posted about 2 hours ago on techdirt
Free Software Foundation Europe has a new campaign -- "Public money, public code" -- which poses the following question: Why is software created using taxpayers' money not released as Free Software? And goes on: We want legislation requiring that publicly financed software developed for the public sector be made publicly available under a Free and Open Source Software licence. If it is public money, it should be public code as well. It certainly seems pretty ridiculous that code written for public bodies, whether by external companies or contractors paid by the public purse, or produced internally, should not be released as free software. But aside from this being a question of fairness, the FSFE lists other reasons why it makes sense: Tax savings Similar applications don't have to be programmed from scratch every time. Collaboration Efforts on major projects can share expertise and costs. Fostering innovation With transparent processes, others don't have to reinvent the wheel. An open letter on the site, supported by dozens of organizations and open for individual signatures, provides a few more: Free and Open Source Software is a modern public good that allows everybody to freely use, study, share and improve applications we use on a daily basis. Free and Open Source Software licences provide safeguards against being locked in to services from specific companies that use restrictive licences to hinder competition. Free and Open Source Software ensures that the source code is accessible so that backdoors and security holes can be fixed without depending on one service provider. Considered objectively, it's hard to think of any good reasons why code that is paid for by the public should not be released publicly as a matter of course. The good news is that this "public money, public code" argument is precisely the approach that open access advocates have used with considerable success in the field of academic publishing, so there's hope it might gain some traction in the world of software too. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 10 hours ago on techdirt
A few months ago, we alerted our readers that a trademark dispute between the San Diego Comic-Con and a company producing a Salt Lake City Comic Con, originally filed in 2014, was still going on. In fact, the district court hearing the case just recently ruled on several motions from both parties, including motions for judicial notice (essentially having the court affirm basic facts about the case), motions to exclude expert testimony, and motions for summary judgement. On the face of it, the news is mostly bad for the Salt Lake City convention, with nearly every ruling coming down against it. However, digging into the ruling itself, there is a light at the end of the tunnel. As for the bad news, it seems to be mostly of the Salt Lake City Comic Con's own making, or the making of its legal team. The court points out that the defendant's lawyers motion and defenses are all over the place, in some places arguing for generecide -- or that "comic con" has become a generic term -- while in others arguing that "comic con" is generic ab initio -- or that the term was generic even prior to San Diego Comic-Con's initial use of it. It's an important distinction for a couple of reasons, including that the defenses SLC has stated it will make revolve around genericide, yet much of the evidence in the motions in this ruling revolve around generic ab initio and, more importantly, the 9th Circuit doesn't have any precedent or acknowledgement of generic ad initio as a matter of law, and this district court is governed by 9th Circuit precedent. Unfortunately for Defendants, the Ninth Circuit has not recognized a genericness ab initio theory of defense. Instead, the Ninth Circuit very clearly states that there are only five categories of trademarks: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). No case law from this circuit separates genericness into two different types nor have Defendants provided the Court with Ninth Circuit precedent that adopts their arguments. Accordingly, as there is no dispositive basis or Ninth Circuit jurisprudence to accept an argument revolving around a generic ab initio defense, the Court GRANTS Plaintiff’s motion for summary judgment on this contention. So, yeah, not a real good look on the part of the SLC's legal team. Later in the ruling, the court goes on to rule against SLC's motion for summary judgement, which was essentially asking the court to rule that "comic con" is now a generic term. The court declined to do so, moving the case forward. But it's important to note that the court, in a ruling that otherwise dealt somewhat harshly with SLC's lawyers, makes a point of noting that it did not deny the motion because Salt Lake City doesn't have the facts on its side. Instead, the court notes that in motions like this, favorable weight is generally given both to the plaintiff and to any holder of a valid trademark (the plaintiff again, in this case), and that's what precludes the court from granting a summary judgement. The ruling goes on to state: After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide. “Federal courts [] view usage of [a] term by competitors in the industry as strong evidence of how the public perceives them.” Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1190 (C.D. Cal. 2007). “The more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer.” Id. Here, Defendants produce evidence that demonstrates that “comic cons” are held in nearly every state of the United States including New York Comic Con, Amazing Arizona Comic Con, Emerald City Comic Con, and Tampa Bay Comic Con. (Doc. No. 223-1 at 39, 101, 129, 160.) This evidence of over 100 competitors using the unhyphenated form of Plaintiff’s trademark strongly suggests that the mark is generic. Consequently, this is persuasive evidence of genericide. See CG Roxane LLC v. Fiji Water Co. LLC, 569 F. Supp. 2d 1019, 1027 (N.D. Cal. 2008) (holding that a competitors use of a mark is compelling evidence of genericness as it reflects how the public identifies the term). Due to that, the court denied San Diego Comic-Con's motion to deny SLC that defense. So, when the trial moves forward now, it should be clear exactly what the defense by Salt Lake City will be: generecide. Given this ruling's opinion of the facts on that question, it appears that defense will be quite strong. It's something of a canary in the coal mine for the SDCC, in other words. I somewhat expect we'll now hear more talks of a settlement before this goes much further. Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
Around a year ago, HP was roundly and justly ridiculed for launching a DRM time bomb -- or a software update designed specifically to disable competing printer cartridges starting on a set date. As a result, HP Printer owners using third-party cartridges woke up one day to warnings about a "cartridge problem," or errors stating, "one or more cartridges are missing or damaged," or that the user was using an "older generation cartridge." The EFF was quick to lambast the practice in a letter to HP, noting that HP abused its security update mechanism to trick its customers and actively erode product functionality. HP only made matters worse for itself by claiming at the time that it was only looking out for the safety and security of its customers, while patting itself on the back for being pro-active about addressing a problem it caused -- only after a massive consumer backlash occurred. Fast forward almost exactly one year, and it looks like HP hasn't learned much from the Keurig-esque experience. The company this week released a new software update for the company's OfficeJet 6800 series, OfficeJet Pro 6200 series, OfficeJet Pro X 450 series, and OfficeJet Pro 8600 series printers. One of the major "benefits" of the update? Printer cartridges from competing manufacturers no longer work. Again: According to ghacks.net, a new firmware update for HP Officejet printers released yesterday appears to be identical to the reviled DRM update released exactly one year ago. When you try to use third-party ink after installing the new/old firmware, you apparently run into an error that says “One or more cartridges appear to be damaged. Remove them and replace with new cartridges.” Depending on how many cartridges your specific printer uses, it may be possible to insert one or two without getting an error. But it seems when all of the ink cartridge slots are filled up, the warning message will be displayed again. Just like a year ago, this restriction is being foisted upon consumers under the guise of a security update, powered by a service HP calls its "Dynamic Security" platform. Fortunately, consumers have several paths to avoid dealing with this nonsense. Customers can head to the HP support website and download an alternate firmware without the Dynamic Security platform embedded (something that HP knows most users won't do, and which places the onus for remedying HP's bad behavior on the end user). Users then have to block HP's automatic update functionality to prevent this firmware from being installed automatically (at the cost of useful updates). There's probably an easier, more elegant solution: stop buying HP printers until the company realizes that eliminating device functionality under the pretense of security is obnoxious bullshit. Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
On Friday, we posted video from last week's World Hosting Days, in which Mike Masnick sat down for a talk with Mike Godwin — a.k.a. the originator of "the Streisand Effect" meeting the creator of "Godwin's Law". As promised, we've got the audio from the event for this week's podcast, so if you haven't watched the video (or you just want to revisit it) tune in for a fun discussion about the history and changing meaning of these now-famous terms. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
So, earlier today the Senate Commerce Committee held a two and a half hour hearing about SESTA -- the Stop Enabling Sex Traffickers Act of 2017. The panelists were evenly split, with California Attorney General Xavier Becerra and Yiota Souras from the National Center for Missing and Exploited Children being in support of the bill, and Professor Eric Goldman and Abigail Slater from the Internet Association worrying about the impacts of SESTA (notably, both highlighted that they're not against all changes to CDA 230, they just want to be quite careful and are worried about the language in this bill). I was actually somewhat surprised that the hearing wasn't as bad as it could have been. There certainly was some grandstanding, and some insistence that because SESTA says it will go after sex trafficking that it obviously will -- but many Senators did seem willing to listen to concerns about the bill and how it's written. Much attention was paid to the sketchy "knowledge" standard in the bill, which we wrote about this morning. And that's good -- but there was a fair bit of nonsense spewed as well. Perhaps the most problematic comments were from the bill's co-author, Senator Richard Blumenthal, who has been attacking CDA 230 since his time as Connecticut's Attorney General. While you can watch the entire hearing, I created a short clip of Blumenthal's questions (which, oddly, C-SPAN won't let me embed here) so I'll transcribe it: Blumenthal: I think I've said why I support this legislation, which I helped craft, and we've tried to do it carefully. And we tried to listen to the industry. We've tried to listen really closely to some of the concerns that have been raised this morning by Mr. Goldman. For example, the idea that this legislation will cause sex trafficking to -- I'm using your word -- proliferate. Hard to believe. Mr. Becerra, what do you think and will this measure cause sex trafficking to proliferate? So... the idea that Blumenthal listened carefully is laughable on its face. He's been fighting this issue since at least 2010 when he went after Craigslist for ads he didn't think they should have on the site. And in Blumenthal's own testimony he admitted that forcing Craigslist to change how it worked only led to sex trafficking ads moving from Craigslist -- which cooperated very closely with law enforcement -- to Backpage and expanded their reach. I'm at a loss as to why we should take Blumenthal's words on what will happen when he admits his own actions targeted at sex trafficking in the past made the problem worse. To then mock Prof. Goldman for suggesting the same might happen here is... quite incredible. Also, interesting that rather than asking Goldman to clarify his position first (he does later), Blumenthal starts by asking Becerra to back him up. Becerra: I can't agree with what Professor Goldman has said. I think it's just the opposite. If we have a standard in place, then I believe the stakeholders within the internet community will come forward in ways we've seen before, but even more vigoroulsy, because they'll understand what the standard is, and I think that's so very important to make it clear for folks. The most important thing, Senator Booker sorta pointed this out, is we need to get the opponents of this measure to explain, in detail, what they would propose in place. Otherwise, it's always a moving target. It's Whac-a-mole. Someone needs to give us what a better bill looks like. So, this is also bizarre and wrong. First, much of the discussion from Goldman and Slater (and us) was about the lack of any clarity around the "standard." The bill says that "knowing conduct" that "assists, supports or facilitates" sex trafficking can make a platform guilty of civil and criminal violations of the law. But "knowing conduct" is not clarified. And as we've seen in other contexts, including in the copyright realm, years-long fights can happen in court over what "knowledge" might mean. The famous YouTube/Viacom fight, that went on for nearly a decade, was almost entirely focused on whether or not YouTube had knowledge of infringement, and whether the law required "specific" knowledge or "general" knowledge. Nothing in this bill clarifies that. Even worse, the term "knowing conduct" is dangerously vague. It could be read to mean that if the site does something that it knows that it is doing, and it leads to facilitating sex trafficking -- even if the site doesn't know about that outcome -- it would constitute "knowing conduct." Goldman had pointed this exact problem out earlier in the hearing, so for Becerra to insist that this is a clear standard is ludicrous. Becerra is also confused if he thinks this will lead internet companies to "more vigorously" come forward. Coming forward with evidence of sex trafficking will then be turned around on them as proof of "knowledge." With this law in place, why would any internet company be more willing to come forward when that only increases liability? Finally, the idea that opponents need to come forward with other language is similarly weird. SESTA's supporters are the one demanding a massive change in the underpinning of the internet. Shouldn't the burden be on them to prove that this will help and not hurt? And, on top of that, it also ignores the fact that many opponents have come forward with different language (which I know as a fact because someone ran some alternative language by me a few weeks ago, and again earlier this week). So either Becerra doesn't know that or he's being disingenuous. I'll cut the next section where Blumenthal says (misleadingly) that a proposal put forth from tech companies was to curtail or "eliminate" the ability of State AGs to pursue violations of the law (the proposal I saw simply clarified when and how they could go after sites) and Becerra eagerly says that would be terrible, as you'd expect. Blumenthal: Let me ask, Mr. Goldman, do you really believe that this law would cause sex trafficking to proliferate? Goldman: Thank you, Senator, for the opportunity to clarify that. Indeed, my concern is that we already see a number of efforts on the part of legitimate players to reduce sex trafficking promotion. To the extent that any of those companies decide 'I am better off turning off my efforts across the board, to try to reduce the knowledge that I have,' then that creates a larger number of zones that the sites will not be taking the legitimate effort that we want them to take. It creates an environment where there's more places for that to occur. This is an excellent and succinct explanation of the problem. Under SESTA, the "knowledge" standard is so vague and unclear, that actually doing what Congress wants -- policing sex trafficking -- creates "knowledge" and makes these companies liable under the law. Blumenthal, of course, doesn't seem to get it -- or doesn't care. Blumenthal: You know, I have a higher opinion of the industry than you do. I really believe that this law will raise the bar, will increase consciousness, and that far from trying to evade, or, in fact, deny themselves knowledge, so as to avoid any accountability, they will be more energetic. I absolutely really believe that most of these companies want to do the right thing and that this law will give them an increased impetus and incentive to do so. WHAT?!? First off, if the idea is to give companies a greater impetus and incentive to do what they already want to do (as Blumenthal claims...) then threatening them with criminal and civil penalties for simply "knowing" that their platforms are used for illegal activity seems like a totally fucked up way of doing so. If you want to encourage platforms to do the right thing, then why is the entire bill focused on punishing platforms for merely knowing that their platform was illegally used? Second, if Blumenthal truly had a higher opinion of tech companies, why is he falsely misrepresenting what Goldman said, and saying that companies would choose to avoid knowledge to "avoid accountability"? That's not the issue at all -- and is, indeed, self-contradictory with Blumenthal's own statements. Companies want to do the right thing to reduce sex trafficking, but this bill puts them in legal jeopardy for even researching if their platforms are used that way. That's the point that Goldman was trying to make and Blumenthal totally misrepresents. And then it gets worse. Goldman points out a separate issue, noting that big companies like Google and Facebook may have the resources to "do more" but startups without those resources won't be able to take the steps necessary to avoid liability under the law: Goldman: There's no doubt that the legitimate players will do everything they can to not only work with the law enforcement and other advocates to address sex trafficking and will do more than they even do today. At the same time, the industry is not just the big players. There is a large number of smaller players who don't have the same kind of infrastructure. And for them they have to make the choice: can I afford to do the work that you're hoping they will do. Okay, and here's where things get absolutely fucked up. Note what Goldman is clearly saying here: this bill will wreak havoc on startups who simply can't afford to monitor every thing that people do on their platforms. And then, Blumenthal's response is to say that those startups are criminals who should be prosecuted: Blumenthal: And I believe that those outliers -- and they are outliers -- will be successfully prosecuted, civilly and criminally under this law. WHAT THE FUCK?!? Goldman was talking about tons and tons of smaller companies -- or anyone who operates any online service that enables user comments, where they can't monitor everything -- and under this law will have to make the choice of whether they do any monitoring at all or face the risk of that being used against them, and Blumenthal's response is that they should be prosecuted. Senator Blumenthal: those companies are not outliers and they're not criminals. They're thousands upon thousands of smaller internet companies, many based in your home state of Connecticut, that you apparently want to see shut down. That's messed up. Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
It's fairly stunning just how often the NY Times Opinion pages are just... wrong. Nick Kristof, one of the most well known of the NYT's columnists, has spent years, talking about stopping sex trafficking -- but with a history of being fast and loose with facts, and showing either little regard for verifying what he's saying, or a poor understanding of the consequences of what he says. I would hope that everyone reading this supports stopping illegal and coerced sex trafficking. But doing so shouldn't allow making up facts and ignoring how certain superficial actions might make the problems worse. Kristof, in particular, has been targeting Backpage.com for at least five years -- but has been caught vastly exaggerating claims about the site to the point of potentially misstating facts entirely (such as claiming Backpage existed before it actually did, and that it operated in cities where it did not). Kristof also has a history of being laughably credulous when someone comes along with a good story about sex trafficking, even when it's mostly made up. He's been accused of having a bit of a savior complex. And that's on display with his recent, extraordinarily confused piece attacking Google for not supporting SESTA -- the "Stop Enabling Sex Traffickers Act." As we've explained in great detail, SESTA (despite its name) is unlikely to stop any sex trafficking and likely would make the problem worse. That's because the whole point of SESTA is to undermine CDA 230, the part of the law that creates incentives for tech companies to work with authorities and to help them track down sex trafficking on their sites. What the bill would do is make websites owners now both civilly and criminally liable for knowledge of any sex trafficking activity on their sites -- meaning that any proactive efforts by them to monitor their websites may be seen as "knowledge," thus making them liable. The new incentives will be not to help out at all -- not to monitor and not to search. Meanwhile, by putting such a massive target on websites, it will inevitably be abused. We see how people abuse the DMCA to take down content all the time -- now add in the possibility of sites getting hit with criminal penalties, and you can see how quickly this "tool" will be abused to silence content online. But, never mind all of that. To Kristof, because the bill says it's against sex trafficking, and he's against sex trafficking, it must be good. And, he's quite sure that the only people against the bill are Google, and that there's ill-intent there. Why? Why would Google ally itself with Backpage, which is involved in 73 percent of cases of suspected child sex trafficking in the U.S., which advertised a 13-year-old whose pimp had tattooed his name on her eyelids? First of all, Kristof is, again, playing fast and loose with the facts if he thinks Google is an "ally" of Backpage. Google has directly come out and said that it believes that Backpage should be criminally prosecuted by the DOJ (remember, CDA 230 does not apply to federal criminal charges). I want to make our position on this clear. Google believes that Backpage.com can and should be held accountable for its crimes. We strongly applaud the work of the Senate Permanent Subcommittee on Investigations in exposing Backpage's intentional promotion of child sex trafficking through ads. Based on those findings, Google believes that Backpage.com should be criminally prosecuted by the US Department of Justice for facilitating child sex trafficking, something they can do today without need to amend any laws. And years before the Senate's investigation and report, we prohibited Backpage from advertising on Google, and we have criticized Backpage publicly. So, no, Google is not protecting Backpage. Kristoff, towards the end of his post, waves off Google's strong words about Backpage as proof that it has no reason not to support this legislation, without even once grappling with (a) what Google actually says or (b) why Google (and tons of others) would still oppose this legislation as being tremendously damaging. Even if you're not quite as convinced as Google that Backpage has broken the law (the Senate Report appeared to take a number of Backpage actions completely out of context), to argue that Google is supporting Backpage is clearly just wrong. But, Kristof, having set up his thesis, is going to go for it, no matter how wrong: The answer has to do with Section 230 of the Communications Decency Act, which protects internet companies like Google (and The New York Times) from lawsuits — and also protects Backpage. Google seems to have a vague, poorly grounded fear that closing the loophole would open the way to frivolous lawsuits and investigations and lead to a slippery slope that will damage its interests and the freedom of the internet. "Poorly grounded fear?" That's just wrong. Kristof seems totally ignorant of issues related to intermediary liability on the internet -- an issue that has been studied for quite some time. When you give people tools to put liability on online services for the actions of their users, the tools are abused. Every time. They get abused for censorship. We know this. You don't have to look any further than the intermediary liability setup we have in the copyright realm, where every year we see millions of false DMCA notices filed just to censor content, and not for any reason having to do with copyright. How do you think things will turn out when you're able to not just threaten a website with civil copyright penalties with limited damages, but with potential criminal penalties, through a vaguely worded law where mere "knowledge" can get your entire site in trouble? But again, Kristof doesn't care. That impresses few people outside the tech community, for the Stop Enabling Sex Traffickers Act was crafted exceedingly narrowly to target only those intentionally engaged in trafficking children. Some tech companies, including Oracle, have endorsed the bill. First, this is wrong. Lots of people outside the tech industry have raised concerns -- including free speech groups like the ACLU. But, even if it were only the tech community, why wouldn't you listen to the industry that actually has the experience in understanding how these kinds of laws are regularly abused to silence perfectly legitimate speech and to quash perfectly legitimate services? Wouldn't their input be valuable? Why does Kristof brush them off? As for the Oracle line -- let's be clear: Oracle and HP are the only "tech" companies that have come out in support of the bill, and neither run online services impacted by CDA 230. It's completely disingenuous to argue that Oracle represents "tech" when it's not an internet services provider who would be impacted by changes in CDA 230. Why even listen to them, rather than those who have the actual experience? And the idea that this was "crafted exceedingly narrowly to only target those intentionally engaged in trafficking children" is just on its face, wrong. First off, the bill doesn't specifically just target trafficking having to do with children, but I think we can all agree that any trafficking is problematic. The issue is that it doesn't just punish those "intentionally engaged in trafficking." It specifically targets any website that is used in a way that "assists, supports or facilitates" trafficking and has broadly defined "knowledge" that the site is used that way. That's... not intentionally engaging in trafficking. It's much, much, much broader. Let's say you're Airbnb. SESTA makes it much riskier to be in business. If Airbnb hears that someone used Airbnb to traffic someone (which, unfortunately, is impossible to detect), now it risks criminal and civil lawsuits, because it "knew" of conduct that "assisted, supported, or facilitated." This is even if Airbnb doesn't know which accounts were used for this. “This bill only impacts bad-actor websites,” notes Yiota Souras, general counsel at the National Center for Missing & Exploited Children. “You don’t inadvertently traffic a child.” This is... just so misguided and wrong it's almost laughable. No, of course, no one "inadvertently" traffics a child. But that's not what this law is about. The law is about blaming websites if one of its users does anything related to trafficking someone via its services. And, that creates massive potential liability. Say someone wants to get our little site in trouble? They could just go and post links in comments to sex trafficking ads, and suddenly we're facing potential criminal charges. We're not Google. We can't hire staff to read every possible comment and recognize whether or not they're linking to illegal activity. And despite what some will say, even Google can't possibly hire enough staff, or get its AI good enough, to parse everything it touches to see whether or not it's linked to illegal activity. But under the current setup of SESTA, this leads you to a risk of massive liability. The concerns here are real -- and Kristof is either ignorant or being purposely blind to the arguments here. Senator Rob Portman, an Ohio Republican and lead sponsor of the legislation, says that it would clearly never affect Google. “We’ve tried to work with them,” Portman told me This is laughable. The bill would impact basically every site, including Google. After all, it was just a few years ago, that a Mississippi Attorney General went on an illegal fishing expedition against Google -- put together by the MPAA's lawyers -- demanding all sorts of information from Google. Based on what? Well, Jim Hood said that because he could use Google to find sex trafficking ads, Google was breaking the law. A court tossed this out, and the two sides eventually settled, but under SESTA, Hood would now be able to go after Google criminally if any search turned up trafficking. And how the hell is Google supposed to make sure that no one ever uses any of its properties for sex trafficking? But, never mind the facts. Kristof insists there's no issue here because the bill's sponsor says there's no issue. Senator Richard Blumenthal of Connecticut, the lead Democratic sponsor, adds that “it’s truly baffling and perplexing” that some in the tech world (Google above all) have dug in their heels. He says the sex trafficking bill gathered 28 co-sponsors within a week, making it a rare piece of bipartisan legislation that seems likely to become law. It's truly baffling that those with actual experience and knowledge in how weakening intermediary liability laws creates all sorts of problems are now telling you there will be all sorts of problems? And, really, isn't this the same Senator Richard Blumenthal who, when he was Connecticut Attorney General, was famous for campaigning against CDA 230 and blaming tech for basically everything? He's not exactly a credible voice. But, Kristof has his story and he apparently seems willing to believe anyone who says anything, no matter how little is based on facts, if it supports his version of the story. I write about this issue because I’m haunted by the kids I’ve met who were pretty much enslaved, right here in the U.S. in the 21st century. I’ve been writing about Backpage for more than five years, ever since I came across a terrified 13-year-old girl, Baby Face, who had been forced to work for a pimp in New York City. And you've been repeatedly called out and corrected for factual errors in your writing on this issue. Because you're quick to believe things that later turn out to be wrong. And, yes, stories like ones you've come across are awful and we should be doing everything possible to stop such exploitation. But blaming internet companies doesn't help. You blame the actual criminals, the ones trafficking the children. But, Kristof is clear: he doesn't care about blaming those actually responsible. He wants to take down internet companies. Because reasons. But it’s not enough to send a few pimps to prison; we should also go after online marketplaces like Backpage. That’s why Google’s myopia is so sad. Why? Why should we blame internet companies because people use them for illegal activity? What's wrong with blaming the people who actually break the laws? CDA 230, as currently written, encourages platforms to cooperate with law enforcement and to take down content. SESTA would undermine that and stop companies from working with law enforcement, because any admission of "knowledge" can be used against them. In response to my inquiries, Google issued a statement: “Backpage acted criminally to facilitate child sex trafficking, and we strongly urge the Department of Justice to prosecute them for their egregious crimes against children. … Google will continue to work alongside Congress, antitrafficking organizations and other technology companies to combat sex trafficking.” Fine, but then why oppose legislation? Why use intermediaries to defend Backpage? To me, all this reflects the tech world’s moral blindness about what’s happening outside its bubble. Why oppose it? Because the legislation is a nuclear bomb on how the internet works and a direct attack on free speech. It's not "moral blindness" at all. In fact, SESTA would be a moral disaster because it removes incentives for companies to help stop trafficking, out of fear of creating "knowledge" for which they'll face civil and criminal lawsuits. This has been explained to Kristof -- and, in fact, people told him this on Twitter after his article was published, and he insisted that no one other than Google seemed concerned with SESTA. That's also not true. As we've seen with our own letter, dozens of tech companies are worried about it. And we've talked to many more who admitted to us that they, too, think this is an awful law, but they're afraid of grandstanding folks like Kristof publishing misleading screeds against them falsely saying that worrying about SESTA is the same as supporting sex trafficking. Incredibly, when an actual human trafficking expert and researcher, Dr. Kim Mehlman-Orozco, decided to challenge Kristof and point out that his opinions aren't backed up by the actual research, Kristof dismissed her views and data as not being as valuable as the few anecdotes he has. Even if Google were right that ending the immunity for Backpage might lead to an occasional frivolous lawsuit, life requires some balancing. Uh, what? This is basically Kristof first admitting that he's wrong that it won't impact sites other than Backpage, and then saying "meh, no biggie." But that's... really fucked up. We're not talking about the "occasional frivolous lawsuit." From what we've seen with the DMCA, it seems likely that there would be a rash of dangerous lawsuits, and companies being forced out of business -- not to mention tons of frivolous threats that never get to the lawsuit stage, but lead to widespread censorship just out of the fear of possible liability. How can Kristof just shrug that off as "balance"? For example, websites must try to remove copyrighted material if it’s posted on their sites. That’s a constraint on internet freedom that makes sense, and it hasn’t proved a slippery slope. If we’re willing to protect copyrights, shouldn’t we do as much to protect children sold for sex? HOLY SHIT. And here we learn that Kristof is so completely out of his depth that it's not even funny. Seriously, someone educate Nick Kristof a little on how the DMCA has been abused to silence speech, to kill companies and to create huge problems for free speech online? And that's with much lower penalties than what we're talking about with SESTA. I asked Nacole, a mom in Washington State whose daughter was trafficked on Backpage at the age of 15, what she would say to Google. “Our children can’t be the cost of doing business,” she said. Google understands so much about business, but apparently not that. Ah, always close with a "for the children!" argument after making a bunch of statements that are just devoid of facts. No one is fighting this for the support of "business." They're doing it because they understand how important intermediary liability protections are against undermining how the internet works and how free speech works online. Kristof has a long history of not caring about facts so long as he gets a good story about just how concerned he is about trafficking. We're all concerned about trafficking -- but passing a law that will make the problem worse just to appear like you're a hero is not the solution, Nick. Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
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posted about 21 hours ago on techdirt
Earlier today, I wrote up a list of the many problems with SESTA and how it will be abused. Over and over again, we've seen defenders of the bill -- almost none of whom have much, if any, experience in managing services on the internet -- insist that the bill is "narrowly targeted" and wouldn't create any problems at all for smaller internet services. However, with the way the bill is worded, that seems unlikely. As stated in the last post, by opening up sites to facing both lawsuits from state Attorneys General and civil lawsuits, SESTA puts almost any site that offers services to the public at risk. The problematic language in the bill is that this is the "standard" for liability: "The term 'participation in a venture' means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation...." And that could apply to just about anyone offering services online. So, let's dig into a few examples of companies and services potentially facing liability thanks to this nuclear bomb-sized hole in CDA 230. Airbnb: I did a whole post on this earlier. But there are multiple reports of how some people have used Airbnb for prostitution. I'm quite sure that Airbnb doesn't want its users to use the platform in this way, but under SESTA, it will face criminal and civil penalties -- and it has no way to prevent it. Prosecutors or civil litigants can easily point to these articles, and note that this demonstrates "knowledge" that Airbnb is "facilitating" sex trafficking, and, voila, no CDA 230 protections. Square: The popular payments processor that has made it easy for small businesses to accept credit cards... can also be used for prostitution/sex trafficking. Square can't specifically watch over what each of its customers is selling, but clearly, it wouldn't be difficult for prosecutors and/or civil litigants to argue that Square is knowingly facilitating trafficking by allowing traffickers to accept payments. Facebook: Obviously, tons of sex traffickers use Facebook to advertise their wares. There have been news stories about this. So clearly Facebook has "knowledge." If it can't magically eradicate it, it may also now have to deal with criminal and civil lawsuits lobbed its way. Snapchat: Last year there was a story of a teenager lured into a sex trafficking ring via Snapchat. So, clearly, lawyers might argue that Snapchat has "facilitated" sex trafficking. Wordpress/Automattic: Automattic hosts a significant portion of the entire internet with its powerful Wordpress.com platform. It's pretty damn likely that at least some sex traffickers use Wordpress to set up sites promoting what they're offering. Thus, it's "facilitating" sex trafficking. Wikipedia: You wouldn't think of Wikipedia as being a hub for sex trafficking, but the site gets hit with spam all the time, and people trying to promote stuff via its webpages -- and even when spam is edited out, it remains viewable in the history tabs. So, if a few links to trafficking advertisements show up, even if edited out, Wikipedia could face liability for facilitating such ads. Google Docs: Did sex traffickers use Google docs to create fliers or manage a spreadsheet? Is that "facilitating" sex trafficking? Well, we might not know until after a court goes through a long and involved process to figure it out. Cloudflare: Tons of websites use Cloudflare as a CDN to provide better uptime. What if one of them involves advertisements for sex trafficking. Is Cloudflare liable? After all, its CDN and anti-DDoS technology helped "facilitate" the service... Rackspace: Popular hosting company has millions of websites. If one of them hosts advertising for trafficking, it can be liable for facilitating sex trafficking. Amazon: Through its web services arm, Amazon hosts a large portion of the internet. Can you say for certain that Amazon S3 isn't used somewhere by some sex trafficking parties? YouTube: These days, almost anything can be found in videos, and while YouTube has a system to "notify" the company of abuse, that may be used against the company, claiming "knowledge." After all, in a case in Italy where Google execs were found criminally liable, the fact that some users clicked the "notify" button was used as evidence against the execs. Namecheap: Has Namecheap ever registered a domain that was then used by sex traffickers? Well, then it can be argued that it facilitated sex trafficking, and is not protected by CDA 230. Indeed: Basically any "job board" is at risk. There are stories of sex traffickers seeking victims via promises of summer jobs -- and while these stories are highly dubious at best, similar accusations against online job boards under SESTA would be easy to make. Reddit: As an open forum, certainly sex trafficking gets discussed in some corners of the site. Is it possible that some have used it to help facilitate trafficking? Absolutely. Any site that has comments: And that includes sites like Techdirt. Want to get a site in trouble? Why not spam its comments with links to sex trafficking ads? Voila, you've now put those sites at risk of criminal and civil liability... The point of this is that this list can go on and on and on. Almost any internet service can be used in some way to "facilitate" sex trafficking. And rather than recognizing that the problem is those engaging in sex trafficking, SESTA now lets everyone go after the tools they use. But nearly all those tools are mostly used for perfectly legitimate, non-illegal activity. Yet, under SESTA, all face massive liability and the potential for criminal charges. Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
We've been talking quite a bit about SESTA -- the Stop Enabling Sex Traffickers Act -- and why it's so problematic, but with hearings today, I wanted to dig in a bit more closely with the text to explain why it's so problematic. There are a large number of problems with the bill, so let's discuss them one by one. Undermines the incentives to moderate content and to work with law enforcement: This remains the biggest issue for me: the fact that the bill is clearly counterproductive to its own stated goals. When people talk about CDA 230, they often (mistakenly) only talk about CDA 230(c)(1) -- which is the part that says sites are immune from liability. This leads many people to (again, mistakenly) claim that the only thing CDA 230 is good for is absolving platforms from doing any moderation at all. But this actually ignores the equally important part of the same section: CDA 230(c)(2) which explicitly encourages platforms to moderate "objectionable" content, by noting that good faith efforts to moderate and police that content have no impact on your protection from liability in part (1). In other words: as currently stated, CDA 230 says that you're encouraged to moderate your platform and takedown bad content, because there's no increase in legal liability if you do so. Indeed, it's difficult to find a single internet platform that does zero moderation. Most platforms do quite a bit of moderation, because otherwise their platforms would be overrun by spam. And, if they want people to actually use their platforms, nearly every site (even those like 4chan) tend to do significant moderation out of public pressure to keep certain content off. Yet, under SESTA you now face liability if you are shown to have any "knowledge" of violations of federal sex trafficking laws. But what do they mean by "knowledge"? It's not at all clear, as it just says "knowledge." Thus, now if a site, for example, discovers someone using its platform for trafficking and alerts authorities, that's evidence of "knowledge" and can be used against them both in criminal charges and in civil lawsuits. In other words, somewhat incredibly, the incentive here is for platforms to stop looking for any illegal activity on their sites, out of fear of creating knowledge which would make them liable. How does that help? Indeed, platforms will be incentivized not to do any moderation at all, and that will create a mess on many sites. The vague "knowledge" standard will be abused This is sort of a corollary to the first point. The problematic language in the bill is this: The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation... But what do they mean by "knowing conduct"? Who the hell knows. We already know that this is going to get litigated probably for decades in court. We have some similar problems in the DMCA's safe harbors, where there have been legal battles going on many years over whether the standard is "general knowledge" v. "specific knowledge" and what is meant by "red flag knowledge." And in SESTA the language is less clear. When people have attempted to pin down SESTA's sponsors on what the standard is for knowledge, they've received wildly varying answers, which just means there is no standard, and we'll be talking about lawsuits for probably decades before it's established what is meant by "knowledge." For companies, again, the best way to deal with this is to not even bother doing any moderation of your platform whatsoever, so you can avoid any claim of knowledge. That doesn't help at all. The even vaguer "facilitation" language will be massively abused: In that same definition of "participation in a venture" what may be even more problematic than the vague "knowledge" standard, is the even vaguer claim that an entity "by any means, that assists, supports or facilitates a violation..." of sex trafficking laws, meets the standard of "participation in a venture." All three of those terms have potential problems. Assisting sounds like it requires proactive action -- but how do you define it here. Is correcting typos "assisting"? Is having an automated system suggesting keywords "assisting"? Is autocompleting search "assisting"? Because lots of sites do things like that, and it doesn't give them any actual knowledge of legal violations. How about "supporting"? Again, perfectly benign activities can be seen as "supporting" criminal behavior without the platform being aware of it. Maybe certain features are used in a way that can be seen as supporting. We've pointed out that Airbnb could be a target under SESTA if someone uses an Airbnb for sex trafficking. Would the fact that Airbnb handles payment and reviews be seen as "supporting"? But the broadest of all is the term "facilitating." That covers basically anything. That's flat out saying "blame the tool for how it's used." Almost any service online can be used to "facilitate" sex trafficking in the hands of sex traffickers. I already discussed Airbnb above, but what about if someone uses Dropbox to host sex trafficking flyers? Or what if a sex trafficker creates advertisements in Google Docs? Or what if a pimp creates a blog on Wordpress? What if they use Skype for phone calls? What if they use Stripe or Square for payments? All of those things can be facilitation under this law, and the companies would have no actual knowledge of what's going on, but would face not only criminal liability but the ability of victims to sue them rather than the actual traffickers. This is the core problem: this bill targets the tools rather than the law breakers. Punching a hole in CDA 230 will be abused This is one that seems to confuse people who don't spend much time looking at intermediary liability protections, how they work and how they'll be abused. It's completely normal for people in that situation to not recognize how widely intermediary liability is used to stifle perfectly legitimate speech and activity. However, we know damn well from looking at the DMCA, in particular, that when you set up a process by which there might be liability on a platform, it's regularly abused by people angry about content online to demand censorship. Indeed, we've seen people regularly admit that if they see content they dislike, even if there's no legitimate copyright claim, they'll "DMCA it" to get it taken down. Here, the potential problems are much, much worse. Because at least within the DMCA context, you have relatively limited damages (compared to SESTA at least -- the monetary damages in the DMCA can add up quickly, but at least its only monetary and it's limited to a ceiling of $150,000 per work infringed). With SESTA, criminal penalties are much more stringent (obviously) which will create massive incentives for platforms to cave immediately, rather than face the risk of criminal prosecution. Similarly, the civil penalties show no upper bound under the law -- meaning the potential monetary penalty may be significantly higher. The chilling effects of criminal charges: Combine all of this and you create massive chilling effects for any online platforms -- big or small. I already explained earlier why the new incentives will not be to help law enforcement or to moderate content at all, for fear of creating "knowledge" but it's even worse than that. Because for many platforms, the massive potential liability from SESTA will mean they don't create any kind of platform at all. A comment feature on a website would become a huge liability. Any service that might conceivably be used by anyone to "facilitate" sex trafficking creates the potential for serious criminal and civil liability, which should be of great concern. It would likely lead to many platforms not being created at all, just because of the potential liability. For ones that already exist, some may shutter, and others may greatly curtail what the platform allows. State Attorneys General have a terrible track record on these issues: In response to the previous point, some may point out (correctly!) that the existing federal law already exempts federal criminal charges -- meaning that the DOJ can go after platforms if it finds that they're actively participating in sex trafficking. But, for as much as we rag on the DOJ, they tend not to be in the business of going after platforms just for the headlines. State AGs, on the other hand, have a fairly long history of doing exactly that -- including directly at the behest of companies looking to strangle competitors. Back in 2010 we wrote about a fairly stunning and eye-opening account by Topix CEO Chris Tolles about what happened when a group of State Attorneys General decided that Topix was behaving badly. Despite the fact they had no legal basis for doing so, they completely ran Topix through the ringer, because it got them good headlines. Here's just a snippet: The call with these guys was actually pretty cordial. We walked them through how we ran feedback at Topix, that how in January 2010, we posted 3.6M comments, had our Artificial Intelligence systems remove 390k worth before they were ever even put up, and how we had over 28k feedback emails and 210k user flags, resulting in over 45k posts being removed from the system. When we went through the various issues with them, we ended up coming to what I thought was a set of offers to resolve the issues at hand. The folks on the phone indicated that these were good steps, and that they would circle back with their respective Attorneys’ General and get back to us. No good deed goes unpunished So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.) That’s right. Another press release. This time from 23 states’ Attorney’s General. This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things. And, remember, this was done when the AGs had no legal leverage against Topix. Imagine what they would do if they could hold the threat of criminal and civil penalties over the company? Similarly, remember how leaked Sony hack emails revealed that the MPAA deliberately set up Mississippi Attorney General Jim Hood with the plan to attack Google (with the letter Hood sent actually being written by MPAA outside lawyers?). If you don't recall, Hood used claims that, because he was able to find illegal stuff via Google, it meant he could go on a total fishing expedition into how it handled much of its business. In the Sony leak, it was revealed that the MPAA looked on a NY Times article about the value of lobbying state AGs as a sort of playbook to cultivate "anti-Google" Attorneys General, that it could then use to target and take down companies the MPAA didn't like (remember, this was what the MPAA referred to, unsubtly, as "Project Goliath"). Do we really want to empower that same group of AGs with the ability to drag down lots of other platforms with crazy fishing expeditions, just because some angry Hollywood (or other) companies say so? Opening up civil lawsuits will be abused over and over again. One of the big problems with SESTA is that it will open up internet companies to getting sued a lot. We already see a bunch of cases every year where people who are upset about certain content online, targeting lawsuits at those sites just out of anger. The lawsuits tend to get thrown out, thanks to CDA 230, but lawyers keep trying creative ideas to get around CDA 230, adding in all sorts of frivolous attempts. So, for example, after the decision in the Roommates case -- in which Roommates.com got dinged for activity not protected by CDA 230 (specifically its own actions that violated fair housing laws) -- lots of people cite the Roommates case as an example of why their own argument isn't killed off by CDA 230. In other words, if you give private litigants a small loophole to get around CDA 230, they try to jump in and expand it to cover everything. So if SESTA becomes law, you can expect lots of these lawsuits where people will go to great lengths to argue just about any lawsuit is not protected by 230, because of supposed sex trafficking occuring via the site. Small companies will be hurt most of all: There's this weird talking point making the rounds, that the only one really resisting SESTA is Google. We've discussed a few times why this is wrong, but let's face it: of all the companies out there, Google is probably best positioned (along with Facebook) to whether any of this. Both Google and Facebook are used to massive moderation on their platforms. Both companies have built very expensive tools for moderating and filtering content, and both have built strong relationships with politicians and law enforcement. That's not true for just about everyone else. That means, SESTA would do the most damage to smaller companies and startups, who simply cannot invest the resources to deal with constant monitoring and/or threats from how people use their platform. Given all of these reasons, it's immensely troubling that SESTA supporters keep running around insisting that the bill is narrowly tailored and won't really impact many sites at all. It suggests either a willful blindness to the actual way the internet works (and how people abuse these systems for censorship) or a fairly scary ignorance level, with little interest in getting educated. Permalink | Comments | Email This Story

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You'll recall that earlier this year, AT&T, Verizon and Comcast successfully lobbied the GOP and Trump administration to kill consumer broadband privacy protections that were supposed to take effect last March. While big ISPs engaged in breathless hysteria about the "draconian" nature of the rules, the restrictions were quite modest -- simply requiring ISPs be transparent about what user data gets collected and sold. They also made it more difficult for big ISPs to charge users significantly more money just to opt out of private data collection, an idea both AT&T and Comcast have already flirted with. But in quickly axing the rules, big ISPs --- and the regulators and lawmakers paid to love them -- got a bit more than they bargained for. The ham-fisted rush to kill the protections quickly resulted in more than a dozen states passing a patchwork collection of new state laws aimed at protecting broadband consumers. Among the most notable was California Assemblyman Ed Chau's AB 375 (pdf). The proposal largely mirrors the FCC's proposal, though it took an even harder stance against ISPs looking to abuse the lack of competition to effectively make privacy a paid, premium option. The law quickly received praise from the EFF, which argued that the law would be a good template for other states moving forward, lessening the chance for over-reaching, inconsistent, and poorly written state measures. But large ISPs, Facebook and Google lobbyists quickly got to work demonizing Chau's proposal too, falsely claiming it would somehow weaken user security and magically increase pop ups all over the internet. These and other claims were recently picked apart in an EFF blog post: "The prediction of "recurring pop-ups" is also false because if anything, the bill would "likely result in fewer pop-ups, not to mention fewer intrusive ads during your everyday browser experience," Gillula wrote. "That’s because A.B. 375 will prevent Internet providers from using your data to sell ads they target to you without your consent—which means they’ll be less likely to insert ads into your Web browsing, like some Internet providers have done in the past.." But the lobbying had its intended effect, and California lawmakers voted to kill the effort in a night vote over the weekend: "It is extremely disappointing that the California legislature failed to restore broadband privacy rights for residents in this state in response to the Trump Administration and Congressional efforts to roll back consumer protection,” EFF Legislative Counsel Ernesto Falcon said. “Californians will continue to be denied the legal right to say no to their cable or telephone company using their personal data for enhancing already high profits. Perhaps the legislature needs to spend more time talking to the 80% of voters that support the goal of A.B. 375 and less time with Comcast, AT&T, and Google's lobbyists in Sacramento.” While the proposal can be reintroduced next year, fighting upstream against the collective lobbying firepower of massive ISPs and Silicon Valley giants like Facebook and Google has proven no easy task. And there have been some comments from FCC Commissioners that they may try and use FCC authority to hamstring these efforts as well. You see, it's a "states rights" issue if you try to prevent states from letting ISP lobbyists write protectionist law hamstringing competition, but those concerns magically disappear when states move to actually protect consumers from duopoly harm. It's worth re-iterating that ISPs spent years arguing consumers didn't need added privacy protections because the sector would self-regulate. Of course, Verizon subsequently highlighted the folly of such claims when it was busted modifying user packets to track users around the internet without telling them. AT&T similarly did the same when it began charging users $400 to $550 more per year to opt out of behavioral advertising. And other, smaller cable companies like CableONE joined the fun when they proclaimed they'd be using consumer financial data to provide worse customer service to bad credit customers. The origins of this aggressively bad behavior? The lack of competition in the broadband space. And with the Trump administration looking to effectively gut all oversight of one of the least-competitive and least-liked sectors in American industry, anybody thinking these privacy issues will magically resolve themselves (instead of say, just getting progressively worse) hasn't been paying attention. Permalink | Comments | Email This Story

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This is not a huge surprise, but it's still disappointing to find out that the W3C has officially approved putting DRM into HTML 5 in the form of Encrypted Media Extensions (EME). Some will insist that EME is not technically DRM, but it is the standardizing of how DRM will work in HTML going forward. As we've covered for years, there was significant concern over this plan, but when it was made clear that the MPAA (a relatively new W3C member) required DRM in HTML, and Netflix backed it up strongly, the W3C made it fairly clear that there was no real debate to be had on the issue. Recognizing that DRM was unavoidable, EFF proposed a fairly straightforward covenant, that those participating agree not to use the anti-circumvention provisions of the DMCA (DMCA 1201) to go after security researchers, who cracked DRM in EME. The W3C already has similar covenants regarding patents, so this didn't seem like a heavy lift. Unfortunately, this proposal was more or less dismissed by the pro-DRM crowd as being an attempt to relitigate the question of DRM itself (which was not true). Earlier this year, Tim Berners-Lee, who had the final say on things, officially put his stamp of approval on EME without a covenant, leading the EFF to appeal the decision. That appeal has now failed. Unfortunately, the votes on this were kept entirely secret: So much for transparency. In Bryan Lunduke's article about this at Network World, he notes that despite the W3C saying that it had asked members if they wanted their votes to be public, with all declining, Cory Doctorow (representing EFF) says that actually EFF was slapped on the wrist for asking W3C members if they would record their votes publicly: “The W3C did not, to my knowledge as [Advisory Committee] rep, ask members whether they would be OK with having their votes disclosed in this latest poll, and if they had, EFF would certainly have been happy to have its vote in the public record. We feel that this is a minimal step towards transparency in the standards-setting that affects billions of users and will redound for decades to come.” “By default, all W3C Advisory Committee votes are ‘member-confidential.’ Previously, EFF has secured permission from members to disclose their votes. We have also been censured by the W3C leadership for disclosing even vague sense of a vote (for example, approximate proportions).” It was eventually revealed that out of 185 members participating in the vote, 108 voted for DRM, 57 voted against, and 20 abstained. And while the W3C insisted it couldn't reveal who voted for or against the proposal... it had no problem posting "testimonials" from the MPAA, the RIAA, NBCUniversal, Netflix, Microsoft and a few others talking about just how awesome DRM in HTML will be. Incredibly, Netflix even forgot the bullshit talking point that "EME is not DRM" and directly emphasized how "integration of DRM into web browsers delivers improved performance, battery life, reliability, security and privacy." Right, but during this debate we kept getting yelled at by people who said EME is not DRM. So nice of you to admit that was all a lie. In response to all of this, Cory Doctorow has authored a scathing letter, having the EFF resign from the W3C. It's worth reading. The W3C is a body that ostensibly operates on consensus. Nevertheless, as the coalition in support of a DRM compromise grew and grew — and the large corporate members continued to reject any meaningful compromise — the W3C leadership persisted in treating EME as topic that could be decided by one side of the debate. In essence, a core of EME proponents was able to impose its will on the Consortium, over the wishes of a sizeable group of objectors — and every person who uses the web. The Director decided to personally override every single objection raised by the members, articulating several benefits that EME offered over the DRM that HTML5 had made impossible. But those very benefits (such as improvements to accessibility and privacy) depend on the public being able to exercise rights they lose under DRM law — which meant that without the compromise the Director was overriding, none of those benefits could be realized, either. That rejection prompted the first appeal against the Director in W3C history. In our campaigning on this issue, we have spoken to many, many members' representatives who privately confided their belief that the EME was a terrible idea (generally they used stronger language) and their sincere desire that their employer wasn't on the wrong side of this issue. This is unsurprising. You have to search long and hard to find an independent technologist who believes that DRM is possible, let alone a good idea. Yet, somewhere along the way, the business values of those outside the web got important enough, and the values of technologists who built it got disposable enough, that even the wise elders who make our standards voted for something they know to be a fool's errand. We believe they will regret that choice. Today, the W3C bequeaths an legally unauditable attack-surface to browsers used by billions of people. They give media companies the power to sue or intimidate away those who might re-purpose video for people with disabilities. They side against the archivists who are scrambling to preserve the public record of our era. The W3C process has been abused by companies that made their fortunes by upsetting the established order, and now, thanks to EME, they’ll be able to ensure no one ever subjects them to the same innovative pressures. This is a disappointing day for the web, and a black mark on Tim Berners-Lee's reputation and legacy of stewardship over it. Permalink | Comments | Email This Story

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You may recall that a few years ago, Valve attempted to rollout a platform for video game modders to make money from their efforts. It was an altogether messy attempt for any number of reasons, but chief among them was that the modding community and ecosystem has long operated as a labor of love and not one in which money is exchanged past the point of asking for donations. What Valve attempted to do was fundamentally change that ecosystem without providing a great deal of transparency as to why. One of the primary early adopters of this system in the game publishing community was Bethesda, which opened up Skyrim, a game both wildly popular and one with a robust modding community, to this paid mods platform. In the wake of the backlash, Bethesda ended up refunding all of the mod purchases gamers had made. But then it much more quietly rolled out its Creation Club, which was something of a paid mods 2.0 attempt. For Fallout 4 in particular, the Creation Club platform was one in which both Bethesda and outside modders could have additional content published for the game in a way codified and supported by Bethesda itself. Outside modding groups would be paid for this work and, in turn, gamers would pay for the content through Creation Club rather than buying the more traditional DLC. It was something of a trade, in other words. No annoying DLC, but pay for the mods of choice through Creation Club. So, how is that going? Well, the Creation Club community is still there, but relative to most modding communities there isn't a whole lot being offered up, nor purchased. Despite a huge portion of the game's title screen now dedicated to a window for "Creation Club News", gamers don't seem to be adopting it en masse. Unlike, say, Nexus Mods, long the go-to site to find game mods for Bethesda titles. In fact, one of the site's most popular mods for Fallout 4 is a simple mod that gets rid of the title screen crawl for Creation Club. Enter the “No More Creation Club News” mod by a modder named InAComaDial999. It’s currently the second most popular file of the month on Nexus Mods’ Fallout 4 page. It gets rid of the ad. That’s it. I imagine, though, that people aren’t downloading this mod because they’re aesthetic purists. They want to stick it to the man, and this feels like a tiny middle finger they can deploy at will. Look, there may be a way to make paying modders for their work a reality that doesn't almost universally piss off gamers. I personally am skeptical, because the modding scene has always thrived outside of the profit motive as a community. But whatever the answer to that open question is, it should be clear by now that paid mods 3.0 better have a significant amount of thought put into it compared to the first two versions. Permalink | Comments | Email This Story

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Motel 6 sure seems to love handing over guest info to law enforcement. A couple of years ago, a Rhode Island branch decided to start faxing its guest list to local police every night -- something the PD had never asked it to do. This pleased the mayor, who proudly noted he knew everyone who was staying at the motel every night. Backlash followed and the police chief announced he would no longer accept Motel 6's guest list faxes. Two years later, Motel 6 branches in Arizona are doing pretty much the same thing. This time, however, the info appears to be going straight to Immigration and Customs Enforcement. Free ICE in motel rooms never goes out of style. An undocumented motel guest detained under suspicious circumstances led to local journalists digging into public records. A Phoenix New Times review of court records found that between February and August, ICE agents made at least 20 arrests at Motel 6s, showing up roughly every two weeks. (Since many of the documents we reviewed contained only vague details about where ICE encountered an individual, the actual number is likely even higher.) All took place at one of two Motel 6 locations: 4130 North Black Canyon Highway or 1530 North 52nd Drive. Both are in predominantly Latino neighborhoods. New Times was unable to find records indicating that ICE conducted arrests at other local motels during this same time period. So far, nothing all that conclusive. Some things can be inferred from the New Times' investigation of public records, but there's nothing specifically noting ICE agents are working from motel guest lists. However, nothing in the records indicates how ICE is locating these undocumented motel guests. The only thing stated in the documents is agents were "following up on tips." The New Times decided to go right to the source -- motel employees -- and got some very straightforward answers. “We send a report every morning to ICE — all the names of everybody that comes in,” one front-desk clerk explained. “Every morning at about 5 o’clock, we do the audit and we push a button and it sends it to ICE.” [...] [F]ront desk staff at multiple Motel 6 locations in the Valley said that they regularly share guest information with local police. “I don’t know how it works, but if you check in and you have a warrant, you’re going to get picked up,” one young woman explained. ICE has refused to comment on the veracity of these employees' claims, saying doing so would compromise investigative techniques. However, if this is what's happening, it's neither "investigative" nor much of a "technique." It's just someone running a list against DHS/ICE databases and hoping for a hit. The motel is doing all the legwork, and there's precious little of that being done. Even if you consider the employees' statements to be unreliable hearsay, there's the corporate response to the New Times story, which makes it explicitly clear sending guest lists to ICE was exactly what was happening: Regarding your media story on the Phoenix-area location, this was implemented at the local level without the knowledge of senior management. When we became aware of it last week, it was discontinued. We are currently further investigating and will provide more information shortly. This is better but far from completely comforting. ICE can't demand any motel hand over guest lists in perpetuity, but there's nothing in the law (or even on-point Supreme Court decisions) that forbids agents from popping in and checking out lists in person. The same goes for local law enforcement, which may take its own look-see and pass that on to the feds if anything catches their eye. Motel 6's corporate rollback of an extremely localized unofficial policy may return a little privacy to its guests, but the law and the courts see very little that's protected in information turned over to third parties. Permalink | Comments | Email This Story

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Protecting children from harm is a laudable goal. But, as we've noted for many years, grandstanding politicians have a fairly long history of doing a lot of really dangerous stuff by insisting it needs to be done "for the children." That doesn't mean that all "for the children" laws are bad, but they do deserve scrutiny, especially when they appear to be reactive to news events, and rushed out with little understanding or discussion. And that's a big part of our concern with SESTA -- the Stop Enabling Sex Traffickers Act -- a "for the children" bill. With a name like that, it's difficult to oppose, because we're all in favor of stopping sex trafficking. But if you actually look at the bill with any understanding of how the internet works, you quickly realize that it will be tremendously counterproductive and would likely do a lot more to harm trafficking victims by making it much more risky for internet services to moderate their own sites, and to cooperate with law enforcement in nabbing sex traffickers using their platforms. There's a hearing tomorrow morning about SESTA, and the bill is quickly moving forward, with very few Senators expressing any real concern about the impact it might have on free speech or the internet -- despite the fact that a ton of tech companies and free speech advocates have spoken out about their concerns. Instead, over and over again, we're hearing false claims about how it's just Google that's concerned. Last month, we'd put up a page on our Copia site about the bill with a letter to Congress signed by a few dozen tech companies. Today we're offiically announcing a standalone site, 230Matters.com, that explains why CDA 230 is so important, highlighting the many different parties concerned with the bill, from the ACLU and EFF to tech companies to think tanks and more. The site also hosts the letter that we sent to Congress with our concerns about the bill, put together with the group Engine Advocacy and signed by over 40 companies including Kickstarter, Reddit, Tucows, NVCA, Github, Automattic, Cloudflare, Rackspace, Medium and more. That's not "just Backpage" or "just Google". The letter was signed by internet companies big and small that know just how damaging SESTA will be -- not just to their ability to operate online, but to their own efforts to proactively moderate their own sites, or even to work with law enforcement to help stop trafficking online. In other words, this bill is a double whammy: (1) it will greatly harm innovation and free speech online and (2) do so in a way that is likely to make trafficking worse. Unfortunately, supporters of the bill are falsely claiming that being against this bill is the equivalent of supporting sex trafficking. That's dangerous and leaves no room for actual discussion about why the bill will be so counterproductive. The letter is still open for more signatures -- so if you represent a company that is concerned about this bill, please consider signing on. With Congress paying attention to SESTA this week, you can expect more posts from us exploring the problems with the bill and with the arguments in its favor. We already had one post earlier today debunking the attacks on EFF and CDT, and more are forthcoming... Permalink | Comments | Email This Story

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You may have noticed lately that there's an increasing (and increasingly coordinated) effort to paint today's biggest and most successful companies as some kind of systemic social threat that needs to be reined in. As veteran tech journalist John Battelle put it, tech companies frequently are assumed these days to be Public Enemy No. 1, and those of us who defend the digital world in which we now find ourselves are presumptively marked as shills for corporate tech interests. But a deeper historical understanding of how we got to today's internet shows that the leading NGOs and nonprofit advocacy organizations that defend today's internet-freedom framework actually predate the very existence of their presumed corporate masters. To get taste a of the current policy debate surrounding Google and other internet companies, consider the movie I Am Jane Doe, which documents the legal battle waged by anti-sex-trafficking groups and trafficking victims against the website Backpage.com. The film, which premiered this February with a congressional screening, also tracks a two-year investigation and report by the Senate Subcommittee on Investigations into the site's symbiotic relationship with traffickers. The documentary is powerful and powerfully effective. It has managed to accomplish what few works of art can – encourage Congress to fast-track legislative action. Last month, a powerful group of 27 bipartisan cosponsors introduced new legislation targeting Backpage.com titled the Stop Enabling Sex Traffickers Act, or SESTA. While there were rumors the bill would be attached to the upcoming "must-pass" defense authorization bill, it now appears it will move through regular order, with a hearing in the Senate Commerce Committee scheduled for Sept. 19. Some documentarians strive to be perceived as neutral chroniclers, but I Am Jane Doe producer Mary Mazzio has lobbied aggressively on behalf of the bill. The film's official website and social media accounts have also jumped into the fight, publishing legislative guides and lobbying materials, as well as rallying a coalition to go after the bill's opponents. Here's our problem with Mazzio's blunderbuss approach: since the bill's introduction, internet-freedom advocates (including a letter by R Street, the Copia Institute and others) as well as legal academics have raised alarm bells. In particular, the bill's overly broad provisions would gut key protections for free expression and digital commerce by amending a foundational law undergirding today's internet – Section 230 of the Communications Decency Act. If you love even parts of what the internet has to offer, you likely owe thanks in some way or other to Section 230. We don't view any statute as immune from any criticism, but we do insist that any effort to chisel away at a law expressly crafted to protect and promote freedom of speech on the internet deserves a great deal of scrutiny. The problems posed by the proposed legislation are both expansive and complex, and internet freedom groups have the expertise to highlight these complexities. Mazzio isn't one for complexity, as her film makes it a point to smear internet-freedom groups rather than address their arguments on the merits. The producers do interview experts from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT), but ultimately paint those experts as shills for big tech companies. They allege advocates of online free speech and expression callously oppose commonsense efforts to curb trafficking simply because they would hurt big tech's bottom line. This kind of rhetoric has continued throughout the advocacy campaign to pass SESTA. But the film's promoters would be well-served to pay closer attention to the facts. Defenders of Section 230 aren't "supporting Backpage," any more than advocates of Fifth Amendment rights support criminals or oppose police. They also should look closer at the history. While it may be easy to paint Section 230 proponents as shills for big tech because some of them sometimes receive funding from tech companies, the reality is that organizations like CDT and EFF supported these policies before today's Big Tech even existed. And other nonprofits, like the foundation that hosts the immensely valuable free resource Wikipedia, don't depend on corporate funding–they're primarily funded by individual donations–yet insist that Section 230 is what made it possible for them to exist. While Google was founded in 1998 and Backpage.com launched in 2004, both CDT and EFF, who are mischaracterized in the film as ersatz public-interest advocates, were deeply engaged in the debate way back in 1995 over the Communications Decency Act. There's perhaps no greater evidence of how relatively un-slick and un-corporate those organizations were than their self-representations in the ASCII art newsletters of this pre-Google period supporting the bill that would later become Section 230 of the CDA: Both organizations opposed almost all the language in the CDA and both spearheaded legal efforts that led to the CDA mostly being struck down by the U.S. Supreme Court in 1997. But both also supported the Cox/Wyden amendment that would later become Section 230 of the act, which also created legal protections for "good Samaritan" blocking of offensive material. The Cox/Wyden amendment was added to the Telecommunications Act in the Senate in 1995, and signed into law by President Bill Clinton on Feb. 8, 1996. It's not just that Google and Backpage weren't around when Section 230 became law. Facebook wasn't founded until 2004, YouTube wasn't founded until 2005 and Twitter wasn't founded until 2006. This isn't just a coincidence. Our vibrant online ecosystem exists because of Section 230 and the liability protections it affords to online platforms. It is the law that made today's internet possible. The Internet Association, a tech trade association that has helped lead industry opposition to SESTA, is mostly made up of tech companies (like Google, Facebook, Twitter, Airbnb, Yelp, Snap and Pinterest) that found success after the CDA and that rely, in one form or another, on its intermediary liability protections for user generated content. And keep in mind that it's not just tech giants that oppose SESTA's language amending Section 230. It's dozens of startups and medium-sized companies, too. Indeed, as outlined in this letter from internet-freedom advocates, there are good reasons to think SESTA's proposed changes are hastily conceived and ill-suited to address the problems they purport to solve. Sex trafficking is a horrible crime, but Section 230 already does not protect sites like Backpage if they deliberately facilitate criminal acts. The limited immunity afforded to online platforms by Section 230 does not apply to any federal criminal law, nor should it apply to state criminal law if platforms are acting in bad faith. Furthermore, a 2015 amendment to sections of the federal code governing sex trafficking should make it even easier for federal prosecutors to go after sites that host ads for trafficking, although we still need time for the courts to interpret how it is applied. The DOJ already has the power under current law–even without SESTA–to prosecute Backpage and its founders. Indeed, lawyers for Backpage acknowledged that "indictments may issue anytime" from a federal grand jury in Arizona. If they don't, it's the proper role of Congress to hold a hearing and ask Attorney General Jeff Sessions why they aren't prosecuting this case or those like it. If we need additional resources for the FBI or the DOJ's criminal and civil rights divisions to investigate and prosecute these cases, that's a conversation worth having. It also bears examining whether Congress should clarify the standards for platforms that contribute to the development of user content, given the different interpretations among the circuits. But what we're seeing in the "I Am Jane Doe" advocacy campaign is that SESTA's proponents don't want to have substantive conversations about the law. Instead, they want to create their own "fake news" version of what the issues are and rush their bill to passage, no matter the consequences. Both the intended and unintended consequences of SESTA could be catastrophic. In effect, the law threatens to undermine all of Section 230's benefits to the global internet ecosystem in order to make it easier to prosecute Backpage and its founders, who seem likely to end up in jail no matter what. While today's tech giants will likely have the resources to navigate this in some form, the barriers it sets up could mean the next wave of internet platforms never come–and the ones that we have left are further incentivized to restrict speech. Rather than open a dialogue about current cases and the state of the law and how to refine Section 230's protections, SESTA proponents want to rush in with a legislative chainsaw to carve out vast new liabilities for online platforms–the same platforms that provide us with the internet we love and upon which we all now rely. If Congress rushes to pass SESTA without listening to the substantive arguments of the bill's critics, it will be making a catastrophic mistake. Mike Godwin is a senior fellow with the R Street Institute who worked extensively on the CDA at EFF in the mid-1990s. Godwin later worked for the Center for Democracy and Technology as well. Zach Graves is technology policy director at the R Street Institute. Permalink | Comments | Email This Story

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The Martian mVoice Smartwatches present a precision appearance through an uncluttered 24-hour analog clock display, and is packed with smartwatch features. You can get push notifications from hundreds of your favorite apps, and place or accept a call. The watch can integrate with Amazon Alexa allowing you to control your home's devices from your wrist. There are 6 different watches to choose from and all are on sale for only $130 in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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If all goes well, we might have the US border join the rest of the United States in recognizing citizens' Fourth Amendment rights. The Supreme Court's Riley decision made it clear law enforcement needed to obtain warrants before searching people's cellphones. Unfortunately, the so-called "border exception" -- upheld by at least one court -- says securing the border is more important than recognizing people's rights. The EFF and ACLU -- along with the 10 US citizens and one permanent resident they're representing -- are suing DHS, CBP, and ICE for violating the Constitutional rights of the plaintiffs by warrantlessly searching their devices. Not only did the government search their devices, but in some cases, held onto the devices for weeks. One plaintiff's phone is still in the hands of the CBP, having originally been taken from the plaintiff in January. The filing [PDF] provides details of the plaintiffs' interaction with government agents at US borders. All plaintiffs were taken to secondary screening where they were coerced into handing over their devices and, in some cases, passwords. This is all being done with zero articulable suspicion or probable cause. Agents imply devices will be returned sooner if those they've detained are compliant. But even complicity can result in citizens having to leave their devices in the hands of the government. Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days. These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data. As a result, the plaintiffs have spent thousands of dollars replacing devices the government kept without offering a legitimate law enforcement/national security reason for doing so. As the lawsuit points out, this type of behavior is unconstitutional. When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways: a. First, these confiscations are not justified at their inception when they are affected absent probable cause. b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched. c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices. In addition to the Fourth Amendment violations, there are also concerns about the First. A few of those participating in this lawsuit are journalists. CBP officers not only searched their phones, but questioned them directly about sources and subjects. Even the plaintiffs who aren't journalists have valid First Amendment complaints. If the government's going to demand access to writings, photos, videos, and other forms of expression stored on electronic devices, this limits future expressive acts. People whose devices have been seized and searched are less likely to give the government as much to dig through the second time around. This means less writing, fewer photos, and steering clear of any artistic creation the government might somehow misconstrue as threatening, criminal, or simply critical of rote government abuse. As the plaintiffs point out, these searches aren't Constitutional, but they are allowed by DHS and CBP policies -- which state agents may search and seize phones without reasonable suspicion. To that end, the lawsuit asks the court to find the policies officially unconstitutional and ban the government from searching devices at the border without a warrant. It's a long shot, given the judicial branch's general deference to all things national security-related. But it will be nice to see the government explain how the Supreme Court's Riley decision somehow doesn't apply to American citizens just because they're entering or leaving the country. Permalink | Comments | Email This Story

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For years the traditional cable and broadcast industry has gone to comedic lengths to deny that cord cutting (getting rid of traditional cable TV) is real. First, we were told repeatedly that the phenomenon wasn't happening at all. Next, the industry acknowledged that sure -- a handful of people were ditching cable, but it didn't matter because the people doing so were losers living in their mom's basement. Then, we were told that cord cutting was real, but was only a minor phenomenon that would go away once Millennials started procreating. Of course none of these talking points were true, but they helped cement a common belief among older cable and broadcast executives that the transformative shift to streaming video could be easily solved by doubling down on bad ideas. More price increases, more advertisements stuffed into each minute, more hubris, and more denial. Intentional blindness to justify the milking of a dying cash cow -- instead of adapting. But we're slowly but surely reaching the point where the rise of the streaming video revolution can't be denied, with data indicating it's worse than anybody thought. While the pay TV sector lost another 1 million subscribers last quarter, those totals don't factor in those that bought a new home or rented a new apartment, but chose not to sign up for cable. Many of these folks are dubbed "cord nevers," having never bought into the value proposition of paying $130 more per month for a bloated bundle of largely-unwatched reality TV channels from a company that treats paying customers with disdain. Meanwhile, a new report by eMarketer this week indicates that the pace of customer defections is notably higher than most previous estimates. The firm notes that it was forced to reduce its estimate for US TV ad spending due to faster-than-expected growth in cord-cutting: "eMarketer expected a slowdown this year in TV ad sales, after 2016 benefited from both the Olympics and US presidential election,” said Monica Peart, eMarketer’s senior forecasting director. “However, traditional TV advertising is slowing even more than expected, as viewers switch their time and attention to the growing list of live streaming and over-the-top [OTT] platforms.” All told, the firm predicts that by the end of this year, there will be 22.2 million consumers over the age of eighteen that have cut the cord, up 33.2% since 2016. And while there's still a whopping 196.3 million US adults that subscribe to traditional pay TV (cable, satellite, or telco), that tally is down 2.4% over 2016 levels, with the defection rate only accelerating. The cause? A strange idea known as competition and, by proxy, lower prices: "The acceleration of cord-cutting is the result of several factors,” said eMarketer principal analyst Paul Verna. “First, traditional pay TV operators are increasingly developing streaming platforms, such as Dish Network’s Sling TV. Second, networks such as HBO and ESPN have launched standalone subscription services that allow users to tap those channels without a cable subscription. And third, digital players like Hulu and YouTube are now delivering live TV channels over the internet at reasonable prices—including sports properties that were previously available only through traditional distribution.” As we've long noted, it wouldn't be particularly hard to nip this entire revolution in the bud. Entrenched cable providers simply have to shore up their abysmal customer service and lower rates for legacy TV. And while a few cable and broadcast executives are finally starting to get it, most would rather double down on lip service, bad ideas and price hikes in the false belief they get to nurse the dying cable cash cow in perpetuity. Permalink | Comments | Email This Story

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Facebook has won its challenge against a warrant gag order. Unfortunately, it's more of a case of the government forfeiting than the social media giant raising a successful challenge. Details from the case are limited, but the warrant appears to target protesters arrested during Trump's inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government's demand for 90 days of Facebook activity from three accounts. But there's no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work. Here are the details, from Zoe Tillman at Buzzfeed. According to court papers filed jointly by Facebook and the US attorney's office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had "progressed ... to the point where the [nondisclosure orders] are no longer needed." The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government's request, making Facebook's appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon. This leaves the government's case intact and mostly buried. The now-lifted gag order wasn't indefinite: it allowed Facebook to notify users 30 days after info was handed over to the government. But so far, no info has been handed over, which means the clock hasn't budged on eventual disclosure. Now Facebook can inform the users affected, but the government's removal of the gag order suggests disclosure never posed any real risk to the government's investigation. The government probably sensed things wouldn't go completely its way after the DC Appeals Court asked other interested parties to submit briefs on the issue. Multiple tech companies have challenged government search warrants and gag orders in last few years, resulting in a handful of small wins on the civil liberties front. Faced with this shift in judicial behavior, the government ditched this case just before public arguments were set to begin. The lack of a positive precedential rulings hurts, but there's no shortage of gag order challenges to be had. As Facebook's own data shows, more than half the requests it receives from US law enforcement come with gag orders attached. The FBI's liberal use of National Security Letters adds to that percentage, but statutorily-limited reporting makes it impossible to tell how often the feds demand info and vows of silence simultaneously. Permalink | Comments | Email This Story

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This week, our first place winner on the insightful side is Derek Kerton, with an excellent response to the game developer that has decided to DMCA PewDiePie videos (though it is very generally applicable): ""I am sick of this child getting more and more chances to make money off of what we make," writes Vanaman on Twitter." I am sick and tired of people who get angry when value is added on top of their platforms by other players in the economy. That's how business works. You don't hear steel workers angry when carmakers make a car from their steal then, "make money off what we make." You don't hear carmakers getting angry when taxi companies buy their cars, then "make money off what we make." The fact is, your products, my products, ANY product ain't worth shit to the market if we don't offer the buyers the opportunity to extract Economic Surplus from it. Whether that's in the form of Consumer Surplus, or Value-Added revenues from a business - people should be able to use your products to serve their needs. And it doesn't matter if you like or don't like what they do with it. It is literally none of your business. https://en.wikipedia.org/wiki/Economic_surplus Meanwhile, after we discussed Harvard's decision to rescind Chelsea Manning's fellowship and pointed out the fellow whose letter and protest sparked the choice (Michael Morell) is responsible for bad intelligence that started the war in Iraq and killed thousands of US soldiers, ShadowNinja rightly pointed out that there's much more to the story than that: For Havard to rescind its offer to Manning, over false claims of putting US soldiers at risk from a guy who has admitted his own decisions lead to the deaths of thousands of US soldiers, is a total travesty. Why must we be too American focused on this? The deaths of American soldiers are frankly peanuts compared to all the other hundreds of thousands of deaths the war caused in Iraq, mainly among the Iraqi's. Here's a link with information about the deaths caused by the Iraq War, and the different estimates of casualties. The most relevant section about the deaths here. Various scientific surveys of Iraqi deaths resulting from the first four years of the Iraq War estimated up to one million Iraqis died as a result of conflict during this time.[1] A later study, published in 2011, estimated that approximately 500,000 Iraqis had died as a result of the conflict since the invasion.[2] Counts of deaths reported in newspapers collated by projects like the Iraq Body Count project found 174,000 Iraqis reported killed between 2003 and 2013, with between 112,000-123,000 of those killed being civilian noncombatants. Updated estimates from the Iraq Body Count Project report an estimated 173,766 – 194,058 civilian deaths from 2003-2017. For troops in the U.S.-led multinational coalition, the death toll is carefully tracked and updated daily, and the names and photographs of those killed in action as well as in accidents have been published widely. A total of 4,491 U.S. service members were killed in Iraq between 2003 and 2014.[3] Regarding the Iraqis (see Tables section below), however, information on both military and civilian casualties is both less precise and less consistent. Estimates of casualty levels are available from reporters on the scene, from officials of involved organizations, and from groups that summarize information on incidents reported in the news media. So at best only a mere 174,000 Iraqi's (the vast majority of them non-combatant citizens) were killed in the Iraq war. Likely the number is closer to over 200,000 when counting all deaths, not just Iraqi's. And if the worst case estimates are right and the vast majority of estimates are heavily under-counting the deaths, over a million people died as a result of the war. And that's just deaths, it doesn't count all the other many costs of the war. In that post, we also mentioned Harvard's recent decision to deny admission to a woman who was about to be released from prison for killing her child. One commenter flatly asserted that there should be no sympathy or redemption for her, and our first editor's choice for insightful is the anonymous response that discussed that notion at great length: There are five basic reasons for imprisoning a criminal. The ones most people agree on are removal, deterrence, and retribution. That is: putting criminals somewhere that they can't hurt the general public, offering disincentives to committing crimes in the first place, and giving a sense that the person has been given a punishment that has fit the crime. There aren't many people who'd disagree with serial killers being deprived of people to kill, or that some sort of punishment is needed to keep people from flouting the law with impunity, or that something must be done to provide a sense of justice and closure after a crime is committed. There are two other basic reasons behind imprisonment, though, and very different philosophies about their place in criminal justice. Scandinavian systems tend to focus on rehabilitation. That is, removing a person who commits a crime from the general public, and making it so that when they are allowed to rejoin society, that they're unlikely to commit any further crimes. The point is to make it that the person who comes out isn't the same person who went in: they're not a criminal anymore. And, if preventing recidivism is the goal, it seems to work: in Norway, a released criminal has a 20% chance of re-offending within five years; in the U.S., it's over 75%. This seems to be because the U.S. system prioritizes retaliation over rehabilitation. That is, not imposing the best solution onto the problem, but rather inflicting as much pain as possible on the person who dared to flout the law. That kind of stance just plain isn't healthy: not for the person wanting the punishment, nor for the person dealing out the punishment, nor for the person receiving the punishment, and especially not for the society in general. Michelle Jones did a horrible thing. No one is denying that. She needed to be removed from society, to provide justice for her child's death, to protect other children, to show other people who might be tempted to resort to violence against children that it will be punished. No one is denying that. Do the twenty-plus years that she's spent in prison make it right that she killed her child? Of course not. But, even given my own unremarkable life, I'm a much different person than I was twenty years ago. Ms. Jones has lived a longer time since killing her son than she had before committing that atrocious deed, the vast majority of that time in prison. She's been given the punishment that society dictated for her, and now wants to start her life over as a better person. And yet you want to keep punishing her. If the U.S. ever wants to solve its crime problem --- and especially its recidivism problem --- you're going to have to get away from the idea that punishment must continue after the prison sentence is over. Because, even though I wouldn't say that I've done anything worthy of imprisonment, I know that if I was imprisoned, paroled, and released, and the stigma of my crime left me with no job, no friends, no support network, and, in short, no ties to the community at all... If I had no way to support myself, and no one whose good opinion I cared to maintain... If the only thing that stood between me and reoffending was my moral strength and willpower, and those slowly started to get eaten away as I starved and was looked down upon from every angle... Well, I'm not going to say that I'd turn to a life of crime, because my currently well-fed, well-regarded, gainfully-employed, and generally-quite-comfortable self is in a good position to say that a life of crime isn't something he would ever consider turning to. But I do have to wonder how many of my reasons to not steal would have to be taken away before I did seriously start making that consideration. And, judging by the American recidivism rate (once again, 76.6% of released prisoners in the U.S. are re-arrested within five years), I'd be naïve to think I'm the special person who wouldn't bow to that pressure. No amount of punishment is going to bring Ms. Jones' son back to life, and the criminal justice system has declined to punish her further for killing him. So, if child killers shouldn't be going to college to try to contribute to society, to try to make the world a better place after paying for their horrible deeds, what should they be doing when they get out of prison? For our next editor's choice, we head to our post about the fight to have We Shall Overcome recognized as a public domain song, where Thad elaborated on the harm done by robbing the public domain: Indeed, I'm not the first person, and won't be the last, to observe that the last major copyright term extension was pushed by a company that built an empire on adapting stories from the public domain (from Three Little Pigs and Jack and the Beanstalk in the Silly Symphonies shorts, to Snow White, Sleeping Beauty, Cinderella, Alice in Wonderland, Pinocchio, Fantasia, and I believe they started work on The Jungle Book as soon as it entered the public domain). There are plenty of creative works that have been suppressed, and both their creators and the public deprived of them, over copyright disputes; the documentary Eyes on the Prize was out of print for years due to disputes over music copyrights (including, presumably, the fraudulent copyright on We Shall Overcome). The Peabody-winning comedy series Mystery Science Theater 3000 has a number of episodes that are currently unavailable for legal distribution because those episodes include movies that they no longer have the rights to; if not for the copyright extensions of '76 and '94, many of those movies would now be in the public domain and the episodes would be available for sale. (Note the qualifier "for sale" -- because of course those episodes are available for free, on YouTube, torrent sites, private networks, etc.; people are watching those episodes and not paying for them, and, as the sales on the legally-available episodes have proven, would be willing to pay for them if they had that option.) It takes a pretty perverse kind of reasoning to rail against people watching videos on YouTube as freeloaders who just want something for nothing while simultaneously defending the companies that have been fraudulently making money off of Happy Birthday, We Shall Overcome, Sherlock Holmes, etc. Over on the funny side, our first place winner is an anonymous commenter on our post about the Equifax breach, and specifically responding to our reiteration of the problems with the total lack of transparency at Equifax over the years: Well, what they're collecting is pretty transparent *now*. In second place, we have a response from Anonmylous about Charles Harder's loss in a New Hampshire court: So in summation.... I guess the Judge could be paraphrased as saying "What do think this is, East Texas?" For editor's choice on the funny side, we start out with an anonymous response to Comcast's lawsuit against Vermont in which it claims that having to expand broadband infrastructure violates its first amendment rights: Talk about a double standard. I called up Comcast and told them I wasn't paying my bill because it "violated my First Amendment rights" and all I got was forwarded to a collections agency. And finally, we've got a comment from dropcap that elegantly identifies a way in which PETA could be considered right about the monkey selfie case — as long as you embrace some deeply faulty premises: "the need to extend fundamental rights to animals..." • Copyright law provides an economic incentive to create art. • Copyright law does not apply to non-human animals. • Non-human animals produce far less art, per capita, than humans do • Animals are almost exclusively driven by financial concerns. Since all of those statements are obviously true, I'm going to have to side with PETA on this one. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, we were watching as the House of Representatives got ready to move forward with extending the FISA Amendments Act despite huge problems and a worrying lack of information about secret interpretations of the law. Of course, it quickly passed — basically thanks to lots of lying and misrepresentation about what the bill actually contained. Meanwhile, having failed to get new cybersecurity legislation passed, the White House was looking to tackle the issue with an executive order, the draft text of which was leaked at the end of the week. Of course, we were also worried about efforts to make cybersecurity enforcement the job of the ITU, an idea with a whole host of problems of its own. Ten Years Ago This week in 2007, we were appalled at (and slightly amused by) the pathetic attempts at "innovation" on display in the legacy recording industry, such as the hype around the "ringle" — a combination of a single and a ringtone! Imagine that! Similarly, Universal Music seemed to have gotten the message that subscription services are a good idea, but gotten the details of the implementation entirely wrong. It was also around this time that we started to hear complaints from sound engineers and audiophiles about iPods and earbuds destroying the sound quality of music — though perhaps that was just a way to get press, much like blaming Facebook for destroying the economy. Meanwhile, Prince, unpredictable as always, decided to sue eBay, YouTube and The Pirate Bay for copyright infringement. Fifteen Years Ago This week in 2002, the bizarre blanket ban on video games we mentioned last week quickly started to fail in the courts, the battle between China's censors and Google heated up then fizzled out, and a well-known AP writer joined the ranks of people totally misunderstanding the digital music debate. The music industry was doing its best to paint Kazaa and Morpheus as infringers, while Morpheus was seeking summary judgement saying it doesn't violate copyright law. And one on-the-money essay explained how the industry was killing the goose that lays the golden eggs by trying to destroy digital music. Permalink | Comments | Email This Story

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Okay, here's a fun post for a Friday evening: Earlier this week, I was at World Hosting Days, where I gave a keynote speech about the importance of CDA 230 and things like intermediary liability protections -- and why they are so important to protecting free speech online. The emcee of the event was Mike Godwin, who (among his many, many accomplishments over the years as an internet lawyer and philosopher) coined Godwin's Law. The organizers of the event, realizing that they had the guy who coined Godwin's Law and the guy (me!) who coined the Streisand Effect in the same place at the same time, thought it might be fun to have the two of us talk about these two memes. And, voila. Here's the video of the two of us discussing it. We're also planning to release this as a podcast soon, so if you already listen to the Techdirt podcast and want to wait for that, feel free... But, if you want to skip ahead and watch/listen now, go for it. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
Concentrated attacks on technology tools that can sometimes, but not always, be used for nefarious purposes have quite a long history, from Google and Wikipedia, to suing online sites like Craigslist over how users use the service. Even torrent technology itself, having become a four-letter-word that the content industry has managed to tether to copyright infringement, is nothing more than a tool with plenty of legitimate uses. Well, it appears that the latest target in the music industry's crosshairs are sites that rip YouTube videos into MP3 format. Last week the major record labels managed to take out YouTube-MP3, the largest ripping site of all. Still, there are many like it that continue business as usual. For many music industry insiders, who see streamripping as one of the largest piracy threats, this is a constant source of frustration. In the UK, music industry group BPI worked hard to tackle the issue proactively. Last year the organization already signed an agreement with YouTube-MP3 to block UK traffic. This limited the availability of the site locally, but the group believes that YouTube itself should take responsibility as well. The crux of the plan, according to industry insiders, appears to be to get YouTube involved to block these sites from ripping its content into audio format. Between complaining that YouTube hasn't threatened enough legal action of its own and some rather silly complaints revolving around Google "steering" traffic to ripping sites via autocomplete on Google searches of all things, something of a full court press appears to be on. And, in one sense, it's understandable. Music groups that allow their music to be on YouTube look for the advertising revenue that comes along with it. One imagines that running a video through these ripping sites doesn't trigger that same ad revenue, otherwise nobody would be complaining. But here's the thing: there are a ton of legitimate uses outside of the music business to use these sites. I use them all the time. I primarily use them for videos that are essentially speech-based content so I can listen to them on the go. History lectures, public debates, reviews: they're all on YouTube, they're all perfectly listenable in audio format, and none of the makers of that content are shouting about YouTube MP3 rips. So what we're left with again is the content industries attacking a tool with legitimate uses simply because some percentage of the public uses it in a way they don't like. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
Back in 2011, you might recall that AT&T and Verizon stopped offering users unlimited wireless data plans. Taking advantage of a lack of competition at the time, the duo worked in concert to shove users toward confusing, metered plans that imposed a usage cap, then socked users with overage fees upward of $15 per gigabyte. When users refused to migrate to these plans, both companies spent years making life as difficult as possible for these subscribers, AT&T going so far as to block users from accessing Facetime until they switched to these more expensive, metered plans (but who needs net neutrality rules, right?). All the while, both companies repeatedly insisted that nobody actually wanted simpler, unlimited plans. That was until increased competition from T-Mobile (thanks in large part to regulators blocking AT&T's attempted acquisition of the company) forced both companies to bring back their unlimited data plans. And while Wall Street has been whining for months that competition is preventing these companies from nickel and diming their customers, consumers generally like the return to unlimited data. Case in point: a new study by JD Power and Associates indicates that unlimited data customers are consistently more impressed with the performance of their connections than their capped and metered counterparts. More specifically, users on unlimited data plans state that they experience fewer network problems of all kinds than metered users: Unlimited data emerges as great equalizer for wireless network quality: Customers with unlimited data plans experience an average of 11 overall network quality problems per 100 (PP100) connections vs. an average of 13 PP100 among customers with data allowances. They also have lower incidences of data problems (15 PP100 vs. 16PP100, respectively); messaging problems (5 PP100 vs. 6 PP100); and calling problems (12 PP100 vs. 15 PP100). This trend holds true among both power users (100 or more network connections in the previous 48 hours) and lighter users (fewer than 100 network connections in the previous 48 hours). That said, the study does proceed to note that this may be based, in part, on the "perception" by consumers that they have a better connection, not necessarily that the network is performing better. In other words, customer perception of a network's performance may be shaded by the fact they don't have to constantly worry about whether they're about to go over their usage restrictions: “Whether a customer has unlimited data or a data allowance on their wireless plan should not really affect their overall network quality, but our data shows that—consistently—wireless customers who are not worried about data overages have a much more positive perception of their network’s quality,” said Peter Cunningham, technology, media, and telecommunications practice lead at J.D. Power. “This is a critical insight into wireless customer psychology for carriers who’ve been engaged in battle over unlimited data plans for the past several months.” The meters used by fixed and mobile customers are notoriously unreliable, one study claiming carriers routinely over-bill consumer mobile data usage by between five and seven percent. Despite this, there's nary an effort from any regulator here in the States to ensure that usage is being metered accurately, and that's certainly not changing with the current FCC. And while it's nice to see competition forcing these carriers to actually listen to subscribers, a wave of merger mania in the sector means that this competition -- and the unlimited data resurgence it spawned -- may not be sticking around for long. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
Harvard is one of the most prestigious universities in the world (and its graduates often feel the need to remind you of that). But apparently Harvard is more worried about protecting its reputation from the elite than actually fulfilling its stated mission of "educating the citizens and citizen-leaders for our society." In an act of utter cowardice, it withdrew a Visiting Fellowship that it gave to Chelsea Manning just a couple days after announcing it -- all because the CIA and its friends got upset. Harvard caving in to the CIA is not a good look. Two days ago, Harvard's Institute of Politics at the Kennedy School announced that Chelsea Manning would be a "Visiting Fellow" for the 2017-2018 school year. She was joining others -- including former Trump press secretary Sean Spicer, former Trump campaign manager Corey Lewandowski and Clinton campaign manager Robby Mook. The Visiting Fellows program is basically a high falutin' way of saying that these people would come give some talks at the school. But the point of the program -- in theory -- is to expose people to a variety of ideas from a variety of different perspectives. Personally, I think honoring Spicer, Lewandowski and Mook is fairly ridiculous, but I respect and support Harvard wishing to bring them -- or anyone -- in to talk about their experience But, of course, anything having to do with Manning is controversial to some -- mostly those who have bought into a misleading line of tripe from cable news. And thus people freaked out that Harvard was including her. Among those most triggered by Harvard planning to have Manning come talk to students was the CIA. On Thursday, former CIA depute director (and former acting director) Michael Morell resigned from his own fellowship (in a different program) at the Kennedy School in protest. His letter is full of debunked bullshit. Unfortunately, I cannot be part of an organization -- The Kennedy School -- that honors a convicted felon and leaker of classified information, Ms. Chelsea Manning, by inviting her to be a Visiting Fellow at the Kennedy School's Institute of Politics. Ms. Manning was found guilty of 17 serious crimes, including six counts of espionage, for leaking hundreds of thousands of classified documents to Wikileaks, an entity that CIA Director Mike Pompeo says operates like an adversarial foreign intelligence service. Senior leaders in our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk. Upon her conviction, then Rep. Mike Rogers and Rep. Dutch Ruppersberger, the top Republican and Democrat on the House Intelligence Committee at the time, praised the verdict, saying "Justice has been served today." They added "Pfc. Manning harmed our national security, violated the public's trust, and now stands convicted of multiple serious crimes." This statement is hogwash. Yes, she was convicted of various crimes including espionage, but only because the Espionage Act is a complete unconstitutional joke that makes no distinction between leaking to the press and spying for a foreign government -- and in which you're not allowed to share your motives for leaking information. Saying she was "convicted for espionage" without context is misleading bullshit and Morell, of all people, knows that and is exploiting that. The claim that Pompeo now says that Wikileaks is acting like an "adversarial foreign intelligence service" is bullshit and misleading in two ways. First, Pompeo is not exactly an unbiased observer. He's long been a massive surveillance state cheerleader -- who was one of the biggest supporters of having the NSA illegally spy on nearly every American, and who has a long history of grandstanding against those with the courage to blow the whistle on the unconstitutional activities Pompeo himself has championed (more on him in a moment). Separately, even if you accept Pompeo's recent statements about how Wikileaks acts today, anyone with any knowledge of the history (which Morell certainly has) knows that Wikileaks was a very different kind of operation back when Manning first leaked the documents to the site. Manning's leaks to Wikileaks were really its first big "government" leak. Earlier leaks had been more targeted at corporate malfeasance, and the site's reputation at the time was as a general home for hosting whistleblowing documents of all kind. As for Rupsberger and Rogers' statements, they are in the Pompeo camp as long time defenders of the surveillance state. Rupsberger's district was where many NSA employees lived, and Rogers' reputation was largely built around acting like a tough guy on "law and order" and surveillance. So, big whoop. The really obnoxious and bullshit part of Morell's letter, though is the claim that "our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk." Note Morell's careful choice of words. He didn't say that she put people's lives at risk. Or that anyone was harmed by Manning's whistleblowing. He says that some in the military publicly stated that lives were put at risk. His careful choice of words is because he knows full well that at Manning's sentencing hearing, those same military officials admitted there was no evidence of any lives harmed as a result of the leaks. It was also admitted that the earlier claims of harm were misleading, in that some of the names that the military had claimed had died... had actually died before the Wikileaks disclosures. Back to Pompeo. Soon after Morell's letter became public, CIA director Pompeo refused to give a planned speech at Harvard, giving a similarly bullshit statement: "My conscience and duty to the men and women of the [CIA] will not permit me to betray their trust by appearing to support Harvard's decision with my appearance at tonight's event," Pompeo wrote, referring to the Thursday engagement. "Ms. Manning betrayed her country and was found guilty of 17 serious crimes for leaking classified information to Wikileaks." "Leaders from both political parties denounced Ms. Manning's actions as traitorous and many intelligence and military officials believe those leaks put the lives of the patriotic men and women at the CIA in danger," Pompeo continued. "And those military and intelligence officials are right." Again, this is bullshit for all the same reasons that Morell's letter was bullshit. But Harvard, as an academic institution that supports differences of opinions and free speech, stood up to these CIA spooks, right? Nope, they immediately caved and withdrew the fellowship, but tried to appease people by saying she could still come to speak. "We are withdrawing the invitation to her to serve as a Visiting Fellow — and the perceived honor that it implies to some people — while maintaining the invitation for her to spend a day at the Kennedy School and speak in the Forum. "I apologize to her and to the many concerned people from whom I have heard today for not recognizing upfront the full implications of our original invitation." What a bullshit, cowardly statement in response to concern trolling from surveillance state supporters with actual blood on their hands. Mike Morell, among his many claims to fame, defended torture, and droning innocent civilians. Here's something else: Morell has accepted responsibility and apologized for playing a large role in providing incorrect intelligence that led the US to attack Iraq, leading to the actual deaths of thousands of US soldiers. For Havard to rescind its offer to Manning over false claims of putting US soldiers at risk, from a guy who has admitted his own decisions lead to the deaths of thousands of US soldiers is a total travesty. What's more, this comes just a day after it came out that Harvard administrators deliberately overruled a decision to admit a woman who was about to be released from prison for killing her child. The story is heartbreaking in many ways -- but it reminds us that prison is supposed to be a place of redemption, but the cowards at Harvard overruled what some said was "one of the strongest candidates in the country last year, period" over fears of how it would look. One of the quotes from a Harvard professor in the article is quite incredible: But frankly, we knew that anyone could just punch her crime into Google, and Fox News would probably say that P.C. liberal Harvard gave 200 grand of funding to a child murderer, who also happened to be a minority. I mean, c’mon. It takes courage to stand up for what's right. It takes courage to stand up for redemption after one has served their time for crime. Harvard has no courage. Harvard is made up of cowards. As an aside: last night was the EFF's Pioneer Awards, in which I had the honor and privilege of standing with Chelsea Manning, who gave a truly inspirational speech about redemption and the ability to face adversity with dignity, just minutes before Harvard showed that it had no dignity at all. EFF Pioneer Award winners! @xychelsea @mmasnick @anniegame. So proud and grateful for these folks. pic.twitter.com/xfyvwk9KE5 — Karen Gullo (@KEGullo) September 15, 2017 Permalink | Comments | Email This Story

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