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A Parent Explains Why They Oppose NY’s ‘SAFE For Kids Act’

from the not-very-safe-for-kids dept

Editor’s note: We’ve written a few times about NY’s “SAFE for Kids Act” and it’s many problems. There’s a decent chance that bill gets voted into law this week. Samuel Johnson posted a wonderfully detailed letter about why he, as a parent, opposes the law, and sent it to his elected officials. He also posted it on his own blog about Upstate NY, and kindly agreed to let us repost it here.

For a number of months now, the New York State Legislature has been kicking around its own internet regulation law. Like similar laws in many other states, the bill is deeply flawed, relying on animosity towards Big Tech and a fundamental misunderstanding of how the internet and computer technology in general works.

Unfortunately, the bill is likely to pass in the next few days. As a parent with many other demands on my time, I was unable to put together a letter outlining my opposition to it until now. Below is the current draft of a letter I intend to send to my state assemblyman, with similar versions to be sent to my senator, the Governor, and others in a position to oppose the bill.

If you are a New Yorker, please reach out to your legislators and the governor. Time is desperately short.

Dear Mr. Steck:

I write to you today to express my concerns about the SAFE for Kids Act currently being considered by the New York State Legislature (and heavily pushed by the Governor). As you know, I am the father of four children, ages six through sixteen, and the increasing difficulty of protecting them as they grow and learn to use the internet has occupied a fair amount of my time and attention over the last decade and a half.

I have been employed full time as a software engineer for sixteen years, the last ten of which have been positions in the “infosec” (Information Security) field, including positions with national security clearance and at international companies like GE. I hold two degrees from RPI, one in Computer Science, the other in Information Technology, and I was on faculty there as an adjunct professor for eight semesters, bringing my professional experience into the classroom to help educate the next generation of engineers and scientists.

While I support the general intent, the SAFE for Kids Act as it is currently drafted will do little to protect children from being exploited by Big Tech. Often, when faced with taking action on a complex issue, people will seize on a partial, or even counterproductive idea, and say “we must do _something_…this is something, therefore we must do this.” Unfortunately, in this case, this will do little to address the underlying problem, and it will simultaneously expose already marginalized kids (and adults) to greater danger online, and make it more difficult for smaller, independent organizations and businesses to develop alternative, ethical websites and apps.

To understand the problems with the bill we need to consider:

The value of the internet as a means of distributing high-quality content and information, and building community
The need to support the ability of people to have autonomy over their online identity and experience
The need to allow pseudonymous and anonymous use of the internet by both minors and adults
The business model of “Big Tech” platforms like Facebook/Instagram and TikTok
The distinction between “recommended content” and addictive features

Once we evaluate the bill’s impact with these things in mind, we begin start to understand why the SAFE for Kids Act will make the internet less usable for New Yorkers, no more safe for our children and teens, and more dangerous for members of marginalized communities, while further entrenching the dominance of existing Big Tech and Big Advertising companies.

The Value of the Internet

It would be hard to overstate the value of the internet with respect to its potential for bringing people together and making the world’s knowledge available at low cost to all, at the touch of a button. While misinformation (and even disinformation) have become more widespread in recent years, it’s undeniable that much of the information that used to be available only in print (or radio or TV) is now online. From news, schedules, and weather, to reference material, catalogs of products, and published research, the internet is our go-to medium for finding information.

Most of us have colleagues and friends we’ve met online. We follow the ongoing work of journalists and writers. We enjoy the community created by sharing clips of our favorite sports teams and athletes. We love sharing our hobbies and seeing the work others have created. The internet is especially enjoyable in this respect for people with more niche interests. Someone with a one-in-a-million hobby may only have a handful of similar people in their city, but they can connect online with hundreds or thousands of people with similar passions.

Even more crucially, the ability to organize on the internet allows members of traditionally marginalized populations—from racial minorities to LGBTQ people to those with disabilities or longterm illnesses—to function in a world that all too often wants to shut them out (or worse). The internet allows people to make connections with others who understand their struggles, and possibly more importantly, allows them find life-saving resources. That’s especially true for teenagers in those groups.

Autonomy over Identity and Experience

Twenty years ago, if you wanted to switch to a new cellphone carrier, you had to surrender your number. We recognized that this was not in the interests of anyone but the cellphone companies and created laws guaranteeing our rights to our phone number, regardless of whom we chose as a carrier. We should expect the same kind of autonomy over the identities we assume online, and for the same reason. Our phone numbers form part of our public identity. It’s easy to see why we don’t want a private corporation to exercise veto power over our ability to choose a different carrier (or phone).

We experienced similar frustrations when carriers demanded to decide what brands of cellphones we should be allowed to have. Some people prefer iPhones; others Android (and others neither). A variety of devices are now available across carriers. Typically, if you switch carriers, you can take your phone with you as well as your number. We don’t allow the carrier to dictate the whole phone experience.

We would rightfully object if corporate America attempted to dictate that we could only watch Disney content (including ESPN) on Disney TVs and Netflix content only on a TV sold by Netflix. Why then do we accept that we can only view the content created by our favorite sports teams, celebrities, authors, musicians, and artists using only those apps dictated by Big Tech?

It’s important that we as individuals be able to maintain autonomy over our online identities, making sure that people can follow us to other social media platforms when we leave, just as easily as our friends could reach us on our existing cell phone number when we left AT&T for Verizon. Similarly, it’s important that we be able to control our experience interacting with online content. Why should we accept having to use Meta’s app to view content created and published on Instagram, any more than we would accept having to use Paramount’s TV to watch Syracuse play basketball in March (Paramount owns CBS)?

Anonymous and Pseudonymous Access

We all assume different identities in ordinary life. We often dress differently for work or church or school functions than we do for the gym or a weekend BBQ at the lake. We commonly use titles and last names in formal public settings, while first names are more common among friends and colleagues. We may even be stuck with childhood nicknames with our parents or old friends. Online life shouldn’t have to be different. Potential employers don’t need to see the goofy pictures of my cats that I share with my siblings; my mother shouldn’t expect to scroll through the highly technical work I share with colleagues. Additionally, the ability to exist online under a pseudonym allows members of marginalized populations to ask the more difficult or fraught questions that are nonetheless important, without worry about repercussions from employers or family.

Unfortunately, there are also many cases of ordinary, or even ethical, behavior being punished by families, communities, employers, and the government. Whistle-blowers are often prosecuted (or worse). Union organizers and community organizers are frequent targets of retributive actions by the powerful. Women are threatened and even jailed for seeking basic reproductive healthcare. Victims of domestic violence—both adults and children—are systematically isolated by abusive partners or parents. And teenagers struggling with their sense of identity or sexuality all too often find themselves ostracized, or even cast out, by families whose beliefs don’t include compassion for those unlike themselves.

Every person described in the preceding paragraph has a compelling need to be able to reach out online, whether just for information, or to make contact with organizations in a position to help. But they can’t do that if making the request, or even just running the search, requires use of their legal identity. Anonymous and pseudonymous access to the internet can be (and certainly is) abused. But it’s a literal lifeline for many who are otherwise very alone in a hostile world.

“Big Tech” Business Model

“Senator, we sell ads.” Meta founder and CEO Mark Zuckerberg delivered that line in his testimony to the U.S. Senate in April of 2018. It certainly remains true today. Both Meta (Facebook/Instagram/Whatsapp) and Alphabet (Google) derive a huge portion of their revenue by selling ads. They can make billions of dollars selling ads because billions of us spend hours every day using their apps and websites. The more time we spend on their apps and websites, the more ads they can sell.

The fact that we might want to spend our time online on other apps or websites, or that we might want to spend our time not looking at a screen at all, is a threat to their ability to sell ads. Their apps are very carefully and deliberately engineered to maximize our time using them, whether it’s constantly checking for new “likes,” endlessly scrolling for new content, or angrily commenting on someone else’s hateful post. Big Tech and Big Ad don’t care that it might be bad for us: they want our engagement and attention.

An app that might allow us to view content shared by our favorite celebrity, sports team, musical group, artist, author, or even just a local business encouraging us to try their new taco special this Tuesday, without us seeing an advertisement, is a threat to their business.

SAFE for Kids Act

With all that in mind, we can begin to consider the SAFE for Kids Act. At its core, it purports to address that last issue: addictive features. Unfortunately, its fundamental definition begs the question. The act defines “addictive feed” in such a way that it captures much of what we expect a modern website or app to do. Just about every useful thing described in the previous section qualifies as an “addictive feed” under the bill’s definition. After the definition’s first word, the bill makes no mention of any addictive feature or property.

Even if the definition were productive, the bill doesn’t actually require platforms to provide an environment free of addictive features (or even access to the content by other apps that might not have the same addictive features). It simply allows access with parental permission. We’ve all clicked “agree” countless times for countless apps and websites. Why would parents behave any differently here? The bill does require that apps provide parents with the means to restrict an app’s ability to send notifications in the middle of the night. Unfortunately, it doesn’t require that option to be available for everyone, only “covered minors.” Parents who might be in need of sleep are left out. If we want to maintain some semblance of control over our own online experience, this bill will not help us.

The bill requires that anyone providing an “addictive feed” (which, remember, includes just about any modern website or app) must use “commercially reasonable methods to determine” if a user is a minor. Unfortunately, there is no technically feasible way to apply that test only to minors: every New Yorker will be required to verify their age.

Age verification requires identify verification. While the bill requires that “information collected for the purpose of determining a covered user’s age…shall not be used for any purpose other than age determination,” there isn’t existing technology to support the requirement. Any age verification service will need to send information to any website requesting the information. The verification service will then have a record of what website or app the person is using. The age verification service might not be covered by New York Law. Indeed, one of the leading “commercially reasonable methods” for verifying a user’s age is provided by MindGeek, the Canadian company best known as the owner and operator of PornHub. I don’t particularly want to give them my information, let alone that of my children, in order to sign up for services and apps online.

The bill effectively removes the ability of New Yorkers of any age to sign up for websites and apps anonymously or pseudonymously. As we noted earlier, it’s vital—in some cases a matter of life and death—that this ability be preserved to protect already marginalized people.

These requirements: the need to verify a user’s age, the need to provide the functionality to opt-out, and the need to provide parents with the ability to change notification settings based on a user’s age and the time of day, will be relatively trivial for multi-billion dollar companies like Meta and ByteDance (the owner of TikTok). But in order for the internet to continue to be a source of high-quality information, and a tool to build communities among real people, we need smaller entities to build and operate websites and apps. These requirements will likely be prohibitively expensive for any number of community groups, non-profits, political campaigns, local churches, and small businesses who want to provide an alternative to the ad-driven, attention-seeking commercial products provided by Big Tech. Rather than protecting our kids (and all New Yorkers), the SAFE for Kids Act will only serve to further entrench the very companies we need to keep in check.

While the goal of liberating our children and teenagers from websites and apps that have been meticulously engineered to capture their attention is a noble one, this bill falls short. It attempts to solve a very real problem. Clearly, we must do something. This is something. But very clearly, we must not do this. Please oppose the SAFE for Kids Act in its current form.

Sincerely,

Samuel B. Johnson

Filed Under: addictive design, ny, protect the children, safe for kids act

New York's Mental Health Response Pilot Program More Responsive, Less Likely To End In Hospitalization Than Sending Out Cops

from the conclusions-that-should-have-been-obvious-from-the-outset dept

Earlier this year, the city of New York announced plans to send mental health professionals out to deal with mental health issues, rather than the standard-issue cops-and-EMS response teams. It’s an idea that’s gained recent popularity, given the difficulty law enforcement officers seem to have when dealing with things they’re not specifically trained to handle. And by “difficulty,” I mean a lot of people who need professional help were instead being “treated” with force deployment, arrests, and the far-more-than-occasional killing.

It’s an idea so simple and intuitive it’s a wonder it’s taken this long to be experimented with in a small number of cities. The success stories seen elsewhere indicate this is something worth trying, if for no other reason than to free up limited law enforcement resources to handle the sort of thing law enforcement officers are trained to handle.

The results [PDF] are back on the trial run of New York City’s “B-HEARD” (Behavioral Health Emergency Assistance Response Division) and they’re similarly encouraging. (via Insider)

It was a limited deployment, but a successful one.

Under the pilot, teams operate seven days a week, 16 hours a day in Zone 7, which includes East Harlem and parts of Central and North Harlem in the 25, 28, and 32 police precincts. In 2020, there were approximately 8,400 mental health 911 calls in Zone 7, the highest volume of any dispatch zone in the city. During the 16 hours a day when B-HEARD teams were operational from June 6 – July 7, 2021, there were approximately 16 mental health 911 calls each day in Zone 7.

B-HEARD doesn’t handle calls that involve weapons or “immediate risk of violence,” but the team still handled 25% of all mental health emergency calls. The number would likely have been higher with more coverage, as police were routed to some calls when B-HEARD members were unavailable or in the midst of handling a call.

Despite these limitations, the B-HEARD team provided more help to more people than the traditional police response would have.

In 95% of cases, people received assistance from B-HEARD teams, higher than 82% for traditional (NYPD/EMS) 911 response.

So, greater responsiveness. And rather than simply turf mental health calls to the nearest hospital, B-HEARD teams were able to provide on-site help. The traditional (police-EMS) response resulted in 82% of calls ending with a ride to the hospital. With B-HEARD, the number dropped to 50%. One-quarter of all calls handled by B-HEARD were taken care of on-site, including de-escalation and referrals to counseling or other care options. Another 20% of cases resulted in B-HEARD transporting persons to community-based care locations.

And the police are more apt to call in B-HEARD than the other way around, suggesting officers are happy to utilize mental health care professionals if they’re available.

NYPD has requested onsite assistance from B-HEARD 14 times.

B-HEARD teams have requested onsite assistance from NYPD 7 times.

There’s no reason this shouldn’t continue to work. And it should scale easily. Should. A lot depends on talking entities like the NYPD into diverting some of their (outsized) budgets towards hiring team members and funding their continued existence. If officers on patrol are utilizing the new teams, they obviously see the value of having mental health professionals on call. And if the beat officers can see the benefits, hopefully the brass isn’t so disconnected from day-to-day operations that it would stand in the way of helping both the officers they oversee and the people who are paying the NYPD to keep them safe.

Filed Under: b-heard, mental health, ny, nyc, nypd, police

New York Residents Unprotected, Served Up To Criminals By NYPD Employees

from the YEAH-BUT-WE'RE-THE-ONLY-GAME-IN-TOWN dept

Yeah, it’s real easy to sit back and second guess the hard work of law enforcement officers. Secure and safe in our warm homes, far away from the mean streets and thin blue line separating us from the criminal apocalypse, we have it easy. As one of the NYPD’s unions pointed out, citizens like us are clueless. We’ve (and I’m directly quoting here) “grown up on the nipple of what’s easy.” We “have no clue what a NYPD officer does,” and yet we criticize and disparage them.

Then one day — after years of criticism and disparagement and [re-reads tweet] nipples — we’ll find we need them. “Evil will be at our door,” as the NYC PBA says. When that happens, we cop-haters will call for help. We will finally recognize we need them. After all, when all hell breaks loose, who else is going to respond to our calls for help and… um… sell our personal info to insurance scam artists?

Six current and former NYPD employees, which included one cop and five 911 operators, were arrested by the feds as authorities smashed a massive $18 million New York insurance fraud operation, the Daily News learned Thursday.

Police Officer Yaniris Deleon was taken into custody in Manhattan while on duty Wednesday after federal agents surrounded her with assault weapons drawn, sources with knowledge of the case said.

[…]

Deleon, five 911 operators and a supervising 911 operator allegedly provided the medical insurance scammers with names, phone numbers and confidential information about car accident victims. The runners then reached out to the victims and steered them toward clinics that would bill medical insurance companies for treatments and procedures they didn’t need.

This is fantastic news for first responders and New York’s Finest. Not so much because it makes some “bad apples™” look bad, but because it shows them there’s a faster route to extra cash than timecard abuse.

If you give people in power access to a lot of personal info, they will abuse this access eventually. It’s not an “if.” It’s a “when.” Not everyone will abuse this access as much as these government employees did, but a wealth of personal data just a couple of clicks away is a very tempting target. Especially when it can significantly boost the income of the underappreciated heroes keeping the city safe.

According to this report, these employees made about 4,000amonthfromfeedingpersonalinfotoscamartists.Italsosaysoperatorswerepromisedabout4,000 a month from feeding personal info to scam artists. It also says operators were promised about 4,000amonthfromfeedingpersonalinfotoscamartists.Italsosaysoperatorswerepromisedabout24-30,000 “off the books” for continued supply of contact info, so it’s unclear how much any of the arrested employees actually made assisting scammers. However, this selling of personal data allegedly dates back to 2014.

But the officer and 911 operators were only making pennies on the dollar. The middle men were making themselves millionaires.

The scammers received about 3,000areferraltoattorneysandshadydoctors,accordingtocourtpapers.Thegroupmadeabout6,000successfulreferralsoverthelastfiveyears,nettingabout3,000 a referral to attorneys and shady doctors, according to court papers. The group made about 6,000 successful referrals over the last five years, netting about 3,000areferraltoattorneysandshadydoctors,accordingtocourtpapers.Thegroupmadeabout6,000successfulreferralsoverthelastfiveyears,nettingabout18 million, officials said.

The names, addresses and contact numbers for about 60,000 car accident victims were steered to the scam artists over the last five years, officials said.

Oh my. This is going to lead to a whole lot of litigation. Government employees misusing their power and access to serve up citizens to scam artists is the sort of abuse that can’t be handled solely through prosecution. The government may go after the involved employees and everyone on the non-government side who benefited from this arrangement, but plenty of residents are going to be legitimately pissed that the government they were told to trust sent them off to undergo unnecessary medical procedures.

Maybe this set of prosecutions will act as a deterrent. Or maybe it will just be seen as the exception to the rule, and abuse of access will continue at its normal pace. Whatever the result, at least more citizens will be aware how much damage the government can do with all the information it demands we relinquish in exchange for government goods and services.

And they’ll see how much of this “thin blue line” crap is self-righteous bullshit. The blue line doesn’t stand between civilians and evil. It stands between cops and accountability. Because if anyone took accountability seriously, this sort of thing would be far rarer than it is. It only becomes common when few people are worried about the potential downsides of abusing their positions. And when it’s common practice, that’s when people start getting caught.

Filed Under: 911, fraud, insurance, medical fraud, medical insurance fraud, ny, nypd, scams

NY Investigates Frontier Communications As US Telcos Slowly Implode

from the ill-communication dept

Thu, Aug 22nd 2019 03:18am - Karl Bode

We’ve long explored how the nation’s phone companies don’t really even want to be in the broadband business. They routinely refuse to upgrade their networks despite millions in subsidies, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. US telcos have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It’s not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second broadband option.

This dynamic often results in some absurd dysfunction. Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest.

Things haven’t been much better for the telco in states like Minnesota, where it’s under investigation for failing to upgrade — or even repair — its shoddy networks. The same thing is also going on in New York, which just opened a renewed investigation after being inundated in complaints about terrible service:

“NY Public Service Commission (PSC) staff reported “that several Frontier Communications subsidiaries have significant service-quality problems, including escalating complaint rates, lengthy repair durations, and localized network reliability issues,” a PSC announcement Thursday said. PSC staff is seeking more detailed information from Frontier on customer trouble reports and “will work with Frontier to develop and implement a plan to improve poor localized network reliability conditions,” the announcement said.

You may be detecting a theme here. Things are so bad for Frontier, the company refused to even answer questions from analysts or the press during its latest earnings call. Most analysts think the company will ultimately teeter into bankruptcy, something that may also be in the cards for similarly large, dysfunctional telcos like CenturyLink. And while this kind of market failure is bad for consumers who already lack competitive broadband options, it’s great for cable giants like Charter and Spectrum which are exploiting the US telco collapse to enjoy bigger regional monopolies than ever before.

Less competition means higher prices and no incentive to fix the cable industry’s abysmal customer service. Throw in regulatory capture at the FCC and the steady erosion of broadband consumer protections into the equation, and you should be able to see how this is recipe for even bigger problems.

Filed Under: broadband, investigation, ny
Companies: frontier

Appeals Court Rules That GTA5 Didn't Infringe On Lindsay Lohan's Likeness Rights

from the now-please-go-away dept

While there are absolutely far too many Techdirt posts featuring celebrity(?) Lindsay Lohan in these pages, most of them deal with one specific issue: her lawsuits against Take Two Interactive. At issue was a character Lohan insisted infringed on her likeness rights because the character is a drunk driver, public-fornicator, and has a backstory as a child actress. If Lindsay wants to insist that her own history lines up with that sort of backstory, I guess I won’t argue with her, but the character has many other aspects that clearly have nothing to do with Lohan. Instead, the character is a parody of the sort the GTA series is famous for, with the target in this case being young celebrity stars and starlets. Coming along for the ride was Karen Gravano, who participated in a reality show about the wives of reported mobsters. Gravano sued over another character in the series with her filings essentially mirroring Lohan’s. Take Two won both lawsuits, both on First Amendment grounds and due to the court finding that the characters were composite parodies, not representations of either Lohan or Gravano. Both plaintiffs appealed.

And now the New York Court of Appeals has ruled in favor of Take Two again in both cases.

Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law article 5.

You can read the full opinion here, but suffice it to say that this should be the end of this nonsense from Lohan. At the same time, the court also ruled on Gravano’s appeal, with identical findings.

Concurrently with this opinion comes a loss for ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over the character of “Andrea Bottino” in Grand Theft Auto V. The appeals court fails to see a recognizable image there as well.

That should be the end of that as well. One wonders just how much in legal fees both Gravano and Lohan were billed, with the next natural thought being just how much better such funds could have been used other than to engage in a prolonged legal fight without merit, with almost no chance of success, and over an issue that was not injurious to either party? Lohan in particular has a history of looking for paydays in the form of these types of lawsuits, but it’s difficult to see how she could be in the black at this point.

It would probably be best to simply save that money for the future.

Filed Under: grand theft auto, gta, karen gravano, likeness, lindsay lohan, ny, publicity rights
Companies: take two interactive

Supreme Court Won't Hear Case About Copyright Protection Of Pre-1972 Sound Recordings

from the and-other-news-about-pre-1972 dept

For many years now, we’ve been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection — some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn’t apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it’s easier just to say “pre-1972 sound recordings.”) And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has… made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit).

And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren’t covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law.

Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA’s safe harbors don’t apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA’s safe harbors protected that site, it argued that pre-1972 sound recordings didn’t qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit’s ruling had to be in error because it was “contrary to the considered view of the United States Copyright Office.”

The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA’s safe harbors. While the 2nd Circuit’s ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits — and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn’t see that reading as particularly egregious.

Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no “performance” right under NY’s state copyright, and thus they can’t magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California’s state copyright law provided some proto-performance right to pre-1972 works.

And, just a few days after that, the state of Georgia’s Supreme Court ruled that pre-1972 sound recordings can be played by streaming sites, and some copyright holders can’t bring “RICO” claims (IT’S NEVER RICO!!!!!!) just because iHeartRadio plays those songs.

As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn’t blocked proposals along those lines, none of this mess would have happened. That’s why I find it somewhat surprisng, that one of the RIAA’s favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more.

Filed Under: california, copyright, dmca, georgia, ny, pre-1972 sound recordings, safe harbors, scotus
Companies: riaa, vimeo

NY Legislators Looking At Installing A Free Speech-Stomping 'Right To Be Forgotten'

from the order-your-Constitution-Doormat-today! dept

New York state legislators apparently think the state’s so cosmopolitan it may as well be Europe. As Adam Steinbaugh points out on Twitter, though, local comparisons aren’t nearly as flattering.

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment. https://t.co/ERjhw6Gphi

— Adam Steinbaugh (@adamsteinbaugh) March 14, 2017

[If you can’t read/see the tweet]

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment

There’s nothing like being negatively compared to Arizona (remember the short-lived “First Amendment-protected activity is against the law” bill?) to take the gloss off the latest legislative ridiculousness. A new bill in the state legislature would make New York an outlier in constitutional protections (or no, it wouldn’t, because it wouldn’t survive a constitutional challenge, but for the sake of argument…). For no conceivable reason, the bill seeks to implement a New York-located “right to be forgotten.” How that’s supposed to work out when it’s not the law in the other 49 states remains unexplained.

§ 50-f. Right to be forgotten act.

1. Upon the request from an individual, all search engines, indexers, publishers and any other persons or entities that make available, on or through the internet or other widely used computer-based network, program or service, information about the requester, shall remove information, articles, identifying information and other content about such individual, and links or indexes to any of the same, that is “inaccurate”, “irrelevant”, “inadequate” or “excessive” within thirty days of such request, and without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing. For purposes of this section, “inaccurate”, “irrelevant”, “inadequate”, or “excessive” shall mean content, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester’s professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester’s role with regard to the matter is central and substantial.

This is a horribly-written, horribly-broad, no good, terrible-all-around proposal. I have no idea what sort of information could be described as “inadequate” or “excessive,” and the chances are information that’s truly “irrelevant” will sink to the bottom of search engine rankings soon enough.

The bill does not define any of these terms (well… not in any meaningful way), nor does it address how information that fits its inadequate definitions will be removed from the web when a great deal of hosting services lie far outside the law’s jurisdiction.

On top of that, there’s the question of what’s “material to public debate/discourse.” Who gets to decide what’s still material? The person bringing the complaint? If so, the law is entirely subjective and provides no affirmative defense for those facing charges/fines under the law. It’s as if the legislators crafting this law looked at the DMCA and decided it just wasn’t abusable enough. Citizens clearly deserve a second, more streamlined route for the removal of criticism, unflattering photos, or whatever doesn’t further the marketing of a person’s brand.

Then there’s the prior restraint. (This bill is truly breathtaking in its sheer level of unconstitutional shittiness.) The law forbids those served with a “right to be forgotten” order from discussing the government’s content removal demands.

…without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing.

It’s not just prior restraint on those served with an order. It’s prior restraint that effectively silences everyone in the law’s jurisdiction. Site A’s order and subsequent content removal can’t be discussed anywhere on that site. And Site A can’t point to other sites discussing Site A’s content removal, even if these other sites lie outside the law’s jurisdiction.

This bill should — if there’s any amount of brain activity in the NY legislature — die a swift and unceremonious death. But nothing this bad stays dead forever. It will return in some other shape or form months or years later because some people truly believe information doesn’t want to be free — it wants to be forgotten.

Filed Under: first amendment, gag order, new york, ny, prior restraint, right to be forgotten

New York AG Sues Charter For Slow Broadband Speeds, Says Company 'Ripping Off' Users With Substandard Service

from the the-George-Carlin-definition-of-customer-service dept

Wed, Feb 1st 2017 12:33pm - Karl Bode

For some time now, New York Attorney General Eric T. Schneiderman has been taking broadband companies to task for advertising broadband speeds they consistently fail to deliver. Last year, Schneiderman’s office brought in Tim Wu, Columbia professor and the man who coined the term net neutrality, to help dig into the data. With Wu as the AG’s “senior lawyer and special adviser,” Schneiderman sent letters to NYC area broadband incumbents Verizon, Cablevision and Time Warner Cable — questioning whether they actually deliver the speeds they advertise.

This morning, Schneiderman made his findings clear via a lawsuit against Charter Communications, which accuses the cable giant of “defrauding” millions of customers by advertising broadband speeds it’s incapable of delivering. According to the AG’s compiled data and full complaint (pdf), Charter routinely and consistently advertised “fast, reliable connections” that were anything but:

“The suit alleges that subscribers? wired internet speeds for the premium plan (100, 200, and 300 Mbps) were up to 70 percent slower than promised; WiFi speeds were even slower, with some subscribers getting speeds that were more than 80 percent slower than what they had paid for. As alleged in the complaint, Spectrum-TWC charged New Yorkers as much as $109.99 per month for premium plans could not achieve speeds promised in their slower plans.

The complaint also alleges that Charter (now branded as Spectrum) and Time Warner Cable (recently acquired in Charter’s recent $79 billion megamerger) knew full well they were shortchanging customers and lagging in necessary upgrades, and they just didn’t give much of a damn:

“The AG?s investigation also found that Spectrum-TWC executives knew that the company?s hardware and network were incapable of achieving the speeds promised to subscribers, but nevertheless continued to make false representations about speed and reliability. The investigation further revealed that while Spectrum-TWC earned billions of dollars in profits from selling its high-margin Internet service to millions of New York subscribers, it repeatedly declined to make capital investments necessary to improve its network or provide subscribers with the necessary hardware.”

It’s worth noting that government data fairly consistently shows that ISPs usually deliver advertised speeds. Back in 2011, the FCC began recruiting volunteers who use custom-firmware embedded routers to provide real-world broadband connection performance data. Initially, the FCC found that many ISPs didn’t deliver advertised speeds. But as the agency increasingly named and shamed the worst offenders, many ISPs began over-provisioning their broadband tiers — effectively giving users more bandwidth than was advertised. The program was a relative success, but it’s not likely to be continued under the new, more industry cozy FCC.

That said, the volume of traffic generated by New York City residents requires a little extra effort; effort that tends to not materialize when companies face limited competition. In New York, Charter acquired Time Warner Cable, whose biggest competitor was Verizon — a company that has little to no interest in even being in the fixed-line broadband market, and has taken repeated heat from New York City officials for failing to uniformly upgrade the company’s fiber network (taking subsidies and tax breaks then failing to do much with them has been Verizon’s MO for a generation).

To be clear, Schneiderman drawing attention to Charter’s failure is generally a good thing. That said, failures to track how subsidies are spent, failures to hold ISPs accountable for failed promises, the relentless thirst for consolidation, and the negative repercussions of blindly approving telecom megamergers — are all ignored by most regulators (and Schneiderman) pretty much on a weekly basis. So when someone like this comes sweeping in late in the game to protect consumers, you should probably ask why they aren’t doing more, more consistently, to protect telecom customers before the bill arrives.

With the priority in the telecom sector being megamergers, buying protectionist state laws and extracting ever-more money for the same relatively dismal service, it’s not particularly surprising that the companies offer poor service at high prices, with some of the worst customer service in any industry in America. And with a Trump-era FCC preparing to let these companies dictate telecom policy for the forseeable future, and Wall Street gushing over the idea of a possible Verizon-Charter supermerger, you’d have to use some pretty creative mathematics to suggest this scenario gets better anytime soon, belated NY AG lawsuit or not.

Filed Under: advertised speeds, broadband, eric schneiderman, ny, service
Companies: charter

Dear Eric Trump: Do Not Be Shamed Into Deleting Your Free Speech By A Dumb New York State Law

from the selfie-ish dept

We don’t do partisan politics here at Techdirt, but we sure as hell do talk about free speech rights. And, as we’ve said many times, there is probably no type of speech more deserving of protection than political speech. It’s what makes all the state laws against so-called “ballot selfies” so frustrating: they go to such great lengths battling the hypothetical evils arising from people taking and sharing photos of their completed ballots that they wind up stifling very real speech. And even as some state courts manage to understand that these laws are a clear violation of the First Amendment, states like New York have courts that don’t.

Which brings us to Eric Trump, son of The Donald, who tweeted out the following this morning.

Should you be unable to see it, Eric Trump tweeted out an image of his completed ballot, in which he voted for his father, because duh. Almost immediately several news organizations, such as the New York Daily News and The Verge, pounced on the tweet with headlines proclaiming that Eric Trump “broke the law” with the tweet. And that is really, really stupid from news organizations that should really, really know better. Institutions that rely on the First Amendment for their very existence ought not to be cheering on laws that violate it. And, really, for those of us that hate these ballot selfie bans, there is no better scenario than having a high-profile member of the public violate them, so that we can get the laws changed.

But, of course, Eric Trump deleted the tweet almost immediately. He shouldn’t have. He should have insisted on standing by his free speech rights, rights that have been fought for by many so that political speech can remain free. Whatever you might think of this election, whatever you might think of the Trump family, advocates for free and open speech are required to stand by those rights. There is no joy in seeing the press shame Eric Trump into deleting his ballot selfie tweet. He should instead put it back up, stand by it, and have pride in his right to post it. And if that means defending that right against a constitution-violating state law, then so be it. It’d certainly be the patriotic thing to do.

Filed Under: ballot selfies, donald trump, eric trump, first amendment, free speech, ny

NY State Legislator Proposes Ban On Sale Of Encrypted Smartphones

from the never-too-late-to-give-a-bad-idea-another-shot dept

It appears someone’s listening to ~~local crackpot~~ New York District Attorney Cyrus Vance’s demands that encryption be outlawed to make law enforcement easier. His “white paper” didn’t have the guts to make this demand, instead couching it in language stating he would be completely unopposed to a legislative ban on encryption, but that he wasn’t going to be the bad guy asking for it.

A month later, as the mockery of his encryption white paper died down, Vance decided he would be the bad guy and openly stated that if Apple wasn’t going to give him what he wanted, it could be forced to do so by the government. Lo and behold, New York ~~Senator~~ Assemblyman Matthew Titone has answered Vance’s call for action. In what is likely the nation’s first proposed ban on encryption, Titone’s introduced bill forbids the sale of smartphones that can’t be cracked by their manufacturers. (h/t Nate Cardozo)

ANY SMARTPHONE THAT IS MANUFACTURED ON OR AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN, AND SOLD OR LEASED IN NEW YORK, SHALL BE CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER.

THE SALE OR LEASE IN NEW YORK OF A SMARTPHONE MANUFACTURED ON OR AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN THAT IS NOT CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER SHALL SUBJECT THE SELLER OR LESSOR TO A CIVIL PENALTY OF TWO THOUSAND FIVE HUNDRED DOLLARS FOR EACH SMARTPHONE SOLD OR LEASED IF IT IS DEMONSTRATED THAT THE SELLER OR LESSOR OF THE SMARTPHONE KNEW AT THE TIME OF THE SALE OR LEASE THAT THE SMARTPHONE WAS NOT CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER.

This isn’t Titone’s first attempt at this legislation, something that can be gleaned by the fact that the proposed legislation still contains wording suggesting January 1, 2016 is still somewhere off in the future. This bill made its debut last year, roughly nine months after Apple announced its plan to offer encryption by default.

The proposed legislation was introduced in the Committee on Consumer Affairs and Protection [wft?] on June 8th, 2015. Nothing happened then, but a new legislative session is upon us and Titone re-submitted his bill to the same committee last week.

There has been no fanfare accompanying this twice-submitted legislation, most likely due to it potentially toxic side effects. Even Titone’s own Senate page — where press releases seem to accompany all of his other sponsored bills — has nothing to say about this one. Still, the bill has attracted two co-sponsors: Walter Mosley and Patricia Fahy.

Interestingly, or perhaps more accurately, infuriatingly, the bill would hold retailers responsible for manufacturers’ actions. Apple Stores would apparently be unable to sell any smartphones and every service provider would have to eliminate any phones with default encryption from their lineups.

The wording isn’t a ban on encryption, per se. But it does make the sale of encrypted phones illegal — pretty much accomplishing the same thing without having to require backdoors or forbid manufacturers from offering default encryption in the other 49 states. That latter part is the loophole New York can’t close, even if this stupid piece of legislation passes.

New York’s sky-high tobacco taxes have turned New York City into a massive secondary market for cigarette cartons that fell off a truck/were purchased across state lines. This would basically do the same thing for smartphones, creating a market for phones purchased in other states but deployed in New York. The bill doesn’t even attempt to address this loophole, laying pretty much all of the culpability at the feet of local resellers. Purchasers aren’t forbidden from deploying their own encryption and secondhand phones containing built-in encryption can be bought and sold without fear of repercussion.

In all likelihood, Titone’s bill will die another death on the cold hard assembly floor. The bill is bad in multiple ways, but not in any of the ways immediately appealing to undecided politicians. The spiel accompanying the bill attempts to press all of the right buttons (“_There is no reason criminals should also benefit, and they will, as people will be defrauded or threatened, and terrorists will use these encrypted devices to plot their next attack over FaceTime…_“), but informing the nation’s largest phone manufacturers that their products can’t be sold in New York isn’t exactly the sort of message many legislators are willing to send

Filed Under: cyrus vance, encryption, going dark, matthew titone, mobile encryption, ny, patricia fahey, walter mosley
Companies: apple