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As most of you probably noticed, last week saw a massive, online protest against FCC boss Ajit Pai's plan to completely ignore consumer welfare and gut popular net neutrality protections. Giant ISPs like AT&T, Comcast and Verizon responded to the protest in the way they've always done: by comically insisting that the press somehow got it wrong, and these companies actually really love net neutrality -- despite a decade of documented anti-competitive behavior, and the fact they've spent millions upon millions of dollars trying to kill any meaningful neutrality protections. AT&T took things a bit further by hysterically saying the company loved net neutrality so much, it too would be participating in the protest -- a PR ploy that was pretty soundly ridiculed by ourselves and others. But a deeper look at AT&T's "participation" in the protest found that AT&T used the opportunity to trick its customers into opposing real net neutrality protections -- and convinced many to root against their own self interests. The Verge was the first to notice that AT&T spent the day sending e-mails and other notifications to customers professing the company's dedication to net neutrality. These missives even showed up on AT&T set top boxes, as several users noted on Twitter: @reckless this what I got on my DirecTV today pic.twitter.com/DUI7KqXTjh — dlwelch34 (@dlwelch34) July 13, 2017 These notifications have several variations. But all of them directed AT&T customers to this AT&T website where they were informed that AT&T really loves net neutrality (pro tip: they don't), and were told to fill out a form letter AT&T said it would forward on to "the FCC and your officials." But the letter doesn't actually support net neutrality. What it supports is the gutting of the existing popular protections and replacement with a Congressional law: "Simply put, it is time to stop this regulatory see-saw. Consumers need a set of basic online protection and competition rules put in place that will last longer than the next Presidential administration. Congress should pass a law to ensure consumers are always protected and all internet companies compete on a level playing field under a single set of rules." So in an ideal world, having Congress craft a net neutrality law makes sense -- especially since it would end the game of partisan patty cake that occurs every time a new administration takes office, potentially ending fifteen years of net neutrality debate. The problem, as we've noted several times, is that we don't live in an ideal world. We live in a world where Congress is bogged down in immense partisan dysfunction, and companies like AT&T, Verizon and Comcast have immense control over both federal and state-level lawmakers. Their control is so complete, they're often the ones writing awful, anti-competition, protectionist state and federal telecom law. There's a reason AT&T wants to gut the existing, popular rules and replace it with a new law: it knows it will be the one writing it. As such, you can be certain the law -- assuming it got passed at all (not at all likely) would be filled with so many loopholes as to be utterly useless. Despite this grotesque corruption and dysfunction being fairly apparent to anybody with eyes, many reporters have bought into this argument for a new law. Fortunately a few reporters have been able to see through AT&T's bullshit on this front: This is all cleverly worded bullshit from people who actually want to dismantle a responsive regulatory agency and cede responsibility back to Congress, which is much slower to act and, where the ISPs are concerned, can be easily bought. All of these ISPs continue to say they love net neutrality with fingers crossed behind their backs. Make no mistake: AT&T doesn't care about healthy internet competition, level playing fields, or consumer welfare. Its goal is to gut all meaningful oversight of one of the least liked, and least competitive industries in America, and replace it with the policy equivalent of fluff and nonsense. And while there's still many folks that somehow believe that blindly deregulating companies like Comcast will magically result in good ISP behavior and telecom utopia, history has shown us time and time again that logic only tends to make the problem worse. There's a far simpler way to settle the issue and protect consumers and startups, and that's to leave the existing net neutrality rules lone. Permalink | Comments | Email This Story

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It looks like China is continuing to set the gold standard for internet censorship. For a long time, the Great Firewall has been actively censoring content based on keywords. Activists and dissidents have worked around this filtering by placing text in images, but that doesn't appear to be working nearly as well as it used to. Toronto's Citizen Lab noticed some unusual things happening in days surrounding the death of China's only Nobel Peace Prize winner (and longtime political prisoner), Liu Xiaobo. On WeChat, we collected keywords that trigger message censorship related to Liu Xiaobo before and after his death. Before his death, messages were blocked that contained his name in combination with other words, for example those related to his medical treatment or requests to receive care abroad. However, after his death, we found that simply including his name was enough to trigger blocking of messages, in English and both simplified and traditional Chinese. In other words, WeChat issued a blanket ban on his name after his death, greatly expanding the scope of censorship. We documented censorship of images related to Liu on WeChat after his death, and for the first time found images blocked in one-to-one chat. We also found images blocked in group chat and WeChat Moments (a feature that resembles Facebook’s Timeline where users can share updates, upload images, and short videos or articles with their friends), before and after his death. China has tackled image censorship before, but it hasn't been able to achieve this in one-to-one chat until now. And it's being done stealthily to prevent senders or receivers from knowing their images have been blocked. Similar to keyword-based filtering, censorship of images is only enabled for users with accounts registered to mainland China phone numbers. The filtering is also not transparent. No notice is given to a user if the picture they sent is blocked. Censorship of an image is concealed from the user who posted the censored image. The censorship is only apparent to international users without registered Chinese phone numbers. And, like most blanket censorship efforts, it's far from perfect. The exact mechanism that WeChat uses to determine which images to filter is unclear and in our testing sample we found unexpected results. Blocked images included screenshots of official government statements on Liu Xiaobo’s death, which we did not expect to be censored. We also found images that were not blocked that could be seen as sensitive, such as an image of book covers of “Charter 08” and a Biography of Liu Xiaobo, which are both banned in mainland China. As Citizen Lab points out, this censorship effort is especially concerning, as it indicates the Chinese government is possibly in the business of internet-enabled retroactive amnesia. If it leaves the filtering in place long enough and censors enough websites and personal chats, the history of Liu Xiaobo will be slowly rewritten with narratives approved by the Chinese government. Permalink | Comments | Email This Story

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One point I fear doesn't get made enough when it comes to trademark law is that trademarks ought to be both unique and specific in order to fulfill the law's purpose of keeping the public from being confused as to the origins of goods and services. There's a level of nuance severely lacking in the way trademarks are both granted and enforced such that the law is used far less for the benefit of the public than it is a revenue generator for those who would lock up common names and words. A perfect example of this would be the trademark application for "Elvis Juice" by the brewery BrewDog being blocked by the Elvis Presley Estate. Now, the last time we wrote about BrewDog, it was having its own issues with trademark enforcement. A pub in Birmingham had received a notice from the brewery's lawyers that it's planned name, The Lone Wolf, infringed on a spirit of the same name created by BrewDog. After the public backlash that ensued, BrewDog quite quickly backed off, both allowing the pub to keep its name while also publicly promising to leash the lawyers and only use them when truly warranted. This time, the shoe is on the other foot, with the Elvis Presley Estate blocking BrewDog's trademark application for "Elvis Juice", claiming that the public would associate the use of that somewhat common first name with the long-dead singer. The hearing officer for the UK Intellectual Property Office somehow agreed with this line of reasoning. Last month the UK Intellectual Property Office found in EPE’s favour, with hearing officer Oliver Morris saying that “the average consumer will assume that the brand Elvis Juice is from the same or economically linked source as the brand Elvis”. Noting that “the opponent has been successful”, Mr Morris refused to register the marks and ordered BrewDog to pay EPE £1,500 as a contribution towards its costs. When this trouble first began, two of the creators of BrewDog actually went out and went through the legal process of changing their names to Elvis, attempting to make the point that it's a common enough first name that nobody should associate it with a single famous person for all alcohol products everywhere. The brewery has a reputation for fighting these kinds of fights, so it can appeal the rejection, and hopefully will. After all, the trade dress for the Elvis Juice brand has absolutely nothing to do with Elvis Presley. Anyone looking at that can of beer and thinking of a 1950's rock star isn't so much confused as potentially suffering from brain damage. To my original point, the common name "Elvis" ought to not be trademarked on its own in the first place, as that single common name does nothing to indicate any branding or origin on its own. "Elvis Juice" is unique and creative. "Elvis Presley" is an identifiable source name or phrase. But "Elvis" all on its own? That's just a name. Permalink | Comments | Email This Story

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Some people get really worked up about fonts. Here, for example, is a thread on Reddit, spotted by Leigh Beadon, about the appearance of the serif font Cambria on the show "Better Call Saul". The problem is that the show is set in the years 2002 and 2003, while Cambria was designed in 2004. The (mock?) outrage about this slip-up is all good fun, but obviously nothing too serious. Unlike in Pakistan, where another apparent font faux pas is leading to calls for the country's prime minister to resign. As the Guardian explains, the daughter of Pakistan's prime minister is being investigated by the country's supreme court as a result of revelations in the Panama Papers that linked her to expensive properties in London. Documents produced in her defense had a slight problem, as spotted by font aficionados: Documents claiming that Mariam Nawaz Sharif was only a trustee of the companies that bought the London flats, are dated February 2006, and appear to be typed in Microsoft Calibri. But the font was only made commercially available in 2007, leading to suspicions that the documents are forged. Social media users have derided Sharif for this apparent misstep, coining the hashtag #fontgate. Such is the interest in #fontgate and the humble sans serif Calibri font, that visits to the relevant Wikipedia page have ballooned from 500 visits per day to 150,000 in just two days. As a result of the intense interest and some dubious editing attempts, Wikipedia has been forced to act: After users seemingly tried to change the article's content to say the font was available from 2004, Wikipedia suspended editing on its Calibri page "until July 18 2017, or until editing disputes have been resolved". Although you might think this is pretty much at the level of the Reddit discussion of Cambria, rival politicians in Pakistan see it as much more serious -- and an opportunity they can exploit: Opposition parties have urged prime minister Nawaz Sharif to step down after the investigation found a "significant disparity" between his family's declared wealth and known sources of income. However things turn out in Pakistan for the country's prime minister and his daughter -- Nawaz Sharif has denied wrongdoing -- #fontgate has already had one positive outcome. It allowed the Indian newspaper Financial Express to use the memorable headline: "Awesome story of Calibri, the font that may leave Pakistan sans Sharif." Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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You may have heard the joke: the best way to do product design for Facebook is to get a job at Snapchat. We've all seen how, after failing to buy the company, Facebook has wasted little time in building its own versions of most of Snapchat's key features. So... is this a problem? That's the subject on this week's episode, were we discuss the ins and outs of this kind of copying and what it might mean for the future of social media. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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The Ninth Circuit Court of Appeals has just handed down a terrible decision in a fight against National Security Letter gag orders. The EFF has been working with plaintiffs Cloudflare and Credo Mobile to have these indefinite gag orders found unconstitutional. Unfortunately, there's still nothing hopeful on the horizon in terms of government transparency. The Appeals Court has upheld the lower court's decision, finding this form of prior restraint somehow Constitutional. From the decision [PDF]: The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment. The panel notes the statutory framework for NSLs allows the government to ask for secrecy for an indefinite period of time to ensure investigations aren't interfered with or suspects prematurely notified of the government's interest in their activities. The statutes say the government "may" ask for secrecy. However, the FBI -- in the thousands of NSLs it issues every year -- reads this as "will." No one receives an NSL without a gag order attached. Challenging gag orders is easier than it used to be, but it's still far from ideal. Rather than limited-time gag orders or stiffer requirements for the FBI to meet before deploying them, recipients have been given modestly-improved avenues of recourse. That may help going forward, but it's doing very little to address NSLs/gag orders sent out before the USA Freedom Act reforms in 2015. Old NSL gag orders are still mostly unassailable. At the center of this case are NSLs dating back to 2011 and 2012. For reasons only known to the government, these half-decade-old gag orders are still in place. The court recognizes gag orders are content-based restrictions of speech. This means the government has to hit a higher bar to justify this control of citizens' speech. But the Appeals Court agrees with the lower court: to meet this high bar, the government just needs to deploy national security mantras. As a threshold matter, we readily conclude that national security is a compelling government interest. Indeed, the Court has recognized that “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” By the same token, keeping sensitive information confidential in order to protect national security is a compelling government interest. See Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the Government’s compelling interest in withholding national security information from unauthorized persons in the course of executive business” (internal quotation marks omitted)); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”). The plaintiffs pointed out that while the USA Freedom Act gave them new tools to challenge NSL gag orders, it also lowered the standards governing the attaching of gag orders. Instead of nondisclosure demands being approved only by the FBI Director, any number of designees could perform approvals. The court responds by saying "Trust the FBI." [T]he new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides the FBI with more flexibility to tailor the scope of the nondisclosure provision. We reject the recipients’ argument that this provision gives the government unfettered discretion and therefore creates a system of insufficiently cabined prior restraints. Even if the NSL law is determined to be the type of regulation for which procedural safeguards are required (see section V, infra), the law as a whole imposes narrow, objective, and definite standards on the government before it can issue a nondisclosure requirement… The fact that the statute also gives the FBI Director or a designee discretion to make additional exceptions to the nondisclosure requirement does not lessen the adequacy of the clear standards imposed on these officials before issuing a nondisclosure requirement in the first place. The court also says this isn't a case of prior restraint, even though each NSL arrives with some legal language preventing recipients from even acknowledging the NSL's existence. The panel declares NSL recipients have no "intent" to speak, so telling them not to talk somehow doesn't damage their First Amendment rights. [N]SL law prohibits the disclosure of a single, specific piece of information that was generated by the government: the fact that the government has requested information to assist in an investigation addressing sensitive national security concerns, i.e., “to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of movies,” the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL.” So, I guess it's not prior restraint because companies could talk vaguely and non-specifically about NSLs they might receive, but aren't allowed to talk about any NSLs they have received until the government says it's ok. Seems legit. The next step for the EFF and a number of NSL recipients is the Supreme Court. Given the ongoing deference to anything national security-related, it would be a surprise if the nation's top court reversed two lower court decisions. It may decide it's not even worth reviewing if petitioned. As it stands now, the government can demand indefinite silence from service providers thousands of times a year… all supposedly without violating the Constitution. Permalink | Comments | Email This Story

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As you probably heard, over the weekend, famed filmmaker George Romero passed away. Romero's influence on film making is legendary -- and people today still seem amazed to find out that basically everything you think you know today about the concept of "zombies" exists almost entirely because of Romero and Night of the Living Dead. He really invented the entire genre, and the use of zombies as social commentary. But, perhaps just as importantly -- you may not realize that a big part of why Romero's vision of zombies as flesh/brain-eating undead creatures taking over the world -- is because his key movie is already in the public domain: George Romero died yesterday. Usually that would start a 70-year clock on his copyrights. But his masterpiece was already public domain. — Parker Higgins (@xor) July 17, 2017 It's true. You can go watch the movie now and you're not violating anyone's copyright. A few years back, Plagiarism Today did an excellent job summarizing the story. In short, under one of the many quirks of the 1909 Copyright Act, a messed up copyright notice would put a work into the public domain (in fact, this quirk of copyright law was one of the main reasons given by some for why copyright should be automatically placed on everything in the 1976 Copyright Act). But for Night of the Living Dead a last minute name change meant a messed up copyright notice... and, voila, public domain. The first prints of “Night of the Living Dead” didn’t use the title we know it as today. Instead, it referred to the movie as “Night of the Flesh Eaters”, one of the working titles of the movie. However, before release, the title was changed to its more familiar version but, when changing the title card, the distributor forgot to put the copyright notice on the final print. Though that would not be a large issue today (the Copyright Act of 1976 removed all notice requirements), in 1968 that meant the movie was not protected by copyright and, instead, was placed immediately into the public domain. But, more importantly, this "accident" also may have contributed to the movies popularity and influence on culture. As Plagiarism today notes, so many other works basically copied Romero's zombies and how they acted -- while others used clips directly from the film. All of that was perfectly legal. And tons of "derivative works" never had to worry about being hit up with copyright infringement claims. Many movies either referenced scenes from “Night of the Living Dead” or films that used footage directly from its predecessor, often on TVs playing in the background. All in all, hundreds of zombie movies have been made that built upon “Night of the Living Dead” in one way or another, ranging from low-budget films to blockbusters. Even many video games such as the “Resident Evil” series (and subsequent movies) also owe a great deal to it. And while some will obviously point out that the distributor (who messed up the copyright notice) raked in tons of money from Night of the Living Dead while Romero himself made little -- the widespread success of the movie did enable him to go on and make many more films and more, for which he was paid quite nicely over his career. As Plagiarism Today rightly notes, the end result worked out great for Romero: Even though Romero, without a doubt, missed out on a lot of money due to the copyright mishap with “Night of the Living Dead”, the story ends well for him. The popularity of the film enabled him not only to create a successful series of sequels that he retained copyright in, but also other opportunities to exploit his notoriety, including books, comics and more. For the zombie movie industry, however, the lapse of “Night of the Living Dead” into the public domain turned out to be a boon. With a well-understood set of clear-cut rules, others were able to build on and expand on the work without paying a licensing fee or fear of being sued. This helped grow the genre, especially during the long wait between “official” sequels. This is not, necessarily, an argument that all things must be in the public domain, but a reminder that -- contrary to the claims of some -- just because some stuff is in the public domain, or even just available for free, it doesn't mean there aren't ways to build real businesses and real creativity off of it. Romero was a film making genius in many, many ways -- and the public domain helped his career greatly. It's too bad we now deny that option to basically everyone else. Permalink | Comments | Email This Story

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Get the $49 2017 Zero to Hero Game Developer Bundle and dive into 83 hours of training in industry-standard tools and tech. Whether your goal is to build games for fun, start your own studio, or become a professional, this training contains everything you need to get started. The courses cover Unity, C+, Python, Swift3, Blender and more concepts. You'll be designing fun and addictive games in no time. 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 DOJ is in court arguing the use of Stingray devices by the FBI and local cops shouldn't require a warrant. The government's lawyers are fighting a suppression motion by Purvis Ellis, charged with racketeering and the attempted murder of a police officer. The events of the case happened in 2013, two years before the DOJ instructed federal agents to seek warrants when deploying Stingrays. For this investigation, the Oakland PD used a pen register order, as was the style at the time. (And perhaps still is. Despite the DOJ's internal instructions, warrant requirements are all but nonexistent when it comes to local law enforcement agencies' use of cell tower spoofers.) As Cyrus Farivar points out, the PD's Stingray couldn't locate Ellis, so it brought in the FBI. All without warrants and all without informing the defense about the additional Stingray deployment. Ellis was located in an East Oakland apartment several hours after a January 2013 shooting with the help of two stingrays. Prosecutors initially insisted that only one stingray was used, but, as was revealed last summer, that turned out not to be the case. The Oakland Police Department's own stingray was seemingly insufficient, so officers then called in the FBI, both times without a warrant. The defendant is arguing the multiple warrantless Stingray deployments violated the Fourth Amendment. Considering the devices coax a location signal out of phones by aping cell towers, this differentiates Stingrays from more passive collections -- like the pen register the government didn't actually use. The government, quite obviously, is arguing otherwise. It points out in its opposition motion [PDF] that it has all the warrant exceptions on its side: Four gang members ambushed a young man in broad daylight, shooting him through the forehead from close range. The next day, those same men jumped, pistol-whipped and shot a police officer investigating the prior day’s shooting. The suspects then fled, armed with their own arsenal, as well as with the guns they had just stolen from the officer. Police surrounded the apartment complex where the men were thought to be hiding. Finding them quickly was essential. By shooting two people in a 27-hour period, the suspects – including the defendant Purvis Ellis – had just demonstrated an ability and willingness to kill others. So, when officers used a cell site simulator (“CSS”) to find Ellis, they were entirely justified by the exigent circumstances presented, rightly believing him to be armed and dangerous. The defendant’s motion to suppress is meritless. The courts have not definitively decided whether use of a CSS constitutes a “search” triggering Fourth Amendment protections. But it largely does not matter here, since exigent circumstances amply supported a warrantless use of the device. [...] Other exceptions to the warrant requirement also cut against suppressing evidence. For instance, the officers acted in good faith reliance on established law – the pen register statute, Supreme Court precedent, even the FBI policy at the time. Those laws and policies, combined with the dearth of binding case law on the CSS, all justified using the device without a warrant. In addition, the officers would have inevitably discovered everything they ultimately did, even had they never used the CSS. After all, they had the building surrounded by dozens of officers and SWAT team members hours before the CSS was even deployed. It's a long list of counterarguments, most of which have some validity in this particular case. (That, of course, doesn't stop the government from using the same arguments in cases where its assertions of good faith, exigency, etc. are far more questionable. But that's how lawyering works… on both sides.) It appears the government would rather the court didn't make a determination as to whether Stingray deployments are Fourth Amendment searches. The government lets the court know what it doesn't need to do to resolve this issue in the DOJ's favor: Whether use of a cell site simulator constitutes a “search” for Fourth Amendment purposes is not necessarily a question this Court needs to answer, since even if it were a search, it was amply justified under the circumstances. That said, the law supports concluding that the device in this case did not affect a search. The following argument, however, is particularly disingenuous. The defendant argued the warrant was invalid because officers didn't let the judge know they'd be deploying a Stingray device when it got its pen register order approved. The DOJ says this shouldn't matter, as it can find very little pre-2013 evidence suggesting these devices were mentioned in previous court documents. Since the CSS technology was still relatively new in 2013, there were simply no binding cases to direct agents and officers to disregard Smith v. Maryland and get a warrant. According to the government’s research, only a few federal pre-2013 cases referenced “cell site simulator,” “digital analyzer,” “triggerfish,” or “stingray” in a relevant context. (The government found no such cases in California courts.) Well, of course this search came up empty. For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays, telling them to dismiss cases rather than have defendants, judges, or even some prosecutors discuss the tech in open court. The lack of DOJ search results means the NDAs the FBI forced everyone to sign worked. By no means was CSS technology "relatively new" in 2013. Documentation of Stingray devices can be found dating back to 2006 and use of pre-Stingray "digital analyzers" dates back more than 20 years. There wasn't much courtroom discussion because the FBI actively prevented it from happening. And the DOJ knows this, as its "research" likely turned up things like this 2012 NDA on DOJ letterhead telling a New York sheriff's office to STFU about its new toy. With no discussion, there are no binding cases. That's how the FBI wanted it. And it pays off years down the road by making it easier for the DOJ to prevail in a suppression argument without setting precedent it may find inhibiting another half-decade down the road. Permalink | Comments | Email This Story

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Yesterday we posted our comments to the FCC on net neutrality. Tons of others did as well, but I wanted to call out the comment submitted by Senator Ron Wyden. For two decades, Wyden has been a leading advocate of keeping the internet free from burdensome regulations, thus allowing tremendous innovation to occur. This echoes our position as well. However, both of us have advocated strongly for keeping the net neutrality rules in place. As we've pointed out, such rules are actually necessary in keeping the internet free and open -- because access to the internet has become dominated by just a tiny handful of giant companies with a history of bad behavior towards consumers, and repeated statements about plans to defy the internet's end-to-end principles. However, Wyden is particularly annoyed that FCC chair Ajit Pai uses Wyden's own words out of context to support his plan to do away with the open internet rules. You see, in Pai's Notice of Proposed Rulemaking (NPRM), he quotes a letter that Wyden sent back in 1998 about internet regulations: Congress weighed in again two years later. Five Senators—John Ashcroft, Wendell Ford, John F. Kerry, Spencer Abraham, and Ron Wyden—wrote the Commission that “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” These five members further warned that if the Commission “subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.” Later in the NPRM he quotes Wyden's letter again. This success wasn’t an accident. In 1996, President Clinton signed the Telecommunications Act of 1996 and established a national policy “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” In 1998, Senators Ron Wyden and John Kerry, among others, said that if the FCC “suddenly subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services.” The next year, Democratic FCC Chairman Bill Kennard said that it “is not good for America” to “just pick up this whole morass of [telephone] regulation and dump it wholesale on the [Internet] pipe.” This wasn’t controversial. It was the consensus. Accept there's a big problem here. The quotes a completely out of context and misleading. What Wyden was talking about then -- and which he still supports today -- is that it doesn't make sense to apply telecommunications regulations to services on the internet. That is, we shouldn't apply such rules to VoIP and streaming services and websites. Because those are highly competitive markets where anyone can jump in and they don't need such regulations. But that's entirely different than the market for internet access providers and specifically broadband internet access providers. This is a key point that too many people are conflating -- includng Ajit Pai and other anti-net neutrality folks. They insist (some in our comments) that putting in place very limited restrictions on broadband access providers, like those in the 2015 open internet rules, is somehow "regulating the internet." It's not. It's putting in place very limited regulations for internet access. Access is not the internet. Access is the way onto the internet. Wyden, it appears, is none too pleased with Pai misrepresenting his words, and using them to pretend that Wyden supports undoing the open internet rules: The purpose of this comment is to specifically refute the Chairman’s willfully ignorant mischaracterization of a letter I signed in 1998, which this NPRM improperly claims as justification for classifying broadband service providers as an information service in 2017. In the late 90’s, I led the charge against government over-regulation of the content of the internet, including by authoring Section 230 of the Communications Decency Act, a law which maintains free speech on the internet. Similarly, I wrote the Internet Tax Freedom Act, which prohibits internet access taxes and disallows discrimination between digital goods and services and their physical counterparts. My priorities from 1998 to 2017 have not changed. Then, as today, I fought for telecommunications policies deeply rooted in a philosophy of openness, transparency, nondiscrimination, competition, and freedom online. In 1998, that meant working to make sure third-party Internet Service Providers (ISPs) continued to grow from “walled-garden” services to the services we have today. In 2017, that means protecting the internet from the balkanization — from sponsored content and zero rating to paid prioritization and blocking — that will arise from removing the protection of the 2015 Title II Order. The internet and internet access service today both are wildly different than they were in 1998. Back then, large numbers of consumers were starting to take advantage of the whole internet, rather than just a walled-garden service. The key difference, however, was that in 1998 consumers largely accessed the internet through third-party ISPs like AOL, or Prodigy, and those consumers used the infrastructure of the common carrier telephone system to connect to that third-party ISP. Today, those third-party ISPs are few and far between, and the same company that provides the customer with internet service owns the broadband telecommunications infrastructure used to transmit online content. While the Internet Service Providers referenced in the 1998 letter provided what was an information service “over the top” of common carrier facilities, today’s ISPs offer a transmission service to their broadband internet access customers. This key difference means that without the strong protections of common carrier regulations, the broadband providers of 2017 have both the means and motivation to discriminate and profit from playing the internet gatekeeper, for example by turning off content from certain sources or competitors. If we lived in a world where effective broadband competition existed, and a functioning market worked to balance these incentives, that might impact the analysis if — and only if — internet users once again had dozens or even hundreds of ISPs from which to choose. Unfortunately, far too many Oregonians only have access to a single broadband provider for their home. Broadband providers that control their customers’ pathway to the entire internet cannot be permitted to interfere unreasonably with the transmission of content that those customers send and receive. He concludes by asking Pai to "refrain from continuing disingenuous rhetoric intended to deceive Americans about the net neutrality debate." Indeed. Permalink | Comments | Email This Story

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Ever since social media sites like Facebook and Twitter became household names here in America, we've occasionally had really stupid debates about just what type of access to those accounts employers should get from their employees. Some states have even passed laws that would allow employers to demand social media passwords from employees and applicants, presumably so that company reps can comb through private messages and posts shared only with the employee's or applicant's friends. If all of that seems stupid to you, that's because it totally is! But it's not remotely as dumb as what the EU has decided to do in regulating corporations such that they are disallowed from viewing public social media information about an applicant unless it directly relates to the job for which they have applied. To be clear, this new regulation is non-binding at the moment, but it will be the basis of data protection laws set to come out in the future. Still, preventing a company from viewing publicly available information doesn't make much sense. Employers who use Facebook, Twitter and other social media to check on potential job candidates could be breaking European law in future. An EU data protection working party has ruled that employers should require "legal grounds" before snooping. The recommendations are non-binding, but will influence forthcoming changes to data protection laws. The guidelines from the Article 29 working party will inform a radical shake-up of European data protection laws, known as the General Data Protection Regulation (GDPR), which are due to come into force in May 2018. Their recommendations also suggest that any data collected from an internet search of potential candidates must be necessary and relevant to the performance of the job. When it comes to privacy restrictions on matters of social media, it seems to me that there is an easy demarcation line that ought to suffice here: that which is public and that which is not. Most social media sites come with handy tools to keep some or all portions of an account private, or shareable only amongst connections within the platform. If an applicant wants something kept from the eyes of an employer, they need only hide it behind those privacy options. This regulation, however, would restrict a company from accessing public information, which should plainly be viewed as nonsensical. The post notes that recruitment sites like CareerBuilder have seen rates of 70% or so employers that check public social media accounts of applicants they consider hiring. That's as surprising as the sun rising each morning. It's barely even considered creepy any longer to google the names of friends, never mind people you're looking to hire. Somehow I don't see any regulation curbing that across a continent. Permalink | Comments | Email This Story

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The sharing economy -- actually better-described as a rental economy -- is very much in vogue, inspired by the high-profile examples of Airbnb and Uber. But Western enthusiasm pales in comparison to that of Chinese entrepreneurs, who seem to have taken the view that the model will work for anything. For example, alongside the companies that rent out homes and cars, there are now some that will let you pick up an umbrella in a public spot, use it for a short while, and then return it. At least, that's the theory. But the South China Morning Post reports that the Sharing E Umbrella startup ran into a few problems: Just weeks after making 300,000 brollies available to the public via a rental scheme, Sharing E Umbrella announced that most of them had gone missing, news website Thepaper.cn reported on Thursday. The company was launched back in April, and is operating in 11 Chinese cities. Customers borrow umbrellas after paying a deposit of about $3, and a fee of 10 cents for every 30 minutes. Undeterred by the fact that each missing umbrella represents a loss of $9, the company's founder says he hopes to proceed on a larger scale by making 30 million of them available across the country by the end of the year. Here's why he's convinced he's on to a winner: After seeing the launch of bike-sharing schemes across the country, the Shenzhen-based businessman said he "thought that everything on the street can now be shared". Perhaps he should have waited a little before modelling his business on bike sharing. Caixin reported last month that Wukong, one of the smaller players in this crowded market, has just closed down -- after most of its bikes went missing: Wukong operated its 1,200 bikes in the southwestern city of Chongqing. But most of the bikes were lost because the firm didn't embed GPS devices in the vehicles. By the time the company decided the devices were necessary, it had run out of money and failed to raise more Wukong isn't the only rental company that lost track of most of its bikes, as Shanghaiist.com notes: Wu Shenghua founded Beijing-based 3Vbike in February, using 600,000 RMB ($89,000) of his own money to purchase the first 1,000 bikes. But only four months later, he told the Legal Evening News that there were only dozens left. Despite those failures, money continues to pour into the Chinese bicycle rental sector: last month, one of the leading startups, Mobike, announced $600 million in new funding, which it will use it to expand outside China. Let's hope people there remember to bring the bikes back. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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In gaming circles, Capcom is often seen as the company that brought you the Street Fighter and Resident Evil series of games. More recently, Capcom has become notable for its Ace Attorney series of games as well. But in intellectual property circles, Capcom will always be the game studio that pimped SOPA to the public, foisted broken DRM on its customers, and treated Resident Evil customers both to a secondary-market killing DRM that allowed only one play-through of the game and the removal of promised features and only alerted customers to it after sales had begun rolling in. I think it's fair to say, in other words, that Capcom has been known to be almost cartoonishly pernicious. Speaking of which, Capcom also recently shut down a fan-translated play-through of an Ace Attorney game only available in Japan. Consistency! Dai Gyakuten Saiban is an Ace Attorney spin-off starring an ancestor of Phoenix Wright in feudal Japan that has not been released in English. For O and Garbage, who run a Dai Gyakuten Saiban YouTube channel, it’s their favorite Ace Attorney game. “Since I have an import 3DS, I bought the game just to try it out,” she said over reddit private messages. “Dai Gyakuten Saiban drew me in with it’s aesthetics, and then caught me in a death grip with Asougi [the main character’s rival].” Their shared passion for the game lead them to translate it over a period of about 8 months. Their videos consisted of footage of the game as they played it without commentary, with subtitles added using YouTube’s subtitling options. They finished just in time for the announcement of Dai Gyakuten Saiban 2. “We both loved the game a lot,” O said, “and it was a shame that not everyone would be able to experience it because it lacked a localization.” Ok, so a couple of things to note here. First, the videos in question are quite old. It seems they began the series in 2015, so we're talking a couple of years here. Second, O and Garbage say they purposefully made sure there were no ads or monetization on the videos. They were trying to share the game with others that didn't have access to it, not make coin. Third, I've found nothing to suggest that any English version of the game is even planned, nevermind set for release. Most references for the game suggest there is no planned release for the game anywhere outside of Japan. Given that it's already a few years old, the likelihood of translated versions is beginning to drop. So, we have a fan translation of a game play-through in a language for which there is no planned release, with an audience in a market for which there is no planned release. And Capcom took it down. Why? I already know what you're thinking: "Probably a ContentID or bot-driven DMCA notice is to blame." Nooooooope. Sunday, June 25th, O discovered that the entirety of their translated Dai Gyakuten Saiban videos had been taken down by Capcom. The copy of the takedown notice they showed me indicated that they were manually detected, and not a victim of the automated “Content ID” system that is sometimes overzealous in how it flags gameplay videos. I reached out to Capcom about this and they declined to comment. So Capcom manually took down this fan translation, apparently believing that language is a form of DRM and gamers ought to have to learn Japanese and buy the only version of the game that exists in order to get any sort of peek at a play-through. Keep in mind we're talking about a play-through without ads or monetization on it. I'm struggling to come up with an explanation for why Capcom would do this other than...they're just mean, I guess? Mean to very real fans of its games that just wanted to show off how cool the game was to those that had no shot of getting it for themselves because Capcom didn't make it available to them. While she’s not as frustrated as she was when she first found out, O and Garbage are both “bummed,” as Garbage puts it. But neither of them have very many regrets about starting the project in the first place. “There wasn’t an earth shattering revelation or pull to me doing this,” Garbage said. “I just wanted to share a game that was inaccessible.” 8 months of work down the drain. And for what? Permalink | Comments | Email This Story

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Deescalation isn't something most police officers want to talk about -- especially those who allow their unions to do all their talking for them. But shootings by police have achieved critical mass, forcing the issue to be confronted by law enforcement officials. There are no national guidelines for force deployment. Local law enforcement agencies don't have much in the way of best practices or standards, pretty much allowing officers to decide how much force is necessary on their own, relative to the amount of "reasonable fear" officers can later credibly swear to in court. Cities and police departments may be forced to confront this sooner, rather than later, if for no other reason than to limit the bleeding -- both literally and metaphorically. Civil rights lawsuits are filed daily and settlement amounts continue to escalate. Officers in the US kill ~1,000 people per year, with that number being completely untethered from the "safety" of the job -- at least as compared to violent crime rates and/or officers being killed in the line of duty. Generally speaking, there's less crime in America than there has been for decades, but cops are "fearing for their safety" like it's 30 years ago. Over the past several days, police station CCTV video of a Bangkok police officer disarming a knife-wielding man has gone viral. Instead of greeting a threat with violence, Officer Anirut Malee greeted the potential attack with words… and neutralized the threat completely with a hug. For this act of bravery, Officer Malee was given an award by Thailand's national police chief. And he's become the unofficial poster boy for deescalation. Every situation is unique, some will argue, and what worked here won't work for every person wielding a weapon. This is true, but in the US almost every situation involving a mentally disturbed person carrying a weapon is handled the same way: with a deployment of force, most of it deadly. So, arguments about nuance are worthless in a law enforcement climate where officers are allowed to calm their nerves by firing guns. And the situation above really isn't that unique. A recent controversial killing involved mental distress and wielded knife. Only this one happened in Seattle, and ended in the shooting death of a pregnant woman. It's not as though the officers went into the situation unprepared. They were responding to Charleena Lyle's call to report a burglary. Audio recordings of the officers included discussions about her mental health issues and previous police interactions. And the seemingly-inevitable shooting was preceded by cops telling Lyle they weren't going to shoot her. This shooting took place under a DOJ consent decree meant to curb the use of excessive force by Seattle officers. It doesn't necessarily indicate the decree isn't working, but it definitely doesn't suggest the Seattle PD is approaching these sorts of situations with deescalation in mind. It's almost impossible to imagine a US law enforcement officer approaching a situation like that confronting Officer Malee without a weapon drawn and a whole lot of shouting. There's very little reason for officers to change their approach -- not with courts continually deferring to assertions of fear by police officers and cops who do deescalate situations being fired for supposedly endangering other officers. But the problem isn't just going to go away. Cities and PDs need to address this now, if for nothing other than purely mercenary reasons. It costs money to defend lawsuits and more money to pay settlements. Even if officials don't really care whether the police maintain a healthy relationship with the communities they serve, they can't keep asking taxpayers to pay for the sins of government employees -- not when there appears to be little effort made by these employees to improve the level of their service. Permalink | Comments | Email This Story

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Earlier today, we published Mike Godwin's excellent post about why why everyone should file a comment with the FCC about their views on net neutrality (and, again, we highly recommend reading Gigi Sohn's excellent advice on what to include in your comment if you do). I see a lot of comments on that post with the defeatist and cynical response of "it doesn't matter, Pai's already decided what he's going to do." This is self-defeating, dumb and wrong for a variety of reasons. First, everyone was saying the same damn thing about Tom Wheeler three years ago, and that turned out to be wrong. Despite being a former lobbyist for the cable and wireless industries, and his initial indications that his proposed rules would be weak and allow all sorts of mischief, Wheeler was eventually convinced to go in a different direction. Second, this goes beyond just this current FCC. Even if (as is widely expected) Pai ignores these comments and reclassifies broadband anyway, there is still a court case that will follow -- as well as Congress considering what to do. In both cases, having strong, clearly thought out arguments concerning net neutrality on the record that we can show Pai ignored will help possibly stop Pai's plan from moving forward. Pai is not the end of the story. Third: it's the right thing to do. This is a chance to make your voice heard and participate in the process -- and you should take advantage of that. If you don't, and then you whine about how no one listens to you and how the bureaucrats and politicians don't pay attention to the people -- then you are a big part of the problem. You have a chance to weigh in here and you should. With that said, below is what I just submitted to the FCC. My comments talk about how we, as a company, have relied on an open internet, but also why the existing rules have shown real promise in increasing competition. But, more important, it also discusses why I changed my mind on this issue. Many people here -- even long term readers -- may forget that in the mid-2000s, Techdirt was against having official open internet rules, either via Congress or the FCC. We were afraid that these rules would be bad and harmful. We worried that they would be written in a way that would stifle internet innovation. And, most importantly, we felt that they were missing the point: that the true problem was the lack of competition in broadband access. If there was a real focus on competition, net neutrality would fade away as a problem, as there would be competitive reasons to keep the internet open. But, as we note in our comment, over the past couple decades things have changed. We've seen less and less competition, and now near-total domination of the broadband market by a few players. Even worse, those players have long histories of anti-consumer behavior and have repeatedly made it clear that they wish to end some of the basic principles of the open internet in order to put in place additional toll booths, charging extra to successful internet companies for merely carrying traffic. Finally, with the rules of 2015, we've seen a decrease in bad behavior by internet providers -- such as throttling Netflix upstream via interconnection disputes (even though that's not technically a part of the open internet rules). Similarly, we've seen that the new rules have inspired third parties like Sonic and Ting to increase their competitive broadband buildouts. Given all of that, while we're generally worried about any kind of "regulation" for the internet, this was a case where the market had clearly failed to deliver a truly competitive and innovative market, and light touch rules as blessed by multiple courts under a Title II regime clearly made sense, and they have been working for the past two years. Changing that now makes no sense. And if we could change our mind concerning such rules, so can the current FCC. Permalink | Comments | Email This Story

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The weird and persistently silly copyright reform process in the EU Parliament continues to get more and more bizarre and stupid. Last month, we told you about the first committee vote, which we feared would be terrible, but turned out to be only marginally stupid, as the worst parts of the proposal were rejected. Now, two more committees -- the Culture and Education (CULT) and Industry, Research and Energy (ITRE) Committees -- have voted on their own reform proposals and the results are really, really bad if you support things like culture, education, research and the public. And, yes, I get the irony of the fact that the Culture and Education Committee in the EU just declared a giant "fuck you" to culture and education with its vote. Among the many problematic aspects approved by these committees is a filter requirement that would block users from uploading legally obtained media into the cloud. This makes no sense -- especially given that the EU already has additional "you must be a pirate" taxes on situations where individuals are making copies of their legally acquired works. And then there's the whole "snippet tax" which legacy newspapers are demanding because they've failed to adapt to the digital age, and they want Google News to send them money for daring to send them traffic without monetary compensation. The whole concept is backwards... and here, it's been expanded. As Copybuzz explains: The press publishers’ right went from applying to ‘digital’ uses of press to all uses, including print. Aside from the fact that this seems a violation of Article 10(1) of the Bern Convention (which establishes a mandatory exception for ‘press summaries’), the impact of such a massive extension is unfathomable. The definition of press publications has become so broad that infringements to article 11 are impossible to predict and hence prevent. The ‘exceptions’ to the applications of this new right just add to the potential legal uncertainty, as the CULT text states ‘The [publisher] rights granted under this Directive should be without prejudice to the authors’ rights and should not apply to the legitimate uses of press publications by individual users acting in a private and non-commercial capacity. The protection granted to press publications under this Directive should apply to content automatically generated by an act of hyperlinking related to a press publication without prejudice to the legitimate use of quotations.’ This paragraph alone opens such a Pandora Box of unanswered questions, such as: What is a legitimate use of press publications? And who’s the judge of the legitimacy? When are you acting in your private and non-commercial capacity? Content automatically generated by an act of hyperlinking related to a press publication: so that mean that when you share a link on social media and that triggers automatically the appearance of a snippet, you are now officially in trouble? When are you ‘legitimately’ quoting? Is that a new criteria imposed on top of the only mandatory exception globally? And if so, who judges if you comply? None of that sounds good or well thought out. It sounds like the kind of thing that someone not very knowledgeable about the subject would put together after just hearing one side from a bunch of whining newspaper execs. And then there's this nonsense, as summarized by Parliament Member Julia Reda: Incredibly, the ITRE committee – responsible for research and usually a staunch defender of open access – even voted to extend the extra copyright to academic publications, which would make open access publishing virtually impossible. It would stop people from linking to academic content, despite the content itself being free. This would apply to both online publications and print journals. The chilling effects on the spread of academic works and information would be substantial. Yes, linking to academic content will now require payment -- even if it's open access. That's... nuts. And, finally, on the "text and data mining" issue -- which is one of the key points that the EU has been fighting over with this new copyright reform effort, ITRE again severely limited who can do data mining to tiny startups. Again from Copybuzz: The ITRE Committee for example has in its extreme generosity decided to leave the benefit of the Text and Data Mining exception limited to research organisations and ‘start-up companies’, defined as ‘any company with fewer than 10 employees and an annual turnover or balance sheet below €2 million and which was established not earlier than three years before benefiting from the exception’. The message for European start-ups is clear: don’t dare scale up your first three years of business if you want to mine content and if you do, move away from the EU (and move anyway after 3 years)! Never mind jobs and growth, the EU mantra we keep on hearing. Oh, and please do not be innovative any longer once you are an established player: we would not want our economy to be competitive on the international scene. This is really a killer for innovation. There's a massive industry now being built up around machine learning and AI and autonomous machines -- and an awful lot of it actually relies on the ability to do text and data mining on the internet. With this proposal, the (of all things) "Industry & Research" committee is basically saying there shall be no such industry or research in Europe. It's pushing one of the most promising up and coming industries out of the EU entirely. Incredible. It's almost stunning how bad these decisions were. But, of course, some of the legacy copyright industry folks decided to celebrate, claiming that the votes showed that the EU Parliament "would not tolerate free-riding platforms." That's complete nonsense and an insult. Again: things like news aggregators and search engines have been enormously helpful in creating new markets and expanding attention and traffic to sites. If anything, legacy content producers have been "free riding" on those platforms. Hopefully saner heads will prevail as this process moves forward, but the EU seems to be going down a dark and dangerous road on copyright policy. Permalink | Comments | Email This Story

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The PiCar-V is an open source robot learning kit on Raspberry Pi, and this deal even includes your own Raspberry Pi 3 board. Equipped with a wide-angle USB webcam, this car is powerful with three new circuit boards, but less complicated than other cars thanks to its simpler wiring and provided Python code. Go for a drive through your PC, mobile phone, or tablet - this car works with anything. Get it for $150 with a Raspberry Pi 3 board or for $110 without the board for a limited time in the Techdirt Deals store. 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 global war against privacy tools, VPNs and encryption continues utterly-unhinged from common sense, and the assault on consumer privacy remains a notably global affair. Reddit users recently noticed that India's fifth largest ISP, YOU Broadband, is among several of the country's ISPs that have been trying to prevent customers from using meaningful encryption. According to the company's updated terms of service, as a customer of the ISP you're supposed to avoid using encryption to allow for easier monitoring of your online behavior: "The Customer shall not take any steps including adopting any encryption system that prevents or in any way hinders the Company from maintaining a log of the Customer or maintaining or having access to copies of all packages/data originating from the Customer." Of course enforcement of such a requirement is largely impossible. But You Broadband isn't just being randomly obtuse, and while the ISP's TOS is making headlines, this effort isn't really new. Most Indian ISPs are simply adhering to a misguided (and still not adequately updated) set of 2007 guidelines imposed by India's Department of Telecommunications (word doc) demanding that ISPs try and prevent their subscribers from using any encryption with greater than a 40 bit key length if they want to do business in India: "The Licensee shall ensure that Bulk Encryption is not deployed by ISPs connecting to Landing Station. Further, Individuals/Groups/Organizations are permitted to use encryption upto 40 bit key length in the symmetric key algorithms or its equivalent in other algorithms without having to obtain permission from the Licensor. However, if encryption equipments higher than this limit are to be deployed, individuals/groups/organizations shall do so with the prior written permission of the Licensor and deposit the decryption key, split into two parts, with the Licensor." Which is and of itself is rather hysterical, given that since 1996 or so, most folks have considered a 40 bit key length to be the security equivalent of wet tissue paper. In fact, Ian Goldberg won $1,000 from RSA for breaking 40 bit encryption in just a few hours way back in 1997, saying this at the time: "This is the final proof of what we’ve known for years: 40-bit encryption technology is obsolete." And yeah, that was twenty years ago. But this sort of policy is pretty standard fair in India, which is no stranger to censorship, internet filtering, and blind, often-mindless expansion of surveillance. India's government has also been at the forefront of attempting to impose backdoors in encryption, and there's a recent effort in some corners to attempt to ban Whatsapp as well. I've yet to see any ISP successfully enforce this ridiculous governmental restriction (if you're in India and you have, let us know in the comment section precisely how). But it's still part of an over-arching mindset that sees standard, intelligent privacy and security practices as an enemy that must be thwarted. Usually either to expand government surveillance, prop up idiot ham-fisted internet filters (as we're seeing in Russia, China and India), or to erode consumer rights in the face of what are endless attempts to monetize your online behavior. Permalink | Comments | Email This Story

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Despite DHS hints that foreign airports were falling down on the "security theater" job, it appears a few customs officials are more than happy to engage in local versions of "extreme vetting." New Zealand customs officials are way ahead of the DHS in this department, having turned airports into rights-free zones where nearly anything can happen... to travelers. According to an investigative report by New Zealand's 1 news, airport customs officials routinely force up to two travelers each day to give up their electronic devices and passwords for searching. According to the customs agents, the program is designed to look for smugglers by performing a "digital strip search" on the phones and laptops of travelers. This does not require a court order, but the agents do claim to adhere to New Zealand's privacy act. Yes, somehow the stripping of someone's electronic privacy still "adheres" to the privacy act. One would think "smuggling" would be routine criminal act, not worthy of "digital strip searches." One would also think some sort of reasonable suspicion would be needed to proceed with this, as compared to anti-terrorist activities which usually result in rights-violation blank checks being issued to customs authorities. The data shows more than 1,300 people have been subjected to these suspicionless "strip searches" since 2015, with less than a third of those being New Zealand citizens. The majority of those searched are foreigners and it appears visitors to the country should somehow expect delays of up to five hours thanks to this supposedly random vetting process. And there is no option to refuse this additional, highly-invasive search. As Techspot reports, travelers refusing to hand over their electronic devices can be subject to fines of $5,000. That makes it a very expensive trip, especially for foreigners. Extra delays, extra costs, zero privacy -- all in the name of keeping untaxed cigarettes out of NZ or whatever. Permalink | Comments | Email This Story

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Today is the deadline for the first round of the FCC's comment period on its attempt to roll back the 2015 open internet "net neutrality" rules. The deadline is partly meaningless, because there's a second comment period that is technically to respond to earlier comments -- but allows you to just file more comments. However, it is still important to make your voice heard no matter which side you're on. We'll be posting our own comments later today, but first, we wanted to share Mike Godwin's thoughtful discussion on why you should comment and why you should provide a thoughtful, careful "quality" comment, which he first posted to the R-Street blog, but which is being cross posted here. If you count just by numbers alone, net-neutrality activists have succeeded in their big July 12 push to get citizens to file comments with the Federal Communications Commission. As I write this, it looks as if 8 million or more comments have now been filed on FCC Chairman Ajit Pai's proposal to roll back the expansive network-neutrality authority the commission asserted under its previous chairman in 2015. There's some debate, though, about whether the sheer number of comments—which are unprecedented not only for the FCC, but also for any other federal agency—is a thing that matters. I think they do, but not in any simple way. If you look at the legal framework under which the FCC is authorized to regulate, you see that the commission has an obligation to open its proposed rulemakings (or revisions or repeals of standing rules) for public comments. In the internet era, of course, this has meant enabling the public (and companies, public officials and other stakeholders) to file online. So naturally enough, given the comparative ease of filing comments online, controversial public issues are going to generate more and more public comments over time. Not impossibly, this FCC proceeding—centering as it does on our beloved public internet—marks a watershed moment, after which we'll see increasing flurries of public participation on agency rulemakings. Columbia University law professor Tim Wu—who may fairly be considered the architect of net neutrality, thanks to his having spent a decade and a half building his case for it—tweeted July 12 that it would be "undemocratic" if the commission ends up "ignoring" the (as of then) 6.8 million comments filed in the proceeding. There are now 6.8 million comments in the FCC's Net Neutrality docket. Ignoring that is just plain undemocratic — Tim Wu (@superwuster) July 13, 2017 But a number of critics immediately pointed out, correctly, that the high volume of comments (presumed mostly to oppose Pai's proposal) doesn't entail that the commission bow to the will of any majority or plurality of the commenters. I view the public comments as relevant, but not dispositive. I think Wu overreaches to suggest that ignoring the volume of comments is "undemocratic." We should keep in mind that there is nothing inherently or deeply democratic about the regulatory process – at least at the FCC. (In fairness to Wu, he could also mean that the comments need to be read and weighed substantively, not merely be tallied and dismissed.) But I happen to agree with Wu that the volume of comments is relevant to regulators, and that it ought to be. Chairman Pai (whose views on the FCC's framing net neutrality as a Title II function predate the Trump administration) has made it clear, I think, that quantity is not quality with regard to comments. The purpose of saying this upfront (as the chairman did when announcing the proposal) is reasonably interpreted by Wu (and by me and others) as an indicating he believes the commission is at liberty to regulate in a different way from what a majority (or plurality) of commenters might want. Pai is right to think this, I strongly believe. But the chairman also has said he wants (and will consider more deeply) substantive comments, ideally based on economic analysis. This seems to me to identify an opportunity for net-neutrality advocates to muster their own economists to argue for keeping the current Open Internet Order or modifying it more to their liking. And, of course, it's also an opportunity for opponents of the order to do the same. But it's important for commenters not to miss the forest for the trees. The volume of comments both in 2014 and this year (we can call this "the John Oliver Effect") has in some sense put net-neutrality advocates in a bind. Certainly, if there were far fewer comments (in number alone) this year, it might be interpreted as showing declining public concern over net neutrality. Obviously, that's not how things turned out. So the net-neutrality activists had to get similar or better numbers this year. At the same time, advocates on all sides shouldn't be blinded by the numbers game. Given that the chairman has said the sheer volume of comments won't be enough to make the case for Title II authority (or other strong interventions) from the commission, it seems clear to me that while racking up a volume of comments is a necessary condition to be heard, it is not a sufficient condition to ensure the policy outcome you want. Ultimately, what will matter most, if you want to persuade the commissioners one way or another on the net-neutrality proposal, is how substantive, relevant, thoughtful and persuasive your individual comments prove to be. My former boss at Public Knowledge, Gigi Sohn, a net-neutrality advocate who played a major role in crafting the FCC's current Open Internet Order, has published helpful advice for anyone who wants to contribute to the debate. I think it ought to be required reading for anyone with a perspective to share on this or any other proposed federal regulation. If you want to weigh in on net neutrality and the FCC's role in implementing it—whether you're for such regulation or against it, or if you think it can be improved—you should follow Sohn's advice and file your original comments no later than Monday, July 17, or reply comments no later than Aug. 16. If you miss the first deadline, don't panic—there's plenty of scope to raise your issues in the reply period. My own feeling is, if you truly care about the net-neutrality issue, the most "undemocratic" reaction would be to miss this opportunity to be heard. Permalink | Comments | Email This Story

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This week, after we talked about a worrying DMCA ruling for Zazzle, one commenter suggested that selling merchandise eliminates safe harbors, and compared it to an anime fan site. An anonymous reply won most insightful comment of the week by laying out the problems with that comparison: Your comparison is a little silly, Zazzle isn't a "fan site" where the material has an obvious source. A user uploads an image to Zazzle, claims to have the right to use that image, and requests that Zazzle prints that image on a mug, all through an automated process. You then expect Zazzle to be liable down the road if it turns out that the user did not, in fact, have the proper rights? That's an untenable position. Of course, the original commenter there was clearly trying to be thoughtful and polite. Not so with a response to our post about ICE's order to remove all undocumented immigrants, where a commenter whined about us "lefties" saying "to hell with the law" — leading Roger Strong to win second place with what I believe qualifies as an "epic smackdown":

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posted 7 days ago on techdirt
Five Years Ago This week in 2012, we saw the folks who had recently been defeated by the internet try to sneakily get their way. In Europe, that took the form of resurrecting the all-but-dead ACTA inside the Canada-EU Trade Agreement (and writing clueless columns, of course). In the US, it was Lamar Smith trying to sneak SOPA through in bits and pieces in other bills, seemingly having learned nothing from the experience. The public wasn't oblivious though, and soon a backlash led to some of the problems of CETA being fixed and Smith's new bill falling apart. Ten Years Ago This week in 2007, webcasters lost their fight to delay a big royalty hike when the court denied the requested stay, but then SoundExchange surprised us all by actually being just a little bit decent and holding off on actually enforcing the royalties. Sony BMG tried to redirect some of the blame for its rootkit fiasco by suing a company that supplied one of the pieces of copy protection software, while the silly DRM game of AACS was serving only to annoy legitimate customers. And surprise, surprise: a study found ripped DVDs weren't even a big source of piracy compared to file sharing. Fifteen Years Ago The battle over webcasting had already begun five years earlier in 2002, when it was clear that the labels wanted internet radio stations to go away. Meanwhile, after much concern about various pieces of bad internet legislation, it looked like Congress wasn't going to be moving on any of it anytime soon — but that didn't mean we could ignore a new bad bill that would basically eliminate people's fair use rights, which was unsurprising at a time when it looked like only one person in all of Congress really understood or cared about user rights. Also this week in 2002, in a move that would further cement them both as tentpole internet platforms for years to come, eBay bought PayPal. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
Trump's pick to head the FBI -- former DOJ prosecutor Christopher Wray -- appeared before the Senate to answer several questions (and listen to several long-winded, self-serving statements). Wray's confirmation hearing went about as well as expected. Several senators wanted to make sure Wray's loyalty lay with the nation rather than the president and several others hoped to paint him into a Comey-bashing corner in order to belatedly justify Trump's firing of his (potential) predecessor. Wray also spent a lot of time not talking about things he claimed he was unfamiliar with -- covering everything from presidential directives, to Donald Trump Jr.'s Russian emails, to questions about CIA human rights violations that went unnoticed/unprosecuted during his tenure in the DOJ. Sen. Orrin Hatch -- as he did during a recent Comey hearing -- brought up the subject of encryption. Hatch claims he "agrees with Tim Cook," which places him in opposition to Sens. Feinstein and Burr. It also puts him in opposition of the possible new FBI boss, who had this to say about encryption. (h/t Politico's Eric Geller) I think this is one of the most difficult issues facing the country. There's a balance that has to be struck between the importance of encryption, which I think we can all respect when there are so many threats to our systems, and the importance of giving law enforcement the tools that they need to keep us safe. You can already tell where this is going. Encryption is great and all, but what's would be really great is some sort of backdoor-type thingy. Wray continued by swiftly jumping to the other side of the argument -- at least in terms of team uniform. Certainly not in terms of how the "other side" feels about encryption and backdoors. I don't know sitting here today as an outsider and a nominee before this committee what the solution is, but I do know that we have to find a solution. And my experience in trying to find solutions is that it's more productive for people to work together than to be pointing fingers blaming each other. And that's the approach I've tried to take to almost every problem I've tackled. And that's the approach I would want to take here in working with this committee and the private sector. One advantage to having been in the private sector for a while is that I think I know how to talk to the private sector, and I would look for ways to try to see if I could get the private sector more on-board to understand why this issue is so important to keep us all safe. So far, so Comey. New suit in the office, but it fits the same as the last one. Wray thinks both sides should work together but strongly hints the actual work will have to be done by the private sector. The problem, according to a guy who's worked "both sides," is the private sector needs to be more "on-board." And that indicates Wray feels the problem isn't the lack of both sides working together, but the other side not capitulating. That's a problem, and it sounds a whole lot like X more years of Comey. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
The last thing anyone heard about Five Eyes surveillance partnerships via official channels was more than seven years ago. In the intervening years, leaked documents have shed a little light on the information sharing Five Eyes countries (US, UK, Canada, Australia, New Zealand) engage in. But the last Five Eyes agreement released is now more than 60 years old. The Five Eyes group has existed since 1946 and the last document officially published about it comes from 1955. Since then, vast technological changes have altered how national security bodies collect and store information. The modern era of Five Eyes surveillance has only been glimpsed through leaked Snowden documents. Coverage of these documents is noted in Privacy International's FOIA lawsuit [PDF] against a handful of US government agencies. PI has been asking for updated versions of the Five Eyes agreements since late last year. Unsurprisingly, the agencies queried haven't responded. The agencies named as defendants (the NSA, ODNI [Office of the Director of National Intelligence], State Dept., and NARA [National Archives and Records Administration]) have all had at least 100 days to respond to PI's requests. None of them have responded positively. The NSA said all records were exempt from disclosure. The ODNI and NARA haven't responded at all, other than to note the request has been received. The State Department offered to "administratively close" PI's request if it didn't respond to the agency's letter within 20 days -- despite the State Department having done nothing to advance the request during the previous 180 days. As the lawsuit points out, the documents PI is seeking are definitely of interest to the public. The last agreement anyone has seen in full predates the internet itself, where most Five Eyes surveillance now takes place. Many individuals today live major portions of their lives online. They use the internet to communicate with others, impart ideas, conduct research, explore their sexuality, seek medical advice and treatment, correspond with lawyers, and express their political and personal views. They also increasingly use the internet to conduct many ordinary activities, such as keeping records, arranging travel, and carrying out financial transactions. Today, much of this activity is conducted on mobile digital devices such as cellular phones, which “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2489 (2014). The internet has also enabled the creation of greater quantities of personal data about communications, known as “metadata.” Metadata is information about a communication, which may include the sender and recipient, the date and location from where it was sent, and the type of device used to send it. Metadata can reveal web browsing activities, which might reveal medical conditions, religious viewpoints, or political affiliations. It can also reveal items purchased, news sites visited, forums joined, books read, movies watched and games played. Communications – emails, instant messages, calls, social media posts, web searches, requests to visit a website – that utilize the internet can take any viable route to their destination; distance is not a determinative factor. They have the potential to travel around the world before reaching their destination, even if the information is being sent between two people (or a person and an entity) within a single country, or even a single city. The dispersion of communications across the internet vastly increases the opportunities for communications and data to be intercepted by foreign governments, who may then share them with other governments. Knowing who's allowed to do what with this firehose of information is something people would like to know. Unfortunately, a vast network of surveillance programs have been enacted with little oversight, utilizing secret directives and classified interpretations of existing laws. The ODNI may be engaged in more proactive transparency than it ever has in its history, but it still usually takes a lawsuit to force documents out of its hands. It's the ODNI that ultimately decides whether NSA-related documents get published, so targeting both with FOIA requests is a good way to increase your chances of disclosure. But those chances are still almost nonexistent, thanks to national security-related FOIA exemptions. And, if nothing else, the NARA should have some Five Eyes agreement back issues laying around, but once again, filing a FOIA lawsuit is only one of several steps in a long, arduous, and often frustrating process. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
Man's best friend remains a cop's worst enemy. At least, that's what the numbers appear to show. Cops claim the job is dangerous -- hence the ~1,000 people killed every year by law enforcement officers. Trigger-happy cops: "Hold our beer." The exact number of dogs killed by law enforcement officers is difficult to quantify because there is no official record of these deaths across American agencies. Laurel Matthews, a program specialist with the US Department of Justice’s community-oriented policing services office, says fatal encounters are an “epidemic” and estimates that 25 to 30 pet dogs are killed daily by police. Even while suggesting cops are killing ~9,000 dogs a year, the DOJ's specialist still couches the data in cop-friendly language: "fatal encounters." No officers have been killed by dogs, but plenty of dogs have been killed by officers. The fatalities run in one direction. And that estimate may be on the low side. Records of people killed by cops are incomplete, thanks to the DOJ's long-running belief any reporting on police shootings should be purely voluntary. But there's no shortage of reporting on the epidemic, which has deemed law enforcement "puppycide." In Minneapolis, Minnesota, two more dogs have been shot by a police officer for no apparent reason at all. The dogs will survive but the owner is now saddled with medical bills she wouldn't have had if responding officers had handled the situation with more common sense. Returning early from a camping trip, one of Jennifer LeMay's daughters accidentally set off the burglar alarm while attempting to disarm it. LeMay called the company and told them what had happened but apparently officers had already been sent out to investigate. It should have seemed obvious someone was home, but neither officer approached the front door of the house. One climbed over the privacy fence and into LeMay's backyard. When he did, he was approached by one of LeMay's dogs. In the video, posted to Facebook, the dog can be seen approaching the officer, but not in a threatening way. If anything, the dog appears cautious and curious. But the lesson to be learned here is try not to leave your dogs in the yard if police officers might need to be in there for any reason at all ever. The video, with no audio, shows an officer standing in the backyard. He then approaches the house and goes out of camera range. A moment later, he steps backward rapidly with his gun drawn. Ciroc, a white and brown dog, trots toward the officer and stops about 10 feet away. The dog looks distracted but does not appear to be charging the officer. The officer fires, the dog falls and then scrambles to his feet and runs away. At the same time, a black dog runs into camera range. The officer shoots several times and the dog flees. The officer appears to assess the scene for about 18 seconds before he exits the yard by climbing over the fence. LeMay's 13-year-old daughter saw the whole thing from the upstairs window. That probably wouldn't have made a dent in the official narrative, but the incident was also captured by the home's security cameras. Nevertheless, there's still an official narrative: "We are aware of the recent incident involving MPD officers responding to an audible residential burglary alarm and while at this call an MPD officer discharged their firearm, striking two dogs belonging to the homeowner. Anytime an officer discharges their firearm in the line of duty there is an investigation ... by the Minneapolis Police Department's Internal Affairs Unit. We are in the process of reviewing the video posted online, as well as the officer's body camera video. We have reached out to the owner of the dogs and will continue to do so during the investigation." In other words, the MPD is trying to find some way to spin this. The video looks pretty damning. If the officer didn't want to be scared by someone's pets, perhaps he or another officer could have taken the last step first. After the dogs' shooting, another officer knocked on the front door. The 18-year-old explained that she'd triggered the alarm and that it had been deactivated. Then there's this part of it, which shows MPD officers really don't know what they're doing when it comes to dealing with pets. And they clearly don't understand… or care… how attached regular people are to their canine companions. The family didn't instantly take the dogs to the emergency vet because police told the family that "animal control" would be there in minutes to access the dogs' medical needs. No one showed up, LeMay said. The alarm was accidentally set off at 8:50. The alarm was deactivated by the alarm company after notification by the homeowner by 8:54. For some reason, twenty minutes later, cops show up and one of them shoots two dogs. Even if the cops weren't notified by the security company, what made them think the best approach was to invade someone else's private space and shoot two pets on sight before making any contact with the people inside the house? An overabundance of caution would seemingly indicate staying a safe distance from the premises while they determined who was actually inside the house, not entering the backyard with a gun out and shooting animals that had more right to be there than the uniformed, armed interloper. Then there's the fact the officer left after shooting the two dogs. What happened to the burglary investigation? It could be this was the point the other officer finally knocked on the front door of the house, but once again, this step should have been taken long before a cop invited himself into the backyard and try to kill the yard's inhabitants for reacting -- in a non-threatening way -- to his intrusion. Is no one else alive -- humans or pets -- allowed to feel "fear for their safety?" Or is that solely the "right" of cops, who do things to increase the danger of situations and are allowed to shoot their way out of it. Permalink | Comments | Email This Story

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