posted about 3 hours ago on techdirt
The ACLU has jumped into a troubling legal fight, in which it appears that the DOJ has issued gag orders against Twitter and Yahoo concerning grand jury subpoenas that have been sent to both companies. This case is one we mentioned last week where magistrate judge John Facciola asked the two companies to weigh in, as he appears unconvinced that the government's request is sound. However, the whole thing is happening under seal, which the ACLU feels is inappropriate, given the importance of allowing companies to respond freely to such requests, without being gagged. The ACLU filed a motion last night seeking to represent the public's interest in open court proceedings when the government seeks gag orders on Internet companies. We know about the three cases only because the magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments public. The government appealed those orders to a district court, where the judge ordered the appeals sealed. The ACLU is now moving to intervene in the district court for the purpose of opening these gag order proceedings to public scrutiny. In a democracy, if your government is going to gag someone from speaking, it should publicly explain why. The federal government has an awesome array of tools and technologies in its investigative arsenal, and it often goes to great lengths to shield its tactics from outside scrutiny. Not only does this secrecy prevent people from challenging surveillance used against them, but it also means that elected officials can't openly debate the underlying policies, and communities can't discuss their government's actions. Traditionally, gag order applications are considered ex parte – meaning with only the government's argument on the record before the court. However, Magistrate Judge Facciola noted that the government's request in this case raised controversial legal questions, and so invited Twitter and Yahoo to respond. (In one case, the government withdrew its gag order application after Judge Facciola invited Twitter's participation.) He also ordered the government file public copies of its gag order applications with limited redactions. It's good to see at least some pushback on the feds' attempt to get information and to silence companies from saying anything about it. But it's still quite troubling that they seem to assume they have near free rein to do so in the first place. Kudos to the ACLU for stepping in as well, and representing the public interest.Permalink | Comments | Email This Story

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posted about 4 hours ago on techdirt
We didn't write about this case when it came out because it just seemed so ridiculous, but filmmaker Quentin Tarantino sued Gawker Media earlier this year for linking to a script he had apparently been working on. There had been a bunch of media coverage over the fact that his script for The Hateful Eight leaked, and was being shared around Hollywood, though not online. Gawker then asked anyone if they'd seen a copy, leading to a followup post which included a link to the newly leaked script. Tarantino argued that by soliciting from the public a copy of the script and then subsequently linking to it, Gawker was guilty of contributory infringement. Thankfully, a federal court that actually understands copyright law has quickly disabused Tarantino of that bizarre interpretation of copyright law, granting Gawker's motion to dismiss. The big problem: at no point anywhere in the process above, did Tarantino's lawyer show how Gawker's actions resulted in anyone infringing on anyone's copyright. That makes it quite hard to pin "contributory infringement" when there's no direct infringement in the first place: However, nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place. For example, Plaintiff’s Complaint fails to allege the identity of a single third-party infringer, the date, the time, or the details of a single instance of third-party infringement, or, more importantly, how Defendant allegedly caused, induced, or materially contributed to the infringement by those third parties In a footnote, the court further notes that even if Tarantino's lawyers could dredge up some example of direct infringement based on someone reading the script, the lawsuit still wouldn't make any sense: Even if Plaintiff alleged that individuals accessed the links contained in Defendant’s article in order to read Plaintiff’s script, such an allegation would still not support Plaintiff’s contributory infringement claim against Defendant. Simply viewing a copy of allegedly infringing work on one’s own computer does not constitute the direct infringement necessary to support Plaintiff’s contributory infringement claim. See Perfect 10, Inc., 508 F.3d at 1169 (where alleged primary infringers merely view pages containing infringing images, but do not “store[] infringing images on their computers,” there is no infringement). In addition, based on the allegations of the Complaint, there can be little doubt that Plaintiff has a strong claim for direct infringement against Doe 1, a/k/a AnonFiles.com. However, Plaintiff has not alleged and it is highly unlikely that Plaintiff will be able to plead facts demonstrating that Defendant somehow induced, caused, or materially contributed to the infringing conduct by publishing a link to the screenplay after it was wrongfully posted on AnonFiles.com. The court notes that Gawker spent a lot of effort explaining why this is fair use but notes that, "albeit persuasive and potentially dispositive," it doesn't even need to bother with that argument since there's no infringement to defend against fair use here anyway. Once again, it seems like people who grow up totally immersed in a world of copyright maximalism automatically leap to the conclusion that "something I don't like" must be an infringement of copyright. Thankfully, the law (mostly) doesn't work that way.Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
Cops lie. Citizens know this. Defense attorneys know this. Prosecutors know this. Most importantly, judges know this. But rarely does it have any effect on the outcome of the case at hand. But in what has been described as a "Perry Mason moment," five Illinois police officers were caught lying on the stand. (h/t to Trevor Debus) A seemingly routine suppression hearing in a suburban Chicago courthouse last month took an unexpected dramatic turn when video from a police car was introduced that disproved the testimony of five police officers. They had said Joseph Sperling was arrested after officers who pulled him over in a traffic stop smelled marijuana, searched the vehicle and found nearly a pound in a backpack lying on the back seat of his car. But the Glenview police video showed the search occurred only after Sperling was taken from his car, frisked and handcuffed, reports the Chicago Tribune (sub. req.). I suppose once the film rolled, there was little the judge could do but address it. It's one thing for a cop to lie in the courtroom and have it discovered months, weeks or even years later. It's quite another when the testimony is rebutted by video evidence during the same hearing. "All the officers lied on the stand today," said [Judge Catherine] Haberkorn, who herself is a former prosecutor, at the March 31 hearing. "So there is strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie." The officers, currently on desk duty, apparently did conspire to lie about the specifics of the search, at least according to the lawsuit filed by the arrestee shortly after this suppression hearing went sideways. Joseph Sperling says in his suit that Chicago police asked Glenview officers at the scene of his arrest last June to turn off their squad car dashcams. At least one Glenview officer didn't, resulting in video footage that persuaded a Cook County Circuit Court judge to grant a motion to suppress seized evidence, because police testimony contradicted what the camera showed. This case has obviously provoked quite a bit of discussion as to how often cops lie and what the final arbiters -- the judges -- do when they take this knowledge into consideration. The answers, unfortunately, are depressing. Even if these temporary desk jockeys manage to retain their jobs, one would think their days as credible witnesses are over. Nothing could be farther from the truth. Scott Greenfield talks about one judge he heard discuss why he kept on pushing defendants into the maw of the prison system, even while knowing those on the law enforcement side weren't necessarily any better when it came to truth-telling. After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary… What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who. […] He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable. Judge Richard Kopf, prompted by Greenfield's post, offered his own thoughts as to why he finds cops credible witnesses, despite loads of evidence otherwise. It's a bracing read and admirably soul-baring, but it's not going to make anyone feel any better about their odds against a lying law enforcement officer. While he makes several points that indicate he's still more careful in his selection process than the Judge Harold mentioned above, he does make the following indictment of his own beliefs and behavior. I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up. Will Baude at the Volokh Conspiracy, who originally questioned whether these five cops would be unable to offer believable testimony in the future, gathered some notable comments from Judge Kopf's post that lend credence to the belief that everyone in the courtroom knows cops lie, but there's very little anyone's actually willing to do about it, partly because the system destroys judges who refuse to play along. Lorin Duckman, a former New York judge, noted how the system lends itself to accommodating lying cops, if only to keep the system moving at the pace that pleases most of those involved. It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants for their livelihood ... But Duckman also points out that judges have their own livelihoods to consider, and speaking aloud about the fact that cops lie on the stand tends to short-circuit their futures. [M]ost of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did. A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I? The system is broken all the way up and all the way down. These five cops were very possibly only called out because it was unavoidable. Their punishment for being caught perjuring themselves has been desk duty, something that may seem tedious compared to pulling people over and illegally searching their vehicles, but can hardly be considered a true punishment. It's not as though the facts are disputed. The cops are being "investigated" after lying in court in front of a judge and several witnesses. There's literally nothing to "investigate." This is just two police departments (Glenview and Chicago) buying time until they can weigh possible punishments and outcomes. As few judges are willing to confront the fact that cops lie with the same frequency as other human beings, just as few PDs are willing to terminate officers (partly due to pushback from officers' unions), no matter the wrongdoing. But before all hope is destroyed, another judge (Alabama's Judge Joseph Johnson) commenting at Kopf's blog noted the status quo is changing, at least in his courtroom. Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see. Looking at this and another set of isolated incidents -- the pushback by two judges against overly-broad search warrants -- gives a modicum of hope that law enforcement will be finally forced to play by the rules that have been existent since shortly after the founding of this nation. It's too little, far too late and it's marked by outliers rather than exceptions to the rule. But at least it's something. And the more the public is informed about the routine abuse of civil liberties by law enforcement, the less those tasked with handling the intersection of cops and civilians will be able to ignore the reality of the situation and blithely (and blindly) believe badges denote a more trustworthy class of human. Permalink | Comments | Email This Story

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posted about 12 hours ago on techdirt
We've covered the ridiculousness of the UK's "voluntary" web filters. UK officials have been pushing such things for years and finally pushed them through by focusing on stopping "pornography" (for the children, of course). While it quickly came out that the filters were blocking tons of legitimate content (as filters always do), the UK government quickly moved to talk about ways to expand what the filters covered. The pattern is not hard to recognize, because it happens over and over again. Government officials find some absolute horror -- the kind of thing that no one will stand up for -- to push for some form of censorship. Few fight back because no one wants to be seen as standing up for something absolutely horrific online, or be seen as being against "family values." But, then, once the filters are in place, it becomes so easy both to ignore the fact that the filters don't work (and censor lots of legitimate content) and to constantly expand and expand and expand them. And people will have much less of a leg to stand on, because they didn't fight back at the beginning. That appears to be happening at an astonishingly fast pace in the UK. Index On Censorship has a fantastic article, discussing how a UK government official has already admitted to plans to expand the filter to "unsavoury" content rather than just "illegal." James Brokenshire was giving an interview to the Financial Times last month about his role in the government’s online counter-extremism programme. Ministers are trying to figure out how to block content that’s illegal in the UK but hosted overseas. For a while the interview stayed on course. There was “more work to do” negotiating with internet service providers (ISPs), he said. And then, quite suddenly, he let the cat out the bag. The internet firms would have to deal with “material that may not be illegal but certainly is unsavoury”, he said. And there it was. The sneaking suspicion of free thinkers was confirmed. The government was no longer restricting itself to censoring web content which was illegal. It was going to start censoring content which it simply didn’t like. It goes on, in fairly great detail, to describe just how quickly the UK is sliding away down that slippery slope of censorship. It highlights how these filters were kicked off as an "anti-porn" effort, where the details were left intentionally vague. But David Cameron positioned himself differently, by starting up an anti-porn crusade. It was an extremely effective manouvre. ISPs now suddenly faced the prospect of being made to look like apologists for the sexualisation of childhood. Or at least, that’s how it was sold. By the time Cameron had done a couple of breakfast shows, the precise subject of discussion was becoming difficult to establish. Was this about child abuse content? Or rape porn? Or ‘normal’ porn? It was increasingly hard to tell. And, of course, the fact that the filters go too far, is never seen as a serious problem. The filters went well beyond what Cameron had been talking about. Suddenly, sexual health sites had been blocked, as had domestic violence support sites, gay and lesbian sites, eating disorder sites, alcohol and smoking sites, ‘web forums’ and, most baffling of all, ‘esoteric material’. Childline, Refuge, Stonewall and the Samaritans were blocked, as was the site of Claire Perry, the Tory MP who led the call for the opt-in filtering. The software was unable to distinguish between her description of what children should be protected from and the things themselves. At the same time, the filtering software was failing to get at the sites it was supposed to be targeting. Under-blocking was at somewhere between 5% and 35%. Children who were supposed to be protected from pornography were now being denied advice about sexual health. People trying to escape abuse were prevented from accessing websites which could offer support. And something else curious was happening too: A reactionary view of human sexuality was taking over. Websites which dealt with breast feeding or fine art were being blocked. The male eye was winning: impressing the sense that the only function for the naked female body was sexual. But, of course, no one in the UK government seems to care. In fact, they're looking to expand the program. Because it was never about actually stopping porn. It was always about having a tool for mass censorship. The list was supposed to be a collection of child abuse sites, which were automatically blocked via a system called Cleanfeed. But soon, criminally obscene material was added to it – a famously difficult benchmark to demonstrate in law. Then, in 2011, the Motion Picture Association started court proceedings to add a site indexing downloads of copyrighted material. There are no safeguards to stop the list being extended to include other types of sites. This is not an ideal system. For a start, it involves blocking material which has not been found illegal in a court of law. The Crown Prosecution Service is tasked with saying whether a site reaches the criminal threshold. This is like coming to a ruling before the start of a trial. The CPS is not an arbiter of whether something is illegal. It is an arbiter, and not always a very good one, of whether there is a realistic chance of conviction. As the IWF admits on its website, it is looking for potentially criminal activity – content can only be confirmed to be criminal by a court of law. This is the hinterland of legality, the grey area where momentum and secrecy count for more than a judge’s ruling. There may have been court supervision in putting in place the blocking process itself but it is not present for individual cases. Record companies are requesting sites be taken down and it is happening. The sites are only being notified afterwards, are only able to make representations afterwards. The traditional course of justice has been turned on its head. And it just keeps going on and on. As the report notes, "the possibilities for mission creep are extensive." You don't say. They also note that technologically clueless politicians love this because they can claim they're solving a hard problem when they're really doing no such thing (and really are just creating other problems at the same time): MPs like filtering software because it seems like a simple solution to a complex problem. It is simple. So simple it does not exist. Of course, if you recognize that the continued expansion of such filters was likely the plan from the beginning, then everything is going according to plan. The fact that it doesn't solve any problems the public are dealing with is meaningless. It solves a problem that the politicians are dealing with: how to be able to say they've "done something" to "protect the children" while at the same time building up the tools and powers of the government to stifle any speech they don't like. To those folks, the system is working perfectly.Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
Back in December, it was revealed that the NSA had given RSA $10 million to push weakened crypto. Specifically, RSA took $10 million to make Dual Elliptic Curve Deterministic Random Bit Generator, better known as Dual_EC_DRBG, as the default random number generator in its BSAFE offering. The random number generator is a key part of crypto, because true randomness is nearly impossible, so you need to be as random as possible. If it's not truly random, you've basically made incredibly weak crypto that is easy to break. And that's clearly what happened here. There were other stories, released earlier, about how the NSA spent hundreds of millions of dollars to effectively take over security standards surreptitiously, including at least one standard from the National Institute of Standards and Technology (NIST). People quickly realized they were talking about Dual_EC_DRBG, meaning that the algorithm was suspect from at least September of last year (though there were indications many suspected it much earlier). In response to all this, NIST quickly issued an announcement recommending against using Dual_EC_DRBG, but it didn't finally remove it from its random number generator recommendations until this week -- following through on an open comment process on changing its recommendations. Following a public comment period and review, the National Institute of Standards and Technology (NIST) has removed a cryptographic algorithm from its draft guidance on random number generators. Before implementing the change, NIST is requesting final public comments on the revised document, Recommendation for Random Number Generation Using Deterministic Random Bit Generators (NIST Special Publication 800-90A, Rev. 1). The revised document retains three of the four previously available options for generating pseudorandom bits needed to create secure cryptographic keys for encrypting data. It omits an algorithm known as Dual_EC_DRBG, or Dual Elliptic Curve Deterministic Random Bit Generator. NIST recommends that current users of Dual_EC_DRBG transition to one of the three remaining approved algorithms as quickly as possible. In September 2013, news reports prompted public concern about the trustworthiness of Dual_EC_DRBG. As a result, NIST immediately recommended against the use of the algorithm and reissued SP 800-90A for public comment. Some commenters expressed concerns that the algorithm contains a weakness that would allow attackers to figure out the secret cryptographic keys and defeat the protections provided by those keys. Based on its own evaluation, and in response to the lack of public confidence in the algorithm, NIST removed Dual_EC_DRBG from the Rev. 1 document. In the announcement, NIST also points out that it's reviewing its cryptographic standards development process, to try to prevent this sort of thing from happening again.Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
Robots that mimic biological organisms can take advantage of centuries (or more) of evolution to perform various tasks. Robot locomotion that cheats off nimble animals could be more adaptable in natural environments -- and animal-inspired bots could teach robot designers about how to make robots that are more flexible in uncontrolled conditions (outside of factories). Here are just a few more examples of biomimicry. Snake-like robots have been taught to grab onto things like poles and trees. While some are concerned that these snake bots could also learn how to strangle people, these machines actually look like really smart grappling hooks. [url] A soft robotic fish swims like the real animal -- with the ability to rapidly reverse direction in a fraction of a second, just how real fish try to escape predators. This robofish can't swim for very long compared to real fish, but a more advanced robofish might be able to infiltrate a school a fish and help observe natural fish behaviors. [url] A robot razor clam can burrow deep into packed sand and serve as an anchor. RoboClam could help bury undersea cables and other underwater tasks, and it borrows some moves from real clams to do its job. [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 20 hours ago on techdirt
Late last fall, we highlighted some very questionable practices by Intellectual Ventures in suing a bunch of big banks for patent infringement. Our focus was on a particular patent, 6,182,894, which was initially assigned to American Express, and which claimed to cover the concept of CID or CVV codes (those little extra three numbers on the back of your credit card you're supposed to type in as an added security measure). American Express, perhaps realizing how ridiculous it would be to sue over such a patent "donated" it to a non-profit, the Consumer and Merchant Awareness Foundation ("CMAF"), who explicitly promised that it would only be used to encourage better credit card security, and that it would never use the patent "against issuers, acquirers, merchants or consumers related to activity in the retail financial services and payment areas." Of course, it took all of about two years before CMAF effectively sold the patent to Intellectual Ventures, and then disappeared as an entity. IV, apparently, felt that it was not bound by the original promises, and started suing basically everyone. Soon after our story appeared exposing this questionable activity, Intellectual Ventures suddenly decided to drop that particular patent from its lawsuit. Shocking. However, it continued with a few other patents... but that all ended last week when a judge rejected the remaining patents as completely bogus: ... the Court concludes as a matter of law, based on a clear and convincing evidence, that neither the '137 nor the '382 patent contains patentable subject matter under Section 101.... Nothing in the Court's Claim Construction establishes patentability, since however the claim terms may be construed each patent consists of nothing more [than] the entry of data into a computer database, the breakdown and organization of that entered data according to some criteria, disclosed in the '137 patent, but not the '382 patent, and the transmission of information derived from that entered data to a computer user, all through the use of conventional computer components, such as a database and processors, operating in a conventional manner. There is no inventive technology or other inventive concept that authorizes the protections of a patent, such as an improvement in the workings of the computer or the transmissibility of data or some other transformation of data into something qualitatively beyond the informational content of the data entered, even though the data might be organized and manipulated to disclose useful correlations. Rather, these patents are "drawn to a mental process -- i.e., an abstract idea."... The two patents in question, 8,083,137 and 7,603,382, describe some rather basic and obvious ideas that a couple of patent lawyers twisted around to make it appear like they were patentable. The '382 patent claims to patent offering up a custom webpage to a user based on their personal preferences. The '137 patent is about "administering financial accounts." In both cases, Joe Mullin in the link above notes that they appear to have really originated with patent lawyers. The '137 patent did come from an engineer, but it wasn't because of anything she invented. She was doing some retirement planning, and her patent lawyer husband thought that her ideas for tracking budgets could be patented. The '382 patent just came straight from a patent lawyer. And, of course, what the judge was noting above, is that neither should have been granted as patents in the first place, because both just involved basic data processing that any software could do. Neither did anything even remotely inventive. And, of course, the fact that both originated with patent lawyers highlights just how bogus IV's constant refrain is about how it's protecting individual inventors. It's never been about individual inventors at all. It's been about the lawsuits and the money. Which is why it should be no surprise to read about IV's response to this complete loss: [Our] patent portfolio is deep and we have another action pending against Capital One in Maryland. We remain committed to defending our intellectual property rights, as well as those of our customers and investors. In other words, okay, if we didn't get you with the first batch of bogus patents, we have tens of thousands of other bogus patents, and sooner or later, some judge will either let us win, or these banks will fork over lots of cash to make us go away.Permalink | Comments | Email This Story

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posted about 21 hours ago on techdirt
A recent article in the NY Times talked about how the US State Department is behind a project to build up mesh networks that can be used in countries with authoritarian governments, helping citizens of those places access an internet that is often greatly limited. This isn't actually new. In fact, three years ago we wrote about another NY Times article about the State Department funding these kinds of projects. Nor is the specific project in the latest NYT article new. A few months back, we had covered an important milestone with Commotion, the mesh networking project coming out of New America Foundation's Open Technology Institute (OTI). But the latest NYT article is especially odd, not because it repeats old news, but because it tries to build a narrative that Commotion and other such projects funded by the State Department are somehow awkward because they could be used to fight back against government surveillance, such as those of the NSA. The problem is that the issues are unrelated, and nothing in mesh networking deals with stopping surveillance. As Ed Felten notes, the Times reporters appear to be confusing things greatly: There’s only one problem: mesh networks don’t do much to protect you from surveillance. They’re useful, but not for that purpose. A mesh network is constructed from a bunch of nodes that connect to each other opportunistically and figure out how to forward packets of data among themselves. This is in constrast to the hub-and-spoke model common on most networks. The big advantage of mesh networks is availability: set up nodes wherever you can, and they’ll find other nearby nodes and self-organize to route data. It’s not always the most efficient way to move data, but it is resilient and can provide working connectivity in difficult places and conditions. This alone makes mesh networks worth pursing. But what mesh networks don’t do is protect your privacy. As soon as an adversary connects to your network, or your network links up to the Internet, you’re dealing with the same security and privacy problems you would have had with an ordinary connection. The whole point of Commotion and other mesh networks is availability, not privacy. The target use is for places where governments are seeking to shut down internet access, not surveil on them. Yes, there is a case where if you could set up a mesh network that then routed around government surveillance points you could circumvent some level of surveillance, but the networks themselves are not designed to be surveillance proof. In fact, back in January when we wrote about Commotion, we pointed out directly that the folks behind the project themselves are pretty explicit that Commotion is not about hiding your identity or preventing monitoring of internet traffic. Could a mesh network also be combined with stronger privacy and security protections? Yes, but that's different than just assuming that mesh networking takes on that problem by itself. It doesn't -- and it's misleading for the NYT to suggest otherwise.Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
The oral arguments in the Aereo case happened this morning before the Supreme Court and you can read the transcript here (it's still a travesty that there is no live broadcasting (or any video recording at all) of the proceedings, but that's a different argument for a different day). As with any such case, this discussion needs to be prefaced with the fact that reading the tea leaves from what Justices say during oral arguments is a unlikely to yield much that is useful. You'll often see large segments of the arguments discuss issues that later don't appear at all in the final ruling. In some cases, Justices are just testing out certain theories or pushing the lawyers to see how they respond. Oral arguments do matter, but not nearly as much as the underlying briefs. We still have a few months (probably) to find out how the Court will rule, but we can at least comment on some of today's discussion. The important thing to get from the discussion was that the Justices, for the most part, seem to actually recognize that with copyright law the way it is today, finding -- as the broadcasters would like -- that Aereo is engaged in a public performance -- may have long term consequences for all sorts of other industries. It starts off early on, with Justice Sotomayor jumping in with a very different question, concerning whether or not Aereo is a cable company, which would include a different set of issues (in fact, this was exactly the strategy that Aereo competitor/predecessor ivi sought to take -- and ran into trouble). She points out that there may be value in avoiding the whole public performance question all together, since it could get messy: If we take public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers a public performance? It seems to fall within that definition. But if it is, there's no -- no first sale doctrine and it's a big problem. So we could avoid that problem. Meanwhile, Justice Breyer is clearly concerned about the possible impact on the cloud, again in discussing the possibility that the Court could avoid the issue by calling Aereo a cable company: And what you've read in their briefs is they, in their supporting amici, have thrown up a series of serious problems not involving them, like the cloud, which the government tells us to ignore, and many others, which make me nervous about taking your preferred group. Which bounces back to Sotomayor, who notes that the public performance definition the broadcasters want "sweeps up" an awful lot of other businesses where it doesn't make sense: I mean, Justice Breyer has already asked you -- said he's troubled about the phonograph store, and -- and the Dropbox and the iCloud. I'm also worried about how to define or -- public performance or the performance of a work publicly, which I guess is the better way to do it, according to you. How do I define that so that someone who sells coaxial cable to a resident of a building is not swept up as a participant in this? Or someone who -- the sort of passive storage advisors that -- this is really hard for me. Justice Kagan, also, quickly gets to the heart of the matter -- the point that we've been raising since the beginning with Aereo -- that this is all about the length of the cable. If someone were to do this at home -- with the same exact electronic setup, it's clearly legal. But the broadcasters want to make Aereo illegal, because the length of the cable between the "DVR" component and the "TV" component is much longer. Suppose a company just gave the antenna and a hard drive, that's what they sold to the user, and the user was able to use the antenna and the hard drive in her own house or apartment in order to get all these broadcast programs. What would the -- would that be a performance? When the broadcaster's lawyer pushes back, Kagan points out that it does seem odd that where the hardware sits determines if there's a public performance or not. But then it really does depend on, like, where the -- where the hardware is. In other words, if -- if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance. Chief Justice Roberts highlighted the same issue: Why isn't -- and I don't want to stretch it too -- but why isn't it like a public garage in your own garage? I mean, you know, if you -- you can park your car in your own garage or you can park it in a public garage. You can go to Radio Shack and buy an antenna and a DVR or you can rent those facilities somewhere else from Aereo. They've -- they've got an antenna. They'll let you use it when you need it and they can, you know, record the stuff as well and let you pick it up when you need it There's then a discussion trying to see if there's a way to distinguish Aereo from the Cablevision decision (in the 2nd Circuit appeals court) saying that Cablevision's remote DVR was legal. The lawyer for the broadcaster says that he thinks the Cablevision decision was decided incorrectly, but the difference is that Cablevision already has a license. This is misleading, because the license in Cablevision was unrelated to the issue of the DVR feature. Furthermore, over-the-air broadcasts (which is what Aereo offers) have an implied license already associated with them (you don't have to pay to watch over-the-air TV for that very reason). So the distinction here is meaningless. Justice Breyer says that, even if that's true, there's still a real risk to cloud computing. But then the problem is in the words that do that, because we have to write words, are we somehow catching other things that really will change life and shouldn't, such as the cloud? And you said, well, as the government says, don't worry, because that isn't a public performance. And then I read the definition and I don't see how to get out of it. When asked similar questions, the Deputy Solicitor General, Malcolm Stewart, (again, bizarrely, the US is intervening on behalf of Hollywood for no clear reason), appears to admit that there's no clear line, and that things should be decided on something of a case by case basis: I think you would have to -- you would have to know both the details of the service and you would have to be making a harder call there about how to draw the line, because I don't pretend that there is a bright line between providing a service and providing access to equipment. If you look, for instance, at the extremes of a person putting a rooftop antenna at his own home, everybody agrees that the rooftop antenna manufacturer is not performing at all and the individual is engaged in a solely private performance. The other extreme is the cable company, one big antenna, makes transmissions to a lot of people; Congress clearly intended to define that as a private performance. Somewhere in the -- you could come up with lots of hypotheticals that look more or less like one of the other extremes, they are somewhere in the middle. It's an authentically hard call as to where to draw the line. So I don't have a good answer for you. But that seems rather important, given that this case is asking for that line to be drawn. And the Justices were clearly struggling with that point. Justice Breyer responded: How do we get out of the example? I mean, how do we get out -- what words do I write to get out of this, throwing into this clause a music store that distributes via Federal Express, a device, or the U.S. Postal Service or even someone over the counter, distributes to 10,000 people a copy of a record which they then will take and play it? They have, to the same degree, transmitted something that will electronically make a performance of the music. So are they when they sell the record violating the display clause? This isn't to say that the Justices are in agreement with Aereo. They expressed plenty of skepticism about the whole setup, arguing repeatedly that the whole thing seems to have been set up solely to fit within the law, using a technological setup that makes no sense. Aereo, in response, sought to argue that there were technical reasons for its setup, but frankly, that's bogus. The technological setup is insane, but the insanity is not because Aereo is trying to "get around" the law, but the exact opposite. Because it's trying to stay within the law. If the setup of copyright law itself wasn't so insane, there would be much better ways to do what Aereo is doing. But thanks to a bunch of interlocking "rights" buried within copyright law, and caselaw that is basically duct-taped onto the statute every time a new technology comes around, actually innovative requires the Rube Goldbergian-approach that Aereo took just to stay within the law. It's ridiculous that that is seen as a suggestion of illegality... When the broadcasters lawyer comes back to rebut Aereo's lawyer, he argues that if Aereo loses, it can just get a license or go out of business. But Justice Breyer notes that it's really not that simple: Once you take them out of the compulsory licensing system, they're going to have to find copyright owners, who owns James Agee's pictures? Who owns something that was written by -- like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can't find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems In the end, I think the Justices were rightly worried about how any ruling might impact the cloud. While there was some skepticism about Aereo's setup, Aereo's lawyer did a good job highlighting why those were wrong. Still -- and again, reading Supreme Court tea leaves is nearly impossible -- if I were going to guess, I'd guess that the Supreme Court will seek some sort of "narrow" ruling that tries to say that Aereo should get a license (possibly just throwing the issue back to the lower courts on the details), while doing everything it can to avoid a ruling that throws the entirety of cloud computing under the bus.Permalink | Comments | Email This Story

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Having followed the saga of Prenda Law over the past few years, one thing has become clear: John Steele really loves the "I know you are, but what am I" form of legal argument, in which whatever he's accused of, he aggressively accuses his accuser of being guilty of the same. It's a sort of faux macho move, in which every attack on him is met with an equally or more aggressive attack. To date, the strategy has failed badly, but it seems that Steele just can't let go of this kind of approach. In the latest round of the Anthony Smith case, Steele appears to be trying on a variant of that aggressive posture, taking on the very serious and direct accusations made against him (including those by multiple federal judges) and mocking them, by asking another court rhetorically, "what, do you really think I'm guilty of all these crazy things?" when the answer to that question may very well be yes. At issue is the continuing fight over getting Steele and his collaborators, Paul Hansmeier and Paul Duffy, to actually pay up for their abuse of the legal process. Last we checked in on this particular case, the district court was finding them in contempt and piling more onto the money they would need to pay, while the appeals court does not appear to be impressed by Team Prenda's arguments, clearly calling out the "shell games" that Prenda and associated entities were playing. While aspects of the case have been stayed during the appeal, other aspects are moving forward, including Smith's lawyer continuing to push for discovery on the actual assets of Steele, Hansmeier and Duffy. As you may recall, despite being required to provide such information, they did so in a questionable manner. As Judge David Herndon pointed out: The Court finds that plaintiff's counsel has not met its burden. They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant ("CPA"). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff's counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles. The Court finds these statements insufficient to establish plaintiff's counsel's inability to pay. Since then, Smith's lawyer, Jason Sweet of Booth & Sweet, has continued to push for determining the financial position of the three individuals here. There's a sealed document which apparently hints at some shady financial dealings, but it appears to be making Steele very angry. While Paul Duffy filed a pretty empty opposition saying that he has no offshore accounts, Steele went into full on, ultra-aggressive "who me?" defensiveness in response, leading to some incredible statements, considering what multiple courts have already said about them. The classic part has to be this: For this Court to find any act of Prenda should be attributed to Steele, the Court would have to believe that Steele lied to multiple federal judges without getting caught, committed massive tax fraud without the IRS finding out, and proactively broke into the Illinois Secretary of State’s corporate records database to hide his ownership of Prenda Law, all because of the remote chance that years later a federal judge might sanction Prenda Law for $261,000. Except... of course, multiple judges have already claimed that Steele and the others have lied, including in this very case. In the original ruling in this case, Judge Patrick Murphy directly called out Steele for lying, saying: "These men have shown a relentless willingness to lie to the Court on paper and in person." He furthermore highlighted how it was quite clear that Steele was directly involved in Prenda, which Steele is now denying yet again. And no one is claiming he hacked into the corporate records database (though, now that he's denied it, it almost makes you wonder...), but that he was clearly in control of Prenda and received much of the money that went into Prenda. As for the issue of the IRS, well, last we checked, at least one judge, Otis Wright, has referred their conduct to the IRS, and there are at least some indications that an investigation is ongoing. And while no one thinks they set up this shell game specifically to avoid this particular ruling, it's not difficult to see that they did so to try to avoid a series of similar court rulings, after Prenda's initial approach started getting regularly shot down in court. Steele's response also ratchets up the ridiculous rhetoric in describing the copyright trolling shakedown business, which they copied from a bunch of other firms: Steele and his partner, Paul Hansmeier (”Hansmeier”) were early pioneers in catching thieves and hackers who engaged in stealing copyrighted works and other computer related misdeeds, including computer hacking and copyright infringement. Except, of course, they were neither pioneers, nor were they catching "thieves" or "hackers." Rather, by all accounts, they set up a honeypot site, uploaded their own content to it, shared it on file sharing sites, and then used the IP addresses of those who followed the release that they themselves put online, to shake them down with lawsuits and demands for settlement. The evidence on this is fairly overwhelming. Steele tries to argue away the "oddities" the court noted in the filings made by the CPA they hired this way: At the hearing, no reference was made to the GAAP, the Generally Accepted Accounting Rules, a set of standards designed for the financial reporting of corporations, not individuals. Steele submitted his financial statement as directed. Steele’s submissions were accurate, and no filing since has disproved any aspect of Steele’s statement If he thinks that this will get him out of the fact that the CPA "elected to omit substantially all of the disclosures required" I would imagine he's got another thing coming. Steele, also tries to angrily argue away the infamous Brett Gibbs spreadsheet that revealed the revenue of Prenda Law, and how 70% of it went to both Steele and Hansmeier, who have long denied being associated with that firm. Steele argues that this spreadsheet was made by Gibbs, as opposed to (as Gibbs has noted) made by Prenda and shared with Gibbs via a shared Dropbox account. It appears that Mr. Gibbs created some accounting sheet of Prenda Law finances for some period of time prior to this case, and thus is irrelevant. Steele has no personal knowledge of Mr. Gibbs’ accounting records, methodology, or how Mr. Gibbs created his documents. According to Mr. Gibbs himself, he doesn’t either, and claims he doesn’t even know how his document came into existence. Such a document hardly comports with the Federal Rules of Civil Procedure governing admissible evidence. He focuses on the fact that the spreadsheet is not admissible. Of course, his partner, Hansmeier, having argued basically the same thing in the past, has also suggested that the facts of the document are accurate, noting (incorrectly) that the document supports Steele/Hansmeier's position and that it was "stolen." Related to all of this, Steele appears to still be playing games. In a separate filing, Sweet details how Steele took it upon himself to (incorrectly) inform various parties that Sweet had subpoenaed, that the stay on one part of the case meant those subpoenas were withdrawn as well. Except that they're part of a separate process, which is still ongoing. Sweet asked Steele to confirm that Steele had gone back to those third parties, and admitted that he was wrong in interfering with the discovery process. Steele did not do so, but rather sent one of his snarky emails about how he promises that he "will address your most recent round of subpoenas as appropriate." It's been a while since Steele has done this kind of thing, but it's the same old John Steele, cocky until the very end, even as all of the evidence is against him. It reminds you of a little kid who has been caught doing something wrong but figures if he just keeps denying it over and over again, buying himself time, there will be some way to get out of it all.Permalink | Comments | Email This Story

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For the past five years or so, the USTR's chief intellectual property negotiator has been Stan McCoy. McCoy has long positioned himself as an intellectual property maximalist, repeating talking points from lobbyists regularly, while condescending to anyone who questions the legitimacy of those claims. McCoy famously was the chief negotiator behind the US's disastrous (and mostly failed) attempt to push ACTA through, as well as the lead on the TPP's intellectual property chapter -- a chapter so bad it may help sink the TPP agreement. In fact, previous reports have noted that McCoy's bullying and aggression in trying to push through the TPP were angering others in the negotiations. McCoy also has a long history of mocking public interest advocates, while praising maximalists for similar tactics. From a report a few years ago concerning a hearing that McCoy chaired: The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same. Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP's IP provisions... has received his reward and pat on the back from the industry: a shiny new job at the MPAA. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door between maximalist lobbying groups and the USTR: Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy's hire makes it a baker's dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies. McCoy's old job, assistant USTR for intellectual property and innovation, made him the Obama administration's highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn't the first time USTR's top intellectual property official has gone on to take a lobbying job. McCoy's predecessor, Victoria Espinel, is now the head of the software industry group BSA. Espinel's predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community. Another of McCoy's predecessors as USTR's top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry. As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It's a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It's entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get "rewarded" with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process. As Lee notes, as easy as it is to ascribe comic-book levels of ill-intent here, that's unlikely. McCoy and others genuinely believe what they're doing is the right thing. But the end results are clear: I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy's press representative hasn't responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation. But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR's culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy. And it's even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust in all of this. People see it and naturally assume corruption, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA's policies, while brushing off any and all claims from the MPAA's critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception (regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.Permalink | Comments | Email This Story

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Having followed the copyright industry for so long, I'm often shocked at the incredible sense of entitlement of those who argue strictly for greater and greater copyright powers. One thing we've discussed in the past is that the gatekeepers (and it always is the gatekeepers) have an issue of constantly overvaluing the content and undervaluing the service. That is, any time they see a new service come along that the public really likes, they insist that all or nearly all of the value must be attributable to the content and not the service. Thus, they will always argue that "the service" is somehow ripping them off. We've seen it over and over again, from ringtone royalties to Guitar Hero to Pandora and others. Every time the story is the same: these other companies are making some money (even if they already pay us) and therefore we're getting screwed. If anyone else is making any money, then the copyright holders start screaming about how it's completely and totally unfair. In their minds, the value of the service is meaningless. The fact that they were unable to provide such services directly themselves gets totally ignored. They just insist that 100% of the value is the content, and thus they need to get more money. Nevermind the fact that companies like Pandora already pay nearly all of their revenue to the copyright holders. There's always more blood to be squeezed from that stone, even if it means killing the golden goose (to mix a few parables). Two recent stories illustrate this extreme entitlement, and total dismissal of the value of anyone else, perfectly. Let's start with the Aereo case, which was heard today at the Supreme Court. It will be some time before the court rules, but check out this quote from Gordon Smith, the president of the National Association of Broadcasters on why he believes Aereo is breaking the law: “Quite simply, Aereo takes copyrighted material, profits from it and does so without compensating copyright holders,” said Gordon Smith, the president of the National Association of Broadcasters. Of course, that's misleading in the extreme for a variety of reasons. First of all, there are lots of areas where it's perfectly legal to profit from copyrighted materials without compensating copyright holders. Used book stores and used record stores (back when such things existed) are a perfect example. Fair use is another. The point is: just because someone is making a profit does not mean that the copyright holders have to get paid. That's never been the case. In fact, it's the same fallacy described above. People are flocking to Aereo because it provides a better service than the cable companies. But the broadcasters ignore all of that and insist all of the value must come from the content itself. That brings us to the second story highlighting this, which involves comments over in the EU concerning the legality of reselling digital media. Not surprisingly, the record labels, represented by the IFPI and BPI, are 100% against this sort of thing for no logical reason, other than that consumers might actually prefer such a system. They specifically highlight that the quality and convenience of digital resales are too good, and that might upset the business model the record labels have chosen. The argument echoes the labels' argument against ReDigi in the US, a service that allows people to resell digital content that has been shut down in the US. Again, the focus here has nothing to do with what's right or what's best for the public. In fact, the entire argument appears to be "fuck the public, we need more money." It completely ignores multiple studies that have shown that a thriving used goods market increases the value of the original market. It ignores the idea that making things easier and better for consumers is a good thing. Instead, it's all about overvaluing the content and undervaluing everything else. This all goes back to a point we made years ago: industries that have embraced copyright for the entirety of their business model have set copyright up as a crutch on which they lean. Rather than exercising the rest of their body, finding all sorts of other good business models that allow them to improve the experience for customers, they just keep leaning on that crutch and insist it's entirely necessary for them to live. And thus, those other muscles atrophy and wither away. So now that the world is changing and innovating, and others are demonstrating lots of great ways to better serve the public, the copyright maximalists are insisting it's all impossible. They need that damn crutch, and anything else is "piracy." They only have themselves to blame, of course. For decades, people have been explaining to them and showing them how to build better services, how to offer better experiences for everyone, while still making money. And, all they do is lean more on that old crutch and insist it's the only possible way to walk. It's a massive sense of entitlement, in which they appear to have no self-awareness that they're actively advocating for a world in which the public is worse off.Permalink | Comments | Email This Story

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As we've been reporting for nearly a year now, the Turkish prime minister, Recep Tayyip Erdoğan, really hates Twitter. Indeed, it is arguably becoming something of an obsession for him, to the point where he has now taken the unprecedented step of suing his own country over it, as Hurriyet Daily News reports: Prime Minister Recep Tayyip Erdoğan made an application to the Constitutional Court on April 18 over the failure to implement court rulings requesting the removal of content violating his rights, according to a senior official from his office. Erdoğan is seeking 50,000 Turkish Liras in compensation, Reuters reported. The move has been described as a "first of its kind" by the Union of Turkish Bar Associations (TBB) head Metin Feyzioğlu, who said the prime minister of Turkey had never before filed a lawsuit against the state. "There is no precedent for the Prime Minister of the Turkish Republic to sue the Turkish Republic and demand compensation. This is happening for the first time," said Feyzioğlu. He also described Erdoğan's application to the Constitutional Court as "unlawful," on the grounds that domestic remedies had not yet been exhausted. Those domestic remedies include filing a lawsuit against Twitter, which naturally seems to be trying to avoid that: on April 14, its head of global public policy held talks with officials from the prime minister's office, the Communications Ministry and telecom authorities. The company has already made concessions, as this story from Agence France-Press indicates: Twitter blocked two accounts on Sunday that had been used to spread corruption allegations against Turkish Prime Minister Recep Tayyip Erdogan, his government and his inner circle. The move came after high-level meetings between the government and executives from the company last week, and after the Turkish government provoked a storm in March by trying to ban the network entirely. The two accounts blocked on Sunday -- @Haramzadeler333 and @Bascalan -- leaked large amounts of secret documents and recorded phone conversations implicating Erdogan, his family and associates in a wide-ranging corruption scandal. It seems unlikely that blocking a couple of accounts will satisfy the Turkish prime minister -- it may even embolden him. Expect to see further interesting developments in this long-running struggle pitting a popular but increasingly-autocratic Erdoğan against his political opponents and supporters of freedom of speech. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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CNN recently published a follow up story dealing with the circumstances surrounding the suicide of Rebecca Sedwick, a 12-year-old who leapt to her death reportedly due to intense bullying -- and it appears the whole "bullying" part is almost entirely absent. One of the more unexpected outcomes of Sedwick's suicide was the arrest of two students in connection with her death. (Though not wholly without precedent...) According to Sheriff Grady Judd, the two suspects posted messages both before and after Sedwick's death that indicated they were involved in her bullying. The older of the two suspects (one was 14 and the other 12) posted the following on Facebook after Sedwick took her own life. Yes ik [I know] I bullied Rebecca nd she killed her self but IDGAF [I don't give a (expletive)]. Sheriff Judd took it upon himself to have these two arrested, setting a somewhat dangerous precedent in his county that people could be held criminally responsible for someone else's voluntary action. He seemed to approach this as a crusade against the cruelty of youth, one in which laws and common sense could be overturned in order to right wrongs. Judd, as it turns out, has had plenty of crusades in his past. One of his more notable efforts involved sending deputies 1,900 miles away to arrest a suspected pedophile. Judd's moral compass, however, skews a bit further north than most, which makes his stance on issues like pornography and bullying somewhat suspect. In 2007, commenting on a case in which he had arrested a man who was running a porn site out of his home in Polk, [Judd] said: "No normal person could even imagine what's depicted in those videos and in those photographs." A sexual behavior expert from the University of Central Florida said in a motion in the man's court file that it was run-of-the-mill erotica available anywhere on the Internet to anyone. Judd also seldom performs his work without an audience. One colleague of his memorably stated that the most dangerous place to be is "between Judd and a camera." This calls into question Judd's judgement as well, which seems to be at least as populist-oriented as it is crime-oriented. Not long after Judd's high-profile arrest of two students, the charges were dropped by the State District Attorney. Judd applied spin to his prized arrests being cut loose, claiming all he wanted to do was, "bring this conduct to the proper authorities." Considering Judd is one of the "proper authorities," one wonders what endgame he envisioned. It certainly couldn't have been his righteous crusade being found legally untenable by the state. Another crusader, this time a lawyer, decided Sedwick's death called for a new law -- one that targeted parents for not policing their children's online behavior. According to his extrapolations, the parents should be held responsible for an unrelated person's suicide, something even further removed than Judd's assertion that the two students should be held criminally responsible for Sedwick's suicide. (Of course, Judd also thought the parents should be punished somehow, and even hauled in one of the parents for unrelated abuse/neglect charges.) By the time this had all been sorted out, rumors were beginning to surface that Sedwick's home life wasn't quite the placid safehouse her grieving mother had portrayed it as. More than a year before her death, Sedwick had been battling depression resulting from her deteriorating relationship with her father, according to intake reports from a counselor that are included in the police file. She also complained about fights between her mother and stepfather. The file, which has been reviewed by CNN, says she cut herself on a few occasions, had suicidal ideations and had been committed for psychiatric evaluation for two days. In November 2012, she accused her mother of abusing her and then took back the accusation, saying she was pushed to lie by classmates who forced her off campus and told her they wouldn't let her return home unless she lied to an officer. Her mother denied abusing Sedwick but said she slapped the girl's face once during an argument about Sedwick being too young to date. Sometime before her death, Sedwick's relationship with an online boyfriend came to an end, according to the documents. Family conflict, in addition to bullying from girls at school, weighed on her. What wasn't found in the files, however, was much evidence that Sedwick was unrelentingly bullied. "I don't think I was prepared for the abysmal lack ... of any evidence of bullying for the seven months prior to her suicide," said Nancy Willard, director of Embrace Civility in the Digital Age, a group that focuses on combating cyberbullying, and author of a handful of books including "Positive Relations @ School (& Elsewhere)." Willard says this case is like many others: parents and authorities leaping to the wrong conclusions in the aftermath of a tragedy. The haste to pin a suicide on bullying buried the rest of Sedwick's background. This is somewhat understandable, given the circumstances. In the wake of a tragedy, no one wants to point the finger at the parents as possibly being partially responsible for their own child's death. But if these teens were somehow responsible for Sedwick's suicide, then why wouldn't anyone go after the other factors, all of which were included in the police file? Why didn't someone haul in the ex-boyfriend? Surely he's as "culpable" as anyone. No one would think to haul in anyone else (parents, ex-boyfriend) who contributed to Sedwick's unhappiness, but it was considered perfectly OK to haul in two teens and attempt to press criminal charges, even when faced with a dearth of evidence. But that's exactly how ridiculous Judd's efforts were. Now that Judd has apparently seen this lack of evidence for the first time, he's backpedaling quickly. "We never said that bullying was the only reason Rebecca committed suicide," Judd told The Associated Press. "But what the bullies did is that they continued to stack bricks on an already overloaded wagon till finally, it broke." But these "bricks" could have been "stacked" in any order. Judd simply made the most popular move, one that brought in the most unsympathetic suspects. And then he rode his hobby horse hard, until it collapsed under the weight of his misguided convictions. But there are still those who want to make someone pay. The lawyer for Sedwick's mother is planning to sue the school district as well as at least one of the two girls Judd arrested. He claims to have evidence that the teens bullied Sedwick and that the school not only knew, but did nothing to stop it. There is evidence that indicates Sedwick was bullied in the months leading up to her death, but that evidence is scattershot at best. The lack of evidence doesn't necessarily mean it didn't happen, but it does suggest that, coupled with other information coming to light, it was hardly the only factor in Sedwick's decision to end her life. The point here isn't to excuse the bullies for their actions. The point is that far too often the instantaneous reaction to tragedies is misguided and myopic, focusing on the least sympathetic protagonists and ignoring anything else that doesn't fit the narrative that's easiest to accept. The larger problem is that law enforcement and legislators are especially prone to act on this limited (or willfully ignored) information, and that results in all sorts of questionable actions and terrible laws -- things that negatively affect the general public. Permalink | Comments | Email This Story

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As we've discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release "key portions" of the DOJ's classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What's interesting is that the panel came to this conclusion based on the administration's public discussion on drones: The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal. “Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.” The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret -- which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority. As we've seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed "legal" with little to no oversight or review -- and no public discourse whatsoever. Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it's not like the justification is going to be revealed any time soon.Permalink | Comments | Email This Story

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Last fall, many folks who follow these issues were somewhat dismayed by a weird NY Times editorial that appeared to endorse the Trans Pacific Partnership (TPP) agreement, while basically ignoring the many complaints about it. It wasn't exactly a ringing endorsement, but it did clearly support the agreement, concluding with: A good agreement would lower duties and trade barriers on most products and services, strengthen labor and environmental protections, limit the ability of governments to tilt the playing field in favor of state-owned firms and balance the interests of consumers and creators of intellectual property. Such a deal will not only help individual countries but set an example for global trade talks. The endorsement resulted in the Times being rightly mocked for endorsing a secretive agreement that the NY Times editorial writers had not seen (indeed, could not see). Apparently, some folks on the editorial staff took at least some of this criticism to heart, and have now released a new editorial that is much more critical of the TPP -- in particular, the process around it. That is, while the editorial still (rightly, in our opinion) supports the idea of lowering key trade barriers, it finally acknowledges that a lot of what the TPP is doing has little to do with removing trade barriers, and plenty to do with helping corporations push through global regulations that it could not get adopted domestically. Furthermore, it directly takes on the fact that the USTR is ridiculously secretive on the negotiation with everyone except big businesses that have direct access: The Obama administration has revealed so few details about the negotiations, even to members of Congress and their staffs, that it is impossible to fully analyze the Pacific partnership. Negotiators have argued that it’s impossible to conduct trade talks in public because opponents to the deal would try to derail them. But the administration’s rationale for secrecy seems to apply only to the public. Big corporations are playing an active role in shaping the American position because they are on industry advisory committees to the United States trade representative, Michael Froman. By contrast, public interest groups have seats on only a handful of committees that negotiators do not consult closely. That lopsided influence is dangerous, because companies are using trade agreements to get special benefits that they would find much more difficult to get through the standard legislative process. For example, draft chapters from the Pacific agreement that have been leaked in recent months reveal that most countries involved in the talks, except the United States, do not want the agreement to include enforceable environmental standards. Business interests in the United States, which would benefit from weaker rules by placing their operations in countries with lower protections, have aligned themselves with the position of foreign governments. Another chapter, on intellectual property, is said to contain language favorable to the pharmaceutical industry that could make it harder for poor people in countries like Peru to get generic medicines. The editorial further notes the problematic "corporate sovereignty" provisions that allow companies the ability to sue countries for regulations they dislike, noting how it could be abused by banks to block financial regulations (as an example). It further questions some of the predictions of economic benefits from these agreements. Towards the end, it notes (as many of us have been pointing out for years) that the Obama administration, and the USTR in particular, only have themselves to blame for this mess: To a large extent, the administration has only itself to blame. By keeping secret so much information about trade negotiations, which have ceased to be purely about trade matters like tariffs and quotas, the government has made itself a target for criticism. Mr. Obama and Mr. Froman argue that their critics have misunderstood or misrepresented their intentions. But that is precisely why the president should provide answers to the questions people have raised about these agreements. It is time for him to make a strong case for why these new agreements will be good for the American economy and workers. Of course, considering how many times this has been pointed out, and the USTR's only response is to push out blatant misrepresentations of the truth, it seems unlikely that anything is going to change any time soon.Permalink | Comments | Email This Story

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Last week we wrote about the USTR suggesting that any attempt by the European Union to create its own local cloud in order to minimize surveillance by the NSA would violate trade agreements. This has not gone down well with European politicians, particularly in Germany, whose Deutsche Telekom was singled out for criticism. Here's what Bavaria's Minister for Europe, Beate Merk, said while visiting the US, as reported by Die Welt (original in German): "In my talks with the USTR, I've made it clear that our discussions of a "Schengen cloud" [that is, EU-only] has no protectionist background, but is born out of need as a consequence of the lost confidence arising from the NSA business," Merk said to Die Welt. "We have a duty to ensure that the data of people in the EU is safe from unrestrained access by third parties", Merk added. If there is no offer from the US side for more data protection and data security, one is obliged "to propose one's own ideas on this score," underlined Merk. She also pointed out that the EU cloud proposals were being made by commercial providers, not put in place through legislation, which means that the accusation of "protectionism" was simply incorrect. A German member of the European Parliament was even more forthright: "The criticism of the US Trade Representative is bizarre! It seems they've noticed that people have finally had enough and that spying on data will no longer be tolerated." As Die Welt notes, thanks to the USTR's ill-judged comments on this issue: The "Schengen cloud" has become a stumbling block for the planned [TAFTA/TTIP] free trade agreement. Maybe not a very serious stumbling block, but combined with differences over GMOs, hormone beef and cheese names, it's enough to make achieving an "ambitious" agreement, along with its claimed benefits, just that bit more difficult. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Nature has a few examples of animals coming back to life after appearing to be dead -- and not just pretending to be dead, but actually surviving a state of very low metabolism. There are even a few bizarre news reports about people coming back to life. (Ahem, and we're not referring to a certain someone who is well-known for Easter.) Here are just a few examples of seemingly-extreme resuscitation. North American wood frogs can freeze solid and appear dead, until they thaw in the spring and get down to business. The trick is to thaw in the right way. If a frog's brain thawed before its heart did, the frog would have some problems. [url] Hibernating black bears stay dormant for 5-7 months without eating, drinking or doing much of anything. However, a hibernating bear's body temperature doesn't drop much -- about 10 °F -- even though the bear's metabolism is at about 25% of its normal rate. [url] There are a few companies working on cryonics -- freezing people who believe they can be revived when medical technology is much more advanced. Maybe these people are hoping to meet Erin Gray someday.... [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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Snowden's puzzling single-question Q&A with Russian president Vladimir Putin on the topic of domestic surveillance prompted many to believe this was an indication that he was, at the very least, under control of Russian intelligence, if not actually acting in concert with it. Putin took the apparent softball and lined it right down the middle, responding with a series of statements and denials that made Russia appear to be the antithesis of the US government: tightly controlled intelligence built on respect for its citizens' privacy. As Snowden later clarified, he was pulling a Wyden -- crafting a question about the mass collection and storage of communications that would either result in transparency or an easily-disproven denial. Putin delivered the latter. "Mr Snowden you are a former agent, a spy, I used to work for a intelligence service, we are going to talk the same language." He said Russia did not have a comparable programme, stating: "Our agents are controlled by law. You have to get court permission to put an individual under surveillance. We don't have mass permission, and our law makes it impossible for that kind of mass permission to exist." Putin's response was laughable. After all, his nation's intelligence services originally put the "surveillance" in Surveillance State. In the USSR, along with the Eastern Bloc, citizens were very closely watched and routinely punished for not toeing the Party line. Not much has changed, even if Russia is nominally a "free" country. The Russian Federal Service for Telecoms Supervision (Roskomnazdor) is continually expanding its internet censorship efforts and Russian intelligence services have made public announcements about their surveillance plans, like the collection of all foreign communications during the Sochi Olympics. While Roskomnazdor mans the front door, Russian intelligence lets itself in the back, according to information gathered by Privacy International. When the Soviet Union collapsed, many of the KGB’s regional branches became the security services of the newly independent states. But they didn’t stray far from the Kremlin’s lead. They modeled their governing laws after Moscow’s, and used similar technology, too. Namely, SORM — Russia’s nationwide system of automated and remote legal interception on all kinds of communications. SORM’s tactical and technical foundations were developed by a KGB research institute in the mid-1980s. Initially SORM was installed on analogue telephone lines. As new technologies developed, SORM did, as well. Today SORM-1 intercepts telephone traffic, including mobile networks, while SORM-2 is responsible for intercepting internet traffic, including VoIP. SORM-3 gathers information from all communication media, and offers long-term storage (three years), providing access to all data on subscribers. In addition, SORM enables the use of mobile control points, a laptop that can be plugged directly into communication hubs and immediately intercept and record the operator’s traffic. SORM also proved essential to spy on social networks based in Russia. “We can use SORM to take stuff off their servers behind their backs,” an FSB official told us. According to figures published by Russia’s Supreme Court, over the last five years the number of legal telephone intercepts alone has almost doubled, from 265,937 intercepts and recordings of phone calls and e-mails to 466,152 in 2011. Going back to Putin's statement, he claims that "court permission" is needed to put someone under surveillance. From the above paragraph, that statement would appear to be true. But further digging into SORM reveals that court orders and warrants are little more than surveillance blank checks. In Russia, an FSB operative is also required to get an eavesdropping warrant, but he is not obliged to show it to anyone. Telecom providers have no right to demand that the FSB show them the warrant. The providers are required to pay for the SORM equipment and its installation, but they are denied access to the surveillance boxes. Thus, the FSB does not need to contact the ISP’s staff; instead the security service calls on the special controller at the FSB HQ that is connected by a protected cable directly to the SORM device installed on the ISP network. This system is copied all over the country: In every Russian town there are protected underground cables, which connect the HQ of the local FSB department with all ISPs and telecom providers in the region. If the FSB needs to add targets to its existing "tap," it doesn't need to notify the court. The agent in place simply updates the SORM control device. So, one controller and one court order can easily trap the communications of an unlimited number of citizens, all without anyone but SORM knowing who's being surveilled. This technology has made its way to the former Eastern Bloc (which hasn't made those countries happy) and has been deployed to intercept communications from political opponents. The more things change, the more Russian intelligence appears to be happy to return to its KGB heyday. Beyond the fact that Putin's answer was simply (and knowingly) false, there's also the fact that his denials echo those delivered by NSA and GCHQ officials. Whenever a new leak surfaces, the routine denial is dispensed. Here's GCHQ's canned response: [A]ll of GCHQ’s work is carried out in accordance with a strict legal and policy framework which ensures that our activities are authorised, necessary and proportionate, and that there is rigorous oversight… Putin basically says the same thing while denying information that's already been made public. According to him, it's all legal and subject to oversight, something that clearly isn't the case. Certainly Snowden expected a canned answer, and he got one -- one in which Putin lied about his intelligence agency's capabilities and tactics. At one point, we in the US (and the UK) could have mocked such a clearly false denial, but after the events of the past nine months, we no longer have that luxury. The problem isn't that we don't expect Russia's government to have made a sea change in its relationship with its citizens. The problem is that we didn't expect ours had. Putting this on Snowden's head because a softball question was handled with a PR-savvy answer doesn't make him complicit with the FSB's surveillance activities. But our politicians and government agencies have made us unwillingly complicit with our own. "Legality" and "oversight" are mere buzzwords in the hands of surveillance state defenders. The words don't mean what they used to… if they ever meant anything at all. Permalink | Comments | Email This Story

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More evidence is being uncovered indicating that if the government wants access to privileged attorney-client communications, it will find a way to do so. This new incident, tied to the 9/11 trials, follows the news that the NSA gave Australian intelligence the go-ahead to intercept communications between an American lawyer and his Indonesian clients. This previous incident resulted in the American Bar Association sending a letter to the NSA asking it to uphold the sanctity of attorney-clients communications. Gen. Alexander's response was basically "of course we respect that, but we grab so much stuff there's no way for us to guarantee we'll never intercept privileged communications." Not much in the way of reassurance there, and this following story shows there's even less reason to believe that investigative and national security agencies won't insert themselves into the attorney-client relationship. Two weeks ago, a pair of F.B.I. agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk. They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation. With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant. There's not much more available detail-wise, as the defense's motion informing the court of this subversion is -- like most of the documents related to this trial -- under seal. But everything leading up to this new revelation indicates the government views this trial to be a forum where the normal rules just don't apply. To begin with, this was never meant to be much more than a show trial. The special tribunal system was set up by President Bush after the 9/11 attacks, specifically for suspected terrorists. (Despite the stacked deck -- foreign terrorism suspects aren't afforded the same legal protections as US citizens -- the court has yet to secure a conviction in its 12+ years of existence.) This special system has resulted in several instances of access to attorney-client communications, some intentional and others (supposedly) more inadvertent. Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so… A botched computer update gave prosecutors and defense lawyers access to the other side’s confidential work. And the Pentagon acknowledged inadvertently searching and copying defense lawyers’ emails but said nobody read them. And it's not just the defense that's bothered by these incidents. Christopher Jenks, a Southern Methodist University law professor and a former military prosecutor, said he sympathized with the Guantánamo prosecutors, who appeared to have been just as surprised as defense lawyers by the appearance of the F.B.I. and C.I.A. in their cases. But even more troubling is the fact that an agency supposedly uninvolved in the proceedings has gone so far as to subvert the judicial process altogether. Last year, as a lawyer for Mr. Mohammed was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected. After witnessing the amount of effort the CIA has made in order to thwart the release of the torture report, it's of no surprise that it tried to control the narrative here as well. It's also no surprise the agency feels it should defer to no one, not even a presidentially-directed tribunal. The government does have a little more leeway, considering these aren't your normal, subject-to-due-process trials, but it's still problematic that despite the advantages of a quasi-tribunal set up by a presidential order in the wake of the 9/11 attacks, government investigative agencies still feel compelled to not only insert themselves into the process, but to subvert client-attorney privilege on top of it. All's fair in the War on Terror, it would appear, even when those suspects are safely locked up and going into their second decade of detention as the broken process labors on. Permalink | Comments | Email This Story

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A New York University trustee has found a way to chill speech critical of him and the companies he owns: subpoena the personal emails of two particularly outspoken opponents. A New York University Law trustee's company wants two students to hand over their personal emails after they circulated a letter criticizing him, according to a subpoena. The law students, second-year Luke Herrine and first-year Leo Gertner, were targeted after they helped circulate a letter denouncing NYU Law School trustee Daniel Straus, who owns Care One Management, a home health aide and nursing home company embroiled in a labor dispute. The two students started a petition asking for the removal of Straus from the Board of Trustees, pointing out that a law school should probably be associated with someone who respects the law, something Straus' companies seem to have trouble doing. His two companies, CareOne and HealthBridge Management, have been cited at least 38 times by the National Labor Relations Board for violating federal labor laws. In addition, HealthBridge was held in contempt of court for refusing to allow 600 workers to return to their jobs at their pre-strike pay levels. CareOne's current legal battle with a local labor union, Service Employees International Union (SEIU), something that has dragged on for years at this point, has seemingly turned into a convenient way for Straus to get back at his critics. Of course, CareOne claims otherwise. CareOne spokesperson Deborah Maxson said the deadline for the requested information is April 25. “Straus is not a party to the lawsuit and is not managing the litigation,” Maxson said. Straus may not be a party to this lawsuit, but these are his companies, and there can be very little doubt that Straus would prefer the ongoing criticism of his business efforts be halted. If CareOne wants to use the excuse that Straus isn't a "party" to this lawsuit, then it needs to extend that same courtesy to the two students, who also aren't a "party" to the ongoing legal fight. Then there's the content sought by the subpoenas. This, too, mentions Straus directly, even as CareOne claims this has nothing to do with him. According to a letter sent by the Board of Trustees to NYU administration, this is what CareOne is hoping to obtain: “The subpoenas requested information regarding any contact the students may have had with SEIU and any activity they may have engaged in, such as protests or meetings, relating to Mr. Straus or CareOne...” If Straus isn't "party" to this lawsuit, why does CareOne need information relating to Straus? Beyond that, the information requested bears all the hallmarks of trying to use the power of the court to silence free speech. Protests and meetings, both activities covered by the First Amendment, are mentioned specifically by the subpoena. For what it's worth, NYU has stepped up and has provided the students with the pro bono help of one of the school's lawyers. It also issued a very carefully-worded defense of the students, no doubt mindful of Straus' $1.25 million annual endowment. “The Law School is not a party to the litigation between Care One and SEIU, and will remain uninvolved in it," the school wrote in a statement to DNAinfo New York sent Thursday. "We vigorously support the right of our students to express their views and to organize and participate in lawful demonstrations and other protest activity, at the same time that we acknowledge that parties to litigation are permitted, subject to applicable rules and judicial oversight, to gather evidence in support of their case." Further statements reiterated NYU's support for its students' rights but also noted it considered Straus to be an "upright and honorable person." That said, it seems that there is a clear -- and somewhat massive -- conflict of interest for Straus to remain on the board of trustees at NYU Law at the same time he's using the legal process to demand the email contents from two of its students. As is noted by the students' new petition demanding the withdrawal of the subpoenas, this sort of activity, undertaken by a "victim" of criticism, will discourage others from approaching anything remotely controversial. Forcing students to turn over emails and other private communications in litigation that does not concern them can chill free speech on campus and make students think twice about raising their voice about controversial issues. This is antithetical to NYU's mission of open academic inquiry and commitment to the public interest. Rather than address these concerns, Straus is allowing (or directing) his company to shut down his critics by seeking personal communications from non-party NYU students. Straus also has additional leverage with the university should this fail to keep future criticism at bay. Of course, there's always a chance NYU will side with the students and decide that Straus' companies don't really reflect the culture it's trying to instill in its students. But until this all plays out, we're just witnessing the sort of tactics deployed by entities who would rather shut people up than address their concerns. Permalink | Comments | Email This Story

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A few weeks back, I read a Washington Post story "Inside the admissions process at George Washington University" and noted this interesting tidbit towards the end: GW also asks students to list a role model and two words to describe themselves. As for herself, Freitag said, she would list “Martha Stewart/Tina Fey” and “sassy/classy.” This year, she’s seeing a lot of Edward Snowden citations. I had thought about writing it up, but decided it was a pretty small thing, really. It's not secret that, as a group, younger people have a much more favorable impression of Snowden than older people. However, apparently it set off alarm bells in James Clapper's head. He recently gave a keynote speech at the GEOINT conference, and used the opportunity to vent about stupid kids and their stupid love of that stupid Ed Snowden. And apparently he's going to be doing a lot of that. “An admissions officer from George Washington University told The Post that for the admissions’ essay question, ‘Who’s your personal hero?’ the admissions officer observed that she was seeing a lot more of Edward Snowden citations. And the idea that young people see Edward Snowden as a hero really bothers me. So I thought I needed to talk about Snowden at Georgetown and Georgia and I am going to do the same elsewhere at colleges and universities.” His attempts to do so in the speech, not surprisingly, really seem to fall flat. He claims that "despite being a geezer" he gets why you stupid kids like Snowden: “I understand that a lot of young people see Snowden as a courageous whistleblower standing up to authority. I personally believe that whistleblowing in its highest form takes an incredible amount of courage and integrity. But Snowden isn’t a whistleblower,” To prove this, Clapper comes up with an example of a whistleblower that he thinks "did it right." The army reservist who alerted others to the photos of Abu Ghraib prisoners being abused. And that guy is a whistleblower too. But just because one whistleblower did things one way doesn't discount the experience of other whistleblowers. And the reason so many people look up to Ed Snowden and see him as a hero is that, unlike the Abu Ghraib situation, with the NSA setup, basically the whole system was stacked against him. Clapper insists Snowden had legitimate paths to go down. "Snowden said he felt NSA’s surveillance program was being used to violate privacy and civil liberties. If that was his concern, he had a lot of options on where to go with it. He could have reported it to seniors at NSA, which he didn’t do,” Of course, Snowden claims that this is a lie and that he did raise concerns through the proper channels, only to have them ignored. “There’s an inspector general for NSA and another one for the entire intelligence community. My office has a civil liberties and privacy protection officer. Snowden could also have gone to the Justice Department or the Congress. And as we’ve seen Snowden is superb at finding information so I think he could have tracked those people down had he given it a little thought,” Of course, the inspector general for the NSA has since made it clear that if Snowden had complained to him, he would have shut him down and insisted there was nothing to worry about. Okay, so what about the one for the entire intelligence community? You mean the one that has rejected Congress' request to investigate the NSA? Congress? Considering how much difficulty Senators Wyden and Udall had in getting anyone to listen to them over the past few years, that was clearly a dead end. The Justice Department has also been equally complicit in the whole thing, since the NSA works hand in hand with the FBI, and the DOJ itself is the one that goes to the FISA Court to request these secret interpretations of US law. It's pretty clear that the options Clapper listed were not options at all if you really believed that the intelligence community was in the wrong (as over half of the American public now believes). And of course, that's what Clapper really means here. He would have been much, much happier if Snowden had gone down a path that would have completely buried his concerns, making sure there was no debate about the US's creeping surveillance state, dismissal of the 4th Amendment and increasingly secret interpretation of laws to spy on everyone. And I'm sure he would have been a lot happier to never have had the fact that he flat out lied to Congress revealed. Clapper also repeated the old saw that because of the leaks, those darn terrorists are changing how they communicate: “We’re beginning to see changes in the communications behavior of our adversaries, particularly and most disturbingly terrorists, a trend that I anticipate will continue. And as a consequence our nation is less safe and our people less secure.” Of course, as Kevin Gosztola points out, the same claim has been made for nearly a year, so it's a bit bizarre to have Clapper say now that they're just "beginning" to see changes. Even more to the point, these claims are almost certainly bullshit anyway. Elsewhere, when no press was around, Clapper has admitted that the NSA isn't actually concerned about terrorists changing their communications practices, saying that they can track them just fine. Furthermore, the idea that any of the revelations really changed how terrorists view their communications habits seems unlikely. As we've pointed out a few times, it's pretty clear that terrorists were well aware of our intelligence capabilities over a decade ago, and have acted accordingly. The only new thing that has really been shown is how the US uses these same techniques across nearly all American citizens, as well as friends and allies. Finally, as Gosztola points out, Clapper's real guffaw-inducing statement in the speech is to argue that his "major takeaway from this whole experience though has been the need for transparency" followed by him taking credit for "the decision to declassify more than 2000 pages of documents beginning last summer because the best way to deal with the misconceptions that had resulted from the leaks was to increase transparency." Except, as we've pointed out a few times, nearly all of the documents he's released have not been because of any major epiphany by Clapper, but because of lawsuits from the EFF, ACLU and others, something Clapper's office almost never admits (though, the last few releases have sometimes acknowledged it -- the last one only acknowledged it on Twitter, though). And trying not to gag while reading this: But the same transparency that reassures our citizens comes with a cost. It hurts our capabilities because our adversaries go to school on that very transparency. But when we boil it all down, we felt I felt we needed to pay that cost. Even if it meant losing some sources and methods, we need to engage in the kind of national conversation that free societies have - to correct misunderstandings that lead to false allegations in the media and to counter misperceptions that the IC work force is violating civil liberties. So we made the painful choice to declassify critical documents in the interest of being more transparent Yeah, right. There's a reason people think Ed Snowden is a hero and James Clapper is a lousy liar. And this little tour to try to convince students otherwise isn't likely to change that.Permalink | Comments | Email This Story

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This is hardly a surprise, given that we'd already covered the brief submitted by the US Solicitor General's office in support of the broadcasters and against Aereo, but the Supreme Court has agreed to allow the office to argue in court tomorrow in the Aereo case. Again, not surprisingly, the Solicitor General's office tends to have a lot of sway with the Supreme Court, so this is effectively the US government tipping the scales of justice in favor of Hollywood and against the internet, where the impact of a ruling against Aereo may be quite severe. The Solicitor General's office has argued that a ruling for Hollywood won't impact the cloud, basically because they say so. But, as we've discussed, its argument there is truly bizarre, in that it just asserts that such a ruling "need not" impact the cloud, and never bothers to address the many reasons it will absolutely impact the cloud. In fact, many of the other briefs in support of the broadcasters' position insist that the broadcasters should win because all those other companies can "just get a license." Now think about that for a second. Imagine using your Dropbox if nothing can be uploaded until Dropbox confirms it has a license for the work. Right. That's not going to work. And, of course, this is what this case is all about. Broadcasters have always hated the internet, because they can't control it. Broadcasters have spent decades honing a business model that is based around a "broadcast" model. That is, they send out a signal, and the masses "consume" it. The internet has shaken that up in so many ways, because the internet is not a broadcast system. It's a communications system that allows anyone to communicate with anyone. For decades now, broadcasters have worked hard to reshape the internet into a better "broadcast" medium. That's what nearly every copyright challenge is about. Giving more control to the big broadcasters, while making it harder for the everyday internet user to do anything online without getting it shut down. Stifling cloud computing by pushing for every bit of content -- even those totally in control of an individual user -- to be "licensed" is just the latest such attempt to stifle the internet as a communications medium of the people, and to push it to be a broadcast medium for a few giant entertainment companies. So, really, the big question is why anyone thinks it's appropriate at all for the US government to weigh in here. We've already noted the significant conflict of interest in that the Solicitor General himself, Donald Verrilli, spent many years as Hollywood's top lawyer, even arguing in the Supreme Court on some key copyright cases. And while he recused himself from all of this, it at least smacks of the "too cozy" relationship between Hollywood and the US government. Also recused is Verrilli's top deputy who, prior to rejoining the government a few years ago, was a top lawyer at Jenner & Block, the very same law firm representing the broadcasters in this case. Yes, they've recused themselves, but given that it's rather bizarre that the Solicitor General's office decided to get involved in this case in the first place, it certainly raises eyebrows about the reasons. This is a dispute where the US government really has no role joining in the proceedings, but it has decided to assert itself, solely on the side of broadcasters and against the internet. Seems like an odd choice for an administration that has claimed to be so internet savvy.Permalink | Comments | Email This Story

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So, we already wrote about the RIAA's big new legal attack on Pandora over royalties on pre-1972 sound recordings. The legal issues there are complex and convoluted, involving a mix of state common law along with federal copyright law. However, the RIAA has clearly decided that it's not going to delve into the nuances there, preferring to go with totally bogus spin. This started with an opinion piece by SoundExchange's CEO, in which he claimed that it was unfair that artists from pre-1972 works weren't getting paid. And with the launch of this lawsuit, the RIAA is trotting out some artists who are making similarly bogus statements: The RIAA circulated the lawsuit on Thursday along with quotes from artists or their heirs. "It’s an injustice that boggles the mind," says Booker T. & the MG's Steve Cropper. "Just like the programmers who deserve to be paid for their work, I deserve to be paid for mine.” This depresses me, in part, because I'm a huge Steve Cropper fan -- and have spent tons of money purchasing a variety of music from Booker T. & the MG's over the years (and plenty of other of Cropper's work both at Stax and elsewhere). However, this is a really unfortunate and misleading argument. It's obviously an attempt to hit at those terrible "techies" at Pandora, implying that Pandora's engineering staff continually gets paid for their work. But it actually underlines how silly the RIAA's argument is here. Because no Pandora programmer expects to get paid for his work 50 years from now. They get paid today to work today. And that's it. If that person leaves Pandora tomorrow, then they don't keep getting paid for it. Nor do they expect their children and grandchildren to keep getting paid for it. Booker T. and the MG's biggest hit, Green Onions, came out in 1962. It would be great if Cropper could point to a programmer who is still getting paid for code he wrote in 1962. Because I would imagine it's not a very big list. This is also why many of the other quotes the RIAA is pushing concerning this effort are so misleading as well. Buddy Holly's wife, Maria Elena Holly, rightly notes that "Many artists from the 1950s are retired and struggling to support themselves or have families or heirs who are trying to make ends meet." That is, no doubt, true. But that's a different issue. Copyright was never meant to be a welfare system for artists. It was never meant to keep paying them in retirement. It was meant to be an incentive to create, and once it worked, that was it. In fact, under the copyright laws that were in place in 1958 when Buddy Holly released his hit "Everyday," the absolute longest that the copyright on that song could have lasted was 56 years. In other words, when Holly released that song, he knew that by 2014 (hmmm...) that song would be in the public domain. So it seems, well, a bit unseemly to suddenly be whining about it now. In fact, I'm sure that many programmers from the 1950s are similarly "retired and struggling to support themselves or have families or heirs who are trying to make ends meet." And many of those retired programmers created the underlying structure and systems for today's computers and internet, which has created so much value for the world. But we don't see them and their heirs whining about how the world owes them a living for work they did more than half a century ago. And this is the problem. There are almost no professions in the world in which you get to do some work (even if it's amazing work) half a century ago, and then still have people paying you for it today. To act like this is some sort of massive offense just seems silly and misguided.Permalink | Comments | Email This Story

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posted 2 days ago on techdirt
Our nation's singular focus on terrorism has led to various branches of the government and counterterrorism pundits declaring all sorts of things to be warning signs of terrorist activity. Here's a short (but by no means all-inclusive) list of activities that are supposedly indicators of terrorism-in-progress. Staying in a hotel and doing any number of "odd" things. Like not using the hotel's wifi, making requests in person at the front desk, not bringing enough baggage, using entrances/exits other than the one in the lobby area or turning down room service. Complaining about the TSA. Complaining about the water quality. Complaining. Contributing to Wikileaks (or even frequenting the site). Deploying glitter during a protest. Being a journalist. (UK edition) Encrypting your data. Expressing dissatisfaction with government policies. Having "money problems." Operating a food truck. Now, here's a new one to add to the list. If Lisa Monaco (White House Homeland Security and Counterterrorism Advisor) is to be believed, nearly every parent, especially those with stereotypical teens in the household, is harboring potential terrorists. “Parents might see sudden personality changes in their children at home—becoming confrontational. Religious leaders might notice unexpected clashes over ideological differences. Teachers might hear a student expressing an interest in traveling to a conflict zone overseas. Or friends might notice a new interest in watching or sharing violent material.” That's right, parents. If your child seems moody, unreceptive to your religious leanings, enjoys watching violent "material" or wants to travel nearly anywhere in the world (not a whole lot left outside of the First World that can't be described as war-torn), he or she is your family's very own "insider threat." Monaco understands this might be troubling for parents to hear, but it's all for the best. Remember, parents: only you can prevent terrorism. “The government is rarely in position to observe these early signals, so we need to do more to help communities understand the warning signs, and then work together to intervene before an incident can occur.” The nation's counterterrorism forces are profoundly sympathetic for these terrorist-raisers. They truly wish they could be in the position to catch these early warning signs, but our short-sighted predecessors have prevented them from observing first-hand, thanks to obstacles like the Third and Fourth Amendments. Not to worry. As Monaco points out, the nation has mobilized parents' neighbors against them, providing them with any number of see-something-say-something venues with which to turn in your confrontational, agnostic, R-rated movie-watching hellspawn -- just in case you don't love America enough to do it yourself. Oh, and P.S.: the DHS reiterates its commitment to flooding small towns with military vehicles and weaponry. Monaco said that in addition to citizen alertness, the Department of Homeland Security is increasing its partnerships across the country and making hundreds of millions of dollars in grant money available annually to local law enforcement to help improve anti-terrorism security at the municipal and county level. A terrorist in every household and a military assault vehicle in every unincorporated township. USA! USA! USA! Permalink | Comments | Email This Story

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