Rep. Jerry Nadler Pushing New Bill That Will Destroy Online Commerce; Make Sure Only Amazon Can Afford The Liability

from the how-does-this-help dept

'Tis the season for terrible, horrible, no good bills to destroy the open internet. First up, we've got Rep. Jerry Nadler, a close friend of the always anti-internet lobbying force that is the legacy copyright industries. Earlier this year he introduced the SHOP SAFE Act, which is due for a markup tomorrow, and has an unfortunately high likelihood of passing out of committee. The principle behind the Act (which Nadler has now updated with a manager's amendment) is that "something must be done" about people buying counterfeit goods online.

Not addressed, at all, is whether or not counterfeit goods online are actually a real problem. I know that industry folks always insist that counterfeiting is a scourge that costs billions, but actual research on this shows something different entirely. A GAO report from years back showed that most of the stats regarding counterfeiting are completely exaggerated and multiples studies have shown that -- far from "tricking" people -- most people who buy counterfeits know exactly what they're doing, and that for many buyers, buying a counterfeit is an aspirational purchase. That is, they know they're not buying the real thing, but they're buying the counterfeit because that's what they can afford -- and if they can afford the real thing at a later date, they will buy it. But nearly all of the public commentary on counterfeiting assumes that the public is clueless, and being "tricked" into buying "dangerous" counterfeits.

The second bad premise behind the SHOP SAFE Act is that the "real problem" is Section 230 (because everyone wants to assume that Section 230 can be blamed for anything bad online). So the core approach of the SHOP SAFE Act is to add liability to websites that allow people to sell stuff online. However, as EFF notes in its write up about the problems with this bill, if you try to sell something via Craigslist or even just via Gmail, the bill would effectively make those companies liable for your sale.

One measure platforms would have to take under SHOP SAFE is verifying the identity, address, and contact information of any third-party seller who uses their services. Imagine if you had to provide a copy of your driver’s license to Craigslist just to advertise your garage sale or sell a used bike. As over the top as that seems, it’s even worse when you think about how this would apply to services like Gmail or Facebook. Should you really have to provide ID to open an email account, just in case you sell something using it? Requirements like this threaten not only competition but user privacy, too.

I don't know why we need to keep explaining this, but when you add more liability to internet platforms, you get fewer internet platforms. This bill would effectively lock in Amazon and a few other giant companies as the only ones who could leap through the convoluted bureaucratic (and privacy-destructive) nonsense that this bill requires. Again, from EFF:

Other provisions of SHOP SAFE put the burden of rooting out counterfeits on platforms, rather than on the trademark holders who are in the best position to know a real from a fake. Most concerning to us is the requirement that platforms implement “proactive technological measures” for pre-screening listings. This provision echoes calls for mandatory automated content filtering in the copyright context.

Just a few months ago, I wrote about a trial regarding claims of counterfeit goods in an online marketplace, and just how much the lawyers leaned on the fact that the platform must know what's real and what's not (when even the trademark holder's own representative admitted she wasn't sure which products were real and which were counterfeit). Yet this bill, like so many other bad intermediary liability laws, presupposes that platforms -- which often have to handle millions of new product listings -- can magically stop all counterfeits from appearing.

It's disappointing (if not at all surprising) that the ABA's "Intellectual Property Law Section" is super thrilled with this bill (I mean, it's like a full employment act for IP lawyers) and claims that it will "facilitated robust e-commerce removal and reporting" in a manner that makes it sound similar to the DMCA's safe harbor provisions (which already have significant overblocking problems). But as EFF notes, this takes the entire principle of the safe harbor ("you're protected from liability if you take these steps") and flips it on its head.

SHOP SAFE’s requirements go far beyond the DMCA’s, while lacking safeguards like a counternotice procedure and penalties for bad-faith takedowns. SHOP SAFE also takes the DMCA’s safe harbor structure and flips it upside down. The DMCA incentivizes platforms to adopt certain policies and practices by providing a true safe harbor—that is, platforms that choose to satisfy the safe harbor requirements can be confident that they cannot be held liable for infringement by their users. SHOP SAFE doesn’t work this way. Instead, it creates a new, independent basis for secondary infringement liability, and it directs that all covered platforms must implement a range of practices or else be held liable for any trademark infringement by their users. The DMCA’s safe harbor framework is preferable because it incentivizes desired behavior while maintaining flexibility for different approaches by different platforms according to their unique characteristics.

Everything about the SHOP SAFE Act seems designed to create problems for the open internet. I know that Rep. Nadler doesn't care about that, but you and I should. Anyone who regularly relies on the internet for buying and selling things should be concerned about this bill and what it will do to the internet. It will make it that much harder for you and I to buy or sell stuff. It will give more power to the giant e-commerce companies, such as Amazon, who can handle the regulatory burdens here, but it will make it nearly impossible for competitors to come along, and will make it effectively impossible for people to do more informal sales to each other using the internet as an intermediary.

It's a dangerous bill and it should not move forward in its current form.

Filed Under: counterfeiting, counterfeits, jerry nadler, liability, marketplaces, section 230, shop safe, shopping
Companies: amazon

Facial Recognition Software Brings Personalized Ads To The Supermarket

from the I-saw-what-you-bought-there dept

Facial recognition software is getting to the point where there are some very interesting things that can be done with it in everyday life. That includes really bad ideas like enabling the police to run record checks on everyone who passes in front of their body-worn cameras. But it also means that businesses can start applying the technology in novel ways. Here's what is happening on a trial basis in some German supermarkets and post offices, as reported by Deutsche Welle:

There's a camera and a screen set up by the check-out. A visual sensor scans the faces of waiting customers who have looked directly at the camera and detects whether they're male or female and how old they are.

Marketing company Echion is running the cameras and screens. The brands that advertise with them have clearly delineated target groups. If the visual sensor detects that enough people who fall into a company's target demographic are looking at the screen, an ad by this company will start playing.

Being shown ads that are likely to be more relevant to you is probably no bad thing. But once cameras are in place, it would be natural for shops to start using them for other more complex tasks, like spotting known shoplifters:

faces of individuals caught on camera are converted into a biometric template and cross-referenced with a database for a possible match with past shoplifters or known criminals. Some stores in the US give shoplifting suspects the option of allowing themselves to be photographed, rather than arrested. All this had been made possible by the arrival of networked, high-resolution security cameras and rapidly advancing analytical capabilities.

That's from a story in the Guardian last year, so it's likely that the technology has moved on considerably since then. It's easy to think of more troubling extensions to the idea of scanning shoppers: for example, linking up to other databases of troublemakers and ne'er-do-wells, or to selfies derived from social networks.

As well as obvious privacy issues, explored in the Deutsche Welle report, a more general concern is the normalization this latest application of facial scanning might produce. Once cameras coupled with facial recognition software are routinely installed in everyday settings like supermarkets -- with appropriate warnings -- perhaps we will begin to accept them as the norm, and barely notice their silent spread to other locations and situations.

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Filed Under: creepy, face recognition, privacy, shopping

National Police Union President Says Asset Forfeiture Abuse Is A 'Fake Issue' Generated By The Media

from the scapegoating-a-check-against-government-power dept

Chuck Canterbury, the president of the Fraternal Order of Police, has been given an editorial megaphone over at the Daily Caller. Canterbury's using this platform to defend the pretty much indefensible: civil asset forfeiture.

Colloquially known as "cops going shopping for things they want," asset forfeiture supposedly is used to take funds and property away from criminal organizations. In reality, it's become an easy way for law enforcement to take the property of others without having to put much effort into justifying the seizures. In most states, convictions are not required, meaning supposed criminal suspects are free to go… but their property isn't.

Canterbury, who previously aired his grievances nationally over director Quentin Tarantino's participation in an anti-police brutality rally, opens up this piece by trying to equate factual reporting with current hot button topic "fake news."

Amidst the current national furor against “fake news” is another, more pervasive issue of creating “fake issues” like the myth of policing for profit. There’s been widespread discussion about the need to end the Federal equitable sharing program because a journalist or columnist writes a sympathetic piece describing a case in which the system may not have functioned as intended.

Canterbury admits the "system" doesn't always "function as intended" (although many could argue these cases illustrate the system working exactly as intended), but argues that every report about a questionable seizure is the equivalent of fake news. Innocent people being deprived of their property by profit-focused law enforcement agencies is a "fake issue" -- something that apparently wouldn't be covered by a more responsible press.

As is the case any time law enforcement agencies feel compelled to defend their most questionable actions, Canterbury places the blame on the media:

At a time when the number of officers is declining, federal assistance to state and local agencies is evaporating and deliberate attacks on law enforcement officers are rising, how can this issue be a law enforcement priority? Why are anecdotal accounts in the media suddenly making this a priority in the editorial pages of some newspapers?

Oddly, Canterbury views reports backed by court documents and judicial orders as "anecdotal." This may be because asset forfeiture doesn't have much to do with anything normal people consider to be "facts" or "evidence." Very little beyond the anecdotal is needed to permanently separate citizens from their property, as Fault Lines' David Meyer Lindenberg points out:

Once the feds had made their showing of probable cause, the burden, then as now, shifted to the claimant to prove his property wasn’t the proceeds or instrumentality of a crime. Needless to say, that requires him to prove a negative. Even better, while the government only had to show probable cause, the claimant, in proving his negative, had to prove it by a higher standard: a preponderance of the evidence.

There were countless other inequities, like the fact that the government could use hearsay as evidence while claimants couldn’t. All in all, the deck was about as stacked against property owners as one could imagine.

That was how forfeiture worked back in the 1980s, before reform efforts were put into place. Pretty much indistinguishable from now, after the passage of the Civil Asset Forfeiture Reform Act (CAFRA) in 2000 -- something Canterbury claims shows he's on the right side of history with his pro-forfeiture arguments.

The FOP does not disagree that there is a need for civil asset forfeiture reform. In fact, we worked very closely with Senator Jeff Sessions on this issue going back to the Civil Asset Forfeiture Reform Act (CAFRA) of 2000.

The law enforcement community came together to make the necessary changes to the program to ensure due process protections while preserving equitable sharing as a critical law enforcement tool.

This is Canterbury's bid for being perceived as then good guy heading a union full of officers and agencies being unfairly misrepresented by media clickbaitery. Lindenberg points out that pretty much the entirety of the "reform" in the 2000 reform act was the placing of the word "reform" in the bill's title.

Before CAFRA, “fungible” property could be forfeited even if the government couldn’t tie the assets before it to a crime, but only in money laundering cases. CAFRA extended that provision to all civil asset forfeiture cases.

CAFRA reinstated the fugitive disentitlement doctrine, which banned fugitives in criminal cases from trying to recover their assets.

CAFRA amended 28 U.S.C. § 2461 to authorize criminal forfeiture whenever civil forfeiture was allowed. This let the government seize people’s assets before they were tried on criminal charges, thus potentially depriving them of the ability to fund their defense.

Canterbury worked with Sessions (himself a forfeiture fan who has stated the only thing it does is take stuff from people who've "done nothing more than sell dope their whole lives") to weaken this reform effort. A more serious reform effort never had a chance. This is a list of the concessions given to law enforcement in exchange for giving citizens an incrementally-better chance at recovering wrongfully seized property.

The biggest lie in Canterbury's editorial is also the most expected: that asset forfeiture is actually having an effect on criminal activity.

For over 30 years, the asset forfeiture program has allowed law enforcement to deprive criminals of both the proceeds and tools of crime. The resources provided by the equitable sharing program have allowed agencies to participate in joint task forces to thwart and deter serious criminal activity and terrorism, purchase equipment, provide training upgrade technology, engage their communities, and better protect their officers. It has been remarkably successful.

Sure, that was the theory. In actuality, billions of dollars have flowed into law enforcement agencies with barely any diminishment in the amount of drugs flowing into the country. It may seem like the use of forfeited funds to purchase law enforcement equipment lightens the load on taxpayers but that's only if you don't consider any person whose property has been seized without evidence to not be part of the pool of taxpayers.

Using these funds is also a boon for cash-strapped cities and towns, and they're in no hurry to have to start looking for other revenue streams if this one dries up. So, there's plenty of internal opposition to forfeiture reform efforts as well.

Canterbury keeps going back to the claim he can't back up: that asset forfeiture has done anything else other than enrich the law enforcement agencies participating in it. He wraps up his editorial with the standard cop rhetorical device: our word against yours.

[T]o end a decades-long program which is worth hundreds of millions of dollars to our nation’s communities and has documented success in deterring and fighting crime based on anecdotal media reports is simply not sound public policy.

Unfortunately for Canterbury, his claim of "documented success" is at least as anecdotal as the media reports he appears to feel have turned the nation against this honorable practice of taking money from alleged criminals without going through the process of actually proving any criminal activity took place. But when you're used to separating people from property using little more than hearsay and hunches, I'm sure anything that contradicts your narrative looks like nothing more than hysteria urged on by an irresponsible press.

Filed Under: asset forfeiture, asset seizure, chuck canterbury, police, shopping, theft
Companies: fraternal order of police

Dumb Policy: Store Charges $5 Just To Look At Goods, To Keep People From Looking And Then Buying Online

from the add-value,-don't-take-it-away dept

It's really incredible how many bad strategies legacy companies come up with in trying to compete with the internet. Rather than increasing their own value and figuring out ways to leverage that value, they often go in the other direction and make the experience worse. Case in point, this store in Australia that is so fed up with people shopping in the store, but then buying online that it's now charging people $5 as they enter just to look around. If you buy something, the $5 counts towards the purchase. If you don't, the store keeps it. In case you can't read it, the sign says:

As of the first of February, this store will be charging people a $5 fee per person for “just looking.”

The $5 fee will be deducted when goods are purchased.

Why has this come about?

There has been high volume of people who use this store as a reference and then purchase goods elsewhere. These people are unaware our prices are almost the same as the other stores plus we have products simply not available anywhere else.

This policy is line with many other clothing, shoe and electronic stores who are also facing the same issue.

This story originally got attention via Reddit, and looking at some other photos it appears the store is called Celiac Supplies, and is a "gluten free grocery store."

I can understand where the thought process to do something like this comes from. For years, of course, we've heard things about how Best Buy has basically become Amazon's showroom. But this is the exact wrong response. Rather than showing ways to add more value to the customer experience so they want to come in, they're taking away value and giving customers reasons to never go in in the first place. That's a stunningly short-sighted way of running a business. The people who were coming in, seeing what was there and then ordering online aren't suddenly going to start paying you for stuff anyway. They'll keep shopping online. But, on top of that, some existing customers who are used to buying will be turned off by this and also switch to buying online.

In fact, this seems to be screaming out "hey, you get better deals online and we know it!" Not smart.

Instead of doing that, why not look for ways to add value? For a specialist store like this, they could create all sorts of additional value, including more support in helping customers find what they need, the ability to offer bundles and recipes, cooking classes and much much more. The focus should be on using the local store to provide more value rather than taking away reasons to shop there.

Filed Under: customers, online, providing value, retail, shopping, showrooming, windowshopping

One Step Closer To Sales Taxes On All Internet Purchases

from the is-that-really-necessary? dept

On Friday, Congress came one step closer to imposing a federal "internet sales tax" on any internet purchases by agreeing to amendment that more or less indicates strong support for a more comprehensive internet sales tax down the road. This kind of tax has been pushed for years mainly by two key constituents: (1) big box offline retailers who think that the online guys are only beating them because they don't have to charge a sales tax for out of state purchases (2) local state governments who think they're being ripped off by not being able to collect such taxes. There are still some hurdles in the way, but it's becoming clear that this kind of tax is inevitable. The amendment passed 75 to 24, so it's got plenty of support. Max Baucus, who heads the Senate Finance Committee which could kill such a bill if it had less support, has already noted that his state, Montana, has no sales tax at all, and he's a bit ticked off that Montana residents may need to start paying sales tax online. Still, as the article above notes, Baucus's ability to block the bill via the Finance Committee is limited due to the size of the support among other Senators. I've yet to see a compelling argument for why such a tax makes sense -- other than random state governments insisting they need the money -- but at this point it seems almost inevitable that it's going to happen.

Filed Under: internet, retail, shopping, taxes

If Your Ad Claims 'Save More Every Time You Shop,' Does That Need To Be True?

from the questions-for-the-ages dept

Two supermarkets based in the northeast are involved in a legal dispute after one of them, Stop & Shop, put out an advertisement with the tagline "Save More Every Time You Shop." Competing market A&P (which few people remember actually stands for The Great Atlantic & Pacific Tea Company) is complaining that it's false advertising to say that you'll save every time. While I generally tend to have a problem with false advertising claims, you do have to wonder if a throwaway line like the one here actually leads anyone to believe that "every time" they go to this one store, they'll save money. A&P does have a few more specific claims about the details of the ads, which show two shoppers who apparently saved a certain amount compared to the same items bought at a nearby A&P (including the fact that they have no records of bills in the amount in question at the local shops on the days the comparison was supposedly made). Those might have a bit more sway, but it seems like a silly tagline is unlikely to really lead to any actual harm in terms of people believing it to be true.

Filed Under: ads, shopping, tagline
Companies: a&p, stop & shop