Dangerous Ruling In Virginia Allows Cleaning Company To Identify Anonymous Yelp Critics

from the getting-it-wrong dept

Last year, we wrote about a troubling case in Virginia, in which a cleaning company, Hadeed Carpet Cleaning, sued seven anonymous Yelp reviewers in an attempt to discover who they were. Hadeed did not dispute the contents of the negative reviews, but rather said that, comparing the information to their own database, they could not identify the reviewers, and thus believed that they might not actually have been customers. Thus, Hadeed claims, the reviews would be defamatory since they didn't actually represent the experiences of actual customers. Yelp fought back on behalf of its users, pointing out that the First Amendment protects anonymous speech. Yelp pointed out that 11 different states had adopted the so-called Dendrite rules concerning the high bar necessary to force a company to reveal anonymous commenters. The basic idea is that you need to really show that the law has almost certainly been broken before you can identify the individuals.

Unfortunately, the Virginia state court of appeals has decided that it won't follow those rules, but rather will follow a Virginia state law that may be a bit out of date and (much worse) that it will interpret that law to have a very low bar, thus requiring Yelp to identify the commenters just because Hadeed Carpet Cleaning has "a good faith basis" to believe that the comments were defamatory. That's a very low bar, and allows for all sorts of mischief by those looking to unmask anonymous critics. There is a brief dissent in the case, in which one of the judges on the panel notes that, while he agrees that Virginia's law is the important one, he's troubled by the claim that Hadeed had a "good faith" basis, noting that the law requires "reasonable efforts... needed to advance the claim" but that in court Hadeed's lawyer simply said they really "don't know whether that person is a customer or not...." It would seem like "well, we just don't know" is not exactly a "good faith belief" that they were not a customer and that the comment is defamatory. Unfortunately, the majority of the court didn't seem to understand this point.

Yelp is apparently considering appealing the decision. But, at the very least, this may lead to the Supreme Court eventually having to weigh in on a better standard for protecting anonymous speech.

Filed Under: anonymity, dendrite, first amendment, free speech, reviews, virginia
Companies: hadeed carpet cleaning, yelp

VA State Police Collected Massive Amounts Of License Plate Data By Scanning Plates At Political Rallies

from the a-complete-disdain-for-the-public dept

There are many legitimate uses for license plate data -- tracking auto theft or vehicles used in the commission of crimes. Collection of plate and location data by automatic license plate readers can be troublesome in terms of privacy, but this can usually be mitigated by the prompt disposal of data unrelated to criminal activity. Unfortunately, many states are operating license plate readers without privacy safeguards in place, or are simply building massive databases with no disposal plans for "non-hit" plate data.

Over in Virginia, state police are doing everything wrong when it comes to responsibly deploying automatic license plate readers. It's grabbing massive amounts of license plate and location data, holding onto the info for multiple years, and targeting drivers engaged in First Amendment-protected activity.

From 2010 until last spring, the Virginia State Police (VSP) maintained a massive database of license plates that allowed them to pinpoint the locations of millions of cars on particular dates and times. Even more disturbing, the agency used automatic license plate readers (ALPRs) to collect information about political activities of law-abiding people. The VSP recorded the license plates of vehicles attending President Obama’s 2009 inauguration, as well as campaign rallies for Obama and vice presidential candidate Sarah Palin...

The chilling effects of the state's activity are obvious.

[B]y creating and maintaining a database of millions of license plates and targeting political activity, the VSP crossed well over the line from legitimate law enforcement to oppressive surveillance. In the cases of the campaign rallies and the 2009 inauguration, the VSP collected personally identifying information on drivers solely because those drivers were heading to a political event. These drivers were not suspected of or connected to any crime — their only offense was practicing their First Amendment rights to speak freely and assemble peacefully.

This wasn't just a local operation. Documents obtained by the ACLU via a FOIA request show the Virginia state police operated in conjunction with the FBI to utilize its database to search for "hits" against the state's collected license plate data.

Also included in the documents are two promotional slideshows from ELSAG, the license plate reader supplier. These detail the many advantages of its system, including inputs for facial recognition cameras. When not putting suspended/uninsured drivers into the same list of criminals as the DC snipers and human traffickers, the slideshow is bragging about how many records it's able to collect and retain (50 million in NYC alone without losing a single record!). It also details the exploits of Arizona DPS officer David "Army of ONE" Callister, who was able to rack up 1.1 million "reads" in 16 months.

Unsurprisingly, there's not a single slide in the deck that deals with privacy concerns or the disposal of "non-hit" data. The second deck goes even further, encouraging LEOs to "drive up the numbers" (rack up as many hits as possible). It states: "Read 1000 tags, get a stolen, read 6,000 get an arrest." Does anyone other than ELSAG and law enforcement officers like those odds?

Now, were Virginia police looking to hassle politically-minded citizens? Probably not. Targeting both sides of the political aisle indicates the department's intention wasn't necessarily to chill free speech. This looks more like a crime of opportunity. Thousands of cars headed to (or parked at) single locations was simply too much data to pass up. But the underlying effect remains: even if this wasn't politically motivated, the state police have the technology in place to target any gathering it finds undesirable.

Although it comes far too late to head off the state's collection endeavors, the State Attorney has issued a statement condemning this use of LPRs.

In a strong opinion, Cuccinelli explained that the use of ALPRs for “passive” collection of information violates Virginia’s Government Data Collection and Dissemination Act. That is, law enforcement may use ALPRs to search for specific vehicles suspected of involvement in criminal activity, but it may not simply collect and save data on thousands of vehicles for which there is no grounds for suspicion.

This statement runs directly contrary to the selling points of the LPRs, at least according to ELSAG. In its pitch, more scans equals more hits, and that's all the justification most officers are going to need. This isn't targeted technology. This is mass scanning hardware that relies on thousands of reads in order to land a direct hit, and it's backed by a company that brags about a single officer racking up over a million scans on his own. These two viewpoints clash badly, and as strongly as the AG feels about this, he's got an uphill battle against law enforcement and the camera company itself if he's going to effect any change in this mindset.

Of course, now that it's been caught holding onto all of this data for nearly three years, the state police has finally purged its database of non-hit plate data and will be disposing of unrelated data within 24 hours going forward. But the fact is that these policies should have been in place before the PD deployed the cameras. This incident does very little to alleviate fears of future abuses. Like our nation's intelligence agencies, the standard MO for deployment of law enforcement technology is to exploit the system until caught and forced to operate within belatedly-applied confines.

Filed Under: license plate, license plate scanning, police, virginia

Supreme Court Says Out Of State Residents Have No Constitutional Right To Virginia's FOIA Law

from the really-now? dept

A few months back, I mentioned that we had joined in an amicus brief in a challenge to Virginia's freedom of information act (FOIA) law, which limited the ability of non-Virginia residents to make use of the law. In particular, we were extra concerned about how the law seemed to treat different types of requests in different ways -- such as allowing out of state newspapers to file FOIA requests, but not allowing other publications like blogs to file. We ended up joining with a large number of publications and other interested parties in asking the Supreme Court to declare the limitations in Virginia's law unconstitutional.

On Monday, the Supreme Court went the other way, saying that the law and its restrictions are legal, and that the Constitution does not guarantee a right to FOIA requests. It also basically said that these restrictions weren't that big of a deal. That seems unfortunate, given how important transparency is to good governance, and how key FOIA requests have been in increasing transparency. Just because you don't live in a state, it doesn't mean that you can't help investigate and report on happenings in that state.

As someone who has filed regional and federal FOIA requests for quite some time now, such restrictions are somewhat worrisome. Of course, where the state of Virginia and the Supreme Court seek to hoard such information from out of state requests, others are already working on ways to tackle the problem. Muckrock, the platform for filing FOIA requests (who was a part of the coalition on the amicus brief) has already started building a list of volunteers in each state (especially in Virginia and the six other states with similar laws) to file requests locally in that state standing in for those out of state. They're looking for more volunteers, so if you're interested, click that link and sign up.

Filed Under: foia, freedom of information act, limitations, supreme court, virginia

School District Dumps $2 Million 'Online Textbook' Program After Discovering Some Students Can't Afford Broadband

from the 'you-must-have-the-latest-version-of-flash-installed-before-learning...' dept

The Digital Reader recently posted an article detailing a Virginia school district's problems with digital textbooks. Fairfax County Public Schools (FCPS) is making the switch back to paper textbooks, to the tune of $2 million, after running into system requirements that prevented some of its students from taking advantage of the digital books.

According to the Washington Post (and confirmed on an official website) Fairfax County Public Schools is currently in the process of replacing some recently licensed math textbooks with even newer paper copies.

FCPS has always been at the forefront of adopting new tech in classrooms, whether it is setting up 1:1 classrooms or pushing for greater participation in BYOD programs, and this school year they decided to go into digital textbooks in a big way. FCPS signed up 3 publishers, Pearson, Holt, and McGraw/Hill to provide online math textbooks for all students in all grades, K-12.

That’s an ambitious project, no? It would save students the effort of carrying the textbooks around while avoiding the need for expensive hardware like the iPad. I mean, almost everyone has a computer with internet access at home right?

Well, no, they don’t. And even for the ones that do have access, it turns out that is not enough.

The underlying problem here isn't an ill-timed leap into the digital world. It's the limits built into the e-textbooks by the publishers. In fact, FCPS's FAQ on the digital textbooks calls them what they really are: "online textbooks." Even if schools could purchase cheaper e-readers for students lacking access to broadband or a computer, the publishers are, at this point, unwilling to provide a downloadable option. In fact, the textbook publishers are constantly adding additional bells and whistles to their "online textbooks" (note the long list of additional software needed to use the curriculum) in order to avoid ever having to provide a stripped-down, downloadable version. Here are the system requirements for the "online textbooks" used by FCPS [PDF]:

Now, the requirements for schools are understandable, what with several simultaneous connections being the norm, but why should a textbook require an internet connection at home? Shouldn't that be optional? Even if homework is assigned that needed to be completed using the textbook, it should at least be able to store work locally and upload it once it has a solid connection. But it doesn't, and here's why: despite all the money being spent on these e-textbooks, at no time does the student ever have an actual local copy of the textbook. Instead, for all the money being spent, the students are in possession of nothing more than a license and a portal -- useless without a broadband connection, and impossible to move to a cheaper platform, like an e-reader.

So, the issue here isn't so much that FCPS made the mistake moving forward with digital textbooks, leaving some students out in the cold, but that Pearson and other publishers are unwilling to relinquish complete control of their digital offerings. This is what's keeping the situation from being more equitable. Offline options would remove the broadband requirement, and offering downloadable versions for e-readers would eliminate a large part of the technology gap. Hoffelder's underlying point that "education is supposed to be the great equalizer" is true, but the publishers' "online textbooks" are doing more to keep this gap from closing than this school district's pursuit of the next, newest thing.

Filed Under: broadband, digital textbooks, fairfax county, keeping up, virginia

We Ask The Supreme Court To Clarify If It's Legal For Virginia To Bar Techdirt From Filing Freedom Of Information Requests

from the restrictions-on-the-press dept

Like many media properties, we've filed Freedom of Information Act requests to seek out information at both the federal and state levels. The various federal and state freedom of information regulations are important tools for the public, and also for those doing journalism to seek out and report on important information that should be public. Unfortunately, some states like to limit these laws, and Virginia in particular has made its law such that it limits filings to only Virginia residents... or to a very small number of media companies that meet its "exemption" rules. Basically, it will allow freedom of information requests from "traditional newspapers, print magazines or FCC-licensed broadcast media." So if you're an online-only media property and not a Virginia resident, you're out of luck.

A small number of other states also have "citizens only" clauses in their FOI laws, though Delaware's was recently struck down as unconstitutional. However, Virginia is the only state that allows a partial exemption for some media players, but not for others. Even so, a court recently upheld Virginia's law as constitutional. This has created both a circuit split (with different courts in different circuits finding very differently on the general issue of "citizens only" clauses), and an unfair burden on anyone doing online-only reporting and thus not qualifying for the specific exemption in Virginia's law.

As the Supreme Court has been asked to hear an appeal of that case, we've signed onto an amicus brief along with the American Society of News Editors, the Center for Investigative Reporting, Ars Technica, Daily Kos, Grist, Matthew Lee, Muckrock, Automattic and Tumblr, arguing that this is an issue where existing rulings and the arbitrariness of the exemptions in the law have created massive uncertainty for anyone doing investigative reporting. So our filing is asking the Supreme Court to take the case and clarify whether or not Virginia's restrictive law is constitutional. Hopefully, the Court recognizes the problems of the law and makes clear that, in this age when anyone can do reporting, limiting such rules to only citizens or an arbitrary definition of professional media is too restrictive.

Filed Under: citizens, freedom of information, journalism, virginia

Apple Store Refuses To Sell To American Citizens Speaking Farsi In Case They Might Send iPhone To Iran

from the policy-is-policy dept

This is just bizarre. Apparently, an Iranian-born American citizen who was speaking Farsi was denied the ability to buy an iPad and an iPhone because store employees cited an Apple policy barring the export of Apple products to Iran.

Jafarzadeh, who is from Virginia, said no one asked him where the phone was going. The employee only questioned his ethnicity.

"I feel like this is a bit of racial profiling against Iranians and I'm appalled," Jafarzadeh said.

It certainly sounds like Apple might want to train some of its employees a bit better in understanding what "export" means. And maybe Apple employees should also be made aware of the fact that American citizens can speak Farsi.

Filed Under: apple store, farsi, ipad, iphone, iranian-american, virginia
Companies: apple

Newspaper Sued For Defaming Judge Over Defamation Ruling

from the touchy dept

Rob Hyndman points us to the rather amazing story in which a local Virginia weekly newspaper, the Richmond Voice, has been sued for defamation. Of course, newspapers get sued for defamation all the time. What's interesting here is that the newspaper had already lost a defamation case (concerning a letter to the editor it published concerning a local school teacher who didn't like it). After the paper lost that original lawsuit (and had to pay $125,000), it ran an editorial complaining about the decision... and the new defamation lawsuit is from the judge in the trial and the lawyer who represented the teacher -- and they're asking for $1 million in compensatory damages and $350,000 in punitive damages.

According to the legal filing by the judge, Melvin R. Hughes Jr., (embedded below), the defamatory statements really seem pretty tame. Basically, after losing the original case, the editorial said that there was "a bevy of evidence," supporting its side of the case, but "[unfortunately], the judge and the jury in the case did not feel the same way." It goes on to defend its original reporting... and then there's the key sentence:

We were naive in thinking that this fact alone would lead to a victory in civil case we had deemed frivolous. We did not take into account the politics played in a courtroom -- between judges and counsel -- and the maneuverings of counsel who treat facts casually.

If that's defamatory, it seems pretty weakly so. In context, it seems pretty clear that this is a newspaper that lost a lawsuit and is upset about how it was handled by the court. That's not too surprising, and taken in context, it seems like most people would reasonably discount the general anger at the outcome. Perhaps the statement could be read to suggest corruption, but that seems like a stretch. Instead, this really feels like a SLAPP suit... so it seems rather unfortunate that Virginia currently has no anti-SLAPP laws. Either way, it seems problematic that a judge would sue someone complaining about a ruling for defamation, as it could have clear chilling effects on anyone else speaking out about treatement they felt was unfair in court.

Filed Under: defamation, newspaper, slapp, virginia

Virginia High School Says Barring Students From Doing Outside Research Helps Them 'Think For Themselves'

from the this-is-education? dept

A few folks have sent over this bizarre and slightly scary story of the the Westfield High School in Fairfax Virginia, which recently sent home a notice of "Expectations of Integrity" for the school's Advanced Placement (AP) World History class, which admonished students not to do any outside research at all:

"You are only allowed to use your OWN knowledge, your OWN class notes, class handouts, your OWN class homework, or The Earth and Its Peoples textbook to complete assignments and assessments UNLESS specifically informed otherwise by your instructor.''

Internet? No, not allowed. Other books? Nope. Talking to anyone? No. Not other students, friends, family, experts or even strangers. The teacher made this clear:

"You may not discuss/mention/chat/hand signal/smoke signal/Facebook/IM/text/email to a complete stranger ANY answers/ideas/questions/thoughts/opinions/hints/instructions."

The school has suggested that the letter was "a little tongue-in-cheek," though that doesn't really make sense. Yes, I'm sure the bit about the smoke signals, etc. was "tongue in cheek," but it sounds like the general sentiment remains. But, the thing is, the school's defense of the policy doesn't make much sense either:

"The idea was to think for yourself," he said, "rather than to pick up something from somewhere else and parrot it back."

Huh? If you want people to "think for themselves" and not "parrot back" what they picked up from somewhere else, I can't think of any better way than encouraging students to find multiple sources and multiple viewpoints (including differing viewpoints) so that they learn to think through things from multiple perspectives, which really pushes people to "think for themselves" by weighing the different bits of information to decide what's credible and what's not. By requiring just a single resource, none of that happens.

Filed Under: education, outside sources, thinking, virginia

Court Says Activist Protected In Republishing Social Security Numbers That Virginia Revealed On Its Website

from the maybe-time-to-fix-the-problem... dept

Two years ago, we wrote about an absolutely ridiculous situation in Virginia, where the state regularly published government documents online without redacting anyone's social security numbers. Betty "BJ" Ostergren felt that this was a huge privacy violation, and in order to highlight it, she set up a website that displayed the documents that exposed social security numbers from documents published by the state on its website -- including the SSNs of various Virginia public officials. Now, there are plenty of ways government officials in Virginia could respond. A good one would be to start being more careful about not revealing people's social security numbers. But that's not what it did. Instead, it passed a new law that would fine people like Ostergren for republishing the information, even though it was the government itself who made the social security numbers public in the first place!

Ostergren, with the help of the ACLU, sued, saying that such a law was unconstitutional. A district court agreed, but only said it was okay for Ostergren to publish SSNs of public officials. However, now, an appeals court has gone even further and said that Ostergren had the right to republish SSNs of others, beyond just Virginia public officials. Basically, the court effectively says that Virginia should be redacting the SSN information, and it's ridiculous to punish Ostergren (or others) for simply pointing out what the government is publishing.

Filed Under: betty ostergren, first amendment, privacy, social security numbers, virginia

Supreme Court Won't Consider Virginia Anti-Spam Law

from the spammers-have-rights-too dept

The US Supreme Court has passed on the state of Virginia's appeal to keep its anti-spam law in place. The state's Supreme Court had ruled the law was unconstitutional, following the appeal of a spammer that had been convicted under it. He argued that the law overstepped the boundaries by outlawing non-commercial, as well as commercial spam, including things like political and religious speech that have generally been protected under the First Amendment. By not taking up the case, the high court appears to be extending that protection to cover spam as well. On balance, that's probably a good thing -- particularly as this "loophole" is unlikely to really make the spam problem any worse.

Filed Under: spam, supreme court, virginia