Does Copyright Give Companies The Right To Search Your Home And Computer?

from the it-shouldn't dept

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: "world-class tools for editing, organizing and working with photos" according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

if you do not agree to the terms of this license, you may not install or use the software but should promptly return the software to the place where you obtained it for a refund.

That's normal enough, and merely reflects the power of copyright holders to impose "take it or leave it" conditions on users. Less common is the following:

Capture One or a third-party designated by Capture One in its sole discretion has the right to verify your compliance with this License at any time upon request including without limitation to request information regarding your installation and/or use of the Software and/or to perform on-site investigations of your installation and use of the Software.

If you use Capture One, you must provide "without limitation access to your premises, IT systems on which the Software is installed", and "Capture One or an Auditor may decide in their sole discretion to apply software search tools in accordance with audits."

That is, thanks to copyright, a company is perfectly able to demand the right to access a user's premises, the computer systems they use, and to run search tools on that system as part of an audit. Although this applies to business premises, there's no reason a software license could not demand the same right to access somebody's home. In fact, there are really no limits on what may be required. You're not obliged to agree to such terms, but most people do, often without even checking the details.

The fact that such requirements are possible shows how far copyright has strayed from the claimed purpose of protecting creators and promoting creativity. Copyright has mutated into a monster because it was never designed to regulate activities, as it does with software, just static objects like books and drawings.

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

Originally published on the Walled Culture blog.

Filed Under: contract, copyright, license, searches
Companies: capture one

Lawsuit Claims A Zoom Call Was Unlawful Imprisonment

from the zoom-fatigue-taken-to-new-levels dept

We've all spent more than our fair share of time on excessively long Zoom calls over the past two years of pandemic land. However, it's difficult to believe that any Zoom call can reach the level of "unlawful imprisonment," as is alleged in a recent lawsuit. Now, it should be noted that there is a tragic story behind this lawsuit -- a man killed himself in front of his wife and children, after having a self-admitted breakdown following what he felt were accusations of criminal activity from his long-term employer. That said, the actual complaint from the grieving widow... seems unlikely to succeed in court.

The case was filed by Gabriella Tabak, whose husband Adam tragically killed himself earlier this year. He worked for Recology, a local garbage company (and, in fact, the company that collects my own trash each week). Recology has been steeped in controversy, and as that linked article notes, it has been "plagued by scandal for decades" including multiple claims of bribery to get certain contracts. Most recently, this involved the DOJ charging two top Recology executives with bribing San Francisco's Department of Public Works (DPW) director Mohammed Nuru with nearly a million dollars. Nuru has also been implicated in other bribery scandals as well... and more recently was arrested for attempted robbery with a knife (he claimed he was joking) at a food bank where he was a long term volunteer.

Recology, for its part, earlier this year agreed to repay customers $95 million in overcharged garbage fees, which were put in place due to its relationship with Nuru. Then, a couple months ago, the company settled the federal case against it, admitting it had bribed Nuru, and agreeing to pay $36 million more in criminal penalties.

That, then, is the backdrop to this other case. Adam Tabak was a financial controller for Recology, and a year ago, as the company was investigating the still ongoing bribery scandal, the company's top lawyer, Cary Chen, and outside lawyers from the firm of Morrison & Forrester, had a meeting over Zoom with Tabak. From the very bizarre legal complaint (filled with typos), it seems clear that Tabak felt that he was being accused of criminal activity as part of this investigation, but the complaint is, shall we say, somewhat theatrical. It kicks off with two quotes from Franz Kafka's "The Trial" and repeatedly plays up the fact that Tabak was Jewish, and suggests that he was being targeted because of his religion. After the meeting, Tabak committed himself to a hospital, and then later took his own life. From the lawsuit:

As it relates to Plaintiffs, the essential facts of this case commence at a meeting called by RECOLOGY’s inhouse counsel, Mr. Chen. The meeting, which occurred on December 1, 2020, was attended by RECOLOGY’s inhouse counsel, Mr. Chen, and at least four outside counsel from the firm of Morrison & Forrester, and Adam Tabak. The specific words articulated by Defendant’s representatives at this meeting were so threatening, hostile, oppressive, and fraudulent that Plaintiff was sent into a psychotic breakdown. At no time during the meeting did any of the lawyers advise Tabak that he was not a target of any investigation. In fact, Chen and outside counsel, through their words, actions, body language, and representations, in essence accused Tabak of criminal or civil or moral wrongdoing. While none of these accusations were true, accusing the Jewish financial controller of improprieties met an ancient anti-Semitic trope. Following the meeting, Mr. Tabak did not eat or sleep for three (3) days. He voluntarily had himself committed to a hospital on a 5150 hold. Ultimately, on January 2, 2021, just one month after that offensive meeting, Plaintiff took his own life by stabbing himself with a kitchen knife in front of his wife and children. Plaintiff worked for RECOLOGY for fifteen (15) years and was never disciplined, investigated, or questioned during his long tenure. He consistently was given good reviews, raises, and promotions.

The complaint even admits that some time after the meeting, one of the lawyers told him directly that he was "not under investigation" and that the meeting was not meant to accuse him of anything. However, the lawsuit argues by then it was too late. The complaint itself reads pretty tragically, detailing a clear mental health situation that Tabak had following the meeting.

Again, all of this is very tragic, but the issues that are relevant here are the false imprisonment claims about the meeting, which was conducted over Zoom. The details of how it is "false imprisonment" are not particularly well laid out in the complaint. Basically it says he wanted to leave the meeting and he was told not to. The complaint does not say the meeting was over Zoom. It certainly implies that it was done in a room together with the 5 lawyers:

During the meeting on December 1, 2020, Defendant used threats, fraud, deceit, menace, and unreasonable duress to intentionally deprive Adam Tabak’s freedom of movement. Adam did not voluntarily consent to staying at the meeting. In fact, Tabak physically attempted to leave the meeting; however, due to intentional threats, fraud, deceit, menace and unreasonable duress by Defendant, Adam was not allowed to leave the room. Prior to the meeting, Adam was given no agenda. He did not know what the purpose of the meeting was. He was not given an opportunity to review any document or file prior to the meeting. Even as the meeting commenced, the persons conducting the meeting, including Cory Chen and the four or five others, never advised Adam as to whether he was being investigated for wrongdoing or whether or not the interrogatories were simply attempting to garner information. Instead, during the meeting, the interrogatories made it clear that Adam was to be the scapegoat for the fraudulent and illegal actions at RECOLOGY.

(As a side note, this paragraph calls Recology's General Counsel "Cory Chen" even though elsewhere in the complaint he is called "Gary Chen," but neither appears to be correct! According to the company's own website, his name is actually Cary Chen -- as noted, the complaint is riddled with typos and does not appear particularly well drafted).

It was only after this lawsuit was filed that Recology pointed out that this "false imprisonment" happened over Zoom. The company has also denied any wrongdoing (well, in this case... the bribery cases are another story). Not that Recology seems like a particularly good company, but this lawsuit seems unlikely to get very far, and I do not think there will be any precedent set that your overly long Zoom meetings count as false imprisonment.

Filed Under: adam tabak, gabriella tabak, unlawful imprisonment, zoom calls
Companies: recology, zoom

Brazil's Fake News Legislation Moves Forward, Gets Slightly Better And Way Worse

from the land-of-contrasts-with-some-contrasts-more-equal-than-others dept

Taking a cue from the then Demagogue-in-Chief of the United States, Brazil's government decided something must be done to control the spread of "fake news" to give the government more control of the narrative. "Fake news" continues to be a handy concept to abuse by governments seeking to limit their constituents' ability to consume or create content. That was Donald Trump's rationale as well, even if it was never articulated with any clarity or cohesiveness.

Brazil's government liked the abusability of "fake news" and turned it into legislation. But before it did that, it gave itself some more power. It "mobilized" the federal police to combat "fake news" ahead of the country's 2018 elections. It gave people with guns the power to regulate the internet, allowing them to "identify and punish" people who published whatever those in power said was "fake."

The proposed law made a bad thing even worse. The original proposal demanded that social networks and messaging apps tie accounts to users via the country's national identity cards. It also mandated data collection on those who spread "fake news" to determine how far it had carried and, if possible, discover the origin of the content. Since there's no way to tell what the government would call "fake news" and when the government might get around to making this determination, the safest way for services to comply would be to log all info indefinitely just in case the government decided it needed access to this info later.

The bill has since been revised. And while it's not quite the privacy nightmare it was when it was introduced, it really hasn't improved much. The EFF has two posts covering the legislation, detailing what's been made better, what's been made worse, and what has remained terrible since the bill's introduction last summer.

Here's the good news:

Regarding serious flaws EFF previously pointed out, the bill no longer sets a general regime for users' legal identification. Second, it does not require social media and messaging companies to provide their staff in Brazil remote access to user logs and databases, a provision that would bypass international cooperation safeguards and create privacy and security risks. Most importantly, it drops the traceability mandate for instant messaging applications, under which forwarding information would be tracked.  

But several downsides remain. First, there's still some mandated unmasking of users, via mandates on publication of user info of those paying for content mentioning political parties as well as those buying or authorizing political advertising. This will make it insanely easy for powerful political officials to target anyone who opposes or criticizes them, adding to list of laws that can be abused to silence their opposition.

The proposal also gives the government the power to pull the plug on parts of the internet if it decides the law has been ignored or violated.

The bill also establishes that internet platforms can have their activities prohibited or temporarily suspended as part of the penalties for noncompliance. According to Article 2, the draft law applies to social networks, search engines, and instant messaging service providers with over two million users registered in Brazil.

Too many critics hanging out in certain internet places? Shut it down. Not only does this provide the government with a quick way to silence up to two million people at a time, but it directly contravenes UN agreements that forbid the wholesale disruption of communication services relied on by countries' populations.

Back to improvements. The amended bill finally places some limits on data retention by platforms and communications apps, restricting it to communications metadata. And that collection is further limited by time constraints: only 15 days in a row, extendable to a maximum of 60 days via court approval.

But, even these improvements have some serious issues. In the EFF's second post, Veridiana Alimonti points out the government thinks it can tie an IP address to a person, which will allow it to make even worse assumptions about communications metadata that go beyond its original faulty assumption: that an IP address = a person.

The provision forces internet applications to unequivocally individualize the user of an IP address, apparently based on the flawed aspiration of linking a given IP address to a specific user without a margin of error. This language offers wide-open interpretations by law enforcement and courts that could severely extend the current data retention mandates, or even force the use of persistent identifiers linked to our every single move online. There are so many variables in internet routing that it is not possible for an application to say unequivocally who is related to a connection.

That assumption was faulty back when most internet communication was handled via desktop computers at people's homes. Mobile devices, public Wi-Fi, limited availability of IPv4 addresses, and the use of multiple connected devices in any home make this bad assumption completely unworkable. And yet, legislators appear to believe it will work.

If it doesn't work, it can fine and/or pull the plug on service providers that fail to do the impossible. The only way to even attempt to comply is to log all sorts of information that can possibly tie users to IP addresses and make this all available to the government when it's requested. This essentially makes the metadata-only demands meaningless since the government clearly wants to be able to identify users and will expect the same providers that thought they were only obligated to log certain things to collect it all and let the government sort it out.

Filed Under: brazil, censorship, fake news, internet regulations

Daily Deal: TREBLAB FX100 Extreme Bluetooth Speaker And TREBLAB X5 True Wireless Earbuds Bundle

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

This great bundle includes 2 products: TREBLAB FX100 Extreme Bluetooth Speaker and TREBLAB X5 True Wireless Bluetooth Earbuds. FX100 is certified shock-proof, dust-proof, and IPX4 water-resistant making it fully equipped to endure all types of adventures — all while keeping the party going. X5 is designed to make listening to your favorite music while exercising, traveling, or working an absolute dream. It uses expandable silicone tips to reduce outside noise so it can deliver clear, crisp stereo-quality sound thanks to the advanced 8.2mm drivers. The bundle is on sale for $99

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

Hey North Face! Our Story About You Flipping Out Over 'Hey Fuck Face' Is Not Trademark Infringement

from the hey-fuck-face,-hire-better-brand-protection dept

Update: After this article was published The North Face reached out to me, admitting that it was "ridiculous" to send this threat letter, and that they were using the mistake to improve their processes to (hopefully) avoid this kind of thing happening again.

The "brand protection" industry is endlessly fascinating to me, in that it seems to be a near total scam that preys on gullible big company execs who believe that if anyone uses their brand or logos in a way they don't approve of, it'll mean the end of the world. That's not to say there aren't legitimate "brand protection" steps that large companies need to take, but so much of it is overblown fluff and nonsense, and all of the various "brand protection" companies out there feel the need to justify whatever bizarrely lucrative contracts these giant companies hand out. So they completely overreact to the smallest of things -- and the end result is not brand protection, so much as brand destruction for demonstrating just how over aggressive you are as a company.

The clothing company The North Face seems to have a particularly itchy trigger finger in overreacting based on its "brand protection" strategies -- and their latest target is... Techdirt. Now, I'm pretty fucking sure we don't compete with The North Face in any real way (I don't think our limited selection of self-designed tech policy nerd t-shirts counts). We do, however, sometimes report on the ridiculous ways in which The North Face overreacts to parodies.

It started, back in 2009, when The North Face decided to sue a student who created a sophomoric parody line of clothing called South Butt. Absolutely no one was going to be confused about where the clothing was coming from. No one was accidentally going to buy South Butt clothing, thinking it was really from The North Face. There was no likelihood of confusion. There was no dilution or tarnishment. There was just over-protective marketing execs who didn't like being made fun of. Unfortunately, the judge in the case didn't dismiss it upfront, meaning that it was about to get super expensive, and The North Face's lawyers started dragging the family of the student through the mud. Given all that, it was unfortunate, but not surprising, that South Butt settled the case. Of course, a few years later, South Butt showed up again, but this time as... Butt Face, giving The North Face lawyers some billable hours.

Anyway, soon after all that happened, we wrote about a different overreaction by The North Face. Some guy made parody patches mocking The North Face (it's not even clear if he actually made any patches, or just Photoshopped images of such patches). A key one was a patch with the phrase "Hey Fuck Face" on it, and The North Face's three-line Half Dome wannabe logo design.

I mean, not the most clever of parodies, but a parody. "Mr. Smashy" posted the image to Flickr, and the hypersensitive lawbots at The North Face sent Flickr/Yahoo a takedown notice. And then, we at Techdirt wrote about this completely stupid overreaction by The North Face.

That was nine years ago. On Friday, we got a notice from a company "Yellow Brand Productions" on behalf of The North Face, complete with legalistic sounding language to make us think that us writing a story about The North Face overreacting to a parody image of a parody patch that has never actually been sold anywhere is actually trademark infringement.

Subject: Notice of infringement - techdirt.com

Date: November 12, 2021

Dear Sir/Madam,

I, the undersigned, state under penalty of perjury that:

• I am the owner, and/or an agent authorized to act on behalf of the owner, of certain intellectual property rights.
• I have a good faith belief that the listings identified hereto offer items and/or contain materials that infringe on The North Face and Design trademark (see attached file) and are not authorized by the Intellectual Property Owner, its agent, and/or the law.
• Please act expeditiously to remove the listings identified.

Intellectual Property Owner: The North Face Apparel Corp.
Email Address for communication: [redacted] Website: https://www.thenorthface.com/

URLs at Issue:

https://www.techdirt.com/articles/20121121/17405821118/north-face-continues-to-file-questionable-legal-claims-against-parodies.shtml

Best regards,

Yellow Brand Protection
on behalf of,
The North Face Apparel Corp.

The email also, helpfully, included the Trademark Registration of The North Face logo, which notes that it covers specific trademark categories including backpacks, sleeping bags, tents, and clothing. As far as I know, a news article about a stupid overreaction to parody is not one of those things. The "notice of infringement" also included a signed letter from Christine Hernandez, saying that Yellow Brand productions and Matthew Leclerc are "authorized to represent The North Face, in trademark enforcement". Usefully, this lets me know who I should address our response to: Christine Hernandez, who (according to her LinkedIn profile) is currently General Counsel at "VF Corporation" which is the parent company to a bunch of outdoor-focused brands that I will now start keeping track of to avoid ever supporting again, including The North Face, Vans, Timberland, Altra, Icebreaker, Smartwool, Jansport, Eastpak and more (this is unfortunate as I have a few Icebreaker and Smartwool products, and didn't realize they were owned by an evil overly aggressive corporate conglomerate bully).

So, here's our response:

Dear Christine Hernandez,

I wanted to make sure you were aware that you were throwing away money with "Yellow Brand Protections" (who itself appears to have bought up its own conglomerate called Corsearch.) While the company promises to "protect your brand to grow its value" and claims that it uses "advanced technology to detect, monitor and protect your brands," it appears that it employs people who can't tell a news story about your company's itchy trademark trigger finger from actual infringement.

Sending out completely bogus trademark threat letters to news organizations covering your company's bad practices seems like the kind of thing that might come back to bite your brand. In fact, rather than "brand protection" this feels a lot like "brand destruction."

I'd suggest revisiting your contracts with "brand protection" companies who you give the authority to use your name in bogus threat letters, and maybe (just maybe) easing up on believing you need to threaten everyone over parodies.

Sincerely,
Techdirt

Filed Under: brand protection, hey fuck face, moron in a hurry, trademark, use in commerce
Companies: corsearch, the north face, vf corporation, yellow brand protections

Hacker Tricked Robinhood Support Into Revealing Data Of 5 Million Users

from the whoops-a-daisy dept

When it comes to privacy and security, the weakest link continues to be of the human variety.

Trading app Robinhood last week announced in a blog post that somebody used social engineering to trick company support into handing over user login data. On November 3, said "hacker" convinced company support they were cleared to access “certain customer support systems.” From there they nabbed the email addresses of five million users, and the full names of a different group of two million users:

"At this time, we understand that the unauthorized party obtained a list of email addresses for approximately five million people, and full names for a different group of approximately two million people. We also believe that for a more limited number of people—approximately 310 in total—additional personal information, including name, date of birth, and zip code, was exposed, with a subset of approximately 10 customers having more extensive account details revealed. We are in the process of making appropriate disclosures to affected people."

Another subset of users had far more sensitive data exposed to the intruder. 310 users had their full names, dates of birth and ZIP codes exposed to the intruder, and 10 customers had "more extensive account details revealed" -- though the company doesn't specify which details they were. The company insists that no social security numbers were revealed and that nobody suffered any financial losses related to the attack:

"Based on our investigation, the attack has been contained and we believe that no Social Security numbers, bank account numbers, or debit card numbers were exposed and that there has been no financial loss to any customers as a result of the incident."

By "no financial loss" Robinhood means none of their users had money stolen directly via Robinhood. That doesn't mean those users won't suffer financial losses elsewhere, after being bombarded with phishing emails over the next few months using the email addresses, or compromised via the release of other personal data used elsewhere.

As with most revelations of this type, the scope of the breach is probably significantly bigger than what's currently understood. Also like most such breaches, nobody will remember it happened three months from now, and Robinhood won't be held meaningfully accountable for its exploitable customer service. In a country where most companies have lax security and privacy standards, there's no meaningful privacy law for the internet era, and FTC privacy enforcers that are routinely understaffed, under-funded, and simply outgunned, there's simply not very much incentive to make security and privacy a real priority.

Filed Under: breach, customer support, emails, hacker
Companies: robinhood

Funniest/Most Insightful Comments Of The Week At Techdirt

from the whaddaya-say? dept

This week, our first place winner on the insightful side is katsai with a comment on Missouri's apology (to teachers, not journalists) for exposing data:

It's funny how many companies and government organizations trot out the "the security of the data we collect is of the utmost importance" line AFTER an easily preventable breach or (as in the case here) blatant information security malpractice. If the security of users were truly important to them, it wouldn't be an afterthought, and they wouldn't be attacking the white hats who properly disclose vulnerabilities in a responsible manner.

In second place, it's That One Guy with a comment about Jash Hawley opining on how "men must be held responsible for their actions":

'All men not on my side that is.'

And if anyone would know about personal responsibility and being held accountable for your own actions...

Coming from insurrectionist Hawley of all people that is downright weapon's-grade hypocrisy and dishonesty right there, all the more so given that he follows it up by whining about how the fictional 'war on men' is somehow forcing those men into porn and gaming.

For editor's choice on the insightful side, we start out with an anonymous comment about the government's inaction in dealing with rogue Stingray devices:

This total inaction as compared to the effort expended against encryption should tell you a lot about the actual priorities of the surveillance state.

Next, it's Toom1275 with a comment about copyright abuse:

The "You used 1% of something I made as 1% of something hou made, therefore I get to claim 100% of your revenue as mine" scam needs to die in the core of the sun.

Over on the funny side, our first place winner is Rico R. with another comment about the Missouri "hacking" fiasco:

BREAKING NEWS: Schools Install Hacking Software

Big Tech company Google was caught red-handed offering a hacking tool to schools and even the general public. The tool in question, Google Chrome, is known to decode HTML code and even display the source code of the content it displays with a simple right-click function. There are even reports that people can use an inspect tool to temporarily change what a webpage says without the authorization of the website owner. Google laughed off requests for comment, but Missouri's governor is insistent that it will hold all who downloaded and used the tool accountable as well as investigate schools that use the software in question.

In second place, it's John Roddy with a theory about a mysterious copyright fight on Twitter:

the twist

If you find the photos and look really carefully at the background, you'll see the outline of a private beach house owned by Barbara Streisand.

Probably not, but it's not like any other explanation makes any more sense.

For editor's choice on the funny side, we start out with another comment on that post, this time from Breedon Dissent in response to the argument that "what Twitter is attempting to do with its motion to quash is diminish the rights of copyright holders by forcing them to navigate the court system":

Forcing trolls to actually go to court to get what they want?? How could Twitter be so unreasonable!!

Finally, it's an anonymous response to our post about the many news outlets that killed their comment sections:

no comment

That's all for this week, folks!

This Week In Techdirt History: November 7th - 13th

from the living-memory dept

Five Years Ago

This week in 2016, well... perhaps you remember what happened? On Monday we were criticizing Trump's hypocrisy on the First Amendment and James Comey's sudden reversal of his equally sudden renewal of the Clinton email investigation — plus covering other stuff like the illegal bulk data collection by Canada's spy agency and the absolutely stupid legal threats over podcast apps by Canada's public broadcaster. And then, on Tuesday night, Trump won the election. We wrote about what the unexpected result meant for Techdirt-related issues, and criticized the immediate move by many to blame the whole fiasco on Facebook and the unfortunate calls for clamping down on free speech online. Trump's first tweet as president was yet another attack on the First Amendment, and his opponents weren't necessarily doing much better on that front. And though everyone knew things were going to get even crazier, I don't think anyone fully envisioned just how ridiculous the next four years would be.

Ten Years Ago

This week in 2011, there was some other news that is memorable to Techdirt readers: what had once been the PROTECT IP Act, and then became the E-PARASITES Act, was finally renamed to... the Stop Online Piracy Act, or SOPA. The fight over the bill only heated up from there, with the RIAA offering a bizarre interpretation while admitting it wants a DMCA overhaul, more research showing how the bill would harm investment in key innovations, lawmakers like Reps. Lofgren and Issa stepping up in opposition, and even mainstream press like Time Magazine explaining how it's a terrible idea. Opposition came from groups as diverse as librarians and sports bloggers — while the House Judiciary Committee refused to hear concerns from the wider tech industry. We wrote about how it's the exact wrong approach, and there were early plans for something similar to the blackout day that would come the following year. All in all, the fight was just getting started...

Fifteen Years Ago

This week in 2006, we had an early post about how ISPs should be demanding warrants before handing over customer info, and about how nascent services offering to delete embarrassing stuff about you from the internet weren't going to be able to live up to their promises. More and more lawsuits were piling up from people attempting to get a cut out of online video, while Microsoft was taking it upon itself to give the entertainment industry a cut of every Zune device it sold (add that to the list of dumb things about the Zune). Some people were betting a little too heavily on the idea that an open WiFi network would protect them from RIAA lawsuits, while a court agreed to examine the constitutionality of the RIAA's huge fines. Meanwhile, two years after the release of the infamous (and excellent) Grey Album mashup of Jay-Z and The Beatles, EMI admitted it didn't harm them at all (while still insisting it was good to fight so hard against it).

Filed Under: history, look back

Fifth Circuit Awards Immunity To Cop Who Thought It Would Be A Good Idea To Jump On A Moving Car And Kill The Driver

from the I-had-to-shoot-him-because-I'm-a-fucking-idiot dept

OMG FIFTH CIRCUIT. What the actual fuck.

The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.

The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.

We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)

In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.

Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:

A City of Arlington police officer pulled over O’Shae Terry and his passenger, Terrence Harmon, for driving a large SUV with an expired registration tag. The officer approached the car and asked Terry and Harmon for identification. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it. In the meantime, another police officer, Defendant Bau Tran, arrived on the scene and approached the car from the passenger’s side next to a curb. While the first officer went back to her patrol car to verify Terry’s and Harmon’s information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle’s engine, and Terry at first complied. Dashcam and bodycam videos capture what happened next.

After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled “hey, stop.” Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot 5 rounds, striking Terry four times.

"Smelled marijuana" is something officers say when it might be somewhat inconvenient to bring in a trained dog to perform an "alert." It's a vague claim that can't be substantiated in court. Neither can it be challenged, because by the time court proceedings begin, any claimed odor will obviously have dissipated. And it obviously can't be captured by any recording device, whether operated by cops or the people they're interacting with.

Even if we choose to believe the officer smelled what he smelled, the ensuing chain of events makes no sense. You really have to question an officer's instincts if a stop for an expired tag and a follow-up "smell of marijuana" encourages him to attempt to take control of the car by any means necessary. Firing a gun through an open window at the driver wasn't going to put Officer Tran in any less danger. Shooting the driver of a moving vehicle while the officer is STILL ON THE MOVING VEHICLE makes absolutely zero sense.

More violence ensued.

Terry lost control, careened across the opposite lane, and jumped the curb. The force of the SUV hitting the curb knocked Tran off and onto the street. As Tran rolled over the asphalt, the car’s rear tires just about hit Tran’s flailing limbs. Harmon then gained control of the SUV, got it back onto the street, and stopped it. An ambulance took Terry to the hospital, but he did not survive.

Police officers are not supposed to create exigent circumstances to justify constitutional violations. (they do tho) A cop can't start a house on fire as an excuse to wander inside to see what's in plain sight. Officers generally aren't supposed to stand in front of moving vehicles just so they have a reason to shoot at people. And this officer's decision to jump on the running board of a car and shoot at the driver while he was still hanging onto the window of the moving vehicle should not be greeted with tacit judicial approval of these tactics. But that's what the Fifth Circuit has handed down here: an invitation for officers to create "dangerous" situations in order to bypass constitutional protections.

All that matters to this court is a literal second of time -- not the stop itself, or the end result of the failed stop, but one single second in this horrific chain of events.

Before Terry accelerated, Tran kept his pistol holstered. But about a second after the car lurched forward, Tran drew his pistol and shot Terry four times. That brief interval—when Tran is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether Tran reasonably believed he was at risk of serious physical harm.

Having considered far less time than it has taken to read to this point, the court says the cop was right to do what he did.

That belief was reasonable.

To back up this single second of "reasonable" judgment, the court says the outcome of the cop's violent and injudicious actions justify the cop's violent and injudicious actions.

Indeed, what came next illustrates the danger Tran faced. Several seconds after Tran shot Terry, while the SUV was still moving, Tran fell off the running board and into the busy street.

And…

Moreover, as Tran tumbled across the asphalt, the car’s rear tires nearly overran his limbs.

Well, duh. Maybe don't jump on moving cars and shoot people. Real life ain't T.J. Hooker.

The court says it is not here to judge as it lays down its judgment:

The plaintiffs also contend that Tran could have simply stepped off the running board and let Terry drive away, the availability of that alternative, they argue, makes Tran’s use of deadly force unreasonable. But qualified immunity precedent forbids that sort of Monday morning quarterbacking; the threat of harm must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

It all adds up to a "reasonable" cop having a very unreasonable reaction to a developing situation. Rather than encourage cops to act with caution, the court says cops should be free to act like the protagonists of "Bad Boys" and place themselves in incredible amounts of danger. If anyone else gets killed as a result of this "reasonable" carelessness, well… that's on them, I guess.

It didn't need to go down this way. But it will happen again. And again. And again. This court says it's reasonable to act unreasonably. Cops can place themselves in harm's way and shoot their way out of it without worrying about being successfully sued for unnecessary killings and injuries.

Filed Under: 5th circuit, bau tran, police shooting, qualified immunity, shae terry, terrence harmon

Facebook Limits Some Ad Targeting; People Still Won't Be Happy

from the no-one-will-ever-be-happy-with-facebook dept

I still think that the power of targeted advertising is somewhat overblown (and that neither Google nor Facebook want to admit that). Relatedly, I think that bad targeted advertising creeps people out way too much, and that's a problem. However, given all that, Facebook's newly announced plans to remove certain forms of targeting from its targeted advertising program seems kind of weird.

Starting January 19, 2022 we will remove Detailed Targeting options that relate to topics people may perceive as sensitive, such as options referencing causes, organizations, or public figures that relate to health, race or ethnicity, political affiliation, religion, or sexual orientation. Examples include:

• Health causes (e.g., “Lung cancer awareness”, “World Diabetes Day”, “Chemotherapy”)
• Sexual orientation (e.g., “same-sex marriage” and “LGBT culture”)
• Religious practices and groups (e.g., “Catholic Church” and “Jewish holidays”)
• Political beliefs, social issues, causes, organizations, and figures

It is important to note that the interest targeting options we are removing are not based on people’s physical characteristics or personal attributes, but instead on things like people’s interactions with content on our platform. However, we’ve heard concerns from experts that targeting options like these could be used in ways that lead to negative experiences for people in underrepresented groups. We routinely review, update and remove targeting options to simplify our ads system, provide more value for advertisers and people, and reduce the potential for abuse.

While I can clearly see ways in which that kind of ad targeting could be abused, it also seems somewhat arbitrary that these limits are now there. And, you can clearly see many reasons why people should be allowed to target advertising on these kinds of topics. For example, advertising religious items to people practicing those religions seems perfectly reasonable.

We discussed this a bit before as it relates to a proposed bill to remove Section 230 from targeted advertising on some of these topics: there often are times when it's useful to be able to target to such narrow groups. And yes, even if it can sometimes be abused, is that worth completely tossing out the good created by finding the appropriate audience?

And, of course, the simple fact is that no one will ever be happy with Facebook's decisions. As it notes in the announcement itself, advertisers don't like this move, and Facebook critics will claim it doesn't go nearly far enough. This just seems like a semi-arbitrary way of Facebook to dip its toes in the water of saying "we're going to limit this stuff that you insist we only do because of our nefarious intent" and it's not going to stop anyone from insisting Facebook still has nefarious intent.

Filed Under: ad targeting, ads, health causes, online ads, political beliefs, religious practices, sexual orientation, social media
Companies: facebook