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If you're not familiar with the Free Law Project, you should be. It's a nonprofit that does everything it can to make access to court documents free. It all starts with the RECAP extension, which automatically saves copies of documents downloaded from PACER to CourtListener.com, giving people without PACER accounts and/or the funds (or patience!) to utilize the federal government's broken-down, overpriced system, access to federal court documents.

Unfortunately, the Free Law Project still has to play by PACER's exceedingly stupid rules, even when it's doing nothing more than automatically archiving documents accessed by PACER users with the RECAP extension enabled. The US Courts system continues to believe it needs to generate a profit, even when it does nothing more with millions in PACER fees than purchase new perks for the people who work for the court system or have the ability to actually visit federal courthouses.

That's not what PACER fees are supposed to be used for. They're supposed to be used to modernize the PACER system and eliminate barriers to online access -- the chief among those being fees. Instead, fees have increased while the front end of PACER -- along with its completely broken search function -- have mostly remained unchanged.

The US Courts PACER program has always been extremely mercenary, even when it's engaging in acts of temporary benevolence. Users can sometimes obtain fee waivers to lower the cost of accessing multiple documents. In this case, a researcher obtained a waiver and accessed thousands of court records. Great news for the beneficiaries of the Free Law Project's CourtListener site… or so you would think.

But that's not how this works, as the Free Law Project recently tweeted. [Threadreader version.] It had to delete thousands of court records this researcher legally obtained with a fee waiver because the federal court system says users with waivers can't do what they want with the data and documents they've obtained.

We scraped these records for a researcher using a fee waiver they got. According to the fee schedule, any content that you get while using such a waiver cannot be shared. This is the extremely absurd official policy:

If you can't read/see the embedded picture, it contains a portion of the restrictions on users who secure fee exemptions:

- the user receiving the exemption must agree to not sell the data obtained as a result and must not transfer any data obtained as the result of a fee exemption, unless expressly authorized by the court…

This means the Free Law Project downloads the content as instructed by the RECAP extension. Then it has to delete the content to comply with the user's fee exemption. Why does it have to do this? Because the federal court system says so. And why does the court system say users with fee exemptions can't share the documents with others? Well, I'm sure court reps would say several things in response to this question, but none would be as true as the answer once given to the Free Law Project:

Once, in a fit of honesty, a high-level member of the AO [Administrative Office] explained that the reason for this was because otherwise it would undermine the fee schedule.🤯

In other words, if researchers could share their raw data, the AO wouldn't make as much money off court data

PACER is here to provide access to court documents. But not without making some money first. Hence the numerous restrictions on seldom-granted fee waivers. As the Free Law Project points out, this is not how PACER is supposed to work.

Obviously, this contravenes the goal of PACER. It also makes reproducing research largely impossible.  

The documents were obtained legally. But the court system says it's against the rules for another party to continue to retain them. And now documents that could have increased the public's understanding of the court system have been vaporized because the government doesn't want the PACER money train even slightly derailed. And stupidity like this is only going to continue until PACER is deprived of its revenue stream with legislation making PACER access free.

The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.

The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.

In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.

But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).

It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.

As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.

And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

A mother or mum has had one or more children, either because she gave birth to them or has brought up children, performing the role of their mother or mum. I consider that to characterise the word ‘mum’ as a subset of the word ‘woman’ and, on this basis, to conclude that they are highly similar is syllogistic reasoning. A woman is a human adult who was born female or who identifies as female. The word ‘woman’ does not tell one anything about relationships with others. In contrast and by definition, the word ‘mum’ means that that person has a particular relationship with another, or others. Its conceptual impact is one of a particular relationship with children, whereas the conceptual impact of ‘woman’ is that it informs others as to the gender identity of an adult human. Whilst both nouns denote a female, many women have had no children, but all mums have had or brought up children.

It went on from there, with the IPO ultimately deciding that there was no likelihood of confusion. The opposition therefore failed. Again, this is pretty common sense stuff. Nothing in Unilever's use referenced Wonder Woman in any way at all. The idea here was to create a brand that celebrated hard-working moms. While Wonder Woman did apparently have a comic-child with Superman... you know what, I'm not going to even finish that stupid sentence because this is all very dumb.

And, yet, DC Comics wants to take that dumb now to the High Court.

DC is now appealing the decision at the High Court in London, claiming the IPO's ruling was 'perverse and unreasonable'.

Lawyers for the comic also argue that the cosmetics line would have damaging consequences and would allow 'anyone to release a Wonder Woman movie or comic', claiming 'Mum' is a subset of the word 'Woman'.

That, of course, is not how copyright or trademark laws work. The IPO granting a trademark on "Wonder Mum" doesn't suddenly make it legal for anyone to go make a Wonder Woman movie just by changing the name to Wonder Mum. That's beyond silly. Silly enough that Unilever's lawyers found the time to take a few shots of their own at DC Comics.

Denise McFarland, for Unilever, said there is no risk of the public muddling the two characters, particularly due to Wonder Woman's 'distinctive and unvarying features' - including her minimalistic' costume complete with high boots, a corset, and lasso and shield.

Ms McFarland added that, if DC's arguments about 'conceptual similarity' were correct, then using phases such as 'Wonder Aunt' and 'Wonder Niece' would also have to be banned.

Frankly, I wouldn't put it past DC Comics to try to do just that. But in the meantime, hopefully the High Court will slap DC Comics down yet again on this one.

Some senators are getting all angried up about proposed police reforms President Biden possibly might deliver as an executive order. Reporting earlier this month indicated Biden had something planned, but no one involved in breaking the news appeared to have any details.

President Joe Biden plans to sign executive actions on police reform as early as this month, three people familiar with the plans said, as his administration seeks to unilaterally jump-start an issue that is a top priority for a key constituency.

The executive actions would follow Biden’s uphill battle to advance voting rights legislation, and they could coincide with a similar effort by some Democratic lawmakers to revive the George Floyd Justice in Policing Act, which stalled on Capitol Hill after attempts to craft a bipartisan measure failed.

NBC spoke to two people "familiar with the discussions" and got nothing useful at all out of them.

The executive actions on policing are still being finalized, the sources said. They did not know how the actions would differ from steps the Justice Department took last year when it imposed new restrictions on chokeholds and “no-knock” warrants.

Really powerful reporting. Apparently a few senators have seen a draft of the proposed executive order and they've decided to peremptorily respond to something that may never happen or may be altered extensively before its issued. This is from Senator Chuck Grassley's site, which implies something horrible is coming and that he and other "Senate Republicans" aren't having any of it.

A group of Senate Republicans, led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), today are expressing serious concern about a proposed executive order (EO) by the Biden Administration that would limit law enforcement access to nonlethal and lifesaving resources, and impose greater restrictions on federal grant dollars. The planned executive order comes amid a national surge in violent crime while the “defund the police” movement has eroded morale and curbed recruiting in police departments across the country.

Fortunately, the letter [PDF] these senators sent to the White House actually has a few details in it. Once again, we have no idea if, when, or in what state the executive order will arrive, but this is apparently what has been seen in the draft version.

Specifically, according to screenshots of a draft of such EO, the Administration would unilaterally impose the following new policies on law enforcement: restrictions to the 1033 program, expanding pattern and practice authority, planned expansion of 18 U.S.C § 242 prosecutions, and conditioning state and local law enforcement grants.

Leaked screenshots of the alleged EO can (barely) be seen here. But what's contained in these accusations (I guess??) doesn't indicate a wholesale disruption of law enforcement enterprise. In fact, most of this has already been done before, issued by presidents and rescinded by their successors or vice versa.

1033 restrictions have been tried before. They've never lasted. And those put in place are usually far from effective in preventing local law enforcement agencies from acquiring military gear. President Obama tried it about a human lifetime ago and that effort didn't even survive his term as Commander in Chief.

"Expanding pattern and practice authority" most likely means removing the handcuffs placed on federal investigations of local law enforcement agencies by President Trump. It's not an expansion. It's just a return to form for the DOJ, which has engaged in "pattern and practice" investigations for decades.

The same can be said for "expansion" of 18 USC 242 prosecutions. These "deprivation of rights under color of law" prosecutions have long been part of the DOJ's daily business. It's only in recent years -- under a very pro-law enforcement president -- that they've been dialed back. If anything, this will just be a regression to the mean, rather than the creation of some souped-up prosecutorial machine that goes after bad cops.

This all dovetails into some cherry-picked stats stripped of context and served up as a justification for allowing cops to do whatever they want and acquire whatever they want.

Such potential restrictions on the 1033 program would come at a time when law enforcement needs our support more than ever. We have spoken about the unprecedented 30-percent spike in murders that began in the summer of 2020. It continues to this day. In 2021, police officers recorded the highest number of on-duty deaths on record. According to the Fraternal Order of Police, 63 officers were murdered and 346 officers were shot. They also reported ambush-style attacks on law enforcement officers spiked 115 percent in 2021. Police officers will face a grim reality if this EO is enacted and their lifesaving equipment is restricted from them. Violent crime will continue to skyrocket when police officers are unable to stop these crimes and save innocent lives. We cannot understand why any elected official would want to stop law enforcement from safely doing their jobs other than to be able to tell their base of voters they are defunding the police.

There is no effort to defund local law enforcement agencies contained in this executive order. First of all, the federal government simply cannot do that. Funding is a completely local function. It can deny access to federal grants, but this is something that almost never happens. Grants earmarked for law enforcement agencies receive almost zero oversight, much like the 1033 program the Biden Administration may or may not alter. Grassley also appears to have forgotten the previous president threatened to withhold federal grants all the time if cities or their law enforcement agencies angered him.

A spike is not a trend and the reason more officers are dying than ever is because of COVID. And it will continue to get worse for officers since so many of them are involved in fighting vaccine mandates and other COVID-related safety measures. And if agencies are having trouble re-staffing, they might want to take long looks in the mirror to understand why that might be. Spending decades destroying trust and community relationships tends to cause recruitment problems. Playing the eternal victim while simultaneously rejecting common sense safety measures during a pandemic isn't going to win the hearts and minds of anyone worth hiring.

The letter wraps up with this incredible paragraph:

These hard-left policies are extremely ill-advised, dangerous to Americans, and would only further demoralize law enforcement. Along with the alarming rise in violence against officers, police departments continue to report low morale among officers that is directly related to the dangerous “defund the police” rhetoric. This is careless rhetoric that has lasting consequences to the men and women who risk their lives every day to keep our communities safe, and the EO’s policies are simply an extension of that rhetoric.

These are far from "hard-left" policies. The DOJ has engaged in plenty of what's being proposed while working for right-wing administrations. There's nothing about this that's dangerous to Americans. The only threat it possibly poses is to bad cops. Those are the people these senators are defending by calling any small change to current policies (or reversions to old policies) permanently damaging to law enforcement. To be sure, law enforcement is in mid-crisis. But it's not going to emerge from that crisis using a blend of hands-off oversight and zero accountability. These senators are just shilling for the worst of the worst while pretending it's nothing more than a left-wing power grab designed to grab the attention of Biden's voter base.

More than a year and a half ago we were joined on the podcast by Riana Pfefferkorn, then the Associate Director of Surveillance and Cybersecurity at the Stanford Center for Internet and Society and now a research fellow at the Stanford Internet Observatory, to discuss the disastrous EARN IT Act. As you probably know, EARN IT is back, and this week, Riana joins us once again to discuss why it hasn't gotten any better — and might in fact have gotten worse.

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 now, wireless carriers have struggled to make fifth generation wireless (5G) interesting to consumers. While the technology does provide faster, lower-latency connectivity, that's more of an evolution than any kind of revolution. But in a bid to excite consumers (and justify high prices), wireless carriers have been pouring it on a little thick for years, trying to insist that 5G will somehow revolutionize the future, cure cancer, solve climate change, and generally turn America's urban landscape into the smart cities of tomorrow. And don't get me started on the "race to 5G."

During the Super Bowl, Verizon used Jim Carrey and T-Mobile hired Dolly Parton and Miley Cyrus to try and make 5G sexy, but most consumers still generally couldn't care any less about 5G:

On the one hand, wireless providers want to use 5G to target cable providers by offering home broadband services over 5G. The problem: these aren't companies that have ever been all that interested in competing on price. And wireless still tends to come with odd caveats that make it an inferior alternative to technologies like fiber or even modern cable.

Most consumer surveys show that consumers generally want two things from wireless providers: more reliable coverage and lower prices. The industry isn't interested in providing the second one (and thanks to telecom consolidation that's not likely to change anytime soon). And 5G range in the U.S., has been hindered by a lack of "middle band" spectrum in the U.S., which, unlike high band spectrum (fast speeds, short distances), and low-band (good range, slower speeds), provides both decent speeds at a decent range. The lack of said spectrum has meant that U.S. 5G deployments are generally slower than most overseas deployments, creating an even bigger chasm between reality and hype.

Desperate to make 5G more interesting than it is, wireless carriers have taken to over-promoting what the technology can actually do. This almost always involves taking something you could theoretically already do over 4G or WIFI (like giving someone a tattoo on the other side of the country! or using special effects at concerts!) then pretending it's only made possible thanks to the miracle of 5G. But time and time again, consumers have made it clear they're not buying it. It's even resulted in a 40% jump since 2019 in inter-carrier disputes over misleading ads, given even they know they're full of shit on the subject.

This won't change much for NSO Group, but at least it helps the Israeli Police rehab its image a bit. An "initial investigation" has (mostly) cleared the Israeli police of wrongdoing in one of the latest surveillance scandals tied to NSO's malware.

The Israeli broadcaster Channel 12 said a police investigation ordered by Israel’s public security minister, Omer Barlev, had concluded that of 26 individuals named in recent reports as having been targeted using NSO Group’s Pegasus software, three named individuals were targeted, with the police successfully hacking only one of the phones.

The investigation apparently is still ongoing, so these early positive results might be undone after further examination. Fortunately, the Israeli police aren't investigating themselves. Instead, the federal police agency is being scrutinized by officers from Israeli intelligence agencies Shin Bet and Mossad.

This doesn't mean Israeli police haven't targeted Israeli citizens with NSO hacking tools. It just means that what's been discovered so far has been lawful, contradicting earlier reports that suggested targets were subjected to attempted (or successful) hacking without the proper paperwork in hand.

Of course, earlier reports also said the police were able to do this by exploiting a "loophole" in the law. And that means the spirit of the law can be violated without anyone engaging in anything that's actually illegal. This is how state-ordained surveillance programs work: by playing right up to the edges of what the law permits.

But that doesn't mean nothing illegal happened.

The only possible illegal hacking was regarding Shlomo Filber, a former director-general of the Communications Ministry and longtime confidant of Netanyahu, according to Hebrew-language television reports.

The Israeli police are apparently hoping that this illegal hacking will be excused because law enforcement never accessed or made use of the data and communications obtained with the use of phone hacking tools. But the police have admitted investigators went beyond what was authorized in the court order.

Police brass told justice officials that the data was downloaded accidentally and was never given to investigators in the Netanyahu cases.

This possibly illegal hacking was discovered during the course of another investigation entirely unrelated to the current investigation about police use of NSO phone exploits.

Filber’s phone was reportedly accessed in 2017, and had the entirety of its content drained using unnamed spyware. The discovery that Filber’s phone had been targeted was made in the course of an unrelated investigation, ordered by the attorney general, into alleged police abuse of the controversial NSO Group’s Pegasus software, though a different technology was used to access Filber’s phone.

NSO Group, for its part, has decided it's time to start suing. Calcalist -- which has broken news of NSO-related hacking several times -- released a list of alleged Israeli targets of NSO malware. This report -- along with a follow-up by Calcalist -- has triggered legal threats from NSO.

Calcalist on Monday published specific, but unsourced, allegations of hacking against 26 targets by police. The bombshell report said NSO Group’s Pegasus program was deployed against senior government officials, mayors, activist leaders, journalists and former prime minister Benjamin Netanyahu’s family members and advisers, all without judicial authority or oversight.

To be clear, NSO doesn't deny the listed names were targets of NSO malware. Instead, it is taking issue with Calcalist's claim that NSO provided customers with malware deployment tools that could be configured to prevent the creation of data logs during deployment and use, thus preventing the creation of digital footprints that could indicate the use of NSO's Pegasus spyware. NSO denied this allegation in a letter threatening legal action, stating that it never provided customers with systems that offered plausible deniability as undocumented feature.

In response to Thursday’s report, NSO wrote to Calcalist that the relevant systems “include full documentation of the actions performed in them,” and that the records are kept for legal purposes and to prevent tampering with evidence. It further denied the newspaper report’s claim that it had sold client software that does not include the documentation feature or only in a limited way.

We'll see what becomes of this legal threat. NSO is already defending itself against two lawsuits brought by US tech companies. It may not be wise to press forward with one of its own and roll the dice on discovery for a third time. Given the nature of NSO and the those it has chosen to sell to, it's not all that unreasonable to believe it may have offered cover-up solutions to certain customers at a comfortable markup.

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We've talked about so many problems with the EARN IT Act, but there are more! I touched on this a bit in my post about how EARN IT is worse than FOSTA, but it came up a bit in the markup last week, and it showed that the Senators pushing for this do not understand the issues around the knowledge standard required here, and how various state laws complicate things. Is it somewhat pathetic that the very senators pushing for a law that would make major changes impacting a wide variety of things don't seem to understand the underlying mechanisms at play? Sure is! But rest assured that you can be smarter than a senator.

First, let's start here: the senators supporting EARN IT seem to think that if you remove Section 230 for a type of law-violating content (in this case, child sexual abuse material, or CSAM), that magically means that website will be liable for that content -- and because of that they'll magically make it disappear. The problem is that this is not how any of this actually works. Section 230 expert and law professor Jeff Kosseff broke the details down in a great thread, but I want to make it even more clear.

Today's EARN IT Act markup had a lot of discussion about what mens rea would be necessary for platforms to face civil liability for distributing CSAM. The discussion wasn't terribly clear, so I'm going to try to break down what we do know about the legal standards.

— Jeff Kosseff (@jkosseff) February 10, 2022

As a reminder, Section 230 has never been a "get out of jail free" card, as some of its critics suggest. It's a procedural benefit that gets cases that would otherwise lose on 1st Amendment grounds tossed out at an earlier stage (when it's much less costly, and thus, much less likely to destroy a smaller company).

So, here, the senators supporting EARN IT seem to think, falsely, that if they remove Section 230 for CSAM that (1) it will make websites automatically liable for CSAM, and (2) that will somehow spur them into action to take down all CSAM because of the legal risk and that this will somehow make CSAM go away. Both of these assumptions are wrong, and wrong in such stupid ways that, again, EARN IT would likely make problems worse, not better. The real problem underlying both of these is the question of "knowledge." The legal folks like Jeff Kosseff dress this up as "mens rea" but the key thing is about whether or not a website knows about the illegal content.

This impacts everything in multiple ways. As Kosseff points out in his thread, Supreme Court precedent (which you would know if you read just the first chapter of his Section 230 book) says that for a distributor to be held liable for content that is not protected by the 1st Amendment, it needs to have knowledge of the illegal content. Supporters of EARN IT counteract with the correct, but meaningless, line that "CSAM is not protected by the 1st Amendment." And, it's not. But that's not the question when it comes to distributor liability. In Smith v. California, the Supreme Court overturned a conviction of Eleazar Smith (his bookstore sold a book the police believed was obscene), noting that even if the book's content was not protected by the 1st Amendment, the 1st Amendment cannot impose liability on a distributor, if that distributor does not have knowledge of the unprotected nature of the content. Any other result, Justice Brennan correctly noted, would lead distributors to be much more censorial, including of protected speech:

While there are some other cases, this remains precedent and it's difficult to see how the courts would (or could) say that a website is strictly liable for content that it does not know about.

This creates a bunch of problems. First and foremost, removing 230 in this context then gives websites not an incentive to do more to find CSAM, but actually to do less to find CSAM, because the lack of knowledge would most likely protect them from liability. That is the opposite of what everyone should want.

Second, it creates various problems in how EARN IT interacts with various state laws. As we've pointed out in the past, EARN IT isn't just about the federal standards for CSAM, but it opens up websites to legal claims regarding state laws as well. And the knowledge standards regarding CSAM in state laws is, literally, all over the map. Many do require actual knowledge (which again, reverses the incentives here). Others, however, have much more troubling standards around "should have known" or "good reason to know" or in some cases, they set a standard of "recklessness" for not knowing.

Some of those, if challenged, might not stand up to 1st Amendment scrutiny, such as what's found in Smith v. California, which should require actual knowledge, but either way the law would create a huge mess -- with it mostly incentivizing companies not to look for this. And considering that the sponsors of the bill keep saying that the whole reason of the bill is to get companies to do more looking for CSAM, they've literally got the entire law backwards.

What's most troubling, is that when Senator Blumenthal was pushed on this point during the markup, and it was mentioned that different states have different standards, rather than realizing one of the many (many) problems with the bill, he literally suggested that he hoped more states would change their standards to a potentially unconstitutional level, in which actual knowledge is not required for liability. And that's just setting up a really dangerous confrontation with the 1st Amendment.

If Senator Blumenthal and his legislative staffers actually cared about stopping CSAM, they would be willing to engage and talk about this. Instead, they refuse to engage, and mock anyone who brings up these points. Perhaps it's fun for them to generate false headlines while fundamentally causing massive problems for the internet and speech and making the CSAM problem worse while pretending the reverse is happening. But some of us find it immensely problematic.

ID.me -- the facial recognition company that has managed to snag several lucrative contracts -- has gotten the brushback from perhaps its most lucrative government partner, the IRS. ID.me promised government agencies better control over distributions of unemployment benefits and other payments to the public, citing its own (unexamined) prowess at recognizing faces as well as an astounding claim that governments have been duped out of $400 billion in unemployment benefits by fraudsters -- a claim it has yet to back up with actual evidence.

That the pitch worked so well isn't a surprise. After all, governments hate to give money to taxpayers and most governments have deficits they'd like to trim down. Anyone promising millions in savings is bound to be given a second, third, or fourth chance even after it's become obvious claims about fraud are, at best, dubious, and that the company can't really do the job it promised to do: eliminate fraud.

Misspending tax dollars is a national pastime. The bizarre embrace of ID.me is no exception. The IRS may have walked back its reliance on ID.me for identity verification, but problems persist. States are still relying on ID.me, even if the feds aren't. And ID.me doesn't seem to have the personnel on hand to backstop questionable calls by its facial recognition tech, as Corin Faife reports for The Verge.

Internal documents and former ID.me employees say the company was beset by disorganization and staffing shortages throughout 2021, as shortcomings in the automated systems created tensions among the company’s workforce, particularly the human verification workers who have to step in when the algorithms fail. Even now, the company plays a central role in how claimants access benefits across the United States — working on behalf of 27 state-level uninsurance employment programs to verify applicants — and the underlying issues are far from settled.

Current and former employees who spoke to The Verge paint a picture of a company described as being in “permanent crisis mode,” changing policies rapidly to keep up with fluctuating demand for its services and fight a slew of negative press. In particular, they say a lack of human review capacity has been a chokepoint for the company, leading to stress, pressure, and a failure to meet quality standards.

This verifies accusations raised earlier by other critics of ID.me -- critics who were forced to become users of faulty systems due to several states making ID.me the barrier between claimants and their benefits. Those locked out of their benefits complained the company offered few options for review of their supplied info. ID.me claimed it was performing reviews on the regular, but social media comments suggested this simply wasn't true. Actual humans were nearly impossible to reach. This report confirms what was suspected: the company simply did not have enough humans employed to deal with the problems generated by its verification processes.

Claimants were given no option but to put all their biometric eggs into one malicious hacker-tempting basket owned and operated by ID.me. When glitches separated people from their payments, the company's CEO blamed users for not being better at using an entirely new verification system. When these problems persisted, the CEO claimed most false negatives were actually the company thwarting fraudsters.

But ID.me can be duped. And it can be duped fairly easily it seems. A Washington Post report shows one person illicitly secured nearly $1 million in unemployment benefits using little more than an extremely obvious wig.

[D]espite the scale of the data gathering by the company, ID.me, revealed in newly released records, the system has been exploited by scammers. Federal prosecutors last month said a New Jersey man was able to verify fake driver’s licenses through an ID.me system in California as part of a $2.5 million unemployment-fraud scheme.

ID.me has pointed to the scam as an example of how well its systems work, noting that it referred the case to federal law enforcement after an internal investigation. But the criminal complaint in the case shows that ID.me’s identification systems did not detect bogus accounts created around the same day that included fake driver’s licenses with photos of the suspect’s face in a cartoonish curly wig.

I mean… [images via DOJ criminal complaint]:

Humans might have been able to shut this fraud down immediately. But it's clear ID.me doesn't have enough humans and is relying on mostly unproven tech to decide who is or isn't entitled to government benefits.

The IRS's walk-back on ID.me use may end up causing at least as many problems as it solves, unfortunately. The IRS also suffers from a shortage of humans and now they will be expected to do more with less outside assistance as tax return season shifts into high gear. By the time the IRS was forced by public and Congressional pressure to make a change, it was already up to its eyeballs in returns. Taxpayers can now expect delays ranging from several weeks to several months at least partially as a result of the agency's regrettable decision to do business with ID.me and its questionable track record.

YouTube's Content ID automated copyright system sucks. There, I said it. Any review of the different posts we've done specifically on the topic of Content ID can only leave you with one impression: the system doesn't work. Not that it never works, of course, but when you build a system that is designed specifically to allow 3rd parties to take down speech content, that system had damned well better not be wide the hell open for abuse or laughable errors. Well, guess what? You've got your music labels getting works taken down that were specifically designed not to not be infringing, news organizations managed to claim their own live streams as copyright infringing, and music labels being able to demonetize videos of a guy singing public domain Christmas carols. It's all very stupid, very much the tip of the iceberg, and very much an indication that Content ID, in its current state, is broken.

What's that, you say? You need more? Fine, a guy uploaded videos of his cat purring and those got claimed by two different labels as infringing on their copyrights.

YouTube's automated takedown tool is known for its flaws, but this week it crossed a line by attacking a purring cat. According to YouTube's Content-ID system both EMI Publishing and PRS own the rights to a 12 second purring loop. Last March, YouTube user Digihaven uploaded one hour of video loops featuring his cat Phantom, purring, as cats do. The video didn’t go viral but appealed to a niche public, and more recently also two major music publishers.

Nearly a year after the video was posted Digihaven was informed by YouTube that Phantom is “pirate” purring. Apparently, part of the 12 second loop belongs to EMI Music Publishing and PRS.

Yes, this is sort of funny, but only after you've encountered so many Content ID problems just like this that you become dead inside, like me. I've made statements like this before, but I'll repeat it again: your automated copyright system doesn't have to be perfect, but if your system is so flawed that a 12 second video of a cat purring can be flagged by multiple music labels then your system sucks so badly that you need to completely start from scratch on a new one.

Now, I've done some haphazard searching for songs entitled "Focus" by artists on the EMI label and, frankly, I gave up. There are a ton of search results for songs that include that word in their titles. That being said, I'm fairly certain that EMI doesn't have a band with a song that is 12 seconds of a cat purring or, if that in fact is a thing, that such a video would be copyrightable. In other words, either way, EMI and PRS should not be monetizing Phantom the Cat's musical stylings.

“I’m sure EMI/PRS made Phantom a sad kitty. It seems like companies such as EMI are pirating ads on people’s legit videos, so I’m wondering if they apologize to, or reimburse people for those false claims,” he tells TF.

Hoping to clear his cat’s name Digihaven decided to file a dispute. This was partially successful, as EMI lifted its claim shortly before publication of this article.

Which, absurdly, means now Phantom just has to figure out what PRS' problem is.

Or, hey, maybe we could all just admit together that Content ID in its current form doesn't work and should be done away with in some organized and planned fashioned. Replace it with a better automated system. Replace it with more humans doing moderation. Admit that content moderation at scale is completely impossible and stop trying.

Anything would be better than living under a automated system we all know sucks.

In 2018, the sheriff of Butts County, Georgia (no, really), Buford T. Justice Gary Long instructed deputies to ruin the Halloween holiday spirt by planting damning signs in the yards of released sex offenders. The sheriff cited no reason for doing this -- not even extremely anecdotal "evidence." Instead, the signs -- which warned trick or treaters away from the homes of certain county residents -- appeared to be purely punitive: a way to continue to punish criminals who'd already served their time.

The sheriff's deputies wandered onto private property and planted signs printed by the department -- ones that said nothing more than "NO TRICK-OR-TREAT AT THIS ADDRESS." The signs were signed (so to speak) by the sheriff, passing themselves off as a "community safety message."

In a now-deleted, self-congratulatory post, Sheriff Gary Long claimed this invasion of privacy and property was lawful good:

As Sheriff, there is nothing more important to me than the safety of your children. This Halloween, my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid. Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property. With the Halloween on the square not taking place this year, I fully expect the neighborhoods to be very active with children trick-or-treating. Make sure to avoid houses which are marked with the attached posted signs in front of their residents. I hope you and your children have a safe and enjoyable Halloween. It is an honor and privilege to serve as your sheriff.

(These signs are placed In accordance with Georgia Law O.C.G.A. 42-1-12-i(5) which states the Sheriff shall inform the public of the presence of sexual offenders in each community)

Nothing in the law requires this, despite the sheriff's half-assed appeal to authority. The public is already made aware of these facts by sex offender registries, which are accessible with or without Sheriff Long's assistance. If the law truly required the posting of signs like this, they would already have been posted by these residents in order to comply with the conditions of their release. There are plenty of laws in place that deter sex offenders from using a once-a-year celebration to further their sex offending. The lack of evidence or data pointing to a spike in sex offenses against children during Halloween suggests the laws on the books are working. This was nothing more than Sheriff Long being an asshole for no other reason than he could.

Four years later, the uppance has finally come for Sheriff Long and his deputies. The Eleventh Circuit Court of Appeals has ruled [PDF] these signs were nothing more than cheaply printed rights violations. (h/t Volokh Conspiracy)

The plaintiffs in this case posed a minimal, if not entirely nonexistent, threat to the communities they reside in. Here's how the court describes the three men suing Sheriff Long and his deputies:

Plaintiffs Reginald Holden, Corey McClendon, and Christopher Reed are residents of Butts County and are required to register as sex offenders under O.C.G.A. § 42-1-12, et seq. The Georgia statute not only requires individuals with certain convictions to register as sex offenders, but also requires Georgia to classify registrants based on whether they pose an increased risk of recidivism. Id. § 42-1-14. None of the three plaintiffs have been classified as posing an increased risk of recidivism.

In 2004, Holden was convicted of lewd and lascivious battery in Pinellas County, Florida. He has been a homeowner in Butts County since May 2017. He lives by himself and works as a warehouse coordinator.

In 2001, McClendon was convicted of statutory rape of a minor in Butts County. He lives with his daughter and his parents who own the home where they all reside. He holds a commercial driver’s license.

In 2007, Reed was convicted of sexual assault of a minor in Cook County, Illinois. He works as a truck driver and has lived with his father, who owns their home, since 2011. In the 2020 order now on appeal, the district court found that all three plaintiffs “have, by all accounts, been rehabilitated and are leading productive lives.”

Sheriff Gary Long was aware of this when he made and posted the signs.

The Sheriff does not dispute this, nor does the record support a contrary finding.

Sheriff Gary Long was also aware that sex offenders don't offend more often on Halloween.

Since 2013, Long had been Sheriff in Butts County and in that time did not know of any incidents in Butts County involving registered sex offenders on Halloween. In fact, during his six-year tenure as Sheriff, there were no issues with any registered sex offenders in Butts County having unauthorized contact or reoffending with minors at any time.

So, the signs were clearly made and distributed under the color of law for the sole purpose of heaping more stigma on stigmatized residents -- all under the guise of public safety. The sheriff had no lawful authority to do this. But he did it anyway.

The court is not happy with Sheriff Long's actions. Despite being constrained by the limits of the lawsuit, which does not seek damages or dispute any finding of qualified immunity, the Eleventh Circuit makes it clear this is some bullshit, Constitutionally speaking. This is compelled speech, forced on certain members of Butts County by Sheriff Gary Long. And there's nearly 50-year-old Supreme Court precedent on hand that made it clear the sheriff should never have engaged in this activity.

In Wooley, the Supreme Court held that it was unconstitutional for the State of New Hampshire to prosecute a citizen for covering the State motto, “Live Free or Die,” on his license plate. Specifically, the Court held that a state could not “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” The Court stated that the New Hampshire statute “in effect requires that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.”

This case is materially similar to Wooley. The Sheriff’s warning signs, like the State motto on the New Hampshire license plate, are government speech. Indeed, the signs expressly bore the imprimatur of government, stating that they were “a community safety message from Butts County Sheriff Gary Long.” The deputies placed the signs despite the homeowners’ and/or residents’ objections. The deputies explained, both verbally and through the accompanying leaflet, that only the Sheriff’s Office could remove the signs.

To sum up:

The Sheriff’s warning signs are a classic example of compelled government speech.

Sheriff Gary Long had no justification for this imposition on county residents, even given the state's obvious (and justifiable) desire to prevent the sexual abuse of children. The sheriff's office had other ways of informing Butts County residents of where sex offenders were located. The signs were completely unnecessary. Nothing the sheriff's office submitted to the court shows this punitive measure was the only (or least intrusive) way to ensure the safety of trick-or-treating children.

Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence), the signs are not tailored narrowly enough. Sheriff Long testified that the sex-offender registry, which contains each registrant’s name, address, and photograph, is available on the State of Georgia’s website, on the Butts County website, at Butts County administrative buildings, and at the Butts County Superior Court Clerk’s Office. The Sheriff has made the sex offender registry widely available through government sources, diminishing the need to require residents to disseminate the same information in yard signs on their private property. And, while “narrowly tailored” does not mean “perfectly tailored,” the Sheriff has not met his burden to show the yard signs were narrowly tailored because he has not offered evidence that any of the yard signs would accomplish the compelling purpose of protecting children from sexual abuse.

Sheriff Long tried arguing the government had the right to post whatever it wanted in "public rights of way," his way of describing the areas (towards the end of driveways or near sidewalks) where deputies posted signs. This footnote makes it clear this is the sheriff's Hail Mary play -- one the court easily bats down in the 11th Circuit end zone.

Before placing the signs in 2018, the deputies did not conduct research to assure themselves the signs would be placed in rights-of-way. In 2019, for the preliminary injunction hearing, the Sheriff introduced some poorly scanned copies of subdivision plats that do not include any keys, legends, or labels; the plat maps are not self-explanatory. He also introduced aerial Google Maps photos of roads with lines drawn across them. But those maps do not indicate who owns the underlying fee where the lines are drawn, or that the lines represent right-of-way easements—much less who possesses any easements or for what purpose.

The end result is a reversal of the lower court's decision in favor of Sheriff Long and his Halloween-adjacent dickishness. The case travels back down the federal pipe to the district court with instructions to find in favor of the plaintiffs and their request for a permanent injunction prohibiting the sheriff from pulling this stunt in the future. The ruling is clear: the government can't force people to say things they don't want to by planting signs in their yards. Sheriff Long will just have to find some other, more constitutional way to harass residents he doesn't like next Halloween.

Make sure you read the update at the end

This is a story that appears like it was created just to get Techdirt coverage, given how many issues we cover it touches on. Here's how it starts: Tulane law professor Ann Lipton, an expert on corporate governance and corporate law, wrote an academic paper about "Capital Discrimination." It's really interesting, and you should read it -- and a lot more people have been reading it over the last few days because of the situation I'm about to describe. The gist of the paper is that sex and gender discrimination happens in disputes regarding corporate structures/ownership, but that we don't generally have language in typical discussions of corporate ownership that recognize this very real dynamic. The article highlights multiple examples where courts try to apply the more traditional language of corporate ownership disputes in cases where there is clearly an element of sex discrimination.

One of the examples cited is In re: Shawe & Elting LLC, et al., which involves a somewhat incredible dispute between two people, Philip Shawe and Elizabeth Elting, who founded a company together, Transperfect Global. Without getting into all of the sordid details, Shawe and Elting had been in a relationship very early on, around the time of the formation of the business. At some point they were engaged to be married, though, according to the documents, Elting called off the engagement in 1997. From all of the details discussed in the opinion in the legal dispute between them, one could surmise that Shawe and Elting -- despite working together as co-CEOs, being the only two members of the board, and building up the company into a massive success, employing thousands of employees, and making hundreds of millions of dollars in revenue a year -- spent an awful lot of time fighting with each other in incredibly immature ways. It seems like they had been able to work together semi-amicably for over a decade after their personal relationship broke off, but things went off the rails sometime around 2012. The opinion linked above has detail after detail of incredibly petty and ridiculous behavior, sometimes on both of their parts, but quite frequently driven by Shawe. Here's just one example from the ruling:

There are multiple stories along these lines -- many of which appeared to be petty disputes between two co-CEOs posturing over who had power (there's a side issue in which technically Elting owned 50% of the business and Shawe 49%, but the other 1% was ostensibly held by Shawe's mother, in order to take advantage of being a "majority woman-owned business," but in practice, Shawe controlled his mother's share, so it was a 50/50 company). Many of the business disputes seem incredibly counter-productive, and seem to involve trying to make life difficult for the other one by delaying/hindering business decision making. As they argued, some of the behavior went into really, really questionable territory:

But some of the issues go way beyond arguments over how the business should be run or how its finances should work -- including some pointers that suggest odd behavior in response to the failure of the personal relationship. From a footnote:

You can see how this dispute was of interest to Lipton's paper. It's one of multiple examples that fits right in and she quotes from the opinion directly. A draft of her paper was uploaded (like many pre-publication papers) to the Elsevier-owned SSRN website, and it was scheduled to be published in the Houston Law Review. However, if you go to the SSRN link now it shows the following:

It was not removed at the request of the author or of "the rights holder." It was removed by SSRN because Shawe had a lawyer send a ridiculous SLAPPy cease-and-desist letter, claiming that the law review article was defamatory. The cease and desist, from lawyer Martin Russo demands that the article be removed.

The crux of Shawe's complaint is that their legal dispute had nothing to do with their previous relationship, and was entirely a more traditional business dispute. But... that's an opinion. As is Lipton's opinion regarding how it relates the thesis of her paper. And, opinions are not defamatory. Other elements in the paper, including the references to Shawe's terrible behavior, seem obviously protected under fair reporting privilege. Honestly, the crux of Shawe/Russo's complaint is that they don't like how Lipton characterizes the nature of the dispute, but that's easily protected opinion and not defamatory.

Also, if Shawe wants to contend that the behavior at issue in the lawsuit was solely because of differences in how the business should be run, and not having anything to do with his failed personal relationship with Elting, he maybe should not have done the following, as detailed in the court's opinion:

So, maybe it wasn't Lipton who was connecting the failed relationship with the business dispute -- perhaps it was Shawe himself who sought to make use of the failed relationship claim to give him leverage in the business dispute, including seeking to have Elting criminally prosecuted by filing a "domestic incident report."

Given all of this, it's hard to see the cease and desist letter as anything more than blustery nonsense. But, ridiculously, SSRN pulled the paper, as has the Houston Law Review. To their credit, Lipton's employer, Tulane University is standing behind her:

The letter also points out to SSRN that no terms of service have been violated, and they believe SSRN should repost the article.

So combine this all together and we have a situation in which Shawe is angry about how he is portrayed in the paper, but that doesn't make it defamatory. The cease and desist letter has all the hallmarks of a frivolous SLAPPy legal threat. It highlights no false statements of fact, but merely calls out the statements of opinion made by Lipton in her paper, which are based on the facts that -- again -- Shawe's letter does not dispute. So this seems like a pretty blatant SLAPP threat.

Then, let's get to SSRN, which should not be pulling down the article. First, even a semi-competent review of the cease and desist would find that the defamation claims appear baseless. One would hope that SSRN would do such an analysis and not fall prey to a heckler's veto. Second, even if there were defamatory content (and again, that seems like a huge stretch), SSRN would be easily protected under Section 230. SSRN is an interactive computer service under the law, and cannot be held liable for the speech of third party content providers, such as Lipton.

In fact, this situation highlights the importance of Section 230, in that without Section 230, bumptious threats like this one would enable anyone to get just about anything pulled off of an online host. The nature of Section 230's immunity, is that it allows all sorts of different kinds of websites to host content, without having to freak out at the first sign of a legal threat over the content uploaded by a user. SSRN is within its own rights to pull down any content, of course, but the decision to do so here strongly suggests that (1) it did not carefully review the letter and the paper, or (2) that it doesn't understand how Section 230 protects it here.

Finally, there's the Streisand Effect. I'd never heard about this paper, or the dispute between Shawe and Elting. And now I and many, many, many more people have read the article (and I went and read the opinion in the Delaware Chancery Court with many, many, many more details on Shawe's behavior). So, once again, in filing a highly questionable legal threat intended to suppress this information, Shawe and Russo have only served to make people much, much, much more aware of the court record regarding Shawe's behavior.

Update... and just as I was putting the finishing touches on this post, SSRN put the paper back up. On Twitter, it explained itself as follows:

And one can argue that taking it down while you investigate is a reasonable policy -- though a key part of the way Section 230 works is that you don't need to. And, frankly, that's the appropriate setup, because it recognizes that the potential harm from suppressing legal speech is a huge problem. In the end, though, it's good that SSRN appears to be revising its policy.

The regional monopolization of U.S. broadband comes with all manner of nasty side effects. The lack of competition at the heart of the country's monopoly and duopoly problem contributed to high prices, comically bad customer service, slow speeds, spotty coverage, annoying fees, and even privacy and net neutrality violations (since there's often no market penalty for bad behavior). But it also results in "redlining," or when a regional monopoly simply refuses to upgrade minority neighborhoods because they deem it not profitable enough to serve.

The National Digital Inclusion Alliance has done some interesting work on this front, showing how companies like AT&T, despite billions in subsidies and tax breaks, routinely just avoids upgrading minority and low income neighborhoods to fiber. Not only that, the group has long showed how users in those neighborhoods also struggle to have their existing (older and slower) services repaired.

Again, defenders of the status quo will insist that these neighborhoods don't get upgraded because the return on investment (ROI) doesn't make it worth it, and that's a company's, like AT&T, right. But that (usually intentionally) ignores the billions upon billions of dollars we've thrown at regional monopolies for fiber networks that, time and time again, are only half delivered. Companies like AT&T routinely get to have their cake (billions in subsidies, regulatory favors, and tax breaks) and eat it too (only half deliver the upgrades they've promised for literally 20 years).

It's 2022 and the FCC has only just announced that it's going to take a look at the problem. Prompted by language in the recently passed infrastructure bill, the FCC has announced it's creating a task force to tackle "digital discrimination":

The problem, as usual, is that the real underlying disease here is regional monopolization. A company like AT&T not only faces little competitive pressure to expand service beyond the most profitable areas, it all but owns most state legislatures (and during Trump, federal regulators as well). As usual with broadband, if you don't tackle the regional monopolization and the corruption that protects it, you don't fix the real problem. And not only does the FCC (under both parties) not tackle this problem, you'd be hard pressed to find an FCC official capable of admitting the problem exists.

That's not to say this initiative won't do some good in terms of building awareness and creating some basic guidelines. But a program like this is only as good as its enforcement, and the idea some company like AT&T will face any serious penalties for 20 years of bad behavior on this front seems unlikely. The U.S. broadband monopoly problem has been obviously apparent for the last 20 years. 83 million currently live under a broadband monopoly, usually Comcast. You literally cannot find a single instance in the last five years where this problem was candidly acknowledged by regulators and lawmakers of either party, which kind of makes it hard to fix.

It's somehow gotten even worse during the (often justified) policy freak out surrounding "big tech." "Big telecom" has just almost completely fallen off the policy table, and even the idea of having some base levels of accountability for regional monopiles with 20 years of documented, anticompetitive behavior under their belts feels like a distant afterthought. You'll know things have changed when you see an FCC official clearly capable of acknowledging telecom monopolization and corruption are bad things. Until then we seem stuck in the age of half measures and incomplete solutions.

Last autumn, you may recall, the St. Louis Post-Dispatch published an article revealing that the Missouri Department of Elementary and Secondary Education (DESE) was leaking the Social Security numbers of teachers and administrators, past and present, by putting that information directly in the HTML. The reporters at the paper ethically disclosed this to the state, and waited until this very, very bad security mistake had been patched before publishing the story. In response, rather than admitting that an agency under his watch had messed up, Missouri Governor Mike Parson made himself into a complete laughingstock, by insisting that the act of viewing the source code on the web page was nefarious hacking. Every chance he had to admit he fucked up, he doubled down instead.

The following month, the agency, DESE, flat out admitted it screwed up and apologized to teachers and administrators, and offered them credit monitoring... but still did not apologize to the journalists. FOIA requests eventually revealed that before Governor Parson had called the reporters hackers, the FBI had already told the state that no network intrusion had taken place and it was also revealed that the state had initially planned to thank the journalists. Instead, Parson blundered in and insisted that it was hacking and that people should be prosecuted.

Hell, three weeks after it was revealed that the FBI had told the state that no hacking had happened, Parson was still saying that he expected the journalists to be prosecuted.

Finally, late on Friday, the prosecutors said that they were not pressing charges and considered the matter closed. The main journalist at the center of this, Jon Renaud, broke his silence with a lengthy statement that is worth reading. Here's a snippet:

Later in the letter, he notes that a week earlier, Parson himself had decried the treatment of his rejected nominee to lead the state's Department of Health and Senior Services, noting that Parson complained that "more care was given to political gain than the harm caused to a man and his family." Renaud noted that the same could be said of Parson's treatment of himself:

He concludes by hoping that "Parson's eyes will be opened, that he will see the harm he did to me and my family, that he will apologize, and that he will show Missourians a better way."

And Parson showed himself to be a bigger man and did exactly that... ha ha, just kidding. Parson just kept digging, and put out a truly obnoxious statement, with no apology and continuing to insist that Renaud hacked the government's computers even though -- again, this is important, lest you just think the governor is simply technically ignorant -- the FBI has already told him that there was no hacking:

This whole statement is utter hogwash and embarrassing nonsense. Again, there was no hacking whatsoever. The state messed up by putting information that should never, ever be in HTML code into HTML code, making it accessible for anyone who viewed the source on their own computer. The state messed up. The state failed to secure the data. The state sent that data to the browsers of everyone who visited certain pages on their public websites. Renaud did exactly the right thing. He discovered this terrible security flaw that the state put on the database, ethically reported it, waited until the state fixed its own error, and then reported on it.

Parson knew from the beginning that no hacking occurred. The FBI told the state that no hacking occurred. The state had prepared to thank Renaud and his colleagues at the St. Louis Post-Dispatch. It was only after Parson decided to deny, deny, deny and blame, blame, blame reporters for pointing out Parson's own government's failings, that this whole thing got out of hand.

The prosecutors have their own reasons for declining to prosecute, but the most likely reason is they knew they'd get laughed out of court and it would make them and Parson look even more ridiculous. Renaud chose give a heartfelt write up of what Parson's nonsense put him through, and asked in the politest way possible for Parson to look deep inside at the harm he had caused and to apologize. Instead, Parson quadrupled down, continued to insist that his own government's failings could be blamed on a "hack," and insisting that he's trying to "protect" the state when all he's done is show why no serious tech company should do business in such a state.

Missouri: elect better politicians. Parson is an embarrassment.

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In admitting that his EARN IT Act is really about attacking encryption, Senator Richard Blumenthal said he wouldn't agree to keep encryption out of the bill because he worried that it would give companies a "get-out-of-jail-free card." That's nonsense for multiple reasons, which we explained in that post, but the fact is Blumenthal's bill actually does contain a "get-out-of-jail-free card" that is incredibly damaging. It's one that child sexual abusers may be able to use to suppress any evidence collected against them and which would not just undermine the very point of EARN IT Act, but would make it that much harder to do the thing that needs to be done: stopping such abusers.

We touched on this a little bit in our earlier post about the mistakes senators made during the markup, but it's a little wonky, so it deserves a deeper exploration. Here's a good short description from Kir Nuthi in Slate:

In short: under the current setup, companies can search for child sexual abuse material (CSAM) and if they find it they must report it to NCMEC (and remove it). This is good and useful and helps prevent the further spread. But under the 4th Amendment, if the government is mandating a search, then it would require a warrant before the search can happen. So, if the government mandates the search -- and as various senators made clear in both their "myths and facts" document, and in the markup hearing, that's exactly what they intend this bill to do -- then anyone who is charged with evidence found via such a search would have an unfortunately strong response that the evidence was collected under state action, and, as such in order to survive a 4th Amendment review, would require a warrant.

In other words, it hands terrible criminals -- those involved in the abuse of children -- a way to suppress the evidence used against them on 4th Amendment grounds. Under such a regime that would make it more difficult to prosecute actual criminals. But, even worse, it would then create a perverse and dangerous precedent in which companies would be greatly encouraged not to use basic scanning tools to find, remove, and report CSAM content, because in doing so, it would no longer be usable in prosecutions.

So the failure by senators to understand how the 4th Amendment works, means that EARN IT (beyond all its other problems) creates a constitutional mess that is, effectively (and almost literally) a "get-out-of-jail-free card" for criminals.

Once someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request.

That unalterable fact hasn't stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice, handing out information it didn't want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted (then rescinded). The second time the NYPD screwed up it didn't even bother to see if a court would oblige it twice.

US Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the "alien files" compiled by the agency. (h/t National Security Counselors)

At the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. From Hoppock Law's lawsuit [PDF] against USCIS:

In the Determination Letter, defendant USCIS wrote that it was intentionally releasing portions of the records that would otherwise be considered “exempt” under the FOIA statute after discussion between agency personnel and a member of its staff. It purported to release this exempt material “as a matter of administrative discretion.” And it said that the released records may also include other “discretionary releases of exempt information.”

These statements confirmed that even if portions of the records released were subject to any exemption under the FOIA, such release was intentional, not inadvertent.

Seven months later, USCIS had a new Director of FOIA Operations. And Hoppock Law had a new letter from USCIS demanding the "return" of information the agency had already voluntarily released.

The Demand Letter stated that, as for request number NRC2021092780, the USCIS had now decided that it had “inadvertently released personally identifiable information of third parties and/or law enforcement sensitive information.” It did not identify what pages or portions of the release the defendants were now claiming to be exempt or address its previous statements that it was releasing exempt information on purpose, as a matter of administrative discretion.

The Demand Letter did not identify any specific statutory exemption under the FOIA statute that the Defendants believed should apply to these records.

Although the request was for Plaintiffs’ client’s own A-file and the records released included only those found in the client’s A-file, the Demand Letter said that “improper use” of the records Plaintiffs received could “harm” the individuals “whose information was mistakenly sent.”

The demand letter [PDF] also hinted the law firm could be subject to criminal charges if it did not immediately comply. The letter claimed that any "any use or disclosure" of information (information not specified in the letter) might "impede or interfere with law enforcement activities." That's called obstruction when the feds are bringing charges. And like any federal charge, it's serious and can result in lengthy sentences.

The letter went on to demand compliance by January 18, 2022, which would be the same day the law firm received the letter. On January 19, the law firm responded, asking USCIS to identify which FOIA request this demand letter covered and noted that it needed other information from the agency if it was even going to begin complying with its demands, including identification of every person and entity the documents might have been shared with.

Despite the implicit threat of criminal charges and the demand for immediate action, the law firm's questions have yet to be answered. To prevent it from being accused of federal crimes or improper dissemination of sensitive information, the law firm is suing USCIS, seeking an order that would strictly define what the law firm is obligated to do in response to this letter, especially given its implication of criminal charges.

And it points out USCIS has no legal right to demand the things it's demanding.

The FOIA statute includes no authority for the responding agency to demand that a requester return records it has disclosed under the FOIA or to furnish information to the agency about who has been provided access to those records.

Even if there were some implied claw-back power in the FOIA statute, it would not apply to records the agency has intentionally disclosed, as it said explicitly here in the June 2021 disposition letter.

Because of that, the law firm is also seeking declaratory judgment stating that the demand letter violates FOIA law and that the law firm is under no obligation to comply with an extremely belated letter that, in effect, orders the firm to disclose the names of others who've viewed the documents and any attorney-client privileged communications compliance with the letter might reveal.

The law firm should prevail. FOIA law simply does not work this way. And USCIS's earlier statements that it knew it was providing information normally considered exempt from disclosure shows the agency was fully aware of what it was handing over to the law firm. A change at the top of the FOIA org chart doesn't suddenly make all of the agency's past public records actions null and void. And it sure as shit doesn't change how this law works.

This week, our first place winner on the insightful side is That Anonymous Coward on our post about the ruling that a college can't order a student to stop talking about an instructor, responding to another commenter who decided to go on a bizarre rant questioning the student's disability:

They are called sunglasses, perhaps one you get your head out of your ass you might learn about them.

Oooh and you get to decide if her disability is or is not real.
Are you one of those assholes who demand people parked in handicapped spots prove their disability to you?
You know they faked it to get the permit hanging from the rearview & now they have to answer to you...

On the upside your entire rant really highlights why many people with disabilities often just suck it up because they really don't feel like explaining to petty able bodied tyrants the exact nature of their disability and having to perform like a circus animal to meet your mental requirements for being disabled enough.

Did you read a different letter?
No where was there a request or demand to give bad reviews, merely honest reviews.

I offer you a big hearty fuck off from someone who sometimes is light sensitive, sometimes doesn't need his cane, sometimes needs to park closer to the entrance who is fed up with assholes like you who think unless your missing limbs you aren't disabled & are required to prove it on demand by every fucking Karen who is just pissed that there are a couple spaces they can't use.

In second place, it's That One Guy with a comment about the Minneapolis cops who demanded a no-knock warrant then killed an innocent gun owner nine seconds after entering a residence:

Criminals lying? Perish the thought

No no, gunning someone down on the spot after you broke into their house in the middle of the night and they're disoriented from being woken up is totally reasonable so long as you say 'police' and 'warrant', I mean can you imagine criminals ever doing something like that or police ever shooting an innocent person?

Clearly not, which means that if someone armed breaks into your house yelling about how they're cops they have a right to be there, and so long as you're innocent you have absolutely no reason to be worried or feel the need to defend yourself or even protest in the slightest.

For editor's choice on the insightful side, we start out with another comment from That One Guy, this time in response to the opposition from companies to good new regulators:

'You can't nominate them, they might do the job!'

As with Sohn, now with Bedoya: The greatest sign that a person is qualified for the job is when the corrupt come pouring out of the woodworks to try to keep them from it.

Next, it's a comment from someone who we haven't seen in these lists before, under the name... That Other Guy. The comment comes in response to a German court fining a site owner for "sharing user data with Google" by using web fonts:

One of the many terrible things about this decision is that the website owner didn't send the user's IP address to Google; the user's browser did.

Over on the funny side, our first place winner is Bobvious, with a comment about the Boston police department's bullshit gang database:

Are you saying

that the Boston Police Department has been frequenting areas notorious for MS13 gang activity?

In second place, it's Toom1275 on our post about Penguin Random House and Maus in the wake of its controversial removal from Tennessee schools. One commenter complained about calling this a "ban", Mike pointed out that the post discussed the fact that it's a bit more complicated and wondered if the complainer had read it, and Toom had a reply:

It seems unlikely anyone supporting the book ban would be a fan of reading.

For editor's choice on the funny side, we start out with David and one more similar crack about the gang database:

Are you rooting for the criminals?

After all, Ortiz has a record of associating with people who have a record of associating with people.

Finally, it's one more comment from That One Guy, this time in response to Apple opposing the trademark on an indie film, Apple Man:

Apple: Our customers are INCREDIBLY stupid

No, that makes perfect sense, why just last week I went to the grocery store because I heard they were selling apples and to my great surprise I was pointed towards a pile of fruit. How dare the store and it's staff deceive people by telling their customers that they are selling apples when they clearly are not, don't they understand that when someone hears 'apple' the only thing that comes to mind is electronics of various types?

That's all for this week, folks!