Clearview's attempt to dodge a potential class-action lawsuit filed against it in Illinois has just been booted back to the Illinois court system by the Seventh Circuit Court of Appeals.

Clearview -- facial recognition's current supervillain -- was sued in Illinois by Illinoisans alleging violation of Illinois law. Multiple times.

The plaintiffs claimed Clearview's scraping of publicly available photos, location data, and other information from a variety of websites and social media platforms violated the state's law, which requires companies to obtain permission from people before harvesting and selling access to this data.

This same law netted a $550 million settlement from Facebook for its preemptive tagging of people in photos, something a court found to be a violation the law passed by the state in 2008. This settlement appeared to rattle Clearview, which filed documents with the court stating it would no longer do business in Illinois or knowingly collect biometric information from Illinois residents.

This lawsuit continues, however, thanks to the Seventh Circuit. In a somewhat novel move, the plaintiffs argued they do not have standing to pursue this lawsuit in federal court. Clearview argued otherwise, hoping to establish enough standing to take the lawsuit federal, at which point it would agree the plaintiffs did not have enough standing to move the case forward.

It's not often plaintiffs argue against their own standing, but the plaintiffs want this case in a state court, where they can pursue Clearview for violation of state laws. The only federal hook is Clearview's existence as a Delaware corporation headquartered in New York. State courts will normally allow lawsuits like these to be moved to federal court because the plaintiffs and defendant aren't located in the same state.

The district court, however, agreed with the plaintiffs: they did not allege any federal harms or anything else that would make the case better served at the federal level. The opening of the Seventh Circuit's opinion [PDF] highlights the bizarre nature of this appeal:

Oddly, [plaintiff Melissa] Thornley insists that she lacks standing, and it is the defendant, Clearview AI, Inc., that is championing her right to sue in federal court. That peculiar line-up exists for reasons that only a civil procedure buff could love: the case started out in an Illinois state court, but Clearview removed it to federal court. Thornley wants to return to state court to litigate the BIPA claims, but Clearview prefers a federal forum. The case may stay in federal court, however, only if the more stringent federal standards for standing can be satisfied; Illinois (as is its right) has a more liberal attitude toward the kinds of cases its courts are authorized to entertain. The district court held that Thornley has alleged only a bare statutory violation, not the kind of concrete and particularized harm that would support standing, and thus ordered the action remanded to the state court.

The court notes this reversal of roles has led to an equally unusual appeal. Normally, plaintiffs argue in favor of their standing to sue. In this case, the plaintiffs are arguing against this because it runs contrary to their interests and in favor of Clearview's. After examining far more precedent than one would imagine would be on hand, the Appeals Court says the case must exit the federal court system and return to Illinois.

The Appeals Court says the plaintiffs are free to craft their allegations as narrowly as they'd like. And as much as Clearview would like to be accused of even greater violations to (briefly) take the case federal for an easier dismissal, it's not up to the courts to tell plaintiffs how to craft their arguments or shuffle things from state to federal just because something a federal court could handle could plausibly be alleged.

[Thornley] does not contest either the existence of minimal diversity (she is a citizen of Illinois, and Clearview is a citizen of Delaware and New York) or the fact that more than $5,000,000 is at stake. Instead, she has simply offered a class definition that is narrower than it might have been. We have no reason to believe that the district court, acting on its own initiative, would certify a different and broader class; to that extent, the rule that the plaintiff controls her own case applies. And unlike the situation in Standard Fire, people who fall outside Thornley’s class definition are totally unaffected by this litigation. If they wish to sue Clearview, either alone or under a class definition that includes an allegation of injury, they are free to do so. Indeed, as we noted earlier, there are a number of class actions pending against Clearview, many of which appear to be broader than this one. We know of nothing that would prevent a putative class representative from taking a conservative approach to class definition. And if the plaintiffs change their tune in the state court, Clearview will be able to attempt to remove again to federal court, though we do not predict the outcome of such an effort.

Clearview's counterintuitive attempt to make a federal mountain out of the plaintiff's state molehill fails. The case remains in the state court system and limited to a specific violation of state law. Clearview will still have to defend itself against these claims.

Summary: Philippines president Rodrigo Duterte's rise to power was greatly aided by Facebook and its overwhelming popularity within the country. An estimated 97% of Filipinos have Facebook accounts and the company itself co-sponsored a Q&A session with local journalists that was broadcast on 200 radio and television stations and livestreamed on the platform. Questions were crowdsourced from Facebook users, helping propel the mayor of Davao to the highest office in the country.

Duterte's run for office was also directly assisted by Facebook, which flew a team of reps in to help the candidate's campaign staff maximize the platform's potential. As his campaign gathered critical mass, he and his team began weaponizing the tools handed to him by Facebook, spreading misinformation about other candidates and directly targeting opponents and their supporters with harassment and threats of violence.

Not much has changed since Duterte took office in 2016. Facebook continues to be his preferred social media outlet. But Facebook's latest attempt to tackle the spread of misinformation on its platform may prompt Duterte to find another outlet to weaponize. In September 2020, Facebook's moderation team announced they had removed a "network" linked to the Philippines government for violating its rules against "coordinated inauthentic behavior."

We also removed 64 Facebook accounts, 32 Pages and 33 Instagram accounts for violating our policy against foreign or government interference which is coordinated inauthentic behavior on behalf of a foreign or government entity. This network originated in the Philippines and focused on domestic audiences. (Updated on October 12, 2020 at 6:35PM PT to reflect the latest enforcement numbers.)

Facebook's removal of this content prompted immediate comments from President Duterte. The president's response to Facebook's moderation efforts was a reminder from Duterte that he has the power to shut the platform down in his country if he believes he's being treated unfairly.

“I allow you to operate here,” Mr. Duterte said. “You cannot bar or prevent me from espousing the objectives of government. Is there life after Facebook? I don’t know. But we need to talk.”

Questions and policy implications to consider:

• Does targeting official government accounts increase the risk of the platform being banned or blocked in targeted countries?
• Does the possible loss of market share affect moderation decisions targeting governments?
• Should Facebook be directly involved in setting up social media campaigns for political figures/government entities?
• Does Facebook have any contingency plans in place to mitigate collateral damage to citizens in countries where the platform has been subjected to retaliatory actions by governments whose content/accounts have been removed?

Resolution: Facebook's Philippines office offered no comment in response to Duterte's threats and the targeted accounts remain deactivated. Facebook is still operating in the country and, although Duterte threatened harsher regulation may be in the works, nothing has surfaced to date.

Originally posted to the Trust & Safety Foundation website.

Last summer we covered how Trump had hired Michael Pack, a protégé of Steve Bannon, to run US Agency for Global Media. USAGM is the organization that runs Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, and Middle East Broadcasting. It also runs the Open Technology Fund (which itself spun out of Radio Free Europe, and helped to fund a variety of important technologies for enabling free speech among dissidents and activists). It was clear from the beginning that Pack's plan was to (a) recraft the media organizations to be propaganda machines and (b) shift OTF's funding to some organizations with security/encryption techniques that were not widely trusted. Pack fired a bunch of people in a move that a court later rejected, noting that Pack did not have the authority to do so.

He also began a witch hunt at Voice of America, seeking to investigate journalists for "anti-Trump bias" and get rid of them. A reporter who asked a perfectly reasonable question to Mike Pompeo was reassigned.

As we pointed out, this kind of meddling, beyond likely breaking the law, was also doing tremendous damage to the credibility of these organizations, and certainly to the important technical work that OTF funds.

So it was good to see that one of Biden's first moves upon getting into office was to demand Pack's resignation and also to shuffle the leadership at Voice of America.

In an act of true projection, on the way out the door Pack whined about how being fired was a partisan act and would harm credibility. This is all bullshit. From day one, Pack was a partisan hack who tried to turn Voice of America into a pro-Trump media organization.

Whether or not people like or appreciate the work that USAGM and its various organizations do, there is no doubt that Pack's efforts harmed those organizations' credibility. Good riddance.

Surprising no one who understands anything about international trade, the UK's departure from the EU -- Brexit -- is proving to be disastrous for its economy. Among the latest victims are Scottish fishermen, who are no longer able to sell their catches to EU customers, and the UK meat industry, which has tons of rotting pigs' heads on its hands. And it turns out that Brexit will be making copyright worse too.

It concerns the slightly obscure area of what are traditionally called "orphan works", although "hostage works" would be a better description. Whatever you call them, they are the millions of older works that are out of print and have no obvious owners, and which remain locked away because of copyright. This has led to various proposals around the world to liberate them, while still protecting the copyright holders if they later appear and assert ownership. One of these proposals became the 2012 EU Directive "on certain permitted uses of orphan works". It created a new copyright exception to allow cultural institutions to digitize written, cinematic or audio-visual works, and sound recordings, and to display them on their Web sites, for non-commercial use only. As Techdirt noted at the time, the Directive was pretty feeble. But even that tiny copyright exception has been taken away in the UK, following Brexit:

The EU orphan works exception will no longer apply to UK-based institutions and will be repealed from UK law from 1 January 2021.

UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before 1 January 2021.

Now, in order to use orphan works in the UK, people must pay a recurring license fee based on the number of works involved. As a result, the British Library has started withdrawing material that it had previously digitized under the EU orphan works directive:

As many of you know, back in 2015 the British Library, working closely with partners at Jisc's Journal Archives platform and with copyright holders, digitised and made freely available the entire run of Spare Rib magazines. We are delighted that this resource, documenting a vibrant and important period of women's activism in the UK, has been so well used by researchers and those interested in the Women's Liberation Movement.

It is therefore with considerable regret that we are confirming that the resource, as a result of the UK leaving the European Union, will no longer be available following the end of the transition period. The decision to close down the Spare Rib resource once the UK leaves the EU was made on the basis of the copyright status of the digitised magazine, which relies heavily on the EU orphan works directive.

Brexit was sold on the basis that it would make things better in the UK. And yet the change to copyright brought about by Brexit turns out to make things worse for scholars and the general public. It seems that pigs' heads are not the only thing rotting thanks to Brexit.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Last summer, as anti-police brutality protests were in full swing, a Lafayette man posted an obviously bogus Antifa call to action on his "cajUUn Memes" Facebook page. The announcement called for "cajun comrades" to rise up and engage in a takeover of the River Ranch neighborhood.

Anyone with half a brain reading the post would have known it was a joke. It contained references to marijuana (the group was to meet at 4:20 pm) and asked that only "card carrying members" of Antifa show up. There was also the line: "Arms optional. Legs encouraged."

For some reason, neither the mayor nor the local police department got the joke. The mayor issued an official statement about the city's "zero-tolerance policy for threats to life and property" and a police spokesperson said the PD would be monitoring the event despite there being "no credible evidence" the planned takeover of River Ranch would take place.

The day came and went without any Antifa uprising taking place. That should have been the end of it. It wasn't. Two months later, the Lafayette Parish government sued John Merrifield, the man behind the joke post.

The lawsuit, filed in the 15th Judicial District in Lafayette, alleges John Merrifield cost the city-parish government money when he created two fake Facebook events that said ANTIFA would show up in the city's high-end River Ranch community and the Acadiana Mall.

The lawsuit seeks an unspecified amount of damages of less than $75,000.

"I think he should bear the brunt of some of the costs, if not all of the costs, that his actions cost the taxpayers," Mayor-President Josh Guillory said on his Thursday morning radio show.

Obviously a ridiculous take on what happened. Some monitoring by the PD occurred and Mayor Guillory got suckered into issuing a statement decrying a bogus Facebook event that was quite obviously a joke. According to the Mayor, some overtime money was spent. But that should be on him and the police department. There was no credible threat according to the PD itself, so any extra expenditures were clearly unjustified.

Merrifield's response to the lawsuit was less than contrite.

"Fool you once, shame on me. Fool you twice, shame on you," he said. "I’m not going to apologize to the citizens of Lafayette who were gullible enough to fall for a satire event created by a comedy meme page run by a satirist and comedian twice."

So, the parish took the man to court. And, you would assume, that would have been the end of it once a judge had a chance to review the government's ridiculous claims. But, no, this is Louisiana, where laws are weird and law enforcement easily duped.

A pair of fake Antifa rally event pages posted on Facebook by comedian John Merrifield are not protected by the First Amendment, Judge Ed Broussard of the 15th Judicial District Court in Lafayette ruled Monday. He allowed the lawsuit for damages, filed in September by Lafayette Consolidated Government, to proceed.

[...]

Broussard said Merrifield's "First Amendment right was not applicable" to the events because they "imply illegal activity or violence," referencing a state law that prohibits false statements that prompt an emergency response, which Adley argued the posts violated.

This insane ruling is being appealed. And now Merrifield has the EFF on his side. An amicus brief [PDF] filed by the EFF points out the obvious: speech doesn't become less protected just because the government didn't get the joke.

Fake Facebook events have been a part of online discourse ever since Facebook rolled out this feature. Faux events have placed mega-celebrities at mundane locations (Drake performing live at the Cheesecake Factory; Third Eye Blind performing at Lenscrafters).

The fake events also tend to pop up in response to newsworthy events.

[P]rank events have been used in a variety of situations, such as to lighten the stress and tension that accompanies an approaching natural disaster. Hurricane Florence in 2018, spawned several such satirical events. A musical instrument store in Cary, North Carolina "hosted" a pretend "Blow Your Saxophone at Hurricane Florence" event on September 18, 2018. Another user created a "Tell Hurricane Florence to Stop" event, scheduled for the "Atlantic Ocean." There were also events to "Boycott Hurricane Florence," "Take Hurricane Florence and PUSH it Somewhere ELSE!," "Bark at Hurricane Florence So It Will Go Away," "Yell 'Fake News' At Hurricane Florence," and, combining social media activities, "Angry Tweet at Hurricane Florence."

While some parody and satire may be more easily identified, failing to comprehend something is satirical is a failure of the reader, not legitimate subject matter for a lawsuit.

Merrifield's speech is clearly protected, says the EFF. And the state judge who ruled otherwise is wrong.

Although there are situations in which facetious speech may be actionable, it cannot support a legal claim that requires an affirmative intent to reach a harmful result. Under the First Amendment,"an actual subjective intent to produce future criminal consequences is required to transform 'protected' into 'unprotected' and legitimately proscribable speech." City of Baton Rouge v. Ross, 654 So.2d 1311, 1337 (1995). As this Court has held, speech is not incitement unless it was "directed or intended toward the goal of producing imminent lawless conduct," and does not extend to that speech which unintentionally inspires others to such imminent lawlessness. Byers v. Edmonson, 826 So. 2d 551, 555-56 (La. Ct. App. 2002). Like the copycat cases addressed in Byers, facetious speech does not support any permissible inference that the speaker intended to assist criminal conduct.

Anyone who legitimately thought a call for Cajun, card-carrying, Antifa members to rise up and storm an exclusive neighborhood was a credible threat probably works for the Lafayette Parish government. The posting wasn't exactly subtle. Just because the mayor didn't get the joke and the PD decided to blow payroll on "monitoring" an admittedly incredible "threat" doesn't mean they get to walk over the First Amendment in an attempt to make a jokester literally pay for the Parish's screwup.

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A lawsuit [PDF] against Google over ad practices and search engine rankings has been dismissed. The allegations start normally before taking a sharp turn into some recently favored causes of action. First, there's the RICO. Second, the plaintiff claims the RICO and everything that goes with it is a result of Google's anti-conservative bias.

Here's the most coherent part of the allegations:

Plaintiff operated a website, https://seniorcare.care/ (“the website”), from 2014 to 2019 that aimed to connect caregivers and assisted living professionals with seniors and families. Between 2016 and 2018, Defendant communicated with Plaintiff through emails, chat rooms, and blogs and induced Plaintiff to make changes to the website to conform with Defendant’s standards and to optimize the number of visits to the website, which Plaintiff did at great cost and expense.. For example, Plaintiff made the website “mobile friendly,” increased the website’s security, created social media accounts, and removed certain ads and pop-up content. Plaintiff made these changes in reasonable reliance on Defendant’s promise that they would improve the search results for the website on Google Search.

That's the end of the reasonable part of the complaint. The next two sentences indicate where this is headed.

Defendant, however, had “blacklist[ed]” Plaintiff and intentionally manipulated Google Search’s algorithms in a way that actually worsened the website’s search results. Defendant did this because conservatives own and operate Plaintiff.

Because of this perception, a lawsuit was filed in May of last year. In addition to claims of anti-conservative bias, the plaintiff lists RICO, Florida's RICO analogue, and the usual tortious interference. Oh, and there's a demand for $90,000,000 in damages. That, or Google agrees to dissolve itself. You know, reasonable demands.

And here's the RICO part of it:

These entities and individuals “operated with a common purpose” to discriminate against and censor conservatives and to damage businesses that conservatives run.

This, too:

Defendant engaged in at least two acts of wire fraud to accomplish this purpose.

The RICO claim fails for a very simple reason: a conspiracy needs more than one "conspirator." Otherwise, there's no conspiring.

Plaintiff has not plausibly alleged the existence of two distinct entities. To the extent that Plaintiff contends that Defendant was part of an enterprise with Alphabet, Inc. and YouTube, Plaintiff has not alleged any facts to support a conclusion that these related corporate entities are distinct for RICO purposes, rather than one corporate “person.” To the extent that Plaintiff contends that Defendant was part of an enterprise with its officers, agents, or employees, or with Alphabet, Inc.’s or YouTube’s officers, agents, or employees, Plaintiff has not identified any of these individuals and has not alleged any facts to support a conclusion that the individuals did not operate within their official capacities for their corporate employers.

Even if the court were to agree that multiple employees overseeing various enterprises under the Alphabet umbrella could credibly be called a "conspiracy," the plaintiff hasn't offered any evidence these many employees conspired against his business and website because the website owner is a conservative.

While Plaintiff alleges in a conclusory manner that members of the purported enterprise had a common purpose to discriminate against and censor conservatives and to damage businesses that conservatives run, Plaintiff has not alleged any facts to demonstrate that each member shared this common purpose.

And the "racketeering" part of the RICO allegations is no better. The court has stared long and hard at the complaint and can't find anything supporting the allegations made or the conclusions drawn by the plaintiff.

As best the Court can discern from the Amended Complaint, the “scheme or artifice to defraud” that Plaintiff alleges is Defendant’s scheme to suppress conservative viewpoints while claiming viewpoint neutrality. See, e.g., DE 19 ¶ 18 (“Google has defrauded hundreds of thousands, perhaps millions, of conservative Floridians in an ongoing effort to discriminate and purge conservatives from Google’s platforms.”); id. ¶ 43 (“Google fraudulently manipulated Search, and made it appear as if Lincoln did not exist.”). And, as best the Court can discern, the transmitted wire communications that Plaintiff alleges are Defendant’s email, chat, and blog communications with Plaintiff about how to conform the website to Defendant’s standards and to optimize the number of visits. See, e.g., id. ¶ 54 (“Google and its agents communicated with Lincoln in interstate commerce hundreds of times using the wires (via Google blogs/chat rooms).”). Plaintiff has not alleged facts to show how the wire communications were “for the purpose of executing” the scheme or artifice to defraud. That is, Plaintiff has not explained how Defendant’s communications about website modifications were for the purpose of furthering the suppression of conservative viewpoints.

If those communications weren't fraudulent, there's no wire fraud. For communications to be fraudulent, they need to be deceptive. That Google never informed the plaintiff of things that actually weren't happening isn't actionable.

Plaintiff’s claim of fraud relies, at least in part, on the failure of Defendant to communicate certain information to Plaintiff. See, e.g., DE 19 ¶ 15 (“Google fraudulently concealed from Lincoln the fact that Google intended to violate Lincoln’s First Amendment Rights and interfere with Lincoln’s business.”); id. ¶ 26 (“Google concealed the fact that no matter what Lincoln did, Lincoln would never obtain any Search results.”); id. ¶ 39 (“Google concealed its institutional bias from the public, including Lincoln.”); id. ¶ 62 (“In its many communications with Lincoln, Google concealed from Lincoln the material fact that Google discriminates against conservatives and that it fraudulently manipulates Search.”)

It's conjecture on top of conjecture, which isn't anywhere near what's needed to survive a motion to dismiss. That goes for the tortious interference allegations, too. There was no contract between Google and the plaintiff. Without a contract or agreement that could be interfered with, there's no basis for claims of interference.

Google argued the First Amendment protects its "editorial judgments in ranking search results" and, even if the allegations of bias were true, protects Google's biases as well. The plaintiff's response was basically, "No, it doesn't." Again, that's not nearly enough to sustain this lawsuit.

Plaintiff does not meaningfully respond to Defendant’s argument, provide any First Amendment analysis, or address this caselaw. Instead, Plaintiff simply states: “The First Amendment does not protect Google’s fraudulent conduct that induced Lincoln to change its website. Fraud and fraudulent concealment is not an ‘editorial judgment’.”

The court then points out this lawsuit is a prime example of "shotgun pleading," where every count adopts all of the proceeding allegations, resulting in the final count being a rerun of the entire pleading to that point. The court notes this makes it all but impossible for the court to suss out which allegations are tied to which cause of action, making the entire thing an incoherent mess. The complaint is dismissed, but without prejudice. The plaintiff has one more chance to amend the complaint into something the court can address on a point-by-point basis.

Even if this does return to court in better shape, it's unlikely to change the outcome. What the court could address shows the allegations are weak, conclusory, and supported by little more than the plaintiff's insistence he's being discriminated against.

While Amazon Ring and other doorbells certainly deliver a certain convenience, they've created no shortage of entirely new problems. Problems that could have been avoided with just a bit of foresight and ethical behavior. First comes the fact they're being integrated into our already accountability-optional law enforcement and intelligence apparatus. Then, like the rest of the "let's connect everything to the internet but do a shit job on basic security and privacy because it costs money" IOT sector, they can't be bothered to get the fundamentals right when it comes to consumer security.

The latest example involves Ring failing to adequately secure users information when they share to the Ring "Neighbors" portion of the Ring app. Journalists had already showcased how Ring's security standards were hot garbage. And while Amazon has taken some steps to address those concerns (like making two-factor authentication mandatory), this week it was revealed that Ring’s Neighbors app was exposing the precise locations and home addresses of users who had posted to the app:

"While users’ posts are public, the app doesn’t display names or precise locations — though most include video taken by Ring doorbells and security cameras. The bug made it possible to retrieve the location data on users who posted to the app, including those who are reporting crimes."

Whoops-a-daisy!

The disclosure comes on the heels of a similar report from Gizmodo last year that found it wasn't too difficult to ferret out hidden data allowing journalists (and anybody else) to map the location of Ring users nationwide:

"Examining the network traffic of the Neighbors app produced unexpected data, including hidden geographic coordinates that are connected to each post—latitude and longitude with up to six decimal points of precision, accurate enough to pinpoint roughly a square inch of ground."

Neat! Ring's already facing a class action lawsuit from users not particularly happy about receiving death threats and racist slurs after their Ring smart cameras were hacked.

Purportedly, Ring's Neighborhood functionality is generally supposed to help communities band together and discuss potential security threats. Kind of a neighborhood watch for the modern era. More often, however, the functionality results in people engaging in paranoid hyperventilation about minorities or homeless people getting a skosh too close to the azaleas.

If you're going to be earning additional billions from selling access to consumer residential cameras to intelligence and law enforcement every year, it seems like the very least you can do is invest a little bit more in taking consumer privacy and security seriously, even if "caring about consumers" and "selling their camera surveillance and location data to any nitwit with a nickel" operate somewhat discordantly.