NY Times Publishes A Second, Blatantly Incorrect, Trashing Of Section 230, A Day After Its First Incorrect Article

from the what-is-wrong-with-the-times? dept

Last week we wrote about the NY Times having to issue a whopper of a correction on a giant front page of the Business Section, totally false claim, saying that Section 230 "protected hate speech" online -- which they later had to edit to note that it was actually the 1st Amendment that protected such speech (and the article leaves out that it's actually Section 230 that allows websites to remove hate speech). Coming from a paper that, just weeks earlier, had published an editorial mocking politicians for getting 230 wrong, this was kind of embarrassing.

Even more embarrassing, though, was the day after the NY Times had to totally correct that false article, they ran another blatantly wrong op-ed about Section 230, this one published by Jonathan Taplin, who two years previously had published another op-ed at the NY Times that completely fabricated a bunch of blatant lies about how YouTube and Google operate. You would think that would be enough for the NY Times to maybe think twice about having him publish another op-ed, especially about Section 230 a day after the paper got called out for getting the Constitution wrong. But, nope. Taplin got to publish his anti-Section 230 op ed with no problems, until the NY Times felt the need to issue a correction on that one too.

An earlier version of this article misstated the law containing a provision providing safe haven to social media platforms. It is the Communications Decency Act, not the Digital Millennium Copyright Act.

Taplin, if you don't recall, is an old-school movie and music producer, who a few years ago started getting renewed attention by blaming Google for basically all the ills in the world. He constantly popped up with facts-optional arguments, that seem to get lots of attention because attacking Google is the in-thing, whether or not it's based on any facts.

Here, again, Taplin gets basically all the facts wrong. While he purports to be an experts on copyright law (a dubious claim in itself), since everyone's focused on Section 230, he decided to jump in and pretend to be an expert on that (though, as the correction shows, he confused CDA 230's protections with the DMCA 512 safe harbors, which are quite different). Even post correction, Taplin's article is just... hilariously wrong.

After the El Paso massacre, the 8chan website briefly went offline when Cloudflare, the network provider, banned it. But it was only a matter of time before someone else agreed to support the site: By Tuesday morning, 8chan was back online, spewing a toxic mix of hatred, violence and QAnon conspiracies. Message boards like 8chan aren’t the only place where these things are spread: In March, when there were two mass shootings at mosques in Christchurch, New Zealand, the shootings were live-streamed on Facebook and then viewed millions of times on YouTube.

Of course, what Taplin leaves out is the rather Herculean efforts that Facebook and YouTube went through to block that video -- while also trying not to block legitimate news reports about the shooting. And you know what made that effort possible in the first place? Section 230 of the Communications Decency Act. But, to Taplin, Section 230 is to blame.

Though it may seem that there is little that platforms and politicians can do to stop the spread of online hatred, a great deal could be accomplished with one simple tweak to the existing Communications Decency Act: revise the safe harbor provisions of the law.

Well, here's the thing: The Communications Decency Act does not have any safe harbor provisions. This is the fundamental problem in the NY Times allowing Taplin to write his facts-optional nonsense in which he confused the DMCA 512 (which does have safe harbors) with CDA 230 (which does not) -- and then pretending that merely replacing DMCA 512 with CDA 230 fixes things. A safe harbor, such as what's found in the DMCA, says that if you take certain actions, you are protected. CDA 230 requires no such thing -- it just says that internet service providers cannot be held liable for third party content or for moderation choices.

And, again, it's the protections of 230 that made the actions that Facebook and YouTube took in response to the Christchurch shooting video possible in the first place. But, Taplin's got a beef with these companies, and he's going to scratch that itch, no matter how nonsensical.

A safe harbor provision of a statute or a regulation specifies that certain conduct will be deemed not to violate a given rule. For social media platforms like 8chan, Facebook and YouTube, the most important of these is Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

That's not a safe harbor.

the second one should be: When Johnson & Johnson removed all the Tylenol from American stores in the wake of a poisoning scandal, it did so because of the liability it would face if anyone got hurt. But 8chan, Reddit, Facebook and YouTube are totally protected from being sued for content on their networks because of this unique set of laws created at the beginning of the internet.

What a weird and dumb analogy. Johnson & Johnson faced liability because its products were poisoned. Products where it controlled the manufacturing and the supply chain. That is not the case for the service providers Taplin names. Besides, as noted in the correction to the other NY Times article, the fucking 1st Amendment protects that content. But, of course, Taplin can't actually admit that he's really trying to blame the 1st Amendment.

The safe harbor laws were created for what is known as passive (or neutral) intermediaries.

This is a lie. This is such a lie that the NY Times itself called it out as a lie just a couple weeks ago. The safe harbor was not created for "passive (or neutral) intermediaries." Literally both of the authors of CDA 230 -- Chris Cox and Ron Wyden -- have directly said this is not true. Section 230 was created in direct response to the Stratton Oakmont v. Prodigy ruling, in which a judge said that because Prodigy heavily moderated its forums to keep them "family friendly," it took on liability for any content it left up. Cox and Wyden have both made it clear that the entire point of 230 was to enable sites to moderate content however they saw fit, to encourage the ability to create "family friendly" environments online.

In other words, it was created, explicitly, to enable non-passive intermediaries. Taplin is lying. I'd say he could just be misinformed, but this information has been out there long enough, and Taplin has been so wrong, so often, that it's difficult to see how he could be merely misinformed. At some point you have to wonder if these constant misrepresentations are intentional.

Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries; they present you with content different from what they present to me. They filter pornography and jihadist videos off their networks using artificial intelligence. As such, they should not be shielded from liability by safe harbor laws in the same way that Verizon is shielded.

This is also bizarre. Given what we just said above, without a CDA 230, then Facebook and YouTube would be incentivized not to filter pornography or jihadist videos. This entire piece is internally inconsistent. Taplin first says that because of 230 these sites don't have incentive to moderate (even though they do) and then says that because they moderate, they should lose the protections that make it possible to moderate.

How the hell did the NY Times think it was appropriate to publish this utter nonsense?

Even though Facebook was able to use A.I. to block 90 percent of the Christchurch streams after it identified the video, last year Mark Zuckerberg testified to Congress that it might take five to 10 years to perfect these tools. But society cannot wait five to 10 years — we need to stop these videos now, and banning toxic content must become the highest priority at 8chan, Reddit, Facebook and YouTube.

Dude. In the previous paragraph you argued that these sites shouldn't get 230 protections because they moderate. Now you're saying that they shouldn't get them unless they automatically stop all bad stuff? From paragraph to paragraph the argument changes, unless you consider "Facebook and YouTube are evil" is the only argument Taplin can make.

Some may argue that deciding what counts as toxic video content is a slippery slope toward censorship. However, for the past 75 years, since the first television broadcasts, the Federal Communications Commission has been able to regulate offensive content on television.

This is not a serious take. This is something someone with literally zero knowledge of how any of this works would make. It does not deserve to be placed on the op-ed pages of the NY Times and is a total embarrassment. First off, the FCC only has a mandate over the airwaves, because they are a (somewhat) limited resource, that the US government handed out for the public benefit -- and, as part of that exchange, there was a promise that those who received that spectrum, would not use it for obscenity. Second, the idea that the FCC has ever been able to successfully regulate "offensive" content on TV is laughable and shows a startling lack of understanding of the history of the FCC and its attempts to respond to claims of offensive content on TV. Third, there are strong arguments that the FCC's determinations on offensive content do, in fact, violate the 1st Amendment, and are very much part of a slippery slope towards censorship.

Finally, it's quite stunning to see a Hollywood producer coming out and supporting the FCC's attempts to regulate content on the airwaves. That used to be the kind of thing that Hollywood -- back decades ago when it actually was a force for free speech -- used to fight against.

I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube.

Then you better get to work repealing the 1st Amendment. Because that's what protects this content.

Since broadcasters do not have the protection of “safe harbor,” they engage in a certain level of self-regulation, to avoid being sued.

No, that's not what's going on at all. Broadcasters pick and choose what limited content goes online, because it's not an open platform that anyone can post to. They self-regulate because they are aiming for whatever content they put out to reach a mass audience because they can only produce so much content. It's not because they're afraid of the FCC or because they don't have CDA 230 to protect them.

And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.

Other than that this is an apples to orangutans comparison. CBS, Fox, NBC and ABC pick and choose exactly what content they broadcast. They have 24 hours a day to fill, and that's it. The other services are open platforms where anyone can post anything. And that's an entirely different situation. That Taplin seems to think these are comparable frankly does not speak well of Taplin's understanding of anything related to the internet.

In the past, Google and Facebook have shown that they can pivot quickly and that they already have the technology to keep certain content off their platforms. There is almost no pornography on Facebook or YouTube because of sophisticated tools that search for and prevent such uploads. And since 2017, both companies have actively removed jihadist videos. But it took the right incentives to get them to do both of those things.

Note that it did not take a change to CDA 230 to make Facebook and YouTube decide to remove jihadist videos. He's also wrong. This started way before 2017. Also, in taking down "jihadist videos," Facebook and YouTube have also been deleting and hiding evidence of war crimes. So, hey, if Taplin's cool with deleting evidence of war crimes, good on him. But some of us can recognize that there are serious tradeoffs to decisions that some people erroneously think are easy calls.

Changing the safe harbor laws so that social media platforms are held accountable for the content their users post would incentivize Facebook and YouTube to take things like the deep-fake video of Nancy Pelosi and the Christchurch shooting videos more seriously.

Except that both of those videos are protected by the 1st Amendment. So, no, it wouldn't create liability for those platforms. Indeed, creating such liability would create incentives for platforms to bury their heads and not learn of such videos, a la the Stratton Oakmont ruling.

In the wake of the Christchurch shootings, Prime Minister Jacinda Ardern of New Zealand remarked about the social networks: “They are the publisher, not the postman. There cannot be a case of all profit and no responsibility.”

A quip is not reality. Again, even Taplin admitted in his piece that Facebook blocked the vast majority of those videos. To then pretend that they don't block these videos because of a profit motive is... nonsensical.

In the end though, Taplin is going to Taplin. The real question is why would the NY Times allow this blatant joke of an op-ed to be published in the first place? Especially after Taplin's previous op-ed was filled with similar nonsense, which it got called out for, and the Times itself got mocked for misunderstanding 230 just a week after its own editorial pages mocked politicians for misunderstanding 230? The NY Times should admit that publishing Taplin was a mistake. But it won't, because it's the NY Times.

Filed Under: cda 230, dmca 512, jonathan taplin, misleading, section 230
Companies: ny times

Facebook Finally Shuts Down Its Snooping, Bullshit 'VPN' After A Full Year Of Complaints

from the with-friends-like-these dept

Just about a year ago we noted how Facebook was taking some heat on the security and privacy fronts for pitching a "privacy protecting" VPN to consumers that actually violated consumer privacy. Based on the Onavo platform acquired by Facebook back in 2013, the company's "Onavo Protect – VPN Security" app informed users that the product would "keep you and your data safe when you browse and share information on the web" and that the "app helps keep your details secure when you login to websites or enter personal information such as bank accounts and credit card numbers."

It didn't take long before many began to notice those claims weren't, well, true.

A wide variety of different news outlets were quick to point out that Facebook was actually using the "privacy" app to track users around the internet when they wandered away from Facebook, then using that data to its own competitive advantage:

"Interviews with more than a dozen people familiar with Facebook’s use of Onavo data show in detail how the social-media giant employs it to measure what people do on their phones beyond Facebook’s own suite of apps. That information shapes Facebook’s product and acquisition strategy—furthering its already formidable competitive edge, the people said."

By August, complaints had heated up enough that Apple announced it would be pulling the service from its app store for misleading its customers and violating the app store policies. Even then, Facebook continued to market and push the VPN as a privacy tool while undermining the whole point of said privacy tool. That continued well into this year until TechCrunch released a story noting that Facebook has also been paying kids to install a “Facebook Research VPN," very similar to the Onavo "VPN," the entire function of which was to sidestep app store bans and continue hoovering up data.

That story, understandably, finally appeared to drive a stake into the heart of Facebook's efforts, as many wondered if the participating kids were actually capable of giving their consent for the project. As such it's now a full year later, and as Facebook faces a wave of endless scandals of its own making, it appears to have finally gotten the message and will be shutting these dubious VPN efforts down:

"With the suspicions about tech giants and looming regulation leading to more intense scrutiny of privacy practices, Facebook has decided that giving users a utility like a VPN in exchange for quietly examining their app usage and mobile browsing data isn’t a wise strategy. Instead, it will focus on paid programs where users explicitly understand what privacy they’re giving up for direct financial compensation."

For one, notice how conventional tech "wisdom" didn't really give a shit that Facebook was misleading users until kids were involved, which speaks pretty loudly to our collective privacy apathy. Two, that it took Facebook a full year to realize this was the correct path forward is astonishing. This is a company that's been facing calls for privacy regulation in the wake of nearly a year of almost weekly scandals, yet just kept stumbling forward on the same path. It's another example that Facebook's biggest problem isn't a mean press (as some Facebook insiders have allegedly declared), it's Facebook's executive "leadership."

Filed Under: misleading, onavo, privacy, snooping, vpn
Companies: facebook

FBI Misconstrued Content Of Doc Leaker Reality Winner's Jailhouse Calls

from the press-'record'-and-be-done-with-it dept

The ongoing prosecution of document leaker Reality Winner has developed some new wrinkles. Despite having a very traceable leaked document in hand, the FBI is pitching in by misleading government lawyers -- and by extension, the presiding court. Maybe it's deliberate. Maybe it isn't. Either way, the administration wants desperately to crack down on leakers, and having a high-profile case result in a multi-year sentence would be a good start.

Right now, the government just wants to keep Winner locked up until her trial. Prosecutors have been arguing against her being released from jail by misconstruing the contents of recorded calls from Winner. (h/t Jeremy Scahill)

In arguing for her to be kept in the Lincoln County Jail in Lincolnton, Assistant U.S. Attorney Jennifer Solari told a judge Winner was recorded in a jailhouse phone call discussing some “documents” — plural — raising concerns she might have gathered other top-secret information beyond the NSA report she is accused of leaking. Solari said she was also overheard directing the transfer of $30,000 from her savings account to her mother’s account because the court had taken away her free appointed counsel.

But none of this is true. And it's not as though it's a matter of interpretation. Recordings exist.

But in an email to Winner’s attorneys on June 29, Solari said Winner could be heard in the recording telling her mom she “leaked a document,” singular. And in another recorded phone call, Solari said, Winner asked her mom to transfer her money because of fears authorities “might freeze it.” Winner’s attorneys said she was afraid she would not be able to pay her bills if her account were frozen.

So, where did this bogus info come from? The FBI, of course, which can't be bothered to let a recording literally speak for itself. US Attorney Solari stated in her email her comments on plural documents and the reasons for the requested funds transfer came from "verbal summaries" of the calls provided by the feds.

If there's anything the FBI has shown a systemic dislike for, it's recordings. Despite several decades of recording tech advancements, the FBI prefers pen-and-paper for "recording" interviews with suspects, indictees, and witnesses. In this case, the FBI could have given the prosecutor the recordings directly. Instead, it chose to provide an inaccurate summary. With the FBI, it's never your word against theirs. It's the FBI's words. Period.

Winner's attorneys have asked for her release pending trial, pointing to former military personnel who were allowed to roam free before having their day in court -- people like Gen. Petraeus, who was allowed to retain his position as CIA director up until he plead guilty to mishandling classified documents. But, as her attorneys are surely aware, a multi-tiered justice system doesn't allow for the release of NSA contractors who don't have Forever War Hero listed on their resumes.

Beneath all of this is one incredible fact: the FBI chose to present a verbal recap rather than hand over recordings. If the prosecutor hadn't bothered to listen to the tapes, the judge would be relying on misstatements made by the FBI when making a decision affecting someone's freedom. And if it had gone further than this, those verbal recaps might have been entered as evidence showing Winner was seeking to cut-and-run and possibly leak more documents -- both of which would have had an extremely adverse effect on her sentencing.

Filed Under: bail, doj, espionage act, fbi, high court, leaking, low court, misleading, reality winner

That 20 Mbps Broadband Line We Promised? It's Actually 300 Kbps. Enjoy!

from the broadband-black-holes dept

Did you know that U.S. ISPs in uncompetitive markets are really, really shitty at their jobs? While I assumed that was pretty common public knowledge by this point, there's an interesting new groundswell of attention being paid to the fact that most ISPs are absolutely abysmal at communicating 1: what real-world speeds a user can get; and 2: whether users can actually get service at all. Case in point was the recent, Kafka-esque experience of a new Washington homeowner, who spent months being given the runaround by Comcast and CenturyLink regarding service the companies repeatedly (but falsely) promised was available.

This week, another story is making the rounds that highlights how ISPs will often claim to offer one speed, then actually offer users something dramatically more pathetic (if you can get connected at all). This user in Michigan, for example was told by AT&T's website and employees repeatedly that he should be able to get 20 Mbps at his address -- only to discover that the top speed he could get was a not-so-brisk 300 kbps. Such circa 1999 speeds are of course well below the FCC's new 25 Mbps broadband definition, changed to highlight the notable lack of U.S. competition at higher speeds.

Given that AT&T likely doesn't see any competition in the user's market, that 300 kbps isn't just slow, it's unreliable, suffers from the more-than-occasional hiccup and for good measure it's capped at 150 GB of usage before overages are incurred. Similarly, no competition means AT&T doesn't have great motivation to upgrade its outdated internal databases, or improve customer service. The lack of competition and regulatory capture in so many of these states makes communicating with AT&T (or getting regulators to care about broken promises) a Sisyphean endeavor:

"I’ve complained to just about everybody, the FCC, the FTC, the Michigan Public Service Commission,” Mortimer said. "I got a call back from the office of the president of AT&T responding to my FCC complaint. All I got was, ‘sorry, Mr. Mortimer, the speeds are the fastest available at this time.’" Since Ars first spoke with Mortimer in January, he suffered several more frustrations with AT&T. In one incident, his Internet service was shut off after an auto-payment error, he said. In another mishap, AT&T raised his bill from $33 to $89.40 after adding a phone line to his Internet service, even though he never asked for phone service."

While we generally like to cling to the narrative that broadband connectivity in the States is bad but getting better (thanks to gigabit deployments and Google Fiber), the reality is that in many areas, it's getting worse. The story forgets to mention that AT&T and Verizon are hanging up on unwanted DSL users like these they don't want to upgrade so they can focus on more profitable (read: capped) wireless services. AT&T's so disinterested in the DSL market right now, it's actually turning away eligible customers eager to give them money, and hoping that many of the DSL customers it has get frustrated and leave. Verizon, meanwhile, is taking an even classier route: waiting until natural disasters strike, then refusing to repair DSL and phone customer lines it no longer wants.

The good news is that once you're actually connected at the speed your ISP advertises, more often than not you'll be able to reach those speeds consistently. An annual FCC study informed by custom firmware-embedded routers shows that most ISPs (with the exception of most DSL providers) deliver the speeds they advertise. The FCC has been naming and shaming ISPs that don't with fairly good results. Still, these DSL lines nobody wants to upgrade are going to be a notable problem going forward. And with billions of subsidies already thrown at companies like AT&T and Verizon over the last generation to avoid exactly these problems, people are justifiably skeptical that throwing more federal taxpayer dollars at these markets is actually going to help things.

That's of course where municipal broadband and the FCC's push to eliminate protectionist state laws comes in. Poorly-served towns and cities need the right to craft their own, flexible and customized broadband solutions in cases of market failure -- whether that's a publicly-owned fiber ring or a public/private partnership with somebody like Google. Instead, we've watched as the same telcos that don't even want to serve many of these DSL customers -- pass protectionist law preventing these communities from doing anything about it. We're only just starting to see this logjam starting to break, but it's going to take a lot more work to get many of these broadband black holes out of the grip of mega-ISP apathy.

Filed Under: broadband, competition, dsl, false advertising, misleading, speeds
Companies: at&t

Sheriff's Department Swears Informants Are Trustworthy, Reliable Despite Entirely Random ID Number Scheme

from the this-guy's-a-good-guy-whoever-the-hell-he-is dept

Cops don't believe much of what criminals say -- even those who are still just "suspects" or "persons of interest." They'll say anything they can to stay out of jail. Perps are liars. Except when they're not.

When these perps become confidential informants, they're suddenly considered George Washington of the underworld -- paragons of truth and reliability. Affidavits and courtroom statements play up their honesty and integrity in a way only cops can: "CI-22 made several controlled purchases and said he saw weapons in the house." "CI-4130 has worked closely with Drug Interdiction over the past three years, leading to multiple arrests." And so on.

Confidential informants are given numbers rather than names to ensure those they've helped arrest don't come after them when they're released. A CI's "pedigree" is provided to magistrates in warrant applications and presented to trial judges as evidence of the informant's trustworthiness. All of these are sworn statements -- statements that rely on the confidential informant being not only who the officer says he/she is, but that this CI has proven trustworthy in the past. But all the courts -- and the defense -- see is a number.

In the [Richard] Graf affidavit, [Somerset Sheriff's Deputy Carl] Gottardi attested he had probable cause to believe Graf was hiding marijuana and other drug accoutrements in his home, based on information Gottardi received from a confidential informant called "11-25." 11-25 "ha[d] been a very reliable informant . . . for the past several years," and had helped "obtain[] numerous drug search warrants, . . . with numerous persons being charged and convicted of various . . . drug offenses," Gottardi swore. 11-25 had "also provided other law enforcement officials with reliable drug related information in the past." Specific to this case, Gottardi also wrote in the affidavit that 11-25 relayed his personal knowledge that "for several years [] Graf has continually sold large amounts of marijuana," describing the location of the "camp type residence" where Graf sold his "high grade, commercial type" stuff.

Relying on Gottardi's affidavit, a state Justice of the Peace signed off on the warrant, and during the search of Graf's home, police found marijuana plants and an unregistered short-barreled shotgun. Not surprisingly, Graf was indicted on federal firearms possession and drug charges.

CI 11-25: useful, honest and reliable. The sworn statements say "You can trust CI 11-25. He's never steered us wrong." Except that CI 11-25 could be literally anyone.

When Graf challenged these CI statements, he uncovered something that indicated the numbering system was worthless, and by extension, so was every sworn statement averring to the reliability of CI 11-25. Because there was no single "CI 11-25."

[H]is new lawyer decided to get to the bottom of things himself by digging up all the warrant applications filed by the Somerset County Sheriff's Department from April 2009 through April 2012 and searching for all references to "11-25." Turns out, there were none, that is, no warrant applications filed prior to April 2011 (which was when Gottardi got the warrant to search Graf's home) naming "11-25" as an informant. "11-25" did appear, however, in two of the warrant applications filed after Graf's, but in each of the three affidavits where "11- 25" was mentioned, the informant's background and history as a tipster were described a little differently.

It gets worse. The government's response completely undermined any previous claims of reliability -- not just for CI 11-25 -- but for any CI it had used to obtain warrants in the past.

The government fired off an explanation, though, and in support of its opposition to the motion, submitted a supplemental affidavit from Gottardi describing his "practice to periodically change the identifying numbers assigned to confidential informants." Gottardi also claimed that "the person designated CI 11-25 in the Graf search warrant has been assigned four identifying numbers during the course of" his work with Gottardi. In addition, "[o]ccasionally, identifying numbers will be re-used for different persons," Gottardi swore.

Graf shot back with the obvious: if the numbers have no underlying structure and are applied to any number of confidential informants, there's no way to verify the veracity of the officers' assertions on warrant requests. Just because one CI 11-25 was useful and honest doesn't mean the CI 11-25 in Graf's case was. CI 11-25 is no one. CI 11-25 is everyone. Sworn statements linking back to a group of informants all periodically using the same identifying number are what laypeople call "lies." It may not have seemed like a lie when the warrant application was filled out, but Graf's research shows that the CI 11-25 who helped generate probable cause either wasn't the person sporting the number when the warrant was obtained, or wasn't as reliable as the swearing officer portrayed him or her.

Gottardi's unconventional practice, Graf urged, "is meant to enhance the credibility of the [informant] whose number repeatedly appeared before the same [reviewing official], even though, according to Gottardi, they are different people."

The lower court was similarly nonplussed.

The court noted that "assigning the same numerical identifier to three different confidential informants within a relatively brief timespan" was a "surprising revelation about what seems . . . a highly irregular, ill-advised, and potentially misleading procedure."

Unfortunately, the judge chose to turn examination of this system and the randomly-numbered CI over to the ATF. The ATF looked it over and declared everything to be perfectly normal and CI 11-25 (who wasn't CI 11-25 at the time the warrants were obtained) just as honest and trustworthy as Gottardi had portrayed him in warrant applications. Graf's attempt to suppress the evidence was shut down.

The appeals court similarly found that the discrepancies between described informants -- combined with the "irregular" numbering system -- wasn't enough to call for the suppression of evidence. The leeway given to law enforcement by courts again makes an appearance, as even a numbering "system" that completely undercuts the alleged "pedigrees" of Gottardi's confidential informants isn't enough to show that he deliberately misled the magistrate when seeking warrants.

As we have acknowledged in the past, making a substantial preliminary showing is no easy feat, particularly when law enforcement relies on tips from unnamed confidential informants. See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When the government obtains a search warrant based on information provided by a confidential informant, defendants often lack the information required to meet the exacting standards of Franks."). Graf, like many other defendants in the same boat, has simply failed to meet his burden of making a substantial preliminary showing -- particularly under the deferential clear error standard of review we afford to a court's denial of a Franks hearing.

Second-hand statements that can't even be attributed to a fixed number are still trustworthy enough to secure search warrants, apparently. And the courts will back up this irresponsible (to say the least…) behavior because just writing down whatever identification number comes to mind in the affidavit isn't considered too misleading. This numbering system could be deployed to cover up all sorts of unconstitutional activity -- like warrantless searches, Stingray use, intercepted communications, etc. In each case, the fruits of these searches could be attributed to statements made by an unverifiable confidential informant. Even better, the informant never need exist. Cops could approach magistrates with supporting statements from CI-whatever because there's absolutely no way to establish the CI's existence, much less his or her "pedigree."

Yes, a coherent and consistent numbering system would slightly increase the chances of the CI being identified, but it also provides a modicum of proof that this person exists, rather than just being a string of numbers entirely unrelated to any singular person.

Filed Under: carl gottardi, confidential informants, false history, informants, misleading, police, richard graf, somerset police, somerset sheriff's department

Latest In Cable Astroturfing: If You Squint, Twist, Spin And Mislead With Apples To Oranges Comparisons, US Broadband Is Great!

from the because-it's-not dept

For the past few months, I'd been pitched a few times from people (often somehow, if in murky ways, connected to the broadband industry) arguing that all those stories about how the US is far behind in broadband is untrue if you just looked at certain states. The basic argument is that since the US is so large, it's not fair to compare it to, say, South Korea. Instead, they claim, if you just look at a few states in the US, those states compare quite well to this country or that country. Of course, to make a total fruit basket out of mixed metaphors, this is pretty blatant cherry picking apples to compare to oranges. We haven't written any of those stories, but apparently someone went and created a misleading infographic to try to make the point on a site called "the Connectivist." However, as Chris Morran brilliantly dissects over at Consumerist, the whole argument is bogus:

The only way to do a true apples to apples comparison would be to look at the data for areas with similar conditions, including population size and area, which the Connectivist doesn’t do.

The site simply glosses over the fact that while broadband in the U.S. is improving, it’s still not a world leader in deploying high-speed Internet access to its citizens.

Even though nearly three-quarters of the U.S. has access to what the FCC currently defines as “broadband,” meaning at least 4Mbps downstream, that’s still not a high enough percentage to get it into the top 10 globally. In fact, that percentage barely puts the U.S. in the 40 of all nations.

Likewise, only 39% of Americans have access to 10 Mbps service, which is what many people now consider the minimum acceptable standard for broadband. That ranks higher, putting the U.S. within the top 15 worldwide, but still pales in comparison to world leaders like Sweden (56%), the Netherlands (52%), and Romania (50%).

Morran notes, sarcastically, that the Connectivist seems to ignore all of this... and then suggests a reason why:

Maybe it has something to do with an organization you won’t see mentioned on the Connectivist until you get to its “About” page, where it just happens to mention that “The Connectivist is an online magazine created in partnership with the National Cable & Telecommunications Association.”

Ah yes, the NCTA, better known as the major trade/lobbying group for the cable industry. The very same NCTA that recently tried to set up a painfully awkward attempt at sounding cool and young to attract younger people to its anti-net neutrality stance -- and when confronted with the fact it was behind that campaign, said, "What led you to the conclusion this is an NCTA effort?" At least this time it's officially buried in the fine print, but really, NCTA, if your argument is so compelling, why is it that you always have to set up fake groups to push it?

Filed Under: astroturfing, broadband, competition, misleading, speeds, us
Companies: connectivist, ncta

Comcast Ignores 'World's Worst Company' Award, Misleads About Bogus 'World's Most Admired Company' Award

from the yeah,-good-luck-with-that dept

So, we already wrote about Comcast's attempted charm offensive (built on blatant falsehoods) as part of its effort to get its merger with Time Warner Cable approved. We also wrote about Comcast cruising to an easy victory in Consumerist's famed 'Worst Company' awards (beating out the comic book and sci-fi level evil in Monsanto).

So, in reading through Comcast's filing with the FCC about why its merger is in the "public interest," I found it curious that Comcast decided to ignore the Consumerist award, and instead focus on an award suggesting something entirely different:

By investing heavily in talent, research and development, and in the infrastructure needed to facilitate creativity and invention, Comcast has created a culture of innovation. Comcast now employs over 1,000 engineers and developers, and vigorously competes for new engineering talent with the likes of Google, Apple, Facebook, Netflix, Microsoft, and Twitter. Its single-minded focus on enhancing its services and pursuing innovation have earned it first place among cable and satellite providers on Fortune Magazine’s list of World’s Most Admired Companies – up from third place.

I live in Silicon Valley and talk to engineers all the time. I hear about various job offers and dream jobs, and people talking about working for Google, Apple, Facebook, Netflix, Microsoft, Twitter (and a few other companies as well). I've never, ever, heard anyone even once thinking about working for Comcast.

Of course, it is true that Fortune put Comcast on its list, but note the small caveat that this is solely in the "cable and satellite providers" category which (no joke) consists of a total of four whole companies -- and one of them (ranked the lowest, by the way) is Time Warner Cable. Even more important? The bit that Comcast conveniently leaves out of this message is the line right above its rank in that narrow category. And that's its overall rank:

Top 50 rank: N.A.
Rank in Telecommunications: Cable and Satellite Providers: 1

In other words, Comcast is not in the top 50 "most admired" companies. It only scores in this narrow category with only a very small number of companies, where almost every other company is hated. Now, if we look at the companies that are actually at the very top of the real "Most Admired" list, we'll see: Apple, Amazon and Google in the top three spots. Microsoft (24) and Facebook (38) come in a bit lower. Hell, even AT&T (not a cable or satellite provider) sneaks its way into the top 50 most admired companies at number 50.

So, once again, Comcast's attempts to mislead just call out more scrutiny on the fact that the company seems allergic to honesty. Even in trying to highlight how "admired" the company is, it's actually calling attention to the simple fact that it's not admired at all.

Filed Under: misleading, most admired, world's worst
Companies: comcast, time warner cable

Comcast Apparently Hopes No One Actually Looks At Its Ridiculously Misleading Claims Of Broadband Competition

from the where-are-those-29-competitors dept

Comcast is ratcheting up its charm offensive (or perhaps that's just offensive charm) in trying to get its attempted merger with Time Warner Cable approved. It's released its "public interest statement" and a blog post about how wonderful the merger will be. There are plenty of ridiculous claims in both, but let's focus on the key one -- Comcast's decision to completely fabricate "competitors" in various markets to argue that Comcast competes "in a dynamic, expanding and highly competitive marketplace." Of course, for anyone who actually knows what broadband options they have at home are, this statement is clearly bullshit. But Comcast is going to pretend otherwise, because it's Comcast. This chart really takes the cake: You see that? People in New York City have a wealth of competition according to, well, pure bullshit. Those "29 competitors" involve finding any company in the tri-state area that sorta, kinda offers something that if you squint and sneeze, you might sorta, kinda think maybe could be qualified as broadband if you were the last person on earth and really, really needed a barely working connection to the internet.

In the past, we've reasonably mocked the FCC's website listing broadband competitors, BroadbandMap.gov, because the results it gives are hilariously wrong and/or misleading. But Comcast's competitive claims take this to a new level entirely. Even if we rely on the National Broadband Map, I challenge anyone to find any spot in New York City where someone has anywhere close to 29 choices for actual broadband. Just for fun, I put in an address in the heart of midtown Manhattan, and it coughed up a (laughably misleading) claim of seven competitors. Except three of them (AT&T, T-Mobile and Sprint) are just 3G/4G service over your phones with very low caps and limited speed. Those accounts are explicit that they're not to be used for regular home broadband. So they don't count. You have, of course, the traditional competitors: Time Warner Cable (who Comcast is trying to take over) and Verizon.

And who else? There's just Lightower Fiber Networks and Platinum Equity LLC. Platinum Equity is the private equity firm that bought out MegaPath, a DSL company that has been around (in various forms) for many years, but is only focused on business broadband. Ditto for Lightower Fiber, which only serves businesses. So, oh look, if you want true residential broadband, guess what: your choice is Time Warner Cable or Verizon. And, remember, Verizon is actively trying to get out of the wired broadband market, handing its users over to... their main cable competitors. So, it might not be left until your only real "choice" in the heart of midtown Manhattan is... Time Warner... I mean, Comcast.

So, um, what's that about 29 competitors?

Filed Under: broadband, competition, merger, misleading
Companies: comcast, time warner cable

NSA Deletes Fact Sheet On NSA Spying After Senate Points Out It's Actually NSA Lying

from the transparency-needed dept

The joke around the NSA used to be that the acronym stood for "No Such Agency" as its very existence was denied for years. While the NSA is now very official, it's still probably the most secretive agency out there. That's to be somewhat expected, given its mission, but it appears that when it needs to be transparent, it doesn't do very well at all. We noted yesterday that Senators Ron Wyden and Mark Udall had called the NSA out for flat out lying on a "fact sheet" the agency had posted about its section 702 surveillance efforts. The NSA's response? They quietly deleted the pdf document from their website. Because it's not like the internet notices when you suddenly delete the document you put out to defend your overreaching surveillance techniques... You'd think that, of any agency out there, the NSA would recognize the most that simply deleting something on your local computers doesn't make it actually disappear from the world. But, here's the best part:

Separately Tuesday, another NSA official said the removal of the fact sheets and letter from the senators were unrelated.

Ah, yeah, I'm sure it had absolutely nothing to do with that whatsoever...

In more "unrelated" news, NSA boss, General Keith Alexander has also admitted that perhaps the fact sheet wasn't fully accurate:

"After reviewing your letter, I agree that the fact sheet that the National Security Agency posted on its website on 18 June 2013 could have more precisely described the requirements for collection under Section 702 of the FISA Amendments Act."

Oh, I'm sure that the original wording was fairly "precise." It's just that it was precisely misleading, which is the sort of precision that the NSA seems to specialize in when it comes to any sort of public discussion.

Filed Under: fact sheet, keith alexander, mark udall, misleading, nsa, ron wyden, section 702