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Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.

Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.

What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.

Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.

Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.

This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.

Here's how it started:

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Here's how it's going:

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.

The competing arguments about expectation are (from the defendant) "some" and (from the Commonwealth) "none." It's not that simple, says the court.

Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered brightline rules.

In this case, Boston police officer Joseph Connolly created a fake Snapchat account and sent a friend request to a private account run by "Frio Fresh." Fresh accepted the friend request, allowing the officer access to all content posted. In May 2017, Officer Connolly saw a "story" posted by "Frio Fresh" that showed him carrying a silver revolver. Connolly recorded this and passed the information on to a BPD strike force after having observed (but not recorded) a second "story" showing "Frio Fresh" in a gym. The strike force began surveilling the gym and soon saw "Frio Fresh" wearing the same clothes observed in the first story (the one the officer was able to record with a second device). Strike force members pursued "Frio Fresh" and searched him, recovering the revolver seen in the Snapchat story.

The court recognizes the damage free-roaming surveillance of social media can do to constitutional rights, as well as people's generally accepted right to converse freely among friends.

Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others' homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.

Despite this acknowledgment, the court rules against the defendant, in essence saying it was his own fault for not vetting his "friends" more thoroughly. The defendant seemed unclear as to Snapchat privacy settings and, in this case, willingly accepted a friend request from someone he didn't know who used a Snapchat-supplied image in his profile. In essence, the court is saying either you care about your privacy or you don't. And, in this case, the objective expectation of privacy is undercut by the subjective expectation of privacy this user created by being less than thorough in his vetting of friend requests.

Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. See id. For instance, Connolly was granted access to the defendant's content using a nondescript username that the defendant did not recognize and a default image that evidently was not Connolly's photograph. By accepting Connolly's friend request in those circumstances, the defendant demonstrated that he did not make "reasonable efforts to corroborate the claims of" those seeking access to his account.

[...]

Indeed, Connolly was able to view the defendant's stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.

The final conclusion is that this form of surveillance -- apparently without a warrant -- is acceptable because the surveilled user didn't take more steps to protect his posts from government surveillance. There's no discussion about the "reasonableness" of officers creating fake accounts to gain access to private posts without reasonable suspicion of criminal activity. Instead, the court merely states that "undercover police work" is "legitimate," and therefore not subjected to the same judicial rigor as the claims of someone who was duped into revealing the details of their life to an undercover cop.

The defendant may get another chance to appeal this decision if the state's Supreme Court decides creating fake accounts to trawl for criminal activity falls outside the boundaries of the Constitution. Until then, the only bright line is don't accept friend requests from people you don't know. But that's still problematic, considering there's no corresponding restriction on government activities, which may lead to officers impersonating people from targets' social circles to gain access to private posts. And when that happens, what recourse will defendants have? The court says it's on defendants to protect their privacy no matter how many lies law enforcement officers tell. That shifts too much power to the government and places the evidentiary burden solely on people who expect their online conversations to be free of government surveillance.

We've got another cross-post this week: Mike was recently a guest on the new Internet of Humans podcast by Jillian York and Konstantinos Komaitis, for a wide-ranging discussion about internet regulation issues today and where they might be headed. You can listen to the entire conversation on this week's episode.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years, throughout the entire monkey selfie lawsuit saga, we kept noting that the real reason a prestigious law firm like Irell & Manella filed such a patently bogus lawsuit was to position itself to be the go-to law firm to argue for AI-generated works deserving copyright. However, we've always argued that AI-generated works are (somewhat obviously) in the public domain, and get no copyright. Again, this goes back to the entire nature of copyright law -- which is to create a (limited time) incentive for creators, in order to get them to create a work that they might not have otherwise created. When you're talking about an AI, it doesn't need a monetary incentive (or a restrictive one). The AI just generates when it's told to generate.

This idea shouldn't even be controversial. It goes way, way back. In 1966 the Copyright Office's annual report noted that it needed to determine if a computer-created work was authored by the computer and how copyright should work around such works:

In 1985, prescient copyright law expert, Pam Samuelson, wrote a whole paper exploring the role of copyright in works created by artificial intelligence. In that paper, she noted that, while declaring such works to be in the public domain, it seemed like an unlikely result as "the legislature, the executive branch, and the courts seem to strongly favor maximalizing intellectual property rewards" and:

Indeed, we've seen exactly that. Back in 2018, we wrote about examples of lawyers having trouble even conceptualizing a public domain for such works, as they argued that someone must hold the copyright. But that's not the way it needs to be. The public domain is a thing, and it shouldn't just be for century-old works.

Thankfully (and perhaps not surprisingly, since they started thinking about it all the way back in the 1960s), when the Copyright Office released its third edition of the giant Compendium of U.S. Copyright Office Practices, it noted that it would not grant a copyright on "works that lack human authorship" using "a photograph taken by a monkey" as one example, but also noting "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

Of course, that leaves open some kinds of mischief, and the Office even admits that whether the creative work is done by a human or a computer is "the crucial question." And, that's left open attempts to copyright AI-generated works. Jumping in to push for copyrights for the machines was... Stephen Thaler. We've written about Thaler going all the way back to 2004 when he was creating a computer program to generate music and inventions. But, he's become a copyright and patent pest around the globe. We've had multiple stories about attempts to patent AI-generated inventions in different countries -- including the US, Australia, the EU and even China. The case in China didn't involve Thaler (as far as we know), but the US, EU, and Australia cases all did (so far, only Australia has been open to allowing a patent for AI).

But Thaler is not content to just mess up patent law, he's pushing for AI copyrights as well. And for years, he's been trying to get the Copyright Office go give his AI the right to claim copyright. As laid out in a comprehensive post over at IPKat, the Copyright Office has refused him many times over, with yet another rejection coming on Valentine's Day.

Somehow, I doubt that Thaler is going to stop trying, but one hopes that he gets the message. Also, it would be nice for everyone to recognize that having more public domain is a good thing and not a problem...

The man presiding over a law enforcement agency filled with gangs and cliques would prefer city officials stop referring to his employees as gang members.

Los Angeles County Sheriff Alex Villanueva has stated that there are no gangs within the Sheriff's Department, a claim he is obviously unable to back up with facts, because the facts make it clear that the LASD has been (and apparently still is) home to multiple gangs composed of deputies. There's even a Wikipedia page dedicated to the gangs infesting the Sheriff's Department.

If you distrust the info on the anyone-can-edit Wikipedia page, there's also this comprehensive database compiled by journalist Cerise Castle for Knock LA -- one that pulls info from public records and court documents to list suspected and verified members of LASD gangs.

Sheriff Villanueva continues to claim there are no gangs within his department. He has also instituted a policy to address the problem he says doesn't exist, forbidding deputies from "joining any group that commits misconduct." You'd think this policy would forbid any deputy from being employed by the Los Angeles Sheriff's Department, but I guess that's not how Villanueva reads his edict.

As for Villanueva's claim gangs and cliques don't exist within his department? Well, let's take a look at what his employees say:

Hundreds of Los Angeles County sheriff’s deputies said they have been recruited to join secretive, sometimes gang-like cliques that operate within department stations, according to the findings of a survey by independent researchers.

The anticipated study into the problematic fraternities — which L.A. County officials commissioned the Rand Corp. to conduct in 2019 — found 16% of the 1,608 deputies and supervisors who anonymously answered survey questions had been invited to join a clique, with some invitations having come in the last five years.

Well, all evidence to the contrary aside, Sheriff Villanueva is no longer going to stand idly by while city officials continue to make accurate statements about his problematic agency. He's issued a… well, not really a "cease and desist" letter [PDF] to the Los Angeles Board of Supervisors demanding (but not really) they stop saying his department has a gang problem. (h/t Adam Steinbaugh)

The letter is a fun read, even more so because Sheriff Villanueva definitely did not want his vaguely threatening fluff to be considered enjoyable for all the wrong reasons. Behold the semi-coherent wrath of a pissed off public servant.

As the elected Sheriff of Los Angeles County, I demand you and other elected leaders, as well as your appointees, immediately cease and desist from using the derogatory term “deputy gangs” when referring to members of the Los Angeles County Sheriff's Department (Department). This willful defamation of character has injured both individuals and the organization. It also serves no purpose other than to fuel hatred and increase the probability of assault and negative confrontations against our people.

So, it looks like a cease-and-desist (it even uses the words!), but the Sheriff has no power to make this demand. And Villanueva is hopefully using the phrase "defamation of character" in the colloquial, no-relation-to-the-legal-meaning sense of the words, because there's plenty of evidence out there that would make any accusations about LASD gangs "substantially true" and, therefore, not defamation at all. I know we (and by "we," I mostly mean courts) don't expect law enforcement officers to be legal experts, which is good, I guess, because they clearly fucking aren't.

The letter continues in the same vein: Villanueva bitching, mostly ineffectively, that it's unfair to his department when city officials say bad things about him and his employees. The next paragraph of the letter basically says the Sheriff's Department has all the heroes and the Board of Supervisors has all the hypocritical assholes.

My personnel routinely place themselves in harm's way while serving our community and ask nothing in return, other than a paycheck and maybe a little respect for the tough job they perform. Elected officials have no problem attending the funeral of a peace officer killed in the line of duty and often fight for the opportunity to speak at the podium, but the manner in which some have enthusiastically branded my personnel as "gang members” every opportunity they get is disgusting.

It is completely possible for officials to show their respect for an officer killed in the line of duty while still suspecting the law enforcement agency they work for is home to groups of officers who commit serious misconduct while engaging in gang-like behavior: violent acts, tattoos/clothing/insignias/etc., codes of silence, et al. You know, just like it's possible for officers of the law to recognize the War on Drugs harms more than it helps.

According to the sheriff's letter, the only reason board members might refer to deputies as gang members stems from a dismissed lawsuit brought by a former LASD deputy. The letter claims this is the only "evidence" anyone has ever had and that other research arriving at the same conclusions is completely undermined because a single source of information was declared to be untrustworthy by a court decision. That willfully ignores the years of data that shows deputies have formed cliques/gangs within the department. And while that may not be the sole contributing factor to large amounts of misconduct, it certainly hasn't helped neutralize the "us vs. them" mentality that is the root of so many casual abuses of rights.

From there it gets truly laughable, with Sheriff Villanueva again demonstrating his inability to understand speech-related laws before claiming that referring to LASD gangs is actually a form of bigotry.

Those who want to further undermine the perception of law enforcement use it as hate speech to promote their own agendas, such as defunding law enforcement and redirecting those funds to their own non-profit organizations, many of which are nothing more than sham corporations who operate with virtually zero accountability. Further use of the term will be evidence of your actual underlying intent, which appears to be a campaign to inflict harm upon the reputation of the Department and myself.

First off, calling someone a gang member or implying there are gangs in the LASD isn't hate speech. It's not even hate speech in the most ignorant sense of the word. Speech someone doesn't like is not hate speech, and that's all that's really happening here. The Sheriff and his deputies aren't a protected class, nor is being employed by the LASD an immutable characteristic that can trigger hate crime laws when derogatory language is used. The rest of this is no less stupid. "Further use… will be evidence of your actual underlying intent" to harm the Department. Whatever. This isn't legally binding and further use will be evidence of nothing.

So very stupid.

As the first fluently Spanish speaking Latino Sheriff in over a hundred years, who supervises a majority Latino workforce, I hope you can see the blatant racial inferences your conscious bias displays every time you choose to attack our Department with this derogatory term.

Um, people were saying the LASD was gang-infested long before you took office, Sheriff. That they're still saying it doesn't reflect on you or your multilingual skills. All it says is that the problem persists and it's now your problem, Sheriff.

Finally, the Sheriff appears to believe this somehow is a valid legal threat, despite the fact he's unlikely to prevail in a defamation lawsuit against city council members. Here's how the letter wraps up:

I openly challenge every elected leader, or their appointees, to provide facts to me and name individuals who they can prove are "gang members," as defined by California Penal Code Section 13670, and subject yourself to defamation laws if wrong.

LOL. Well, this shouldn't be too hard. Here's the relevant part of the California Code:

"Law enforcement gang" means a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state antidiscrimination laws, engaging in or promoting conduct that violates the rights of other employees or members of the public, violating agency policy, the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified, falsifying police reports, fabricating or destroying evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, unauthorized use of alcohol or drugs on duty, unlawful or unauthorized protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.

To sum up: the Los Angeles Sheriff's Department is a gang associated with an identifying symbol that engages in all of the listed behavior. Therefore, it should be declared illegal under state law and disbanded.

There are few things more enjoyable than sternly-worded letters that are 50% bluster, 50% unintentionally hilarious. Recipients of this letter should take the Sheriff up on his dare and let him know just how many bad apples he's overseeing. If nothing else, council members should send Villanueva a "Thanks for the laugh. I really needed that." in response to his declaration of keyboard war.

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When Donald Trump first announced his plans to launch his own Twitter competitor, Truth Social, we noted that the terms of service on the site indicated that the company -- contrary to all the nonsense claims of being more "free speech" supportive than existing social media sites -- was likely going to be quite aggressive in banning users who said anything that Trump disliked. Last month, Devin Nunes, who quit Congress to become CEO of the fledgling site, made it clear that the site would be heavily, heavily moderated, including using Hive, a popular tool for social media companies that want to moderate.

So with the early iOS version of the app "launching" this past weekend, most people were focused on the long list of things that went wrong with the launch, mainly security flaws and broken sign-ups. There's also been some talk about how the logo may be a copy... and the fact that Trump's own wife declared that she'll be using Parler for her social media efforts.

But, for me, I went straight to checking out the terms of service for the site. They've been updated since the last time, but the basics remain crystal clear: despite all the silly yammering from Nunes and Trump about how they're the "free speech" supporting social network, Truth Social's terms are way more restrictive regarding content than just about any I've ever seen before.

Still, the most incredible part is not only that Truth Social is embracing Section 230, but it has literally embedded parts of 230 into its terms of service. The terms require people who sign up to "represent and warrant" that their content doesn't do certain things. And the site warns that if you violate any of these terms it "may result in, among other things, termination or suspension of your rights to use the Service and removal or deletion of your Contributions." I don't know, but I recall a former President and a former cow farming Representative from California previously referring to that kind of termination as "censorship." But, one of the things that users must "represent and warrant" is the following:

That might sound familiar to those of you who are knowledgeable about Section 230 -- because it's literally cribbed directly from Section 230(c)(2), which says:

That's almost word for word the same as 230. The only changes are that it removes "excessively" from "violent" and adds in "libelous" and "slanderous," -- subjects in which Devin Nunes considers himself something of an expert, though courts don't seem to agree.

Hell, they even leave in the catch-all "otherwise objectionable," even as some of their Republican friends in Congress have tried to remove that phrase in a few of their dozens of "Section 230 reform" bills.

So it's not at all surprising, but potentially a bit ironic that the man who demanded the outright repeal of Section 230 (even to the point of trying to stop funding the US military if Congress didn't repeal the law) has now not only embraced Section 230, but has literally baked a component of it (the part that he and his ignorant fans have never actually understood) directly into his own service's terms.

It's so blatant I almost wonder if it was done just for the trolling. That said, I still look forward to Truth Social using Section 230 to defend itself against inevitable lawsuits.

There are some other fun tidbits in the terms of service that suggest the site will be one of the most aggressive in moderating content. It literally claims that it may take down content that is "false, inaccurate, or misleading" (based on Truth Social's own subjective interpretation, of course). You can't advertise anything on the site without having it "authorized." You need to "have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions." Does Truth Social think you actually need written permission to talk about someone?

There's also a long, long list of "prohibited" activities, including compiling a database of Truth Social data without permission, any advertising (wait, what?), bots, impersonation, "sexual content or language," or "any content that portrays or suggest explicit sexual acts." I'm not sure how Former President "Grab 'em by the p***y" will survive on his own site. Oh right, also "sugar babies" and "sexual fetishes" are banned.

Lots of fun stuff that indicates that like 4chan, then 8chan, then Gab, then Parler, then Gettr that have at times declared themselves to be "free speech zones," every website knows that it needs to moderate to some level, and also that it's Section 230 that helps keep them out of court when they moderate in ways that piss off some of their users.

A major trick dominant broadband providers use to limit competition is exclusive broadband arrangements with landlords. Often an ISP will strike an exclusive deal with the owner of a building, apartment complex, or development that effectively locks in a block by block monopoly. And while the FCC passed rules in 2007 to purportedly stop this from happening, they contained too many loopholes to be of use.

Susan Crawford wrote pretty much the definitive story on this at Wired a while back, noting that the rules are so terrible, ISPs and landlords can tap dance around them by simply calling what they're doing... something else:

Fifteen years later and the FCC is finally doing something about it. After being nudged toward the action via Biden's executive order on competition, the FCC has finally voted to update its rules on this front, tightening rules banning outright building by building monopolies.

There's still some wiggle room for ISPs though, even under the new rules that should be formally adopted later this year. One thing ISPs enjoy doing is striking a financial partnership with a landlord, then signing a deal that bans anybody but the primary ISP from advertising in the building. Under the updated rules ISPs and landlords can still do this, they just have to be transparent about it.

The updated rules do tighten up the rules to clearly prohibit other shady tactics, however. For example the FCC's original 2007 rules prohibited ISPs from blocking any competitors from using in-building wiring (which in many cases was installed by a regional monopoly years ago). So to get around this, cable and phone monopoly lawyers came up with a workaround: the ISP would deed ownership of the in-building wires to the landlord, who would turn around and grant exclusive access to those wires to their favored ISP (read: whichever ISP gave them the most money or had the best lawyers).

According to a statement by FCC boss Jessica Rosenworcel, the rule update specifically prohibits this practice:

Again, it's fairly inexcusable that it took the FCC literally the better part of a generation to outlaw these kinds of practices to help boost building-by building competition. But it's fairly representative of a U.S. regulatory apparatus that's consistently handcuffed, under-funded, and lobbied into apathy by regional monopolies who very much prefer the profitable status quo (cable providers, as you'd expect, fought against these latest rule updates). And while it's great news the FCC still did something about it, enforcement and actual tough penalties (not the FCC's strong suit) will be key. As will acting more swiftly and competently when they find telecom monopoly lawyers have crafted entirely new convoluted legal workarounds.

This week, our first place winner on the insightful side is an anonymous comment about what happens when medical companies implode, leaving people who rely on their products in the lurch:

One partial solution for medical devices is to requires that the software source code and hardware design are held in escrow and released if the manufacturer goes out of business or refused to continue to support the device.

In second place, it's That One Guy with a comment about Josh Hawley's mug:

'I don't support insurrections, just those doing them!'

He says its a "perfect way to enjoy Coffee, Tea, or Liberal Tears!" and is "not a pro-riot mug."

... He says of the picture of him showing support for a bunch of deranged insurrectionists storming the capitol, but I suppose if you want to split hairs there is a difference between 'riot' and 'insurrection' so technically he's correct, just not in a way that leaves him looking better.

For editor's choice on the insightful side, we start out with a comment from TheDumberHalf about sex offender registries:

Outlawing someone's existence

Sex offender registries are not the only harm. Some cities outright prohibit you living in the city at all - a result of cumulative boundaries around sensitive areas. We can all agree, parole should help you integrate and keep you on the straight and narrow. However, people need an actual chance. Then there's instances where peeing in public or even hugging is a sex offense. Scope creep is a bitch.

Next, it's PartTimeZombie sharing a reaction to our post about Alabama cops:

MRAP?

I'm not American, so I had to look up the term "MRAP".
Imagine my amazement when my search returned a bunch of pictures of armoured military vehicles.
Police don't need those, armies do.

Over on the funny side, our first place winner comes from our post about Amy Klobuchar's next unconstitutional speech control bill, "the NUDGE Act". One commenter wondered if these acronym games would lead us to the "WINK, WINK, NUDGE, NUDGE" Act — and Strawb had the perfect rejoinder:

Amy Klobuchar: "Say no more."

In second place, it's another comment about cops and military equipment — this time from an anonymous commenter on our post about Senators who are freaking out about the White House's minor police reforms (and one response in particular):

"Police officers will face a grim reality if this EO is enacted and their lifesaving equipment is restricted from them."

Huh. I didn't know that the 1033 program offered N95 masks, and training in epidemiology.

For editor's choice on the funny side, we've got a pair of puns. First, it's David with a response to YouTube's ContentID demonetizing a video of a cat purring:

Dude, it's obvious.

Clearly it was a copycat.

Finally, it's an anonymous comment about cops seizing cash generated by the legal marijuana business:

They're taking marijuana proceeds, from a transport.

They're High waymen.

That's all for this week, folks!

Five Years Ago

This week in 2017, Oracle filed its opening brief in its renewed attempt to overturn Google's fair use win on Java APIs. The UK rolled out a "piracy alert system" that was mostly but not entirely benign, while politicians there were looking to follow up on the Snooper's Charter with an even worse anti-whistleblowing law. In the US, things weren't looking good for net neutrality between the opinions of FCC commissioners and the shifty activities of telco. Meanwhile, prosecutors and anti-sex-trafficking advocates were speaking out about the government's treatment of Backpage, while a new report on encryption showed that its proliferation was not much of a problem for law enforcement.

Ten Years Ago

This week in 2012, there were mass protests against ACTA all across Europe. The European Parliament President criticized the agreement, and the EU official who resigned over it was detailing its many problems — but the EU Commission was trying to claim the widespread concerns were all based on 'myths', and lobby groups like the IFPI were claiming that the protests were anti-democratic. Meanwhile, US Senators were ramping up the fearmongering to push for a cybersecurity bill that they insisted was nothing like SOPA — but which also didn't seem necessary.

Fifteen Years Ago

This week in 2007, we examined Universal Music's ridiculous 'settlement' with small video sharing site Bolt, while Hollywood was expressing its ongoing displeasure with Google (as were some very confused Belgian newspapers). Broadcasters were making yet another attempt at anti-satellite radio legislation, sample troll Bridgeport Music won an unfortunate victory, and the RIAA was trying to get ISPs to help it hound customers into settling its lawsuits.

Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.

For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.

One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.

Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.

You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.

A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.

This supposed form of evidence was called into question by the Obama Administration:

The most damning criticism of the field came in a 2016 report by the President’s Council of Advisers on Science and Technology, or PCAST, which found that “firearms analysis currently falls short of the criteria for foundational validity,” and that the studies the field’s practitioners often cite to support their work are poorly designed and “seriously underestimate the false positive rate.”

Following this report, some judges began to push back against this questionable evidence. Law enforcement is pushing back, led by none other than a high-ranking lawyer representing the FBI's forensic team.

Late last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for the FBI Crime Lab.

[...]

In the two-page handout, Agar instructs firearms analysts on how to circumvent judges’ restrictions on unscientific testimony. He even suggests dialogue for prosecutors and analysts to recite if challenged. Most controversially, Agar advises analysts to tell judges that any effort to restrict their testimony to claims backed by scientific research is tantamount to asking them to commit perjury.

The letter [PDF] is quite the read. The FBI lawyer refuses to even consider the idea that bullet-matching forensics might be faulty. Instead, he instructs prosecutors and expert witnesses to work together to undermine any attempt the court (or defense lawyers) might make to depict these findings as questionable. It starts by implying courts are wrong to even question the expertise of forensic techs.

So far, no court has excluded the testimony of a firearms identification expert witness. The greater likelihood is that the court will attempt to compromise and craft some kind of language that weakens or neuters the expert’s identification opinion, substituting that terminology for the examiner’s identification opinion. Some courts have put in place so-called “limitations” to that testimony, which fundamentally alter the examiner’s opinion. However, these are not true limitations because they make material and substantive changes to the expert’s testimony. These are wholesale attempts to rewrite the firearm expert’s testimony by a layman with no experience in forensic science. This practice is not supported by either science or the law.

And it wraps up by suggesting forensic experts opt out of testifying completely rather than have their expertise and statements called into question:

If the court insists on limiting the firearms expert testimony to GRC or class characteristics, I probably would not call the examiner at all. Instead, I would put on a lay witness such as the case agent or an armorer for the police department to testify about the similar class characteristics of the weapon and the bullets and/or cartridge cases.

Does this sound like science to you? Anything backed by actual science would be able to survive evidentiary challenges. Since this isn't, it's not strong enough to even survive cursory examination. Any case relying solely on this junk science should be doomed. But by forcing the court to play by the FBI's terms (or, conversely, preventing the forensic expert from being questioned), the agency can still roll the dice on bypassing scrutiny of its means and methods.

The problem for the FBI now is that this letter is out there in the public domain. Judges paying attention to these issues will know exactly why the prosecution is asking leading questions of its forensic expert or why there's no forensic expert being asked to testify. This letter alone should cause most firearms analysis to be tossed immediately. It probably won't, but it should, unless the law enforcement agency can definitively show it uses methods not used by the FBI or has completely disregarded the suggestions of the FBI's counsel.

Real evidence should be able to survive scrutiny. It should be able to stand on its own without the prosecution playing "hide the witness." This letter is a tacit admission that firearms analysis is more guesswork than science. As such, it should be considered damning evidence of its own -- something that will force law enforcement experts to thoroughly and scientifically justify their assertions. And it should definitely encourage the DOJ to consider halting the use of firearms forensics until it can find a scientifically sound way of doing so. But, if history is any indicator, the DOJ would rather score cheap wins that use forensic evidence backed by sound science.

Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.

Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

- As of May 23, 2022, it will no longer be possible to use a credit card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems.

- As of August 29, 2022, it will no longer be possible to use a Nintendo eShop Card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems. However, it will still be possible to redeem download codes until late March 2023.

To be fair and clear, owners of a Wii U and 3DS will still be able to redownload purchased games and engage in online play after those dates. For how long? Well, according to Nintendo, for "the foreseeable future." Which... yeah. Part of the problem here, as Kotaku notes, is that the 3DS and Wii U were also places where gamers could actually purchase and own classic Nintendo titles. There really isn't an equivalent to that once those stores are shut down as the newer consoles rely on subscriptions for gamers to play those classic games. No game purchases, just access via the subscription. So with this ownership option going away, will Nintendo replace it somewhere else? Nope!

Across our Nintendo Switch Online membership plans, over 130 classic games are currently available in growing libraries for various legacy systems. The games are often enhanced with new features such as online play.

We think this is an effective way to make classic content easily available to a broad range of players. Within these libraries, new and longtime players can not only find games they remember or have heard about, but other fun games they might not have thought to seek out otherwise.

We currently have no plans to offer classic content in other ways.

And so, there you have it. This reads much like a Disney message. You can have the content you want only in the way we want you to have it, under the subscription model we prefer, and only at times we make it available to you. Oh, and we can change all that up at any time because, once again, you're not actually buying anything, you're just subscribing to a service.

Oh, and one more thing you may be thinking if you've been following along with my posts about video game preservation needing some attention. You may be remembering that Nintendo had a section on its site that specifically talked about game preservation. Well, don't go looking now, because it's gone.

Especially wild, then, is the fact that not long after publishing this, Nintendo wiped that particular section of the Q&A from its site. Go and check it now and the “Doesn’t Nintendo have an obligation to preserve its classic games by continually making them available for purchase?” part is gone.

All the while, of course, the company will continue to punish fans by going after ROM sites, fan-made creations and recreations, YouTube channels featuring classic Nintendo music, and all the rest. If Nintendo isn't the Disney of the gaming industry, it's as close as we're likely to get.

Welp. This isn't going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Drivers of certain vehicles in Seattle and other parts of Western Washington are shouting at their car radios this week. Not because of any particular song or news item that’s being broadcast, but because an apparent technical glitch has caused the radios to be stuck on public radio station KUOW.

The impacted drivers appear to all be owners of Mazda vehicles from between 2014 and 2017. In some cases the in-car infotainment systems have stopped working altogether, derailing the ability to listen to the radio at all or use Bluetooth phone connections, GPS, the rear camera and more.

Behold the collision of OTA and IO(car)T. This unique situation -- limited solely to drivers in the Upper West -- presented a host of new problems and a lot of speculative answers. The radio station had absolutely no idea why this was happening. One local dealership told a customer it had something to do with 5G, which apparently meant affected Mazdas were now infected with a car-borne form of COVID, presumably necessitating plenty of expensive diagnostics and what have you.

Fortunately, the cars' manufacturer was actually able to pinpoint the cause of the malfunction -- which left some drivers staring at in-car systems stuck in a perpetual "loading…" loop. The answer arrived roughly a week after the problem presented itself. The problem -- discussed in this entertaining Reddit thread -- had nothing to do with network upgrades or an unexplained bug in Mazda software.

Instead, the public radio station had done something completely unexpected, sending affected vehicles into in-car entertainment purgatory. This is the statement Mazda gave to Geekwire.

“Between 1/24-1/31, a radio station in the Seattle area sent image files with no extension, which caused an issue on some 2014-2017 Mazda vehicles with older software,” the Mazda statement said. “Mazda North American Operations (MNAO) has distributed service alerts advising dealers of the issue.”

While it's somewhat troubling to note that Mazdas manufactured within the last eight years are running what Mazda considers to be outdated software, the good news is that it can be fixed. The bad news follows the good news: due to shipping constraints affecting goddamn everything, drivers affected by this oddity shouldn't expect to see a fix anytime soon. "Part delays" cited by Mazda could put permanent fixes months off.

On the other hand (good news!), even older models will be covered by these repairs, whether or not they're still under warranty. The company has instructed dealers to honor "goodwill requests" for free repairs of affected vehicles. Back to the bad news: the part that apparently needs to be replaced is the ominous-sounding "connectivity master unit," which indicates a whole lot of connectivity will be affected until dealers get the part in stock and start dealing with the backlog of semi-bricked Mazdas. Some users have reported in-car entertainment systems stuck in permanent loops, non-functioning GPS systems, and bricked back-up cameras.

This isn't going to go well for Mazda, considering it's the only manufacturer whose systems have been rendered useless by a misconfigured file distributed by a radio station. While this situation is certainly an outlier, there's likely a reason other in-car entertainment systems weren't similarly affected, which suggests a crucial shortcoming in the tech installed in those models -- one that could be exploited by entities far more nefarious than local public broadcasters.

Over the last few years, it's been depressing to see politicians from both major political parties attacking free speech. As we noted last month, Washington state governor Jay Inslee last month started pushing a bill that would criminalize political speech. He kept insisting that it was okay under the 1st Amendment because he got a heavily biased constitutional lawyer, Larry Tribe, to basically shrug and say "maybe it could be constitutional?" But the bill was clearly problematic -- and would lead to nonstop nonsense lawsuits against political candidates.

Thankfully, cooler heads have prevailed in the Washington Senate and the bill has died. The bill's main sponsor is still insisting that it would survive 1st Amendment scrutiny, but also recognized that it just didn't have enough political support:

Inslee, for his part, still insists something must be done:

And, look, I don't disagree that the Big Lie about the 2020 election is a problem. But you don't solve problems by censoring 1st Amendment protected speech. That never ends well. At all.

Spotify’s decision to hitch its star to podcaster and font-of-COVID-misinformation Joe Rogan has sparked a wave of pushback from musicians, some of whom--among them Neil Young, India Arie, and Joni Mitchell--have pulled their music from Spotify in protest. Spotify, for its part, has stood firmly by Rogan. 

That Spotify would stand by a show that consistently undermines vaccines and blithely spreads misinformation is disappointing--but, financially, it’s perfectly predictable. 

The short version: 

The law and economics of music streaming lead to one inevitable result: Spotify pays money when it streams music. It makes money when it streams podcasts. Therefore, Spotify has an incentive to keep people using Spotify -- just not for music. 

The legal regime around music licensing makes breaking even -- let alone turning a profit -- nearly impossible. Because the industry is notoriously secretive about its financials (a problem in and of itself), raw data is hard to come by. But the fact remains that investors (and industry observers) agree that music streaming as a loss-leader -- something that incurs a net loss for the service doing it, in the hopes of potentially looping consumers into the parent company’s product ecosystem. Apple Music and Amazon Music, the second and third largest streaming services by market share, both operate at a loss. Spotify, which has been in the US market since 2011, turned its first profit in 2021. It is still unclear whether it will manage to repeat the achievement. 

In short, experience indicates that a streaming service that plays only music will consistently lose money. And while this is a complex issue with many moving parts, one of the biggest is the law -- the market it creates, and the behavior it incentivizes. 

But First, How Does Music Copyright Work?

Each track involves not one, but two copyrighted works; the recorded performance (the “sound recording”), and the underlying composition (the “musical work”). Legally, these are two distinct things. This is partly a historical artifact; songwriting hit its stride in the very early 20th century, before mass distribution of recorded music was even a glimmer in anyone’s eye. Compositions got copyright protection in 1906 (and were thus given the now-confusingly-vague designation of “musical work”). Over the first half of the century, publishers and performing rights organizations sprang up to promote, distribute, and license songwriters’ work. It wasn’t until mid-century that the recording industry began to flourish on its own, and sound recordings didn’t even gain copyright protection until the late 1970s.

Because of this history, the two industries – songwriting and recording – operate under wildly different licensing structures. Copyright is, at its core, a government-granted right to exclude; when one player starts to accumulate a high volume of those rights, the risk of abusive market behavior rises. The composition side of the equation messed around and found out early. By the 1940s, the government had intervened and set up a complex system of antitrust enforcement, rate-setting, and mandatory licensing regimes. The result was a market that, for all its faults, remains relatively stable and predictable for licensees (and, as a side benefit, provides some transparency on how songwriters are paid).

The recording industry, by contrast, gained its copyright (and thus its monopoly power) in the mid 1970s. By then, antitrust law was in the middle of a Chicago school backlash that considerably narrowed its scope and purpose and regulators had lost the taste for the kind of vigorous enforcement that marked the early part of the 20th century. While regulators in the 1940s were willing to go after the songwriting industry’s bad behavior (cartels, extractive pricing, strong arm tactics, etc) their counterparts in the late 1970s were less enthusiastic. And so, unlike their composition-side brothers, labels exist in an unconstrained free market. 

Why It’s So Hard For Streaming Services to Make Money

As mentioned above, we have very little hard and fast data about how much labels are charging and what kinds of side deals they are striking to extract value from these services. But given what we do know about the industry -- and what the U.S. government has outright assumed is going on when doing things like setting royalty rates -- we have a pretty good idea.

Because labels have no meaningful guardrails on their licensing practices, they are free to maximize their own profit however they see fit. When it comes to streaming, their ideal situation is to extract as much value as possible without forcing the service completely under. This means that licenses are priced with the assumption that the streaming service will have to take on some (ideally sustainable) amount of debt to cover their licensing obligations. The alternatives to this aren’t a whole lot better, either; things like equity stakes, sweetheart deals, and algorithmic preferencing or promotion are commonplace. 

The result of all this is that it is structurally impossible for a streaming service to turn a profit using standard music deals alone. Labels are rational economic actors. Profit is value that is not being captured by labels; labels will rationally set prices to ensure that none of that value goes un-captured. Labels have the power to shut a service down simply by walking away from the table. 

Why Spotify Can’t Quit Joe Rogan 

It means that, despite being a music streaming company, music is (and will always be) a revenue loss for Spotify. To have any hope of turning a profit, it needs a low-cost, high-revenue offering. Enter podcasts – specifically Rogan’s podcast, which commands a minimum ad buy of $1M, along with a commitment to buy other ads on Spotify-hosted podcasts. 

So, when forced to choose between retaining portions of its legacy music catalog and keeping one of the only offerings that actually makes the service money, Spotify made the obvious (if morally objectionable) choice. It chose Joe Rogan.

And barring a major overhaul of music licensing law, starting with sound recordings, this will keep happening. We’ll either end up in a world where all mainstream streaming services will be backed by deep-pocketed tech giants (such as Apple, Amazon, and Google), or where music services are stuck relying on non-music content to stay afloat--even when that content is harmful.

Meredith Rose is Senior Policy Counsel at Public Knowledge

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Protests against police violence erupted around the country following the killing of an unarmed black man, George Floyd, by Minneapolis (MN) police officer Derek Chauvin. Chauvin ended Floyd's life by placing his knee on his neck for nearly nine minutes… and for more than three minutes after another officer informed Chauvin he could no longer detect Floyd's pulse.

The protests continued for months. Some were in solidarity. Others were provoked by recent acts of police violence. Protests in Phoenix, Arizona were nothing out of the ordinary. But the law enforcement response certainly was. It wasn't that the cops did anything that was unusual, per se. They did the normal stuff: they responded violently to protests against police violence, attacking protesters, stripping them of their belongings, and justifying these actions with overblown claims about fearing for their safety.

But it was prosecutors in Maricopa County, Arizona who took things to the next level. Apparently working in conjunction with a number of law enforcement entities, lead prosecutor April Sponsel, an attorney with the Maricopa County Attorney's Office, lied to a grand jury and abused local laws to add gang enhancements to the criminal charges brought against 15 arrested protesters. Sponsel, working with the Phoenix PD, claimed the use of black umbrellas (which protesters used to deflect tear gas canisters and "non-lethal" ammunition) and the acronym "ACAB" ["All Cops Are Bastards"] made the arrested protesters gang members.

This was serious shit. People arrested for rioting, failure to disperse, resisting arrest, or disorderly conduct were being saddled with (completely bullshit) gang charges that had the potential to add another 10 years to their sentences if convicted.

Prosecutor April Sponsel appeared to have been integral to the addition of gang crime sentence enhancements. The wife of a state trooper, Sponsel was the one who presented allegedly false information to a grand jury for the purpose of portraying the arrested protesters as a violent gang, rather than people coincidentally united by their desire to protest police violence. Shortly after the news broke about these bullshit prosecutions, Sponsel was placed on administrative leave while an outside investigation -- requested by Maricopa County prosecutor Allister Adel -- commenced.

Sponsel has been in the public eye for months. And she doesn't appear to like it. She may have enjoyed the backchannel support of local law enforcement as she found ways to stick it to people who were upset with the law enforcement status quo, but she apparently feels litigious about being called out over her gang enhancement bullshit.

April Sponsel, the lead prosecutor who handled the now-dismissed criminal case, filed a lawsuit against Maricopa County Attorney Allister Adel and the county itself in superior court on Friday seeking $10 million.

The Arizona Republic obtained a copy of the lawsuit on Tuesday, which asserts Adel defamed Sponsel in the media, invaded her privacy and caused the county to breach Sponsel’s employment contract.

Inexplicably, the Arizona Republic has decided not to share the obtained copy with readers. Instead, the copy of the lawsuit, embedded below, comes courtesy of Paul Weich, who is running for a position in the Arizona House. He also runs a blog covering area political activity.

Back to the matter at hand: Sponsel is claiming [PDF] the County Attorney defamed her by turning her into a scapegoat for prosecutions that resulted in significant political and public blowback. She claims Adel was fully aware of what was happening and never made any move to alter the course of the prosecution. She also claims she had full support of law enforcement when making the decision to treat the ACAB protesters as a gang. This is unsurprising. But it won't do much to help her win her lawsuit. All it really does is make involved law enforcement members look as petty and ignorant as Sponsel.

For instance:

The claim says she called Phoenix police Sgt. Doug McBride, a gang expert, who agreed the protesters should be classified as a gang on Oct. 20, 2020.

Of course a cop would want this to happen. It was, after all, a protest against law enforcement. If given the opportunity to make anti-police violence protesters suffer, law enforcement officers will opt to do so nearly every time. And it wasn't just this so-called "gang expert." It was every law enforcement agency involved in the arrests.

The lawsuit describes a meeting on Oct. 21, 2020 where “there were more than 30 law enforcement officers in the room, including a number of FBI and Phoenix Police Sergeants, Lieutenants, Commanders and Assistant Chiefs. No one in the meeting was opposed to the criminal street gang charges, and all agreed the charges were appropriate.”

Welcome to the herd and its mentality, April. Surely you were already aware of it. And you must also realize it isn't an adequate defense of your actions, nor does it further the defamation claims being brought against someone who apparently wasn't in the room during this discussion: County Attorney Allister Adel.

Making this battle even more uphill is the fact that an independent judicial review [PDF] of the arrests and prosecutions delivered by an Arizona judge last August contains plenty of evidence Sponsel pushed for gang charges and crafted her prosecution to bring the full pain of these sentence enhancements.

There's a lot in there that points to Sponsel being the person pushing for gang enhancements, over the protests of others. And there's evidence that she moved ahead with a grand jury presentation before a scheduled meeting with the County Attorney's office during which the disposition of these cases was supposed to be discussed.

On Friday October 23, 2020, according to his statement, [Maricopa County Attorney's Office Division Chief] Vince Goddard got a call from April Sponsel informing him there was going to be a press conference at the Phoenix Police Department and they wanted MCAO Allister Adel to attend. The chief of police was also asked and/or was scheduled to attend. He was told this was going to be the “big gang” case that she had talked about in September. Since he only heard about approximately 4 people, he was not sure what she was talking about. He again told her he did not like the “big case theory” where you have limited targets and you charge a large group people. He did not attend the press conference nor did he know if the County Attorney did. No information was provided if a press conference was held.

[...]

During the call with Vince Goddard, the subject of “warrants” was discussed, however, [Chief Deputy County Attorney] Ken Vick assumed he meant search warrants for houses and/or phone records. He was not aware nor was he told a Grand Jury presentation was scheduled for October 27th which would have been before the meeting on October 30th. He provided me the email exchange between Vince Goddard and himself which showed Ken Vick’s surprise and dismay that they had gone to the Grand Jury prior to the meeting.

This is going to make it very difficult to prove Adel was aware of the charges Sponsel was seeking and at least tacitly approved of them by not making any effort to stop her. So is this, from the report released last August:

Based upon the information given to the undersigned, the County Attorney Allister Adel was not briefed on the Grand Jury presentation in this case in the ten (10) days prior to the Grand Jury presentation. CA Adel never got a head's up that the case was going to a Grand Jury nor the charges April Sponsel would be seeking in a draft indictment. The County Attorney did not know a Grand Jury presentation was taking place on October 27th for arrests made on October 17th. The County Attorney was made aware on October 30th about the October 27th Grand Jury Indictment after the media made an inquiry with the office's communication director on Thursday, October 29th. The County Attorney did not attend the ‘incident review” on October 30th since she had been hospitalized on October 28th and she was not discharged until October 31st. This is collaborated by Ken Vick who was not told about the Grand Jury, nor the charges being sought and he did not know what was presented until the day before the October 30th “incident review”.

This lawsuit looks like the flailing of a suddenly toxic prosecutorial asset who thinks she was treated unfairly when the rest of Maricopa County Attorney's Office distanced itself from her and her overzealous prosecutions. The judicial investigation shows Sponsel went a bit rogue, bypassing most of the Attorney's Office to pursue her own vendetta. Unsurprisingly, when it blew up in her face, Allister Adel distanced herself from Sponsel and her actions.

So, this debacle will continue to make headlines for a few more years. No matter how this lawsuit goes, it's not going to rehabilitate Sponsel's image. Win or lose, it's already on the record she was the one that came up with the idea of saddling arrested protesters with gang charges. And she was the one who decided the interests of justice should take a backseat to her vindictive prosecutions.

Every year or so, the FCC unveils a new plan to combat robocalls it claims will finally tackle the annoying menace. Granted, year after year, the problem either gets worse or stays relatively the same. We've already noted that this is generally due to few things: one, a steady erosion by the courts (and lobbyists) of what the FCC can or can't actually do when it comes to various annoyances like automated spam texts or live robocalls.

The other issue is that regulators and policymakers tend to frame the problem as one exclusive to scammers -- when a wide variety of telecoms, marketing, and debt collection companies use all the same dodgy tactics to annoy consumers they often know can't pay anyway. If you hadn't noticed, trying to craft rules that leave huge carve outs for "legitimate" companies while still hamstringing outright scammers generally doesn't work very well. You've also got to craft rules and systems that allow robocalls people want (medical and dental appointment reminders, for example).

Even when only talking about scam robocalls, there's still room for meaningful improvement. The steady adoption of SHAKEN/STIR authentication technology has helped crack down on phone number spoofing. Targeting "gateway providers," who act as a proxy here in the U.S. for robocalls originating overseas, could also help.

Meanwhile the FTC says it's also going to start filing lawsuits against voice over IP (VOIP) companies that fail to cooperate with investigations into illegal robocalls:

The agency receives upwards of two million consumer complaints about robocalls every nine months. The YouMail Robocall Index indicates that there are still 3.9 billion robocalls placed to U.S. consumers alone every single day, or 5.3 million robocalls per hour. And again, contrary to the narrative generally seeded by regulators, most U.S. robocallers aren't "scammers": they're cable companies, banks, and debt collectors.

And while a lot of the calls are companies calling about overdue bills, many of these calls cross a line into outright harassment. Many of these companies know the customers they're reaching out to can't pay; yet the National Consumer Law Center (NCLC) has repeatedly testified before Congress that these robocallers can sometimes call folks upwards of hundreds of times a day, even after being asked to stop. And they often use many of the same tactics used by outright scammers.

As with everything at the FTC, it's a matter of resources. The agency is tasked with tackling everything from bleach labeling to home heating system repair scams, generally with limited staff and funds. And while the FCC and FTC dole out a ton of fines against robocallers, the vast majority of them are simply never paid or collected. Either because the target company is a scammer that's hard to find, or they're a deep-pocketed corporation that can litigate any penalties for ignoring robocall rules into oblivion.

Again though, you'll notice focus remains on "illegal" robocalls, which is a problem when the courts and lobbyists keep weakening the definition of what constitutes a "legal" robocall and what regulators can do about it. The broader the definition and the more loopholes allowed to make sure large, "legitimate" companies can continue to annoy and harrass people, the easier they are for outright scam robocallers to exploit.

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.

Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.

That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

Did D.C. cops conspire to keep damning information from people and groups critical of them? That's what criminal defense lawyer Amy Phillips alleges in a new federal lawsuit, filed in the U.S. District Court for the District of Columbia.

The suit stems from a whistleblower's account of life inside the D.C. police department's Freedom of Information Act (FOIA) office. The whistleblower said she was instructed to flag for higher-ups any records requests coming from certain individuals and groups, as well as requests regarding certain sensitive topics. They would then strategize about ways to discourage, delay, or deny these requests.

Those targeted by this informal policy included reporters, activists, and members of local advisory groups. This is from former DC Metro PD FOIA officer Vendette T. Parker's sworn affidavit, which is attached to the defense lawyer's lawsuit [PDF]:

Some examples are Eric Flack, WUSA9 reporter; Marina Marraco, Fox5 reporter; the ACLU; Denise Krepp ANC [Advisory Neighborhood Commission] Commissioner; Lorenzo Greene, ANC Commissioner; Benjamin Douglass, Anti-Defamation League (ADL); Emily Barth, Public Defender's Office; and Amy Phillips, Public Defender's Office; among others.

This list was compiled by Parker and Metro PD Chief Operating Officer, LeeAnn Turner. As head of the FOIA office, Parker was expected to stonewall requests from requesters on the list as well as shield the department and its Chief of Police from embarrassment.

Although Ms. Turner did not name any specific individual in this meeting, she made it clear that I should bring to her attention any request coming from a person he has previously published a negative media article about Chief Newsham or MPD, if he uses the records for litigation if he is outspoken in City Council or community meetings in a negative way toward Chief Newsham or MPD, if the requester is the subject of a high profile incident, or if he repeatedly requests records that have the potential to be detrimental to Chief Newsham or MPD, regardless is of whether or not what is currently being requested is potentially detrimental.

The list of documents that might trigger this informal policy (no matter who requested them) were requests targeting the PD's controversial Gun Recovery Unit, personnel records, emails involving the police chief, use of force records, stop and frisk records, and anything involving "recent negative high profile events."

The list of requests and requesters was forwarded to Turner and the police chief and a weekly meeting was held to discuss how best to thwart requests that satisfied the unwritten criteria established by the PD's Chief Operating Officer.

Amy Philips first suspected something might be up after attending an Adverse Action Hearing for Officer Sean Lojocano, who was accused of conducting "unnecessarily invasive genital searches" of people he stopped. Despite this meeting being attended by other members of the public (including an ACLU rep and a local journalist), the Metro PD rejected Philips' request for recordings and transcripts of the hearing. And it did so in record time.

Less than ninety minutes after Phillips submitted her Lojocano request through the District’s online FOIA portal, she received a response denying her request in full. The response came from Latrina Crumlin, who identified herself as a “Staff Assistant, FOIA” for MPD. The response read “A release of such records would constitute as a [sic] clearly unwarranted invasion of personal privacy and is exempt from disclosure pursuant to D.C. Official Code § 2-534(a)(2) and (a)(3)(C).”  

This was wrong, and it was strange. Usually, MPD takes weeks or months to provide any substantive response to FOIA requests. And Crumlin’s position appeared to be that the records of a public hearing—one that Phillips and many others attended—were categorically excludable as invasions of someone’s privacy, which does not make any sense.

As Philips' lawsuit points out, a policy like this -- whether official or unofficial -- violates her First Amendment right to access this information. She's seeking an injunction forbidding the PD from engaging in future viewpoint and content based discrimination when handling FOIA requests.

While it's almost certain other public agencies are engaging in similar practices to thwart pesky requesters or delay public embarrassment for as long as possible, this is the first time a FOIA litigant has secured a sworn affidavit from someone who participated in FOIA keep away at the behest of their supervisors. That's going to go a long way in litigation like this and with any luck, the Metro PD won't be able to jerk people around in the future just because it doesn't like them or their requests.

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.

Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.

The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.

It's shameful behavior for a US senator, even if not surprising.

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.

Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.

Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

The driver of an armored car carrying $712,000 in cash from licensed marijuana dispensaries was heading into Barstow on a Mojave Desert freeway in November when San Bernardino County sheriff’s deputies pulled him over. They interrogated him, seized the money and turned it over to the FBI.

A few weeks later, deputies stopped the same driver in Rancho Cucamonga, took an additional $350,000 belonging to legal pot stores and gave that cash to the FBI too.

The transport company says it complies with all federal laws pertaining to handling of cash generated by legal pot businesses -- something that is supposed to allow the cash to travel unmolested to banks willing to handle this cash. The banks also have to perform their own due diligence, which encompasses those entrusted with moving the cash from businesses to banks and vice versa.

Despite everything being on the apparent up-and-up, this particular sheriff thinks his department is doing the right thing by targeting vehicles officers can safely assume are full of cash and walking away with that cash while mumbling things about drug trafficking and money laundering. The department also sends out drug dogs to guarantee deputies have "permission" to perform warrantless searches, since it's highly likely proceeds from marijuana businesses will smell like marijuana.

(On top of that, a large percentage of cash in circulation contains trace amounts of drugs, which would logically be detected by drug dogs. This should be seen as evidence of nothing more than a bill being in circulation, but cops pretend it means the cash could only have come from drug sales. It's all extremely -- and conveniently -- stupid.)

San Bernardino Sheriff Shannon Dicus (one of the defendants in Empyreal's lawsuit) and his department are some of the main beneficiaries of cash seized during operations like these -- ones that involve federal agents to sidestep local marijuana legalization laws and ensure the retention of a majority of every dollar seized. That's because his department heads the Inland Regional Narcotics Enforcement Team (IRNET). IRNET's relationship to federally adopted forfeitures is extremely profitable.

Through the U.S. Department of Justice’s equitable sharing program, the Sheriff’s Department’s participation in IRNET enables it to receive up to 80% of the proceeds recovered from civil forfeitures, he said.

IRNET has obtained nearly $18 million in equitable sharing funds since 2016, according to the Department of Justice.

If these seizures were made without federal adoption, they'd be illegal. But with the FBI's help, the Sheriff's Department can continue to make millions a year by taking legally earned cash from cash transport trucks.

All this adds up to a suin', one being handled by the Institute of Justice, which has been instrumental in securing dozens of returns of property illegally seized by law enforcement. The lawsuit [PDF] notes that the San Bernardino sheriff isn't alone in his targeting of Empyreal cash trucks. The same Dickinson County (KS) deputy, Kalen Robinson, stopped Empyreal drivers twice and seized over $165,000 during the second stop, turning it over to the DEA.

San Bernardino Sheriff Dicus hasn't offered much in support of these stops and seizures -- none of which were accompanied by citations or criminal charges. What he has offered is something that exists solely within the boundaries of pure speculation.

In response to the lawsuit over the armored cars, Dicus released a statement claiming that more than 80% of the marijuana sold in licensed dispensaries is grown illegally, but he provided no evidence that any of the eight businesses whose cash deputies seized from Empyreal’s vans were selling black-market cannabis.

“My deputies are professional, and I am confident we will prevail,” Dicus said.

No one's doing any due diligence here, least of all Sheriff Dicus. His department isn't researching dispensaries and targeting them with searches and criminal charges. Instead, his department has decided to do the easiest and most profitable thing: allow dispensaries to sell allegedly illegally grown marijuana and then take their cash once it's conveniently located in the back of a transport van. This shows the department is far less interested in disrupting illegal drug sales and far more interested in profiting from illegal behavior it seemingly has no desire to stop.