Judge: George Washington Did Not Care About Biometric Data Storage

We live in a world that’s constantly throwing new technology, new business, and new quandaries at us. Facebook, Google, Amazon, Uber, Twitter, and the smartphone that we use to access them all on either didn’t exist, or existed very differently, as recently as a decade ago. The framework for our legal system, however, was built in the 18th and early 19th centuries. And that means sometimes trying to apply to the latter to the former can result in entertaining, if accurate, dissonance.

And in fact, a case against Facebook is exactly how we get to a federal judge in San Francisco this week explaining that George Washington basically did not give two whits about the details of biometric data storage, Courthouse News reports.

The discussion came up during a hearing about a privacy-related class-action suit Facebook is trying to have dismissed. The core issue behind the case has to do with facial recognition. You know how when you upload a photo, Facebook automatically suggests people you should tag in it? The case is about that thing.

(If you don’t like that thing, you can opt out of or into having Facebook suggest your face in tags under the “Timeline and Tagging” section of the Facebook settings page.)

The plaintiffs’ claim is that in order to make that feature work, Facebook has to measure, collect, and store information about your face: its dimensions, its features, how far apart your nostrils are, and so on: data. Lots of data.

Those are biometric markers, the plaintiffs argue, and collecting them without making specific disclosures and obtaining adequate releases in in violation of BIPA, the Illinois Biometric Information Privacy Act of 2008.

Facebook wants the case dismissed, and filed a motion (PDF) to that effect in June. Facebook’s argument for dismissing the case relies on large part on another case recently heard by the Supreme Court, Spokeo v. Robins.

We explained the Spokeo case back in April. The TL;DR of it is, a man (Robins) who found that information information-aggregator Spokeo had, sold, and shared about him was incorrect sued over it. Spokeo countered that because he couldn’t prove specifically if or how he was harmed, he didn’t have the right to sue them. And so it went, through ruling and appeal all the way up to SCOTUS.

In May, the Justices in Washington ruled 6-2 that basically the lower court had not proven its case to the satisfaction of the law, and would have to try again.

The majority opinion held that the harm caused by incorrect data may be concrete (real) whether or not it is tangible — that you can indeed suffer real harm even if you can’t point to a ledger sheet and say, “that’s the $3308.27 this error cost me, right there.” But the lower court didn’t analyze the law enough to determine whether or not Robins’ particular claims met the concreteness standard, so SCOTUS kicked it back down without determining whether or not he actually suffered harm.

That is the background against which we find George Washington unexpectedly popping up in the hearing about the dismissal motion, Courthouse News explains. U.S. District Judge James Donato, who rejected an earlier motion for dismissal in May, heard arguments for and against this new motion this week.

And of course, as so often happens, part of it came back around to Constitutional law. Facebook argued that the privacy claims — that having your data aggregated, used, and stored in this way is harmful — have basically always been rubbish under the law, coming back around to Article III of the U.S. Constitution, and how it undergirds the case (or not).

And with the Constitution, we circle back to the group of men who wrote, signed, and initially enacted it.

“A couple of justices are focused on what happened 200 years ago,” Donato said. “What opinion does George Washington have on this? There are historical realties that simply don’t overlap.”

He also said that the Spokeo argument “impresses me for its utter lack of novelty,” saying that the question is entirely one of standing under Article III, and not related to the actual question of harm.

If he does rule in favor of Facebook on the motion to dismiss, Donato added, he will likely remand two of the class actions, which originated in state court in Illinois and California, back to those state jurisdictions — meaning the cases wouldn’t go away, they’d just be heard elsewhere and argued under different law.

Court Scoffs at Facebook Insight of Founders [Courthouse News Service]

by Kate Cox via Consumerist

Wrigley Gum Selling For 1908 Price, Ignoring History Of Chicago Cubs & Wrigley Field

The Chicago Cubs are looking for their first World Series win since 1908, so the folks at Wrigley Gum are celebrating the Series return to Wrigley Field by selling chewing gum at 1908 prices. What this cash-in promotion glosses over is the fact that the Wrigley name had nothing to do with the Cubs 108 years ago.

Starting today, Mars says that a small pack of Wrigley gum will cost $0.05 for the duration of the World Series.

“The last time the Chicago Cubs won the World Series it was 1908, when Teddy Roosevelt was in office, radio and TV hadn’t yet been invented and the price of a pack of Wrigley gum was 5-cents,” the company said.

To get the discounted price, customers must download a coupon for $0.30 off a $0.35-cent five-stick pack of any Wrigley’s gum, including Doublemint, Juicy Fruit, Spearmint, Winterfresh, or Big Red.

While Mars and Wrigley gum are no doubt enjoying the Cubs’ return to the World Series, it should be noted that any connection between the gum and the 1908 team is tenuous.

For starters, in 1908 the owner of the Cubs wasn’t anyone named Wrigley, but instead Charles Weeghman. The Cubs also didn’t play anywhere near the current Wrigley location. Instead, they played at West Side Park, located by what is now the University of Illinois at Chicago campus.

As for what we know now as Wrigley Field, it wasn’t even around when the Cubs last won the Series in 1908. The park that would eventually become the Friendly Confines opened in 1914, and was home to Weeghman’s other team, the Chicago Whales of the short-lived Federal League. The Cubs moved to the stadium in 1916, and it was renamed Wrigley Field in 1927.

Additionally, the Wrigley company itself did not actually own the team or stadium. Heir William Wrigley Jr. became a minority owner of the Cubs in 1916 and took a majority ownership in 1921. The family sold the team and stadium in the 1970s to the Tribune Company. Both the team and stadium are now owned by the Ricketts family. The gum, of course, is now owned by candy conglomerate Mars.

by Ashlee Kieler via Consumerist

How Well Do You Remember What Happened This Week?

Between the World Series, the election, the start of the NBA season, finishing up your Halloween costume, that one friend’s improv show that you somehow got wrangled into attending, the impending Daylight Savings shift, and that spot on your knee that you’re sure wasn’t there a week ago — you’ve got a lot going on. But have all those distractions kept you from retaining the things you read in the last few days?

Last week we went easy on y’all and it showed in the results, where the median score was a record-high 75%. Was that a fluke, or do you have it in you to repeat your C-grade performance for a second week?

Take the Consumerist Quiz and find out!

by Chris Morran via Consumerist

Feds Shut Down Telemarketing Scam That Pitched Money-Making Schemes & Bogus Grants

As wonderful as it might sound, odds are that no one is trying to call you to give you free money, and anyone who dangles a get-rich-quick scheme in front of you should be quickly ignored. Yet federal regulators say  telemarketers tricked seniors and veterans out of their money with these sorts of scams.

The Federal Trade Commission Friday announced that it had charged three individuals and five companies with operating a telemarketing scheme that sold worthless money-making opportunities and phony grants to seniors, veterans, and consumers already strapped with debt.

According to the FTC complaint [PDF], the companies — identified as Blue Saguaro Marketing, MarketingWays.com, Max Results Marketing LLC, Oro Canyon Marketing II, and Paramount Business Services LLC — misled potential victims by promising that they could make easy money.

The scheme generally took on two different variations: the telemarketers would claim to be with Amazon or the federal government.

In the first variation, which began in the fall of 2014, the complaint alleges that the companies would falsely claim they represented Amazon, and promised customers an easy money-making opportunity.

In exchange for fees ranging from several hundred to several thousands of dollars, the companies would offer to create a website linking to Amazon.com where victims could earn thousands of dollars every month in commissions from sales.

The telemarketers promised to advertise the websites and use search engine optimization to drive customers to it.

In reality, the FTC complaint alleges that the companies had no affiliation to Amazon and did nothing to create tailored or even functional websites for consumers.

The second variation began in mid-2015. According to the FTC, the telemarketers called potential victims, claiming to represent the government, and informed them they were eligible for government and corporate grants to help pay for home repairs, medical costs, and paying down debt.

To determine how much a consumer was eligible for, the companies would ask for a victims’ personal information, such as age, employment, and driver’s license and credit card numbers.

The companies asked for thousands of dollars up-front and falsely promised that consumers would receive grants worth tens of thousands of dollars in 90 days.

Once a customer was on the hook for a grant, the telemarketers would use a tactic called “reloading” to sell additional grants. This was typically done by promising victims that they could quality for a larger grants by forming a limited liability company.

Consumers received no money from these schemes, according to the FTC. Victims who called the defendants to complain were ignored, and the defendants provided no refunds.

At the FTC’s request, a federal court temporarily halted the operation. With the complaint, the agency seeks to end the alleged illegal practices and obtain money for victims.

by Ashlee Kieler via Consumerist

UK Employment Tribunal Rules That Uber Drivers Are Employees

The question of whether drivers for Uber and other app-based ride-hailing services is an international one, since the service relies on the same independent contractors model around the world. In the United Kingdom, an employment tribunal ruled that drivers for Uber, specifically, should have “employee” status, which includes minimum wage and paid time off.

The case concerned two individual Uber drivers, but the general union GMB actually brought the case to the tribunal. “This is a monumental victory that will have a hugely positive impact on drivers… and for thousands more in other industries where bogus self-employment is rife,” the union’s legal director said in a statement.

Uber plans to appeal the decision, which could affect its competitors, as well as food delivery services that use an independent contractor model for labor. That would be an expensive proposition for the companies, especially since lawyers are currently caclulating how much back pay the drivers might be due.

The tribunal’s verdict was that a driver’s shift begins when he or she logs in to the app and is ready to accept assignments, not just when the driver has a paying fare, and minimum wage would be based on time logged in.

Uber’s UK general manager told Reuters that the decision only affects the two drivers named in the case, but the company plans to appeal it anyway.

UK tribunal rules Uber drivers deserve workers’ rights [Reuters]

by Laura Northrup via Consumerist

Facebook Allows Advertisers To Exclude Users Based On “Ethnic Affinity”

Advertisers have always targeted their marketing to the demographic most likely to be interested in their product, but is there a difference between running an ad that you know will probably mostly be seen by people who fall into just one ethnic group and an ad that actively excludes people outside of that group?

That’s the question underlying a new story from ProPublica, which looks at the ability for Facebook advertisers to target users based on their “Ethnic Affinity.”

The social network’s settings for ad buyers can be quite granular, allowing you to specify things like education, income and net worth, and the aforementioned ethnic affinity. It also lets you set exclusion rules for your ad based on many of these same categories.

So, for example, you can target users with college degrees and net worths of between $200,000 to $500,000 while excluding users with net worths higher than $750,000 whose ethnic affinity is Asian-American.

Where this gets particularly problematic is when it involves advertising for things like job openings or housing, where excluding a particular ethnic demographic could be viewed as discriminatory, in violation of federal laws.

To test Facebook’s ad system, ProPublica actually went through the process of purchasing an ad targeting people who were likely to move or otherwise seem interested in buying a house, while excluding users with ethnic affinities of African-American, Asian-American, or predominantly Spanish-speaking Hispanic.

The Fair Housing Act prohibits the printing or publishing of any ad involving the sale or rental of a dwelling that “indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”

In spite of this, notes ProPublica, its ad was approved by Facebook within 15 minutes with no changes.

Facebook defends the Ethnic Affinity category, saying it’s not the same as ethnicity or race, and in fact Facebook does not know a user’s race. Instead, a user’s Ethnic Affinity is based on their interactions on the site: the content they share and interact with.

“We take a strong stand against advertisers misusing our platform: Our policies prohibit using our targeting options to discriminate, and they require compliance with the law,” the privacy and public policy manager at Facebook tells ProPublica. “We take prompt enforcement action when we determine that ads violate our policies.”

He contends that advertisers use the Ethnic Affinity categories to test different marketing to different audiences. Spanish-speaking or bilingual Hispanic users could be targeted with a Spanish-language ad, while others would get the same ad in English.

But language is different from ethnicity and only the Hispanic Ethnic Affinity has subgroups regarding the language they prefer; the Asian-American category, for instance, does not reflect that these users could primarily speak or be bilingual in any of the many languages spoken in Asia. Additionally, there is a separate line item in the advertising settings for “Language.”

Civil rights lawyer John Relman looked at Facebook’s exclusion settings and told ProPublica that, i his opinion, using these tools to restrict who sees a housing-related ad “is about as blatant a violation of the federal Fair Housing Act as one can find.”

Facebook says it is planning to move the Ethnic Affinity category out from under the “Demographics” header, but if advertisers are still able to use the category to exclude users, this change will probably not quell critics’ concerns.

by Chris Morran via Consumerist

Patent Troll Sues Basically Anyone Who Notifies You When Your Package Ships

It’s a process most of us are familiar with, by now: you buy something online, and you get two emails from the site you bought it from. The first is an order confirmation, with an invoice, order number, or order summary in it. The second, a few hours or days later, is a shipping notification: a heads’ up that the package is coming your way, with info about what carrier is bringing it and when you can expect your goods to land at your doorstep.

Sending you a shipping notice may seem like a basic, common-sense thing that basically any business with an interest in customer service could independently come to the idea of making a part of its process. But one company claims to have patented it, and is suing anyone who resists demands to pay up for infringement.

As the Wall Street Journal reports, Shipping & Transit LLC has sued more than 100 small companies this year for infringing on patents it claims to own: namely, the idea that you can notify customers when their stuff has shipped.

If it seems a little suspicious to you that a company you’ve never heard of is holding small businesses over a barrel and demanding remuneration for doing something sensible, well, you’re right. Trust that instinct, and hold onto it, because Shipping & Transit is, in fact, a notorious patent troll.

Back in August, EFF did a deep dive on some of the many (many) suits involving the Shipping & Transit currently in progress. The long and the short of it is, Shipping & Transit’s entire business model is that of the classic patent troll: claim you own a thing, and threaten to sue people who probably can’t fight back.

This year alone, the WSJ reports Shipping & Transit has been the largest filer of patent lawsuits in the country, with 101 on the books. (The runner-up has 85.) That number doesn’t include businesses that paid up when they first received a threat, instead of waiting to be sued.

The majority are small companies like the Spice Jungle, featured in the WSJ’s story. The Michigan-based company, which has 15 whole employees, was shocked when one day it received a demand to pay up $25,000 for the continued right to send shipping notices to customers. When it didn’t pay, it shortly found itself on the receiving end of a lawsuit from Shipping & Transit.

“We have studied every line of every patent they claim we infringe on and we clearly do not,” one of Spice Jungle’s co-owners told the WSJ.

That’s not to say that Shipping & Transit isn’t also going after the big guys; it is. The WSJ reports that it has indeed sued major retailers as well as UPS and FedEx directly, claiming the same violations of patents for “providing status messages for cargo, shipments and people.”

The CEO of another small business told the WSJ they were “iterally losing sleep over this,” adding that the $25,000 demanded by Shipping & Transit is equivalent to an employee’s entire salary. That Connecticut-based business gave up and settled with Shipping & Transit, because “to fight it would have cost more than settling.”

That’s exactly what Shipping & Transit is banking on, the WSJ explains: fees between $25,000 and $45,000 are big enough to hurt small businesses, but not so large that most will find it economical to fight it out in court. Lawyers, after all, are expensive, and filing fees add up.

The American Intellectual Property Law Association told the WSJ that in these instances, just getting trough discovery — the phase of evidence- and testimony-gathering that comes before any court date happens — costs an average of $358,000. Even taking the lower-cost option of going directly to the new Patent Trial and Appeal Board costs $23,000 just to file a claim.

Shipping & Transit claims to have received all its patents between 1993 and 2006. A co-owner told the WSJ that 29 of his original 34 patents have expired, but that anyone using the last five, or that used the others when they were still active, owes him money.

He also strongly rejected the “patent troll” moniker, when the WSJ asked him about it. “Most of the time a troll is somebody who has bought somebody’s patents,” he told the paper. “Because I am the inventor of these patents and have been involved in it, it is a stretch to say that I am a troll.”

So is he actually legit? Well, legally speaking, it’s not quite clear.

The Supreme Court ruled unanimously in 2014 that you cannot just patent the idea of doing a thing. In order to be awarded a patent, you actually need to be patenting the mechanism for doing that thing. So you can’t patent the idea of using an algorithm or piece of code to handle your process (the issue in the original case), but you can patent the specific code you have written in order to do that.

Several of the cases the EFF is tracking involve counterclaims, called Alice motions, based on that ruling (the case was Alice Corp. v. CLS Bank International). In the meantime, though, no court has actually yet ruled on the merits of any of Shipping & Transit’s many cases. So far they have all been settled or dismissed before any judge had to decide if the patent claims are legitimate.

America’s Biggest Filer of Patent Suits Wants You to Know It Invented Shipping Notification [Wall Street Journal]

by Kate Cox via Consumerist