posted about 3 hours ago on techdirt
Just as it did with the Anti-Counterfeiting Trade Agreement (ACTA), Germany is leading the fight against both TAFTA/TTIP and the recently-concluded trade agreement between the EU and Canada (CETA). That's clear from the fact that of the 1,115,000 European citizens who have signed an online petition calling for both TTIP and CETA to be dropped, 673,000 come from Germany. The most powerful anti-TTIP organisation, Campact, is also based in Germany, and points us to this legal analysis of CETA, and the extent to which it may be incompatible with EU and German law (pdf): The following opinion assesses whether this "CETA Consolidated Text" of August 5th, 2014 complies with EU and [German] constitutional law. The opinion is limited to some selected regulatory fields of CETA. It does not claim to be exhaustive, but focuses on those provisions that dominate public discussion. It's rigorous stuff and pretty dry, but the conclusions are clear enough. For example, it confirms that CETA is a "mixed agreement." That means it must be ratified by the EU and every one of the 28 Member States -- a much higher hurdle to clear than just EU approval. It identifies the corporate sovereignty provisions -- "investor-state dispute settlement" -- as a problem: The establishment of investor-state arbitration tribunals in CETA violates the judicial monopoly of jurisdiction laid down in EU law (Article 19 TEU [Treaty on European Union] in conjunction with Articles 263ff TFEU [Treaty on the Functioning of the European Union]) and [German] constitutional law (Article 92 BL). Furthermore, the EU does not have the competence to extend such a procedure to portfolio investments and to the field of financial services. This has been a common criticism of ISDS -- that it creates a parallel legal system only available to corporations, and which can overrule national courts. It's a consequence of the fact that CETA is not just a trade agreement, but affects many areas of daily life that are normally determined by politicians, not unaccountable negotiators working in secret, as is the case with the EU-Canadian agreement. Of course, this is just one legal opinion, and doubtless the European Commission would beg to differ. But it does indicate that the very ambition of CETA -- and therefore also TAFTA/TTIP, which is very similar in this respect -- may be its downfall. By seeking to move "behind the borders", tackling "non-tariff barriers" that are actually regulations protecting health, safety, the environment, etc., these agreements may interfere with too many core functions of how a democracy works, and be struck down by the courts as a result. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 7 hours ago on techdirt
Librarians have built up quite a reputation for activism in all the right ways. Whether taking a stand against DRM, expanding libraries' catalogs to include new digital media and art, or embracing indie authors, librarians come off as much more of a hip crowd than you might expect. These stances occasionally put them at odds with some in the community that they serve, perhaps most notably with parents who have pushed for restrictions on internet access within libraries. It gets all the more unfortunate when a subsection of the citizenry sees fit to ramp up the rhetoric against an institution simply attempting to serve the greatest public good. This typically, unfortunately, devolves into the supposed accusation of librarians "defending" the right for visitors to view "pornography." Take the Orland Park Public Library, a community library in a suburb southwest of Chicago. Last year, self-identified conservative homeschooling mom Megan Fox launched a campaign to get the library to install filters on its computers after she claims to have seen a man looking at pornography in the library’s adult-only computer lab (the library has a separate, filtered computer lab for children). The library board voted on the issue and decided not to install filters, but to require identification for anyone logging on. Not satisfied, Fox and her supporters continued to hound the board, often resulting in police being called to heated meetings. She filed so many FOIA requests that the library has had to dedicate two full-time employees to respond to them. She accused the library of covering up an incident of someone looking at child pornography, and she forced a re-vote on the issue by having the Public Access Bureau declare a board meeting illegal because it was held on Lincoln’s birthday. If all of that sounds to you like a big bucket of crazy, you're not alone. Fortunately, the librarians in this case are steadfastly refusing to back down. That isn't always what happens. And, look, there's nothing wrong with being conservative, having a specific set of values, and all the rest. What you can't do, however, is insist that public institutions follow your personal views just because. That isn't how secular government works. And, of course, the entire point of the stance by librarians in cases like this is that all of this comes down to definitions and scope. Define, they challenge, "pornography," and "I know it when I see it" doesn't work as an answer. Define what should be filtered. Outline a scope of internet filtering on adult only computers that will filter out what we all universally accept to be pornography, but won't block any educational information, keeping in mind that free and open access to information and literature is the entire point of libraries. When you think of it like that, all this porn-blocking doesn't sound so simple. What's porn to a nun may not be to a commercial banker. Whose definition do you use? And why? And what do you tell the person who isn't getting their way? Too bad, but some lady named Megan Fox agrees with us? We have to be more grown up than that, something librarians have been pushing for a long, long time. Libraries have been advocates for a right to access information long before the digital age. Book banning and burning has been a national pastime for various sections of the population for decades, and libraries have always stood in the face of that, advocating in the belief that people have a right to read, learn, and access everything the world has to offer. “There have always been disputes over whether we should have sex manuals or books about creating bombs. There have always been those kinds of conflicts and librarians have tried to put out guidelines to have the most open access possible,” said Michael Zimmer, a privacy and internet ethics expert who runs the Center for Information Policy Rese​arch at the University of Wisconsin-Milwaukee. Add to that the burden that a more restrictive blocking policy puts on the less-well-off in this country and we're beginning, again, to lose sight of the entire point of libraries. Let's give an example. Let's say that we have a very poor young woman who has recently found out she's pregnant. Perhaps due to a lack of education, she is unsure of what to expect during her pregnancy and what giving birth will be like, what she should and should not be eating, etc. So she goes to the library computer section, but finds that the pages she's trying to look up have been blocked because they contain medical pictures of naughty-bits or keywords that trigger the filter. So what does she do? I'm not sure, but she may not be able to do what a suburbanite housewife can do and look this stuff up on her own high-speed internet service at home. See the problem? And it isn't just medically relevant information that can be unfairly blocked. The ALA published a rep​ort investigating the use of filters and found they were disproportionately blocking out left-leaning views on issues such as gay marriage and abortion. LGBT community websites were often blocked and identified as “sexual” sites. And whatever your feelings on LGBT issues and communities, you simply can't endorse a system in which a public commodity locks out access to sites of interest to sections of the public based on the sensibilities of other members of that public. That just isn't how this works. So, when somebody cries about seeing someone viewing pornography at a local library, a different image pops up into each one of our minds, and none of them may be remotely close to what she saw. That's why librarians stand against filtering internet access in this manner. It's for all of us and we really should be standing with them.Permalink | Comments | Email This Story

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posted about 11 hours ago on techdirt
A fairly sizable list of Nobel laureates suffer from Nobel disease -- a phenomenon in which respected scientists publicly espouse somewhat crazy ideas. Perhaps just being famous also causes this affliction...? Or maybe there should be more research on this topic, worthy of an Ig Nobel award. In any case, here are a few links on some Nobel prize winners that demonstrate these people are still human. Nobel laureate James Watson, famous for eludicating the helical structure of DNA, recently auctioned off his medal for over $4 million. The winning bid came from Russian billionaire Alisher Usmanov who says he'll return the medal to Watson. [url] Nobel laureates in Chemistry seem to like giving advice to others. Ada Yonath had some sage advice: "Go into science if you are curious and have passion for it. If not, find something else." [url] Kary Mullis, the inventor of PCR who won the Nobel prize in chemistry in 1993, supported research suggesting that AIDS is not caused by HIV. The scientific evidence is overwhelming against the assertion that HIV and AIDS are unrelated, but Mullis isn't convinced. [url] Linus Pauling won not just one, but TWO Nobel prizes. However, these credentials didn't prevent him from spouting some crazy unsupported statements, such as asserting that megadoses of vitamin C can prevent colds and death from cancers. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted about 12 hours ago on techdirt
It seems like there are so many police-behaving-badly stories that have come out recently, it's no longer all that noteworthy. Mind you, I don't know that the policing situation is generally actually getting worse, as it might seem, or if there is just simply a greater willingness to shine a spotlight in some very uncomfortable places within our own society. That said, what does remain interesting is watching how police around the country react to this spotlight. Watching the unfortunate reactions to athletes showing support for protesters, for instance, would be hysterical if it weren't so sad. Those stories appear to indicate that some within law enforcement appear to think that protecting some members of the population is a task with which they can be selective. But, hey, at least those police representatives weren't directly attempting to escalate the confrontation in the most insulting way possible. Reader Tim A writes in with an ironically-named Officer Phillip White's suspension from multiple jobs for using social media in an attempt to convince us he's the biggest asshole alive. The San Jose Police Department said Officer Phillip White was sidelined after officials learned of statements made Saturday from his Twitter account. In the tweets, White said he would kill anyone who threatens him or his family. He also said he would be off-duty at the movies with his gun if anyone "feels they can't breathe or their lives matter." The tweets and hashtag played on protest slogans "I can't breathe" and "black lives matter." For a member of law enforcement to actively attempt to bait members of the public he is sworn to protect into a violent confrontation is stupid on levels I'm seriously having trouble conceptualizing. The good news is that the San Jose police reacted swiftly and took this clown off the streets, hopefully removing the gun he'd been boasting about as well. In addition to being placed on leave by the police department, Menlo College also relieved Mr. White of his duties as an assistant basketball coach. "The college will not be represented by expressions of intolerance and bigotry on the campus, on social media, or on the Internet," the college said in a statement. Look, free and open speech is immensely important, but anyone who thinks it's okay for a public officer to publicly bait members of the public to a potentially violent confrontation in public is publicly dumb. Nearly as dumb as Officer White, who thought that hurried attempts to delete his tweets would keep him out of trouble. We shouldn't want to hear from him again until a well-thought-out psychiatric evaluation is conducted. Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
Back in 2013, the Supreme Court struck down patents that Myriad Genetics had obtained on naturally-occuring DNA sequences linked to breast cancer. As a result of that judgment, other companies started offering diagnostic tests based on the genes in question. Myriad claimed that despite losing patents on the DNA, its patents on tests based on that DNA were still valid, and took legal action to stop others from offering similar services. As we reported earlier this year, a federal district court judge refused to grant Myriad a preliminary injunction against one of those new entrants, and now the genetic testing patents have been ruled invalid, as Bloomberg reports: Myriad Genetics Inc. (MYGN) can't block competitors' DNA tests to determine risk for breast and ovarian cancer after a U.S. appeals court said three patents on the tests never should have been issued. The patents cover products of nature and ideas that aren't eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted today on the court's docket. The court upheld a trial judge's decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market. That's great news for women who can now choose freely from among a range of diagnostic options, often at prices substantially less than comparable testing offered by Myriad. It means that Myriad's monopoly on data derived from those tests has been broken: thanks to its patents, it has created the world's largest database of mutations in breast cancer genes. Most importantly, perhaps, it opens up the field of gene-based diagnostic testing to allow new entrants to experiment and innovate more freely. That, rather than granting monopolies to a few companies, is far more likely to lead to new medical breakthroughs, products and services. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted about 15 hours ago on techdirt
This week's episode of Techdirt Podcast is all about thinking outside the box (and the atmosphere) on the subjects of broadband and global connectivity. There have been many attempts to build practical satellite-based internet access over the years, and though so far they have all been multibillion-dollar failures, there's still a huge amount of potential in the concept — not to mention other innovative concepts, like internet from balloons, blimps or floating platforms. This week, Mike, Hersh and Dennis discuss the past and future of such ideas, and the revolutionary disruptions that they could usher in. If you still haven't subscribed, you should follow us on Soundcloud, subscribe via iTunes, or simply plug the RSS feed into your favorite podcatcher app (we have a few recommendations). Of course, you can also keep up with all the latest episodes right here on Techdirt. If you've already subscribed, please note: we've moved our podcast RSS feed to a new location — techdirt.com/podcast.xml — which will be its permanent home going forward. The old RSS feed will continue to work indefinitely, but the new address (which acts as a redirect) safeguards against disruption from any future changes to our podcast hosting setup. Permalink | Comments | Email This Story

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posted about 15 hours ago on techdirt
This week's episode of Techdirt Podcast is all about thinking outside the box (and the atmosphere) on the subjects of broadband and global connectivity. There have been many attempts to build practical satellite-based internet access over the years, and though so far they have all been multibillion-dollar failures, there's still a huge amount of potential in the concept — not to mention other innovative concepts, like internet from balloons, blimps or floating platforms. This week, Mike, Hersh and Dennis discuss the past and future of such ideas, and the revolutionary disruptions that they could usher in. If you still haven't subscribed, you should follow us on Soundcloud, subscribe via iTunes, or simply plug the RSS feed into your favorite podcatcher app (we have a few recommendations). Of course, you can also keep up with all the latest episodes right here on Techdirt. If you've already subscribed, please note: we've moved our podcast RSS feed to a new location — techdirt.com/podcast.xml — which will be its permanent home going forward. The old RSS feed will continue to work indefinitely, but the new address (which acts as a redirect) safeguards against disruption from any future changes to our podcast hosting setup. Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
We already wrote about the MPAA's plan to break the internet by trying to twist a portion of the DMCA to force ISPs to remove DNS entries, making sites effectively disappear off the internet. However, one key element to this actually relies on an issue closely related to the net neutrality fight -- though understanding it involves going pretty deep into both copyright law and telecommunications law. Historically, the MPAA has been against net neutrality for a long time. Back in 2007, during the original net neutrality fight, the MPAA weighed in with an FCC filing against net neutrality, arguing that it would interfere with filtering technologies that it wanted ISPs to start using. In 2009, as the second net neutrality battle ramped up, the MPAA sent a similar filing -- with some friends arguing that net neutrality is just another word for file sharing, and would lead to "rampant looting." Given all this, the 2010 open internet rules from the FCC included a special carveout for copyright content, arguing that the rules "do not apply" to copyright infringement. We noted, earlier this year, how ridiculous it was that the MPAA was still on the wrong side of the net neutrality debate, seeing as how it would stifle a bunch of important new developments that have vastly improved things for filmmakers. But, it appears that the MPAA didn't get the message, at all. The only message it got was to be quieter about its opposition to net neutrality. In some of the leaked emails, it's noted that the MPAA's strategy on net neutrality is to be quiet and evasive about it: On network neutrality: Most member companies supported, in principle, a narrow, low-profile MPAA filing focused on opposition to the regulation of content. And, indeed, that's basically what happened. On September 15th, the MPAA filed a fairly short comment that mainly focused on making sure the new rules don't create some sort of compulsory licensing scheme for content (no actual rules under consideration would do that) and that they don't interfere with copyright law. Just a few weeks ago, it appears that the MPAA and a bunch of studio execs further met with the FCC to reiterate that there should be a copyright infringement loophole in any net neutrality rules: the FCC should adopt its tentative conclusion to cary forward language in its previous network neutrality provisions making clear that the rules do not prevent content companies and ISPs from combating piracy... That's all to be expected. But there's something much more nefarious going on, which came out in the leaked document [pdf] we discussed earlier about pretending that the DMCA requires DNS-level takedowns. We were a bit confused, initially, by TorrentFreak's recent mention of the MPAA exploring the use of the Communications Act, but the full leak of the document makes that much clearer. It's not that the MPAA is looking to use the Communications Act against ISPs, but rather, the plan is to think about using the ISPs' own arguments against net neutrality as a wedge to force them into site blocking. To understand how this works, you have to go back nearly a decade to to the Supreme Court's ruling in the Brand X case (which, coincidentally, came out the same day as the Grokster ruling). This was the case in which the Supreme Court upheld the FCC's decision to say that cable internet providers could be classified under Title I as an "information service" rather than a "telecommunications service" (under Title II). Obviously, that's the key fight that we're in today -- to see whether the FCC can go "reclassify" internet (for both cable and DSL) away from Title I and back to Title II. Here's why this matters in the copyright context: as we mentioned in our earlier post, "notice and takedown" provisions in the DMCA do not apply to "transitory digital network communications" under 512(a) of the DMCA. In plain language, this means that copyright holders can't send takedown notices or append liability to a network provider just because some infringing content traversed its network. That makes sense. Without that, networks would have to do deep packet inspection and try to spy on basically all traffic. But... part of the reason why broadband companies won the Brand X case was by arguing that they're a lot more than just a network "telecommunications" service -- and that's because (they argued) they provide a lot more -- including DNS services. And, thus, the MPAA argues, under the Brand X ruling, broadband providers are effectively admitting that DNS services are not covered by the DMCA's 512(a) and thus may be covered by 512(d) ("information location tools") which are subject to notice and takedown rules. Here's the MPAA explanation: ISPs successfully advocated before the FCC, and then at the U.S. Supreme Court..., that broadband service does not constitute a “telecommunications service” within the definition of 47 U.S.C. 153(53) because broadband ISPs offer functionalities such as email and DNS, which are not “telecommunications.”..... Because ISPs offer an intertwined service package that includes both telecommunications and information services, the FCC held in Cable Modem Declaratory Ruling, and the Supreme Court affirmed in Brand X, that retail ISP service from a last-mile provider is not an “offering” of telecommunications to the public within the meaning of the “telecommunications service” definition, because the “offering” includes both telecommunications and information services blended into the same service. From there, the MPAA notes that the definition of a "service provider" is very similar under both the Communications Act and the DMCA -- meaning that there's a "colorable" argument, that since broadband providers have convinced the FCC and the courts that they're not telecommunications services under the Communications Act it should also mean that they're not a "transitory digital network communications service provider" under the DMCA: ...both statutory definitions are essentially identical (and the legislative history shows an intent to make them identical), and, having successfully advocated for and obtained a holding from the FCC that they do not provide “telecommunications services” for purposes of the Communications Act, ISPs should not then be allowed to turn around and claim that they are “service providers” for purposes of the DMCA. One might further contend that any specific ISPs that litigated the Brand X case or its progeny should be estopped from taking a contrary position under the DMCA. In short, because these ISPs got classified as information services rather than as telco services by the FCC (and the Supreme Court said that was okay), they can't then argue that they are telco services for the DMCA protections. Given that, if the FCC were to reclassify broadband back under Title II, this leg of the MPAA's argument would essentially evaporate. Because it would confirm, absolutely, that broadband providers are telco service providers, and thus clearly protected by the DMCA under 512(a). Thus, for the whole "notice and takedown at the DNS level" plan to be most likely to succeed, the MPAA really needs broadband to remain classified under Title I, so that it can rely on the argument that DNS services are not part of being a telecommunications service, but rather should be classified as a "information location tool" subject to notice and takedown. I recognize that this may be confusing to follow -- though I've tried to lay out the specifics from both copyright and telco law in a way that's clear. The short version of this is simply that a key part of the MPAA's "site blocking by DNS" plan, actually relies on the fact that broadband providers are not, currently, classified as telco services under Title II. If that changes, it takes away a big part of the MPAA's legal argument. Personally, I think the MPAA's argument, even if broadband is classified under Title I, is incredibly weak already, but having the FCC reclassify broadband providers back under Title II would make the MPAA's attempt to break the internet that much harder, even with the loophole language concerning copyright infringement. And, of course, all this goes to show just how far former Senator, now MPAA boss, Chris Dodd has gone in selling his soul to Hollywood. Back when he was in Congress, he was a big supporter of net neutrality. Apparently, being principled doesn't pay as good.Permalink | Comments | Email This Story

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posted about 17 hours ago on techdirt
Last week, Senator Ron Wyden picked apart a Wall Street Journal "op ed" by former CIA directors, attacking the Senate Intelligence Committee's report on the CIA's torture program. However, with more CIA defenders coming out of the woodwork, he's done so again. He's written the following for Techdirt in response to a misleading op-ed published by former CIA acting director and deputy director John McLaughlin that was published in the Washington Post. As you can see, the Senator finds that if there are distortions being made, it is from these former CIA officials. With the release of the Senate Select Intelligence Committee's report on the CIA's use of torture, many former CIA officials have rushed to defend themselves and their actions. Unfortunately, many of these responses mischaracterize the report's contents and continue to repeat inaccurate information about the results of torture and the CIA’s years of misrepresentations. Hopefully these responses, including specific citations, to former CIA official John McLaughlin will help set the record straight. The most incredible and false claim in the Senate intelligence committee’s report on the CIA interrogation program is that the program was neither necessary nor effective in the agency’s post-9/11 pursuit of al-Qaeda. Actually, the Committee's report does not include conclusions about the effectiveness of "the CIA interrogation program" -- its conclusions address the CIA's use of torture. The Committee's report identifies numerous instances in which detainees who had not been tortured (or not yet been tortured) provided useful information. The report, written by the committee's Democratic majority and disputed by the Republican minority and the CIA, uses information selectively and distorts facts to “prove” its point. The Committee's report was approved on a bipartisan vote of 9-6, and the Committee elected to release it on a bipartisan vote of 11-3, along with additional and minority views. When the report was publicly released on December 9, 2014, Senators from both parties, including Sen. John McCain (R-AZ) spoke in favor of it on the Senate floor. Furthermore, the Committee’s report is comprehensive, not selective. The public version of the Committee’s report is 499 pages and includes 2,725 footnotes. The full, classified version is over 6,700 pages, with approximately 38,000 footnotes, which appears to make it the largest Senate report in history. Finally, the facts laid out in the Committee's report come almost entirely from the CIA's own internal records. And they show that the CIA repeatedly provided inaccurate information to the White House, the Justice Department, Congress and the public. Chairman Feinstein also noted in her March 2014 Senate floor statement that the CIA's own internal "Panetta Review" came to many of the same conclusions as the Committee's investigation. The Panetta Review currently remains classified. I won’t try to convince you that the program was the right thing to do — reasonable people will differ. Nor will I discuss the management of the program, other than to say that the record clearly shows the agency went to extraordinary lengths to assure it was both legal and approved — and the CIA halted the program when uncertain. The CIA received legal and policy approvals for coercive interrogations after it provided extensive inaccurate information to the Justice Department, the White House and Congress about their use and effectiveness. The Committee's report documents this inaccurate information in detail. For example, on pp. 217-225, the report describes the CIA's inaccurate claim that coercive interrogations led to the discovery of particular terrorist plots, and on pp. 49-50, 59, and 69, the report describes the CIA's inaccurate claims about the training and qualifications of CIA interrogators. The Democratic staffers who drafted the report assert the program contributed nothing important, apparently to bolster a bogus claim that the CIA lied. The Committee’s report does not assert that CIA interrogations contributed "nothing important." The report evaluates the CIA's repeated claims that its coercive interrogations provided critical "otherwise unavailable" information, and finds that the CIA's own internal records do not support this claim. In all twenty cases that the Committee examined, the CIA had access to the information from more traditional intelligence sources, and later attributed it to the use of coercive interrogations. The man who led the United States to bin Laden, a courier known as Abu Ahmed al-Kuwaiti, was mentioned by earlier sources but only as one of many associates bin Laden had years before This is not accurate. As detailed on pp. 378-400 of the Committee's report, the CIA had substantial intelligence on Abu Ahmed al-Kuwaiti prior to any CIA detainee reporting about him. In particular, CIA records show that in August 2002 a detainee in foreign custody with known links to al-Kuwaiti reported that al-Kuwaiti was "one of a few close associates of Usama bin Laden." The most specific information about the courier came from a detainee, Hassan Ghul, who, after interrogation, strengthened the case by telling of a specific message the courier had delivered for bin Laden to operations chief Abu Faraj al-Libi As detailed on pp. 395-396 of the Committee's report, Hassan Ghul provided the most accurate CIA detainee reporting on bin Laden BEFORE being subjected to the CIA's coercive interrogations. During this period Ghul told CIA debriefers that al-Kuwaiti was bin Laden's "closest assistant" and listed al-Kuwaiti as one of three individuals likely to be living with bin Laden. Ghul also discussed bin Laden's likely living arrangements, and made statements about al-Kuwaiti moving messages to Abu Faraj al-Libi. Some of this information was corroborative of intelligence collected by the CIA in 2002, which was also unrelated to the CIA’s coercive interrogations. Finally, interrogated senior operatives such as Khalid Sheik Mohammed, who by that time was enormously cooperative, lied when confronted with what we had learned about the courier As detailed in the Committee's report, CIA records describe in detail how the CIA assessed KSM was continually uncooperative before, during, and after the use of torture. See pp. 81-96 and 210-216. The staffers who prepared the Senate draft do not appear to understand the role in analysis of accumulating detail, corroboration and levels of confidence in making momentous decisions like the May 2011 Abbottabad operation that killed bin Laden. As detailed throughout the Committee's report, the CIA repeatedly told the Justice Department, Congress and the White House that coercive interrogations were necessary to obtain "otherwise unavailable" information. These statements were not supported by CIA records. In all cases cited by the CIA, the CIA had either obtained the information previously from other intelligence sources, or never obtained it from the detainee in question. If the CIA had said only that tortured detainees provided information that corroborated other sources, or that they repeated information that they had provided before being tortured, this claim would have been accurate. Capturing 9/11 mastermind Khalid Sheik Mohammed. This led to disrupting numerous plots. But the committee says interrogation of detainees did not play a role in getting him because a CIA asset (not a terrorist detainee) helped us. This is astounding to those of us involved in capture operations. In fact, interrogated detainees were essential to connecting the source to Mohammed. The CIA will not permit me to reveal the operational details — a classic problem for intelligence officers seeking to defend against outlandish charges. The capture of Khalid Shaykh Muhammad (KSM) is detailed on pp. 326-333 of the Committee's report. This section clearly explains how a sensitive CIA asset led the CIA directly to KSM, and how the asset's access to KSM was described in CIA records from 2001. This section of the report is based on both contemporaneous CIA internal communications as well as after-action interviews conducted by the CIA's Oral History Project. The CIA officer who 'handled' the sensitive asset and who was directly involved in the capture of KSM described it as "a HUMINT op pretty much from start to finish." (The CIA's claims regarding the role of detainee reporting are discussed in the footnotes to this section.) After interrogation, Khalid Sheik Mohammed told us he transferred money to Hambali via a certain individual to finance attacks in Asia. This triggered a string of captures across two continents that led us to Hambali in Southeast Asia. The capture of Hambali is described on pp. 301-311 of the Committee's report. CIA officials repeatedly told policymakers and the Justice Department that the information about this money transfer was first provided by KSM as a result of the use of the CIA's coercive interrogation techniques. However, CIA records show that the information about the money transfer was first obtained from a detainee in foreign government custody, who was questioned using non-coercive interrogation methods. (See footnote 1721 on pp. 307-308 for the CIA's description of these methods.) The committee says a source run by another country mentioned a plot to use airplanes to strike West Coast targets. But that's all we knew — none of the details needed to stop it. That information came from detainees, starting with Khalid Sheik Mohammed, who told us after interrogation that Hambali would replace him in this plot. The Committee's report discusses this plotting on pp. 246-258. CIA records actually show that this plotting was disrupted in early 2002, and that a CIA detainee in foreign government custody (who was questioned using non-coercive interrogation methods) provided detailed information about the plotting, operatives and proposed method of attack. Of note, the President's Homeland Security Advisor stated in a February 2006 White House briefing that this plot had been disrupted in February 2002, which was over a year prior to the capture of KSM. This drove our effort to find Hambali. As noted on p. 302 of the Committee's report, internal CIA communications described Hambali as the CIA's "number one target" in Southeast Asia a year before the capture of KSM. We located him and found he had recruited 17 Southeast Asians and was apparently trying to arrange flight training for them to attack the West Coast As detailed on p. 255 of the Committee's report, the information that led to the capture of Hambali's brother came from Hambali himself, who provided his brother’s true name and location while still in foreign government custody. Furthermore, the report describes how Hambali's brother provided information about this group of Southeast Asians while in foreign government custody. A wide body of CIA records indicates that this group was not witting of or involved in the "second wave plotting." See p. 247-248 and pp. 483-484. The committee says interrogation played no role in heading off attacks on the Pakistani hotels, where U.S. and other Western visitors stayed. But it leaves out the fact that detainee Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, provided information on how to locate al-Qaeda “safe houses” in Karachi. One of these provided us a letter that tipped us to the plots. That is how those famous “dots” really get connected. As detailed on pp. 239-246 of the Committee's report, the CIA's own records state that the Karachi plotting was disrupted when key captures were made by Pakistani authorities based on "unrelated criminal leads." To drive home their points, the committee frequently cherry-picks documents. It describes officers expressing concern via e-mail that they will be “ostracized” for saying that certain detainees “did not tell us everything.” But the staff leaves out the critical context: The CIA officers were actually discussing their dismay over the agency’s decision to cease the interrogation program, causing the loss of important intelligence information. The Committee's report provides additional context about these communications on p. 213. The interrogator who wrote "I'm ostracized whenever I suggest those two [KSM and Abu Zubaydah] did not tell us everything" also wrote in the same exchange "I think it's a dangerous message to say we could do almost the same without measures. Begs the question -- then why did you use them before?" This interrogator also told the CIA inspector general that KSM had "beat the system" and that KSM responded better to "creature comforts and a sense of importance" than to "confrontational approaches." Many administration and congressional officials ritualistically say we will never know whether we could have gotten important information another way. This is a dodge wrapped in political correctness The Committee's report does not conclude that the answer to this question is unknowable. The report systematically examines the top twenty examples that the CIA used to justify its use of torture. In each of these twenty cases the CIA's claims were verifiably inaccurate – in every case the information that CIA officials later attributed to coercive interrogations was actually obtained from other sources. (See pp. 172-401 of the Committee’s report.) The point is we did succeed in getting vital information — during a national emergency when time was limited by the great urgency of a clock ticking on the next plot. Terrorists had just killed thousands of Americans, and we felt a deep responsibility for ensuring they could not do it again. We succeeded. The Committee's report includes substantial information about the counterterrorism threats faced by the United States, and the successes that the CIA and other US government agencies had in uncovering and disrupting those plots. The report also details how CIA officials often inaccurately claimed that coercive interrogations had produced "otherwise unavailable" information that was key to disrupting these plots. As detailed on pp. 172-401 of the Committee's report, these statements are not supported by CIA records. The release of this report finally makes the facts about torture available to the American public, and is an important step toward making sure that the US never repeats these mistakes. Another important step is calling out the defenders of torture any time they distort or deny the facts. Correcting years of misrepresentations from these officials is the only way to ensure the informed public debate that is necessary to keep America safe.Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
Yes, all the attention these days about the Sony hack is on the decision to not release The Interview, but it still seems like the big story to come out of the hack is the sneaky plans of the MPAA in its bizarre infatuation with attacking the internet. We've already covered the MPAA's questionably cozy relationship with state Attorneys General (to the point of both funding an investigation into Google and writing documents for those AGs to send in their names), as well as the continued focus on site blocking, despite an admission that the MPAA and the studios still don't have the slightest clue about the technology implications of site blocking. Last week, TorrentFreak noted the various options that were under discussion by the MPAA for blocking sites, and now The Verge has published more information, including the analysis by MPAA's favorite hatchetmen lawyers at Jenner & Block about how site blocking might work in practice [pdf] by breaking DNS. For years, actual technology experts have explained why DNS blocking is a really bad idea, but the MPAA just can't let it go apparently. It's just, this time, it's looking for ways to do it by twisting existing laws, rather than by getting a new SOPA-like law passed. To understand the plan, you have to first understand the DMCA section 512, which is known as the safe harbor section, but which includes a few different sections, with different rules applying to different types of services. 512(a) is about "transitory digital network communications" and basically grants very broad liability protection for a network provider who isn't storing anything -- but just providing the network. There are good reasons for this, obviously. Making a network provider liable for traffic going over the network would be a disaster for the internet on a variety of levels. The MPAA lawyers appear to recognize this (though they make some arguments for getting around it, which we'll get to in a follow-up post), but they argue that a specific narrow attack via DMCA might be used to force ISPs to break the basic internet by disabling entries in their own DNS databases. The trick here is twisting a different part of the DMCA, 512(d), which is for "information location tools." Normally, this is what's used against search engines like Google or social media links like those found on Twitter. But the MPAA argues that since ISPs offer DNS service, that DNS service is also an "information location tool" and... ta da... that's how the MPAA can break DNS. The MPAA admits that there's an easy workaround for end-users -- using third-party DNS providers like OpenDNS or Google's DNS service -- but many users won't do that. And the MPAA would likely go after those guys as well. At the same time, even this narrow limitation on ISPs’ immunity could have the salutary effect of requiring ISPs to respond to takedown notices by disabling DNS lookups of pirate sites through the ISPs’ own DNS servers, which is not currently a general practice. Importantly, the argument for such a requirement need not turn on the Communications Act, but can instead be based on the DMCA itself, which expressly limits ISPs’ immunity to each “separate and distinct” function that ISPs provide. See 17 U.S.C. § 512(n). A reasonable argument can be made that DNS functionality is an “information location tool” as contemplated by DMCA Section 512(d) and, therefore, that ISPs are required, as a condition of the safe harbor, to cease connecting users to known infringing material through their own DNS servers. Should this argument hold – and we believe that it has a reasonable prospect of success – copyright owners could effectively require ISPs to implement a modest (albeit easily circumvented) form of DNS-based site blocking on the basis of only a takedown notice rather than litigation. In short, since DMCA takedown notices apply to "information location tools," but not to "transitory network communications," the MPAA would like to argue that just the DNS lookup functionality is an information location tool -- and can thus be censored with just a takedown notice. This is both really slimy (though brilliant in its nefariousness) and insanely dangerous for the internet and free speech. We see so many bogus DMCA takedowns of basic content today, and here the MPAA is looking to effectively, and sneakily expand that to whole sites by misrepresenting the law (badly). DNS is not an "information location tool" in the sense of a search engine. It's the core underpinning of how much of the internet works. At no point in the 16 years the DMCA has been around has anyone made an argument that the DNS system was covered by the "information location tools" definition. Because that's clearly not what it was written to cover. The MPAA's lawyers (in this "confidential" memo) appear to recognize that this argument doesn't fully make sense because of that, but they seem to think it's worth a go: To be sure, the argument is not guaranteed to succeed, as unlike a “pointer” or “hyperlink text,” DNS provides a user’s browser with specific information (IP routing information) that the user has requested by other means (alphanumeric internet addresses), as opposed to providing the user with an active interface allowing the user to request information online, as they might from a clickable page of search results. But at least in the literal sense, DNS appears to fit within the list of Section 512(d) functions and a reasonable argument can be made that DNS is more like a “directory” than the provision of “routing” and should be treated accordingly under the statute as a Section 512(d) function rather than a Section 512(a) function. Pushing this argument would raise many of the problems found with the original DNS-breaking proposal in PIPA/SOPA. It would raise even more serious questions about the First Amendment and prior restraint. Effectively, it would be moving the definition of "information location tool" down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement. Someone uploaded an infringing video to YouTube? Under this interpretation, the MPAA can force Verizon to make YouTube disappear from the internet for all users relying on Verizon's DNS. The censorship implications are massive here, especially with no court proceeding at all. This wouldn't require anything in court -- just a single takedown notice, of which copyright holders send millions. Rather than sending all those notices to Google and getting them delisted from search, copyright holders could turn the firehose towards Verizon, AT&T and Comcast, and basically take down half the internet on their say so alone. Yes, sites could counternotice, but ISPs would have 10 business days in which they can keep sites off their DNS entirely. The results would be insane. And that doesn't even touch on the technical havoc this would wreak. As we've noted earlier, the MPAA admits it's not clear on the technical implications of this plan, but let's just point back to Paul Vixie's discussion of how SOPA/PIPA would break the internet by mucking with the core DNS functionality, no matter how it was implemented. What this goes back to is the core purpose of DNS, which is merely to translate a URL into a numeric equivalent to connect. It's not an information location tool for helping people "find" information -- it's just the basic plumbing of how the internet works. It's how basically all pieces of the internet expect to work. If you put in a URL here, then DNS returns the proper IP addresses to follow through there. Breaking that, effectively fracturing the internet, and creating a patchwork of different DNS systems would create a huge list of problems not easily fixed. And, yet, because the MPAA can't figure out how to adapt to the times, it appears to be willing to give it a shot. Because, hey, it's better than innovating.Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
Last month, AT&T entered an amicus brief in the US v. Quartavious Davis case, arguing that law enforcement shouldn't be allowed warrantless access to cell site location data. AT&T's entry into the privacy battle comes after a lengthy silence during which it was very obliging of government requests for customers' data. The crux of its argument was this: Nothing in those [prior court] decisions contemplated, much less required, a legal regime that forces individuals to choose between maintaining their privacy and participating in the emerging social, political, and economic world facilitated by the use of today's mobile devices or other location-based services." That's where we are, as far as private citizens are concerned. The government, through its thorough exploitation of the Third Party Doctrine, has basically forced the public to choose between allowing warrantless access to tons of their data (and metadata) or living some sort of off-the-grid lifestyle that doesn't involve generating "business records" via cell phone, internet service, etc. Some judges and justices have noted that today's connected world would be completely unrecognizable to the judges who made the decisions the government relies so heavily on: namely, Smith vs. Maryland (1979). The DOJ has entered its brief [pdf link] for the Eleventh Circuit Court's en banc re-hearing of US vs. Davis (2014), and it again attacks the defendant's assertion that he has an expectation of privacy in his cell phone records. While the government does make a good point that it's difficult for Davis to claim privacy expectations in a phone he refused to admit was his, it goes on to attack the premise that anyone has any expectation of privacy in their cell phone records. (All emphasis the DOJ's.) Davis may not make out a right to be secure in someone else’s “papers,” see U.S. Const. amend. IV, by complaining that those papers contained “his location data.” Evidence lawfully in the possession of a third party is not his, even if it has to do with him. Indeed, so far as the Fourth Amendment is concerned, Davis could not have prevented MetroPCS from producing the records in question even if they were his. Here, the government argues that the records you generate by using a cell phone are not yours, nor will they ever be. They belong solely to the company that retains them and, as such, can be obtained with a minimum of paperwork or effort. It expands a bit on this argument a little later in the brief, but the underlying assertion is clear. These records are yours in the fact that they can identify you, but they are not yours should you seek to control access to them. Certainly Davis could not have prevented the provider from turning over the records, but that skirts some of the issues with this case. AT&T argued that the information it collected was sensitive enough that it should require a warrant to obtain. The government could still obtain these records (as it argues here), but it would need to reach the slightly-higher bar of "probable cause," rather than a court order or a subpoena. The government leans on the nearly 40-year-old Smith decision as a prelude to its longer dismissal of any additional privacy expectations. In general, courts have held that phone customers could not have maintained an actual expectation of privacy in routing-related business records made by a phone company to document transactions to which it was a party. See Smith, 442 U.S. at 741-43, 99 S.Ct. at 2580-82; United States v. Gallo, 123 F.2d 229, 231 (2d Cir. 1941). There is no cause to take a different view as to cell tower records. The DOJ may say that cell phone records are pretty much the same as they've always been, but the dates of the cases cited don't bear this out. One decision is 35 years old. The other is 73 years old. Phone records used to be limited to phone numbers only. Now, they carry additional data, including location -- something that definitely wasn't on the courts' radar 40-70 years ago. The DOJ then nails the point home, indicting US citizens as complicit in the removal of privacy expectations. At any rate, Davis is not in a good position to complain that the government improperly obtained “his location data,” since he himself exposed and revealed to MetroPCS the very information he now seeks to keep private—i.e., the general vicinity information circumstantially inferable from cell tower records "Exposed" and "revealed" are pretty harsh terms for something citizens are forced to give up in order to use cell phones. Without a doubt, many would like to keep this information private, but are unable to do so because even though they generate the records, they ultimately have no control over their distribution. Not only that, but they have considerably less access to records they've generated than law enforcement agencies do. The Third Party Doctrine has managed to turn the American public into handy little data generators -- data that the government can avail itself of with nothing more than a subpoena. The government further asserts that Davis' stated "ignorance" of the fact that cell providers collect and store location data gives him no reason to claim an expectation of privacy. And this is true. Ignorance isn't a worthwhile excuse. But many of us do know providers store this information and yet, there's nothing that can be done about it other than to forgo the use of a cell phone altogether. That's almost an impossibility in this world, but the government maintains the stance that all of this is optional -- that we willingly create a wealth of data for third parties that can be accessed by law enforcement with minimal paperwork, let alone oversight. These are records we have no control over and yet the government is willing to use these against us while pretending we somehow have a choice in the matter. Notably, the government also leans heavily on the Stored Communications Act to bolster its arguments -- a 30-year-old law that still treats email over 180 days old as not worthy of a warrant. Again, times have changed but applicable decisions and laws haven't. As it stands now, your life -- as stored by third parties -- is an open book. This isn't a great test case for privacy expectations in cell phone records. Davis refused to admit ownership of the phone linking him to the string of robberies, taking a lot of the wind out of his Fourth Amendment sails in the progress. Like the Dread Pirate Roberts/Silk Road case, the government has used the denial of ownership to undercut Fourth Amendment concerns (Ulbricht has denied the servers infiltrated by the FBI are his). Defendants are basically being put in the position of incriminating themselves or abandoning any privacy arguments -- an unenviable position. But the fact remains that location data can reveal far more about a person than the government is willing to admit. It's not simply a "business record." It's a roadmap to a person's connected existence. There should be an expectation of privacy, especially when the data gathered covers a span of days or weeks. But so far, the laws and the courts back up the government's third party assertions.Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
Back in 2010, Taylor Bell -- an aspiring rap artists and student at Itawamba High School in Mississippi -- heard from others students that two of the school's coaches were making inappropriate comments and sexual overtures towards female students. Realizing (correctly, it would seem) that the school's administrators would do little to address the situation, he recorded a rap song about the touchy-feely (but in a bad way) coaches while off on Christmas break and posted to Facebook. Upon his return to school, he was suspended by school officials, who claimed the song "threatened, intimidated and harassed" the two coaches named in the track. They also claimed the track was a "disruption." This is contradicted by accounts of the disciplinary meeting, as recounted by the Fifth Circuit Court of Appeals. At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school's work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when (Coach Michael) Wildmon had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption. Despite this lack of evidence, Bell was suspended from the school and all extracurricular activities and forced to attend an alternative school for nine weeks. The lower court upheld this suspension, granting the school summary judgement and stating these actions did not violate Bell's free speech rights. The appeals court found otherwise, pointing to the lower court's clumsy application of the Tinker Test, a Supreme Court decision that considered where students' free speech rights end and "disruptive speech" begins. According to the appeals court, the school failed to provide evidence that Bell's rap song disrupted school operations. Viewing the evidence in the light most favorable to the School Board, there was no commotion, boisterous conduct, interruption of classes, or any lack of order, discipline and decorum at the school, as a result of Bell's posting of his song on the Internet… Indeed, the School Board's inability to point to any evidence in the record of a disruption directly undermines its argument and the district court's conclusion that the summary-judgment evidence supports a finding that a substantial disruption occurred or reasonably could have been forecasted. At the preliminary injunction hearing, Wildmon explained that his students "seem[ed] to act normal" after the posting of the song, and Rainey testified that most of the talk amongst students had not been about Bell's song but rather about his suspension and transfer to alternative school. No evidence was offered that Bell or any other student listened to the song on campus, aside from the single instance when Wildmon had a student play the song for him on his cellphone. As for the school board's argument that Bell's song (which can be found in its entirety in the ruling, along with some entertaining footnotes) was a "true threat," the evidence presented by the school undermines this claim as well. The School Board's additional argument that Bell's rap song falls within the "true threat" exception to the First Amendment is likewise meritless. As explained infra, Bell's rap was not a plainspoken threat delivered directly, privately, or seriously to the coaches but, rather, was a form of music or art broadcast in a public media to critique the coaches' misconduct and also in furtherance of Bell's musical ambitions. Moreover, Bell's rap was not an unconditional threat that Bell himself would physically harm the coaches; at most, the song amounted to a conditional warning to them of possible harm from the female students' family members if they continued to harass the young women. Finally, as evidenced by the reactions of the listeners themselves, there was no reasonable or objective ground for the coaches to fear that Bell personally would harm them. Indeed, the "threat" was so "true" that officials allowed Bell to remain on campus until the end of the school day. He wasn't suspended until nearly a week later, following a weather-related school closure. This is what the school's thin skin has netted it after two years of courtroom battling: a judgment in favor of Bell, awarding him nominal damages, court costs, attorneys' fees and an order to expunge this suspension from his record. This court battle sprung out of a school's desire to view Bell's criticism as a threat. This behavior bears out Bell's assertion that bringing the coaches' misconduct to the attention of school officials would have gone nowhere. So, he addressed it in his own way, simultaneously working towards his goal of becoming a rap artist. To be sure, the song is vulgar (h/t Venkat Balasubramani) and occasionally very ugly, but so are the accusations. The medium itself often indulges in profanity and violence for its own sake, but in certain situations, nothing else is quite as effective in getting the point across. Bell's track achieved its goal -- more awareness about certain coaches' activities. It also highlighted his school's inability to deal with criticism or respect its students' rights -- something that's far too common in schools across America. The rise of social media has given more students a platform for expression and school administrators are having a hard time adjusting to the new reality. Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
After spending the last few years suing the hell out of every and any disruptive TV innovation on the horizon (from Dish's Hopper to Aereo), CBS recently announced the launch of its own "All Access" streaming video service. The service, only available in 14 metro markets, lets users view CBS content the day after it airs on traditional television -- with advertisements included. It's a somewhat shaky value proposition, and when pushed this month to disclose how many subscribers the service has signed up since its October launch, CBS CEO Les Moonves not only refused to get specific, he felt the need to throw a jab at Netflix:"Moonves would say only that CBS All Access was “ahead of projections,” but acknowledged that could mean as few as 10 subscribers...I've been extremely impressed with the product,” he said, adding that its subscriber base would grow as more affiliates sign up to provide a live feed of their stations’ programming over broadband...Pressed for a hard number of subscribers, Moonves replied, "When Netflix tells you how many people are watching House of Cards, we’ll tell you how many subscribers we have."It should be fairly obvious that when you're a subscription service, ratings matter less than when you're a traditional broadcaster dealing with advertisers, but this faux outrage at Netflix secrecy was the tone CBS took for much of last week. Case in point is CBS's chief researcher David Poltrack, who couldn't help taking shots at Netflix's original series viewership numbers:"The average adult watches 5.2 hours of content on Netflix per week, 3 hours of which are spent watching television programming of some kind. Netflix’s original series account for 6.6 percent of that viewing, David Poltrack, CBS chief research officer, said at a UBS conference today in New York. "Self-reported behavior is always subject to error,” Poltrack said. “But it’s all we have. If Netflix disagrees with anything I’m about to report, I welcome them to provide anyone with the correct numbers."The irony is that CBS is part of an industry that's been intentionally burying its head in the sand when it comes to emerging cord cutting trends for years now, with companies like Nielsen lagging on tracking viewing on tablets and phones, and often obscuring data that tells the industry things it doesn't want to hear. Namely, that the current cable TV cash cow model has a hard expiration date that's coming up faster than executives think. Now contrast CBS's ratings and secrecy-obsessed mindset to Netflix, which points out that ratings aren't as important to the company because they can hinder the creation of good content:"The reason we don’t give ratings is not to frustrate the press,” said (Netflix chief content officer Ted) Sarandos. “It’s an irrelevant measure of success for us."..."Maybe it has been necessary for the business of entertainment, but it’s been terrible for the creative side of television," he said. "I do think that the ratings discussion has been negative for television."The end result has been the heavy catering to the lowest common denominator (oh hi, didn't see you standing there, reality television). Note that Netflix isn't saying ratings are worthless, just that they've traditionally been taken too seriously, and this logic only extends so far. Netflix last week premiered its $90 million magnum opus "Marco Polo." It has the second-most expensive budget on television right now, behind only HBO's "Game of Thrones." Early reviews are rather mixed and Netflix obviously isn't going to ignore viewership numbers for a venture of that scope, but the point remains that the traditional cable and broadcast industry has been so obsessed with ratings (quite often incorrect ratings telling them what they want to hear), it has sometimes struggled to see the forest for the trees.Permalink | Comments | Email This Story

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The commissioners of a small Tennessee town have just voted to ban negative comments about it from social media. This stupid move was prompted by "criticism and lies" being posted online, which supposedly "hampered" the town's government from performing its duties. South Pittsburg City is a town of 3,000. This fact will limit the damage done by its city commissioners' new policy (which passed with 4-1 vote), but only because the town itself is tiny. The ban, however, is super-broad. (via Ben Swann and BRACE YOURSELF for always-awesome AUTOPLAY) It applies to all city elected representatives, appointed board members, employees, volunteers, vendors, contractors and anyone associated with the town in an official capacity who uses social networks. The policy says those persons can't post anything negative about the city, its employees or other associates. Examples include posted videos, blogs, online forum discussions, Facebook and Twitter, Commissioner Jeff Powers said. Now, it's obvious that this ban violates the First Amendment rights of everyone involved. It's obvious to the lone dissenting voter, Paul Don King. It's not so obvious to the rest of the commissioners, who have offered a variety of terrible defenses the new policy. Commissioner Jeff Powers: "It seems like every few meetings we're having to address something that's been on Facebook and created negative publicity," he said. "This is just an industry standard nowadays." Oh, lord. Have you ever heard of such a slight inconvenience? "Every few meetings." Sounds exhausting. If he thinks it's a drag dealing with negative comments periodically, just wait until he has to actively police social media for violators. One, you're a government, not an "industry." So, that makes this move censorship rather than some sort of half-assed town TOS. It's called prior restraint and it's something the Supreme Court has recognized as a violation of First Amendment rights. You can't just tell any group of people they can't criticize the town or its employees/"other associates." That's not an "industry standard." It's not even a "government standard." Criticism is to be expected, not shut down. Powers follows that up by attempting to clarify the situation, but only makes it more incomprehensible. Powers said the policy doesn't forbid the use of social media, and it can be amended in the future. "The first thing everyone wants to say is 'I can't post anything on Facebook,'" he said. "Well, you can. Just not [anything] that sheds a negative light on any person, entity, board or things of that nature. You can go ahead and post all you want." Oh, OK. You're not banning anyone employed by or doing business with the city from using social media. You're just forbidding them from criticizing anyone employed by or doing business with the city. You can "post all you want" EXCEPT. And "fixing it in post" with amendments isn't a great way to run a town's government. The idea is to produce good policies and statutes, not bad statutes that need to be amended (or rolled back) before they can mesh with the Constitution. City Attorney Billy Gouger said the new policy is not intended to infringe on anyone's right to free speech. "What this policy tries to do is reconcile that right with other rights," he said. "It does, to some extent, limit your ability to criticize or comment in an official capacity." I am completely lost as to how Gouger has managed to reconcile the policy he passed with the words he's saying in defense of it. It is definitely "intended to curtail free speech." Free speech is the opposite of this policy's wording. How is "limiting your ability to criticize or comment" not a limit of free speech? Because it's in an "official capacity?" Even if that limitation manages to pass Constitutional muster (and good luck!), the limitation is effectively meaningless because the range of people this policy covers is so broad. "Volunteers, vendors and contractors" are still private citizens even if they're doing business with the town. If you want to write individual agreements with each of these listed parties stating that doing business with (or being employed by) South Pittsburg City means not criticizing South Pittsburg City, then by all means do so. These parties can waive their rights, but it's still their choice. You can't just take it away. That (again) is prior restraint -- something that is exactly a "limit on free speech." Finally, some words of "wisdom" from the mayor herself. "Criticism is one thing," Mayor Jane Dawkins said. "Out-and-out lies and untruths -- that's another thing. Those kinds of things are the things that will be directed." Hey, there's a civil process for dealing with lies and untruths. Try using that instead. Libel and defamation are not protected speech and any of the four easily-bruised members of the city commission should avail themselves of that remedy. Shutting people up with a stupid, unconstitutional policy isn't the answer, no matter how small your town is. That the number of people whose free speech rights have just been constrained will likely be low is no excuse. It's still what it is: censorship in the form of prior restraint. Permalink | Comments | Email This Story

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Although most attention has been given to the Trans-Pacific Partnership agreement (TPP) and the Trans-Atlantic Free Trade Agreement (TAFTA), also known as TTIP, it's important to remember that a third set of global trade negotiations are underway -- those for the Trade in Services Agreement (TISA), which involves more countries than either of the other two. Like TPP and TAFTA/TTIP, TISA is being negotiated in strict secrecy, but earlier this year the financial services annex leaked, giving us the first glimpse of the kind of bad ideas that were being worked on. Now, another leak has surfaced, which reveals the US's proposals to free up data flows online. For the European Union, that's a hugely sensitive issue. Under data protection laws there, personal data cannot be sent outside the EU unless companies sign up to the self-certification scheme known as the Safe Harbor framework. However, in the wake of Snowden's revelations about NSA spying in Europe, the European Parliament has called for the Safe Harbor scheme to be suspended. If that happens, the only way that US Internet companies could comply with the EU Data Protection Directive would be to hold personal information about EU citizens on servers physically located in Europe. But it is precisely that kind of requirement the leaked TISA position seeks to forbid: Article X.2: Local Content l. Subject to any conditions, limitations and qualifications set out in its Schedule, no Party may, in connection with the supply of a service by a service supplier, impose or enforce any requirement; enforce any commitment or undertaking; or, in connection with the supply of a service through commercial presence, condition the receipt or continued receipt of an advantage on compliance with any requirement: (a) to purchase, use or accord a preference to: ... (iii) computing facilities located in its territory or computer processing or storage services supplied from within its territory; Another section would stop countries from imposing any restrictions on data flows: Article X.4: Movement of Information No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party's territory, where such activity is carried out in connection with the conduct of the service supplier's business. It comes as no surprise that the US is pushing for the unhindered cross-border flow of all data, including personal data: it's what both the USTR and US companies have been demanding for a while. But it's going to be hard to get the European Union to agree to such a direct attack on its privacy framework. The European Commission has publicly stated that TISA will not undermine the EU's data protection laws. Moreover, just a few hours after the TISA leak was published, the EU politician with responsibility for TISA in the European Parliament, Viviane Reding, tweeted as follows: As @EP_Trade Rapporteur on #TiSA, I'll oppose any provision undermining right to data privacy: competition by the rules, not for the rules! With such entrenched positions on both sides, it's hard to see how any kind of compromise will be possible. The imminent battle between the US and the EU on this key issue in TISA will doubtless be fun to watch; what a pity it will happen in secret, behind closed doors. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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The Motion Picture Academy is notorious for being quite litigious, particularly when it comes to anything to do with the Oscars. Hell, even websites essentially promoting the Oscars get sued by the Academy, because why the hell not? And don't you dare try to sell your tickets to the Oscars on the secondary market. But even with all of that, I wouldn't have expected to see the Academy assert that they own the award hardware they hand out to Oscar winners, including after the death of those winners. Confused? Check this out. The Academy of Motion Picture Arts and Sciences has lined up a new lawsuit, painting the picture of a cinematographer's heir who ignored bylaws by selling a statuette on eBay. The statuette was awarded in 1953 to Robert Surtees for excellence in black-and-white cinematography for the film, The Bad and the Beautiful, which starred Kirk Douglas and Lana Turner. More than 60 years later, the Film Academy is in court after Carol Surtees allegedly auctioned the statuette for $40,500. The Academy makes its members agree that it has a "right of first refusal" if the statuettes are ever sold. To prevent a black market for the famous trophies, the Academy believes itself entitled to purchase the statuettes for $10 in the event they are ever sold. Carol was the wife of Bruce Surtees, who in turn was the son of Oscar winner Robert Surtees. In other words, the Oscar statuette from 1953 had been passed down to Carol after her husband and father-in-law had both passed away. She's the widow of the winner's son. The point of me driving this home is that, even if we pretend that it makes sense for the Academy to be able to claim that an item worth thousands of dollars must first be offered to them for the price of 2/3 of a ticket to one of their movies, that agreement would have been with the award winner, not his or her heirs. In this case, the statuette had been passed on twice thanks to the grim reaper doing his thing. In what world does it makes sense for Carol Surtees to have to follow bylaws to which she never agreed? Not that this lack of logic is keeping the Academy from suing for every last dollar she got for the statuette. You can read the full lawsuit [pdf and embedded below]. The Academy alleges that it sent a letter to Surtees on December 5, spoke on the phone with her on December 12, and despite reminders about the right of first refusal, the auction happened on or about that latter day. She's now being sued for breach of contract. The lawsuit also names John Does, who are being sued for alleged tortious interference. The Academy demands at least $40,500 in compensatory damages, punitive damages, and an order that the Oscar be put in a constructive trust, among other demanded relief. I just can't seem to grasp how someone can be in breach of a contract to which they were not party. The Academy can assert they have these rights all they want, but I can't seem to find any reference to why those rights should exist with respect to Carol Surtees. Permalink | Comments | Email This Story

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Visual illusions can be fun to observe, and there are countless examples that trick human perception into seeing things that aren't real. However, other senses can also be fooled. As computer interfaces try to engage more senses (eg. touch, spatial awareness, etc), there may be interesting applications for tricking human perception for virtual reality environments. We may also just learn more about how our brains work. Here are just a few illusions that might seem creepy or cool, depending on your point of view. The Rubber Hand Illusion (RHI) is a trick that fools your brain into thinking that a fake rubber hand is actually your own hand -- causing the person to recoil if the rubber hand is attacked or threatened. You can re-create this illusion yourself at home -- if you have a realistic-looking rubber hand just lying around. [url] An interactive project creates a 15-minute simulation of what it might feel like to have Parkinson's disease. Using a combination of video and a haptic feedback glove, this augmented reality setup expands on the Rubber Hand Illusion to trick a person into feeling involuntary hand tremors. [url] For many years, some people have reported mysterious or supernatural feelings of a ghost-like presence, and oftentimes these experiences are accompanied by medical conditions such as epilepsy, stroke or other neurological disorder. Researchers studying this strange brain illusion have developed a robot that can induce the feeling in healthy people, and this experimental device could make it easier to study this "phantom presence" phenomenon. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Back in June we wrote about Google's "End-to-End" project to enable full (real) end-to-end encryption in email via a Chrome extension. For years now, we've been among those arguing that Google should actually offer end-to-end encryption by default (which would make the company unable to read your emails). This isn't going that far, but making it much easier for individuals to truly encrypt their own emails (without any backdoors for the email provider) is definitely a big step forward. So it's good to see that the company has now moved the project to GitHub, and that Yahoo's Chief Security Officer, Alex Stamos, has been contributing to the project as well. Having two of the biggest webmail providers working together on an open source system for better encrypting emails end-to-end is a huge win for privacy and security. The project is still in its early days, and Google warns that it's not yet ready to release the extension in the Chrome Web Store, but it's great that things are moving forward. Of course, for those of you who can't wait, there already some extensions like Mailvelope that are pretty easy to use (though, some worry are not quite as secure as other options).Permalink | Comments | Email This Story

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Back in October, we pointed out the pointlessness of focusing on who sent more comments to the FCC over net neutrality, as there appeared to be a whole lot of astroturfing and misleading tactics being used to ratchet up the counts. That didn't mean that the commenting and looking at the information wasn't useful -- it is -- but there was little value in a purely "numbers" based focus on how many comments were filed from those "for" or "against." With so many coming from various online forms, the weight they would have on the final FCC decision is about as close to nil as possible. However... an interesting sort of fight has broken out about all of this. The Sunlight Foundation released an analysis this week of the second round of FCC comments on net neutrality (technically these are supposed to be "in response" to the first round, but they were basically just another chance to say the same things all over again. The Sunlight Foundation noted that this time, an anti-net neutrality group (the same one we discussed as our example of totally misleading crap being pushed in the FCC's direction) apparently convinced many hundreds of thousands of people to send in one of its incredibly misleading comments, all of which will be promptly ignored. The Sunlight Foundation's analysis claimed that the majority of the comments in round two came from this group, American Commitment, which completely incorrectly told people that net neutrality was about a "left-wing extremist..." "takeover of the internet." Which, frankly, is bullshit. You can disagree with net neutrality without lying, but American Commitment didn't seem to be able to do that. Still, its lies certainly did convince lots of people to click "send" on its outrage-o-matic machine. American Commitment then took the Sunlight Foundation's announcement and literally declared itself the winner of who filed the most comments. Except... not only were there clear limitations in the data, which the Sunlight Foundation got from the FCC's public release, many on the pro-net neutrality side started pointing out that the numbers are clearly incorrect. They know how many letters were sent from their side -- and the numbers from the FCC's release (which Sunlight used) appeared to vastly undercount the actual filings. Fight for the Future then dug into the data itself and argued that the FCC and Sunlight Foundation screwed up in counting the comments, "dropping at least 244,881 pro-net neutrality comments." The Sunlight Foundation shot back that it thinks Fight for the Future made its own mistakes in the data analysis. Finally, I've spoken to multiple people inside the FCC who are now admitting that something clearly went wrong with the data that it released -- so it's going back and doing a recount itself. We should know more on the results soon, but it sounds like there's a good chance that the original data that Sunlight relied on may have had some problems. There are two big takeaways from this, neither of which are really related to all the sniping going on: The exact count still doesn't fucking matter. This isn't a popularity contest. It's about doing what's right for the future of the internet and the American public who uses it. The FCC's technology needs a massive upgrade. The technology that the FCC uses to bring in these comments is decades old and is simply not designed (at all) for this level of public participation. And the problem there is Congress, which refuses to allocate any budget at all to the FCC to improve its own computer systems. This was part of the reason why the whole system went down during the first comment period. And no matter what you think of the FCC, at the very least we should be able to agree that better transparency and openness is important, and to do that, the FCC should have computer systems that were at least built in the modern era. Other than that, this whole numbers game of who hit the outrage-o-matic button harder seems like a distraction from the main point: the future of the internet.Permalink | Comments | Email This Story

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We've written a few times about the long-standing class action lawsuit against Apple over whether its DRM efforts, designed to block out RealNetworks' attempt to reverse engineer a way into the iPod, violated antitrust law. As we noted recently, despite the case going on for years, the class action lawyers who brought the lawsuit ran into a bit of a stumbling block recently when it came out that none of the named plaintiffs were actually in the class, having purchased iPods outside the window which the class covered. The judge let the lawyers find a new plaintiff just a few days ago, but it certainly looks like the rotating plaintiffs issue may have helped Apple. The jury wasted little time in siding with Apple and saying that there was no antitrust violation. Apple's lawyers played up the plaintiff problem: “There’s not one piece of evidence of a single individual who lost a single song, not even a complaint about it,” said William Isaacson, Apple’s lead lawyer in the case. “This is all made up at this point.” There was a lot of interesting side notes to this case, but the failure of the class action lawyers to have an actual plaintiff was a pretty big deal -- and basically made it clear that these lawyers were just in this for the money, rather than to right some sort of wrong. And, while I'm generally interested in the idea that DRM could potentially be seen as anti-competitive, the fact that this case was about iTunes and RealNetworks kind of highlights how infrequently antitrust law makes sense in the tech industry. The entire digital music ecosystem has changed dramatically since the case began. While iTunes is certainly still a big player, it's facing serious competition on a variety of different fronts including from streaming services like Spotify (one reason why Apple purchased Beats Music). Competition comes in all different ways, and even if you're dominant today, it doesn't mean you'll be dominant very long.Permalink | Comments | Email This Story

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We've long known the Justice Department's stance on transparency has been hypocritical and disingenuous. But they've really outdone themselves this time. Last week, the agency secretly helped kill a bipartisan Freedom of Information Act (FOIA) reform bill that was based word-for-word on its own policy. First, a little background: In a surprise to some, the very modest FOIA Improvements Act died in Congress last Thursday, despite virtually unanimous support in both houses. The bill was completely uncontroversial. It merely would have upgraded agencies' ability to accept FOIAs electronically and codified existing policy—mainly President Obama's now infamous January 20, 2009 memo in which he ordered federal agencies to operate under a "presumption of openness." All Speaker John Boehner had to do on the last day before Congress adjourned for the year was bring the bill up for a vote, and it would've been whisked through to the President's desk. A similar bill had already passed the House unanimously earlier in the year. Yet for some unknown reason at the time, he didn't. On Tuesday, the Washington Post reported on the inside story behind the last-minute death of the bill, and the blame centers on the Justice Department: According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the "foreseeable harm" requirement as the basis for frequent lawsuits. The "foreseeable harm" section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause "foreseeable harm" if released. Not exactly a tall order. But what makes the Justice Department's objection so shocking is that this "foreseeable harm" provision would not deviate at all from the Justice Department's own policy. In fact, it was based on it. In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama's aforementioned transparency order by rescinding the Bush DOJ's more restrictive FOIA rules and designating new ones. From that moment on, Holder declared: [T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law. Now read full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to: An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law As can be seen, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they're not supposed to be defending those lawsuits in the first place? The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to—or have to—comply with its own FOIA rules. The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed he wanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he's claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter's privilege in the Fourth Circuit But this most recent development is just beyond the pale. We had a feeling that the Justice Department was behind the initial delay in getting the bill passed months ago after receiving a tip from a knowledgeable source. In July we filed a FOIA request for emails between the Justice Department and the offices of the FOIA bill's co-sponsors John Cornyn and Patrick Leahy that discuss the agency's position on the bill. We've been waiting six months and still have gotten no response. Now we know why. Reposted from Freedom of the Press Foundation Permalink | Comments | Email This Story

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As we've noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough? There are some who are claiming that the courts have effectively "solved" the problem -- so no new legislation is needed. Of course, it seems interesting to me that these same individuals often appear to be those who insisted there never was a problem in the first place -- and who are also arguing that the courts have gone too far. Economist James Bessen -- who has done tremendous work in detailing the problems of patent trolls -- has an article in the Atlantic where he notes that, for all the positive advancements thanks to the Supreme Court, there's still much more to be done, as plenty of patent trolling lives on: But don't shed too many tears for the patent trolls just yet. While these changes are a real positive step, they are also limited. While it's true that the Patent Office is granting several hundred fewer business method patents each month, it is still granting record numbers of software patents overall. Most of the litigation is over software patents, not business method patents: One study estimates that business method patents constitute only 10 percent of the patents used in lawsuits by “non-practicing entities” including patent trolls. And while the number of lawsuits has decreased, there are still over four times as many as in 1990, before the surge in software patenting began following court decisions in the mid-1990s. Furthermore, Matt Levy of the Computer and Communications Industry Association told me that in only one case has a victorious defendant recovered legal costs—thanks specifically to the April Supreme Court decisions. It’s possible that the Supreme Court decisions will eventually have a greater impact on patent trolls than they have so far. For example, the Alice decision pertains to abstract software patents generally, not just to business method patents. It all depends on how the lower courts, particularly the Court of Appeals for the Federal Circuit, interpret and apply these decisions. But that is the very court which has allowed so many broad and vague software patents starting from the 1990s. Indeed, the efforts by the Supreme Court have been helpful in moving things in the right direction, but so far it's only been a slight course shift, rather than really fixing the underlying problems of the patent system. Trolls are still able to get away with shaking down companies over questionable patents, because it's still ridiculously expensive to fight back -- even if there's a marginally better chance of recovering fees in truly egregious cases. Too many questionable patents are still getting through, and even if courts may finally be more willing to reject questionable "on a computer" patents, it's still a risky and expensive proposition to go to court. Patent trolling is still a serious problem that many actual innovators face. The Supreme Court may have opened the door to fixing some of the very worst problems, but that doesn't mean all of the problems have gone away. In fact, nearly all of the problems are still there in some form.Permalink | Comments | Email This Story

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If you're a sports fan, you have probably heard about the spate of players in several leagues sporting shirts or else protesting, via planned actions at the start of games, the recent deaths at the hands of police. Everyone from Derrick Rose and LeBron James in the NBA to several football players have gotten into the act. A few weeks back, in fact, we learned that the police in St. Louis, the area home to the Michael Brown shooting, were quite upset that members of the Rams would dare to voice their support for protesters. That story was insulting enough, but the reaction to Cleveland Browns player Andrew Hawkins' wearing of a shirt that simply read "Justice for Tamir Rice - John Crawford", both of whom also died at the hands of police, is downright insulting. In response, Jeff Follmer Police Patrolman Union President sent newsnet5 the following statement: "It's pretty pathetic when athletes think they know the law. They should stick to what they know best on the field. The Cleveland Police protect and serve the Browns stadium and the Browns organization owes us an apology." If this statement from the President of a police union in a major city doesn't boil you up with anger, read it again. It's pathetic when athletes think they know the law? By implication, it's "pathetic" when ordinary citizens believe they "know" the law under which they are governed? The hubris required to insist that the same people you claim to protect and serve are pathetic for thinking they are aware of the legalities of American life runs at levels I truly didn't even think I'd see directly on display. Of course, there are nuances with the legal profession that escape the average American. That's why we have lawyers. But for the reaction to the police shooting two unarmed people (one of them twelve years old) to be to snicker at the thought that the protester knows "the law" is beyond insulting. It's downright stupid. And what is with the thinning of skin in America's police force all of the sudden that a little protest returns calls for apologies? Grow up. You don't get to wear body armor, drive around in MRAPs, and have skin the thickness of amoeba membranes. What this ultimately reveals is that many cities in this country have a huge problem in the disconnect between the police and the people they protect and serve. For the lead dog in a police union to snort at the public for daring to "know the law" in such a manor reveals the larger problem: the respect is only going one way, if any way at all. Permalink | Comments | Email This Story

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Last week, we wrote about how some of the leaked emails from the Sony hack revealed that the MPAA was funding and coordinating various Attorneys General attacks on Google, even over topics that have nothing to do with copyright infringement. In response, Mississippi AG Jim Hood told the Huffington Post that he barely knows anyone at the MPAA, and has no idea who their lawyers are -- and that the MPAA has "no major influence" on what he's working on: Hood said the MPAA "has no major influence on my decision-making," although he noted that content creators occasionally provide reports and advice to him. "They're just reporting wrongdoing. There's nothing unusual about that," he said. Hood said he has never asked MPAA a legal question, isn't sure which lawyers they employ, and doesn't think he's ever met the organization's general counsel. Okay. Now keep that above paragraph in mind as you read the latest report from the NY Times, in which reporters Nick Wingfield and Eric Lipton (who just a few months ago had written that big article on questionable lobbying of Attorneys General) dig deeper into the Sony emails concerning the MPAA and AGs Jim Hood and Jon Bruning from Nebraska. The Times also uses some public records requests to show that the infamous letter that Hood sent to Google was almost entirely written by the MPAA's lawyers. You can see the whole thing at the link, but this thumbnail shows a pretty long letter with the only parts actually written by Hood's office being the intro at the top in green and a few minor word choices. All the rest came from the MPAA's lawyers at Jenner and Block. So... Hood claims that he doesn't even know the MPAA's lawyers, that it has no influence on what he does and that the MPAA is "just reporting wrongdoing" -- but then he takes a ~4,000 word letter that those same MPAA lawyers (that he claims he doesn't know) wrote, tosses on an intro and a few minor grammatical corrections, and sends it to Google? The letter itself is a piece of pure propaganda as well, completely misrepresenting a few things, taking others out of context, and making some bizarre legal arguments. Hood, of course, is no stranger to controversy and claims of cronyism, but this is taking things to another level. The NY Times further uncovers that the "go-between" for the MPAA and Hood is a lobbyist the MPAA hired to run an MPAA front group. That lobbyist? Hood's predecessor and close friend: The movie industry, through a nonprofit group it funded called Digital Citizens Alliance, picked the perfect lobbyist to squeeze Mr. Hood: Mike Moore. Mr. Moore was Mr. Hood’s predecessor as Mississippi attorney general and helped start Mr. Hood’s political career. He remains a close friend of the attorney general and travels with him frequently; he has even played a role in helping Mr. Hood get elected as the president of the National Association of Attorneys General, emails obtained by The Times show. That front group, the "Digital Citizens Alliance," is one we discussed earlier this year, when it released a report about "evil" cyberlockers based on a misreading of two debunked studies. Certain cyberlockers have demanded a retraction of the report because of its ridiculous and shoddy methodology. In other words, the Alliance is not exactly the most trustworthy of operations -- and it's hired Jim Hood's best buddy and political mentor. But Hood wants us to believe that this group has no influence on him? Even other Attorneys General find the situation questionable: Peggy Lautenschlager, who served as attorney general in Wisconsin, said that the role that the movie industry had played in pushing Mr. Hood, through Mr. Moore and others, was inappropriate. “A private interest is influencing some attorneys general’s offices,” she said. Meanwhile, others are trying to understand why Jim Hood is so close with the MPAA at all, since Mississippi doesn't even have much of a connection to the film business: That makes his behavior all the more unusual since Mississippi has almost no economic interest in the movie industry. Indeed, the state lacks a major film school, doesn’t house production for a single scripted TV show, and has served as the main shooting location for only 5 widely released movies over the past decade. The MPAA itself says that the state has a total of 242 film-and-television-production related jobs; one of the smallest per-capita totals in the nation. All-in-all Mississippi has more people who make their living arranging flowers (460, according to the Bureau of Labor Statistics’ databases) than in film and TV production. Maybe Jim Hood really likes hanging out with movie moguls? Hood's stated reasoning makes even less sense: "Google's not a government, they may think they are, but they don't owe anyone a First Amendment right," Hood told The Huffington Post. "If you're an illegal site, you ought to clean up your act, instead of Google making money off it." [....] Hood recalled a meeting in Boston, where a high school girl demonstrated to attorneys general how easy it was for her to find a violent version of "Django Unchained" on the Internet. "Some of the AGs were amazed at that real-time example of what Google is assisting," Hood said. Hood has "tried to get Google to delist several sites," relating to pharmaceuticals. He said he views movies and music piracy as "insignificant" to state prosecutors, compared with more serious types of crime. But Hood said he would support a nonprofit organization coming up with a list of piracy sites that Google would remove from search results. He argued that current copyright law, the Digital Millennium Copyright Act, isn't adequate, because a website can get millions of takedown notices, but still do business as usual. It appears Hood is quite confused about, well, nearly everything. No, Google doesn't "owe anyone" a First Amendment right, but the government does. And here it appears that Hood -- a government representative -- is flat out supporting a censorship list of websites that must be blocked. Furthermore, he doesn't seem to understand the difference between a search engine and actually hosting or uploading infringing content. He also doesn't seem to recognize the history of blacklists and the fact that they always over-censor. Nor does he seem to understand how Google functions. All of these things would be rather easy to find out -- but just as easy to ignore if the MPAA is the one giving you all your talking points and legal documents. Meanwhile, the original letters revealed that the MPAA was looking for other Attorneys General it could convince to get in on the game, and the NY Times notes that a clear target is Nebraska's Jon Bruning: The movie association and its member companies, the messages show, have assigned a team of lawyers to prepare draft subpoenas and legal briefs for the attorneys general. And the groups have delivered campaign contributions — with several movie studios sending checks — to Jon Bruning, the Republican attorney general of Nebraska, who was helping push their cause, and who made an unsuccessful bid for governor this year. Meanwhile, the reaction to all of this has been fascinating. I've seen multiple lawyers connected to Hollywood have kneejerk reactions that paying for an investigation, coordinating all of the efforts including writing up the letters and subpoenas, is just normal, everyday "aggressive competition." Yet, these are the same people who go out there and claim that you sharing a copy of a movie you liked with someone else is morally bankrupt and evil. Some people, it seems, have a different moral compass. Frankly, private companies financing government investigations of other private companies seems a hell of a lot more morally questionable than someone sharing a copy of a film they like.Permalink | Comments | Email This Story

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Geek gadget also-ran KlearGear gained internet infamy thanks to the following paragraph tucked away on its "Terms of Sale and Use" page: In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. Tacked onto this absurd redefining of "fair and honest feedback" was a $3,500 fee. This was levelled at a couple who complained about the non-delivery of products it had paid for. This went to court, and the couple was awarded over $300,000 in a default judgement when KlearGear no-showed. For the most part, this would seem to be a cautionary tale -- something other companies would take into consideration when crafting their own terms of service. But some companies are still apparently willing to dance with the Devil Streisand by including onerous fees tied to the phrase "fair and honest feedback." Not only will the enforcement of this clause likely result in large amounts of public shaming, but in some states, this may actually be illegal. In the interest of discouraging future KlearGears from dragging their customers' credit ratings through the mud in response to bad reviews, we present a list of companies that still maintain similar clauses on their websites, along with dollar amounts demanded if this clause is violated. Textbooks on Park - "legal fees and court costs" Textbooks on Park, a Glen Ellyn, IL, strip mall resident, claims to service College of DuPage students with discounted books and, obviously, textbook rentals. In its rental agreement, it claims the following: In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this rental contract prohibits you from taking any action that negatively impacts Textbooks On Park, Inc. its reputation, products, services, management or employees. Should you violate this clause, as determined by Textbooks On Park, Inc. in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will be billed for legal fees and court costs until such complete costs are determined in litigation. Should these charges remian unpaid for 30 calendar days from the billing date; your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid. It's hard to see what legal fees Textbooks on Park could possibly claim, unless it was actually able to successfully pursue a libel claim -- in which case, there's no reason for any of this wording to be included. Winning a lawsuit would generally avail it of most of these costs, and uncollected damages would, of course, be referred to collection agencies, etc. The only reason this wording is here is to discourage negative reviews. Reviews at Yelp are mixed, as are those collected by Google. There seem to be some discrepancies between its stated policies and actual behavior. There's no indication anyone's been sued over these reviews, but why take a chance? Textbooks on Park says "support local businesses," but this clause says take your business elsewhere. Vinotemp International - $2.500 This manufacturer of wine racks, cabinets, coolers and cellars doesn't have its non-disparagement clause posted at its site. Instead, it's hidden in the fine print of the Terms and Conditions sheet packaged with its products. Vinotemp includes a few tweaks, but otherwise the wording is nearly identical to similar offending clauses: … acceptance of this sales contract prohibits you from taking any action that negatively impacts Seller its reputation, products, services, management or employees, unless you have: (A) first communicated with Seller, and (B) your statement/claim has been substantiated or validated by a judgment. Should you not follow this process, Seller in its sole discretion, will provide you a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed US $2,500, as liquidated damages, representing a fair estimation of damages, for it would be impracticable or extremely difficult to fix the actual damages… As usual, uncollected fees will be reported to credit bureaus, etc. Vinotemp's site links to its A+ BBB accreditation, but the company has only been a member since June of this year and has zero complaints on file. A more complete picture can be found at the BBB listing for its previous address, which has 19 complaints and no accreditation. For a longer discussion about Vinotemp's problematic products and service, see this forum discussion at Wine Berserkers. Final Step Marketing - $2750 This company ostensibly provides marketing services for companies, but its internet footprint doesn't extend past self-reference. Hidden away from many exciting pages filled with buzzwords is Final Step's claim that negative reviewers may be slapped with a bill for $2,750. 3rd Rock Adventures - $3000 Atlanta's 3rd Rock Adventures offers guided tours of points of interest around the world. It also offers you the chance to engage in some "open and honest public feedback" for the low, low price of $3,000. The usual 72-hour removal window applies as does the reporting to credit agencies. 3rd Rock may be a perfectly fine company, but reviews are nonexistent -- not even the expected glowing testimonials most companies post to their own websites. Various companies - $3500 Here's a fun bunch, all of which seem to have copy-pasted KlearGlear's deplorable clause, including the $3,500 fee. All they had to do is switch out the company name. New Wave Energy Eyeglass Lens Direct Yelp reviews, many of them not impressed with the quality of the product or the turn time. For Rent No Credit Check — Website claims company is only subject to UK law, suggesting it's a British company. That doesn't keep it from misspelling its home country ("Great Brittan") twice in the Terms of Use and Sale. Single Gourmet of South Florida — Negative reviews here as well as some at its BBB page. The site's sidebar proudly lists five consecutive awards from the "US Commerce Association," a vanity award company with scammy practices. Sensational Connections Fight Dentist — Exclusively catering to people who beat the shit out of each other for fun and profit (MMA fighters, mostly), Fight Dentist also promises to beat $3,500 out of negative reviewers. This seems unnecessary as reviews collected at Yelp are mostly positive. Fight Dentist does add wording that suggests the real problem here isn't "fair and honest feedback," but convenient villain social media. This precedes the usual non-disparagement boilerplate: "Due to the prevalence of social media sites, email and texting..." Merthyr Motor Auctions (UK) - $3902 Actual price is £2,500.00 GBP, so your bad review damages may fluctuate with the exchange rate should you happen to reside outside of the UK. Again, the inclusion of this non-disparagement boilerplate is inexplicable considering reviews of the company are overwhelmingly positive. (Or does it mean it's working?) Church Freedom - $5000 This organization aims to "free" churches from the normal non-profit status and reorganize them as corporations to allow them to escape certain aspects of regulation, including taxes. In addition to hitting negative reviewers with a $5,000 fee, Church Freedom also threatens to do the same to people who file disputes/chargebacks or issue refund requests improperly. Cronus Corporation - $5000 Not entirely sure what this company does other than generate buzzwords ("Digi-DNA® is the application suite that provides unified marketing metrics, integrated marketing services, sponsorship ROI enhancement, metadata management…") but its web footprint is dominated by companies that spell their names differently -- and those companies don't charge customers for negative feedback. Ink 4 Cake - $5000 Edible ink purveyor which seems to have a few issues, although mileage seems to vary from product to product. Also: $5,000 non-disparagement fees. Token Energy (UK), Axtexs Fitness (UK) - $5463 Both companies will charge you £3,500.00 GBP for discouraging words, but Token Energy shaves 24 hours off the usual timetable for disparaging review removal (from 72 hours to 48). Portascope.com Inc. - $6000 Niche marketer specializing in video endoscopy systems for veterinarians. Nearly doubles the established KlearGear standard with its $6,000 non-disparagement fee, but still can't find the time to fill out the boilerplate pasted into its Privacy page. From time to time Portascope.com Inc. may use agents or contractors who will have access to your personal information to perform services for Portascope.com Inc. (such as DATABASE MAINTENANCE, FURTHER EXAMPLES)... Now, we arrive at our grand champion of the non-disparagement clause wars. Or would be if its site hadn't gone offline sometime in the past couple of weeks. Fortunately there are screenshots and cached versions. Acer Capital Recovery - $100,000 Seeing is gaping in disbelief. The money quote: In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this TOS prohibits you from taking any action that negatively impacts Acer Capital Recovery llc™, its reputation, products, services, management or employees. You hereby agree to liquidated damages of $100,000.00 USD plus costs and actual damages for violating this provision. $100,000 minimum for negative reviews. That's ballsy. Of course, you can write any amount you want into your non-disparagement clause as long as you a) never enforce it and b) don't seem to exist outside of a (now dead) website. Below are the offices of this collection company. Seems legit. The simple fact is these clauses don't work. If someone decides to enforce them, they're going to have a hard time collecting on them, especially once they get taken to court for enforcing clauses bordering on illegality. If the review is truly libelous, the court system is on their side and damages will be awarded, so attempting to price this out in advance is nothing more than a really lousy intimidation tactic. If the company is horrible enough, word will spread even with the policy in place. And if a company with a terrible reputation attempts to shut up its critics with sky-high fees, the Streisand Effect takes over, putting them in an even deeper hole, as negative reviews pour in from internet denizens. The best defense against these clauses is a good offense: public shaming. Perhaps a little advance adverse notoriety will result in the yanking of these clauses, and those formerly deploying these will actually learn to engage in open and honest feedback using the original definitions of those words.Permalink | Comments | Email This Story

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