New York’s Rikers Island Has A Drug Problem That’s Being Aided And Abetted By Jail Staff
from the maybe-the-inmates-should-run-the-asylum? dept
Rikers Island doesn’t just house the convicted. It also houses those merely accused of crimes who are awaiting trial. The difference between the two doesn’t matter much to those staffing Rikers. If you’re there, you’re no longer a human being.
For years, the jail has been mismanaged, which is a really kind word for a complete abdication of responsibility. In 2014, the DOJ released a report detailing the massive amount of brutality inflicted on detained and incarcerated minors by Rikers Island staff. This is from the report:
DOC staff routinely utilize force not as a last resort, but instead as a means to control the adolescent population and punish disorderly or disrespectful behavior…
What the DOJ managed to observe is likely a severe undercount of violence perpetrated against incarcerated adolescents. As the report notes, jailers prepare their own incident reports, recordings of violent incidents often go missing, and most of the alleged violence usually happens in areas where cameras aren’t present, ensuring the jailer’s report is the only record of the altercation.
Less than a month later, it was revealed Rikers Island officials had buried previous reports of violence and jailer misconduct. A dozen city investigators soon learned the truth: the warden and deputy warden had “abdicated all responsibility” to deliver accurate statistics about inmate-on-inmate and jailer-on-inmate violence. They had also “failed to supervise staff” and “establish internal controls” to ensure accurate reporting. That all dovetailed into this damning statement:
[N]o one was ultimately disciplined over the problematic violence statistics…
None of this is anomalous. These are just data points on the Rikers Island continuum — the ongoing malfeasance practiced by those charged with ensuring the safety of convicts and those awaiting trial. The rot is so deep the only way to distinguish the jailed from the jailers is the distinctive cargo pants worn by the latter.
Eight years ago, the New York City Department of Investigation conducted an extensive undercover operation to determine how drugs and weapons were getting onto Rikers Island, where chaos and crime were explosive. Posing as a correction officer on six different occasions, an investigator successfully made it through check points with vodka contained in a water bottle he held in his hand, a razor blade, 250 glassine envelopes of heroin, 24 packaged strips of Suboxone (used to treat opioid addiction) and a half pound of marijuana. The drugs, valued at about $22,000, were concealed in the pockets of cargo pants that were, however counterintuitively, part of the guard uniform.
That investigation prompted the arrest of 27 corrections employees for drug smuggling. That purge wrapped up five years ago. The problem still isn’t solved. Following a scathing death-in-custody report released late last month by the New York Department of Corrections, more details are coming to light.
The report [PDF] shows just how little effort is made by jail staffers to prevent drug abuse, suicide, and medical emergencies. It also shows their failure to respond with any sense of urgency to these situations. Policies requiring periodic cell checks that involved not only looking at the incarcerated person but ensuring they were still alive and breathing were ignored. This indifference led to situations like these:
OCME investigators noted a visible “foam cone” and bleeding from Mr. Sullivan’s nostrils, which is typical in suspected overdoses, as well as rigor mortis, which sets in faster in cases of suspected overdose. An empty clear plastic bag was found in the cell assigned to Mr. Sullivan. All occupied operable cells and common areas were searched following Mr. Sullivan’s death, but no contraband was recovered. People in custody speculated Mr. Sullivan died from an accidental overdose because he was reportedly known to hoard pills. The last search conducted in Mr. Sullivan’s housing area prior to his death was on May 20, 2022, although Mr. Sullivan was not yet housed there on that date.
[…]
CHS medical records show that Mr. Carrasquillo missed 207 medical visits from September 29, 2019, through June 16, 2022. DOC did not produce Mr. Carrasquillo for 193 of these visits.
[…]
Review of surveillance footage shows that on July 10, at around 2:23 am, a person in custody slid an item that appeared to be lit and attached to a string underneath Mr. Muhammad’s cell door. At the time, all people in custody were supposed to be locked in their cells. DOC uniformed staff failed to tour every 30 minutes overnight. Board staff noted only six completed tours between 12:51 am and 5:47 am, during which the “B” post officer failed to check each individual cell.
[…]
Correction officers failed to conduct tours every 15 minutes that evening, as mandated in mental observation units. However, the “B” post officer documented active supervision tours of the area in logbook entries every 30 minutes between 5:00 pm and 10:00 pm. These tours did not take place.
Officers also failed to intervene when witnessing individuals smoking in the unit. Throughout the next hours, Mr. Lopez sniffed substances he poured into his hands, and smoked both alone and with other people in custody, all while officers were either at the front of the unit or walking past. Overnight, correction officers neglected to tour every 15 minutes to check that all individuals in their care were alive and breathing. DOC records reflect that at one point, the “B” post officer seemed to be asleep.
Neglect, carelessness, laziness, disinterest… all of this helped Rikers Island produce 18 in-custody deaths between January and November 2022.
Adding to the problem? Corrections officers smuggling in contraband for inmates.
A packet of drugs in a McDonald’s salad. Vacuum-sealed marijuana in a lunch box. Hennessy cognac in AriZona Iced Tea bottles, and Ciroc coconut-flavored vodka in Poland Spring water bottles.
These are all examples of contraband smuggled into New York City jails in recent years — not by detainees or their visitors but by correction officers.
Every so often, a corrections officer will be rung up on criminal drug smuggling charges. But that’s all external. The jail is a safe place for people who can’t be trusted to run a jail.
The Department of Investigation receives more than 200 allegations a year of officers bringing in contraband, according to sources familiar with the probes. The agency is investigating about 50 of those complaints at any given time.
But only a small fraction result in criminal cases or disciplinary action.
There’s no deterrent. Investigations are often shelved indefinitely. Despite contraband seizures actually increasing during COVID lockdowns when outside visitors were prohibited from meeting with inmates, no additional scrutiny was directed at the obvious source of this increase: corrections officers. They’re still treated as above suspicion, even after years of demonstrating they aren’t.
Like any other longstanding law enforcement problem, addressing it requires a form of will and dedication not often observed in elected officials. When confronted by powerful law enforcement unions and the public’s indifference to the rights and well-being of inmates (including those who are simply accused of criminal activity), reform efforts tend to be abandoned in favor of things that are easier and more popular. Meanwhile, inmates will continue to kill each other and themselves, all while being assisted by corrections officers who don’t care about the people they watch over and seem more than happy to help them end their lives.
Filed Under: rikers island
Ring Doorbell Cams Hijacked By Assholes To Provide Live Streams Of SWATtings
from the another-PR-coup-for-Ring dept
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Amazon’s home security tech acquisition, Ring, has become a dominant player in this industry sector. Some of that is due to Amazon’s backing. A lot of this is due to extremely inappropriate relationships with law enforcement, which convert cops to Ring proselytizers whose public statements are subject to review by the company’s PR wing.
Ubiquity is great for Ring’s bottom line. But being everywhere means you’re a prime target for malicious behavior, especially when market expansion is prioritized over securing devices used by millions of customers.
Easily exploited credentials led to horror stories from Ring users. Hackings were livestreamed, with hackers yelling verbal abuse and racist slurs at unsuspecting camera owners. In some cases, cameras in children’s bedrooms were targeted, subjecting kids to abuse shouted by hateful idiots whose oxygen allowance is greatly in need of severe reduction.
Ring responded to its complete lack of security requirements by implementing a few tepid changes to the “do nothing” baseline. While this may have nudged more people towards 2FA by making it the new default, it appears there are plenty of unsecured devices still online, sharing data and recordings with Ring while being attack vectors for malicious hackers.
The latest news for Ring and its internet-of-mostly-unsecured-devices? Becoming the mute witness to SWATtings perpetrated for the amusement of hideous internet denizens. Brian Krebs has more details at his site:
Two U.S. men have been charged with hacking into the Ring home security cameras of a dozen random people and then “swatting” them — falsely reporting a violent incident at the target’s address to trick local police into responding with force. Prosecutors say the duo used the compromised Ring devices to stream live video footage on social media of police raiding their targets’ homes, and to taunt authorities when they arrived.
Prosecutors in Los Angeles allege 20-year-old James Thomas Andrew McCarty, a.k.a. “Aspertaine,” of Charlotte, N.C., and Kya Christian Nelson, a.k.a. “ChumLul,” 22, of Racine, Wisc., conspired to hack into Yahoo email accounts belonging to victims in the United States. From there, the two allegedly would check how many of those Yahoo accounts were associated with Ring accounts, and then target people who used the same password for both accounts.
An indictment unsealed this week says that in the span of just one week in November 2020, McCarty and Nelson identified and swatted at least a dozen different victims across the country.
Note that 12 of these livestreamed attacks took place in November 2020, a full eight months after Ring rolled out new security measures meant to make it more difficult for people to gain access to customers’ cameras. The by-default 2FA only affected new users. And Ring appeared to add nothing that shoved existing users to better security, meaning there’s plenty of exploitable cameras still out there, thanks to Ring’s tireless marketing efforts and extremely tired approach to device security.
Old logins tied to older logins were the attack vector, says the DOJ:
According to the indictment returned Friday afternoon by a federal grand jury in Los Angeles, from November 7, 2020, to November 13, 2020, Nelson and McCarty gained access to home security door cameras sold by Ring LLC, a home security technology company. Nelson and McCarty allegedly acquired without authorization the username and password information for Yahoo email accounts belonging to victims throughout the United States.
Then, they allegedly determined whether the owner of each compromised Yahoo account also had a Ring account using the same email address and password that could control associated internet-connected Ring doorbell camera devices. Using that information, they identified and gathered additional information about their victims, according to the indictment.
Easy enough to do. And even easier to weaponize. It appears the indicted hackers believed they were pretty much untouchable. Not only did they interact with responding law enforcement, their SWATting campaign spanned the nation.
Nelson allegedly accessed without authorization a Ring doorbell camera, located at the residence of the victim’s parents and linked to the victim’s Ring account, and used it to verbally threaten and taunt West Covina Police officers who responded to the reported incident.
The indictment alleges other similar Ring-related swatting incidents occurred in Flat Rock, Michigan; Redding, California; Billings, Montana; Decatur, Georgia; Chesapeake, Virginia; Rosenberg, Texas; Oxnard, California; Darien, Illinois; Huntsville, Alabama; North Port, Florida; and Katy, Texas.
Is this Ring’s fault? No. Not directly. Just because something could be used for nefarious ends doesn’t mean it should be. All culpability for the harms perpetrated in these cases rests with the perpetrators. But if Ring had valued customer security over market expansion earlier, at the very least these horrible human beings would have been deprived of the vicarious thrill of watching their victims be victimized in real time. And that lack of visual thrill might have been enough to reduce the number of attacks, limiting the damage allegedly done by this pair.
Filed Under: live streams, ring, ring doorbell, swatting
Companies: amazon
Elon Musk’s Biggest Success Story: Convincing People To Try Out An Open, Distributed Social Network
from the Elon-Musk-is-underpants-gnomes dept
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A few months ago, I attended a wonderful conference put on by the “Global Freedom of Expression” program at Columbia University discussing decentralized social media and regulations around social media. One of the speakers, Alison McCauley from Unfinished Labs, gave a very interesting presentation on the first day of the conference, October 3rd, (which kindly praised my Protocols, Not Platforms paper), talking about how the world world would eventually move to decentralized social media. I found one slide in the presentation particularly interesting:
Even as it showed exactly what I think would be good for the world, to move away from the internet giants to a more open, decentralized, protocol-based world, I’ve spent years thinking through all the reasons that seemed unlikely to happen. So this chart seemed a bit too… underpants gnomes for me.
It’s great to put “events that trigger disillusion” into the slide, but they certainly felt like that giant Phase 2 “?” in the underpants gnome project.
Lots of people had been saying for years that privacy scandals or other scandals would trigger the grand awakening, but I’d yet to see anything actually happen, and so I thought that if you were to put that into a slide, it seemed like we needed a deeper discussion on what would actually make people get disillusioned. Because very little seemed to have worked to date.
The very next day, while we were at the second day of the conference, Elon Musk announced that he was no longer trying to get out of the deal to buy Twitter, and would go forward with the acquisition.
And while that prompted an immediate hallway discussion with some other conference attendees on what available alternatives there were that could handle an influx of folks, I still didn’t quite expect things to play out as they have. I’ve already wrote about how I’ve come around to now realizing that I’m just not that interested in centralized platforms, after seeing (1) how much worse Elon has made Twitter in just a short while and (2) how quickly Mastodon grew and adapted.
Others are noticing as well. NBC has a somewhat snarkily titled article, noting that Elon Musk is growing a social network — just not the one he expected. It highlights how Mastodon’s recent surge in growth is almost entirely driven by Musk’s whimsically stupid (and quite often hypocritical) decision making. From the article:
Basically, each time Musk does something stupid, such as banning links to Mastodon, it just… drives more people to Mastodon.
Elon Musk has become a one-man “events that trigger disillusion.” And it’s kind of incredible given all of the previous events and nonsense that failed to do so.
Mastodon-powered sites averaged about 130 new sign-ups an hour from Oct. 1 to Oct. 26. The number jumped to 2,000 an hour after Musk took control of Twitter on Oct. 28. Sign-ups rose to more than 5,000 an hour after Twitter began mass layoffs a week later, and they peaked at almost 10,000 an hour after employees resigned en masse following an email ultimatum Nov. 17.
New sign-ups spiked again in mid-December, when Twitter suspended journalists who had been reporting on Musk and the company, and again when Twitter abruptly banned users from sharing links to their profiles on other major social networks.
It makes you realize just how random some of this is. Obviously, it’s not over yet. Many, many people still believe that Musk will right the Twitter ship and everything will be fine. Or that Mastodon’s growth will hit limits in the near future. But, the service has grown by leaps and bounds and has become incredibly useful. I’ve almost entirely stopped checking Twitter when just a couple months ago, Twitter was my main way of keeping up with the news.
This isn’t the kind of “disruption” we usually talk about in Silicon Valley, but it certainly is… disruptive.
Filed Under: disruption, elon musk, mastodon, underpants ghomes
Companies: twitter
Daily Deal: Petoi Bittle Robotics Kit
from the good-deals-on-cool-stuff dept
Meet Bittle, the palm-sized open-source bionic robot dog. Have fun watching it play tricks like a real animal, moving with 4 legs rather than wheels. Legged motion gives it more freedom to navigate unstructured terrains. Bittle is an open platform to fuse multiple makers’ gadgets into one organic system. With a customized Arduino board coordinating all instinctive and sophisticated movements, you can clip on various sensors to bring in perception. You could also inject artificial intelligence capabilities by mounting a Raspberry Pi or other AI chips through wired/wireless connections. Have fun while improving your programming skills. The kit is on sale for $329.
Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.
Filed Under: daily deal
Block Ads For Your Own Safety, Says The Man
from the finally,-some-public-service-from-public-servants dept
Careful, kids. The FBI is recommending something useful. The same entity that thinks encryption is the enemy has delivered a message suggesting it may still care about the safety and security of internet users… at least those it doesn’t consider to be persons of interest. Here’s Daniel Sims of Techspot with more details.
The FBI issued a public notice this week advising consumers to watch out for scammers impersonating advertisements. The Bureau’s solutions included using an ad blocker so the fraudulent ads (along with real ones) don’t appear.
Users who search for companies on Google these days usually see the word “ad” next to the first couple of search results from companies that buy ads on the service. The FBI warns that some malicious actors are buying ads while impersonating real companies in elaborate schemes to scam customers and deliver malware.
The surprise announcement that ad blocking may be good for your computer health comes as part of the FBI’s ongoing efforts against cyberfraudsters and malicious actors, some of which work for foreign governments. Impersonating ads is easy. Duping unsuspecting internet users is even easier. When the faux thing is indistinguishable from the real thing, the best prophylactic for safe surfing is an ad blocker, which will block all (or most) things ad purchasers (and malicious entities) wish people would click on.
In particular, the government highlights sites of dubious nature that provide big shiny “DOWNLOAD” buttons that do nothing but download malware, spyware, and bloatware onto users’ devices.
In instances where a user is searching for a program to download, the fraudulent webpage has a link to download software that is actually malware. The download page looks legitimate and the download itself is named after the program the user intended to download.
Put the ad block condom on your download wang, says The (federal) Man, taking a break from its usual hassling.
The FBI isn’t wrong. Ad blocking just makes sense. In addition to decreasing general annoyance, blockers prevent malicious entities from enticing users into risky clicks or from delivering their malware payloads in the background while users wait for pages to load.
And it’s not just shady download sites operating out of countries like Tuvalu or the Philippines to avoid US DMCA requirements. It’s well-established, possibly respected websites like Forbes and Yahoo. The federal government has long recognized the threat malicious ads pose to users, which is why the CIA, NSA, and other intelligence agencies have long required the use of ad blockers by employees.
The smart thing has always been to ad block. If you want to support websites you enjoy, there are other ways to do so without being subjected to, at best, terrible ad inventories and autoplay garbage that have the power to fire up your processor fan even though you’re doing nothing more strenuous than accessing websites.
Ads are not inherently evil. But they’ve never, ever been an unequivocal good. And when they’re easily impersonated, the best response is throw the barely tolerable baby out with malicious bathwater. Unfortunately, the FBI’s advice is only as good as the browsers supporting it. With some browsers looking to deprecate ad blocker support (stares pointedly at Chrome), the best practices recommended here may soon be an option some users simply won’t have. Until that day, though, get your ad block on. The Man himself recommends it.
Filed Under: ad blocking, fbi, scams
LastPass Tries To Bury The Full Scope Of Its Disastrous Privacy Breach Behind The Christmas Holiday
from the dysfunction-junction dept
Back in August, password storage app LastPass vaguely admitted that hackers had accessed the company’s systems. In the company’s original August reveal, the company generally tap danced around the subject, claiming that while they had identified some “unusual activity,” consumer data had not been accessed.
By November, LastPass had begun shifting its story a bit, acknowledging that the unauthorized August access to its systems had allowed an unidentified third party to “gain access to certain elements” of customer info later on. Then, right before the Christmas holiday on December 22, LastPass finally revealed something closer to the full truth. And it’s not pretty:
The threat actor was also able to copy a backup of customer vault data from the encrypted storage container which is stored in a proprietary binary format that contains both unencrypted data, such as website URLs, as well as fully-encrypted sensitive fields such as website usernames and passwords, secure notes, and form-filled data.
That vault data included company names, end-user names, billing addresses, email addresses, telephone numbers, and the IP addresses from which customers were accessing the LastPass service. All of that information, including numerous IP address records allowing the tracking of user locations and movement, is now in the hands of an unknown third party.
The vaults also included copies of encrypted user passwords. And while those passwords might be safe for users with strong master passwords and updated default account settings, some users with older account settings and weaker master passwords may have had their entire password list exposed, meaning those folks are now spending the holiday updating potentially thousands of website and service passwords all across the internet.
Security researchers weren’t impressed for numerous reasons. For one, it took LastPass numerous months to fully reveal the full scope of the intrusion. And when they did reveal it, they not only buried it ahead of the big holiday in the hopes it would minimize attention, security researchers like Wladimir Palant argued the announcement was aggressively misleading from beginning to end:
LastPass is trying to present the August 2022 incident and the data leak now as two separate events. But using information gained in the initial access in order to access more assets is actually a typical technique used by threat actors. It is called lateral movement.
So the more correct interpretation of events is: we do not have a new breach now, LastPass rather failed to contain the August 2022 breach. And because of that failure people’s data is now gone. Yes, this interpretation is far less favorable of LastPass, which is why they likely try to avoid it.
That entire post is worth a read, as it outlines the numerous instances in which LastPass attempts to distort both event history and the scale of the breach. And again, this wasn’t just some fly by night shop selling garbage smart home doodads. This was a company purportedly dedicated to consumer security, and this is just one major event in a string of bad decisions and previous breaches.
Filed Under: encrypted data, ip addresses, location data, password managers, passwords, privacy, security
Companies: lastpass
Texas Cop Sentenced To More Than 11 Years In Jail For Killing A Woman During A Welfare Check
from the one-down,-hundreds-to-go dept
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It’s not often a cop gets criminally charged for killing someone. In most cases, cops are cleared of wrongdoing. Even when they aren’t, their employers and overseers aren’t interested in establishing deterrents to bad police behavior or holding bad cops accountable for their wrongdoing.
There are notable exceptions, of course. The most recent notable case would be that of Minneapolis police officer Derek Chauvin, who was convicted of murder for kneeling on the neck of unarmed black man George Floyd for more than nine minutes, killing him over an alleged attempt to pass a fake $20 bill. Shortly after that, Alabama police officer William Darby was convicted of murder for killing a suicidal man less than 11 seconds after entering the man’s house.
There’s a phrase I use in cases like the latter: helping someone to death. That’s what cops do in far too many cases involving welfare checks, mental health emergencies, or suicidal people. Cops aren’t trained to help. They’re trained to hurt. And that tends to result in the deaths of those they were sent to aid.
The killings and deaths are common. What’s uncommon is a cop being held accountable for their actions. But that has happened in this tragic case. As Courthouse News Service reports, Fort Worth (TX) police officer Aaron Dean (who quit before being fired) has been sentenced to prison for killing an innocent woman within seconds of encountering her.
A Texas jury sentenced former Fort Worth police officer Aaron Dean to nearly 12 years in state prison Tuesday for killing a Black woman through her window after not identifying himself as police during a requested welfare check.
A Tarrant County jury deliberated for nearly two full days before sentencing Dean, 38, of Arlington, to 11 years, 10 months and 12 days. He faced between two and 20 years in state prison. The decision came five days after jurors convicted Dean of manslaughter for shooting Atatiana Jefferson, 28, on Oct. 12, 2019.
Atatiana Jefferson was killed for the non-crimes of (1) being in her own home, and (2) possessing a firearm. Both of these acts are legal. What clearly wasn’t legal — at least according to this jury verdict — were Officer Dean’s actions.
Officer Dean was supposedly performing a welfare check in response to a call to police dispatch. A neighbor of Jefferson’s called the cops on a non-emergency line, expressing their concern that lights were on and doors were open at Jefferson’s residence at 2 in the morning.
Officer Dean, rather than approaching the front door of Jefferson’s residence, decided to creep around to the back yard. He never announced his presence. He never made Jefferson aware he was near her home. He simply crept around in the dark until his activities provoked a response from Jefferson. She heard noises in her backyard. And, apparently fearing for her own safety, she grabbed her handgun and approached her back window.
The officer’s actions were captured by his body camera. Jefferson had every right to reside in her own home and hold her legally-owned weapon while investigating the source of mysterious noises outside of her house at 2 in the morning.
Officer Dean felt otherwise. He felt his unannounced presence was all the permission he needed to shoot and kill Jefferson, firing through her back window within two seconds of seeing her. Here’s the body cam video, which unfortunately contains the Fort Worth PD’s overemphasis on the weapon Jefferson legally carried in her own home.
From 0:00-1:33, Officer Dean moves around the outside of the house. From 1:34-1:35, he shouts at, shoots, and kills Atatiana Jefferson. This is not a typo. Officer Dean shouted “Put your hands up! Show me your hands!” and fired a shot through the window before his second sentence was completed. He gave Jefferson no chance to comply.
The PD framed this as Jefferson being the “perceived threat” Officer Dean responded to by shooting. But how in all that is fucking holy can someone moving around in their own home be considered a threat? The call Officer Dean responded to came in on a non-emergency line. This was supposed to be a welfare check on the home’s residents. Dean had no reason to perceive anyone as a threat. His decision to present himself as a threat by acting like a burglar provoked the actions he chose to view as “threatening.” He did everything wrong. Because of that, an innocent woman who was babysitting her 8-year-old nephew, was killed. And Officer Dean rendered no aid while Jefferson bled out in her own living room, instead appearing to express relief that he had found a handgun near her body.
Fortunately, the jury found Dean guilty of manslaughter. The jury declined to find the officer guilty of murder. But at least it understood the assignment. This may not have been murder. But, even so, there was no reason to allow Dean to walk away from this horrific abuse of his police powers.
Dean would have been eligible to serve only probation if jurors had sentenced him to less than 10 years in prison.
That’s why they handed down an 11-year sentence. Officer Dean may not be a murderer. But he was so criminally negligent in his handling of this welfare check he should not be allowed to roam free for the next decade while waiting for his sentence to roll off the books. Dean is going to prison. And hopefully his sentence will serve as a deterrent to other officers who think going off-script is the best way to handle situations that don’t require out-of-the-box thinking. That sort of thing just gets innocent people killed.
Filed Under: aaron dean, atatiana jefferson, fort worth, tarrant county, texas, welfare check
ITC Blocks Import Of Apple Watches Based On Claimed Infringement… But The Patents Have Already Been Declared Invalid
from the the-loophole-lives... dept
It’s been many, many years since we were regularly covering what we referred to as the ITC loophole in patent enforcement. The issue was that patent holders could get two totally separate at bats to try to force a company that was actually innovating to pay up over dubious patents. They could go to court, of course, by filing a patent lawsuit. But they could also go to the International Trade Commission, claiming infringement, and if the ITC agreed, it could ban the import of products it claimed was covered by that patent. While the ITC couldn’t force a company to pay fees for infringement like a federal court could, it was effectively just as bad, because once an import ban was in place (since most products are manufactured outside the US), the companies would be forced to negotiate a huge settlement just to keep their business going.
Thankfully, the worst parts of this “loophole” were at least somewhat limited a decade ago with the America Invents Act patent reform, which introduced the concept of the Inter Partes Review (IPR), in which anyone could petition the Patent Trial and Appeals Board (PTAB) to review a patent to determine if a mistake was made in the original granting. While that didn’t stop the use of the ITC, it created a more rapid path to invalidating a patent, which in theory was supposed to stop proceedings under the ITC. From the law:
The petitioner in an inter partes review of a claim in a patent under this chapter that results in a final written decision under section 318(a), or the real party in interest or privy of the petitioner, may not assert either in a civil action arising in whole or in part under section 1338 of title 28 or in a proceeding before the International Trade Commission under section 337 of the Tariff Act of 1930 that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.
Patent holders (mostly trolls, but practicing entities as well) have tried to kill the IPR process, but their efforts to get the Supreme Court to throw it out failed. Twice.
Anyway, the ITC loophole still exists, but is (thankfully) less potent.
However, it appears to have bitten Apple, and in the process demonstrated the serious problems with the system. A company named AliveCor claimed that Apple was infringing on three of its patents with certain Apple Watch features related to tracking heart rates. AliveCor filed its complaint with the ITC directly, seeking an injunction blocking the import of Apple Watches into the US. The patents in question are US Patents 10,638,941, 10,595,731, and 9,572,499.
In response, Apple initiated an IPR process, claiming that all three patents were invalid and should never have been granted. At the beginning of December, the PTAB ruled in Apple’s favor, finding all three patents to be invalid. For all three patents, Apple pointed to two earlier patents, referred to in the proceedings as the Shmueli invention and the Osorio invention. And with all three patents, the PTAB found that combining the ideas of Shmueli and Osorio would be an obvious thing for someone skilled in the art to do, rendering AliveCor’s patents invalid as obvious. Here’s part of one of the invalidations (though they’re all pretty similar):
For the reasons set forth above, we find that the combination of Shmueli and Osorio discloses or renders obvious the arrhythmia detection and confirmation recited in the challenged claims. We also find that one of ordinary skill in the art would have been motivated to combine the cited references with a reasonable expectation of success in arriving at the challenged claims. Patent Owner does not specifically challenge any other aspect of Petitioner’s showing with respect to Ground 1. Having reviewed the argument and evidence of record, we find that Petitioner has shown by a preponderance of the evidence that claims 1, 5, 7–9, 11, 12, 16, 18–20, 22, and 23 are unpatentable as obvious in view of Shmueli and Osorio.
So… the patents are invalid. In theory, that should kill the ITC process, but nope. As AliveCor noted in a press statement after the USPTO invalidated these patents, it apparently didn’t matter, as the ITC could still issue an injunction:
AliveCor is deeply disappointed and strongly disagrees with the decision by the PTAB and will appeal. The PTAB and ITC are two, separate independent bodies and will make their own separate independent decisions. We look forward to the separate Final Determination from the ITC expected December 12 and are cautiously optimistic based on the Initial Determination for AliveCor in June of this year.
And, indeed, last week (a few weeks later than expected) the ITC issued a final determination in favor of AliveCor, and issued an injunction that would block Apple from importing Apple Watches, though it has suspended the enforcement of the injunction while President Biden gets to review the ruling and while waiting for a “final resolution” from the PTAB on the validity of the patents.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined that there is a violation of section 337 in the above-captioned investigation. The Commission has further determined to issue a limited exclusion order and a cease and desist order and to set a bond in the amount of $2 per unit of covered articles imported or sold during the period of Presidential review. The enforcement of these orders, including the bond provision, is suspended pending final resolution of the U.S. Patent and Trademark Office, Patent Trial and Appeal Board’s (“PTAB”) Final Written Decisions finding the asserted patent claims unpatentable.
The Presidential review bit is important here, because when the ITC issues one of these injunctions, the President is actually allowed to step in and overturn the ruling. In fact, President Obama did exactly that in a similar scenario a decade ago after the ITC issued an injunction on iPhones and iPads over some Samsung patents.
One hopes that Biden will do the right thing and knock out this attempt at hindering basic innovation. Especially given that the USPTO has already found the patents invalid, even if AliveCor is appealing.
Filed Under: apple watches, heart tracking, injunctions, ipr, itc loophole, joe biden, patents, ptab
Companies: alivecor, apple
Ad-Based Netflix Arrives With A Thud
from the this-ain't-it,-boss dept
As a publicly traded company, it’s simply not good enough to provide an affordable service that people genuinely like. The pressure to deliver quarter over quarter growth often takes on a tendency toward auto-cannibalism; price hikes, customer support cuts, dumb ideas justified through greed, all designed to goose short-term growth, but often at the cost of brand reputation and long term service quality.
That’s the metamorphosis currently underway at Netflix.
After years of explosive growth, the company lost nearly a million subscribers between April and July. In part due to new competition in streaming, but also because Netflix executives are stuck in this auto-cannibalism loop; sacrificing what’s popular about the service (affordability, no ads, few weird restrictions, decent content) to feed Wall Street’s insatiable maw.
Instead of focusing on service quality and not being annoying, Netflix executives spent much of the last year insisting that a ham-fisted crackdown on password sharing and a new ad-based tier would fix what ails the company. But right out of the gate, Netflix’s new $7 “Basic With Ads” tier was saddled with all manner of annoying restrictions that undermined its entire purpose.
Ad-based customers can’t stream in standard HD (all streams are restricted to 720p), can’t stream to more than one device simultaneously, can’t download films to watch on a plane, and see a 10% smaller catalog overall due to licensing constraints. The ad-based tier also wasn’t initially supported on a number of different hardware platforms, including Apple TV or older Chromecast devices.
Shockingly, this all resulted in the new ad-based tier being the least popular option in its first month of life:
Subscription data analytics firm Antenna shared their data with Gizmodo where it noted that just 9% of all new Netflix subscribers opted for the Netflix Basic With Ads Tier last month. The $6.99 a month service launched Nov. 3 in the U.S., but Antenna told the Wall Street Journal over half of those ad-based sign ups were people re-upping their subscription after it lapsed or were joining for the first time.
The hope is to get people hooked on a cheaper tier, then upsell them through annoyance to more expensive, less restrictive tiers. That’s basically the upward funnel model the traditional TV sector adopted for decades, working tirelessly to push customers to higher priced tiers or bundles by annoying the hell out of them, since you don’t actually want users staying on the cheapest option possible.
A cheaper ad-based tier doesn’t really fix what ails Netflix because it’s not actually fixing what customers are getting annoyed by. Wall Street doesn’t want to embrace any of the things customers actually want (lower prices, improved service quality, fewer obnoxious restrictions) so you get stuff like this designed to look creative and appealing but isn’t, actually. It’s the inversion of actual innovation.
Stuck under Wall Street’s thumb, Netflix seems intent on reducing quality while nickel-and-diming existing customers, which won’t work in a hyper-competitive streaming space where consumers actually have the choice of competitors that are still actually focused on quality, affordability, decent support, and customer satisfaction.
Filed Under: ad-free-tier, advertising, cable tv, competition, password sharing, prices, streaming, video
Companies: netflix
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