posted less than an hour ago on techdirt
As you probably recall, a few weeks ago Twitter sued Homeland Security after it received a summons from Customs & Border Patrol seeking to identify any information about the @ALT_uscis account. USCIS is the US Citizenship and Immigration Service, and the "alt" part is similar to many other such accounts purporting to be anonymous insiders in the government reporting on what's happening there (whether or not the operators of those accounts truly are inside those organizations is an open question). Anyway, the issue here is that such a use of Twitter would be protected by the First Amendment, and unless the account was revealing classified info, it's unlikely that there would be any legit means to investigate who was behind the account. And, because of that, it certainly appeared that Customs and Border Patrol decided to use illegitimate means to get the info. Specifically it sent a 19 USC 1509 summons, which is an investigative tool for determining the correct duties, fees or taxes on imported goods. As you can see, identifying a Twitter user does not seem to fit into what that law is for. Having been called out on this in federal court (and, one hopes, having DOJ lawyers chew out DHS/CBP folks), the feds dropped the summons hours later and Twitter withdrew the lawsuit. However, abusing the law to seek out information like that is a pretty major abuse, and is one that shouldn't just let everyone move on afterwards without some sort of accountability. Senator Ron Wyden asked Homeland Security's Inspector General if it was investigating this and, in a fairly straightforward and open letter, DHS IG, John Roth, lets Wyden know that an investigation is ongoing and even clarifies what they are investigating and why. The letter itself is pretty clear, so I'll just post a chunk of it here: While we typically do not comment on open investigations, it has come to my attention that there may be some confusion about the scope of DHS OIG’s work relating to this matter. Specifically, we have been asked to clarify which, if any, of the following three issues we are investigating: (1) Misconduct on the part of the owner of the @ALT_USCIS Twitter account, who CBP suspected was a DHS employee; (2) CBP’s use of its summons authority in this particular case; and (3) Use of summons authority across the Department. Regarding the first issue, we were asked by CBP to assist their efforts to determine whether the tweets at issue disclosed any classified information. To that end, we helped CBP pull the content of @ALT_USCIS’s tweets off the internet and cross-reference that content against data in DHS systems to determine whether the information was classified. We have concluded that no classified information was released via the @ALT_USCIS Twitter account. I’d like to make clear that DHS OIG has not played any role in attempting to identify the owner of the @ALT_USCIS Twitter account, and only learned of the issuance of the March 14, 2017 summons when it was reported in the media. Our investigation protocol includes controls for situations in which First Amendment activity is implicated, and we strive to ensure that our work does not have a chilling effect on individuals’ free speech rights. I can confirm that DHS OIG is not investigating, and will not investigate, any alleged misconduct on the part of the @ALT_USCIS account owner relating to his or her use of the Twitter account. Regarding the remaining two issues, I can confirm that DHS OIG is investigating whether the investigation conducted by CBP’s Office of Professional Responsibility relating to the @ALT_USCIS Twitter account was improper in any way, including whether CBP abused its authority in issuing the March 14, 2017 summons to Twitter. DHS OIG is also reviewing potential broader misuse of summons authority at the Department and/or its components. That's pretty clear and makes sense. They looked and found no classified info being revealed, they've been careful to not seek any other way of identifying the owner of the account, or to do anything that might chill speech, and they are actively investigating if CBP abused its authority (beyond just this one case). I look forward to find out the results of that investigation. Permalink | Comments | Email This Story

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This week, three of our four winning comments came in response to our thorough look at why the Charging Bull sculptor's supporters are off-base. Taking first place on the insightful side was jupiterkansas making the important point that while the artist has every right to disapprove of the Fearless Girl statue, there are much better ways to handle it than making legal threats: He could have also spoken to the press, made a film about it, launched a protest, or done any number of other perfectly valid ways to draw attention to the problem without making a legal issue out of it. A real artist might have come up with something else to add to the situation to comment on it even further. In second place, we've got an anonymous commenter who expanded on my tweet about how things aren't automatically disqualified as art because they are also ads: If the Fearless Girl "isn't art" because a corporation paid for it and attached an ad, then there is very little art anywhere in the world. The artistic accomplishments of the Renaissance, for example, happened because the catholic church and the business leaders of the day had excess income, and decided to use that income to pay artists to create works of art that the church and businessmen could then show off to prove how awesome they were. So no art was actually created. For editor's choice on the insightful side, we start out on our post about the federal agent who lost immunity after bullying and interrogating an elderly woman and forcing her to stand around in urine-soaked clothes for two hours. The loss of immunity is good, but one anonymous commenter quite fairly wondered about the other officers on the scene: So Conley gets his immunity stripped. What about all the other "good apples" that stood around and did nothing? No punishment for them? Please, cop apologists - tell me more about how it's just a few bad apples. Next, we head to our post about the government's new angle on potentially going after Julian Assange, where we mentioned the fact that the Ecuadorian Embassy doesn't necessarily respect US law. ThaumaTechnician noted that there's plenty of that to go around: Yeah, well then again, neither is the US Administration, Congress, the US Senate, the CIA, the NSA, the US Military, ... Add to that: "nor are they respectful of international law, UN sanctions, ethical considerations, basic human decency..." Over on the funny side, we start out by returning to the Charging Bull post where Richard Wordsworthy won first place with an analogy highlighting the asburdity of moral rights: I'm introducing a new craft rum to the market, but I retain all control of what cola's you can put with it. How dare you destroy my authenticity with a brand I don't deem worthy! For second place on the funny side, I have to admit I think I missed a reference or something in the joke, because I don't get it. In our post about the ongoing legal issues around a sorority's secret handshake, one commenter suggested it would be good for "luggage" (?) and an anonymous commenter took the idea to heart: an aside to my assistant: Remind me to change the handshake on my luggage (I'm sure I will feel stupid once someone explains that to me, so, have at it!) For editor's choice on the funny side, we've got a pair of good ol' fashioned puns. First up, we return to the Chargin Bull post one last time, where one commenter wondered why the Fearless Girl was opposing bull markets, and Gary offered this groaner: Because they are unbearable? Finally, after we reported on the potential antitrust issues that could arise if the rumours about Chrome adding a built-in adblocker are true, one anonymous commenter set themselves up for a rimshot: Google's taking a big risk with this move. You might even call it an alpha bet. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, following widespread protests, ACTA was on the verge of death — but that hadn't stopped G8 countries from already preparing to replace it. Similarly, following the SOPA defeat, the usual copyright maximalist suspects were regrouping to come up with new tactics for fighting the public (and surely the revolving door between the MPAA and the federal government would help out on that front). Meanwhile, the lawmakers behind the new awful bill — CISPA — were downplaying the protests against it, even though the White House was also (meekly) opposed to the bill. Also this week in 2012: Twitter unveiled its revolutionary patent agreement, and the Oracle/Google fight began heating up over the originally-secondary API copyright issues that would come to dominate the case. Ten Years Ago Maybe all those lawmakers should have read our post five years earlier in 2007, all about how politicians need to understand the internet before trying to regulate it. Of course, at the time, you had high new webcasting royalty rates from the RIAA, Sony's DRM on DVDs causing all sorts of problems, the Authors Guild calling writers who give away content 'scabs', and telco-funded think tanks insisting anyone who supports net neutrality is just a pirate. Some corporate competitions were getting nasty too, with Microsoft lobbing antitrust accusations over Google's purchase of DoubleClick and Ticketmaster suing StubHub over exclusivity. Meanwhile, Mike's series on the economics of scarcity drew some poorly-argued ire from sources ranging from CNN's James Ledbetter to Dilbert creator Scott Adams (the latter of which turned into a longer back-and-forth). Fifteen Years Ago This week in 2002, lots of people were grappling with new questions and trends raised by technology. Parents were deciding whether or not to use internet filters for their kids while workplaces were getting into the idea of monitoring employees' instant messaging; texting was becoming a favorite tool of schoolyard bullies and, unsurprisingly, sexting was already on the rise (though still unnamed). Meanwhile, a new study was showing that the death of Napster did little to change the popularity of digital music, even as the recording industry continued to blame file sharing for all its woes (rather than, say, idiotic DRM "compromises" like a CD that lets you send temporary copies that "expire" to friends). But every now and then in doing this rundown, I find one of those posts that sounded so innocent at the time and now evokes an instantaneous "oh if only you knew..." reaction — such as this brief post noting Nathan Myhrvold's "interesting idea" to start up an "invention factory." Can anyone recall how that turned out? Forty Years Ago Though the technology had already been in development and testing for some time, it was today on April 22nd that fiber-optic cable was first used to carry telephone traffic, reaching 6 Mbit/s speeds all the way back in 1977. Permalink | Comments | Email This Story

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A few months ago, we noted that the Gates Foundation has emerged as one of the leaders in requiring the research that it funds to be released as open access and open data -- an interesting application of the money that Bill Gates made from closed-source software. Now it seems that his successor as Microsoft CEO, Steve Ballmer, has had a similar epiphany about openness. Back in 2001, Ballmer famously called GNU/Linux "a cancer". Although he later softened his views on software somewhat, that was largely because he optimistically claimed that the threat to Microsoft from free software was "in the rearview mirror". Not really: today, the Linux-based Android has almost two orders of magnitude more market share than Windows Phone. However, there's one area of openness that Ballmer seems to have embraced whole-heartedly for his new project USAFacts, which launched this week -- open data: USAFacts is a new data-driven portrait of the American population, our government's finances, and government's impact on society. We are a non-partisan, not-for-profit civic initiative and have no political agenda or commercial motive. We provide this information as a free public service and are committed to maintaining and expanding it in the future. We rely exclusively on publicly available government data sources. We don’t make judgments or prescribe specific policies. Whether government money is spent wisely or not, whether our quality of life is improving or getting worse -- that's for you to decide. We hope to spur serious, reasoned, and informed debate on the purpose and functions of government. Such debate is vital to our democracy. We hope that USAFacts will make a modest contribution toward building consensus and finding solutions. In addition to allowing a wide range of public data sets to be queried using a site-specific search engine, USAFacts also offers synoptic views: an annual report, a summary report, and a "10-K" modeled on the document public companies submit annually to the SEC for transparency and accountability to their investors. In an age where "fake news," AKA lies, are common currency, and where the Trump administration is making government more, not less, opaque, Ballmer's philanthropic, fact-based endeavor is particularly welcome. It's also nice to see him following Gates and implicitly acknowledging that open is more powerful than closed. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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I have personally made something of a crusade as of late out of my position that the world's trademark offices need to be more nuanced when it comes to the alcohol industry. Far too many disputes have arisen recently between beer breweries, wineries, and spirit-makers, when anyone with a base understanding of those industries realizes how separate they actually are, rendering the potential for customer confusion a moot argument. To the layperson less familiar with both the purpose and nuanced aspects of trademark law, however, this position can require some convincing. That shouldn't be the case for a recent dispute between a winery and a pre-packaged foods maker, however, because this dispute is between two completely different marketplaces. The 40 Knots Winery in Comox, B.C., first applied to trademark Ziggy — named both for the German grapes from which it's made and for the family's whippet dog — in March 2015. The trademark was approved by the Canadian Intellectual Property Office in December 2015, and 40 Knots started rolling out its advertising campaign soon after. But late last year, Loblaw Inc. officially opposed the trademark, noting that Ziggy's is the brand name of several Loblaw products, most notably deli meats and prepackaged meals, since 1971. Herman-Craig goes on to note the time and capital she spent in naming and branding her winery. A Loblaw spokesperson, meanwhile, trotted out every protectionist's favorite excuse for these types of overbearing actions, claiming that the company had no choice but to oppose the trademark if there was a chance of customer confusion. But that's not true, as is so often the case. Wine and pre-packaged foods operate in different marketplaces, even if they are both sold in actual food markets. Customers, for one, are unlikely to be confused by the packaging of the other due to the shared name, particularly given that the trade dress of these two companies are otherwise vastly distinct. It seems that Herman-Craig actually did everything right when naming her winery, including researching the name to make sure her actual competition wasn't already using it. "We researched to make sure nobody was using Ziggy as a wine," she said. "And for trademarks, you trademark your product that you're manufacturing and selling." She said her lawyer is confident 40 Knots has a solid case, and she plans to fight the supermarket giant for the rights to the name. In that case, here's hoping the courts can knock this softball out of the park, because it's pretty obvious that there is little if any chance of confusion between a winery and a packaged food maker. Permalink | Comments | Email This Story

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Earlier this week we noted that 162 tech companies (including us) had signed an amicus brief for the appeal in the 4th Circuit (in Virginia) arguing that President Trump's travel ban executive order was unlawful. The same group of companies (plus one more -- as it looks like Pandora was added to the latest) have filed basically the same amicus brief in the appeal in the 9th Circuit (which is the appeal of the decision in Hawaii that a smaller group had filed an amicus brief on as well). As with last time, people are going to come up with all sorts of conspiracy theories over this, but the fact is this is an issue that matters to many, many people who work at these companies, and the companies have committed to speaking out about it. Permalink | Comments | Email This Story

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posted 3 days ago on techdirt
We've been saying this for years, but IP addresses are not good enough evidence on which to base copyright infringement lawsuits. At some level, everyone already knows this to be true. You can tell that's the case because the typical pretenders stating otherwise are the copyright trolls with a business model that relies on gathering large numbers of supposedly infringing IP addresses, mailing out settlement demands to the supposed pirates that own the accounts of those IP addresses, and then collecting very real money from some percentage of the recipients. On top of that, even these trolls will often claim that the onus is on the account holder of an internet connection to police their own pipe, which is a delightful end-around to the common concept of punishing true infringers as opposed to innocent third parties. There are places with legal systems that have had enough of this practice and we can now add Singapore's to the list. The High Court in Singapore recently threw out requests from several copyright trolls made to ISPs there to produce account information for IP addresses they claim were used to infringe on two movies, Fathers & Daughters and Queen Of The Desert. The oral decision delivered at a closed-door hearing on Monday was on the grounds of "insufficient evidence", the Attorney-General's Chambers (AGC) told The Straits Times yesterday. In a rare move, the AGC intervened in civil applications made in the High Court in July last year by Samuel Seow Law Corp (SSLC), the local law firm that represents the two studios. Last year, SSLC again served papers on Singtel, StarHub and M1 to get details of alleged pirates of Fathers & Daughters and Queen Of The Desert, with a list of over 500 offending Internet Protocol (IP) addresses. The AGC and the Intellectual Property Office of Singapore (Ipos) said they highlighted to the court that SSLC did not submit "sufficient evidence" to show a link between the IP addresses and alleged illegal downloaders. It was on such grounds that the case was dismissed. It's an important decision in the country, with the High Court cementing the position that IP addresses are not sufficient evidence with which to demand account information over infringement issues. That the practical use for that account information would have been the type of sleazy settlement demands that have become the norm in copyright trolling circles may have played a role in the decision, but it need not have. Viewed solely on its merits, there are any number of ways an internet connection might be used for copyright infringement by someone other than the owner of the internet account: shared WiFi, brute force break-ins into the connection, etc. The simple fact is that knowing an IP address that was used for infringement doesn't tell anyone who did the actual infringing. Viewed that way, compelling ISPs to turn over personal account information based solely on IP addresses is crazy. Some IP attorneys are already whining about the decision. Mr Lau Kok Keng, an IP lawyer at Rajah & Tann Singapore, said requiring the rights owner to link the IP address to the actual infringer is akin to "putting the cart before the horse" - copyright holders need to know who the account holder is to ascertain if he is the actual pirate. "So it could mean that individuals who illegally download copyright content will be able to get off scot-free because their identities will never be known, short of being caught in the act," said Mr Lau. Which is much to do about nothing, given that, again, the infringing party might not be the IP address owner to begin with. What the copyright trolls are really looking for are essentially lead lists for settlement letters. They don't really care if the recipient of those letters is the infringer or not, they care if they can scare enough people into paying settlements to make money. In that light, it's nice to see a government get it right on this question about IP addresses as evidence, even if we have to look all the way to Singapore to see it. Permalink | Comments | Email This Story

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There's been an awful lot of talk these days about how the machines (and "AI") are coming to take all of our jobs. While I'm definitely of the opinion that the coming changes are likely to be quite disruptive, many of the doom and gloom scenarios are overblown, in that they focus solely on what may be going away, rather than what may be gained. If there's anyone out there who might be forgiven for worrying the most about computers "taking over," it would be Garry Kasparov, the famed chess champion who took on the Deep Blue chess playing computer and lost back in 1997. However, in a new (possibly paywalled) WSJ piece, Kasparov more or less explains how, even now as AI is moving into all sorts of fields previously thought safe from automation, he's come to embrace the possibilities, rather than fear the losses: It is no secret that I hate losing, and I did not take [losing to Deep Blue] well. But losing to a computer wasn’t as harsh a blow to me as many at the time thought it was for humanity as a whole. The cover of Newsweek called the match “The Brain’s Last Stand.” Those six games in 1997 gave a dark cast to the narrative of “man versus machine” in the digital age, much as the legend of John Henry did for the era of steam and steel. But it’s possible to draw a very different lesson from my encounter with Deep Blue. Twenty years later, after learning much more about the subject, I am convinced that we must stop seeing intelligent machines as our rivals. Disruptive as they may be, they are not a threat to humankind but a great boon, providing us with endless opportunities to extend our capabilities and improve our lives. There's a lot more in the essay, but basically Kasparov recognizes that there's tremendous opportunity in looking at what smarter machines can actually do to help more and more people: What a luxury to sit in a climate-controlled room with access to the sum of human knowledge on a device in your pocket and lament that we don’t work with our hands anymore! There are still plenty of places in the world where people work with their hands all day, and also live without clean water and modern medicine. They are literally dying from a lack of technology. And, towards the end he notes that while there may not be easy answers, there are plenty of opportunities. While many people today insist that since they cannot think of what the new jobs will be, there can't possibly be any, the reality is that just a few decades ago, you would probably not have been able to predict many of today's internet/tech related jobs. And Kasparov is optimistic that by freeing up more menial jobs, it may open up much greater opportunities for people to put their minds to work: Compare what a child can do with an iPad in a few minutes to the knowledge and time it took to do basic tasks with a PC just a decade ago. These advances in digital tools mean that less training and retraining are required for those whose jobs are taken by robots. It is a virtuous cycle, freeing us from routine work and empowering us to use new technology productively and creatively. Machines that replace physical labor have allowed us to focus more on what makes us human: our minds. Intelligent machines will continue that process, taking over the more menial aspects of cognition and elevating our mental lives toward creativity, curiosity, beauty and joy. These are what truly make us human, not any particular activity or skill like swinging a hammer—or even playing chess. I am sure that some will dismiss this as a retread of techno-utopianism, but I think it's important for people to be focusing on more broadly understanding these changes. That doesn't mean ignoring or downplaying the disruption for those whose lives it will certainly impact, but so much of the discussion has felt like people throwing up their arms helplessly. There will be opportunities for new types of work, but part of that is having more people thinking through these possibilities and building new companies and services that recognize this future. Even if you can't predict exactly what kinds of new jobs there will be (or even if you're convinced that no new jobs will be coming), it's at the very least a useful thought exercise to start thinking through some possibilities to better reflect where things are going, and Kasparov's essay is a good start. Permalink | Comments | Email This Story

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So over the last few years you probably remember seeing white hat hackers demonstrate how easily most modern smart cars can be hacked, often with frightening results. Cybersecurity researchers Charlie Miller and Chris Valasek have made consistent headlines in particular by highlighting how they were able to manipulate and disable a Jeep Cherokee running Fiat Chrysler's UConnect platform. Initially, the duo documented how they were able to control the vehicle's internal systems -- or kill it's engine entirely -- from an IP address up to 10 miles away. But the two would go on to highlight how things were notably worse, pointing out last year that they'd also found a way to kill the vehicle's brakes, cause unexpected acceleration, or even direct the vehicle to perform sudden and extreme turns: "Last year, they remotely hacked into the car and paralyzed it on highway I-64—while I was driving in traffic. They could even disable the car’s brakes at low speeds. By sending carefully crafted messages on the vehicle’s internal network known as a CAN bus, they’re now able to pull off even more dangerous, unprecedented tricks like causing unintended acceleration and slamming on the car’s brakes or turning the vehicle’s steering wheel at any speed." Just the gift for intelligence or private sector ne'er-do-wells looking to cause mayhem -- or worse. After Miller and Valasek's hacks made consistent headlines, the two were quietly hired by Uber to help the company secure its self-driving taxi service. Miller has since moved on to Chinese competitor Didi, and tells Wired he's much more free to speak about the perils of securing automated cars and taxis. What he's saying isn't what you'd call comforting: "Autonomous vehicles are at the apex of all the terrible things that can go wrong,” says Miller, who spent years on the NSA’s Tailored Access Operations team of elite hackers before stints at Twitter and Uber. “Cars are already insecure, and you’re adding a bunch of sensors and computers that are controlling them… If a bad guy gets control of that, it’s going to be even worse." The problems that Miller highlighted with the Jeep Cherokee are significantly worse when you're talking about a taxi that sees significantly more use each day. A taxi that, under current federal law, won't be able to block consumer access to the vehicle's OBD2 port (something consumers want the freedom to tinker with in their own vehicle, but perhaps not so much in a communal car): "There’s going to be someone you don’t necessarily trust sitting in your car for an extended period of time,” says Miller. “The OBD2 port is something that’s pretty easy for a passenger to plug something into and then hop out, and then they have access to your vehicle’s sensitive network." Miller notes that securing an automated vehicle isn't impossible, but it's going to require the use of "codesigning," restrictions built into the OBD2 port, better internal segmentation and authentication -- and basically a complete retooling of how self-driving vehicle security is implemented. But Miller notes that companies like Uber are bolting their computer systems onto already built vehicles, which complicates things. And the slow pace of finding and patching security vulnerabilities in vehicles poses an additional layer of problems. The solution will also involve greater "open conversation and cooperation" among carmakers and developers, something Miller says was lacking at Uber, and hasn't exactly been the trademark of other automated vehicle vendors. Right now, we continue to find the lack of security in our smart fridges and TVs kind of cute. But it's threats like those being exposed by Miller that have some security researchers like Bruce Schneier consistently predicting some massive problems on the horizon that may result in notable human casualties. And we're not helping the problem by letting companies monopolize repair, or consistently erode our privacy rights or our freedom to tinker. Permalink | Comments | Email This Story

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The $34 Complete Guide to AJAX Bundle will introduce you to essential skills you'll need to master web development. You'll learn the fundamentals of AJAX, JQuery, JSON, Bootstrap and more in 6 courses with over 160 lessons. Design web forms, perform real time data analysis, and more by learning all of the capabilities of AJAX. 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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Juicing your SEO? Don't like what turns up during vanity Googling? There are a few right ways to solve this problem and apparently about a million wrong ones. Doing the wrong thing could easily make things worse. Bogus DMCA notices tend to result in Streisandings, which leads to even more negative comments and contents clogging up your search results. Bogus legal threats issued by stupid lawyers or using stupid, compliant lawyers' letterhead tend to have the same result. You could get more imaginative and start filing bogus defamation lawsuits to fraudulently obtain court orders for delisting. Again, once you've been rousted, the best case scenario is some more Streisanding and negative ROI. At worst, you're looking at paying legal fees and/or possibly facing sanctions for defrauding the court. If you want the worst results and the worst punishment, you could do what this jewelry company CEO did: In 2011, sapphire jewelry company CEO Michael Arnstein was desperate to salvage the Google results for his company. According to a lawsuit for defamation he filed in 2011, a former contractor for the Natural Sapphire Company who was fired for selling them buggy software launched a personal crusade to destroy the Natural Sapphire Company's Google search results. The defendant never showed up in court, so in 2012, a federal judge in New York granted Arnstein a default judgment along with an injunction to de-index 54 Google results. But more fake reviews kept popping up. So Arnstein did something extremely ill-advised. According to the feds, Arnstein rounded up the bad Google results and forged new court orders to send to Google. Some sympathy for Arnstein is warranted. Negative reviews -- even the fake ones -- are hard to remove from the web. This isn't necessarily the fault of sites hosting them, but the actions of a few hundred aggrieved companies and individuals who have tried nearly everything (legal or illegal) to have negative content and comments removed, even if they're guilty of what's being alleged in them. But nuking yourself from orbit is never the answer. It wasn't enough for Arnstein to have successfully (if fraudulently) cleaned up his search results. Nope. He just had to tell others. The feds collected multiple instances of Arnstein informing others how to fix their SEO problems USING THIS ONE ILLEGAL TRICK. From the complaint [PDF]: No bullshit: if I could do it all over again I would have found another court order injunction for removal of links (probably something that can be found online pretty easily) made changes in photoshop to show the links that I wanted removed and then sent to [email protected] as a pdf — showing the court order docket number, the judges [sic] signature — but with the new links put in,” Arnstein wrote in a July 2014 email, according to his criminal complaint. “Google isn’t checking this stuff; that’s the bottom line b/c I spent $30,000 fuckin thousand dollars and nearly 2 fuckin years to do what legit could have been done for about 6 hours of searching and photoshop by a guy for $200., all in ONE DAY. Here's another ill-advised Arnstein statement from Courthouse News, which first reported the indictment. It opens with an unforgettable disclaimer… and ends with a statement that might make it tough for Arnstein to find representation: “I think you should take legal advice with a grain of salt,” he allegedly wrote on Sept. 4, 2014. “I spent 100k on lawyers to get a court order injunction to have things removed from Google and Youtube, only to photoshop the documents for future use when new things ‘popped up’ and google legal never double checked my docs for validity… I could have saved 100k and 2 years of waiting/damage if I just used photoshop and a few hours of creative editing… Lawyers are often worse than the criminals.” Arnstein wanted to clean up bogus complaints and comments from a pissed off contractor. I guess that goal has been achieved. But those results will be replaced with his criminal indictment, fraudulent behavior, and his failure to get away with it. Permalink | Comments | Email This Story

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A Long Island judge is swiftly making a (terrible) name for himself with a (terrible) ruling in a defamation lawsuit. The ruling making Acting Supreme Court Justice John Galasso look like an unconstitutional idiot has nearly nothing to do with the defamation claims, but rather his granting of the plaintiff's unconstitutional wish to have unflattering "memories" of himself pre-erased before the underlying lawsuit even gets going. Here's a bit of background: Jessica Pelletier, an employee at a medical marijuana company, sued her co-worker Eric Lerner, as well as her supervisor, Tikun Olam, for sexual harassment and retaliation. Pelletier, 23, of Rocky Hill, Conn., charged she was demoted and then fired after complaining to her bosses about alleged raunchy treatment from her colleagues. Her suit charged she was sexually harassed, taunted about her fight with breast cancer — and ridiculed for her Catholic faith. She was let go after 20 months with the company. According to her lawsuit, Tikun Olam management charged that she had “an attitude” by reacting badly to the inappropriate comments of her bosses. The New York Daily News ran an article about the lawsuit, naming everyone involved, including Eric Lerner. This is something newspapers do, especially when the lawsuit covers public interest subjects like workplace harassment. This is something newspapers have every right to do, as filed lawsuits are public records and any coverage of filed suits is very definitely covered by the First Amendment. Eric Lerner filed a countersuit against Pelletier roughly six months after she filed her harassment suit. Lerner's suit alleges Pelletier has defamed him with false claims, both in and out of court. (How some of those claims will manage to survive a motion to dismiss is unknown, considering statements made in courtroom filings are generally impervious to libel litigation. Statements made in court documents are almost aways given absolute immunity from civil actions.) Before the defamation suit even got going, Lerner asked the court to grant him a restraining order against Pelletier to prevent her from distributing the Daily News article Eric Lerner is so concerned about. This is already an unconstitutional request, but it gets worse. He also requested his name and picture be removed from the New York Daily News' article about the harassment lawsuit. Unbelievably, both of these have been granted by Judge Galasso. The Daily News wasn't a party to the defamation lawsuit, nor was it asked to make an appearance to defend its interests. It was informed the day before the injunction hearing, however, and its representative argued (to no avail) that the requested order was prior restraint -- something that's blatantly unconstitutional. Here's the pertinent part of the order, which instructs the Daily News to alter an article based on obtained court documents -- in other words, completely factual: pending the hearing and determination of this motion [which is to be decided May 16] … the Daily News shall remove plaintiff Lerner’s name and photograph from the Article and its associated keywords and Facebook posts. The Daily News argued several things, all of which were heard, but ignored, by Judge Galasso. First off, its legal rep points out the article in question is six months old, which makes Lerner's demand for an immediate injunction illogical. From the hearing transcript [PDF] (which also contains the granted injuction): Another important detail to note is that this article was published on October 7, 2016, nearly six months or more than six months ago. The Daily News is therefore perplexed as to why this extraordinary relief and Order to Show Cause has been brought because it's not apparent how there could be the kind of immediate and irreparable harm that would warrant preliminary injunctive relief for defendant -- for plaintiff. Plaintiff in this case has been aware of the article for six months. [...] We find it difficult to believe that Mr. Learner [sic] will be able to make a cognizable showing of irreparable harm given that he's waited six months to bring these proceedings [rather than] when the article was first published if the harm was really so immediate and irreparable… Judge Galasso's answers to all the Daily News' legitimate First Amendment assertions is "because the internet." The issue here too is that the internet has changed dissemination of information. It's always there. If people want to check somebody, it comes up all the time. Prior, a newspaper article is printed, that was the end of it. You had to go to a library or try to research it to try and get that out. And this unbelievable word salad where Galasso gets going about the internet, harassment, the First Amendment, and what he believes America is --- and it apparently isn't searchable online newspaper articles: Even on other aspects, Facebook, something gets published on Facebook or Twitter and something like that, even if it's false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don't want chaos either. This incomprehensible statement allows Galasso to grant the order to silence part of the "chaotic" internet while simultaneously allowing him to wash his hands of it. It's up to the appeals court now -- no longer his problem. But the order remains in place. Not that it matters to the Daily News, which released this editorial in response: A judge on Long Island has ordered the Daily News to remove the name of a defendant in a civil lawsuit from our website. Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school. The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner. Maybe Galasso would have been better staying in his lane, as Scott Greenfield points out: Lack of familiarity with the First Amendment is one thing. But jurisdiction? The Daily News wasn’t subject to his jurisdiction. While some judges seem to have a general impression that their powers extend wherever they want them to extend, they have certain fairly obvious limits. Foremost among them is they can’t issue orders requiring non-parties to do anything. Not good things. Not bad things. Nothing. They are not within the ambit of their jurisdiction just because the judge says so. Not only did Galasso order a non-party to do something unconstitutional, but he did so before any of the facts were in. Lerner's defamation accusations have not been proven. In fact, nothing has been discussed thus far but how to censor a newspaper's article about Lerner being named as a defendant in public court documents. Galasso overstepped here, not just in terms of the Constitution, but in terms of jurisdiction. Unfortunately, the overreach that resulted in the stupid granting of an unconstitutional request may also limit the Daily News' options when it comes to appealing the order. The flip side of a judge issuing an order to a non-party to do something is that they’re a non-party when they want to challenge the judge’s order. The News would first need standing to intervene, which means they would have to obtain the court’s approval for sticking their nose into somebody else’s litigation. But the judge ordered them to do something, so how could that be possible? Darn good question, and that’s the sort of questions that arise when a judge does something beyond his authority, outside the law and for which there are no procedures. The only thing guaranteed is that when all's said and done -- no matter how Lerner's defamation case turns out -- this is all that will be remembered about it: a defendant with a countersuit and the unconstitutional dream of living an untroubled internet existence until vindicated (possibly twice!) in court. For Judge Galasso, it's much, much worse: Eric Lerner doesn’t like his name associated with this sordid story of a 23-year-old woman claiming sexual harassment? Who would? Win the case and the problem is solved, but the one thing you can’t accomplish is forcing a newspaper to remove your name because, hey, it’s unpleasant. The Daily News isn’t going to do it. If anything, this will Streisand Lerner’s name across the internet. And Justice John Galasso’s too, which is going to make it really hard when he has to get a new job after everyone knows how badly he sucked at his current one. Galasso's order -- and his "this is all up to other people except for the part where I granted the injunction" flailing -- is the judicial equivalent of leaving a flaming bag of feces on the Appeals Court's front door step. All it can hope to do is extinguish it without having to scrape too much off of its shoes. Permalink | Comments | Email This Story

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Obama waged a war on whistleblowers during his eight-year run. Sure, it was done under a sunny facade of "transparency," but the former president set the gold standard for whistleblower prosecutions, performing more than every other president until then… combined. Punishing whistleblowers is for amateurs. The Trump Administration will show everyone how it's done. US authorities have prepared charges to seek the arrest of WikiLeaks founder Julian Assange, US officials familiar with the matter tell CNN. For what, you may ask? Publication of leaked documents? Well, there's a little more to it than that. The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents. Hmm. But the Washington Post, Intercept, Guardian, and New York Times also did this. There's been some online speculation this actually refers to Assange's Russian-host-maneuvering and flight plan assistance -- that brief moment where journalists and g-men packed a plane to Cuba only to find themselves Snowden-less. But Ellen Nakashima's article for the Washington Post digs a little deeper into the proposed charges, citing evidence in Chelsea Manning's trial, where Assange assisted Manning with password cracking to sweep up digital breadcrumbs. (A 2012 DOJ warrant gives a bit more insight into the possible charges, which include espionage, CFAA violations, and "conversion" of stolen documents.) But, again, this is nothing out of the ordinary for journalists who publish leaked documents. As Nakashima points out, helping sources erase their digital footprints is just something good journalists do. Prosecuting Assange for these efforts would set a terrible precedent. [J]ournalists routinely employ methods — or tell sources to employ methods — that will help them avoid being identified. Justice Department officials in the previous administration believed that prosecuting Assange or other members of WikiLeaks could open the door to prosecuting news organizations and journalists who published classified information, and so they opted instead to target people, such as Manning, who had clearances to access such information and gave it to reporters. Obama may have gone after a bunch of whistleblowers, but he was unwilling to cross the First Amendment line by punishing those who published leaked documents. Apparently, Trump and his DOJ have no such qualms. Prosecutors have struggled with whether the First Amendment precluded the prosecution of Assange, but now believe they have found a way to move forward. And they may have, without amending the First Amendment. But it will take a whole lot of cooperation to bring Assange in. The Ecuadorian embassy has managed to hold off Sweden for years and the country's government isn't exactly best friends with the US nor is it exactly respectful of US law. Assange isn't a US citizen, so he's not automatically guaranteed First Amendment protections, even if the distribution of leaked documents is very much a journalistic enterprise. The US government doesn't automatically refuse to extend constitutional protections to foreign citizens, but it might be able to pick and choose which of those it wants to extend to Assange (though if he's charged in the US, he does get the benefit of all Constitutional protections). Even if the current DOJ can find a lawful way to prosecute Assange for still-unnamed charges related to leaked documents, this is an extremely dangerous direction for the federal government to be moving in. This unofficial announcement by the DOJ is an implicit threat to journalists everywhere. You may hate Assange and/or Wikileaks, but it may be your favorite leak-friendly news sources facing charges next. Distinguishing your favorite source from Wikileaks is not nearly as easy as you might think. Permalink | Comments | Email This Story

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Corporate sovereignty provisions in investment treaties have become much better known than they were when Techdirt first wrote about them in 2012. Despite that growing awareness, and widespread outrage at the idea that corporations can request secret supra-national tribunals to make awards of hundreds of millions or even billions of dollars paid from public funds, companies continue to use the system to bully governments into changing their policies. For example, here is the US pharmaceutical company Gilead successfully deploying corporate sovereignty against the Ukrainian government, as originally reported by Investment Arbitration Reporter: The dispute with Gilead, which Ukraine's Ministry of Justice had characterized as an $800 million dispute, relates to the drug sofosbuvir (sold by Gilead as Sovaldi). Sovaldi, a highly effective treatment for chronic hepatitis C, has been available in Ukraine -- a country reportedly home to over 2 million people infected with hepatitis C -- since 2015, but the company has lately been locked in a struggle over the ability of generic companies to market cheaper versions of the drug in Ukraine. According to details of the settlement released by Ukraine's Ministries of Justice and Health, the settlement sees Gilead refrain from pursuing its damages claims against the country, and will see the company offer Sovaldi (and a combination therapy called Harvoni) at a reduced price. Also, following the settlement, a generic competitor of Gilead has seen its own competing drug de-registered by authorities. By de-registering the generic competitor to Gilead, the Ukrainian government is allowing the US company's to maintain its monopoly on the drug. In Colombia, the Swiss drug company Novartis also used the threat of a corporate sovereignty lawsuit, in this case to put pressure on the government there to stop it from issuing a compulsory license for a key anti-cancer drug, which would allow low-cost generics to be produced: Leaked letters (PDF) to the Ministry of Trade and Industry show how Novartis threatened to resort to international investment arbitration for an alleged violation of the Swiss-Colombian bilateral investment treaty (BIT), which was signed by both countries in 2006. This undemocratic procedural mechanism, better known as Investor-State dispute settlement (ISDS), forms part of many trade agreements and allows an investor from one country to bring a case directly against the country in which they have invested before a private international arbitration tribunal, without going through local courts first. This threat has undoubtedly influenced the decision of the Colombian health authorities to stop short of pursuing a compulsory license, focusing only on a price reduction. It's not just drug companies that try to use ISDS litigation to force governments to reverse their policies. Here's an oil and gas exploration company that is unhappy with a decision by the Italian parliament to ban new exploration and production activity within 12 nautical miles of the coast because of concerns for the environment and the high risk of earthquakes: Rockhopper Exploration is fighting for compensation from Italy after it banned offshore drilling, leaving the company unable to develop one of its oil and gas fields. The Aim-listed explorer said that it had begun international arbitration against the country for "very significant monetary damages" over the loss of future profits from its Ombrina Mare field. Since Rockhopper is an oil exploration company, it must have carried out detailed studies on the geology of the field before deciding to drill for oil and gas. Either its geologists were negligent in not spotting that there was a risk of earthquakes which made the area unsuitable for exploitation, or the company knew about the dangers, and decided to continue with its plans anyway. In any case, it's ridiculous that Rockhopper thinks the Italian government owes it money for "lost future profits" that clearly never existed anywhere other than in the company's fantasies. This is a general problem with corporate sovereignty claims: they often invoke some mythical "future profits" as if those were indisputable and guaranteed. But business is based on rewarding calculated risk-taking, and that includes the risk that hoped-for profits never materialize. ISDS is an attempt to remove the risk of investment from companies, and place it squarely on the public's shoulders, without any quid pro quo. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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So rumors have started flying that Google is about to build some ad blocker technology into Chrome, that would block ads that the company considers to be "unacceptable ads" -- as determined by the "Coalition for Better Ads." Of course, while a coalition for "better ads" sounds like a good thing, this Coalition for Better Ads has been criticized. It was put together by the biggest companies in the internet ad space, and many worry that it's just an attempt to whitewash over a lot of bad practices by declaring just the extremely egregious practices as "bad." Either way, the original report from the paywalled Wall Street Journal notes that the ad blocker might even block all ads on sites that run "bad" ads (i.e., not just the bad ads). There have been all sorts of reactions to the news of a built-in Chrome ad blocker, but a lot of people are raising the antitrust questions. Obviously, Google is unlikely to consider its own ads to be the "bad ads." And thus, an official Google ad blocker -- especially one that allows its own ads through and is default on its very popular browser -- at least raises eyebrows about antitrust issues. There's a strong argument to be made (and I'm pretty sure that some ad firms would raise this with a court within a day or so of such an ad blocker being released) that this is an anti-competitive move to suppress competing ad firms. But... then again, there's the fact that lots and lots of people (quite reasonably!) hate ads. And a system to block "bad" ads is a pretty clear consumer benefit (which I imagine would be Google's key defense). And, of course, Chrome (and other browsers) have had a form of ad blocker for ages already in that they block pop up/pop under ads. So it could be argued that this kind of thing is already done, and how different is this? Of course, there might also be a more nuanced antitrust claim -- that this is an attempt to destroy the business of other ad blockers that are more aggressive in blocking ads -- including Google's ads. The argument there is that by offering a built-in ad blocker that handles the worst of the worst ads, users are less likely to install the optional more comprehensive ad blockers, thus protecting Google's ad business. That's one that Google may have a much tougher time with. Still, it does seem... tricky, to think that by providing users with a better default experience, that might also mean antitrust problems. That, of course, is where things always get tricky around antitrust issues like this one. Improving life for consumers is good... but doing so in a way that leverages a dominant position that potentially harms other ad blockers... is almost certainly going to lead to a lot of lawyers making a lot of money. But it also puts Google in a difficult position if its goal really is to stop bad advertising (and I know some will insist that's not Google's goal at all -- but just assume that it is and figure out what can Google actually do here?). Just as in some of the search antitrust cases, where sites with bad content were pushed down the rankings and sued (and lost... but still impacted some antitrust investigations), it becomes tougher to actually take steps to improve the web browsing experience for users. If I were in Google's shoes I'm not sure I'd go through the trouble of doing this, even if it would help in other ways. With so many folks gunning for the company these days, it seems like it's going to be costly in fending off antitrust challenges. Permalink | Comments | Email This Story

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As you'll recall, back in early February, over 100 tech companies signed onto an amicus brief, arguing that President Trump's initial plan to bar immigration from certain countries was unconstitutional and illegal. A month later, a smaller group of companies signed onto an amicus brief in the district court in Hawaii concerning the revised travel ban (and a few people noted that some of the companies that signed onto the first brief had not signed onto the second one -- wondering if that meant many companies weren't as worried about the revised ban. Except, yesterday an even larger group of tech companies (162 in total) signed onto a new amicus brief for the 4th Circuit court of appeals which is the next appeals court hearing a case on the revised travel ban. And, yes, we at the Copia Institute signed onto this one as well (we also signed onto the first two). It seems likely that some companies just sat out the Hawaii case because it's in a district court, and amicus briefs aren't always as welcome in district courts, and some lawyers view them as wasteful at that stage. Amicus briefs tend to really only matter in appeals courts (or, of course, the Supreme Court). You can read the full brief here (or below), as it makes the case that even the revised ban doesn't solve the problems of the original ban. It's worth reading carefully. It's good to see all of these companies continue to stand up for what's right, especially when it would be easy to sit back, do nothing, and play nice with the new administration. And, because I know that some people will insist that the only reason that tech companies have signed onto this is because it gets them cheap labor or some other such criticisms, I can assure you that in many cases, the participation in these amicus briefs is being driven by the employees at these companies, demanding that management stand up and speak out, rather than a top down decision. Many people feel strongly -- as I do -- that being a country that is welcoming to immigrants is an important part of being American. No one's arguing that there shouldn't be background checks and "vetting" and the like -- but the executive order goes way beyond that. Permalink | Comments | Email This Story

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It's pretty rare for us to bring up the issue of "moral rights" over creative works in the US, and even rarer to directly reference VARA -- the Visual Artists Rights Act of 1990 -- and yet, here we are, twice in one week discussing VARA claims. Even more incredibly, both are about sculptures that were placed for free in parts of lower Manhattan, right off Wall St. The claim that's received lots of attention was the one over the Wall St. Bull and the fact that another statue was placed near the bull, which the artist claims changes his message, and thereby violates VARA. This other claim is from another sculptor, Steve Tobin, who is suing Trinity Church for moving his 9/11 memorial sculpture to Connecticut. VARA, if you don't remember, was a bill passed in 1990, as a half-assed way to try to pretend that the US is in compliance with the Berne Convention -- the large (and almost entirely awful) international agreement on copyright and copyright related issues. Part of the Berne Convention requires that countries signing on recognize so-called "moral rights." For the most part, copyrights are considered economic, rather than moral rights, which is why they can be bought and sold. Moral rights, on the other hand, are a concept more popular in Europe, which argue beyond the economic rights, the creators of works have certain "moral" rights in what is done with those works. In order to pretend that the US fulfilled the Berne Convention requirements without actually introducing a full moral rights regime, Congress passed VARA in 1990, which gave fairly limited moral rights only to "visual" works like paintings and sculptures. The specific moral rights granted include the right to claim authorship in the work you created, and to prevent the destruction or mutilation of your work -- which is what we discussed in the case of the Wall St. Bull (even though VARA likely doesn't apply to the Bull). So, now for the details of this case. The Art Newspaper (the link above), which first wrote about this story, did not post a link to the filing (side note: I never understand why journalists don't link to source material if they have access to it). You can read the whole thing here. But the quick summary, as explained in the link above, is this: The sculpture The Trinity Root recalled a sycamore tree that stood in front of the 320-year-old church and bore the brunt of the debris from the collapse of the Twin Towers on 11 September, preserving the church from more extensive damage. Tobin convinced the rector of the church at the time to allow him to excavate the stump and roots of the tree so that he could create a bronze memorial. The artist was not paid by the church and covered the production costs himself—estimated at more than $1m according to the lawsuit filed in federal district court on Wednesday, 12 April—on the promise that the work would remain in the courtyard permanently. The sculpture was installed in 2005, but a different rector decided it should be removed in 2015, without informing the artist, and relocated to a church-owned seminary in northwestern Connecticut. “The new rector, Dr William Lupfer, didn’t like it, thought it was ugly and took up too much real estate and wanted it gone,” said Kathleen Rogers, Tobin’s business manager. In the process of moving the three-tonne sculpture, some elements were damaged, the lawsuit says. You can see a snapshot of the Trinity Root by Tony Fisher here (licensed under a CC-BY 2.0 license): Large sections of the filing focus on the fact that in multiple press announcements and stories about the Trinity Root, the church mentioned that the sculpture would be a "permanent" installation (and in at least one case, Tobin himself put out a press release with the same claim, and the press release had the church's approval). The lawsuit goes to great lengths to also note that this is Tobin's most famous work, that it's tied up with his reputation and that lots and lots of people come to visit it. Oh, and also he explains just how much effort was taken in creating, transporting and installing the sculpture (they even had to get the George Washington Bridge to close to allow him to transport the sculpture across it. In other words, this was no small undertaking. There's also a video of the creation, transportation and installation of the Trinity Root: The complaint also reveals some of the discussions that Tobin had with Trinity Church after finding out that the new Rector didn't like the sculpture (or the crowds that came to see it). Tobin keeps telling the Church that the artwork is "site specific," and the church keeps asking him if he'd help them move it away at the church's expense. Also this: according to the lawsuit, as Tobin kept arguing with the church over moving the sculpture, they apparently went and did it anyway without telling him, and they continue to discuss over the phone with him his objections to moving it, without mentioning that they had already moved it. One more twist in the contract between Tobin and the church is that Tobin agreed to one of those "you give us everything" clauses reading: Under the heading "OWNERSHIP; COPYRIGHT" the Agreement further provided that "Tobin hereby transfers and assigns to Trinity by charitable donation all right, title and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known and hereafter invented." The question is whether this would count as a waiver of moral rights under VARA. You can't assign your moral rights to another party, but you can waive them. But a waiver, under VARA, has to be written and it has to specify the "uses of that work to which the waiver applies." Tobin's lawyers have a point that the above doesn't seem to be a waiver (and, Trinity Church might want to talk to whatever lawyer drew up that agreement...). Finally, it's revealed that in moving the sculpture from Manhattan to Connecticut, the statue was damaged in a few places, which gives Tobin more of a claim under VARA for "mutilation" of his work. So what does this all mean... At a glance, it seems like Tobin has a much more credible claim under VARA than the guy who created the bull, but it still seems... nutty. The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea. Remember, the Copyright Office is currently studying the question of expanding moral rights, and the comment reply period is still open (until May 15th). In the end, while the damaging of the statue perhaps adds at least some greater credibility to the VARA claim -- even though it wasn't designed to be a mutilation, just an accident while moving -- the fact that an artist can claim (even after giving up all rights and title to the piece) that because the piece has some connection to a site, the owners can no longer move it, would be really, really dangerous. Yes, there's a stronger argument here as to why this one location is directly tied to this piece of artwork (and many other artists would have trouble showing the same level of connection), any time you argue that artwork is so connected to its siting that moving it would violate the law... something seems to have gone wrong. I can certainly understand why the artist is upset, but as we noted with the bull, artists give up quite a lot of control when they let art out into the world and, as in this case, hand ownership over to a third party. Permalink | Comments | Email This Story

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Now that Eugene Volokh of the Volokh Conspiracy has dipped into bogus lawsuits and DMCA notices targeting supposedly-libelous reviews and comments, he's apparently stepped up his detective work. Volokh and Paul Alan Levy of Public Citizen managed to expose the person behind a series of bogus lawsuits aimed at cleaning up clients' search engine reputations. (Pissed Consumer has also uncovered some of the same tactics.) Volokh has uncovered more questionable lawsuits, which have led to more questionable court orders being sent to Google to delist content. As Volokh points out, these lawsuits may be slightly more legitimate, but they still bypass a great deal of the adversarial process. Here’s another twist, which some people have used to try to deindex mainstream news articles (though without any success, to my knowledge, because Google seems skeptical of these particular requests) — they (a) sue the people quoted in the articles, (b) get stipulations from the people recanting their allegations, (c) get court orders based on those recantations and then (d) try to use those court orders to deindex an entire article. Even if it's granted that the stipulations are genuine (a possibility, but not a probability), there's still the problem of who's being cut out of the loop. While it's true the correct target for a libel lawsuit is the person making the defamatory statements, filing lawsuits in such a way that the publications themselves remain unaware of the legal proceedings can harm these new entities indirectly. When content starts vanishing from Google, news sources are left with unlisted stories based on questionable assertions. Their integrity suffers damage when they're not made aware a story's source may have lied to them. When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization’s review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct. There's no review option and the continued publication of the story could possibly see the new organization facing a defamation lawsuit of its own. (Probably not a successful one, but one it would still be compelled to defend itself against.) Not only that, but individuals may be more susceptible to legal bullying than new agencies. This is perhaps what these plaintiffs are counting on. Volokh covers two different cases following the same M.O. in his post. Both plaintiffs managed to obtain a stipulation from the alleged defamers and obtained court orders to delist content, despite there never being an examination as to whether the statements were truly actionable. To its credit, Google has refused to delist content based on court orders obtained this way, most likely due to the recent increase in bogus libel lawsuit activity. As I mentioned, fortunately today Google (and other search engines to which these orders are submitted) can decline to implement such deindexing requests, taking the view that a stipulated judgment based on a source’s recanting (under legal pressure) is no reason to vanish a news story that relied on the source. Unfortunately, Google's "opt out" may not last for long. As Volokh points out, the California Supreme Court is currently reviewing a case that could, if the lower court's decision is upheld, force Google to comply with these orders, whether or not they were obtained legitimately. Permalink | Comments | Email This Story

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Online security is more important than ever for businesses and individuals. The $44 Four Volume Cyber Security Bundle is designed to get you up to date on the latest issues in the security space. Over the course of 53+ hours, you will learn about network security, anti-malware practices, anonymous browsing and much more. 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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The Trump administration is rebranding the country: Make America Fear Again. In response to a national crime wave that doesn't exist, the head of the DOJ is rolling back police reform and replacing it with extra "toughness." Under the new regime, law enforcement officers will have the full (and, apparently, unconditional) backing of the White House. The DHS is joining the DOJ in flexing its new muscle. DHS Secretary John Kelly has already stated he's looking to turn requests for visitors' social media/email account information into demands, which would include the mandatory relinquishment of account passwords. Both agency heads have expressed a desire to do battle with US citizens by revitalizing the fed's war on marijuana, despite legalization referendums being passed by popular vote in several states. Kelly... course-corrected on a previous statement he made regarding the dangers of marijuana. Calling it “a potentially dangerous gateway drug that frequently leads to the use of harder drugs,” Kelly vowed that DHS personnel would continue to investigate and arrest those involved in illegal trade of the drug. That comes after Kelly on Sunday told “Meet The Press” host Chuck Todd that marijuana was “not a factor” in the war on drugs, arguing that solving the nation’s drug problem does not involve “arresting a lot of users.” These comments came during Kelly's first major public speech since taking office. His "course-corrected" statement echoes DOJ head Jeff Sessions' take on marijuana, a drug only found dangerous by agencies whose budgets rely on marijuana being viewed as a threatening "gateway drug." Both are also looking to toss more immigrants out of the country, theorizing that stricter immigration control will somehow curb drug cartel violence -- almost all of which is contained completely in other countries. Kelly mentioned Salvadoran drug cartel MS13 in passing, claiming it was responsible for acts of violence and stateside human trafficking. Attorney General Jeff Sessions was even less kind in his appraisal, delivering comments that made it sound as though the only thing standing between the US and societal collapse was American law enforcement: When we talk about MS-13 and the cartels, what do we mean? We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens and who profit by smuggling poison and other human beings across our borders. Depravity and violence are their calling cards, including brutal machete attacks and beheadings. It is here, on this sliver of land, where we first take our stand against this filth. The DHS head is also capitalizing on Trump's dark -- and deeply-inaccurate -- view of national security. His speech portrayed the country as being under ceaseless attack from innumerable evil forces. “We are under attack from people who hate us, hate our freedoms, hate our laws, hate our values, hate the way we simply live our lives. And we are under attack every single day,” he warned. “The threats are relentless.” Kelly covered a wide swath of issues — from transnational criminal organizations to cyberattacks to homegrown violent extremism, often using graphic descriptions of human suffering to illustrate the dangers. The speech harkened back to President Trump’s inaugural address to Congress, in which he described “American carnage” outside of the Beltway. No agency benefits more from the perception of an insecure homeland than the Department of Homeland Security. But the trickle-down effect of fear-based policy-making helps other agencies as well. In his speech, Kelly tacitly aligned himself with the only Obama holdover Trump seems to like: FBI director James Comey. He warned that proliferating encrypted communications technology would soon make it “impossible” to track terrorist threats. Kelly had more to say on that subject in relation to Trump's still-unseen cybersecurity executive order. Supposedly, an updated version of the draft released in February is due any day now, and no matter what's in it, Kelly fully supports it. “I’m standing by with bated breath,” Kelly said when Frank Cilluffo, director of the university’s Center for Cyber and Homeland Security, asked if there was any news on the order. “I can’t wait.” Presumably not referencing the FBI's counterterrorism sting operations with the phrase "homegrown terrorism," Kelly again pointed to encryption as being part of the problem. “What’s feeding homegrown terrorism is the Internet. They publish revolting how-to manuals,” Kelly said. “Thanks to proliferating encryption devices, these individuals are becoming harder and harder to detect. Our nation’s youth are prey to these predators.” Between John Kelly, AG Jeff Sessions, and CIA head Mike Pompeo, the administration seems interested in sacrificing citizens' freedoms and protections on the altar of national security. All three are hoping loaded, hyperbolic language will convince more Americans to give up these protections willingly. Those who don't will probably be viewed as enemies of the nation -- and that includes any legislators who appear reluctant to give these agencies everything they want. Kelly again: “If lawmakers do not like the laws they’ve passed and we are charged to enforce — then they should have the courage and skill to change the laws. Otherwise they should shut up and support the men and women on the front lines,” Kelly said, to a burst of applause in the auditorium. This is wonderful stuff if you're a fan of authoritarianism. Shut up and show your support. It's a message that's been sent several times by the new president. Now, it's being echoed by his top officials. Permalink | Comments | Email This Story

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By now, most people understand that the residential broadband market simply isn't very competitive. They also understand that's in large part due to the lobbying and financial stranglehold many providers have over both state and federal lawmakers and regulators. But however uncompetitive the residential broadband market is, the business "special access market" (often called Business Data Services (BDS)) is notably worse. This important but overlooked segment of the telecom market connects schools, cell towers, ATMs, retailers, and countless others to the internet at large. But consumer groups and smaller companies for years have complained that this segment suffers under an absurd amount of monopoly control, resulting in many companies and organizations paying sky-high rates for basic connectivity. According to the FCC's own data (pdf), in the lion's share of markets, 73% of the special access market is controlled by one provider (usually AT&T, CenturyLink or Verizon), 24% usually "enjoys" duopoly control, and only a tiny fraction of markets have more than two choices of BDS providers providing this key connectivity. After ten years of industry bickering and lobbying, Tom Wheeler last year began seriously exploring changes to special access rules, including price caps on how much these monopolies and duopolies can charge smaller companies (and in wireless, smaller competitors). By and large the FCC avoids broadband price caps like the plague, and the effort to impose limits on the BDS market reflected just how incredibly uncompetitive the special access market had become. But the rules were never finalized, and new FCC boss Ajit Pai was quick to throw away the decade-long reform effort. Instead, Pai has proposed deregulating this captive market even further, a massive win to the incumbent monopolies and duopolies that control it. In a blog post, the FCC boss was quick to insist that competition in this sector is actually growing, and his (read: AT&T and Verizon's) proposal will be sure to keep regulations in place in areas where it isn't: "The extensive record compiled by the Commission’s excellent staff shows substantial and growing competition in many areas of the country, thanks to new market entrants like cable companies. Where this competition exists, we will relax unnecessary regulation, thereby creating greater incentives for the private sector to invest in next-generation networks. But where competition is still lacking, we’ll preserve regulations necessary to prevent anti-competitive price increases." But, as with much of Pai's particular brand of FCC leadership, what the FCC boss says -- and what he does -- are often very different things. Ars Technica is quick to highlight that Pai's proposal has a rather unique definition of "competition." Namely, the proposal declares a market "competitive" if there's just one additional broadband provider anywhere in a half mile radius: "Pai's definition of "sufficient competition" has drawn fire. The plan would treat an entire county as competitive "if 50 percent of the locations with BDS demand in that county are within a half mile of a location served by a competitive provider." A county would also be considered competitive if 75 percent of Census blocks in the county have a cable provider." Pai is part of a segment of revolving door regulators and other industry allies that often comically deny any competition issues in the broadband space -- whatsoever. Their solution is consistently blind and blanket deregulation, laboring under the belief that less regulatory oversight -- combined with no real competition -- somehow magically forges telecom Utopia. And while deregulation certainly does aid competitive, innovative markets, blind deregulation of the telecom market time and time again only serves to make competition issues worse. Just ask a Comcast customer. The FCC is poised to vote on the deregulation of the uncompetitive BDS market on April 20 (and likely already voted to approve this effort by the time you read this). Lawmakers like Senator Ed Markey and Rep. Ed Doyle had urged the FCC to delay the vote: "In the BDS market, we need more protections for competitors and small businesses, not great market control by incumbents,” they wrote. “We are concerned that the proposed BDS Report and Order does not adequately promote competition or apply appropriate pricing protections where competition does not exist." BDS being an important but wonky and under the radar market for consumers and the press -- Pai should be able to ram this vote through without much public scrutiny. As such, Pai's moves to gut rules governing the BDS market are set to join a growing chorus of other "accomplishments" we've seen so far under Pai, such as making it easier for prison monopolies to rip off inmates, the dismantling of efforts to improve cable box competition, the erosion of efforts to bring broadband to the poor, and his looming attempt to kill net neutrality. You'll notice one, consistent beneficiary to Pai's agenda -- and it sure as hell isn't you. Permalink | Comments | Email This Story

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This is one of the strangest "but for video" cases ever. We know many cops are hesitant to clip body-worn cameras on themselves for a variety of reasons. The official statements always express concern about privacy, as though people interacting with public servants somehow believe these interactions are private. Others show concern for police officers' privacy, as though the public is really hoping to FOIA footage of officers sitting in the break room or using the restroom. Deep down, everyone knows the cameras are a tool of accountability, albeit one that's far from perfect. Body camera footage frequently goes "missing" when force is deployed questionably. And it's completely possible to make the footage subjective with strategic body positioning and constant yelling of exonerative phrases like "Stop resisting!" So, it's accountability in its infancy, run through a layer of law enforcement-friendly filters (footage is controlled by police officers and often sheltered from FOIA requests). But it's much better than what we had before, where all action had to take place in front of stationary dashboard cameras. Still, there are plenty of bugs -- both those inherent to the system and those created by law enforcement resistance -- to be worked out. We've seen cops damned by their captured footage and we've seen officers exonerated by footage that contradicts arrestees' complaints. What we haven't seen before is a camera being activated by someone other than the cop in possession of it. And we definitely haven't seen any situations where the footage captures off-duty violence. This is a new one, and it's likely to lead to another "privacy" discussion by the time it's all sorted out. (via PoliceMisconduct.net) A North Charleston Police officer was arrested for assaulting his wife Sunday after police say the incident was captured on his body camera. Hanahan Police say the officer, Nicholas Palumbo was arrested early Sunday morning. According to an incident report, Palumbo's wife told him she wanted a divorce. The report states Palumbo became very irate and pushed his wife to the ground in their kitchen. Police say after the altercation started Palumbo's wife went into the bedroom and turned on his body camera. According to the report, Palumbo came into the room, pinned his wife to the bed and threatened to strike her in the head with his fist while shaking her. His wife told investigators she was in great fear for her safety and the safety of her children. The report states she did not know where her husband had gone and was afraid he would return home and cause physical harm to her. I'm not sure which part is more amazing: the forethought of the abused spouse to activate the camera or the fact that the footage was actually viewed by someone at the police department. We know officers protect officers first. Perhaps being the wife of an officer grants you more attention and respect than a random civilian with a list of allegations. Whatever the case is, the department viewed the footage and arrested the officer. Even more surprising, the officer was immediately fired. I guess this decision was made easier by his bail requirements, which forbade him from possessing guns or ammo -- something every on-duty cop generally has on them or easy access to. It's a petard-hoisting of sorts and definitely an anomaly in the pantheon of body-worn cameras. No doubt other cops with the same domestic issues will be keeping a closer eye on their issued gear during their off-duty hours. And there will definitely be challenges to the evidence, should this go to trial. Arguments will be made about surreptitious recordings being used to fire a police officer, but those shouldn't get too far. South Carolina is a one party consent state when it comes to recordings. The fact that it was recorded in a private home (rather than in a public area) makes it a bit more complicated, but the recording should be treated no differently than the spouse's oral testimony. The recording just makes it a lot tougher to challenge the spouse's domestic abuse allegations. Whatever happens, it's one for the "but for video" record books: body worn camera as the prosecution's star witness in a domestic assault case. Permalink | Comments | Email This Story

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With broadband privacy rules dead, ISP lobbyists and their loyal lawmakers have begun quickly shifting their attention to killing FCC oversight of broadband providers and net neutrality. We've pointed out how folks concerned about this shouldn't expect a lot of help from the likes of Facebook, Netflix and Google this go round. We've also noted how folks need to begin waking up to the false arguments being used to sell the pitch (namely that gutting net neutrality and FCC authority over ISPs will be fine because existing FTC rules will protect users, which simply isn't true). Roku certainly appears to have gotten the message, with reports suggesting the company has hired DC lobbyists for the first time ahead of what's expected to be a May or June attack on net neutrality (either at the FCC, in Congress, or a combination of both): "For Roku and others in the business, an end to the Obama-era protections could make it harder — or, in some cases, more expensive — to offer content or services to customers at top download speeds. That’s why Roku has hired a pair of Republican lobbyists through an outside government-affairs firm, according to a federal ethics reports filed this week, specifically to focus on net neutrality. It’s the first time the company has ever retained lobbyists in Washington, D.C." Roku, like countless other companies, is considering a live TV streaming platform that would compete with services from the likes of AT&T, Verizon and Comcast. Via usage caps and zero rating, these providers have already been waging a not-so-subtle war on streaming competitors. The former FCC had just started doling out wrist slaps for this sort of anti-competitive behavior, though the current Ajit Pai-led FCC was quick to kill all inquiries into the tactic. As we've long-noted, this kind of behavior is only made possible by a lack of competition in the broadband space, something the current FCC is clearly not interested in fixing. Roku has been on the receiving end of other anti-competitive behaviors by the likes of Comcast, designed to protect the cable industry's long-standing monopoly over cable TV hardware. While not technically a net neutrality violation, Comcast spent years refusing to implement the relatively-simple authentication needed to let Comcast broadband customers watch services like HBO Go on Roku, Playstation, or other devices. And while it has since backed off that behavior, it's now charging Roku users a completely arbitrary $7.95 fee just to use the Roku to watch Comcast TV services. As we've long noted, these kinds of anti-competitive behaviors are just symptoms of the disease that is the lack of competition in the broadband market (which, contrary to some narratives, is far from "free," is deeply taxpayer subsidized, and doesn't magically fix itself with blind deregulation). With the current FCC making it abundantly clear it plans to ignore this lack of competition -- and strip away consumer protections in the space -- Roku should be worried. If you've spent any time watching the behavior of companies like Comcast as they grow larger and less accountable, you should be worried as well. Permalink | Comments | Email This Story

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Nearly four years after the NYPD was ordered by a federal judge to implement body cameras, the department is finally getting around to finalizing its rule set for deployment. Part of the delay is due to the NYPD seeking input from the public -- input it has apparently decided to ignore. As Scott Greenfield notes, the NYPD gets everything wrong about its policies, applying guidelines that directly contradict the responses received from everyone in New York City not wearing a blue uniform. The first “big” question is when will cops be required to turn their body cams on, since having them doesn’t actually serve much of a purpose if they’re turned off. Notice anything peculiar? Like the public wants them on a lot, and the cops, not so much? But this belies the problem: if body cams must be on for “use of force,” will cops call a “time out” when a situation develops where they decide to tune up a guy who isn’t sufficiently compliant so he can flip the switch? Sure. Who doesn’t honor the sacred “time out”? But then, the “it depends” on witness interviews is somewhat disconcerting. After all, why record witness interviews, since they might say something inconsistent with the cop’s recollection or their testimony in court? That could be unpleasant. The public also wants expansive footage release policies. Unsurprisingly, NYPD officers do not. From the NYPD's body-worn camera report [PDF]: Officers and the public were asked whether they agreed or disagreed with this statement: “If a person has an interaction with an officer wearing a  body-worn camera, the NYPD should be required to show that person the footage upon request.” Here is how they responded: Here are the responses for a similar question, but involving third parties like journalists and advocacy groups making requests for footage: The split is obvious. The public wants access. The NYPD wants sole control. The "compromise" is this: [T]he NYPD is refusing to take this step. Instead, it will require footage requesters go through the slow and ill-suited Freedom of Information Law public records process — the same one you’d have to use to get, say, the mayor’s travel records. To date, when people have used the FOIL process to request footage from the tiny number of body cameras already deployed in an experiment, the NYPD has stood in the way, charging the public exorbitant fees and claiming broad exemptions. When it comes to New York's open records law, approaching the NYPD for documents is an exercise in futility. The department has been called "worse than the FBI, CIA, and NSA" when it comes to responding to records requests. FOIL lawsuits are minimally effective, as the NYPD is as comfortable with slowly bleeding plaintiffs dry as it is ignoring their requests entirely. The other twist is this: if you're facing criminal charges and want access to footage of your arrest, etc., you're not going to get any preferential treatment. You also will be forbidden from joining the FOIL line and hearing your request will be ignored in the order it's received. Scott Greenfield breaks this down: But certainly the defendant is entitled to the video, right? "There is an important exception with respect to release of body-worn camera footage: if a person is arrested and has a pending criminal case, and seeks body camera footage related to his or her arrest, he or she may not come to the NYPD to circumvent the standard discovery process between the prosecution and the defense. Discovery is governed by New York State Criminal Procedure Law. Criminal defendants are entitled to these recordings under the law, but such requests are handled by prosecutors in accordance with existing criminal discovery practices and procedures." Discovery? That same criminal procedure process that has been the target of reform for decades because it’s nearly useless? Unbelievably, the NYPD camera policy gets even worse, and even further away from the public's preferences. Here are the responses given to the question of when officers should be given access to body camera footage. Note that the largest split involves the viewing of camera footage before writing reports. The NYPD policy sides with the 91% of officers who stated they should be given access before writing reports or issuing statements. The explanation of its decision to run contrary to public opinion cites two things: 1. Plenty of other law enforcement agencies have similarly bad camera policies. The NYPD body-worn-camera working group has reviewed the body-worn camera policies of nearly 30 police departments. All of them allow officers, without restriction, to review body-worn camera video prior to filling reports when there has not been a significant use of force. 2. NYPD internal investigations are probably the most thorough, serious investigations in the history of internal investigations. The propriety of this approach requires some understanding of how serious use-of-force investigations proceed in New York City… [two pages of Complicated Hypothetical Situation…] So, the NYPD will join the 21st century, already in progress, with 1,000 cameras and policies that benefit no one but the officers wearing them. The presumption for footage will be nondisclosure and the only people guaranteed to see the footage will be those who can tailor their narratives to recordings after the fact. The NYPD believes it's the best police force in the nation, if not the world. But it's still far behind several smaller agencies, both in terms of tech adoption, as well as transparency and accountability. Permalink | Comments | Email This Story

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Should government to protect us from snooping teddy bears and untrustworthy toasters? The California State Senate seems to think so. With traditional devices on the decline, laptop and desktop computers now account for less than 25 percent of internet network traffic. Indeed, American households now use, on average, seven connected devices every day. As this so-called “internet of things” continues to expand, an array of connected objects—from toasters to lightbulbs to dishwashers—now include embedded microprocessors, multiplying the number of potential threat vectors for data breaches and cyberattacks. Notably, security researchers revealed recently that CloudPets, a company that sells connected stuffed animal toys with voice-recording capabilities, had a security vulnerability that leaked the information of more than 500,000 people. In response to accounts like these and concerns about data collection by internet-of-things devices, California is considering S.B. 327, legislation that would require certain security and privacy features for any connected devices sold in the Golden State. Device insecurity is a real threat and it's encouraging to see legislators thinking about consumer privacy and security. But this bill, facetiously called the “teddy bear and toaster act” by its critics, would create more problems than it solves. These concerns do not merit a heavy-handed and wide-reaching legislative response. First introduced in February, the bill targets a broad range of products that include “any device, sensor, or other physical object that is capable of connecting to the internet, directly or indirectly, or to another connected device.” It would require that their manufacturers “equip the device with reasonable security features.” The scope and scale of that definition would appear to cover everything from smartphones to cars to tweet-happy toasters. Sweeping such a broad range of connected devices under its rules ignores that all of these items have unique functions, capabilities, and vulnerabilities. What constitutes a “reasonable security feature” for one might be completely unreasonable for another. This one-size-fits-all regulatory approach threatens to chill innovation, as companies from a host of different sectors expend resources just to make sense of the rules. Should the bill move forward, we should also expect a range of consumer items will be equipped to blink and buzz and beep in ways more annoying than informative. The bill decrees that: “a manufacturer that sells or offers to sell a connected device in this state shall design the device to indicate through visual, auditory, or other means when it is collecting information.” For some types of devices—such as virtual and augmented reality systems and autonomous vehicles—this requirement is simply infeasible. These devices use sensors to collect data constantly in order to perform their core functions. For always-on devices like IP security cameras, Amazon Alexa or connected cars, an indicator would just be synonymous with an “on” button. Many of these indicators will be superfluous, misunderstood and costly to implement—costs that disproportionately would hit smaller businesses. Other provisions of the bill urge sellers of connected devices to notify consumers at checkout where they can find the item's privacy policy and information about security patches and updates. This is valuable information, but the point-of-sale may not be the best time to communicate it. For many devices, a verbal or web-based tutorial likely would be more effective. Companies need the flexibility to figure out the best ways to inform their customers, while these design requirements would remove that flexibility. In an interconnected world, balancing privacy rights and security is a hugely difficult undertaking. Enshrining that balance in law requires a nuanced and targeted approach. Policymakers at both the state and federal levels should focus their efforts on provable privacy or security harms, while empowering consumers with baseline information, where appropriate. Applying design requirements and compliance tasks in a haphazard way, as S.B. 327 does, will harm innovation without meaningfully improving data security. Anne Hobson is technology policy fellow with the R Street Institute. Permalink | Comments | Email This Story

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