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On January 9, 2020, facial recognition tech finally got around to doing exactly the thing critics had been warning was inevitable: it got the wrong person arrested.Robert Williams was arrested by Detroit police officers in the driveway of his home. He was accused of shoplifting watches from a store on October 2, 2018. The store (Shinola) had given Detroit investigators a copy of its surveillance tape, which apparently was of little interest to the Detroit PD until it had some facial recognition software to run it through.This was the dark, grainy image the Detroit PD felt was capable of returning a quality match:That picture is included in Williams' lawsuit [PDF] against the Detroit Police Department. Even in the best case scenario, this picture should not have been uploaded to run a search against. It's low quality, poorly-lit, and barely shows any distinguishing facial features.What makes it worse is that all facial recognition AI -- across the board -- performs more poorly when attempting to identify minorities. That's the conclusion reached by an NIST study of 189 different algorithms. It's not just some software. It's all of it.The Detroit PD chose to run with that photo. Then it decided the search results it had were close enough to probable cause to effect an arrest, even though the software used stated clearly search results should not be used this way. The search was performed by the Michigan State Police from the grainy image submitted by the Detroit PD. A report was returned but investigators were cautioned against trying to turn this into probable cause:

Podcasting has been a rare recent example of a new offering built on open protocols and standards (mainly RSS and MP3), that wasn't entirely co-opted by one giant corporate entity (even if some have tried). However, there have been some worrying signs of where the podcasting market is moving. For a few years now, we've been warning that the world would lose a lot if podcasts move from open standards and protocols to more proprietary solutions -- and yet Spotify, for one, has been moving heavily in that direction over the past few years.And, as Chris Messina pointed out recently, it appears that both Spotify and Apple are looking to move past RSS in how they push podcasts -- though he's unsure if it means that podcasts are dying -- or about to go through a renaissance.

One of the most disgraceful aspects of the EU Copyright Directive saga was the shameless way its supporters swore that upload filters would not be required -- despite the evident fact that there was no other way to implement the new law's requirements. And indeed, once the legislation was passed, France lost no time in pushing for upload filters. Worse, its own implementation ignored what few protections there were for users' fundamental rights. Fortunately, back in 2019, the Polish government made a formal request for the EU's top court, the Court of Justice of the European Union (CJEU), to throw out upload filters. That is still grinding its way through the EU's legal system, but its mere existence could play an important role as EU member states grapple with the impossible task of passing national laws to implement the EU Copyright Directive.To help them do that, the European Commission said it would release guidance on how to reconcile the contradictory requirements of upload filters and user rights. As a post by Communia accompanying an open letter to the Commission (pdf) explains, the first draft made it clear that national implementations of Article 17 -- upload filters -- must contain built-in protection that limits the automated blocking of uploads to situations where material is "manifestly" infringing. Since that promising start, there has been no sign of the final guidance. Instead, as Communia notes, there has been lots of lobbying against user rights:

McDonald's shake/ice cream machines are notoriously flaky. The most common response to requests for ice cream are sullen statements that the machine is down. It's so much a part of popular culture, an enterprising individual crafted a bot that lets people know which machines are up and which machines are going to be a waste of their time.To be sure, the shake/ice cream device used in almost every McDonalds is a complicated piece of machinery. Not only does it need to provide two different kinds of ice cream-related products from the same machine, but it must do it while operated by employees whose fast food careers can be measured in days, if not hours.But there's got to be a better way. And there probably is. But the company that makes the machines -- Taylor Restaurant Equipment -- doesn't want there to be a better way. It wants it to be Taylor's way... or no way at all.A captured market is always a great thing... for product makers. As long as you don't care about end users -- whether they're people seeking ice cream or people wondering why they can't use their scanner because they're out of cyan ink -- you can corner a market and let the endless revenue streams wash over you.A lot of companies have discovered this one simple trick: the best captive audience is one you hold hostage. That's how Taylor runs its ice cream machine business. It has hooked up with major players in the fast food industry and has limited franchisees' ability to handle any issues with their equipment on their own.When the shake machine is down, no one onsite can fix it. That goes beyond planned obsolescence to planned incapacity. Wired has a fascinating article that touches on how Taylor has muscled everyone else out of the market by making its machines solely beholden to Taylor techs. (Please go read it. It is worth every minute of your time.) This means every franchisee must sign a lengthy service agreement if they expect to provide this product to customers on a far-from-regular basis.Some enterprising hackers found out how to bypass the built-in problems Taylor inserts into every machine it sells. There's a code that allows access to the inner workings of the machine -- one that can also help translate its cryptic error messages. If franchisees had this information, they could do their own troubleshooting and repairs, rather than paying Taylor techs exorbitant amounts to, I don't know, press the reset button to allow the resumption of service.

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A few weeks back, news broke that some hackers were offering up personal information on over 500 million Facebook accounts (there had been some earlier reports about this data availability as well). It was even highlighted that some of the "personal information" apparently included Mark Zuckerberg's phone number (though it's unclear if that data was confirmed to be accurate or not).After there was more reporting on this data being available, some people noticed that Facebook had not alerted people about it. Various data breach laws require notification to effected users of a data breach, and so Facebook's decision raised some eyebrows. Facebook's explanation for not notifying users is that the company did not consider this to be a breach, but rather was done via scraping of information that people put on their own profiles:

We've covered for a while how consumer location data is consistently abused by telecom providers, app makers, stalkers, debt collectors, people pretending to be law enforcement, and pretty much any idiot with a nickel and a dream.Of course that also extends to government agencies like the IRS, CBP, and ICE, which have increasingly been buying access to your daily location habits so they can skirt around pesky warrants. The government still needs a warrant if it targets individuals, but nothing stops the government from hoovering up vast swaths of movement data en masse. Until now.A new bill backed by Senators Ron Wyden and Rand Paul, and Reps. Jerry Nadler and Zoe Lofgren, attempts to put this loophole to bed permanently. Bluntly dubbed the Fourth Amendment Is Not For Sale Act (see: summary or full text), the law would ban law enforcement agencies from buying data from controversial facial recognition firm Clearview AI, as well as force agencies to obtain a warrant before sourcing location data from brokers. In a statement, Wyden said the bill would close loopholes in both the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that allows governments to buy consumer location data without a warrant:

It's no secret that Chanel, the famous French luxury brand most notable for concocting things that make us smell better, is also a voracious protector of its trademarks. As evidence for this, one needs only to recall that the company once bullied a 2-person candy purveyor over its use of the number "5". The point is, when Chanel comes a-calling complaining about trademarks, you really need to view it all with narrow eyes.Chanel's years-long trademark row with electronics company Huawei is no different. This story begins way back in 2017, when Huawei attempted to register a logo for its hardware division with EUIPO.

Summary: Vimeo is a video hosting site that was originally founded in 2004 as an offshoot of CollegeHumor. IAC acquired the company early on and it tried to position itself as an alternative to YouTube that was more for creators. In the early years, one thing that was common on Vimeo was so-called “lipdubs.” These were music videos often made by groups of people lipsync’ing to popular songs.Vimeo itself effectively launched this trend with its staff doing a lipdub of the Harvey Danger song “Flagpole Sitta.” At the end of the video, you hear one Vimeo employee say “ we just made a million dollars, people!” And, indeed the phenomenon helped establish Vimeo’s place in the market. Soon there were many other lipdubs all over Vimeo.However, lipdubs also caught the attention of the music industry, which noticed that the songs in these lipdubs had not been licensed. In 2009, EMI subsidiary Capitol Records sued Vimeo for copyright infringement. Like many web services hosting user generated content, Vimeo relied on the safe harbors of the Digital Millennium Copyright Act (DMCA) in the US, which holds that if you meet certain conditions, you cannot be held liable for user uploads of infringing works.Capitol Records argued that Vimeo was not protected under the DMCA for a variety of reasons, starting with the fact that it uploaded its own lipdub, which then effectively encouraged others to upload similar lipdubs. The complaint noted that the DMCA only protects against user uploads, not ones done by the company itself. It also claimed that since Vimeo employees were seen to have “liked” or commented on many other lipdubs, often speaking approvingly of the videos, it also meant that the company had so-called “red flag knowledge” of the infringing content -- which might also remove the DMCA’s safe harbor protections from the company.Decisions to be made by Vimeo:

Facial recognition tech is plagued by bias, most of it unintentional. That's why it tends to perform more poorly when attempting to recognize minorities and women. Law enforcement doesn't tend to view these problems as bugs since it, too, operates with many of the same biases. But these are usually the byproduct of faulty inputs, which can be exacerbated by choices made by end users.In China, the bias is the point. The Chinese government's persecution of its Uighur population has seen local tech companies tasked with providing surveillance tools that single out Uighur Muslims so the government can more efficiently control them.Huawei is building a system that provides the government with "Uighur alarms" whenever a suspected Uighur passes in front of the government's millions of cameras. According to Huawei, this is still in the testing phase, which means nothing more than there's a plan for it to be put to use. Even if it's no more accurate at identifying Uighurs than it is at identifying criminals, it will likely be good enough to put to real-world use. Collateral damage to innocent residents isn't the sort of thing that slows surveillance rollouts in China.China wants even more facial recognition power. And it has several partners willing to help it out, even if it means the tech will be used to oppress people, rather than protect people from things like crime and security threats.

The NY Times has a big (and quite interesting) article this week about how we've supposedly "reached a global tipping point" on "tech regulation." And if you look around, it may feel that way. And, sure, it's easy to point to lots of examples of tech regulation happening around the globe, as the article does:

This shouldn't need to be said, but The Simpons is satire. It often makes fun of people. In a recent episode it sorta, kinda mocked the singer Morrissey, as most of the episode was about Lisa's obsession with a band called "the Snuffs" and its moody lead singer "Quilloughby" (voiced by Benedict Cumberbatch). It was pretty clearly satirizing Morissey, and exaggerating a bunch of character traits many people associate with Morrissey, and mixing in some stereotypical character traits associated with washed up old rock stars. I can understand why some people might not like being gently mocked on a popular TV show, though I think some well adjusted folks might recognize that even being relevant enough to be mocked on The Simpons is probably a nice nod towards your cultural relevance, but apparently not Morrissey.After his manager got all pissy and accused the show of being racist for its portrayal of Morrissey (?!?). Morrissey himself then posted a bizarre rant saying he wanted to sue and that there's no free speech any more and none of it makes any sense at all.

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This isn't an endpoint. This is only a beginning. This is one small step forward for accountability. It doesn't change the police culture that not only allows, but encourages, this sort of force deployment. But it does send the warning that juries may not be as deferential to police officers as they've been historically.To successfully prosecute a cop, you have to want to do it. Too many prosecutors would rather not expend the effort needed to hold their comrades-in-arms accountable for their actions. But every so often, a cop engages in such a callous display of violence, even those normally on the side of law enforcement can't condone their actions.That's what happened to former-officer, current-convicted-murderer Derek Chauvin. Thanks to bystanders and their recording devices -- especially then-17-year-old Darnella Frazier, whose recording of the 10-minute ordeal was instrumental in building a case against Chauvin -- this one cop wasn't able to escape the consequences of his actions. For nearly 10 minutes, Chauvin pressed his knee into George Floyd's neck. He ignored Floyd's increasingly-distressed statements that he couldn't breathe. He ignored a fellow officer who informed him he could no longer detect a pulse. He remained in place, looking for all the world like the personification of every racist policy this nation has enacted, until George Floyd was dead.And for that callous and reckless display of power, Derek Chauvin will be going to jail. The Minneapolis jury convicted him of all three counts. Here's the recording of that moment, which cathartically includes the cuffing of Chauvin by sheriff's deputies.There are three counts, but Chauvin will only be sentenced for the most serious charge: second-degree unintentional murder. That's perhaps still unsatisfactory (nothing about Chauvin's actions appeared to be "unintentional") but it's better than we've come to expect from our criminal justice system when it's forced to address the actions of law enforcement officers.Let's not forget that without the recordings made at the scene by citizens and nearby surveillance cameras, it's likely no charges would have been filed.This is how the Minneapolis PD originally described a white cop pressing his knee into the neck of an unarmed black man until he was dead:

A stash of public records recently obtained by BuzzFeed shows far more law enforcement agencies have experimented with Clearview's facial recognition software than previously acknowledged. The searchable data shows Clearview is still something law enforcement is interested in experimenting with. And there's probably more to this story, given that nearly 1,200 agencies refused to respond to BuzzFeed's requests.Clearview boasts something most other facial recognition tech companies can't: billions of images and a host of other personal info attached to those images. Unlike other databases that usually draw from public records like mugshot databases and DMV files, Clearview scrapes the web to compile its database, pulling photos and other info from the billions of public posts/accounts hosted by platforms like Twitter, Facebook, and LinkedIn.As the amount of input increases, so does the margin of error. But Clearview routinely overstates its accuracy. Last year, it claimed it "passed" the ACLU's facial recognition test. The ACLU disputed this claim, pointing out Clearview had not actually run the test as designed and that its software used things not commonly used by law enforcement, like clear photos and a database full of scraped images and personal info. Clearview's ability to properly recognize photos of senators and Congressional reps wasn't a sign of success, but rather the end result of playing with a loaded deck that linked clear, high-quality photos to Congressmembers' social media accounts and official websites.But the experimentation continues, urged on by Clearview's baseless claims of miraculous facial recognition technology. Jake Laperruque -- writing for the Project on Government Oversight (POGO) -- points out the company has routinely overstated the tech's effectiveness.

Well, well, this is certainly moving fast. Regular readers will recall that we've been having a conversation lately about how both customer purchases and video game as art are generally preserved in the face of platforms shutting down the hosting servers that keep all of this data. With a specific eye towards art preservation, this conversation has been largely propelled by Sony's recent announcement that it would be shutting down support for the PlayStation Store for the PlayStation 3, Vita, and PSP consoles. The consternation over all of this only got worse when it was noticed that Sony's batteries on the PS3 and PS4 consoles have a weird little time-sync check-in that has to occur with the PlayStation Network if they're replaced, or else those consoles will be unable to play many, in some cases all, games.Phew. Anyhoo, while these revelations have been ongoing over the past few weeks, Sony suddenly announced that it was kicking the can down the road by reversing its decision to stop supporting the PS3 and Vita PlayStation Stores.

It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

After a few cross-post episodes, we're back with a brand new conversation, and it's all about a big subject that intersects with the majority of what we cover here at Techdirt: rights. In his book How Rights Went Wrong, Columbia Law professor and Constitutional scholar Jamal Greene proposes a new way of thinking about rights and how they interact, and he joins this week's episode to discuss this paradigm-shifting idea that challenges many preconceptions about the subject.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Minneapolis, Minnesota was still on edge when a cop shot another unarmed black man. The trial of former officer Derek Chauvin is still underway. Last May, Chauvin knelt on the neck of George Floyd for over nine minutes -- including two minutes after another officer was unable to detect a pulse.With this hovering in the air, another senseless killing by an officer set everything off. Again. 26-year-veteran officer Kim Potter (who served a year as the head of the police union) turned a "routine traffic stop" into a homicide when Daunte Wright broke free from another officer and jumped back into his car. Potter yelled "Taser! Taser! Taser!" while pointing her gun at Wright. She shot him once, which was enough to kill him. Potter's service weapon was holstered on her right side. The Taser she supposedly thought she had in her hand was holstered on her left. The Taser was bright yellow. The gun she shot Wright with was not.Officer Potter resigned but it didn't change anything. She has been arrested and charged with second-degree manslaughter. Potter's error -- which seems completely inexplicable given the location, distance, color, and weight of the weapons she confused -- turned Brooklyn Center, Minnesota into ground zero for more protests and riots. And the Chauvin trial continues, promising more of the same if the end result is unsatisfactory.More of the same is also being observed by protesters and the journalists covering them. Protests around the country following the George Floyd killing were greeted by police violence. Journalists and legal observers were often targeted with the same crowd control efforts deployed against protesters and rioters. In far too many cases, officers (especially federal officers sent in to "help") appeared to specifically target journalists for abuse, including harassment and close-range deployments of pepper spray, tear gas, and other crowd control efforts.This targeted harassment of well protected First Amendment activity has resulted in lawsuits. So far, the government has always come out on the losing end. The same goes for Minnesota, where a judge has just approved a restraining order forbidding officers from targeting or arresting journalists. Here's Tony Webster's coverage of the mid-protest litigation:

Parler is coming back to the Apple iOS app store. As you'll recall, Apple (and Google) removed Parler's app from their mobile app stores back in January, saying that the app ran afoul of their requirements that platform apps must have reasonable content moderation policies. Parler, of course, falsely claimed not to do any moderation, but the company's then CEO admitted that he enjoyed banning leftist trolls from his site.After Parler was banned, there was a lot of wasted air screaming about how this was "anti-competitive" and "biased" against conservatives, and all of that was utter garbage. Google and Apple have policies in place, and if you violate them, you can lose access to Google's and Apple's platforms. And, of course, it's since come out that there was quite a battle inside Parler regarding its moderation strategies. While the founder and former CEO, John Matze, had promised more moderation when the service came back, in a lawsuit that Matze has since filed against the company, he claims that he was fired for trying to put in place that moderation policy.When Parler came back online with new hosting in February, the temporary CEO Mark Meckler had claimed that the service was coming back with AI and human moderators to deal with trolling, but insisted that it would not remove "content that attacks someone based on race, sex, sexual orientation or religion."It's unclear how much has changed, or how effective such a filter will be, but Apple has apparently decided it's good enough. In response to a demand letter from Senator Mike Lee and Rep. Ken Buck, Apple has said that it will reinstate Parler to the iOS app store. The letter explains, in great detail, how Parler was not following Apple's developer policies, leading to the ban, and how it has now come into compliance.

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Trump supporter and pillow manufacturer Mike Lindell was among those sued for defamation by Dominion Voting Systems over weeks of wild allegations about voter fraud that followed Donald Trump's loss at the polls in the 2020 election. Mike Lindell and his company, MyPillow, joined such luminaries as Rudy Giuliani and former Trump legal team member Sidney Powell as a recipient of a billion-dollar libel lawsuit.Now, Mike Lindell is fighting back. He's attempting to dismiss Dominion's lawsuit, claiming his alleged libel was nothing more than heated commentary touching on important political issues. More credibly, he's asking his company to be dismissed from the lawsuit because his company did not make any of the statements Dominion is suing over.Less credibly, he's filed a lawsuit [PDF] of his own against Dominion, claiming that naming his company as a defendant in a lawsuit somehow violates his company's rights. Considering this suit is only supposed to be about Dominion's "silencing" of MyPillow, the complaint spends a lot of its run time trotting out supporting evidence for the claims about Dominion Lindell says his company never made.That leads to some really weird assertions by Lindell, like the claim that naming a company in a lawsuit is an attempt to silence anyone associated with MyPillow and/or allegations of election fraud.

Earlier this year net neutrality opponents (read: US telecom monopolies and those who love them) used veterans as a cheap prop to unfairly demonize California's shiny new net neutrality law. California's net neutrality law bans "zero rating," or the act of imposing bullshit, arbitrary usage caps, then exempting an ISP's own content (or the content of any individual organization or company) from them. The reason for the ban? Caps are artificial constructs, and exempting select content from them tilts the internet playing field in favor of an ISP or deep-pocketed companies.The prohibition is a good thing, in that it thwarts companies like AT&T or Comcast from exempting their own streaming content from caps, while still penalizing customers of competing streaming services (something AT&T has been doing for several years). It also prohibits letting a company like ESPN pay AT&T to exempt its own content from caps and obnoxious overage fees, ensuring they only apply to smaller sports media startups or competitors. It's an issue of fair competition.Last month, the telecom industry clearly leaked a letter to Politico sent by two anonymous broadband providers (I believe to be T-Mobile and Verizon) to the VA, warning them that California's net neutrality law might ban veteran access to a healthcare app dubbed VA Video Connect. The issue: VA Video Connect is exempted from wireless and fixed broadband usage caps, providing veterans with a little financial relief for using it. So it technically violates the California law (not that California enforcers would actually act on it), and the VA was simply asking questions about what happens next.But here's the thing: usage caps are bullshit constructs in the first place. They serve no technical function, and aren't helpful in managing network load or congestion. They're created by ISPs as a way to not only nickel-and-dime consumers and competing businesses, but to put themselves in an unwarranted position of control. As such, the whole model of exempting some content from such arbitrary restrictions is equally bullshit. And while the VA agreement does violate California's law, the workaround is simple: simply give veterans a discount off their entire mobile bill. Problem solved.But because this is difficult for Luddites to understand, the GOP and its political operatives quickly pounced on the issue to exploit it, falsely claiming that "veterans were being cut off from essential healthcare." That message soon popped up everywhere in GOP-friendly news outlets like the Wall Street Journal and Fox News, among telecom backed think tanks, and in the mouths of FCC Commissioners like Brendan Carr. As somebody who's covered telecom for longer than I'd like, it's clear the entire thing was coordinated by industry lobbyists/policy wonks from the start.This week, GOP lawmakers sent a letter to FCC boss Jessica Rosenworcel again using this non-issue to try and warn the FCC away from restoring net neutrality:

While I write about a great many trademark disputes in these pages, there are certain stories that pique my interest above others, or otherwise become more fun. Writing about trademark issues in the alcohol industries has been something of a passion of mine, for instance. It's also fun to highlight when the courts get trademark questions right, since far too often the opposite occurs. And, when you have a judge who chooses to embed some humor in their rulings, that gets pretty fun as well.And then sometimes you run into a trademark story that combines all three of the above. Such is the case in a trademark dispute between two South Carolina breweries. Low Tide Brewing has sued Tideland Brewing for trademark infringement over its name. As part of that suit, Low Tide Brewing went so far as to seek a preliminary injunction against Tideland to keep it from using that name while the suit plays out.In ruling on the injunction, the judge was simply not having it.

Josh Hawley is gonna Josh Hawley. The Senator from Missouri, who still has not apologize or admitted to supporting the invasion of the Capitol in an attempt to overturn the election, has a long history of nonsense bills that are performative for his riled up base. His latest is more of the same. On Monday he introduced the "Bust Up Big Tech Act" and even if you're a supporter of antitrust and think that big tech should be "busted up," it should give you pause before supporting Hawley's nonsense. The bill itself is... weird. It seems to pick seemingly random activities and insist that no company can do two of them. Basically, he looked at different businesses that Amazon and Google are in, and the bill says "you're no longer allowed to do those different things." As some have pointed out, under this bill it appears that Walmart can no longer sell under a house brand, because the bill bars any company that qualifies from selling, advertising or otherwise promoting your own products.But the thing that amazes me is just how upfront and blatant Hawley is that this bill is not about any principled stance regarding antitrust. It is entirely about "owning the libs," which is the performance Hawley thinks he needs to perform for his base. The fact that Hawley knows he needs to do stupid shit for his voters shows that he truly believes his supporters are a bunch of ignorant fools, and he's catering to that audience. He did it last week with his bill to attack MLB for its speech, and now he's doing it this week with this bill to go after "big tech." You can see it from the quote in his press release, in which he flat out admits he's doing it to attack "woke" companies.

The NYPD has an uneasy relationship with Clearview. The facial recognition startup -- one that has compiled a database of millions of images by scraping info from social media platforms and other websites -- claimed in an emailed pitch that the nation's largest police force used its software to identify a suspected terrorist.That's not what actually happened, said the NYPD. It didn't use Clearview (even though it had experimented with it). Instead, the NYPD used its own facial recognition tech to identify the suspect by searching against a pool of images derived from its mugshot database.But Clearview persists. The NYPD expressly forbade the use of Clearview and other "outside databases" in March 2020. Prior to that ban, it appears NYPD investigators were still using the software. How often they used it to run searches on suspected criminals is unknown. But emails obtained by the Legal Aid Society show investigators used it at least once to identify a couple of unknown subjects… who also happened to be NYPD officers.

Shortly after Charter Communications (Spectrum) acquired Time Warner Cable in 2016, the company simply stopped negotiating with its unionized employees in the New York City region. Not long after in 2017, around 1,800 Charter employees went on strike over a lack of any traction on healthcare and pensions... and they've been on strike ever since. At four years and counting, it's technically the longest strike in US history, and there's absolutely zero indication that Charter has any real interest in negotiating with the striking employees.That said, they've been productive in their free time. Many members of IBEW Local #3 have been busy building their own broadband internet service provider (ISP) in the New York City region. Like the 750 other US towns and cities that have explored community broadband, the effort was born out of frustration with entrenched regional telecom monopolies:

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For many years I've tried to point out that no one seems to have a very good conceptual framework for "privacy." Many people act as if privacy is a concrete thing -- and that we want our information kept private. But as I've pointed out for years, that doesn't make much sense. Privacy is a set of tradeoffs. It's information about ourselves, that we often offer up freely, if we feel that the tradeoff is worth it. And, related to that, there's a big question about who is controlling the data in question. On top of that, things get confusing when we consider just who is controlling what data. If we're controlling our own data, then we have some degree of autonomy over our privacy trade-offs. But when we hand that data off to a third party, then they have much more say over our privacy -- and even if they agree to "lock down and protect" that data, the end result might not be what we want. For one, we're giving those companies more power of our data than we, ourselves have. And that can be a problem!Because of this, privacy questions are often highly contextual -- and often conflict with other issues. For example, after the Cambridge Analytica scandal, Facebook was yelled at over and over again regarding its poor data privacy efforts -- leading the company to say "okay, fine we'll lock down your data, and just keep it for ourselves." Which is a totally reasonable response to the complaints that "Oh, Facebook leaked our data." But, of course, the end result of that is... worse. Then we've handed Facebook even more control over our data, and given significantly less ability for competitors to come along. That's not good!There's a similar issue with advertising and privacy, that we discussed just last month. Google clarified its plans to block 3rd party cookies. In many ways, this is good for privacy. 3rd party cookies are often abused in creepy ways to track people. So it's good that Google won't support them (Firefox and Safari already made this move earlier). But lots of people then vocally complained that this would only give more power to Google, because it can deal with the lack of data, while competitive (smaller) advertising firms cannot.These issues are often in conflict -- and many of the big tech critics out there don't want to recognize that. In fact, it lets them attack these companies no matter what they do. If they do something that's good for privacy, but bad for competition, focus on how it's bad for competition. If they do something that's good for competition, but bad for privacy, focus on how it's bad for privacy.A recent article in Wired by Gilad Edelman highlights this tension in the antitrust context. Noting that in the big antitrust fights against Facebook and against Google, the two companies are being attacked in very different ways: one for being more protective of private data in a way that gives the company more power, and one for violating privacy of users.

Great news, everyone! The FBI has been fighting a cyberwar on your behalf… perhaps utilizing your own computer. Here's Zack Whittaker with some details:

This week, our first place winner on the insightful side is Stephen T. Stone commenting on the unconstitutional nature of the way Senate republicans have approached a bill stripping MLB's antitrust exemption:

Five Years AgoThis week in 2016, the encryption wars continued. Senators Burr and Feinstein were planning a one-sided briefing with law enforcement, and soon officially released their terrible anti-encryption bill (though it seemed to be missing some stuff). The US Attorney bizarrely suggested a ban on importing open source encryption tech, while on the other hand the Inspector General was noting existing abuse of cell phone forensic equipment by law enforcement. Apple was still fighting the DOJ, and it became increasingly clear that the access they got to Syed Farook's iPhone didn't accomplish much if anything.Ten Years AgoThis week in 2011, it was copyright nonsense all over the place. The EU was getting ready to vote on an unnecessary copyright extension while some European lawmakers were talking about browser-based site blocking; GoDaddy's CEO was attempting to use copyright to silence critics; a judge who had allowed mass infringement lawsuits backpedaled after people noted her RIAA lobbying past; police were going after mixtape-making DJs, with RIAA reps in tow; and Joe Biden said there's no reason to treat intellectual property any differently from physical property. This was also the week that Sony settled its jailbreaking lawsuit against Geohot, though his supporters were not thrilled.Fifteen Years AgoThis week in 2006, we looked at Disney's MovieBeam as a prime example of entertainment companies not understanding how to use new tech properly, even if there were some hints that the company might be starting to figure it out. MLB.com was still trying to grow into the music space by running band websites, and everyone was trying to get in on the game of programmatic ad auctions, and/or the booming MySpace economy. We also saw an early freak-out over the Internet Archive's activities.

We've had a couple of discussions now about video game preservation with the impetus being Sony's shutdown of support for the PlayStation Store for PSP, PS3, and Vita owners. The general idea there was questioning what happens to games for those systems in the very long term if suddenly nobody can get to them anymore and the developers and publishers are not always retaining the source code and assets for these games on their end. That sort of thing is probably primarily of interest to us folks who look at these games as a form of art and culture, very much worth preserving.But Sony may well have a much bigger issue on its hands. As a result of a strange internal time-check issue that exists on PS3 and PS4 consoles, there is the very real possibility that those consoles will be unable to play any purchased game soon if the end user replaces the battery on the device. It's, well, it's a bit like Y2K, but for real.

Summary: While the social media/social networking space today is dominated by Facebook, it’s interesting to look at how Facebook’s predecessors dealt with content moderation challenges as well. One of the earliest social networks to reach mainstream recognition was Friendster, founded by Jonathan Abrams in 2002 and launched in early 2003, gaining millions of users who signed up to connect with friends. Originally built as a dating site, it expanded quickly beyond that.One of the first big content moderation questions that the site faced was whether or not to allow “fakesters.” As the site grew rapidly, one popular usage was to set up fake accounts -- these were accounts for completely made up fictional characters (e.g., Homer Simpson), concepts (e.g., Pure Evil), random objects (e.g., Giant Squid), or places (e.g., New Jersey). Researcher danah boyd catalogued the different types of fakesters and studied the phenomenon of fake accounts on the site.However, Abrams quickly decided that “fakester” went against the ethos of the site he envisioned. In a 2003 article in SF Weekly that discusses the “fakester” issue, Abrams makes it clear that such accounts do not belong on the site, even if some people find them amusing:

It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes' long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who's paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were "concerns" about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn't even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller's team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren't defamatory. The district court judge did call out Biss' bad behavior in the case, but still opted not to issue sanctions against him.Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again -- including agreeing not to sanction Biss, even as the judges seem to recognize that he's pursuing a garbage case (and that he has a history of this).Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we've covered many times, it's pretty widely settled that there's a "first publication" rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument... says the opposite.

Another shooting of an unarmed person by police officers will likely see parts of Chicago burn over the next few days. But to get to where we are in the aftermath of this very disturbing shooting, we have to start at the beginning.

It's become quite clear over the past few years that the Republicans' platform these days is "punish those who disagree with us," or, in the shorter vernacular: "cry moar, libs." This becomes blatantly clear as you look at the newly released "Big Tech Accountability Platform" that the Republicans in the House have released (coming from the ranking member of the House Energy & Commerce Committee, Rep. Cathy McMorris Rodgers). The platform actually starts out making some amount of sense, but note that it will ignore all of that within a single page. The principles laid out are actually good ones -- if the plan actually followed them (which it does not):

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Mastercard is in the process of killing off another way for sex workers to make money. Its updated policy on "illegal adult content" takes aim at a bunch of adult content that isn't actually illegal. What the new policy does is make it impossible for streaming platforms to comply with the new rules. Since they're not able to prescreen streamed content, they're just going to start blocking anything that seems like it might lead to Mastercard pulling the plug.This will hit sites like OnlyFans and MyFreeCams the hardest, as sex worker/advocate Mary Moody points out. But it will also cause collateral damage at streaming sites that aren't able to comply with Mastercard's new demands and may start banning accounts and blocking streams if they suspect (without verifying) "adult content" might be offered.Here's what Mastercard is requiring from sites hosting content:

For decades, America's entrenched broadband monopolies have had it pretty good. Despite a brief blip there during the Wheeler FCC years, they've been hugely successful in gutting most of the meaningful regulatory oversight of natural monopolies. At the same time, they've been damn successful in using their political power to limit the threat posed by smaller competitors. The end result should be fairly obvious to those with eyes: Americans pay some of the highest rates in the developed world for patchy, slower service, and US broadband providers see some of the lowest consumer satisfaction ratings of any industry in America.This is, it should always be remembered, a choice. For thirty straight years the central policy narrative in the US has been that if you mindlessly eliminate government oversight of regional monopolies with a generation of bad behavior under their belt, magic happens. You're to ignore that this promised telecom Utopia somehow never materializes despite twenty straight years of mindless deregulation, rubber stamped mergers, and the steady erosion of even baseline consumer and market protections.With 5G deployment speeding up and promising new low-orbit satellite options on the horizon, Wall Street is starting to get nervous once again. They're also starting to get nervous about the threat that the Biden administration might actually engage in some base-levels of regulatory oversight. The consternation in investment circles is palpable:

It's been a while since we've checked in on how the PC gaming platform war is going. If you'll recall, the Spring of 2019 saw a new entrant into this ongoing battle, with Epic releasing the Epic Store. Epic's plan appeared to be essentially a PR battle at first, drawing in the public by proclaiming that Steam's revenue splits with developers and publishers were bad for the gaming industry and by drawing in publishers and developers with a better version of those splits for them. On top of that, Epic used those splits to gobble up a bunch of exclusive or timed exclusive releases of games, which ended up pissing off many in the gaming public and, of course, Steam. Then came Epic's free game releases, where the platform worked out deals with publishers to offer up AAA game titles for literally no money as a method for getting gamers to adopt the platform.All of this didn't come with zero fallout from what Epic was doing, of course. The public doesn't like exclusives generally. Crowdfunding got weird due to the exclusivity. And the launch of the Epic Store in the early days was not without its hiccups, either. Now that we're 2 years on, how has this all shaken out?Well, Epic is getting a decent chunk of market share with its tactics, even as the platform takes on major losses in doing so. The reason for those losses? Well, largely they have to do with all of those free games and timed exclusives. And we have Epic's battle with Apple to thank for the information.

Private prison company CoreCivic has just learned a civics lesson. [I'll show myself out.] Possibly a very expensive one.Last March, it sued [PDF] Candide Group, an investment firm that "directs capital away from an extractive global economy towards investments dedicated to social justice and sustainability." CoreCivic was one company Candide reps wanted money directed away from, citing its participation in separating parents from children at our nation's borders. (But really only the Southern border if we're honest.) Candide also claimed CoreCivic lobbies for harsher sentencing and tougher immigration laws since both of those would naturally provide more business for CoreCivic.CoreCivic's libel lawsuit said these two "falsehoods" were spread throughout the web via sites like Forbes and multiple social media platforms. It denied both assertions and said they were stated with a reckless disregard for the truth. Candide responded with an anti-SLAPP motion [PDF], which pointed out that not only could CoreCivic not prove the statements were false but also that it had filed its lawsuit past the one-year statute of limitations.The motion worked. After some back and forth discussion about the merits of the arguments, the court disposed of CoreCivic's lawsuit with a very short dismissal [PDF] in November. The order doesn't say much but it says enough to indicate just how weak CoreCivic's allegations were.

Techdirt covered the story of France's "three strikes" law, later known as Hadopi, from the body overseeing it, for over ten years. What became a long-running farce eventually cost French taxpayers €82 million, and generated just €87,000 in fines. A rational government might draw the obvious conclusion that trying to stamp out unauthorized downloads using the crude instrument of fines and threats was the wrong approach. Oddly, though, the French government has decided that Hadopi was such a stunning, and embarrassing failure, it wants to do it again, but on an even grander scale, as a story on Euractiv reports:

There are plenty of legitimate things to complain about regarding some of the big internet companies -- but so many people these days view things through a weird prism in which every single action absolutely must be for evil intent, even when it's actually for a good reason. Sometimes this leads to crazy reactions in which the companies are criticized for doing the exact opposite things, with both approaches being framed as nefarious.The latest is a very odd piece by Rory Cellan-Jones in the UK. The National Health Service (NHS) there had a contact tracing app early in the pandemic, but last summer, recognizing the limitations of its own system, switched to the framework developed by Apple and Google early on. As you may recall, Google and Apple (somewhat surprisingly) came together early on to set up a framework for contact tracing -- and the two companies put privacy front and center in the development of the system, with both recognizing (1) the inherent privacy concerns of medical information, and (2) the fact that many people already were skeptical of the two companies.And, pretty quickly we saw some weird pushback, like the Washington Post whining that the app was too protective of privacy, keeping your health information out of the hands of government officials.When the UK decided to switch over to Apple/Google's system, it agreed to abide by the privacy rules that Apple and Google established. But, it appears the NHS tried to push the boundaries and go beyond the privacy framework. Specifically, under the updated version, if a user tested positive for COVID, the app asked the user to upload their "venue" history (all the places they had "checked in" to according to the app). But a core part of the privacy setup was that your location info was designed to be kept decentralized and on your phone. The fear being that if you're uploading your locations it becomes a prime surveillance tool. Thus, Google and Apple rejected the updated app.And that leads to the BBC piece that explains all of this, but then concludes by complaining about Google and Apple's ability to block these privacy-invasive feature:

Five years ago, the DOJ and Apple engaged in a courtroom fight over device encryption. The DOJ wanted Apple to craft a backdoor so the FBI could search a phone belonging to one of the San Bernardino shooters. It was a work phone owned by Syed Farook, who was killed during a shootout with law enforcement. That it was a work-issued phone suggested it wouldn't contain much useful evidence or information. But the government insisted it would and attempted to secure an order forcing Apple to do what the DOJ wanted.While everything still remained unsettled, the DOJ dropped the case after finding someone who could break into the phone. This small victory against device encryption was treated as a loss by many inside the FBI, who really would rather have had court precedent mandating compelled decryption. Ultimately, the millions of dollars spent trying to achieve this -- including the $900,000-1.3 million spent on the exploit itself -- meant nothing. There was no useful evidence recovered from Farook's work phone.Since then, there has been a lot of speculation about which phone cracking tech company provided the exploit to the FBI. It turns out to have been none of the usual suspects. Instead, as Ellen Nakashima and Reed Albergotti report for the Washington Post, it was a small Australian company that has flown under the radar until this point: Azimuth Security.

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It seems like every few months a new social media app comes on the scene, promising to be the "free speech" social media app that says it won't "censor" (by which they mean moderate) anything. And those of us who have been in this space for more than two seconds laugh. Because every single internet service that allows third party speech sooner or later realizes that moderation is not optional -- it's necessary to keep any site running. At a basic level, it starts with spam. Leaving up spam makes a site unusable. After that, there are things that you are legally required to remove, including child sexual abuse material and (in some cases) copyright infringing material.Sooner or later, though, every such site realizes that it has to go through the content moderation learning curve. That doesn't mean they all need to follow the same rules or do the same thing, but they do need to recognize that content moderation questions are always there. This includes things like "how do you deal with abuse and harassment" and just generally how do you deal with trolls who are clearly up to no good. There are many different approaches to this, but insisting that you're the "free speech" site that will "do nothing" is not a realistic statement. It's one that demonstrates ignorance.Enter the MyPillow dude, Mike Lindell. Last month Lindell announced that he was building his own social media site, with a tagline "voices of free speech." I'm not even sure what that means. He insisted that people will have "10 times more followers" on his janky platform, and that Twitter and Google will "be a thing of the past," which shows a bit of bravado, I guess.

Welcome once again to America's War on Drugs, already in progress.In the name of "protecting" us from the overstated ravages of drug addiction, the government engages in violence, rights violations, overzealous prosecutions, millions of interactions with the criminal justice system, and periodic bouts of performative lawmaking.And what have we gotten in return? Drug users are the real winners here. The more money we throw at the Drug War, the more easily accessible and cheap drugs are. While politicians and government agencies claim they want to save people from violence and corruption, violent and corrupt law enforcement officers are doing all they can to be worse than the problem they're supposed to be solving.When there's not enough drug activity to sustain local Drug Wars, the cops will create it. We saw this happen in Houston, Texas, where a botched drug raid, predicated on multiple levels of bullshit, resulted in cops killing two residents who had never engaged in the drug sales activity cited on the warrant request. Houston cops are, fortunately, feeling the pain. They may still be alive but they're facing a host of criminal charges.If there aren't enough drug war combatants to engage with, cops on drug task forces aren't above creating their own. The botched raid in Houston was predicated on a statement from a nonexistent informant and drugs pulled from a cop's cruiser.In New York City, it's more of the same. And it's going to cost city residents millions of dollars before this is all sorted out.

Summary: Users attempting to sign up for a new ride-sharing program ran into a problem from the earliest days of content moderation. The "Scunthorpe problem" dates back to 1996, when AOL refused to let residents of Scunthorpe, England register accounts with the online service. The service's blocklist of "offensive" words picked out four of the first five letters of the town's name and served up a blanket ban to residents.Flash forward twenty-three years and services still aren't much closer to solving this problem.Users attempting to sign up for Lyft found themselves booted from the service for "violating community guidelines" simply for attempting to create accounts using their real names. Some of the users affected were Nicole Cumming, Cara Dick, Dick DeBartolo, and Candace Poon.These users were asked to "update their names," as though such a thing were even possible to do with a service that ties names to payment systems and internal efforts to ensure driver and passenger safety.Decisions to be made by Lyft:

But for video.The twist? This time the cops brought their own damnation to the party.Cops like to pretend they and the boys in actual camouflage uniforms are BFFs, united against the constant threat of evil. Cops think they're soldiers. It's unclear whether soldiers think they're cops, but the people sending them orders certainly think they are. I mean, we don't go from zero to "Team USA America: World Police" without some nudges from those on and off the battlefield.Here's where this all intersects: two Windsor (VA) officers decided the best response to what appears to be a routine traffic stop was a whole lot of violence, both physical and mental. The body cam video shows just how much at least one officer overreacted to a man who just wanted to survive the unexpected interaction with law enforcement.This is what happened to Caron Nazario -- an Army medic. He bought a new car. And, as everyone knows (including the cops who pulled him over) new cars don't have rear plates. They have temporary paper tags located inside the rear window where they won't be destroyed by, say, any weather whatsoever.Despite this being common knowledge, these officers (Joe Gutierrez, Daniel Crocker) effected a traffic stop. Things were unnecessarily escalated because Nazario chose to do something everyone -- even cops -- say is a good idea. From the lawsuit [PDF]: