Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

from the wanna-try-that-again,-harvey dept

Last week, the Hollywood Reporter broke the story that famed Hollywood movie mogul Harvey Weinstein (formerly of Miramax and more recently of the Weinstein Company -- from which he was fired over the weekend, despite practically begging for his friends to support him) had seriously lawyered up, hiring three high profile lawyers: David Boies, Lisa Bloom and Charles Harder to deal with two apparent stories that were in the works -- one from the NY Times and another from the New Yorker (two publications not known for backing down from threats) -- about some fairly horrible alleged behavior by Weinstein towards young female actresses, employees and more.

A day later, the NY Times published its article about Harvey Weinstein and, damn, it's quite an article. It details multiple cases of alleged sexual harassment by Weinstein against both employees and hopeful actresses -- and includes claims of Weinstein having to pay off some of those individuals. The article was not based on a single source, but many sources, including one actress (Ashley Judd) willing to put her name behind the accusations (and just as we were completing this post, the New Yorker published its piece which appears to be more detailed and more damning, with more names and even more horrifying stories about Weinstein). And with the NY Times' publication, much of the "legal team" leaped into action. Of course, if you're not familiar with the three lawyers named above, it may help to do a quick review, before we dig in on the myriad (often contradictory) responses we've now seen from Weinstein and his legal team over the past few days.

Boies, of course, shows up everywhere these days, but often not for good reasons. You may recall him representing SCO in its quixotic attack on Linux. Or representing Oracle against Google in claiming that APIs can be copyrightable. Or representing Theranos, the now disgraced biotech firm that exaggerated what it could do. Or representing Sony Pictures when its emails were all leaked, to the point of sending a ridiculous threat letter to us for daring to report on those emails. Lisa Bloom's only appearance here was when she was on the right side of the silly James Woods defamation case against an anonymous tweeter. Many found Bloom's appearance as part of the team quite odd, since she's built her reputation on representing victims of sexual harassment. She later claimed she was just advising Weinstein, rather than acting as his lawyer (hmm....) and then, over the weekend, she resigned from whatever it was that she was doing. However, the NY Times has a quite incredible article suggesting her initial response to the accusations was to effectively go after the women, by posting "photos of several of the accusers in very friendly poses with Harvey after his alleged misconduct." Ick.

And, Charles Harder? What is there that needs to be said about Charles Harder? Oh, right, that he's currently leading the legal team that's suing us in a defamation suit that we've won (though he has since appealed).

Within hours of the article being published, Harder announced that Weinstein would be suing the NY Times for defamation.

"The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein," he writes in an email to The Hollywood Reporter. "It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by nine different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations."

But here's the thing: Weinstein himself seems to be admitting that many of the accusations are accurate. He's quoted apologizing for his behavior in the initial NY Times article:

In a statement to The Times on Thursday afternoon, Mr. Weinstein said: “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go.”

He added that he was working with therapists and planning to take a leave of absence to “deal with this issue head on.”

That seems like an admission. The full statement is even more bizarre:

I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office - or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed.

I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.

Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons. Over the last year I've asked Lisa Bloom to tutor me and she's put together a team of people. I've brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more. Jay Z wrote in 4:44 "I'm not the man I thought I was and I better be that man for my children." The same is true for me. I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call. I cannot be more remorseful about the people I hurt and I plan to do right by all of them.

I am going to need a place to channel that anger so I've decided that I'm going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I'm going to do it at the same place I had my Bar Mitzvah. I'm making a movie about our President, perhaps we can make it a joint retirement party. One year ago, I began organizing a $5 million foundation to give scholarships to women directors at USC. While this might seem coincidental, it has been in the works for a year. It will be named after my mom and I won't disappoint her.

That whole statement is... weird. Others have covered the many problems with it, but it seems like a pretty clear admission. Given that, it's pretty ridiculous to then claim you're suing the NY Times. Under what theory? Well, according to Weinstein, because it didn't give him enough time to respond:

“I mean every word of that apology,” he told TheWrap. “The reason I am suing the New York Times is they didn’t give me enough time to respond.”

Um. What? First of all, he gave an entire statement to the NY Times. So he clearly had time to respond. Second, there's no legal requirement that a news publication needs to give you "enough time to respond," let alone any time to respond. That's not how the press works.

In another interview, he told the NY Post that he's suing because the NY Times wasn't honest with him:

Weinstein said, “What I am saying is that I bear responsibility for my actions, but the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting. They told me lies. They made assumptions.

“The Times had a deal with us that they would tell us about the people they had on the record in the story, so we could respond appropriately, but they didn’t live up to the bargain.

“The Times editors were so fearful they were going to be scooped by New York Magazine and they would lose the story, that they went ahead and posted the story filled with reckless reporting, and without checking all they had with me and my team.

Once again, Weinstein seems to be confused about how journalism works -- and what legal requirements there are. Even as rich and powerful as Harvey Weinstein is, there is no legal requirement to give him as much time as he wants to respond. Indeed, his lawyer Bloom admits they had two days:

“Two days ago, after begging, they gave us a couple dozen allegations that spanned 30 years and a dozen countries. They said we have until 1 pm today. We said ‘Why?’ They never said.”

Again, giving two days actually seems kind of generous.

The whole thing seems like Weinstein is trying out any and all possible responses at once. Normally you select one: you deny and sue or you apologize or you try to make a quip and laugh off the accusation. Harvey seems to be doing all of this at once.

He even tried denial (and a quip) before the admission and the threat:

In a brief interview on Wednesday, Weinstein declined to comment on the charges.

"I've not been aware of this," he said. "I don't know what you're talking about, honestly."

[....]

Weinstein later issued a statement through a spokesperson, as did Bloom. “The story sounds so good I want to buy the movie rights,” said Weinstein.

Of course, as the NY Times has pointed out, at no point has Weinstein said what is factually untrue in its reporting. And if you're suing for defamation, that's kind of the first thing you're supposed to do. Meanwhile, it appears that other stories are starting to come out (and they keep coming) -- including some fairly damning claims about attempts to cover up previous investigations. And, perhaps most troubling, a claim that the NY Times had this story a dozen years ago and was pressured into killing it. Of course, perhaps that's the real reason behind the threat of the lawsuit -- to try to scare off others from coming forward. All of the links in this paragraph suggest if that's the theory, well, it's not working. It's also not clear that a lawsuit would be wise. Beyond the failure to give an actual legal reason for the lawsuit so far, as many people have pointed out, it's unclear that Harvey would want to go through the discovery process in such a lawsuit should it get that far.

And, in the meantime, the NY Times has said that Weinstein "should publicly waive the NDAs in the women's agreements so they can tell their stories." If he fails to do so, that says a lot right there.

Still, in the end, it appears that Weinstein's strategy here seems to be... to do all of the following, even if some parts contradict other parts:

1. Deny with a quip ("I don't know what you're talking about, honestly." "I want to buy the movie rights.")
2. Offer a weak excuse that's not even a real excuse ("I came of age in the 60's and 70's")
3. Apologize ("the way I’ve behaved with colleagues in the past has caused a lot of pain," "I cannot be more remorseful about the people I hurt and I plan to do right by all of them.")
4. Threaten to sue ("the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting")
5. Claim the story is not accurate ("a story that is saturated with false and defamatory statements about Harvey Weinstein")
6. Say the real problem was that the paper didn't live up to its word ("The Times had a deal with us")
7. Also claim that the problem was not enough time to respond (despite responding) ("The reason I am suing the New York Times is they didn’t give me enough time to respond.")
8. Deflect from being accused of using your power to bed powerless women by... talking about the NRA?!? ("I'm going to give the NRA my full attention.")
9. Insist that you've seen the light and are changing ("I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call.")
10. Talk about how you've thrown money at womens' issues, as if that makes this okay ("I began organizing a $5 million foundation to give scholarships to women directors at USC.")

None of these seem particularly genuine at all -- which perhaps explains the contradictory nature of many of them. Instead, it looks an awful lot like how people who are caught doing something bad act when they can't come to terms with what they've done, and will thrash about wildly, trying on every possible response, hoping one of them gets them out of the situation. Who knows if an actual lawsuit will be filed, but of all the possible responses above, that one seems the least likely to end well.

Filed Under: assault, charles harder, david boies, defamation, denial, harassment, harvey weinstein, lisa bloom, threats
Companies: miramax, ny times, weinstein company

Man Actually Arrested For Assault With A Deadly Tweet

from the trolling-with-a-deadly-gif dept

Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either.

Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this:

That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating.

The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors:

If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy."

Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this:

Whoever--

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—

(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)

That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies."

Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone.

So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:

If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.

So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down.

I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.

Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that.

Either way, we now have an actual indictment for a crime of assault with a deadly tweet.

If you can't see that, it's the grand jury referral, noting that the offense is "aggravated assault with a deadly weapon" and it notes that:

... said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.

We live in such strange times.

Filed Under: assault, cyberstalking, doj, epilepsy, fbi, john rivello, kurt eichenwald, stalking, trolling
Companies: twitter

Kurt Eichenwald Sues Twitter Troll Over Alleged 'Epileptic' Image Assault

from the legal-issues dept

So, just to be upfront about stuff, reporter Kurt Eichenwald doesn't like us here at Techdirt very much. We've written about him a few times, and he's never been at all happy with our coverage because the two times we've written about him it was to call into question his reporting. The first time was a few years ago, when he made some ridiculous logical leaps in asserting that Ed Snowden was a Chinese spy and all of his leaks was just to cover up Chinese cyberattacks. Then, just a few months ago, we called him out for massively overselling a story, where he falsely claimed (and later deleted his tweets claiming this) that he had proof that Wikileaks was connected to the Russians. This was based on a long and convoluted series of events that proved no such thing. It may be true, but Eichenwald had no proof. He massively oversold a story that later turned out to just be that a part time writer based in DC at a Russian-owned publication made a mistake in misattributing a quote -- and Eichenwald assumed all sorts of ridiculous things.

Suffice it to say, Kurt Eichenwald is not a fan of us at Techdirt and has me blocked personally on Twitter after I tried to point out that he was overselling his story. These aren't the only times that Eichenwald has run into trouble for his reporting. Back in 2007, there was an incredible story that came out concerning Eichenwald writing a NY Times article about child porn, where he left out the fact that he'd paid the subject of the article thousands of dollars. And, then, last week, Eichenwald appeared on Tucker Carlson in an interview that can just be described as... very, very odd. I'm not a fan of Carlson either, but they quickly get into a weird debate where Carlson wants to attack Eichenwald for "fake news" by pointing to some tweets that Eichnewald made about Donald Trump allegedly being institutionalized. Carlson keeps asking Eichenwald to explain this tweet and Eichenwald... goes all over the place, including something about his contacts at the CIA and a binder full of what he calls Tucker Carlson's "falsehoods" but he never actually answers Carlson's question. Again, I think Carlson tends to be ridiculous, but Eichenwald comes off as much, much, much more ridiculous here. He continued to make himself look worse, by later claiming that he was joking and "signaling" a source with the bogus tweet -- an excuse that makes absolutely no sense at all.

And, apparently, some internet trolls agreed, but decided to take it up a notch. Back in October, Eichenwald had written an article claiming that some internet trolls tried to give him an epileptic seizure by sending him a graphic that has been known to induce seizures in epileptics (Eichenwald has epilepsy). It appears that the combination of the Carlson interview and Eichenwald's attempted defense of the interview resulted in a troll using the handle @jew_goldstein (subtle!) posting a tweet with a flashing image claiming that he deserved a seizure. Eichenwald's account later tweeted out a claim, supposedly from his wife, that the image had worked and he'd had a seizure -- and that he was pursuing legal action. This kind of attack isn't particularly new. There was a story about a decade ago of a bunch of internet trolls descending on an epilepsy forum to do the same thing -- which is really kind of fucked up.

Then, Monday morning Eichenwald released a copy of some legal documents in the lawsuit, seeking expedited discovery. In short, he's suing and trying to use the discovery process to unmask who is behind the troll @jew_goldstein account, demanding that Twitter hand over the information. I think it's reasonable to question whether or not an actual lawsuit will follow or if the goal here is just to unmask the troll.

Now, there are all sorts of legal questions about this -- and, thankfully, since Eichenwald wrote about this back in October, a bunch of experts have already weighed in. And the answer seems to be a combination of "well, there's an interesting legal scenario" and "yeah, it seems like he might actually have a case." Law professor Elizabeth Joh explains the basics here:

Had this Twitter troll walked up to Eichenwald and pointed what appeared to be a loaded gun at the journalist, most would agree that the troll would be guilty of assault. Had the troll walked up to Eichenwald and surprised him with a tablet displaying the video, the result would likely be the same. After all, not all weapons are guns. It’s the same thing with the tweet—the distance does not change the analysis. For instance, the intentional hacking of a networked connected medical device, like an insulin pump, resulting in a person’s death would be criminal homicide even if the perpetrator were hundreds of miles away.

Criminal defense and free speech lawyer Mark Bennett also sees the elements of a misdemeanor in Texas:

But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury.

Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford’s The World Beyond Your Head).

I can’t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury.

Criminal defense lawyer Scott Greenfield also concludes it's quite possible:

Yes, even Twitter can be used to commit an assault, regardless of whether Eichenwald was a victim. No, it doesn’t have to be that way if you choose not to commit a crime using twitter. Just don’t do it.

Lawyer Keith Lee put all of this together and looks at whether or not all of the elements of assault were accomplished here and also concludes that there's a viable claim with this lawsuit:

In the situation involving Eichenwald: were the mechanics of an internet medium (Twitter) able to act as a delivery system for an assault (an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm)?

Given that the offending user (((Ari Goldstein))):

1. Used the Twitter network system;
2. to transmit/deliver an intentional attempt/threat;
3. that they knew would be likely to inflict injury; and
4. placed Eichenwald in fear of imminent bodily harm.

I’d say that it’s likely that Eichenwald has some merits to his claims.

Lee notes that there are some possible defenses, but again, it does make you wonder if Eichenwald actually intends to follow through on the lawsuit, or just try to expose the troll. Still, as pretty much everyone agrees, whoever did this is pretty obnoxious. I'm obviously not a big fan of Eichenwald, and find him to be a terrible reporter, an unreliable narrator and kind of a jackass but I still think whoever did this to him is a much bigger jackass -- and potentially a criminal. Eichenwald looked foolish enough with his rantings. There's simply no reason to go further to try to harm the guy physically.

Filed Under: assault, epilepsy, kurt eichenwald, seizure, trolls

Game Studio's Plan To Deal With Critic Of Games: Sue Him To Hell

from the waaaaaah dept

There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful.

This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games.

Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at.

The claims are, frankly, ludicrous, but they're the kind you occasionally see leveled against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes.

In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription.

As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions."

In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions.

And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as leveled by Sterling.

The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly.

In another — again, now deleted — post, Digital Homicide explained its position.

"In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint."

That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane.

So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty.

In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began.

Filed Under: assault, criticism, defamation, jim sterling, reviews, the streisand effect
Companies: digital homicide

TSA's Investigation Into Groping Agents Ensured They Wouldn't Be Prosecuted

from the because-of-course dept

By now, you may have heard the story about how two TSA agents at Denver International Airport were fired recently after it was revealed that they had worked out a scam by which one agent was able to grope and fondle the genitals of male passengers he found attractive. The plan involved him signalling to a colleague who was working the scanning computer. That agent would tell the computer that the individual being scanned was female, which apparently would set off an "anomaly" alert for the groin area, allowing the male TSA agent to conduct a "pat down" of that area. Leaving aside the fact that these computers even have "male" and "female" settings and it can determine an "anomaly in the genital area" if they don't match -- this kind of thing was exactly what many insisted was going to happen when the TSA put in place these advanced screening procedures. And if you think that this is the only case of it happening, well, then, you probably think the TSA doesn't rifle through and steal stuff from your luggage as well.

Now here's the thing: this only came out because the TSA agent blabbed about it to a colleague, who then reported it, leading to an investigation. Many people find it odd that the two TSA agents (who are still unnamed) merely lost their jobs, rather than got arrested for this activity. Chris Bray, over at TSA News (found via Amy Alkon -- herself no stranger to intrusive TSA searches), went and grabbed the actual Denver police report on the incident, revealing that it appears that the TSA set up its "investigation" in a manner to almost guarantee no criminal charges and that the names of the TSA agents would remain secret.

Specifically, the TSA was first told about this scheme on November 18th of 2014. First, it took nearly two months for the TSA to do anything about it, and it did not contact the police during this time. Instead, on Feburary 9th, TSA investigator Chris Higgins observed the screening area and saw the signal/button push/grope of the genitals. Higgins made no attempt to speak with or identify the victim of this assault (this is important). Instead, he just spoke with the two TSA agents who were terminated at some later time (exact date not clearly indicated). The Denver police were not told about any of this until over a month later, on March 19th, 2015, at which point they noted that without a named "victim" there wasn't much they could do.

On that same day, the inspector, Higgins, told the Denver police that he had also spoken with a deputy district attorney who had told him that without a victim, it was unlikely they could prosecute a case. It's unclear when that conversation took place, but it appears that the TSA had plenty of time to fire the TSA agents and make it basically impossible for the police to file a case before then telling the police what happened. As Bray notes, this all seems rather suspicious, as if the TSA's "investigation" was much more about covering up the TSA's misdeeds, rather than holding the agents responsible:

So in November of 2014, the TSA was warned that two of its officers were currently, actively conspiring to commit sexual assault. But the TSA did not notify the police about that anonymous tip. The Denver Police Department is the agency that regularly polices Denver International Airport; the DIA Bureau is listed on this directory.

If the TSA had notified the police about the tip in November, the police could have been watching the checkpoint to observe the groping incident that was instead witnessed by a TSA employee. But the police didn’t know about an allegation of active, current, ongoing sexual assault, because the TSA didn’t tell them.

And so an act of sexual assault occurred right in front of a TSA investigator — and the investigator let the victim walk away without approaching him and identifying him.

Then, in March 2015, the TSA informed the police of the allegation, and of the evidence of the event that a TSA investigator had personally witnessed more than a month before. But the TSA didn’t notify the police until both employees had been fired — in other words, until both participants in a scheme to commit sexual assault had been removed from the place in which they allegedly committed it.

It’s as if someone called the fire department to report a pile of cold ashes. The TSA waited to call the police until the passengers were long gone, the TSA officers alleged to have committed the crime were long gone, and the crime witnessed by a TSA investigator was more than a month old.

Isn't that convenient?

Bray asked the TSA why it didn't contact the police earlier, and received a boiler plate response about how "intolerable" the actions were, but no substantive response to Bray's actual questions.

Yes, the groping scheme is a scandal, but it seems like a much bigger scandal is how the TSA handled the case -- first allowing the criminal activities to go on for two months without notifying police, and then making sure that no one could be actually charged with a crime.

Filed Under: assault, denver, denver police, groping, prosecution, tsa

Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?

from the false-accusations-everywhere dept

Two very different stories, but both with some startling parallels.

First, Radley Balko's story about how police and attorneys in Louisiana apparently flat out lied to claim that a process server "assaulted" a police officer he was serving (in a police brutality case, no less). There are lots of details there, but suffice it to say, the process server, Douglas Dendinger, did not assault Chad Cassard at all -- even though he was soon arrested for it, and Cassard managed to present seven witnesses (including police officers and two prosecutors who witnessed Dendinger serving the papers on Cassard). Dendinger went through two years of hell because of this, before the case was dropped when cell phone videos made by Dendinger's wife and nephew showed that there was no assault at all. Police and prosecutors lying to protect one of their own? Sure, it happens. But now that it's been exposed, Balko has an important question:

Why aren’t the seven witnesses to Dendinger’s nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren’t the attorneys who filed false reports facing disbarment? Dendinger’s prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers — after they get out of jail.

If a group of regular citizens had pulled this on someone, they’d all likely be facing criminal conspiracy charges on top of the perjury and other charges. So why aren’t these cops and prosecutors?

I could be wrong, but my guess is that they’ll all be let off due to “professional courtesy” or some sort of exercise of prosecutorial discretion. And so the people who ought to be held to a higher standard than the rest of us will once again be held to a lower one.

Second, we have last week's story about Total Wipes sending an automated takedown notice to Google demanding tons of perfectly legitimate, non-infringing web pages be taken out of Google's index for infringement. Total Wipes blamed it on a "bug" in its program, which would be more convincing if it hadn't happened before.

This second story has Rick Falkvinge, quite reasonably, wondering why the penalties for false takedowns aren't equivalent to the penalties for infringement, saying that this is the way it works in other parts of the law:

The thing is, this should not even be contentious. This is how we deal with this kind of criminal act in every – every – other aspect of society. If you lie as part of commercial operations and hurt somebody else’s rights or business, you are a criminal. If you do so repeatedly or for commercial gain, direct or indirect, you’re having your ill-gotten gains seized. This isn’t rocket science. This is standard bloody operating procedure.

The copyright industry goes ballistic at this proposal, of course, and try to portray themselves as rightsless victims – when the reality is that they have been victimizing everybody else after making the entire planet rightsless before their intellectual deforestation.

The irony is that at the same time as the copyright industry opposes such penalties vehemently, arguing that they can make “innocent mistakes” in sending out nastygrams, threats, and lawsuits to single mothers, they are also arguing that the situation with distribution monopolies is always crystal clear and unmistakable to everybody else who deserve nothing but the worst. They can’t have it both ways here.

Of course, his claim that this is true in "every" other area is proven somewhat false by the first story above. But the underlying factors in both cases are nearly identical, and it actually goes back to a previous concept that Falkvinge has written about: the "high court" and the "low court." The "nobility" gets a special court when they break the law, with limited consequences. The lowly commoners have to go to the "low court" where the consequences are quite severe. Falkvinge's original point is that we still seem to have the same thing today, and that's clearly shown in both stories above.

If you're in power, you can lie about things to accuse others of serious things that can have serious consequences for them, and there's no real punishment. Instead, it's brushed off as not being important -- sometimes with expressions of understanding about how "these things can happen." I'm reminded of the phrase that we "judge ourselves according to our intentions, but others based on their actions," and that seems to be partly at work here as well (though I question the "intentions" of the prosecutors who lied above). The lies are written off as minor "mistakes," whereas those accused are given no such benefit of the doubt. It's a big problem in the copyright space, certainly, but it's true in many other areas of society as well.

Filed Under: assault, copyright, crime, false accusations, high court, lies, low court, process server, punishment, radley balko, rick falkvinge
Companies: total wipes

How It's Supposed To Work: Twitter Sleuths Nab Hate Crime Perps

from the smh dept

While we've covered several instances in the past of local law enforcement actually using Twitter and social media services productively in order to capture criminals, as opposed to when they use Twitter horribly, it's far more fun to show what a connected public can do on their own. There are plenty of examples of how crowd-sourcing police efforts to track down the bad guys can go horribly wrong (ahem, Boston Marathon bombing), but this is the story of how it can also work quite well.

The crime was an attack on two gay men who were simply walking down the street in Philadelphia when a large group of men and women approached them, harassed them, and eventually beat them savagely enough that one of the victims had to have his jaw wired shut. Then, because one good evil turn deserves another, they robbed one of the victims as well. While such brutality may bring on depression, take heart, for the local people were outraged and actively took to social media sites to voice their concern. Local police smartly released surveillance footage of the attack, with pictures of the assailants:

Almost immediately, Twitter ignited to help find the people responsible for the crime. One user in particular seems to be getting credit for identifying the perps.

Twitter user fansince09 told Action News he was disgusted by the attack. Apparently many of his followers were, too, and they joined in the effort. Fansince09 tweeted the video to his thousands of followers, and soon re-tweeted a picture apparently taken of this group at a nearby restaurant. He looked on Facebook to see who had checked into that restaurant, and started clicking links, matching pictures to the video. His effort resulted in a picture of a large party dining at a Center City restaurant. Police sources say that photograph is now part of the investigation.

If you'd like to follow how the whole thing unfolded on Twitter, here's a great rundown put together by Melody Kramer, which we've also embedded below.

The police even gave him a shout out on Twitter to say thanks. Those responsible for the crime are reportedly now in touch with their attorneys and are making arrangements to turn themselves in to the authorities. As someone living in a metropolitan city, I can't even begin to tell you how often these types of attacks go unpunished, so it's good to see social media working to get a little justice done.

Nicely done, Philly.

Filed Under: assault, crime, philadelphia, police, sleuths, social media

Unarmed Man Charged With Assault Because NYC Police Shot At Him And Hit Random Pedestrians

from the NYPD:-Times-Square-is-the-hottest-third-person-shooter-on-the-market dept

Stop me if you've heard this one:

An emotionally disturbed but unarmed man walks into heavy traffic near Times Square. Police officers arrive on the scene and try to apprehend him. The unarmed man reaches into his pocket, prompting police to open fire in a crowded area. Man is unwounded but two bystanders are shot.

I don't really remember the middle part of this joke but the punchline is this:

An unarmed, emotionally disturbed man shot at by the police as he was lurching around traffic near Times Square in September has been charged with assault, on the theory that he was responsible for bullet wounds suffered by two bystanders, according to an indictment unsealed in State Supreme Court in Manhattan on Wednesday.

While you're letting that sink in, here are some more details.

Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”

“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.

Here are some more details from the original coverage of the incident.

The police arrived and the crowd grew. The hulking man continued on, ignoring the officers’ commands while eluding capture. Then the man reached into his pants pocket, withdrawing his hand as if it were a gun, the police said, and pretended to shoot at some of the officers.

As Scott Greenfield points out, this descriptive wording is a prime example of Creative Writing 101 (Law Enforcement Edition).

Note the language of the article. “Hulking” man. “Withdrawing his hand as if it were a gun.” These aren’t the words of a news account, but the language of justification and excuses.

Broadnax didn't even have a gun, as officers plainly saw before opening fire. He had a Metrocard in his hand, and no matter how hulkingly he pointed it at officers, it still didn't turn into a weapon capable of wounding other people. His weaving around in traffic was potentially dangerous, but more to himself than others.

Returning once again to the "language of justification and excuses" deployed by the DA's office: someone wandering around in traffic in New York City is hardly creating a "grave risk of death." NYC has plenty of pedestrian traffic, not all of which crosses only at the corners. The man certainly created a "disturbance" but the shots fired by the responding officers created the only injuries. And yet, it will be the man shot at (and missed) who will pay for the mistakes of the officers.

The narrative being pushed (back at the time of the incident and again by the DA's office) is that the officers had no choice but to risk firing shots in a crowded area because the man wouldn't cooperate (and menaced officers with a Metrocard). But recordings of the incident suggest the cops actually had many more options are their disposal.

There are no doubt times when shots must be fired, and there are no doubt times when a bullet will strike a bystander despite the best, and most competent, efforts of police. But the video of this, taken by a bystander who was not shot, shows a great many cops in the area before the two cops shot at Broadnax, and makes it difficult to understand why the newspapers don’t question why all those cops couldn’t manage to take down one big crazy guy without shooting up the bystanders.

The video Scott Greenfield posted back in September no longer exists. But this video shows a swarm of NYPD officers attempting to apprehend Broadnax before the shots are fired.

Broadnax was finally subdued by a single officer with a Taser but not before two pedestrians had been shot in an effort to ensure their safety. Holding the arrestee responsible for the bad decisions (and worse aim) of two cops basically sends the message to officers that irresponsible gun usage is perfectly fine, as long as the intentions are pure. If in the future officers hit other bystanders by firing in crowded areas (as they have in the past), the blame will be passed along to the intended target for "forcing" the police to make unwise decisions.

[Postscript: Ken White at Popehat has more thoughts on the NYPD's resemblance to Ike "Don't Make Me Hit You" Turner.]

Filed Under: assault, nyc, nypd, pedestrians

Texas Trooper Shoves 74-Year-Old Then Arrests Her For Felony Assault When She Hits Him With Her Purse

from the entitled-children-in-grown-ups-clothes dept

On what was presumably a hot, sweltering night in the nation's Texas' capital, a senator's epic filibuster temporarily derailed an abortion bill. This all went far from smoothly as time stamps were changed post-vote, Lt. Gov. David Dewhurst (whose pet legislation was being talked over) briefly threatened to have media members arrested for "inciting a riot" and a 74-year-old woman was arrested for assaulting an officer.

According to the Probable Cause Affidavit, the Lt. Governor order that the gallery be cleared and the Troopers were enforcing that order. When they got to Martha Northington and told her to leave, there was a problem.

What kind of "problem?" Well, the kind of problem posed by 74-year-old women who just don't move as fast as the trooper thought she should. Here's video of the incident.

According to the arrest affidavit, Northington resisted by grabbing her seat. Unfortunately for the Trooper, the scene was being videotaped. At 0:02 in the video, you can clearly see Northington reach down to pick up her purse and newspaper. Almost immediately after this the Trooper on her right grabs her arm and you hear Northington protest that he’s hurting her. You can see that the black Trooper is not concerned by her picking up the purse, but the white officer has a death grip on her right wrist.

The arrest affidavit carries its own narrative, which is at odds with what was captured on video.

She attempted to resist by grabbing the chair, not standing, and pulling back from me. We broke her hold of the chair and got her up and as I escorted her up the gallery steps Trooper Hall released her. I was escorting her by the arm up the steps by myself and she continued to try and pull away from me. At the top of the stairs, she spun and slapped my face with her open hand and told me to let her go. The intentional slap to the face by Northington was offensive and I was currently wearing a State Trooper uniform...At this point i spun her around and proceeded to handcuff her for the assault. While trying to handcuff her she continued to resist by pulling her arms and attempted to twist away from me...Ms. Northington was transported to Travis County SO without further incident...

As was already pointed out, Northington was gathering her belongings rather than holding on to her chair. In fact, it looks as if she's voluntarily leaving, right up to the point that the trooper ups his aggression level.

At the 11-second mark, she does hit the trooper in the face, but with her purse (and that from an angle where she didn't have much of a wind-up). But the officer refers to it as an "open hand slap," something that sounds undeniably more threatening (and "offensive") than "At the top of the stairs, the 74-year-old woman hit me with her purse..."

After hustling an obviously dangerous elderly woman out of the building, the trooper attempted to book her on a felony charge.

Northington was apparently originally charged with Assault on a Public Servant, a third degree felony, but the arraigning magistrate reduced the charges to Resisting Arrest and Assault by Contact, Class A and Class C misdemeanors, respectively.

Because Contempt of Cop has yet to be codified into our criminal statutes, the trooper allegedly drew a blank at first when filling out his report. But even the final reduced charges are ridiculous, especially the resisting arrest charge. If you're going to charge someone with resisting arrest, it should logically follow that an arrest was already in progress.

OK, even if we give the trooper the benefit of the doubt, if she is resisting arrest, there has to be an underlying charge. What was she being arrested for in the first place?

Second, any assault on a peace officer is a felony, even if that is just by contact (i.e., an offensive touch)... Here, Northington supposedly slapped the trooper with an open hand. Yet the black trooper does not make a move to help the trooper who was just “assaulted” by Northington.

An assault charge should only cover actual threats to officer safety, rather than just be used to add additional charges to the arrest, one for every unapproved bit of contact between the arrestee and the officer. Even if it was technically assault, shouldn't a trained officer be willing and able to "walk off" being hit by a woman's swung purse, especially if the person swinging it is elderly?

Apparently not. Once you've overreacted, the only way to save face in the law enforcement world is to push forward, trumping up charges and rewriting the narrative. And if you think that might be problematic, don't worry. The cleanup crew will be right behind you, ready to condemn the public for thinking bad thoughts about law enforcement.

In response to criticism, [DPS spokesperson Katherine] Cesinger wrote in a statement that troopers only took “actions they deemed appropriate” when responding to protesters that night.

“Our DPS troopers work every day to ensure that all visitors and staff at the Texas Capitol remain safe and that order is maintained,” Cesinger wrote. “It’s unfortunate that some find it is easy to pass judgment on the officers who are risking their lives every day to protect and serve Texas.”

The lesson is: because law enforcement members perform a dangerous but necessary job, they are never to be questioned or criticized for their tactics, actions or words.

That's very simply a complete load of self-serving crap. The badges these officers wear aren't a shield against criticism or permission slips to perform their jobs however they see fit. There are oaths to uphold, rights to protect and policies to follow, all of which seem to be ignored once someone triggers the very low threshold to unofficial "contempt of cop" charges. The statement from the DPS is profoundly wrongheaded and only serves to widen the gulf between law enforcement and the people they serve.

Filed Under: assault, police, texas