Netflix may have to provide closed captions online

Bob Egelko

A federal judge has taken a step toward requiring Netflix to provide closed-captioning for the deaf on its video-streaming website, ruling that federal disability laws cover businesses that serve their customers online.

Netflix, headquartered in Los Gatos, is the dominant provider of movies and TV programs on the Internet, with more than 20 million subscribers. The National Association for the Deaf accused the company of violating the law by withholding closed-captioning from most of the videos on its "Watch Instantly" on-demand website.

Netflix sought to dismiss the suit, arguing that the Americans with Disabilities Act requires accommodations for the disabled only in stores and other physical structures - an argument accepted in the past by some courts, including the Ninth U.S. Circuit Court of Appeals in San Francisco.

On Tuesday, however, U.S. District Judge Michael Ponsor of Springfield, Mass., said the law prohibits discrimination in any venue, including the Internet.

The legislative history of the 1990 law "makes clear that Congress intended the ADA to adapt to changes in technology," Ponsor said. "In a society in which business is increasingly conducted online," he said, the law's goal of equal access would be frustrated by "excluding businesses that sell services through the Internet."

The ruling allows the suit to proceed on behalf of groups representing the deaf and hard-of-hearing, who still must prove that the ADA requires Netflix to provide closed-captioning. Their advocates nonetheless called it a significant victory.

"By recognizing that websites are covered by the ADA, the court has ensured that the ADA stays relevant as much of our society moves from Main Street to the Internet," said Arlene Mayerson of the Disability Rights Education and Defense Fund in Berkeley, a lawyer for the plaintiffs.

Netflix could appeal the ruling to a federal appeals court in Boston. Spokesman Joris Evers said the company had no comment.

A 1996 federal law required closed-captioning for television programs but did not address online videos. Federal Communication Commission regulations will require captioning on Internet videos of all U.S.-produced, post-1996 programs by March 2014.

Netflix argued that the FCC rules took precedence over the more generally worded Americans with Disabilities Act. But Ponsor said that the FCC's timeline "reflects only minimum compliance standards" and that a court could invoke the ADA to order closed captioning at an earlier date on all videos.

Supreme Court 'papers please' ruling hits Arizona H-1B workers

Immigration attorneys advise holders of H-1B visas to carry paperwork at all times in Arizona

By Patrick Thibodeau

Computerworld - WASHINGTON -- Monday's U.S. Supreme Court decision that allows Arizona police to check peoples' immigration status means that H-1B workers in the state should have their visa documents available at all times, immigration attorneys say.

The court struck down several parts of Arizona's immigration law but nonetheless left in place a core provision -- the so-called "show me your papers" clause -- that allows police officers to check the immigration status of people in the state at specific times.

If police stop or arrest someone that they also suspect may be an illegal immigrant, they can under the law check that person's immigration status, the court ruled.

The Supreme Court ruled that police can't simply stop an individual and ask for his immigration papers simply because of his race, color or national origin.

However, a traffic stop, for instance, could be the trigger for an inquiry.

How complicated this gets may depend on the training of the police officer on the scene, his knowledge of work visas, and whether an H-1B worker in the state has an Arizona driver's license.

An Arizona state driver's license provides the presumption of legal residency.

Nonetheless, H-1B workers carrying the proper documents might face difficulties because of the immigration law, potentially experiencing delays or even detention, especially if they're dealing with officers and departments that are unfamiliar with immigration documentation, say attorneys.

It's believed that most H-1B workers do not routinely carry visa paperwork at all times because they're concerned that it could be lost. It can take months to replace lost documents, immigration attorneys noted.

Michael Wildes, managing partner at Wildes & Weinberg, an immigration law firm in New York, says his firm is advising clients -- "especially those in the Arizona corridor of the nation" -- to carry proper documentation of their legal status.

Wildes & Weinberg has always recommended that people from other countries make a habit of carrying the proper paperwork, but he said "it's particularly crucial" to do so in light of the recent Supreme Court ruling.

Foreign workers should always carry their visas and passports, their I-797 approval forms, and their I-94 arrival-departure records, said Wildes.

The practical advice for work visa holders as a result of this decision is to carry documentation, said Marko Maglich, an immigration attorney at White & Case in New York. H-1B workers who haven't been in the habit of carrying their documents "better do it now," he said.

It's uncertain how this law will play out in the state over the long term.

If an H-1B worker who carries, say, a California driver's license is pulled over in Arizona, there's no presumption of legal status -- that is only conferred by an Arizona driver's license, said Jorge Lopez, an attorney in the Miami office of Littler Mendelson who co-chairs the law firm's immigration and global migration practice group.

Lopez said visa holders should at least carry copies of their pertinent documents.

Eleanor Pelta, the president of the American Immigration Lawyers Association, said temporary visa holders are not required to carry their documents in Arizona, but they "may feel more comfortable carrying paperwork showing their legal status" because of the ruling.

The Supreme Court's decision "leaves a door open to challenge the 'show me your papers' provision as applied in a particular instance," said Pelta, an immigration attorney in the Washington office of Morgan, Lewis & Bockius. "It is possible that [the law] may still be challenged and struck down in another suit."

Court: No automatic life without parole for juveniles

By Raju Chebium

WASHINGTON - Juveniles convicted of murder can't be automatically sentenced to life in prison without parole, a divided U.S. Supreme Court ruled Monday.

The nation's highest court has previously invoked the Eighth Amendment in banning the death penalty for juveniles.

The 5-4 ruling, involving two 14-year-olds convicted in separate robberies in Alabama and Arkansas, struck down 29 state laws that impose mandatory life-without-parole sentences on juvenile murder defendants.

Forcing judges and juries to give life without parole, regardless of mitigating circumstances, violates Supreme Court rulings requiring "individualized sentencing for defendants facing the most serious penalties," Justice Elena Kagan wrote for the majority.

"We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments,' " she wrote.

The court didn't issue a blanket ban on life without parole for juvenile murder defendants. Judges and juries can still impose that sentence as long as all factors such as the juvenile's upbringing are taken into account, although the ruling would make such sentences extremely rare.

The nation's highest court has invoked the Eighth Amendment in banning the death penalty for juveniles. Also banned are life-without-parole terms for juveniles who commit crimes other than murder. Now juveniles convicted of murder are also included under the Eighth Amendment umbrella, though the court didn't shut the door entirely on that sentence.

Joining Kagan in the majority were Justices Stephen Breyer, Anthony Kennedy, Sonia Sotomayor and Ruth Bader Ginsburg.

The dissenters were Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas, who argued that it's not the court's job to decide the appropriate punishment for juveniles convicted of murder.

"Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole," Roberts wrote in the dissenting opinion.

Evan Miller of Alabama was 14 when he and an accomplice robbed a neighbor, bludgeoned him with a baseball bat and burned his trailer in 2003. A Lawrence County, Ala., jury convicted him of murder for killing Cole Cannon, 52.

In the Arkansas case, Kuntrell Jackson was 14 when he took part in a 1999 video-store robbery in which the clerk was shot and killed by someone else.

Equal Justice Initiative, a Montgomery legal-rights group that represented Miller and Jackson, lauded the ruling as "an important win for children."

"The court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, executive director of the Equal Justice Initiative.

About 2,500 prisoners nationwide are serving life-without-parole sentences for murders committed before they turned 18, according to Roberts. A majority of them are serving mandatory life terms with no chance of getting out of prison. Some or all of them may ask to be sentenced again.

Alabama Solicitor General John Neiman said the ruling clearly requires states to revise sentencing guidelines for juveniles who commit murder if life without parole is the only punishment allowed.

In light of the ruling, Miller and Jackson will seek to be sentenced again. But it's unclear if the ruling applies to others convicted of murder as juveniles who are serving mandatory life-without-parole sentences, Neiman cautioned.

"The actual impact of the decision in terms of practical reality is going to be a question that's going to be litigated," he said. "The opinion did not define … whether this new rule of sentencing, under the Constitution, will apply to defendants whose convictions are already final."

Stand Up for Owners' Rights

If you buy something, you can do with it—and do away with it—as you want. Right? The digital age is challenging this most basic of expectations in a few ways, and EFF and its allies are on the lookout. The Supreme Court will soon review a court decision that, if upheld, could put handcuffs on our ability to sell digital goods, or even physical goods with copyrighted logos or artwork, simply because the goods were manufactured outside the U.S. This case is important, but its also just a small piece of a larger assault on ownership rights. Over the past decade, courts and copyright owners have quietly been creating a world in which digital goods are never truly owned, but only licensed. And those licenses inevitably contain a plethora of legal restrictions on your ability to fully use the goods you "buy."

EFF has signed on to the Citizens' Petition for Ownership Rights, urging the U.S. government and the courts to protect our basic assumption that if you buy it, you own it, and can dispose of it as you please. You, too, can sign.

The petition was prompted by Kirtsaeng v. John Wiley & Sons, which is on its way to the Supreme Court. As we explained earlier this year, Kirtsaeng is a challenge to the "first sale" doctrine of copyright law. First sale says that once a given copy of a copyrighted work has been sold or given away, the copyright owner has no more legal control over that copy. That means the copyright owner can't ban resale, set a minimum resale price, or prohibit tinkering and modification. First sale is what makes used bookstores, libraries and video rentals possible.

In Kirtsaeng, the U.S. Court of Appeals for the Second Circuit said that first sale doesn't apply to copies made outside the United States, even if they were sold or given away legally and then imported into the U.S. Effectively, copies manufactured abroad—whether books, software, or physical goods with copyrighted labels or logos on them—could never be fully owned in the U.S. You could buy these goods, but you could never sell them or give them away without permission. Strange result, right? First sale is part of our intuitive understanding of what it means to buy and own something. If you've paid good money for a book, or a DVD, or whatever, or received it as a gift, it's fundamentally weird to be told that you can't lend it, or resell it as used, or give it away.

This decision gives copyright owners the ability to shut off markets for used copies, just by moving physical manufacturing abroad. It would also give manufacturers an incentive to move jobs out of the U.S. to create these legally handcuffed, non-resellable goods.

The defendant (and EFF) asked the Supreme Court to review the case, and the Court agreed. Now, we are asking the Obama administration to weigh in and protect the common-sense understanding of what it means to own something.

Kirtsaeng is not the only threat to owners' rights, though. Sellers of digital goods like software, e-books, movies, and music often try to opt out of the first sale doctrine using contracts - the shrink-wrap, clickwrap, and other forms of fine print agreements that we're inevitably presented with (and seldom read) whenever we buy digital goods. Often, those agreements say something like "this digital widget is licensed to you, not sold." The implication is that because the copyright owner hasn't "sold" you a copy, you can't lend it, or resell it, or give it away. Worse yet, you can't tinker with or modify it. Never mind that you paid for a permanent copy and the seller doesn't really expect that you'll ever give it back - the fine print claims to transform a sale into something else.

Unfortunately, several courts have ruled that this trick works. In Vernor v. Autodesk, Inc., the Ninth Circuit appeals court ruled that software licenses that "significantly restrict the user’s ability to transfer the software" and "impose notable use restrictions" turn what looks and feels like a purchase into something less.

Let's tell the courts and Congress that if it looks like a sale and feels like a sale, it's a sale. Let's sign the Citizens' Petition for Ownership Rights, to tell the Obama administration and the Attorney General to stand up for first sale at the Supreme Court. And beyond that, digital goods providers should not be able to opt out of first sale using magic words in the fine print of user agreements. Watch this space for more info on ownership rights and how you can help defend them!

How American fundamentalist schools are using Nessie to disprove evolution

Rachel Loxton

IT sounds like a plot dreamed up by the creators of Southpark, but it's all true: schoolchildren in Louisiana are to be taught that the Loch Ness monster is real in a bid by religious educators to disprove Darwin's theory of evolution.

Thousands of children in the southern state will receive publicly-funded vouchers for the next school year to attend private schools where Scotland's most famous mythological beast will be taught as a real living creature.

These private schools follow a fundamentalist curriculum including the Accelerated Christian Education (ACE) programme to teach controversial religious beliefs aimed at disproving evolution and proving creationism.

One tenet has it that if it can be proved that dinosaurs walked the earth at the same time as man then Darwinism is fatally flawed.

Critics have damned the content of the course books, calling them "bizarre" and accusing them of promoting radical religious and political ideologies.

The textbooks in the series are alleged to teach young earth creationism; are hostile towards other religions and other sectors of Christianity, including Roman Catholicism; and present a biased version of history that is often factually incorrect.

One ACE textbook – Biology 1099, Accelerated Christian Education Inc – reads: "Are dinosaurs alive today? Scientists are becoming more convinced of their existence. Have you heard of the 'Loch Ness Monster' in Scotland? 'Nessie' for short has been recorded on sonar from a small submarine, described by eyewitnesses, and photographed by others. Nessie appears to be a plesiosaur."

Another claim taught is that a Japanese whaling boat once caught a dinosaur. It's unclear if the movie Godzilla was the inspiration for this lesson.

Jonny Scaramanga, 27, who went through the ACE programme as a child, but now campaigns against Christian fundamentalism, said the Nessie claim was presented as "evidence that evolution couldn't have happened. The reason for that is they're saying if Noah's flood only happened 4000 years ago, which they believe literally happened, then possibly a sea monster survived.

"If it was millions of years ago then that would be ridiculous. That's their logic. It's a common thing among creationists to believe in sea monsters."

Private religious schools, including the Eternity Christian Academy in Westlake, Louisiana, which follows the ACE curriculum, have already been cleared to receive the state voucher money transferred from public school funding, thanks to a bill pushed through by state Governor Bobby Jindal.

Boston-based researcher and writer Bruce Wilson, who specialises in the American political religious right, compares the curriculum to Islamic fundamentalist teaching.

"They are being brought up to believe that they're at war with secular society. The only valid government would be a Christian fundamentalist government. Obviously some comparisons could be made to Islamic Fundamentalists in schools.

"One of these texts from Bob Jones University Press claims that dinosaurs were fire-breathing dragons. It has little to do with science as we currently understand. It's more like medieval scholasticism."

Wilson believes that such teaching is going on in at least 13 American states.

"There's a lot of public funding going to private schools, probably around 200,000 pupils are receiving this education," he And the majority of parents now home schooling their kids are Christian fundamentalists too. I don't believe they should be publicly funded, I don't believe the schools who use these texts should be publicly funded."

Daniel Govender, managing director of Christian Education Europe, which is part of ACE, said the organisation would not comment to the press on what is contained in the texts.

Of course, the Scottish tourist industry might well reap a dividend from the craziness of the American education system. Nessie expert Tony Drummond, who leads tours as part of Cruise Loch Ness, has a few words of advice to the US schools in question: come to the loch and try to find the monster.

"They need to come and investigate the loch for themselves," says the 47-year-old. "We've got some hi-tech equipment. They could come out on the boat and do a whole chunk of the loch.

"We do get regular sonar contacts which are pretty much unexplainable. More research has to be done, but it's not way along the realms of possibility."

But he's not convinced that the legend of the Loch Ness Monster is being taught the right way. "That's Christian propaganda," he says. "And ridiculous."

Textbooks of some state-funded Christian schools praise the Ku Klux Klan.

The violent, racist organisation, which still exists in the US, advocates white supremacy, white nationalism and anti-immigration.

One excerpt from Bob Jones University Press American history textbook has been reported as saying: "the [Ku Klux] Klan in some areas of the country tried to be a means of reform, fighting the decline in morality and using the symbol of the cross ... In some communities it achieved a certain respectability as it worked with politicians."

Other views taught include claims that being gay is a learned behaviour.

It isn't just America where the bizarre Christian Nessie myth is being taught as a reality. The UK has similar religious schools but they do not receive cash from the state. Nevertheless, the Evangelical Christian curriculum they follow has been approved by UK Government agency, the National Recognition Information Centre (Naric) which guides universities and employers on the validity of different qualifications.

Naric judged the International Certificate of Christian Education (ICCE) as officially comparable to qualifications offered by the Cambridge International exam board.

It is estimated around 2000 pupils study at more than 50 private Christian schools in Britain for the certificates as well as several home-educated students.

The courses are based around the Accelerated Christian Education (ACE) programme, which originated in Texas in the 1970s.

Pupils study a range of subjects, including science and English, but spend half their studies learning from Bible-influenced US textbooks.

It costs just $1.36 to charge an iPad for a year

The annual charging cost of an iPad is just $1.36, according to the Electric Power Research Institute. The group, known as EPRI, saw Apple Inc.'s big iPad sales numbers and decided to study the tablet computer's power use to determine what effect the devices might have on the nation's electricity consumption. / Lai Seng Sin

Written by Jonathan Fahey

NEW YORK — That coffee you're drinking while gazing at your iPad? It cost more than all the electricity needed to run those games, emails, videos and news stories for a year.

The annual cost to charge an iPad is just $1.36, according to the Electric Power Research Institute, a non-profit research and development group funded by electric utilities.

By comparison, a 60-watt compact fluorescent bulb costs $1.61, a desktop PC adds up to $28.21 and a refrigerator runs you $65.72.

The group, known as EPRI, studied the power consumption of Apple Inc.'s iPad to determine the effect that the newly popular devices might have on the nation's electricity use.

The answer: not much.

If the number of iPads triples from the current 67 million, they would need the electricity from one small power plant operating at full strength.

But if people are using iPads instead of televisions to play video games, or ditching their desktop computers for iPads, the shift to tablets could mean lower overall power consumption. A desktop computer uses 20 times more power than an iPad.

Baskar Vairmohan, the EPRI researcher who conducted the iPad test, said the group is now studying usage to understand whether the explosion of tablets is adding to power consumption, or reducing it.

Residential power demand is on track to fall for the third straight year, according to the government. A weak economy is keeping people in smaller houses and shacked up with others. At the same time, efficiency programs are pushing more efficient light bulbs, air conditioners and other devices into homes. Refrigerators use a quarter of the power they used a generation ago, according to EPRI.

For the iPad test, Vairmohan measured the amount of power used to charge up an iPad with a drained battery. He assumed that users would charge up every other day. Over a year, the latest version of the iPad consumed 11.86 kilowatt-hours of electricity. (Older versions consume somewhat less power.)

The juice would cost $1.36 at the U.S. average residential price of 11.49 cents per kilowatt-hour.

But there's an even cheaper way to go than the iPad. EPRI calculated the cost of power needed to fuel an iPhone 4 for year: just 38 cents.

Richard O'Dwyer and the new internet war

Join my petition to defend TVShack entrepreneur Richard O'Dwyer's battle against extradition

By Jimmy Wales


British student Richard O'Dwyer with his mother Julia leaving Westminster magistrates court in London on January 13, 2012.

I think that copyright matters, and is important. Creators ought to be legally able to give their work away freely, as so many do for the betterment of humankind, and to set certain conditions on how their work is used. And I think creators ought to be able to release their work under traditional copyright and have legal recourse against those who are illegally profiting from it.

It's important to say this up front, because much of what you will hear about the case of Richard O'Dwyer will be misleading propaganda designed to persuade you that people who defend him are defending copyright violation or "piracy". At least in my case, nothing could be further from the truth.

O'Dwyer created a website, called tvshack.net, that acted as a search engine for people to find out where they could watch and in some cases download popular TV shows, typically programmes not yet available outside the US. Some of the links led to legal sources, others to unauthorised sites. In that respect his site was no different from hundreds of thousands of services where the general public gathers to talk.

O'Dwyer respected the rules – deleting content when he received properly formatted take-down notifications. Given the state of US internet law, it is extremely difficult to see how he can be convicted of copyright violation. But that is what he is now threatened with, a conviction that could carry a sentence of 10 years in a US prison, after the British home secretary, Theresa May, signed an extradition order in March.

US authorities claim that O'Dwyer illegally made around £147,000 from advertising displayed on the site over three years. His lawyers contend that linking to other content is not illegal under UK law, and point out that Britain's Crown Prosecution Service did not pursue charges against him.

Copyright is an important institution, serving a beneficial moral and economic purpose. But that does not mean it can or should be unlimited. It does not mean that we should abandon time-honoured moral and legal principles to allow endless encroachments on our civil liberties in the interests of the moguls of Hollywood.

One of the important moral principles that has made everything we relish about the internet possible, from Wikipedia to YouTube, is that internet service providers need to have a safe harbour from what their users do. There are and should be some limits to this. Under US copyright law, there are notice and take-down provisions requiring service providers to remove content under a properly formatted notification. And there is a distinction between hosting copyrighted material and telling people where it is. The latter is protected under the first amendment.

When I met Richard (along with his mother), he struck me as a clean-cut, geeky kid. Still a university student, he is precisely the kind of person one can imagine launching the next big thing on the internet. Enthusiastic, with a sharp mind and a quick wit, he reminds me of many great entrepreneurs. He tried to follow the law, and I would argue that he very likely succeeded in doing so.

Given the thin case against him, it is an outrage that he is being extradited to the US to face felony charges. No US citizen has ever been brought to the UK for alleged criminal activity on US soil. There is a disparity here that ought to raise concerns at the highest levels of government in both the US and UK.

From the beginning of the internet, we have seen a struggle between the interests of the "content industry" and the general public. Due to heavy lobbying and much money lavished on politicians, until very recently the content industry has won every battle. Internet users handed the industry its first major defeat earlier this year with the epic Sopa-Pipa protests over planned copyright laws that culminated in a widespread internet blackout and 10 million people contacting the US Congress to voice their opposition.

O'Dwyer is the human face of that battle, and if he's extradited and convicted, he will bear the human cost. That's why I've launched a petition on change.org to ask the home secretary to stop his extradition – and why I hope you will sign it. Together, we won the battle against Sopa and Pipa. Together, we can win this one too.

Jail For File-Sharing Not Enough, Labels Want ISP-Level Spying Regime

From October, knowingly uploading or simply downloading copyrighted material from the Internet will be a criminal offense subject to jail sentences in Japan. But despite now having the ultimate deterrent, it’s still not enough for the Recording Industry Association of Japan. The group is now pressing for ISPs to install spying technologies that will automatically block unauthorized uploads.

Earlier this week, Japan approved an amendment to its Copyright Law that will soon give the authorities the power to jail Internet users for up to two years for simply downloading copyright material.

Uploading copyright material has been illegal for some time, but the criminalization of downloading has caused some to worry whether simply viewing a pirate music video on YouTube could render people liable to prosecution.

Understandably this kind of talk has the potential to lead to a climate of fear among Internet media consumers, but if that leads to increased sales at authorized outlets rightsholders won’t be too disappointed. In fact, after lobbying hard for this tough copyright law amendment, that will be very much “mission accomplished.”

Not surprisingly though, even the toughest of sanctions aren’t going to stop the big recording labels coming back for more mechanisms to protect their interests. And that they have.

Several music rights groups including the Recording Industry Association of Japan say they have developed a system capable of automatically detecting unauthorized music uploads before they even hit the Internet. In order to do that though, Internet service providers are being asked to integrate the system into their networks.

The system works by spying on the connections of users and comparing data being uploaded to the Internet with digital fingerprints held in an external database. As can be seen from the diagram, the fingerprinting technology employed is from GraceNote, with intermediate systems provided by Copyright Data Clearinghouse (CDC).

Once a match is found, rightholders want ISPs to automatically block the allegedly infringing content. But according to one report, there may even be requests to send out warning letters to uploaders. If implemented this would amount to the most invasive “3 strikes” style regime anywhere in the world.

The system is being promoted as a benefit to ISPs, in the sense that once installed (and licensed at a cost of around $600 per month) they can potentially avoid being held liable for copyright infringements carried out by their customers. Whether not having it installed will save ISPs from privacy invasion lawsuits remains to be seen.

Rightsholders have tried to get service providers to install this kind of system before, most notably resulting in the legal battle between music rights group SABAM and Belgian ISP Scarlet. That case ended in 2011 with the European Court of Justice declaring that spying on Internet users would breach their privacy and violate the fundamental rights of both the ISP and its subscribers.

Ninth Circuit to DEA: Putting a Gun to an 11-Year-Old's Head Is Not OK

Mike Riggs

At 7 a.m. on January 20, 2007, DEA agents battered down the door to Thomas and Rosalie Avina’s mobile home in Seeley, California, in search of suspected drug trafficker Louis Alvarez. Thomas Avina met the agents in his living room and told them they were making a mistake. Shouting “Don’t you fucking move,” the agents forced Thomas Avina to the floor at gunpoint, and handcuffed him and his wife, who had been lying on a couch in the living room. As the officers made their way to the back of the house, where the Avina’s 11-year-old and 14-year-old daughters were sleeping, Rosalie Avina screamed, “Don’t hurt my babies. Don’t hurt my babies.”

The agents entered the 14-year-old girl’s room first, shouting “Get down on the fucking ground.” The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old’s room. The girl was sleeping. Agents woke her up by shouting “Get down on the fucking ground.” The girl’s eyes shot open, but she was, according to her own testimony, “frozen in fear.” So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head.

Moments later the two daughters were carried into the living room and placed next to their parents on the floor while DEA agents ransacked their home. After 30 minutes, the agents removed the children’s handcuffs. After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left.

In 2008, the Avinas—mom, dad, and both daughters—filed a federal suit against the DEA for excessive use of force, assault, and battery in the U.S. District Court for the Southern District of California. That court ruled in favor of the DEA, and the Avinas appealed. Last week, the family got justice.

While the Ninth Circuit Court of Appeals defended the agents' rough treatment of Thomas and Rosalie, it also declared that yanking the Avina children of their beds and putting guns to their heads did, in fact, constitute the “intentional infliction of emotional distress.”

(Read the Obama administration's defense of the DEA agents.)

"A jury could find that the agents pointed their guns at the head of an eleven-year-old girl, 'like they were going to shoot [her],' while she lay on the floor in handcuffs, and that it was excessive for them to do so," reads the Ninth Circuit's decision, which was filed June 12. "Similarly, a jury could find that the agents’ decision to force the two girls to lie face down on the floor with their hands cuffed behind their backs was unreasonable."

More from the decision:

Under our case law, an issue of material fact exists as to whether the actions of the agents were excessive in light of the ages of B.S.A. (age eleven) and B.F.A. (age fourteen) and the limited threat they posed. See Tekle, 511 F.3d 839 (holding that officers were not entitled to summary judgment on excessive force claim where officers pointed guns at an eleven-year-old boy’s head during the arrest of the boy’s father); Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc) (holding that officer’s act of pointing a gun at an infant during the search of a gang member’s house was objectively unreasonable); see also McDonald ex rel. McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992) (holding that officer’s act of pointing his gun at a nine-year-old’s head during the search of home was excessive use of force). Accordingly, we reverse the district court’s grant of summary judgment in favor of the United States on B.F.A.’s and B.S.A.’s claims for assault and battery.

In a footnote, the court wrote:

Although there is evidence that the agents released the girls from their handcuffs once they realized how young they were, there is also evidence that the agents knew, prior to entering the girls’ bedrooms, that the girls were children. Rosalie testified that, as the agents were heading towards the girls’ rooms, she screamed at the agents several times, “Don’t hurt my babies.” Moreover, one of the agents testified at his deposition that, when he first saw one of the girls (presumably the older of the two girls), she appeared to be “12 [or] 13 years old.”

The ruling concludes:

Viewing the evidence in the light most favorable to the Avinas, a rational trier of fact could find that agents engaged in “extreme or outrageous” conduct when the agents: (1) pointed their guns at the head of eleven-year-old B.S.A. “like they were going to shoot [her]” while B.S.A. was lying on the floor in handcuffs; (2) forced eleven-year-old B.S.A. and fourteen-year-old B.F.A. to lie face down on the floor with their hands cuffed behind their backs; (3) left B.S.A. and B.F.A. in handcuffs for half an hour; and (4) yelled at eleven-year-old B.S.A. and fourteen-year-old B.F.A. to “[g]et down on the f[uck]ing ground.” See Tekle, 511 F.3d at 856 (holding that officers were not entitled to summary judgment on claim for intentional infliction of emotional distress where officers pointed guns at eleven-year old’s head during the arrest of the eleven-year-old’s father); see also id. at 859 (Fisher, J., concurring). Accordingly, we reverse the district court’s grant of summary judgment in favor of the United States on B.F.A.’s and B.S.A.’s claims for intentional infliction of emotional distress.

As a side note: While this raid was conducted under President George W. Bush, the deputy administrator of the DEA at that time was Michele Leonhart. She is now the administrator of the DEA, thanks to an appointment by President Barack Obama. Furthermore, the Obama Administration could have declined to defend the DEA in this case. Instead, Obama's Justice Department has decided to make the case that federal agents should be allowed to hold guns to the heads of children.

Louisiana sex offenders must identify themselves on Facebook

by Cyrus Farivar

Starting August 1, a new Louisiana state law will require sex offenders to disclose their status on social networks. But in theory, that shouldn't be necessary: Facebook and other social networks’ existing policies already forbid registered sex offenders from creating accounts.

"I don't want to leave in the hands of social network or Facebook administrators, 'Gee, I hope someone is telling the truth,'" State Rep. Jeff Thompson told CNN Tuesday. "This is another tool for prosecutors."

The new bill, formally known as Act 385, was signed into law by Gov. Bobby Jindal earlier this month.

“[A sex offender] shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics as required by this Section, and his residential address,” the law states.

“The person shall ensure that this information is displayed in his profile for the networking website and that such information is visible to, or is able to be viewed by, other users and visitors of the networking website.”

But if actual sex offenders do follow this law, it seems that they’d be asking Facebook to pull down their accounts pretty quickly. The new law comes on the heels of an overbroad state law that was struck down, and aimed to forbid sex offenders from using social media entirely.

Why Product Recalls Make You Less Safe

Genuinely dangerous products should be pulled from the shelves. But government recalls sometimes punish manufacturers for vague problems and blatant consumer misuse, actually reducing public safety. Even the word "recall" turns out to be defective.

By Dan Koeppel

Elmo was in danger. In the video Bryan Dussault posted on YouTube in February 2010, the Sesame Street favorite is strapped into a child-safety seat. Dussault tightens the five-point harness and then abruptly yanks the unit's shoulder straps, which are supposed to be snug against the infant passenger. The harness straps loosen. Dussault pulls the shaggy toy away as if it were being tossed, unprotected, in a high-speed collision. To anyone viewing the clip, but perhaps especially to anyone who travels in a car with a child, the scenario is startling and scary.

The series of events that led Dussault to film the sequence began on a freezing Chicago day earlier that winter. At the time his son was 3 years old. It was Grandma's turn to pick up the boy at preschool. But there was a problem. "My mother-in-law called me," Dussault says, "and said she couldn't get the car-seat straps to tighten up."

Dussault drove to the school and took his child home himself, along with the car seat that had apparently failed. He owned the same item—the $79 Vantage, purchased at Walmart and sold under the Safety 1st brand name. In his garage Dussault tested his own seat; again, the straps loosened. "I knew that if I got two doing that," he says, "there were probably thousands out there doing the same thing."

Dussault contacted the seats' manufacturer, Dorel Juvenile Group. Based in Columbus, Ind., Dorel is the world's largest maker of children's car seats. It sells about 8 million child-restraint systems—the official term for car seats—each year. But shoppers won't find the Dorel name in stores. Instead, the company's goods appear under a range of recognizable brands including Disney, Cosco, Eddie Bauer, and Maxi-Cosi.

Dorel offered to exchange Dussault's seats. But when the replacements arrived, Dussault says they failed his test as well. He filed a complaint with the National Highway Traffic Safety Administration (NHTSA). Meanwhile, Dorel asked him to return the original seats so the company could test them, standard procedure when an exchange is offered. Dussault was hesitant. "They were hot on my tail to get these seats out of my hands," he says. The company, he believed, intended to "sweep things under the rug."

To prevent that from happening, Dussault made the video. He contacted the news media. A local NBC affiliate dispatched a crew. The demise of Elmo went viral, and in 2011 Dorel recalled 800,000 car seats. A win for Elmo and kids everywhere?

That's debatable.

Dussault describes his struggle in David and Goliath terms, a concerned parent confronting a faceless corporation whose interests are driven more by sales than by safety. When it comes to products designed to protect children, that position isn't difficult to understand. I'm the father of a 16-month-old, and even before our son arrived, my wife and I did what most expectant families do: We went shopping.

I was amazed by the number of products available and dismayed by how many appeared to be defective—car seats, strollers, toys, cribs, nursery monitors. It seemed impossible to pick a category that wasn't prone to recalls. When my wife and I debated whether to allow our infant to sleep in the same bed with us, we were told that the only safe way to do so was to buy a "positioning device," a product that would prevent a sleepy parent from rolling over and smushing the poor tyke (never mind that parents have been cuddling their children to sleep for millennia). We rejected the advice, and good thing: On our next visit to Babies "R" Us, the positioner aisle was empty. It turned out the device itself could lead to suffocation if a child were pressed against it the wrong way.

At first my impression was similar to Dussault's: a rogue industry. A little research seemed to back that up. NHTSA recalled more than 100 different models of car seats from nearly a dozen manufacturers during the past decade. And media accounts almost always emphasize the profit-trumps-all angle when it comes to product defects. Particularly notable is a 2007 Chicago Tribune story that chronicled Dorel's attempts to prevent an earlier recall. Dorel had argued—correctly but unsuccessfully—that the straps on the car seats weren't up to standards because there were no clear standards when they were manufactured in 2000 and 2001. Other companies, it pointed out, used materials of similar strength and design and hadn't been penalized. The reporters painted the company as uncaring, even conspiratorial—quoting an internal email from a Dorel executive who wrote: "Why? It still sells." The series of investigative reports that included the story won a Pulitzer Prize. And after losing an appeal to the NHTSA in 2010, Dorel was forced to recall about 4 million car seats.

But eventually I began to question whether product defects could really be so rampant. Most of the recalls I had read about appeared to be for items that caused no injuries or where injuries could only be vaguely attributed to a specific problem. As I began to search my home for recalled products—not just stuff aimed at kids, but appliances, tools, electronics, and everything else modern shoppers own and covet—I quickly became overwhelmed. There were so many recalls and so many sources of information on recalled products that I could barely keep track. Did I own dangerous items? Were they really dangerous or just potentially dangerous? And what action should I take, if any?

Trying to sort through it all was impossible, so I gave up. And in that way I became an even more typical American consumer: one unable to make my home truly safer, because the system by which we judge, identify, and correct broken gear is as defective as anything found on store shelves.

In the United States, product recalls are overseen by six federal agencies. The majority come under the jurisdiction of the Consumer Product Safety Commission (CPSC), which handles everything from toys and power tools to appliances. Recalls connected to automobiles—cars, tires, and child-restraint systems—are within the NHTSA's purview. Boats and nautical items are regulated by the Coast Guard. Products containing chemicals, such as house paint and pesticides, are Environmental Protection Agency territory; the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA) handle edibles, pharmaceuticals, and cosmetics.

The division of federal oversight—car seats to the NHTSA, strollers to the CPSC; burgers to the USDA, fries to the FDA—is just the beginning of the knot consumers need to untangle if they're hoping to learn whether a product they own poses a threat. Though there's ostensibly a one-stop database of product alerts, recalls.gov, the website's utility is marred by confusing design and poor information retrieval. Clicking on the Search for Recalls button opens a page with six additional search boxes, each tied to a different agency or category. If you don't know what jurisdiction a product falls under, you'll have little success, which may be just as well: Sometimes products are identified only by inventory-control codes useful to retailers and manufacturers. Photographs are often unavailable. If you do manage to discover a potentially relevant recall, you're given the investigation number assigned by the overseeing agency but not always a link to the investigative details themselves.

Details that are included don't generally provide context for injuries or useful consumer information. For example, the notice for a Task Force electric log splitter, recalled in July 2011, states that two injuries had been reported after operators placed their hands on the handle while the splitter was in operation. The notice instructs consumers to stop using the product and send for free warning labels. "That has got to be one of the weirdest recalls we've ever seen," wrote Everett Snyder on ProToolReviews.com. "The recall itself doesn't do too much to explain the problem or deliver specific (detailed) instructions for safe use of the tool... No, for that you need to wait for the stickers to show up."

This muddle is made worse by the scale and number of recalls. During the past five years, more than 150 million children's items, 110 million household goods, and 9 million pieces of sporting equipment have been recalled by the CPSC alone, according to the recall-tracking group WeMakeItSafer. There are so many recalls—nearly 1500 by all six agencies in 2011—that many consumers have simply stopped paying attention to them. A 2010 Consumer Reports survey found that just under 25 percent of respondents ever bothered to research whether a product they owned had been subject to a recall; of those who knew they owned a recalled product, only about 30 percent actually did something about it. There's even a new term for the phenomenon of ignoring product-safety warnings: recall fatigue. "So many recalls are announced in so many ways that when you hear it on the news, it just doesn't register," says Craig Wilson, vice president of quality assurance at Costco Wholesale Corp. "The perception is that there's a lot of crying wolf going on."

A day after Elmo's mishap hit Chicago airwaves, the NHTSA's Office of Defects Investigation opened case PE10-009—a preliminary evaluation, which doesn't indicate that a recall is necessary or even being contemplated. Though the agency receives about 35,000 consumer complaints each year, just two—both Dussault's—had been registered for the Vantage, which had been highly rated in Consumer Reports.

Preliminary or not, opening an investigation also opens floodgates. The manufacturer of the product in question is required to deliver thousands of pages of data: test results, transcripts of customer-service calls, descriptions of manufacturing procedures, sales figures. The NHTSA announces the inquiry to the public, an evidence-seeking strategy that can lead to hundreds of additional complaints. For the Vantage, it yielded only six new reports, none of which involved injuries. Despite this, the agency moved the inquiry to the next level: engineering analysis. On July 2,2010, case EA10-005 was opened: Dorel was asked to provide complete details on how the seat was built and tested, and whether any changes had been made at the factory that might have coincided with the complaints of strap slippage. Over the next couple of months, Dorel submitted thousands more pages of documentation.

In an 11-page letter to the NHTSA dated Sept. 21, Terry Emerson, Dorel's director of quality assurance, stated that no slippage had occurred in the Vantage's initial rounds of testing—2900 on crash sleds and 2000 mechanical strap pulls. The public investigation attracted 40 additional complaints, representing 0.00005 percent of seats sold. No injuries or deaths were reported. Dorel, Emerson wrote, "does not believe the subject units contain a safety-related defect."

But the company did find that some center front adjusters (CFAs)—the locking and release buttons that secure the straps—could, if excessively dirty, not tighten as well as a new product's (though that could be remedied by making sure the CFA is actually pressed firmly into place). And so, on Feb. 14, 2011, Dorel initiated a voluntary recall, offering what consumer-safety specialists call a sealed fix—a repair kit rather than a full product swap. The kit consisted of a tiny tube of food-grade lubricant; the primary ingredient, canola oil.

The main difference between Dorel's remedy and a squirt of something from a typical pantry is a sticker that comes with the kit, indicating the fix has been applied. But there is no evidence that the tube-of-lube solution addresses what caused Dussault's seats to fail. When Dorel finally got those car seats back, it couldn't reproduce the problem. Nor could outside testers, including Consumer Reports, which takes an aggressive stance toward product safety. Though Dorel won't disclose how much the recall cost, its annual reports indicate the juvenile division has spent more than $50 million in the past five years on product liability expenses.

Barry Mahal, Dorel's executive vice president for child-restraint systems, says the company agreed to the recall out of "an abundance of caution." What Mahal didn't add was that Dorel also likely agreed to the recall because it knew it couldn't win; it had already been down that road with the recall that led to the Pulitzer Prize—winning investigation. Though the Tribune reporters quoted a Dorel attorney pointing out that a particular car crash, not a product defect, may have caused a child's injuries, the story ended with a depiction of that child rocking back and forth in her kindergarten class, unable to speak or seemingly comprehend.

The interplay between tragedy and recall makes for gripping narrative; there's little doubt that such stories can compel normally glacial federal agencies to react quickly. The most prominent example of this is the fairly well-known—but still poorly understood—story of Toyota and the phenomenon called unintended acceleration.

Accounts of Prius, Lexus, and Camry models unexpectedly gathering speed began to dominate the headlines in 2009. That was when the audio of a horrific 911 call—made from the car of off-duty California Highway Patrol officer Mark Saylor—garnered hundreds of thousands of online plays. Saylor and three members of his family died when their Lexus spun out of control while traveling more than 100 mph. The incident was ultimately attributed to the wrong floor mat installed by a dealer, but experts, including Joan Claybrook, former head of the NHTSA, insisted the problem had to be an electronic defect. In February 2010, Department of Transportation secretary Ray LaHood recommended that Americans stop driving their Toyotas. Three weeks later, the company's CEO, Akio Toyoda, issued a public apology. Toyota ended up recalling more than 8.5 million vehicles. The damage to the company ran into the billions of dollars: Its U.S. market share dropped from 17 percent in 2009 to 12.6 percent in 2011, putting it in third place behind General Motors and Ford.

In an effort to find the alleged bug, the NHTSA enlisted NASA to conduct the largest automotive defect investigation in history. In February 2011, the agencies concluded that no flaws in Toyota's control systems could be found. The most likely culprit, the report revealed, was "the driver's unintended application of the accelerator, rather than, or in addition to, the brake." In other words, human error.

Brian Lyons, safety and quality communications manager at Toyota USA, says that the company didn't realize how quickly media reports would snowball. "The evidence said that there wasn't anything wrong with the electronics systems," he says. "The battle was getting the truth out there."

Though Toyota's market share is recovering, the company faces nearly 200 lawsuits. In the first of those cases, Toyota argued (in accordance with NASA findings) that driver error was the main cause of the accident—a defense that resulted in a storm of condemnation. Many of those who chastised Toyota for blaming the victim wrote for blogs operated, with varying degrees of transparency, by law firms looking to identify such victims and file claims on their behalf. These firms use technological savvy to game Web results, either by purchasing keywords and advertising or by optimizing their sites to register prominently with Google. Enter "car seat defect" into the search engine and of the first 50 results, 43 are law firms.

"What we've ended up with is a protection racket," says Michael Krauss, a professor of law at George Mason University who specializes in product liability. "These lawyers are on a never-ending search for clients. Paying them off has become part of the cost of doing business."

Krauss says that excessive litigation has skewed the entire way products are built, sold, and marketed today. Companies hesitate to deal openly with flaws because they fear litigation; consumers, noticing this, mistrust manufacturers. And the U.S. legal system has become an enabler, Krauss says, because liability cases here—unlike in most other countries—are decided by juries rather than judges, allowing room for emotion to swamp facts. Multimillion-dollar settlements are far more likely, Krauss says, "because a company is going to be very averse to being in a courtroom where aggrieved parents are holding up pictures of a dead or disfigured child while the jury hears the evidence and deliberates."

Companies like Dorel work in such a charged atmosphere that they can't even obtain product-liability insurance; instead, they keep tens of millions of dollars reserved for private lawsuit settlements. Dave Campbell, an analyst with the Juvenile Products Manufacturers Association, says that consumers pay a premium of up to 5 percent on most kid-oriented products in order to fund settlement pools. For smaller businesses, operating closer to the margin, high liability insurance can push them out of the market—or dissuade an entrepreneur with a smart innovation from launching a company in the first place.

Government has a role in ensuring product safety. But the bottom line is that a recall—whether or not the product is dangerous—is useless if nobody hears about it. Most current efforts to spread the word seem to do little but add to the clamor. Federal agencies now offer more mobile apps, more text alerts, and more website widgets, all drawing on the same vast stores of raw data. The most recent addition to this well-intentioned deluge is saferproducts.gov, mandated by the Consumer Product Safety Improvement Act (CPSIA) of 2008. The site duplicates much of the information on recalls.gov, though with a better-looking interface and a new feature: a public forum for reporting defects.

As valuable as such a tool might seem, one result has been to turn the site into an electronic complaint department. (Recent incidents included a man who was burned by fireworks and another who felt nauseated after shaving.) CPSC commissioner Anne Northup objected to the use of agency resources to investigate such claims in Congressional testimony in March 2011. "Many believe the public database, if left unchanged, will be useful only to trial lawyers or advocacy groups that will be able to populate it with unverifiable, secondhand information for their own purposes," she stated. (CPSC chairwoman Inez Tenenbaum disputes the reports are unverifiable.) More promising is that the CPSC recently opened its database and underlying code. This should enable private software developers to build custom, highly targeted applications, says agency spokesman Alex Filip.

Both the NHTSA and the CPSC have also been plagued by an investigative process that hasn't kept up with technology. In congressional hearings following the Toyota recalls, NHTSA administrator David Strickland said the agency employed just five electrical engineers and one software engineer out of its 125 engineers working on automotive investigations. The CPSIA mandated that the agency improve its technical facilities so it could conduct more authoritative product tests. In a 2011 report to Congress, the CPSC said that it was unable to adequately accomplish that goal because it "lacked the necessary infrastructure to directly accredit the testing laboratories." In both internal documents and public statements, the federal agencies admit to being as overwhelmed as consumers. "We've got very, very full plates, and we don't move at the speed we'd like to," an NHTSA official told me. "But we do what we can with what we have."

Most observers say the solution lies in both addressing the recall process and rethinking how recalls are communicated. That includes examining the terminology. In the United Kingdom, the word "recall" is used only for products that have caused, or are likely to cause, deaths or very serious injuries. Lesser cases are termed corrective actions; they can be addressed via consumer education or minor fixes, like the tubes of oil offered by Dorel. The adoption of more nuanced wording has been proposed repeatedly in the U.S., but government officials involved in recalls say that such a system is too risky because it might prompt consumers to further ignore product-defect notices. "The problem is that we end up making the judgment, when that should be left to consumers," the NHTSA official says. "If they think the risk is too minor, they won't take advantage of the remedy."

If scare tactics worked—if they actually made people comply with recalls—then perhaps a little hyperbolic horror would be a good thing. Unfortunately, says William K. Hallman, a psychologist and director of the Rutgers University Food Policy Institute, fear turns out to be a lousy motivator. "Scaring the crap out of people doesn't work," says Hallman, who is working with the FDA to help improve recall communications. "When people are that terrified, the outcome is usually no action at all."

As I read through the accounts of various recalls, I found myself wondering: Regardless of whether the issue is a foot on the wrong pedal or a Roman candle aimed in the wrong direction, how much responsibility do manufacturers bear for operator error? In the case of Mark Saylor, someone was clearly at fault: the dealer who installed the floor mats in his loaner vehicle. But what about when consumers purchased floor mats that weren't made by Toyota? The company's corrective action, which included a pedal redesign to make mat entrapment less likely, was the right thing to do; a shopper should be able to reasonably expect that a product will be safe under standard usage. That said, many cases I looked at seemed to revolve around good people making honest mistakes—bad mistakes, sometimes—and being unable to recognize or admit to the fact.

One company that attempted to both do the right thing—fix a problem that wasn't necessarily a defect—and point out that customers had a responsibility to use its product correctly is Maclaren, one of the world's largest makers of baby strollers. In November 2009, the U.S. subsidiary of the British firm recalled 1 million umbrella-type folding baby carriers. Twelve children had suffered injuries, including partial amputations, when their fingertips got caught in the product's folding mechanism. Those injuries never occurred when children were actually in the strollers—only when they became entangled as parents were folding the equipment. The problem also wasn't unique to Maclaren strollers.

Despite clear instructions on proper usage, Maclaren agreed to a recall. It was preparing to announce the effort when the process suddenly went awry, according to company CEO Farzad Rastegar, writing in the January 2011 Harvard Business Review. Maclaren had planned to issue a press release announcing the recall on Nov. 10, 2009, but one day earlier, word of the recall leaked to the New York Daily News, setting off a media frenzy. "For several months," Rastegar wrote, "we had worked with the CPSC on a plan to make owners more aware of the danger and to provide protective hinge covers... But the news story provided none of this context. Nor did it explain that practically all strollers on the market have similar hinges."

Within 24 hours TV crews showed up at the company's Connecticut headquarters and hundreds of mommy blogs issued frantic warnings. Panic ensued. A Brooklyn mother told The New York Times that the two biggest threats her children faced were "swine flu and Maclaren strollers." The company's website and email crashed—and even that was portrayed as an example of Maclaren's ineptness.

"We had hoped that the recall would build awareness about the wider risks of operating a stroller, not just about hinges," Rastegar wrote. "Instead, we would have to start defending our brand."

In the end Maclaren distributed more than 300,000 hinge covers. Even so, by the end of 2011, 149 additional injury reports had been filed, indicating typically low recall compliance. Even as it reissued notices, Maclaren insisted the process was flawed. Its website pointed visitors toward a document calling for all stroller manufacturers to offer hinge covers. (Several brands with similar designs have been recalled, but I was able to find five folding strollers with unprotected hinges in less than an hour of shopping.)

CPSC's Filip says the piecemeal approach to umbrella-stroller recalls could change; the CPSC could issue a category-wide product-defect order, as it did for drop-side cribs in 2011. But in order to do that, the agency would need "to make a strong case for intrinsic danger," he says. So far, such a case hasn't emerged.

Just after Christmas 2011, Maclaren USA filed for bankruptcy. Among the listed liabilities were "unknown" claims (meaning the amounts were undetermined) by seven families and law firms suing the company, along with the CPSC, for ongoing expenses related to the stroller recall.

Products need to be user-friendly in the real world, where people are in a rush, where crevices get jammed with gunk and goo, where—in the case of car seats—Mom's vehicle might have deep buckets and Dad's truck might have a bench. We're a one-car family, but even so, I was surprised at how difficult it was to install our car seat (it didn't help that I was doing it for the first time while my wife was in labor—don't ask). Statistics show that as many as 80 percent of existing car seats—depending on the seat type, the age of the child, and the vehicle—are improperly installed or misused. It's been that way for decades despite efforts to teach parents the correct process. There are more than 25,000 certified car-seat-installation technicians in the U.S., most of whom offer their services for free through local hospitals and police and fire departments.

Maybe the expectation of ease is unreasonable. A car seat is a complex product that has a very critical function. As much as I wish that my car seat would simply click in and always be secure, I know better: I've got to learn how it works, use it correctly, and maintain it.

By the end of this year, Dorel will submit a report to the NHTSA outlining the results of the Vantage recall. Most likely, compliance will be low, and most likely, it will be difficult to determine if any injuries have occurred because of the recalled product or if any have been prevented by the recall. What's certain is that there will be more recalls. Parents and manufacturers will continue to make mistakes—something I became personally aware of when, using Urban Apps' Recalls for iPhone, I made a second pass through my house.

One of our son's earliest favorites was a bright yellow baby chair called a Bumbo. I discovered it had been recalled in 2007 after reports that children pitched themselves out of it. Though there were some design flaws, the bigger issue seemed to be misuse: Serious injuries occurred when the product was placed on a table or counter, resulting in a fall from height.

I was well aware of this problem; I'd almost let it happen myself. We were having dinner, and I'd placed the Bumbo in the center of our dining room table. Our son wriggled forward, and suddenly he was out of the chair. He didn't fall off the table, but it was close—and I felt terrible about the bump on his head.

With the Bumbo I broke two major rules when it comes to product safety. First, I didn't follow the instructions. That was because—here's the second broken rule—I didn't have instructions. We bought the product used, as more and more parents are doing these days; reselling a recalled product is illegal, though such goods can be readily found at garage sales and on auctions sites like eBay. But mostly I didn't use common sense.

Personal responsibility isn't the sole answer. It needs to be backed up with an approach to defects that's evidence-based, and with communications that get genuinely bad products off the market. One such model can be found in membership clubs. Costco's Wilson says that traditional recall notices have been so ineffective that his company created its own system, maintaining a database of everything a customer buys. When a recall is announced, the company calls everyone who has ever purchased the product, then follows up with a letter. It also has an internal recall process that moves far more quickly than a government agency's, issuing notices for products it believes are unsafe based on negative customer feedback. Wilson says that Costco's effectiveness rate for reaching consumers is more than 90 percent.

Could that Costco model be applied to consumers who don't buy at membership-based stores? Widespread use of debit cards, transactions that automatically register serial numbers for inventory control, and the fact that most major retailers now have loyalty programs that track purchases indicate the data may be available. (CPSC's Filip says such a program is not within the agency's current mandate.)

Several companies are developing search-engine-like technology that trolls federal recall sites. WeMakeItSafer, for example, reformats and consolidates the information into useful data, then notifies registered users directly when there is a relevant recall, or works with retailers and manufacturers, who can direct the recall toward a specific database of customers. That way, consumers will receive information only about products they own. "The answer isn't telling the world there's a recall in the hope of reaching the few people that own a product," CEO Jennifer Toney says. "It is about using technology to home in on just the people who need to know they have issues with something they own and need to get it fixed."

I want—for myself and my family—to be protected from truly defective products. But I also want to see a system that is honest about identifying those products, that assesses risk properly, that advocates responsibility as much as—or more than—it assigns blame. I want to know that decisions are being made carefully enough that I'll be likely to hear about them—and likely to care about them. I'd be delighted if the government did that; I'd also be delighted if that was something that could happen via new technology or through my favorite retailer or anyone else who could figure it out. I'd even be happy to get the message from Elmo. I just want the message to mean something.

Free Speech for Computers?

By TIM WU

DO machines speak? If so, do they have a constitutional right to free speech?

This may sound like a fanciful question, a matter of philosophy or science fiction. But it’s become a real issue with important consequences.

In today’s world, we have delegated many of our daily decisions to computers. On the drive to work, a GPS device suggests the best route; at your desk, Microsoft Word guesses at your misspellings, and Facebook recommends new friends. In the past few years, the suggestion has been made that when computers make such choices they are “speaking,” and enjoy the protections of the First Amendment.

This is a bad idea that threatens the government’s ability to oversee companies and protect consumers.

The argument that machines speak was first made in the context of Internet search. In 2003, in a civil suit brought by a firm dissatisfied with the ranking of Google’s search results, Google asserted that its search results were constitutionally protected speech. (In an unpublished opinion, the court ruled in Google’s favor.) And this year, facing increasing federal scrutiny, Google commissioned Eugene Volokh, a law professor at the University of California, Los Angeles, to draft a much broader and more elaborate version of the same argument. As Professor Volokh declares in his paper: “Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers.”

To a non-lawyer the position may sound bizarre, but here is the logic. Take a newspaper advice columnist like Ann Landers: surely her answers to readers’ questions were a form of speech. Likewise, when you turn to Google with a question, the search engine must decide, at that moment, what “answers” to give, and in what order to put those answers. If such answers are speech, then any government efforts to regulate Google, like any efforts to bowdlerize Ann Landers, must be examined as censorship.

And that’s where theory hits reality. Consider that Google has attracted attention from both antitrust and consumer protection officials after accusations that it has used its dominance in search to hinder competitors and in some instances has not made clear the line between advertisement and results. Consider that the “decisions” made by Facebook’s computers may involve widely sharing your private information; or that the recommendations made by online markets like Amazon could one day serve as a means for disadvantaging competing publishers. Ordinarily, such practices could violate laws meant to protect consumers. But if we call computerized decisions “speech,” the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.

Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.

It is true that the First Amendment has been stretched to protect commercial speech (like advertisements) as well as, more controversially, political expenditures made by corporations. But commercial speech has always been granted limited protection. And while the issue of corporate speech is debatable, campaign expenditures are at least a part of the political system, the core concern of the First Amendment.

The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all. (Where a human does make a specific choice about specific content, the question is different.)

Defenders of Google’s position have argued that since humans programmed the computers that are “speaking,” the computers have speech rights as if by digital inheritance. But the fact that a programmer has the First Amendment right to program pretty much anything he likes doesn’t mean his creation is thereby endowed with his constitutional rights. Doctor Frankenstein’s monster could walk and talk, but that didn’t qualify him to vote in the doctor’s place.

Computers make trillions of invisible decisions each day; the possibility that each decision could be protected speech should give us pause. To Google’s credit, while it has claimed First Amendment rights for its search results, it has never formally asserted that it has the constitutional right to ignore privacy or antitrust laws. As a nation we must hesitate before allowing the higher principles of the Bill of Rights to become little more than lowly tools of commercial advantage. To give computers the rights intended for humans is to elevate our machines above ourselves.

IDair's new fingerprint reader captures prints from 6 meters away

HUNTSVILLE, Alabama -- Forget the key card to your office building? Just wave your hand at the door, and you're in. "You don't have to stop at a station. Nobody checks your ID. You just walk through," explains Clemson-educated physicist Joel Burcham of his new Huntsville company called IDair.

IDair makes a machine that Burcham says can photographically capture a fingerprint from as far away as six meters in enough detail to match against a database. Add facial and iris-recognition technology, Burcham said, and you have the basis for a good biometrics system that can control access to any building or room within a building.

Who needs this level of security? "Sooner, rather than later, we're all going to need it," Burcham said in a recent interview at his office at Huntsville's HudsonAlpha Institute for Biotechnology.

HudsonAlpha, known for human genome and other biological research, gave Burcham a desk for his startup company - "one desk," he said - because Burcham plans to expand to latent print imaging, a process that involves biological questions of the kind routinely investigated at HudsonAlpha.

Currently, IDair's customers are military. The system can be used, for example, to tell the difference between friendly locals and potential terrorists while soldiers stay safe behind blast walls.

But the future lies in commercial use. A 24-hour fitness center chain is beta-testing the system now as a way to stop access key sharing by friends or roommates, he said. Ultimately, Burcham said, the vision is that "when you walk into Target and run the items you want to buy across the checkout counter, you aren't going to have to pull out your wallet or dig out your credit card, which is easily stolen and getting easier to steal every day."

How does the IDair unit work? Burcham says it's closer to the way satellites process ground images than the way Photoshop refines our vacation pictures. "There is a little bit of pattern recognition," he said, "but a lot of it is different ways of sharpening the image ... a lot of edge detection, things like that."

Using image processing means there's no need for the subject to touch the scanner to get a reading. That eliminates problems associated with oil or dirt on the finger. The basic IDair machine now, which costs under $2,000, processes one finger's print. That's good enough to get into a building, when added to iris or face-recognition software, but ironically it isn't good enough to make a commercial transaction. Four fingers is the standard for that level of identification, he said.

Burcham understands the privacy concerns raised by fingerprint capture. His systems are not connected to major databases such as the FBI's, he said, so there is no chance you will be screened for outstanding arrest warrants, for example, when you enter a building using the IDair system.

"What realistically happens is you're an employee of a company," Burcham said. "The company wants to put one of these devices on the door. You enroll in the system right there and then. They are not connected to anywhere else. You give your prints to the system, and they are collected on the system."

It's the security of the fingerprint database that concerns privacy experts such as Lee Tien, a senior staff attorney at the Electronic Frontier Foundation. "There are so many steps where a (digital) fingerprint can leak," Tien said.

Tien said electronic fingerprints can be like Social Security numbers. He calls them "coat hangers" on which a lot of identifying information can be hung. In other words, with a Social Security number, you can find out many other things about someone. Fingerprints could be same way, he said, and "someone else could use it to pretend to be me."

"Yes, it can be abused," Burcham agreed. "Anything can be abused. The point is, are there restrictions in place to not abuse it?" The answer with IDair is yes, he said. "But what it's going to come down to is: Do you want to go through that door? Do you want to buy something with Amazon?"

IDair is a spin-off of Advanced Optical Systems, and Burcham said two of the company's officers are investors in the new company, which has three employees and an intern today. It will grow soon, he said. The company, which has a website at IDair.com, will seek a second round of financing soon, Burcham said, and investor interest is welcome.

RIAA to CNET: Follow Google, nix video-to-MP3 conversions

Days after Google blocked a site that converts songs from YouTube music videos into MP3s, the RIAA again asks CNET to remove conversion software from Download.com.

by Greg Sandoval

The Recording Industry Association of America wants to put an end to software and services that enable people to rip songs from music videos.

Two days after YouTube-MP3.org, a site that converts songs from music videos into MP3 files, was blocked from accessing YouTube, the RIAA has asked CNET to remove software from Download.com that performs a similar function. CNET, which is owned by CBS, is the publisher of this news site.

The RIAA, the trade group representing the four largest record companies, began pressuring Google to start cracking down on the MP3-conversion services about a year ago, according to music industry sources. That's about the same time the trade group says it began appealing to Download.com to do the same.

"More than a year ago we asked Download.com to remove applications that are used to steal our members' content," the RIAA said in a statement. "Download.com continues to ignore our requests and many of these applications are still being promoted on the site. Download.com is profiting from this infringement through advertisements and other ways it derives revenue when people use the site to download these applications."

The RIAA focused its criticism on software found at Download.com called YouTubeDownloader. The software's description at Download.com reads:

"YouTube Downloader is a popular, free program that enables you to download and convert online videos...for later viewing on your desktop or mobile device. It can convert files to MOV, MP4, 3GP, WMV, AVI, or MP3. The name 'YouTube Downloader' is terribly misleading because the program, in fact, downloads a whole lot more than just YouTube videos. On the developer's site, you can find an extensive list of additional supported sites including Facebook and Vimeo."

The RIAA noted that the software has more than 108 million downloads and Download.com editors gave it 4 1/2 out of 5 stars. The organization also pointed out that there are many other similar applications available at the site, "which can be used to steal content from CBS, which owns Download.com."

CNET declined to respond to the RIAA but what I've learned from poking around internally is this: CNET's policy is that Download.com is not in any position to determine whether a piece of software is legal or not, or whether it can be used for illegal activity. As I understand it, plenty of the software at issue has significant non-infringing uses. As for removing illegal software, CNET has a record of doing that. When the RIAA made a request to pull LimeWire, the once popular file-sharing software, CNET managers declined until a federal district judge ruled in 2010 that the service indeed violated copyright law.

A colleague pointed out that this is the same position taken by Google regarding search results. Google may have banned YouTube-MP3.org from accessing YouTube, but key in the words "YouTube" and "conversion" and a link to YouTube-MP3.org is the first thing you see.

YouTubeDownloader and YouTube-MP3.org are just a small sample of the software and services performing these conversions that also offer non-infringing uses. The big question is whether a company like CNET can be held responsible when someone misuses the software.

Mark Litvack, a former director for the antipiracy division of the Motion Picture Association of America, said he doubts very much whether the RIAA wants to sue CNET and also that he didn't know of any cases in which a third-party provider was sued for distributing ripping software. "I don't see any need for CNET to change its policy."

Eric Goldman wasn't as confident that CNET is in a good position. Goldman, an associate professor of law at Santa Clara University School of Law, and director of the school's High Tech Law Institute, said that the law here is "murky" and that the first thing that would need to be decided is whether the conversion software offered by Download.com is illegal. Goldman said that copyright owners are casting a wide net at those they hold responsible for violations.

"We're seeing copyright owners going after people who use tools to infringe," Goldman said. "We're seeing them go after people who provide the tools and then the people who provide support for the tools. We're seeing people several steps away from actual infringers accused of infringement."

He said that if the content on Download.com was user-generated and not editorially controlled, it would be a cinch. The service would be protected under the Digital Millennium Copyright Act and CNET could not be held liable for any copyright violations committed by users. He said one area that could prove troublesome for CNET is the anti-circumvention rules. It is illegal to circumvent copy protection schemes on copyrighted material.

"The dilemma is whether converting a YouTube video into an MP3 is a circumvention of someone's technological protection measures," Goldman said. "If it is, then the toolmaker is almost certainly liable and those that provide support could be held liable as well."

Goldman finished by saying he thinks the rules "stink" and there is a need for much more clarity.

Hey Congress - Executive Privilege Getting in the Way of Public Accountability? EFF Feels Your Pain. And Here's a Way to Fix It.

Yesterday, a House Committee grabbed national attention by voting to approve a recommendation that Attorney General Eric Holder be held in contempt of Congress. The vote stemmed from the Department of Justice’s repeated refusals to release documents concerning the handling of an investigation known as “Fast and Furious” – a botched DOJ law enforcement operation aimed at slowing the flow of illegal weapons from the United States to drug cartels in Mexico. In an effort to head off a contempt vote, President Obama asserted “executive privilege” on Wednesday in an attempt to legitimize the DOJ’s refusal to disclose the requested documents. Multiple reports noted that this was the first time the President had asserted the privilege since taking office.

If only that were true of the entire executive branch. Unfortunately, the DOJ asserts the privilege in EFF’s FOIA cases all the time. So Congress, we know what you’re going through, we feel your pain, and we’ve got a way you can fix the problem.

If Congress really wants to send a message to the DOJ, it should forget about a contempt vote and focus on a long-term solution: cabining the Executive’s ability to assert the privilege in the first place.

In general, evidentiary privileges protect the compelled disclosure of information in formal government proceedings. Some of the more familiar privileges are the attorney-client privilege, the privilege against self-incrimination, and the doctor-patient privilege. The executive branch, too, has its own set of privileges, which come in a few different varieties, all with differing legal foundations and scope. For example, the presidential communications privilege (sometimes referred to, confusingly, as the executive privilege) is constitutionally grounded and, when invoked, protects any document or communication between, or generated for, the President and his closest advisors. Another type of privilege available to the Executive, the state secrets privilege, is not constitutionally grounded but, instead, has its roots in the common law. The state secrets privilege can only be used to withhold information concerning foreign relations and military affairs.

The privilege asserted by the President on Wednesday is the deliberative process privilege (pdf), a privilege that, properly applied, is at once applicable to a narrower and more specific type of record than the presidential communications privilege, yet is available to a larger swath of the executive branch. The deliberative process privilege – another privilege with common law origins – only protects internal, executive branch communications created in the course of government policy formation. The rationale behind the privilege is that, if executive officials are not allowed to keep some internal deliberations secret, officials will be inhibited from freely expressing ideas and opinions; and, as a result of this inhibition, the process of policy formulation will be less robust and resulting government policies will suffer.

In the abstract, the privilege makes sense. However, in practice – and in EFF’s FOIA cases in particular – the DOJ’s assertion of the privilege rarely aligns with the underlying rationale.

For example, in our FOIA lawsuit over a secret surveillance law opinion written by the DOJ's Office of Legal Counsel, the DOJ asserted the deliberative process privilege (along with other FOIA exemptions) to withhold the binding opinion in its entirety. The DOJ invoked the privilege despite the fact that the memo was a final version (as opposed to a draft), despite the fact that the opinion had been distributed outside DOJ to other government agencies and to members of Congress and their staffs; and despite the fact that the memo shapes and interprets the substantive privacy rights of citizens under federal law. In effect, the DOJ relied on the privilege, at least in part, to hide a body of secret surveillance law from EFF and the American public.

In another case involving the deliberative process privilege, EFF sued to obtain records related to the High Level Contact Group – a joint EU and U.S. working group tasked with negotiating a set of common principles on the transnational sharing of citizens’ personal information for law enforcement purposes. EFF sought all DOJ records that reflected the negotiating positions of the EU and the U.S. – positions which were necessarily disclosed outside the DOJ (to officials of foreign governments, no less) simply by virtue of the nature of bilateral negotiations. Again, the DOJ claimed the deliberative process privilege protected much of the requested information. According to the DOJ’s interpretation of the privilege, while disclosure of the information to foreign government officials was no problem at all, disclosure to EFF and the American public would cause grave harm to the agency’s deliberative process. These types of assertions of the privilege turn its legitimate rationale on its head, only serving to obstruct the public’s ability to know what its government is up to.

At its essence, nearly every FOIA case EFF litigates is identical to the battle playing out right now between Congress and the Executive. Congress has requested documents to shed light on government practices and to keep the executive branch accountable to the public. Instead of being forthcoming and transparent, the Executive has instead chosen to rely on a tenuous interpretation of the deliberative process privilege to stymie the process and obstruct the public’s ability to hold executive officials truly accountable.

But, at least in the FOIA context, Congress can fix the problem. Instead of wasting time with a symbolic (and, ultimately, pyrrhic) contempt vote, Congress should act to change the deliberative process privilege through statute. Unlike the presidential communications privilege, the deliberative process privilege is not constitutionally based, so a law cabining the Executive’s invocation of the privilege is less likely to create constitutional separation-of-powers problems. So, for example, Congress could amend FOIA to require a Court – whenever the deliberative process privilege is invoked to withhold information – to balance the public interest in disclosure of the information against the magnitude of the potential harm to the executive agency’s deliberations. This type of balancing is already used in other FOIA exemptions and would go a long way towards preventing some of the more egregious invocations of the privilege. A balancing test would also provide an agency enough space to rely on the privilege when it is being legitimately invoked, yet would prevent agencies, in case after case, from simply repeating the same generic and speculative assertions of harm to agency deliberations.

So Congress, if you’re serious about sending a message to the Attorney General and the DOJ, forget about the contempt vote. Instead, hit them where it counts: their FOIA exemptions.

Attached Documents

Holder Letter to Obama.pdf