posted about 2 hours ago on techdirt
A little more than three years after it shut down to avoid complying with federal prosecutors' demands for its encryption key, Lavabit is returning to life. The secure email system, whose most famous user was Edward Snowden, fought the US government in court over demands to produce the key that would unlock access not only Snowden's emails, but those of every user. Not only did it shut down, but it also memorably delivered a 4-point middle finger to the feds in the middle of the legal battle. With its users' privacy secured -- along with its legacy (Snowden-approved, man-sticking-it-to-itiveness) -- the Lavabit team gave the code to the public and started working on a newer, more secure email platform. As Kim Zetter reports for The Intercept, Lavabit's successor is now live. [Ladar Levinson is] relaunching Lavabit with a new architecture that fixes the SSL problem and includes other privacy-enhancing features as well, such as one that obscures the metadata on emails to prevent government agencies like the NSA and FBI from being able to find out with whom Lavabit users communicate. He’s also announcing plans to roll out end-to-end encryption later this year, which would give users an even more secure way to send email. The "SSL problem" was the weak link the government sought -- the key that would unlock all users' accounts, rather than just the one targeted. With this eliminated, Lavabit's new basic option should be far more resistant to government demands than its earlier version. With the new architecture, Lavabit will no longer be able to hand over its SSL key, because the key is now stored in a hardware security module — a tamper-resistant device that provides a secure enclave for storing keys and performing sensitive functions, like encryption and decryption. Lavabit generates a long passphrase blindly so the company doesn’t know what it is; Lavabit then inserts the key into the device and destroys the passphrase. But if vanilla Lavabit still feels a bit compromisable, there are a couple new tiers of increasing darkness available to users, known as "Cautious" and "Paranoid." (The vanilla tier is "Trustful," which places the security duties completely in Lavabit's hands.) "Cautious" offers end-to-end encryption, with the encryption key being stored in users' devices, but while still using Lavabit's server to transfer the key from device to device. (This will also allow users to recover keys if needed.) "Paranoid" goes even further. Some people who want more security — like activists, journalists, and whistleblowers — might balk at having their key stored on a third-party server. That’s where Paranoid mode comes in. The key for doing end-to-end encryption remains on the user’s device and never goes to Lavabit’s server. But to use another device, the user has to manually move the key to it. And there’s no way to recover the key if the user loses it or deletes it. In all three cases, it will be difficult-to-impossible for governments to demand access to users' communications. Additionally, Lavabit's service will deliberately mangle metadata, making it mostly useless to surveillance agencies engaging in passive collection, as well as to government agencies seeking to obtain these so-called "third party records." This is utilized in all three tiers and is based on Tor's origin/destination obfuscation tactics. The most that can be gleaned from the metadata is the domain sending or receiving the email -- but not both on any single record. Unsurprisingly, Lavabit had little to say on its "responsiveness" to government demands for users' communications, letting the end products speak for themselves. If the internet perceives censorship as damage and routes around it, communications platforms are more frequently coming to the conclusion that government surveillance is just more wreckage to avoided. Permalink | Comments | Email This Story

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posted about 4 hours ago on techdirt
This seems to be something of a regular occurrence now. In the recent past, several foreign countries have celebrated how stunningly real video game graphics have become by using them to pretend they are really great at war. The Egyptians did it to pretend that Russia was fighting ISIS, the Iranians did it to pretend that their forces could shoot people from a really long way away, and the North Koreans did it to pretend that they could deliver a nuclear ICBM to our soil. Well, perhaps there is some synergy to be found over Korea's DMZ, because the South Koreans recently released footage detailing how super-awesome their new fighter jet program is, and that footage included several clips from both Battlefield 3 and Ace Combat. The South Korean military has a new program to co-develop fighter planes. To show off the project, a web video was created with tax payers’ money. Oh, and unauthorized video game footage. The Korea Times (via tipster Sang) report that the country’s Ministry of National Defense released the ten minute clip, which features a few seconds of Battlefield 3 and Ace Combat: Assault Horizon to show off the aircraft’s performance. Here is a sample of a frame from the video and from the game footage it had been taken from, clearly showing that the efforts to disguise the unauthorized usage pretty much amounted to mirror-flipping the image and overlaying a few graphical filters. It's one thing when a country with a shamble pile of an economy and an overinflated sense of its own power like North Korea does this sort of thing. We've come to expect it, on some level. But there is something really silly when a country with a real economy that is the ally of the United States sinks to the depth of playing make-believe to thump its chest. It's the kind of thing that calls into question the might and capability of the rest of the fighting force of South Korea, which is a terrible signal to send to its northern neighbor. To induce even more head-shaking, it seems that everyone is blaming each other for all of this. The military acknowledged that the footage wasn’t authorized and said it will cease using the clip. It also blamed the company that produced the video, and that company is, in turn, blaming the Agency for Defense Development and Korea Aerospace Industries, alleging that they had a say over everything. One would hope that the game publishers in question won't stoop to the level of trying for a copyright claim over all of this. Instead, they ought to beam proudly that their game footage was deemed realistic enough to attempt to pass off as real-life warring. South Korea, meanwhile, will need to wipe that egg off of its face. Permalink | Comments | Email This Story

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posted about 5 hours ago on techdirt
Last Friday, the first three of Donald Trump's appointments were up for vote -- with his DOD and DHS nominees sailing through with an easy vote. However, the Senate blocked Mike Pompeo, Trump's nominee for CIA. As we've discussed in the past, Pompeo is not concerned with violating civil liberties. In the past, we've noted that Pompeo put forth a sneaky fake amendment that pretended to defund NSA metadata collection, but which really reinforced it. He's further defended spying on Americans' metadata as the way government is supposed to operate. Oh, and did we mention that he angrily denounced SXSW for daring to have Ed Snowden speak there. That's all quite concerning. But in opposing Pompeo for the CIA slot, Senator Ron Wyden has raised even more concerns -- including about Pompeo's willingness (or even eagerness) to use information hacked by the Russians to spy on Americans (and not just the Russians, but anyone else as well). That... should be concerning. As Marcy Wheeler explains, there were a long series of questions all leading up to the basic idea that Pompeo has no problem using whatever info is given to him to spy on people domestically, even if it comes from foreign hacking. Wyden’s persistent concerns in his post-hearing questions pertained to whether and how Pompeo would be willing to cooperate with the Russians. Raising a Pompeo hearing comment that if a foreign partner gave the CIA information on US persons “independently,” “it may be appropriate of CIA to collect [that] information in bulk,” Wyden raised Trump’s encouragement of Russian hacking and asked what circumstances would make foreign collection so improper that CIA should not receive such information. Pompeo responded, “information obtained through such egregious conduct may be appropriate for the CIA to use or disseminate.” Wyden then listed out a bunch of conditions, such as information coming from an adversary, to disrupt US democracy, information implicating First Amendment protected political activity, or information affecting thousands or millions of Americans. “The listed conditions could all be relevant,” Pompeo responded, remaining non-committal. The full post-hearing questions can be found at that link, if you'd like to look them over. Meanwhile, Wyden is clearly not at all satisfied with Pompeo's answers, putting out a statement this morning saying: Rep. Pompeo showed he's perfectly comfortable saying one thing on Monday, and the opposite on Tuesday. But his record reveals extreme positions, including enthusiasm for sweeping new surveillance programs targeting Americans and an openness to sending our country backward with regard to torture. Furthermore, his views on intelligence assessments on Russian interference in our election shifted along with the presidents', raising questions about the nominee’s objectivity. There's been much made (especially over the weekend) about a potential rift between the CIA and Donald Trump, but no matter what, the CIA has a pretty long history of abuse of its powers in often dangerous ways. A person who has a history of supporting expanded spying on Americans (as a normal thing that government should do), and one who sees no problem using data hacked by foreign adversaries to then spy on Americans, seems like someone who should not be running the CIA right now. Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
We've been quite vocal for more than six years about the problems of the Trans Pacific Partnership (TPP) agreement, and why it would do really bad things for intellectual property laws and expand the concept of corporate sovereignty over national laws. Throughout the campaign, both major candidates, Donald Trump and Hillary Clinton, campaigned against the agreement, though many people (quite reasonably) doubted Clinton's sincerity over that position. On the flip side, no one doubted Trump's sincerity -- but many of us disagreed with his reasons. Still, it's at least marginally good news to have Trump officially get us out of the TPP negotiations, effectively killing the agreement. President Trump formally abandoned the Trans-Pacific Partnership on Monday, pulling away from Asia and scrapping his predecessor’s most significant trade deal on his first full weekday in office, administration officials said. Mr. Trump sharply criticized the partnership agreement during last year’s campaign, calling it a bad deal for American workers. Although the deal had not been approved by Congress, the decision to withdraw the American signature at the start of Mr. Trump’s administration is a signal that he plans to follow through on promises to take a more aggressive stance against foreign competitors. Of course, as per in the campaign, Trump's reasons for withdrawing are not the same reasons we were concerned about the TPP. Trump seems to be focused on extreme protectionism and tariffs, a position that will do massive harm to the US economy. And, of course, there's reasonable fear that in doing the right thing for the wrong reasons, what comes up instead will be even worse. And, of course, in completely dropping out of TPP, it also means throwing out the baby with the bathwater -- including some parts of the TPP that would actually be quite useful, including the sections on the free flow of information across borders, which is important to keeping the internet functioning globally, blocking the ability of authoritarian countries to demand localized servers (that can be used for surveillance or to cut off access to the global internet) and more. And, as of yet, there is no indication that the new administration cares about any of this. So, yes, it's good that the TPP is dead. It was a bad agreement put together in secrecy with lots of bad elements. But, we need to watch quite carefully what comes next, with the recognition that it very well could be worse. Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
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posted about 7 hours ago on techdirt
Perhaps sensing the wave of civil asset forfeiture reform might eventually come crashing against the seized beach houses of the federal government, the FBI has decided to post a defense of the oft-abused process at its website. The post speaks in warm terms about federal partnerships with state law enforcement agencies -- partnerships often abused by local authorities to route around restrictive state laws governing forfeiture. Of course, there's no mention of this particular facet of federal partnerships in the FBI's post. Instead, the post does all it can to portray it as a legitimate tool of law enforcement, rather than the analogue for legalized theft it's become. The FBI tries to spin this as a limited-use tool that only affects convicted criminals. But even in its defense of the process, it can't help but enthuse about the near lack of limitations it enjoys. Many—though not all—federal crimes have forfeiture provisions, but just about every law the FBI is charged with enforcing has some forfeiture aspect—from organized crime activities, financial frauds, drug trafficking, and cyber crimes to public corruption, child pornography, human trafficking, and terrorism. Not "Just For Drug Dealers™," as so often seems to be the case. All sorts of criminal acts -- even those committed with zero criminal intent -- can result in people (or their parents, relatives, roommates, etc.) losing their property to the government. How many laws allow for forfeiture? The FBI doesn't say, but it's probably in the thousands. Here's a recent federal criminal law count: There are at least 5,000 federal criminal laws, with 10,000-300,000 regulations that can be enforced criminally. "Many" is the word the FBI uses, so it's not just the rogue's gallery they trotted out in defense of the controversial process. It also can be owners of small restaurants or guitar manufacturers or whoever runs afoul of a few hundred thousand federal regulations. But don't worry, says the Feeb, we have to do stuff to take stuff. In all Bureau cases, the burden of proof to demonstrate that the property in question is forfeitable under the applicable federal law rests with the government. This looks like it means the government has to prove the seized property is directly derived from criminal activity. But that's not what the sentence actually says. All the government has to prove is that the law provides for its forfeiture. Actually proving seized property is derived from criminal activity isn't something the government has to do. It only has to do this if the seizure is challenged. If it isn't, the normal boilerplate assertions about agents' information and belief are usually enough to net the government some extra spending money or fine auctionables. The real fun begins when the FBI talks about civil forfeiture -- the process in which assets are treated as suspected criminals while the suspected criminals who own the property are sidelined by the legal process. Civil forfeiture [...] is brought against property rather than the actual wrongdoer—it’s not dependent on a criminal prosecution, it’s based on the strength of the evidence at hand, it’s available whether the owner of the property is living or dead, and it allows us to obtain the assets of fugitives who have escaped the arm of the law or subjects who reside outside our borders. This is law enforcement's favorite brand of forfeiture, as it eliminates tons of paperwork, arraignments, courtroom testimony, Fourth Amendment "technicalities" that spring suspected criminals, and dangerously unpredictable juries. The most laughable part of this sentence is what the FBI claims civil forfeiture is used against -- fugitives and foreigners. In "many" cases (to borrow the FBI's vague term), the people assets are taken from are not only not fugitives or foreigners, they're also left uncharged and unjailed while their belongings begin the streamlined process of becoming government assets. The FBI freely admits it engages in another form of parallel construction to better ensure the government ends up with something in every forfeiture case. In some instances, the FBI—in conjunction with U.S. Attorney’s Office—will run parallel criminal and civil forfeiture cases. There are several reasons for this. Parallel proceedings help us get the proceeds of a crime back to the victims more quickly. Also, if the case involves depreciating assets (like cars), we can civilly forfeit those assets faster than in the criminal proceeding, then liquidate the assets and get them back to the victim at a better return than if we had held the assets until the criminal case was completed. We also do parallel cases to ensure we can forfeit the assets civilly in case the defendant flees or dies before the forfeiture order is handed down. Handy. If the government can't get a conviction, it can still possibly take property from someone it couldn't prove was an actual criminal. By running them in parallel, defendants are left with almost no time to fight for the return of their property after they're exonerated. And there's another laughable statement hidden in this paragraph: the notion that asset forfeiture has anything to do with "returning" the proceeds of criminal activity to victims. The FBI says it has returned $100 million over the last two years to crime victims. Sounds impressive, but that's only when presented without context, as the FBI does here. Scott Shackford of Reason provides some much-needed fiduciary bracketing: In just 2014 the federal government deposited $5 billion in seized assets. That was just one year. So this $100 million in restitution over two years is a drop in the bucket compared to what they've taken. Most of the money is kept for themselves or shared with local law enforcement agencies. The government's do-gooding only looks like do-gooding when deprived of context. The FBI -- and countless local law enforcement agencies now facing pushback from legislators and constituents -- wants to have it both ways: the power of Nottingham's sheriff but the public adoration of Robin Hood. It can't have both. And it has chosen for years to give into every base urge that civil asset forfeiture's perverted incentives have created. The public tide has turned against forfeiture, but the FBI -- waist-deep in water -- thinks it can keep everything under control by waving a badge and a "we're the good guys" grin. Permalink | Comments | Email This Story

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posted about 8 hours ago on techdirt
There's lots of "me too" litigation flying right now. Multiple plaintiffs have advanced the theory that because terrorists kill people and terrorists use social media platforms to communicate, it somehow follows that social media platforms are at least partially responsible for terrorists killing people. Bed legislation tends to follow tragedies. So does bad litigation. In the aftermath of a car accident that killed a five-year-old girl, a lawsuit was brought against Apple for supposed negligence -- solely because it has yet to implement a patented lockout mechanism that might have prevented the driver who killed the plaintiff's daughter from using Facetime while driving. The key is "might have." The key is also a little understood aspect of intellectual property like patents. Just because a patent is acquired does not mean the company obtaining it has the means to put it to use. Nor does it indicate it ever plans to put the patent to use. It's an exclusionary process meant to keep others locked out for a certain period of time more than a leading indicator of any company's immediate plans for the future. Partly due to a fundamental misunderstanding of patent filings, a "me too" class action lawsuit has lobbed into a California court, piggybacking off the negligence lawsuit filed late last year. A California man has levied a class action lawsuit against Apple in Los Angeles Superior Court over the company’s decision to not implement technology that would prevent drivers from texting while behind the wheel. Julio Ceja, who was rear-ended by a driver allegedly distracted while using her iPhone, isn’t seeking monetary damages (save for legal fees). Instead, Ceja hopes Apple will be forced to halt sales of its iPhones in The Golden State until a lock-out mechanism preventing people from using their smartphones while driving is implemented. The lawsuit [PDF] proposes a potential class of EVERY PERSON IN CALIFORNIA, thanks to the popularity of cell phones and the increase in distracted driving accidents. Of course, this legal effort attempts to shift the burden of personal responsibility to cell phone manufacturers. Ceja's concerns about distracted driving may be justified, but his desire to see the government force Apple to implement an as-yet-unused patent by blocking phone sales is thoroughly misguided. The lawsuit only targets Apple and only because Apple is in possession of this granted patent. The state's millions of Android (and tens of Windows phone) users would presumably be free to rear end Ceja and others while distracted by their non-iPhones. Chances are this will be tossed before it advances too far, with the court pointing out that Apple is free to handle its unused patents however it feels and that any solution lies with the state's legislature, rather than the court. Of course, this will result in misguided legislation that targets cell phones specifically while ignoring all sorts of distracted driving that has nothing to do with electronic devices. But this solution makes a hell of a lot more sense than a court-ordered injunction that allows distracted drivers to offload their culpability on an unused patent. And it would the responsibility where it should be: on drivers who pay more attention to their phones than the road. Permalink | Comments | Email This Story

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posted about 10 hours ago on techdirt
For a long time, the narrative du jour in cable and broadcast circles was that sports would save cable TV from the unholy threat of cord cutting and the associated ratings drop. Live sports and sports analysis was, the argument usually went, the one true piece of bedrock in the cable and broadcast empire that could protect the industry from sagging ratings and defecting customers. But as we've see by the NFL's 2016 ratings dip and ESPN's stumbling face-plant, sports simply isn't the panacea industry executives pretended it was. Of course, the industry likes to attack any messenger that points this out, but it doesn't make the underlying reality any less true. With sports ratings in decline, the obvious question then becomes what to do about it. Most of the proposals being circulated by the industry have been relatively comical, like the NFL's decision earlier this year to simply shuffle the Titanic deck chairs a little and consider the subject closed: "According to people familiar with the plan, the one-week test will reduce the number of commercial breaks from the standard five per quarter to four, while retaining the usual spot load. In other words, while football fans will have fewer opportunities to make kitchen runs and bathroom breaks, the ad pods that do air will eat up more clock." So the industry's ingenious solution to complaints that there are too many ads? Keep the same overall ad load, but just shuffle the delivery up a little bit. That's kind of on par with the ingenious solutions the cable and broadcast industry has been using for years. When they're not responding to consumer annoyance by just increasing ad load, they've focused on editing or speeding up shows to fit in more ads. Obviously none of this is going to address the fact that streaming video has changed the entire game, and traditional television has to adapt or perish, even if this means initially losing revenue. Baltimore Ravens owner Steve Bisciotti this week had a novel idea; how about the NFL stop shoving so many ads down the gullets of already frustrated users, most of whom pay an arm and a leg for cable? "It doesn’t take a genius to figure out that nobody wants to see two minutes of commercials, come back, kick the ball and then go to a minute-and-a-half of commercials,” Bisciotti said Tuesday. “I’ve thought that was absurd since I was 20 years old." You mean, fining teams for sharing video clips isn't going to fix things? Bisciotti goes on to note that yes, this will certainly result in a drop in initial revenue, but hey -- it won't hurt billionaire owners any, really: “We’ve got to figure that out,” Bisciotti said. “Again, if you change that, it could mean a reduction in income, but that’s going to hit the players more significantly than it’s going to hit the owners. I still don’t know any owner that’s in this business because of the money. “Everything is on the table, and if we have to go to ABC and NBC and say that we’ve got to cut some commercials out and give some money back and half of that money doesn’t go into the player pool, maybe that’s what we’re going to have to do. But our expenses would be adjusted accordingly too. So, I’d like to see some things cleaned up.” What a novel idea. Actually changing your behavior instead of crucifying anybody that suggests you should adapt? Examining aggressive and creative solutions to the ongoing ratings and cord cutting slide, instead of burying your head deeply in the sand? Traditional cable providers and broadcasters are going to lose money in the face of increased competition and more consumer choice. The question then becomes, do these companies want to have at least some kind of direct control over this trajectory and evolution of their industry, or are they just going to do nothing, and stand there with dumb looks on their faces as customers flock to less expensive, more flexible, and ultimately less annoying entertainment alternatives?Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
Ahead of Trump's inauguration, the CIA announced changes to its rules on gathering/using (inadvertently or otherwise) data and communications from American citizens. Other than this being the timeframe in which it happened, this process was likely in the works for months, rather than a panicked, last-minute attempt to keep an incoming president from redirecting the agency's foreign-based focus. (h/t Julian Sanchez) But still, it's tempting to equate the two: Trump's swearing in and a slight scaling back of the CIA's domestic reach. The outgoing head of the agency was none too happy with Trump's tweets criticizing the intelligence community for not doing whatever it is Trump imagines it should have done about Buzzfeed publishing an opposition-funded dossier about his alleged ties to Russia. Trump compared life under this supposedly-incapable intelligence community to that of Nazi Germany, while also making statements about buddying up with Russia. Exiting CIA Director John Brennan seemed a little irked. "I think he has to be mindful that he does not have a full appreciation and understanding of what the implications are of going down that road,” Brennan said on “Fox News Sunday,” a show Trump routinely watches. “Now that he’s going to have an opportunity to do something for our national security as opposed to talking and tweeting, he’s going to have tremendous responsibility to make sure that U.S. and national security interests are protected,” Brennan added. Brennan also objected to the "Nazi Germany" comment, standing up for all the fine (and probably some not-so-fine) people in the intelligence community. Given this backdrop, it might appear as though the updated CIA interpretation [PDF] of Executive Order 12333 is a response to Trump's tweets and statements, but it's more likely the agency did this in response to the Snowden leaks, which made any form of domestic surveillance by foreign intelligence agencies look a whole lot sketchier. In a rare case of proactivity, the CIA has finally altered something it hadn't officially revamped in more than 30 years. Earlier this month, the Director and the Attorney General approved new Attorney General Guidelines consolidating and updating the CIA’s procedures, some of which had not been significantly updated since 1982. In the intervening decades, the CIA implemented a number of additional changes in internal regulations and policies to address changes in law and technology not contemplated in the 1980s. The new, consolidated Attorney General Guidelines now incorporate many of these intervening changes, thereby providing a more unified and comprehensive set of procedures that permit the CIA to use and share intelligence information to support national security objectives in a manner that protects the privacy rights and civil liberties of all Americans. The new guidelines add more restrictions to the CIA's use of domestic data and communications. It requires the agency purge any incidentally-collected US persons' communications within five years -- a solid improvement over its previous deadline of "never." But with that (incrementally) good news comes some bad news: The five-year limit on holding information applies only to the most sensitive categories of information, including email or cellphone intercepts — data that might otherwise remain in agency systems without being exploited or evaluated. Less-sensitive information is to be expunged after 25 years. There are also additional reporting and compliance requirements meant to curtail the CIA's snooping on US persons' communications and data. Unfortunately, the specifics of these requirements are left mostly to the imagination, despite the CIA -- for the first time ever -- publishing a fully-declassified and unredacted version of its 12333 rules. Also on the bad news side is the fact that the new restrictions rely on the interpretation of an executive order, which could be altered or replaced by the incoming president. Not only that, but the new CIA head -- Mike Pompeo -- could just as easily roll back the latest policy updates. Also of note is the fact that, despite the incremental changes, the CIA still isn't super-concerned about Americans' civil liberties. CIA officials acknowledged that the revisions were made without input from civil liberties groups, including the American Civil Liberties Union, which have pushed for more aggressive measures to protect Americans’ privacy than are envisioned in the updated guidelines. As an agency with no master but the President (its "oversight" never seemed too troubled about its independent actions until it was spied on), the CIA has a lot of leeway in how it carries out its foreign intelligence operations. Whether or not we can trust the CIA to play by its own rulebook is still up in the air. It still works closely with the FBI to perform foreign intelligence collections, and recent loosening of restrictions on sharing NSA-collected, unminimized US persons' data/communications means the FBI will have even more access to information the CIA isn't supposed to touch. And there's nothing in the new rules that suggests the CIA's practice of engaging in Section 702 backdoor fishing expeditions (often at the behest of the FBI). The summary [PDF] notes the CIA is not allowed to engage in intelligence collections targeting US persons directly, but it is still allowed to point other agencies in this direction and make use of anything collected by that agency. With narrowly defined exceptions regarding testing and training, the CIA may not use special collection techniques in the United States. The CIA is, however, permitted to ask another federal agency to perform special collection techniques in the United States under that agency’s legal authorities. The CIA may also provide technical equipment or knowledge to another federal agency in conducting authorized special collection in the United States with the approval of the CIA’s General Counsel. The CIA may conduct special techniques outside the United States that target a United States person only with the approval of the Director of the CIA (or his designee), the CIA General Counsel, the Attorney General, and (where applicable) the Foreign Intelligence Surveillance Court. On the bright side, the push for greater transparency from the intelligence community appears to actually be working, as both 12333 documents have been provided in a timely manner by the agency, fully-declassified and free of redactions. Permalink | Comments | Email This Story

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posted 1 day ago on techdirt
We've got a double winner on the insightful side this week, with Roger Strong taking first and second place with a pair of responses to then-still-President Obama's surprise commutation of Chelsea Manning's sentence. First, it was a response to the assertion that Edward Snowden's case was different because he "fled into the arms of an adversary": That'd be one of the four countries that offered Snowden permanent asylum: Ecuador, Nicaragua, Bolivia, and Venezuela. The US trapped Snowden in Russia while enroute. They even intercepted and searched the president of Bolivia's plane to search it for Snowden. Funny though, I hadn't heard that Bolivia was an adversary or undermined American democracy. In second place, it's a more general response to the idea that Snowden should have stayed to face the music: You mean like Daniel Ellsberg, who leaked the Pentagon Papers? Ellsberg's trial was dismissed in 1973 after evidence of government misconduct against him, including illegal wiretapping, was introduced in court. Today the government actions that got the case thrown out of court are legal. For the two years Ellsberg was under indictment he was free to speak to the media and at rallies and public lectures. Today Snowden would not be allowed out on bail. Instead, he would be in a prison cell like Bradley Manning, incommunicado, in total isolation conditions. Speak the truth, then run. - Polish proverb Since that post sparked a whole lot of conversation, for editor's choice on the insightful side we'll look at two more responses. First, it's 383bigblock with further thoughts on why Snowden did the right thing: There is no honor in taking one for the team especially when the system is rigged against whistle blowers. What Snowden released was pure value and we're seeing changes or more importantly increased awareness across the US for how far out of bounds our Government is willing to stray. The value is not less because he didn't subject himself to wrath of those who were caught with their hands in the cookie jar. He's a survivor and thanks to him we have a better understanding of the wickedness of those we entrust to govern us. He is a hero.... by all counts. He was smart enough to reveal what was necessary and preserve his ability to stay relevant and not get swept under the rug. It just like the liberals who are all upset at Russia blaming them for Hilary's defeat. It's the not Russians fault that they behave the way they did and wrote the emails that they did, they just got caught. No different with Snowden, how many asshats stood up and predicted armageddon because the leak. No such disaster took place, they bent over backwards trying to denounce and deny the truth. The true turn-coats or the extreme unpatriotic are those asshats in our government that needlessly and recklessly spy on Americans in order to drink up the power. Bravo Snowden.....for being smart about it. Next, it's a response to that comment from Thad, offering a small piece of nuance: Well, it is Russia's fault that they only chose to leak information that was damaging to the Clinton campaign. You don't think they had dirt on Trump too? I've said this before, but apparently it bears repeating: the content of those e-mails was in the public interest. The provenance of those e-mails is in the public interest too. It's possible to be outraged by the DNC and the Clinton campaign and also to be outraged that a foreign government strategically interfered with our election. It's okay to think two different things are bad. Over on the funny side, we start out on our post about the Mississippi Attorney General's latest attack on Google, which employed a version of the very same complaint the EFF once made. One anonymous commenter questioned what precisely that meant: Are you telling me that Hood pirated the EFF's complaint? For second place, we head to our post about a copyright fight involving a modified version of a Jorge Luis Borges story and the author's controlling estate. That One Guy stood up for the ghosts of authors everywhere: If such blatant copyright infringement were to be allowed the original author would have absolutely no reason to create new works. If people are allowed to build upon works that have come before the very heart of culture and creativity is at risk, as the protections that creators depend upon, protections which are of course the only reason that anything is ever created in the first place will be shredded, and without those protections who will bother writing new, entirely-original-and-not-in-any-way-based-upon-anything-that-came-before books, movies or music? As such it's quite proper that the author's wife brings this lawsuit to stop such activity while the original author is temporarily unable to do so, on account of the man currently being dead and having been so for 31 years, as I'm sure any day now he'll rise again, and without the knowledge that his works from seventy-one years ago are still protected what possible reason could he have for ever creating anything again post-mortem? Truth is, though, that this was a very slow week for funny comments. Even the two winners had some of the lowest vote totals I've seen for comments in first and second place, and things quickly dropped off even further after that. So, instead of try to dig up a pair of not-that-funny editor's choices, we'll mix it up with a couple that still belong more on the "insightful" side of things. First, it's flyinginn with some important literary context for the Borges "remix" fight: Borges was fascinated by the ontological issues of literary creation, especially replication - can a copy be more real than the "original"? Can generations of copies result in something which improves on the "original" - as with the Hronir in Tlon, Uqbar, a story which starts with a copyright infringement: "the encyclopedia is fallaciously called The Anglo-American Cyclopaedia (New York, 1917) and is a literal but delinquent reprint of the Encyclopedia Britannica of 1902." Anyone familiar with Borges' works (which apparently does not include his wife) would find the "Fattened Aleph" an interesting extension of his literary approach and legacy. It certainly poses no threat to her revenue stream. Finally, we've got an anonymous quip that isn't exactly a side-splitter, but makes a succinct point about the notion of whistleblowers going through the "proper" channels: No, "proper" channels are via whichever "formal" and "approved" channels are provided. Wikileaks and The Intercept fall into the "viable" and "meaningful" channel categories. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago It's time for one more focused retrospective on the events of this week in 2012: the week of the SOPA blackout and a huge victory for the internet. First, we dip briefly into the previous week, where we put out a special Saturday post to report the surprise news that the White House had come out against the approach in SOPA/PIPA. The MPAA responded to this with a bizarro-world statement interpreting it as a sign they could rush the bills through and Rupert Murdoch lashed out at the president on Twitter, while NBCUniversal's Rick Cotton was lying about the bill on MSNBC and Harry Reid was admitting concerns but insisting they must push forward. But the looming Wednesday blackout was gaining steam: Wikipedia officially announced its participation with a tweet from Jimmy Wales, then Google announced that it would join the fray, but not with a full blackout (later revealing a blacked-out logo that drew a lot of attention to its petition page). The Internet Archive (recently declared a rogue site by the entertainment industry) threw its hat into the ring as well, as did gaming site Rock Paper Shotgun and some artists like Peter Gabriel. Even Microsoft, while not joining the blackout, finally made it clear that it opposed the bills in their current form. For our part, we decided that blacking out to raise awareness wouldn't be so helpful on Techdirt where almost all of our readers were well aware of SOPA, and instead spent the day reporting on what was happening. With all this going on, even before the protest there was talk of the bills being dead — but Lamar Smith quickly made it clear that wasn't the case. He and the MPAA both brushed off the planned blackout as a publicity stunt, and Smith put out a press release announcing the next phase of markup for the bills. On blackout day (Wednesday, January 18th) the denial continued, with the MPAA making the astonishing claim that no "big sites" had joined the protests (Wikipedia, Google and Reddit, anyone?) and Chris Dodd spouting sanctimonious bluster about tech companies turning users into their pawns. A whole bunch of creators signed a letter saying they don't want SOPA/PIPA passed in their names, and soon the blackout began to take effect... The first one to go was Rep. Lee Terry, who removed his name as a co-sponsor. On the senate site, Marco Rubio followed suit. Then Senators Boozman, Hatch and Blunt and Rep. Quayle, with more and more joining them as the day progressed. The most entertaining response came from Rep. Bruce Braley of Iowa. At the end of the day, we noted that 8-million people had looked up their Representatives' information with Wikipedia's tool, and posted a gallery of all the blackout screens. Senator Ron Wyden, long-time opponent of the bills, thanked the internet but noted that the work was not yet done. The reaction continued strong into the next day, with Senate Minority Leader Mitch McConnell calling for the bill to be dropped all four GOP candidates for the 2012 election said no to SOPA and PIPA. But the most telling responses came from the industries that pushed the bills to begin with: Hollywood studio execs expressed pretty blatant anger at the fact that the government wouldn't stay bought, and the MPAA straight-up threatened politicians who wouldn't stick to its agenda. The RIAA, meanwhile, just condescended to the internet. On Friday, staunch supporter Marsha Blackburn conceded that it was time to scrap SOPA, and by the end of the day the internet had won: the bills were both listed as "delayed" and both Harry Reid and Lamar Smith announced that they would no longer move forward with them. We analyzed a long interview with Chris Dodd to explain why the industry's approach failed, and then began focusing on what comes next. But there was no need to look far, because for all the significance of the victory, SOPA/PIPA were also a prime example of winning the battle not being the same as winning the war. Not only did the Supreme Court choose the blackout day to issue the Golan ruling that allowed works to be yanked back out of the public domain — on Thursday, in the midst of SOPA/PIPA chaos, the DOJ went ahead and unilaterally seized and shut down Megaupload and arrested many of the principles, including Kim Dotcom. They didn't need SOPA to do it. They didn't need anything to do it. Much like the seizures of Dajaz1 and Rojadirecta, they didn't even appear to need especially solid legal footing: at least, they took a whole lot of questionable things as evidence of criminal activity. Some artists like Busta Rhymes spoke out in defence of the site (it being an extremely useful distribution tool) — and then Anonymous struck back with widespread DDoS attacks on entertainment industry websites, prompting some nonsensical free speech complaints from the MPAA and suspicions that the DoJ might have provoked Anonymous on purpose. As we now know, the arrest of Kim Dotcom was just the beginning of another long fight about the overreach of the US government and the influence of the entertainment industry thereon — and we know that's not the only example of a continued war against the supporters of free culture and an open internet. The internet should still take time to remember and celebrate the defeat of SOPA though, if only because we're almost certainly going to have to do the same thing again, and again, and again... Permalink | Comments | Email This Story

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A little over a year ago, we first wrote about the unfortunate situation in which CBS & Paramount had sued a group of people trying to make a fan film in the Star Trek universe, called Axanar. Beyond the basic legal questions, there was a bigger issue here. Paramount has actually been pretty good about allowing fan films. The difference with Axanar was that it was shaping up to be a really good fan film, with professional level actors, sets and staff. And that was what set off Paramount and CBS, who jointly hold the copyrights on Star Trek. The big question then is what's the line between a fan film... and an unauthorized derivative work? This wasn't necessarily a question in the past, but today with the ease of making films (and funding them through platforms like Kickstarter), it becomes a much bigger question. Something of a wrench was thrown into the proceedings last May, when JJ Abrams and Justin Lin -- who are involved in the official new Star Trek films -- claimed on stage that they were quite upset with Paramount for going after Axanar, and claimed that they'd gotten word from the company that it was going to settle the lawsuit. Of course, in the intervening months, no settlement showed up, and the filings back and forth between the parties got more and more rancorous. Things were finally heading towards a trial in just a few days... but now a settlement has finally been reached. Paramount Pictures Corporation, CBS Studios Inc., Axanar Productions, Inc. and Alec Peters are pleased to announce that the litigation regarding Axanar’s film Prelude to Axanar and its proposed film Axanar has been resolved. Axanar and Mr. Peters acknowledge that both films were not approved by Paramount or CBS, and that both works crossed boundaries acceptable to CBS and Paramount relating to copyright law. That last bit is the most interesting, but not very surprising. Just before the trial, the judge in the case had ruled against Axanar, saying that they couldn't claim fair use -- which basically killed any shot they had of winning. So, with their back up against the wall, the best they could do was to come to a settlement admitting they'd gone too far and agreeing to make significant changes to the planned film: Axanar and Mr. Peters have agreed to make substantial changes to Axanar to resolve this litigation, and have also assured the copyright holders that any future Star Trek fan films produced by Axanar or Mr. Peters will be in accordance with the 'Guidelines for Fan Films' distributed by CBS and Paramount in June 2016. While not surprising, this is unfortunate on multiple levels. First, we wrote about those "Guidelines for Fan Films" when they came out: they're awful. They basically make it close to impossible to make a decent fan film. Even worse, many of the conditions in the guidelines go directly against what's allowed under fair use. But the reason this is most unfortunate is this: the world will now never get to see what might have been a really good film. I know that some people like to attack Techdirt and me and claim that we're somehow "anti-creator" or "anti-artist" but we're not. We believe strongly in creators and enabling the best creativity possible -- and this kind of lawsuit shuts that down. It directly kills off plans to produce what appeared to be really good content. That's a cultural loss and it's too bad. The existence of Axanar doesn't take anything away from "real" or "authorized" Star Trek films with their huge budgets, special effects and stamp of authenticity from the studios. But thanks to this lawsuit, such creative content will no longer be made. And that's sad.Permalink | Comments | Email This Story

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Apologies to everyone in America. The Department of Justice can't fix what's wrong with the nation's police departments. It's up to those departments to make the changes and stick to them. There has to be a desire to change, otherwise all we'll end up with is better documentation of police misconduct and excessive force. A police department has to fall pretty far before the DOJ is willing to step in. Consent agreements follow reports -- all of which can be described as "scathing". These follow DOJ investigations in which it's routinely discovered the officers employed by the police department either don't know the first thing about constitutionally-compliant policing… or just don't care. Reason's Scott Shackford has read through the DOJ's consent agreement [PDF] with the Baltimore PD -- one that follows its extensive investigation/scathing report. In amongst all the new reporting requirements are passages that indicate Baltimore might be better off firing its entire force and hiring new recruits. The rot growing from within the department has destroyed everything, starting with the Constitution and working its way down to basic communications skills. It's completely depressing that all of this is included in the consent decree. The agreement includes things like requiring police officers have reasonable suspicion to detain and search people, and not engage in warrantless searches; only arrest people for suspicions of crimes (no really, this is explained); stop using "boilerplate" language in reports to explain reasons behind stops and searches; not engage in racial profiling; not use information they know is not true to justify searches or arrests; attempt to de-escalate encounters before using force; not use force to punish people for resisting or attempting to flee (what the rest of us refer to as "police brutality"); don't use Tasers on elderly people, pregnant women, and small children, or just to stop people from fleeing; use seatbelts or restraining devices on people being transported (remember this is all partly due to the Freddie Gray case); respect the rights of citizens to both criticize police and observe and record public police behavior without retaliation; not retaliate against people who file complaints against police conduct; and so many, many, many other things. A read through the consent decree feels like the documentation of how most citizens expect their police to behave already. These are the things Baltimore's police must be told to do, under the color of law and with the threat of federal sanctions backing it up. This is all stuff officers already should know -- things they should have learned on their way to earning the right to be trusted with badges, guns, and power. And in the middle of all the constitutional instructions, there's a whole lot of common sense -- like not retaliating in response to complaints. Or not tasing pregnant women, children, or the elderly. To be told this would be a slap in the face to a good police officer. When the department's full of "bad apples," however, basic instructions and handholding are apparently a necessity. The DOJ has to remind an entire law enforcement agency that they're public servants, rather than uniformed thugs. A consent decree will follow the investigation that just wrapped up in Chicago -- and a report that may secure the Chicago PD the "Worst Cops in America" trophy it's apparently been trying to earn for the last couple of decades, if not longer. In it will be reminders that officers aren't allowed to haul suspects off to ad hoc "black sites" or use deadly force on people who don't pose a threat to officers or other citizens. And in another decade or two, the DOJ will roll back into town and start the process all over again. There are very few officials willing to do the difficult, unpleasant work of changing law enforcement culture by rooting out those who have either engaged actively in the rotting process or stood idly by while it happened. Permalink | Comments | Email This Story

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This story is a rather fast-moving, so let's dig in. Ark: Survival is a survival game in which you hunt dinosaurs. Being a PC game, there is a fairly healthy modding community working with the game to expand it, make slight alterations to it, and even inject other instances of pop culture into it. Case in point is the Pokemon Evolved mod, which replaces the dinos that are to be hunted with, you guessed it, pokemon. As you probably also have already guessed, the mod was hit with a DMCA notice and was briefly taken out of the Steam Workshop. You would be forgiven at this point if you immediately assumed that it was the folks at either Nintendo or The Pokemon Company, both of which have been noticed policing the Pokemon IP aggressively. It was therefore head scratching that much of the reporting was peppered with caution over assigning blame for the DMCA, such as was the case in the original PC Gamer post linked above. We're not sure yet who issued the DMCA notice—we've inquired and will let you know when we hear back, but it could definitely spell trouble for the mod, especially since modder 'Mystic Academy' admits the models and animations used in the mod were imported directly from Pokémon X/Y rather than recreated from scratch. The modder only made changes to ensure the models worked in-game. Anyone familiar with how the Pokemon property has been protected in the past no doubt saw these caveats as superfluous hand-wringing. Turns out they were not, however. The developer of the mod, Mystic Academy, began making a great deal of noise about the DMCA actually coming from a rival modding group that was also releasing a mod for the game to inject Pokemon into it. That accusation appears to now be the accepted reality, with the DMCA being rescinded... The DMCA notice has apparently been lifted, and no longer appears on the mod's page in the Steam Workshop. ...and Mystic Academy having a bit of fun at the accused DMCAer, a modder going by "Cheese", who does indeed have a rival mod called ARKmon WIP. Now, the DMCA process is supposed to be utilized by rights-holders to protect their own intellectual property. DMCA notices initiated with service providers typically (always?) include language such as the following example from Vimeo: A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. The "penalty of perjury" portion sounds great, warning against issuing DMCA notices over intellectual property not owned by the issuer, except the provision is so rarely enforced as to render it mere legal smegma. Too often the DMCA process is abused in this way, acting as a weapon against rivals rather than a tool for copyright enforcement. That this can be done at all should signal a significant flaw in the process, one in need of correcting. Of course, the next update in this story may end being that Nintendo or The Pokemon Company render this drama moot by issuing their own DMCA notices to takedown both mods, which would be disappointing but not surprising. Still, this serves as a useful highlight of a flaw in the system that renders DMCA as a potential tool for censorship rather than protection. Permalink | Comments | Email This Story

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Let's start this off by stipulating that the Red Cross is an organization well known for doing very real humanitarian work. While some have raised questions as to exactly how ethically it spends donor money, the organization is still on the front lines in helping those suffering from natural and man-made disasters. All that being said, the Red Cross has also shown itself to wander over the line of sense when it comes to both video games and policing some of its iconography. Recall that the Red Cross insisted, for instance, that games that allowed players to commit what would constitute war crimes also be required to include virtual punishments for those actions. On policing the use of its icons, the organization has suggested in the past that the use of its red cross symbol on theatre costumes constitutes a violation of The Geneva Conventions. These two realms in which the Red Cross likes to play crazy have now converged, with Mark Morris and Chris Delay, makers of the notorious video game Prison Architects, having received notice that the game's inclusion of an ambulance emblazoned with a red cross constituted a violation of The Geneva Conventions. Days before Christmas, Delay and Morris received a concerning email from the British Red Cross. "My immediate reason for writing is that it has been brought to our attention that in your game ‘Prison Architect’ a red cross emblem is displayed on vehicles," it reads. "Those responsible may be unaware that use of the red cross emblem is restricted under the Geneva Conventions for the Protection of War Victims of 12 August 1949, and that unauthorised use of this sign in the United Kingdom is an offence under the Geneva Conventions Act 1957." The two had made a mistake stemming from a common misconception that a red cross denoted health services. It doesn't. And The Geneva Conventions do indeed offer international protection to the Red Cross icon, theorizing that allowing other uses of it would dilute Red Cross worker's safety when operating in war zones and elsewhere. The idea is that the rules of war ought to prevent opposing military forces pretending to be Red Cross workers in order to gain a strategic advantage. How the Red Cross believes this goal bleeds into the virtual world of running a prison is anyone's guess. Yet the use of the red cross for just those reasons is common. A Google search for 'health pack' returns dozens of results for everything from Doom to Halo. Outside of videogames, it appears in comic books, movies, and even theater. With misuse of the symbol so apparently widespread, Delay tells me he was a bit upset to find that Prison Architect had been one instance where the hammer would fall. "Red crosses are such a minor five-pixel wide symbol in Prison Architect," he argues. "There's one on the ambulance and one on the back of a health pack. They are so tiny. I think it's ridiculous. It's not like we had these enormous red crosses everywhere on the sides of vans in war zones. It's this miniscule pixelated red cross you can barely make out." Trademark bullying is one thing, but to throw around something as important as the international rules of war in order to keep a few pixels out of a video game is both silly and disrespectful of those same rules. No reasonable person would think that those that wrote The Geneva Conventions intended it to be used in this way. Nor can anyone explain why this kind of protectionism is levied so randomly. And there are grave consequences associated with the threat the Red Cross is issuing. The real issue, at least where Delay and Morris live, seems to have more serious consequences than just being sued. In the United Kingdom, the provisions of the Geneva Conventions were incorporated into British law in 1957. Prison Architect's misuse of the emblem wasn't just breaking the Geneva Conventions (which feels kind of like some distant bogeyman), but the laws of their own country. That's why, upon getting the email, they were quick to comply. Boot up Prison Architect and call in some paramedics, and you'll no longer see that red cross. Now it's green. Delay tells me the change took seconds to make in Photoshop. "It's not worth taking the stand," Morris says. "You have to pick your battles." True, but that doesn't render what the Red Cross did any less silly. If having lawyers draft these kinds of threat letters is how the organization is spending donor money, that doesn't say much for its otherwise notable reputation. Permalink | Comments | Email This Story

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As many expected, Donald Trump has chosen former Verizon lawyer and current FCC Commissioner Ajit Pai to head the FCC, according to a report by Politico. According to two anonymous insiders "familiar with the decision," Pai, who met with Trump on Monday, should be formally announced as FCC boss in short order. Pai recently proclaimed that net neutrality's "days are numbered" under Trump, while stating that the reformed FCC would be taking a "weed whacker" to "unnecessary regulations" like the FCC's net neutrality rules and its new consumer broadband privacy protections. Politico rather soft sells the controversy that Pai will represent to those who don't think technology policy should be dictated by Verizon, AT&T, Comcast and Charter Communications:"Pai is already a familiar name in tech and telecom policy debates. He’s a fierce and vocal critic of many regulations passed by the commission's Democratic majority, including the 2015 net neutrality rules that require internet service providers to treat all web traffic equally and are opposed by the major broadband companies."Let's be clear here. Pai has supported the incumbent duopoly providers on nearly every issue of substance. He has vilified net neutrality to an often-comic degree, falsely claiming the rules encouraged dictators in North Korea and Iran and led to a massive slowdown in industry investment. He has consistently refused to even admit the U.S. broadband market has a competition problem. He's made it abundantly clear he wants to eliminate every FCC consumer protection function, and, alongside fellow Commissioner Mike O'Rielly, has even repeatedly voted down holding AT&T accountable for outright fraud. If you're looking for somebody who will rubber stamp every Comcast request shoveled in his general direction, Pai is certainly your man. If you're looking for an FCC leader who's going to care about consumer issues or the plight of the startup or small business in a word dominated by massive, ever-consolidating telecom conglomerates, you're about to get a master class in disappointment. The irony, of course, is that Pai is about as far from the "populist" rhetoric President Trump leaned on to get elected as one can get:January 20th 2017, will be remembered as the day the people became the rulers of this nation again. — Donald J. Trump (@realDonaldTrump) January 20, 2017 Yes, nothing quite says "man of the people" like a former Verizon lawyer who has fought tooth and nail against every single effort to hold large ISPs accountable to the public. On any given day, if the wind is right and with enough pressure, Pai may just be convinced to occasionally do the right thing. But as the leader of an agency tasked with keeping Comcast from viciously savaging both consumers and the competition, it's not really physically possible to make a more controversial and uninspired selection. Permalink | Comments | Email This Story

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Alongside his general dislike for existing trade deals, Donald Trump singled out the North American Free Trade Agreement (NAFTA) for particular scorn, calling it "the worst trade deal maybe ever." It looks like he not only plans to renegotiate NAFTA, but he also wants to make that one of his priorities, judging by this story in The Globe and Mail: Billionaire investor Wilbur Ross, chosen by U.S. president-elect Donald Trump to reshape U.S. trade policy, has informed Canada that rules of origin and independent dispute tribunals will be central to talks aimed at resetting the North American free-trade agreement. Canadian officials say the nominee for commerce secretary has indicated a formal-notification letter to open negotiations on NAFTA will be sent to Canada and Mexico within days of Friday's presidential inauguration. Techdirt readers will have noticed the reference to "independent dispute tribunals," or corporate sovereignty as we term it around here. Its presence confirms the almost universal view that such investor-state dispute settlement (ISDS) chapters in trade deals have big problems. What's not clear is how Trump's administration will tackle them. Another article in The Globe and Mail, this time a commentary, is convinced that the US will seek to keep corporate sovereignty in trade deals: A number of indicators, however, suggest that the coming administration will stick closely to traditional U.S. policy of promoting ISDS. The author is David Schneidermann, a professor of law at the University of Toronto, who offers three main reasons why he believes that is the case: First, there is good reason to believe Mr. Trump will want to have these protections available as a backstop for the Trump organization overseas. Here's the reasoning: Consider how vulnerable Trump foreign properties will be once the Trump administration takes a position that is unpopular in some other part of the world. Or consider how a foreign government may choose to target Trump properties in order to seek U.S. government concessions. Why wouldn't Mr. Trump insist upon, among other protections available in investment treaties, "full protection and security" for Trump properties? One can safely predict that, the more the president-elect thinks about this, he is likely to act in the best interests of his family’s business concerns. It's extraordinary that Schneidermann believes one of Trump's main concerns when formulating US policy will be its impact on himself and his businesses, but highly plausible. The second reason has to do with Trump's nominee for secretary of state, Rex Tillerson: As former head of Houston-based Exxon Mobil, Mr. Tillerson will be aware of the advantages of having ISDS as a means of challenging government regulation. Under his watch, the company has successfully launched investment disputes against a number of countries with which the United States has investment treaties, including Venezuela and Argentina. Finally, corporate sovereignty is likely to remain in NAFTA and other trade deals because it's part of the Republicans' DNA: House and Senate Republicans have long been supportive of placing constraints on state action abroad via investment treaties. There's plenty of sound logic to be found in this analysis. However, if we have learned anything over the last few months, it is that old-fashioned logic is relatively unimportant in the new political landscape. Since it looks like moves to renegotiate NAFTA are going to be made quickly, we should find out soon enough what the Trump administration's new line on ISDS will be. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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This week has been Copyright Week, put together each year by the EFF and others, giving lots of people and organizations a chance to weigh in on a variety of copyright issues. Each day has its own theme, and in the past, I've tried to participate each day -- as (not surprisingly) I have thoughts about each of the topics. This year, unfortunately, I've been a bit busier than usual, meaning I haven't had as much time to write. But, still, if you check out the Copyright Week site, you can see lots of great articles by others on various topics. This being the last day of Copyright Week, it hits on a topic that I think is the most important of all: copyright and free speech. Last fall, I gave a talk at Wikimedia in which I noted that copyright has a serious free speech problem, and we're never going to fix what ails copyright until we address that simple fact. What's most striking to me is how many people try to completely deny that copyright could ever be used to stifle free expression. It seems intellectually dishonest to make such a claim. There are tons and tons of examples of copyright being used to stifle different forms of expression -- from blocking derivative works to sending bogus takedowns and more. Copyright can be and is frequently used to stifle expression. That should be a concern. On the flip side, many (including, at times, the Supreme Court) have argued that copyright itself is also an engine of free expression. This may also be true. Copyright can both be an engine of expression and stifle expression at the same time. The challenge, then, is to figure out how we can increase the engines of expression while minimizing the ability to stifle expression. And to do that, we need to break down a few different components to explore the competing factors. The first is to look at the question of whether or not copyright is necessary to accomplish the goals of promoting this kind of new speech. In many cases, it very well may. But I find it difficult to believe that it is the only, or even the most important tool, in doing so. Yet, that is how it is mostly structured today. With copyright automatically applying to any new work created by a person, it doesn't make much sense. Copyright should only make sense when it is the copyright itself that is the incentive for creation. If the work would be created no matter what, even absent the copyright, why is the copyright needed? Why, for example, do I need to get a copyright in every email I write? I can tell you that I have never been incentivized by the copyright system to write an email (other than, perhaps, to email with others about problems of the copyright system). On top of that, what we've seen over the last few years, is that copyright is often not the best incentive for creating new creative content as well. In an age where we're seeing lots of new business models develop, very few of them are actually dependent on copyright. It raises a serious question of why, by law, we naturally assume that copyright must be the grounding of every content business model, when time has shown it is quite frequently not the best, nor the most efficient business model -- and one that is often saddled with downsides and limitations. Given that, it seems quite reasonable to ask why we don't scale back the copyright system to cases where it clearly (or at least likely) is a key part of the incentive for that creation. Doing that wouldn't (by definition!) harm any new creations, but it would take away the ability to abuse the excessive copyrights to stifle freedom of expression in other areas. Similarly, we should look at the situations in which copyright is regularly abused to stifle free expression, and see how to minimize that. A major area for abuse (though hardly the only one) is in bogus DMCA takedowns. That is not to suggest all (or even most) DMCA takedowns are bogus. Many are perfectly legit and do exactly what they're supposed to do. But an unfortunately large number of DMCA notices are used to try to take down content that somoene just doesn't like, but which is not in any way infringing. Here, there are a number of possible answers. I probably lean towards moving to a notice-and-notice system, rather than a notice-and-takedown, because that keeps the content up while the receiving party has a chance to counterclaim. Thus, you avoid even the temporary suppression of free speech. Others prefer a solution that puts real meat on punishing those who file bogus DMCA takedowns, which isn't necessarily a bad idea, but could lead to other problems as well. In short, we've designed our copyright system in a dangerous way: it's one that actively encourages the use of copyright to stifle free expression, rather than to encourage it. And that's not just unfortunate for free expession and the free exchange of ideas, but it's unfortunate for copyright as well. It's that structure, so open to abuse, that leads people to not respect copyright at all, and to naturally assume it must be all bad, rather than just partially rotten. If the copyright system supporters were serious about bringing respect back to copyright, one area where they should start, and where we could all agree, would be to make these kinds of fixes to copyright law, that would align copyright's incentives properly with encouraging new works, and to move away from the elements of copyright that make it such an easy tool for censorship and stifling freedom of expression. Permalink | Comments | Email This Story

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It never fails (although the proposed solution often does): when faced with the struggles of operating news organizations in the internet era, far too many industry leaders suggest someone else should pay for their failing business models. The favorite target is Google. Google has somehow destroyed the profitability of news media companies by creating an incredibly successful search engine. Even though its search engine directs users to news agencies' websites, there are those in the industry that believe incoming traffic isn't enough to offset their perception that the search engine somehow piggybacks off their success, rather than the other way around. So-called "Google taxes" have been passed into law in countries around the world. In every case, they've been a disaster. In Spain, new agencies begged to have the law rolled back after losing traffic from Google searches. Having seen what didn't work in Spain, Austrian lawmakers floated the same idea, proposing a tax on SINGLE WORDS in search results. The latest bad idea is an EU-wide "snippet tax," because it worked so well in Spain, Spanish newspapers begged the EU to step in and block Google from killing its news article search results in Spain in response to the proposed tax. With all of this data to go on, you'd think the idea would be dead. But it isn't. The EU wants to spread its stupidity across several countries. Meanwhile in Canada, a meeting of minds over the fate of Canadian media companies has culminated in the same exact aneurysm. Tax changes, better copyright protection and fees imposed on Facebook and Google are among the solutions being touted to help rescue Canada's ailing news industry, internal reports show. Those suggestions were prominent in closed-door sessions with news leaders conducted by the Public Policy Forum, a think-tank the federal government has hired to suggest policies in support of Canadian journalism during a period of digital disruption and reporter layoffs. So, there's also a "Facebook tax" proposal, one that originates from the country's ongoing efforts to support local creations and content. Those pushing a form of Google tax are suggesting this would be no different than the government's levying of fees on cable companies whose programming didn't contain enough Canadian-made content. "Perhaps this could be [a] concept … applied in the digital space, establishing charges on news aggregators and foreign content producers such as Facebook, Google, Netflix and National Newswatch to subsidize made-in-Canada content." Perhaps. It's definitely a "concept" and one that could be "applied" to digital space… but only if the Canadian government wishes to see foreign content producers pull out of the Canadian market. (And, as the CBC notes, the think tank quoted doesn't appear to know that National Newswatch is actually a Canadian media company. That kind of "thinking" is going to get in the way of itself if these are the minds crafting new media policies.) And there's really no explanation for this: "Canadian policy-makers should consider whether copyright laws that govern file-sharing in the music industry could be applied in the news industry," with some arguing for a 24-hour period of exclusivity. Exclusivity is impossible to guarantee on the internet, so unless the legislature is willing to criminalize this form of… I don't know, infringement(?), then there's little that can be done to guarantee 24 hours of exclusivity to any media company. Not only that, but the web is world-wide, and Canadians are free to bring their eyeballs and clicks to foreign sites not subject to any ridiculous 24-hour exclusivity "rights." As for the file-sharing, I don't even know where to start. Are newspapers going to sue readers for sharing paywalled content or posting links to Facebook? Is unauthorized consumption of news the new piracy? Better suggestions are made elsewhere in the report, although these still rely on taxing others to prop up struggling industries. Change tax rules to allow philanthropic support of journalism by charitable or non-profit foundations. "Under existing rules, it becomes difficult to establish the type of independent, non-profit news model that has proven so successful in the United States through ProPublica," says the interim report. Create tax incentives and exemptions to encourage coverage of local news. Investors, for example, could get special tax credits for putting money into local, non-profit digital news startups. Review the role of the government-financed CBC, which has moved into digital news space and — according to some publishers — has undermined the private sector's abilities to attract ad dollars. (The CBC has since proposed that it abandon all advertising, relying solely on increased public funding.) In every case, there's a look to Canadian citizens' pocketbooks to subsidize media entities that, for whatever reason, Canadians haven't felt like supporting directly. This is still in its discussion phase, but the summary report points to a lot of bad ideas bubbling to the top. If Canada wants to turn news media into government-subsidized industries, it's going to do at least as much damage to the quality of reporting as their current financial struggles. Any perception of indebtedness to the government will work against these agencies, undermining their reporting and creating doubts of impartiality in the minds of their readers. As for the various taxes of US companies to subsidize falling Canadian newspapers sales, hopefully a longer look at the proposals will reveal the unintended negative consequences of these plans before both Canadians and Canadian media companies pay the belated price for their short-term thinking. Permalink | Comments | Email This Story

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Back in 2011 AT&T and Verizon killed off their unlimited wireless data plans, instead replacing them with usage caps and steep (up to $15 per gigabyte) over fees. And while these companies grandfathered the existing unlimited data users at the time, they've spent the lion's share of the last six years waging a not-so-subtle war on these users in an attempt to get them to switch to metered plans. This ranged from AT&T's decision to block Facetime completely for users on unlimited plans, to covertly throttling these users only after a few gigabytes of usage, then lying about it. Repeatedly. Of course AT&T has also used vanilla rate hikes on these unlimited data plans to drive users to metered options. In late 2015, AT&T announced a price hike for its grandfathered unlimited data users by $5 per month. Last week, AT&T confirmed it had tacked on yet another $5 increase. AT&T informed these users that they are still free to keep their unlimited data plan, but AT&T really hopes that you don't:"If you have a legacy unlimited data plan, you can keep it; however, beginning in March 2017, it will increase by $5 per month," AT&T said. The unlimited data price had been $30 a month for seven years, until AT&T raised it to $35 in February 2016. The price increase this year will bring it up to $40. That amount is just for data: Including voice and texting, the smartphone plans cost around $90 a month."Reports have indicated this attempt by Verizon and AT&T to annoy, cajole, and hammer grandfathered unlimited data users so they leave these plans has been hugely effective. Both companies have desperately tried to convince the public that they don't really want unlimited data anyway, with Verizon going so far last year as to hire an expert to pen a blog post claiming that the consumer desire for unlimited data was just a "gut feeling," and that it was simply technically impossible to offer simpler, easier unlimited data plans. Even with limited spectrum, the rise of small cells, WiFi offloading, and more robust networks and intelligent network management tools means unlimited data certainly is technically possible. T-Mobile (even though its plans may technically violate net neutrality by throttling all video by default) has thrived thanks to its unlimited data plans. In fact, they've made consumer annoyance at AT&T and Verizon pricing the cornerstone of many of their media campaigns:How people feel when they open their @Verizon & @ATT bill. Get rid of your #feeface people!!!! pic.twitter.com/viS8TXOkAG — John Legere (@JohnLegere) January 17, 2017 Unsurprisingly, both AT&T and Verizon have been losing customers hand over foot to T-Mobile. It's telling (both about these companies and the overall quality of real competition in the space) that their reaction to this competitive threat is to raise rates, whether that's AT&T's price hikes for unlimited data, or Verizon's recent decision to jack up a number of service fees. Yes, AT&T and Verizon could offer unlimited data. It's just far more profitable to have your customers so terrified of going over their monthly allotments, that they sign up for fat, pricey data plans they probably don't need in the first place. Update: Like clockwork, AT&T has followed Verizon and will also be bumping its activation and device upgrade fee as well. Competition!Permalink | Comments | Email This Story

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Next month, a rather unusual court case involving copyright will get underway in Argentina: The novelist and poet Pablo Katchadjian is facing trial for "intellectual property fraud" after publishing a reworking of Borges's 1945 story The Aleph. The Fattened Aleph -- originally published by a small press in 2009 -- extended Borges's work from its original 4,000 words to 9,600. Most of the alterations consist of the addition of adjectives and descriptive passages and do not change the original plot, which revolves around "a small iridescent sphere" in a Buenos Aires basement, through which a person can see the entirety of creation. As the Guardian reports, the legal action has been brought by the widow of Borges, María Kodama. Theoretically the case could lead to a six-year jail sentence for Katchadjian, although nobody seriously expects him to end up in prison if he loses. Kodama's lawyer is unimpressed with the argument that "The Fattened Aleph" is just another of Katchadjian's literary experiments. Previously, the author rewrote an epic 19th-century poem about gauchos called "Martín Fierro," by placing the poem's lines in alphabetical order. "Martín Fierro" is also the name of a 1920s Argentinian literary magazine that published work by Borges, amongst others. But Katchadjian's most interesting connection with Borges is to be found in a short story published by the latter in 1939: "Pierre Menard, Author of the Quixote" is written in the form of a review or literary critical piece about Pierre Menard, a fictional 20th-century French writer. It begins with a brief introduction and a listing of Menard's work. Borges' "review" describes Menard's efforts to go beyond a mere "translation" of Don Quixote by immersing himself so thoroughly in the work as to be able to actually "re-create" it, line for line, in the original 17th-century Spanish. Thus, Pierre Menard is often used to raise questions and discussion about the nature of authorship, appropriation, and interpretation. Rather like "The Fattened Aleph," in other words. It's a pity that Borges' widow doesn't see it that way. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Questions about how we approach our new robotic friends once the artificial intelligence revolution really kicks off are not new, nor are calls for developing some sort of legal framework that will govern how humanity and robots ought to interact with one another. For the better part of this decade, in fact, there have been some advocating that robots and AI be granted certain rights along the lines of what humanity, or at least animals, enjoy. And, while some of its ideas haven't been stellar, such as a call for robots to be afforded copyright for anything they might create, the EU has been talking for some time about developing policy around the rights and obligations of artificial intelligence and its creators. With AI being something of a hot topic, as predictions of its eventual widespread emergence mount, it seems EU MEPs are attempting to get out ahead of the revolution. In a new report, members of the European Parliament have made it clear they think it’s essential that we establish comprehensive rules around artificial intelligence and robots in preparation for a “new industrial revolution.” According to the report, we are on the threshold of an era filled with sophisticated robots and intelligent machines “which is likely to leave no stratum of society untouched.” As a result, the need for legislation is greater than ever to ensure societal stability as well as the digital and physical safety of humans. The report looks into the need to create a legal status just for robots which would see them dubbed “electronic persons.” Having their own legal status would mean robots would have their own legal rights and obligations, including taking responsibility for autonomous decisions or independent interactions. It's quite easy to make offhand remarks about all of this being science fiction, but this isn't without sense. Something like the artificial intelligence humanity has imagined for a century is going to exist at some point and, with advances beginning to look like that may come sooner rather than later, it only makes sense that we discuss how we're going to handle its implications. After all, technology like this is likely to impact our lives in significant and varied ways, from our jobs and employment, to our interactions with our electronic devices, not to mention warfare. I think the most interesting philosophical and moral questions surround these MEPs call to grant robots and AI with the designation of "electronic persons." The call has largely focused on saddling robotic "life" with many of the obligations humanity endures, such as tax obligations and being under the jurisdiction of humanity's legal system. But personhood can't only come with obligations; it must too come with rights. And there would be something strange in recognizing a robot's "personhood" while at the same time making use of its output or labor. The specter of slavery begins to rear its head at this point, brought on only by that very designation. Were they electronic "beasts", for instance, the question of slavery wouldn't arise outside of the fringe. The MEPs report does also deal with the potential danger from AI and robots in its call for designers to "respect human frailty" when developing and programming these machine-lives. And here the report truly does delve into science fiction, but only out of deference to great literature. Things descend slightly into the realms of science fiction when the report discusses the possibility of the machines we build becoming more intelligent than us posing “a challenge to humanity's capacity to control its own creation and, consequently, perhaps also to its capacity to be in charge of its own destiny.” However, to stop us getting to this point the MEPs cite the importance of rules like those written by author Isaac Asimov for designers, producers, and operators of robots which state that: “A robot may not injure a human being or, through inaction, allow a human being to come to harm”; “A robot must obey the orders given by human beings except where such orders would conflict with the first law” and “A robot must protect its own existence as long as such protection does not conflict with the first or second laws.” While some might laugh this off, this too is sensible. There is simply no reason to refuse to have a discussion about how a life, or a simulacrum of life, that is created by humanity, might pose a danger to that humanity, either at the level of the individual or the community. But what strikes me most about all of this is how the EU seems to be the ones out in front of this, while any discussion in the Americas has been either muted or occurring behind closed doors. If this is a public discussion worth having in the EU, it is certainly one too worth having here. Permalink | Comments | Email This Story

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Five years ago this week, Americans opened their internet browsers and saw darkness. Google, Wikipedia, Reddit, the Consumer Technology Association (CTA) and other major websites had banded together and gone dark to make a then-obscure piece of legislation infamous. Wikipedia shut down completely for 24 hours and a black band masked the Google logo. These internet giants and other online sites joined millions of Americans in protesting the 2012 Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) legislation in a historic grassroots movement. More than four million people signed Google's online petition linked to the blacked-out homepage. Eight million people looked up how to contact their representative when prompted to by Wikipedia. Tumblr alone produced 87,000 calls to representatives. The vast numbers led most congressional sponsors to rescind their support of the bill. SOPA and PIPA were well intended but ill-advised attempts on the part of Congress to protect the American copyright industry. But the legislation was so broad that it had the potential to harm or eradicate entire websites or online services, instead of specifically targeting individuals who uploaded illegal content. The New York Times called the SOPA/PIPA protests a "coming of age for the tech industry," and at CTA, we were proud to help lead this vital growth. It was a bipartisan and cross industry effort: venture capitalists and law professors, computer scientists and human rights advocates, progressives and tea partiers teamed together to fight the bills. Still, the bills progressed through Congress and appeared to have the momentum necessary to become law. The 2012 CES proved to be one of the turning points. We invited two legislators — Republican Congressman Darrell Issa and Democratic Senator Ron Wyden — to Las Vegas to explain how the bill would jeopardize the freedom of the digital world. Both policymakers made strong, smart and passionate cases, and the press and attendees listened. Within days, the tide had reversed, and members of Congress ceased their support of the harmful bills. Weeks later, SOPA and PIPA were history. We did this because we believe innovation, not an overbroad law, is the best way to grow the economy and fight piracy. History has proved us right. In five years since SOPA/PIPA failed, we've seen many instances of market disruptions and many more cases of technological innovation. Spotify, the now-ubiquitous Swedish streaming service, intentionally developed free streaming as a legal competitor to illegal piracy. It worked: piracy has dropped significantly. In 2013, less than 10 percent of daily web traffic in North America came from peer-to-peer file sharing – a more than 20 percent drop from 2008, when it comprised 31 percent of daily traffic. Even more exciting, streaming services also led to significant revenue growth for the music industry. The Recording Industry Association of America, one of the major supporters of the SOPA/PIPA legislation, reported an 8.1 percent increase in overall revenues from the first half of 2015 to the first half of 2016. This was due in large part to paid subscriptions to streaming services. Other content industries have experienced massive growth as well. Video streaming programs such as Netflix, Amazon and Hulu continue to thrive. U.S. consumers spent 22 percent more on subscription video streaming services in 2016 than in 2015. The combination of audio and video streaming takes up a whopping 71 percent of evening home entertainment in North America, and this number should only grow in the coming years. Once at odds on the floor of Congress, the innovation of the tech industry and the creativity of the media industries now mutually support and sustain one another's growth. New technologies will lead to the same market disruptions that the internet prompted for the media industry. Will Congress support new technologies or stifle them? And how will legacy industries evolve to thrive in this changing technological landscape? This year at CES 2017 in Las Vegas, innovators from around the globe came to exhibit technology that will change our world as we know it. Augmented and virtual reality technology will profoundly affect the media landscape, creating a more immersive and personalized experience. Drones have already changed the face of the retail industry, with Amazon making its first drone delivery in time for the holiday season. Self-driving cars will revolutionize the auto industry, decrease traffic deaths and bring increased mobility to the elderly and those with disabilities. In dealing with the challenges that will inevitably arise, will Congress choose to preserve old models and technologies, or will it embrace the new and allow American ingenuity to lead? Five years ago, members of Congress sided with progress over fear. The resulting explosion of innovation proved them right. As other new disruptive technologies emerge, we urge policymakers to heed the lessons of SOPA and PIPA and allow new innovations to prosper, thrive and move our society forward. Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro Permalink | Comments | Email This Story

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Not only is the use of private email accounts to route around public records requests a common practice, it's also an accepted practice. Politicians aren't going to sell out their own in the name of transparency, so there's likely as many private email accounts handling official business as there are government employees. Everyone from former New York City mayor Michael Bloomberg to Gen. Colin Powell has used private email accounts to handle government communications they'd rather not be made public. The same goes for Chicago mayor Rahm Emanuel. For years, journalists and government transparency groups have been trying (and suing) to get the mayor to turn over city-related emails contained in his personal accounts. To date, the city of Chicago hasn't budged. But we're living in a "new" era of Chicago-brand transparency -- the aftermath of the city's concerted cover-up of police recordings of the Laquan McDonald shooting. The mayor pledged the city would be more open and forthcoming in the future -- not a difficult promise to make considering there was nowhere to go but up. Roughly a year after that announcement, one layer of opacity has been peeled back by the mayor's office. Given that it was prompted by multiple lawsuits and unsympathetic court rulings, it's probably best to hold any applause until something more proactive is witnessed. As a result of a BGA [Better Government Association] investigation and legal action, The City of Chicago and Mayor Rahm Emanuel have agreed to release all of Emanuel's private emails related to city business—subject to any applicable legal exemptions—and institute a new policy that will ban city employees and officials from using their private email accounts to conduct city business. The city's change in practices comes in response to Freedom of Information Act requests and lawsuits filed by the BGA, and separately by the Chicago Tribune, and follows more than a year of hard-fought litigation and rulings by two Cook County judges that public officials’ emails are not outside the scope of FOIA simply because they are on a private account. If this clenched-teeth transparency sounds familiar, it's probably because Mayor Emanuel -- like the president he briefly worked for -- has promised unheard of levels of transparency… Emanuel claimed from the start of his tenure at City Hall in 2011 that his leadership would be among the most transparent in the nation. and delivered almost none of it. But accessing public records at City Hall—especially documents about hot topics of those pertaining directly to the mayor himself—has often been met with delays, obfuscation or court battles. And so it goes. This is an important victory for the public, moved along by court rulings stating pretty much the same thing Chicago's administrative branch is only now conceding: official business is official business, whether it's carried out on official email accounts or not. The new policy prompted by lawsuits and court losses orders city employees to push any work-related emails received on personal accounts to their city of Chicago accounts or face whatever form of discipline the city deems appropriate. The latter half of this sentence will dictate the success of the first half, so it's up to city employees to keep other city employees honest. Considering this is Chicago, birthplace of the mobbed-up politician, I expect it will be several more years before the city even begins to approach the lofty transparency goals its own mayor has shown no interest in attaining. Permalink | Comments | Email This Story

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