The Night The United States Supreme Court Cancelled Law

from the obviating-law-school dept

Last week's news about Justice Barrett fretting about the Supreme Court being seen as partisan calls to mind the old joke about a defendant on trial for murdering his parents and begging the court for mercy because he's an orphan. If you've created the mess you find yourself in, you have no one to blame but yourself.

Nevertheless, there is credence to her protest (which other justices have since echoed) that the way the Court has acted recently is not actually "partisan." After all, Republican-appointed Justice Roberts has been frequently joining the Democrat-appointed justices of late, which we wouldn't expect if political loyalties were all that were at the root of all Supreme Court actions. As Justice Barrett herself suggests, to understand what the Court has been doing of late, we need to look deeper:

“To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” said Barrett[.] “I think we need to evaluate what the court is doing on its own terms.”

So let's do what she suggests and evaluate the Court's actions on its own terms. Because what we'll find is even worse than partisanship.

Justice Barrett argues that what the public is seeing is merely a difference in "judicial philosophies," as if the prevalent splits among justices are but two sides of the same coin. But what we are seeing from this Court is hardly a case of the justices simply calling balls and strikes differently according to their respective vantagepoints. Instead we are seeing the majority deploy a "judicial philosophy" willing if not eager to erode the previously stalwart foundations upon which American law has historically depended. It is a philosophy of little more than legal nihilism. And it represents a profound change in the nature of the Court of enormous if not cataclysmic consequence.

Trouble has been brewing for some time now, with the majority's increasing use of its "shadow docket" to wield a heavy hand on legal questions without any meaningful opportunity for briefing or substantive argument by anyone affected. Instead of carefully weighing the pros and cons of the particular issue raised by the case before them in an open and transparent way, as the Court traditionally has on matters of such significance, they are instead making ad hoc and inconsistent procedural decisions behind the scenes, despite the fact that these sorts of decisions are having huge practical effect and impacting people's rights just as much they would in any case brought before them for their full and reasoned review.

This problematic practice culminated a few weeks ago with its rushed, unsigned, barely two-page, late-night order in Whole Women's Health v. Jackson, when the majority declined to exercise its procedural powers to stop Texas's SB8, a facially unconstitutional law that offended the Constitution in almost every way a law possibly could, from coming into force. As a result, rather than upholding the Constitution, or protecting the public from a wayward state actor, or even acting consistently with its own principles of jurisprudence, that slim majority, with only a few, ill-supported sentences, casually abdicated the Court's role as a protector of liberty and ruled instead as arbitrary, unaccountable autocrats.

There are at least two key reasons why the majority's behavior here is so deserving of such excoriation. The first relates to the specious way the majority misapplied procedural rules as convenient cover for producing substantively consequential outcomes, apparently deliberately, although even if it had been unintentionally it would still be a problem. Procedural rules exist to help ensure that justice can be meted out timely and fairly. While it's true that in this case the Supreme Court found itself in the position of having to clean up the mess caused by the Fifth Circuit's own procedural hijinks – which had abruptly, and dubiously, snatched the Texas statute away from the district court's established review process and thus made it practically impossible for it to act before the law was supposed to go into effect – the Supreme Court's astonishing refusal to take corrective action is what made this review ultimately impossible. And it did it by turning those very same procedural rules designed to help administer justice into outright obstacles obstructing it, opting instead to hide behind them with nothing more than a brief prevarication explaining why these rules somehow, and suddenly, had made it, the most powerful court in the land, unusually powerless to prevent a clearly unconstitutional law from going into effect.

In failing to act the Court also unilaterally overruled the long-standing judicial preference in American courts for preserving the status quo when there is a reasonable chance of a law potentially causing an improper injury before the matter has been able to receive appropriate review. And not only did the Court ignore that concern, but it all but invited those injuries to occur. The statute in question had basically walked up to several areas of settled precedent protecting constitutional rights and proverbially punched them all in the nose, openly daring the Supreme Court to come after it. Yet, shockingly, the majority declined to.

This refusal to defend the Court's own precedents was yet another way the majority's behavior was aberrant and destructive. Precedent is what gives the law stability, because once the Court has spoken we can all know where we stand. Sure, new cases will come up and be litigated, but the questions then will be about if and how precedent applies to the new situation. Sometimes this inquiry may result in the narrowing or limiting a precedent's reach, but precedent has historically been outright nullified only on the rarest of occasions and only when there has been a material change in the circumstances upon which the Court's reasoning had rested, like a new statute, a new Constitutional amendment (rare), or some other fundamental shift in society prompting a second look by the Court.

And even then the Court's practice has not been to simply ignore or overturn its previous rulings; rather, it would generally issue decisions to explain what holdings were being revisited, and why, so that the new decisions could take on the same weight of recognized authority the previous precedent once had. But that standard went out the window on that Thursday night when it issued the Whole Women's Health order. With this order it signaled that it is happy to cavalierly trash the Court's previous rulings, and, worse, with no explanation. While reasonable minds may disagree about the wisdom of a particular Court decision, everyone should be able to read its analysis to understand how the Court arrived at its conclusion. But there is nothing here in this order to legitimize the Court's sudden and drastic rejection of all the past precedent the statute implicated. Worse, in so rejecting it, it has told the world that we can never know what the law is, because it can change instantly, depending entirely on the majority's mood of that moment.

Such a reality is untenable. No matter what you think of the Texas statute, even if you believe in or support its policy goals, what the Supreme Court did on this Thursday night should still strike fear in your heart. Because the impact of what it did transcends any particular law or policy. Not only did it undermine its own esteem as an institution, but it made America unsustainable, a hollowed-out Potemkin Village of abandoned constitutional principle, and Americans no better off than the wretched citizens of the ancient feudal empire that inspired the story.

What happened on that Thursday night was the catastrophic undermining of not only the Court's own legitimacy but the legitimacy of the entire American legal system. It left all our laws and freedoms, and even the very adjudication of these questions, subject only to the capricious whim of the handful of people with enough power to unilaterally decree, with no argument, consideration, or any need to justify themselves, how we must live our lives. We might as well replace their black robes with crimson ermine and sit them on thrones, so at least we can all see and acknowledge the sheer unchecked power they now rule us with.

This is not how our constitutional order has worked. It is not how our constitutional order can work. Yes, courts have always had lots of power. And the Supreme Court in particular has always had an enormous amount of power to shape our legal world. But there were always apparent rules tempering this power. Which meant that such things as reason, persuasion, equitable procedure, predictable precedent, transparency, and notions of fair play could function as guiding pillars within which advocacy took place so that, win or lose, we all could believe in the justice of the result. But not anymore. With this order all those basic tenets have now been bulldozed. Even any sort of reasonable standard for injunctive relief is out the window. As Justice Kagan noted in her dissent, the Court's unconstrained behavior has become increasingly "unreasoned, inconsistent, and impossible to defend." In other words: our law has itself become lawless.

Supreme Court justices are of course human beings and therefore fallible, and the Supreme Court itself is a human institution that necessarily has to evolve as the society it serves does as well. But the concern is not that the Supreme Court may be evolving, because evolution is one thing; radically altering the operation of the Court practically overnight is another. And what the majority did can hardly be explained away as mere mistake, as in, "Oops, five justices' pens slipped and they accidentally repudiated decades if not centuries of past practice and precedent." But when even the most generous view of what happened is incompetence it severely undermines the esteem of the institution and those who inhabit it.

Nor can we say it's simply a matter of one bad decision. Bad decisions have happened before, and while it's never good when they do, as long as the system still works they can eventually be overcome. But what happened here represented a fundamental shift in the way the Court exercises its power, from one of predictable certainty to one of subjective judicial impulse, and there's no overcoming that change.

How could we? For those of us connected to the legal profession, what power would we still possess as practitioners to influence the cause of justice in this new system? What skills could we still exercise? How could we continue to play our own constitutional role in furthering justice in the courts when everything we were taught in law school about the American legal system has just suddenly been rendered moot?

Yes, life will go on for most tomorrow, and the day after, and the day after that. But for how long can we deceive ourselves that everything remains normal when the new normal is anything but? When the Supreme Court can so dramatically change our understanding of the law and the scope and dimension of our rights with little more than a snap of its fingers, how are we to live in a society predicated on the rule of law and guaranteed rights? How can we even tell ourselves that we are? We're like the coyote that has run off the cliff, and sooner or later we're going to notice that there is nothing supporting us anymore. And then where will we be?

Filed Under: abortion, civil rights, laws, status quo, supreme court, texas

Daily Deal: AdGuard Family Plan

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

AdGuard combines the world's most advanced ad blocker, a whole privacy protection module, and a parental control tool—all working in one app. This amazing software deals with annoying ads, hides your data from a multitude of trackers, protects you from malware attacks, and lets you restrict your kids from accessing inappropriate content. For $30, this deal lets you load AdGuard on up to 9 devices (desktop and mobile), so the whole family can be covered. You'll also receive a $30 store credit to use on future purchases.

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

Unsealed Documents In Nunes' Family Farm's Lawsuit Against Ryan Lizza Raise More Questions About The Lawsuit Than They Answer

from the you-did-what-now? dept

The saga of Devin Nunes' family's lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes' lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes' relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.

As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Still, much of the information remained redacted. Law professor Eugene Volokh filed a brief asking the court to unseal some of the documents in the case, and late last week the court agreed. So now we get to see a lot more, and as Elizabeth Dye at Above the Law points out, the new details show that this lawsuit "is even grosser than expected."

The newly unredacted documents highlight the evidence Hearst has found, through the discovery process that at the very least strongly calls into question the immigration status of employees of NuStar Farms. Considering that's the only issue left in the case, it seems quite incredible that the farm and Nunes' family would continue to push this lawsuit -- though, as other recent filings have shown, it's unclear how much Nunes' family actually knows about the lawsuit that was filed in their name. A failed deposition redaction notes that family members admitted to not knowing who was paying for the lawsuit, and that they weren't looking for any money in return (even though the lawsuit requests $25 million).

According to the filing:

In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out-of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.

Also, this:

Plaintiffs have had little involvement in the prosecution of their own case. See NuStar 30(b)(6) Corporate Rep. Tr. at 10:9-15:18 (corporate representative testifying that he never saw the 30(b)(6) topics and did not prepare); Lori Nunes Tr. at 185:3-22 (testifying that she did not review SSA records ordered to be produced to Plaintiffs); Anthony Nunes, III Tr. at 303:8- 308:11 (same); Anthony Nunes, Jr. Tr. at 97:13-100:15 (same); Lori Nunes Tr. at 117:23-124:9 (testifying that she did not know where information in interrogatory response came from but suspecting it came from counsel); see also Toni Dian Nunes Tr. at 86:10-89:17, 112:25-116:6 (testifying that she never saw subpoena directed to her and accepted by Plaintiffs’ counsel and that some records produced in response were not actually hers).

And yet the case pushes forward on the issue of the immigration status of the employees of the farm, and the formerly redacted, but now unsealed, bits of Esquire's filing are incredibly eye opening and would make most people question why this lawsuit is being fought in the first place. From the now unsealed filing:

To defend against those allegations, Defendants obtained in discovery from NuStar records concerning its hiring of workers. These include (i) USCIS Forms I-9 and accompanying employee identification cards for most current and former employees, and (ii) two "No-Match letters issued to NuStar by the U.S. Social Security Administration ("SSA")... Defendants also obtained from the SSA, pursuant to this Court's order... a chart indicating whether or not the Social Security Numbers ("SSNs") that the workers provided to NuStar matched the SSA's records...

Those documents demonstrate that the six subpoenaed NuStar employees—who were employed by NuStar before, during, and after the article was published, according to NuStar's verified response to Interrogatory No. 1, could have criminal exposure under 8 U.S.C. §1324c, and that their testimony may incriminate them. What follows is a small sampling of the reasons.

First, the SSA responded that the Social Security numbers reported by NuStar as associated with each of the subpoenaed employees does not match the SSA's records.... This authoritative, self-authenticating document from the United States Government confirms that the SSA has no record of having issued to these workers the SSNs that NuStar recorded at the time of hire.

Second—and consistent with this—NuStar received letters from the SSA in 2019 (for tax year 2018) and 2020 (for tax year 2019) notifying them that the majority of SSNs provided on their employees’ Forms W-2 did not match the government’s records. That is, in 2018, 20 out of 27 employees came back as a “no match,” and in 2019, 14 of 19 came back as a “no match.”... Those letters stated that NuStar could use a free online portal to learn which employees’ numbers did not match, and to thereafter follow up with the respective employees to correct the errors on the W-2 forms.... This is important if the employees are here legally, as otherwise the SSA will not be able to accurately account for their Social Security benefits. Tellingly, Plaintiffs did not produce any documents indicating they had done so.

Third, the Forms I-9, social security cards, and identification documents are, in many instances, insufficient and/or fraudulent on their face. This was on stark display in the (yet-completed) deposition of [REDACTED], the first NuStar employee to testify.

As AboveTheLaw notes correctly, having a No Match letter does not mean that an employee is an undocumented immigrant. But, it certainly raises some questions about their documentation. And, if the Nunes family's main concern about the Lizza article was it suggesting the farm might have employed undocumented workers (which, to be clear, the article never actually says -- it merely highlights how the industry relies on undocumented workers, and it is quite common for such undocumented workers to be employed on farms around the Nunes' farm), perhaps the dumbest move Nunes and family could make is to sue for defamation over those very claims. Because unlike an old Esquire article that doesn't actually accuse the farm of hiring such workers, now (1) it's definitely in the news again, and (2) there's more evidence coming, and what's been shown so far does not look good at all.

Indeed, the filing goes even deeper in raising serious questions about the documentation status of NuStar's employees.

On his I-9, bearing a date in 2007, [REDACTED] stated that he was a United States citizen.... However, before his attorney (from the Brown Winick firm in Des Moines, who met his client for the first time that day) advised him to invoke his Fifth Amendment right, [REDACTED] testified that he was not a United States citizen and, instead, was and is a legal permanent resident holding a government-issued green card.... This, of course, suggests [REDACTED] made a false statement under penalty of perjury on his Form I-9.

Moreover, Section 2 of the Form I-9 is not filled out by the employer, and the signature on the Form I-9 does not appear to match the signature on the produced 2017 Form W-4 for [REDACTED] .... This raises questions as to how [REDACTED], who does not read English, was able to complete the form without assistance, and whether someone at NuStar completed it for him without disclosing that fact as required on the form itself. These are questions Defendants’ counsel intended to explore, until [REDACTED] counsel from the Brown Winick firm instructed his client to assert his Fifth Amendment right....

Most significantly: The resident alien card that [REDACTED] proffered to NuStar in order to gain employment is, on its face, fraudulent. [REDACTED] proffered card states that his class of admission to the United States is “W16.” ... “W16” is limited to persons who entered the United States without inspection prior to January 1, 1982, and were subsequently granted legal permanent resident status. See Dep’t of Homeland Security, Immigrant Classes of Admission, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents/ImmigrantCOA (last visited May 15, 2021); ... However, date of birth, as stated on his proffered card and as he testified, is [REDACTED].... It is impossible for [REDACTED] to have been granted permanent resident status under the W16 class of admission, as he was born almost three years after the cut off for that class.

If the entire case hinges entirely on whether or not Lizza had no basis to believe that the farm employed undocumented workers, this is... probably not the way to make that case.

Also unsealed was Steven Biss's response to this filing, claiming that none of the above matters:

The fact that the social security numbers reported by NuStar did not match the SSA’s records is irrelevant. Inclusion of a worker’s name on a no- match letter makes no statement about the worker’s immigration status. Mismatches can result from a variety of reasons, including typographical errors (misspellings), clerical errors, mis-transposition of a number, an incomplete W-4, mistakes by the SSA, name changes, fraud/identity theft.

There's also a lot of table pounding about how (1) the article is false and quotes were "fabricated" by Lizza, (2) that none of the documents suggest the employees are undocumented or face criminal exposure, (3) that the only "misconduct" was from Lizza and Hearst, and (4) all of this is intended to "harass" the plaintiffs. You can read the filing for yourself at the link above or embedded below, but to me they are wholly unconvincing. The filing also insists that (1) Biss and NuStar are not pressuring its employees to not take the 5th, and also that (2) they "will not assert the Fifth Amendment or refuse to answer any questions." That seems quite odd given that the one transcript that has been released certainly showed the then lawyer of the employee suggesting the employee assert his 5th Amendment rights.

Esquire and Lizza then responded with the now unsealed document suggesting that the court really ought to appoint "competent, independent counsel" to represent the employees of NuStar farms.

Eventually the court mostly sided with Hearst and Lizza, noting that there was no harassment here:

During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment.... Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions

Similarly, the magistrate judge seemed at least somewhat concerned about Biss's actions:

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The court, however, initially declined to appoint a lawyer for the employees, because Biss insisted that one had already been found for them, though he could not name her beyond "Jennifer." The hearing transcript is quite incredible on this:

THE COURT: However, I understand that in this circumstance, that Mr. Biss, or perhaps it's the Nuneses, have arranged to have another lawyer or lawyers appear on behalf of these witnesses. Is that the case, Mr. Biss?

MR. BISS: Yes, sir, it is.

THE COURT: All right. Who is it that you've arranged to have appear?

MR. BISS: I know her name is Jennifer. I don't know her full name, but I was involved in engaging her; but NuStar engaged her, so she -- and she is available.

THE COURT: What do you mean that she is available? For us to talk to now or just available for any of these depositions?

MR. BISS: She's available for the depositions, whenever they are scheduled.

THE COURT: Okay. I'd like you to figure out who that person is and notify the Court and notify opposing counsel of that today. I know you expressed some concern that whoever would be designated to represent these defendants would be -- I don't know if you used the word "harassed," but I don't -- encouraged to assert their Fifth Amendment rights, and I don't think there's -- I'm not worried about Iowa lawyers who are admitted to the bar being able to vigorously assert their clients' rights. I think if I were in Jennifer's position and someone who knew a lot more about the underlying case -- whether it was you, Mr. Biss, or someone from the defendants who knew more about the underlying documents and the potential jeopardy my clients might face -- was calling me to talk to me about that, I'm not sure I would consider that harassment. It might be somewhat welcome so that I can accurately -- I mean, effectively defend my clients in their depositions. So that's not a worry that I have.

Again, all of this is not how these things normally work, and it remains somewhat bizarre that Nunes' family is still moving forward with this case.

It's unclear what happened with "Jennifer" but a few weeks later, in early July, the court reversed course and appointed counsel to the employees:

On June 17, 2021, I entered an order declining to appoint counsel for six of Plaintiffs employees who are witnesses. Because of the distinct possibility that these witnesses may not comprehend the jeopardy they may face and because they may not be able to afford counsel, I conclude it is necessary to appoint counsel from the CJA panel for the witnesses. Therefore, I appoint John P. Greer of Greer Law Office in Spencer, Iowa to represent the employee witnesses. The prior order at 119 remains unmodified in all other respects. This Order appointing counsel is subject to Plaintiffs employees satisfying the Court of their qualifications for court-appointed counsel under 18 U.S.C. Section 3006A.

This case is certainly quite messy, but it remains difficult to see any way in which this case makes sense for the Nunes' family beyond as a harassment technique itself. It continues to retain all the hallmarks of a SLAPP suit, and serves as a strong reminder that Iowa needs an anti-SLAPP law and we need a federal anti-SLAPP law to go with it as well.

Filed Under: anti-slapp, defamation, devin nunes, immigration, immigration status, ryan lizza, slapp, steven biss
Companies: hearst, nustar

Apple Training Videos Highlight Company's Adversarial Stance On Affordable Repairs

from the this-one-goes-to-11 dept

Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are well established. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on essential right to repair legislation, which only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.

The company's policies are also pretty ingrained in the company's employee training process. New leaked Apple training videos obtained by Motherboard show how Apple trains its employees to routinely steer consumers away from less expensive options, and toward "authorized" Apple repairs. Repairs that, not at all surprisingly, wind up costing the consumer significantly more dough:

"Leaked training videos Apple made for its authorized repair partners show how the company trains repair technicians to undermine third party companies and talk customers into buying more expensive first party repairs...For years, Apple has made it harder for independent repair stores to fix phones, nudging customers to go to Apple stores instead. In response, there's been a rising right-to-repair movement that wants to make it easier for people to repair their own stuff."

The motivation for these behaviors is obvious: if users are repairing or recycling their iDevices, that means fewer device sales and more customers wandering outside of Apple's ecosystem. Apple routinely obfuscates this obvious self interest under claims that it's exclusively worried about consumer safety and security, like that time it claimed that Nebraska would become a "mecca for hackers" (oh no!) if the state embraced legislation protecting a consumer's right to repair their own devices.

In response to complaints Apple has made a few minor concessions over the years, such as the launch of an "Apple Authorized Service Providers" (AASP) program in 2016, designed to lower its repair walls slightly. But participants in this program remain heavily restricted as to what they can actually do, something that -- much like its broader opposition to right to repair in general -- is usually framed as a consumer health and safety issue, and not just Apple being greedy about repair revenue and the desire for boosted new phone sales:

"AASP launched in 2016 as a way for some independent stores to make basic repairs to Apple devices. AASP stores must open their stores to unannounced audits by Apple, and face a mountain of restrictions on what they can and can’t fix."

The consumer, market, and environmental harms of Apple's quest to monopolize repair are pretty well documented at this point. The company is being dragged, kicking and screaming, up the right to repair mountain, and there are still many miles to go until meaningful reform is implemented internally. At some point Apple execs may find it smarter to get out ahead of right to repair legislation by implementing voluntary and truly meaningful reform, but it's pretty clear we're nowhere near that point yet.

Filed Under: affordable repairs, ipads, iphones, right to repair, upsales
Companies: apple

DOJ Now Investigating Florida Sheriff's Office For Using A Federal Grant To Fund Its 'Predictive Policing' Harassment Programs

from the claw-it-back dept

The Pasco County (FL) Sheriff's Office believes in "intelligence-led policing." This is its formal slang for harassing residents until (in the office's own words) "they sue or move." The Sheriff's Office turns anyone with a criminal background into a suspect-for-life. Deputies visit residences and residents on the "intelligence-led" shit list multiple times a month, demanding answers to questions they have no business asking. When residents fail to comply, nuisance (in every sense of the word) citations are issued for things like uncut grass or missing mailbox numbers.

It doesn't really matter whether the Sheriff's Office believes its own PR bullshit. It is fully engaged in harassing as many residents as possible. That's why it's allowed its so-called predictive policing program to infiltrate local schools, subjecting minors (and their families) to the same harassment previously limited to adults with criminal records. Almost anything can trigger unwelcome interactions with the office's deputies, including slipping grades, missed school days, or simply being the victim of, or witness to domestic violence.

Local schools are apparently fine with this. They've been sharing student records with the Sheriff's Office. And the Sheriff's Office has been sharing this info with officers. Both of these actions appear to violate federal and local student privacy laws. Not that the Sheriff's Office cares. It says it has done nothing wrong -- only availed itself of records shared with it (unlawfully) by schools.

The exposure of these programs by the Tampa Bay Times has led to multiple investigations and accusations of lawbreaking. One of these investigations involves the federal government, which makes it clear it's not just the locals that find the Sheriff's Office's programs abhorrent. The Department of Education opened an investigation in April to determine whether the in-school "intelligence-led policing" violated federal student privacy laws.

There's a new federal investigation underway. The Department of Justice wants to know what the fuck is going on in Pasco County, Florida. (h/t WarOnPrivacy)

The U.S. Department of Justice is conducting an “intensive review” of the Pasco Sheriff’s Office’s latest intelligence program, federal officials said this week.

The Justice Department sent a letter to the Sheriff’s Office on Aug. 6 — two weeks after the Tampa Bay Times reported that the Sheriff’s Office had promised increased police scrutiny for people whose criminal histories included violent crimes and drug offenses.

The Justice Department’s letter raised concerns about the methodology used to identify targets, communications with the community and the “insufficient” coordination with relevant law enforcement agencies.

The DOJ's interest no doubt has something to do with the Tampa Bay Times' incredible reporting. But it also wants to know why it gave the Sheriff's Office $700,000 if it was just going to use it to violate the terms of the Bureau of Justice Assistance grant.

This is from the DOJ's letter [PDF] to the Pasco County Sheriff's Office:

Agencies that receive SPI funding are expected to engage members of their communities as allies in reducing violence, ensure transparency in their crime reduction approaches whenever feasible, and establish innovative and effective working relationships with citizens and community leaders to gain support for their proposed policing initiatives. Trust, and building trust, is at the core of SPI funding.

But:

PCSO recently circulated the attached letter to individuals regarding a PCSO-run program (the “PCSO program”), which claimed to be “in cooperation with the Department of Justice’s Strategies for Policing Innovation Initiative.” However, the letter does not adequately depict the dedicated training and technical resources under SPI provided by the Department, nor does it adequately describe the requirements for greater community engagement required for SPI’s success.

And:

We also have concerns regarding the methodology used to identify individuals for inclusion in the PCSO program; the name of the program; communications about the program; the lack of involvement and communication with the greater community about the program; and the insufficient coordination with relevant law enforcement stakeholder groups. These shortcomings have the unfortunate consequence of eroding trust in the community, rather than building trust. Given this, and given the goals of SPI, BJA will undertake an immediate assessment of the activities funded under this grant award.

Brace for some federal damnation. Also, brace for opening up the Pasco County coffers to… um… cough up the $700,000 misused by the Sheriff's Office to (and I will quote here) "erode trust in the community."

The Sheriff's Office has responded [PDF]. And it claims it is completely baffled that the DOJ would think its BS predictive policing/targeted harassment program would undermine trust in the community it's supposed to be serving. Instead, it says it followed the instructions given to it by the Trump DOJ.

The Pasco Sheriff's Office (PSO) is in receipt of your correspondence dated August 6, 2021 re- garding the Smart Policing Initiative grant awarded to PSO in 2018. After careful review of the letter, we are left confused as to the origins of the concerns and intentions expressed by the Bureau of Justice Assistance (BJA). Over the last two years, PSO has been working hand-in-hand with the subject matter experts (SMES)' assigned by BIA to implement this grant. In fulfilling the conditions of the grant, PSO actively collaborates with the BJA-assigned SMEs as well as the University of South Florida (USF) in research partnership and follows all guidance and directives they provide. The written feedback provided by these SMEs included phrases such as “excellent job!” and “the messaging was delivered well,” and referenced the “fantastic partnerships” PSO established with the SPI project. Yet for reasons unknown to PSO, your letter directly contradicts the guidance we have been provided over the last two years.

No doubt the current DOJ (headed by Merrick Garland) takes a different view of community-oriented policing than the DOJ led by Jeff Sessions and Bill Barr did. If there's any confusion, it's due to the DOJ reining in its focus on civil rights violations under Donald Trump and its reemergence post Trump as an agency that will at least engage in investigations of problematic law enforcement agencies, even if it's not that great at delivering sustainable results.

Too bad. Meet the new boss, not quite the same as the old boss. Flow my tears, the sheriff who didn't want to comprehend the new paradigm said:

We were excited to work with BJA on this innovative, research-driven initiative, and we are extremely disappointed by this abrupt change in direction.

That's weird. I thought law enforcement officers are trained experts on reacting to fast-moving situations. But maybe that only refers to the indiscriminate deployment of excessive and/or deadly force. Maybe the only ways cops can embrace change is with chokeholds and bullets.

Sure, it doesn't help that the DOJ sent contradictory messages to the Pasco County Sheriff's Office. But as Pasco County Sheriff Chris Nocco surely is aware (being that his position is an elected position), the rules can change when the regime changes. The previous administration may have felt the public was the problem and shows of force by armed government employees was the solution. But the current administration doesn't feel that way. And it has every right to ask why the Pasco County Sheriff's Office spent nearly a million dollars in federal money alienating the community and harassing their kids.

Filed Under: doe, doj, florida, pasco county, pasco county sheriff's office, predictive policing, privacy, schools, surveillance

Mirror Crowdfund: Our New Paper On NFTs And New Scarcities

from the exploring-new-spaces dept

Over the last year or so there has been tremendous hype around the concept of NFTs (non-fungible tokens). In my experience so far, people tend to fall into one of three camps surrounding NFTs. There are the "true believers", who are obsessed with the space and believe it is going to change everything about creativity and culture (and, according to some, "ownership"). There are the skeptics, who insist that it's a scam or the new tulip-craze bubble, and that NFTs are helping to burn down the planet with wasted energy usage. Finally, there's a very large camp of people who insist that they just don't understand NFTs at all and have completely blocked out the possibility that they could matter. I've been following the whole concept for a while now and I put myself in a weird place, potentially straddling multiple camps. I think there is a lot of nonsense in the space, and jargon meant more to confuse than to help -- but at the same time, I think there really is something interesting in the potential of NFTs, though the real value may be in a different place than even NFT-boosters believe.

The thing that's interesting to me, mainly, is how NFTs have found a way to productize a new scarcity -- one that may be really interesting (even as many of the current uses are missing that). Long term Techdirt readers may recall the series of posts I wrote back in 2007, exploring "The Economics of Free," in which the core point was about understanding what was scarce, and what was not just abundant but infinitely available -- something I refer to as "infinite goods." One of the points raised in that series was how new infinite goods not only completely upended traditional business models, that they also created new scarcities, and the really interesting business models were in finding those scarcities and leveraging the infinite goods connected to them to make them more valuable.

At the time, many of the new scarcities I was talking about were things like time and attention. But NFTs are actually highlighting a new set of potentially interesting scarcities related patronage and support, which previously had been amorphous concepts but which can actually be quantified to some level today. At the very least, I think this presents some interesting possibilities that go way beyond the state of the current NFT market (which, no doubt, is filled with significant hype, fluff, and nonsense). Just because there may be some level of exaggerated frenzy around NFTs, which turns some people off, that does not mean we should completely ignore and dismiss some of the underlying ideas that make NFTs so interesting.

That's why today we're launching a crowdfund on Mirror.xyz, a decentralized publishing platform with built in crowdfunding tools, to write a deep-dive paper entitled Newly Finite Themes that will explore the ins and outs and details of NFTs. The paper is not going to be an unfettered boosterism of NFTs, nor will it be condemning the entire concept. The plan is to explore every aspect of NFTs -- including the the economic, legal, cultural, and (yes) environmental implications -- and produce a thorough paper that will highlight which parts of NFTs are actually interesting and have real potential. In some ways, this will be a follow up to my 2019 Protocols, Not Platforms paper that helped inspire Twitter's Bluesky initiative.

As part of this process, we want to experiment with the very technologies we'll be writing about -- something we are enabled to do by Mirror (and yes, to back the project on Mirror, you have to use ETH). When the paper is complete, it will be minted as an NFT. Backers of the crowdfund will get a token that will entitle them to some of the proceeds when that NFT is sold. In addition, backers who support us at a level above 1 ETH (up to a total of 15 such backers) will get a separate NFT showing their support for a protocols over platforms approach to the internet. Finally, Mirror has a very cool new feature, enabling the top three backers to be rewarded with individual NFTs commemorating their key role in enabling this paper, and giving them Executive Producer, Producer, or Associate Producer status for the paper -- though this is only available to those who back within the first few days of the crowdfund.

All of the details can be seen on our Mirror crowdfund page.

Filed Under: abundance, crowdfund, infinite goods, newly finite themes, nft, nfts, scarcities

Daily Deal: The Modern Web Development And MySQL Programming Bundle

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

The Modern Web Development and MySQL Programming Bundle has 5 courses to help you master popular programming languages. You'll learn PHP, MySQL, GitHub, Heroku, Blazor, .NET, and more. It's on sale for $20.

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