Still a great watch all these years later.

Some notable passages from today’s 3rd Circuit opinion in Fields v. City of Philadelphia, holding that there is a First Amendment right to record police officers in public, written by Circuit Judge Thomas L. Ambro:

the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. [...] This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, see Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this protection to have meaning the Amendment must also protect the act of creating that material.

and

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

but

We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in public places these restrictions are restrained.

and

Having decided the existence of this First Amendment right, we now turn to whether the officers are entitled to qualified immunity. We conclude they are.

That last bit is primarily, though not solely, because the 3rd Circuit had not decided such a case as this yet when the incidents in question occurred. Now that the existence of the right to record police in public is “clearly established,” the next time a similar case shows up in court, qualified immunity may be off the table. Hopefully that potential liability will discourage Philadelphia officers from retaliating in the future.

Related Links

• The U.S. District Court for the Eastern District of Pennsylvania's 2016 opinion (overturned by this one)
• ACLU page
• Cato Institute page
• Electronic Frontier Foundation page
• DOJ brief in support of plaintiffs (PDF)

I’ve included a link to the PDF, and embedded the opinion, below.

https://assets.documentcloud.org/documents/3890443/Document.pdf

[scribd id=353175253 key=key-wgEldZXf3JOlCRTha0pe mode=scroll]

Court Junkie podcast episode on Eric Frein trial

I was a law clerk when the murder of Corporal Bryon Dickson and near-murder of Trooper Alex Douglass sparked a weeks-long manhunt that resulted in the capture, trial and conviction of Eric Matthew Frein. I won’t talk about anything I did with regard to the case (which was very little anyway), but I was living in the county seat of Milford, PA at the time and I can tell you the tragedy visibly saddened and infuriated several communities.

This link is to a fascinating episode of the Court Junkie Podcast which details the events in sensitive but vivid detail.

A disturbing sex trend called ‘stealthing’ is on the rise

‘Stealthing’ is the non-consensual removal a condom during sex. Alexandra Brodsky’s article in the Columbia Journal of Gender and Law [PDF] is powerful, nuanced and well-presented.

And I, too, can be powerful, nuanced, and well-presented when necessary. But this won’t be one of those times, so I want to make a language warning here for family and friends sensitive to vulgarities…

Men who ‘stealth’ are pieces of shit. Victims are left trying to equate it with rape when the perpetrators should be required to show why it is not. Here’s a choice quote from the USA Today article linked above:

The study also pointed to online forums where men often brag about removing a condom during sex or offer advice on how to get away with it. Some of the men in the forum have even suggested it's their right to, "spread one's seed".

Such men should be sterilized. It is the State’s right to protect women from these cowards whose masculinity is tenuous and insecure that they are too scared to attempt a real relationship in which consent for unprotected sex is freely given at some point.

Prosecuted by her legal counterpart: ‘It destroyed my life in so many ways’

This DA should resign, now:

At least six defense attorneys and investigators say they faced threats of criminal charges by the Orleans parish district attorney for doing their jobs, the Guardian has found. Since DA Leon Cannizzaro took office in 2009, the attorneys have been accused of kidnapping, impersonation and witness tampering in the course of defending their clients. Each case has failed to stand up to scrutiny: all charges that have been brought were eventually dropped or overturned.

Disgusting.

Anderson Cooper did a great segment on 60 Minutes about how an underfunded, understaffed and overworked New Orleans Public Defender’s Office has started refusing felony cases. Chief PD Derwyn Bunton says he and his 52 attorneys cannot possibly represent the 20,000 clients they get annually in a way that comports with the ethical standards to which all attorneys are held, and to which criminal defendants are Constitutionally entitled.

It’s a divisive choice, but I think it’s the right one. Public Defenders Offices are notoriously underfunded all over the country, seen as low-hanging fruit when a politician or bureaucrat needs to cut budgets. But they should be among the last budgets cut. Many criminal defendants are guilty, and many are not. Because of that, all are entitled to the same Constitutionally mandated set of rights, chief among them being the right to representation.

No, public defenders don’t need and shouldn’t get astronomical budgets. But they should not have to divide 20,000 cases between 52 lawyers, either. That’s 384 cases per lawyer per year. Would you want to share your public defender with 383 other people? Would you feel confident that you will get your Constitutional rights to competent representation and a fair trial?

Didn’t think so.

A month after dismissing federal prosecutors, Justice Department does not have any U.S. attorneys in place

Attorney General Jeff Sessions is a lot of things. But so far, none of those things include “good at being Attorney General.”

Would you hire a builder who, when he finds out you want a new house at some point down the road, just knocks down the one you have now, without thinking about where you’ll live until the new one is ready?

If you would, then Jeff Sessions is your man. Because he knocked down the Justice Department before even making the vague outline of a plan to put a new one in place.

Oh, and just in case you forgot, he’s a racist son of a bitch, too.

Sources: Nintendo to launch SNES mini this year

Tom Phillips writes at Eurogamer:

The reality of a SNES mini is certainly exciting - while the NES was unique for being Nintendo's first home console, the SNES arguably boasts the better software line-up, and a catalogue of classics far more advanced than their NES forebears. Compare The Legend of Zelda on NES to A Link to the Past, for example, or Donkey Kong to Donkey Kong Country.

Other top SNES games from Nintendo include Super Metroid, Super Mario Kart and Super Mario World, as well as Earthbound, Star Fox and Super Mario RPG: Legend of the Seven Stars. The console also had some of the best RPGs of the era, including Square’s Chrono Trigger and Secret of Mana.

Many people use emulation software of questionable legality (not that I have ever done anything even remotely like that, like, at all, ever) but soon there may no longer be a need for emulation. This is exciting and I’ll absolutely be buying one of these.

In Travis County custody case, jury will search for real Alex Jones

Jonathan Tilove reports this story for American-Statesman:

Beginning Monday, a jury will be selected at the Travis County Courthouse that in the next two weeks will be asked to sort out whether there is a difference between the public and private Alex Jones, and whether, when it comes to his fitness as a parent, it matters.

Kelly Jones' attorney, Bobby Newman, is engaged in some quality tactical litigation:

[Judge] Naranjo, meanwhile, said she had never seen or heard Jones on Infowars until Wednesday’s hearing, when Kelly Jones’ legal team started previewing Infowars videos it would like to play for the jury.

The first was a clip from a July 2015 broadcast in which Jones had his son, then 12, on to play the latest of some 15 or 20 videos he had made with the help of members of the Infowars team who, Jones said, had “taken him under their wing” during summer days spent at the South Austin studio between stints at tennis and Christian camps.

“He is undoubtedly cut out for this, and I intend for him to eclipse what I’ve done. He’s a way greater person than I was at 12,” said Jones, turning to his son. “I love you so much, and I didn’t mean to get you up here, sweetheart, and tell people how much I love you, but you’re so handsome, and you’re a good little knight who’s going to grow up, I know, to be a great fighter against the enemy.”

“So far this looks like good stuff,” [Alex Jones' Attorney Randall] Wilhite said. Naranjo OK’d it for viewing by the jury.

But Bobby Newman, the attorney for Kelly Jones guiding the court through the Infowars clips, was laying the groundwork for the argument that there is no separation between Alex Jones, father, and Alex Jones, Infowarrior.

It’s a solid argument, and Alex Jones is in a bit of a bind here, forced to choose between maintaining the authenticity of a lunatic his inexplicably massive fanbase worships and sacrificing that authenticity in an attempt to hang onto custody of his young children.

Unenforceable ban on atheists holding public office still on the books in 8 states

This is an old story but after reading an article about a study [PDF] suggesting there are many atheists who don’t want to admit they’re atheists, I remembered reading about how a country which prides itself as a world leader in personal freedom still has laws banning atheists from public service.

My memory was correct, and that country is the United States. Oyez, which publishes Supreme Court resources including audio of oral arguments, has a great page on the 1960 case which declared such laws unconstitutional (as if anyone should have needed the Supreme Court to tell them that…).

In Torcaso v. Watkins, the Court held unanimously that, quoting Oyez:

such a requirement places the state of Maryland firmly on the side of those people who believe in God and are willing to state their belief. With this requirement, Maryland effectively aids religions that profess a belief in God at the expense of any other form of belief or disbelief. The First Amendment expressly prohibits a state from taking this position. Although the candidate has the option of not pursuing public office rather than declaring a belief in God, the test is an unconstitutional encroachment on the freedom of religion.

So these laws aren’t enforceable, but the fact that they’re still on the books is an affront to the Constitution and should embarrass any lawmaker who claims to respect that Constitution.

Mentally incompetent Utah man dies in hospital after jail episode left him paralyzed

Is this the kind of country where we let mental illness go untreated to the point where someone in jail for fighting with a couple of cops is effectively allowed to commit suicide, while on suicide watch?

Jail video shows a naked Hall with disheveled long hair and beard running headfirst into a wall three times before climbing up on the sink and falling headfirst to the floor. At the time, Hall had been waiting five months for a bed and treatment at the Utah State Hospital. Utah designates 100 beds at the hospital for inmate mental health treatment, but once the beds are occupied, additional defendants await openings from jail cells.

And this:

The Utah LegislatureThe Utah Legislature recently set aside $3 million in an effort to resolve a federal lawsuit filed by the Salt Lake City-based Disability Law Center, which alleges mentally ill defendants are not provided a speedy trial and suffer in jail without treatment because the state does not provide enough hospital beds and specialists to treat them.

Why couldn’t they set aside $3 million before they were sued, to solve the problem before anyone died?

United Airlines Tumbles After Social-Media Storm Goes Global

Justin Bachman and Linly Lin reporting at Bloomberg Markets:

United Chief Executive Officer Oscar Munoz apologized on Monday for “having to re-accommodate these customers.” The airline is conducting a review and seeks to resolve the matter with the man who was dragged off the airplane, Munoz said in an emailed statement. In a subsequent message to employees, the CEO called the passenger “disruptive” and “belligerent.”

This debacle is still unfolding but will clearly end up in PR textbooks.

The magnificent stupidity of the “nuclear option”

It’s a trainwreck. Republicans undoubtedly stole the nomination from Merrick Garland, which makes calls by the GOP for Democrats to stop being obstructionist rich in hypocrisy.

But then again, there’s plenty of hypocrisy in Democratic criticisms of today’s use of the “nuclear option.” After all, they made a similar move in 2013, explicitly eliminating the filibuster for all nominations except the Supreme Court.

It was a stupid thing for Democrats to do in 2013 and it’s a stupid thing for Republicans to do in 2017. Why? Because these rules apply to everyone going forward, no matter which party is in power.

The lack of foresight and critical thinking the nuclear option displays when any party uses it are staggering, and illustrative of Congress’ toxic tendency to put pettiness and blind party loyalty before the best interests of their constituents.

This post originally appeared in my newsletter, Modern Law.

Senate Republicans Vote To Gut Internet Privacy

Hamza Shaban, writing for BuzzFeed:

The Senate voted Thursday to make it easier for internet service providers to share sensitive information about their customers, a first step in overturning landmark privacy rules that consumer advocates and Democratic lawmakers view as crucial protections in the digital age. The vote was passed along party lines, 50-48, with all but two Republicans voting in favor of the repeal and every Democrat voting against it. Two Republican Senators did not vote.

Disgusting. This is what buying policy looks like, folks. Kate Tummarello of the Electronic Frontier Foundation also did a write-up, and included a particularly scary piece of information:

Republicans in the Senate just voted 50-48 (with two absent votes) to approve a Congressional Review Action resolution from Sen. Jeff Flake which—if it makes it through the House—would not only roll back the FCC’s rules but also prevent the FCC from writing similar rules in the future.

(emphasis added)

This may not seem like a big deal, but it very much is, especially in an age where ISPs and the data brokers to whom they sell your information are frequently hacked.

More shameful behavior from Senate Republicans whose retirement can’t possibly come soon enough.

Heinz running Don Draper’s ‘Pass the Heinz’ ads

Tim Nudd at Adweek:

In a meta union of advertising’s real and fictional worlds, Heinz just greenlighted the ads—and will run them almost exactly as Draper intended, beginning today, in print and out-of-home executions in New York City.

This is awesome, not just because it’s a marriage of television and the real world, but because the ads themselves are actually brilliant.

Trans characters in the first big video games of 2017

Laura Dale, writing at Polygon:

The past month of AAA video game releases might be the most interesting I have ever experienced as a trans woman, meaning someone who was designated male at birth but is now living as female. While far from perfect in execution, I can point out three trans characters in three separate AAA video games released in the past four weeks. That’s pretty unbelievable.

I’ve been playing Zero Dawn with my wife and it’s a truly remarkable game. I wish I hadn’t missed the trans character’s introduction, but now that Dale points it out it does seem like a respectful, if imperfect, attempt to include a trans person in Aloy’s world.

Justice Dept. internal watchdog to investigate FBI’s Clinton inquiry

The inquiry by the Justice Department's inspector general, likely to keep open the wounds of the bitter 2016 presidential race, will focus on whether "policies or procedures were not followed" by the FBI and Justice Department.

Of particular focus will be the letter sent by Comey to Congress just 11 days before the Nov. 8 election that disclosed that his agents were reviewing newly discovered emails possibly pertinent to the then-closed investigation on Clinton’s handling of classified material while serving as secretary of State.

At first I was heartened by this news, but if the review is limited only to whether “policies and procedures were not followed” there will be no investigation into the Hatch Act¹ implications of Comey’s election-week disclosure.

Prenda Law “copyright trolls” Steele and Hansmeier arrested

Justice.

I’m in a bookstore, Joseph Fox in Philadelphia, and there are people here in the cramped sometimes hallway-narrow store with me. Many of them. People I mean. Some smell like rain. That’s how close they are. It’s raining outside and they’re coming into the store and I can smell the rain on them.

You have to look behind you and on both sides before kneeling or unkneeling or turning one way or another. And me personally I get the sense literally everyone else in the store is there to find a specific book and they’re all searching the stacks carefully, assiduously even. And here I am awkward and targetless and perusing aimlessly the myriad paper- and hardbacks.

That sweaty I-don’t-belong-here feeling creeps in slowly at first and then a major decision crashes into my field of vision: get it the hell together and be hunted by these books with a little goddamn dignity or get out go home leave now. As many who experience similar moments can no doubt relate to, my outward demeanor doesn’t change while this storm is raging behind my eyes. The capital v Visible me is cool as a cucumber as they say. The capital i Invisible me processes this all in a few blinks and when I open my eyes again I’ve decided to stay.

These days books are most easily purchased online. However, visiting a bookstore is a special and enviable thing. When I step into a bookstore I am aware only that there is a book looking for me. I almost never have one in mind but am dogged from the moment I cross the threshold with a sense that there is one, somewhere in there, which has me in mind.

It wasn’t Rilke, it never has been. I have read him, and I love him, but none of his books have ever shopped for me in a bookstore. I have often thought it was David Foster Wallace, and once even gave up early and bought The Broom of the System, lying to myself that it was the book I had been in the store to purchase. But it wasn’t, I had just grown a bit impatient and lazy and bought it and left.

The covers are part of it, the titles more so, but the randomly turned-to page most of all. No other indicator is as accurate in determining which tome hunts me. If the writing doesn’t stick in your heart like a grappling hook breaching the top of a prison wall, the book isn’t looking for you.

Today it may be George Musser’s Spooky Action at a Distance, about nonlocality in quantum mechanics. The title, the cover, and every passage I randomly turned and read all suggested a strong attraction between book and reader. Like a word on the tip of the tongue I was almost certain. But no, it isn’t the one. I want to read it, sure, but it’s not the one hunting me today.

In fact, today nothing was looking for me at all and so I leave with nothing new. Don’t for a moment think I wasted my time though. It’s nothing to be upset about. This visit was eventful and quietly explosive. There are sections and authors and books I must absolutely return to, whether here, physically, or online, digitally. Today was like an expedition into an unexplored region: though I return with no artifacts or specimens I have mapped whole tracts unknown to me until today.

Electronic books are convenient as hell, but I’ve never ended an Amazon or iBooks shopping session feeling like I’ve had a capital E Experience. It’s more efficient, simpler, faster and less anxious to look for books on a computer. But it just isn’t much fun.

NBC stupidly shutting down Breaking News app, service

The decision, as it often does in the media business, came down to revenue. "Unfortunately, despite its consumer appeal, Breaking News has not been able to generate enough revenue to sustain itself," Ascheim said in the letter supplied by NBC News. "We have therefore made the hard decision to close its operations so that we can re-invest that funding into NBC News’ core digital products to help us achieve our ambitious goals for those businesses."

This is short-sighted. Web-based news isn’t generating revenue? No shit. Breaking News has been a standard-bearer of confirm-before-publishing and still manages to be ahead of every other news outlet’s attempt at a breaking news product.

I’d spend $2.99/month on this thing to keep it alive. Let’s say 1/4 of its Twitter followers would do the same. That’s $84.6 million in revenue right there.

Would that be sustainable?

Wells Fargo Killing Sham Account Suits by Using Arbitration

[Jennifer] Zeleny, a lawyer who lives outside Salt Lake City and opened a Wells Fargo account when she started a new law practice, said it would be impossible for her to agree to arbitrate her dispute over an account that she had never signed up for in the first place.

The bank’s counterargument: The arbitration clauses included in the legitimate contracts customers signed to open bank accounts also cover disputes related to the false ones set up in their names.

Arbitration is reasonable on a case-by-case basis but it’s a hard concept to defend:

1. Ideologically, when a corporation is responsible for the deliberate mass-deception of its customers
2. Contractually, when the affected customers never agreed to anything at all with regard to the accounts at issue

If Wells Fargo has any intellect in the board room or in the C-suites they’re taking this tough stance in public but working quietly on negotiating a mass settlement fund.

Of course, any intellect in the board room or the C-suites would likely prevent the type of sales environment which catalyzed this large-scale fraud and identity theft operation.

‘Dark Meat’ by Gabriel Thompson

Failing to record injuries is one strategy to create the illusion of a safe workplace. Another is to fail to refer workers to doctors for proper tests and diagnoses. Each time an injury causes an employee to miss a day of work or to receive medical treatment beyond first aid, the company is required to record it in an OSHA log book. This data is reported each year to the Department of Labor and is used to identify industries with high injury rates—whose facilities will then face increased inspections. An industry that reports low injury rates is less likely to receive scrutiny from OSHA’s overstretched investigators.

If employers can self-report why can’t employees?

The argument against employee reports would be:

Well, employees will inflate injury rates!

Let’s think about this: employers are already fraudulently minimizing the rates. Now, that doesn’t mean it’s okay for employees to do it, too. It isn’t okay for anyone to massage the numbers in their own favor. But they do, and they will, because self-interest is a helluva drug.

So my thought is that having an inflated employee-reported rate to compare with minimized employer-reported rates may help regulators find the truth, somewhere between the two numbers.

FCC abides by GOP request, deletes everything from meeting agenda

Wheeler's attempt to impose new set-top box rules that help consumers avoid paying cable box rental fees may also be doomed. Consumer advocacy group Public Knowledge sent a letter to Trump today urging him to side with consumers instead of "cable and Hollywood lobbyists" on the issue.

Jesus.

Dropbox employee’s password reuse led to theft of 60M+ user credentials

Kate Conger, reporting at TechCrunch:

Dropbox disclosed in 2012 that an employee’s password was acquired and used to access a document with email addresses, but did not disclose that passwords were also acquired in the theft. Because Dropbox stores its user passwords hashed and salted, that’s technically accurate — it seems that hackers were only able to obtain hashed files of Dropbox user passwords and were unable to crack them. But it does appear that more information was taken from Dropbox than was previously let on, and it’s strange that it’s taken this long for the breach to surface.

Don’t reuse passwords folks. Find a password manager and learn to love it. There’s 1Password, LastPass, Dashlane and many others. That means there’s no excuse for you to keep using your dog’s name combined with your college graduation year or whatever terrible password you’re using for everything.

Secret Cameras Record Baltimore’s Every Move From Above

Pritchett had no idea that as he spoke, a small Cessna airplane equipped with a sophisticated array of cameras was circling Baltimore at roughly the same altitude as the massing clouds. The plane’s wide-angle cameras captured an area of roughly 30 square miles and continuously transmitted real-time images to analysts on the ground. The footage from the plane was instantly archived and stored on massive hard drives, allowing analysts to review it weeks later if necessary.

It must be the NSA or the CIA or the FBI, right? They must have a warrant, right? They must be deleting the video after a certain period of time, right?

Wrong.

It’s the Baltimore Police Department. The article and accompanying video clarify the motivation of the company providing the technology and the service to BPD. Founder Ross McNutt says he hopes technology like his will have a deterrent effect on crime in cities where its deployment is disclosed. That’s a good goal but it’s not the BPD or the company’s founder I’m worried about.

Anything on a hard drive that isn’t air gapped is vulnerable to exfiltration by hackers. That includes a massive digital video recorder covering an entire city for an indeterminate amount of time.

Scary stuff.