on the second floor, followed by Charles's refusal to give consent to open the locked door, provided ample probable cause for a search warrant for the locked room to search for drugs. Conversely, the officers would have been hard pressed to make a case for a search warrant to find a body in some condition behind the door. Officers had already accounted for other known occupants of the house, including a basement tenant.

The majority decided not to discuss the other justification given for the warrantless search of the locked room: that it was a protective sweep. This works out better for Wisconsin law enforcement because the officers' actions undercut their stated "need" to perform a protective sweep. Matalonis was questioned by officers and asked to sit in the living room until the sweep had been performed. But despite the allegations of violence, the presence of blood in many open areas of the house and Matalonis' inconsistent statements on the night's event and the number of people present in the house, officers never once placed him in cuffs or otherwise restrained him to ensure their safety.

At any point after the caretaking function had been concluded, officers could have taken Matalonis into custody and acquired a search warrant for the locked room. They had evidence an act of violence had occurred on the premises as well as the drug paraphernalia. But officers decided they had a right to search the room then and there. Instead of the suppression of evidence the appeals court recommended, Wisconsin citizens can now be subjected to bogus warrantless searches under the "community caretaking" function. As long as the function is justified, so apparently is any search of any area that can't be immediately viewed during a sweep of a residence. What should have resulted in a search warrant instead presented itself as a threat to "kick a door down," and the state's Supreme Court says that sort of thing is perfectly OK.

Filed Under: 4th amendment, supreme court, warrantless searches, warrants, wisconsin

Cable Company Totally Unsure What Neighborhoods It Serves, Wants $117,000 For Broadband Service

from the bungled-and-the-botched dept

Here's a tip if you're looking to move or building a new house: get your ISP to write you a letter confirming that they service your new address. While you're at it, get three copies of it from three different executives, have it notarized, and force the ISP to swear a blood oath, because even then you may find yourself without service at your new address. As we've noted a few times, users often assume ISPs actually know what neighborhoods they service, only to later have a Kafka-esque introduction to the U.S. broadband industry's blistering incompetence and dismal customer service.

The latest example comes via a Wisconsin resident who planned to build a new home on a lot both Frontier Communications and Charter Communcations said they were able to service. To be sure, the user double and triple-checked with Charter before beginning the build process:

"Despite not being in a densely populated area, Marshall said the lot was advertised as "cable-ready." Before committing to the purchase, Marshall said, “I looked on Charter’s website, and I typed in the address of the lot, and it said, ‘yep, we can service you.’" Just to make sure, Marshall said he looked up the addresses of neighboring homes and got the same answer. Just to make extra sure, Marshall said he called Charter “and gave them the address, and they said, ‘yup we can service that lot.’" Construction on the house began in November 2014 and finished in June."

The user did everything right short of getting the promise in writing. And guess what? Charter wasn't able to service that lot. Worse, after admitting error about its own network coverage, the cable operator informed the user it would cost him a whopping $117,000 to provide service:

""Once my house was built, I called [Charter] to set up service, and that’s when they told me they made a mistake. I was too far away from their network," Marshall said. In June, a Charter construction coordinator told him he’d have to pay $117,000 to cover all labor, materials, and permitting for a network extension to serve the home. Marshall would have to pay the entire $117,000 up front before Charter would begin construction, and the price would not go down even if other homeowners signed up for service.

The user got the same runaround from Frontier Communications, who originally promised it was able to deliver 24 Mbps to that address, only to later admit it could only provide around 3 Mbps -- at best (and which will likely be force-bundled with an expensive legacy voice landline the user won't want). The kicker is that both of these companies have lobbied to erect state barriers to community broadband, which is often an organic response to this kind of dismal coverage and customer service. So again, this is a market where you've got lumbering ISPs with absolutely no incentive to expand or improve service, literally writing state law ensuring that nobody can do anything about it.

Fortunately the FCC has finally started to attack these state laws so communities can improve their own broadband in cases of market failure, but it's a contentious fight with states busy pretending that it's their god-given right to erect duopoly-protectionist laws written by AT&T and friends. Meanwhile, our national broadband map, which cost $300 million to build, often doesn't help matters. Plug your name into the government mapping apparatus, and it will often not only hallucinate broadband providers in your area, but it will utterly fabricate available speeds. That's because it relies largely on the word of ISPs eager to pretend that the U.S. broadband industry is awash in competition, with much of the data never fact checked.

And good news, everyone! Charter Communications is on the cusp of buying both Time Warner Cable and Bright House Networks (in a $79 billion merger), and Frontier is busy gobbling up AT&T and Verizon's unwanted DSL territories. In other words, there's a pretty good chance this exact brand of incompetence could be coming to your neighborhood very soon.

So if you're moving to a new area and an ISP claims they offer broadband, get it in writing. Wander the neighborhood asking neighbors what services they can get. Get sixteen company executives on tape insisting they provide service. Because most U.S. ISPs not only don't know the physical footprint of their network, it's abundantly clear they have absolutely no interest in accurate data, customer service, or being accountable for false promises. When you're the only game in town, you quite frankly don't have to give a damn. And when you're the one buying and writing state telecom law, it's remarkably easy to keep it that way.

Filed Under: broadband, cable, isp, wisconsin
Companies: charter communications, frontier communications

Man Gets $35k Settlement After Arrest For Posting 'Fuck The Fucking Cops' On Department Facebook Page

from the 1A-ftw dept

It's becoming quite a period of time for the profane when it comes to interacting with law enforcement, apparently. We had just recently discussed one man's victory in federal court over a town that didn't appreciate him writing "Fuck your shitty town bitches" on a speeding ticket he'd mailed in. Well, back in 2012, another delightful human, Thomas Smith, was apparently arrested for being an ass on the Arena, Wisconsin, Facebook page.

In July 2012, the Village of Arena in Wisconsin posted a note on its Facebook page announcing a slew of arrests. Smith then posted "Fuck ths fucking cops they ant shit but fucking racist basturds an fucking all of y'all who is racist," as well as "Fuck them nigers bitchs wat you got on us not a dam thing so fuck off dicks." He was arrested for disorderly conduct and unlawful use of a computer and telephone. He was originally convicted by a local jury, but that decision was overturned by the Wisconsin Court of Appeals, which ruled Smith's First Amendment rights were violated.

Um, yeah, memo to the police in Arena: being a jerk to police, calling them names, and using deplorable language is no more a violation of the law than blatantly mispelling the insults themselves and using the kind of grammar that I actually kind of wish would get people thrown in the clink. Likely the jury was presented with what Smith had written and decided he was a jerk and ruled against him. That doesn't change the fact that the arrest and conviction were both unconstitutional, of course. And, after Smith and his attorney sued the village, the village agreed, settling with Smith for $35,000.

Smith and his attorney, Tom Aquino, sued the village for an unspecified amount. Wednesday, the village settled with him, according to Aquino.

"We have always believed that the defendant’s liability was clear. Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone," Aquino wrote in a blog post. "In our country, we are entitled to criticize our government with passion. The use of some four-letter words in the course of doing so is never a crime."

It can't be easy to be a good cop and have to endure a profane tirade on a public town Facebook page, but that doesn't excuse the violation of basic civil rights in retaliation. And Smith's speech, while lacking poetry and panache, is certainly protected. It's about time law enforcement realizes that profanity is still free speech so that they can stop costing municipalities this kind of settlement money.

Filed Under: arena, first amendment, free speech, police, social media, wisconsin

Wisconsin Legislators Trying To Carve Hole In Open Records Law With Amendments To State Budget Bill

from the stupid-nosy-public dept

No one ever praised politics as a germ-free environment, but Wisconsin may be taking it to new levels, aiming for Chicago-esque levels of dirty politics. The state appears to have several people in positions of power operating in purely partisan self-interest, leading to governmental abuses.

For years now, Milwaukee County District Attorney John Chisholm has ostensibly been in the process of investigating the embezzlement of $11,000 from the local Order of the Purple Heart. This investigation has taken the form of a "John Doe" investigation, which couples broad daylight raids on people's homes and businesses with draconian gag orders and a pile of sealed documents.

John Doe investigations alter typical criminal procedure in two important ways: First, they remove grand juries from the investigative process, replacing the ordinary citizens of a grand jury with a supervising judge. Second, they can include strict secrecy requirements not just on the prosecution but also on the targets of the investigation. In practice, this means that, while the prosecution cannot make public comments about the investigation, it can take public actions indicating criminal suspicion (such as raiding businesses and homes in full view of the community) while preventing the targets of the raids from defending against or even discussing the prosecution’s claims.

These raids have been ongoing since 2010, but you won't read much reporting on it because those being raided are forbidden to discuss anything that has occurred. It's a wholly autonomous process that can be initiated by one party, which then controls the narrative from that point forward. It's completely at odds with due process, and in this case, appears to be wholly politically-motivated. John Chisholm is a Democrat. His targets have all been Republicans/conservatives.

Not that the conservative side is necessarily any better. Wisconsin Republicans are also in favor of government secrecy. Some "fixes" of the state's open records laws were added to the state's budget bill, carving out a sizable -- and easily abusable -- exception for a variety of government documents. (via Metafilter)

Under the provision, all "deliberative materials" would be exempt from the open records law. That includes all materials prepared in the process of reaching a decision concerning a policy or course of action or in drafting a document or communication.

The exemptions are even more extensive for members of the Legislature and their staff. They would not have to disclose communications between one another, the public or others who work for the Legislature, such as staff in the clerk's and sergeant at arms offices. The protection extends to a wide array of legislative business, including drafting bills, developing public policy, all aspects of legislative proceedings such as committee hearings, and investigations and oversight.

Legislative service agencies would be required to keep all communications, records and information confidential.

It's not just the legislature in line for additional open records exemptions. The amendment could expand this "coverage" to all government agencies, all the way down to school boards. This change was backed by Governor Scott Walker and leading Republicans. Walker has had his own "problems" with open records requests, which have resulted in "recent embarrassing stories." Now that the backlash has begun, even those who voted for it are now claiming it goes too far.

State Rep. Dale Kooyenga (R-Brookfield), who voted for the motion, said he is now concerned about its impact.

"The scope of the provision appears to go beyond what I was briefed on, and further consideration of the matter is warranted and welcome," Kooyenga said. "I'll be listening to feedback."

Because no one reads the stuff they vote for, much less performs any due diligence.

"No comment," [Sen. Tom] Tiffany said when asked if he supported the open records changes shortly before he voted for them.

Similarly, moments before he sat down for debate on the provisions, [Sen. Michael] Schraa demurred on whether he would back them.

"I have to read through it more," he said before casting his yes vote.

Just before voting for the measure, [Sen. Howard] Marklein said he had no idea who sought the change and didn't know if he could support it.

"I don't know yet," he said. "I'll know when I vote."

So, how does a shady remix of the state's open records law end up on the governor's desk if no one seems all that thrilled/knowledgeable about it? Because voting with hearts/minds is way less popular than voting along party lines. The committee voting on the budget amendments included four Democrats and 12 Republicans. All Democrats voted against it. Every Republican voted for it.

Now that the backlash has begun, Governor Walker's office is claiming it will "work with legislators" to fix the amendment. Notably, the office has not indicated Walker will veto the amendment, which would be a much better "fix" than working secretively with amenable legislators to keep as much of the broad expansion intact.

The government -- at all levels -- will trend toward increased opacity if not properly held in check. Legislators, given the opportunity, will introduce legislation that best benefits legislators. On the plus side, thanks to the internet's near-instant access and a variety of non-mainstream news sources, citizens are more informed than ever. This obviously presents a "problem" for government entities who prefer darkness. An amendment appended to a budget bill presented the Wisconsin government with an opportunity to lock the public out of its sausage-making, but the speedy spread of negative coverage has ensured it won't pass unnoticed... or unopposed.

Filed Under: deliberative motions, john chisholm, open records, state budget, wisconsin

Wisconsin Town Sends In The BearCat Tank To Collect Civil Fine From Seventy-Year-Old

from the tanks-for-nothing dept

So, hey, let's say you're an old guy in a tiny town in central Wisconsin. Old, like, seventy-five, let's say, and the tiny town is farm country where you have a twenty-acre plot of good old American heartland. Now, let's say that the municipality hasn't appreciated the fact that you've kept your tractors out on the land you own and even went so far as to get a judge to level thousands of dollars of fines on you for not putting your toys away, because that's apparently a thing that can happen. Now let's say you've been ignoring these civil fines for some time. Under those conditions, would you expect this to show up on your lawn?

Could you repeat that? I couldn't hear your answer over the sound of you crapping your pants...

Yes, along with a couple dozen SWAT officers, 75-year-old Roger Hoeppner had his property assaulted by a BearCat armored vehicle for the crime of not keeping things as tidy as the local government would like and refusing to pay the fines they levied.

Marathon County sheriff’s captain Greg Bean declined to answer multiple requests for comment, but told the Milwaukee Journal Sentinel that the large police presence was called in because law enforcement officials expected they would have to seize large equipment.

See, this is our fault. I don't think any of us realized that SWAT teams moonlight as large-format moving companies. I always thought they were for things involving tactics more complicated than the tactics of getting a tractor onto the hitch of a Mack truck. But, hey, what do I know? I'm sure Mr. Bean isn't prone to saying super ridiculous stuff or anything. So how about that BearCat?

“I’ve been involved in about five standoff situations where, as soon as the MARV showed up, the person gives up,” Bean told the Journal Sentinel.

I don't think the fact that the BearCat makes your job super easy to do is the proper justification for its deployment. If it was, why bother with the BearCat? Why not just bring the perp's mother to the scene and threaten to put a bullet through her head if perp doesn't give up immediately. Sure, it would be wholly unethical and inappropriate, but I bet Bean could still use the quote above, so all's good, yes?

This is yet another obvious and gross misuse of tactical and/or military-grade equipment in a haphazard way. Hoeppner owes Stettin, his city of 2500 residents, $80,000 in fines for not keeping his property as clean as the city would like. In other words, he left his tractors out. As a result, he faced down a BearCat and a SWAT team, which then escorted him to the bank where he paid his fines and was escorted back out by SWAT. All of this because the authorities couldn't be bothered to come up with a creative way to get Hoeppner out of his house.

“I just don’t understand why a dollar and a half of postage on an envelope that I would have had to pick up at the Wausau post office wouldn’t have done the same thing as 24 officers and an armored vehicle,” Hoeppner told the Guardian. “The United States is not supposed to terrorize its hardworking people."

Good one, sir.

Filed Under: bearcat, fine, greg bean, marathon county, mrap, roger hoeppner, swat, wisconsin

Seventh Circuit Court Upholds Fair Use Win, But Does So With Some Convoluted Reasoning And Bad Assumptions

from the desire-to-mock-politicians-largely-unaffected dept

Another small win for fair use, courtesy of the Seventh Circuit Court of Appeals. There's some history behind the disputed derivative artwork, but that history -- while illuminating -- has nothing to do with the plaintiff or defendants. It does, however, explain why this item came to be, and is integral enough that the Court's decision recounts it during its very brief confirmation of the lower court's decision. [pdf link]

While a student at the University of Wisconsin in 1969, Paul Soglin attended the first Mifflin Street Block Party, whose theme (according to Soglin) was “taking a sharp stick and poking it in the eye of authority.” Now in his seventh term as Mayor of Madison, Wisconsin, Soglin does not appreciate being on the pointy end. He wants to shut down the annual event. For the 2012 Block Party, Sconnie Nation made some t-shirts and tank tops displaying an image of Soglin’s face and the phrase “Sorry for Partying.” The 54 sales, on which Sconnie Nation cleared a small profit, led to this suit, in which photographer Michael Kienitz accuses Sconnie Nation and its vendor of copyright infringement.

The original photo, which was taken by Kienitz and downloaded from Soglin's website, is shown below, along with Sconnie Nation's t-shirt design.


Sconnie Nation admitted that the photo from the site was the starting point, so there's no question the rights belong to the photographer. But the photographer also admitted that he "gave" the photo to Soglin to use on his website (rather than licensed) and make freely available for download. These facts don't necessarily excuse the alleged infringement when applying the four-factor Fair Use test, as the court does here.

There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-­copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-­use privilege under §107 is not designed to protect lazy appropriators.

As the court points out, the fair use protection for parody exists to prevent copyright owners from shutting down any uses that might make them (or their subjects) look less than dignified (something the photographer promised to his subjects despite having no legal way to prevent situations like this from occurring).

But the fact that the appropriators could have started anywhere doesn't make this infringement (even if the court labors under the misimpression that the world is loaded with copyright-free images). Stacking the t-shirt up against the other prongs of the Fair Use defense, the Seventh Circuit Court finds the plaintiff's claims wanting.

A t-­shirt or tank top is no substitute for the original photograph. Nor does Kienitz say that defendants disrupted a plan to license this work for apparel. Kienitz does not argue that defendants’ products have reduced the demand for the original work or any use of it that he is contemplating.

The court notes that Kienitz could have claimed that this lampooning would diminish photographic work for other dignitaries, seeing as he promised to keep their dignity intact when licensing, but those claims were never raised during this case's trip through the court system.

The court also points out that significant transformation took place during its trip from the website to Nation's t-shirt. The original photo was stripped of its background, was "posterized," re-colored and altered enough that the defendants could have achieved the same effect by "using a snapshot taken on the street." The court notes that the defendants made a small profit (which doesn't instantly negate a Fair Use defense -- although the court's wording here seems to indicate it does) but that is mitigated by the "political purposes" of the design. And even if Kienitz had decided to claim that the parodic work would harm his photography business in the future, the court says that "by the time the defendants were done, almost none of the copyrighted work remained."

While "lazy appropriators" were smacked around a little, and the false assumption that making money negates Fair Use defenses was given a little credence, it's another win for transformative creations, even if it's one that is skewed to statutory factors rather than the concept of fair use itself.

The decision is also a bit strange in the fact that it points out the significant transformation of the original Soglin photo, while at the same time dismissing the transformative use arguments raised by the Supreme Court (Campbell v. Acuff-Rose Music) and the much broader Second Circuit Court decision in Cariou v. Prince. The judge raises both cases by name but then points out that "transformative use" isn't one of the four factors under consideration and posits that entertaining the Cariou defense could undermine rights holders' control over derivative works.

The Second Circuit has run with the suggestion and concluded that “transformative use” is enough to bring a modified copy within the scope of §107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). Cariou applied this to an example of “appropriation art,” in which some of the supposed value comes from the very fact that the work was created by someone else.

We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2).

By making this argument, the court conflates two distinct terms -- transformative use and derivative works (Section 106(2)) -- making transformative use slightly weaker, at least in this venue. Instead, the court focuses on the four statutory defenses, mainly those that could negatively affect the creator's future earnings. In doing so, it arrives at the correct conclusion, but leaves a muddied blueprint in its wake for future rulings to follow.

Filed Under: 7th circuit, copyright, fair use, madison, paul soglin, sorry for partying, transformative use, wisconsin

Wisconsin Court Broadens FOI Exception, Allowing Government Agencies To Deny Requests Based On Perceived Motive

from the as-if-government-agencies-need-any-more-excuses dept

An interesting -- and possibly harmful -- ruling on public records requests has just been issued by the Wisconsin Court of Appeals. Although the ruling has a very limited jurisdiction, it could be used to push for similar legal activity elsewhere. Journalism student David Schick (who was last seen drawing the ire of Georgia State Attorney General Sam Olens over the release of public documents) has the story.

In a ruling earlier this month, the Wisconsin Court of Appeals set a precedent of allowing state officials to consider the purpose of a citizens’ public records request before handing over documents…

According the the appeal, “[Korry] Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.

How did Korry Ardell get himself excluded from the "general class of persons?" By being generally abusive and violent, it would appear. The person whose records he was seeking had previously obtained a restraining order against Ardell -- something he had violated in the past, leading to a six-month visit to a local correctional facility.

The decision groups Ardell with others who are denied access to public records -- namely, prisoners. But Ardell's time had been served and he was no longer incarcerated when the request was made. Ardell's previous willingness to violate court orders does seem to give him a higher-than-normal chance for recidivism, something the court also took into account when rendering this decision.

Milwaukee city attorney Melanie Rutledge feels this is just a reaffirmation of current restrictions on FOI requests. Unfortunately, the court goes even further than simply aligning Ardell with those currently being incarcerated by suggesting that past criminal activities may be able to exclude persons from filing FOI requests, even if time has been served.

Ardell disagrees with this conclusion and argues that Levin v. Board of Regents of the University of Wisconsin System, 2003 WI App 181, 266 Wis. 2d 481, 668 N.W.2d 779, stands for the proposition that identity is never a proper consideration when determining whether information should be released under the Wisconsin open records law. Citing WIS. STAT. § 19.32(3), Ardell asserts that the only exception to this hard-and-fast rule is for committed and incarcerated persons.

Indeed, Levin stands for the general proposition “that the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records.” Id., 266 Wis. 2d 481, ¶14. However, as we set forth above, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry that we determine on a case-by-case basis…

Ardell’s violent history with the MBSD employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons. See WIS. STAT. § 19.32(3). Ardell has forfeited his right to disclosure of the MBSD employee’s employment records by demonstrating an intent to hurt the employee, and it would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment.

While the decision does appear to make sense in this situation, it opens up the possibility of future request denials based on the requester's personal background, or the responding agency's perception of the requester's motive. ("Mosaic theory," anyone?) The court states that this will be determined on a "case-by-case basis," but that's a potentially expensive remedy that not every requester will be able to avail themselves of. This has the potential to route more requests through the Wisconsin court system, aligning this state with the US government itself, which seems to prefer legal battles to transparency.

Filed Under: foia, freedom of information, korry ardell, motive, wisconsin

NSA Recruiters Get Smacked Down By University Of Wisconsin Students

from the work-for-the-nation's-most-hated-employer! dept

I'm not sure what the NSA recruiters were expecting when they made a recruiting trip to the University of Wisconsin, but I'm sure the following wasn't it. Maybe they thought they wouldn't be challenged. The sort of students looking to work with the NSA would presumably have had a healthy deference to authority drilled into them since an early age. Maybe they thought that any challenges could be waved away with a simple refusal for "security reasons." Maybe they thought the attending instructor would attempt to moderate the discussion.

None of that happened.

The student who transcribed the recording of the recruiters' visit thought there might be a bit more discussion about current events, and how Snowden's actions had affected recruiting and the agency itself. Instead, more time was spent trying to paint the NSA employees as a fun-loving bunch who spy all day before heading out to blow off steam getting drunk, wearing costumes and singing karaoke. (I am not making this up.)

One of the recruiters discussed how they tend to socialize after work, dressing up in costumes and getting drunk (referenced below). I can imagine that also exerts a lot of social pressure and works as a kind of social closure from which it would be difficult to escape.

Yes, NSA agents are human beings and will relax like other humans do once off the clock. There's nothing wrong with that, but the recruiters seemed unwilling to be dragged into a discussion of the actual "job," and the repercussions of the work they do. Instead of meeting the questions head on, they both made the rather poor decision to play word games with linguistic students.
Students Question the NSA at Recruiting Session by Madiha

Here are few of the highlights.

Student A (female): I have a lifestyle question that you seem to be selling. It sounds more like acolonial expedition. You know the “globe is our playground” is the words you used, the phrasing that you used and you seem to be saying that you can do your work. You can analyze said documents for your so-called customers but then you can go and get drunk and dress up and have fun without thinking of the repercussions of the info you’re analyzing has on the rest of the world. I also want to know what are the qualifications that one needs to become a whistleblower because that sounds like a much more interesting job. And I think the Edward Snowdens and the Bradley Mannings and Julian Assanges of the world will prevail ultimately.

NSA_M: I’m not sure what the –

Me: The question here is do you actually think about the ramifications of the work that you do, which is deeply problematic, or do you just dress up in costumes and get drunk?

...

NSA_M: We take it very seriously that when we give info to our policy makers that we do give it to them in the right context so that they can make the best decision with the best info available.

Student B: Is that what Clapper was doing when he perjured himself in front of Congress? Was he giving accurate information when he said we do not collect any intelligence on the US citizens that it’s only occasionally unintentionally or was he perjuring himself when he made a statement before Congress under oath that he later declared to be erroneous or at least, untruthful the least truthful answer? How do you feel personally having a boss whose comfortable perjuring himself in front of Congress?

NSA_F: Our director is not general Clapper.

Student B: General Alexander also lied in front of Congress.

NSA_F: I don’t know about that.

Student B: Probably because access to the Guardian is restricted on the NSA’s computers. I am sure they don’t encourage people like you to actually think about these things.

…

Me: Right, but you’re here recruiting so you’re selling the organization. I mean I’m less interested in what your specialized role is within in the NSA. I don’t care. The fact is you’re here presenting a public face for the NSA and you’re trying to sell the organization to people that are as young as high schoolers and trying to tell us that this is an attractive option in a context in which we clearly know that the NSA has been telling us complete lies. So, I’m wondering is that a qualification? [ref. to earlier question: "So, this is a job for liars?"]

NSA_F: I don’t believe the NSA is telling complete lies. And I do believe that you know, people can, you can read a lot of different things that are portrayed as fact and that doesn’t make them fact just because they’re in newspapers.

Who knows what song you have to belt out to shake off something like this, but whatever it was, I'm sure recruiters M and F were at least a half-dozens sheets to the wind when they did it. It's tough to find a fiery, angst-unloading track written from the perspective of The Man, so perhaps they settled for a quiet duet of Radiohead's "Fitter, Happier," a song most normal people don't find aspirational.

Filed Under: free speech, jobs, nsa, nsa surveillance, recruiters, wisconsin

Wisconsin Warns: If You Tweet Photos Of Your Completed Ballot, You Can Go To Jail

from the civic-pride-and-handcuffs dept

It's election day, of course, and with that comes some amount of civic pride among a number of voters. That's a good thing, for the most part, and in this era of social media and people sharing photos and videos about their lives, plenty of people are sharing imagery of their own ballot. Perfectly reasonable, right? Well, yes, except when that runs into laws designed to keep your ballots secret. There are, of course, good intentions behind such laws. But mixed in with all those local laws concerning camera usage inside a polling place are some that could cause trouble for people doing something quite ordinary. For example, it appears that people in Wisconsin who decide to Instagram/Tweet/Facebook an image of their ballots, have committed a class I felony, election fraud. And this doesn't appear to just be a law that the state is going to ignore either. It's been issuing warnings to people that they could face felony charges if they do post those photos. Undoubtedly, many will be unaware that they're committing election fraud when they thought they were just showing civic pride. One hopes that officials in Wisconsin, and other states, take the context into account before moving forward with any legal responses.

Filed Under: civic pride, elections, felony, photographs, sharing, voting, wisconsin