Google Now Using HTTPS As A (Very Slight) Ranking Signal In Search To Encourage More Encryption

van TechDirt - do, 08/07/2014 - 23:25
Back in April, we wrote about claims that Google was considering giving a boost in its search rankings to sites that are encrypted. Today, it officially announced the policy, noting that the company has been testing it for a little while and thinks that it works well. The weighting is very tiny, but the company makes it clear that it will likely increase that over time, and the current low ranking is more of a "grace period" to encourage more sites to encrypt. Google also makes clear that its reason for doing this is to encourage greater encryption to make the entire web more safe and secure: For these reasons, over the past few months we’ve been running tests taking into account whether sites use secure, encrypted connections as a signal in our search ranking algorithms. We’ve seen positive results, so we’re starting to use HTTPS as a ranking signal. For now it's only a very lightweight signal—affecting fewer than 1% of global queries, and carrying less weight than other signals such as high-quality content—while we give webmasters time to switch to HTTPS. But over time, we may decide to strengthen it, because we’d like to encourage all website owners to switch from HTTP to HTTPS to keep everyone safe on the web. When we wrote about it back in April, I found it a bit surprising that Google would do this, given that, historically, it has always said its search rankings were entirely focused on quality. You could, perhaps, make an argument that a site that uses SSL is more likely to be a high quality site, but Google doesn't even appear to be making that argument. As a site that has already strongly moved to SSL, this might (marginally) help our Google rankings (not that we actually get much traffic from Google in the first place), and getting much more of the web encrypted is a good thing in general.

It still seems, though, that for all the good this does, others will now make use of this as an argument for other kinds of "nudging" behavior by Google. For years, the legacy entertainment industry has pushed Google to better rank "good" sites and to downrank "pirate" sites -- which the industry still seems to think is a simple black and white calculation (it's not). Google can point out that SSL v. non-SSL is obvious, but I fully expect those who seem to think Google should be designed in their own interests, as opposed to those of Google's users, to jump on this as proof that Google can solve other problems.

This still is a good move, though. Encouraging more encryption on the web is always the right move. I'm just still a bit surprised that Google would take this step, and wonder how others will react to it.

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NJ Supreme Court Says Rap Lyrics Can't Be Introduced As Evidence Unless Directly Linked To Criminal Actions

van TechDirt - do, 08/07/2014 - 22:18
The ACLU (which submitted an amicus brief in this case) breaks the news that the New Jersey Supreme Court has ruled that someone's artistic speech can't be introduced as evidence of criminal intent -- at least not without meeting some very specific guidelines. The New Jersey Supreme Court today issued a decision holding that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. The Court recognized rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful, which could improperly prejudice a jury who reads them. In the case under discussion, the prosecution submitted rap lyrics written by Vonte Skinner not as evidence he committed the crime with which he was charged, but just as a general indicator of his motive and intent. By doing so, the state was able to convince a jury to return a guilty verdict on multiple charges. Defendant was charged with first-degree attempted murder and related charges, and, before trial, he requested a preliminary hearing to contest the admissibility of his rap lyrics. The court concluded that the lyrics were relevant because they tended to prove the State’s theory of the case and found them admissible under N.J.R.E. 404(b) because they provided insight into defendant’s alleged motive and intent. Accordingly, the court ordered that redacted portions of defendant’s lyrics would be admitted into evidence. Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict.

Prior to his retrial, defendant renewed his objection to the admissibility of the rap lyrics, and the court again found them admissible. At defendant’s second trial, a detective testifying for the State read to the jury extensive passages from defendant’s lyrics, depicting violence, bloodshed, death, and dismemberment unconnected to the specific facts of the attempted-murder charge against defendant... The jury convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and the trial court imposed an aggregate thirty-year sentence with an eighty-five percent parole disqualifier. The appeals court reversed this decision, finding that the admission of Skinner's rap lyrics as evidence had a "prejudicial impact [that] vastly outweighed any probative value." The state appealed this decision, bringing it to the state Supreme Court.

The Supreme Court upheld the appeals court's findings, noting that the history of artistic expression is littered with violent narratives unconnected to actual criminal activity. In assessing the probative value of defendant’s fictional lyrics, the Court notes that probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced. The Court explains that the difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The Court reasons that defendant’s lyrics should receive no different treatment. This approach is in accord with other jurisdictions that have considered similar questions. The Court concludes that the violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant. That last sentence distills the motivation behind the growing popularity of this prosecution tactic. A jury of supposed peers is going to contain any number of people who find rap music and its subject matter offensive and an "indicator" of a person's criminal intent, whether or not such intent exists. If the court had gone the other way, there is no doubt that rap lyrics would be submitted en masse for easy wins. Fortunately, this decision directs prosecutors to more strenuously weigh their evidence before submission. In sum, rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s probative value is not outweighed by its apparent prejudice. In the weighing process, courts should consider the existence of other evidence that can be used to make the same point. When admissible, such evidence should be carefully redacted to ensure that irrelevant, inflammatory content is not needlessly presented to the jury. Because rap lyrics tend to deal with the holy trinity of guns, drugs and money, prosecutors will still feel strongly tempted to introduce these written words as background color, if nothing else. The court's directions, while aimed at prosecutors, will likely have a greater effect on lower courts' standards for evidence admission. A state Supreme Court decision that doesn't specifically forbid the introduction of rap lyrics as evidence will just be probed for weaknesses by enterprising prosecutors, the same group that often finds someone's expressed thoughts to be inseparable from their deeds.

The case also has limited bearing on a similar set of circumstances currently being examined by the US Supreme Court, where a man with a history of making outrageous comments on social media sites -- like expressing his desire to kill his estranged ex-wife or shoot up a school -- is now finding his words being used against him as evidence of criminal intent. This person has also referred to some of his postings as "rap lyrics" and has noted that much of what has been submitted as evidence has been taken out of context -- that context being the accused's long history of running his mouth carelessly on a variety of social media platforms.

Unlike Skinner, no physical crime has been committed. Instead, these postings have been treated as threats by prosecutors, which brings a different perspective to the proceedings. In this case, intent is the whole of the crime, rather than just one aspect of it and, as such, should be very carefully weighed unless the US Supreme Court wants to make criminals out of the Bob Marleys and Edgar Allan Poes scattered across the web.

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As DOJ Hunts For 'Second Leaker,' Will It Also Explore Who Leaked The Intercept's Story To The AP?

van TechDirt - do, 08/07/2014 - 21:12
Earlier this week, Tim Cushing wrote about The Intercept's latest scoop, concerning the makeup of the US government's federal terrorist watchlist, and the fact that a large chunk of it isn't affiliated with any terrorist groups. While most of the article focused on that point, he made two other notes in passing -- the first was that it was obvious that this release was from a second leaker, not Snowden, and the second was about how the government "leaked" the story in a "friendlier" manner to the AP in order to beat The Intercept. We thought both of these asides were interesting, but they've both turned into big stories on their own.

CNN later confirmed that US government officials are now searching for the second leaker (though "second" may not be accurate either...), more or less confirming what many people had been suspecting. Meanwhile, the "scoop spoiling" by the federal government actually resulted in a semi-apology from the National Counterterrorism Center (NCTC) who gave the scoop to the AP. The NCTC claimed it had been working with the AP on a story for a while, and after seeing what The Intercept was doing, felt it needed to give them the heads up, though it also says it could have handled the situation better. Of course, this also makes it more likely that The Intercept won't bother giving the government much time (if any) to respond on future stories. Why risk the chance of having the government spoil the scoop again?

However, with all this concern about the "second leaker," Chris Soghoian asks a very good question. If the Justice Department is going to go hunting for whoever leaked the information to The Intercept, will it similarly go after whoever at NCTC was apparently providing the same basic information to the Associated Press? Or how about the person who told CNN that the US government believes there's a "second leaker"? Because that information is also a leak, and potentially a big one, given that it will alert the leaker that the government is searching for him or her.

Somehow, we don't think the DOJ will be too concerned about those leaks. "Official" leaks happen all the time and no one cares. It's just the leaks that make the government look bad that somehow are seen as criminal.

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