Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse

from the stop-doing-this-kind-of-shit-and-you-can-stop-being-sued-for-it dept

For the second time in about as many weeks, an appeals court has handed down a decision denying qualified immunity to a government employee. That's good! We don't see a lot of these. Getting more than one in a month almost feels excessive, as if we're being set up by the courts for a few months of anger and disappointment to offset this judicial largesse.

Offsetting this unexpected goodwill towards the appellate courts in general is this fact: both cases also involve what should unquestionably be obvious violations of rights. Both cases involve fabricated evidence.

The one recently handled by the Third Circuit alleged officers hid evidence that would have cleared a man falsely accused of murder… and they, along with the prosecutor, kept this information from the imprisoned man for 25 years. Truly obscene and truly a blindingly obvious violation of rights, as the court noted:

We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.

When you're that awful, courts don't need a case directly on point to deny you immunity.

The same goes for Marcia Tuggle, a caseworker for the Alamosa (CO) Department of Human Services. While investigating suspected child abuse after a doctor diagnosed a two year old child with serious brain injuries, she accompanied police officers to interviews with suspects. The child was in the care of Patrick Ramirez at the time the injury was discovered, left there by his mother. The child died two months later and police opened an investigation.

They first interviewed Ramirez who told police he was carrying the child when he fell. The officer and the social worker also interviewed the boy's biological mother, Krystal O'Connell. Here's how that went down, according to the Tenth Circuit Appeals Court decision [PDF]. (h/t Volokh Conspiracy)

Sergeant Alejo first interviewed Ms. O’Connell without anyone else in the room. Later the same day, Sergeant Alejo and Ms. Tuggle conducted a joint interview of Ms. O’Connell. According to Ms. O’Connell, Sergeant Alejo hurled accusations while Ms. Tuggle watched. Ms. Tuggle noted the responses, stating that Ms. O’Connell had admitted shaking Kyran and slamming him on the bed. Ms. O’Connell denied saying this and presented evidence that Ms. Tuggle had fabricated the confession

O'Connell was convicted of child abuse. Her conviction was overturned in 2017. This lawsuit followed.

Unbelievably, the social worker argued she should be granted qualified immunity because there was no prior case law that would have made her aware that fabricating a confession and handing it over to be used during the investigation and prosecution of O'Connell was a violation of her rights.

Alternately, she argued she wasn't actually at fault at all because her notes were for her own social services investigation, not the criminal investigation that ended in O'Connell's conviction. Wrong on both counts, says the Tenth Circuit.

From Ms. Tuggle’s own testimony, the existence of an ongoing criminal investigation would have been obvious. And Ms. Tuggle’s own notes reflect Ms. O’Connell’s confession to the crime of child abuse. From the existence of the criminal investigation and the confession of child abuse, Ms. Tuggle recognized that her office would need to share her notes with the sheriff’s office.

So under Ms. O’Connell’s version of events, Ms. Tuggle obviously knew—when she fabricated the confession—that her fabricated report would go to the sheriff’s office to advance the criminal investigation. Given that knowledge, any reasonable social worker in Ms. Tuggle’s position would have known that lying about a confession would contribute to the prosecution of Ms. O’Connell for child abuse.

The rights violation is so obvious there's no need to find exact precedent.

Given that knowledge, Ms. O’Connell’s version of events would create an obvious denial of due process. We thus affirm the denial of summary judgment to Ms. Tuggle.

Equally unbelievably, there's a dissent -- written by Judge Mary Beck Briscoe -- that argues the social worker should be granted immunity because she had no way of knowing fabricating a confession would violate someone's rights.

When considered in the factual context of this case, I find no clearly applicable Tenth Circuit or Supreme Court case law that would have alerted Defendant that her actions would violate the constitutional rights Plaintiff now asserts.

As to the cases cited by the plaintiffs, the dissenting judge says this:

None of those cases would have provided a reasonable social worker in Defendant’s position with fair notice that fabricating a social services report violates constitutional rights related to a criminal investigation. Franks and Pierce do not describe similarly situated officials. Those cases described law enforcement officers or those working for law enforcement for the purpose of investigating crimes. Here, Defendant was a social worker responsible for drafting a social services report. To be sure, Sergeant Alejo was present during Defendant’s interview with Plaintiff, and Defendant was likely aware of a potential criminal prosecution. The mere presence of a law enforcement officer, however, is clearly dissimilar from a forensic scientist investigating crime scene evidence while employed by the police department and knowing full well the evidentiary purpose and importance of her report. Thus, Defendant lacked fair notice that the holdings of Franks or Pierce would apply to a social worker in her position.

But why should someone need "fair notice" they can't -- as government employees with the power to deprive people of their liberties -- falsify confessions? Who knows, but Judge Briscoe believes this social worker shouldn't be held accountable for her inexcusable actions simply because no other social worker in a similar situation had done anything equivalently awful prior to the Tenth Circuit taking up this appeal.

Do you need another reason to hate the doctrine of qualified immunity? Judge Briscoe supplies one. [Emphasis in the original.]

As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason. And in determining whether Defendant is entitled to qualified immunity, we must look to the constitutionality of Defendant’s actions.

Thanks to qualified immunity, government employees can engage in actions that are morally or even criminally wrong and expect to get away with it simply because no court previously declared similar immoral or criminal acts constitutional violations. So, it's basically the honor system but for people who don't have any.

People who aren't government employees can't escape lawsuits when they fuck up someone's life enough that they get sued for it by telling the court there's no precedent directly correlating to their fuckery. But government employees can do this, which means those we expect to see held to a higher standard frequently aren't -- not by their supervisors, not by the agencies they work for, and in far too many cases, not by this nation's courts.

Filed Under: 10th circuit, falsified confsession, qualified immunity

Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust'

from the put-up-or-shut-up dept

A year ago, Techdirt wrote about an important lawsuit in India, brought by the academic publishers Elsevier, Wiley, and the American Chemical Society against Sci-Hub and the similar Libgen. A couple of factors make this particular legal action different from previous attempts to shut down these sites. First, an Indian court ruled in 2016 that photocopying textbooks for educational purposes is fair use; the parallels with SciHub, which provides free access to copies of academic papers for students and researchers who might not otherwise be able to afford the high subscription fees, are clear. Secondly, the person behind Sci-Hub, Alexandra Elbakyan, is fighting, rather than ignoring, the case, as she has done on previous occasions.

One manifestation of her new pro-active approach is a tweet she posted recently. It included a screenshot of an email she wrote to Nature magazine, which had contacted her about a forthcoming article on the Indian court case. Following standard practice, the journalist writing the article, Holly Else, asked Elbakyan to comment on some of the accusations the academic publishers had made against Sci-Hub. Her responses are fascinating, not least because they provide Elbakyan's perspective on several important issues.

For example, according to the publishers' comments as transmitted by Else, "Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data". In reply, Elbakyan points out Sci-Hub is unique, and the use of the phrase "Pirate sites like Sci-Hub" is a clever attempt to lump Sci-Hub in with quite different sites, thus prejudging the legality of its activities. Elbakyan says that it's academic publishers -- not Sci-Hub -- which threaten the progress of science:

open communication is [a] fundamental property of science and it makes scientific progress possible. Paywalled access prevents this and is a great threat to science. Also the great threat is also when the whole scientific knowledge became the private property of some corporation such as Elsevier, that has full control of it. That is the threat, not Sci-Hub.

Elbakyan points out that Sci-Hub doesn't threaten the "integrity of the scientific record", since she simply disseminates copies of the academic papers without changing them in any way. But perhaps the most interesting part of her reply concerns the accusation that Sci-Hub threatens the safety of university and personal data. Techdirt has written previously about claims that Elbakyan allegedly has links to Russian intelligence, and that Sci-Hub is some kind of security risk. According to Else, the publishers assert:

Pirate sites like Sci-Hub compromise the security of libraries and higher education institutions to gain unauthorized access to scientific databases and other proprietary intellectual property, and illegally harvest journal articles and e-books.

Sci-Hub uses stolen user credentials and phishing attack to extract copyrighted articles illegally

These are serious allegations, and ones that have been made several times in the past. Elbakyan's response is probably the first time that she has addressed them directly:

Do they have any actual case when Sci-Hub somehow compromised the security of any library or a person? Any person that complained about credentials that were 'stolen' from them? Or is it again, nothing more than empty accusations. Nobody is complaining about 'compromised security' except academic publishers.

In other words, it is time for Elbakyan's accusers to put up or shut up. She concludes by stating that "Any law against knowledge is fundamentally unjust", and hopes that "Nature will have enough honesty to publish my comments in full.

It didn't, of course.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic journals, academic research, alexandra elbakyan, copyright, education, holly else, india, publishers, security
Companies: nature, sci-hub

Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment

from the this-is-just-free-speech,-they-said,-breaking-windows-and-trampling-cops dept

A handful of Proud Boys members charged with crimes related to the January 6th raid on the Capitol building are arguing their actions are protected by the First Amendment. According to the defendants, the raid they participated in was nothing more than a protest. Alternatively, they're arguing one of the laws being used against them is unconstitutionally overbroad, turning otherwise legal activity into illegal activity.

Unfortunately for these would-be insurrectionists, the DC federal court doesn't find any of their arguments sympathetic. (via Courthouse News Service)

This is the law the Proud Boys members are challenging, as related in the recitation of the indictment by the DC court [PDF]:

The First Superseding Indictment alleges that Defendants helped plan and orchestrate the events of January 6. Count One charges them with conspiracy under 18 U.S.C. § 371. Defendants allegedly conspired “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol and its occupants from those who had unlawfully advanced onto Capitol grounds,” in violation of 18 U.S.C. § 231(a)(3).

Defendants—who allegedly held leadership positions or planning roles with the “Proud Boys” organization—purportedly carried out this conspiracy by, among other things, encouraging other Proud Boys to attend the protest on January 6; “[u]sing websites, social media, and other electronic communications to raise funds to support travel and equipment purchases for the visit to Washington, D.C.”; “[o]btaining paramilitary gear and supplies—including tactical vests, protective equipment, and radio equipment—for the January 6 attack”; “[s]cheming to evade detection by law enforcement by dressing ‘incognito’ rather than wearing Proud Boys colors”; traveling to Washington, D.C., “prior to the attack”; using “programmable handheld radios, encrypted messaging applications, and other communications equipment to communicate and coordinate the January 6 attack”; “[d]ismantling” police barricades, and “[s]torming past” those barricades and law enforcement officers “in efforts to disrupt the proceedings at the Capitol”; and obtaining “entry into the Capitol building as a result of damage to windows and doors that otherwise would have precluded entry.”

Then there are the more overt acts, which turned the conspiracy into a reality. These included acquiring gear, mobilizing Proud Boys members, leading a group of Proud Boys into the Capitol building, using a riot shield to break a window to allow others to access the building, recording videos while inside the Capitol building, and spending the rest of the day celebrating their illegal actions via social media platforms and encrypted messaging services.

Here's the main argument the Proud Boy defendants offered in their motion to dismiss the indictment:

According to Defendants, Section 1512(c)(2) does not apply here because Congress’s certification was not an “official proceeding,” and the phrase “otherwise obstructs, influences, or impedes” is limited to conduct like the destruction or alteration of documents and other records. In addition, if the statute is not read as they propose, Defendants argue that it is vague as applied; contravenes the rule of lenity; conflicts with the novel-construction principle; and violates the First Amendment.

Here's the court's short take before it goes on to explain why:

None of these arguments succeeds.

Here's why:

[E]ven if an “official proceeding” had to be quasi-adjudicative or quasi-judicial in some way—a requirement missing from the plain text of the statute—because Congress’s certification of the Electoral College vote has some of those features, it would pass the test. As explained above, it is a formal process. [...] In addition, the Vice President, as President of the Senate, serves as “presiding officer” while the votes cast by Electors are counted. 3 U.S.C. § 15. As in a court of law, members of Congress may object, which in turn causes the Senate and House of Representatives to separately consider and render their separate “decision[s]” on the objection.” Further, after the count is finished, the certification must end with a “result declared.”

The rest of the arguments fail as well. And here's what the court has to say about the statute as applied to the Proud Boys' alleged actions, which the defendants argue allows the government to punish them for engaging in protected speech. The court says the Proud Boys have no argument worth considering.

The Court first turns to the threshold question of whether the conduct with which Defendants are charged is protected by the First Amendment at all. [...] It is not. Defendants are alleged to have “corruptly” obstructed, influenced, and impeded an official proceeding, and aided and abetted others to do the same—that is, they allegedly “unlawfully entered the Capitol grounds or the Capitol building to . . . stop, delay, and hinder Congress’s certification of the Electoral College vote,” and succeeded in doing so. And more specifically, they are charged with conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties. No matter Defendants' political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment.

Perhaps some of their activities on January 6 may have been covered by the First Amendment, but the actions they're being charged for are not.

Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.

The Proud Boys had plenty of available options to express their displeasure with the outcome of the 2020 election -- options fully protected by the First Amendment. Instead, they chose to violate a handful of laws.

Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6, without resorting to the conduct with which they have been charged.

The motion is denied. The Proud Boy defendants will continue to face charges for their coordinated raid on the Capitol. It may be that some of these charges fail to stick, but what's been alleged isn't covered by the First Amendment, something the defendants surely knew when they decided they could somehow reverse history by shutting down the certification of the presidential election results.

Filed Under: 1st amendment, capitol, insurrection, protests, proud boys, raiding the capitol

US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco

from the forum-selling dept

We've written a bit about Judge Alan Albright, the only judge in the US district court in Waco, Texas. Judge Albright, a former patent litigator, decided that, upon taking the bench, he'd become the friendliest court for patent cases in the entire country. He even went around advertising that patent plaintiff's should file there and they've taken him up on it in droves. Since he's the only judge in the district, all the cases get assigned to him and, at last count, more than 25% of new patent cases are all going to him. He's so busy with patent cases he had to hire a former patent troll lawyer as a magistrate judge to help him out.

He's also, somewhat famously, been pissing off the notoriously pro-patent appeals court for patent cases, the Federal Circuit, by refusing to rule on transfer requests to more appropriate districts, while making the process for patent defendants more expensive and cumbersome. It got so bad that even the generally pro-patent Senator Thom Tillis sent a couple of letters to Supreme Court Chief Justice John Roberts (who oversees the court system) and to the USPTO, about Albright's "forum selling."

It took a little while, but the Administrative Office of the US Courts, has finally responded to the letter sent by Tillis (and Senator Pat Leahy) to Justice Roberts, noting that it appears to be somewhat aware of the problems of Judge Albright.

From a long-standing national policy perspective, the Judicial Conference strongly supports the random assignment of cases and the notion that all district judges remain generalists.... Random case assignment is used in all federal courts and operates to safeguard the Judiciary’s autonomy while deterring judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It bears mentioning that in September 2021, I submitted my Final Report to Congress pursuant to Section (1)(e) of the Patent Pilot Program in Certain District Courts Act, Pub. L. No. 111-349 (2011) counseling against extending the Patent Pilot Program due, in part, to the Judiciary’s longstanding position on random case assignment and to help ensure that all district judges remain generalists.

While admitting that district courts, including the ones in the Western District of Texas "have wide latitude to establish case assignment systems," the Administrative Office of the Courts still seems to recognize that there's a problem in Waco and will explore if anything can be done:

Given these varied divisional case assignment policies as well as the concerns that you have raised, I have asked the Committee on Court Administration and Case Management, which has jurisdiction on matters affecting case management, to consider these issues and any recommendations that may be warranted.

That may sound rather muted, but it's still quite noteworthy. The US court system is generally resistant to changes, and just acknowledging that it understands the concerns of Tillis and Leahy, and will explore options already suggests that others in the federal judiciary recognize just how sketchy and corrupt-appearing Judge Albight's courtroom looks right now.

Furthermore, in his year end report on the state of the federal judiciary, Justice Roberts explicitly calls out Albright's activity (though he's too chickenshit to note that it's just Judge Albright who's the problem):

The third agenda topic I would like to highlight is an arcane but important matter of judicial administration: judicial assignment and venue for patent cases in federal trial court. Senators from both sides of the aisle have expressed concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case. Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities. Reconciling these values is important to public confidence in the courts, and I have asked the Director of the Administrative Office, who serves as Secretary of the Judicial Conference, to put the issue before the Conference.

The Committee on Court Administration and Case Management is reviewing this matter and will report back to the full Conference. This issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary.

This was one of only three specific topics he called out, so it seems pretty clear that he's well aware of how Albright has made a complete mockery of his courtroom.

Filed Under: alan albright, federal judiciary, forum selling, john roberts, patent trolls, patents, supreme court, waco

Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps

from the cops-are-upstanding-individuals-who-play-by-the-rules dept

Asset forfeiture is just cops going shopping for things they want. The analogy -- one prompted by statements made by Sean McMurty, the head of a county forfeiture unit in New Jersey -- works on multiple levels. McMurtry encouraged cops to seize stuff they wanted or needed.

Mr. McMurtry made it clear that forfeitures were highly contingent on the needs of law enforcement. In New Jersey, the police and prosecutors are allowed to use cars, cash and other seized goods; the rest must be sold at auction. Cellphones and jewelry, Mr. McMurtry said, are not worth the bother. Flat screen televisions, however, “are very popular with the police departments,” he said…

Mr. McMurtry said his handling of a case is sometimes determined by department wish lists. “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”

That's direct shopping, utilizing law enforcement's version of the five-finger discount. Take what you think you can use. Convert the rest to cash.

With cash in hand, cops can once again go shopping (albeit without the discount) for things they want. Even better, they can hide this shopping from the public and their oversight, stocking their cupboards with surveillance tech they don't want the public to know about and make purchases that would never be approved by those holding the rest of their purse strings.

We've seen this happen (obviously months or years after the fact thanks to the secretive source of funds) in some of the largest police departments in the country. Both the Chicago and New York City police departments have used secret funds to buy surveillance tech. In Chicago's case, the secret slush fund was powered by forfeitures. In New York, it was a fund the city gave explicit permission to the NYPD to spend as it wanted.

Now it's the Boston Police Department being caught… well, not in the act, but, I guess, after the fact(?), thanks to local journalists.

[I]n 2019 the Boston Police Department bought the device known as a cell site simulator — and tapped a hidden pot of money that kept the purchase out of the public eye.

A WBUR investigation with ProPublica found elected officials and the public were largely kept in the dark when Boston police spent $627,000 on this equipment by dipping into money seized in connection with alleged crimes.

There are plenty of funds to work with. Law enforcement agencies and prosecutors in the state directly profit from forfeitures, encouraging cops to perform more seizures and district attorneys to initiate as many proceedings as possible. What's supposed to be draining organized criminal enterprises of much needed cash is instead a slush fund for both entities. District attorneys get to buy what they want and cops get to do their own, off-the-books shopping to obtain controversial tech.

According to the documents obtained by WBUR and ProPublica, the only interaction the city had with this Stingray purchase was confirming there was enough in the forfeiture fund to buy it. When reached for comment, Boston city reps had no idea the Boston PD had bought itself a cell site simulator.

The Boston PD obviously knows it made this purchase but it isn't talking. No comment from the BPD spokesperson. No comment from any PD official.

And this sort of secrecy will remain normal, at least for the immediate future. There is no mandated reporting on spending of forfeiture funds and nothing forcing the Boston PD to run all purchases past its city oversight, no matter what funds it's spending. A proposed ordinance would change that, requiring explicit permission from the city to purchase surveillance gear but it's not law yet.

But a better solution would be to end the practice of civil asset forfeiture, which allows law enforcement to take money from alleged criminals but without having to actually prove the person formerly in possession of the money was actually engaged in criminal activity. An acceptable stopgap would be to take the seized money out of law enforcement's hands, as state rep Jay Livingstone suggests, and reroute it to a state general fund less likely to be abused or the source of secret purchases.

For now, law enforcement agencies are still free to spend off-the-books forfeiture funds on whatever they want. Until that incentive goes away, forfeiture programs will be still be heavily abused.

Filed Under: asset forfeiture, boston, boston police, civil asset forfeiture, surveillance, transparency

Daily Deal: The Ultimate Microsoft Excel Training Bundle

from the good-deals-on-cool-stuff dept

The Ultimate Microsoft Excel Training Bundle has 6 courses to help you learn everything you need to know about working with Excel. You'll learn how to build a household budget, how to work with Macros and VBA, how to use Pivot Tables, and much more. The bundle is on sale for $20.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas

from the just-stop dept

We've joked in the past about how Republicans hate Section 230 for letting websites moderate too much content, while Democrats hate it for letting websites not moderate enough content. Of course, the reality is they both are mad about content moderation (at different extremes) because they both want to control the internet in a manner that helps "their team." But both approaches involve unconstitutional desires to interfere with 1st Amendment rights. For Republicans, it's often the compelled hosting of speech, and for Democrats, it's often the compelled deletion of speech. Both of those are unconstitutional.

On the Republican side, we've already seen states like Florida and Texas sign into law content moderation bills -- and both have been blocked for being wholly unconstitutional.

We've already heard that some other Republican-controlled states have shelved plans for similar bills, realizing that all they'd be doing was setting taxpayer money on fire.

Unfortunately, it looks like the message has not made its way to Democratic-controlled states. California has been toying with unconstitutional content moderation bills, and now NY has one as well. Senator Brad Hoylman -- who got his law degree from Harvard, where presumably they teach about the 1st Amendment -- has proudly introduced a hellishly unconstitutional social media bill. Hoylman announces in his press release that the bill will "hold tech companies accountable for promoting vaccine misinformation and hate speech."

Have you noticed the problem with the bill already? I knew you could. Whether we like it or not, the 1st Amendment protects both vaccine misinformation and hate speech. It is unconstitutional to punish anyone for that speech, and it's even more ridiculous to punish websites that host that content, but had nothing to do with the creation of it.

Believe it or not, the actual details of the bill are even worse than Hoylman's description of it. The operative clauses are outlandishly bad.

Prohibited activities. No person, by conduct either unlawful In itself or unreasonable under all the circumstances, shall knowingly or recklessly create, maintain or contribute to a condition in New York State that endangers the safety or health of the public through the promotion of content, including through the use of algorithms or other automated systems that prioritize content by a method other than solely by time and date such content was created, the person knows or reasonably should know:

1. Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action;
2. Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action; or
3. Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

This is so dumb that it deserves to be broken down bit by bit. First off, any kind of content can, conceivably "endanger the health and safety of the public." That's so ridiculously broad. I saw an advertisement for McDonalds today on social media. Does that endanger the health and safety of the public? It sure could. Second, the bill says no use of algorithms or otherwise automated systems "other than solely by time and date such content was created" meaning that search is right out. Want the most relevant search result for the medical issues you're having? I'm sorry, sir, that's not allowed in New York, as a result might endanger your health and safety.

But it gets worse. The line that says...

Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action

... is a weird one because clearly someone somewhere thought that this magical incantation might make this constitutional. The "directed to inciting or producing imminent lawless action, and is likely to incite or produce such action" is -- verbatim -- the Brandenburg test for a very, very limited exception to the 1st Amendment. But, do you notice the issue? Such speech is already exempted from the 1st Amendment. Leaving aside how astoundingly little content meets this test (especially the "imminent lawless action" part) this part of the law, at best, seems to argue that "unconstitutional speech is unconstitutional." That's... not helpful.

The second point is even weirder. It more or less tries to mirror the Brandenburg standard, but with a few not-so-subtle changes:

Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action

Which, nice try, but just because you mimicked the "inciting or producing imminent" part doesn't let you get around the fact that discussions of "self-harm" in most cases remains constitutionally protected. So long as the effort is not lawless, then there's a huge 1st Amendment problem here.

But the really problematic part is point 3:

Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

Ooooooooooof. That's bad. First of all, most "false statements of fact" and many "fraudulent medical theories" do in fact remain protected under the 1st Amendment. And, last I checked, New York is still bound by the 1st Amendment. Also, this is dumber than dumb. Remember, we're in the middle of a pandemic and the science is changing rapidly. Lots of things we thought were clear at first turned out to be very different -- don't wear masks / wear masks, for example.

In fact, this prong most closely resembles how China first handled reports of COVID-19. Early on in the pandemic we wrote about how China's laws against medical misinformation very likely helped COVID-19 spread much faster, because the Chinese government silenced Dr. Li Wenliang, one of the first doctors in China who called attention to the new disease. The police showed up to Dr. Li's home and told him he had violated the law by "spreading untruthful information online" and forced him to take down his warnings about COVID-19.

And rather than realize just how problematic that was, Senator Hoylman wants to make it New York's law!

It gets worse. The law, like most laws, has definitions. And the definitions are a mess. It uses an existing NY penal law definition of "recklessly" that requires those attempting to prosecute the law to establish the state of mind of... algorithms? Again, the bill says that if an algorithm "recklessly" creates, maintains, or contributes to such banned information, it can violate the law. But the reckless standard requires a "person" be "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Good luck proving that with an algorithm.

Then we get to the enforcement provision. Incredibly, it makes this much, much worse.

Enforcement. Whenever there shall be a violation of this article, the attorney general, in the name of the people of the state of New York, or a city corporation counsel on behalf of the locality, may bring an action in the Supreme Court or federal district court to enjoin and restrain such violations and to obtain restitution and damages.

Private right of action. Any person, firm, corporation or association that has been damaged as a result of a person's acts or omissions in violation of this article shall be entitled to bring an action for recovery of damages or to enforce this article in the Supreme Court or federal district court.

The government enforcing a speech code is already problematic -- but then enabling this private right of action is just ridiculous. Think of how many wasteful stupid lawsuits would be filed within seconds of this law going into effect by anti-vaxxers and anti-maskers against people online advocating in favor of vaccines and masks and other COVID-preventative techniques?

This law is so blatantly unconstitutional and problematic that it's not even funny. And that's not even getting to the simple fact that Section 230 pre-empts any such state law, as we saw in Texas and Florida. Hoylman, laughably, suggests that he can ignore the pre-emption issue in his press release by saying:

The conscious decision to elevate certain content is a separate, affirmative act from the mere hosting of information and therefore not contemplated by the protections of Section 230 of the Communications Decency Act.

Except that's wrong. 230 specifically protects all moderation decisions and that includes elevating content. That's why Section 230 protects search results. And, as Jeff Kosseff rightly notes the 2nd Circuit (which covers NY) already addressed this exact claim in the Force v. Facebook case (the ridiculous case that attempted to hold Facebook liable for terrorism that impacted the plaintiff, because some unrelated terrorists also used Facebook). There the court said, pretty clearly:

We disagree with plaintiffs' contention that Facebook's use of algorithms renders it a non-publisher. First, we find no basis in the ordinary meaning of "publisher," the other text of Section 230, or decisions interpreting Section 230, for concluding that an interactive computer service is not the "publisher" of third-party information when it uses tools such as algorithms that are designed to match that information with a consumer's interests. Cf., e.g., Roommates.Com, 521 F.3d at 1172 (recognizing that Matchmaker.com website, which "provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs," was immune under Section 230(c)(1) ) (citing Carafano, Inc. , 339 F.3d 1119 ); Carafano , 339 F.3d at 1124–25 ("Matchmaker's decision to structure the information provided by users allows the company to offer additional features, such as ‘matching’ profiles with similar characteristics ..., [and such features] [a]rguably promote[ ] the expressed Congressional policy ‘to promote the continued development of the Internet and other interactive computer services.’ 47 U.S.C. § 230(b)(1)."); Herrick v. Grindr, LLC , 765 F. App'x 586, 591 (2d Cir. 2019) (summary order) ("To the extent that [plaintiff's claims] are premised on Grindr's [user-profile] matching and geolocation features, they are likewise barred ....").

So... the law clearly violates the 1st Amendment, is pre-empted by Section 230, and, if it actually went into practice, would actually be both wildly abused and dangerous.

What's it got going for it?

Well, as Kosseff also points out, if it passed, and somehow the Texas/Florida laws were brought back from the dead, social media websites might get in trouble both for leaving up the same content they could get in trouble for taking down elsewhere. And, at least for those of us who write about content moderation, well, that will be amusing to cover. But, beyond that, this bill is complete garbage. It's the mirror image of the garbage Florida and Texas passed -- equally as dumb, equally as dangerous, and equally as unconstitutional, just at the other end of the spectrum.

Filed Under: 1st amendment, brad hoylman, content moderation, democrats, florida, misinformation, new york, republicans, section 230, social media, texas

Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests

from the do-not-pass-go,-do-not-collect-$200 dept

We've noted repeatedly that despite a lot of breathless rhetoric about America's "quest to bridge the digital divide," U.S. government leaders still don't actually know where broadband is or isn't available. Shoddy broadband mapping has generally been a good thing for regional U.S. telecom monopolies, who not only have been allowed to obscure competition gaps (and the high prices and poor service that result), but hoover up an endless gravy train of subsidies and tax breaks for networks that...mysteriously...always wind up half deployed. Our failure to measure deployment success has been painfully, repeatedly exploited.

But there are other ways that incumbents exploit our ongoing failure to map broadband to their advantage. Case in point: roughly 230 U.S. communities have applied for broadband grants being doled out as part of the National Transportation Infrastructure Agency (NTIA)'s $288 million Broadband Infrastructure Program. But when a town or local cooperative/utility/public-private partnership looking to build its own, better broadband network applies for the grant, they're facing baseless challenges by ISPs which claim they already serve these areas.

Grafton, New Hampshire, for example, is looking to build its own fiber network after years of market neglect. It had 3,000 of the 4,000 census blocks they applied for grant money for falsely challenged by regional giants Comcast and Charter Spectrum:

"Of the 4,000 census blocks covered by Grafton’s grant application, Coates said that incumbent ISPs challenged 3,000 of them, even those dominated by cemeteries. In the majority of the challenges, telecom giants overstated available speeds and existing coverage, he noted. “My immediate response was that this was them telling us to go boil water,” Coates said. “Here you go, prove that you can do this in these three thousand census blocks. Have fun figuring it out.”

As we've noted, there's a big lobbying push afoot by entrenched monopolies to ensure as little government stimulus money as possible goes toward building out competition to their regional dominance, no matter what that competition looks like (cooperatives, utilities, local governments, smaller private ISPs, private/public partnerships). To justify their obstruction to local community grants, big ISPs like Comcast and Charter point to FCC broadband maps they know aren't accurate to insist nothing needs to be done. That perpetuates the sub-par service and high prices created by monopolization.

Except the FCC's maps routinely overstate both coverage and speeds, and have for decades. The FCC's methodology also declared (until only recently) that an entire census block is "served" with broadband, if an ISP claims it can serve just one home in that census block. While there have finally been some meaningful improvements to FCC mapping pushed through Congress, it's still going to be several years (and significantly more funding) before most of those fixes can be properly implemented. Some states have developed their own alternative mapping solutions, but for many, engaging in a bureaucratic battle with deep-pocketed monopolies to disprove their coverage claims isn't financially viable.

While the NTIA has made some progress of its own on mapping, it's still being tasked with doling out $42 billion in additional broadband grants as part of the recently passed infrastructure bill -- despite still not having an entirely accurate picture of the problem it's trying to fix. That is, and will continue to be, exploited by entrenched monopolies like AT&T, Comcast, Charter, or Verizon which have not only fought against better mapping for years (knowing more accurate data would only spur calls for reform), but have a vested interest in fighting tooth and nail against any effort to disrupt the uncompetitive status quo.

Filed Under: broadband, broadband maps, community broadband, digital divide, fcc, grants, ntia, telecom

Funniest/Most Insightful Comments Of 2021 At Techdirt

from the it's-that-time-again dept

Happy new year, everyone! You know what time it is — time for our round-up of the top comments from all of 2021, based on user votes for Insightful and Funny. Plus, unlike past years where we featured a few outliers from the leaderboard of combined votes in both categories, this year there was absolutely no overlap for the second time — so we'll be including all three of the comments from overall votes as well. Meanwhile, if you want to see this week's winners, here's first and second place for insightful, and first and second place for funny.

The Most Insightful Comments Of 2021

For our first place winner, we head back a few months to September, when GoDaddy reignited the debate over infrastructure-level content moderation by banning the snitch website brought into existence by Texas's anti-abortion law. Naturally some more general points about the issue came up in the comments, including the perennial observation that pro-life movements often seem unconcerned about what happens to children once they're actually born. That One Guy wins first place with a response to someone making this point, but in a way the real credit goes to the person being quoted:

A quote I ran across in a youtube comment section of all places sums it up nicely I'd say.

“The unborn are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; chy; unlike orphans, they don’t need money, education, or childcare; unlike aliens, they don’t bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unborn…

You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus but actually dislike people who breathe.

Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.

— Dr. Dave Barnhart, Christian Minister

For second place, we step just a bit further back to August, and our post about the Canadian government's proposal for new (and terrible) legislation to combat "Online Harms". Blake C. Stacey racked up the votes for second place by focusing on a point that the post didn't dig into — the huge number of services covered by the expansive proposed language:

Through this framework, "Online Communications Services" (the government lists Facebook, YouTube, TikTok, Instagram, and Twitter as examples)

But it sure as hell isn't limited to those examples. Quoting item 1(A).2:

The Act should define the term Online Communication Service (OCS) as a service that is accessible to persons in Canada, the primary purpose of which is to enable users of the service to communicate with other users of the service, over the internet.

That's every forum, bulletin board, fediverse instance and comment section. Once again, lawmakers act as though Facebook is the Internet ... and propose a regulatory regime under which it will be.

For third place, we jump back one more time to June, where a simple and utilitarian comment won the day. In our post about how bad patents get in the way of fun toys, we had originally been unable to find one particular patent filing — but samuelhopkins had better luck, and kindly provided the link:

found it

US10,850,205 - Marble track piece with triggered light and/or sound
https://patents.google.com/patent/US10850205B2/en?oq=10%2c850%2c205

And that's all for the insightful side! Now, on to...

The Funniest Comments Of 2021

For the first place winner on the funny side, we head back to October, and the absurd fiasco of Missouri accusing journalists who exposed its huge security flub of "hacking". Much of that accusation hinged on the notion that they "decoded" the HTML, which led Chris Brand to make the comment that won first place:

"decode"

Is the ability to read so rare in Missouri that it gets called "decoding"?

This year, the second and third place winners both come from the same post in August, all about when Apple announced it would undermine its security in the name of protecting the children. An anonymous commenter (the first of several on this year's leaderboards!) racked up the votes for second place with a stirring call to action:

Apple, Google, Facebook and their ilk are clearly not the ones at fault here. It is time we face the fact who our true enemies are: The Children. Techdirt, since time immemorial, have hinted at their ungodly powers to sway the will of the most powerful corporations and governments. We need to stop them.

Personally, I have never seen one of these little fuckers so I have no idea how we can defeat them but we have to try.

Because if we don't, then... The Children have already won.

In third place, it's a different anonymous commenter on that post, this time with a quick reply to someone else's comment. I'll leave you to deduce, or click through and find out, what they were responding to:

uh...phrasing

And that's it for the funnies! But we're not done yet...

The Top Comments Of 2021 For Insightful & Funny Votes Combined

As noted, there was no overlap between the two individual category winners and the winners on the leaderboard for the combination of Insightful and Funny votes. This happened once before in 2019, but this time we're going to go ahead and feature all three of the combined winners in full. In first place, it's Bloof on our January post about social media trails making it easy to identify people who stormed the Capitol, with a comment about the incident in general:

Voter fraud that only happened in the parts of the ballots and the states that went against Trump, not the house and senate races where an unassailable democratic majority would be incredibly useful, only the top ticket featuring a massively unpopular republican candidate. Voter fraud so cunning that it only happened in cities filled with minorities among whom Trump is about as beloved as porcupine skin toilet paper. Voter fraud so cunning it somehow managed to happen in places where republicans controlled the elections. Voter fraud so cunning the Trump team have been unable to present any evidence of it whatsoever and had their legal teams back down the moment any judged asked them for actual proof because they don't fancy parroting the same lies they vomit on TV in a place where there'll be consequences for lying. Voter fraud so cunning that republican donors are suing the groups they funded that claimed they're able to prove it happened, for not being, in fact, able to prove anything. Voter fraud so cunning even the most hyper partisan right wing 'news' outlets like Fox and Newsmax issued on multiple on air retractions the moment the election machine companies got the lawyers involved because their stories were based on 4chan posts and the say so of the son of the guy who runs notorious pedophile and Qanon hangout, 8kun.

They have no evidence, there is no evidence, it did not happen and screaming and committing acts of terrorism will not make your far right fever dreams of fraud and persecution into a reality. They had ample opportunity to present evidence in front of friendly TV hosts like Tucker Carlson, as well as judge after judge after judge, some of which were appointed by Trump himself and they showed nothing and their cases were rejected every single time.

It is clear to everyone with even a lick of common sense that the people parroting these lies are so full of sh*t even the Trump gutted EPA would consider them for a potential superfund site.

In second place, it's an anonymous commenter on our post in February about Tennessee politicians asking colleges to forbid students from kneeling during the national anthem, with a comment about some people's concepts of freedom:

"The flag represents freedom...No, not that freedom...No, not that one either...Okay, okay. The flag represents our freedom to tell you what to do when you participate in our most holy religion: college sportsball."

Finally, in third place, it's one more anonymous commenter, this time on our July post about a judge ordering the removal of "Fuck Biden" lawn signs. The comment is a simple callback to a rather similar legal decision that demonstrated a much better understanding of free speech:

Fuck cheer

And with that, we're all done for 2021. A huge thanks to all our commenters, who keep supplying great material for these weekly and yearly posts — keep it coming in 2022!

Gaming Like It's 1926: Join The Fourth Annual Public Domain Game Jam

from the free-culture dept

Gaming Like It's 1926: The Public Domain Game Jam

Happy new year everyone — and happy public domain day! That's right: as of today, works from 1926 are now officially in the public domain in the US, and that means it's time for the latest public domain game jam: Gaming Like It's 1926, presented by Techdirt and Randy Lubin of Diegetic Games. Just like in past years, we're calling on game designers of all stripes and levels of experience to create games that make use of, or are based on, material from newly-public-domain works. The jam starts today and runs until the end of the month: just sign up for the jam on itch.io and submit your game by January 31st.

As always, the jam is open to both digital and analog games (be sure to read over the full requirements on the jam page). There are lots of interesting works entering the public domain this year, including:

• Novels, short stories, and poems by Agatha Christie, Ernest Hemingway, Langston Hughes, T. E. Lawrence, A. A. Milne, and Dorothy Parker
• Art by Alexander Calder, Hannah Höch, Frieda Kahlo, Georgia O'Keeffe, René Magritte, and Norman Rockwell
• Films including silents Beau Jest and The General plus the first feature length Vitaphone films with Don Juan and The Better 'Ole
• Music by Louis Armstrong, Irving Berlin, George Gershwin, Al Jolson, Jelly Roll Morton, Victoria Spivey, and Sophie Tucker

There are also some great resources out there for digging through the many works you could draw on. We recommend Duke University's overview and the Public Domain Review's countdown.

At the end, we'll be choosing winners in six categories:

• Best Analog Game
• Best Digital Game
• Best adaptation of a 1926 work
• Best remixing of multiple sources (at least one has to be from 1926)
• Best "Deep Cut" (use of a work not listed on any of the roundup articles)
• Best Visuals

And those winners will each get to choose one of our great prizes:

• The Working Futures anthology of speculative fiction
• A deck of Working Futures Cards which you can use in scenario planning
• Our board game CIA: Collect It All (a remake of the public domain CIA training game)
• A Techdirt t-shirt (e.g. Copymouse)
• Digital copies of Behind the Magic and Premise

If you're new to the jam, you might want to check out the winners of past jams focusing on works from 1923, 1924 and 1925 for inspiration. Whether you're an experienced game designer or just someone who wants to try their hand at the craft, we encourage you to join the jam and start working on your game! The submissions in past years have been truly amazing, and we can't wait to see what you come up with this time around.

Filed Under: game jam, games, gaming like its 1926, public domain