posted less than an hour ago on techdirt
A long report by Human Rights Watch delves into the secretive world behind the evidence given in criminal cases. Multiple law enforcement entities are making use of DEA tips to build cases and secure convictions, but they're burying the original evidence using parallel construction, whitewashing it of possible Fourth Amendment violations. Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full access to domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of "new" criminal investigations. The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs -- up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them. Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence. Parallel construction also means judges may never evaluate whether government uses of constantly evolving surveillance techniques adhere to the US Constitution and laws adopted by Congress, as is their role in the US system. For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights. But judges won't be seeing much info on government surveillance means and methods that the government wishes to keep hidden from the public. The DOJ has dodged its evidentiary obligations for years in regards to NSA-derived evidence, despite multiple government agencies having some sort of access to the NSA's collections. Worse, the courts have encouraged the practice of parallel construction by giving officers free rein to perform pretextual stops. Any real or perceived traffic violation can serve as a pretext for stop meant to discover evidence of some unrelated crime. A 20-year-old Supreme Court decision turned traffic stops into fishing expeditions. The Supreme Court's Rodriguez decision only slightly mitigates the damage done by the 1996 decision. It holds a traffic stop ends when the stated objective is completed. If an officer stops someone for speeding -- even if the real purpose is to search for evidence of drug trafficking -- the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time. If more courts were willing to hold officers to the spirit of the decision, pretextual stops would become a very precarious way to obtain evidence. Instead, the courts have generally been willing to continue to give the government considerable leeway during pretextual stops. This is what keeps the lights on in the DEA's Special Operations Division. Known colloquially as the "Dark Side," the DEA's SOD passes on tips to locals, pointing them at DEA surveillance targets while ensuring these local agencies understand they'll have to find another way to come up with the evidence the DEA has already handed them. Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.” This generally leads to pretextual stops, known by a number of unofficial nicknames synonymous with parallel construction: The documents Ciaramella obtained indicate that the use of “[a] wall off or pretext stop” is an accepted tactic. Human Rights Watch has also identified numerous federal and state judicial decisions in which the government has admitted, after the fact, to having carried out what are known as “whisper,” “wall,” “walled off,” or “wall off” stops. It is unclear how the government decides whether to disclose the fact a traffic stop was pretextual on its own initiative during proceedings: in at least one case Human Rights Watch identified, the disclosure of a “wall stop” was inadvertent (evidence emerged in a New Mexico federal trial that an officer had mentioned a “whisper stop from DEA” to a dispatcher while unaware that he was being recorded). In another case a defendant who had been convicted in Arizona state court only found out the traffic stop in his case was a “whisper stop” requested by the DEA after his conviction, when pertinent records were later disclosed in a California federal court. "Whisper" refers to federal tipsters who are not to be exposed in court. "Wall stops" refer to building a "wall" between the evidence obtained via the pretextual stop and its true origin via DEA sources. In both cases, nothing about the original evidence can be challenged. Evidence obtained via bulk surveillance or warrantless intercepts remains hidden. The trustworthiness of confidential informants cannot be questioned. It remains walled off from the court and defendants, forcing them to work only with what was derived from a traffic stop that likely would not have happened without the intervention of a government agency whose name never appears in court documents. To fix the problem of parallel construction, Human Rights Watch suggests a legislative fix. Unfortunately, as solid as the recommendations are, there's roughly a zero percent chance a bill like this would make its way to the president's desk. Congress should… adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes and consider imposing restrictions accordingly. To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data. Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities. The first recommendation would make all government agencies answerable to discovery requests. This is an important fix, and one that would face a less of an uphill battle in Congress. Currently, any agency that has passed on info used in parallel construction can simply claim its not part of the prosecution and is therefore not required to hand over information to the defense. This would force agencies to search for and produce documents related to the origins of the evidence handed over to local agencies. Or would in theory. The DOJ has spent years dodging evidentiary obligations for Section 702 cases (another place parallel construction is a common practice), so it's apparent the Justice Department picks and chooses which statutory requirements it will follow. Another law on the books won't make much of a dent. As it stands now, the system will allow the government to continue to prosecute people while withholding information pertaining to questionably-obtained evidence. Supreme Court decisions on traffic stops haven't made things much better, even with more recent decisions adding a bit back to citizens' Fourth Amendment protections. The end result is ugly: the government can lie with impunity, making a mockery of the Fourth Amendment in the process. Permalink | Comments | Email This Story

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This week, our first place winner on the insightful side came in response to the UK's absurd cartoon-based IP education program for kids. PaulT offered some interesting additional perspective on "Nancy and the Meerkats": This made me giggle. Meerkats have become rather popular in the UK, largely due to an entertaining series of commercials for the insurance comparison website Compare The Market (featuring a bunch of Russian meerkats discussing a website called Compare The Meerkat). The success has gone far beyond the commercials themselves, with all sorts of merchandising and other services wholly unrelated to the insurance product having sprung up. There's little reason to think that the choice of animal here is anything other than an attempt to reference something the kids would already be familiar with in positive light. In other words, they're essentially trying to reach the kiddies about the evils of infringement by appropriating the successful work of someone else, and leveraging the audience that someone else built by copying their product. "As TorrentFreak points out, the inclusion of a parody of Ed Sheeran is more than a bit eyebrow-raising, considering just how open to and grateful for piracy and filesharing Sheeran has been" Not really. That would assume intellectual honesty and a level of self-awareness that someone openly lying in this way would not possess. Certainly not people willing to copy someone else's product for a propaganda piece on how evil copying stuff is. In second place, we've got a message from SteveMB to the democrats who voted to extend the NSA's 702 surveillance program: Memo to Congressional Democrats: The predictions of a "Blue Wave" in November are not based on enduring physical phenomena like tides and eclipses. They are based on the likelihood that voters in November will continue to be pissed off at the Trumpanzee while not becoming likewise pissed off at you. If you insist on pissing away the latter, don't come running to me for an explanation of "what happened?!" For editor's choice on the insightful side, we're not letting the UK's anti-piracy cartoons off the hook after only one comment, so here's another response from PaulT, this time to an old and stupid analogy: "You wouldn't download a car, would you?" As is my usual answer to that particular piece of idiocy - if the car could be freely duplicated without any real cost and no loss of use for the owners of any other car on the road? Yes, I would. Just like many people started downloading their movies instead of being forced to sit through that unskippable crap on their legally purchased DVDs. Next, it's an anonymous musing on what happens when the kids turn out to be, y'know, not stupid: Imagine if one of those kids knew about the problem in the youtube system. Would they be the one to respond well to this message? "Teacher, if copyright is important and must be respected, why did *insert favorite youtuber* get his video taken down for something he made? Did they steal the copyright from him?" Either the teacher will have no answer; stumble for an answer in front of the kid; or they will be blunt about it. "They don't respect our rights, but they want to force us to respect theirs." Over on the funny side, our first place comment is an anonymous response to the latest media freakout about changes to the Facebook news feed: If you liked this article on the dangers of relying on social media, don't forget to like and subscribe by clicking on the bell. Also retweet us, share on Pintrest, post on Reddit, message your friends using snapchat, take selfies of you watching the videos, and give us a shoutout on your "XXX reacts to this article!" video you make on Youtube. Did I miss any "Teh Socials?" In second place, we've got an anonymous reply to one of our regular critics whining about an "anomaly" or something (I can't be bothered to figure out what he's on about): Congratulations you’ve found your one millionth anomaly! For editor's choice on the funny side, we've got a proposal from DannyB for the copyright troll facing a judge who questions the very existence of their "experts": Can't some of the experts submit depositions stating that the other experts actually exist? Then those experts can swear that the first group also exists. Finally, we've got an anonymous commenter on our post about Kodak's strange blockchain plans, going straight to the logical conclusion of anti-piracy obsession: Print screen is the work of the devil and needs to be criminalize at any cost. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2013, we were shook by the sad news of Aaron Swartz's death. Through the week, we looked at the actions of prosecutors and investigators and the fact that in the US "anyone interesting is a felon", and at all the other crimes that would have resulted in less jail time than Swartz was facing. But we also looked at what we should learn from him moving forward, about how to build up instead of tearing down, and how "content" can't be the end-game of knowledge, and we watched as researchers posted their work online for free in tribute. Ten Years Ago This week in 2008, while NBC Universal was arguing in favor of ISP filtering and copy protection tech, the recording industry was kinda-sorta getting over its obsession with DRM — and moving to other stupid ideas like digital watermarks and annoying anti-piracy voiceovers on review copies instead. The DMCA was being abused to go after bad reviews, the EFF was making the argument that "making available" is not infringement, and J.K. Rowling was trying to block a third-party Harry Potter guidebook — and amidst this we noted that it seems like most people don't actually know what copyright is for. Fifteen Years Ago This week in 2003, some people thought it looked like Hollywood's copyright control was loosening a little, but we weren't so optimistic. Indeed, that very week the Supreme Court upheld retroactive copyright extension in the Eldred ruling despite Lawrence Lessig's best efforts (though there was potentially some silver lining). The music and tech industries announced a rather worrying policy agreement that would see the latter stop fighting for user rights in exchange for the former dropping its calls for mandatory hardware-level DRM, though the agreement ended up being largely meaningless and, of course, was completely spurned by the MPAA. Meanwhile those movie studios were being strangled by their own IP obsession while trying to navigate the licensing thicket to get older movies online. Permalink | Comments | Email This Story

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While we cover much here in terms of content creators actually embracing what the internet can do for them rather than fighting what is essentially mere reality, some stories truly do stand out more than others. If you aren't familiar with the story of the film The Man From Earth, you should read up on it because it's plainly fascinating. The sci-fi film was directed by Richard Schenkman on a fairly barebones budget and set for the sort of release that these types of independent films tend to get. And then somebody put a screener DVD up on The Pirate Bay and the film became known in a way it never would have otherwise. “Originally, somebody got hold of a promotional screener DVD of ‘Jerome Bixby’s The Man from Earth’, ripped the file and posted the movie online before we knew what was even happening,” Man from Earth director Richard Schenkman informs TorrentFreak. “A week or two before the DVD’s ‘street date’, we jumped 11,000% on the IMDb ‘Moviemeter’ and we were shocked.” Suddenly there was very real public buzz and interest in this small, independent film. No advertising budget for the film had been planned. Marketing was non-existent. And, yet, all of that work was essentially done by an internet that truly appreciated the film for what it was. Still, this was an unauthorized placement of a creative work put up on torrent sites. It would be quite understandable if the producers of the film lashed out at these sites. Instead, Eric Wilkinson, a producer for the film, reached out to those sites to thank them. Schenkman is on the record stating that filesharing was key to the success of the film as a whole. And, because they were smart, those behind the film decided to try to monetize this fandom. “Once we realized what was going on, we asked people to make donations to our PayPal page if they saw the movie for free and liked it, because we had all worked for nothing for two years to bring it to the screen, and the only chance we had of surviving financially was to ask people to support us and the project,” Schenkman explains. “And, happily, many people around the world did donate, although of course only a tiny fraction of the millions and millions of people who downloaded pirated copies.” Meanwhile, the film went on to win awards and still enjoys a healthy audience on modern platforms such as Netflix. Interestingly, the filmmakers and producers don't appear to be thinking of the piracy experience as some kind of one-off, nor do they see how well it turned out for them as being a function of being initially unknown. Indeed, they plan on making even more use of torrent sites this go around, no longer leaving it to chance that someone else will upload the film and instead choosing to simply do so themselves. “It was going to get uploaded regardless of what we did or didn’t do, and we figured that as long as this was inevitable, we would do the uploading ourselves and explain why we were doing it,” Schenkman informs TF. “And, we would once again reach out to the filesharing community and remind them that while movies may be free to watch, they are not free to make, and we need their support.” The Pirate Bay upload is rife with information and notes on the movie, and even goes so far as to include helpful tips on how the movie can be even more widely shared to generate additional audiences. Schenkman goes on to call this something of an honor system, relying on the general goodness of people to compensate directly the makers of a film they have enjoyed for free. This is of course still counterintuitive, but we've made the argument for years that treating people well, and specifically treating piracy as an untapped market, can be a fantastic avenue for success. And this isn't the only experiment in treating moviegoers like human beings that the makers of the film are undertaking. Other partners include MovieSaints.com, where fans can pay to see the movie from January 19 but get a full refund if they don’t enjoy it. It’s also available on Vimeo (see below) but the version seen by pirates is slightly different, and for good reason, Schenkman says. “This version of the movie includes a greeting from me at the beginning, pointing out that we did indeed upload the movie ourselves, and asking people to visit manfromearth.com and make a donation if they can afford to, and if they enjoyed the film. “The version we posted is very high-resolution, although we are also sharing some smaller files for those folks who have a slow Internet connection where they live,” he explains. It's hard to imagine how they could have gotten this any more right than they have. Meanwhile, this undertaking is knocking down all kinds of strawmen that currently guard the MPAA offices. Bravo all around. Permalink | Comments | Email This Story

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Dashcams -- unlike body cameras -- have been around for years. So while it might be understandable an officer could forget his actions are being documented by his new-ish body camera-- say, when he heads into an alley to plant evidence -- it's difficult to draw the same conclusion when an officer apparently forgets his dashcam is recording his bogus traffic stop. In a criminal case resulting in suppressed evidence, Officer William Davis of the Dayton (OH) Police seems to have done exactly that. His bogus traffic stop resulted in the discovery of marijuana and a firearm, but none of that matters now. What was captured by his cruiser's dashcam undercut his assertions and sworn testimony. That has lead to an Ohio appeals court's memorable decision, in which it's declared the lower court was correct to rely on dashcam footage -- rather than the officer's testimony -- when the two narratives diverged. (via FourthAmendment.com) On a dark, rainy night Officer Davis and Officer Bryan Camden were speeding down a street when a vehicle pulled out in front of them. (Literally speeding: speed limit was 35 mph. Despite the adverse driving conditions, the cruiser was travelling at 43 mph.) Apparently miffed he had to ease back to the posted speed limit, Officer Davis (with Camden's help) began to compose an alternate reality in which a traffic violation had occurred. The problem for the state -- which hoped to retain the evidence obtained during the resulting traffic stop -- is the entire thing was caught on camera. This included the officers' retcon of events in progress. From the decision [PDF]: As the cruiser approached the intersection of Hoover and Elmhurst, Wilson’s vehicle (a 2015 Chevy Traverse SUV) turned right from Elmhurst onto Hoover in front of the cruiser. Officer Davis testified that only two or three car lengths separated the vehicles when Wilson pulled out and that he (Davis) “had to hit the [brakes] to avoid running into the rear of [Wilson’s] vehicle;” the trial court found this testimony to be not credible. Instead, after a review of the cruiser video, the trial court found that Wilson pulled onto Hoover “no less than 306 feet – or more than eighteen (18) car lengths – in front of the cruiser.” The trial court further stated that “[a] slamming on of the cruiser’s brakes would necessarily have precipitated a sudden dip of the cruiser’s nose – a dip completely absent on the video.” Rather, the trial court found that the cruiser “gently decelerated” from a speed of 43 miles per hour to the posted speed limit. No traffic violation occurred and yet the officers seemed determined to stop the vehicle that had mildly offended them with its entry into traffic. The officers remarked to each other about the out-of-state license plates on Wilson’s vehicle (a rental) and discussed towing Wilson’s vehicle. When the traffic light turned green, both vehicles moved forward to turn left onto North Gettysburg. At this juncture (over one and a half minutes after Wilson pulled onto Hoover), the officers engaged in the following exchange, which the trial court concluded was “staged”: Davis: “He pulled out there, pulled right in front of me!” Camden: “He pulled out in front of us.” Davis: “Had to hit the brakes to avoid * * *.” Camden: “Yeah, they had a – a failure to yield.” Courts usually look the other way when dealing with pretextual stops. That has scaled back a bit in the wake of the Rodriguez decision, but still remains in play if a court can find some way to believe an officer might have believed a traffic violation had occurred. These officers might have received the same deference if only their cruiser's camera hadn't made it crystal clear the violation was completely concocted by two officers looking for a reason to pull someone over. A stop and a search ensued, resulting in citations for failure to yield and marijuana possession, as well as an arrest for improper handling of a firearm in a vehicle. Officer Davis claimed this was a by-the-book search and arrest. But to do so, he had to continue misrepresenting the events while under oath. Davis testified that he provided Miranda warnings to Wilson and that Wilson answered a few questions and then requested an attorney. For reasons that Davis could not explain at the suppression hearing, the Miranda warnings and statements by Wilson following those warnings were not recorded on the cruiser video. The appeals court then quotes the lower court, stating that if any traffic violation occurred here, it was committed by the police officers, rather than the person they pulled over. [T]he Court finds as a matter of fact and law that Defendant did not fail to yield to the cruiser because the cruiser was not proceeding in a lawful manner. Rather, the cruiser was itself speeding on a dark, rainy night at low visibility further compromised by road glare. By proceeding in such a reckless manner – and in violation of both state and local law – Ofc. Davis forfeited the preferential status afforded a lawful driver under the right-of-way statute. With no good faith in evidence anywhere, the good faith exception is denied. The appeals court also dismisses the state's claim the lower court overstepped its bounds by doing its own calculations on the distance between the vehicles involved. Nor did the trial court err on its finding there was no articulable suspicion a moving violation had occurred, thus no reason for the officers to perform a stop. On this record and with deference to the trial court’s factual findings, we cannot find error in the trial court’s legal conclusion that the officers lacked a reasonable suspicion of criminal activity, namely a violation of R.C. 4511.43(A), to justify the traffic stop. The trial court specifically found that the officers were exceeding the speed limit when Wilson turned onto Hoover Avenue and that the cruiser merely “gently decelerated” to the posted speed limit after Wilson turned onto the road; there was adequate distance (regardless of the specific number of feet or car lengths) between the cruiser and Wilson. Given the trial court’s findings, which are substantially supported by the record, the officers had no reasonable suspicion that Wilson’s actions created an “immediate hazard” and that he failed to yield when he turned onto Hoover. In the absence of a reasonable suspicion of criminal activity, the trial court did not err in suppressing any evidence found as a result of the unlawful stop. With the evidence gone, the charges should soon be dismissed. This will negate two felonies and a misdemeanor, thanks to an officer who apparently forgot his dashcam was on. There's nothing quite like being burnt by your own recording. The easiest fix -- but least likely to occur -- is to perform your public servant duties in accordance to the law and with an eye on respecting the rights of those you serve. Unfortunately, this seems to be a last resort -- something only to be done after tampering with recordings or routine "failure" to active recording devices has run its course. 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For many, many years we've talked about how people were wrong to say that the internet "cut out middlemen" because there are still plenty of middlemen around. Instead, what was important was that the type of middlemen were changing. Specifically, we were moving from an age of gatekeepers to an age of enablers. And the difference here is profound. Gatekeepers keep out most people who want to use their platforms. Think: record labels or movie studios. Most people who wanted to become musicians just a couple of decades ago were not able to. Record labels would not sign them, and without a recording deal, your chance of making any money was just about nil. A few people were signed, a very few of those that signed would make lots of money, the rest would make a little money, and everyone who didn't sign would make basically nothing. The "curve" of how much money people made trying to become musicians was not very smooth. You had a few at the top end, and a giant cliff down to basically zero if you couldn't get past the gatekeeper. But the internet changed that in a massive way. Anyone could start using the various internet platforms to release their content, to build an audience, and to make some money. There remain complaints from some that the amount most users make isn't very much, but that ignores that under the previous gatekeeper system, that amount was almost certainly zero for the vast majority of people who wished to make money from their creative endeavors. With various internet services -- Kickstarter, Patreon, Spotify, YouTube, etc. -- artists could at least make more than zero. There has been some fear that yesterday's enablers would turn into tomorrow's gatekeepers. Unfortunately, one of the most disturbing aspects of what's happening with the internet these days is that more and more people seem to be pressuring these enabling services to become gatekeepers and to lock out smaller creators, out of this new fear that some people shouldn't be allowed to use these platforms to make any money at all. Case in point: YouTube has recently announced new rules around creator monetization, which basically say you need to be pretty popular before you can become a partner who can monetize your videos. After careful consideration and extended conversations with advertisers and creators, we’re making big changes to the process that determines which channels can run ads on YouTube. Previously, channels had to reach 10,000 total views to be eligible for the YouTube Partner Program (YPP). It’s been clear over the last few months that we need the right requirements and better signals to identify the channels that have earned the right to run ads. Instead of basing acceptance purely on views, we want to take channel size, audience engagement, and creator behavior into consideration to determine eligibility for ads. That’s why starting today, new channels will need to have 1,000 subscribers and 4,000 hours of watch time within the past 12 months to be eligible for ads. We will begin enforcing these new requirements for existing channels in YPP beginning February 20th, 2018. The company flat out admits that this is to stop those who somehow don't deserve to make money from getting paid, and also to appease advertisers: There’s no denying 2017 was a difficult year, with several issues affecting our community and our advertising partners. We are passionate about protecting our users, advertisers and creators and making sure YouTube is not a place that can be co-opted by bad actors. While we took several steps last year to protect advertisers from inappropriate content, we know we need to do more to ensure that their ads run alongside content that reflects their values. As we mentioned in December, we needed a fresh approach to advertising on YouTube. That "December" link was a YouTube post responding to the widespread controversy over YouTube star Logan Paul's immature and disrespectful videos in Japan and in particular, showing (and basically laughing at) the body of someone who had committed suicide in Aokigahara. And, indeed, many see these new changes to YouTube monetization as a direct response to the Logan Paul debacle -- even though these rules wouldn't have made a difference for Paul. Indeed, Paul's immature antics were a large part of what made him a YouTube star along with his brother (who some argue is even more immature -- and perhaps even more popular). So, really, these changes seem to be an attempt to appease advertisers rather than YouTubers (who don't seem very happy about this). But, in doing so, YouTube takes a pretty big step from that enabler category into the gatekeeper cateogry. It's not all the way to the extreme of the record labels, of course. There are clear, stated, quantifiable metrics here. But it does move that "cliff" in the monetization scheme, such that those who are just starting out, or who just want to make a few extra dollars, won't be doing so via YouTube. YouTube, obviously, is free to make that choice. It needs to appease increasingly angry advertisers who don't want their ads showing up in "controversial" places. So that's understandable. But, it's also... a bit sad. The power and excitement many of us felt for what the internet enabled was the fact that it allowed people to make use of these platforms to create, distribute, promote, communicate and monetize without any real gatekeepers. And that's changing. Permalink | Comments | Email This Story

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In the past, I've been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I'm pretty close to swearing off Southwest forever. I can't support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares -- which could be kind of useful, since Southwest doesn't share its shares with popular flight info aggregators like Kayak and Expedia. It is somewhat questionable whether or not Southwest actually has a legal right to block that -- pricing info is not covered by copyright -- but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation. Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey's clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $3 fee if it could save you $10 or more. The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement. It has come to Southwest's attention that you are using Southwest's proprietary and trademarked names and logos in connection with your business. This is misappropriation of Southwest property, an infringement upon Southwest's proprietary rights, and is confusing and misleading to Southwest's customers. Almost all of that seems to be complete bullshit. While it is true that SWMonkey was using Southwest's name, it was doing so to correctly identify that its service helped you save money when flying Southwest. That's known as nominative fair use (using someone's trademarks to correctly identify them). The idea that it was "confusing and misleading" is pure hogwash. Since the entire point of the site was to help you save money on Southwest, it's ludicrous to suggest that anyone would be confused into believing that the site was run by, or even blessed by, Southwest. At first, SWMonkey put up a perhaps ill-advised blog post (prior to having a lawyer review it) insisting they weren't going to be intimidated and spouting some slightly confused legal theories. That resulted in more legal threats and eventually the decision to stop operating the service. In shutting off the service, they noted that they had made a grand total of $45 in the few weeks that the service operated -- meaning that a grand total of 15 people had successfully used the service. This was bad enough, and you would think that Southwest's lawyers could be happy that the thousands of dollars in legal fees they had spent in angrily going after this cool project and had stopped a couple of guys from making any more than their $45. But, no. Southwest sent an even angrier cease and desist after the site had stopped offering its service. Now the complaint was that even though SWMonkey was no longer working, it had dared to leave the non-working site up. I'm not kidding. Despite a series of correspondence over the past week, Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here. Part of the anger appears to be that, in closing the site, SWMonkey also linked to a tool on Github that would allow those with the technical knowhow to monitor changes in Southwest prices. The tool does not appear to have been created by SWMonkey. And, notably, at some point in the past few weeks, that tool has disappeared from Github. And, no matter what, all SWMonkey did was link to it. Not only that, but the bumptious legal threat includes vague claims of possible criminal violations for leaving the website up. That is pretty ridiculous, and the guys behind SWMonkey said so: They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal. SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest's only goal here is to limit our freedom of speech, because at this point, that's literally all we have. After reading and rereading their letter, I can't find a single allegation with any basis. "Obvious legal risks"!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service. SWMonkey's lawyer, Charles Roberts, responded to Southwest explaining why their takedown demands were bullshit: At the top of page two, you indicate that a "revised form" of the website is being maintained which "raises additional issues." Without offering a clue about what you regard as those additional issues, you mention that Southwest, in prior litigation, has pursued claims for violation of Texas Criminal statutes, trespass, civil conspiracy, and unjust enrichment. As an aside, I could find no private right of action for Texas Penal Code §33.02; indeed, quite the contrary appears to be the case. See Hodson v. Moore, Civil Action No. 2:15-CV-453 (S.D. Tex. Sep. 23, 2016) ("However, the Texas Penal Code does not create a private cause of action. Aguilar v. Chastain, 923 S.W.2d 740, 745.... Further, I note that it is a violation of the Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. See Rule 4.04(b)(1). It remains unclear whether the causes of action you reference at the top of page two of your letter refer to the functional website swmonkey.com, or the currently disabled version of the website, or are made merely to instill fear. Please clarify. You then turn to Southwest's trademark claims. Again, it is unclear whether you are referencing the former version of the website or the disabled version. Regardless, the website swmonkey.com does not now, nor has it ever, violated Southwest's trademark rights. Any use of the word "Southwest" on the swmonkey.com website qualifies as nominative fair use in that it merely refers to your client. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir. 1998). Further, because of the nature of the service offered in the prior version of swmonkey.com, it would be virtually impossible for one to assume that the services were being offered by, sponsored by, or affiliated with your client. As a further precaution, a disclaimer appeared (and continues to appear) at the bottom of the website placing users on notice that "SWMonkey is not affiliated with Southwest Airlines or any of its partners in any way." Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the "entire website" be taken down. It would appear that Southwest is merely trying to use the legal system to curtail Roundpipe's free speech rights. The current swmonkey.com website is even further removed from trademark infringement than the Southwest virtual airline website at swavirtual.com which I previously brought to your attention. Given that Southwest has acquiesced in the existence of swavirtual.com for the past nine years, I do think a court would be sympathetic to your arguments that swmonkey.com is creating consumer infringement. Finally, you suggest that Southwest will take formal action for Roundpipe's prior alleged violation of Southwest's Terms and Conditions (based on conduct which has ceased) unless Roundpipe complies with all of Southwest's demands. Given that Roundpipe is no longer in violation with Southwest's Terms and Conditions, the demands in your letter seem to be little more than legal extortion. Soon after that, The Outline published a pretty brutal takedown of Southwest's obnoxious bullying, entitled How Southwest Airlines kills startups that monitor its prices. And, with that... one hoped it was over. But nope. The lawyers and bullies at Southwest decided to move ahead and sue SWMonkey and its two founders earlier this month. The actual complaint is totally insane. But before we get to just how terrible and ridiculous the complaint is, let's just remind people of this: Southwest Airlines decided to sue a couple of guys who had ALREADY SHUT DOWN THEIR SERVICE which helped more people enjoy Southwest Airlines, and from which they'd only made $45, because they left the site up explaining why they shut down the service. That's fucked up. And that's why I have no interest in flying Southwest Airlines ever again. And I can assure you I spend a lot more than $45 on Southwest. But let's get into the actual lawsuit. Claim one is breach of contract. What contract? The complaint argues that by merely accessing Southwest's site, they have formed a "contract" with Southwest on the basis of Southwest's terms of service. This is a very twisted (and incorrect) view of contract theory. While there are some (unfortunately) mixed rulings in the courts regarding "clickthrough" or "browserwrap" contracts, this is a particularly ridiculous argument, especially considering that they weren't even buying tickets on Southwest's website -- just gathering the data. Southwest Airlines has every right to use technological means to try to block SWMonkey, but to sue them for "breach of contract"? Come on. Even worse, Southwest falsely claims that it "has been and will continue to be damaged as the result of Defendant's breach of the User Agreement." That's complete nonsense. The guys shut down the service. There is no continuing damage at all -- other than the damage to Southwest's reputation for filing this bullshit lawsuit. From here, we'll jump to claim five before going back to the others, because it's similar to claim one. This is an infamous CFAA claim. For many, many, many years we've written about how the CFAA -- a law designed to be used against computer hacking -- has been twisted and abused to go after people for merely violating a terms of service. Thankfully, back in 2012, courts ruled that merely violating a terms of service does not automatically make it a CFAA violation. Similarly, just last year a court ruled that scraping of publicly accessible data is also not a CFAA violation. Those ruling are in different circuits, so not binding in Texas where Southwest filed, but still. The one case that Southwest has that does kinda, maybe support its CFAA claim is the awful decision from 2016 in the Facebook v. Power case, where the court said that it can be a CFAA violation if you keep scraping after a cease and desist letter has been sent. Again, we think that's an incorrect reading of the law -- but even if it is how the courts are now reading the CFAA it should not apply here because SWMonkey STOPPED SCRAPING after receiving the cease and desist. At worst, Southwest could argue that they kept scraping for another week while they reviewed things with a lawyer, before deciding to stop offering the service. But after a legal review, they shut it down. But, that's not what you'd get from reading the bullshit claims from Southwest: Upon information and belief, Defendants have intentionally accessed and continues to access Southwest’s computers without authorization or in excess of authorized access, and through interstate communication, obtained information from Southwest’s computers in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C). Defendants’ unauthorized access of a protected computer has caused damage and is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of at least $5,000 during a one-year period. Defendants’ conduct has harmed and will continue to harm Southwest. As a result, Southwest has suffered and will continue to suffer losses and irreparable injury, in amounts not yet ascertained. Southwest’s remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant. What a load of crap. Remember, the service made all of $45 and then was turned off. The only thing left now is the website. To claim that it's causing all this damage and "will continue to harm Southwest" is complete and utter bullshit. Southwest spent nearly 10x more for just the filing fee alone on this lawsuit than SWMonkey made in the two or so weeks that its site operated. A bunch of the claims are basically variations on trademark infringement. Again, as noted above, SWMonkey's use of the term "Southwest" was clearly nominative fair use. Incredibly, Southwest feels the need to highlight a whole bunch of other trademarks it holds, even though SWMonkey doesn't make use of any of them. This includes things like "Southwest Cargo," "SWABIZ," and "SWACARGO.COM." The whole point of this seems to be to flood the judge in the case with nonsense about "we own trademarks!" even if those trademarks are not used at all by SWMonkey. There's also a claim of "unfair competition" which... also appears to be total nonsense. The site was not in competition with Southwest. It was designed to make Southwest's ticketing a better experience for fliers. And, this may be my favorite line in the lawsuit: In addition, Southwest has suffered and will continue to suffer losses and irreparable injury to its business reputation and goodwill. WHAT? First off, the site itself created no harm to Southwest's business reputation or goodwill. Instead, it actually reminded people that Southwest has a pretty awesome policy of letting fliers exchange tickets at no extra cost. That's a kind of cool business model choice that Southwest Airlines made. If it doesn't like people actually using that offer, then it should stop offering it. And, more to the point: what is harming Southwest's business reputation and goodwill more? A site that helped fliers get cheaper tickets by properly using Southwest's own policies or Southwest filing a bullshit lawsuit with a ton of bogus claims against a small website that had already ceased offering the service Southwest objected to? I've already stated that this lawsuit has convinced me to stop flying Southwest. The SWMonkey site probably would have made me fly Southwest more. Count six then involves "violations of Texas Penal Code §33.02" though, tellingly, refuses to detail what those violations are. 33.02 appears to be more or less a state version of the CFAA. But only the criminal parts. Perhaps I'm missing something in reading the code, but there does not (at first glance) appear to be a civil component. And yet, Southwest still includes it in the lawsuit -- despite the warning from SWMonkey's lawyer that it is a violation of Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. In short, almost everything about this lawsuit is complete bullshit and it makes Southwest -- whose entire reputation is built on its consumer friendly policies -- look like complete and utter assholes. There is no way around this. Southwest had already bullied these two guys into shutting down what appeared to be a useful service that helped Southwest customers make use of Southwest's own stated policies. And then, after the service was shut down, still filed a completely bullshit lawsuit, with a bunch of bogus claims, falsely stating that the service was still running, despite knowing that was false. Southwest, in the lawsuit, says that SWMonkey continues to harm its reputation. That is only true so far as the fact that Southwest decided to file this totally bullshit lawsuit over the no longer working SWMonkey website. Southwest and its lawyers should feel ashamed -- and anyone who flies Southwest ought to consider whether this is the kind of company they want to give money to. Permalink | Comments | Email This Story

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While we were just discussing Judge Zilly in California smacking around one of the front-attorneys for a shell-company of the infamous Guardaley company (which pretends to be able to detect copyright infringement from Germany) another case was working its way through the courts. Judge Zilly focused his efforts on just how little evidence there is for the actual existence of many of the shell and parent companies that show up with Guardaley evidence, as well as whether or not Guardaley's "experts" even actually "exist." This other case in Oregon seems to have pointed out that yet another Guardaley front company can't even get the basics of standing in copyright law right and may well have tried to fool the court into thinking it had standing when it didn't. This case concerns a company called Fathers & Daughters Nevada, LLC, which sued Lingfu Zhang for pirating the film Fathers & Daughters using bittorrent technology. The problem that resulted in Judge Michael Simon issuing a summary judgement dismissing the case with prejudice is that F&D Nevada doesn't actually have the copyrights in question, having signed it all away to a third party. Plaintiff was the original copyright claimant for the movie, but it has transferred all of its exclusive rights under the Copyright Act to other entities not party to this case. Plaintiff’s agreements secure to it no more than the right to sue, which is not one of the exclusive rights under the Copyright Act, and which has repeatedly been found inadequate to confer standing in this Circuit. Since Plaintiff fails the first prong of a copyright claim under Feist, this action should be dismissed with prejudice. Plaintiff is not the owner of any relevant exclusive rights under 17 U.S.C. § 106, and therefore lacks standing to sue under Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013). Now, I never went to law school or passed a bar exam, so I had to reach out to a couple of my lawyer friends to be sure, but it turns out you totally can't sue over copyrights that you don't actually have. Isn't that crazy? It would seem to me that any real big boy lawyer representing a seemingly shady almost-company backed by a German anti-piracy/extortion outfit would, like, totally check on that sort of thing before agreeing to represent them all in such a hilariously ill-conceived lawsuit. I mean, it's not like the Righthaven debacle that the judge here relied on wasn't all over the news when it happened. Anyone lawyer involved in copyright trolling should at least know about what happened with Righthaven, since it wasn't that long ago that that firm also tried to sue over copyrights it didn't actually hold. But, then, not being very good at their jobs is par for the course for these Guardaley-backed non-entities. So is getting really shady in the courtroom, of course. So, when the issue of standing was raised to F&D, it should not surprise anyone that the company simply tried to fudge the evidence, and did about as good a job at it as a six year old trying to cover up eating all of the family's chocolate brownies. Well after this case had been filed, and after Defendant called the standing defect to Plaintiff’s attention, Plaintiff produced an undated agreement among itself, EXCLUSIVE SALES AGENT and DISTRIBUTOR 2 entitled “Anti-Piracy And Rights Enforcement Reservation of Rights Addendum.” (Plaintiff production FND-16-01443-01399, Exhibit G) Upon information and belief, the Undated Addendum was created after the present action was originally filed, and therefore cannot cure the standing defect. See Righthaven, 716 F.3d at 1171-72 (“permitting standing based on a property interest acquired after filing is not one of” the exceptions to the general principle that “jurisdiction is based on facts that exist at the time of filing.”). In any event, the Undated Addendum does nothing to convey, reconvey, or unconvey any exclusive rights in the copyright to the movie in suit. Its null effect on Plaintiff’s standing to sue is discussed in further detail below. I've read this part of the judgement several times and I've concluded it totally helps if you mentally picture the lawyer for F&D presenting the court with this undated addendum with chocolate brownie all over his face, swearing he didn't just make all of this up on the spot. Either that, or I'm just hungry at the moment. Regardless, what's clear is that these shell games that Guardaley and its attending entities play has nothing to do with justice, has very little to do with actually valid law, and takes on every appearance of an extortion racket rather than any sort of legitimate rights enforcement. What chills the bones somewhat is the thought that these tactics must work some of the time in the courtroom or else they wouldn't be tried over and over again. Hopefully judges like Zilly and Simon will really sink the justice system's teeth into these people and refuse to let go. Permalink | Comments | Email This Story

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Back in November, we wrote about a fairly crazy case in which Playboy Enterprises was suing the blog Boing Boing for copyright infringement, over a post by Xeni Jardin, linking to a collection of all Playboy centerfold images on Imgur (and a video version on YouTube). As we wrote in our post, this seemed like a very strange hill for Playboy to die on, given that Boing Boing clearly did not post the images, but merely linked to them, meaning that it was pretty clearly not infringement. There were some really strange arguments in the complaint, and the initial reporting on it that we saw was really bad -- falsely claiming the lawsuit said that Boing Boing "stole every centerfold ever." But, of course, there was no stealing at all. Just linking. Boing Boing has now responded to the lawsuit, with help from EFF and top notch lawyers Mark Lemley and Joe Gratz from the law firm of Durie Tangri. The motion to dismiss is pretty thorough and well argued (no surprise), explaining why the case should be tossed out, because even if everything Playboy argued is true, Boing Boing has not committed any copyright infringement at all in merely linking. The MTD doesn't pull any punches: This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web—an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here. The filing describes how nothing Boing Boing did involved direct or secondary infringement, and even if it was, it's clearly protected by fair use: The facts pleaded in Playboy’s First Amended Complaint (“FAC”) do not state a claim for either direct or contributory copyright infringement. With respect to direct infringement, Playboy alleges that third parties—not Boing Boing—posted the collection at issue, and that Boing Boing made reference to that collection with a hyperlink. As for secondary liability, Playboy does not allege facts that could show that Boing Boing induced or materially contributed to direct infringement by any third party. Playboy’s claim fails for these reasons alone. What is more, Playboy’s own allegations show that further amendment would be futile. Boing Boing’s post is a noninfringing fair use, made for the favored and transformative purposes of news reporting, criticism, and commentary so that the reader can, in the words of the post in question, “see how our standards of hotness, and the art of commercial erotic photography, have changed over time.” Amusingly, the Playboy complaint is so deficient that the Boing Boing motion has to try to make out what a better argument for Playboy might be... and then explain why even that would be wrong: One possible theory on which Plaintiff may be proceeding is that the direct infringers in question are the individual or individuals who uploaded the photos in question to Imgur and YouTube. Even assuming arguendo that those uploads constituted direct infringement, that would not support a claim for contributory infringement against Boing Boing, because—as the FAC alleges—Boing Boing posted only after that third party completed the uploading, and therefore completed the alleged infringement. As discussed below, that allegation precludes contributory liability on either a materialcontribution theory or an inducement theory. The filing does note that Boing Boing did post one image with its post... but also points out that Playboy doesn't claim the copyright on that image because it's in the public domain: The Boing Boing blog post itself includes, as a header image, a partial reproduction of the centerfold of Miss February 1954... The FAC does not make any allegations with respect to that image, and Playboy does not include Miss February 1954 in the list of images to which it claims ownership. ECF No. 15-1. And rightly so: the February 1954 issue of Playboy entered the public domain in 1981, when Playboy did not renew its copyright registration. But on the meat of the claim, there's clearly no infringement in sending people off to view infringing material: It is well-established that controlling the viewing of copyrighted material is not within the exclusive rights of the copyright holder. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169; see also Flava Works, Inc. v. Gunter, 689 F.3d 754, 757-58 (7th Cir. 2012). Indeed, courts have been rejecting secondary liability claims founded on the alleged viewing of linked-to material for almost twenty years. See Bernstein v. JC Penney, Inc., No. 98-2958 R EX, 1998 WL 906644, at *1 (C.D. Cal. Sept. 29, 1998). To the extent users’ computers created temporary copies while browsing, the creation of cached or local copies during Internet browsing is a non-infringing fair use, as a matter of law. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1169-70. Internet users could only commit an act of direct copyright infringement if, once they have visited or viewed the linked-to content, they take the further step of downloading a copy of the material. See Flava Works, Inc., 689 F.3d at 757-58 (“unless those visitors copy the videos they are viewing on the infringers’ websites, [the defendant] isn’t increasing the amount of infringement.”). The FAC does not allege that any reader did so. There's much more in the motion to dismiss and I highly recommend reading it. Of course, all of this should make you wonder -- as I did in our original post on this lawsuit, what the hell Playboy is thinking. It's a pretty bad look all around to be filing such a flimsy copyright complaint against a blog such as Boing Boing. While this does appear to be a SLAPP style lawsuit, anti-SLAPP claims are not available on federal claims, such as copyright. However, the Copyright Act does allow for awarding legal fees on bad copyright claims, and the Supreme Court has been supportive of such fee shifting. But this brings us back to what the hell Playboy thought in bringing this lawsuit. At the very least, it raises questions about the lawyers Playboy has hired. Perhaps not surprisingly, this is not the first time the lawyer who filed the complaint, Stephen Doniger, has appeared on our pages. A few years back, we noted that Doniger appeared to be copyright trolling, filing a bunch of infringement claims over clothing that had horizontal stripes (NOT KIDDING!). Indeed, Doniger has been dubbed a copyright troll of the fashion industry, and his firm is listed as being near the top of the "most copyright cases filed" list as of last year. But it appears they've been branching out. Soon after filing the Boing Boing lawsuit for Playboy, Doniger sued Disney and others on behalf of Jaime Ciero, claiming that the hit song "Let it Go" from the movie Frozen infringed on Ciero's song, which seems to be building on the whole "Blurred Lines" line of cases where any song that has some sort of similarity to another song is now subject to infringement claims. And Donger's firm seems to be finding a lot of these "similarities" in songs. He went after Demi Lovato for one of her songs sounding similar to a Sleigh Bells song (that lawsuit settled, but Lovato is also named as a defendant in that Let It Go lawsuit -- so I'm guessing she's not a fan of Doniger). Doniger is also the lawyer behind a recent lawsuit against Cindi Lauper over a song from her big Broadway musical "Kinky Boots." Doniger's partner in the firm is Scott Burroughs, who writes a regular column for our friends at Above the Law. I'm sure it's a complete coincidence that in the days and weeks after Doniger and Burroughs sued Boing Boing for linking, that Burroughs suddenly posted a series of silly pieces claiming that framing and inline-linking or embedding are obvious infringements (which... many courts would actually disagree with) and using one of those stories to slam EFF for daring to defend linking as non-infringing (a bit of fore-shadowing, perhaps?). He even argued that such deep linking is "ground zero in the latest battle of Big Tech versus the arts community." Either way, beyond copyright trolling over stripes on clothes and marginally similar songs, it appears that Doniger and Burroughs sense a new opportunity in suing for infringement over linking. Hopefully the court (with EFF's help) shuts them down on this one quickly. Permalink | Comments | Email This Story

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By now Apple's app-store approval process is legendary for being completely untethered from anything even vaguely resembling consistency, accountability, or transparency. App makers can often find their passion projects banned for no coherent reason whatsoever, or because the app in question competes with Apple's own offerings. The process of complaining is traditionally semi-Sisyphean, with Apple often refusing to adequately explain their decisions. And it's inconsistent; banned apps and games can often reappear with no concrete explanation as well. The latest case in point: David Coffnes, a researcher at Northeastern University, recently built an app named Wehe to help broadband users test their connections for possible throttling or net neutrality violations. But the app in question was banned by Apple for no coherent reason, the company simply telling Coffnes that his app "has no direct benefits to the user," and contained "objectionable content," neither of which is true: "An Apple App Store reviewer told Choffnes that “your app has no direct benefits to the user,” according to screenshots reviewed by Motherboard. According to Apple’s reviewer, the app contained “Objectionable Content,” a catch-all for apps that Apple doesn’t want to let into its App Store. Apple is blocking the app and no one is quite sure why, including Choffnes; neither Apple nor Verizon responded to requests for comment for this article." Coffnes, who is paid by ISPs like Verizon to test their own network video performance, is collecting data on how ISPs manipulate data to manage video on their networks, a practice that's increasingly common as ISPs increasingly test the boundaries of net neutrality (or, as is now the case, the lack thereof) and good taste. Coffnes' app simply connects to and analyzes data throughput from seven apps: YouTube, Amazon, NBCSports, Netflix, Skype, Spotify, and Vimeo. It then reports if the ISP you're using is somehow manipulating or throttling back network speeds as an effort to provide some layer of transparency to the end user. Neither Apple nor Verizon were willing to comment about the apparently arbitrary ban, raising obvious questions about transparency. These sort of tools are, it should go without saying, going to be important as the government increasingly makes it clear it has zero real intention of protecting consumers from lumbering, predatory telecom duopolies eager to abuse a lack of sector competition for additional financial gain. With government now sitting on its hands in fealty to telecom providers, the onus is on the consumer to do due diligence regarding their own connections. According to FCC boss Ajit Pai, public shame alone is supposed to help hold ISPs accountable in the wake of federal apathy to the net neutrality violations caused by a lack of broadband competition: "Most attempts by ISPs to block or throttle content will likely be met with a fierce consumer backlash … in the event that any stakeholder [ISP] were inclined to deviate from this consensus against blocking and throttling, we fully expect that consumer expectations, market incentives, and the deterrent threat of enforcement actions will constrain such practices." Right. But it's a little hard to do that when you lack the choice of an alternative provider, or the ISPs that are available aren't clear about their network management practices, something net neutrality rules required. There's certainly plenty of legitimate network management practices, but just as often network management can be used as an anti-competitive weapon. Determining which is true requires the help of researchers like Coffnes, and Apple's adding another layer of non-transparency to the equation by banning useful consumer tools and apps for (once again) no coherent reason. Update: As we've seen in previous instances of Apple's bizarre app store approval process, the company has backed off the blockade, but has failed to explain what resulted in the app being banned in the first place: "The conversation was very pleasant, but did not provide any insight into the review process [that] led the app to be rejected in the first place," Choffnes told us in an email." Permalink | Comments | Email This Story

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Several years ago, a music industry transplant into Parliament, Mike Weatherley, made a glorious push to get the government to invade primary schools in the country to teach them that piracy is the worst thing in the world and intellectual property laws are super cool. Children as young as seven years old would be subjected to "educational information" provided by the government on the "proper" use of the internet. This was not the first attempt at pushing copyright propaganda on kids. In fact, we've reported on many of these, going all the way back to 2003 -- and many of the programs have been mockable, including the infamous Captain Copyright. You would think that maybe those producing this propaganda would realize that it basically always is a flop as kids are smart enough to see through it -- and that their attempts to be cool and hip tend to come off as insane. But... the UK has pushed forward with this plan, and you have no fucking idea how insane it actually is. Part of the education features a fictitious cartoon band called Nancy and the Meerkats. With help from their manager, they learn key copyright insights and this week several new videos were published, BBC points out. The videos try to explain concepts including copyright, trademarks, and how people can protect the things they’ve created. Interestingly, the videos themselves use names of existing musicians, with puns such as Ed Shealing, Justin Beaver, and the evil Kitty Perry. Even Nancy and the Meerkats appears to be a play on the classic 1970s cartoon series Josie and the Pussycats, featuring a pop band of the same name. As TorrentFreak points out, the inclusion of a parody of Ed Sheeran is more than a bit eyebrow-raising, considering just how open to and grateful for piracy and filesharing Sheeran has been. For the government to hijack his likeness for a parody that takes the opposite view is, at the very least, uncouth. If it seems odd that a series of videos extolling the virtues of intellectual property rights makes such liberal use of parody to play on well-known entertainment stars, well, just take a look at the government's video trying to explain parody and fair use and picture a bunch of first-through-fifth graders taking this all in. Beyond how vomit-inducing the video is generally, one wonders just how closely the message in the video overlaps with actual UK law. While UK law is more stringent on free speech when it comes to so-called "insulting" speech, it seems far too simple an explanation to state that any parody that is found insulting would be illegal. Let's say, for instance, that Ed Sheeran considers this parody depiction of him, complete with an anti-piracy message that comes off as the opposite of his own, is insulting. Is the UK's IPO really saying that its own video suddenly becomes illegal? Now, while the videos generally tread upon long-debunked ground... After the Meerkats found out that people were downloading their tracks from pirate sites and became outraged, their manager Big Joe explained that file-sharing is just the same as stealing a CD from a physical store. “In a way, all those people who downloaded free copies are doing the same thing as walking out of the shop with a CD and forgetting to go the till,” he says. “What these sites are doing is sometimes called piracy. It not only affects music but also videos, books, and movies.If someone owns the copyright to something, well, it is stealing. Simple as that,” Big Joe adds. ...there is also some almost hilarious over-statements on the importance of this messaging and intellectual property as a whole. For instance, were you aware that the reason it's so important to teach 7 year olds about copyright and trademark is because navigating intellectual property is a full-blown "life skill?" According to Catherine Davies of IPO’s education outreach department, knowledge about key intellectual property issues is a “life skill” nowadays. “In today’s digital environment, even very young people are IP consumers, accessing online digital content independently and regularly,” she tells the BBC. “A basic understanding of IP and a respect for others’ IP rights is therefore a key life skill.” It's enough to make you wonder if this is all just another example of a parody of those that push intellectual property rights education on school-aged children -- so ham-fisted is the execution and so wildly overstated is its importance. Ultimately, we can likely rest easy, because children even as young as seven are far too smart and resourceful, not to mention critical in terms of entertainment, as to consider these videos to be anything other than the obvious propaganda that they are. One nearly hopes that some of these children will create their own parodies and put them up on that dangerous internet thing they've been warned about, with hopefully as much mean-spirit as their little psyches can conjure. Permalink | Comments | Email This Story

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In the early part of 2017, we brought you the story of an Iowa State University student group pushing for marijuana reform in the state that was being targeted by the university for trademark infringement after the group used some school iconography on t-shirts it developed for its cause. The whole episode was fairly bonkers, with the school initially approving the students' use of the imagery, only to rescind that approval after Iowa House Republicans sent a letter to the school's leadership questioning the decision. That sort of infringement of speech by a school and, in the background, by state legislators that really should have known better, was always destined to result in legal proceedings, given the enormous First Amendment implications. Well, as we reported, that trial ran its course, including an appeal, and was decided in the favor of the student group. While all of that was settled last year, what we didn't know until recently is just how much taxpayer money would be paid out as a result of a public university and state legislators seeking, quite plainly, to infringe on perhaps the most sacred right this country enjoys. Now we have an answer to that question: at least $350,000. The State Appeal Board voted to pay $150,000 in damages to two leaders of the university chapter of the National Organization for the Reform of Marijuana Laws whose free-speech rights were violated by campus administrators. The board also approved a $193,000 payment to two law firms that represented the group for their efforts to defend against the university's unsuccessful appeals, and additional legal fees for their trial work in an amount to be decided by a judge. The costs stem from what federal judges found were the university's politically motivated, illegal attempts to ban T-shirt designs that featured the Iowa State mascot and a small cannabis leaf — and its yearslong, unsuccessful defense of those efforts in court. The payouts will come from the state's general budget. I will be severely disappointed in the state of Iowa if every House member that signed that letter to the school doesn't have campaign ads running against them highlighting the fact that this plainly unconstitutional action cost state taxpayers at least well over a quarter of a million dollars. Especially when you consider that the legal team for the student group practically begged the school to settle early on to avoid exactly these kinds of costs. And that $350k figure is almost certainly just a starting point and not what the ultimate payout from the state will be. "It is an unambiguous win for our clients and for the First Amendment and for an understanding that violating people's rights isn't free," said the plaintiffs' lead attorney, Robert Corn-Revere. "One reason we urge universities to settle early is to avoid these kinds of expenses." He said he expects to request a fee award that is "substantially more" for trial work than the $193,000 awarded for the appeals, based on the amount of time spent. The deal requires the state to increase the amount awarded by $15,000 to compensate lawyers for their time spent on the fee application. The costs do not include work by the taxpayer-funded Iowa Attorney General's office, which represented former ISU President Steven Leath and three other administrators who were found responsible for the constitutional violations. All of this because a school decided not to tell a bunch of meddling lawmakers to piss off and instead bowed to their unconstitutional requests. That this reliance on taxpayer money to resolve this mistake is on everyone's record will hopefully go some way to changes in job status for many of these people. Permalink | Comments | Email This Story

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As was widely expected after Tuesday's close vote on cloture, the Senate officially voted to renew (in a somewhat expanded way) Section 702 of the FISA Amendments Act by a vote of 65 to 34. That also means a few of those who voted against cloture switched over and voted for the program, including Senators Ted Cruz and Chuck Schumer. President Trump will almost certainly sign the bill shortly, despite confusing basically everyone last week by tweeting out complaints about the program, despite his White House vehemently supporting it. Trump's confusion isn't all that surprising. What is surprising is just how many people who have been complaining and warning about Trump made this possible. In the House, vocal Trump critics including Nancy Pelosi, Adam Schiff and Eric Swalwell were among those who voted for this bill which, again, gives the FBI the power to spy on Americans without warrants via the collection of content (not metadata) swept up by the NSA. While defenders of the program keep insisting the program cannot be used to "target" Americans, they leave out that a ridiculous amount of American content is swept up into this collection, which can then be sifted through without a warrant, including a huge amount of communications of Americans. Over on the Senate side, things were even more ridiculous. Senator Jeff Flake voted for cloture, helping to end (the already non-existing) debate on such surveillance, and blocking any amendments. And then, the very next morning, went on the Senate floor to slam the President, compare him to Stalin, and warn that our democracy may not survive. Again, this was mere hours after Senator Flake voted to give more surveillance powers to the President he was about to compare to Stalin. Or how about Dianne Feinstein? It may be no surprise that Feinstein voted to continue and expand surveillance -- she has a long history of doing exactly that. But just about an hour before voting for cloture, Feinstein herself introduced an amendment that would have required a warrant to search the corpus of data collected under 702. And then she voted to block that amendment from even being voted on. Let me repeat that, because it's just that insane: Feinstein introduced an amendment to the 702 renewal, that would have required a warrant to sniff through the data... and then voted against allowing that amendment to be heard and voted on. Within an hour or so. And, since cloture needed 60 votes and just squeezed through with those 60 votes... Feinstein could have changed the debate herself. But chose not to. Or how about Senator Claire McCaskill. She was the final vote for cloture and took over an hour after the vote was called to actually reach the floor. She was the actual deciding vote, as, if she voted against it, the cloture vote would have had only 59 yaes, and the debate would have continued, and amendments proposed. Trump has been loudly denouncing McCaskill for months as she's facing a tough reelection campaign. And her response was to deny any further debate or amendments and to vote to give Trump more surveillance powers. These are not the only ones. Many vocal critics of the President just handed him much greater power to warrantlessly spy on Americans -- something the President (in a confused way) complained about concerning what he believed (incorrectly) was illegal spying on his own campaign. Zack Whittaker at ZDnet has also compiled a list of elected officials who had put out earlier statements promising to reform surveillance... only to then vote for this program. It includes both Swalwell and Feinstein mentioned above, but many others as well. Over at Lawfare, a site that has long defended basically every aspect of the surveillance state, reliable surveillance defenders Jack Goldsmith and Susan Hennessey tried to defend the paradox of not trusting Trump, but giving him the ability to warrantlessly spy on Americans. The crux of it is basically... "we don't trust Trump, but there are good people in the intelligence and law enforcement communities and they'd never abuse these powers." More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance. Not surprisingly, Marcy Wheeler rips these claims to shreds in a response on her own blog, noting that beyond factual errors in the piece, it more or less ignores the FBI's role in all of this. Even if we grant the (incorrect) claim that the NSA doesn't abuse this data, that's not at all clear on the FBI side -- especially when the FBI refuses to provide any details at all: You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans. Furthermore, Wheeler notes that Hennessey and Goldsmith completely ignore how this gives Attorney General Jeff Sessions incredible unreviewable power to make use of this warrantless data for criminal prosecutions, hiding where he got the information from. But it’s the unreviewable authority for Jeff Sessions bit that is the real problem. We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump. This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat. This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way. And, now, it appears that (unless Fox News somehow intervenes again) the President will sign this bill. EFF has put out an open letter about how awful this is, and how it intends to fight this in court. But, this was a major missed opportunity, and what's most incredible and disappointing is how many people who complain about Trump's authoritarian tendencies were central to making it possible. Permalink | Comments | Email This Story

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Back in late 2013, we wrote about the insanity of the "logo" placed on a spy satellite by the National Reconnaissance Organization, which consisted -- literally -- of an octopus enveloping the globe, and the tag line "Nothing is Beyond Our Reach." Incredibly, the Director of National Intelligence tweeted out this image, just months after the Snowden revelations, and no one seemed to think the public might find it... creepy as fuck. Our good friends at Muckrock decided to dig in with some FOIA requests about all of this and wrote up the following amazing story about the aftermath of the fallout of that decision and posted an excellent story about it which, of all things, includes trying to translate quotes from "Talledega Nights" into Latin to avoid scrutiny. That article, by JPat Brown is reposted, with permission, below. Records released to William Pierce show that the fallout from the National Reconnaissance Office's infamous "world-eating octopus" logo was enough for the White House to threaten veto power over future logos on spy satellites. Despite this warning to steer clear of controversy, the designers for the NROL-76 logo tried their best to sneak in a "Talladega Nights" reference - even resorting to Latin to get around copyright. In early May of 2016, someone within the NRO asked if the mission patch for the NROL-76 mission had been approved. As launch wasn't due for a year, the question was oddly premature, and someone on the team voiced their curiosity. A later email from August 2016 explains the concern - following the embarrassment over the NRO-39's octopus logo (which records released to Runa Sandvik show was an engineering in-joke that backfired to a comical degree), the NRO wasn't even sure if it could approve its own logos without the White House's final say. As far as they were told, the NRO could still have "ultimate authority" over logos … so long as they avoided "menacing designs." Which means "yes" to fluffy animals … and "no" to creepy cephalopods and whatever's redacted here. Fortunately, the theme for this design was "Lewis and Clark," which the NRO thought was fairly family-friendly, especially when compared to, say, a dragon with American flag wings. But we'll let you be the judge. If that slogan strikes you as oddly familiar, then congratulations on your excellent cinematic tastes; "If you ain't first, you're last" is indeed the catch-phrase of Ricky Bobby, Will Ferrell's character from "Talladega Nights." The design notes make this explicit, as well as explain that it was chosen as a slogan because one team member "loves NASCAR" and "wanted to go fast." From the beginning, the person that appears to be the NRO team leader tried to drop a few hints that they weren't all that confident a "Talladega Nights" reference was going to (literally) fly … before finally giving it the formal nix on copyright grounds. Undaunted, one team member proposed a sneaky compromise - just Google Translate it into Latin and nobody will notice. This team member claims the "Latin approach" has worked before, though a quick search shows that it didn't work out quite as well as they made it sound. And there were a few other minor considerations ... Ultimately, the team leader vetoed all Latin phrases as "hard to understand and remember," using the NRO's own motto as an example. A list of pre-approved slogans (including a few redacted ones) was sent to the team, and with a topical joke about the 2016 presidential elections, the matter was put to a vote. The lesser-known Ricky Bobby quote "Explore - Discover - Know" won out … and you can see it here on the finalized logo. Read the full release embedded below or on the request page. Permalink | Comments | Email This Story

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In yet another example of how the UK's government's stated respect for free speech is continually undercut by its actions, a bigoted landlord is bringing charges against a YouTuber for calling him bigoted. (via Innocent Abroad) Fergus Wilson said he will ‘bankrupt’ Danny Hyde over a video criticising his policy to ban non-white tenants ‘because of the curry smell they leave behind’. Hyde was referring to statements Wilson made last year, which were part of a bigger leak of inside info that exposed Wilson's extremely questionable tenant standards. In addition to banning "coloureds" (Wilson's actual words), Wilson also refused to rent housing to single mothers, "zero-hour workers," and battered wives. Quite the humanitarian. So there's no shortage of criticism waiting for Wilson, who actually had to be told refusing to rent to people with darker skin tones was *gasp* illegal. Multi-millionaire Fergus Wilson, 69, tried to ban non-white tenants because of the ‘cost of removing the smell of curry at the end of their tenancy’. Today a county court ruled the policy was unlawful. Hyde's video is full of stuff Wilson doesn't want to hear, but that shouldn't make it illegal. Hyde suggests banning curry rather than entire races and describes Wilson as a "penis" and a "bum splat." Here in the United States, those statements would be protected hyperbolic statements of opinion. In the UK, however, they're arguably illegal. This is the video Wilson hopes to shut down with his abuse of a badly-written law. (NSFW: language) Wilson has filed a complaint stating Hyde's video violates the Malicious Communications Act of 1988. This UK law criminalizes communications "sent" with the purpose of "causing distress or anxiety." The scope of the law is incredibly broad. Ironically enough, the purpose of the legislation was to curb "racially or religiously motivated comments." You know, like saying you're banning "coloureds" for making apartments "smell like curry." Instead of being wielded against Wilson and his bigoted statements, it's being used to silence a critic of Wilson's bigoted statements. And Wilson has threatened to sue Hyde into bankruptcy if the law fails to result in a $10,000 fine and the forcible removal of the video. This is the problem with laws targeting speech. Supporters of this type of legislation claim this will make public discourse better and friendlier. Who wouldn't want to see online harassment and bullying brought to a halt? But it never works out that way. The bullying and harassment continues. The only thing that changes is who's handing it out. Groups frequently targeted by hateful speech never benefit from these laws. Powerful people like Wilson are the ones most likely to use bad speech laws to punish the little guy who just won't shut up. And if it's not powerful people doing the bullying, it's the government itself, handing out fines and removing content it doesn't like while claiming to be offended on behalf of others. Bad laws encourage legal thuggery. There's no ignoring that fact. Speech laws are often bad laws because they're written with an eye on the hypothetical situation where do-gooding government types clean up the internet by punishing hateful, bigoted people. But when actually put to use, it's hateful, bigoted, powerful people shutting people down for calling them hateful and bigoted. Permalink | Comments | Email This Story

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Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case: "As a process note, the FCC decision made it clear that suits should be filed 10 days after it is published in the Federal Register, which has not yet occurred. However, federal law is more ambiguous. Due to the importance of this issue, even though we believe the filing date should be later, we filed in the event a court determines the appropriate date is today. The FCC or a court may accept this order or require us and others to refile at a later date. In fact, we’re urging them to use the later date. In either instance, we will continue to challenge the order in the courts." Mozilla's lawsuit was filed the same day as coordinating lawsuits from consumer groups like Public Knowledge and Free Press. In a statement of its own, Public Knowledge notes it similarly filed its petition early as a preliminary and protective legal move: "While we believe that under the best reading of the rules the FCC's Order is not ripe for challenge until it is published in the Federal Register, in the past the judicial lottery -- which determines which appellate court will hear a challenge to an FCC action -- has been run based on premature petitions. Thus, to protect our rights, we have filed today. In other words, this is a purely procedural move, and we would not object if all early-filed petitions were held in abeyance by the FCC and the lottery is conducted based only on challenges filed after Federal Register publication. Of course, we will file to challenge the FCC at that time, as well." The Open Technology Institute also says it also filed its own lawsuit against the FCC early, hoping to ensure a favorable court selection during the Panel on Multidistrict Litigation (MDL) lottery. All told, four of the net neutrality lawsuits were filed in the United States Court of Appeals for the District of Columbia Circuit, while the Free Press lawsuit was filed in the United States Court of Appeals for the First Circuit. This is just the opening salvo in what will be a long-standing legal standoff between people who'd prefer the internet remain healthy and competitive, and ISPs eager to abuse a lack of competition in the broadband last mile to their own, additionally anti-competitive advantage. All of the lawsuits will attempt to prove that the FCC violated the Administrative Procedure Act by engaging in an "arbitrary and capricious" reversal of extremely popular policy without proving that the broadband market changed dramatically enough in just two years to warrant it. As we've noted previously, the lawsuits will also focus on how the FCC turned a blind eye to identity theft and comment fraud during the FCC's open comment period, and efforts by some group or individual to try and downplay the massive public opposition to the FCC's handout to the telecom sector. Expect more details on the origins (and potentially funding) of these efforts as the legal fight moves forward over the coming months and years. Though some ISPs surely won't be able to help themselves, expect ISPs to try and remain on their best behavior for a while to avoid undermining their arguments in court. Should they win in court however, it can't be understated how the attack on net neutrality is just one small part of an over-arching ISP lobbying effort to remove nearly all meaningful state and federal oversight of some of the least-liked, least-competitive companies in America. That involves efforts to pass loophole-filled fake net neutrality laws with one goal: preventing tough, real rules from being passed down the road by a less Comcastic Congress or FCC. Permalink | Comments | Email This Story

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Spiel BT is the speaker system with a contemporary, fresh and relaxed design that is the perfect fit for any space. This 3-piece desktop speaker set features Bluetooth connectivity so you can set up a complete surround sound experience on your desk or in your home. The central speaker has a 4" woofer, and each satellite has a 2.5" mid-range. You can use the included audio jack to plug in to any system. Just pair your device and feel the incredible audio output of up to 100W. It's on sale for $55. 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 Philippines has a "free speech" amendment in their Constitution not unlike the American First Amendment. In the Philippines, it's actually their 4th amendment: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. From Filipinos I've spoken to, they seem rightfully proud of this right to free speech. And they should be. But these things only matter if they're actually respected. And there's growing evidence that, under President Duterte, there's little respect for such things. A few days ago, the news broke that the Philippines Securities and Exchange Commission was pulling the license of Rappler, a popular Filipino news source started by Maria Ressa. I was privileged to hear Ressa speak at a conference last summer (she was originally supposed to be a participant in a session that I was organizing, but it was much better having her speak separately about the challenges she was facing in covering news in the Philippines). Rappler has really done some amazing work under fairly challenging circumstances. And... it appears that those challenging circumstances are leading the government in the Philippines to try to shut them down. The official reason for pulling the license is the claim from the SEC that Rappler has violated rules concerning foreign ownership. The En Banc finds Rappler, Inc. and Rappler Holdings Corporation, a Mass Media Entity and its alter ego, liable for violating the constitutional and statutory Foreign Equity Restriction in Mass Media, enforceable through laws and rules within the mandate of the commission That, alone, should raise some questions about (1) why they need a license to operate and (2) why it matters how much is owned by foreigners. But the larger issue is that it's not at all clear that the supposed foreign ownership claim is accurate. It does appear that Rappler engaged in a fairly cumbersome financial transaction to allow foreign entities -- including the Omidyar Network -- to help fund its reporting. And some of that involved "Philippine Depository Receipts" or PDRs whose value is tied to the value of Rappler equity -- but which do not grant any actual ownership stake in the company. To the SEC in the Philippines, this appears to be a meaningless distinction, but it actually makes plenty of sense. You can sell an asset class that is tied to the value of something else without it granting equity in the original thing. What this really comes down to is that Philippine President Rodrigo Duterte is not at all happy with Rappler's coverage of his administration -- and has a history of directly calling out Rappler, and falsely claiming that it's "fully owned by Americans." Earlier this week, while denying having anything to do with the SEC pulling Rappler's license, he also made it clear that he has no problem attacking the site: Earlier this week, Mr Duterte had addressed a Rappler reporter, saying "you have been throwing trash... If you are trying to throw garbage at us, then the least that we can do is explain how about you? Are you also clean?" And, as if to make the point even stronger that the Philippines is moving away from its Constitutional support of free speech, some legislators in the Philippines are trying to amend the Constitution to massively weaken the free speech protections in the country, such that they only apply to the laughably vague "responsible exercise" of free speech: "In the Bill of Rights, we see everything there to be acceptable, except Article 3, Section 4 (freedom of speech)," Capiz Rep. Fredenil Castro (2nd district) said Tuesday during the House Committee on Constitutional Amendments' hearing on the proposed amendments to the Constitution. A subcommittee proposed to reword the provision to read, "No law shall be passed abridging the 'responsible exercise' of freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." Castro said many believe the constitutional guarantee of free speech has been "unrestrained." "There is so much abuse of this freedom," he added. That's... quite a statement. First of all, if your freedom of expression protections are limited to the "reasonable exercise" of free speech you have no free speech protections, because the government can and will always define speech it dislikes as unreasonable (see Duterte's comments above). Second, the whole point of protecting freedom of expression is that it's "unrestrained." To complain about that seems preposterous. Similarly what Castro sees as "abuse of this freedom" actually means "exercising of this freedom in a way I dislike." And that's the point of having true support for freedom of expression -- that many times it will be disliked by the representatives of the government, but they should be unable to block it. Unfortunately, it appears some in power in the Philippines see it entirely differently. And, thus it appears that what the Philippines has touted as freedom of expression may be anything but that. Thankfully, not everyone in the government agrees. As reported in Rappler (naturally), some find this problematic: The House opposition bloc did not agree with this proposal. "How can you define responsible? What is responsible for them? So when you say responsible, it's what favors them?" said Magdalo Representative Gary Alejano, citing the proliferation of disinformation and propaganda from online personalities who are apparent supporters of President Rodrigo Duterte. [....] Ifugao Representative Teddy Baguilat said this provision could be used to curtail freedom of expression. "That's why, what happened to Rappler, that's because they feel it's not a 'responsible' media institution. And I'm sure other media institutions are threatened right now. So that's the thing, who defines?" he said. Hopefully cooler heads prevail. Supporting freedom of expression means going all in -- and the Philippines seems to be perilously close to completely ditching the concept. Permalink | Comments | Email This Story

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A Congressional effort to reverse the FCC's attack on net neutrality needs just one vote to move forward, but still faces a very steep uphill climb toward success. Fifty senators have endorsed a legislative measure to use the Congressional Review Act to reverse the FCC's repeal of the rules. The CRA can be used to reverse any regulatory action with a majority vote in Congress, provided the vote occurs within 60 days of the regulatory action in question. With 49 Democrats and one Republican (Maine's Susan Collins) now supporting the effort, it needs just one Republican vote to forward, notes Senator Ed Markey: "Momentum is building,” Sen. Ed Markey (D-MA) told reporters at a Boston press conference on Tuesday. "There will be a vote on the floor of the U.S. Senate to restore net neutrality as the law of the land,” Markey said. Under the Congressional Review Act it takes just 30 votes to bring a resolution to a vote and there would be a “price to pay” for lawmakers to side with the FCC. “Access to a free and open internet is and should be a 21st right—net neutrality forms the foundation of both our democracy and our economy." The chance of this gambit's success have been consistently and routinely over-hyped by the well intentioned. Should the effort pass the Senate it still needs to secure floor time and win a vote in the House, where lawmakers like Marsha Blackburn have pretty routinely made protecting AT&T, Verizon and Comcast revenues their very top priority. Pennsylvania Representative Mike Doyle issued a statement listing the supporters currently signed on in the House, though that support remains well short of the threshold needed to run the gauntlet of ISP-beholden lawmakers there: "We’ve made good progress so far in getting Members to sign on as original cosponsors of our bill to restore Net Neutrality, and I will continue to seek additional cosponsors in the weeks ahead,” Congressman Doyle said today in releasing the list of names. “There’s overwhelming public support for preserving Net Neutrality, so it’s no surprise that there’s strong support in Congress as well. I’m confident that if there’s enough public pressure, Congress will overturn the FCC’s order killing net neutrality." Once it gets through the House it would still need the signature of President Donald Trump. Activists I've talked to hope that should it get past Congress, Trump's tendency to bend whichever way the "populist" wind is blowing could get him to sign off on the proposal. But giving such a notable middle finger to his own FCC would be uncharacteristic given all the ISP money being spent on gutting all meaningful state and federal oversight of incumbent ISPs, and there will be plenty of well-funded pressure to ensure that doesn't happen. While success here has long odds (though this shouldn't discourage you from contacting your lawmaker anyway), the gambit does have the practical purpose of forcing AT&T, Verizon and Comcast's lackeys in both houses to put their disdain for the public down on the public record. That's going to prove particularly useful during the looming midterms, where net neutrality is very quickly becoming a wedge issue. That's especially true among Millennial voters, who seem to have a more innate understanding of why letting Comcast run amok isn't a particularly great idea. The entire effort again highlights the stupidity of viewing net neutrality through a partisan lens. Despite a healthy, competitive internet being in everybody's best interest, ISPs have spent fifteen years successfully framing net neutrality as a partisan issue to help sow dissent and stall progress on meaningful rules. Survey after survey however have indicated that the concept has broad, bipartisan support among the public at large. Anger at being ignored will drive voter turnout, and lawmakers (as well as Ajit Pai, whose post-FCC political ambitions couldn't be clearer) are going to figure that out the hard way. All of that said, there's still plenty of ways to bring net neutrality back to the table should this effort fail. While it will take a while, the looming lawsuits have a solid chance at reversing the FCC's repeal given the FCC's numerous procedural and ethical missteps. A massive shakeup in Congress could also finally drive support for a real net neutrality law down the road, provided ISPs aren't successful in passing their own, entirely bogus legislation first. Permalink | Comments | Email This Story

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The Ninth Circuit Court of Appeals has ruled [PDF] that accessing publicly-accessible info in a way the hosting entity has said isn't permissible isn't a violation of the law. In this case, it's a couple of laws, since Oracle's bid to shut down a competitor involves two different states and two different computer crime laws. Oracle sued Rimini Street alleging a bunch of computer law-related violations after it continued to harvest data without Oracle's explicit permission. The EFF, which filed a brief in this case backing Rimini Street, breaks down the details of the alleged violation. Oracle v. Rimini involves Oracle’s terms of use prohibition on the use of automated methods to download support materials from the company’s website. Rimini, which provides Oracle clients with software support that competes with Oracle’s own services, violated that provision by using automated scripts instead of downloading each file individually. Oracle sent Rimini a cease and desist letter demanding that it stop using automated scripts, but Oracle didn’t rescind Rimini’s authorization to access the files outright. After ceasing/desisting for about a year, Rimini went back to automated downloading, allowing it to provide faster service for its customers. Oracle's decision to continue to grant access to Rimini Street is what ultimately undoes its case. It tried to use two different states' laws (Nevada and California) to force Rimini to go back to the old, slow, "permissible" downloading protocol. A jury found Rimini in violation of these laws, but the Appeals Court does not agree. We hold that taking data using a method prohibited by the applicable terms of use, when the taking itself generally is permitted, does not violate the CDAFA. Because the same reasoning applies to the NCCL claim, we reverse the judgment as to both claims. Oracle obviously disapproved of the method— automated downloading—by which Rimini took Oracle’s proprietary information. But the key to the state statutes is whether Rimini was authorized in the first instance to take and use the information that it downloaded. That strikes down the violations alleged. It still leaves Oracle with a substantial award on its copyright infringement claims, but it will "only" end up with $22 million in damages instead of the $27 million awarded by the lower court. This is a good decision that protects automated access of publicly-available information. Plenty of useful web/data tools rely on automation. Allowing companies to undercut competition and discourage innovation with bad applications of worse laws isn't the answer. With very little legislative movement towards rewriting bad laws like the CFAA, it's up to the courts to sort out these conflicts. In the meantime, companies like Oracle will continue to try to thwart competitors with lawsuits and criminal charges, rather than with better products and service. Permalink | Comments | Email This Story

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Google Street View is a great resource for taking a look at distant locations before travelling, or for visualizing a nearby address before driving there. But Street View images are much more than vivid versions of otherwise flat maps: they are slices of modern life, conveniently sorted by geolocation. That means they can provide all kinds of insights into how society operates, and what the differences are geographically. The tricky part is extracting that information. An article in the New York Times reports on how researchers at Stanford University have applied artificial intelligence (AI) techniques to 50 million Google Street View images taken in 200 US cities. Since analyzing images of people directly is hard and fraught with privacy concerns, the researchers concentrated on a proxy: cars. As an academic paper published by the Stanford team notes (pdf): Ninety five percent of American households own automobiles, and as shown by prior work cars are a reflection of their owners' characteristics providing significant personal information. First, the AI system had to be trained to find cars in the Google Street Map images. That's something that's easy for humans to do, but hard for computers, while the next stage of the work -- identifying car models -- is much easier using AI. As another paper reporting on the research (pdf) explains: the fine-grained object recognition task we perform here is one that few people could accomplish for even a handful of images. Differences between cars can be imperceptible to an untrained person; for instance, some car models can have subtle changes in tail lights (e.g., 2007 Honda Accord vs. 2008 Honda Accord) or grilles (e.g., 2001 Ford F-150 Supercrew LL vs. 2011 Ford F-150 Supercrew SVT). Nevertheless, our system is able to classify automobiles into one of 2,657 categories, taking 0.2 s per vehicle image to do so. While it classified the automobiles in 50 million images in 2 wk, a human expert, assuming 10 s per image, would take more than 15 y to perform the same task. The difference between the two weeks taken by the AI software, and the 15 years a human would need, means that it is possible to analyze much larger data collections than before, and to extract new kinds of information. This is done by using existing datasets, for example the American Community Survey, which is performed by the US Census Bureau each year, to train the AI system to spot correlations between cars and demographics. The New York Times article lists some of the results that emerge from mining and analyzing the Google Street Map images, and adding in metadata from other sources: The system was able to accurately predict income, race, education and voting patterns at the ZIP code and precinct level in cities across the country. Car attributes (including miles-per-gallon ratings) found that the greenest city in America is Burlington, Vt., while Casper, Wyo., has the largest per-capita carbon footprint. Chicago is the city with the highest level of income segregation, with large clusters of expensive and cheap cars in different neighborhoods; Jacksonville, Fla., is the least segregated by income. New York is the city with the most expensive cars. El Paso has the highest percentage of Hummers. San Francisco has the highest percentage of foreign cars. The researchers point out that the rise of self-driving cars with on-board cameras will produce even more street images that could be fed into AI systems for analysis. They also note that walking around a neighborhood with a camera -- for example, in a smartphone -- would allow image data to be gathered very simply and cheaply. And as AI systems become more powerful, it will be possible to extract even more demographic information from apparently innocuous street views. Although that may be good news for academic researchers, datamining offline activities clearly creates new privacy problems at a time when people are already worried about what can be gleaned from datamining their online activities. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
When a company goes down a wrong or abusive road regarding trademark rights, the public has a lot of tools for remedy. Legal disputes between interested parties can often times correct a company attempting to secure trademark rights it ought not have. Invalidating a trademark that never should have been granted is another tool. But often times, the best and quickest remedies can come from the public itself in the form of a good old fashioned backlash. The likelihood of such a backlash is necessarily a function of the devotion of a particular fanbase. The craft beer industry has had to learn this lesson several times, with a portion of the public devoted to seeing the industry thrive also being unwilling to let stand aggressive trademark bullying that threatens that same industry. We saw another of these backlash instances cause a company to reverse course recently and I struggle to think of a more potentially devoted fanbase to an industry than those among us whose fetish is role-playing as adult babies. A company that makes diapers for the adult baby/diaper lover fetish community (known as ABDL) gave up on its attempt to trademark the term “ABDL” on Thursday after message boards for the community exploded in anger last week. Rearz, a Canadian-based supplier of adult diapers with cutesy patterns and other adult baby accessories, like pacifiers, told BuzzFeed News, “we had no malicious or strange intentions in trying to register it, but obviously it struck a nerve with people. This is a community we love and serve, and we don't want to make people feel less valuable.” It will be both tempting and facile for our comments section to devolve into opinions about this specific fetish, but that is entirely besides the point. The real story here is that a company attempted to register a trademark that is essentially the identity of an entire community which it serves and was immediately slapped around by that same community. It seems that many of the same folks that enjoy wearing diapers as adults for any reason other than necessity were also perfectly willing to let Rearz know that trademarking their communal identity would not be tolerated. Boycotts were threatened with promises to patronize other makers of these products, which, yes, this is an industry with multiple players. As is typical, Reddit communities led the way. Rearz filed to trademark “ABDL” in October 2017, but it was only this week that someone in the community noticed. At this discovery, the /r/ABDL subreddit filled with angry threads about Rearz’s trademark filings. “This is scummy. Period,” wrote one user. In another thread, angry ABDL redditors planned to ruin Rearz’s standing on Facebook by rating it one star on its business page. On a forum for adult babies called ADISC.org, one adult baby said, “Rearz is now off my shopping list.” People even made memes about the scandal. In rescinding its trademark application, Rearz went on to post its reasoning for applying for in the first place on its blog. That reasoning had mostly to do with the company's complaints about certain online ads and online payments not being accepted due to the products' stigmitized status in popular culture. What a trademark for "ABDL" would do to correct any of that is a question nobody seems interested in answering, but Rearz's claim that it would not enforce its trademark against competition if it had received it doesn't pass the smell test. Even if that were true, it would mean losing the trademark to genericide. But, in the end, the community Rearz served did all of that work long before the legal system had a chance to swing the bat. If nothing else, this ought to show the rest of the public what a good old fashioned backlash can do to correct poor trademark behavior. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
For many years we've talked about the kind of derangement that happens among many -- especially among those working for Homeland Security's Customs and ICE divisions -- considering the supposed "dangers" of counterfeit goods. Over and over again we've pointed to studies that have shown that the "harm" of counterfeits is massively overblown. And these are not just random studies picked out of a hat. Both the Government Accountability Office (GAO) and the OECD have put out studies on this. When you look at the details, you quickly learn that while there are a few cases of people tricked by counterfeit goods -- and a vanishingly small number of cases where people are put at risk due to counterfeits -- in many, many cases, no one is actually losing out due to counterfeits. They are frequently an aspirational buy. That is, the buyer knows they're buying a counterfeit good, but are doing so because they so appreciate the real version, but can't afford it. And studies show that buyers of counterfeits quite frequently buy the real deal later when they're able to afford it. Thus, counterfeits often act as marketing for the original. But, for whatever reason, Homeland Security likes to play up the "threats" of counterfeits and makes lots of noise about how many counterfeit things it seizes at the border every year (or... not at the border -- such as the time it raided a lingerie store to get "counterfeit" panties advertising sports teams). And sure, Homeland Security really really wants you to believe it's protecting the public with this kind of thing. But if that's the goal, explain this story. Harper Reed tried to buy a fancy Rimowa luggage on Amazon last year. There was no indication that it was counterfeit -- it was priced the same as actual Rimowa luggage. But customs intercepted the shipment and wouldn't let it in. That's fair enough, I guess, but it's the next part that's shocking. Because of this Customs refused to renew Reed's Global Entry membership. Global Entry, for those who don't know, is a process by which fliers who frequently travel internationally can fill out a form, go for an interview, pay some money... and be able to speed through customs upon re-entering the US. While some grumble about paying for access, it's actually a more reasonable security program than most -- in that it actually involves effectively pre-clearing people less likely to need scrutiny at the border. But Reed's status was not renewed because he was listed as trying to "import counterfeit goods." Again, you can see the intent behind this rule. If someone is actually "importing" a bunch of counterfeit goods to sell, you can see how that might be a good reason to deny someone Global Entry. But Reed wasn't trying to import a bunch of counterfeit goods. He was trying to buy a suitcase. He didn't get it from Amazon (he bought one later from a store) and that's fair enough under the law -- but why hold that against him. Apparently the geniuses at Homeland Security have little desire to distinguish a counterfeiting operation from a dude buying something on Amazon he thought was legit. When CBP intercepts a shipment, says Mark Schonfeld, an intellectual property lawyer at Burns & Levinson LLP, in Boston, Massachusetts, it sends a seizure notice to the trademark holder (in this case, Rimowa), which includes the names of the importer and exporter. The brand can then decide what action it wants to take, if any. Going after the latter party can be difficult and costly, since the vast majority of counterfeits come from Asia (in 2016, nearly 90 percent of products seized by CBP originated in China and Hong Kong). The importer, however, is by definition domestic, making them the easier target. Schonfeld says this is the first instance he’s heard of in which a consumer has been flagged for importing a single item, but that legally, the principle is the same. “It definitely can happen to a consumer,” he says. “You know, you can go to Tijuana, just right over the San Diego border and you can easily buy counterfeits there, but no consumer should think that coming back into the United States with the item is risk free.” Much more common are cases in which Amazon itself is named as the importer, particularly since it began courting Chinese sellers with favorable shipping terms in 2015, and as its Fulfillment By Amazon program expands by leaps and bounds each year, offering third-party merchants the chance to take advantage of the e-commerce giant’s logistics infrastructure, customer service, and even Prime two-day shipping by sending goods directly to its warehouses. Again, at the very least, it seems that intent should be taken into account here. Buying something on Amazon, with no indication (not even price) that the luggage was counterfeit, should not lead one to being accused of being a counterfeiter. But, of course, with DHS feeling so damn strongly about the "evils" of counterfeiting, it's only to be expected that they'll overreact to situations like this as well. Permalink | Comments | Email This Story

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Last week we noted how AT&T was forced to scrap a partnership with Huawei to sell the company's smartphones here in the States, just hours before it was set to be announced at CES. The reason? Apparently a few members of the Senate and House Intelligence Committees fired off a letter to the FCC demanding that they pressure US telcos into avoiding Huawei. The letter, which nobody has published, allegedly accuses the company of being little more than an intelligence proxy for the Chinese government. There are several problems with this. While it's certainly possible that Huawei helps the Chinese government spy, there's been no hard evidence of this. In fact, numerous investigations (including one eighteen months long) found no evidence of any spying whatsoever. What inquiries did find is that these allegations pretty consistently originate with U.S. hardware vendors like Cisco, who routinely enjoy playing up the threat simply because they don't want to compete with Chinese hardware vendors. You know, the very same thing we routinely (often quite accurately) complain about China doing. Despite no real evidence, a new Reuters report indicates this new pressure is much greater than just AT&T's smartphone partnership. In fact, the report suggests that the government is now urging all US telcos and ISPs to avoid using any Huawei gear whatsoever if they want to continue winning government contracts (and as an NSA BFF, AT&T has plenty of contracts to protect). From the report: "The lawmakers are also advising U.S. firms that if they have ties to Huawei or China Mobile, it could hamper their ability to do business with the U.S. government, one aide said, requesting anonymity because they were not authorized to speak publicly. One of the commercial ties senators and House members want AT&T to cut is its collaboration with Huawei over standards for the high-speed next generation 5G network, the aides said. Another is the use of Huawei handsets by AT&T’s discount subsidiary Cricket, the aides said. And while Reuters mentioned that there have been investigations, it oddly forgets to mention what the outcome of those investigations were (again, zero evidence of spying). Also ignored is the fact that Chinese networking hardware is absolutely everywhere in the States, including being embedded in many of the products sold by U.S. manufacturers. If China wants to spy on America, it only need turn to the ocean of poorly secured IOT devices, the lion's share of which are now made in China by companies with a complete and total disentrist in anything even vaguely resembling security standards. Similarly and comedically ignored is the fact the United States government engages in this kind of behavior all of the time. You might recal the NSA was caught intercepting Cisco hardware to install surveillance technology a few years ago. The Snowden documents also revealed how the NSA hacked into Huawei and stole company source code as early as 2007, all in the hopes of planting backdoors in network hardware used by countries who avoid buying American gear. Everyone but the most ardently myopic patriots realize that the United States' credibility on this subject was dismantled decades ago. This latest wave of hysteria comes simultaneously and not-coincidentally as Representatives Michael Conaway and Liz Cheney introduced a bill banning US carriers from doing any business whatsoever with Huawei or ZTE Corp (two guesses on which companies are pushing for that law). Again, it's perfectly possible that Huawei helps the Chinese government spy. But if that's the case, it shouldn't be too difficult to provide some hard evidence supporting this position. Unless, of course, this is all little more than an adorable little stage play concocted simply to protect US hardware vendors from having to actually compete. Permalink | Comments | Email This Story

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