Tag Archives: regulation

Fines and Negotiations

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The FTC and Facebook seem to agree that Facebook messed up with the way it handles user personal and private data; now they’re dickering over the fine to be assessed.

It [that fine, rumored to be in the multiple billions of dollars] would be the largest fine the FTC has ever imposed on a technology company, although the two have yet to settle on the exact number….

What is there to negotiate, though? Assess the fine, and if Facebook wants to negotiate argue the matter, let it do so in open court in an appeal of the fine.  That, unlike these kinds of “negotiations,” will occur in public, in front of customers and potential customers, with all that’s implied by the implications of pre-trial discovery results and public testimony.

Isn’t Zuckerberg all about transparency these days?

Two Examples of Gun Control

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In January, a Houston homeowner successfully defended himself and his family against a large, violent home invasion—with a gun.

Authorities say the homeowner defended himself when the suspects entered the home. Following the shooting, the suspects fled from the scene.
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At another scene, a vehicle was found about two blocks from the shooting, where a man was found dead in the backseat.
Authorities say that out of five people shot, three of them died. All were suspects in the alleged home invasion.

In Florida this week, another homeowner successfully defended his property—with a gun.

The Volusia County Sheriff’s Office said…a woman called 911 to report a stranger on her property.
When the woman’s husband walked outside [with his pistol] to check the situation out, he told deputies he found the man standing at the door to his garage with his hand on the doorknob.
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Once deputies got to the home located south of Daytona Beach they allegedly found a syringe, tools and gloves on Edwards.
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[The man] was charged with attempted burglary and possession of burglary tools, according to police.

No one was shot this time, either—it was only property at risk.

Imagine the mayhem that would have resulted in the first instance had the homeowner not been armed.  Imagine the theft, and the possible mayhem (because burglars really don’t like witnesses), in the second instance had the homeowner not been armed.

This is the gun control Progressive-Democrats and their accomplices of the Left want to take away from us.

Facebook and Trust

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…seem, increasingly, a contradiction in terms.

See this image, from The Sun via Fox News, below.

The girl pictured has a laryngeal cleft, a hole between her larynx and her esophagus, which means she can’t eat normally; food or drink can pass into her airway.  The tube through her nose passes down her esophagus, bypassing that hole; it’s the only way she can take sustenance.

The girl’s mother tried to post the image on Facebook, not to garner sympathy, but to raise general awareness of the hassles and hazards of laryngeal clefts, and to raise money for her daughter’s necessary surgery.

Facebook barred the image, for the reasons listed in the text to the right of the image.  The text is hard to read; the money rationalization is this: the image

contains shocking, sensational or excessively violent content.  This type of material creates an unexpected experience for users, and goes against our core value of fostering a positive global community.

Because a smiling little girl, albeit with a tube in her nose, is shocking, sensational, or excessively violent.  Because Facebook has such contempt for its users that it considers them such snowflakes that unexpected experiences—surprises—would excessively disturb them.  Because Facebook’s view of positivity overtly excludes attempts to bring those apparent snowflakes’ attention to an uncommon medical condition so that that attention might foster increased medical research into ways of alleviating or correcting such a condition.

The mother successfully appealed the bar, but questions remain: with this sort of ban being Facebook’s kneejerk, initial action, how can Facebook be taken seriously?  How can Facebook’s management be trusted?

Privacy in a Technological World

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In a ruling rejecting an application for a search warrant, Magistrate Judge Kandis Westmore, operating in the Northern District of California, had this remark in particular.

Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

Encouragingly, this remark also cited (via the quote in the remark above) a Supreme Court ruling, Carpenter v United States [citations omitted]:

We have kept this attention to Founding-era under-standings in mind when applying the Fourth Amendment to innovations in surveillance tools.  As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

The Founders wrote our Constitution to be technology agnostic, and in fact there is no mention of technology qua technology in it.

Westmore’s ruling can be read here. Carpenter can be read here (it’s long).

A Magistrate Judge Gets One Right

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Of course, the Magistrate Judge Kandis Westmore’s ruling can be overturned on appeal by a District judge in the Northern District of California in which she operates, or on appeal on the ruling’s way up the appellate chain.  Nevertheless, her ruling stands, for now.

In its essence Westmore ruled that, even with an otherwise valid search warrant, a person cannot be compelled to unlock a digital device like a cell phone with that person’s biometrics—a fingerprint, a face, or an iris, for example.

There was a technicality that itself would have invalidated the warrant: it was overbroad.  It requested authority to unlock and search any device found inside the otherwise legally searched premises, including those owned or controlled by anyone happening to be present at the time of the search, and Westmore found that request to be neither limited to a particular person nor a particular device as the 4th Amendment requires.  That’s a 4th Amendment failure of the warrant.

The larger principle, though, flows from a 5th Amendment bar against forced self-incrimination violation. Westmore ruled that biometrics, when used in the context of a search—vis., to unlock a personal digital device—is no different from a personal passcode, and personal passcodes have already been ruled inaccessible to the government, even with a search warrant.  That would be forced testimony against oneself.  The owner of the device must voluntarily give up the passcode, and he cannot be “compelled” to volunteer [citations omitted].

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. …the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.
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It follows…that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

And especially this, as I’ve argued elsewhere.

That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.

Government convenience must never be allowed to override the individual liberty of an American.

In the end,

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices.

It matters when, and why, biometrics are used.  The outcome here, should it survive appeal, is a stout blow in favor of individual privacy and a firm limit on Government’s authority to invade an American’s person[], houses, papers, and effects.

The magistrate judge’s ruling can be read here.