Federal Court Says Destroying Someone's House To Apprehend A Fugitive Might Be A Constitutional Violation

from the FINALLY dept

Law enforcement has a pretty cavalier attitude towards private property. Whatever property they aren't unjustifiably seizing from drivers and passengers, they're razing to the ground. Sometimes they destroy whole houses during plain vanilla warrant service. Other times, situations are determined to be stand-offs in need of wholesale destruction, even when officers are facing down an empty house.

You'd think this sort of brazen and unjustified destruction would result in successful lawsuits to recover costs and damages incurred by these actions. But you'd be wrong. A successful lawsuit for law enforcement destruction of private property is more rare than a successful lawsuit over property seized via asset forfeiture.

Courts tend to defer to law enforcement expertise, often opining that this collateral damage is just an unfortunate side effect of good police work. Officers are free to overcome any obstacles placed in the way of their objectives, and if that means entire walls of houses need to be destroyed, that's just the way it is. Who are we (this is the judges speaking) to second-guess decisions made in the heat of the moment, even when said moment is a daylong "standoff."

Two Appeals Courts have issued precedential decisions that affect two entire circuits (the Ninth and Tenth), which make lawsuits brought in those jurisdictions even more unlikely to prevail. But a recent lawsuit -- featuring representation by the Institute for Justice (which has also had success fighting bogus forfeitures) -- has just experienced some limited success. It was brought by a woman whose residence was the victim of an overzealous Texas SWAT team that apparently felt the only way it could apprehend a suspect was by causing more than $50,000 of damage to her home.

It's not like the McKinney PD didn't have options. Vicki Baker, the plaintiff, gave them plenty, as Billy Binion reports for Reason.

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker's home in McKinney, Texas. Baker's daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.

SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker's fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.

Baker's insurance company said it wasn't liable for damages caused by the government. The government -- in this case, the city of McKinney -- said it wasn't liable because she wasn't a victim of anything. The police had a legitimate reason to destroy her house (the apprehension of a fugitive). Sorry, but not anyone's fault, the city shrugged.

Baker sued. And a federal court has come down on her side. It very plausibly is the city's problem and it can be held liable for the unnecessary destruction of this home, says the court [PDF].

Because at this stage the Court construes all well-pleaded facts in the light most favorable to Plaintiff, the Court finds Baker has plausibly alleged an official policy promulgated by the City of McKinney. As alleged in the Complaint, after the City’s destruction of her property, Baker requested compensation from the City of McKinney, but the City denied the request, stating that there was ‘no liability on the part of the City or any of its employees.’” This assertion is sufficient to plausibly allege a “a single unconstitutional action by a municipal actor”— that is, a denial of the constitutionally mandated just compensation following a taking by the government.

As the court notes, this isn't the end of the discussion. As it points out earlier, there exists no precedent in its jurisdiction or in the Fifth Circuit saying the Takings Clause of the Fifth Amendment applies to incidents like these. But rather than use that lack of precedent as a means to dismiss her suit, it comes to the conclusion that destroying a home (and refusing to compensate the innocent homeowner) is a Fifth Amendment violation.

The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances.

[...]

However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking… In Lucas v. S.C. Coastal Council, the Supreme Court opined that if “the uses of private property were subject to unbridled, uncompensated qualification under the police power, the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared.”

This federal court decides that sort of buck-passing stops here, at least for the time being. Not every claim is a valid Takings Clause claim, but this one appears to be at this point.

While the Court acknowledges that governmental bodies are not “liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]” Nat’l Bd. of Young Men’s Christian Ass’ns v United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City’s refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.

That's good enough to avoid dismissal. The same goes for the state law claims under the Texas constitution.

Baker pleaded that her home was intentionally destroyed in the government’s effort to apprehend Little. The affirmative actions Baker alleges include Department officers: (1) storming the house; (2) breaking windows; (3) knocking down the garage door; (4) knocking down the backyard fence; and (5) firing dozens of explosive tear gas cannisters into the home. Such actions were intentional, even if the City’s motives were to secure a threat to public safety. To be sure, the City itself indicates “the [Department] dr[ew] up plans” before busting into Baker’s home to apprehend Little. The resulting damage, therefore, can hardly be considered “incidental consequence[s] of the City’s actions.” Lastly, Baker alleges the City took her property for a public use—apprehension of a dangerous fugitive whose freedom threatened the community and public as a whole.

Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.

This doesn't mean the city of McKinney can't still find a way to screw this homeowner. But this does definitely make it more difficult to escape the lawsuit. And that extra degree of difficulty may be all it takes for the city to cut a check. To push it further might mean setting precedent at a higher level that would make cities and law enforcement agencies liable for excessive damage to private property. And that's precedent no law enforcement agency in the nation is in any hurry to see set.

Filed Under: due process, law enforcement, property destruction

Details Leak On Apple's Secret $275 Billion Deal With The Chinese Government

from the raising-marketshare,-eyebrows,-and-concerns dept

More troubling news has surfaced about Apple's and China's relationship. Apple relies on Chinese manufacturing to make its phones and the Chinese government relies on its massive amount of power to leverage deals that allow it to achieve its ends, many of which are oppressive.

An exclusive report by The Information (paywalled) details a $275 billion deal Apple struck with the Chinese government, apparently in hopes of exempting the company from new regulations that would have negatively affected its products and services. That deal was signed in 2016 and apparently includes an option for a sixth year, which would extend it through 2022.

Here's what appears to have been the end result of this deal, which required Apple to invest heavily in China and work with the government to develop new technologies and cultivate Chinese tech talent. The South China Morning Post notes Apple is now back on top of the Chinese phone sales charts.

In October, Apple regained its title as the largest smartphone brand in China by shipments, its first time at the top of the list since December 2015, according to Counterpoint. Sales grew 46 per cent that month compared with the previous month, while the overall smartphone market grew just 2 per cent.

There's something in it for China as well.

China has also become more important to Apple’s supply chain. The company has added more suppliers from mainland China to its list of vendors than anywhere else from 2017 to 2020, according the Apple’s supplier list for the period. Mainland Chinese companies make up nearly a third of newly-listed companies.

The Chinese government also asked for -- and apparently received -- some smaller, much stranger concessions from Apple, as Richard Lawler reports for The Verge.

That includes a request Apple reportedly received in 2014 or 2015 about a small group of uninhabited islands that China and Japan apparently have a dispute over in terms of who owns them. Going by either the Senkaku Islands or the Diaoyu Islands, depending on which side of the argument you’re taking, they inspired a request from China to members of the Maps team to make them appear larger, even when viewers are zoomed out on the map. According to The Information, not only did Apple eventually make the change, but even today, for viewers using its map from within China, the islands are still shown at a larger scale than the territories around them.

Weird flex by the Chinese government. But the government has plenty of weird flexes. More concerning is whatever concessions were made to allow the Chinese government to more directly control iPhone users in the country. Apple has already made several concessions, including erecting local data centers that can be easily accessed by the government. It has also removed content deemed unlawful or offensive by the Chinese government, some of which has been directly related to the government's ongoing repression of its Muslim minority.

For Apple, this is a problem of both supply and demand. Apple obviously wants to be able to sell its products to the large Chinese market. But it's pretty difficult to obtain much leverage when you're also reliant on this market to manufacture the same devices you want to sell to this market.

Despite that lack of leverage, Apple has still secured some minor wins, as Samuel Axon points out at Ars Technica.

Encryption keys for iCloud user data for the region are controlled by Apple, despite the government's efforts to encourage, pressure, or force foreign companies to hand over responsibility for that data to Chinese companies.

Still, the deal with the Chinese government suggests the country will continue to have the upper hand in negotiations. Apple may be investing in its future, but it's pouring money into a regime that has continually expanded its power and escalated its oppressive activities against its own people. Apple's money will fund these activities, even if only indirectly. Striking a secret deal worth hundreds of billions of dollars with an authoritarian government is never a good look.

Apple hasn't said much about this report. The Chinese government, however, has reacted (via its state-owned press) and that reaction is bizarre, to say the least.

A commentary published on the WeChat blog Buyidao, operated by the state-run tabloid Global Times, defended the investments. The attack on Apple’s ties to China are “clearly driven by the ‘political correctness’ of Sinophobia”, according to the article.

“Forcing American companies to decouple from China is forcing them to decouple from opportunities and gains,” the article reads. “This is as good as McCarthyism for business.”

Huh. Well, that's a take. The Chinese government has shown repeatedly it cannot and should not be trusted, that it's an abuser of its considerable power. It's possible to question deals struck with an oppressive regime without engaging in Sinophobia. This isn't about the Chinese people or their way of life. It's about a government that disappears unwanted residents into prisons, threatens government critics with death sentences, and reacts with hostile indignation any time its narrative and claims are questioned. Pulling out of China isn't McCarthyism. It's simply a refusal to cater to the whims of a government that is its own population's primary antagonist.

There's nothing inherently wrong with striking deals with foreign governments to ensure steady supply chain operations or expand customer bases. But striking a deal of this size with a government that expects its foreign partners to assist it in the oppression of its constituents is cause for concern.

Filed Under: china
Companies: apple

The US Gov't Paid For Moderna To Develop Its Vaccine; But Moderna Wants To Keep The Patent All To Itself

from the no dept

Folks may know that when Jonas Salk created the polio vaccine he chose not to patent it, and when asked who owns the patent on it, responded: "Well... the people I would say. There is no patent... Could you patent the sun?"

Whenever people bring this up, patent maximalists -- especially those in the pharma world -- like to come up with all sorts of excuses about how that was "different" somehow. My favorite excuse was that he did this because "the public had funded the vaccine."

Fast forward to today. Moderna, somewhat famously, helped produce one of the very first COVID vaccines using its mRNA technology. It's a great thing (I got two Moderna shots in my own arm as soon as I could). You may have heard a lot about Moderna as well. While the company had been around for a decade, this vaccine is its first product on the actual market. It had been experimenting with mRNA technology, but hadn't actually come out with anything until the COVID vaccine.

But -- and this is the important part -- it was the US government, and by that we mean "the US public," who mostly funded Moderna's COVID vaccine... and it was actually US government employees who did a lot of the important work. At the beginning of the pandemic, the US government gave Moderna $483 million dollars to work on the COVID vaccine. A few months later it gave another $472 million.

Also, Moderna now admits that US government employees were critical to the development of the vaccine:

Moderna acknowledged that scientists at NIH's National Institute of Allergy and Infectious Diseases (NIAID) played a "substantial role" in developing Moderna's messenger RNA (mRNA) vaccine...

So, "the public" funded this vaccine, and the public -- via the government which represents us -- helped do the scientific work necessary to make the vaccine.

But Moderna wants the patent. Indeed, it initially refused to even share the patent with the US government. Last month there was a bit of a legal fight as the NIH did the legal equivalent of asking Moderna "WTF?"

The vaccine grew out of a four-year collaboration between Moderna and the N.I.H., the government’s biomedical research agency — a partnership that was widely hailed when the shot was found to be highly effective. A year ago this month, the government called it the “N.I.H.-Moderna Covid-19 vaccine.”

The agency says three scientists at its Vaccine Research Center — Dr. John R. Mascola, the center’s director; Dr. Barney S. Graham, who recently retired; and Dr. Kizzmekia S. Corbett, who is now at Harvard — worked with Moderna scientists to design the genetic sequence that prompts the vaccine to produce an immune response, and should be named on the “principal patent application.”

Moderna disagrees. In a July filing with the United States Patent and Trademark Office, the company said it had “reached the good-faith determination that these individuals did not co-invent” the component in question. Its application for the patent, which has not yet been issued, names several of its own employees as the sole inventors.

Apparently the NIH and Moderna had been "negotiating" about this when Moderna made that filing. As this went public and people (rightly) started calling Moderna out for this bullshit, Moderna took a half step backwards and claimed that it was willing to share the patent with the US government (and said "Moderna remains the only company to have pledged not to enforce its COVID-19 intellectual property during the pandemic.")

But, it seems like we should go a step further: there's no reason to patent this. I have no problem with Moderna getting plenty of profit for its important role in developing the vaccine. And, it is. The company went from having losses every quarter through last year, to making billions in profit this year. It made over 7 billion in net income (not gross) this year through the first three quarters.

That's not because of its patent. It's because it's producing something that is important to humanity, which governments are more than willing to pay for, and which remain in high demand globally.

So, don't try to hog it. Don't try to hog it from the US government. But don't even try to "share it" with the US government. Share it with everyone. Let the people "own" it by refusing to patent it at all. After all, would you patent the sun?

Filed Under: covid-19, nih, ownership, patents, vaccines
Companies: moderna

France Says Clearview Broke Privacy Laws, Orders It To Delete Residents' Data

from the suprisingly-not-terrible-use-of-the-GDPR dept

Clearview is again on the receiving end of an order demanding it delete all the local data it scraped from thousands of websites and social media platforms.

Canada led the way in booting the facial recognition company, ordering its exit in February. A government investigation concluded Clearview had broken the country's privacy laws with its web scraping and ordered it to delete all Canadian data.

Australia was next, kicking Clearview out in November. It too concluded (after an investigation) that laws were broken by the country. The United Kingdom followed suit, more or less. It didn't kick Clearview out but threatened it with a $23 million fine and forbade it from processing any more data collected in the UK.

Now, it's France's turn. The GDPR is in play this time, which means this announcement is likely to be followed by similar orders from other members of the European Union. Richard Nieva reports on the latest for BuzzFeed.

Facial recognition company Clearview AI has been hit with another order by a country’s watchdog agency to delete the personal data of its citizens, the latest in a global rebuke by privacy regulators around the world.

On Thursday, France’s Commission Nationale Informatique et Libertés (CNIL) said Clearview had breached Europe’s overarching data protection law, known as GDPR. It gave the company two months to delete the personal information it had collected and stop “unlawful processing” of the data.

Clearview hasn't been actually asked to leave, but considering its business model relies on it breaking local laws, there's little reason for it to stick around. Its CEO has responded with some overdone shrugging, claiming it doesn't matter what France says because it doesn't maintain a local office.

In response to the claims, Clearview AI CEO Hoan Ton-That argued that his company isn’t bound by Europe’s data regulation law. “Clearview AI does not have a place of business in France or the EU, it does not have any customers in France or the EU, and does not undertake any activities that would otherwise mean it is subject to the GDPR,” he said in an emailed statement.

While some of that may be true, it's pretty clear a lot of it isn't. I don't believe Clearview geofences its data-scraping, which means it's certainly still collecting info on European residents. And claiming it has no customers in France or the EU is demonstrably false.

This is from earlier reporting on Clearview by BuzzFeed:

Data reviewed by BuzzFeed News shows that by early 2020, Clearview had made its way across Europe. Italy’s state police, Polizia di Stato, ran more than 130 searches, according to data, though the agency did not respond to a request for comment. A spokesperson for France’s Ministry of the Interior told BuzzFeed News that they had no information on Clearview, despite internal data listing employees associated with the office as having run more than 400 searches.

While it may be technically true it has no customers in the European Union, entities in the union were at least given trial access to Clearview's AI and utilized it. Those are the kind of "activities" that would be "subject to the GDPR." The locals weren't running searches on American citizens. They were running them on residents of their respective countries, meaning there was searchable data collected by Clearview in violation of the GDPR.

At this point, Clearview may no longer be collecting data on Europeans and other countries that have demanded it delete data. But that doesn't mean it's legally in the clear. A belated exit is better than nothing, but no documents have surfaced that show Clearview isn't still gathering data from areas where it's been told to cease operations. All we have are Clearview's assurances, which aren't all that reassuring, considering they're half-truths at best. It still has yet to show it has learned anything from the past 18 months of negative coverage and has never offered anything approaching contrition for its horrific actions and incredibly irresponsible business model.

Filed Under: facial recognition, france, privacy
Companies: clearview

Not How Any Of This Works: Pandemic's Wrongest Man Sues Twitter For Kicking Him Off The Platform

from the throwing-money-down-the-toilet dept

For good reasons, Alex Berenson has been dubbed the "pandemic's wrongest man." He played up the fact that he once wrote for the NY Times and turned that into a weird, shady attack on pot, before going all in on medical misinformation. In the early days he played down the threat of COVID, and has since become a leading vaccine disinfo spreader. He had built a large Twitter following for his nonsense, and shortly before his Twitter account was finally shut down, he had warned that if it was shut down he would sue Twitter... for defamation. Then, once he was banned, he (in typical grifter fashion) immediately went into fundraising mode even though the extraordinarily wealthy heir of a frozen food fortune promised to fund such a lawsuit.

It's unclear whether or not your frozen TV dinners from the 1980s are now funding it, but a Berenson has now filed his long-awaited lawsuit against Twitter. Somewhat amazingly, given the multitude of bad legal theories put forth in the complaint, it doesn't include a defamation claim. Instead it has eight claims, and they start out laughable and, incredibly, only gets worse from there:

1. Violation of the First Amendment
2. Federal False Advertising and Unfair Competition
3. Violation of California Common Carrier Law
4. Violation of California Unfair Competition Law
5. Breach of Contract
6. Promissory Estoppel
7. Violation of the California Constitution
8. Unjust Enrichment

I don't have the time or the stamina to fully break down how truly ridiculous all eight of these claims are, or why they will so obviously fail, but let's just do the lightning round version (this will skip over some of the nuances, but none of the nuances help Berenson, they only make his case look that much dumber). Suffice it to say, like many similarly situated people -- those with huge internet followings but with a tenuous grasp on reality -- this lawsuit appears to be extremely performative, rather than serious.

• Violation of the 1st Amendment: The government can violate the 1st Amendment. Twitter is not the government. Twitter cannot violate the 1st Amendment. Like a bunch of other failed lawsuits, Berenson tries to claim that Twitter has become a state actor because the federal government has been encouraging social media to be better about stopping the spread of misinformation, but that's not how any of this works.
• False advertising: This seems like the replacement claim after Berenson's lawyers realized defamation claims would even be a step too far. It's arguing that Twitter's labeling of some of Berenson's tweets as misleading is "false advertising" but, again, that's now how any of this works.
• California's common carrier law... is easily pre-empted by Section 230. Berenson's lawyers make a really weird argument that because this California law is so old, somehow that means federal pre-emption doesn't apply. But, um, again, that's not how any of this works.
• Unfair competition: Lol, wut? Berenson is not a competitor to Twitter. There's a lot of nonsense mumbo jumbo and out-of-context cites here, but the only attempt to actually explain how this is unfair competition is this bit of nonsense: "To the extent Twitter’s censorship conferred a competitive advantage on itself and Mr. Berenson’s journalistic competitors, the company cannot claim the benefit of section 230 immunity." Again, that's not how any of this works.
• Breach of contract: Again, Twitter's terms say they can remove you for any reason. There's no breach. The creative lawyering here is to argue that Twitter's terms are "a contract of adhesion" and then mumble, mumble, Twitter breached its contract. Say it with me: that's not how any of this works.
• Promissory estoppel: The argument here is that because Twitter's PR boss had, at an earlier time, made some vague comments to Berenson that his account wasn't likely being targeted by new misinfo rules, Berenson is claiming that was a promise that he then relied on. Except, even the quotes provided by Berenson from this single Twitter employee undermine this entire argument, as there's a point where the PR guy admits that it's others at the company who make these decisions, and he often finds out later. No promises were made, and even if you could somehow construe it as a promise about previous behavior that means fuck all (legally speaking) about future behavior. You know the chorus by now: that's not how any of this works.
• Violation of the California Constitution: Here, Berenson's lawyers pull out the Pruneyard card, because every one of these lawsuits has to cite Pruneyard, even though every one of them fails. Pruneyard, of course, was the case about a shopping mall and free speech, but which was (1) narrowly decided, and (2) multiple subsequent cases (all of which Berenson's lawyers ignore) have narrowed the Pruneyard standard so that today it basically applies to the Pruneyard Shopping Center and... almost no where else. So, yes, once again, that's not how any of this works.
• Unjust enrichment: Saving the dumbest for last. It's short and sweet and so dumb I'll just post the argument here for you to marvel at: "According to Twitter, for at least a certain time period, Mr. Berenson used Twitter in violation of the company’s policies, and Twitter profited in the process. Any profits traceable to Mr. Berenson’s reporting are a benefit conferred on Twitter that it should not have received." I mean, bold strategy, but, let's close this out with a final rendition: this is not how any of this works.

This is a long list of silly, debunked, or occasionally creative attempts to try to get around Section 230. None of them should or will work. The case should be dismissed either because of 230 immunity, or as in the similarly stupid Prager University case, maybe the judge will skip over all the nonsense and throw it out on 1st Amendment grounds entirely. This is not a serious lawsuit and the lawyers who filed it -- James Lawrence and Anthony Biller from Envisage Law, and Sean Gates from Charis Lex -- should all be embarrassed for handing the court a pile of such utter nonsense.

Twitter has the right to remove people from its platform. It's Twitter's platform. It makes the rules. If it feels Berenson violated the rules, game over. This case is nonsense piled upon nonsense.

Filed Under: 1st amendment, alex berenson, content moderation, promissory estoppel, section 230, unfair competition
Companies: twitter

Daily Deal: The Ultimate Learn to Code Bundle

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

The Ultimate Learn to Code Bundle has 80+ hours of immersive, multifaceted, programming education. When it comes to web programming, there are a lot of tools you can learn and use to make your workflow more efficient and your products more exciting. This bundle will give you a crash course into a variety of languages and tools, plus how to integrate them, giving you an excellent foundation for further learning. Courses cover Ruby on Rails 5, HTML5, CSS3, JavaScript, Python, iOS 10, and more. The bundle is on sale for $39.

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

Facebook Blocks Seven Malware Purveyors, Deletes Hundreds Of Accounts, Notifies 50,000 Potential Hacking Targets

from the move-fast-and-break-oppressors dept

Thanks to the ongoing onslaught of negative press involving malware merchants like Israel's NSO Group, tech companies whose devices and platforms have been used to deploy exploits targeting journalists, activists, and religious leaders are punching back. You're a human rights abuser with high-dollar spyware at your disposal? Too bad. Ask for a refund, I guess.

Apple sued NSO Group for targeting iPhone users a few weeks ago. It also began notifying users who were targeted by NSO spyware, potentially nullifying further surveillance efforts by unfriendly nation-states.

But before Apple got in on the anti-NSO action, Facebook sued the company for using WhatsApp to deploy malware. Both lawsuits contain some troubling implications for the CFAA -- something that could pose future problems for researchers who scrape data and security researchers who search for security flaws. The unintended consequences of this litigation have yet to be seen, but it's enough to justify holding your applause until the lawsuits have run their course.

Denying state actors the fruits of their purchased spyware labor is now the name of the game, something that benefits everyone. Facebook (now Meta) has just thrown a decently-sized tech wrench into the malware works of an unknown number of entities.

Facebook has disrupted the operations of seven different spyware-making companies, blocking their Internet infrastructure, sending cease and desist letters, and banning them from its platform.

"As a result of our months-long investigation, we took action against seven different surveillance-for-hire entities to disrupt their ability to use their digital infrastructure to abuse social media platforms and enable surveillance of people across the internet," said Director of Threat Disruption David Agranovich and Head of Cyber Espionage Investigations Mike Dvilyanski.

"These surveillance providers are based in China, Israel, India, and North Macedonia. They targeted people in over 100 countries around the world on behalf of their clients."

Seven companies. 100 countries. 1,500 Facebook and Instagram accounts. 50,000 potential targets notified. That's going to hurt paying customers of companies like NSO Group and its competition, most of which have yet to obtain the international infamy NSO has.

The full report [PDF] from Meta lists the companies ejected in this surveillance-for-hire purge. And there's a common strain running through the list, one that's going to cause even more problems for a government already dealing with blowback for running interference for a company selling spy tools to a long list of human rights violators.

We removed about 200 accounts which were operated by Cobwebs [Technologies] and its customers worldwide. This firm was founded in Israel with offices in the United States and sells access to its platform that enables reconnaissance across the internet, including Facebook, Instagram, WhatsApp, Twitter, Flickr, public websites and “dark web” sites.

[...]

We removed about 100 accounts on Facebook and Instagram which were linked to Cognyte (formerly known as WebintPro) and its customers. This firm is based in Israel and sells access to its platform which enables managing fake accounts across social media platforms including Facebook, Instagram, Twitter, YouTube, and VKontakte (VK), and other websites to social-engineer people and collect data.

[...]

We removed about 300 Facebook and Instagram accounts linked to Black Cube, an Israeli-based firm with offices in the UK, Israel and Spain. It provides surveillance services that include social engineering and intelligence gathering.

[...]

We removed about 100 Facebook accounts linked to Bluehawk, a firm based in Israel with offices in the UK and the US. We collaborated on this investigation with The Daily Beast who had identified a subset of this activity leading us to uncover the full cluster and who’s behind it earlier this year.

[...]

We removed about 400 Facebook accounts, the vast majority of which were inactive for years, linked to BellTroX and used for reconnaissance, social engineering and to send malicious links. BellTroX is based in India and sells what’s known as “hacking for hire” services…

[...]

We removed about 300 accounts on Facebook and Instagram linked to Cytrox. This North Macedonian company develops exploits and sells surveillance tools and malware that enable its clients to compromise iOS and Android devices…

[...]

We removed about 100 Facebook and Instagram accounts linked to an unidentified entity in China responsible for developing surveillanceware for Android, iOS, Windows, and also Linux, Mac OS X, and Solaris operating systems. It also engaged in reconnaissance and social engineering activity before delivering malicious payload to its targets.

Four of the seven entities identified and blocked call Israel home. Cytrox also has links to Israel as both Citizen Lab and the Times of Israel have reported. Cytrox is now part of a spyware conglomerate that has been criminally charged for human rights violations.

Israel has a malware problem. And the government can't claim it was unaware of these companies and their selling of tools to authoritarians and human rights violators. The government was actively involved in brokering some of these deals.

The customers for these products, however, are far more varied. Cobwebs products were observed "frequently targeting" activists and opposition parties in Hong Kong and Mexico. But its customer base includes entities in Bangladesh, New Zealand, Poland, Saudi Arabia, and… the United States.

The list compiled by Meta shows malware firms are more than happy to sell to governments that like targeting critics and opponents, rather than criminals and terrorists. Serbia, Morocco, Mexico, China, Qatar, Saudi Arabia, Egypt, Oman, the Philippines, and Myanmar make this list.

But it's not just the blocking. It's the notification. And there's plenty of that.

We also alerted around 50,000 people who we believe were targeted by these malicious activities worldwide, using the alert system we launched in 2015. We recently updated it to provide people with more granular details about the types of targeting and the actor behind it so they can take steps to protect their accounts, depending on the phase of the surveillance attack chain we detect in each case.

That's a lot of disrupted surveillance efforts. State actors are paying good money for these exploits and now they're facing more resistance than ever from the private sector being used to transport malware to targets. That's a lot of money and a lot of surveillance being undone. Governments buying exploits won't be happy but so what. There's no reason to assume that just because it's a government agency doing the targeting there's any legitimacy to the hacking efforts. This is the way it should be -- platforms and device makers protecting customers and users against hacking attempts, no matter the origin of the attacks. The world needs more of this because authoritarians and human rights abusers deserve to have their oppressive efforts thwarted.

Filed Under: hacking, malware, surveillance
Companies: facebook

As U.S. Prepares Big New Broadband Plan, Few Notice Our Last Major Broadband Plan Was A Major Dud

from the doomed-to-repeat-it dept

"Those who ignore history are doomed to repeat it" isn't just a quaint saying. Especially in tech or telecom policy. If you don't learn from the mistakes you made the last time you tried to tackle a complex policy issue, you're just going to repeat some or all of the process and see similar results. But it often seems as if the United States has a severe allergy to learning from history and experience, especially if it's in certain companies' best interests that we not learn from our past policy failures (see: banking, airlines, insurance, energy, health care, pharma...).

Our inability to learn from past mistakes is particularly pronounced in telecom where we just keep making the same mistakes over and over again. Back in 2010 the Obama FCC released a massive, heavily-hyped "National Broadband Plan." The goal of this plan was to bring broadband to everyone who needed it, driving innovation and bolstering the entirety of the internet economy. As we noted at the time, the plan wasn't likely to see much success because it failed to identify and target the real cause of U.S. broadband dysfunction: limited broadband competition (monopolies), and the state and federal corruption that protects monopolies.

Eleven years later, as we gear up for yet another massive broadband investment and plan, few folks in telecom policy have bothered to look backward to help us look forward. Except perhaps Christopher Terry, Assistant Professor of Media Law and Ethics at the University of Minnesota. He's made a bit of a habit of popping up to remind policymakers that their massive 2010 broadband "fix" wasn't much of one. And he often doesn't get the attention he deserves:

Terry often writes about how the plan failed to deliver pretty much everything it promised, and very few folks in telecom policy circles seem particularly bothered by that fact. U.S. telecom policymakers just keep trudging forward, as if we hadn't already promised to fix this problem several times over, despite the fact none of the 2010 plan's primary goals were actually met:

Goal No. 1: At least 100 million U.S. homes should have affordable access to actual download speeds of at least 100 megabits per second and actual upload speeds of at least 50 megabits per second. (Nope)

Goal No. 2: The United States should lead the world in mobile innovation, with the fastest and most extensive wireless networks of any nation. (not even close).

Goal No. 3: Every American should have affordable access to robust broadband service, and the means and skills to subscribe if they so choose. (the pandemic brutally showcased how this absolutely isn't true. In fact, Techdirt ran an entire conference on the subject)

Goal No. 4: Every American community should have affordable access to at least 1 gigabit per second broadband service to anchor institutions such as schools, hospitals, and government buildings. (again, COVID showed how far we actually were from this goal)

Goal No. 5: To ensure the safety of the American people, every first responder should have access to a nationwide, wireless, interoperable broadband public safety network. (We did finally start building FirstNet, though it's incomplete and been plagued by delays. Also, remember when Verizon Wireless throttled those California firefighters as they were battling record wildfires and tried to upsell them to more expensive plans?)

Goal No. 6: To ensure that America leads in the clean energy economy, every American should be able to use broadband to track and manage their real-time energy consumption. (never happened at any consistent scale).

We're now poised to spend another $42 billion on broadband despite not having accurately fixed our inaccurate broadband maps. The FCC also just announced another $1 billion investment into rural broadband, without acknowledging this was a problem that was supposed to be fixed years ago. As Terry noted in an email, these projects and their crafters may be well intentioned, but they often weirdly ignore that all of this was supposed to have been fixed years ago:

"Of course, if the 10 year plan in the Broadband Plan had worked as designed, none of this spending would have been necessary, as these shortcomings would have been resolved. There were six stated goals in the national broadband plan. It is arguable none of these goals have been met, 4300 days after the plan was launched. I pointed this out 800 days ago in a Benton foundation op-ed. The failure of the National Broadband Plan is more than a digital divide issue, the plan included provisions for a consumer centric digital privacy mechanism that were discarded with the rest of the plan.

To be clear, our new $42 billion broadband plan absolutely will be helpful in driving needed broadband funds to a lot of areas. But it's fairly clear it was crafted without truly reckoning with the failures of past policies. And it once again doesn't target the real cause of spotty, shitty U.S. broadband: monopolization and corruption. The latter (corruption) is a Sisyphean task to be sure. But tackling U.S. competition shouldn't be this hard. Hundreds of towns, cities, co-ops, and utilities are doing it every day, though lending them a hand was one of the first lobbying casualties in the broadband infrastructure bill (again, corruption).

If U.S. policymakers really want to fix U.S. broadband, it starts with clearly acknowledging and calling out regional monopolization (something neither party has much interest in doing for fear of upsetting politically powerful campaign contributors tethered to our intelligence gathering). It involves shaking off lobbying influence, and ending the 30 year tendency of letting monopolistic giants like AT&T and Comcast literally write state and federal telecom policy. And it most certainly involves actually acknowledging the failures of the past so we don't doom ourselves to repeating them in perpetuity.

Filed Under: broadband, broadband plan, infrastructure

Another Example Of How The Playing Field Is Tilted In Favor Of Copyright Owners

from the copyright-abuse dept

It's widely known that artists of all kinds often get a raw deal from the contracts they sign. But this kind of legal unfairness is not the only danger they face: copyright can also be turned against creators in other, illegal ways. For example, according to a report on MarketWatch:

Two men have been charged with allegedly running a years-long music royalty scam, in which they collected more than $20 million in payments from YouTube, by falsely claiming to hold the rights to 50,000 Spanish-language songs. 

Things began back in 2017, when the two men allegedly:

approached a third-party royalty management firm identified in court papers only by the initials A.R., falsely claiming to control the royalty rights to the songs. In some cases, Teran and Batista used forged notes from artists claiming they had the rights to manage the music, prosecutors said.

The men allegedly signed a contract with the management firm. Working with an established player seems to have given the accused credibility with YouTube, which then paid them royalties – an astonishing $20 million over the next few years according to the prosecutors. According to court documents, it seems that none of this was passed on to the artists concerned. In addition, YouTubers are alleged to have lost out when their uploads were falsely marked as infringing, and then used to generate income for the accused.

Assuming the details of this case are confirmed during the trial, they show how the digital copyright system takes on trust claims to ownership, if made in the right way – in this case, through an established royalty management firm. That trust contrasts strongly with a widespread reluctance by companies to recognize that people may be able to draw on copyright exceptions when they make copies, and a readiness to assume that it must be an infringement. It's another example of how the playing field is tilted strongly in favor of copyright owners, and against ordinary citizens.

Originally published to the Walled Culture blog.

Filed Under: copyright, royalties, scams
Companies: youtube

NSO Group Facing Even More Money Problems As Debt Manager Says Sayonara And State Of Oregon Seeks To Terminate Its Investment

from the [extremely-Seinfeld-gif-voice]-that's-a-shame dept

NSO Group spent years supplying some of the world's most untrustworthy governments with powerful spyware capable of completely compromising targeted devices. It managed to weather a few years of reports tying its malware to surveillance of journalists and activists, but all hell broke loose earlier this year, resulting in a steady stream of reports linking its tools to surveillance of government officials, journalists, dissidents, government critics, religious leaders, and, in one incredible case, the ex-wife of the king of Dubai.

It couldn't have come at a worse time for NSO. It has racked up an impressive amount of debt, something it likely assumed it would be able to manage as it continued to grow its market. That growth has stalled but the payments must still be made. NSO was downgraded by ratings firm Moodys, which warned that NSO was in danger of defaulting on its debts.

That, combined with Israel drastically reducing NSO's customer base and the blacklisting by the US Commerce Department, has resulted in the company considering shutting down its offensive spyware division (the one responsible for developing Pegasus) and putting its remaining assets up for sale.

It might not be that easy to divest, nor find a way back to solvency. Bloomberg reports that one of NSO's debt managers has decided it's no longer interested in providing these services to this particularly toxic asset.

Jefferies Financial Group Inc., one of Wall Street’s closest allies of spyware firm NSO Group, is resigning from a key administrative role for the Israeli company’s debt, according to a person with knowledge of the matter.

The investment bank privately notified the company’s lenders on Friday of its intention to step down as administrative agent, a role in which Jefferies handles debt payments for the company and other clerical tasks, said the person, who asked not to be identified because the information is private.

That seems like a pretty strong "no confidence" vote on NSO Group. Whether it's because Jefferies thinks NSO can't repay its debt or because of its reputation as the enabler of oppression all over the world was left unsaid.

But that's not the only demonstration of a lack of confidence. Keeping the malware purveyor at a minimum of arms length appears to be a popular move. A state government a couple of steps removed from NSO is looking to divest itself of its holdings.

Oregon's treasurer is exploring legal options with the state attorney general in the state's large investment in a smartphone spyware company — a firm that has been denounced by human rights groups, the U.S. government and tech giants.

In 2017, the Oregon Investment Council unanimously committed $233 million in the state employee retirement fund to a new private equity fund called Novalpina Capital, which later acquired a majority share of NSO Group, an Israeli company that produces smartphone spyware.

This move might be due to NSO's public image, which currently requires the use of a periscope to peer out of the gutter. But it also might be due to the equity fund's internal problems, which has led investors -- including the state of Oregon -- to strip the company of its control of the fund and hand it over to another company entirely.

But this statement from a state official indicates it has more to do with NSO's current PR problems than Novalpina's apparent inability to properly manage an equity fund.

Oregon State Treasurer Tobias Read “supports sanctioning global technology companies that facilitate human rights violations and the oppression of journalists by selling technology to authoritarian regimes," Read's spokeswoman, Amy Bates, said in a statement Thursday to The Associated Press.

It's currently unclear whether the state can get out of this without getting sued for breach of contract. But that's the direction the state would like to go. As for NSO, it continues to claim it's being unfairly punished for the actions of its customers, stating that it values "ethics over revenues" and only sells malware for the purpose of preventing terrorism and serious crime. But the facts say otherwise. And NSO has long since run out of excuses for its willingness to sell powerful spyware to countries with long histories of human rights violations and abuses of surveillance powers.

Filed Under: debt, malware, oregon, spyware
Companies: jefferies financial group, nso group