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This week, our first place winner on the insightful side is Damien with a simple summary of the lack of logic behind link taxes: You know, I have yet to see a single source explain how a snippet tax is anything more than trying to charge people for talking about a news story and directing others who are interested to the original source. Apparently "on the internet" really does change everything. In second place, we've got a response from That Anonymous Coward to the FCC's aggressive demands for personal info from someone who made a pseudonymous FOIA request for information about Ajit Pai's Reese's Pieces mug: "In order to proceed with your request, please provide us with your name, your personal mailing address, and a phone number where you can be reached...." Aren't these the same assholes who had no problem with letters of support submitted in the name of the dead, people who submitted nothing, people who knew nothing about net neutrality, and people who opposed what the FCC was doing but someone used their names to give glowing copypasta support? Also can someone cite the part of the FOIA law that demands all of this information be turned over on demand?? Or is the FCC still making shit up as they go... For editor's choice on the insightful side, we've got ArkieGuy with a take on the link tax's cousin — the snippet tax — inspired by German publishers comparing quoting to stealing a pound of butter: The snippet tax is like wanting to charge cookbook publishers for recipes that call for butter. If you start charging people to recommend butter in their recipes, you won't sell as much butter. Next, we've got a comment from any moose cow word about the absurdity of the EU Copyright Directive's upload filtering requirements: There's no centralized database of copyright licensees, only copyright holders have access to those records. Yet, not even the largest copyright holders are able to verify which users were granted permission with the accuracy they demand be enshrined in law. How do they expect anyone else to do something only they have the capacity to do, and even they are incapable of doing? Over on the funny side, our first place winner is Ehud Gavron responding to the FCC's FOIA resistance with a bit of a low-blow that is hard not to giggle at: Yes, Ajit Pai has a stupid mug. He also has a funny coffee cup :) E In second place, we've got an anonymous response to a commenter who tried to portray our criticism of Google's recent patent attempts as further proof that we are Google shills: Mike: "Google should be shot in the head." You: "Look at Masnick wanting us to donate bullets to Google as if they don't have enough. Shill!" Also you: "Corporations are bad...unless they're intellectual property maximalists who have cheated actual artists and creators out of the fruits of their labors since the time of Queen Anne." For editor's choice on the funny side, we start out with a comment from tanj about a South Carolina drug task force serving regular warrants like no-knock warrants: They did knock. Once, with a battering ram. They did announced their presence, quite loudly. Finally, we've got a comment from Ninja confessing to an appropriate misreading of something in our post about the FCC's fake DDoS attack: "There's likely several more layers to this story" At first I read LAWYERS instead of layers. Which would be pretty accurate as well. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week, instead of going through the usual look at what was happening five, ten and fifteen years ago, we're going to put all the focus on the events of this week in 2013. Why? Because it's the week that the revelations of NSA spying, which dropped last week, truly hit the fan. There was a whole lot of news about it, almost completely dominating Techdirt, and it's worth a closer look. As the leaks kept coming, it was revealed that the source was Edward Snowden, who described his ability to wiretap anyone from his desk. As politicians scrambled to defend the program, the DOJ was trying to cover up the secret court ruling about it, and we realized the big scandal wasn't that the NSA did something illegal, but that it probably didn't. Some defenders of the PRISM program tried to claim it helped stop an NYC subway bombing, but the evidence was lacking and even the Associated Press soon called bullshit. James Clapper was simultaneously claiming that the leaks were a danger to us all, and also no big deal, while the author of the Patriot Act stepped up to say NSA surveillance must end, and that the law was supposed to prevent data mining. It started becoming clear that the metadata story was the biggest one. Some politicians began speaking out, with Senator Rand Paul calling for a class-action lawsuit against the NSA, and Senator Ron Wyden calling for congressional hearings, before a group of Senators got together to introduce a bill to end the secrecy of the FISA courts. One Senator had previously predicted a lot of this, but unfortunately he got voted out of office in 2010. Meanwhile, a former NSA boss said the leaks show America can't keep secrets, even though they really showed the opposite. The public was divided in its opinion on the program, depending heavily on how the question was asked. And we pointed out that the leaks show the importance of Wikileaks and similar operations. The backlash grew, with Derek Khanna calling for James Clapper to be impeached for lying, a team of 86 companies and other groups called on Congress to end the spying, and the ACLU suing the government for 4th amendment violations. Various former NSA whistleblowers spoke up in defense of Snowden and against the agency's practices. Of course, there was also some pathetic backlash in the other direction, with Rep. Peter King calling for the prosecution of journalists who report on the leaks, and Congress moving to improve secrecy instead of fixing the problem. Then things began getting even worse, with the possibility emerging that the PRISM program enabled espionage against allies. A new leak at the end of the week revealed the NSA's talking points for defending itself, and sales of George Orwell's 1984 began to skyrocket, and... well, let's just say there's plenty more on the way in the coming weeks. Permalink | Comments | Email This Story

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Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game. In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise. The long-awaited sequel to a 2003 Ubisoft game that was critically loved but flopped at retail, Beyond Good and Evil 2 will take place in an open universe full of strange creatures and cultures. During its E3 press conference, Ubisoft said that fans will be able to help populate that universe with their own music and artwork through a partnership with a company called HitRECord, with that company’s founder, actor-turned-entrepreneur Joseph Gordon-Levitt, appearing on stage. The HitRECord-powered Space Monkey Program allows fans to submit ideas and works into a series of musical and visual categories like “devotional music,” “anti-hybrid propaganda,” and “anti-establishment art.” Other fans can then comment on and remix those works, which will ultimately be evaluated by HitRECord and—if they fit the game well enough—sent along to Ubisoft. Everybody who’s contributed at all to an accepted work will be paid. If you're anything like me, your reaction to this was purely positive. Fans of Ubisoft titles and Beyond Good & Evil get to contribute to the game in a way they will recognize and be paid some amount of money for? How cool is that? Collaboration with fans on the creation of art is squarely in the realm of our CwF+RtB formula. To add some compensation to that makes this all the better. And, in my opinion, if this were anyone but Ubisoft doing this kind of thing, nobody would be pushing back on it at all. But because of Ubisoft's sketchy reputation, many are viewing this through purely cynical glasses and seeing nothing other than a company trying to avoid paying the full rate for the creation of its game. Almost immediately after Ubisoft’s conference, critics and developers started asking questions: Why not just pay full-time, salaried developers to do this work? What happens if fans’ work doesn’t get accepted? Do they not get paid? Did they do it all for nothing? Scott Benson, the co-creator of the indie game Night in the Woods and a vocal advocate for workers’ rights, pointed out that HitRECord’s business model seems to rely on what’s known as “spec work,” short for “speculation.” This is a common but nonetheless ethically muddy practice in creative and design fields. When you do work “on spec,” you’re producing something that a buyer might decide to pick up and then pay you for. Great, except this isn't being done in the "creative industry" at all, but rather directly with fans of the game franchise. Were Ubisoft trying to strong-arm artists for content it would otherwise pay for up front, then, yeah, this would suck. That's not what it's doing at all, though. Instead, the company is going directly to fans and asking them, rather than coercing them, to get involved in the project in a way those fans will find meaningful. Does this have the happy coincidence of being somewhat less costly? Sure. There's no denying that. But so what? If fans of a game are able to compete with the art created by the creative industry and want to do that type of thing under this platform, where exactly is the ethical dilemma? Were Benson to have his way, fans should be denied this opportunity because... why? Because someone else might not get paid? Where is the sense in that? There's also something to be said for HitRECord's meta-crowdsourcing experiment here and how interesting it will be to see if it can be pulled off. “At HR, people build on each other’s ideas, and our website (and community) keeps track of how projects evolve—and how ideas influence one another,” HitRECord executive producer Jared Geller said in an email, noting that the company has paid out a total of nearly $3 million since it was founded in 2010. “So any contribution that is included in any of the songs or visuals (guitar parts, vocal stems, etc) delivered to the Beyond Good and Evil 2 dev team will get credited and paid. If your contribution isn’t used, you don’t get paid.” So it's not just milking a fanbase for cheap labor, but allowing that fanbase to them play off of one another and build a community product, which will then be injected into the game and for which they will be paid. I mean, come on, if everyone could take their labor union hats off for just a second, they'd have to admit how cool an experiment this is. And, while HitRECord will have the ultimate decision-making authority on how compensation is divvied up between creators, it even takes feedback from multiple creators into account when making those decisions. The one area where there might be real concern is copyright infringement. There are other possible complications, as well, said a representative of NoSpec, an organization that advocates against the practice of spec work. “When people who participate in spec work know that the chance of payment is slim-to-none, it invites the fastest possible turnaround, and we’ve found that spec websites (those that sell design contest listings) are rife with plagiarism,” wrote the rep in an email. There is truth to this and Ubisoft and HitRECord have better have their shit in order if they don't want to turn this into some hellscape of accusations about plagiarism and copyright infringement. But if they can pull this off, the end result is going to be the injection of the voice of the fan directly into its game, which is about all we could hope for coming from a content producer. I'll end this with a thought experiment. Imagine for a moment if I had written this same post, except I did a find/replace for "Ubisoft" and replaced it with "Sole game creator." Does anyone really think the same level of outrage would exist? If not, then this isn't a moral question at all, but a monetary one. And if that's the case, it should go without saying that Ubisoft's reputation shouldn't prevent it from being able to try something good and cool with its fans. Permalink | Comments | Email This Story

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Yet another Florida sheriff with a penchant for publicity is using his office (and manpower) to start some garbage viral War on Drugs. Hence, every bust made by his department -- utilizing armored vehicles and deputies that look like they shop at military surplus stores -- is splashed across the department's Facebook page. Fine, if that's what gets your blood flowing, but these scenes of busts, featuring the Sheriff front and center, contain claims that just aren't backed up by the actual paperwork. George Joseph of The Appeal has the details. The video finds Sheriff [Darryl] Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.” Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office. At best, maybe five will be going to jail. The sheriff depicts this as a raid on a "narcotics house" targeting opioids. The records obtained by The Appeal show no opioids were found during the raid. Four of the five adults were arrested for marijuana possession. The fifth was charged with MDMA and cocaine possession. But chances are those drugs might vanish along with the nonexistent opioids Sheriff Daniels proudly proclaims were taken out of circulation. Note the line about the field drug tests performed. These have already been proven bogus. A sheriff's office spokesman informed The Appeal that the 1.2 grams of heroin and fentanyl seized during the raid turned out not be opioids after being lab-tested. But the field tests told Sheriff Daniels everything he wanted to hear. The reliance on cheap, terrible drug field tests is part of Sheriff Daniels' drug-raiding tradition. Arrests and seizures sound great when you're dragging a camera through someone's house for a Facebook video, but when nothing holds up in court, you're left with an empty charade using citizens as clickbait. A former deputy contacted by The Appeal points out that cheap drug tests are just another tool for abusive police work. “The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.” This same former deputy also pointed out the marijuana charges were trumped up. According to reports, 35 grams of marijuana were seized during the raid, but somehow two people are being charged with possession of more than 20 grams. Cheap tests, cheap vicarious thrills, and a whole lot of hype over drug charges that will likely dissipate into minimal punishment (if anything) once the lab tests arrive. That's how America's drug warriors roll. Sheriff Daniels rolls a little harder than most, but that's because tough-on-crime sheriffs are newscaster favorites. As The Appeal points out, Daniels has leveraged these videos to appear on national news networks and say ridiculous things like he's planning to treat all drug overdoses as homicides. This report points out some very unpleasant things about our war on drugs. Law enforcement officials may claim to recognize drug addiction as a sickness, but they're still far more interested in rounding up users than dealers. Faulty field drug tests allow officials to exaggerate their successes (and misrepresent the amount of dangerous drugs in the community), when not allowing them to perform searches they otherwise wouldn't have probable cause to perform. They're part permission slip, part unpaid PR rep. And this constant failure of field drug tests to accurately identify drugs gets ignored but local media, for the most part, isn't willing to follow up on high-profile drug raids to correct the record. And it keeps working because many Americans love the image of "tough on drugs" officers kicking in doors and waving guns around. But, far too often, "tough" just means dumb, brutish, and unconstitutional. Permalink | Comments | Email This Story

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The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment. The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law. Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse. An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor. The law makes this a Class A misdemeanor, which can be redeemed for a full year in jail if the prosecutor can get a judge to agree on handing out the maximum sentence. That law protects only minors from a variety of protected speech because everyone knows cyberbullying ends once victims turn 18. The new law that's looking to steamroll protected speech addresses the other side of this generational gap. Eric Turkewitz was again the first person to spot the bad bill, pointing out it would criminalize the posting of photos of grandparents to social media if the photo's subjects suffer from any form of incapacitation and have not given explicit permission for their photos to be posted publicly. His post takes on the First Amendment ramifications of the NY Senate's latest oblique assault on free speech. Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent. [...] First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them. The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright. I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that? My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate. Here's what's being criminalized by this law: A PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR DUTY OF CARE FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED TO FACEBOOK, YOUTUBE, TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON'S CONSENT. So, like the law says, if you act as a caretaker for an elderly person -- someone who might be your parent, grandparent, or close friend -- you can be charged with a misdemeanor for posting photos of them without their consent. "Vulnerable" in this bill simply means about the age of sixty and "suffering from a disease or infirmity" which prevents them from providing for their own health or personal care. That's a whole lot of gray area to cover with a vaguely-worded bill. As Turkewitz points out in his post, this would criminalize a wide swath of social media sharing simply because someone in the photo did not explicitly consent to publication. He also notes it does not simply criminalize sharing photos of elderly people in incapacitated states. It criminalizes the publication of any photos taken at any point in time. [L]et’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor. The bill's supporters will almost certainly claim they never intended the law to be read that way. But the best way to prevent laws from being read this way is to craft them carefully, rather than just toss word salad on the senate floor and hope for the best. But it's all cool with the senators who voted (again!) for an unconstitutional bill that criminalizes protected speech, because one time this bad thing happened. Recent media reports have highlighted occurrences of a caretaker taking unauthorized photographs or video recordings of a vulnerable elderly person, sometimes in compromised positions. The photographs are then posted on social media networks, or sent through multimedia messages. There's no better way to craft a bad law than typing something up quick to criminalize a thing you saw on Facebook. Jesus Christ. This is almost too stupid to be true. [Sobs into tattered copy of US Constitution.] You cannot use the First Amendment as a doormat just because some people are assholes. Permalink | Comments | Email This Story

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The internet is many things to many people. Some of these things are good, while others are bad. Still, it should be fairly uncontroversial to say that the internet has generally done a good job of empowering ordinary people. With the advent of a platform sans gatekeepers, millions of people suddenly had a voice that they would not otherwise have been afforded. The result of this has been the explosion in blogs, podcasts, forums, and other outlets. The internet brings the ability to reach others and that has resulted in an explosion of thought and speech. It will come as no surprise that plenty of national governments throughout the world aren't huge fans of their people suddenly having this sort of voice and reach. After all, that kind of free expression can often times come in the form of critiques of those very governments, and that kind of reach can create movements of dissent. You may recall back in April when Glyn Moody detailed Tanzania's attempt to tamp down this critical speech by forcing bloggers to register with the government at a cost greater than the average per capita income of its citizens. While this was a fairly naked attempt to keep the voices of its citizens from being heard, Glyn pointed out that the Tanzanian government was at least attempting to be cynically subtle about it. The current Tanzanian government is not very happy about this uncontrolled flow of information to the people. But instead of anything so crude as shutting down blogs directly, it has come up with a more subtle, but no less effective, approach. What a difference a few months make in the actions of an authoritarian regime. It seems this more subtle approach did not have the desired effect, as the Tanzanian government has now ordered that all unregistered bloggers simply shut themselves down or face criminal prosecution. Tanzania ordered all unregistered bloggers and online forums on Monday to suspend their websites immediately or face criminal prosecution, as critics accuse the government of tightening control of internet content. Several sites, including popular online discussion platform Jamiiforums, said on Monday they had temporarily shut down after the state-run Tanzania Communications Regulatory Authority (TCRA) warned it would take legal action against all unlicensed websites. Digital activists say the law is part of a crackdown on dissent and free speech by the government of President John Magufuli, who was elected in 2015. Government officials argue the new rules are aimed at tackling hate speech and other online crimes, including cyberbullying and pornography. If this all sounds familiar to you, it should, because actions like these were very much the precursors to the Arab Spring. These types of attempts to control the internet, a platform that is well-designed to route around this type of control, rarely work for exactly that reason. People will generally find a way if they are motivated enough, which is what makes trying to disappear dissent a government's first reaction so potentially disastrous. Critics of this move are predicting the demise of Tanzanian blogging. The Paris-based Reporters Without Borders group has said the new online content rules “will kill off Tanzania’s blogosphere”. Perhaps that's right. Or, perhaps, a move like this does more to spell the end of an authoritarian regime than the demise of a commonplace internet function that is ingrained into the human spirit. Permalink | Comments | Email This Story

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SESTA/FOSTA was pushed through with the fiction it would be used to target sex traffickers. This obviously was never its intent. It faced pushback from the DOJ and law enforcement agencies because pushing traffickers off mainstream sites would make it much more difficult to track them down. The law was really written for one reason: to take down Backpage and its owners, who had survived numerous similar attempts in the past. The DOJ managed to do this without SESTA, which was still waiting for presidential approval when the feds hits the site's principal executives with a 93-count indictment. The law is in force and all it's doing is hurting efforts to track down sex traffickers and harming sex workers whose protections were already minimal. Sex traffickers, however, don't appear to be bothered by the new law. But that's because the law wasn't written to target sex traffickers, as a top DOJ official made clear at a law enforcement conference on child exploitation. Acting Assistant Attorney General John P. Cronan's comments make it clear SESTA/FOSTA won't be used to dismantle criminal organizations and rescue victims of sex traffickers. It's there to give the government easy wins over websites while sex traffickers continue unmolested. In April, Backpage.com – the internet’s leading forum to advertise child prostitution – was seized and shut down, thanks to the collective action by CEOS and our federal and state partners. The Backpage website was a criminal haven where sex traffickers marketed their young victims. The Backpage takedown – and the contemporaneous arrests of individuals allegedly responsible for administering the site – struck a monumental blow against child sex traffickers. But other sites inevitably will seek to fill the void left by Backpage, and we must be vigilant in bringing those criminals to justice as well. With the recent passage of the SESTA-FOSTA legislation, state and local prosecutors are now positioned to more effectively prosecute criminals that host online sex trafficking markets that victimize our children. "Criminals" that "host sex trafficking markets." That's the target. That's any website that might be used by actual sex traffickers to engage in actual sex trafficking. There's no dedicated web service for sex trafficking -- at least not out in the open where Section 230 immunity used to matter. This is all about taking down websites for hosting any content perceived as sex trafficking-related. It wasn't enough to hang Backpage and its execs. The government will be scanning sites for this content and then targeting the website for content posted by third parties it seems mostly uninterested in pursuing. Hosts of third-party content are usually easy to find. The actual third parties are far more difficult to track down. Intermediary liability is back. Section 230 is no longer an effective defense. The edges have been trimmed back and the government knows it can rack up easy wins over web hosts and slowly start destroying the web under the facade of saving sex trafficking victims. The DOJ knew this law would make it harder to track down traffickers. But it also knows the law allows it to target websites instead. And here it is touting the law it fought against to a conference full of law enforcement officials, letting them know targeting websites will give them wins and accolades and far fewer headaches than tracking down the individuals actually engaged in illegal activity. Permalink | Comments | Email This Story

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Everyone is looking for an answer, a solution, or a new approach to safeguard their organizations and their data. The Complete Microsoft 365 Security Training Bundle combines security training in Office 365, Windows 10, and Enterprise Mobility and Security (EMS), so you can learn how to provide enterprise-level services to organizations of all sizes. It's on sale for $49. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Large ISPs like Comcast, Charter, Verizon and AT&T this week uniformly proclaimed that the death of net neutrality is going to be a really wonderful thing for American consumers. Charter Spectrum, for example, took to the company's policy blog to insist that the neutering of historically popular consumer protections on this front will somehow result in everybody getting better broadband. The ISP's argument, as it has throughout this entire little dog and pony show, focused on the repeatedly debunked claim that the FCC's pretty modest net neutrality rules demolished telecom industry investment: "Without the regulatory overhang of these rules however, businesses like ours will have the certainty they need to make infrastructure investments over the long-term, helping more people get online and enabling even faster broadband. This includes bringing high speed broadband to more hard to serve areas, including rural communities." Which is something you might be inclined to actually believe if Charter's own executives weren't on record publicly stating that the rules had absolutely no meaningful impact on Charter's bottom line: "Title II, it didn't really hurt us; it hasn't hurt us," Charter CEO Tom Rutledge said at an investor event in December 2016, according to a report by advocacy group Free Press. Publicly traded companies like Charter are required to give investors accurate financial information, including a description of risk factors involved in investing in the company." In fact, dozens of industry CEOs have publicly admitted to investors and media outlets that the whole "net neutrality hurt broadband investment" is completely baseless, something proven by anybody willing to spend five minutes with industry SEC filings and earnings reports. And while industry-hired economists tried to cherry pick very specific windows of investment to try and claim the exact opposite, the data here is pretty clear. In fact, an analysis by consumer groups (pdf) found that Charter's overall CAPEX actually went up in the wake of the FCC's 2015 net neutrality rule creation: "Charter’s capital investments went up 15 percent after the FCC’s Open Internet vote (when we include the pre-merger investments made by Charter, Time Warner Cable and Bright House Networks). And not only are Charter’s investments up, they’re 12 percent higher than the estimates Charter gave to investors prior to closing that merger. This being post-truth America however, facts don't appear to carry quite the same weight as they used to, and it's abundantly clear that some of the least-liked companies in America are confident in their belief that repetition forges reality. Apparently, said companies hope that if they repeat this nonsense often enough, people won't notice the government sold them, and the health of the internet, down river without a second thought (and in some instances, that's pretty clearly working). Granted Charter then gets to the real point of the company's blog post; to push for a new net neutrality law the company knows that in this political climate, they'll be the ones writing: ""Charter’s commitment to our customers is our top priority. We urge Congress to pass new legislation that preserves an open internet and ensures a regulatory framework made for the 21st century, so we can continue to improve and invest in our networks and provide more people access to a fast, reliable, and open internet." We've noted how ISPs are worried about losing the looming court case over net neutrality, as well as the dozens of states that are now imposing state-level net neutrality protections. As such, the hope is that they can push forth a loophole-filled net neutrality law in name only; one with so many loopholes as to effectively be useless, but which will pre-empt any tougher state or federal rules (including the restoration of the FCC's 2015 rules). It's a gambit that's not really working, in large part because these companies have obliterated any last vestiges of public trust they may have had with this latest lobbying assault. Permalink | Comments | Email This Story

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The damning report the President has been waiting for has arrived. The Inspector General's report covering everything from James Comey's handling of the Clinton email investigation (terribly with bonus insubordination) to a couple of FBI agents forming a two-person #Resistance (stupid and made the FBI look bad, but not illegal) runs almost 600 pages and won't make anyone looking to pin blame solely on one side of the partisan divide very happy. It's been claimed the report would finally show the FBI to be an agency filled with partisan hacks, further solidifying "Deep State" conspiracy theories that the government Trump runs is out to destroy Trump. It was somehow going to accomplish this despite many people feeling the FBI's late October dive back into the Clinton email investigation handed the election to Trump. Whatever the case -- and whatever side of the political divide you cheer for -- the only entity that comes out of this looking terrible is the FBI. That the FBI would engage in questionable behavior shouldn't come as a surprise to anyone, but the anti-Trump "resistance" has taken Trump's attacks on the FBI as a reason to convert Comey, the FBI, and the DOJ into folk heroes of democracy. The summary of the report [PDF] runs 15 pages by itself and hands out enough damning bullet points to keep readers occupied for hours. Then there's the rest of the report, which provides the details and may take several days to fully parse. Here are some of the low lights from Inspector General Michael Horowitz, possibly the only person who should be touting "Deep State" theories since he's spent his IG career being dicked around by the DEA, DOJ, FBI, and DEA. The report says everything about the Clinton email investigation was unusual. Termed the "Midyear Exam" by the FBI, the investigation was mostly a voluntary affair. Most of the evidence and testimony obtained was obtained from consenting witnesses and participants. The FBI rarely felt the need to compel testimony or evidence with subpoenas. It also did not access the contents of multiple devices used by Clinton's senior aides, devices that may have contained classified info that had been circulated through a private email server. As the report notes, this is at odds with Comey's sudden interest in Anthony Weiner's laptop, where his estranged wife (and former Clinton personal assistant) Huma Abedin apparently had stored copies of Clinton emails. The IG says the tactics used were unusual but does not pass official judgment on them. However, the actions of five FBI employees involved in the investigation did further damage to the FBI and its reputation by taking an investigation already viewed as politically-questionable and aggravating the perception. In undertaking our analysis, our task was made significantly more difficult because of text and instant messages exchanged on FBI devices and systems by five FBI employees involved in the Midyear investigation. These messages reflected political opinions in support of former Secretary Clinton and against her then political opponent, Donald Trump. Some of these text messages and instant messages mixed political commentary with discussions about the Midyear investigation, and raised concerns that political bias may have impacted investigative decisions. However, the IG did not uncover evidence suggesting any of these FBI employees had the power to steer the investigation. Some of those engaged in anti-Trump texts actually pushed for additional subpoenas and search warrants in an investigation that seemingly had little use for any testimony not obtained voluntarily. But that doesn't mean these actions were harmless. Nonetheless, these messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility. From there, it moves on to James Comey's surprising decision to go public with the email investigation's conclusions in July of 2016. This followed the softening of language in the FBI's investigative report. Clinton's handling of classified info went from "grossly negligent" to "extremely careless." The possibility of hostile actors accessing Clinton's email server went from "reasonably likely" to "possible." Then Comey decided to go public, cutting plenty of people out of the loop so they wouldn't prevent him from doing so. Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to make a separate statement because he was concerned that they would instruct him not to do it. He also acknowledged that he made this decision when he first conceived of the idea to do the statement, even as he continued to engage the Department in discussions about the “endgame” for the investigation. Comey admitted that he concealed his intentions from the Department until the morning of his press conference on July 5, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement. We found that it was extraordinary and insubordinate for Comey to do so, and we found none of his reasons to be a persuasive basis for deviating from well-established Department policies in a way intentionally designed to avoid supervision by Department leadership over his actions. [...] We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct. We also found that Comey usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors. The late October letter to Congress about the reopening of the investigation isn't viewed as any better by the OIG. Comey claimed he needed to do this because withholding the discovery of emails on Anthony Weiner's laptop might have been viewed as swinging the election in Clinton's favor. The IG disagrees. Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations. Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” Although we acknowledge that Comey faced a difficult situation with unattractive choices, in proceeding as he did, we concluded that Comey made a serious error of judgment. Then comes the irony. As Comey became the front-mouth for an investigation he shouldn't have been talking about, he routinely engaged in the same behavior he was currently investigating. We identified numerous instances in which Comey used a personal email account to conduct unclassified FBI business. We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account for unclassified FBI business to be inconsistent with Department policy. In addition to being a violation of FBI policy, James Comey -- currently idolized by some as a speaker of truth to power for being fired by the president -- also violated FOIA law by using a private email account for government communications. Comey wasn't the only one -- other agents involved in the investigation routinely used private email accounts -- but he was the FBI's personification of the Clinton email investigation. On top of this, he told other FBI agents the use of personal email accounts would subject them to harsh punishment. In an October 2016 speech at an FBI conference in San Diego, Comey said, "I have gotten emails from some employees about this, who said if I did what Hillary Clinton did I'd be in huge trouble. My response is you bet your ass you'd be in huge trouble. If you used a personal email, Gmail or if you [had] the capabilities to set up your own email domain, if you used an unclassified personal email system to do our business... you would be in huge trouble in the FBI." Some may quibble about the lack of classified info being circulated by these agents and their Gmail accounts, but the fact remains the use of private email accounts increases the risk of circulation exponentially. Sticking to government accounts reduces this possibility to zero. There's much more in the report, including some discussion about the propriety of the Russian influence investigation that Trump claims is a witch hunt. Nothing in the report suggests the investigation isn't valid, even if the actions of agents (the anti-Trump texting) and Andrew McCabe's non-recusal (his wife took money from a Clinton-connected PAC) managed to cover everything with a slimy gloss of impropriety. The upshot of the report is this: James Comey deserved to be fired, although probably not for the reasons Trump had in mind when he did it. The people employed by the FBI are not always able to set aside their personal biases when engaged in investigations. But the FBI is no one party's political tool. It's a blend of both sides, which makes it unlikely anything was done intentionally to harm Trump or Clinton's political prospects. For all the complaining done by Trump, he's the one in office. If the election was "thrown" by Comey's fourth quarter audible in the email investigation, Trump was the beneficiary of the FBI's actions. This makes complaints about a Russian investigation "witch hunt" incoherent, as it tries to retcon the FBI's actions to portray them as being #NeverTrump even when they were (not officially) helping him. The simultaneous investigations of Clinton and Trump make it difficult to craft a coherent conspiracy theory, but it certainly isn't stopping anyone from trying. The FBI is untrustworthy, but it's not a kingmaker. Permalink | Comments | Email This Story

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We've been writing a lot about the EU's dreadful copyright directive, but that's because it's so important to a variety of issues on how the internet works, and because it's about to go up for a vote in the EU Parliament's Legal Affairs Committee next week. David Kaye, the UN's Special Rapporteur on freedom of expression has now chimed in with a very thorough report, highlighting how Article 13 of the Directive -- the part about mandatory copyright filters -- would be a disaster for free speech and would violate the UN's Declaration on Human Rights, and in particular Article 19 which (in case you don't know) says: Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. As Kaye's report notes, the upload filters of Article 13 of the Copyright Directive would almost certainly violate this principle. Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful. Although the latest proposed versions of Article 13 do not explicitly refer to upload filters and other content recognition technologies, it couches the obligation to prevent the availability of copyright protected works in vague terms, such as demonstrating “best efforts” and taking “effective and proportionate measures.” Article 13(5) indicates that the assessment of effectiveness and proportionality will take into account factors such as the volume and type of works and the cost and availability of measures, but these still leave considerable leeway for interpretation. The significant legal uncertainty such language creates does not only raise concern that it is inconsistent with the Article 19(3) requirement that restrictions on freedom of expression should be “provided by law.” Such uncertainty would also raise pressure on content sharing providers to err on the side of caution and implement intrusive content recognition technologies that monitor and filter user-generated content at the point of upload. I am concerned that the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody. Kaye further notes that copyright is not the kind of thing that an algorithm can readily determine, and the fact-specific and context-specific nature of copyright requires much more than just throwing algorithms at the problem -- especially when a website may face legal liability for getting it wrong. And even if the Copyright Directive calls for platforms to have remediation processes, that takes the question away from actual due process on these complex issues. The designation of such mechanisms as the main avenue to address users’ complaints effectively delegates content blocking decisions under copyright law to extrajudicial mechanisms, potentially in violation of minimum due process guarantees under international human rights law. The blocking of content – particularly in the context of fair use and other fact-sensitive exceptions to copyright – may raise complex legal questions that require adjudication by an independent and impartial judicial authority. Even in exceptional circumstances where expedited action is required, notice-and-notice regimes and expedited judicial process are available as less invasive means for protecting the aims of copyright law. In the event that content blocking decisions are deemed invalid and reversed, the complaint and redress mechanism established by private entities effectively assumes the role of providing access to remedies for violations of human rights law. I am concerned that such delegation would violate the State’s obligation to provide access to an “effective remedy” for violations of rights specified under the Covenant. Given that most of the content sharing providers covered under Article 13 are profit-motivated and act primarily in the interests of their shareholders, they lack the qualities of independence and impartiality required to adjudicate and administer remedies for human rights violations. Since they also have no incentive to designate the blocking as being on the basis of the proposed Directive or other relevant law, they may opt for the legally safer route of claiming that the upload was a terms of service violation – this outcome may deprive users of even the remedy envisioned under Article 13(7). Finally, I wish to emphasize that unblocking, the most common remedy available for invalid content restrictions, may often fail to address financial and other harms associated with the blocking of timesensitive content. He goes on to point -- as we have -- that while large platforms may be able to deal with all of this, smaller ones are going to be in serious trouble: I am concerned that the proposed Directive will impose undue restrictions on nonprofits and small private intermediaries. The definition of an “online content sharing provider” under Article 2(5) is based on ambiguous and highly subjective criteria such as the volume of copyright protected works it handles, and it does not provide a clear exemption for nonprofits. Since nonprofits and small content sharing providers may not have the financial resources to establish licensing agreements with media companies and other right holders, they may be subject to onerous and legally ambiguous obligations to monitor and restrict the availability of copyright protected works on their platforms. Although Article 13(5)’s criteria for “effective and proportionate” measures take into account the size of the provider concerned and the types of services it offers, it is unclear how these factors will be assessed, further compounding the legal uncertainty that nonprofits and small providers face. It would also prevent a diversity of nonprofit and small content-sharing providers from potentially reaching a larger size, and result in strengthening the monopoly of the currently established providers, which could be an impediment to the right to science and culture as framed in Article 15 of the ICESCR. It's well worth reading the whole thing. I don't know if this will have more resonance with the members of the EU Parliament's Legal Affairs Committee, but seeing as they keep brushing off or ignoring most people pointing out these very same points, one hopes that someone in Kaye's position will at least get them to think twice about continuing to support such a terrible proposal. Permalink | Comments | Email This Story

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There's an old saying: once is an accident, twice is a coincidence, and three times is a trend. It seems now we are officially in the coincidence part of that mantra. You will recall that we recently discussed famed author Chuck Palahniuk's apology for blaming piracy for his stagnant finances when the real story was that a business partner at his literary agency was simply stealing money from him. We noted at the time that this business partner was the one feeding Palahniuk the false story that piracy was responsible for his dwindling money and that such a story was made believable in part because of the efforts of the copyright industry and its lawyers demonizing the internet and copyright infringement at every turn. Well, recent news reports detail the sentencing of three Danish lawyers to years in prison for defrauding their copyright holder clients, while supposedly working for them on anti-piracy efforts. The organization now known as Rights Alliance, previously Antipiratgruppen, had hired lawyers from the Johan Schluter law firm for representation in piracy cases. The firm worked on these efforts for Rights Alliance for years before an audit showed just how shady these beacons of justice for rightsholders actually were. Following an investigation into the company’s accounts by auditing company Deloitte, financial irregularities amounting to millions of dollars were reported in the media during 2015. The Johan Schlüter law firm should have been distributing huge sums to movie and TV industry associations and their underlying rightsholders but its three partners – Johan Schlüter himself, Lars Halgreen and Susanne Fryland – had been lining their own pockets instead. Massive sums were siphoned away from their clients. Yesterday, after more than 20 hearings during which the defendants maintained their innocence (with Schlüter and Halgreen painting themselves as victims of Fryland’s actions), all three were found guilty of fraud and false accounting to the tune of 100 million Danish kroner (US$15.83m). Now, look, there are shitty people in every profession and I dare say that the legal industry is not underrepresented. Still, it says something that the very law firm rightsholders and an anti-piracy group hired in order to recover supposed losses of income due to piracy was itself bilking rightsholders to the tune of eight figure sums. And far from simply not reporting money collected, the Johan Schluter firm's incestuous relationship with groups "protecting" rightsholders, and the manner in which the firm used that relationship in order to improperly invoice for services not rendered, was spotlighted during the trial. It transpired that in addition to being a partner in the law firm, Susanne Fryland was also a director of a subsidiary company which was responsible for managing registration, collection and administration rights for various film and TV associations. The prosecutor presented an email sent by Fryland to the account manager at the subsidiary noting that Johan Schlüter in Copenhagen was “screaming for liquidity”. When asked who was screaming, Fryland pointed the finger at Schlüter and Halgreen. “When they looked at liquidity in Copenhagen, did Susanne Fryland print an invoice to an association?” the prosecutor asked. “Yes,” Fryland confirmed. All three lawyers have either been banned from practicing law, sentenced to prison, or both. And this is the firm that represented rightsholders against Danish citizens in piracy cases. While none of this excuses piracy or copyright infringement, boy, it sure would be nice if copyright holders and anti-piracy groups, paragons of virtue as they portend to be, wouldn't mind not using the shadiest lawyers they can find in their efforts. Permalink | Comments | Email This Story

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A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings. CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted. It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal. What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from. Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money. "They asked me some questions, which I could not understand as they spoke too quickly," according to Kazazi's declaration. "I asked them for an interpreter and asked to call my family, but they denied my request." The CBP agents led Kazazi to a small windowless room and conducted multiple searches of him and his belongings, he said. According to Kazazi's declaration, the agents asked him to remove all of his clothing and gave him a blanket to cover the lower portion of his body. Kazazi said that a man wearing rubber gloves then "started searching different areas of my body." After failing to find more cash hidden in the crevices of Kazazi's body, the CBP agents gave him a receipt for the money they were taking -- one with no dollar amount written in -- and handed out this fluff to the press when it came asking questions. In a statement, a CBP spokesman said that "pursuant to an administrative search of Mr. Kazazi and his bags, TSA agents discovered artfully concealed U.S. currency. Mr. Kazazi provided inconsistent statements regarding the currency, had no verifiable source of income and possessed evidence of structuring activity," that is, making cash withdrawals of less than $10,000 to avoid reporting requirements. The "artful concealment" was paper and the "inconsistent statements" can probably be chalked up to CBP's refusal to locate a translator. Cash spends better in foreign countries, especially those -- like Albania -- where banks aren't trusted and foreign currency preferable to the local version. Following this seizure, the CBP then did nothing, apparently hoping the Kazazi family would never ask for the money back. It had 90 days to begin to process the forfeiture but it chose instead to give conflicting information to Kazazi (detailed in his son's declaration [PDF]) and push the family towards "settling" for only a portion of the funds seized. The Kazazis chose to sue because, obviously, they don't trust the CBP to handle this honestly. First off, the CBP claims it took $57,330. Kazazi disputes this amount, stating he had $58,100 with him. The $770 difference may seem minimal, but it appears to another indicator of the CBP's untrustworthiness. According to Kazazi, he only took $100 bills. Therefore, a total of $57,330 is impossible. It almost looks as though the CBP took an unofficial service fee off the top before notifying the Kazazis of their right to dispute the forfeiture. The Institute of Justice has stepped in to fight for Kazazis, like it has in many other asset forfeiture cases. As it points out in its lawsuit [PDF], CBP had until April 17 of this year to begin processing the forfeiture. It hasn't and federal law says unprocessed forfeitures that pass the 90-day expiration date must be returned in full to their owners. Fortunately for Kazazi, this legal battle may be over already. Kazazi sued on May 31st. Following a conference with a district judge, the CBP has decided to return all of the money it took. Well, almost all of it. The minutes of the proceeding says that customs officials told the judge that "they were beginning the process of tendering a check to Petitioner Kazazi in the amount of $57,330 plus interest." There will be a little more legal wrangling because Kazazi wants back every cent the government took: $58,100. A bench trial has been scheduled, but it will be December of this year before his case is heard. This whole debacle shows two things: asset forfeiture ain't dead yet, despite its high-profile reputation for being thinly-disguised theft. And it shows the government can be forced to do the right thing without having to undertake a long and expensive legal battle. The turning point here appears to be plenty of negative coverage from the press, rather than the legal filing. But the lawsuit helps, as it makes it crystal clear the CBP is violating federal law by holding onto it past the 90-day deadline for processing. Permalink | Comments | Email This Story

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Four years ago, we wrote about the House voting to keep itself ignorant on technology, and unfortunately, I can now basically just rerun that post again, with a few small tweaks, so here we go: The Office of Technology Assessment existed in Congress from 1972 until 1995, when it was defunded by the Newt Gingrich-led "Contract with America" team. The purpose was to actually spend time to analyze technology issues and to provide Congress with objective analysis of the impact of technology and the policies that Congress was proposing. Remember how back when there was the big SOPA debate and folks in Congress kept talking about how they weren't nerds and needed to hear from the nerds? Right: the OTA was supposed to be those nerds, but it hasn't existed in nearly two decades -- even though it still exists in law. It just isn't funded. Rep. Mark Takano (in 2014 it was Rush Holt) thought that maybe we should finally give at least a little bit of money to test bringing back OTA and to help better advise Congress. While some would complain about Congress spending any money, this money was to better inform Congress so it stopped making bad regulations related to technology, which costs a hell of a lot more than the $2.5 million Takano's amendment proposed. Also, without OTA, Congress is much more reliant on very biased lobbyists, rather than a truly independent government organization. The fact that we're seeing this kind of nonsense in Congress should show why we need it: A quartet of tech experts arrived at a little-noticed hearing at the U.S. Capitol in May with a message: Quantum computing is a bleeding-edge technology with the potential to speed up drug research, financial transactions and more. To Rep. Adam Kinzinger, though, their highly technical testimony might as well have been delivered in a foreign language. “I can understand about 50 percent of the things you say,” the Illinois Republican confessed. But, alas, like so many things in Congress these days, the issue of merely informing themselves has become -- you guessed it --partisan. The amendment failed 195 to 217 on mostly partisan lines (15 Republicans voted for it vs. 211 against, and only 6 Democrats voted against it, while 180 voted for it). If there's any silver lining, that's slightly better than in 2014 when a similar vote failed 164 to 248. So... progress? Either way, when Congress is ignorant, we all suffer. That so many in Congress are voting to keep themselves and their colleagues ignorant should be seen as a problem. Permalink | Comments | Email This Story

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A couple of months ago, we wrote about an important case at the Court of Justice of the European Union (CJEU), the region's highest court. The final judgment is expected to rule on whether the Privacy Shield framework for transferring EU personal data to the US is legal under EU data protection law. Many expect the CJEU to throw out Privacy Shield, which does little to address the earlier criticisms of the preceding US-EU agreement: the Safe Harbor framework, struck down by the same court in 2015. However, that's not the only problem that Privacy Shield is facing. One of the European Parliament's powerful committees, which helps determine policy related to civil liberties, has just issued a call to the European Commission to suspend the Privacy Shield agreement unless the US tries harder: The data exchange deal should be suspended unless the US complies with it by 1 September 2018, say MEPs, adding that the deal should remain suspended until the US authorities comply with its terms in full. There are a couple of reasons why the European Parliament's committee has taken this unusual step. One is the recent furore surrounding Cambridge Analytica's use of personal data collected by Facebook, which the EU politicians incorrectly call a "data breach". However, as they correctly point out, both companies were certified under Privacy Shield, which doesn't seem to have prevented the data from being misused: Following the Facebook-Cambridge Analytica data breach, Civil Liberties MEPs emphasize the need for better monitoring of the agreement, given that both companies are certified under the Privacy Shield. MEPs call on the US authorities to act upon such revelations without delay and if needed, to remove companies that have misused personal data from the Privacy Shield list. EU authorities should also investigate such cases and if appropriate, suspend or ban data transfers under the Privacy Shield, they add. The other concern is the recently-passed Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which grants the US and foreign police access to personal data across borders. This undermines the effectiveness of the privacy protections of the data transfer scheme, since it would allow the personal data of EU citizens to be accessed more easily. The head of the civil liberties committee, Claude Moraes, is quoted as saying: While progress has been made to improve on the Safe Harbor agreement, the Privacy Shield in its current form does not provide the adequate level of protection required by EU data protection law and the EU Charter. It is therefore up to the US authorities to effectively follow the terms of the agreement and for the Commission to take measures to ensure that it will fully comply with the GDPR. The mention of the new GDPR there is significant, since it raises the bar for the Privacy Shield framework's compliance with EU data protection laws. A greater stringency makes it more likely that the European Commission will suspend the deal, and that the CJEU will strike it down permanently at some point. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The FBI lost control of the "going dark" narrative. Part of it unraveled thanks to outside vendors. Two vendors -- Cellebrite and Grayshift -- announced they could crack any iPhone made. This shot holes in the FBI's theory that locked phones stayed locked forever and thereafter were only useful for hammering legislators over the head with until they cranked out an anti-encryption law. The second unraveling was the FBI's own unforced error. Supposedly it couldn't count phones without software and the software it had couldn't count phones. What the FBI and others claimed was 8,000 uncrackable threats to the safety of the American public was actually a little over 1,000 phones. As for the latent threat posed by these locked devices, that's still pure speculation until the FBI starts handing over some info on what criminal acts these phones are tied to. The FBI will probably be looking to restart its "going dark" campaign, thanks to Apple's latest effort, which will render Cellebrite and Grayshift's phone cracking boxes obsolete. Apple is closing the technological loophole that let authorities hack into iPhones, angering police and other officials and reigniting a debate over whether the government has a right to get into the personal devices that are at the center of modern life. Apple said it was planning an iPhone software update that would effectively disable the phone’s charging and data port — the opening where users plug in headphones, power cables and adapters — an hour after the phone is locked. While a phone can still be charged, a person would first need to enter the phone’s password to transfer data to or from the device using the port. Law enforcement may be angered by this but private companies are not obligated to make law enforcement's job easier. Apple's official statement on the software update is probably meant to be placating, but is unlikely to change the mind of any law enforcement official who sees this reaction to phone cracking devices as another extended middle finger from tech companies. According to Apple spokesman Fred Sainz, this fix is being issued to fix a security hole, not "frustrate" law enforcement efforts. But law enforcement efforts will be frustrated. The same goes for criminal efforts. Any device that can crack any iPhone exploits a flaw in the software or hardware. There's no such thing as a security hole that can only be exploited for good. Grayshift's GrayBox could end up in the hands of criminals and it may well be that both vendors have already sold tech to law enforcement agencies in countries where civil liberties aren't as valued as they are in the United States. The article quotes several law enforcement officials complaining about being locked out of iPhones again. And while the frustration is understandable, the fact is plenty of data and communications are stored in the cloud, untouched by device encryption. Generally speaking, companies like Apple and Google have been cooperative when approached directly by law enforcement, as long as the request doesn't involve breaking device encryption. This isn't the end of the discussion. Nor should it touch off another skirmish in the Encryption War 2.0. This setback should be viewed as temporary. Holes with be found and exploits deployed and these will be met with patches and firmware upgrades by the tech companies affected. This all can be traced back to the earlier days when it was only criminals looking for ways to defeat personal security measures. Law enforcement was late to the game, but its arrival shouldn't mean companies forgo protecting their customers to avoid inconveniencing the government. Permalink | Comments | Email This Story

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Listen to your music and take calls without the hassle of cords. The FRESHeBUDS Pro Magnetic Bluetooth Earbuds connect automatically to your device via Bluetooth as soon as you pull apart the magnetic earbuds. They are sweat and water resistant, feature a battery that lasts for up to 10 hours of playtime, fully charge in 90 minutes, and are designed to be comfortably lightweight and secure in your ears. They were $39.99 but have dropped to $29.95 for this week. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Every electronic device capable of storing data is just another tool in the pirate's chest. If you think your phone or mp3 player or hard drive is just something for storing data and perhaps even purchased software, movies, and music, think again. The simple fact you've decided to purchase any of these devices pretty much ensures content creators everywhere will go bankrupt. The "you must be a pirate" tax is being pitched again. The senseless fee tacked on to blank plastic discs for so many years continues to migrate to electronic devices, including the tiny chips stashed away inside smartphones. Apparently, the Canadian music industry needs something to replace the revenue stream that dried up when people stopped buying blank CDs. Michael Geist, working with documents secured through a public records request, reports the Canadian music industry is looking for a hefty payout from the government. According to documents released under the Access to Information Act, the collective arrived with a startling demand, asking the federal government to pay $160 million over the next four years to compensate for music copying. The demand, which now forms part of the platform of demands from the Canadian music industry, is based on a $40 million annual handout. While the industry has not provided details on how it arrived at its figure, notes (likely from Graham Flack) reveal the basis of the demand. This apparently breaks down to $3.50 a device, according to the cocktail napkin math handed in by the industry. But the industry isn't willing to wait around for devices to be sold. The CPCC (Canadian Private Copying Collective) wants the government to just hand it $40 million a year and assume it all adds up in the end. So, it's a much broader "you must be a pirate tax" that calls all Canadians pirates, whether or not they've actually purchased a new piratephone during the fiscal year. What's more, the document [PDF] makes it clear the CPCC wants a new revenue stream just because an old one has vanished. It points out revenues from "pirate" taxes have dropped from a high of $38 million back in the heyday of blank media to an expected $2 million in 2017. It also notes that streaming services are replacing music sales, accelerating this decline in "pirate" taxes. However, the report carefully does not point out revenues from streaming services have increased from $3.4 million in 2013 to $49.3 million in 2017. It also ignores the fact that much less copying -- authorized or unauthorized -- is taking place. The business model this "pirate" tax depended on -- copying of music to media or devices -- is slowly being eliminated. That doesn't mean taxpayers owe CPCC a living. It just means sales are being replaced with "rentals." If the CPCC failed to capitalize on the shift to streaming, it shouldn't be allowed to make up its "lost" revenue by taxing smartphones just because that's where most music streaming takes place. It makes as much sense as envelope manufacturers demanding a per-device tax because email and instant messaging has replaced snail mail as a means of communication. Permalink | Comments | Email This Story

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Encouraged by AT&T's massive merger victory this week, Comcast has made its own $65 billion acquisition offer for a large chunk of 21st Century Fox. According to the Comcast announcement, the company's all cash $65 billion dollar offer is a notable step up from Disney's own $52.4 billion all-stock package, setting up a showdown between two companies that have had a contentious relationship since Comcast's 2004 failed hostile takeover attempt of Disney. The deal includes the FX Channel, numerous regional sports networks, and a minority stake in European cable TV giant Sky, which would all be tacked on to the NBC Universal assets Comcast acquired back in 2011. Fox will however retain Fox News, Fox Sports, and Fox broadcasting, which will all remain under the existing Fox brand. In its statement, Comcast rolled out the usual claptrap about how the combination would be lovely for all involved: "We have long admired what the Murdoch family has built at Twenty-First Century Fox. After our meetings last year, we came away convinced that the 21CF businesses to be sold are highly complementary to ours, and that our company would be the right strategic home for them." Comcast had previously hinted that it was waiting to see the outcome of AT&T's own merger battle with the DOJ before making its own bid for Fox. Comcast and many analysts believe that the comically broad nature of AT&T's court victory (based on a pinhole narrow reading of the markets by U.S. District Court Judge Richard Leon, who clearly has never heard of things like zero rating or net neutrality), means the precedent set will likely result in a DOJ that's more hesitant to intervene in potentially problematic merger moving forward. That's especially true of vertical integration mergers, where modern U.S. antitrust law tends to be ill-equipped to handle some of the more complex new media anti-competitive concerns that pop up. Combined with the death of ISP privacy rules and the neutering of net neutrality, we're creating a brave new landscape where there's very little to stop giants like Comcast and AT&T from using their last mile monopolies--combined with massive ownership of content needed to compete with these giants--as anti-competitive bludgeons against consumers and competitors alike. For example, there's now nothing of note preventing AT&T and Comcast from exempting its own content (like HBO or a regional sports game) from arbitrary and unnecessary usage caps, while penalizing those who use a competitor's service (Netflix, or the next Netflix). Similarly, there's nothing stopping Comcast or Verizon from arbitrarily throttling competitors at interconnection points, driving up the cost for competitors to access their broadband subscribers. There's an ocean of creative ways to hamstring competitors the government is now largely helpless to effectively police, and as the AT&T court win shows, the ISP claim that this isn't a problem because antitrust will save us all clearly isn't a valid argument. With the FCC making it very clear it's a glorified rubber stamp, that leaves the DOJ as the only real wild card in terms of whether any meaningful conditions get applied to this deal. Granted if you followed the NBC Universal merger, you'll recall that Comcast has a pretty terrible history of ignoring merger conditions when it suits it, and regulators from both parties tend to do little more than grumble when the company tap dances around imposed restrictions (though that was a major reason why Obama-era regulators blocked Comcast's 2014 attempted acquisition of Time Warner Cable (not to be confused with Time Warner)). Obviously there's still plenty of folks that see zero problems with massive broadband monopolies gobbling up countless media empires while paying millions of dollars to neuter state and federal oversight. And their theory that these kinds of deals are no problem because the market self-regulates (ignoring there is no free market competition in broadband to organically hold them accountable) will soon have a perfect opportunity to put their theories to the test. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
It's understandable that people are getting fatigued from all the various attacks on the internet, but as I've noted recently, one of the biggest threats to our open internet is the incredibly bad Copyright Directive that is on the verge of being voted on by the EU Parliament's Legal Affairs Committee. The Directive is horrible on many fronts, and we've been highlighting two key ones. First, the dangerous link tax and, second, the mandatory upload censorship filters. Each of these could have major ramifications for how the internet will function. Incredibly, both are driven mainly by industry animus towards Google from legacy industries that feel left behind. The link tax is the brainchild of various news publishers, while the upload filters are mainly driven by the recording industry. But, of course, what should be quite obvious at this point is that both of these ideas will only make Google stronger while severely limiting smaller competitors. Google can pay the link tax. Google has already built perhaps the most sophisticated content filtering system (which still sucks). Nearly everyone else cannot. So, these moves don't hurt Google. They hurt all of Google's possible competitors (including many European companies). Six years ago, there was another threat in the EU for a horrible copyright plan, which was the ACTA "anti-counterfeiting trade agreement" being pushed (note a pattern here) by legacy copyright industries, looking to expand copyright law in a misguided attack on Google. Like this time, the horrible plan was being mainly pushed by the EU Commission. But with ACTA, the EU Parliament stepped up and rejected ACTA. However, that only happened after citizens hit the streets all over Europe to protest ACTA. It is impossible to expect that every time politicians are about to do something bad on the internet or with copyright law that everyone can take to the streets. That's not going to happen. But the new Copyright Directive is significantly worse than anything that was in ACTA, and if the EU Parliament doesn't realize that by next week, the internet we know and love may be fundamentally changed in a way that we will all come to regret. I mentioned these already, but check out SaveYourInternet.eu, ChangeCopyright.org and SaveTheLink.org. You can (and should) also follow MEP Julia Reda who has been leading the charge against these awful proposals and who has been posting how to help stop it on her website and on her Twitter feed. You can also listen to Reda discuss all of this on our podcast. Permalink | Comments | Email This Story

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Radley Balko is uncovering more rights violations and more law enforcement falsehoods with his coverage of South Carolina resident Julian Betton's lawsuit against the Myrtle Beach-area drug task force. Betton's house was raided by the drug unit after a confidential informant made two pot purchases for a total of $100. The police didn't have a no-knock warrant, but they acted like they did, going from zero to hail-of-gunfire in mere seconds. (via FourthAmendment.com) On April 16, 2015, the task force battered Betton’s door open with a ram, then almost immediately opened fire, releasing at least 29 bullets, nine of which hit Betton. One bullet pierced a back wall in the building, sped across a nearby basketball court and landed in the wall of another house. (This was a multi-family building.) Betton was hit several times. He didn't die, but he doesn't have much left in working order. He lost part of his gallbladder, colon, and rectum. His liver, pancreas and small intestine all suffered damage. His left leg was broken along with one of his vertebrae. The cops immediately set about justifying their extreme tactics. First, they claimed Betton fired at them, but ballistics tests showed Betton's gun hadn't been fired. Then they claimed he pointed a gun at them, but did not fire it. This could have easily been proven if any of the task force had bothered to activate their body cameras before breaking Betton's door down. But the footage shows no cameras were activated until after the task force stopped firing. The task force used a regular search warrant, meaning the officers were supposed to knock and announce their presence. Nearly all of them said they followed these stipulations. Video from Betton's home security camera (which can be seen at the Washington Post) caught all these officers in a lie. These 11 seconds of footage from that camera show that no member of the task force knocked on Betton’s door. The video lacks audio, but both the Myrtle Beach police chief and a federal magistrate have since concluded that the video also strongly suggests there was no announcement. None of the officers’ lips appear to be moving, and it all happens very quickly. At best, they announced themselves simultaneously or nearly simultaneously, with the battering ram hitting the door. A neighbor who was on Betton's sidewalk (and was told to lie on the ground by the task force on their way to Betton's door) backs up the camera footage. No announcement was made before the door was breached. This is apparently standard operating procedure in Myrtle Beach. Only in rare cases does the task force seek no-knock warrants. (Task force officials say no-knocks are only "1-2%" of warrants obtained.) But they apparently serve plenty of normal warrants without knocking or announcing their presence. It seems clear from the testimony in depositions that the 15th Circuit Drug Enforcement Unit doesn’t know any of this. Officer Christopher Dennis, for example, said that the “reasonable” waiting period for someone to answer the door begins the moment police arrive on the scene, not after they knock and announce themselves. This is false. Officer Chad Guess — who, remember, planned the Betton raid — said in a deposition that it’s “not the law to knock and announce. You know, it’s just not. It’s the officer’s discretion, each dictate determines itself.” This, again, is wrong. Officer Belue said under oath that he had no idea how long officers are supposed to wait before forcing entry, and that no one had trained him on the matter. It's a convenient misunderstanding of the law. It's made even more convenient by the task force's lack of clearly-written policies on serving warrants. Since everyone of the task force remains as ignorant as possible, they're more likely to be granted immunity when victims of unconstitutional drug raids take them to court. But these officers may not get off so lightly. Their reports and testimony have been disproven by the 11 seconds of video captured by Betton's security camera. Officers who swore they knocked and announced their presence now have to explain how those both occurred with zero officers knocking on Betton's door or even moving their lips. More lies can be found elsewhere in the report. Officers stated in police reports they heard the sound of Betton's gun firing. Ballistics testing has shown Betton never fired his handgun, so everyone making that same claim about gunfire is either mistaken about what they heard or, more likely, aligning themselves with the narrative they created in the aftermath of the shooting. Maybe these officers are hoping their professional ignorance will outweigh their bogus reports. The task force has made it incredibly easy for members to write their own rules when executing warrants. As Balko points, the single most invasive and dangerous thing the task force participates in (~150 times a year) -- warrant service -- has zero official policies dictating how task force members serve warrants. Apparently, all that time and effort went into creating a cool skull-and-crossbones logo for members to stitch on their not-very-coplike raid gear. In any event, the court system is the last stop for justice. If any of these officers are ever going to be held accountable for their actions in the Betton raid, it will be here. Every level of oversight task force members answer to has already offered their official blessings for the knock-and-announce warrant that was carried out without knocks or announcements. What happened to Julian Betton is an entirely predictable product of the failures, culture and mindset of the 15th Circuit Drug Enforcement Unit. And yet to date, state officials won’t even concede that this was a bad outcome, much less do anything to prevent it from happening again. Citing the SLED investigation, South Carolina solicitor Kevin Bracket cleared the officers of any wrongdoing within just a few months. In the three years since the raid, no officer involved has been disciplined, even internally. Nor has any officer has been asked to undergo additional training. No policies have been changed. The DEU never bothered with its own investigation, or even an after-action examination to determine what went wrong. The police clear themselves of wrongdoing and a pending civil lawsuit has zero motivation effect on the drug unit. The task force is operating outside Constitutional boundaries with no internal guidance or effective oversight. Myrtle Beach-area drug warriors have no desire to clean up their act, and a large settlement paid by taxpayers is unlikely to result in a change of heart. 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One of FCC Chair Ajit Pai's claims about how he's changed the FCC is that he's making it more transparent. And, to be fair, he did make one key change that his predecessors failed to do: which is releasing the details of rulemakings before they're voted on. That was good. But in so many other ways, Pai has been significantly less than transparent. And this goes all the way down to incredibly stupid things, like his silly stupid giant Reese's coffee mug. That mug is so famous, that even John Oliver mocked it in his story on net neutrality: Taylor Amarel had some questions about the mug, and made a FOIA request using Muckrock, that might shed some details on the mug (and, perhaps, a few other things): I would like to obtain all emails sent to, from, or copied to Deanne Erwin, Executive Assistant, containing any of the following non-case-sensitive key-strings: “reeses”, “ethics”, “mug”, “liberals”, or “Reese’s” from January 1, 2017 to present day. But the wonderfully "transparent" Ajit Pai... apparently didn't want that. The FCC's General Counsel sent back an oddly accusatory email to Amarel, demanding a ridiculous amount of completely unnecessary information -- claiming it needed that info to assess fees to respond to the FOIA request: In our attempts to discern your fee categorization, we became aware that the name you provided, Taylor Amarel, is likely a pseudonym. In order to proceed with your request, please provide us with your name, your personal mailing address, and a phone number where you can be reached.... We ask that you provide this information by May 29, 2018. If we do not hear from you by then, we will assume you are unwilling to provide this information and will close your requests accordingly. As Muckrock noted, there is no reason why anyone should need to prove that they are using their real name or to provide all this personal info to the FCC, and it feels like an intimidation technique. Muckrock does note that such info might be useful in determining if Amarel should be granted media status, which might help waive fees, but Amarel did not request to be covered under such status. Amarel handed over the info... and was then told that it would cost $233 to get the emails related to Pai's Reese's mug. Using Muckrock's own crowdfunding platform, users chipped in to fund the money, so hopefully at some point the FCC will live up to its legally required transparency and tell us about that stupid mug. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
One of FCC Chair Ajit Pai's claims about how he's changed the FCC is that he's making it more transparent. And, to be fair, he did make one key change that his predecessors failed to do: which is releasing the details of rulemakings before they're voted on. That was good. But in so many other ways, Pai has been significantly less than transparent. And this goes all the way down to incredibly stupid things, like his silly stupid giant Reese's coffee mug. That mug is so famous, that even John Oliver mocked it in his story on net neutrality: Taylor Amarel had some questions about the mug, and made a FOIA request using Muckrock, that might shed some details on the mug (and, perhaps, a few other things): I would like to obtain all emails sent to, from, or copied to Deanne Erwin, Executive Assistant, containing any of the following non-case-sensitive key-strings: “reeses”, “ethics”, “mug”, “liberals”, or “Reese’s” from January 1, 2017 to present day. But the wonderfully "transparent" Ajit Pai... apparently didn't want that. The FCC's General Counsel sent back an oddly accusatory email to Amarel, demanding a ridiculous amount of completely unnecessary information -- claiming it needed that info to assess fees to respond to the FOIA request: In our attempts to discern your fee categorization, we became aware that the name you provided, Taylor Amarel, is likely a pseudonym. In order to proceed with your request, please provide us with your name, your personal mailing address, and a phone number where you can be reached.... We ask that you provide this information by May 29, 2018. If we do not hear from you by then, we will assume you are unwilling to provide this information and will close your requests accordingly. As Muckrock noted, there is no reason why anyone should need to prove that they are using their real name or to provide all this personal info to the FCC, and it feels like an intimidation technique. Muckrock does note that such info might be useful in determining if Amarel should be granted media status, which might help waive fees, but Amarel did not request to be covered under such status. Amarel handed over the info... and was then told that it would cost $233 to get the emails related to Pai's Reese's mug. Using Muckrock's own crowdfunding platform, users chipped in to fund the money, so hopefully at some point the FCC will live up to its legally required transparency and tell us about that stupid mug. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Our courts will let the government get away with almost anything. Although judges have expressed immense amounts of displeasure at the ATF's sting operations involving fictitious drug stash houses, it has seldom resulted in reversed convictions. To "shock the conscience," the government must cross lines courts are very reluctant to draw. Running a child porn website for a few weeks doesn't do it. Neither does taking a trucking company's truck and employee and returning both full of bullet holes after a sting goes south. Very occasionally, the government will find its way across this line. Eric Goldman has uncovered one of these rare cases. It involves a child sex sting operation perpetrated by a law enforcement agency, during which the undercover officer refused to leave a "target" alone after he repeatedly made it clear he wasn't looking to buy sex from an underage female. This case’s setup resembles dozens or hundreds of similar cases I’ve read. In 2014, a law enforcement officer (in this case, Skagit County Sheriff’s detective Theresa Luvera) posted a sex solicitation on Craigslist’s casual encounters. As we’ve discussed before, Craigslist’s rules required all participants to be 18+. something that has undermined sex stings in the past (if you read that post, the parallels to this post will be obvious). The defendant responded to the solicitation. After some online exchanges between the detective and the defendant, the detective claimed she is underage (“almost 15 but waaay advanced”). Even further into the exchanges, the detective brought up money-for-sex. At every step along the way but the end, the defendant seemingly made it clear he was seeking free sex with a female adult. Eventually the defendant shows up at the designated rendezvous point with the requested items. He “was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.” The trial court dismissed the charges, pointing to the detective's "outrageous misconduct." More specifically, it pointed to the state's violation of the defendant's due process right to "fundamental fairness." The appellate court upholds the decision in its opinion [PDF], which recaps, verbatim, some of the nearly 100 sexually explicit messages sent by the detective to push someone who had disengaged from the conversation multiple times into breaking the law. In this matter, a law enforcement officer anonymously published an advertisement on an online classifieds platform reserved for those over the age of 18 and indicated that she was "a young female" seeking an individual interested in a casual sexual encounter. Joshua Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days. At one point, Solomon rejected the "teen's" advances, stating specifically he thought this was "a setup by cops or a website." This only resulted in Detective Luvera increasing her pleas for illegal sex and amping up the sexual content of the messages. The appellate court's analysis tracks the trial court's distaste for the state's actions. But, as it notes, the government is cut so much slack in so many edge cases, precedential decisions on the topic are few and far between. A decade later, for the first time, a claim of outrageous governmental misconduct was presented to the Supreme Court in a case in which a full trial court record was extant. In State v. Athan,law enforcement officers, "posing as a fictitious law firm, induced Athan to mail a letter to the firm." 160 Wn.2d 354, 362, 158 P.3d 27 (2007). They did so in order to obtain a sample of his DNA. That's what the Washington state court has to work with after 100+ years of jurisprudence: one case roughly on point involving something which seems less violative of due process rights. (More of a 4th Amendment violation than a 14th Amendment violation.) The trial court certainly didn't need a bunch of precedent on hand to find the government's behavior disgusting. The appellate decision quotes it at length on the way to upholding the lower court's findings. In this case, the only thing propelling the sting forward was the government. Seven times the defendant tried to disengage and seven times the detective assailed him with increasingly-graphic text messages. And all of this stems from an action the government took: the placement of an ad in an area of Craigslist where all ad posters were supposed to be over the age of 18. Here's just a small part of the trail court's oral comments on the sheriff department's actions (NSFW in parts): I can't believe the detective would want to go to trial on this and subject this language to citizens. I'm just going to give you a little tidbit. At 3:17 on Wednesday, September 17th, the detective says, "OMG U R so fing hung baby!!! VVTF . . . I'm so amped up after seeing this. I have wait for my sister to leave and I am gonna video tape me finger banging me to ur plc! Can't u cum and see me now!!!" Yeah, that's repugnant. I don't care how you cut that pie. You can be a seasoned old sailor or whatever, but that is repugnant. That's a detective letting line out very fast on a free spool trying to get Mr. Solomon back in the game. And there is no other way to -- there is no other way to describe it. It's outrageous. That is repugnant. It's egregious. The appeals court sums this all up with a couple of concise paragraphs. In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take. Given the court's finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of language and otherwise) repugnant to the trial judge's view of the community's sense of justice, the trial court's determination was tenable. Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error. This isn't how you catch criminals. This is how you manufacture criminals. Much like the ATF's stash house stings and a great many of the FBI's terrorist investigations, the government does 99% of the work and jails the unlucky person who has been coerced and cajoled into doing something they likely would have never done if the government hadn't instigated it. A good call here by both courts working without almost zero precedent. Unfortunately, the lack of precedent doesn't suggest a well-behaved government. Instead, it points to a whole lot of judicial slack being cut over the years. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Last week, Mike provided a virtuoso excoriation of the European publishers' shameless demand to be given even more copyright control over tiny snippets of news stories as part of the awful EU copyright directive. As that post pointed out, the publishers' "mythbuster" did nothing of the sort, but it did indicate a growing panic among the industry as more critical attention is brought to bear on the ridiculous "snippet tax" -- Article 11 of the proposed new EU copyright law -- which has already failed twice elsewhere. The German site Über Medien -- "About Media" -- offers another glimpse of publishers trying desperately to justify the unjustifiable (original in German). Actually, it's one publisher in particular: Mathias Döpfner. He's the CEO of the German company Axel Springer, one of the world's largest publishers, although even his company is unlikely to benefit much from the snippet tax. Speaking on Austrian television, Döpfner made a rather remarkable claim: It's about the question of whether the intellectual good that is produced is a protected good or not. At the moment it is a good that is not protected in the digital world. Anyone can take an article, a video, a journalistic element that a publisher has prepared, copy it, put it in another context and even market it successfully. Yes, the boss of one of the biggest and most successful publishers in the world is claiming that digital material is not protected by copyright, and that anyone can take and use it, which is why new laws are needed. Since he was talking about the EU's Article 11, he also seems to be conflating using snippets with taking an entire article. To underline his point, Döpfner offered a homely comparison: If I can go to the grocery store and just grab a pound of butter or a carton of milk without paying for it, why should anyone come and pay for it, and why would anyone else offer butter or milk? But that's not what Google is doing when it uses snippets. It's more like it is taking a picture of the pound of butter, and then showing people the photo along with the address of the grocery store when they search for "butter" using Google's search engine. Google is not stealing anything, just sending business to the store. It's the same with displaying snippets that link to the original article. The Über Medien post rightly goes on to note that publishers don't really have a problem with Google showing snippets and sending them traffic. But their sense of entitlement is so great they want to force the US company to pay for the privilege of sending them traffic. Or, to put it in terms of Döpfner's forced analogy: Publishers do not want Google to stop stealing butter and milk in their supermarkets. The publishers want to oblige Google to steal bread and milk from them and pay for it. The fact that the head of German's biggest publisher resorts to the old "you wouldn't steal a car/pound of butter/carton of milk" rhetoric shows just how vanishingly thin the argument in favor of a snippet tax really is. It's time for the EU politicians to recognize this, and remove it from the proposed copyright directive, along with Article 13's even-more pernicious upload filter. EU citizens can use the new SaveYourInternet site to contact their representatives. Ahead of the important EU vote on the proposed law early next week, now would be a really good time to do that. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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