Gov't Accountability Office Says FBI Should Probably Just Give Up The Use Of Force Reporting It Never Bothered Doing

from the waste-not,-left-still-wanting dept

In 1994, Congress passed a law (the Violent Crime Control and Law Enforcement Act) that ordered the Department of Justice to "acquire data about the use of excessive force by law enforcement officers" and publish an annual report. The DOJ immediately handed this responsibility off to the International Association for Chiefs of Police, which produced a single report in 2001 and has done nothing since.

The problem was the process was entirely voluntary. And it doesn't appear that, outside an act of Congress, it can be changed. The DOJ does not directly oversee any state or local law enforcement agencies. The involvement of the IACP might have encouraged more participation if the IACP was interested in participating in this data gathering, but the facts speak for themselves. There's nothing in this for law enforcement. And since no one can force law enforcement to send the DOJ use-of-force data, participation by the nation's 18,000 law enforcement agencies (as of 2015) was as low as 3%.

In 2015, as excessive force deployment and killings by police officers repeatedly gained national attention, the FBI declared itself the hero and rode to the rescue, promising a new, better, still-entirely-voluntary use-of-force database. This time it offered a carrot -- federal funds -- in exchange for information. It did better than the previous (lack of) effort, managing to gather data from nearly than a third of US law enforcement agencies.

Better than nothing, I suppose. But that's the thing: it's still nothing. The FBI has gathered this hugely imperfect data set from a smallish group of self-reporters. And it has done nothing with the data. The annual reporting has never materialized. Thanks to this wealth of inactivity, the FBI and DOJ may soon be able to give up this responsibility -- one they clearly never wanted. It won't be because it can't be made to work. It will be because no one wants to put in the work. And it may also be because the Government Accountability Office is suggesting the DOJ stop spending tax dollars on work it clearly isn't doing.

[D]ue to insufficient participation by law enforcement agencies, the FBI has not met thresholds set by the Office of Management and Budget for publishing use of force data or continuing the effort past December 2022. Further, as of February 2021, the FBI had not assessed alternative data collection strategies.

That's from the summary of the GAO report. The full report [PDF] goes into more detail, but the conclusion is still foregone: the DOJ never wanted to do this and has spent most of three decades not doing it. The failures found by the GAO aren't the result of the DOJ and FBI struggling mightily and still coming up short. It's a mandate the DOJ received in 1994 and immediately abandoned. The 2015 effort was mostly PR -- an attempt to show the federal government cared enough about police violence to at least try to tally it up. And the FBI put in all the effort that empty promise required.

Here's the half-assery the GAO observed. Both the BJS (Bureau of Justice Statistics) and the FBI were supposed to collect and publish data. Here's what the BJS managed to do with its time, energy, and personnel over the past half-decade:

[O]ver the 5-year period from fiscal year 2016 through fiscal year 2020, BJS published results from this survey twice. Further, one of those publications was a retrospective report of previously published data that were collected from 2002 through 2011.

Confronted with this failure, the BJS asked the GAO if it had tried looking somewhere else for the data the BJS was supposed to be publishing. The GAO looked and said that's not even the same thing.

BJS officials also stated that the Law Enforcement Management and Statistics Survey was another means through which DOJ published required data on excessive force. However, BJS publishes information on policies and procedures related to officers’ use of force collected through this survey, but does not publish any information specifically on excessive force by law enforcement officers.

A total lack of effort by everyone involved. The DOJ said the FBI collected the information (but did not publish it) and claimed that ended the DOJ's involvement -- a strange assertion for an agency directly overseeing the FBI to say. Stranger still, the FBI said it had not been informed this was its job, despite making two public announcements (2015 and 2019) saying it would be doing these things.

To ensure Americans were deprived of any useful info about excessive force deployment, the FBI deliberately made a mess of the data given to it by a small percentage of law enforcement agencies.

According to FBI documentation, the National Use-of-Force Data Collection does not differentiate between incidents involving reasonable force and incidents involving excessive force. Specifically, the collection does not contain information on whether officers followed their department’s policy or acted lawfully in any given incident. Therefore, it is unclear how DOJ could use these data to publish a summary on excessive force by law enforcement officers.

And again, another failure to do the things asked of it by the FBI.

In addition, the FBI began collecting these data in 2019 and has not yet published any use of force incident data collected through the program…

As was noted above, the FBI and DOJ have no backup plan. If their original effort didn't work, the solution appears to be to let it die. The GAO says no alternative efforts have been considered to ensure greater collection or more frequent publication. (Or, indeed, ANY publication of collected data.) The proposals the GAO heard from these entities suggest officials were just making stuff up on the spot.

When you're concerned about which agencies might be engaging in more deadly/excessive force than others (as was partially the point of this database), a random sample and some extrapolation is going to provide cover for agencies with endemic problems and paint an unrealistic picture about law enforcement force deployment.

The FBI’s business plan for the collection states that using a sample of agencies may be a potential alternative data collection mechanism.

At this point, the FBI only has a "sample of agencies." The collection has never approached 100% of the nation's law enforcement agencies. At best, it has managed to collect police killing data from 55% of these agencies. When it comes to force deployment, the percentage is much lower.

Just to drive home the point once more: no one in the DOJ wanted to do this job. The Bureau of Justice Statistics has published 130 reports from 2016 to 2020. Total number of use-of-force reports during that same time period? One.

The good news for those people who spent years not doing what they were paid to do? They won't have to not do it much longer.

[T]he collection itself may be discontinued as soon as the end of 2022.

That's the way the FBI wants it. No news is good news. Or, at the very least, its news that can't be disputed by data it barely collected and never published. All that's left is the public perception of law enforcement force deployment -- something that definitely hasn't improved over the past five years. The nation's law enforcement agencies -- including those at the federal level -- have managed to rack up nearly thirty years of non-participation trophies. Never investigating the problem means never having to confront the problem. And if you screw around long enough, people will stop asking you to do stuff you don't want to do.

Filed Under: fbi, gao, police brutality, police shootings, use of force

Tenth Circuit Appeals Court Says Fourth And Sixth Amendment Rights Are Meaningless When National Security Is On The Line

from the wherein-'more-than-a-half-decade'-means-'speedy' dept

A case involving the first criminal suspect to be notified by the DOJ that evidence against him was derived from Section 702 surveillance has just reached an end. The Tenth Circuit Appeals Court has decided there's nothing wrong with the government's FISA-enabled warrantless surveillance programs. It also says the word "speedy" can be redefined at will by the government's national security concerns, changing the definition to "however long it takes."

The ACLU, which helped represent the US resident whose communications were collected and intercepted with FISA court orders, summarizes the outcome of this decision:

In a sharply divided ruling, the 10th Circuit Court of Appeals today wrongly held that the warrantless surveillance of Jamshid Muhtorov — a legal permanent resident whose email communications were searched by the U.S. government under Section 702 of the Foreign Intelligence Surveillance Act (FISA) — was lawful. The court also ruled that the egregious seven-year delay leading up to Mr. Muhtorov’s trial did not violate the Speedy Trial Act.

Muhtorov, whose path to arrest involved surveillance programs exposed by Edward Snowden and an FBI informant pretending to be a terrorist sympathizer, was arrested January 21, 2012. His trial didn't begin until May 14, 2018. He spent those six years in jail as a pre-trial detainee.

The Appeals Court doesn't have a problem with any of this. It says the surveillance that targeted the foreign entities Muhtorov communicated with was constitutional… mainly because those rights aren't applied to foreign surveillance targets. Muhtorov, a legal US resident, was targeted after his communications were incidentally collected, resulting in the government intercepting an untold number of emails and 39,000 hours of audio recordings.

The incidental collection of a US person's communications is also lawful, says the Appeals Court. It says those were in "plain view," the other end of targeted foreign communications that the government needs no warrant to obtain. If the initial action was legal, everything that flowed from it was likewise constitutional.

As for the extremely long delay between Muhtorov's arrest to his trial, the court says, in effect, that this all would have gone a lot quicker if Muhtorov hadn't engaged in his right to examine the evidence the government planned to use against him. That national security precautions meant he wasn't able to actually see much of the evidence being used is somehow beside the point. The fact that the government had to gather it and run it past the district court judge shouldn't be held against the government, the court declares.

The long dissent [PDF], written by Judge Carlos Lucero, excoriates the majority for nearly every conclusion it reached, but spends a considerable amount of time taking the court to task for deciding it was the defendant's fault the government took so long to produce requested evidence.

I begin with approximately two years of delay that are uncontestably attributable to the government. For just over 21 months, the government did not notify Muhtorov of the involvement of § 702 evidence in the case against him. My colleagues contend that this delay “did not extend the pretrial period,” because this almost two-year delay was encompassed within the six-and-one-half-year delay caused by discovery production. This approaches double-speak: what the majority is saying is that any and all government delay is excusable because of its own delay in discovery production. As I note below, the government’s delay in discovery production is swept aside by my colleagues in conclusory terms to the end that nearly six-and-a-half years in bringing these defendants to trial is excused, thereby setting a new Sixth Amendment “standard of speed.”

That two year delay might have been even longer if not for Ed Snowden. That disclosure of the use of Section 702 surveillance was prompted by his leaks, which not only revealed what the government could obtain under Section 702, but made it clear the DOJ had completely ignored its disclosure obligations for years. As Judge Lucero notes, this delay is entirely the government's fault. It cannot be used to justify Speedy Trial Act violations.

The government offers no explanation for its belated initial § 702 disclosure. When the government elects to bring national security cases, surely it must know, or should know, whether it is going to present § 702-derived evidence. The attendant delay in doing so cannot be attributed to the defendant.

That was one delay. The other delay was even longer.

Next, the government required four years, seven months, and eleven days to meaningfully respond to the defendant’s discovery requests. A relative pittance of information was provided within the first four years followed by massive production in August 2016. At argument, this production of discovery material was described as a “discovery dump.” Muhtorov’s counsel tell us that only then, after September 1, 2016, were they able to begin to assess the evidence against him. Additional discovery followed, extending well beyond the trial-court-imposed deadlines to the eve of trial in May 2018. Again, I recognize that the extensive nature of Muhtorov’s discovery requests can account for part of the delay, but close to five years of delay cannot be explained away by such summary acceptance of governmental excuses.

Nor should the government be excused simply because the evidence being handed over was sensitive or classified. This was a national security case from the beginning, so the DOJ should have been prepared for the additional complications of preparing and turning over this evidence. Instead, it appears to have started its CIPA (Classified Information Protection Act) evaluation of the evidence nearly four years after it had arrested and charged Muhtorov.

Nor can the factors relied upon by the majority explain the inexplicable: that the government awaited the district court’s denial of Muhtorov’s second motion to suppress on November 19, 2015 to commence its CIPA § 4 evaluation of the evidence. The government began this necessary process only after Muhtorov had been deprived of his liberty for nearly 46 months. Once it deigned to begin, the government managed to complete the bulk of these evaluations within nine months. If the government could complete all these admittedly difficult discovery tasks in nine months in 2016, why could it not have completed them in the first year following Muhtorov’s arrest? Or the second? Or the third? Reason dictates it could have.

The defense tried to speed things up on this front by asking for the appointment of counsel with security clearances that would allow them access to classified evidence. The government objected to this, resulting in even more delays. It wasn't the only thing the government did to drag out the pre-trial procedures, all of which added up to Muhtorov serving his 11-year sentence before the court took up his appeal of his conviction.

These decisions include (1) opposing the appointment of cleared defense counsel; (2) failing to adequately resource translation services; (3) seeking a third superseding indictment on May 18, 2016 that added charges subsequently dismissed by the government; and (4) discretionary decisions within the CIPA process to restrict or deny information to the defense, including the unilateral implementation of specific techniques to protect a small portion of evidence.

The government shouldn't get away with this, Judge Lucero argues. The bandying of buzzwords isn't the same thing as showing justification for trial delays.

Mere incantation of the phrase “national security” does not, and should not, in and of itself justify violations of the speedy trial right. Likewise, the terms “complex discovery” and “translation difficulties” should not stand stead for the term “national security.”

The case may have been complex, but the government is still obliged to respect Muhtorov's rights. That it took longer for the defense to parse the information it was actually able to access isn't on the defendant. And US persons shouldn't be expected to sacrifice one right (challenging evidence used against them) to access another (a speedy trial).

To the extent that the defense was unable to engage in the normal winnowing of issues because of the redacted or summarized nature of the discovery (and as in this case, its late provision), any delay arising from good faith motions should not be weighed against Muhtorov. Although a criminal defendant may be required to make hard strategic choices in the context of a criminal trial, the government’s heads-I-win, tails-you-lose approach to this issue cannot comport with due process.

Lucero also tackles the Fourth Amendment conclusions drawn by the majority and finds them lacking.

I agree with the majority’s conclusion that the incidental collection of Muhtorov’s communications with a target of § 702 surveillance is likely reasonable under the Fourth Amendment, but I find unacceptable the majority’s decision to accept the government’s assertion that no pre-warrant querying took place in light of the complete dearth of supporting evidence in the record. [...] By accepting the government’s bare assertion to resolve this dispute of fact, the majority avoids the thorny constitutional issues that querying presents.

If the defendant was unable to adequately challenge the evidence, that's because the government has stacked the deck against defendants in national security cases. The deck was further stacked here by its refusal to allow the appointment of defense counsel with security clearances who could view the evidence firsthand. Instead, the law forces courts to examine the evidence without acting on behalf of the defendant. Accused persons are pretty much left without any representation in cases involving ex parte submissions. That cuts defendants out of the loop. Courts shouldn't make this worse by disregarding challenges raised by parties who are working blind.

Through passage of CIPA, Congress has mandated that we step out of our traditional role as neutral arbiters overseeing adversarial presentation of issues and step into a role much closer to that of an inquisitor. As explicitly acknowledged by the government, a district court’s role in cases involving CIPA is to act as “standby counsel for the defendants.” Similarly, on appeal “we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests.” Amawi, 695 F.3d at 471. The judiciary is neither institutionally suited nor resourced to fulfill this role. Yet this is the role that Congress has assigned us. Our colleague on the trial bench said it well when he described acting in this role as feeling like “an illegitimate child at a family reunion.”

[...]

If the defense does not have access to the evidence or to arguments presented by the government in ex parte proceedings because of CIPA, any failure to make arguments with sufficient specificity, to assert specific grounds before the district court, or to produce evidence to contradict the government’s presentation cannot be held against the defendant.

With limited info and, perhaps, an inability to thoroughly parse the government's evidence, the court relies heavily on the government's assertions. Too many of these go unchallenged, though. And when that happens, rights evaporate into the national security ether. Judge Lucero says the record -- albeit not one before the court -- shows the government has regularly abused its surveillance powers. That alone should have resulted in courts at both levels refusing to take government assertions about legality at face value.

Although the government presents the relevant targeting and minimization procedures for the relevant years in its classified record, it never describes in detail how and when the “acquisition” of the information occurred in Muhtorov’s case. This may be explained by the FBI’s documented history of widespread U.S. person querying and of non-compliance with its record-keeping responsibilities under its own minimization procedures. Perhaps as a result, there is no evidence in the record either that querying did not occur or that the government agents who directed or sought the traditional FISA application did not know of its existence or results. Without that information, it is impossible for us, acting as standby defense counsel, to resolve the derivative evidence question. The government’s reframing of the issue—as requiring only our evaluation of the limited basket of intercepted communications it chose to submit to the FISC—borders on disingenuous, given the breadth of the derivative evidence inquiry. Deprivation of liberty based on the government’s mere say-so is antithetical to established constitutional order.

And the majority's refusal to consider the implications of incidentally collected US persons' communications basically codifies mass rights violations.

My colleagues rely on the plain view and incidental overhear doctrines to countenance the use of millions of § 702-acquired communications that are stored in vast databases. This reliance risks fundamentally undermining heretofore reasonable expectations of privacy of U.S. persons whenever they communicate with another person located abroad.

Oof. If this damage is going to be undone, it will have to be the Supreme Court doing it. And historically it hasn't shown much interest in challenging government national security claims or its bulk surveillance programs. Things look pretty dire here in the Tenth Circuit. Rights just aren't rights when national security is involved.

Filed Under: 10th circuit, 4th amendment, 6th amendment, doj, national security, section 702, warrants

Daily Deal: The 2022 Premium CompTIA CyberSecurity And Security+ Exam Prep Bundle

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

The 2022 Premium CompTIA CyberSecurity and Security+ Exam Prep Bundle has 6 courses to help you prepare for the CompTIA certification exams. You'll learn about pen testing, risk management, how to scan for vulnerabilities, how to secure a corporate environment, and more. The bundle is on sale for $30.

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

Which Went More Viral Challenge: Local News Stories Or TikTok School Violence 'Challenge'?

from the its-local-news-ftw dept

Last month we wrote about adults completely freaking out about supposed viral "TikTok challenges" to do violence in schools. We highlighted a truly excellent Reply All podcast episode and a thorough debunking at Curbed, both of which showed that while there may be some kids doing some stupid stuff on TikTok (because kids and because TikTok) there's no evidence that any of the really bad stuff actually happened, and what little stuff did happen didn't appear to actually go viral. What did go viral were adults -- school cops ("School Resource Officers") and administrators -- spreading weakly sourced claims about such challenges.

And it appears we're going through that all over again. A bunch of schools around the country are closed today or on "heightened alert" due to ambiguous claims of a "TikTok challenge" to shoot up schools. And, obviously, coming so soon after another very tragic school shooting (which was not inspired by any TikTok challenge) you can completely understand why administrators, teachers, and parents alike are at least concerned. But... let's put things in a bit of perspective here. Because with a huge percentage of schools around the country sending home "warning" notes, and the local news blasting stories about this, I'm curious which went more viral? The TikTok "challenge" video that not a single one of these articles has identified or shown or even described? Or all of the many news stories about it?

At least some of the schools (but not all) and some of the news articles (but not all) note that there is no evidence of a credible threat in their school districts, but it seems pretty obvious that the "viral" part of this story was not on TikTok at all, but rather in the media itself. Of course, this follows the same trend we've pointed out in the past: the viral stories spread via the regular old media. Yet, everyone freaks out and demands regulations of social media?

This is not to say there wasn't some dumb kid on TikTok who made such a post. There may have been. But the fact that no one seems to be able to say who it was, where it was, what it said, or how far it spread sure raises questions about how much of it actually happened. And, yes, perhaps there will be school violence today, because (tragically, and for unfortunate reasons) that happens way too often. But it's important to keep all of this in perspective. How many people do we think learned about this so-called "challenge" from TikTok, and how many learned about it from the local media or the local school district?

And, no, I don't envy school administrators trying to figure out how to deal with this, because they know that if they don't send such a note home and something does happen, then they'll get raked over the coals for their supposed "failures." So the incentives suggest sending one of those notes home and then taking other actions.

But where does that leave us? We've just shown kids how incredibly it easy is to manipulate adults across the country into panicking and freaking out and in many cases shutting down school for a day -- because of some vague, undefined claims of a supposedly "viral" TikTok video that no one can actually identify. If anything is going to cause disruptions and problems in schools, it's that.

Filed Under: challenge, local media, moral panic, school violence, schools, tiktok challenge
Companies: tiktok

Malibu Media Ordered To Pay Wrongfully Accused 'Pirate' Even More Money After Failing To Abide By Court's Decision

from the keep-digging dept

Regular readers here need only hear the name Malibu Media to get their eyes rolling. This copyright troll that emerged from pornography producer X-Art has made quite a name for itself by attempting to shake down hundreds of accused copyright infringers, often using all kinds of shady tactics. Expert witnesses that nobody is quite sure even exist, failing to serve defendants, attempts to quickly dismiss cases against those who are willing to fight back: it all paints the picture of a shady operation looking to use shady tactics in order to collect shady infringement settlements. All, mind you, in the name of law and order in the realm of copyright law.

Except, as with most shady operations predicated on the law like this, the hypocrisy from Malibu Media is quite stunning. For example, Malibu Media accused defendant "W.M." of infringement in court, only to have the defendant file a counterclaim demanding any actual evidence the company had of their infringement. No evidence was produced, leading the court to decide in favor of "W.M." and to issue an order for Malibu Media to pay him/her nearly $50,000. In the least surprising news ever, Malibu Media didn't pay that amount as ordered.

In most cases an order like this would end things but, in this instance, things went from bad to worse. Malibu Media failed to pay up and on top of that, the company actively diverted funds that should have been used to pay these fees.

To recoup the money, Mr. W.M. hired Joseph Stewart, an experienced collection attorney. They went as far as obtaining a order that required Malibu Media and its payment processor Epoch.com to restrain the subscription revenue from “X-Art.com” members.

You would think that would have been the end of it. But, no, Malibu Media continued its bad actions, this time trying to play a shell game with where its revenue was coming into and going out. Colette Pelissier, top executive at Malibu, failed to show up for court hearings without an excuse. As a result, Judge Thomas Durkin signed an order that would see Pelissier arrested if she failed to show up to the next hearing. While that forced her to show up, it was fairly clear she wasn't prepared for that hearing.

We haven’t witnessed the hearing ourselves but copyright attorney and YouTuber Leonard J. French, who is not involved in this case, told us that the proceeding was quite messy.

Pelissier reportedly had a complete breakdown. She spoke quickly and panicky, while repeatedly interrupting the Judge, referencing issues that appeared to bear no relation to the case at hand.

The court was decidedly displeased with this performance.

“I deal with prisoners who are more appropriate, I have people who are mentally ill who can conduct themselves with more decency,” Judge Durkin said, before cutting off the call.

The result? Well, Judge Durkin basically doubled the amount of money Malibu Media owes "W.M.", increasing it to just over $100,000. Now, such a six-figure sum is certainly warranted for a wrongfully accused defendant such as "W.M.", but it remains to be seen if anyone can manage to actually collect this money. The payment processor has reportedly collected about half that much as restrained revenue from Malibu Media, leaving roughly half to go.

As with all of these stories, you would think this really should be the bottom of the hole that Malibu has dug for itself, but the shady copyright troll always seems to want to keep digging.

Filed Under: attorney's fees, colette pelissier, copyright, copyright trolls, default
Companies: malibu media, x-art

CBP Proudly Announces Its Facial Recognition Program Has Successfully Nailed A COVID Scofflaw

from the please-hold-your-applause...-forever dept

Customs and Border Protection continues to protect our borders against… stuff. Much like the TSA struggles to catch any terrorists (or, indeed, any items actual terrorists might use) but still issues press releases crowing about the agency's ability to identify and seize novelty items and the occasional gun someone decided not to check, the CBP is more than happy to point out how a system that relies on millions of facial images collected at ports of entry every so often stops someone from entering the country.

As of the end of 2020, CBP's biometric systems installed all over the country had gathered 50 million facial images. This was all done in service of identifying fewer than 300 "imposters." CBP claimed this ratio was a sign of its effectiveness -- that being able to identify 292 imposters who were previously denied entry to the United States was acceptable ROI for millions of dollars of biometric collection/comparison equipment and new impositions on people who cross the borders hundreds of times a year for legitimate reasons.

2021 is wrapping up and we haven't heard much about the CBP's imposter identification program. Until now. If the goal is national security, this release by the CBP isn't any more reassuring than the previous report of ~300 imposters caught at borders -- none of which appear to have been terrorists or members of dangerous criminal cartels. The former group appears to have been mostly composed of people who've already been rejected once at the border for whatever reason.

This latter group of one was rejected for a more timely(?) reason: a lack of proper antibodies.

U.S. border officials are crediting facial-recognition technology with stopping an impostor from entering their country through the Pacific Highway border in South Surrey.

According to a news release issued Friday (Dec. 3), officers using ‘Simplified Arrival’ – a touchless arrival process which compares facial biometrics on documents required for entry into the U.S. – identified a “facial mismatch” while processing a female bus passenger on Nov. 26.

The woman admitted to using her sister’s U.S. passport and COVID-19 vaccination card, “because she had not been vaccinated,” the release states.

Truly amazing stuff. No doubt this will whip up the anti-vax crowd and cause them to decry this as fascism. This will happen while they ignore the years of fascist-adjacent border activity, including the wholesale disappearance of everyone's rights within 100 miles of the border and inland "border" checkpoints that subject people who aren't even crossing borders to the unfriendly advances of Customs officials.

This underwhelming win for an expensive and intrusive biometric system is, of course, being touted as a justification for said system.

“The addition of facial biometric technology and the vigilance of our CBP officers prevented the entry of someone suspected of fraudulently using another individual’s passport and COVID-19 vaccination card to cross international borders,” Brian J. Humphrey, U.S. Customs and Border Protection’s Seattle director of field operations, said in the release.

Wow. I hope there's still some room on the chests of these fine heroes, given all they do for this nation. Who knows what sort of havoc an unvaccinated Canadian could have wreaked in the Seattle metro area? It's not that COVID isn't contagious or deadly, it's that this isn't how we expect systems that diminish our rights to be used. This isn't the tradeoff we never even had the chance to agree on.

The most generous reading of the American public's acceptance of post-9/11 processes and procedures is that ever-expanding surveillance efforts and impositions on travelers would be focused on national security threats. But not much of it is. Lots of activity at ports of entry is focused on finding cash the government can seize. The rest of it appears to be petty harassment in search of a justification. Even if this "catch" is incidental to the CBP's more important work, the last thing the agency should do is announce it like it some sort of vindication of the federal government's unquenchable thirst for biometric data.

Filed Under: border patrol, cbp, covid 19, facial recognition

The Internet Industry's Most High Profile, But Least Successful, Trade Group Dissolves

from the good-riddance dept

While this may feel like Washington DC insider baseball, it's fairly notable that the "big" internet trade/lobbying group, the Internet Association has announced it's shutting down (Emily Birnbaum at Politico had the scoop the night before the official announcement). There will likely be a bunch of post mortems and discussions about this happening just as the big internet companies (who came together to set up IA in the first place) are under such regulatory threats. But, to me, this is good riddance. It was an organization that more often than not made things worse for the internet, rather than better. And that's too bad, because it had a real chance to do the opposite. This is not to say there weren't good people who worked there -- there absolutely were. But as an organization, it missed a ton of opportunities to do the right thing.

The Internet Association was formed in 2012, soon after the SOPA fight. I was asked to meet with some of the folks putting it together at the beginning, and was a bit confused as to what purpose it would serve. There are, already, a few trade groups that represents internet companies, and I wasn't entirely clear on the need for a new one. The story I heard (more or less) was that the "big" trade groups -- including the RIAA, (then) MPAA, NTIA, NCTA had all "professionalized" the trade group space, and that they were seen as much more official and powerful than the more scrappy trade groups representing the internet companies -- like CCIA. While there was also CTA (at that time, still known as CEA), which was bigger and "professional," it was seen as having too broad a coverage, representing not just the internet (on which it actually does a great job), but the wider technology/electronics industry.

However, what struck me at the time of its founding, and in various meetings I had with people at the Internet Association over the years was that they seemed to have no fundamental principles behind their lobbying and advocacy. It seemed to be entirely a political organization. Obviously, any lobbying/trade group is -- perhaps by definition -- a political organization, which is often responsible for figuring out which ways the wind blows on certain regulations. But, still, the more successful trade groups always seem to have some core, fundamental principles that they fight for (even if those core fundamental principles are sometimes silly and misguided -- see: RIAA, MPAA, etc.). And that's what makes their advocacy more powerful. The Internet Association never seemed to really stand for anything.

This all came to a head, most notably, in the Internet Association's about face on FOSTA. As you may recall, there was a pretty unified front against FOSTA from the entire internet, and then suddenly -- almost completely out of the blue -- the Internet Association endorsed it. As I wrote in a big post mortem about how FOSTA became law, much of the blame can be laid at the feet of the Internet Association. It is true that Facebook and Netflix (two giant members at the time, though Netflix later left) decided that FOSTA wasn't a fight they were interested in. This pissed off smaller members of IA tremendously. Days after the announcement, I spoke to someone at a smaller (but still quite successful) internet company, who spent the better part of an hour venting angrily about how the Internet Association screwed them over, and that many other smaller members felt similarly.

I later met with two different executives at IA who both tried to defend the decision as "if we didn't do this, something worse was coming," but no one else seems to believe that (and Congressional staffers told me that wasn't true -- and that they had actually been very close on something that would have been much better). It was, yet again, a political move, rather than a principled one. And, after that, the Internet Association just couldn't be trusted any more.

And as if to just put a huge exclamation point on the idea that the Internet Association was political rather than principled, it pulled this bit of nonsense:

Compounding problems was the decision (after a one year search, in which the organization had no permanent director) to appoint someone with no real background in the internet, or the biggest issues related to internet policy, to be the new executive director. Instead, it was someone who had worked mostly in the telecom space, including at multiple big professionalized trade groups in that space. And, again, you can see the thinking there, given the desire for the Internet Association to punch at that level. But, again, it left the organization without a principled stance, and put directional choices even more in the hands of its members -- who don't necessarily agree on things that much these days. Facebook's power over the organization (as seen in the FOSTA decision) also turned off plenty of companies that are just sick of Facebook ruining the internet for everyone else.

In other words, it was a lobbying group with nothing to actually lobby for, and what little it did lobby for, it did so without conviction. It was just going through the expensive motions. So, good riddance to the Internet Association. There are still other groups that really do stand on their principles and seem to do a damn good job of actually fighting for core ideas around the internet -- like CCIA, CTA, Engine Advocacy, NetChoice, and (the newest entrant), the Chamber of Progress. Those organizations, while trade groups, actually tend to lead on ideas, have strong principled stances, and are able to make a real difference. It's too bad the Internet Association never really was able to do the same.

Filed Under: lobbying, trade groups
Companies: facebook, internet association

Gaming Like It's 1926: Get Ready For Our Next Public Domain Game Jam!

from the that-time-of-the-year dept

Sign up for the Public Domain Game Jam on itch.io »

It's that time of the year again! Four years ago, the US finally started adding older works back into the public domain after a decades-long period of time in which those cultural works were kept from the public (under dubious legal theories). It still remains somewhat ridiculous that we're waiting 95 years for works to enter the public domain, but at least some things are coming into the public domain! For the past four years we've been celebrating newly public domain works each year by hosting a public domain game jam -- and this year, it's Gaming Like It's 1926!.

There are plenty of interesting works to draw on, 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

Check out the Public Domain Review's Countdown for more great works!

Separately, we would like to call attention to the fact that while music compositions (such as those above) go into the public domain if they were published in 1926, sound recordings are on a somewhat different schedule. It used to be that they were still under a complex set of state copyright protections, meaning some might not go into the public domain for another century or so, but thanks to the Music Modernization Act that was passed three years ago, some old sound recordings are also finally going into the public domain as well. Specifically sound recordings published before 1923 will now be in the public domain as of January 1st, 2022. While those are not technically works from 1926, we're open to you making use of them in the same spirit as all those other 1926 works. If they're entering the public domain on January 1st, they're fair game.

You can sign up to join the jam now, but it doesn't really launch until January 1st (because that's when those works enter the public domain). If you want some inspiration for games, check out the games from the 1923, 1924 and 1925 contests.

As usual, we'll be awarding prizes for the best digital and analog games in a variety of categories, and we're super excited to see what creative ideas people come up with remixing and revitalizing these newly public domain works.

Filed Under: 1926, copyright, games, gaming like it's 1926, public domain