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Europe’s record offers cautions for a U.S. battle with Google

New Post has been published on https://thebiafrastar.com/europes-record-offers-cautions-for-a-u-s-battle-with-google/

Europe’s record offers cautions for a U.S. battle with Google

The EU has levied multibillion-dollar fines against Google but has struggled to change its behavior. | Budrul Chukrut/SOPA Images/LightRocket via Getty Images

BRUSSELS — The U.S. Justice Department’spotential antitrust investigationof Google has brought cheers from Silicon Valley’s critics on both sides of the Atlantic — but European regulators’ years of battling the search giant show how hard it would be to change the company’s behavior.

European Union competition chief Margrethe Vestager has exacted significant penalties from Google over the past three years, levying a combined $9.2 billion in fines from the company for unfairly favoring some of its search, mobile software and online advertising services over those of rivals. Google is appealing all three decisions.

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Brussels’ decade-long pursuit of Google, combined with investigations into heavy-hitters like Facebook, Amazon and Apple, has laid down a step-by-step guide for others to follow. It has also offered cause for some optimism among lawmakers and the wider public from San Francisco to Singapore about stemming Silicon Valley’s growing control over everything from social media to online advertising — a model many hope the U.S. is finally ready to follow.

“Google mines and monetizes data from each facet of our lives,” U.S. Sen. Richard Blumenthal, a Democrat from Connecticut,wrote on Twitteron Saturday following the news of the DOJ’s possible antitrust probe. “Its apparent predatory practices – exploiting its behemoth power — stifle innovators and crush competitors, harming consumers.”

Still, the Justice Department has not yet said it will investigate Google. And even if it did, the outcome would probably fall well short of the demands by some critics, such as Democratic presidential candidate Elizabeth Warren, for breaking up the big tech companies.

For now, DOJ has merely claimed jurisdiction over a possible Google probe, in an arrangement that also gives the U.S. Federal Trade Commission oversight of any potential actions involving Amazon, people close to the case have confirmed to POLITICO. (The Washington Post first reported on the Amazon development late Saturday.) Both agencies, as well as Google and Amazon, declined to comment on the matter.

Yet anyone in Washington looking to the European Union for a regulatory playbook to tackle Google will probably be disappointed.

Despite Brussels’ success in levying multibillion-dollar fines against the search giant, those sanctions have not offered much help to other companies seeking to compete in the digital world where Google still dominates. The collective fines also represent a mere rounding error in the $136 billion of revenues the company generated last year — Google’s quarterly profits alone were enough to cover all of Europe’s penalties combined.

Confronted with these limits, EU regulators have imposed legal obligations on Google to promote rivals in some of its search results. But Google still remains by far the largest player in the online search market in both the U.S. and Europe, with tentacles stretching across the web into flight bookings, restaurant reservations and online shopping.

It similarly continues to dominate the online advertising world — another focus of European scorn — with an expected market share of almost 40 percent by the end of this year, according to eMarketer, an analytics firm. (Silicon Valley rivals like Facebook and Amazon are also expanding aggressively into online advertising.)

Android, the popular Google mobile software thatwas at the centerof a record $4.8 billion EU antitrust fine last year, also is still used in roughly 4 out of every 5 smartphones worldwide, based on industry figures.

In recent months, EU officials have tried to boost competition by forcing Google to offer its users alternatives to its popular search engine and other digital services when they use the company’s online app store. But the company’s rivals say such tactics won’t stop Google’s overall dominance.

Legal experts say that any future DOJ antitrust case may be even more difficult to win than the ones in Europe because of the higher burdens of evidence required in the U.S. to prove that a company’s actions have led to specific harm to consumers.

“There’s a lot of public pressure in the United States to act,” said Ioannis Lianos, professor of global competition law and public policy at University College London. “But case law is more demanding for the plaintiff to bring evidence of consumer harm compared to in Europe.”

Some tech industry critics in the U.S. also remain skeptical that the Justice Department is willing to take on an aggressive antitrust fight, despite the Trump administration’s attempted court battle to prevent the merger between AT&T and Time Warner.

“Holding dominant platforms accountable for anti-competitive conduct is imperative, but I don’t have a lot of faith that President Trump’s Justice Department will stand up for working people against powerful corporations like Google and Facebook,” said U.S. Rep. David Cicilline, a Democrat from Rhode Island, in a statement Saturday. Cicilline has said his House Judiciary subcommittee will hold hearings on tech and antitrust.

Another cause for skepticism is U.S. regulators’ weak track record compared with their EU counterparts. During the Obama administration, for example, the FTCshut down an antitrust probeinto Google in 2013 after the company agreed to alter some of its advertising practices. A leaked document later showed that some FTC officials had wanted to pursue a case against the search giant.

In contrast, Vestager, the Danish official, swung into action after taking over the competition file in Brussels a year later, wielding blockbuster fines, savvy marketing and an argument the tech industry was harming consumers. That included accusing Google of abusing its dominant position in the online search and advertising markets to push out rivals, tilt the table in favor of its own digital services, and force others to rely on Google’s products.

In previous statements, Google has said that its digital services are widely used by consumers worldwide and helped to support a thriving digital economy of app developers.

Some of Google’s rivals have credited Europe’s aggressive stance with giving Washington a model to follow, particularly the role played by Vestager, whose antitrust tenure in Brussels will soon end.

“We wouldn’t be here without Vestager,” said Luther Lowe, vice president of public policy at Yelp, the online listing service that has been a vocal critic of Google’s online tactics in the U.S. and Europe, and whose antitrust case against the search giant is under review by officials in Brussels.

“We now see a situation where European consumers are better protected than U.S. consumers,” he added. “I’m not surprised we’re seeing renewed scrutiny in the U.S.”

Cristiano Lima contributed to this report.

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[lisarprahl]

Ex-EY Partner to CEO Mark Weinberger: ‘Let’s Make EY a Better Place to Work for Women’

In a Sept. 26 letter to EY Global Chairman and CEO Mark Weinberger, former partner Karen Ward, who filed a sexual harassment, gender discrimination, and retaliation complaint against the firm earlier this week, invited the firm’s leadership and board of directors to meet with her to “discuss my experiences at EY and additional ways in which we can work together to make EY a better place to work for women.”

Also in the letter, which was obtained by Going Concern, Ward asked to be released from the arbitration provision contained in her partnership agreement so that she can pursue her harassment and discrimination claims in court rather than behind closed doors in arbitration.

“If EY declines, Ms. Ward may be forced into secret arbitration, which will deprive the public and the media access to the proceedings,” Michael Willemin, an attorney with Wigdor LLP who is representing Ward, said in a statement emailed to Going Concern. “Forced arbitration agreements are very, very harmful to employees and victims of discrimination and harassment. They provide perpetrators of unlawful conduct with the comfort of knowing that their actions will not be publicly scrutinized. We look forward to EY’s response to Ms. Ward’s request.”

EY is declining to comment on Ward’s letter to Weinberger, spokesperson John La Place told Going Concern on Thursday.

Ward’s harassment and discrimination complaint, which was filed with the Equal Employment Opportunity Commission on Sept. 24, is the second such complaint levied against EY by a former female partner in less than a year.

Ward, who was hired by the Big 4 firm in 2013 and was promoted to partner in the Transaction Real Estate group within EY’s Transaction Advisory Services division in 2015, alleges that her first supervisor at EY, Principal Michael McNamara, made lewd comments about her breasts, frequently suggested that she accompany him to strip clubs, texted her at 2 a.m. while on a work trip asking her to meet him for drinks, and regularly used offensive language around her.

Attempts by Going Concern to reach McNamara for comment have been unsuccessful.

Ward also alleges that EY told her in 2013 that she would be brought in as partner to lead real estate transactions within Transaction Advisory Services but was ultimately offered a non-partner position within the Transaction Real Estate group.

When she was promoted to partner in 2015, Ward learned that she was making hundreds of thousands of dollars less than the average male partner at EY, according to the EEOC complaint.

After making several written complaints in 2014 and 2015 about the alleged harassment and discriminatory practices to her supervisor, Ward said she and her team were moved out of Transaction Real Estate and into the Ernst & Young Capital Advisors group in June 2015, where she was “explicitly told that she would no longer have any support at EY because of her complaints and gender,” the complaint states.

On Aug. 14, 2018, Ward found out she was being fired because her Real Estate Capital Markets business “was not profitable,” despite bringing in $50 million in revenue during her time at EY and facilitating a deal that generated $5 million in fees shortly before she was fired, according to the complaint.

In a statement to Going Concern earlier this week, EY called Ward’s claims “unfounded and baseless,” and said she was let go from the firm because “the small real estate investment banking advisory practice that she led for three years” was a “money-losing operation.” The firm said “the decision to … separate Ward was wholly unrelated to her gender,” and “her allegations of harassment, retaliation and unfair pay were raised after she was informed of her separation.”

Last April, former EY partner Jessica Casucci filed a similar complaint with the EEOC, accusing fellow partner John Martinkat of sexually assaulting her in front of two other male partners in a hotel bar in Orlando while they were on a business trip in 2015.

After the encounter, Martinkat continued the harassment with calls, texts, and emails asking Casucci to come to his hotel room to have sex.

Casucci and EY reached a settlement in May. As part of the settlement, Casucci agreed to leave the firm. Monetary terms of the settlement were not disclosed.

Martinkat was eventually fired by EY.

“Would you want your daughter working in an environment in which men openly demean women?”

In the two-page letter to Weinberger, Ward wrote that EY, as the third largest accounting firm in the world and the employer of more than 250,000 people, carries a “moral obligation to lead by example and be at the forefront of social justice movements.”

She continued:

Taking cheap shots at victims of discrimination and harassment only serves to make it less likely that women will come forward and report this kind of conduct in the future. EY’s conduct is protecting the perpetrators of discrimination and harassment, as well as the many men at EY who stood by and did nothing to stop it. Is that the moral ground upon which EY wants to stand?

On March 8, 2017, Weinberger tweeted from his personal account:

I don’t want my daughter to think that she doesn’t have every opportunity that my sons have.

I don’t want my daughter to think that she doesn’t have every opportunity that my sons have. #BeBoldForChange @EY_WFF #IWD2017

— Mark Weinberger (@Mark_Weinberger) March 8, 2017

Ward mentions a similar statement from Weinberger in her letter, saying:

Yet, you run a company that treats women as second class citizens as a matter of course. Women are paid substantially less than men at EY, and men dominate EY’s leadership. It is no wonder that men who engage in discrimination and harassment are protected, and that women who report it are subjected to retaliation. I encourage you to ask yourself whether you would want your daughter working in an environment in which men are permitted to openly demean and disparage women, and how you would feel if your daughter’s employer maligned her in the media if she chose to stand up for her rights?

“Forcing women who are sexually harassed to pursue claims in arbitration only serves to facilitate assault”

Mandatory arbitration is a contentious issue that has been in the news quite a bit lately. An arbitration provision is often included in employee contracts and pushes disputes into negotiation with a neutral arbitrator in order to prevent workers from suing companies in court.

On Sept. 25, a three-judge appeals court panel stripped class-action status from Uber drivers suing the San Francisco ride-hailing firm in the lawsuit O’Connor v. Uber. The drivers claimed that the company improperly classified them as contractors and forced them to cover costs that actual employees wouldn’t shoulder, according to The Mercury News.

A district court ruling had denied Uber’s bid to force drivers into arbitration, but the appeals court judges reversed that decision, citing a U.S. Supreme Court ruling from May that rejected the argument put forth in O’Connor that arbitration clauses violate federal law, according to the article.

In her letter to Weinberger, Ward wrote that “forcing women, as a condition of employment, to pursue claims of gender discrimination and harassment only in secret arbitration proceedings does not help to ‘build a better working world,’” referring to EY’s tagline. “In fact, it does the opposite. Taking away a woman’s right to a trial by a jury of her peers and providing sexual harassers and those that subject women to discrimination with the comfort of secrecy only serves to facilitate workplace harassment and hostility.”

She goes on to reference a quote from Weinberger said during a 2014 Q&A with DiversityInc: “We want [EY] to be the best professional-services organization in the world. When you’re doing that you can’t ignore half the world, which is women. So first of all, you’ve got to understand how women think.”

Ward wrote:

Mr. Weinberger, I, as a woman, “think” that forcing women who are sexually harassed and discriminated against to pursue claims in arbitration rather than in court only serves to facilitate sexual harassment and assault. It serves to embolden those who engage in sexual harassment and gender discrimination and, according to studies, makes it more likely that women who are sexually harassed will not come forward. If your statements are sincere, you should jump at the opportunity to make positive changes for women who work for EY. My request to proceed with my case in an open, public forum, rather than in the secrecy of arbitration, is just one such example of how to make positive change. I invite you and the members of EY’s Board to meet with me to discuss my experiences at EY and additional ways in which we can work together to make EY a better place to work for women.

She concluded her letter by writing:

EY has stated, “We take all allegations of sexual harassment seriously.” If EY truly does take allegations of sexual harassment seriously, it will not require its female employees to file and pursue such claims behind closed doors in arbitration.

Related articles:

Another Former EY Partner Has Filed a Sexual Harassment Complaint Against the Firm If EY Treats a Partner Who Reports Sexual Misconduct Like This, What Hope Do Other Employees Have?

The post Ex-EY Partner to CEO Mark Weinberger: ‘Let’s Make EY a Better Place to Work for Women’ appeared first on Going Concern.

from Accounting News https://goingconcern.com/ex-ey-partner-ceo-mark-weinberger-lets-make-ey-a-better-place-to-work-for-women/

[ashleydpalmerusa]

Ex-EY Partner to CEO Mark Weinberger: ‘Let’s Make EY a Better Place to Work for Women’

In a Sept. 26 letter to EY Global Chairman and CEO Mark Weinberger, former partner Karen Ward, who filed a sexual harassment, gender discrimination, and retaliation complaint against the firm earlier this week, invited the firm’s leadership and board of directors to meet with her to “discuss my experiences at EY and additional ways in which we can work together to make EY a better place to work for women.”

Also in the letter, which was obtained by Going Concern, Ward asked to be released from the arbitration provision contained in her partnership agreement so that she can pursue her harassment and discrimination claims in court rather than behind closed doors in arbitration.

“If EY declines, Ms. Ward may be forced into secret arbitration, which will deprive the public and the media access to the proceedings,” Michael Willemin, an attorney with Wigdor LLP who is representing Ward, said in a statement emailed to Going Concern. “Forced arbitration agreements are very, very harmful to employees and victims of discrimination and harassment. They provide perpetrators of unlawful conduct with the comfort of knowing that their actions will not be publicly scrutinized. We look forward to EY’s response to Ms. Ward’s request.”

EY is declining to comment on Ward’s letter to Weinberger, spokesperson John La Place told Going Concern on Thursday.

Ward’s harassment and discrimination complaint, which was filed with the Equal Employment Opportunity Commission on Sept. 24, is the second such complaint levied against EY by a former female partner in less than a year.

Ward, who was hired by the Big 4 firm in 2013 and was promoted to partner in the Transaction Real Estate group within EY’s Transaction Advisory Services division in 2015, alleges that her first supervisor at EY, Principal Michael McNamara, made lewd comments about her breasts, frequently suggested that she accompany him to strip clubs, texted her at 2 a.m. while on a work trip asking her to meet him for drinks, and regularly used offensive language around her.

Attempts by Going Concern to reach McNamara for comment have been unsuccessful.

Ward also alleges that EY told her in 2013 that she would be brought in as partner to lead real estate transactions within Transaction Advisory Services but was ultimately offered a non-partner position within the Transaction Real Estate group.

When she was promoted to partner in 2015, Ward learned that she was making hundreds of thousands of dollars less than the average male partner at EY, according to the EEOC complaint.

After making several written complaints in 2014 and 2015 about the alleged harassment and discriminatory practices to her supervisor, Ward said she and her team were moved out of Transaction Real Estate and into the Ernst & Young Capital Advisors group in June 2015, where she was “explicitly told that she would no longer have any support at EY because of her complaints and gender,” the complaint states.

On Aug. 14, 2018, Ward found out she was being fired because her Real Estate Capital Markets business “was not profitable,” despite bringing in $50 million in revenue during her time at EY and facilitating a deal that generated $5 million in fees shortly before she was fired, according to the complaint.

In a statement to Going Concern earlier this week, EY called Ward’s claims “unfounded and baseless,” and said she was let go from the firm because “the small real estate investment banking advisory practice that she led for three years” was a “money-losing operation.” The firm said “the decision to … separate Ward was wholly unrelated to her gender,” and “her allegations of harassment, retaliation and unfair pay were raised after she was informed of her separation.”

Last April, former EY partner Jessica Casucci filed a similar complaint with the EEOC, accusing fellow partner John Martinkat of sexually assaulting her in front of two other male partners in a hotel bar in Orlando while they were on a business trip in 2015.

After the encounter, Martinkat continued the harassment with calls, texts, and emails asking Casucci to come to his hotel room to have sex.

Casucci and EY reached a settlement in May. As part of the settlement, Casucci agreed to leave the firm. Monetary terms of the settlement were not disclosed.

Martinkat was eventually fired by EY.

“Would you want your daughter working in an environment in which men openly demean women?”

In the two-page letter to Weinberger, Ward wrote that EY, as the third largest accounting firm in the world and the employer of more than 250,000 people, carries a “moral obligation to lead by example and be at the forefront of social justice movements.”

She continued:

Taking cheap shots at victims of discrimination and harassment only serves to make it less likely that women will come forward and report this kind of conduct in the future. EY’s conduct is protecting the perpetrators of discrimination and harassment, as well as the many men at EY who stood by and did nothing to stop it. Is that the moral ground upon which EY wants to stand?

On March 8, 2017, Weinberger tweeted from his personal account:

I don’t want my daughter to think that she doesn’t have every opportunity that my sons have.

I don’t want my daughter to think that she doesn’t have every opportunity that my sons have. #BeBoldForChange @EY_WFF #IWD2017

— Mark Weinberger (@Mark_Weinberger) March 8, 2017

Ward mentions a similar statement from Weinberger in her letter, saying:

Yet, you run a company that treats women as second class citizens as a matter of course. Women are paid substantially less than men at EY, and men dominate EY’s leadership. It is no wonder that men who engage in discrimination and harassment are protected, and that women who report it are subjected to retaliation. I encourage you to ask yourself whether you would want your daughter working in an environment in which men are permitted to openly demean and disparage women, and how you would feel if your daughter’s employer maligned her in the media if she chose to stand up for her rights?

“Forcing women who are sexually harassed to pursue claims in arbitration only serves to facilitate assault”

Mandatory arbitration is a contentious issue that has been in the news quite a bit lately. An arbitration provision is often included in employee contracts and pushes disputes into negotiation with a neutral arbitrator in order to prevent workers from suing companies in court.

On Sept. 25, a three-judge appeals court panel stripped class-action status from Uber drivers suing the San Francisco ride-hailing firm in the lawsuit O’Connor v. Uber. The drivers claimed that the company improperly classified them as contractors and forced them to cover costs that actual employees wouldn’t shoulder, according to The Mercury News.

A district court ruling had denied Uber’s bid to force drivers into arbitration, but the appeals court judges reversed that decision, citing a U.S. Supreme Court ruling from May that rejected the argument put forth in O’Connor that arbitration clauses violate federal law, according to the article.

In her letter to Weinberger, Ward wrote that “forcing women, as a condition of employment, to pursue claims of gender discrimination and harassment only in secret arbitration proceedings does not help to ‘build a better working world,’” referring to EY’s tagline. “In fact, it does the opposite. Taking away a woman’s right to a trial by a jury of her peers and providing sexual harassers and those that subject women to discrimination with the comfort of secrecy only serves to facilitate workplace harassment and hostility.”

She goes on to reference a quote from Weinberger said during a 2014 Q&A with DiversityInc: “We want [EY] to be the best professional-services organization in the world. When you’re doing that you can’t ignore half the world, which is women. So first of all, you’ve got to understand how women think.”

Ward wrote:

Mr. Weinberger, I, as a woman, “think” that forcing women who are sexually harassed and discriminated against to pursue claims in arbitration rather than in court only serves to facilitate sexual harassment and assault. It serves to embolden those who engage in sexual harassment and gender discrimination and, according to studies, makes it more likely that women who are sexually harassed will not come forward. If your statements are sincere, you should jump at the opportunity to make positive changes for women who work for EY. My request to proceed with my case in an open, public forum, rather than in the secrecy of arbitration, is just one such example of how to make positive change. I invite you and the members of EY’s Board to meet with me to discuss my experiences at EY and additional ways in which we can work together to make EY a better place to work for women.

She concluded her letter by writing:

EY has stated, “We take all allegations of sexual harassment seriously.” If EY truly does take allegations of sexual harassment seriously, it will not require its female employees to file and pursue such claims behind closed doors in arbitration.

Related articles:

Another Former EY Partner Has Filed a Sexual Harassment Complaint Against the Firm If EY Treats a Partner Who Reports Sexual Misconduct Like This, What Hope Do Other Employees Have?

The post Ex-EY Partner to CEO Mark Weinberger: ‘Let’s Make EY a Better Place to Work for Women’ appeared first on Going Concern.

from Accounting News https://goingconcern.com/ex-ey-partner-ceo-mark-weinberger-lets-make-ey-a-better-place-to-work-for-women/

[neptunecreek]

The Worst Law in Technology Strikes Again: 2017 in Review

The latest on the Computer Fraud and Abuse Act? It’s still terrible. And this year, the detrimental impacts of the notoriously vague and outdated criminal computer crime statute showed themselves loud and clear. The statute lies at the heart of the Equifax breach, which might have been averted if our laws didn’t criminalize security research. And it’s at the center of a court case pending in the Ninth Circuit Court of Appeals, hiQ v. LinkedIn, which threatens a hallmark of today’s Internet: free and open access to publicly available information.

At EFF, we’ve spent 2017 working to make sure that courts and policy makers understand the role the CFAA has played in undermining security research, and that the Ninth Circuit rejects LinkedIn’s attempt to transform a criminal law meant to target serious computer break-ins into a tool for enforcing corporate computer use policies. We’ve also continued our work to protect programmers and developers engaged in cutting-edge exploration of technology via our Coders’ Rights Project—coders who often find themselves grappling with the messiness that is the CFAA. As this fight carries us into 2018, we stand ready to do all we can to rein in the worst law in technology.

Equifax: The CFAA Chills Another Security Researcher

The CFAA makes it illegal to engage in “unauthorized access” to a computer connected to the Internet, but the statute doesn’t tells us what “authorization” or “without authorization” means. This vague language might have seemed innocuous to some back in 1986 when the statute was passed, but in today’s networked world, where we all regularly connect to and use computers owned by others, courts cannot even agree on what the law covers. And as a result, this pre-Web law is causing serious problems.

One of the biggest problems: the law notorious for chilling the work of security researchers.

Most of the time, we never hear about the research that could have prevented a security nightmare. But with Equifax’s data breach, we did. As if the news of the catastrophic breach wasn’t bad enough, we learned in October—thanks to reporting by Motherboard—that a security researcher had warned Equifax “[m]onths before its catastrophic data breach . . . that it was vulnerable to the kind of attack that later compromised the personal data of more than 145 million Americans[.]” According to Equifax’s own timeline, the company didn’t patch the vulnerability for six months—and “only after the massive breach that made headlines had already taken place[.]”

The security researcher who discovered the vulnerability in Equifax’s system back in 2016 should have been empowered to bring their findings to someone else's attention after Equifax ignored them. If they had, the breach may have been avoided. Instead, they faced the risk of a CFAA lawsuit and potentially decades in federal prison.

In an era of massive data breaches that impact almost half of the U.S. population as well as people around the globe, a law that ostracizes security researchers is foolish—and it undermines the security of all of us. A security research exemption is necessary to ensure that our security research community can do their work to keep us all safe and secure without fear of prosecution. We’ve been calling for these reforms for years, and it’s long overdue.  

hiQ v. Linkedin: Abuse of the CFAA to Block Access to Publicly Available Information

One thing that’s consistently gotten in the way of CFAA reform: corporate interests. And 2016 was no different in this respect. This year, LinkedIn has been pushing to expand the CFAA’s already overly broad scope, so that it can use the statute to maintain its edge over a competing commercial service, hiQ Labs. We blogged about the details of the dispute earlier this year. The social media giant wants to use the CFAA to enforce its corporate policy against using automated scripts—i.e., scraping—to access publicly available information on the open Internet. But what that would mean is potentially criminalizing automated tools that we all rely on every day. The web crawlers that power Google Search, DuckDuckGo, and the Internet archive, for instance, are all automated tools that collect (or scrape) publicly information from across the Web. LinkedIn paints all “bots” as bad, but they are a common and necessary part of the Internet. Indeed, “good bots” were responsible for 23 percent of global Web traffic in 2016. Using them to access publicly available information on the open Internet should not be punishable as a federal felony.

Congress passed the CFAA to target serious computer break-ins. It did not intend to hand private companies a tool for enforcing their computer use policies. Using automated scripts to access publicly available data does not involve breaking into any computer, and neither does violating a website’s terms of use. Neither should be CFAA offenses.

LinkedIn’s expansive interpretation of the CFAA would exacerbate the law’s chilling effects—not only for the security research community, but also for journalists, discrimination researchers, and others who use automated tools to support their socially valuable work. Similar lawsuits are already starting to pop up across the country, including one by airline RyanAir alleging that Expedia's fair scraping violated the CFAA.

Luckily, a court in San Francisco called foul, questioning LinkedIn’s use of the CFAA to block access to public data, finding that the “broad interpretation of the CFAA invoked by LinkedIn, if adopted, could profoundly impact open access to the Internet, a result that Congress could not have intended when it enacted the CFAA over three decades ago.”

The case is now on appeal, and EFF, DuckDuckGo, and the Internet Archive have urged the Ninth Circuit Court of Appeals to uphold the lower court's finding and reject LinkedIn’s shortsighted request to transform the CFAA into a tool for policing the use of publicly available data on the open Internet. And we’re hopeful it will. During a Ninth Circuit oral argument in a different case in July, Judge Susan Graber pushed back [at around 33:40] on Oracle’s argument that automated scraping was a CFAA violation.

LinkedIn says it wants to protect the privacy of user data. But public data is not private, so why not just put the data behind its pre-existing username and password barrier? It seems that LinkedIn wants to take advantage of the benefits of the open Internet while at the same time abusing the CFAA to avoid the Web’s “open trespass norms.” The CFAA is an old, blunt instrument, and trying to use it to solve a modern, complicated dispute between two companies will undermine open access to information on the Internet for everyone. As we said in our amicus brief:

The power to limit access to publicly available information on the Internet under color of the law should be dictated by carefully considered rules that balance the various competing policy interests. These rules should not allow the handful of companies that collect massive amounts of user data to reap the benefits of making that information publicly available online—i.e., more Internet traffic and thus more data and more eyes for advertisers—while at the same time limiting use of that public information via the force of criminal law.

The Ninth Circuit will hear oral argument on the LinkedIn case in March 2018, and we’ll continue to fight LinkedIn’s expansive interpretation of the CFAA into the New Year.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2017.

Like what you're reading? Support digital freedom defense today!

Related Cases: 

hiQ v. LinkedIn

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[daddyslittlejuliet]

A Passion for Animal Justice: Q&A with Camille Labchuk

For many activists, it just takes one thing — one event, one conversation, one documentary, one something — to put them on a life-changing course. For Camille Labchuk, it was seeing the annual seal hunt on television in her native Canada. She was nine years old. “It was one of the first times I truly became aware that society treats animals in cruel and callous ways,” she says. It also made the seal slaughter very real, because it was happening in her own backyard. “I grew up in Prince Edward Island, in the Atlantic region of Canada. I knew about baby harp seals because they would sometimes wash up on the shores of Island beaches, and to know that they were being clubbed and skinned so close to my own home was unbearable.”

Today, Camille is an animal rights lawyer and the executive director of Animal Justice Canada, a national organization focused on animal law, including law reform, litigation, investigations, and education, and the only one of its kind in the country. Camille represents individuals and organizations in animal law cases, defends animal advocates, and seeks out litigation that enhances the interests of animals. Her work includes false advertising complaints against companies making humane claims; exposing suffering on farms; work on trophy hunting, circuses, zoos, aquariums, shark finning, and puppy mills; and, of course, documenting the commercial seal kill on Canada’s East Coast.

I appreciate Camille taking time from her very busy schedule to answer some questions about her work, animal law in Canada, and her advice for anyone arrested for animal activism there.

Can you give me a sense of how difficult your job is? What is the hardest part? And what is the most rewarding?

I truly believe I have the best job in the world. The law is such a powerful tool for social change, and being at the cutting edge of the new field of animal law in Canada is an honor and a privilege. Sure, constantly watching footage of animal cruelty can be difficult, and it’s always crushing to lose a court case or see politicians vote down an important law. But I couldn’t live with myself if I wasn’t fighting to end animal suffering and bring our legal system in line with Canadian values.

The most rewarding part of my job is reflecting on the progress we’ve already made, and imagining how much further we’ll have shifted the paradigm in another decade or two. Ultimately, animal activists are on the right side of history, and I predict we will win this battle sooner than any of us can imagine right now.

How would you characterize the state of animal law in Canada? Are you seeing improvements in protections for animals?

Canadians think of our country as kind, polite, and progressive, but those attitudes are not reflected in our animal protection laws, which are widely considered among the worst in the western world. Canada is one of very few western democracies without national animal welfare legislation to set standards for animal confinement, use, and slaughter. The few federal animal cruelty laws that do exist haven’t been updated since the 1950s, and the federal government recently blocked an attempt to modernize these protections to ensure sadistic animal abusers do not continue to escape criminal prosecution for their violence.

The vast majority of animals held captive and slaughtered in Canada are farmed animals (more than 771 million in 2016, not including fishes — their lives are measured in tonnes). Yet the federal government doesn’t regulate on-farm conditions for animals, essentially letting the farming industry set its own standards. Canada’s farmed animal transport laws are 40 years old, and a recent government proposal to update the laws would still allow animals to be transported for days at a time without food, water, or rest, and suffer and die from exposure to Canada’s blistering heat and extreme cold.

There is also disturbingly little oversight of animal experimentation in Canada, with only voluntary, non-legal standards for laboratories existing at the national level. The Canadian public has no meaningful access to laboratory records, inspections, and outcomes, and thus no way to oversee what is happening behind closed doors in animal experiments.

Canada still subsidizes the commercial seal slaughter, the largest mass slaughter of marine mammals on the planet, done for seal fur. Encouragingly, the number of seals killed is dropping dramatically as countries around the world close their borders to commercial seal products.

The laws that do protect animals in Canada are chronically under-enforced. Canada largely leaves enforcing animal protection laws to private SPCAs and humane societies — charities that must raise money to cover their operation and enforcement costs.

Yet there are glimmers of hope. Undercover investigations over the last five years have helped expose hidden abuse in the farming industry, in laboratories, and in zoos and aquariums. There is a bill before Parliament that would ban keeping whales and dolphins in captivity; the province of Ontario recently banned orca whale captivity; and the Vancouver Parks Board recently stopped the Vancouver Aquarium from continuing to confine cetaceans. There are also federal bills that would outlaw cosmetic tests performed on animals and ban shark fin imports into Canada.

Animal lawyers are also starting to advocate on behalf of animals in courtrooms, such as in the Supreme Court case of R. v. D.L.W., a disturbing case about the sexual abuse of animals. The Court accepted the argument of intervener Animal Justice and ruled that protecting animals is a fundamental societal value — the strongest-ever statement on animal protection from the country’s top court and an incredible precedent. And in a case involving an elephant named Lucy, imprisoned by herself at the Edmonton Zoo, the chief justice of the Alberta Court of Appeal wrote an incredibly dissenting judgment recognizing the interests of nonhuman animals.

Animal law issues are constantly in the news in Canada and are becoming a real part of the national conversation.

How important do you think it is for animal cases like these to get exposure in the media?

Getting media attention for animal law cases can sometimes be just as important as the outcome of the case. For instance, Canadian activist Anita Krajnc was recently charged with criminal mischief for giving water to thirsty, dehydrated pigs on their way into a slaughterhouse. The charges were laid at the behest of the meat industry, but their tactic backfired: the intense media exposure and international interest in the case educated millions of people about the horrific cruelty suffered by animals in the food system. Anita Krajnc was acquitted following a trial, but the real victory of the case is that she succeeded in putting the meat industry on trial for unimaginable animal abuse.

Media attention can also influence the outcome of a case. In one recent Canadian case, a compassionate police officer was charged with misconduct after rescuing a kitten from a bad situation in drug den. Why? Because the kitten was property, removed without the owner’s consent. Animal Justice filed an application to intervene, and we helped turn the case into a major media story. When we showed up to argue our case, the prosecution agreed to settle, confirming that police have an obligation to rescue animals as part of the general police duty to preserve life. This helped ensure there won’t be a chill effect on animal rescue.

Does the law reflect the way society views animals?

I’m a firm believer that society leads the law — not the other way around. In other words, politicians and judges will only create new legal standards that reflect attitudes the public already holds. In the case of animal protection, there has been a massive shift in public consciousness over the last few decades about the way society should be treating animals. People know more than every before about the horrific suffering endured by animals used for food, fashion, experiments, and entertainment, and they want this to end. The law hasn’t yet caught up to societal attitudes about animals, but animal advocates and animal lawyers are beginning to make progress. Our job is to enshrine these values into court judgments and legislation.

What advice do you have for activists who would like to practice animal law in Canada?

Animal law in Canada is still a very new field of practice, and would-be animal lawyers must be bold in charting their own courses and seeking out opportunities. My own path led me to practice criminal law for several years before starting up my own animal law practice. I volunteered part-time with non-profit animal law organization Animal Justice at the same time, and helped build the organization up from a small team of volunteers into a larger, national organization. This eventually led to full-time employment in animal law.

There are still very few paid animal law positions in Canada, so I recommend having a back-up plan in the early stages. Find an area of legal practice that pays the bills, and volunteer your spare time by doing pro bono legal work for animal protection organizations. I made a point of volunteering for as many animal protection organizations as possible before, during, and after law school, and it was these contacts that helped me get enough work to pay the bills while I had my own animal law practice. If you can make the jump to full-time animal law practice or working for a non-profit, go for it!

You’ve also represented animal rights activists. Do you have any advice for people who find themselves arrested for engaging in activism in Canada?

First, don’t talk to the police — I meant it, not a word! Second, call Animal Justice. We vigorously defend the rights of animal advocates; without people to speak up on their behalves, animals won’t have a voice in our political and legal systems. Activism is essential to animal protection. We help connect activists with top-notch criminal lawyers who can help defend against activism-related prosecutions.

Lastly, do you have any advice for animal lovers who want to lobby their legislators on animal issues?

Lobbying our political representatives is essential to helping animals. Politicians are under immense pressure from the billion-dollar industries that harm animals, and unless politicians hear loudly and clearly from constituents who care about animals, nothing will ever change.

Meet with your legislators often — that’s federal, provincial, and municipal — and bring as many friends or family members from the community as you can. Come armed with facts and a specific ask, such as supporting or introducing a piece of legislation. Make sure your legislators know they won’t get your vote unless they support animal protection issues. After a meeting, a phone call is your second best option, followed by sending an email. Political staff track the number of phone calls and emails they receive on an issue, and most politicians pay close attention to the mood of their constituents. And don’t do this just once: make a point of reaching out regularly to legislators.

During elections, it’s important to find and support animal-friendly candidates — volunteer to knock on doors, make phone calls, and donate! Legislators remember the people that help them get elected, and you can use this goodwill to ensure they do the right thing once in office.

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