posted about 2 hours ago on techdirt
Only three countries have developed manned space vehicles: Russia, US and China. However, since the retirement of NASA's space shuttle program, the US has not had a vehicle (of its own) ready to take astronauts to space. The European Union, Japan, and India have plans to develop manned space programs, and several commercial ventures are working on various ways to get people into space (or at least close to the edge of space). Here are a few ways Americans might get into space in the not-too-distant future. NASA will be sending astronauts into space on Boeing and SpaceX rockets in a few years. By 2017 (if everything goes right), NASA won't need to rely on the Russian Federation Space Agency to get astronauts to the International Space Station. [url] There's a relatively cheap way for tourists to visit the edge of space -- in a helium balloon. For the bargain price of just $75,000, World View Enterprises will take a passenger on a 5-hour ride up to 100,000 feet in a pressurized capsule hanging from a giant balloon. The first launch is planned for 2016. (For comparison, Virgin Galactic tickets cost about $250,000 and a trip on a Soyuz to the ISS can cost anywhere from $20-70 million.) [url] NASA has been working on its own Orion Space Capsule vehicle designed to take astronauts to various destinations in our solar system. The Orion spacecraft system is planning an unmanned test launch in December 2014, and it could be sending astronauts back to the moon (or beyond) by the 2030s. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted about 3 hours ago on techdirt
Last month, we were among the first to report that the federal court system's electronic document system, PACER, had deleted a bunch of cases. The folks who run PACER came back with a completely nonsensical defense of the move, claiming they were updating some systems and some of the documents were on older systems that weren't compatible. Of course, none of that explains why no one figured out how to move those documents to the more up-to-date system. Nor why PACER gave no prior notice of the deletion. Nor why it didn't even try to work with any one of the many, many public repositories of legal documents out there. Instead, the cases were just deleted from electronic existence. Senator Patrick Leahy is now asking why. Created over 25 years ago, PACER is home to millions of court documents that were previously accessible only by requesting them from the relevant court. This often involved a trip to the court clerk's office and cost considerable time and money. While PACER is not perfect, it provides a significant benefit to the public: at the stroke of a few keys, the public can now search for important briefs, court orders, written opinions, and other related filings, and receive the information instantaneously. Servicing over a million users in the last few years alone, PACER has not only dramatically improved access to information, it has helped increased transparency of the federal judiciary. Wholesale removal of thousands of cases from PACER, particularly from four of our federal courts of appeals, will severely limit access to information not only for legal practitioners, but also for legal scholars, historians, journalists, and private litigants for whom PACER has become the go-to source for most court filings. It is additionally concerning that this announcement was made without any warning to the public, and without prior notification or consultation with Congress. Moreover, the announcement did not detail what steps, if any, are being taken to ensure that these important case files are properly preserved. We live in a digital age. Requiring requesters to travel to the clerk's office of individual courts to retrieve actual documents, or to submit an email request and wait several days for a response, is a dramatic step backwards from the centralized system that PACER provides. Furthermore, it is reported that requests made by email to individual courts could incur a $30 to $60 processing fees--a troubling increase in costs compared to the 10 cents per page that is currently charged to retrieve documents from PACER. PACER was designed to provide easy and affordable access to all members of the public, not just those who have the time and resources to submit and numerous requests to the courts. He concludes by noting that he urges the Administrative Office of the courts to "take immediate steps to restore access to these documents." Of course, it would be even better if they finally made PACER free and open to the public, but not deleting past cases would at least be a non-negative step.Permalink | Comments | Email This Story

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posted about 4 hours ago on techdirt
Last fall, we wrote about how Apple has placed a warrant canary in its first ever Transparency Report, noting: Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us. In case you haven't been keeping track, the Section 215 orders are so called "business records" requests. It's the basis for the orders to Verizon demanding metadata on all calls. It's not the whole PRISM program, which details more specific requests for content and metadata. A "warrant canary" is pretty much exactly what it sounds like. Since these requests come with gag orders, you can get out in front of them by saying ahead of time that you haven't received one. Then, if it disappears, people have reason to believe that you did get such a request and just can't talk about it anymore. Jeff John Roberts, over at GigaOm, has noticed that updates to Apple's Transparency Reports didn't appear to have that same warrant canary, leading to speculation that perhaps Apple had received just such a Section 215 order. However, it's not clear if that's true. Christopher Soghoian has pointed out that the transparency reports do include some similar language: To date, Apple has not received any orders for bulk data. And, contrary to Roberts' reporting, Section 215 is not the basis for PRISM, which we already knew Apple is a part of, but rather for bulk data collection of "business records." So if it hasn't received "any orders for bulk data," then it still seems likely that it hasn't received a 215 order, but it's not entirely clear. As Soghoian notes: "There is a lesson to be learned here: once you post a warrant canary, it needs to stay in the same place and use the same language." Of course, it's possible that Apple is actually signalling something different here. Perhaps it truly has not received a 215 order, but it did get pressured from the DOJ not to use the original warrant canary language. That would explain the change in wording, though would still raise some serious questions about the legality of such a demand from the DOJ.Permalink | Comments | Email This Story

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posted about 5 hours ago on techdirt
With all that's gone on with the NSA leaks, one thing has been made abundantly clear: the idea of operating in the world without having eyes on us or digging through our motives, is dead. The NSA, admitting it or not, has unilaterally decided that we don't deserve privacy and that our daily lives are an open book should they have any contrived reason to take a peek. Even members of Congress appear to be under such scrutiny. Yet it appears that at least some of the folks that work in our version of the thinkpol don't take kindly to being examined and filmed in public. The NSA sent someone bearing the nametag “Neal Z.” to the University of New Mexico’s Engineering and Science Career Fair today, in the hopes of recruiting young computer geniuses to help manage the yottabytes of data it is collecting about you. But instead of eager young applicants, Mr. Z. encountered University of New Mexico alumnus Andy Beale and student Sean Potter, who took the rare opportunity of being in the room with a genuine NSA agent to ask him about his employer’s illegal collection of metadata on all Americans. Mr. Z. did not like that one bit. Should you be unable to see the video, the exchange is fairly polite, if persistent, from behind the camera. The NSA employee, on the other hand, is both combative and at one point grabs the interviewers phone. Prior to that, the employee repeats the discredited claim that the NSA does not collect intelligence on US citizens, which by now everyone knows is simply false. Then the name calling starts, followed by the attempt to grab the phone. The two interviewers were subsequently ejected from the building under the notion that they were causing a disturbance. The NSA employee was clearly unhappy about being videotaped and probed. And it's easy to sympathize with him as a US citizen, since the organization he works for has done the same thing to American citizens. We're brothers of a kind, both having to endure an undue yet meticulous examination of our activities as we simply attempt to go about our lives, working and living less free than we were meant to be. That the irony appeared to be lost on our NSA friend isn't terribly surprising to me. The Ministries of Oceania are not known for their sense of humor, after all. Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
Rupert Murdoch's News Corp has a surprisingly long -- and stunningly unsuccessful -- history of trying to become a major force in the Internet world. This goes all the way back to 1993, when it rather presciently bought an online company called Delphi Internet Services. Unfortunately, after that smart early move, News Corp clearly had no idea how to build on the community that formed around the company, and Delphi was soon completely eclipsed by AOL. In 2005, News Corp had an even bigger chance to establish itself as the leading Internet company when it bought MySpace. For a while, MySpace was the most popular social networking site in the world, and surpassed Google as the most-visited Web site. But again, News Corp managed to snatch defeat from the jaws of victory: MySpace was eclipsed by Facebook, and in 2011 News Corp sold the site for $35 million -- rather less than the $580 million it had paid for it six years earlier. It is against that background of an apparent inability to understand the basic dynamics of the online world, and how to make money there, that we have the following press release from News Corp: Early last week, in a letter to European Commissioner for Competition Joaquín Almunia, News Corp Chief Executive Robert Thomson opposed Google's settlement offer with the European Commission, saying the internet giant is "willing to exploit its dominant market position to stifle competition." Coming from a global media organization that has a dominant market position in several countries, that's a little rich. But it gets better: Citing Google's "egregious aggregation" of content, Mr. Thomson said that, along with serious commercial damage, there is a "profound social cost" to Google's actions. "The internet should be a canvas for freedom of expression and for high quality content of enduring value. Undermining the basic business model of professional content creators will lead to a less informed, more vexatious level of dialogue in our society." Google doesn't "aggregate content": its main search engine provide links to pages based on their popularity, while Google News uses snippets that link to the full article on the publisher's site (with no advertising on the Google News page.) As for the "commercial damage", Techdirt has written several times about the fact that publishers are at liberty to withdraw from Google's index if they really don't like it, as well as the fact that those who do so soon come back when they find their traffic falls dramatically. But that misunderstanding about Google's non-existent "aggregation" is nothing compared to the hypocrisy of claiming that there is a "profound social cost" to Google's actions. Many would say that the social cost of News Corp's large-scale phone hacking in the UK was rather more profound: The News International phone-hacking scandal is a controversy involving the now defunct News of the World and other British newspapers published by News International, a subsidiary of the then News Corporation. Employees of the newspaper were accused of engaging in phone hacking, police bribery, and exercising improper influence in the pursuit of stories to publish. Whilst investigations conducted from 2005 to 2007 appeared to show that the paper's phone hacking activities were limited to celebrities, politicians and members of the British Royal Family, in July 2011 it was revealed that the phones of murdered schoolgirl Milly Dowler, relatives of deceased British soldiers, and victims of the 7 July 2005 London bombings had also been hacked. Completely indifferent to this kind of social cost, News Corp would have us focus instead on its key concern here: the claim that Google is "undermining the basic business model of professional content creators." This framing helps explain why News Corp managed to destroy two thriving Internet communities all those years ago. The key to understanding News Corp's persistent online failure is its blinkered view that only "professional content creators" count, and its evident contempt for creators who are not "professional". Central to both Delphi and MySpace were the contributions from the community of users -- the posts, the comments, the chat sessions, the pictures etc. If its corporate culture regards these of little value, News Corp was almost guaranteed to mis-manage and undermine those early online investments. If you want some amusement, it's worth reading the News Corp CEO's letter in full, to see how he rails against "the unlawful and unsavoury content that surfaces after the simplest of searches," and the fact that "the value of serious content has been commodified by Google." Ironically, the one area where the News Corp letter has some faint praise for the Internet giant -- "Google has been remarkably successful in its ability to monetize its users" -- is also arguably where Google's immense power really is deeply problematic. As many critics have pointed out, Google's business model is based on obtaining as much information about its users as possible -- what News Corp calls "impressively precise data about users and content usage" -- and then selling that knowledge to advertisers in various ways. Had News Corp's CEO warned about this "commoditization" of personal data, his case against Google would have been stronger, especially in a European context where online privacy is a key concern. But that would have required rather more understanding of the Internet world than News Corp has ever been able to muster. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 9 hours ago on techdirt
For many years, we've written about the importance of the so-called "intermediary liability protections" found in Section 230 of the Communications Decency Act (CDA). The basic concept of Section 230 is that it's improper to blame a website for the actions done by users of that website -- noting that to blame the website would create tremendous chilling effects on the internet. However, at times, the courts have chipped away at these protections. Back in 2009, we wrote about a ruling in California in Barnes v. Yahoo in which the court ruled that Yahoo had given up its Section 230 protections after an employee promised to take down some content (the case was sort of an early revenge porn story). Now, the 9th circuit appeals court is relying on that ruling to reject a Section 230 defense in another case, where the situation is -- without question -- horrible. It involves a site called Model Mayhem, where models and aspiring models can post their modeling profiles. Apparently, a pair of despicable excuses for human beings (and I almost hesitate to call them that much) named Lavont Flanders (who was a former Miami Beach police officer who was apparently fired, but not prosecuted, for soliciting the 13-year old daughter of a fellow cop) and Emerson Callum would troll through a site called Model Mayhem to find aspiring models, convince them to come for an "audition," and then proceed to drug them, rape them, film it and then sell the videos. Everything about this is horrific. I was going to say that I hope the two of them are on their way to rotting in prison for the rest of their lives, but it appears that's already been taken care of. Both have been given life sentences for what they did. The story behind that link has the following tidbit that becomes more important: "State prosecutors initially charged the men in Broward County, but they were freed on bond and continued to prey on women while they were free, prosecutors said." The case here involves one of the victims of this situation suing Internet Brands, the company that owned Model Mayhem for at least some of the time that this was happening. Again, what she went through is absolutely horrible. But it seems like a massive stretch to blame the site. Internet Brands pointed to Section 230, and the district court dismissed the case against the company. However, the appeals court has now reversed, arguing that Section 230 only applies to certain kinds of intermediary liability -- those which involve treating the intermediary as a "publisher." All other intermediary liability is, apparently, fair game. From there, the issue is whether or not Model Mayhem / Internet Brands had a proactive duty, under California law, to warn users of the site of this particular scam by these individuals. The court notes that the company was aware of what these two guys were doing, but they weren't publishing anything on the site -- merely contacting women who published their own profiles. The site was likely aware of the pair due to that earlier arrest but nowhere does it suggest they knew the two were still out there continuing to take part in this horrific practice. Either way, the woman claims that Internet Brands should have warned their users, and the court says Section 230 doesn't protect the site from such things (though does not determine whether or not Model Mayhem should have warned users of the site -- that question goes back to the lower court). In any case, that Internet Brands was in some sense an “intermediary” between Jane Doe and the rapists does not mean that the failure to warn claim treats Internet Brands as the publisher or speaker of user content. True, imposing any tort liability on Internet Brands for its role as an interactive computer service could be said to have a “chilling effect” on the internet, if only because such liability would make operating an internet business marginally more expensive. But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare “a general immunity from liability deriving from third-party content.” Barnes, 570 F.3d at 1100. Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered. The woman suing suffered a very real and incredibly horrifying harm. But it's worrisome when the result of it is to chip away at important protections that Congress put in place for intermediaries to protect them from liability from the actions of third parties. The constant efforts to chip away or dismantle Section 230 are already problematic enough. Having a court open up new "holes" in Section 230 like this will only lead to a new series of lawsuits from questionable claimants, seeking to get around Section 230 relying on rulings like this one.Permalink | Comments | Email This Story

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posted about 10 hours ago on techdirt
It's a sign of the times that online companies’ transparency reports are starting to include a new section: the Hall of Shame. Automattic, the company behind WordPress, is the latest to do so, highlighting examples of copyright and trademark overreach by prominent figures like Janet Jackson, as well as more local businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. It even highlighted one example we've written about—and even dedicated a short video to—in which a baked goods company misused trademark to go after bloggers talking about derby pie, a common regional dessert in the Southern U.S. And WordPress is only the latest company to name-and-shame takedown abusers—the Wikimedia Foundation made a major splash last month when it highlighted the copyright saga behind a notorious monkey selfie. We've kept up a Takedown Hall of Shame of our own for years. But these cases of egregious abuse tell only part of the story, and transparency reports also help call attention to a more subtle issue: a large percentage of takedown requests that do not result in content removal. That is to say, services routinely receive large numbers of bogus takedown demands. There's a real trend here. According to the latest numbers, Twitter does not comply with nearly 1 in 4 takedown notices it receives; Wikimedia complies with less than half; and WordPress complies with less than two-thirds. Each organization explains in its report that the notices with which they don't comply are either incomplete or abusive. When companies choose not to take down content because the notice is abusive, that's a way of standing with their users, and it's a significant decision. The bargain in the DMCA is straightforward: as long as services comply with takedown notices that meet the statutory requirements, they're granted a "safe harbor" from any legal liability for copyright infringement that might otherwise arise from their hosting of user content. This had led some companies to take the short-sighted approach of removing all content for which they receive a takedown request, even if the request is defective or the content is obviously non-infringing. Since the law was enacted a decade and a half ago, some people have used the takedown mechanism as a censorship tool—sending careless or fraudulent notices in an attempt to silence lawful speech, and hoping that online services will comply just to stay in that safe harbor. And although the DMCA includes a mechanism to punish certain fraudulent takedown requests, the provision has proven difficult to enforce. In other words, there's a lopsided legal incentive that frequently results in services taking down non-infringing speech. The companies that stand up to bogus requests deserve kudos for doing so, and transparency reports are a good place to highlight that user-friendly behavior while also providing data about how often people are trying to abuse the DMCA. The data from the transparency reports also supports the common understanding that users send counter-notices in only a relatively tiny number of cases. For example, Automattic reports that it got only 44 counter-notices for the 3,630 takedown notices that it received. After a short waiting period, a company can restore content for which it has received a valid counter-notice without losing its safe harbor protection. This is an important way for users to restore their non-infringing speech to public view. Supporters of the status quo argue that the low rate of counter-notice means that most notices legitimately target infringement. But that suggestion doesn't take into account how confusing and difficult the counter-notice process can be, and the fact that many users are intimidated by the requirement that they agree to be sued in federal court in case the rightsholder wants to claim copyright infringement (even though this is already true for users who are subject to the jurisdiction of U.S. federal courts). Users also fear the massively disproportionate statutory damages available to copyright claimants and the significant expense of defending even a winning copyright case, and allow themselves to be silenced rather than facing the expense and risk of vindicating their speech in courts. The notice-and-takedown process is supposed to balance the interests of rightsholders, online platforms, and the general public, and transparency reports are an important mechanism to verify that's happening. The numbers paint a troubling picture. Across the Web, we've seen report after report that the number of takedown notices sent to online services is skyrocketing. These three latest transparency reports support that notion, with Twitter in particular reporting a nearly 40% increase in just six months. Taken together with the number of bogus takedowns and the rarity of counter-notices, it's clear that the task of defending free speech is increasingly falling on online services.  The notice-and-takedown system unfortunately provides yet another example of how aggressive mechanisms of copyright enforcement are abused to censor legitimate content. We applaud those service providers who stand up to this abuse on behalf of their users. Cross-posted from Electronic Frontier Foundation's Deeplinks blog.Permalink | Comments | Email This Story

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posted about 13 hours ago on techdirt
Almost exactly a year ago, one of the many Snowden revelations came out, this time concerning the fact that the NSA was giving raw domestic communications data to Israeli military intelligence. This was somewhat shocking, because it basically was allowing Israeli intelligence to sift through communications data (both metadata and actual communications), including on Americans, without any restrictions. As was noted at the time: Details of the intelligence-sharing agreement are laid out in a memorandum of understanding between the NSA and its Israeli counterpart that shows the US government handed over intercepted communications likely to contain phone calls and emails of American citizens. The agreement places no legally binding limits on the use of the data by the Israelis. The disclosure that the NSA agreed to provide raw intelligence data to a foreign country contrasts with assurances from the Obama administration that there are rigorous safeguards to protect the privacy of US citizens caught in the dragnet. The intelligence community calls this process "minimization", but the memorandum makes clear that the information shared with the Israelis would be in its pre-minimized state. James Bamford, the long-time NSA watcher and chronicler, has a new article in the NY Times, where he now connects that free and unencumbered data sharing with revelations of abuse by the very Israeli military intelligence unit the data went to. Bamford notes that, when he interviewed Snowden over the summer, Snowden had called out the data sharing with Israel as one of the most shocking finds: Among his most shocking discoveries, he told me, was the fact that the N.S.A. was routinely passing along the private communications of Americans to a large and very secretive Israeli military organization known as Unit 8200. This transfer of intercepts, he said, included the contents of the communications as well as metadata such as who was calling whom. Typically, when such sensitive information is transferred to another country, it would first be “minimized,” meaning that names and other personally identifiable information would be removed. But when sharing with Israel, the N.S.A. evidently did not ensure that the data was modified in this way. Mr. Snowden stressed that the transfer of intercepts to Israel contained the communications — email as well as phone calls — of countless Arab- and Palestinian-Americans whose relatives in Israel and the Palestinian territories could become targets based on the communications. “I think that’s amazing,” he told me. “It’s one of the biggest abuses we’ve seen.” And, indeed, Bamford notes, it's now been more or less confirmed that the information that NSA was sharing was used to persecute innocent Palestinians. This is only coming out now because dozens of veterans of the unit publicly called out the abuses and refused to continue to participate in the process: It appears that Mr. Snowden’s fears were warranted. Last week, 43 veterans of Unit 8200 — many still serving in the reserves — accused the organization of startling abuses. In a letter to their commanders, to Prime Minister Benjamin Netanyahu and to the head of the Israeli army, they charged that Israel used information collected against innocent Palestinians for “political persecution.” In testimonies and interviews given to the media, they specified that data were gathered on Palestinians’ sexual orientations, infidelities, money problems, family medical conditions and other private matters that could be used to coerce Palestinians into becoming collaborators or create divisions in their society. Everything about this is disturbing. There have long been concerns about the NSA and other intelligence agencies using the information they have access to try to coerce innocent people, threatening to embarrass them or reveal secrets. Other Snowden documents have revealed that the NSA in fact had plans on how to do something similar, using things like the porn surfing habits of people they didn't like to embarrass and discredit them -- even if they weren't part of any terrorist organization. While the NSA insisted it never did such things, this latest revelation suggests that the NSA clearly enabled the Israelis to do exactly that -- often using communications and metadata of Americans, handed over willy-nilly to the Israelis to do just that. Meanwhile, kudos to the Israeli veterans for blowing the whistle on this kind of activity.Permalink | Comments | Email This Story

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posted about 15 hours ago on techdirt
Last week, Tim Cushing wrote about California's new law that outlaws consumer-silencing non-disparagement clauses. Apparently momentum is on consumers' side, as Rep. Eric Swalwell, along with Rep. Brad Sherman, introduced similar federal legislation this week to protect all consumers from this shady tactic. The bill, cited as the "Consumer Review Freedom Act of 2014," voids any provision of a contract that: prohibits or restricts the ability of a person who is a party to the form contract to engage in a covered communication; imposes a penalty or fee against a person who is a party to the form contract for engaging in a covered communication; or assigns or provides an exclusive license, or requires a person who is a party to the form contract to assign or provide an exclusive license, to any business, other person, or entity any intellectual property rights that such party to the adhesion contract has or may have in a covered communication. The bill later defines "covered communication" as "a person's written, verbal, or pictorial review, performance assessment of, or other similar analysis of, the products, services, or conduct of a business which is a party to the form contract." While the bill does not specify fines for violations like California's new law, it is still a step in the right direction (and better than nothing). In his press release following the introduction, Swalwell said, "No country that values free speech would allow customers to be penalized for writing an honest review. I introduced this legislation to put a stop to this egregious behavior so people can share honest reviews without fear of litigation. I look forward to advancing this in a bipartisan manner, and protecting the right to speak one's mind." Swalwell also cited Palmer v. Kleargear.com in his press release (the case involving a couple from Utah who was fined $3,500 by KlearGear for violation of a non-disparagement clause after they posted a negative review online about their experience with the company). Palmer is just one example of recent headlines that shed light on the problem of non-disparagement clauses. From a hotel in New York that threatened to charge guests $500 for posting negative reviews online, to a contractor who voided his client's warranty because of a negative online review, numerous examples over the past few years have shed light on this shameful practice by businesses. Though this is not an entirely new phenomenon. Consumers have been getting hit with Strategic Lawsuits Against Public Participation (SLAPPs) for years, where a plaintiff files a meritless lawsuit against a consumer for posting a negative review online. Yet, now businesses are attempting to avoid having to file a SLAPP by burying non-disparagement clauses in the fine print of consumer contracts. Both tactics by businesses are aimed at chilling the First Amendment rights of consumers. Here's hoping Rep. Swalwell's bill becomes law and that federal anti-SLAPP legislation follows suit. Evan Mascagni is the Policy Director of the Public Participation Project (www.anti-slapp.org), a nonprofit organization dedicated to enactment of strong federal and state legislative protections against SLAPPs.Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
Recently, Techdirt has reported on a number of decisions about copyright being handed down by the European Union's highest court, the EU Court of Justice (EUCJ). Here's another, this time involving the digitization of books (pdf). The case concerned a university library in Germany that wanted to digitize a book that it had purchased so as to be able to make it available electronically to its visitors. The publishing house tried to sell it an e-book of the work concerned that could be used for this purpose, but the library refused. Because it involved the EU Copyright Directive, the case was referred by the Federal Court of Justice in Germany to the EUCJ, which has now released the following decision: the Court holds, first of all, that, even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception [permitted by the EU Copyright Directive] provided for in favour of dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study. Furthermore: the Court finds that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question. In other words, since the EU Copyright Directive permits libraries to be given a right to use dedicated terminals to display works they already own, that would be meaningless if they couldn't digitize those works first. Although that's an eminently sane and reasonable result, copyright maximalists will doubtless complain about the erosion of their "rights", since they seem to take it as axiomatic that every new use of material under copyright should result in a payment to them. Happily, once more the EUCJ seems to be trying to bring a little more balance to this most unbalanced of fields. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
For a while now, we've been following the saga of Personal Audio, the patent troll who argues that patent 8,112,504 covers podcasting and all other "episodic" content delivered over the internet. There are all sorts of problems with this claim, not the least of which is how Personal Audio was able to make "changes" to the patent long after podcasting had become popular in order to make it look more like the patent covered the concept. While Personal Audio agreed to drop its lawsuits against individual podcasters, it kept its case going against the big broadcasters: CBS, NBC and Fox. The trial (in East Texas, of course) for CBS came first and the jury sided with Personal Audio, because that's how East Texas patent juries typically roll. In a moment of semi-kindness, the jury awarded Personal Audio $1.3 million, rather than the nearly $8 million they supposedly requested. This story is really just a stepping stone, however. CBS has made it clear that it will appeal the case to CAFC, and given how software/business method patents are getting tossed out left and right these days, the company has a decent chance of prevailing. Meanwhile, the EFF reminds us that it's still working hard to invalidate the patent at the Patent Office, which would help accelerate the process of killing off these bogus lawsuits. Also, while chances are the jury verdicts for NBC and Fox won't be that different, perhaps an East Texas jury will actually get a clue one of these days...Permalink | Comments | Email This Story

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posted 1 day ago on techdirt
Animal behavior is getting more and more attention as researchers discover that our animal friends exhibit emotional responses seemingly similar to ours. It's hard to "prove" animals experience complex emotions or thoughts (in fact, you never prove anything in science... you can only disprove things), but mounting evidence seems to suggest that many animals have reactions that we might predict based on our own psychological knowledge. Here are just a few interesting studies on animals acting like us somehow. Do animals worry like we do? Elephants have been observed to suffer symptoms similar to PTSD after traumatic experiences. Traumatized chimpanzees also appear to have mood and anxiety disorders, and various pet owners have reported anecdotal evidence of domestic animals with separation anxiety and other fears. [url] Dog owners probably don't think scientists needed to perform an experiment to determine if dogs feel jealousy, but now there's published evidence for this canine emotion. Not all of the dogs in the study showed signs of jealousy, but a majority did. Anyone want to try this experiment with cats? [url] There's actually a "mouse grimace scale" that measures several features such as ear and whisker positions and eye squinting to estimate a distress level for a lab mouse. Researchers have discovered that lab mice react differently to pain, depending on whether men or women are present during a grimace measurement. When men are around, mice seem to suppress their distress. (But it should be noted that it's not just men causing this effect. Items of fabric that have the residual scent of men or male animals also produce similar results.) [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Marvin Ammori has a good article over at Slate questioning why the Obama White House does not appear to have submitted comments with the FCC concerning net neutrality. As you know by now, the FCC received over 3 million comments when the commenting period finally closed on Monday -- but so far, it does not appear that the Obama administration weighed in (it's possible that not all comments are in the database yet, but still...). While you might think this isn't a huge deal -- Obama has said he supports net neutrality (indeed, campaigned heavily on it originally), Ammori notes that it is somewhat odd. The administration frequently does submit its own comments on other FCC issues: While President Obama campaigned heavily on net neutrality and recently reiterated his support for it, he hasn’t filed a thing to the FCC. The president has alluded to the FCC being an independent agency, and therefore suggested he should not publicly encourage the commission to fulfill his campaign promises. Yet since becoming president, his Executive Branch has submitted more than 200 filings to the FCC in over 80 proceedings. (If you want proof, see this spreadsheet.) If the administration were to file comments, it might come through a White House office, such as the National Economic Council or the Office of Science & Technology Policy, or the Commerce Department’s National Telecommunications and Information Administration (NTIA). In 2009, the NTIA submitted comments telling the FCC that the “NTIA expects to offer views on the issues presented in [the network neutrality] rulemaking at the appropriate time.” You would think that we have reached the appropriate time. But President Obama has stood largely silent while his FCC chairman, Tom Wheeler, barrels toward dismantling an open Internet and threatening the entire economy that now rides atop it. The commenting period seems like it would have been the appropriate time for at least some part of the administration to weigh in. Even with 3 million other comments, a comment coming from the administration would not get lost in the process. Instead, the President seems to be more or less admitting that his campaign promises on net neutrality were simply empty promises. Obama has proclaimed that he “will take a backseat to no one in my commitment to network neutrality.” By not commenting in the FCC proceeding, the president has taken a back seat to dozens of tech companies, including Etsy, Kickstarter, Vimeo, Reddit, and Tumblr, the AARP, dozens of senators and members of Congress, and millions of people that have strongly filed or commented in favor of real, strong Title II network neutrality. It’s time for that to change. Permalink | Comments | Email This Story

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While we've covered several instances in the past of local law enforcement actually using Twitter and social media services productively in order to capture criminals, as opposed to when they use Twitter horribly, it's far more fun to show what a connected public can do on their own. There are plenty of examples of how crowd-sourcing police efforts to track down the bad guys can go horribly wrong (ahem, Boston Marathon bombing), but this is the story of how it can also work quite well. The crime was an attack on two gay men who were simply walking down the street in Philadelphia when a large group of men and women approached them, harassed them, and eventually beat them savagely enough that one of the victims had to have his jaw wired shut. Then, because one good evil turn deserves another, they robbed one of the victims as well. While such brutality may bring on depression, take heart, for the local people were outraged and actively took to social media sites to voice their concern. Local police smartly released surveillance footage of the attack, with pictures of the assailants: Almost immediately, Twitter ignited to help find the people responsible for the crime. One user in particular seems to be getting credit for identifying the perps. Twitter user fansince09 told Action News he was disgusted by the attack. Apparently many of his followers were, too, and they joined in the effort. Fansince09 tweeted the video to his thousands of followers, and soon re-tweeted a picture apparently taken of this group at a nearby restaurant. He looked on Facebook to see who had checked into that restaurant, and started clicking links, matching pictures to the video. His effort resulted in a picture of a large party dining at a Center City restaurant. Police sources say that photograph is now part of the investigation. If you'd like to follow how the whole thing unfolded on Twitter, here's a great rundown put together by Melody Kramer, which we've also embedded below. The police even gave him a shout out on Twitter to say thanks. Those responsible for the crime are reportedly now in touch with their attorneys and are making arrangements to turn themselves in to the authorities. As someone living in a metropolitan city, I can't even begin to tell you how often these types of attacks go unpunished, so it's good to see social media working to get a little justice done. Nicely done, Philly. Permalink | Comments | Email This Story

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For years now, we've discussed the ridiculousness of the COPPA law (the Children's Online Privacy Protection Act). The rallying cry of "protect the children!" quite frequently leads to very poor policy decisions, and COPPA (and the enforcement around it) is a perfect example of that. While there might possibly be good intentions behind the law, the practical reality is that it's a joke. It effectively places a much larger burden on any site that allows anyone under 13 to use the site. While, in practice, it's supposed to only apply to sites that are targeted to kids, in an attempt to avoid that, many sites put a blanket ban on those under 13. In our own terms of service we explicitly tell anyone under 13 not to register with our site. Our lawyers more or less insisted that we had to do this, and plenty of other sites do the same. So the end result is that kids under 13, who often should be using the internet, are told that they can't use large parts of the internet -- including sites that are useful to their education. But of course many of them still use the internet. They just lie about it. In fact, one researcher found that the only practical effect of the law is that it leads parents to teach their kids that it's okay to lie. Even worse, the FTC seems entirely unconcerned about the real impact of the law -- but prefers to insist that it's really protecting children, despite no actual evidence to support this. In fact, the FTC has even pushed to expand the law. The FTC has now gone after its latest COPPA "violator": Yelp. According to the complaint filed against the company Yelp had the audacity to let kids under 13 register for its service via the company's iOS and Android apps. And then? Well, I assume that the very small number of kids who did so, used the app to *gasp* find reviews on restaurants and such things. The FTC complaint doesn't present any evidence of any actual harm here. Just the fact that it let a small number of kids register, and then didn't meet all the checkbox requirements of "protecting the children." I'm honestly curious if the "consumer protection division" at the FTC thinks that kids would be better off if they were blocked from using Yelp entirely, or if they just think,"Aha, gotcha!" when they file these kinds of lawsuits?Permalink | Comments | Email This Story

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Our own research has shown this over the past few years, but contrary to the doom-and-gloom stories from the big entertainment companies about how awful the internet has been for their business, the truth is that it's enabling tremendous growth and profits. A few months ago, a study of the major record labels showed that they remained tremendously profitable. There's some up and down in there, but there's fairly consistent profitability, with pretty massive profitability from the two biggest ones, Universal Music and Sony. The report also notes a big increase in the profit margins that these companies are making, able to squeeze a lot more money out of existing resources. A new, much larger, study from Ernst & Young shows that this is true across the media business these days -- and that a lot of the profitability is coming... from the internet. A quote from the report's lead author sums it up: “We are seeing that digital is very much driving profits now, instead of disrupting it. Companies are figuring out how to monetize the migration of consumers to a variety of digital platforms, and this insatiable demand for content is fueling growth throughout the industry.” Remember how the internet was supposedly killing music? Yeah, about that: The music sector is driving record growth in profitability from the expansion of licensed digital subscription and streaming services, growth in music publishing and rising smartphone and tablet penetration in emerging markets. Film? Film and TV production companies are driving their profitability through increasing revenues from digital platforms and investments in franchise-based films and higher-margin television shows. But, wait, just weeks ago, one of the copyright maximalist talking heads was telling us that franchise movies were being killed off due to piracy? Maybe not. Either way, this goes back to the point that many of us made during the SOPA fight. Despite the desire of Hollywood and certain politicians to make this into a "fight" of Hollywood vs. Silicon Valley, it's a bizarre kind of "fight" when it's Silicon Valley providing all the "weapons" to Hollywood that's making them so profitable.Permalink | Comments | Email This Story

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We've been detailing the issue of police militarization for quite some time around here (though the best resource on the issue has been Radley Balko, who wrote an excellent book on the topic). The issue has finally become at least somewhat mainstream, thanks to the high-profile appearance of militarized police responding to the protests in Ferguson, Missouri. This has, at the very least, resulted in at least a few police departments thinking better of their decision to accept surplus military gear from the Defense Department via its 1033 program. And the latest is the Los Angeles School Police Department. Just last week, MuckRock posted on its site about a FOIA request from California, detailing the military equipment given to school police forces. Just the fact that any military equipment is being given to school police should raise some serious questions, but the one that really stood out was that the LA School Police had been given three grenade launchers, along with 61 assault rifles and one MRAP (mine resistant vehicle -- the big scary looking armored vehicles that have become one of the key symbols of police militarization). Asked to explain itself, the LA School police chief, Steve Zipperman, claimed that the district had actually received the grenade launchers and the rifles all the way back in 2001 (though the MRAP is brand-spanking-new). But, he claimed, we shouldn't worry too much, because the police didn't think of them as "grenade launchers," but rather "ammunition launchers," and they were mainly kept around in case other police needed them: Zipperman said that although the Pentagon identifies the three launchers as grenade launchers, civilian police call them less-deadly ammunition launchers. He assured me that the school police never had any intention of lobbing grenades at anyone, ever, and that they would not be used against students to launch anything. But as a police department, he said, LAUSD’s finest engage in mutual-aid pacts with other police agencies, and the ability to move those launchers out of storage might come in handy. As for the assault rifles, Zipperman said they were converted to semiautomatic assault rifles -- why am I not feeling better yet? -- and are used to train a cadre of officers within the department. Those officers in turn are equipped with civilian semiautomatic rifles, which are either kept in locked compartments within their patrol cars, or in more centralized locations, in case of a Columbine High School-type gunman attack. Either way, with the outrage and backlash growing, the school district police force has now agreed to give up the grenade launchers, but it's keeping the rifles and the MRAP. The department told the LA Times that the rifles were "essential life-saving items" though no evidence is given of what lives they've saved. That same article at the LA Times quotes someone from the Oakland School Police Department up here in Northern California, who received a "tactical utility truck" from the Pentagon program, saying that the truck is "a rolling public relations vehicle." Public relations how, exactly? That if the police don't like the look of you, they may blow your head off? And then there's this: "We end up having to bring out a gas can and jumper cables every time we want to drive it — it's only used twice a year." If they have to bring out the gas can and jumper cables every time they want to use it, it doesn't sound like it's particularly useful in those "emergency" situations we keep hearing about in defense of these programs. If there's suddenly a big emergency, and the police have to go searching for some gas and the jumper cables? Perhaps that just shows how non-"essential" these giveaways are.Permalink | Comments | Email This Story

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One of the general rules that we try to follow here on Techdirt is to avoid anything that has to do with "partisan politics" or debates that involve "Democrats" v. "Republicans." Thankfully, many of the tech issues that we discuss don't fall neatly into one camp or the other -- issues around intellectual property, privacy, innovation and surveillance seem to have supporters and detractors on both sides of the traditional aisle. Sometimes that's because the issue is so "new" that it hasn't been twisted and distorted into a partisan fight yet. Sometimes (more frequently) it's because these issues aren't ones that get enough attention at all. Net neutrality was like that in the early days, a decade ago. It was a legitimate concern that was being raised about broadband providers potentially abusing market power. Somewhere around 2004 or 2005, however, something shifted in the debate, and it suddenly became a "partisan" issue with Democrats tending to be "for" net neutrality and Republicans tending to be against it. At this point, the debate became stupid. This often seems to happen with partisan issues. Once the "Parties" take over (and this is true of both parties), pretty much all debate on the relevant facts goes out the window, and it all becomes hyperbole and rhetoric. That has absolutely been the case with the net neutrality debate as well. So, while we don't normally dive into any kind of partisan spin on things, because the rhetoric has become absolutely ridiculous on net neutrality, it seemed worth discussing why the Republican claims that reclassification under Title II is some sort of "government takeover of the internet" or "regulating the internet" are just wrong. And we'll go one step further and point out why Republicans should actually be standing right along side their Democratic colleagues in supporting reclassification. This shouldn't be a partisan issue at all, but a bipartisan effort to make sure that the internet remains free and open for true innovation and competition (the kind of thing that both parties should agree on). We'll start by pointing to a fantastic article from James Heaney, a self-identified conservative, who goes into great detail explaining why free marketers should support reclassification of broadband access by the FCC. He covers a lot of ground that we've discussed before, but does so in a clear and concise manner that makes it easy to read. In short, he notes that free markets and competition are great for innovation -- and that while regulation can often get in the way of those things, so can monopoly power. Further, he highlights how internet infrastructure is effectively a natural monopoly (just like we discussed... a decade ago). And, thus, it makes sense to have very limited regulation to keep the natural monopoly from getting out of control and more importantly, to stop the natural monopoly from hindering all sorts of other innovation. Heaney's argument goes into a lot more detail, including a discussion of why the FCC was crazy wrong in its 2002 decision to declare cable a Title I "information service" rather than a Title II "telecommunications service," and why now is the time for the FCC to correct that mistake. Either way, he notes, the nature of broadband -- like highways or electricity -- makes it clear that it's a natural monopoly: That’s because – guess what! – internet service is a market where natural monopolies prevail. Just like with the electric company, most of the cables and most of the network are already purchased and deployed. Adding a new customer often means literally just flipping a switch at HQ, or – at most – laying a few yards of cable to an existing network. In the end, the more the company sells, the less it costs them. Over time, the big companies beat the small ones on cost, gobble them up… then lobby the government to freeze out potential competitors, while jacking up costs and slashing service quality,. If you have ever interacted with Comcast in any way, you already know about their “service” “quality” – the infinite wait times, the incompetent “help,” the constant upselling, the blatant lies (usually about credits they promise), the desperate measures. Since they are our local monopoly, I don’t hear too much about the other monopolists out there, but I understand Time-Warner isn’t any better. It is a fact that customers despise their ISPs on average: What you may not realize is that they are overcharging you, too, like textbook monopolists. From there, he points out that often the best way to deal with natural monopolies is through the threat of a government crackdown, rather than actual regulation. This was actually a position that we supported for a long time as well. I can't seem to find a reference to it now, but I'm pretty sure that this was the suggestion of Professor Ed Felten as well, noting that a sort of "Sword of Damocles" dangling above broadband providers' heads might be the best form of net neutrality as we learned more. However, as Heaney notes, we have learned more and that plan has now failed, thanks to the appeals court ruling in favor of Verizon (Heaney incorrectly says it's Comcast -- possibly confusing it with a different net neutrality lawsuit). And, thus, he notes, without the hovering threat, the playing field is now open for monopoly-power abuse -- which is the kind of thing that Republicans and conservatives should be against: So now the delay-and-harass strategy has failed. The monopolists have a blank check from the law, and they are exploiting it with tremendous rapacity (as we’ve seen in the series of Netflix stickups, which picked up the moment net neutrality collapsed). Perhaps the next most attractive option is to pull a Reagan and just break up the major ISPs into smaller companies. Unfortunately, there is no obvious legal way to do that. The Bell breakup resulted from a lot of special circumstances, some plain-as-day antitrust violations, and an 8-year court battle. Moreover, breakup would probably not solve the problem: the wee ISPs would still have local monopolies in many areas, and economics 101 would force them to immediately begin reconsolidating into new national monopolies (as the Baby Bells are doing today). In the long run, the consolidation and price gouging of natural monopolies are probably inevitable. It’s a cold, heartless law of economics: the same laws that allow the government to increase revenues by cutting taxes will eventually compel certain telecom markets to become monopolies, no matter how many times we break them up. Given that, he notes, the next best option is Title II. He notes, correctly, that the early days of the internet saw growth and investment in broadband thrive under Title II (contrary to claims to the contrary) and how the telcos today still beg to be classified under Title II for parts of their infrastructure: To sum up, the only reason the Internet isn’t protected from monopolies today is because, in 2002, the FCC decided to experiment with not regulating the Internet. Almost immediately thereafter, the telecoms began fighting the core Internet principle of network neutrality, aiming to take control of the Internet for themselves and impose monopoly prices on consumers. All attempts to restrain them outside of Title II have failed. The Wall Street Journal regularly argues that the Internet has thrived because ISPs have never been regulated like phone companies. This is false, and the Journal should know better. Indeed, the years of the Web’s most explosive growth and development happened under the auspices of strict common carrier regulation, identical to those of phone companies. (Heck, even today, limited portions of Verizon’s high-speed fiber network, FiOS, fall under Title II!) The fix to the growing monopoly problem is very, very easy, and several courts have pointed to it over the past several years: simply revisit the obviously nonsensical ruling of 2002. Overturn it, and (correctly) decide this time that Internet Service Providers are “telecommunications providers”. Instantly, every ISP in America would go back to common carrier status, and net neutrality regulation wouldn’t just become easy; in many ways, neutrality is baked into Title II. The FCC would gain many tools to reduce the risk of natural monopoly where it doesn’t exist, or its effects where it does. The market would be saved, the consumer freed from the tyranny of monopoly. His full piece is much longer and well worth reading, but I have one further quibble with it, which gets back to the underlying claim about all of this that Title II is somehow "regulating the internet." It's not. It's never been about that at all. Quite the opposite, in fact. It's about choosing which form of regulation internet infrastructure will be ruled by. The anti-net neutrality crew like to make this mistake (and they make it often), trying to pretend that internet infrastructure is the internet. It's not. And internet infrastructure has always been heavily regulated, often out of necessity. In order to allow a cable company or a telco to install broadband infrastructure, local cities and towns often did special deals, handing over subsidies, rights of way, pole rights, tax breaks, franchise agreements and other such things to the broadband players. The idea that internet infrastructure has ever been "a free market" is laughable. No matter what kind of infrastructure was being installed, it's always relied on some sort of deal with government in exchange for access. As such, it's entirely sensible to argue that there should be certain requirements in exchange for such public support for their network, and that includes keeping the network itself free and open to use. And that's really what net neutrality is all about. It's not about "regulating the internet," but making sure that the big broadband players don't "regulate" the internet themselves, by setting up toll booths and other limitations, allowing them to pick the winners and losers. It's about blocking monopolistic powers from putting in place systems to extract monopoly rents that harm the public and limit innovation and consumer surplus. Net neutrality frees the internet from such monopolistic regulations by putting common carrier rules at the infrastructure level to make sure that there's true competition and freedom at the service level. And that makes total sense, because you don't want competition of natural monopolies, you want to make sure natural monopolies don't block competition. Given that Republicans like to claim that they're pro-innovation, pro-business and pro-competition, they should absolutely be in favor of net neutrality as well because it creates the environment where there will be real competition and innovation at the service level. The argument that they're using against it is to pretend that Title II regulates "the internet" when it really just changes the existing style of regulation for internet infrastructure, preventing a few monopolistic powers from squeezing monopoly rents from everyone else. Normally stopping monopolies is supposed to be a key tenant of conservative economics. It honestly seems like the only reason that isn't the case here is because big broadband lobbyists have carefully spun this tale (and heavily funded some campaigns) to pretend that what they're trying to stop is "regulation of the internet."Permalink | Comments | Email This Story

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Ahmed Ghappour, over at JustSecurity, alerts us to a rather frightening proposal from the Justice Department that would enable law enforcement to hack into the computers of people who are trying to be anonymous online. At issue is that current rules basically would extend the powers granted for terrorism investigations to everyday criminal investigations, concerning specifically the DOJ/FBI's ability to hack into computers. In the past, judges could issue warrants for such computer hacking if the target was known to be located in the same district. But the proposed change would wipe out that limitation, and basically give the DOJ/FBI the power to get approval for hacking into a much broader range of computers. Without the geographical limitation, there's concern about just how broadly this new power would be (ab)used: The DOJ proposal will result in significant departures from the FBI’s customary practice abroad: overseas cyber operations will be unilateral and invasive; they will not be limited to matters of national security; nor will they be executed with the consent of the host country, or any meaningful coordination with the Department of State or other relevant agency. Under the DOJ’s proposal, unilateral state action will be the rule, not the exception, in the event an anonymous target “prove[s] to be outside the United States.” The reason is simple: without knowing the target location before the fact, there is no way to provide notice (or obtain consent from) a host country until after its sovereignty has been encroached. Without advanced knowledge of the host country, law enforcement will not be able to adequately avail itself to protocols currently in place to facilitate foreign relations. For example, the FBI will not be able to coordinate with the Department of State before launching a Network Investigative Technique. This puts the U.S. in a position where a law enforcement entity encroaches on the territorial sovereignty of foreign states without coordination with the agency in charge of its foreign relations. In short, every new criminal investigation by the FBI will open up the possibility of a diplomatic nightmare and embarrassment. But, really, who cares when there are criminals to go after, right? When a state’s sovereignty is encroached upon, its response depends on the nature and intensity of the encroachment. In the context of cyberspace, states (including the United States) have asserted sovereignty over their cyber infrastructure, despite the fact that cyberspace as a whole, much like the high seas or outer space, is considered a “global common” under international law. [....] Given the public nature of the U.S. criminal justice system, it is hard to see how the FBI will avoid risk of prosecution (similar to that in the Chelyabinsk incident) if the DOJ proposal is approved. The Chelyabinsk incident refers to involved Russia filing criminal hacking charges against the FBI for the FBI logging into a Russian server, seeking evidence against some Russian hackers. And, of course, there are other issues with the proposal as well -- as you'd expect any time you see law enforcement seek to move anti-terrorism tools over to standard crime-fighting. For example, the current proposal could authorize questionable hacking techniques by the FBI. Ghappour suggests that if the DOJ really wishes to push forward with such a proposal, it needs to clearly limit the techniques that are allowed: The Rule should not authorize drive-by-downloads that infect every computer that associates with a particular webpage, the use of weaponized software exploits in order to establish “remote access” of a target computer, or deployment methods that risk indiscriminately infecting computer systems along the way to the target. Nor should the Rule authorize a “search” method that requires taking control of peripheral devices (such as a camera or microphone). There are other suggestions, of course. As it stands, the proposed amendment allows the FBI to use a wide array of invasive (and potentially destructive) hacking techniques where it may not be necessary to do so, against a broad pool of potential targets that could be located virtually anywhere. Of course, why would the DOJ ever limit itself when it has the chance to get access to an even more powerful tool for hacking into anyone's computers?Permalink | Comments | Email This Story

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One of the standard talking points right after the Ed Snowden revelations first started coming out was that the leaks were causing terrorists to change how they communicated, meaning that US intelligence was somehow "losing track" of important information on the whereabouts and plans of terrorists. The most obvious example of this was from CNN "reporter" Barbara Starr (who has a long track record of repeating Defense Department talking points) who directly claimed: "terrorists are trying to change the way they communicate because of what they learned from Edward Snowden's admitted leaks of classified information about government surveillance programs." We questioned this claim on a number of points -- in part because there was plenty of evidence that most terrorists already suspected such surveillance and acted accordingly. Meanwhile, in private, James Clapper (who publicly was claiming massive damage from terrorists changing how they communicate) admitted that he really wasn't that worried. Clapper has said repeatedly in public that the leaks did great damage, but in private he has taken a more nuanced stance. A review of early damage assessments in previous espionage cases, he said in one closed-door briefing this fall, found that dire forecasts of harm were seldom borne out. So it should come as no surprise at all that a new research report more or less confirms that there is no evidence of terrorists changing how they communicate post-Snowden. You can read the full report from Flashpoint Partners yourself, but it's pretty clear: The underlying public encryption methods employed by online jihadists do not appear to have significantly changed since the emergence of Edward Snowden. Major recent technological advancements have focused primarily on expanding the use of encryption to instant messenger and mobile communications mediums. Aside from warning of tampered copies of “Asrar al-Mujahideen” that were deliberately infected with spyware, none of the prominent jihadi logistical units have expressed any public doubt as to the continued effectiveness of encryption methods employed in their software packages that were released prior to the Snowden leaks. The actual release of new jihadi-themed encryption software packages, like “Asrar al-Dardashah,” seems to have had a far more noticeable impact in terms of driving waves of interest in the subject of encryption among users of jihadi web forums than the publication of the Snowden NSA revelations in June 2013. Well prior to Edward Snowden, online jihadists were already aware that law enforcement and intelligence agencies were attempting to monitor them. As a result, the Snowden revelations likely merely confirmed the suspicions of many of these actors, the more advanced of which were already making use of – and developing –secure communications software. In other words, as we said, most terrorists already assumed their electronic communications were at risk and acted accordingly. There is little to no evidence that Snowden's leaks had any significant impact at all. The report shows that encryption packages were popular well before the Snowden leaks, and little seems to have changed after the Snowden leaks. The report also looked at forum discussions on various encryption techniques on forums frequented by terrorist groups. As you can see from the following two charts, there doesn't appear to be any bump in discussions about encryption or related software post Snowden (the leaks began in June of 2013). If anything there was much more discussion before the Snowden revelations started: The full report is quite interesting, though I doubt we'll see any NSA defenders/Snowden haters admitting that their doom and gloom claims turned out to be false.Permalink | Comments | Email This Story

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An activist is a terrorist, at least according to Senior Police Officer Justin Berry of the Austin Police Dept. While the terms aren't mutually exclusive, a person can be one without being the other. In Berry's mind, they're both, and he feeds off the FBI's paranoia to reach his conclusion. If you can't read it, it basically says that Berry has come across some information on a "national domestic extremism trend" that is echoed by local activist groups. He claims to have found "mirror warning signs" in "FBI intel." From there, his own report follows, naming such unlikely domestic extremists as CopBlock, CopWatch and Peaceful Streets. Also included are sovereign citizens groups and government accountability activists. [pdf link] A nationwide movement has begun against the United States Government and all government officials including those at the local level and the police officers employed by these agencies (Anonymous, 2012). Locally, numerous activists have combined their programs to work together towards the same agenda, which seems similarly in line with that of the national revolution movement… Here's the list of groups Berry believes are an imminent threat. Peaceful Streets Project Austin, TX- Leader and Founder Antonio Buehler Cop Block- Austin, TX Cop Watch- National and Local Texans for Accountable Government Austin, TX (State and Local legislative front) - Leader and Co-Founder John Bush Occupy Austin- Austin, TX (Political) Lone Star Sovereign Mutual Aid Response Team Austin, TX (legal aid and blanket calling) - Leader and Founder John Bush Anonymous- Global (Computer Hacking and obtaining of personal and banking information)- Unknown Oath Keepers- A first responder and military organization supporter group- National (Police Information Source)- Unidentified Members, one known member within the Austin Police Department Institute for Justice- National. Texas Chapter Headquarters in downtown Austin, TX (Legislative Arm)- Unidentified at this time His report goes on to say that these disparate groups share common members and acknowledges that the operations themselves are often peaceful -- or at least, not directly violent. But he calls out individual members for social media posts containing broad threats or other antagonistic behavior as being indicative of these groups' latent potential for violence. Below is several screen shots that show these organizations intentions, statements, and goals that should not be discredited as mere chatter, but considered an active threat until after November 5, 2012... Unfortunately, the screenshots are not among the documents posted at antimedia.org [which also include discussion of an online impersonation charge that likely went nowhere], but anyone who's perused a few comment threads or Facebook posts can probably imagine what was included. In any group, there are always a few commenters who will advocate for violence in response to police misconduct and abuse. These are generally not indicative of the group in total, but do tend to skew higher in certain activist groups. Rather than address the threats as words of individuals, Berry tries to tie the whole thing together as a revolutionary force composed of sovereign citizens, police accountability activists and Anonymous itself. Then he uses a movie to illustrate the severity of the situation. A good visual of what they are hoping for can be seen in the movie for V for Vendetta. basically what they are basing all their movements off of. At time marker 1 hour 42 minutes a detective is heard telling the plan which is basically hoping one police officer will make a mistake and poor decision, in the case of the movie killing an unarmed child committing a minor offense. They then used that event to bring out regular people to support their cause. Though in real life they do not have numbers needed to pull anything like that off, which is why they will have to create a problem by claiming one-thing ahead of time, then forcing police to take a certain action. My concern is that John Bush has already stockpiled up weapons… … and so on. Fortunately, Justin Berry's hysteria (possibly prompted by some recorded run-ins with members of these groups) falls mostly on deaf ears. Much more measured responses are given by other law enforcement officers and supervisors. Following the notification that Peaceful Streets was planning to hand out free cameras to citizens to record police activity, Lt. Robert Richman had this to say. Please see Tom's email below. It summarizes a very good approach to use while discussing the recent "video" activist movement with our officers. If our officers encounter any problems with the activists. please have them bookmark the incident via DMAV and send me a copy of the case number. Although we don't anticipate any issues, officers should always be cognizant of their officer safety and the safety of the citizens on scene. If problems do arise. officers should be well versed on the various tools available within the law that may assist them. A few examples are: Texas Penal Code 38.15 Interference with Public Duties Texas Transportation Code. Section 552.006 Use of Sidewalk (Le. Pedestrian in Roadway) Calming, but with a hint of authority behind it. He references "Tom's email," which is even more forthright in its assertion that recording police officers is perfectly acceptable behavior. I have reminded my officers that there is nothing wrong with citizens recording us while we work. Don't let someone bait us into a negative confrontation. The would-be camera-persons are to keep their distance and not interfere with the Incident. I have told my guys that 30' is a fair guideline for acceptable distance, since any closer and the subject becomes a potential immediate threat, which causes an officer to divide their attention. However this will be up to the officer to reasonably articulate if they decide to enforce this. Ultimately, maintain officer safety and if the person attempting to records us legitimately interferes with a police incident, arrest them. I have encouraged my officers to welcome the recordings and present a pleasant professional image for the cameras. "Smile and wave, gang. Smile and wave" - The less our officers respond to the baiting, the more quickly they will tire of their game. Lt. Tom Sweeney's advice is sound, although he's a bit wrong to belittle recording police officers as a "game." To some, it undoubtedly is, but to many others, it's one of the only forms of officer accountability available to average citizens. As to Justin Berry's breathless statements that activists are endangering police officers by posting their personal information online, Lt. Richman chills his heated assertion with obvious facts. Additionally. some officers have complained about the activists posting links on Face Book tothe officer's pay and other personal data. Officers should be reminded that our pay is actually public record and easily found as is many other bits of information via a simple Google search. Officers should be reminded to lock down the security settings on their Face Book accounts and to cleanse any personal data they find on the internet by contacting the site which shows the data. Antimedia.org portrays this as a wholesale libeling of these activist groups, but what's released here appears to be nothing more than the fruits of one officers' personal, um, vendetta. As was briefly mentioned earlier, Berry has had multiple run-ins with one of these activist groups -- Peaceful Streets -- and appears to be hoping to find a "legal" way to mute their presence (note how it's listed first and explained in the greatest detail). The other cops in the thread appear to be much more pragmatic, even up to the point of feeling citizen recordings are a "game" that activists will tire of if officers refuse to rise to the "bait." Berry's inferences are objectionable but he seems to be finding little support. Without that, there's not much he can do. Permalink | Comments | Email This Story

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Just last week we wrote about the growing number of legal challenges to GCHQ spying. Now here's another one, from The Bureau of Investigative Journalism, which is concerned about how blanket surveillance threatens the workings of a free press: The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists' sources and communications from government scrutiny and mass surveillance. That's an issue because GCHQ's approach of routinely collecting all communications for detailed analysis inevitably means that some data involving journalists will be swept up. As the lawyer Gavin Millar explains: No one knows anything about what GCHQ does with the journalistic information it pulls in. This is because, startlingly, neither the legislation nor government guidance about its use says anything at all about this. But it is inevitable that some of GCHQ's minute analysis of the data will be giving it selective access to confidential journalistic material and identifying sources. There is already much evidence that law enforcement agencies increasingly seek to access such information for their own purposes. It is an easy way of advancing their investigations. It can help to identify and deal with embarrassing whistleblowers and can forewarn of awkward stories in the offing. The same is true for the security and intelligence agencies. Fortunately, Articles 8 and 10 of the European Convention on Human Rights give strong protection to the right to privacy and to freedom of expression. As Millar explains, in earlier judgments the European Court of Human Rights (ECHR) has made it clear that: this Article 10 right can only be overridden by an order of a judge. And the journalist must first have the opportunity to argue before the court that there is no competing public interest which makes such an order necessary. The law under the Convention is quite clear. Covert state surveillance and accessing of journalistic information cannot be used to circumvent these important rights. Other journalistic information and activity can only be the subject of such covert surveillance in certain circumstances. Most importantly it must be carried out under laws which are clear, accessible and foreseeable in their effects. These laws must give journalists an adequate indication of how these discretionary surveillance powers might be used against them. They also have to provide protection against arbitrary or disproportionate surveillance measures. However, the UK law that governs this area, the Regulation of Investigatory Powers Act 2000 (RIPA), is outdated, and does not comply with those rules, Millar believes. So this latest attack on GCHQ's mass surveillance is not just an empty gesture to express annoyance: if the ECHR rules in favor of The Bureau of Investigative Journalism, the British government will be required to review the regulations around the mass collection of communications data -- to update the anachronistic RIPA, in other words. The good news is that the ECHR has already indicated that it will accept this new case. That offers the hope that the court may be preparing to put it in the fast track along with a similar one that calls into question the UK's compliance with Article 8 of the European Convention on Human Rights. Even if the pace of Snowden's revelations has slowed somewhat in recent months, the impact of earlier leaks continues to grow. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Recall that trademark law is chiefly about protecting consumers from confusion via the limitation of words, images and logos for use in specific forms of commerce -- specifically used in ways that might confuse the consumer about the origin of the product. In other words, consumers should be able to reasonably discern whether a brand is represented by the inclusion of that brands identifiable name and image in when seen. Simple right? Then explain to me why a whole bunch of brands decided to torpedo a City of Toronto campaign that cleverly used some of their imagery to tell people to stop littering? The city is now pulling the campaign because of trademark infringement concerns. The ads, which launched earlier this month, received attention for their humorous use of some very recognizable product packaging. The campaign slogan was, “Littering says a lot about you.” The ads featured discarded candy boxes, plastic bottles and other packaging arranged to spell the unflattering message that littering conveys. The combinations included a bag of Lay’s potato chips and a Krazy Glue package arranged to spell “Lazy”; Reese’s Pieces and a bottle of Gatorade put together to spell “Pig”; Alka-Seltzer and Goldfish crackers saying “Selfish”; and a pack of Sweet'N Low and Lifesavers put together to say “Low Life.” Some examples: Clever, right? Apparently, several of the companies whose brands were used called to complain, simultaneously assuring the city that they fully supported the campaign to end littering, but that they were miffed over the use of their brands. The chief concern appears to be the potential for damage to the brands in question. The theory, I guess, being that the use of parts of recognizable brand names would result in consumers associating those brands with litter... or something. Regardless, the City of Toronto caved to the pressure, even though they were likely completely in the clear. We reached out to some experts and couldn't find any who found this reasonable. One Canadian trademark lawyer told us he couldn't see how there was a legitimate trademark claim, while law professor Eric Goldman had this to say: "I'm not sure about Canadian trademark law, but I can discuss it from the US perspective. I believe the ads are probably OK under trademark law because I doubt the trademark owners could establish the requisite consumer confusion. Looking at the ad in total, there's almost no risk that the consumers will think the ads are for anyone other than the anti-litter agencies. (There is a greater risk that the eye-catching use of third party logos would constitute "initial interest confusion," but that doctrine almost never succeeds in court any more). The trademark owners' strongest argument is that consumers will think the trademark owners authorized or sponsored the ads. That's an empirical question that would cost each side over $100k to answer via consumer surveys, plus hundreds of thousands more for legal fees. The large costs associated with adjudicating that question creates the opportunity for plaintiff bullying and defendant stonewalling." Which is exactly what happened. It would take a lot of strain to convince one's self that the ads were about anything other than the city promoting a cleaner environment. Now that campaign has been lost to the trademark lawyers of brands that claim to support the effort. Permalink | Comments | Email This Story

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Petroleum products are a pretty convenient way to store energy. It's just unfortunate that burning the stuff releases carbon dioxide into the atmosphere. Biofuels could be a solution, but relying on natural biological processes can be difficult to scale up -- especially if we expect biofuels to try to match up with the current energy demands. Researchers are working on ways to modify biology or circumvent it with chemical engineering to make some carbon neutral hydrocarbon fuels in large quantities. Here are a few possible examples. A copper catalyst system can produce ethanol (and acetate) from carbon monoxide at room temperature and pressure -- without any kind of fermentation. This copper-based system relies on an electrochemical cell and could be a environmentally-friendly way to produce a non-toxic, renewable fuel. [url] Scientists have played with Escherichia coli bacteria that can generate propane gas. The process needs a lot more work to become a practical way to produce propane as a fuel, but a bioreactor to make propane could be viable in a decade or so. (Maybe.) [url] Some species of bacteria have been found that can consume pure electricity for food. These naturally-occurring microorganisms usually live near hydrothermal vents on the seafloor, but if they can feed on electrons directly (instead of soluble bits of iron), then they might be able to store energy in biomolecules for us and turn electricity into convenient biofuels. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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For a while now, we've been following the lawsuit concerning whether or not Sherlock Holmes is in the public domain. Back in June the 7th Circuit appeals court ruled that Holmes was in the public domain, followed up by a more thorough slamming of the Sir Arthur Conan Doyle Estate in a follow-up ruling concerning rewarding attorneys' fees. We saw some reporters claim that the case was now "over," but that was clearly not true. The Estate had made it clear it intended to appeal, having already asked the Supreme Court to block the appeals court ruling from taking effect (a request that was quickly denied). But that was clearly the preamble to a request to the Supreme Court to hear the case. That request has now come, with the Estate arguing that there are serious questions still in play. Specifically, the Doyle Estate raises three questions for a potential Supreme Court hearing. As a bit of background, the case was not directly started by the Estate, but rather author Leslie Klinger, who filed for declaratory judgment saying he wasn't infringing since the character was in the public domain. In the past, Klinger's publisher had felt pressured into taking out a license, and Klinger felt that this demand was unfair and unjust. The Estate tried to argue that even though all but one book of Holmes stories were published before 1923 (which puts them in the public domain), the fact that another book was published after 1923 with new facets to the character meant that the entirety of the character of Holmes (and Watson) were still covered by copyright. The argument was, more or less, that as long as the character is still "developing," and not complete, the copyright clock can be kept ticking. The courts completely rejected this argument and pointed out that the public domain is the public domain. However, the Estate is making one last go of it, with a two-pronged attempt to get the Supreme Court to reconsider: Whether it was reasonable to rule on the case prior to Klinger finishing his book. This is a bit of misdirection. The Estate argues that the case shouldn't have been decided until Klinger finished his book since you can't determine if something isn't infringing if it hasn't been produced yet. This question was easily dismissed by the courts because (1) the Estate had been agitating for a license already, and that had created publishing issues for Klinger and (2) the courts made it clear that they were just saying that the early works were in the public domain -- and if Klinger's eventual book infringed on anything from that final (still copyrighted) Holmes book, the Estate could bring a specific case on that issue. The big question: whether or not a "dynamically developing character" can continue to extend the clock on copyright. Here, the Doyle Estate claims that there's a circuit split, in particular with a ruling from the 8th Circuit (which we covered here) concerning the Wizard of Oz (and people making t-shirts out of images from a movie poster that clearly was in the public domain). Admittedly, that was a terrible decision -- effectively allowing some reclamation of the public domain by copyright law. If the Supreme Court takes this case, hopefully it will be to just smack down that 8th Circuit decision and bring it into compliance with the 7th Circuit's point that things that were in the public domain stay in the public domain. The Supreme Court is not always clear in indicating which cases it will take and which it will pass over, and I wouldn't recommend betting in favor of the Court taking this case. Chances are it will pass. However, if it does take on the case, hopefully it will only be to protect and preserve the public domain.Permalink | Comments | Email This Story

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