FTC's Second Antitrust Attempt Against Facebook Gets Past The First Hurdle

from the slightly-better dept

As you'll recall, at the end of 2020, the FTC filed an antitrust case against Facebook. Last summer, the district court dismissed the case, noting that the complaint was "legally insufficient," and didn't really back up its central claims. Based on that, the FTC went back to the drawing board and filed an amended complaint last August. As we noted, the amended complaint was better than the first one -- which was heavy on narrative, but little on support to back it up. The amended complaint had more in it, though we still felt that the market definition was odd, and some of the complaint seemed to undermine other parts of it.

Either way, Facebook again asked the court to dismiss it, but this time, they're letting the case move forward. Basically, the court says that on a second pass, the FTC has actually provided at least some support of the central arguments in the complaint:

Eagerly accepting such invitation, the FTC has filed an Amended Complaint containing significant additions and revisions aimed at addressing the shortcomings identified in the Court’s prior Opinion. The core theory of the lawsuit remains essentially unchanged. The Commission continues to allege that Facebook has long had a monopoly in the market for PSN services and that it has unlawfully maintained that monopoly via two types of actions: first, by acquiring competitors and potential competitors — most notably, Instagram and WhatsApp — that it believed were well situated to eat into its monopoly; and second, by implementing and enforcing policies that prevented interoperability between Facebook and other apps that it viewed as nascent threats. The facts alleged this time around to fortify those theories, however, are far more robust and detailed than before, particularly in regard to the contours of Defendant’s alleged monopoly.

The court more or less says that Facebook may still prevail in the end -- noting that the FTC will "face a tall task down the road in proving its allegations," but, at this stage of the game, the allegations are enough to allow the case to move on to the next stage.

The court does reject one part of the FTC's case -- that Facebook's interoperability policies were anti-competitive:

The Court will not, however, allow the allegations surrounding Facebook’s interoperability policies (also known as the Platform policies) to move forward; they founder for the same fundamental reasons as explained before: Facebook abandoned the policies in 2018, and its last alleged enforcement was even further in the past.

Given the beefed up filing, this isn't a huge surprise. I still think that the FTC's case here remains surprisingly weak. I honestly expected something a lot more damning than the weird market definition and the allegations -- many of which are presented in ways that could easily be removing important context (such as reasons for actions that were not anti-competitive, but for the benefit of users).

Either way, the case is about to get a lot more expensive for Facebook, and even if the odds are that it would still prevail in the end, it might try to settle the case to avoid having to go through the process. That said, with Lina Khan leading the FTC, I'm guessing the FTC is willing to press this case forward as far as possible, even if it means an eventual loss in court...

Filed Under: antitrust, competition, discovery, ftc, market definition, motion to dismiss
Companies: facebook, meta

Billy Mitchell's Defamation Case Against Twin Galaxies Over 'Donkey Kong' High Score Can Go Forward

from the here-comes-discovery dept

We've discussed Billy Mitchell a couple of times here at Techdirt, both times due to his overtly litigious nature, rather than his apparent video game playing prowess. See, Mitchell is rather well known primarily as the record holder for video game scores, including briefly holding the Guinness World Record for a Donkey Kong high score, until he was stripped of it. See, Twin Galaxies, an official tracker of such video game records, determined based on video evidence that Mitchell wasn't playing an official version of the arcade cabinet of the game. Upon being stripped of his records, Mitchell sued for... defamation. Oh, and he also sued the Cartoon Network over a very clear parody depiction in part inspired by his gregarious personage.

But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.

In his ruling on Twin Galaxies' anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies' claims and that the organization acted with "actual malice" in making them.

While the ruling is careful not to "weigh evidence or resolve conflicting factual claims" on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.

Apparently at issue is that Mitchell wanted a witness, specifically the referee of his Donkey Kong high score, to be interviewed and considered by Twin Galaxies prior to their having negated Mitchell's high scores. Here's the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game. Still, the court notes that, at this stage, the deference is given to the plaintiff and, in that specific light, Twin Galaxies' refusal to consider witness testimony is enough to let this proceed.

Mitchell, true to his self-promoting history, is taking a victory lap on all this, as though he'd won a trial. He hasn't. Instead, he's opened himself up to discovery.

Even as Mitchell has met his burden of "minimal merit" in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has "satisfied the low burden to show a reasonable possibility of prevailing in this action" in a separate motion.

The scoreboard has presented evidence to "[support] that its statement does not show actual malice," the judge writes, and which "supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies' lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall's belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies'] favor on this point, undermining [Mitchell]'s claim that [Twin Galaxies] acted with reckless disregard of the truth."

It's important to be able to keep two things in your head at once: that Mitchell may well have validly broken the Donkey Kong record as he claims and that Twin Galaxies did not do anything close to reaching the actual malice standard required for a defamation case of a public figure. And, despite Mitchell's public statements to the contrary, the lawyer for Twin Galaxies doesn't seem particularly worried.

Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that "at this early stage the court is bound to accept whatever Mitchell puts forward as true." That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he "didn't care about certain evidence."

"The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true," Tashroudian tells Ars. "[At trial] we'll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I'm confident that... after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out."

I have no tea leaves to read, but those are the words of an attorney quite confident in the video evidence his client has to back up its statements. All I'll say is that Mitchell had damned well better be right that he broke those Donkey Kong records on a legit and standard Donkey Kong machine if he's really goin to proceed to discovery.

Filed Under: actual malice, anti-slapp, billy mitchell, defamation, discovery, public figure, slapp
Companies: twin galaxies

DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

from the say-what-now? dept

Earlier this week, you may have seen a bunch of headlines about Bill Barr's DOJ trying to step in to take over a defamation case against the President. There is so much crazy about this story that it seemed worthwhile to dig in.

There have been a rash of somewhat strange defamation lawsuits over the last few years, often connected to the "me too" movement, in which someone calls out a person for bad behavior, the accused person denies it, and then the accuser sues for defamation. To be honest, most of these feel like SLAPP suits, even if I'm sympathetic to the accuser. A mere denial of something should not be nearly enough to reach the stage of defamation. One of these lawsuits was filed by E. Jean Carroll against President Trump. Carroll claimed that Trump sexually assaulted her in a dressing room in a Manhattan department store many years ago. Upon being asked about the accusations, Trump denied it, saying they were "totally false" and claiming (falsely) that he "never met this person in my life." Based on those statements, Carroll sued in NY state court.

Again, I actually think the case is pretty weak as a defamation case. Many of the claimed statements are not remotely possible of reaching the level of defamation. Many of them take statements that Trump made and stretch the intended meaning of them quite far. Others take statements that are clearly Trump's (bonkers) opinion, rather than factual. It is, overall, a weak case and will almost certainly not be a winning case for Carroll. That said, the case has rolled on (remember: New York has a terrible anti-SLAPP law, one of the worst in the country -- and while the legislature has passed an improved law, I don't believe Cuomo has signed it yet). Most recently there was a discovery dispute. Carroll is seeking a sample of Trump's DNA as part of her discovery requests. Trump's personal lawyers sought to delay discovery, but failed to do so last month.

That puts the President in a bit of a pickle. Even though he'd likely win the lawsuit in the end, it appears he'd really rather not provide Carroll with a sample of his DNA. The insane solution? Bill Barr and the DOJ suddenly jump into the case on behalf of Trump and try to remove it to federal court, taking over for Trump's private lawyers. Now you may be saying "wait, what?" and I agree with you. But, a little background here is necessary. First, there's the Westfall Act, which requires that if the Attorney General "certifies" that the actions a federal employee is being sued over were "acting within the scope of his office or employment," then the DOJ steps in to represent that federal employee. This is done to avoid having federal employees randomly sued and having their life upended for doing their job.

But... this is not the usual case in which you'd see this. For this to apply, Bill Barr has to claim that Donald Trump saying he didn't know E. Jean Carroll, didn't rape her, and a few other things were within the scope of his role as President of the United States... and what the actual fuck? How is that even remotely a thing? The filing by the DOJ doesn't go into much depth on this, it just says that because the DOJ says so, it must be so:

Acting pursuant to 28 C.F.R. § 15.4(a), the Attorney General’s delegate has certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

In a footnote, the DOJ tries to give Barr deniability by saying he delegated his authority here to Torts Branch Director James Touhey, but come on. Everyone knows that this is Barr doing the President's personal business. The full certification is just Touhey saying "yup, he denied the rape as part of his job" in slightly more official words:

I, James G. Touhey, Jr., am the Director of the Torts Branch, Civil Division, United States Department of Justice, responsible for most civil litigation under the Federal Tort Claims Act. I have read the complaint dated November 4, 2019, in the above-captioned case. Pursuant to 28 U.S.C. § 2670, and by virtue of the authority vested in me pursuant to 28 C.F.R. § 15.4, I hereby certify, on the bases of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.

Honestly, this bullshit should haunt James G. Touhey Jr. for the rest of his life as a lawyer. It is pure bullshit.

And while some people are claiming that this is the DOJ trying to take over the "defense" of Trump in this case, that's not it at all. It's trying to get the case dismissed. Federal employees are effectively immune from defamation claims under the very same Westfall Act, because of sovereign immunity. In the case of Suzanne Brown v. Katherine Schoeneman, someone tried to sue an FBI employee for defamation, but the DOJ stepped in under the Westfall Act (making the new case Brown v. U.S.) and got the case dismissed thanks to sovereign immunity for defamation claims.

Of course, that ruling does say that the DOJ's certification can be challenged, and you can bet that Carroll's lawyers are going to challenge every last word of Touhey's certification -- so I assume that's the next step here. For what it's worth, the case has been assigned to Judge Lewis Kaplan. I honestly don't know much about Judge Kaplan other than the fact that last month we wrote about him issuing quite a benchslap to infamous copyright troll Richard Liebowitz, so based on that small sample size, he appears to be a judge not willing to put up with much shit. That said, the DOJ is not the same as Richard Liebowitz.

Also, as pointed out by Ken White, there are some cases that suggest the DOJ could win this argument. In CAIR v. Ballenger, the DC Circuit said that since answering questions from the press is part of the job, then answers about a scandal outside of your official duties could be considered within the scope of the office. So, because the press was talking to him in his role as President and he answered as such, his answers about a claim of rape from decades ago are now a part of his job as President. This argument makes about as much sense as saying that his comments were defamatory in the first place, so it's a toss up here over which of these arguments is dumber.

Of course, some of you may be asking why did the DOJ just step in now if the case was filed back in November of last year. The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll. There may be legit reasons why he would not want to do that, and I still think her defamation case is weak, but it's is truly fucked up that he then gets to pervert the Justice Department with the help of Bill Barr, to try to squeeze out of the case.

Filed Under: defamation, discovery, dna, doj, donald trump, e. jean carroll, westfall act, william barr

On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright

from the making-the-tardigrade dept

As one of the most beloved science fiction series in history, it's no surprise that the Star Trek franchise has seen its share of intellectual property flare ups. With Viacom manning the IP enforcement guns, it only makes sense that the series has been the subject of the company's failed attempt to pretend Fair Use doesn't exist, the company's failed attempts at copyright enforcement taking down an authorized Star Trek panel, and the company's failed attempt to actually be good humans to the series' adoring fans.

But this is not a story of Viacom failing at yet another thing. Instead, Viacom/CBS, along with Netflix, won in court, defeating an appeal by a video game maker that tried to claim that one episode of Star Trek Discovery infringed on the copyrights for a video game.

CBS and Netflix re-affirmed an earlier win in the U.S. Court of Appeals for the Second Circuit over a copyright infringement lawsuit filed against both companies due to a plotline in the first season of Star Trek: Discovery that a video game creator alleged infringed upon the plot of his unreleased game. The video game was about a giant tardigrade who traveled through outer space and a similar creature played a key role in Star Trek Discover Season 1.

After the Second Circuit lower court had already dismissed the claims, the Court of Appeals agreed in upholding the lower court ruling that both the video game and the TV show were relying on uncopyrightable scientific facts about tardigrades and their ability to survive in outer space.

While it's a wonder the lawsuit was ever filed in the first place, why in the world Anas Osama Ibrahim Abdin went on to appeal that initial ruling is a complete mystery. The issue at hand was a story arch in the first season of Discovery which dealt with a giant tardigrade. Tardigrades are real life, tiny creatures that typically survive within water droplets. The most interesting aspect of tardigrades is that they have been shown to have been able to survive in the vacuum of outer space. Abdin's video game also dealt with tardigrades that survived the outer reaches of space. On essentially this basis alone, Abdin filed both his original suit and the appeal.

This is yet another instance where the idea/expression dichotomy of copyright law comes into play. This dichotomy dictates that copyright can be afforded to specific expression, but not to a general idea. And certainly not to an idea comprised essentially of real life scientific discovery. So, if Discovery told the same story about the same tardigrade creature, merely having a tardigrade in its plot is not somehow infringement just because both works are set in space.

While "[t]he distinction between an idea and its expression is an elusive one," Crichton, 84 F.3d at 587-88, Abdin's space-traveling tardigrade is an unprotectible idea because it is a generalized expression of a scientific fact -namely, the known ability of a tardigrade to survive in space.

While the court's opinion is 40 pages long, that one paragraph does all of its work in affirming the lower court's ruling.

Filed Under: anas osama ibrahim abdin, copyright, discovery, star trek, tardigrade, video game
Companies: cbs, netflix

Missouri Attorney General Claims The First Amendment Allows Him To Withhold Public Records

from the I'm-not-familiar-with-the-type-of-thing-I'm-seeing dept

Missouri's government is flexing the weirdest right now. The state's Attorney General is currently in court trying to keep public records out of the public's hands. This doesn't actually stem from a public records lawsuit, but from a discovery request in a defamation lawsuit filed by a former mayor against a state representative.

Ex-Scott City mayor Ron Cummins is suing state rep Holly Rehder for defaming him while he was still in office. His discovery request has been greeted with this baffling assertion by the Attorney General. (h/t Peter Bonilla)

Cummins' attorney requested communications from constituents making complaints to Rehder’s office.

Schmitt's office, which is representing Rehder, argued last week that turning over those records would “violate the First Amendment rights of the constituents that made complaints.”

That's… not something the First Amendment protects. It protects their right to make complaints, but doesn't protect the state's right to withhold documents. In fact, the state has no First Amendment rights. Those belong to the people, like those Schmitt disingenuously is pretending to shield from someone suing a politician over allegedly-defamatory statements.

The governor's office backed this dubious assertion by saying something weird about chilling effects.

The governor’s office defended the policy, saying citizens would not reach out to their elected officials if they believed information like email addresses and phone numbers could become public.

I don't think that's how this works. For one, most people realize that communicating with government entities turns those communications (in most cases) into public records. For another, citizens cannot create chilling effects. Some people may be wary of communicating with the government for many reasons, but if there's any chill, it comes from the government's obligations to the public, not from public records requests.

That the governor would back this baffling gambit isn't surprising considering the governor himself has some pretty strange ideas about how the First Amendment works. This happened earlier this year:

As state lawmakers continue their push to carve out new exemptions in Missouri’s open records laws, Gov. Mike Parson has seized on a new strategy.

His office is redacting information from public records citing the First Amendment of the U.S. Constitution.

TIL: those black markers are called "First Amendments."

Steele Shippy, Parson’s communications director, said the office uses the First Amendment to redact telephone numbers, addresses and email addresses of private citizens who have reached out to the governor’s office.

Such is the state of the First Amendment in the Missouri state government. The First Amendment gets used to withhold public records and make unjustifiable redactions. And then I guess it gets put back in the drawer until the next time the government needs to use the First Amendment for something. The same incomprehensible claims were made about the chilling of speech in this case, too.

There is some good news, though. The state AG has officially withdrawn his insane First Amendment assertions.

Missouri Attorney General Eric Schmitt has withdrawn a legal brief he filed arguing that the First Amendment allowed him to withhold some public records concerning private citizens involved in a lawsuit.

Schmitt said in a statement Tuesday that his office determined after further review that the assertion should be withdrawn.

"Upon further review" says the AG, implying it ever received a first one. As was pointed out by people who actually understand the First Amendment, the legal brief cited no case law to support this peculiar free-speech-by-redaction argument because no such case law exists. Perhaps the AG should rush these findings to the governor's office before any more public records are subjected to the state's First Amendment scalpel.

Filed Under: 1st amendment, attorney general, discovery, eric schmitt, holly rehder, missouri, public records, ron cummins, transparency

Devin Nunes Discovery Requests Against Twitter, A Fake Cow, And Liz Mair Show Just How Much A Fishing Expedition He's On

from the oh-come-on dept

We've written a few times now about Devin Nunes' ridiculous lawsuit against Twitter, two parody Twitter accounts, and political strategist Liz Mair. In a news interview back in April, Nunes more or less admitted that these lawsuits were fishing expeditions to reveal journalists' sources on articles about himself that he didn't like. Meanwhile, both Twitter and Mair filed motions in the case saying that a Virginia state court is the wrong venue.

The court held a hearing on those motions today, and while the judge has not ruled, the Fresno Bee's article about the hearing lists out Nunes' discovery requests, which show just how much of a fishing expedition this case is. From the Fresno Bee (which is being sued by Nunes in a separate lawsuit):

His discovery requests are extensive, and include:

• The identity of anyone Twitter has done business with in Virginia since 2014
• Any time a Twitter employee has been present in Virginia since 2014
• Any telephone calls by Twitter employees to somewhere in Virginia since 2014
• All emails and text messages of Twitter employees or any of the defendants that mention Nunes
• All information related to the parody accounts @DevinCow and @DevinNunesMom, including phone numbers and all their tweets, messages, likes and retweets
• Everyone who donated to a political fundraising group called Swamp Accountability Project, which bought radio ads against Nunes, from Jan. 1, 2018 to March 18
• Mair’s tax returns dating back to 2016 and a report of her assets and liabilities
• Any communications between Mair or her company that mention Nunes

I mean, almost any one of those is crazy. The identity of anyone Twitter has done business with in Virginia since 2014? Any time a Twitter employee has been present in Virginia? Come on. Obviously, some of those are incredibly weak attempts to show why the case deserves to be in Virginia, but that's not how any of this is supposed to work.

Hopefully the judge sees this for what it is and dumps the whole thing.

For what it's worth, the article does note that the two parody accounts, Devin Nunes' Cow (@DevinCow) and Devin Nunes' Mom (@DevinNunesMom) are both unrepresented in the case:

The parody accounts did not have legal representation, though about 20 people sat in the courtroom in support of @DevinCow, sporting cow shirts, signs, stuffed animals and, in one case, a pair of cow ears.

It's possible that Nunes hasn't even served the two parody accounts yet, which could explain why they don't have lawyers in court yet.

Either way, one hopes that the judge recognizes this case for what it is: a frivolous, speech suppressing, unconstitutional fishing expedition by an apparently hypocritical, thin-skinned Rep. Devin Nunes -- who pretends to be in favor of free speech and against frivolous lawsuits -- and throws out the case entirely.

Filed Under: california, defamation, devin nunes, devin nunes cow, devin nunes mom, discovery, fishing expedition, liz mair, nunes cow, parody, virginia
Companies: twitter

Government Tossing Child Porn Cases Rather Than Discuss Its Torrent-Tracking Software In Court

from the escape-hatches-and-opacity dept

The federal government isn't done tossing cases rather than let defendants have access to slightly more level playing field. A new investigation by ProPublica has uncovered more dismissed prosecutions due to the government's unwillingness to allow defendants to examine the software used to build cases against them.

The cases deal with child porn and BitTorrent distribution. The defendants are hardly the most sympathetic. But, like the cases that exposed the FBI's use of malware to gather identifying information from devices around the world, child porn investigations are on the front line of the government's tech deployments. From the description of the cases covered here, it almost appears the government had enough evidence to see the prosecution through to the end. It just chose not to because continuing the cases would mean turning over info on their tracking software to the accused.

Using specialized software, investigators traced explicit child pornography to Todd Hartman’s internet address. A dozen police officers raided his Los Angeles-area apartment, seized his computer and arrested him for files including a video of a man ejaculating on a 7-year-old girl. But after his lawyer contended that the software tool inappropriately accessed Hartman’s private files, and asked to examine how it worked, prosecutors dismissed the case.

Near Phoenix, police with a similar detection program tracked underage porn photos, including a 4-year-old with her legs spread, to Tom Tolworthy’s home computer. He was indicted in state court on 10 counts of committing a “dangerous crime against children,” each of which carried a decade in prison if convicted. Yet when investigators checked Tolworthy’s hard drive, the images weren’t there. Even though investigators said different offensive files surfaced on another computer that he owned, the case was tossed.

The secrecy in these cases is being aided and abetted by private companies. A nonprofit called the Child Rescue Coalition produces a suite of tools called the Child Protection System. But as ProPublica points out, the details are more complicated than its initial appearance: a kindhearted nonprofit helping law enforcement catch child porn producers and consumers. CRC has ties to TLO, a data brokerage recently acquired by credit reporting agency, TransUnion.

Defendants have asked prosecutors to turn over information about CRC's software in cases where it appears to have possibly drawn the wrong conclusions about downloading and distributing child porn. In those cases, TLO -- not the CRC -- has stepped in to inform the courts that it will not be producing the requested info.

The software’s makers have resisted disclosure of its coding. In May 2013, TLO asked a federal court in El Paso, Texas, to quash a subpoena to reveal the software known as the Child Protection System in a child-porn case. The materials sought, they said, “are protected under the law enforcement privilege and trade secrets laws.” After the judge ordered the software produced, prosecutors instead agreed to a plea deal that favored the defendant; he was sentenced to three years he had already served for “transportation of obscene material.

It's not just private companies pushing prosecutors towards dropping cases. It's also public institutions. Torrential Downpour -- software used to track the sharing of child porn via hash values -- was developed by the University of Massachusetts using government funding. When access to code was requested by a child porn case defendant, the university inserted itself into the case to reject the judge's order to turn over the code.

Its lawyer said in a court document that handing over the software would “destroy its value to the university and its faculty researcher,” citing a $440,000 annual FBI grant. “Releasing it to public view would frustrate public policy and impede law enforcement’s ability to deter peer-to-peer sharing of child pornography,” the lawyer added.

The trove of documents [PDF] ProPublica secured show instances where the evidence prosecutors said they had may not have actually been there, thanks to software or human errors. A recent ruling in favor of letting the defendant have access to Torrential Downpour's code seems to show the FBI relies more on what the software tells it than it can actually see with its own eyes.

Defendant Gonzales argues that Torrential Downpour is material to his defense because the distribution charges are based on child pornography files that Torrential Downpour purportedly downloaded from his tablet but that were not found on the tablet when it was seized by the FBI. Doc. 25 at 8-9. He has presented an affidavit from his expert, Tami Loehrs, confirming that the files are not on the tablet. Doc. 25-5. Loehrs explains in her affidavit that it is critical to Gonzales’s defense to understand how Torrential Downpour functions in order to determine the program’s reliability and accuracy in identifying files that Gonzales is charged with knowingly distributing. Id. at ¶ 17. She further states that based on her many years of research and testing of peer-to-peer file sharing software, including BitTorrent, she has discovered that all of these programs “contain bugs, they do not always function as intended and the data reported by these applications is not always accurate or reliable.”

[...]

Loehrs explained that, because a torrent is simply a text-file containing the hash values – or “fingerprints” – of the target image and video files, a BitTorrent user who downloads a torrent has fingerprints of the target files, even if he has not yet downloaded them. Id. at 22:14-23:8. Loehrs stated that the actual downloading of the target files occurs only when the client software instructs the torrent to search for those files on the BitTorrent network and download them to a designated folder on the user’s computer. Id. at 23:9-25:3. She further stated that a forensic examination of the device used to download the torrent can determine whether the torrent has been used to download the file, and her examination of Gonzales’s tablet revealed no evidence suggesting that he downloaded the files listed in counts one through eight.

It's not just defendants' experts being unable to find the files the government claims they downloaded. Investigators themselves have admitted they can't find files that Torrential Downpour said the accused accessed. An examination of the software being used to build cases should be allowed, but the entities behind the software won't allow it and the government is cutting defendants loose rather than giving them a chance to properly defend themselves against these very serious charges. I supposed it ultimately works out for defendants, but it only encourages the government to tip the scales in its favor again when the next prosecution rolls around with the hopes the next defender of the accused isn't quite as zealous.

Filed Under: bittorrent, child porn, child protection system, defendants, discovery, evidence

Uber Waymo Trial Delayed After Justice Department Jumps In, Unprompted, To Tell Judge That Uber Was Withholding Evidence

from the holy-shit dept

So lots of people were gearing up for the Waymo/Uber trial starting next week over Uber's alleged efforts to get Waymo's (Google's self-driving car project) trade secrets. There are a whole bunch of issues around this case that are interesting -- from questions involving what really is a trade secret to where the line is between controlling former employees and allowing people to switch jobs within an industry. But... all of that has been completely tossed out the window as more and more evidence piles up that beyond those key legal issues, Uber sure did some shady, shady stuff. This morning, the latest bombshell (in a long line of bombshells) is that the judge has delayed the trial after the Justice Department got involved, totally unprompted. No, really.

You have to piece together some of the details, because some of the key documents are heavily redacted, but let's try to unpack what appears to have happened. Earlier this year, the judge in the case, William Alsup, referred the case to federal prosecutors to also investigate whether anything criminal had happened. Normally, in such cases, federal prosecutors will spend quite a while looking into the details and no one -- including the judge who made the referral -- will hear boo from the DOJ until charges are filed (if that ever happens). Except... that's not what happened. Apparently while investigating the possible criminal behavior by Uber, the DOJ noticed that Uber had failed to hand over a key piece of evidence during discovery. Specifically, it appears to be a letter from a former Uber security analyst named Richard Jacobs, concerning efforts by Uber to access competitor trade secrets -- and to conceal that information (there is some suggestion that this involved using disappearing messaging apps).

This would have been required to be handed over during discovery, but was not. And no one would have known about it, had the acting US Attorney for the Northern District of California not decided, unprompted, to let Judge Alsup know about it -- leading Judge Alsup, just last week, to order Uber to hand it over to Waymo. You can get some of this from the heavily redacted filing made by Waymo's lawyers, in which you can hear their exasperation over just finding this out.

Also, Judge Alsup order Jacobs to appear in court and answer questions, and reports from the courtroom suggest it's been... messy. Reporters Kate Conger and Joe Mullin have been providing some fairly astounding color commentary. A few snippets from their tweets:

As computer security guru Matt Blaze points out, there are plenty of good reasons for companies to want to use secure communications -- but doing so explicitly to avoid having your conversations show up during discovery certainly doesn't look good in court.

Either way, Judge Alsup appears to be less than happy about all of this:

“We're going to put trial off … because even if half of what’s in that letter is true it would be a huge injustice to Waymo to have to go to trial now,” the judge said...

Judge Alsup also noted that "the public is going to hear everything" about this evidence, so there's likely to be more coming down the road.

Once again, there are all sorts of interesting legal questions underlying this case -- but as happens all too often, it appears that some fairly blatant bad behavior is likely to obscure much of that. While it may make for more entertaining stories, it can muck up some of the legal questions. Or, as lawyers sometimes note, bad cases make bad law. This is shaping up to be a bad case with a pretty clear pattern of incredibly bad behavior by Uber (which, of course, appears to be consistent with the company's reputation). And, unfortunately, that seems likely to distract from some actually important issues that could have a much wider impact, concerning questions around trade secrets and employment.

But, no matter what, withholding evidence like this during discovery -- not to mention some of that evidence being an explanation of how the company tried to avoid discovery -- is a double layer cake of extremely sketchy behavior. It seems unlikely that this will end well for Uber.

Filed Under: autonomous vehicles, discovery, doj, evidence, richard jacobs, self-driving cars, trade secrets, william alsup
Companies: google, uber, waymo