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Privacy Activist Files Complaint Against The EU Commission Over Its Highly Targeted (Misleading) Ads About CSAM Scanning
from the good-for-the-goose,-not-good-for-the-gander dept
A few weeks back we wrote about a report that the EU Commission, in its push for dangerous client-side scanning mandates, had started buying highly targeted ads to try to influence people to support the policy. The ads, first revealed by Wired, were incredibly misleading. But, also, as we noted, appeared to violate EU’s privacy laws with the targeting.
The micro-targeting ad campaign categorized recipients based on religious beliefs and political orientation criteria—all considered sensitive information under EU data protection laws—and also appeared to violate X’s terms of service. Mekić found that the ads were meant to be seen by select targets, such as top ministry officials, while they were concealed from people interested in Julian Assange, Brexit, EU corruption, Eurosceptic politicians (Marine Le Pen, Nigel Farage, Viktor Orban, Giorgia Meloni), the German right-wing populist party AfD, and “anti-Christians.”
Mekić then found out that the ads, which have garnered at least 4 million views, were only displayed in seven EU countries: the Netherlands, Sweden, Belgium, Finland, Slovenia, Portugal, and the Czech Republic.
At first, Mekić could not figure out the country selection, he tells WIRED, until he realized that neither the timing nor the purpose of the campaign was accidental. The Commission’s campaign was launched a day after the EU Council met without securing sufficient support for the proposed legislation Mekić had been studying, and the targeted counties were those that did not support the draft.
The folks at noyb, whom we’ve written about many times before, wasn’t going to let this slide and have filed a complaint against the EU Commission, arguing that the targeting violates the GDPR.
The complaint is kind of amusing, as it points out that the EU Commission itself has spoken out against targeted advertising.
Of course, this is hardly the first time that the EU Commission has been accused of violating the very data protection laws it insists everyone else follow. It’s not even the second time. No matter what you think of the GDPR, at some point you have to wonder how seriously it can be taken when the body that pushed it so heavily for years, and likes to be condescendingly smug at the US for not adopting its own version of the GDPR… can’t even abide by its own regulations.
Filed Under: client side scanning, eu commission, gdpr, max schrems, targeted ads
Companies: noyb
FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections
from the just-laying-it-right-out-there-like-it-doesn't-mean-anything dept
After years of continuous, unrepentant abuse of surveillance powers, the FBI is facing the real possibility of seeing Section 702 curtailed, if not scuttled entirely.
Section 702 allows the NSA to gather foreign communications in bulk. The FBI benefits from this collection by being allowed to perform “backdoor” searches of NSA collections to obtain communications originating from US citizens and residents.
There are rules to follow, of course. But the FBI has shown little interest in adhering to these rules, just as much as the NSA has shown little interest in curtailing the amount of US persons’ communications “incidentally” collected by its dragnet.
In recent months, several Republicans have argued against a clean re-authorization of Section 702 powers, citing the FBI’s backdoor snooping on Trump administration figures, as well as certain Republicans who have outlasted Trump’s four-year stint as the supposed leader of the free world.
On top of this opposition, there’s something more bipartisan. Every time surveillance powers are up for renewal, Senator Ron Wyden and other privacy focused legislators have offered up comprehensive surveillance reform packages.
The latest effort by Wyden would create a warrant requirement for these backdoor searches by the FBI. Senate leaders tried to dodge this by slapping a clean re-auth rider on a “must pass” budget bill, but legislators found a way to keep the government funded for a little bit longer while they continue to argue over who gets what and how much of it.
Faced with the real possibility of seeing this surveillance authority heavily altered, if not discarded completely, the FBI is making its case for a year-end approval of status quo continuation. But it’s making some really bad arguments.
FBI director Chris Wray took time out his busy “everything is going dark” schedule to speak to House representatives on behalf of his agency and its desire to continue to abuse this access to NSA collections. Unfortunately for Wray, the statements he made inadvertently exposed the lack of legal basis for FBI access to communications collected by the NSA.
First though, he pretended he cared whether or not Americans were subject to unconstitutional spying, as Jessica Hardcastle reports for The Register.
He did address the FBI’s earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.
“To be sure, no one more deeply shares Members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do,” Wray said.
That can’t possibly be true. If it were, Wray’s concern would surpass the concern expressed by any number of rights and privacy groups, as well as legislators who have worked for years to curtail this abuse, only to see their reform efforts shot down by the lawmakers who care even less about the FBI’s violations than the FBI itself.
If this statement were even remotely true, Wray wouldn’t be trying to talk legislators into dumping Wyden’s reform bill, much less advocating for continued warrantless access to US persons’ communications.
Wray’s argument for continued warrantless access was somehow even worse than his pretending to care about surveillance abuses. Somehow, the FBI director managed to blurt out what everyone was already thinking: that the FBI needs this backdoor access because it almost never has the probable cause to support the search warrant normally needed to access the content of US persons’ communications.
“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,” Wray said.
Holy shit. He just flat-out admitted it: a majority of FBI searches of US persons’ communications via Section 702 are unsupported by probable cause. That alone should be enough to, if nothing else, forbid the FBI from using this back door. This is on top of the years of continuous abuse of these surveillance powers by the FBI — something so egregious even the FISA court has considered shutting down the FBI’s access. And that’s with the FISA court’s unwavering ability to both forgive and forget the FBI’s constant trespasses.
If Wray is to be believed — and there’s no reason not to, since he’s arguing in self-interest — probable cause either doesn’t exist or takes too long. This is the same guy who, moments earlier, claimed he was the most concerned about FBI abuse of this surveillance power. Yet, moments later, he’s telling legislators his agency is incapable of complying with the Fourth Amendment, or simply just unwilling to do so.
While I’m less than thrilled certain Republicans have decided Section 702 is bad only when it hurts them, I’m happy to see this power face the real possibility of meaningful reform, if not actual extinction. It’s been a long time coming. Unfortunately, both the FBI and the current administration are united in their desire to keep this executive authority intact. Both Wray and the Biden administration call the warrant requirement a “red line.” So, even if the House decides it needs to go (for mostly political reasons) and/or Wyden’s reform bill lands on the President’s desk, odds are the FBI will get its wish: warrantless access to domestic communications for the foreseeable future.
Filed Under: 4th amendment, backdoor searches, chris wray, fbi, section 702, warrantless search, warrants
Daily Deal: The Advanced Cyber Security Bundle
from the good-deals-on-cool-stuff dept
Take your basic knowledge of cybersecurity to a whole new level with the Advanced Cyber Security bundle. This bundle offers you 6 courses on industry-standard certifications on cybersecurity so you can enjoy the wonders of modern tech without compromising your data and privacy. Courses cover CISA, CCSP, CISM, and CISSP certification prep. You’ll also get an introduction to cyber security and learn about CompTIA Cloud Essentials. It’s on sale for $50.
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
Congrats To Elon Musk: I Didn’t Think You Had It In You To File A Lawsuit This Stupid. But, You Crazy Bastard, You Did It!
from the to-save-speech-we-need-to-censor-speech dept
So, yesterday we covered Elon Musk’s ridiculous censorial threat to sue Media Matters “the split second the court opens on Monday.” Of course, as we noted, you can file lawsuits 24/7. And yet, as the courts opened on Monday, there was nothing. As mentioned in the original post, I was away from internet access for most of Monday, and when I finally got back online I was told there was still no lawsuit.
But, then, on Monday evening, the lawsuit finally came, and it was glorious. Gloriously stupid.
Honestly, this feels like what you get when you have a rich but legally ignorant dude who announces on a Friday that there will be a lawsuit on Monday and finally finds some terrible lawyers who are actually willing to file something just to live up to that promise.
It’s not a good lawsuit. It’s barely even a lawsuit at all.
Let’s start at the top.
Problem 1: It was filed in Texas federal court, even as the complaint admits that exTwitter is a Nevada corporate entity, based in California, and Media Matters is a D.C.-based entity. The lawsuit barely makes any effort at all to justify the venue.
Indeed, what little justification they do present is not at all how any of this works. To get jurisdiction in Texas for non-Texas parties, they have to show that someone in Texas was involved, that the laws were violated by parties while they were in Texas, or were somehow directed at Texas parties. The complaint doesn’t even make an effort to do any of that. It just says “a substantial part of the events giving rise to the claims occurred herein.” But that’s not how any of this works.
Of course, we all know the real reason it was filed in a Texas federal court. While Texas has a pretty good anti-SLAPP law, the 5th Circuit had deemed that you can’t use it in federal court. If the lawsuit had been filed in the 9th Circuit, where exTwitter is, then California’s (or Nevada’s) anti-SLAPP law would apply.
Problem 2: The lawsuit flat out admits that Media Matters’ reporting was accurate. It makes a big deal of claiming that Media Matters “manipulated” things and “manufactured” the controversy but… still admits that Media Matters used the platform, and saw what it saw, and reported on it.
Media Matters executed this plot in multiple steps, as X’s internal investigations have revealed. First, Media Matters accessed accounts that had been active for at least 30 days, bypassing X’s ad filter for new users. Media Matters then exclusively followed a small subset of users consisting entirely of accounts in one of two categories: those known to produce extreme, fringe content, and accounts owned by X’s big-name advertisers. The end result was a feed precision-designed by Media Matters for a single purpose: to produce side-by-side ad/content placements that it could screenshot in an effort to alienate advertisers.
But this activity still was not enough to create the pairings of advertisements and content that Media Matters aimed to produce.
Media Matters therefore resorted to endlessly scrolling and refreshing its unrepresentative, hand-selected feed, generating between 13 and 15 times more advertisements per hour than viewed by the average X user repeating this inauthentic activity until it finally received pages containing the result it wanted: controversial content next to X’s largest advertisers’ paid posts.
Thus, on page 3 of the complaint, Musk’s newfound lawyers (not from a “BigLaw” firm like he usually uses) tell you that Media Matters did use the platform and did, in fact, see what it reported it saw. It’s just that exTwitter (i.e., Musk) doesn’t like how they they portrayed their usage of the platform.
Notably, the original article never made any claims suggesting that everyone was seeing ads on neo-Nazi content. They just said they saw these ads appearing next to neo-Nazi content, and the complaint admits as much.
So the complaint is “Media Matters set up an account that followed neo-Nazis, which we allow, and found ads next to that content, which we allow, but we’re mad because Media Matters should have followed other people instead.” That’s… not a cause of action.
Problem 3: The lawsuit admits that its real complaint is that it disagrees with how Media Matters framed the story. But, and I know Musk still can’t seem to wrap his brain around this rather important fact: part of free speech and a free press is that you don’t get to dictate how others cover stories about you.
You’d think that a “free speech absolutist” would get that. But Elon Musk appears to have deeply censorial instincts rather than free speech ones:
Media Matters omitted mentioning any of this in a report published on November 16, 2023 that displayed instances Media Matters “found” on X of advertisers’ paid posts featured next to Neo-Nazi and white-nationalist content. Nor did Media Matters otherwise provide any context regarding the forced, inauthentic nature and extraordinary rarity of these pairings
So, yeah, you might also notice that this is Musk admitting that “Neo-Nazi and white-nationalist content” appear on exTwitter and that Media Matters did, in fact, see ads appear next to that content. Great work.
Problem 4: The lawsuit admits that not just Media Matters saw these ads next to neo-Nazi content, even if not that many others saw those ads.
And in Apple’s case, only two out of more than 500 million active users saw its ad appear alongside the fringe content cited in the article—at least one of which was Media Matters
Again, throughout the complaint, it admits exactly what Media Matters reported.
Its only complaint is it doesn’t like how Media Matters reported it. But the 1st Amendment protects such editorial choices. As should any self-respecting “free speech absolutist.”
Problem 5: The lawsuit attacks Media Matters for… using exTwitter’s system the way exTwitter allowed them to. It claims Media Matters “manipulated” the platform, but then describes how it used it in a perfectly reasonable manner, and that exTwitter served up the ads. Media Matters didn’t make exTwitter show these ads. ExTwitter just showed them.
Literally, the complaint admits that exTwitter’s systems worked exactly the way they were designed to, showing ads on content that someone followed, and if someone follows neo-Nazis, then ads are likely to show on that content.
First, Media Matters set out on their attempt to evade X’s content filters for new users by specifically using an account that had been in existence for more than thirty days.
Next, Media Matters set its account to follow only 30 users (far less than the average number of accounts followed by a typical active user, 219), severely limiting the amount and type of content featured on its feed. All of these users were either already known for posting controversial content or were accounts for X’s advertisers. That is, 100% of the accounts Media Matters followed were either fringe accounts or were accounts for national large brands. In all, this functioned as an attempt to flood the Media Matters account with content only from national brands and fringe figures, tricking the algorithm into thinking Media Matters wanted to view both hateful content and content from large advertisers.
Even this did not produce Media Matters’ intended result. An internal review by X revealed that Media Matters’ account started to alter its scrolling and refreshing activities in an attempt to manipulate inorganic combinations of advertisements and content. Media Matters’ excessive scrolling and refreshing generated between 13 and 15 times more advertisements per hour than would be seen by a typical user, essentially seeking to force a situation in which a brand ad post appeared adjacent to fringe content.
So, now… going on exTwitter, following neo-Nazis that Musk refuses to ban, and following advertisers is manipulative? As is “reloading” your feed? Under what theory?
Problem 6: It claims Media Matters “defamed” exTwitter, but then doesn’t include a defamation claim. The lawsuit mentions defamation three times, but not in the claims. So it repeatedly pretends that it’s arguing defamation, even though it’s not:
On November 16, 2023, Media Matters published a false, defamatory, and misleading article with the headline, “X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity3 next to pro-Nazi content,” claiming that X was responsible for anti-Semitic content being paired with X’s advertisers’ paid posts.
If it was actually defamatory, Musk would have sued for defamation. The problem was that it was not. So calling it defamatory and not alleging defamation in the claims kinda makes it clear that they’re really just suing because Musk is mad about the article.
Honestly, it reads like the poor lawyer who had to do this rush job thought he was filing a defamation claim, and so added in a few claims of defamation, then a more senior lawyer realized before filing that there’s no fucking way any of this is even remotely defamation, but no one bothered to take out the language about defamation.
Now, there is a “business disparagement” claim and that’s kind of like defamation, but… even harder to show? And it still requires proving actual malice, which this complaint doesn’t even attempt to do. It does do a “Media Matters hates conservatives,” but that’s not how actual malice works.
Problem 7: Other than the “business disparagement” claim, the only thing they can sue over are nonsense throw-in causes of action: “interference with contract,” and “interference with prospective economic advantage.”
These are the kinds of claims that terrible lawyers often include with defamation claims to try to make the lawsuit more scary, and they’re usually dismissed with the defamation claims when judges say “um, you’re really just trying to say defamation in another way here.”
None of the causes of action make any sense here. What Media Matters did was find these ads and accurately report what it found. If that causes advertisers to bail, that’s not “interference with a contract.” It’s… just reporting. If accurate reporting causes someone to end a business relationship, you don’t get to sue over it.
Problem 8: The lawsuit names Media Matters employee Eric Hananoki as a defendant and then never makes a single claim against him. It mentions (mostly in footnotes) that Hananoki has written articles critical of Musk, including the article in the complaint. But, um, if you file a lawsuit against a particular party, you have to say in the lawsuit how that party actually violated the tort in question. And the lawsuit doesn’t even bother trying.
Honestly, Hananoki has the easiest “motion to dismiss for failure to state a claim” argument ever. Normally, you have to respond to the claims made about you and how, even if true, you didn’t violate the law in question. Hananoki doesn’t even need to do that. He can just point out that the lawsuit literally makes no claims against him.
Problem 9: The lawsuit insists advertisers bailed because of this article, but conveniently leaves out the fact that Elon Musk endorsed an antisemitic conspiracy theory a day earlier, and has been promoting bigoted nonsense content for months now. Also, advertisers are free to leave if they want.
Finally, this isn’t exactly a “problem” with the lawsuit, but I’ll just note the conflict in two separate statements:
X Corp. and Elon Musk are a critical Media Matters target because X is the most prominent online platform that permits users to share all viewpoints, whether liberal or conservative, and Mr. Musk is the most prominent voice on the platform and a passionate supporter of free speech.
That’s in paragraph 41 on pages 11 and 12. On Page 14 in the prayer for relief we get this:
A preliminary and permanent injunction ordering Defendants to immediately delete, take down, or otherwise remove the article entitled “As Musk Endorses Antisemitic Conspiracy Theory, X Has Been Placing Ads for Apple, Bravo, IBM, Oracle, and Xfinity Next to Pro-Nazi Content From Its Web” from all websites and social media accounts owned, controlled, or operated, directly or indirectly, by Defendants;
So… within the span of about 2 to 3 pages we are told that Elon Musk and exTwitter are passionate supporters of free speech that allow “all viewpoints” to be shared and that Musk is filing this lawsuit to force Media Matters to take down speech that he admits is absolutely true, but where he doesn’t like how they portrayed things.
Anyway, kudos to Elon. This really takes stupid SLAPP suits to incredible new levels. I didn’t think you’d be able to find a lawyer who would file a lawsuit so stupid, that makes you look this ridiculous, but you did it. Just like people doubted your ability to shoot rockets into space or make popular electric vehicles, I should not have doubted your ability to file absolutely nonsense SLAPP suits that are this laughable.
Filed Under: ads, business disparagement, defamation, elon musk, slapp, texas
Companies: media matters, twitter, x
‘AI’ Is Supercharging Our Broken Healthcare System’s Worst Tendencies
from the I'm-sorry-I-can't-do-that,-Dave dept
“AI” (or more accurately language learning models nowhere close to sentience or genuine awareness) has plenty of innovative potential. Unfortunately, most of the folks actually in charge of the technology’s deployment largely see it as a way to cut corners, attack labor, and double down on all of their very worst impulses.
Case in point: “AI’s” rushed deployment in journalism has been a keystone-cops-esque mess. The fail-upward brunchlord types in charge of most media companies were so excited to get to work undermining unionized labor and cutting corners that they immediately implemented the technology without making sure it actually works. The result: plagiarism, bullshit, a lower quality product, and chaos.
Not to be outdone, the very broken U.S. healthcare industry is similarly trying to layer half-baked AI systems on top of a very broken system. Except here, human lives are at stake.
For example UnitedHealthcare, the largest health insurance company in the US, has been using AI to determine whether elderly patients should be cut off from Medicare benefits. If you’ve ever navigated this system on behalf of an elderly loved one, you likely know what a preposterously heartless shitwhistle this whole system already is long before automation gets involved.
But a recent investigation by STAT showed the AI consistently made major errors and cut elderly folks off from needed care prematurely, with little recourse by patients or families:
“UnitedHealth Group has repeatedly said its algorithm, which predicts how long patients will need to stay in rehab, is merely a guidepost for their recoveries. But inside the company, managers delivered a much different message: that the algorithm was to be followed precisely so payment could be cut off by the date it predicted.”
How bad is the AI? A recent lawsuit filed in the US District Court for the District of Minnesota alleges that the AI in question was reversed by human review roughly 90 percent of the time:
“Though few patients appeal coverage denials generally, when UnitedHealth members appeal denials based on nH Predict estimates—through internal appeals processes or through the federal Administrative Law Judge proceedings—over 90 percent of the denials are reversed, the lawsuit claims. This makes it obvious that the algorithm is wrongly denying coverage, it argues.”
Of course, the way that the AI is making determinations isn’t particularly transparent. But what can be discerned is that the artificial intelligence at use here isn’t particularly intelligent:
“It’s unclear how nH Predict works exactly, but it reportedly estimates post-acute care by pulling information from a database containing medical cases from 6 million patients…But Lynch noted to Stat that the algorithm doesn’t account for many relevant factors in a patient’s health and recovery time, including comorbidities and things that occur during stays, like if they develop pneumonia while in the hospital or catch COVID-19 in a nursing home.”
Despite this obvious example of the AI making incorrect determinations, company employees were increasingly mandated to strictly adhere to its decisions. Even when users successfully appealed these AI-generated determinations and win, they’re greeted with follow up AI-dictated rejections just days later, starting the process all over again.
The company in question insists that the AI’s rulings are only used as a guide. But it seems pretty apparent that, as in most early applications of LLMs, the systems are primarily viewed by executives as a quick and easy way to cut costs and automate systems already rife with problems, frustrated consumers, and underpaid and overtaxed support employees.
There’s no real financial incentive to reform the very broken but profitable systems underpinning modern media, healthcare, or other industries. But there is plenty of financial incentive to use “AI” to speed up and automate these problematic systems. The only guard rails for now are competent government regulation (lol), or belated wrist slap penalties by class action lawyers.
In other words, expect to see a lot more stories exactly like this one in the decade to come.
Filed Under: ai, automation, chat-gpt, coverage denied, healthcare, language learning models, medicare
Companies: unitedhealthcare
NY Federal Court: There’s A Right To Record Police Officers And State Law Says That Includes Inside Station Lobbies
from the better-take-down-those-signs,-coppers dept
The NYPD has plenty of problems with accountability and transparency. The main problem is this: the public wants some of this and the NYPD wants none of this. So, it does stupid things repeatedly that do little more than remind the public it’s not to be trusted.
Like any cop shop, it’s manned by cops who believe deliberate ignorance of the law is the best excuse. That’s why they continue to violate rights regularly, even when they obviously know they’re violating rights.
That’s what also gets the NYPD sued on the regular. Despite a pretty much affirmed right to record officers (under the First Amendment), policy directives reminding officers of this fact, and — much more importantly — a state law codifying this right, the NYPD still pretends it can control when and where it can be recorded.
And that, of course, has resulted in more litigation. SeanPaul Reyes — an independent journalist who always records his interactions with NYPD officers — sued the NYPD after officers told him he was not allowed to record them while standing in a precinct lobby. (h/t Volokh Conspiracy)
Reyes is a “First Amendment auditor,” the term used by people who use confrontational tactics to see if cops are willing to recognize their right to record. Some people think these “First Amendment auditors” are assholes. I mean, they sure seem to be. They get up in officers’ faces, pepper them with questions and shouted assertions, and generally make cops feel like they’re in the wrong even if they’re just going about their daily business. In other words, auditors act like cops while talking to cops. No wonder cops hate them. Cops would rather engage in harassment than be subjected to it.
So, Reyes was doing his normal auditor thing in the lobby of the 61st Precinct. While doing so, he was approached by Sergeant Tosares Korchimet, who informed Reyes he was not allowed to record in the lobby. And by “inform,” I mean Sergeant Korchimet pointed to a sign that stated “Members of the public are prohibited from audio/video recording or photography inside this facility.” Then he arrested Reyes when he refused to stop recording. This chain of events played out again two months later, resulting in a second arrest.
It’s not that the NYPD doesn’t have admittedly valid reasons for prohibiting recording inside precinct buildings. As this decision [PDF] notes, the NYPD could make a credible case for forum restriction that would possibly fall on the right side of the First Amendment.
Police precinct lobbies are areas generally used by members of the public to reports crimes and obtain information from law enforcement. The lobbies are open to the street or to a small vestibule that opens to the street and are accessible to the public twenty-four hours per day. Typically present in the lobby of a police precinct may be civilians who are victims of crimes, such as domestic violence or robbery. These individuals may be at the precinct in order to report a crime, retrieve a report they had previously made or talk to a member of the detective unit. There may also be confidential informants or those who the NYPD is trying to sign up as confidential informants. Members of the public can also use the lobby to obtain a complaint form alleging officer misconduct, as Plaintiff contends he was doing here.
[…]
There is no evidence that the government intended to open up police precinct lobbies for expressive activities, like peaceful protesting and leafleting, beyond being open to members of the public seeking assistance from the police. Nor is there evidence that these lobbies have been historically used for unrestricted expressive activities. Indeed, those activities would be at odds with the purpose of a police precinct lobby, a space for individuals to seek assistance from law enforcement.
So, there are good reasons for limiting or forbidding recordings in this space. On the other hand, it is open to the public, which means everyone in the lobby should be on notice their statements and actions may be seen by others.
And there’s reason to believe Reyes was also interested in recording things happening in areas not actually open to the public:
A couple minutes into the video, Reyes zoomed in on a police officer, standing in the doorway in front of a restricted area. Later, Reyes zoomed in to the restricted area behind the desk where civilians are able to speak with officers. The video recording also captures the hallway of a restricted area. Defendant’s witness stated that there did not appear to be sensitive information down that particular corridor, but that there can sometimes be posters containing sensitive information that is not generally meant for the public. At one point, the video recording captures Sergeant Korchimet entering a security code into a keypad. The video also captures the NYPD security cameras in the lobby, which Defendant’s witness has suggested creates a concern that those cameras could be documented and memorialized.
On top of that, the court admits there’s no appellate precedent firmly establishing a right to record in this particular circuit. But that doesn’t stop it from making that declaration on its own, using an ample amount of federal court precedent to back its assertion.
The Court first finds that recording police performing their official duties in public is protected under the First Amendment. Although the Second Circuit has not yet weighed in on whether recording the police is protected First Amendment activity, other circuits have uniformly recognized a First Amendment right to record the police performing their duties in public.
Then there’s a problem of the NYPD’s own making: it recognized in its response to the lawsuit that this right exists.
Moreover, the City does not contest that the right to record police is protected by the First Amendment. Tr. 75:1–5 (“Q: [D]oes the city dispute at all that there’s a First Amendment right to record policy activity? A: No.”); see also Patrol Guide at 2 (“Individuals have a right to lawfully observed and/or record policy activity . . . in public places, such as streets, sidewalks, and parks, as well as private property in which the individual has a legal right to be present, such as building, lobbies, workplaces or an individual’s own property.”); Administrative Guide at 2; NYPD Legal Bureau Bulletin at 1 (“Civilians have a constitutional right, as well as express
rights under state and local law, to observe and record police officers carrying out their duties.”).
There’s a presumptive First Amendment right to record police officers. The NYPD’s own statements and policies affirm there’s a right to record officers in public spaces. The concerns about the privacy of other people in precinct lobbies, as well as more nebulous concerns about officer safety could be enough to persuade a jury that the NYPD can legally forbid recordings in this area.
But there’s something far more local and specific that says the NYPD can’t do this: state law.
The Right to Record Acts allow for the recording of “law enforcement activity” and “police activities.” Defendant does not dispute that officers interacting with civilians in a police precinct are performing law enforcement or police activities. The Right to Record Acts do not carve out police precinct lobbies as places where individuals are not allowed to record and the Court declines to read that limitation into the Right to Record Acts. Citing to both Right toRecord Acts, the NYPD Legal Bureau Bulletin acknowledges that the right to record police activity “is codified in New York State and local law and extends to those individuals in both public places, such as streets, sidewalks, and parks, as well as private property such as a building, lobby, workplace, or an individual’s own property.” NYPD Legal Bureau Bulletin at 3 (emphasis in original).
To which the state has no answer other than expressing some very wishful thinking:
Defendant offers no opposition to Plaintiff’s argument, other than to claim that “[u]nder the First Amendment and as well as the State and City Right to Record Statutes, Plaintiff will not succeed on the merits.”
lol no
From earlier in the decision:
B. Plaintiff Has Demonstrated a Likelihood of Success on the Merits of the Right to Record Claims
The state may have had a case if it hadn’t passed a law that created more protection than that acknowledged by other federal courts under the First Amendment. It could have made the case it had legitimate reasons for restricting recordings inside precinct buildings, even in publicly accessible areas. But these two arrests were unlawful under state law. And precedential decisions from around the nation have held that even restrictions like these might fall on the wrong side of the Constitution.
Reyes secures his injunction, forbidding the NYPD from arresting people for recording in police station lobbies. On top of that, the NYPD is ordered to remove its signs declaring such recordings forbidden. The NYPD cannot legally forbid these recordings, not under state law. If the NYPD doesn’t like this, it can do what so many courts have suggested plaintiffs suffering clear rights violations do: take it up with legislators. What it definitely can’t do is continue to enforce policies that conflict with state law.
Filed Under: 1st amendment, nypd, recording cops, recording police, right to record act, seanpaul reyes, tosares korchimet
How The DMCA Is Being Weaponized Against E-Commerce Sites
from the dmca-is-a-censorship-tool dept
The copyright system is flawed at many levels, as hundreds of posts on this blog make clear. One particular class of problems concern takedowns. The best known of the ‘notice and takedown’ systems, that of the US Digital Millennium Copyright Act (DMCA), allows the copyright industry to send takedown notices when they discover infringements on a site to the relevant Internet companies, asking for removal of that material. The person who uploaded the relevant files can send a counter-notice. Such a response may trigger a lawsuit from the company claiming copyright. If it does not, the site owner may restore the material that was taken down.
That might look like a fair and balanced system, but appearances are deceptive here, for reasons Walled Culture the book (free digital versions available) explores in detail. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems (Google has received billions of such automated requests). These experts know the details of the law and are only required to provide a statement that they have a ‘good faith belief’ that the use of the copyright material is unauthorized.
By contrast, recipients of takedown notices are often small businesses, or ordinary members of the public. They are unlikely to have any legal training yet must respond to a formal legal notification if they wish to send a counter-notice. The latter must include a statement ‘under penalty of perjury’ that the material was taken down by mistake. Many will quail at the thought that they risk being convicted of perjury, and this stands in stark contrast to the mere ‘good faith belief’ required from the sender of a takedown request. Consequently, most people will simply accept that their material is removed, even if it was legal, for instance under fair use.
Takedown notices can be abused for purposes that have nothing to do with copyright. For example, they are a handy way to censor perfectly legitimate online material. The practice has become so common that an entire industry sector – reputation management – has evolved to take advantage of this trick. Online reputation management companies often use takedown notices as a way of intimidating sites in order to persuade them to remove material that is inconvenient for their clients.
Takedowns can also be mis-used in a business context, as a story on TorrentFreak indicates. It concerns the Canadian e-commerce platform Shopify, some of whose users had been targeted with takedown notices:
Starting on October 5, an unknown person created the account “Sacha Go” which was subsequently used to file dozens of DMCA takedown requests. The notices targeted listings on a variety of shops selling perfume products, claiming that they infringe copyright.
After being alerted by one of the targeted merchants Shopify looked into the matter, concluding that all takedowns were false. Instead of containing legitimate claims the DMCA notices were being used to harass Shopify and its merchants.
Shopify explains in a complaint it has filed alleging DMCA violations that those false takedowns can have serious financial consequences for Shopify’s merchants:
Under certain circumstances, a takedown notice can even result in the complete termination of a merchant’s online store. Like all DMCA service providers, Shopify is required to implement a policy under which those who are “Repeat Infringers” lose access to the platform. Under Shopify’s policy, a takedown notice results in a “strike,” and an accumulation of strikes over time results in termination. A merchant that receives a takedown notice may submit a counter notice and lift the strike. But for unsuspecting merchants who may be unfamiliar with the DMCA, a sudden onslaught of takedown notices can result in the termination of their entire store under Shopify’s repeat infringer policy.
Shopify’s complaint warns that “unscrupulous individuals are increasingly seeking to exploit the DMCA takedown process for anti-competitive purposes or reasons of animus.” In other words, these takedown notices have nothing to do with copyright or protecting the rights of creators.
The experience of Shopify and its merchants demonstrate well how extreme copyright laws can be abused in far-reaching ways. Those future issues clearly never occurred to the politicians who were too focused on giving the copyright industry yet more one-sided legal powers when they drew up the DMCA.
Follow me @glynmoody on Mastodon. Originally published to Walled Culture.
Filed Under: attacks, dmca, legal censorship, notice and takedown, repeat infringer policy
Companies: shopify
If You Kill Two People In A Car Crash, You Shouldn’t Then Sue Their Relatives For Emailing Your University About What You Did
from the insult-to-injury dept
Holy shit.
So, in 2021 there was a car accident in Atwater California that killed a married couple, Pam and Joe Juarez. According to police reports at the time, a 20-year-old Stanford student, King Vanga, struck their car from behind. Here’s how ABC 30 reported on the matter:
The California Highway Patrol says Pam, 56, and Joe, 57, were driving west on Santa Fe Avenue approaching Spaceport Entry in Atwater.
They were just minutes away from their son’s house.
Officials say that’s when 20-year-old King Vanga collided into the back of their car at a high rate of speed.
The Juarez’s spun out and their vehicle caught fire.
Vanga overturned into a fence.
The Juarez’s died at the scene.
Vanga had minor injuries was booked into the Merced County Jail for driving under the influence of drugs and/or alcohol and vehicular manslaughter.
The filed police reports claim that the officers believed Vanga was under the influence of alcohol, saying they smelled alcohol, though they were unable to administer a field sobriety test. He was still charged with a DUI, along with the vehicular manslaughter charges.
Vanga has since sued the police, claiming that the police violated his rights by attacking and tasing him, and that he “never drinks” and therefore the DUI charges are bogus. A blood test that was analyzed later by the California DOJ found that he had no traces of alcohol in his blood at the time, so it is entirely possible that he wasn’t actually drunk. Whether or not he was actually drunk or not seems like a fairly minor point in all of this, given that two people died in an accident where Vanga drove into the back of their car at high speed.
The family of Pam & Joe Juarez were understandably upset by their death, and a few family members sent emails to Stanford to alert them to what had happened, and alert them that they did not feel that Vanga had live up to Stanford’s code of conduct.
Vanga, somewhat incredibly, has decided to sue the family members of the couple he killed, claiming that their emails to Stanford were defamatory, because (a) they mention the DUI based on the police report and public reporting and (b) some of them said he “murdered” their family members, rather than merely killing them.
Let me repeat that, because it is quite incredible. It is undisputed that Vanga rear-ended another car, leading to the death of the two people in that car. Some of family members of the dead couple sent understandably angry letters to Stanford, the university Vanga attended. And now Vanga has sued those family members for relying on a potentially inaccurate police report, and using the word “murder” for what he did.
This is the SLAPPiest of SLAPP suits.
And now one of the defendants, Priscilla Juarez (a daughter-in-law of the deceased couple), has brought on Ken “Popehat” White to represent her against this insult-to-injury lawsuit. White has now filed an anti-SLAPP motion on Juarez’s behalf that calls out just how crazy this situation is:
Plaintiff King Vanga, a privileged student at an elite university, killed Defendant Priscilla Juarez’s in-laws and is now suing her for privately complaining about it. He is doing so in an overt effort to extort from her a promise not to encourage his criminal prosecution. This is a shocking and contemptible abuse of the justice system. Fortunately, the system that lets King Vanga abuse and harass his victims also provides a remedy – California’s robust anti-SLAPP statute. Plaintiff’s First Amended Complaint (“FAC”) is a classic SLAPP, and this Court should dismiss it and award Ms. Juarez her fees and costs.
It’s undisputed that King Vanga was in a car accident that killed Jose and Pamela Juarez, Ms. Juarez’ husband’s parents. It’s also undisputed that Merced County charged Plaintiff with vehicular manslaughter and DUI causing great injury, and that the press widely reported that Plaintiff was intoxicated at the time of the accident. Based on the criminal charges against Plaintiff, the press coverage she reviewed, and statements by police officers on the scene, Ms. Juarez wrote an email (“the Email”) to Stanford University stating her opinion that Plaintiff had violated its honor code, based explicitly on the criminal charges and press coverage. There’s no indication that Stanford disciplined Plaintiff. Instead, Plaintiff got a copy of the Email through a FERPA request, used it as an opportunity to sue Ms. Juarez for defamation, and made an extortionate demand that he would not drop the suit unless Ms. Juarez stopped talking about him killing her in-laws and stopped pushing for his prosecution.
California’s anti-SLAPP statute protects Ms. Juarez from King Vanga’s loathsome and immoral abuse of process. Ms. Juarez easily meets the first prong of the anti-SLAPP test, as her Email was sent in relation to an ongoing judicial proceeding and was an exercise of her right to free speech on an issue of public interest. But Plaintiff cannot carry his burden of showing a probability of prevailing. Most of the Email was Ms. Juarez’ overt opinions and conclusions, and was absolutely protected by the First Amendment. To the extent Ms. Juarez repeated factual allegations in the criminal complaint against Plaintiff and the extensive news coverage of the accident, Plaintiff cannot show that Ms. Juarez was negligent to rely on it.
Such a rule would mean that crime victims could never comment on crimes based on criminal charges and news coverage. Ms. Juarez’s statement is also protected by California’s common interest privilege. Finally, Plaintiff cannot provide admissible evidence of damages resulting from the Email. The Court should grant this Motion, dismiss this utterly shameful FAC, and award Ms. Juarez her attorney fees and costs.
There’s much more in the anti-SLAPP motion to strike. It details how Priscilla not only read the news about this, which accurately reported what Vanga was charged with, but also that family members had spoken with the arresting officer, who told them of his belief that Vanga was intoxicated. Whether or not that turned out to be true, it certainly shows that Juarez had a justification for saying what she said.
It also highlights how the first time she heard about Vanga denying being intoxicated was when he filed his lawsuit against the police, which was long after she had sent her email to Stanford.
And then there’s this:
After filing the lawsuit, Plaintiff’s counsel sent Mrs. Juarez an email offering to drop the lawsuit if Ms. Juarez agreed “not to make or publish any disparaging statements about Mr. Vanga in the future” and “not to encourage the criminal prosecution of Mr. Vanga, including by communicating with government officers or protesting at any conference, hearing, or trial involving Mr. Vanga.” (Juarez Decl. at ⁋21; Exhibit 9). Mrs. Juarez did not agree to abandon her First Amendment right to advocate for her in-laws.
Gross.
Again, it is entirely possible that the cops were wrong in believing Vanga was intoxicated. We’ve covered many cases on this very site about cops being wrong. So if Vanga wants to sue the cops, more power to him.
But suing the family of the people who died because he rear-ended their car, for sending a private email to Stanford (over which the University took no action), based on public reporting and what officers on the scene said, is fucking crazy. It’s yet another example of abusing the courts to silence someone, and in this particular case adding real insult to actual injury.
The court should grant the motion to strike and make him pay through the nose for this gross abuse of the legal process to silence speech.
This is why we have been arguing for years for more and better anti-SLAPP laws. Luckily, California has a strong one. But many states do not. And even in many states that do have one, it cannot apply in federal court. We need every state to have a strong anti-SLAPP law and we need a federal anti-SLAPP law.
Filed Under: anti-slapp, atwater police, california, chp, defamation, jose juarez, king vanga, pamela juarez, police reports, priscilla juarez, slapp
The Man Decides He Doesn’t Like Being Hassled, Issues Tickets To Reporter For ‘Hampering’ City Employees With His Questions
from the ah-now-the-boot's-on-the-other-foot-eh dept
Some city officials in Illinois are now engaged in a round of “How Can I Get Sued?” Sounds like fun, but Calumet City officials might do well to remember the only way to win is not to play.
That’s the upshot of the latest bit of officious nonsense to surface in the Chicago area. Granted, it’s far more innocuous than unjustified killings perpetrated by cops or law enforcement operating its own off-the-books, rights-free interrogation black site.
But it’s far from harmless. This suburb of Chicago — as poorly represented by elected representatives and the law enforcement agency they oversee — has decided it’s time to start punishing journalists for doing journalism, as Gregory Platt details in this report for the Chicago Tribune.
Calumet City officials have issued municipal citations to a Daily Southtown reporter who they allege violated local ordinances by seeking comment from public employees on major flooding issues in the area.
Several notices sent to reporter Hank Sanders describe the alleged violations as “interference/hampering of city employees.”
Now, there’s something you rarely see on a Civics test. How does one “hamper” a city employee, if one were so inclined (or not even inclined, as is the case here) to do so?
There’s no clear answer here. This is how it went down in Calumet, though. “Hampering” — like all the best laws — is interpreted subjectively.
Hank Sanders apparently had several questions about the city’s storm water facilities, which were apparently already in poor condition prior to their inability to handle September’s historic rainfall. After widespread flooding in the city’s poorest neighborhood, Sanders hounded city officials, including Mayor Thaddeus Jones, with questions about these facilities.
At some point, these officials decided Sanders had asked too many questions. Rather than respect someone who firmly believed the best modifier for “reporting” is “dogged,” these officials decided to hit Sanders with citations for… well, what exactly?
“Despite all FOIA requests being filled, Hank Sanders continues to contact city departments and city employees via phone and email,” the violation notice mentioning Jones states. “Despite request from Calumet City attorneys to stop calling city departments and employees, Hank Sanders continues to do so.”
Rather than simply “no comment” their way out of these interactions, the city decided to fine Sanders for asking questions. And while a “no comment” is never satisfactory, it at least does not come with fines and fees attached.
Continuing to ask questions after being given some answers is what these officials apparently believe satisfies the legal definition of “hampering.” And that belief is just as ridiculous as this response to Sanders and his ongoing queries.
I’m sure these particularly officious officials will be startled to learn that these fines and fees won’t stick because there’s simply no way for Sanders to determine when he’s crossed the line from performing his journalistic duties and (in the legal sense) “hampering” city employees.
“Between the dates of October 4th and October 12th Hank Sanders sent fourteen (14) emails to the city of Calumet City reference the recent flooding,” the Wilson notice states.
What is he supposed to glean from a legal notice like this one? Is 14 emails one too many? Would 12 be acceptable? Is it that 14 emails were sent in nine days? If 14 emails were sent over a ten-day period, would that be non-hampering? In other words, there’s nothing in this that makes it clear where persistence becomes legally actionable harassment under the ordinance being used to punish Sanders for continuing to demand answers from elected officials.
And, as long as Sanders can’t define it and city leaders can’t explicitly say what does or does not constitute a “hampering,” it remains exactly what it appears to be: a ham-fisted effort to silence a journalist who’s done nothing more than engage in acts of journalism. First Amendment litigators, start your engines!
Filed Under: calumet city, foia, hampering city employees, hank sanders, illinois, journalism
Daily Deal: The Complete Information Security Bundle
from the good-deals-on-cool-stuff dept
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Filed Under: daily deal
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