This Week In Techdirt History: October 3rd - 9th

from the back-in-the-day dept

Five Years Ago

This week in 2016, the Trump's campaign was reacting to the leaked pages of his 1995 tax returns by threatening to sue the New York Times, and also reacting to some ads from the Clinton campaign by threatening to sue them, too — while at the same time, the campaign was facing its own bogus threat from the Phoenix Police over imagery of cops in an ad. The big story, though, was the revelation that Yahoo had secretly built email scanning software under pressure from the feds. This led to basically every other tech company rapidly denying that they'd done the same, followed by Yahoo itself issuing a tone-deaf non-denial denial of the report. The media was very confused about the story, with the New York Times and Reuters claiming totally different explanations for the email scanning, and over the course of the week even more disagreements and confusion arose.

Ten Years Ago

This week in 2011, countries around the world were signing ACTA and finally admitting that it meant they'd have to change their copyright laws, while Brazil was drafting its own anti-ACTA framework for the internet. The Supreme Court declined to consider an appeals court ruling that properly stated music downloads are not public performances, though this didn't mean (as some claimed) that downloading had been legalized. Meanwhile, another judge dismissed a lawsuit over streaming video, but mostly avoided the larger copyright questions, and we saw a set of good rulings against copyright trolls, and one bad one.

This was also the week that Steve Jobs died at age 56.

Fifteen Years Ago

This week in 2006, Facebook was getting a start on its soon-to-be-tradition of threatening people who make useful third-party tools. Amazon was abandoning its attempt to make an early version of something like Street View, and Wal-Mart was abandoning its much more stupid attempt to offer a MySpace clone. The fight between Belgian news publishers and Google was continuing, while the copyright fight over My Sharona was dragging in Yahoo, Amazon and Apple. And the big news — though it was still just a rumor with lots of conflicting information going around, making it hard to tell if it was true — was that Google was planning to buy YouTube for $1.6-billion.

Filed Under: history, look back

Connecticut Supreme Court Says Cops Need Warrants To Run Drug Dogs Around Motel Room Doors

from the probable-cause-needed-to-deploy-probable-cause-on-four-legs dept

Drug dogs are man's best friend, if that man happens to be The Man. "Probable cause on four legs" is the unofficial nickname of these clever non-pets, which give signals only their handlers can detect which give cops permission to perform searches that otherwise would require a warrant.

They're normally seen at traffic stops and border checkpoints, but they're also used to sniff other places cops want to search but don't want to get a warrant to do so. This has led to a few legal issues for law enforcement, with courts occasionally reminding them that a dog sniff is a search and, if the wrong place is sniffed, it's a constitutional violation.

The top court in Connecticut has curtailed the use of drug dogs in certain areas, finding that sniffs are still searches and these searches are unreasonable under the state constitution if performed in certain areas -- namely outside the doors of motel rooms. (via FourthAmendment.com)

In this case, police officers allowed their dog to sniff at doors of motel rooms until it alerted on a door. Using this quasi-permission, officers entered the room and found contraband. The government argued that even if it was a search, it was performed in a place (a hotel or motel) where citizens would have a lowered expectation of privacy, considering the fact the rooms are only rented, utilized for only a short time, and accessible by hotel staff.

In a really well-written opinion [PDF], the court reminds the government that a lowered expectation of privacy is not the same as a nonexistent expectation of privacy. And, more importantly, it reminds them that, while motel rooms may not have the sanctity of people's permanent homes, it is a home away from home and afforded more protection than, say, a car parked on the curb of a public road.

The court addresses all of the government's arguments and finds none of them persuasive.

First, the state asserts that, in contrast to an apartment, a motel room most often serves merely as transitory quarters rather than a private, permanent residence. Although we agree generally with this observation, it is well settled that motel guests, like home dwellers, have a reasonable expectation of privacy in their rooms. The fact that a motel is not a home when, as is ordinarily the case, a stay there is temporary, does not, ipso facto, establish the scope of the privacy that transient motel guests reasonably may expect.

Holding otherwise would allow cops to engage in all sorts of searches simply by claiming one thing is not as private as another thing.

Indeed, this court previously has recognized that those aspects of a hotel or motel that reduce a guest’s expectations of privacy but do not increase the vulnerability of guests to the particular type of intrusion at issue are irrelevant in assessing the legality of that intrusion. If it were otherwise, the only guidance that courts would have in determining whether certain conduct by the police constituted an unlawful search of a motel room would be the vague and conclusory statement that motel guests have a diminished expectation of privacy as compared to residents of private homes.

That reference to the "particular type of intrusion" is also fatal to the government's third argument, which said that because conversations can be overheard due to close proximity to other rooms and that hotel staff can enter rooms and find contraband, the shared hallways are places cops can let drug dogs legally roam. But a drug dog's sniff is not either of the state's examples, so the analogy is not only bogus, but an unlawful presumption.

We do not agree, however, that a room occupied by a motel guest is more vulnerable to a warrantless canine sniff than an apartment, condominium or house simply because other guests occupy nearby rooms or because the rooms may be entered by motel staff to perform certain functions unless guests place a ‘‘Do Not Disturb’’ sign on the door.

And, while motel rooms necessarily won't contain the long list of personal effects and papers people store in their homes, they're far from devoid of personal effects.

Again, such guests ordinarily do not keep all of their personal effects in their rooms because a motel room frequently is a temporary accommodation or lodging and not the guest’s permanent residence. That fact, however, does not mandate the conclusion that the personal effects that guests often do keep there—no matter how private or personal they may be—should be subject to appreciably less protection under the law. On the contrary, we see no reason why a motel guest reasonably cannot expect a degree of privacy in his or her room sufficient to preclude random or arbitrary intrusions by the police.

The court affirms the sniff was a search and it was not permissible just because officers could access the hallways and walkways outside of the motel rooms without a warrant.

We see no reason why the fact that the police in the present case were lawfully present in an open-air walkway abutting the defendant’s motel room makes any appreciable difference with respect to this analysis. The relevant question is not how easy it may be to gain lawful access to the door of a particular dwelling or lodging, but what conduct those occupying that space reasonably may expect from persons who actually have such access.

Finally, the court points out that even the government doesn't believe its own arguments. If it did, it would not have implied that it would find this sort of behavior by law enforcement objectionable on some level.

We note, in addition, that, if the state were correct that a canine sniff of the exterior door of a motel room is an event altogether lacking in constitutional significance, the police would be entitled to roam through the corridors of a motel conducting canine sniffs of some or all of the doors to those rooms despite having no particularized cause to believe that any of them contained drugs. In tacit acknowledgment that our citizenry would find this conduct unacceptable, the state asserts that there is no reason to believe that the police in Connecticut would engage in such a trawling exercise, even though they could do so lawfully.

If the state finds its own arguments conducive to objectionable behavior by law enforcement officers, the court can't be expected to sign off on it.

Even if we shared the state’s confidence in that regard, however, the fact that it would be legally permissible for the police to go from door to door conducting suspicionless canine sniffs throughout the motel is itself reason to doubt the soundness of the state’s constitutional argument.

The end result for Connecticut cops? Warrants are needed for drug dog sniffs in situations like these. Reasonable suspicion is not enough.

[W]e are not persuaded that an exemption from the warrant requirement should be extended to a canine sniff of the exterior door to a motel room, as the state advocates. We believe, rather, that, in the present context, the ‘‘balance between law enforcement interests and [an individual’s] privacy interests . . . tips in favor’’ of the latter, given that ‘‘our state constitutional preference for warrants [occupies the] dominant place in that balance . . . .’’ Accordingly, we reject the state’s claim that a canine sniff of the exterior door to a motel room is lawful if supported by a reasonable and articulable suspicion and conclude, instead, that such a search satisfies state constitutional requirements only if it follows the issuance of a warrant founded on probable cause.

That's the standard in the state now. Law enforcement officers need to seek a warrant to run a drug dog around near hotel/motel room doors. The expectation of privacy isn't as elevated as when a person is in their own home, but there's still enough of an expectation that officers can no longer assume rooms used temporarily and accessible by employees are also accessible to them without any additional paperwork or probable cause.

Filed Under: 4th amendment, connecticut, drug dogs, drugs, law enforcement, motels, police, warrant

Texas Pols Shocked To Learn Their Bill Let Gas Companies Off The Hook For Climate Change Preparedness

from the you're-not-helping dept

Having covered telecom for a long time, I've lost track of the times I've watched some befuddled lawmaker shocked by the content of their own bill. Usually, that's because they outsourced the writing of it to their primary campaign contributors, which in telecom is usually AT&T, Verizon, Comcast, and Charter. Sometimes they're so clueless to what their "own" bill includes they'll turn to lobbyists in the middle of a hearing to seek clarity. This is, of course, outright corruption. But we tend to laugh it off and normalize it, and the press generally refuses to accurately label it corruption.

There are endless parallels when it comes to the energy sector. Like this week, when Texas lawmakers were shocked to realize their recent state energy bill failed to require that Texas natural gas companies harden their infrastructure for climate change--despite the fact their own bill included giant loopholes to that effect.

In the wake of the disastrous and deadly climate-related crisis in Texas last winter, the state passed several bills purporting to fix the problem. Many, like Senate Bill 3, largely just punted the can down the road, urging for a mapping of Texas's existing energy infrastructure, and giving the Texas Railroad Commission 180 days to finalize its weatherization rules. None of the solutions, of course, challenged entrenched energy providers, or tackled the core of the problem in Texas: an almost mindless deference to wealthy local energy executives.

At a recent hearing in Texas, lawmakers blasted both the Texas Railroad Commission and local natural gas companies when they realized the latter had failed to weatherize their infrastructure with winter looming. The problem was that their own legislation provided the loopholes that made this possible:

"In a committee hearing Tuesday, Texas senators were furious that natural gas companies won’t have to better prepare their facilities for extreme weather before this winter and rebuked the Texas Railroad Commission, which regulates the state’s massive oil and gas industry, for not fixing the problem sooner.

“Wait a minute,” state Sen. Robert Nichols, R-Jacksonville, told Wei Wang, executive director of the Railroad Commission. “You haven’t done it yet?”

But the “loophole” that lawmakers spent the hearing condemning and the slow timetable for winterizing the state power grid were part of legislation they approved during the regular legislative session in the spring."

Basically the bill in question lets natural gas companies opt out of system hardening requirements if they simply don’t voluntarily declare themselves to be “critical infrastructure” with the state. This was all but certainly a provision included by the companies themselves and rubber stamped by the politicians paid to love them. More often than not, a politician's only understanding of their own bill comes from a .pdf provided by the companies that actually wrote the legislation (usually via some sort of proxy organization like ALEC to give it a thin veneer of faux legitimacy), resulting in obvious outcomes like this one.

Reports continue to illustrate the grotesque cronyism and corruption that resulted in countless deaths in Texas last winter. And of course it's not only a Texas problem. Our mindless tendency to throw billions of dollars in tax breaks, subsidies, and regulatory favors at industry giants while ignoring infrastructure needs in the face of climate change is a country-wide affair. And the wholesale corruption that makes all of this possible continues to be normalized in most press coverage as a growing array of terrible climate catastrophes bear down on a dysfunctional nation.

Filed Under: climate change, electrical grid, legislation, loophiles, texas, weatherizing

If You Want To Know Why Section 230 Matters, Just Ask Wikimedia: Without It, There'd Be No Wikipedia

from the also-just-grow-up,-china dept

It sometimes seems that Techdirt spends half its time debunking bad ideas for reforming or even repealing Section 230. In fact, so many people seem to get the law wrong that Mike was moved to write a detailed post on the subject with the self-explanatory title "Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act". It may be necessary (and tiresome) work rebutting all this wrongness, but it's nice for a change to be able to demonstrate precisely why Section 230 is so important. A recent court ruling provides just such an example:

On September 15th, in a victory for the Wikimedia movement and for all user-driven projects online, a Florida judge dismissed claims of defamation, invasion of privacy, and infliction of emotional distress against the Wikimedia Foundation. The judge found that Section 230 of the Communications Decency Act immunizes the Wikimedia Foundation from liability for third-party content republished on Wikipedia. In other words, Section 230 helps Wikimedia safely host the work of Wikipedia's contributors and enables the effective volunteer-led moderation of content on the projects.

As the Wikimedia blog post notes, this was an absolutely crucial result. If collaborative projects that are created, maintained, and curated by volunteers could be held liable every time a user contributed something that was inaccurate or offensive, none of them would last very long -- not least because they generally lack the resources to fight expensive court cases. Back in 2017, Wikimedia wrote a detailed post on Section 230, and why it made Wikipedia and other sites possible

The court's ruling is a big win for Wikimedia. On the other hand, in something of a (minor) defeat, China has yet again blocked the Wikimedia Foundation's application for observer status at WIPO -- the only country to object. This is the second time it has done so, and for the same reason:

As in 2020, China's statement falsely suggested that the Wikimedia Foundation was spreading disinformation via the independent, volunteer-led Wikimedia Taiwan chapter. The United States and the group of industrialized countries at WIPO -- which also includes many European Union member states, Australia, Canada, the Holy See, Israel, Japan, New Zealand, Norway, Switzerland, Turkey, and the United Kingdom -- expressed their support for the Foundation's application. Since WIPO is generally run by consensus, any one country may veto accreditation requests by non-governmental organizations.

China's blocking of a small, apolitical organization that aims to promote knowledge around the world just looks incredibly petty, and is hardly befitting for a world power.

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

Filed Under: china, defamation, free speech, internet platforms, section 230, taiwan, wikipedia, wipo
Companies: wikimedia foundation, wikipedia

Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse

from the no-cast dept

A few weeks ago I woke up one day to find the Lake Tahoe region on fire and the New York region underwater. Meanwhile the Supreme Court had just upended decades if not centuries of Constitutional law. But I could learn about none of it from watching local news because Locast had shut down overnight following a dreadful decision by a district court a few days before.

Locast was a service similar to the now-extinct Aereo, although with a few critical legal distinctions necessary for it to avoid Aereo's litigation-obliterated fate. But the gist was the same: it was another rent-an-antenna service that "captures over-the-air ('OTA') broadcast signals and retransmits them over the internet, enabling viewers to stream live television on their preferred internet-connected viewing device" [p. 1-2 of the ruling]. And, like Aereo, it is yet another useful innovation now on the scrapheap of human history.

Absolutely nothing about this situation makes any sense. First, and least importantly, I'm not sure that Locast shutting down wasn't an overreaction to a decision so precariously balanced on such illusory support. Then again, no one wants to be staring down the barrel of potentially ruinous copyright lawsuit under the best of circumstances, but especially not when the judge has arbitrarily torn up all your high cards. Getting out of the game at least helps limit what the damage will be if the tide doesn't eventually turn.

More saliently, it makes absolutely no sense that the plaintiffs, who were mostly some of the largest television networks, would even bring this lawsuit. Services like Locast are doing them a favor by helping ensure that their channels actually get watched. As I've pointed out before, the only reason I ever watch their affiliates is thanks to Locast. Like many others, I don't have my own cable subscription, nor my own antenna. So I need a service like Locast to essentially rent me one so that I can watch the over-the-air programming on the public airwaves I'd otherwise be entitled to see. Suing Locast for having rented me that antenna basically says that they don't actually want viewers. And that declaration should come as a shock to their advertisers, because the bottom line is that without services like Locast I’m not watching their ads.

It also makes no sense for copyright law to want to discourage services like these. Not only are these public airwaves that people should be able to receive using whatever tools they choose, but cutting people off from this programming doesn't advance any of the ideals that copyright law exists to advance. Or, more practically, it deprives people of shared mass media sources and drives everyone instead towards more balkanized media we must find for ourselves online. With lawmakers increasingly concerned about people having to fend for themselves in building their media diets, it seems weird for law to effectively force them to. Especially after decades of policymaking deliberately designed to make sure that broadcast television could be a source of common culture, it would be a fairly radical shift for policy to suddenly obstruct that goal.

As it turns out, though, Congress has not wanted to completely abandon bringing broadcast television to the public. Not even through copyright law, where there's actually a provision, at 17 U.S.C. Section 111(a)(5) ("Certain Secondary Transmissions Exempted"), that recognizes rebroadcasting services as something worth having and articulates the dimensions that such a service would have to meet to not run afoul of the rest of the copyright statute. The salient language:

The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if [...] the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.

The Locast service, as provided by its non-profit parent Sports Fans Coalition NY, threaded that regulatory needle. Unfortunately, however, the district court disagreed. But the problem wasn't just that the court disagreed, but that it disagreed by reading into the statute language that wasn't there, and also that wouldn't make any sense to actually be in there for the provision to have any practical utility.

The crux of the decision hinged on how Locast made the money needed to support itself. The service was underwritten in two ways. One way – worth noting for the potential implications of the decision causing Locast to shut down but that was not particularly critical to the holding on its own – is from some other service providers.

SFCNY also generates income through donations from MVPDs, such as AT&T, Promotion and Advancement of Local Opportunities ("PALO") and Liberty Cable vision of Puerto Rico LLC. Some MVPDS integrate the Locast application in their own smart - TV platforms , and in the event of a channel blackout (which may result from a breakdown in retransmission consent negotiations between an MVPD and broadcast owner), those MVPDS can direct their customers to the Locast app so that there is no disruption in their live TV service. [p. 3]

The other was from user donations, and this source of income is what the court took issue with, even though the statute allowed it. Of course, the way the decision reads, the court seemed to be looking for reasons to find Locast outside of the statutory exemption. For example, it took issue with the fact that users could use the service without paying. It didn't like the fact that the service was ostensibly hobbled by periodic interruptions of ads requesting that users pay instead.

To avoid that interruption in service, users can pay $5 a month for "preferred" (i.e., uninterrupted) access to the service, or can request that the service stop displaying the donation requests based on their financial circumstances. Users who choose to pay receive the uninterrupted service for time correlating to the amount of the payment. For example, if the user pays the minimum $5 amount, she receives uninterrupted service for the entire month. [...] The obvious economic fact is that these "donations" are really a scale of fees for uninterrupted service, and it works. At present, Locast is almost fully funded by payments from users. [p. 3]

But as I've noted elsewhere, that concern doesn't make any sense. The statute doesn't obligate a rebroadcasting service to provide its service for free, and it certainly doesn't create any condition for how the service might be offered for free should the service choose to provide such an option. Unfortunately, however, the court seemed to infer there was one, and, moreover, that collecting any money in exchange for the better version of the service somehow amounted to a disallowed commercialized perk it was selling.

The payments defendants elicit from users are charges assessed on users to avoid constant service interruptions, regardless of whether defendants euphemistically call them publicly "recommended donations". Locast users pay the minimum $5 monthly fee in exchange for month- long, uninterrupted service . It is not merely a recurring gift to a charitable cause. It is of no consequence that a number of users employ the service without paying. SFCNY still solicits, and receives, substantial amounts in charges from recipients for its uninterrupted service. [p. 5-6]

On the contrary, the statute expressly says that the service can charge. Yet somehow the court construed the statutory language to prevent the service from actually asking for the money. In the wake of this decision, and before Locast opted to just shut down, the service first considered just not asking for the donations anymore, at least not as persuasively as it had been with the programming interruptions. But it may have opted for a more drastic response because it's questionable whether making this specific adjustment would have actually made the court happy, since the court seemed to have been going out of its way to find the service outside the statute in any way it could.

Including by finding that apparently Locast had made too much money:

In 2020, Locast's total costs (including depreciation) were $2.436 million. According to defendants , those costs "represent what it costs to operate the Locast service in 2020, when the Locast service began operating in 16 markets and gradually expanded to 25 markets." Locast's total revenue in 2020 was $4.519 million, comprised of $4.372 million from users and $147,161 from other sources. On those undisputed facts, in 2020 Locast made far more money from user charges than was necessary to defray its costs of maintaining and operating its service. [p. 6]

But the upshot of the court's reasoning is that service providers could never charge users enough to "defray the costs" of the service unless they used some sort of dynamic pricing, where the service adjusted its monthly charges on the fly to match its current budgetary requirements as divided across the current number of paying users it had in order to make sure it never accidentally collected too much money. The statute, of course, says no such thing. It says service providers can charge users. It is solely the court that has read in these extra requirements, and in a way that effectively nullifies the language Congress included by depriving the "it's ok to charge" language of any meaningful effect. In which case the only way such a service could potentially exist is with a single wealthy benefactor willing and able to underwrite the entire cost indefinitely. And if that were to be the case it would make the existence of such services so unlikely as to be illusory, rather than real things that copyright law enabled.

The court also didn't like what Locast did with its money, having dared to reinvest it in expanding its services to other regions.

Defendants aver that contributions from users are essential to the expansion of the Locast service. They argue that disallowing use of the assessments for that purpose would prevent expansion , which they say was not intended by Congress when granting the exemptions. But under the statute, income made from charges to recipients can only be used to defray the actual and reasonable costs of maintaining and operating the service, not of expanding it into new markets. The argument that Section lll(a)(5) should not "prevent" a natural process of expansion misconceives the statutory structure. Retransmissions (i.e., secondary performances of copyrighted matter) are already penalized ("prevented") by the Copyright Law in its main section. See 17 U.S.C. § 501 ("Anyone who violates any of the exclusive rights of the copyright owner . . is an infringer of the copyright or right of the author, as the case may be."). Nothing in Section 111 specifies that an expansion of the number of infringing transmissions is exempt from that law, and it is not for a court to infer that Congress really meant to allow them. It would have been simple for Congress to add one word to paragraph (5) to make it read ". . costs of maintaining, expanding, and operating the secondary transmission service." But expansion is nowhere mentioned, and it is therefore excluded from the short, tightly-crafted grant of exemptions." [p. 6]

It takes an incredibly limited read of the statute to interpret it this way, with this manufactured focus on "markets." The court seemed to assume that the service was simply born one day with infrastructure that would remain at that exact size forever and ever, regardless of whether it ever made sense to make further capital improvements. But the statute itself is not so prescriptive. It doesn't say that antennas can't be added, nor does it articulate any limitation as to where they can be added, because the rebroadcasting the service is still doing its allowed rebroadcasting regardless of whether its antennas are spaced two inches, two feet, or two thousand miles apart. In holding geographic expansion against the service to find it outside the statute, the court invented a requirement out of whole cloth, in conflict with the rebroadcasting Congress obviously intended to enable in codifying this provision in the first place.

All in all, it is a depressingly bad decision all around. Locast lost, but so did everyone else. Including channels that might have actually liked to have been rebroadcast, which have now lost the viewers who depended on Locast. And including channels that themselves depend on public support to exist, which are now dark to that very public that they need to support them, and whom they are supposed to serve. The plaintiffs have ruined it for everyone, and it prompts the question: if they are so offended by the idea of people being able to tune into their broadcasting, then why don't they give the spectrum back to the public so it that it can be allocated to someone who does want to make sure the public can benefit from broadcasting over its own airwaves? Because with this lawsuit these plaintiffs have ensured that no one can make use of this resource in a way that the public can reliably benefit from. And, sadly, with the court's blessing.

It's hard to say what will happen. There were some rumblings that Locast will appeal, but it might not have to. It finds itself in a terrible litigation position and could quite reasonably try to abandon the fight if it can extract an expedient settlement. That would leave this terrible decision on the books, chilling any other service that might like to avail itself of the rebroadcasting provision of the statute. And what could fix the situation then? Often, when courts get decisions wrong, Congress can go back and write a statute to implement the better policy. But here Congress already wrote that statute, and it just didn't matter.

Filed Under: copyright, non-profit, over the air tv, streaming, tv
Companies: aereo, locast

Daily Deal: The Web Development Crash Course Bundle

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

The Web Development Crash Course Bundle has 6 courses to help you become a master programmer. You'll learn about C++, Bootstrap, Modern OpenGL, HTML, and more. The courses will teach you how to create websites, how to program for virtual reality, how to create your own games, and how to create your own apps. The bundle is on sale for $25.

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

Bizarre Magistrate Judge Ruling Says That If Facebook Deletes An Account, It No Longer Needs To Keep Details Private

from the that-doesn't-make-any-sense dept

There have been a bunch of slightly wacky court rulings of late, and this recent one from magistrate judge Zia Faruqui definitely is up there on the list of rulings that makes you scratch your head. The case involves the Republic of Gambia seeking information on Facebook accounts that were accused of contributing to ethnic genocide of the Rohingya in Myanmar. This situation was -- quite obviously -- horrible, and it tends to be the go-to story for anyone who wants to show that Facebook is evil (though I'm often confused about how people often seem more focused on blaming Facebook for the situation than the Myanmar government which carried out the genocide...). Either way, the Republic of Gambia is seeking information from Facebook regarding the accounts that played a role in the genocide, as part of its case at the International Court of Justice.

Facebook, which (way too late in the process) did shut down a bunch of accounts in Myanmar, resisted demands from Gambia to hand over information on those accounts noting, correctly, that the Stored Communications Act likely forbids it from handing over such private information. The SCA is actually pretty important in protecting the privacy of email and messages, and is one of the rare US laws on the books that is actually (for the most part) privacy protecting. That's not to say it doesn't have its own issues, but the SCA has been useful in the past in protecting privacy.

The ruling here more or less upends interpretations of the SCA by saying once an account is deleted, it's no longer covered by the SCA. That's... worrisome. The full ruling is worth a read, as you'll know you'll be in for something of a journey when it starts out:

I come to praise Facebook, not to bury it.

Not quite what you expect from a judicial order. The order lays out the unfortunately gory details of the genocide in Myanmar, as well as Facebook's role in enabling the Myanmar government to push out propaganda and rally support for its ethnic cleansing. But the real question is how does all of this impact the SCA. As the judge notes, since the SCA was written in 1986 it certainly didn't predict today's modern social media, or the questions related to content moderation, so this is a new issue for the court to decide. But... still. The court decides that because an account is disabled... that means that the communications are no longer "stored." Because [reasons].

The Problem Of Content Moderation

At the time of enactment, Congress viewed ECS and RCS providers as mail/package delivery services. See Cong. Rsch. Serv., R46662, Social Media: Misinformation and Content Moderation Issues for Congress (2021), https://crsreports.congress.gov/product/pdf/R/R46662. This view failed to consider content moderation; mail/package delivery services have neither the ability nor the responsibility to search the contents of every package. Yet after disinformation on social media has fed a series of catastrophic harms, major providers have responded by taking on the de facto responsibility of content moderation. See id. “The question of how social media platforms can respect the freedom of expression rights of users while also protecting [users] from harm is one of the most pressing challenges of our time.” ...

This Court is the first to consider the question of what happens after a provider acts on its content moderation responsibility. Is content deleted from the platform but retained by the provider in “backup storage?” It is not.

That obviously seems like a stretch to me. If the company still retains the information then it is clearly in storage. Otherwise, you've just created a massive loophole by saying that any platform can expose the private communications of someone if they first disable their account.

The court's reasoning, though gets at the heart of the language of the SCA and how it protects both "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof" or "any storage of such communication by an electronic communication service for purposes of backup protection of such communication." It says the first bit can't apply because these communications had reached their "final destination" and were no longer temporary. And it can't be "backup" since the original content had been deleted, therefore there couldn't be any "backup."

Congress’s conception of “‘backup’ necessarily presupposes the existence of another copy to which this [backup record] would serve as a substitute or support.” Id. Without an original, there is nothing to back up. Indeed “the lifespan of a backup is necessarily tied to that of the underlying message. Where the underlying message has expired . . . , any copy is no longer performing any backup function. An [ECS] that kept permanent copies of [deleted] messages could not fairly be described as ‘backing up’ those messages.”

But... I think that's just wrong. Facebook retaining this data (but blocking the users from accessing it themselves) is clearly a "backup." It's backup in case there is a reason why, at some future date, the content does need to be restored. Under the judge's own interpretation, if you backup your hard drive, but then the drive crashes, your backup is no longer your backup, because there's no original. But... that's completely nonsensical.

The judge relies on (not surprisingly) a case in which the DOJ twisted and stretched the limits of the SCA to get access to private communications:

Nearly all “backup storage” litigation relates to delivered, undeleted content. That case law informs and supports the Court’s decision here. “Although there is no binding circuit precedent, it appears that a clear majority of courts have held that emails opened by the intended recipient (but kept on a web-based server like Gmail) do not meet the [backup protection] definition of ‘electronic storage.’” Sartori v. Schrodt, 424 F. Supp. 3d 1121, 1132 (N.D. Fla. 2019) (collecting cases). The Department of Justice adopted this view, finding that backup protection “does not include post-transmission storage of communications.” U.S. Dep’t of Just., Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 123 (2009), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf. The Gambia argues for following the majority view’s limited definition of backup storage. See Sartori, 424 F. Supp. 3d at 1132; ECF No. 16 (Pet’r’s Resp. to Surreply) at 5–6. If undeleted content retained by the user is not in backup storage, it would defy logic for deleted content to which the user has no access to be in backup storage.

As for the argument (which makes sense to me) that Facebook made that the entire reason for retaining the account shows that it's backup, the judge just doesn't buy it.

Facebook argues that because the provider-deleted content remains on Facebook servers in proximity to where active content on the platform is stored, both sets of content should be protected as backup storage. See Conf. Tr. at 76. However, the question is not where the records are stored but why they are stored. See Theofel, 359 F.3d at 1070. Facebook claims it kept the instant records as part of an autopsy of its role in the Rohingya genocide. See Conf. Tr. at 80–81. While admirable, that is storage for self-reflection, not for backup.

The judge also brushes aside the idea that there are serious privacy concerns with this result, mainly because the judge doesn't believe Facebook cares about privacy. That, alone, is kind of a weird way to rule on this issue.

Finally, Facebook advances a policy argument, opining that this Court’s holding will “have sweeping privacy implications—every time a service provider deactivates a user’s account for any reason, the contents of the user’s communications would become available for disclosure to anyone, including the U.S. government.”.... Facebook taking up the mantle of privacy rights is rich with irony. News sites have entire sections dedicated to Facebook’s sordid history of privacy scandals.

So... because Facebook doesn't have a great history regarding the protection of privacy... we can make it easier for Facebook to expose private communications? What? And even if it's true that Facebook has made problematic decisions in the past regarding privacy, that's wholly separate from the question of whether or not it has a legal obligation to protect the privacy of messages now.

Furthermore, the judge insists that even if there are privacy concerns, they are "minimal":

The privacy implications here are minimal given the narrow category of requested content. Content urging the murder of the Rohingya still permeates social media. See Stecklow, supra (documenting “more than 1,000 examples . . . of posts, comments, images and videos attacking the Rohingya or other Myanmar Muslims that were on Facebook” even after Facebook apologized for its services being “used to amplify hate or exacerbate harm against the Rohingya”). Such content, however vile, is protected by the SCA while it remains on the platform. The parade of horribles is limited to a single float: the loss of privacy protections for de-platformed content. And even that could be mitigated by users joining sites that do not de-platform content.

Yes. In this case. But this could set a precedent for accessing a ton of other private communications as well, and that's what's worrying. It's absolutely bizarre and distressing that the judge doesn't bother to think through the implications of this ruling beyond just this one case.

Prof. Orin Kerr, one of the foremost experts on ECPA and the SCA, notes that this is both an "astonishing interpretation" and "stunning."

The entire ruling is concerning -- and feels like yet another situation where someone's general disdain for Facebook and its policies (a totally reasonable position to take!) colored the analysis of the law. And the end result is a lot more dangerous for everyone.

Filed Under: backup, deleted profiles, ecpa, gambia, myanmar, privacy, sca, stored communications act, zia faruqui
Companies: facebook

FCC's 'New' Robocall Plan Isn't Particularly New, Won't Seriously Reduce Robocalls

from the half-measures-and-good-intent dept

So for a long time the FCC has made "fighting robocalls" one of their top priorities. Though with Americans still receiving 132 million Robocalls every single day, you may have noticed that these efforts don't usually have the impact they claim. Headlines about "historic" or "record" FCC robocall fines usually overshadow the agency's pathetic failure to collect on those fines, or the fact that thanks to recent Supreme Court rulings, the agency is boxed in as to which kind of annoying calls and spam texts it can actually police.

Which brings us to last week, when the agency announced yet another major action, this time proposed rule updates that would make it harder on the "gateway" companies (which connected overseas callers to U.S. phone networks) and the smaller phone operators that are the origins of so much of the problem. While the FCC's plan made a lot of headlines, experts were quick to note that most of the improvements were still far from being implemented:

"The plan as-is consists of good ideas, but I don't think it's going to make a big difference in the next couple of years,” Brad Reaves, an Assistant Professor of Computer Science at NC State University told Motherboard.

The proposal is just a proposal for now, and “gateway providers” still aren’t covered by existing rules. Neither are smaller providers with less than 100,000 customers, who’ve been exempted from the rules until 2023. “These two types are the providers that most in the industry believe are serving the robocallers,” he said."

In short, the FCC's big plan for robocalls was really just a plan to consider doing something about robocalls, eventually. To be fair, the FCC is doing something relatively good: it's forcing wireless carriers of all sizes to implement SHAKEN/STIR call authentication tech, which helps combat robocall spoofing. It's also requiring companies that haven't implemented this caller verification tech to track their progress in an FCC Robocall Mitigation Database.

But there are two other reasons that the FCC's well-hyped "solution" to robocalls isn't much of one. For one, the agency is boxed in thanks to a recent Supreme Court Facebook ruling (Facebook, Inc. v. Duguid) that left it hamstrung when it comes to policing spam texts or live-person marketing and scam calls made with an autodialier:

"The rules were, until April 1st of this year, that our cellphones were protected not only from pre-recorded calls, but unwanted texts, and unwanted live calls made by an autodialer,” Saunders said, referring to the Telephone Consumer Protection Act (TCPA). But in April a Supreme Court ruling (Facebook, Inc. v. Duguid) effectively nullified the TCPA’s ban on autodialed calls and texts to cell phones without your consent. So while there are growing but sometimes inconsistent restrictions on pre-recorded robocalls, annoying spam texts and many live calls made with auto dialers remain perfectly legal."

The other major problem is that the existing U.S. rules about robocallers are heavily influenced by the lobbying of numerous industries and telemarketing interests. That has historically resulted in rules and enforcement that fixate exclusively on "scam" callers, while providing big loopholes for "legitimate" telemarketers, spammers, and debt collecting robocalls who can be every bit as unwanted, and who often use the same exact tactics:

"Saunders’ Congressional testimony has highlighted how scammers often comprise the minority of overall robocalls. Many are debt collectors working for banks or telecom providers, who relentlessly harass consumers they know can’t pay their bills. Efforts to rein in those types of calls have often taken a backseat thanks to lobbying pressure."

So yes, some of what the FCC is doing is helping. Authentication tech helped trigger an 8% reduction in overall robocalls in August, though with this kind of cat and mouse game it's not clear if that reduction will last. But the bigger problem remains that the FCC's authority has been boxed in by the Supreme Court, and lobbying has resulted in existing rules often being a little too friendly to equally obnoxious, "legitimate" telemarketers. The reality is that Americans receive 5.5 million robocalls every hour. That's an absolute tidal wave that's not slowing down without significant changes on multiple fronts.

Filed Under: fcc, robocalls, spam, telemarketing

Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can't do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can't do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here's the court's description of this case's origination:

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (“ICAC”). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new "standard procedure" is to obtain a warrant before opening a CyberTip "when the provider has not viewed the images." The court notes it is "not clear from the record" that this is standard practice at other ICAC offices, or whether they've also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson's email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that's all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn't mean there's no subjective expectation of privacy in one's own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals’ files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone else’s house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third party’s privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won't salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it's always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court's refusal to suppress the evidence. But it's now crystal clear in the Ninth Circuit: get a warrant.

Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant