Court Tells Cops Who Got A Man Wrongly Imprisoned For 25 Years That Of Course Framing People For Crimes Is A Rights Violation

from the just-wrecking-up-people's-lives-and-walking-away-from-it dept

There's a constitutional right not to be framed by cops for a crime you didn't commit. This shouldn't even need to be argued in court once, much less twice. But "framed by cops" is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.

After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.

Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis' lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they're not going to be able to walk away from this one.

The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there's a lot to take in here.

First, Dennis alleges that the detectives concealed information about other individuals, who had confessed their involvement with the murder or who knew who was involved, and that the detectives coerced/concealed certain other witnesses. Specifically, Dennis alleges that the detectives never followed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of her murder. Ms. Howard originally told the detectives that she never saw the assailants but later told her aunt and uncle that she recognized the assailants from Olney High School, a school that Dennis had never attended. Howard’s aunt and uncle informed the detectives about her statement; it was also corroborated by the victim’s aunt. This information, which was recorded in the detectives’ activity logs, was concealed from Dennis for ten years.

In addition, Dennis alleges that several days after the murder, Montgomery County law enforcement advised the Philadelphia Police Department that an inmate in their County Prison spoke with a man who confessed his involvement in Williams’s murder. A signed statement from the inmate included details about all three men involved in the murder and identified the source of the information. However, defense trial counsel never received any materials relating to the investigation of these three individuals; the information was only revealed 10 years later during Post Conviction Relief Act (PCRA) discovery.

Second, Dennis alleges that the detectives fabricated evidence to secure his conviction. Specifically, Dennis alleges that the detectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further alleges that Detective Jastrzembski falsely testified that the clothing was found at Dennis’s residence but later “disappeared” from police headquarters prior to trial...

Third, Dennis alleges that the detectives concealed evidence that would have supported his alibi. Specifically, Dennis’s alibi that he was elsewhere at the time of the murder would have been corroborated by a witness’s time-stamped welfare receipt. When questioned by the detectives, the witness based her time estimates on the receipt’s military-style timestamp of 13:03 (1:03 PM), which she mistook to mean 3:03 PM. The detectives did not correct the witness when she misread the receipt’s military-style timestamp while they were interviewing her; instead, they took the only copy of the receipt and never shared it with Dennis or the prosecutors…

Dennis also alleges that only four of the nine eyewitnesses identified by Philadelphia Police had selected him from the lineup; three of those four testified for the Commonwealth at Dennis’s trial. After learning this information, Dennis’s counsel requested a new lineup with all nine eyewitnesses. The new lineup never occurred.

The detectives argued that even if they were in the wrong, they were not unreasonably wrong and could not have possibly known from court precedent that hiding information from accused criminals and framing them for a murder was a violation of his rights.

Wrong, says the Third Circuit. It's not even a close call. There's plenty of precedent and it dates back decades -- long before the detectives' actions in 1992.

[C]iting McDonough v. Smith, the detectives contend that a fabrication of evidence claim has been recognized under the Fourteenth Amendment only where the government officer involved in fabricating evidence was a prosecuting attorney. Not so. In Halsey v. Pfeiffer, we concluded that it was axiomatic that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Halsey involved an evidence fabrication claim under the Fourteenth Amendment brought against police officers. We emphasized that the Supreme Court decades ago had established that the Constitution forbids those tasked with upholding the law from knowingly using falsified evidence to secure a criminal conviction.

[...]

[A] case that is directly on point is not required so long as the precedent placed the constitutional question beyond debate. Halsey did so, recognizing prior precedent that held the fabrication of evidence by law enforcement officers violates the Fourteenth Amendment and that such a right had been established since at least 1985.

The next argument by the detectives was also off by several decades.

[T]urning to Dennis’s deliberate deception claim, the detectives contend that this claim is based on the right not to be framed by law enforcement agents, which is too broadly worded and was not established until 1995, when the Supreme Court decided Kyles v. Whitley.

The right not to be convicted on perjured testimony used by prosecutors at trial has been clearly established by the Supreme Court since at least 1935 in Mooney v. Holohan. Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Court extended this right by recognizing as a due process violation the conviction of a defendant through perjured testimony and the deliberate suppression of evidence favorable to the accused.

Even if this precedent did not exist, the court says the due process violations are so blindingly obvious that there's no plausible excuse for the detectives' actions.

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

That's what qualified immunity has done to the judicial system. The Supreme Court's alteration of the contours of the doctrine it created has made it more difficult for lower courts to address the rights violations, shifting focus to judicial precedent instead. Fortunately, there's plenty of it here. But more than that, it's good to see a court tell officers attempting to raise their qualified immunity shields that the stuff they did was so obviously wrong they'd still be denied immunity even if there wasn't any precedent to rely on. That needs to happen more often.

Filed Under: 3rd circuit, due process, framing people, frank jastrzembski, james dennis, lying cops, manuel santiago, police, qualified immunity, wrongful conviction

EUIPO Study Indicates It's Likely That Piracy Traffic Has Decreased Significantly, Even During The Pandemic

from the problem-solved? dept

Back in April of 2020, which feels roughly like a damned lifetime ago, we discussed a much-publicized report that indicated explosive growth in traffic to pirate torrent and streaming sites for movies, music, television, and video games. Much hand-wringing ensued, which was largely silly. All kinds of media consumption traffic rose during the initial lockdown months of the COVID-19 pandemic and it only made sense that piracy traffic would follow suit, particularly when you consider the broader economic impact of the pandemic. This wasn't some new paradigm shift in the piracy landscape; it was literally one of the most predictable things that could have happened.

But now, almost two years later, where are we at? Well, per a recent study by the EU Intellectual Property Office, piracy traffic hasn't just fallen, it's fallen sharply.

New research published by the European Union Intellectual Property Office shows that, despite the pandemic, piracy site visits continue to fall. This trend is visible for movies, TV shows, and music, with the latter showing the sharpest drop. Income level and inequality appear to be major piracy drivers, but there's a major caveat as well.

We'll get into that caveat more a bit later, but it's worth pointing out that all the data for this report comes from MUSO. MUSO is an anti-piracy outfit, albeit one that isn't afraid to embrace some new and interesting ideas. Still, as an organization that is certainly not incentivized to play down piracy numbers. And, yet, the numbers do indicate a significant trend downward.

The chart below shows that the piracy numbers roughly halved between 2017 and 2020. This trend is visible for all content categories and most pronounced for music, which dropped by more than 80% during this time period.

These data also reveal that TV piracy is by far the most common. This could in part be due to the recurring nature of TV shows. At the end of 2020, roughly 70% of all pirate site visits were TV-related. The film and music categories are good for 20% and 10% respectively.

The COVID boom was either never a thing, or it was so short-lived that it basically isn't worth talking about. This tracks with other pandemic related effects on the nation, such as the stock market crash that then came roaring back almost immediately. Humans, as it turns out, are perfectly capable of wild swings of behavior and outlook when pressured by a historic event.

But the overall downward trend over recent years is very easy to explain: streaming. As the public gets more and more comfortable with utilizing streaming services in order to get the content they want, services that are often well-priced and easy to use, the desire for piracy goes down. For $50 a month across several streaming services I can get nearly all the content I want? Fine, then no need to engage in risky or even non-risky pirate behavior.

Now, about that caveat...

The study really only covers a part of the broader piracy landscape. The focus on web traffic means that apps, streaming devices, and IPTV services are not included either. Perhaps that’s where some mobile users are going?

This caveat may also shed a different light on the piracy drop, as these untracked piracy channels have grown explosively in recent years. According to some, these streaming tools are the largest piracy threat at the moment.

And perhaps there is some truth to that, though it feels quite unlikely that IPTV services explain the global drop of piracy levels across the board. TV and movies are one thing, but IPTV doesn't factor into music or video game piracy in any serious way. But Spotify and subscription based gaming services certainly do.

So if the trend is that piracy is on the significant downswing, you would think we'd see the IP industries ratchet down the rhetoric on the evils of piracy. Somehow, I cannot quite convince myself to hold my breath on that one.

Filed Under: copyright, culture, movies, piracy, streaming, tv
Companies: muso

DOJ Tells Courts They Don't Need To Explore The Constitutionality Of Section 230 To Toss Donald Trump's Dumb Lawsuits Out

from the better-than-nothing dept

Last month, we noted that the DOJ had announced it was going to intervene in Donald Trump's bombastically silly lawsuits against Facebook, Twitter, and YouTube for suspending his account for violating the websites' terms of service. Those lawsuits have not been going well. While Trump filed them in his home court in Florida, they've all been transferred to California. His decision to use the case to claim Section 230 is unconstitutional only served to wake up the Justice Department, and have them step in to respond to that particular point.

The DOJ has now filed its briefs -- we'll just share the one in the Twitter case since they're all basically the same -- to say (1) it's easy to dismiss this case without bothering to explore the constitutionality of 230, but if it feels otherwise (2) it's blatantly obvious that 230 is constitutional.

On point one:

Section 230(c) immunity is an affirmative defense, so the Court need not consider the constitutionality of that provision unless Plaintiff has first demonstrated that he has otherwise sufficiently alleged valid claims against Defendants. Accordingly, before the Court reaches the constitutional challenge as part of the preliminary injunction motion, it should first consider whether Plaintiff is otherwise likely to succeed on the merits of his claims against Twitter. For example, the Court might decide that Twitter is not a state actor constrained by the First Amendment, in which case Plaintiff could not prevail on count one of the FAC, meaning there would be no need to address the constitutionality of Section 230(c) with regard to that claim. And the Court might similarly decide that Plaintiff is not likely to succeed on the elements of his state law claims.

Another possible avoidance path stems from Plaintiff’s contention that Section 230(c) does not apply to the misconduct alleged. See Motion at 15-18. If the Court were to conclude that Twitter’s acts as alleged by Plaintiff do not fit within the terms of either Section 230(c)(1) or (2), then the statute would not apply, and there would be no occasion for passing on the constitutionality of the statute. Similarly, if the Court were to agree with Plaintiff that Twitter was coerced into suspending Plaintiff’s account, it might determine that immunity under Section 230(c)(2), which applies to certain actions “voluntarily taken in good faith,” is unavailable

That latter paragraph is a bit head-scratching, because it's pretty blatantly obvious that the websites' moderation is clearly covered by 230, but the overarching point stands: there's no need for the court to explore whether or not 230 is constitutional.

But, then, if the court does decide to go down that path, well...

... although Plaintiff’s constitutional challenge is not fully developed, it appears that Plaintiff’s argument is that Section 230(c) is unconstitutional because it supposedly “encourages” Twitter to “censor constitutionally protected speech.” Id. at 9. That argument misunderstands the nature of Section 230(c) and the reach of the Skinner and Hanson decisions. Section 230(c) does not require online service providers to limit or regulate speech by their users. Instead, Section 230(c) allows companies like Twitter to choose to remove content or allow it to remain on their platforms, without facing liability as publishers or speakers for those editorial decisions. See Barnes, 570 F.3d at 1102 (in the context of Section 230(c), “publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.”) (emphasis added). Section 230(c) does not reflect a preference for restricting content, much less for restricting content relating to any particular viewpoint.

And further:

As courts in this district have already concluded, the federal regulations in Skinner bear no relationship to Section 230(c). “[N]othing about Section 230 is coercive.” Divino, 2021 U.S. Dist. LEXIS 3245, at *17 (contrasting the regulations in Skinner). Rather, “Section 230 reflects a deliberate absence of government involvement in regulating online speech[.]” Id. “Unlike the regulations in Skinner, Section 230 does not require private entities to do anything, nor does it give the government a right to supervise or obtain information about private activity.” Id. Therefore, Twitter “remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.” Prager University v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020). “[C]ourts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors[.]” See id. at 997; see also Atkinson v. Meta Platforms, Inc., No. 20-17489, 2021 U.S. App. LEXIS 34632, at *3 (9th Cir. Nov. 22, 2021) (“Section 230 of the Communications Decency Act does not independently transform Meta Platforms into a government actor for First Amendment purposes.”).

Meanwhile, in that same case, Twitter has also filed its motion to dismiss, and it's worth a read just to understand how bloviatingly pathetic Trump's original complaint is.

Plaintiffs—like all Twitter account holders—agreed to abide by Twitter’s Rules, and yet proceeded to repeatedly violate those Rules. When Twitter responded by suspending or restricting their accounts, Plaintiffs filed this putative nationwide class-action seeking, among other things, an injunction forcing Twitter to carry Plaintiffs’ speech and appointing a court-supervised monitor to oversee all of Twitter’s future content-moderation decisions for the hundreds of millions of Tweets posted on its platform every day. In support of such unprecedented relief, Plaintiffs assert four claims that would upend bedrock principles of constitutional law, disregard standing and other procedural limitations, and stretch Florida consumer protection laws far beyond their geographic, temporal, and substantive limits.

Each of Plaintiffs’ claims is defective for multiple reasons. To summarize just a few: Plaintiffs’ lead claim—that Twitter’s editorial judgments not to disseminate their messages violated Plaintiffs’ First Amendment rights—ignores both that Twitter is a private actor that is not constrained by the federal constitution and that Twitter has its own First Amendment rights to make those judgments. Plaintiffs’ invitation for this Court to invalidate a decades-old federal statute (47 U.S.C. § 230) as violative of the First Amendment fails both because they have no standing to assert such a claim and because their suggestion that the statute is unconstitutional is frivolous. Plaintiffs’ claim under the general consumer protection provision of the Florida Unfair and Deceptive Trade Practices Act (“FDUPTA”) founders both because that provision does not apply in this case due to a binding contractual choice-of-law clause and because the Complaint alleges no facts that support Plaintiffs’ theories of consumer deception. And Plaintiffs’ claim under a new (and recently enjoined) Florida statute that purports to regulate content moderation by certain social media companies (Florida SB 7072) fails at the threshold because all of the conduct challenged in the Complaint occurred before the statute took effect. Plaintiffs’ claims should all be dismissed with prejudice.

Don't hold back now. There's a lot more in the filing, but we'll wait until the judge almost certainly dismisses the case to explore the reasoning...

Filed Under: doj, donald trump, section 230, social media
Companies: facebook, twitter, youtube

UK Court Says US Can Extradite Julian Assange And Prosecute Him For Doing Things Journalists Do

from the DOJ-is-heading-down-a-pretty-dark-path-here dept

Julian Assange and Wikileaks did a lot over the past few years to destroy the goodwill they'd managed to accumulate prior to that by being a fearless publisher of leaked documents. At times, Assange has acted hypocritically and there's some evidence he worked with Russian operatives to gather information in an attempt to damage the Democratic Party's 2016 election hopes.

That being said, the on-again, off-again attempt to prosecute Assange over alleged Espionage Act violations threatens journalism as a whole. The DOJ occasionally appeared to recognize this, hence its stop-start prosecution effort. Attempts were made to get President Biden to drop the case, but there appears to be no turning back now. The US government has won its appeal of the UK court's decision to refuse extradition.

Here's a very brief summary of the UK court's decision [PDF]:

Today, the U.S. won their appeal against a UK High Court ruling that Wikileaks founder Julian Assange could not be extradited due to concerns over his mental health. Julian Assange can now be extradited from the UK to the U.S.

That's courtesy of the ACLU, which also released this statement:

Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project, had the following reaction:

“The prosecution of Julian Assange poses a grave threat to press freedom. Bringing criminal charges against a publisher for the publication of truthful information establishes a dangerous precedent that can be used to target all news organizations that hold the government accountable by publishing its secrets. Any prosecution by the United States of Mr. Assange would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organizations. The government needs to immediately drop its charges against him.”

All of this is true. And it's also true, as Marcy Wheeler points out, that Assange's legal representation engaged in some bad faith arguing while trying to keep Assange from being extradited.

But the US is hardly without fault. It has made assurances about Assange's treatment in prison, including a promise to keep him out of solitary confinement. Even if those making these assurances firmly believe them, the US prison system is far from willing to ensure Assange and his health conditions are treated humanely. The system does not work that way. Prisoners are considered interchangeable pieces of meat, stripped of their humanity as soon as they're processed.

Here's Wheeler's take on the bad faith on both sides.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

[...]

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

Without a doubt, Assange will soon find himself on the receiving end of the worst things the US penal system has to offer. Even at its best, it's still pretty terrible.

Beyond the threat to Assange's life and health, there's the existential threat this prosecution poses to journalism. Assange faces 18 charges. Seventeen of those target things journalists do regularly. Sources with access to confidential and classified information are pursued. Leaked information is published. While the First Amendment tends to do a pretty good job protecting publication, it's not nearly as helpful when it comes to the act of newsgathering, especially when the news is information the government would like to remain secret.

That these charges are being brought under the Espionage Act means Assange's defense will be extremely limited. The newsworthiness of published classified information doesn't matter and there's no public interest defense to be raised. The prosecution makes its case and the defendant, for the most part, is expected to just sit there and take it.

This is why Edward Snowden fled the country. As he pointed out then, if there was a chance he'd be given a fair trial, he'd return to the US and face the DOJ in court. But the Espionage Act makes a fair trial impossible. That's why the charges against Assange are so dangerous. If they stick, the DOJ will have little reason -- other than an equally on-again, off-again sense of decency -- to not bring criminal charges against journalists who seek out and publish classified information.

Filed Under: 1st amendment, extradition, journalism, julian assange, leaks, prisons, uk, us, whistleblowing

Fraternal Order Of Police Opposes Biden FCC Nom Because She....Supports Encryption

from the people-against-math dept

We'd already noted how telecom and media giants eager to keep their spoils from the Trump era have been waging a not so subtle smear campaign on Biden FCC Commissioner nomination Gigi Sohn, using loyal GOP lawmakers as marionettes. Sohn is broadly popular across both sides of the aisle, but she's also a fairly fierce advocate of functional regulatory oversight, transparency, and market competition. So companies like AT&T and News Corporation have been seeding a lot of gibberish in DC and in select press outlets about how she's a "radical" who wants to "censor conservatives" and hurt puppies.

Last week the Fraternal Order of Police joined the fray with a facts-optional missive opposing Sohn's nomination, claiming it creates "serious public safety considerations." Their problem? Sohn supports (gasp!) encryption:

"the FOP and many others in the law enforcement community at large are deeply troubled by the active and enthusiastic leadership role of Ms. Sohn as a board member for Electronic Frontier Foundation (EFF) in their forceful advocacy of end-to-end encryption and “user-only-access”—often referred to in the law enforcement world as “going dark.” These new encryption methods for communications are causing Federal, State, and local law enforcement agencies to rapidly lose the capability to obtain information necessary to protect the public from crime and violence."

As Techdirt has long noted, this position is baseless nonsense pushed by fans of hyper surveillance (and the illusion of safety that creates). Encryption is simply math. It's just another useful tool in a tool chest, used by anybody looking for heightened security and privacy in transactions. The fact this sometimes includes terrible people is not the fault of the encryption itself, yet the folks who engage in mindless opposition to the technology perpetually struggle to understand this. Worse, they fail to understand (or just don't care) that weakening encryption increases the risk of abuse, decreasing privacy and security for everyone.

Amusingly, FOP's positioning on this stuff isn't what you'd call consistent. Whereas the group claims that Sohn simply being on the board of an organization that supports end-to-end encryption (the EFF) is some kind of cardinal sin, the organization itself has fought tooth and nail against the decryption of police radios for transparency's sake. In other words, useful tools are only sacred when we use them. When others advocate for consistent and meaningful security and encryption integrity, they're unqualified for public office. Funny how that works.

That said, the encryption stuff is possibly just misdirection from the start.

Telecom lobbyists have a long, detailed history of cozying up to various interest groups and encouraging them to support certain positions, even if they have nothing really to do with the group's subject matter (or undermine their constituents' best interests). This sort of "astroturf" work often involves co-opting existing groups (from cattlemen's associations to civil rights groups), and encouraging them to support a company's position in exchange for a new event center or other perks. These sort of quid pro quo relationships are rarely put in writing, so it's easy for groups to deny there's any direct financial link. But the tactic itself is documentable, and is designed to create the illusion of broad support for bad policy (like say, scuttling the nomination of a largely popular regulatory appointment interested in reining in telecom and media giants).

That's not to say FOP couldn't have come up with its terrible argument without prodding (the organization has a long history of terrible arguments). But the fairly hollow letter does come at a time where AT&T and News Corporation are desperately trying to outsource opposition with an eye on delaying or derailing Sohn's nomination. The real goal is to keep the unpopular favors gleaned during the Trump era (the death of net neutrality, the erosion of the FCC's consumer protection authority, the dismantling of decades-old media consolidation rules with bipartisan support) and keep the agency mired in 2-2 partisan gridlock for as long as humanly possible. They can't just come out and admit that's the game, so they utilize a long line of ethically-malleable proxy organizations wielding flimsy pretexts and baseless arguments.

Again, Sohn can be confirmed by Democratic vote alone, but the longer the appointment is delayed, the less time the Biden FCC has to implement reform companies like AT&T and News Corporation won't like. And if this phony and farmed opposition gets loud enough to sway some centrist Democrats like Sinema and Manchin, all the better for media and telecom giants terrified of meaningful oversight and actual reform.

Filed Under: encryption, fcc, gigi sohn, police, police unions
Companies: eff, fraternal order of police

Daily Deal: The 2021 Complete Video Production Super Bundle

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

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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

The Bipartisan Attacks On The Internet Are Easily Understood If You Realize They Just Want To Control Speech Online

from the that's-all-it-is dept

Understanding the "bipartisan" approach to internet regulations over the last couple of years really boils down to "both parties want to control the internet" and twist it to their own advantage. Almost everything you hear about "harms" from the internet are disingenuous nonsense from grandstanding politicians. That's not to say there aren't real problems with things on the internet or how it's structured -- but there is almost no realistic exploration of those issues by those in various legislatures. It's all about grabbing control over the internet. Two recent articles highlight pretty clearly how both Republicans and Democrats are clearly salivating to control speech online for their own benefit -- and not for the actual good of society or the internet.

First up, we have The Spectator. To be honest, this publication has been a garbage publication recently, pushing out all sorts of nonsense, but apparently there are still a few people there who can publish something good. Taylor Millard has written a short and to the point article noting, accurately, that so much of the bipartisan attacks on the internet lately are really about one thing: how both parties want to control your speech online. We've discussed how the policy plans of Republicans and Democrats often feel at odds, with Republicans complaining about too much moderation, and Democrats complaining about too little, but the truth is slightly more nuanced, and both are really just looking to have control over speech online -- control that is simply not allowed under the 1st Amendment.

The Democrats' attacks on free speech are pretty straightforward:

Congressional Democrats are hoping to enact rules due to their concerns over so-called misinformation and “harmful content.” Their anger over the 2016 election of Donald Trump and the bogeyman of Russian interference fueled the original push for new regulations. The coronavirus pandemic and 2020 presidential election fallout poured rocket fuel on the ideological pyre, as did the QAnon conspiracy and discussions around alternate Covid treatments, masks and vaccine efficacy.

Vermont congressman Peter Welch promoted a new five-member commission with civil penalty power making sure Big Tech is “unbiased” and doesn’t promote harmful content. The Democrat used the infamous “for the children” crusade as reasoning. Minnesota senator Amy Klobuchar desires Health and Human Services control over the internet where public health is involved. She believes more lives would be saved if Section 230 protections for Big Tech were removed. New Mexico senator Ben Ray Lujan took it a step further, saying that the spread of misinformation ended up “fueling distrust in public health officials, promoting conspiracy theories and putting lives at risk.” To paraphrase Frank Herbert: he who controls the information, controls the world.

The Republican side is just slightly more nefarious in that they falsely claim that their efforts are in support of free speech, though as rulings in Texas and Florida have shown, they're equally as problematic under the 1st Amendment.

Republicans are just as censorious — but they shroud their urge to regulate Big Tech under the guise of protecting free speech. The Florida and Texas legislatures passed rules requiring large social media companies not to remove users from their platforms if they express dissident viewpoints.

We see this elsewhere too -- not just in the states. Nearly all of Josh Hawley's policy proposals regarding the internet are about controlling how internet companies present speech. And Republicans are just as prone as Democrats to roll out "for the children!" legislation that is designed to simply give government more control over speech.

The second article is by Adam Thierer, and published over at The Hill and makes a very similar point:

The only thing unifying both sides is a desire for greater regulatory control of media. In today’s hyper-partisan world, tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day – like property rights, free speech and editorial independence – become disposable. These are things we take for granted until they’ve been chipped away at and lost.

Is there any way to make both sides happy without undermining the digital economy, which has been dominated globally by American firms for over a quarter century? 

That’s unlikely, but it hasn’t stopped lawmakers from introducing a flurry of bills to weaken or eliminate protections afforded by Section 230, which limits liability for platforms that host user-generated content. Implemented in 1996, it has served as the cornerstone of America’s ascendancy in the digital world and helped spur an avalanche of innovation. Gutting it would put all that at risk. 

As Thierer rightly notes, this is entirely about attacking free speech and the 1st Amendment, by both parties, in order to control a medium they haven't been able to control for the past few decades:

Without admitting it, both sides are really at war against the First Amendment, which protects the editorial decisions made by private companies. To be sure, there is problematic content to be found on digital media platforms, and there are some legitimate complaints about overzealous takedown policies and lack of transparent standards. That does not mean there is an easy policy fix to those problems, however. But courts have held repeatedly that the First Amendment protects efforts by private media firms to devise their own approaches. Just last week, a Texas judge blocked a law that sought to limit social media platforms’ editorial freedoms. That followed a court in Florida enjoining a similar law this summer. 

Critics like to paint large tech companies as nefarious overlords out to destroy civilization. In reality, the problems we see and hear on modern platforms reflect deeper problems in our society. If these companies are to be blamed for anything, it’s making human communication so frictionless that every person now has a soapbox to speak to the world. That’s both a blessing and a curse. With unbounded speech comes many wonders but also many problems.

The battles here are not about making a better internet. Or "protecting children." It's very much about each of the political parties wanting control over the key tool that has enabled people to communicate with each other, without having that speech first filtered through an "official" source.

Filed Under: controlling speech, democrats, free speech, republicans, section 230, social media, speech

ICE Loses Access To Sensitive Utility Customer Records Following Pressure By Senator Ron Wyden

from the and-now-we'll-wait-for-the-law-enforcement-pushback dept

Another one of ICE's (Immigration and Customs Enforcement) data spigots has been shut off. Don't cry too many tears for poor old ICE. It still has plenty of options. It's still hoovering up location data from app developers who either don't know or don't care that this data is buyable through data brokers. It also still has plenty of privileges, thanks to laws and judicial decisions that say most constitutional rights are null and void within 100 miles of our nation's ports of entry (borders, coasts, and -- making this far more concerning -- any domestic airport offering international flights).

Plenty of data can still be had (and plenty of brokers willing to sell it), but ICE has just lost access to one source of data it uses to track down immigrants: utility bill information gathered, packaged, and sold to government agencies by third parties like Equifax and Reuters.

Equifax gathers this information ostensibly to assess the creditworthiness of United States residents. (It also leaks this information on occasion.) Thomson Reuters uses the same information (called "utility header data") in its CLEAR database, which contains "billions of data points" and "leverages cutting-edge public records technology." Its potent combination of bulk data and profit-seeking is sold to whoever wants access, which includes US law enforcement agencies.

ICE no longer has access to this data through CLEAR. At least the "utility header data" part of it. So have the nation's law enforcement agencies. Following pressure from Senator Ron Wyden, utility companies will no longer allow this data to be resold by Equifax to private entities like Reuters. (Possible paywall ahead. Alternate link.)

A nationwide group of utility companies that provided sensitive data from millions of Americans’ cable, phone and power bills to U.S. Immigration and Customs Enforcement and other government agencies has agreed to end the practice in response to concerns the information was being misused to track the general public.

Wyden's pressure on the National Consumer Telecom & Utilities Exchange (NCTUE) prompted change. The NCTUE told Equifax to stop selling this data. This means the data no longer flows to Reuters' CLEAR database, which means agencies like ICE no longer have access to it.

But Reuters isn't the only player in the data market. There are plenty of third parties purchasing data and selling it to government agencies and other third parties. That's why Wyden is now demanding the Consumer Finance Protection Board start doing its job and start regulating the sale of Americans' data.

Wyden, a longtime critic of government surveillance, called on the CFPB to further rein in a data-broker industry that he said had spun “out of control” due in part to “vague and undefined regulations.” He urged the agency to aggressively investigate how data gathered for commercial purposes was ending up in the hands of law enforcement without court approval or oversight.

“Selling personal information that people provide to sign up for power, water and other necessities of life, and giving them no choice in the matter, is an egregious abuse of consumers’ privacy,” Wyden wrote. “The personal privacy of hundreds of millions of people should not depend upon the goodwill of corporations worried about negative headlines.”

Currently, it's third parties on top of third parties, buying data from wherever it can be purchased and repackaging it for sale to others. This has led to consumers being misled about everything, from the data being collected to how the data is being used. Boilerplate about sales or licensing to third parties doesn't make it clear information collected to open and maintain necessities of life (like utility services) will ultimately be part of "billions of data points" accessible without a warrant by law enforcement.

As of right now, the data Wyden is concerned about is bought and sold in a gray market -- one not directly affected by regulation. That's what Wyden hopes to change.

The sale of credit payment histories and related data is closely regulated under federal law. But government agencies can access credit header data because the regulations do not clearly outline how the revealing information can be used. Wyden urged CFPB to clarify the law and investigate how the data is sold.

Government agencies and data brokers have long preyed on the disconnect between public perception and the far uglier reality of data harvesting. Customers and consumers understand utility companies need to collect information to provide service and collect payment. They may also make the small logical leap that payment histories will be forwarded to companies that assess credit ratings. What they almost never assume is that all this data -- which includes names, addresses, social security numbers, and plenty of contact info -- can be accessed at will by US law enforcement agencies.

Many data fire hoses are still in operation. But this move slows one form of data to a drip -- one that travels to Equifax but goes no further. It's a start, but as Sen. Wyden clearly realizes, there's a long way to go before Americans can trust the entities that collect data from us.

Filed Under: clear, data, data brokers, ice, nctue, privacy, ron wyden, utility bills
Companies: reuters

Funniest/Most Insightful Comments Of The Week At Techdirt

from the what-you-said dept

This week, three out of our four winners come from our post about Rep. Thomas Massie skipping past the First Amendment and blocking people for their responses to his gun-laden tweet celebrating the Second Amendment with insulting timing. In first place on the insightful side, it's Rocky responding to the claim from another commenter that Usenet groups don't moderate posts like social media platforms, and it works out fine:

You never have run an usenet-server, have you? What groups you see on most usenet-servers is what the server-admin allows you to see, nothing more.

The whole "post what you want and say what you want" are the rallying cry for those who lack discretion. If I'm reading a group about dust mites in upper Conservatoria I don't want the asshats to pollute it with their "post what you want and say what you want" that's totally off topic.

That you see less spam/trolls can be because the server you are using doesn't feed from the server those people are using or that some admin has squelched those users.

And in regards to major web platforms turning into censorious asshats, none of my friends on the internet have ever had their posts "censored". The point you are totally missing is that a majority people doesn't want to see spam and assholes filling their feed and they don't want to do judicious application of filters - they expect it just to work.

You and others blame the social platforms for their moderation decisions, but policies regarding moderation isn't birthed in a vacuum, a majority of the decision regarding their policies are a response to what the trolls and asshats do, so blame them - the real culprits.

TL;DR: We can't have nice things because of the assholes.

In second place, it's an anonymous response to someone defending the original tweet on the basis that it was reasonable because "the world is not safe":

The world is safe enough to where I have lived in 3 different states, traveled to 45 out of 50 states, and lived overseas in Europe for several years, all without needing a single weapon, let alone an arsenal. Oh, and I am close to hitting that half-century mark in age.

So please tell me, what 'shithole' country do you live in where you need an arsenal of weapons just to feel "safe" from the world?

For editor's choice on the insightful side, we start out with a comment from James Burkhardt responding to the "evidence" (an offhand tweet about Sinclair Broadcasting's license renewal) that Gigi Sohn wants to censor conservatives:

The FCC has legal power to issue and renew broadcast licenses, specifically any carrier, like Sinclair, that uses public spectrum to broadcast OTA Television. There would be valid reasons the FCC might not renew a license.

Therefore, the question must be asked why gigi sohn made this comment. I notice you didn't cite a date, so we can not know how old this comment is or look up context. Responses to events from 10 years ago may not reflect current views, or that comment may be made in response to real world events that provide reasonable context. Therefore, I will assume your omission of the critical date and context data is intended to hide the reason Gigi is making this comment. (An 'Adverse inference')

In 2018, Trump-nominated FCC chair Ajit Pai referred the Sinclair-Tribute merger to an Administrative Law judge after it was revealed that Sinclair might be seeking to use a dummy shell corporation to skirt ownership limitations in violation of the law. Tribune later sued Sinclair over their clandestine behavior.

Gigi Sohn at the time gave an interview to The Hill and provided this qutoe:

"I think Sinclair has been disingenuous about divestitures for months now," Gigi Sohn, who served as an adviser to Democratic former FCC Chairman Tom Wheeler, told The Hill in an interview. "I think the last filing didn't satisfy anybody that Sinclair wasn't going to still have some control over these stations."

Her tweet was completely in line with that conclusion. When renewing broadcast licenses, the FCC should consider if Sinclair was being disingenuous, make a finding considering if Sinclair was intentionally lying about its intentions or if Sinclair was merely forging ahead unaware of the consequences of its proposed restructuring. And if that investigation finds intentional malfeasance, Sinclair should be at risk of losing its broadcast privileges.

None of this has to do with censorship of on-air content. It has to do with the content of filings made to the government, and potential lies made therein.

Next, it's an anonymous comment about the vague insistence that "something must be done" to regulate the news media:

"We should start discussing this" and "we need media regulation" is the same line of thinking that gets us "if those nerds would just need harder we could safely backdoor all encryption". The problem is fundamental to the premise: when you put someone in control of a system you necessarily enforce corruption of the system. The corruption doesn't become a possibility, it becomes a command as certain as gravity. For better or for worse, government is the corruption we do together. It is the freedoms we choose to give up and the rights we give away to enforce some (supposedly) acceptable level of corruption so that the caveman from the next cave over doesn't do us even worse. Speech should be left free because the caveman next door cannot hurt you with his words, whatever they may be. If the NYT says something wrong, they should be called out on it. We need free speech to ensure that people always can, because if/when the powers are allowed to choose who can speak who do you think they will choose? You, or the NYT?

Over on the funny side, we head back to the post about Rep. Massie for our first place winner — Samuel Abram with a comment on his selective respect for constitutional amendments:

Maybe Massie likes his Amendments like he likes his Star Trek movies.

In second place, it's Derek Kerton with a comment about Devin Nunes joining Trump's social network:

HONEYPOT ALERT

Nah, he's just going to Truth Social to lure @DevinCow into opening an account...so he can finally get the IPs, etc, and see who TF it is!!

Beware, cow. That grass isn't greener!

OTOH, this allows the rest of us to create a Spartacus moment over at Truth:
I'm Devincow.
No, I'm Devincow.
I'm DevinsCows.
No, I'm DevinsCow.

For editor's choice on the funny side, we start out with one more comment from that post, this time from Baron von Robber:

Nunes will run the Ministry of Rumination & Silly Lolsuits for Trump.

And finally, we head back to the Massie post one more time for a comment from MightyMetricBatman:

Since Representative Massie only believes in even numbered amendments, Biden should house some troops in Representative Massie's home.

That's all for this week, folks!

This Week In Techdirt History: December 5th - 11th

from the past-prologue dept

Five Years Ago

This week in 2016, we got a good example of how "just metadata" could still be dangerous, the FBI was smacked down for using outdated boilerplate on a National Security Letter, and a bunch of online platforms made a terrible agreement to block "terrorist content". A shortsighted newspaper association was asking Trump to whittle down fair use, congress was beginning to consider a new round of terrible copyright reform, and Rep. Marsha Blackburn said ISPs have an "obligation" to block "fake news". We also took a look at all the terrible trade deals floating around, and asked if there's a better way to do them.

Ten Years Ago

This week in 2011, we learned more about how much big media firms were donating to the sponsors of SOPA and PIPA, while the bills were leading to internal fights at various organizations: Kaspersky left the BSA over its initial support of SOPA, and the American Bar Association was warring with itself over its position. We wrote about other realms of collateral damage from the bills like people with disabilities and human rights groups, and about how the arguments from supporters made no sense. A more reasonable (though not perfect) alternative proposal was, as expected, totally hated by the SOPA brigade and continued trying desperately to buy "grassroots" support. And we were very much not shocked when two congressional staffers who helped write SOPA and PIPA became entertainment industry lobbyists.

Fifteen Years Ago

This week in 2006, a judge ruled that it was legal for the FBI to spy on people using the microphones in their phones. Countries around the world began reacting to YouTube, with Japan's entertainment industry demanding an end to unauthorized uploads while Iran decided to just block the entire site outright. Tracfone was freaking out about the DMCA anti-circumvention exception for unlocking mobile phones even though it was hardly a big deal. Meanwhile, in the UK, an impressively balanced report on intellectual property sparked the expected backlash, with a group of 4,000 musicians signing a petition calling for "fair play" that didn't sound too fair — and then it turned out that the list of signatures included several from dead musicians.

Filed Under: history, look back