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The 9/11 Commission has released a followup to its original report, detailing the government's activity in response over the past decade. Unfortunately, those who feel the 9/11 attacks ushered in a new era of government overreach and diminished civil liberties will be hard-pressed to see anything encouraging in this report's concerns and recommendations. Some of the Commission's findings are unsurprising. Yes, terrorist groups and tactics have evolved since 9/11 and yes, the government's counterterrorism efforts seem largely focused on preventing stuff that already happened (this being the TSA's particular area of "expertise"). But the report also warns that our efforts to prevent terrorist attacks are in danger of faltering due to "fatigue" and a "waning sense of urgency," while failing to point out that the government itself is largely to blame. Many Americans think that the terrorist threat is waning—that, as a country, we can begin turning back to other concerns. They are wrong. The absence of another major attack on the homeland is a success in itself but does not mean that the terrorist threat has diminished. The threat remains grave, and the trend lines in many parts of the world are pointing in the wrong direction. We cannot afford to be complacent—vigorous counterterrorism efforts are as important as ever. Without public support, the government will not be able to sustain the robust capabilities and policies needed to keep Americans safe. The government has repeatedly attempted to portray the nation as being under the constant threat of attack. While there are certainly threats out there, the danger posed has been overstated -- and the Commission echoing this only makes it worse. This "fatigue" will only intensify if the Commission's suggestions are acted on. To date, the NSA has been unable to point to much evidence that its broad collection efforts have actually reduced the terrorist threat, much less prevented any attacks. The FBI, whose main focus shifted to counterterrorism shortly after 2001, has been even worse. The terrorist plots "disrupted" by the investigative agency have almost exclusively been handcrafted by the FBI itself. The Commission's "one page summary" (which in true bureaucratic fashion is actually two pages) is a good place to start to get some idea of how many bad ideas are espoused in the 40+ page report, like calling for CISPA/CISA-esque legislation, giving the government even more access to private companies' data in the name of fighting cyberterrorism. Congress should enact cybersecurity legislation to enable private companies to collaborate with the government in countering cyber threats. Companies should be able to share cyber threat information with the government without fear of liability. Congress should also consider granting private companies legal authority to take direct action in response to attacks on their networks. Other suggestions aren't nearly as bad. For one, the Commission suggests an overhaul of DHS oversight, something that is currently handled (in one way or another) by 92 committees and subcommittees. It also encourages more transparency, something the two administrations involved in the post-9/11 "War on Terror" have thoroughly avoided. The National Archives and the administration should work expeditiously to make all remaining 9/11 Commission records available to the public. National security leaders must communicate to the public—in specific terms—what the state of the threat is, how the threat is evolving, and what measures are being taken to address it. But when the Commission begins discussing what it finds the US has handled well post 9/11, the wheels start to come off. Dubious statistics are deployed to portray the terrorist threat as constant and growing. The number of people currently on the government's "no-fly list" is presented without the faintest trace of incredulity, as if "20k+" splashed in bold, colorful text actually means the TSA is keeping 20,000 dangerous individuals from entering US airspace. The report also cites the State Dept.'s statistics showing that terrorist attacks around the world increased 43% from 2012 to 2013. While it acknowledges this increase was almost completely relegated to regions where terrorist attacks have always been common (Pakistan, Iraq, etc.), the Commission goes on to claim this doesn't indicate a decreased threat to the US and cites in support… attacks in Libya and Kenya. While there's no doubt certain terrorists still harbor plenty of enmity towards the US, the likelihood of them succeeding in an attack on American soil still remains where it was on Sept. 10, 2011, Sept. 11, 2001 and every day since then: exceedingly minimal. The report takes a turn for the ridiculous when discussing cyberattacks, going from warning against complacency and inadequate national security measures to praising the US for its highly symbolic, hypocritical and politically dangerous indictment of five Chinese military officers for hacking US companies' computers. The Department of Justice’s May 2014 indictment of five Chinese military officers for hacking into the systems of large American companies has helped bring attention to this problem, but the American people remain largely unaware of the magnitude of the cyber threat. That needs to change. Senior leaders in the executive branch and Congress must describe to the American people, in terms as specific as possible, the nature of the threat and the tools they need to combat it. Things go to completely absurd in the next sentence, which attempts to bring the cyberwar home by quoting copyright industry talking points. Former NSA Director General Keith Alexander has described the ongoing cyber theft of American companies’ intellectual property (IP) as “the greatest transfer of wealth in history.” According to the Commission on the Theft of American Intellectual Property, the annual losses from IP theft are over $300 billion—approximately the amount of U.S. exports to Asia. This ongoing plunder will harm American competitiveness, depress job creation, and ultimately reduce the U.S. standard of living. Elsewhere, the Commission congratulates the TSA on a job well done, never acknowledging the fact that the agency's efforts are largely useless and mainly focused on reacting to the last threat that escaped their pre-boarding processes. (Shoe bomber, eh? Everyone start taking your shoes off!, etc.) Senior leaders agree that America’s layered approach to homeland defense, which recognizes that no single security measure is foolproof, has improved our security. Each layer is effective in its own right, and each is supported by other layers of security. The system begins with intelligence gathered overseas and at home about individuals and organizations who may intend to do us harm. It includes screening systems that prevent suspects from boarding planes or entering the country via other means. At its best, a layered system integrates the capabilities of federal, state, and local government agencies. More bizarrely, the same Commission that pointed out that the failure to share data between agencies allowed the 9/11 terrorists to reenter the country undetected now praises the "response" to the Boston Bombing as an example of "learning the lessons" of 9/11. The Commission glosses over the fact that the same sort of mistakes were made (info not passed along to other agencies, certain intel ignored) that could have prevented the attack. America’s resilience has improved as well. Federal, state, and local authorities have absorbed and applied the lessons of 9/11 over the last decade. For example, joint federal, state, and local exercises staged in Boston over the last several years paid dividends in the well-executed response to the Boston Marathon bombings. Years of investment and planning helped ensure that the consequences of a terrible tragedy were dealt with in a controlled and systematic way. The Commission also plays directly into the intelligence/national security narrative in its choice of language. While pressing for greater transparency and a larger emphasis on safeguarding civil liberties (in hopes of bringing Americans "back on board" with expensive, invasive counterterrorism efforts), the Commission poisons the well with these sentences. Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public. With this tone established, the Commission calls for greater oversight of the NSA, which it does need. But its brief nod towards protecting civil liberties doesn't even rise to the level of lip service. The Commission seems to feel that if the NSA/administration just talk about surveillance programs more openly, the American public will be more receptive. In summary: Americans just need to be told why their civil liberties are being violated and they'll be cool with it. Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation. More transparency and specificity would be appreciated, but a "discussion" on national security isn't one small but powerful group telling everyone else how it's going to be, no matter how many details are included. There are many more troubling assertions and suggestions scattered throughout the report. The Commission revisits the TSA, again praising the no-fly list and making a blatantly false statement in its defense. Before September 11, there were only 16 names on the no-fly list. Today, there are more than 1,000 times that many, along with a redress process to correct mistakes. Bigger isn't always better and the redress process is such a joke that a judge has declared it to be unconstitutional. The Commission also calls for faster implementation of REAL ID and biometric databases. So much for the civil liberties concerns, apparently. With the REAL ID Act gradually being implemented by the states, the country is poised to fulfill our recommendation that the federal government “set standards for the issuance of birth certificates and sources of identification, such as drivers licenses.” But another key recommendation, a biometric exit-tracking system, has still not been implemented, and there is no end in sight. In total, the Commission's report is everything the DHS/NSA/FBI, etc. could have hoped for. It calls for more of the same, only faster, harder and with bigger budgets. Very little of what has sprung in place as the result of hasty post-attack legislation is questioned. The ongoing farce that is the TSA is given a solid thumbs-up. The only problem with the DHS is that it answers to too many masters. The major problem, it seems, is that the American public isn't nearly as comfortable with a no-rules, by-any-means-necessary "War on Terror" as it was in the wake of the September 11th attacks. The Commission believes the only thing really missing is a governmental voice persuasive enough to talk the public out of its civil liberties in exchange for some shiny "safety" baubles. Permalink | Comments | Email This Story

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One part of the FCC's original "open internet" rules that were allowed to remain in place following February's appeals court decision was its transparency rules that are supposed to make sure that if ISPs are mucking with your connection (i.e. breaking net neutrality), they at least have to be "transparent" and tell you about it. A few days ago, the FCC decided to briefly make some noise by randomly reminding ISPs that rule was still in place. Of course, as we've long been noting, when it comes to the interconnection issue, there's been a problem for quite some time where ISPs are selling consumers something (access to websites) and not delivering it. In fact, the interconnection issue has become a way for the big broadband access providers to kill net neutrality without killing "net neutrality." It's been a big loophole where they get exactly what they want anyway -- and it was all done without any "transparency." So, in theory, it might be nice if the FCC stepped in and told the broadband providers that they were clearly violating the transparency requirements by letting its border routers clog without revealing what they're really doing. But is there any chance that the FCC will pick up on that? Hell no. As Karl Bode over at DSL Reports notes, the FCC has a very long history of letting broadband access providers be incredibly opaque in screwing over subscribers. Yet as I've noted numerous times over the last decade, ISPs consistently are allowed to bury all manner of nonsensical fees below the line, allowing them to covertly jack up consumer broadband bills while leaving the advertised price the same. This is technically false advertising, but I've never seen the FCC (or any other regulator) seriously address the practice. The practice not only fools consumers into paying more for service, it skews telecom policy debate and discussion. Most international and domestic price analysis comparisons use the advertised price. The United States already has some of the most expensive broadband in the world (OECD data); imagine how we rank were one to include fees? These days of course there's numerous activation, installation, router and modem rental fees, fees for paying your bill in person, fees for paying your bill via credit card over the phone, etc. These fees, usually communicated "transparently" via mouseprint, are all used to jack up the already-high price of US broadband and television services, but at least some of them are tied to actual costs incurred by the ISP. There's numerous other fees charged that involve companies doing absolutely nothing, and exist solely to pad the advertised price post sale. Bode goes even further highlighting more fees, something we've discussed in the past as well. From there, he concludes: Is letting these kinds of fees continue for a decade the kind of tough enforcement the FCC and Tom Wheeler are talking about? Before anybody can take FCC threats of tough transparency enforcement seriously, they'll need to address the fact they've let ISPs engage in aggressive false advertising on price for almost as long as broadband and television have existed. For pretty much as long as I've followed the FCC, it's bark has been much worse than its bite. It rarely does anything that it should actually be doing to protect consumers. It frequently talks a good game, but action rarely happens. And that's been true through at least the last four bosses. So it seems rather unlikely that any of the broadband guys are actually worried about the FCC's latest "warning."Permalink | Comments | Email This Story

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When it comes to the title holder for shooting down anything interesting made by fans that in any way involves their IP, Square Enix probably takes the trophy. The company that insists that DRM is forever also insists that fan-made games, films, and even weapon replicas shall not exist. Part of the reason Square Enix is found doing this is that it has created and/or owned some truly beloved franchises in the video game medium, including the Chrono Trigger and Final Fantasy franchises. The fans of these properties are exceptionally devoted and passionate to and about them, which naturally leads to the wish to expand the universes even further through their own creation. That Square Enix wields a level 99 copyright hammer at all of these efforts is an unfortunate slap in the face to some of its biggest fans and best customers. It's a crappy situation all around. But it's when the company does this kind of bullying with the timing of a CIA extraordinary rendition agent that we have to wonder if Square Enix is run by masochists. The latest example of this concerns Final Fantasy Type-O, an RPG released for the PSP, a handheld console barely holding on to any relevance in the industry. See, the game came out three years ago, in 2011, but only in Japan and with no English-language version having ever been released. A group of Final Fantasy fans, spearheaded by someone going by the handle SkyBladeCloud, began working on an English translation. That was over two years ago. The proposed patch and its development amassed a decent following. If Square Enix wasn't going to release the game in English, well, hey, at least we could all still play it. Over the next two years, Square stayed silent about the fate of Type-0 in the west. Though Square's executives would occasionally drop vague hints about the game in interviews, there was no concrete news, and the few times I did ask Square about the game, they sent over non-answers like "we have nothing to announce at this time." Meanwhile, the fan translation team kept plugging away, and at the time, project lead SkyBladeCloud said he wasn't concerned about legal repercussions. "I'm not worried since I live in Spain and different laws apply," Sky told me in an e-mail earlier this year. Fast forward to mid-2014 when this entire thing turns into the kind of shit-show that leaves everyone looking dirty. In March of this year, the translators announced the patch would be ready in August. Despite the fact that the project had received a decent amount of attention, it was only then that Square Enix's lawyers reached out to SkyBladeCloud and informed him that their efforts would be fought by the company. They also made some mention of finding some common ground that would keep everyone happy and on the level, though Square Enix has in the past been known to be a turncoat when it comes to those kinds of efforts. Still, non-disclosure agreements were signed and talks went on. People contributing to the translation project discussed internally not releasing their patch if Square Enix actually announced an English release of Type-O, the theorized reason for their lawyers finally reaching out. All of that discussion ceased, however, when SkyBladeCloud suddenly announced the patch would release in early June instead, despite it being incomplete and not ready for prime-time. It was downloaded roughly 100,000 times. Two days later, Square Enix dropped the other shoe. On Tuesday, June 10, Square dropped a bombshell of their own: Type-0 would be coming west, not for handheld systems but as a high-definition remake for the Xbox One and PlayStation 4. (A consequent Vita announcement flub left a bad taste in some fans' mouths, and led many of them back toward the fan translation patch.) Despite denials from SkyBladeCloud, pretty much everyone who knows this story is speculating that he knew the Square Enix announcement was coming and released the patch early out of spite, given a speculated ugly turn of tenor in talks with Square Enix and its lawyers. The timing certainly fits like a jigsaw puzzle piece. As does the sudden legal flurry set forth by Square Enix's lawyers which, despite SkyBladeCloud's earlier theory, caused him to take down the patch and all related online content referring to it. In its place he put up an announcement: Unfortunately I'm forced to remove my posts and pages related to the popular Final Fantasy Type-0 fan translation project. That's right, certain game company thinks that threats and false accusations are the way to treat its biggest fans. For the time being I can't answer questions related to this matter, but I'll write a more comprehensive post about all this once I get the chance. I hope you understand, and as always I appreciate your support (that I might need more that ever in the near future). Thank you very much: ~Sky While SkyBladeCloud's antics might be shady, and they certainly fractured his translation team in a serious way, he isn't wrong: this is all unnecessary. The simple fact is that Square Enix now clearly has no intention of releasing an English version of a 3-plus year old game on the console for which the team was translating. Sure, they're releasing it on some of the newer consoles, but many PSP owners may not have those consoles. The end result is going to be a whole lot of Final Fantasy fans being unable to play the game at all, simply because Square Enix decided to use its copyright hammer. That certainly won't win Square Enix any fans, even if some of the folks doing the translation handled themselves poorly. Permalink | Comments | Email This Story

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Parents have a lot of decisions to make that they may be encountering for the first time -- choosing between formula or breastmilk, letting a kid have more than 2 hours of screen time per day, determining when a kid is mature enough to be left alone, and the list goes on. Decades ago, some of these decisions didn't even exist, but recently, it seems debatable parental choices can be criminal offenses under exactly the wrong circumstances. Here are just some examples of the increasing societal judgment of bad parenting. A 46yo mother left her 9yo daughter alone in a park with a cell phone, resulting in the mother losing custody of her child. And she would have gotten away with it, too, if it weren't for you meddling kids parents and authorities in South Carolina. [url] The case of Justin Ross Harris alleges that he murdered his young son by leaving him in a hot car for hours. There have been similar deaths that were purely accidental (around 30-40 deaths each year), but maybe the publicity of this case will raise awareness and put an end to this particular kind of tragedy. [url] Would leaving a 4yo in a car to go shopping for less than ten minutes sound like horrible parenting in the 1970s? Perhaps it's not surprising that it can be a legal gray area in the present day. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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For years -- since before he was NY State's governor -- we've raised questions about Andrew Cuomo's activities. When he was Attorney General, he often used that position to grandstand around various issues that sounded good politically, but were real world disasters. He browbeat ISPs into policing the internet, when they had no legal obligation to, with bogus threats of lawsuits -- even pushing them to install spyware to snoop on everyone's traffic. He was among the leaders of the group of Attorneys General who wanted to blame high-profile internet companies for the way consumers used them, and he tried to broker a "3 strikes" system to kick file sharers offline. Since becoming governor, he's been embroiled in a bunch of scandals, including having staffers use private email accounts to hide their work from Freedom of Information laws. Now, however, things are heating up. The NY Times has reported that Cuomo's greatly hyped "corruption commission" appeared to be nothing more than a front group for Cuomo himself. That is, he seemed fine with it investigating "corruption" of others, but if it came anywhere near him or his friends, Cuomo's people ordered the commission to back away -- and they did. The crowning anecdote: It was barely two months old when its investigators, hunting for violations of campaign-finance laws, issued a subpoena to a media-buying firm that had placed millions of dollars’ worth of advertisements for the New York State Democratic Party. The investigators did not realize that the firm, Buying Time, also counted Mr. Cuomo among its clients, having bought the airtime for his campaign when he ran for governor in 2010. Word that the subpoena had been served quickly reached Mr. Cuomo’s most senior aide, Lawrence S. Schwartz. He called one of the commission’s three co-chairs, William J. Fitzpatrick, the district attorney in Syracuse. “This is wrong,” Mr. Schwartz said, according to Mr. Fitzpatrick, whose account was corroborated by three other people told about the call at the time. He said the firm worked for the governor, and issued a simple directive: “Pull it back.” The subpoena was swiftly withdrawn. The panel’s chief investigator explained why in an email to the two other co-chairs later that afternoon. “They apparently produced ads for the governor,” she wrote. That last line is fairly incredible, isn't it? They don't even come up with any kind of excuse. They just admit that when the government asked them to stop digging into things involving his friends, they did. The NY Times article is incredibly damning, highlighting how Cuomo promised the committee would be totally independent, even directly saying that it was free to investigate him and his associates. But, the reality was quite different. And Cuomo doesn't seem to care. His response is that of course he was allowed to meddle in the commission's affairs since it was his commission. Here's what Cuomo said when the commission was set up: Mr. Cuomo said early on that the commission would be “totally independent” and free to pursue wrongdoing anywhere in state government, including in his own office. “Anything they want to look at, they can look at �” me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman,” he said last August. Here's what his "office" said now in response to the NYT's inquiry about the story: First, your fundamental assertion is that the Commission was independent. It wasn't. No Moreland Commission can be independent from the Governor's office. It is purely a creation of the Governor's power under the law, which vests subpoena power in the Governor or his designee. Right. Furthermore, Cuomo's response is that it would be a conflict of interest for the panel to investigate the governor, since he had appointed them. Talk about a brilliant anti-corruption strategy. The prevailing party gets to appoint the panel, block its use against any friends or those in the ruling party, and then the panel can only target the Governor's enemies. Damn. That's sneaky. And obnoxious. And, well, it seems to us, incredibly corrupt. Larry Lessig, who (of course) has been studying corruption, explains just how corrupt this whole thing was: The corruption here is different �” and much much worse. If an aid to the chief corruption reformer in NY has corruptly interfered with a corruption investigation, then NY doesn’t need that “corruption reformer” anymore �” because that’s not what he is. If this charge is true, then this is a governor who believes himself above the law. THAT is the keystone of corruption. Lessig notes that Cuomo should resign over this scandal, though it seems unlikely that will happen. Either way, the level of corruption infiltrating our government these days is absolutely sickening. Federal prosecutors are apparently now investigating the situation, though, it's not all that often that those in power will take down "one of their own." Sure, it happens (pretty much all the time if you're in Illinois), but chances are Cuomo will skate by this one as well. Because that's how the system functions.Permalink | Comments | Email This Story

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Could the organization calling itself the "Authors Guild" (from its behavior, better understood as a lobbying arm for big publishing houses) get more fearful and brittle? In response to a typically lopsided AG blog post yesterday, in which the Author's Guild mentioned, but failed to link to, a petition in favor of low ebook prices and fair wages for authors, I left the following comment: For anyone inclined to consider thoughts a bit less hidebound than those of the "Authors Guild," here are a few good posts: More Preston Nonsense Authors United? I Wish It Were So Amazon/Hachette -- The Sounds of Silence Konrath and Eisler vs Richard Russo: The Sequel Not for the first time, my comment didn't make it past the censor moderator. Why? Did I use obscene language? Insult anyone? Engage in unacceptably trollish behavior? Or did I simply link to a few posts that offer opposing viewpoints? It's funny, I write about the AG, and former president Scott Turow, and AG pitchman Richard Russo, and Douglas Preston's self-serving anti-Amazon efforts fairly regularly. And I always link to, and extensively quote from, anything I'm discussing. Not just because I want my readers to be able to make up their own minds. Not just because I have some integrity. But also because I want people to see exactly what the AG and its legacy-publishing shills are saying. Their positions are so illogical, so self-contradictory, and so self-serving that I believe the more light I can shine on them, the better people will understand what the AG and its people are really about. But when an organization tries to conceal what its critics are saying, it's fair to surmise that something else is driving its behavior. And I don't know what that thing could be other than fear of contrary opinions the organization senses are more compelling than the organization's propaganda. Because really, what can you say about an organization so brittle, so insular, so fearful... that it won't even permit a few contrary links in a comment section? What can you say about an organization calling itself an "Authors Guild"... that censors the voices of authors whose opinions it doesn't like?Permalink | Comments | Email This Story

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Back in March, we reported on an interesting case where a UK court ruled that information stored electronically is not property. Now senior judges in New Zealand have agreed (found via @superglaze), as the Lexology site explains: Jonathan Dixon, the Queenstown bouncer who accessed CCTV footage of the England Rugby Captain in a bar during the 2011 Rugby World Cup, appealed his conviction for dishonestly obtaining property on the basis that the digital data did not come under the definition of 'property' in the Crimes Act. The New Zealand Court of Appeal yesterday agreed (but substituted his conviction with one of dishonestly obtaining a benefit). Lexology goes on to explain: The accepted legal position is that confidential information is not property, but protected by the law from abuse, as a matter of 'conscience' arising from the circumstances in which the information was obtained. The New Zealand Court of Appeal considered that a computer file's "stored sequence of bytes available to a computer program or operating system… cannot meaningfully be distinguished from pure information", and therefore was not 'property' for the purposes of the Crimes Act. Although two court cases do not make a definitive answer, it's significant that they were in different, albeit related, jurisdictions, and that the judges based their decisions on very different legislation. It certainly adds fuel to the already heated debate about whether it is possible in any sense to "steal" digital files containing copyright material. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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A couple of years ago, we wrote about an interview with disgraced lobbyist Jack Abramoff, in which he explained one of his most effective strategies in getting legislation in his favor. The key trick: find key staffers working for elected officials and tell them they had a job waiting for them whenever they wanted it. Here was the key bit: And he would ask them: "When do you want to start?" If they said "two years," he knew that the guy was already working for him, but on the inside. As he says "I really hired him that day," even though he went on for two more years working as a chief-of-staff to someone in Congress. Just yesterday, we wrote about Rep. Howard Berman -- famous for his support of ever expanding copyright law -- who has now been hired to lobby for the MPAA. Berman, the former Congressman, is obviously the headline piece. But, along with that news came some further news that didn't get as much attention -- which is that in hiring the firm that Berman works for, Covington & Burling, the MPAA didn't just hire Berman, but also Aaron Cooper, who was Senator Patrick Leahy's chief intellectual property staffer, and the main guy behind the PROTECT IP Act (PIPA), the Senate's version of SOPA. The MPAA, of course, was the main driving lobbying force (along with the US Chamber of Commerce) to get SOPA/PIPA approved. And here we are, just a couple of years later, and the Congressional staffer who was the main internal architect of that bill is... now officially paid by the MPAA. The old "revolving door" continues to swing round and round. Jack Abramoff would be proud.Permalink | Comments | Email This Story

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Having already discussed The Intercept's publication of the federal government's guidelines for declaring people terrorists to put on its various watchlists (including the infamous "no fly list"), it's raising some serious questions about why the DOJ had been fighting so hard to keep these guidelines from coming out. As we've discussed, in basically any case challenging the various government watchlists, the DOJ has freaked out and claimed "state secrets" to try to get the cases thrown out entirely. Just a few months ago, Attorney General Eric Holder directly claimed that revealing these guidelines would be helping the terrorists. In that legal filing, Holder does the "state secrets" dance and then says: I agree with the FBI that the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed, for the reasons discussed in the FBI's classified declaration, could cause significant harm to national security.... If the Guidance were released, it would provide a clear roadmap to undermine the Government's screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security. Of course, now that the Watchlisting Guidance is out, we can take a look and see if that's actually true. And... Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list. What the guidelines do show, however, is the level of extra scrutiny people on the list are subject to. And, as we noted, much of that certainly appears to violate the 4th Amendment (or, at the very least, open itself up to a pretty clear 4th Amendment challenge in the courts). So, once again, it seems like Holder's real reason to declare "state secrets" had little to do with "national security" and a hell of a lot to do with "DOJ security" in keeping its illegal and unconstitutional practices from further public and judicial scrutiny.Permalink | Comments | Email This Story

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As we recently discussed, it's becoming readily apparent that the FBI's most vaunted counter-terrorism wins are almost all stings for "crimes" they made up all by themselves and then coerced others to join. Even for those that don't have a problem with this kind of practice in theory, it has to be jarring to learn just how many of these "terrorists" are either suffering serious mental or social illnesses or have had their confessions beaten out of them. By all appearances, it looks pretty clear that the FBI is bumping up their "win" statistics on the backs of these highly questionable stings. So of course local law enforcement is getting in on the action as well. Take the police in Washington D.C., for instance, who are featured in a Washington Post story detailing how they invent armed robbery plans whole-cloth and then recruit civilians to join up shortly before arresting these future-criminals. Some of the plots the police of devised are quite detailed and terrifying, involving robbing liquor stores and targets that are supposedly drug dealers. After discussing the plans with an undercover cop, everyone is then arrested and charged with a variety of "conspiracy to commit" charges. According to some experts, the government is on firm legal ground with regards to entrapment. The government is on solid legal ground, experts say, when it comes to fending off allegations that suspects were set up — or entrapped — by the police. Even if the government entices the defendant, the target has to show that he was not predisposed to commit the crime. Sure, and if you're a defendant in one of these cases, good luck convincing anyone that you didn't have a predisposition for the crime you were tricked into thinking you were going to commit. Again, it's easy to opine that these are bad people, but that doesn't take into account mental illness and pressure applied by undercover officers eager to bolster their arrest statistics. According to reports, that kind of pressure included giving minors alcohol and/or taking them to strip clubs, because nobody has ever made themselves out to be something they're not when drunk or in the presence of naked members of the opposite sex. The question becomes whether anything like the made up crime would have ever happened had it not been first invented by the police. “When you have the government offering guns or the getaway car and making it really attractive, you have to ask: Is this an opportunity that would have really come around in real life? Would this person have been able to put together this type of crime without government assistance?” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York who has studied undercover policing tactics. It's even worse when the police engineer aspects of the made up crimes in the sting in order to manufacture longer sentences for the would-be criminals they ensnare. Tinto and others also take issue with the government’s ability to essentially engineer tough penalties by controlling the details of the made-up crime. Part of the reason the District cases have been so successful, according to defense lawyers, is that the potential jail time for the federal conspiracy charge is steep enough that many defendants are more inclined to make a deal with prosecutors than risk losing at trial. The global problem in all of this is the aim: this is all about bolstering crime-fighting statistics rather than responding to any actual crimes or criminals. Will the police likely get some violent criminals off the streets with this tactic? Sure, but so could actual police work and, as I indicated, that isn't what this is all about. On top of that, the questions raised by the tactic are serious and some of the people caught up in all this probably aren't benefited most by engineered jail time. Add to all that questions about who the police are generally going to look towards as targets of this kind of sting operation (gasp, minorities), and we should be left wondering why they aren't fighting the crime that exists rather than making up crime that otherwise wouldn't. Permalink | Comments | Email This Story

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We've already written about The Intercept's publication of the US government's guidelines for declaring you a possible terrorist subject to extra scrutiny whenever you run into a government official. But we wanted to do a second post on the part that focuses on just what kind of extra scrutiny you get if you're on the list. Basically, it's dig through every aspect of this person's life that you can: In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database. Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition�””e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”�”details about pets from veterinarians or tracking chips�”is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals. In the wake of last month's Wurie decision at the Supreme Court, I'm curious how much of that is now violating the subject's 4th Amendment rights... It seems likely that at least someone is going to challenge these rules.Permalink | Comments | Email This Story

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While there has been blissfully only minor advancement in the US about the non-existent disease known as "internet addiction", the same can't be said of certain other countries. South Korea has a version of it, which mostly involves shutting down online video games for a certain portion of the day. But the real mover and shaker in this made up land of dependency is China, where six hours online a day makes you an addict (someone tell my employer!) and they've actually gone so far as to create internet addiction "camps" where people learn to eschew cat videos, Facebook posts about food, and ostensibly the news posted online that they're probably being horribly abused at that very camp. That seems to be the tone of the reporting now that one family has been compensated $120,000 after their 19 year old girl was killed at one of these camps. Earlier this year in May, LingLing passed away in a hospital in Zhengzhou, Henan province. It was reported by the Chinese media that she actually died before reaching the hospital. LingLing was reported to be attending Zhengzhou Boqiang New Idea Life Training School. While at addiction camp, LingLing was singled out by her instructors. She was reportedly taken to "extra" lessons on more than one occasion. According to another girl that attended the addiction camp, LingLing was singled out. According to the media and government reports, LingLing was beaten and dropped onto hard surfaces. The Zhengzhou coroners office reported that LingLing died from extreme head trauma. I guess I'm not really certain what picture I had in my head when I imagined an internet addiction camp, but it sure as hell didn't involve young women getting their brains beaten so badly that they expire. Also, that hundred-and-twenty-large seems a little light, considering the horror this family had to go through after being duped into believing such an internment was necessary to begin with. It all sounds worse when the report goes on to state that incidents of abuse have happened at these camps several times before as well. So, while the "camp" in question, the one that essentially murdered a young girl, has had its license revoked, Chinese parents are going to have to start asking themselves which is more dangerous: "internet addiction" or the camps that purport to fix internet addiction. Permalink | Comments | Email This Story

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Jeremy Scahill and Ryan Deveraux, over at The Intercept have a giant scoop: the full 166-page guidebook that US law enforcement uses to declare someone a terrorist who deserves to be on one of its various watchlists from the no-fly list to the "terrorist screening database." We've had plenty of stories about the no fly list and the TSDB, and the ridiculous lengths that the US government has gone to to keep anyone from knowing if or why they're in any of these databases -- leading to a series of lawsuits from individuals who were put on that list under very questionable circumstances. We were happy last month to see that the process for getting off of these watchlists was declared unconstitutional, but the lawsuits over these watchlists suggest that they are prone to abuse and error. We were particularly disturbed to find out in a recent lawsuit that the US government actually has a secret exception to reasonable suspicion for putting people on the list. The document released by The Intercept is quite revealing, and shows that President Obama has massively expanded the criteria for getting people onto the list. In fact, as the report notes, the President "quietly approved" an expansion "authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist." The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted. As you might imagine, given all the stories about people being put on various watchlists even though they're clearly not terrorists, the guidelines are crazy expansive: The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation. And obviously this goes way beyond just boarding (or not boarding) airplanes. As the report notes, if you're pulled over for speeding and the police run your name, if you're on the watchlist, the police will get a notification, leading them to automatically think that you're a suspected terrorist. The guidelines also contradict themselves directly. At first it says that: To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES. Okay. So you need to have a factual basis for reasonable suspicion, right? Wrong: In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit. So, it can't just be a hunch. It has to be a really good hunch seems to be the lesson. The report also likely reveals the "secret" exceptions to reasonable suspicion that the judge refused to reveal in the Rahinah Ibrahim case we wrote about. She was kept on the watchlist despite there being no reasonable suspicion. One of the exceptions is the "family member" loophole (which some had suggested was likely the issue in the comments to our story about Ibrahim). But it appears the exceptions are much broader: There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met. One is clearly defined: The immediate family of suspected terrorists�”their spouses, children, parents, or siblings�”may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad�””associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still�”individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard. And then there's the fact that the new "threat-based expedited upgrade" program, which was put in place following the US failing to notice that the famed "underwear bomber" got on his plane despite being on the watchlist. So, rather than recognize that the list was broken, the administration just added a new category, allowing a single White House official the unilateral power to elevate entire "categories of people" into a special list for extra scrutiny. This extraordinary power for “categorical watchlisting”�”otherwise known as profiling�”is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation. The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.” Basically, as most people suspected, it appears the government has broad and, until now, secret powers to effectively ruin someone's life by placing them on one of these watchlists... with no legitimate way to get off.Permalink | Comments | Email This Story

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The Texas Dept. of Public Safety has apparently decided that if you'd like to be allowed to drive a vehicle in the state, you'd also perfectly fine with a criminal booking-style fingerprinting and having those immediately uploaded to a criminal database (that reps swear isn't a criminal database). For years, Texas has only required a thumbprint as a minor security measure when obtaining a driver's license or ID card. That has now changed. It's unclear exactly when this went into effect (the Texas DPS made no announcement of this policy change), but longtime Dallas Morning News consumer affairs columnist, Dave Lieber, experienced it firsthand back in June. The other day at the Texas driver’s license center, while paying for my required in-person renewal, the clerk said it was time to take my fingerprints. What? Really. Quietly, earlier this year, the Texas Department of Public Safety began requiring full sets of fingerprints from everyone who obtains a new driver’s license or photo identification card. This applies to those who come in as required for periodic renewals, but it doesn’t apply to mail-in renewals. Not only that, but since 2010, Texas law enforcement has been running facial recognition searches on DPS license photos with its Image Verification System. When Lieber exposed this, thanks in part to a former DPS employee (who noted the full set of prints are uploaded to AFIS [Automated Fingerprint Identification Service], creating a record in criminal databases if no previous record exists), a spokesman for the agency said it was perfectly legal plus pretty awesome at fighting crime. A DPS spokesman tells me that the 9-year-old law makes a clear reference to fingerprints so the new fingerprint collection system is legal. DPS spokesman Tom Vinger says, “It is important to understand that the purpose of this process is to combat fraud, identity theft and other criminal activity, including potentially thwarting terroristic activity. Making sure that people are who they say they are in the process of issuing government identification is a critical safeguard to protect the public against a wide array of criminal threats.” The law Vinger refers to is Transportation Code 521.059, a lengthy bit of which he quotes in a longer response to Lieber's article. The Department is confident in its legal authority to collect 10-prints. The authority exists in current statute, including Transportation Code 521.059, (see below), and in current administrative code. The technology upgrade was funded by the Texas Legislature… Sec. 521.059. IMAGE VERIFICATION SYSTEM. (a) The department shall establish an image verification system based on the following identifiers collected by the department: (1) an applicant’s facial image; and (2) an applicant’s thumbprints or fingerprints. (b) The department shall authenticate the facial image and thumbprints or fingerprints provided by an applicant for a personal identification certificate, driver’s license, or commercial driver’s license or permit using image comparison technology to ensure that the applicant: (1) is issued only one original license, permit, or certificate; (2) does not fraudulently obtain a duplicate license, permit, or certificate; and (3) does not commit other fraud in connection with the application for a license, permit, or certificate. (c) The department shall use the image verification system established under this section only to the extent allowed by Chapter 730, Transportation Code, to aid other law enforcement agencies in: (1) establishing the identity of a victim of a disaster or crime that a local law enforcement agency is unable to establish; or (2) conducting an investigation of criminal conduct. (d) Expired. Added by Acts 2005, 79th Leg., Ch. 1108 (H.B. 2337), Sec. 4, eff. September 1, 2005. Vinger may be correct that the DPS is allowed to collect prints as the result of this law, but it's not specifically ordered (or permitted) to collect all 10 prints. Note that the section quoted says "thumbprints or fingerprints." This "or" is important. A look at the actual amendments to existing law shows that the DPS isn't actually required to demand a full set of prints. The amendments also refer to 521.042(b), which states the following: (b) The application must include: (1) the thumbprints of the applicant or, if thumbprints cannot be taken, the index fingerprints of the applicant; So, there's no legal backing to Vinger's claims. Sure, the DPS is technically permitted to collect all 10 prints, but only because nothing specifically forbids this practice. But the law does not demand all 10 prints be provided in order to obtain a license or identification card. The law only asks for thumbprints or index prints. This is why it was rolled out quietly. The DPS has no legal "authority" to demand a full set of prints before handing out a license. What it can do, however, is ask for them. At this point, supplying a full set of prints is purely voluntary. The DPS can't prevent you from obtaining a license if you refuse, but the whole system is set up to make it appear as though it's mandatory. Even one of the legislators who crafted the bill stated the intent of the law was never to allow collecting a full set of prints from every person with a Texas drivers license. Bill co-author Juan M. Escobar, who in 2005 was a state representative from Kingsville, said he recalled the point of his bill was to prevent immigrants living in the U.S. illegally from obtaining a driver’s license. “I think the intent of the bill was to ensure that the individual was the right person that was applying for a driver’s license,” said Escobar, now county judge in Kleberg County. “The intent was to avoid the privacy issue violation. We’ll just do the thumbprint or the index finger. That was my intent.” He added, “If they’ve gone past the law, there’s nothing that gives them that authority.” Escobar mentions illegal immigration. DPS rep Vinger mentions terrorism. Both used tangential hot-button issues to further the amount of information demanded by Texas in exchange for a highly-essential part of everyday life. But the DPS is now exceeding even the questionable aspects of a law predicated mostly on fear. (As Lieber points out in the comments, even the 2005 law was partially motivated by terrorism fears, prompted by Gov. Perry's 2005 Homeland Security Action Plan. [pdf, p. 36]) The state gave the DPS the authority to collect index prints if thumbprints couldn't be obtained. For whatever reason, the DPS -- nearly a decade later -- has decided to roll out a very imaginative reading of the 2005 statute. Worse, it's claiming its interpretation of words that aren't actually there is "legal authority." And when questioned, it's falling back on "terrorism" and but-surely-you-want-criminals-to-be-caught rationalizing. Permalink | Comments | Email This Story

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Back in March, we wrote a story explaining why the National Telecommunications and Information Administration's (NTIA) decision to "relinquish" what little "power" it had over ICANN was no big deal. It's sort of an accident of history that NTIA (a part of the US Commerce Department) even had any "mandate" over the IANA functions -- which manages domain name allocations. The "control" over ICANN/IANA has always been mostly a paper thing. ICANN is really run by a large group of folks -- the so-called "multistakeholders." I think many of us can agree that ICANN policies are currently a mess, but that has nothing to do with the NTIA's technical connection to it. If anything, the NTIA's paper link to ICANN only served to undermine the goals of good internet governance, because it allowed other countries to falsely imply that the US government "owned" or "controlled" the internet -- opening up dangerous attempts for foreign governments to try to really take control of the internet, wiping out the multistakeholder process and replacing it entirely by governments. That would be dangerous. Unfortunately, as we expected when we wrote our original "this means absolutely nothing" post, some people decided to freak out about it. They've insisted that NTIA's move is the US handing over the internet, potentially to foreign governments. That those same individuals have previously insisted that things like "net neutrality" are the "government taking over the internet" -- and the inherent contradiction therein -- is never really mentioned. Unfortunately, some in Congress are trying to make a big deal out of this by totally misrepresenting what's been going on. In response, the NTIA has told everyone to calm down, but the absolute best response has to be from the "father of the internet," Vint Cerf, the guy who set up ICANN in the first place, giving his best "knowing uncle storytime" explanation of why everyone should calm down about all of this, and how, if anything, it should lead to better oversight of the ICANN IANA process. Oh, and if you watch all the way through, you might just see Vint Cerf riding a grumpy cat under a double rainbow. Because this is the internet. Permalink | Comments | Email This Story

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The plot of the classic science fiction short story, Flowers for Algernon has been adapted into a wide range of other stories, TV shows and movies. Upgrading a person's intelligence through some unnatural means provides a temporary fix -- resulting in an addiction to intelligence augmentation (or other complications). In reality, some colleges are starting to deal with students abusing drugs meant to treat ADHD but which also seem to increase mental focus in general. However, other methods that don't use prescription medication to boost brainpower might be harder to regulate. Here are just a few links on the subject of boosting brainpower. The number of people playing around with trans-cranial direct current stimulation (tDCS) is growing -- because zapping your brain with a few volts seems harmless when the upside could be faster learning or relief from anxiety. People experimenting on themselves with about $20 worth of simple electronics could lead to some cool discoveries.. or a lobotomized population of internet users. [url] People use way more than 10% of their brain capacity. And 37% of all statistics are completely fabricated. [url] Bacteria that live in our intestines could have a significant influence on our brain chemistry. The microbes that live in our bodies are not well studied, but maybe someday researchers will try to engineer bacteria to symbiotically boost our brains. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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We've written plenty of times about the dangers of Executive Order 12333, which is the Presidential order signed by Ronald Reagan that gives the NSA tremendously broad powers of surveillance, so long as the work is done overseas. And as long as information is collected overseas, it is used to spy on many Americans. Senators Wyden and Udall have implied that Executive Order 12333 enables the CIA to get around prohibitions on spying on Americans, and just last week a (recent) former top State Department Official, John Napier Tye, revealed that the real surveillance powers happen under Executive Order 12333 -- and the other programs we've all been debating (Section 702 and Section 215) are merely used to "backfill" what can't be collected under EO12333. The Washington Post has now revealed that the Privacy and Civil Liberties Oversight Board is turning its attention to EO 12333 -- which is important. Unlike Sections 215 and 702, Congress doesn't (currently) have any oversight over activities done under EO 12333. Basically, there is no oversight at all. The Congressional intelligence committees have flat out admitted that they receive no reports concerning the kind of surveillance done under that authority, as it's not under their mandate. The Washington Post has also published a graphic from the Snowden files, that highlights how EO 12333 is the main surveillance program, and everything else is just the exception. It's a "decision tree" where the focus is on using EO 12333 for as much as possible and only resorting to other programs if absolutely forced to: It will be interesting to see what the PCLOB is allowed to learn, and then what it's able to do in response. The PCLOB did a fantastic report slamming the (il)legality and (un)constitutionality of Section 215, but was unfortunately weak in its analysis of the Section 702 program. One hopes that the level of analysis given to EO 12333 will be similar to the former, rather than the latter.Permalink | Comments | Email This Story

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So the war of words over interconnection has continued. Last week, we wrote about the back and forth between Verizon and Level 3 on their corporate blogs concerning who was really to blame for congestion slowing down your Netflix video watching. As we noted, Level 3 used Verizon's own information to show that Verizon was, in fact, the problem. Basically, in spite of it being easy and cheap, Verizon was refusing to do a trivial operation of connecting up a few more ports, which Level3 had been asking them to do so for a long time. In other words, Verizon was refusing to do some very, very basic maintenance to deliver to its users exactly what Verizon had sold them. Earlier this week, Verizon went back to its blog with another blog post from David Young, this one even snarkier than the last. Snark can be fun, but if the underlying message is completely bogus, you're going to run into trouble. In fact, Young's underlying message is so weak, that he more or less admits to absolutely everything that Level 3 was claiming in its post -- while pretending it's Level 3 that actually admitted fault! Last week, Level 3 decided to call attention to their congested links into Verizon’s network. Unlike other Content Delivery Networks (CDNs), which pay for connections into ISP networks to ensure they have adequate capacity to deliver the content they have been hired to deliver, Level 3 insists on only using its existing settlement-free peering links even though, as Level 3 surprisingly admits in their blog, these links are experiencing significant congestion. Level 3’s solution? Rather than buy the capacity they need, Level 3 insists that Verizon should add capacity to the existing peering link for additional downstream traffic even though the traffic is already wildly out of balance. Except... no. Level 3 did not, in fact, call attention to its congested links. It showed that Verizon was the one making them congested by refusing to do the most basic thing that Level 3 had asked them to do: open up some more ports. The claim that Level 3 needs to "buy the capacity" it needs is simply wrong. As was quite clear, Level 3 has plenty of capacity. The problem is the bottleneck... and the bottleneck is Verizon. And Verizon is refusing to fix that bottleneck unless Level 3 pays up. And not the cost of the upgrade. Remember, Level 3 offered to pay the cost of the upgrade itself. Verizon, instead, is trying to change the nature of the deal, allowing its border routers to clog on purpose to force Level 3 to pay a totally new kind of fee to free up the bottleneck that Verizon itself created. It's basically acting as a classic troll under the bridge -- failing to deliver what it promises both sides of the internet market, unless it can squeeze a ton of extra cash from Level 3. Most of the rest of Verizon's snarky post takes a fight that Level 3 had with Cogent a decade ago concerning peering totally out of context. In that fight, it's true that Level 3 cut off peering to Cogent, arguing that Cogent was using much more traffic than Level 3, but that was a true peering arrangement between two transit providers, rather than a connection between a transit provider and the monopoly provider of the end users (who has sold connectivity to those users with the promise that it will enable them to access content from any website). The traffic ratios argument between a downstream/last mile provider and a backbone/transit provider is ridiculous. The traffic ratios have always been way off in part because the broadband providers themselves have always offered more downstream bandwidth than upstream bandwidth. So, Verizon sets up a world in which the traffic ratios are always going to be off... and then complains that the traffic ratios are off and thus it needs truckloads of extra cash just to connect up a few more open ports? Yikes. Verizon's snarky post simply confirms what many of us have been saying from the beginning. The company is deliberately letting its border router clog up because it wants to ring a lot more money out of other companies, based on a plan to twist old peering disputes between transit providers into a dispute about transit-to-last mile connections... when the traffic ratio has always been way off, in part because of how Verizon itself designed its network! That takes incredible hubris... or incredible market power. Maybe both.Permalink | Comments | Email This Story

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For years, Hollywood's biggest player in Congress when it came to copyright policy was Rep. Howard Berman. He was often referred to as the Representative from Disney for his willingness to always push for more expansive copyright policies. While he was sometimes called the Rep from Hollywood, I believe his actual district was "adjacent to" Hollywood, though it "included parts of" Hollywood as well. Either way, in 2012, thanks to redistricting, Berman went up against another longterm LA Representative, Brad Sherman, and lost. Berman quickly became a lobbyist, and now it's come out that he's officially lobbying for the MPAA on "issues related to intellectual property protection" because of course he is. Not much else to say about this other than it's yet another example of the revolving door and the nature of back-scratching that happens in DC.Permalink | Comments | Email This Story

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Reminder: If you support our crowdfunding campaign today your support will be immediately doubled thanks to matching funds. » As we recently explained, the type of reporting we do isn't always conducive to advertising support -- in fact, our work on the SOPA fight caused us to lose a significant amount of revenue, and the blog itself operates at a loss. Earlier this month we announced that we were running a crowdfunding campaign on BeaconReader to fund our net neutrality coverage in particular -- as that's another subject that deserves deep-dive coverage, and which traditional advertisers don't want to go anywhere near. One of the great things about working with BeaconReader was that they were able to line up matching funds, so that every donation to us is automatically doubled by the matching donors. Today we're happy to announce that the first two matching donors have been revealed as Twitch and NameCheap -- two companies that are dedicated to preserving an open and free internet, and who wanted to support our coverage in this way, by multiplying the impact of anyone who donates. We're also announcing that Reddit founder Alexis Ohanian has backed our project as an "Event Sponsor," for a net neutrality salon that we'll be holding later this year. We're excited to have this support, and just as excited to see so many of you step up to back the project as well. We're about a week away and there's still a long way to go, but the initial support has been fantastic. If you enjoy what we do, and would like to see it continue (and go deeper and be more involved), please consider backing the project in the next week and thank Twitch and NameCheap for immediately doubling the impact of your support. If we succeed, we'll be able to devote more time and resources to our net neutrality reporting, including bringing in additional voices, meeting with key players, and just generally spending more time digging into the details of this important topic -- rather than having to spend it convincing advertisers that, no, we don't want to force a giant annoying video to play on the site before you can read anything, because that's not how we treat our community. It's great that Twitch and NameCheap were willing to step up via BeaconReader, to show their commitment to dedicated, independent reporting on these important topics. You can help by supporting our coverage right now » Permalink | Comments | Email This Story

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A couple days ago, someone sent me the lawsuit that Ultra Records and Ultra International Music Publishing had filed against Michelle Phan, an incredibly successful "YouTube star" who has over six million subscribers to her YouTube channel where she shares makeup tips. Ultra, a label for artists like DeadMau5 and Kaskade, sued, claiming that Phan used at least 50 of the songs it holds a copyright on without a license. The reason it's both the record label and the publishing arm that's suing is that they're going after her for both reproduction and sync rights (you need a sync license if you use music with a video). Of course, it's also important to note that, these days, Ultra is effectively Sony Music under a "strategic alliance" in which Sony basically runs all of Ultra. Phan's spokesperson is apparently claiming that she had a license. Ultra insists she did not. Perhaps as interesting, rather than just claiming statutory damages of $150,000 (the maximum for willful), it leaves open the possibility of going after her for "actual damages." This almost never happens in a copyright lawsuit, in part because actual damages are nearly impossible to prove (often because there are none). However, Phan is apparently making a ton of money these days, so the company seems to be leaving open the possibility that it can score some of the "profits" from the video. Though, I imagine they'll have a hell of a time proving that the profits are due to the music, rather than the other parts of the video. Still, what makes this most interesting is that one of the musicians whose music is at the center of the case, Kaskade, has spoken out strongly in support of Phan, arguing that "copyright law is a dinosaur," that he supports Phan rather than his label and... that she has great taste in music. He also has highlighted that having folks like Phan promote his music helps people love that music (and buy it too): A bunch of sites have covered those tweets, but few looked at the fascinating Tumblr post that Kaskade did a month ago, in which he trashed today's copyright laws after a bunch of his music was taken down off of SoundCloud. He talks about doing a deal with the devil in signing with Ultra/Sony: When I signed with Ultra, I kissed goodbye forever the rights to own my music. They own it. And now Sony owns them. So now Sony owns my music. I knew that going in. Soundcloud is beholden to labels to keep copyright protected music (read: all music put out by a label, any label) off their site unless authorized by the label. Am I authorized to post my music? Yep. Does their soulless robot program know that? Not so much. So some stuff they pulled was mistakenly deleted, but some tracks were absolutely rule breakers. The mash ups. (Read about those little beauties in “Politicking of a Mash Up”.) I post mash ups mainly because I don’t need to keep these things tucked under my pillow, pulling out my little Precious only to be played at gigs. You want to hear it? Grab it. Like it? Great. The end. But the labels, they aren’t feeling this approach so much. But then he digs in deep on how broken copyright law is, how scared old men running record labels are doing stupid things, and how it's all harming musicians: There’s always been this cagey group of old men who are scared to death of people taking their money. Back in the day, they were upset that the technology existed to record onto cassette tapes directly from the radio. “What! (Harumph!) Why will people buy music if they can just pull it out of the air?!” Yet, people still bought music. Because it was more accessible. Because more people were exposed. Because Mikey played it for Joey on the corner and then Joey had to have it. It’s music, and we buy what we love. We can’t love music we haven’t heard. Innovation helps the music industry. The industry only needs to make the effort to keep up and adapt. Make no mistake: exposing as many people as possible to music - all music - is a good thing. Everyone wins. The artist, the audience, even the old guys who just want some more cash. The laws that are governing online music share sites were written at a time when our online and real-life landscapes were totally different. Our marching orders are coming from a place that’s completely out of touch and irrelevant. They have these legal legs to stand on that empower them to make life kind of a pain-in-the-ass for people like me. And for many of you. Countless artists have launched their careers though mash ups, bootlegs, remixes and music sharing. These laws and page take-downs are cutting us down at the knees. And yo, musicians definitely need knees. And, from there, he notes that music sharing has been great for musicians by getting them more attention. And he argues that the labels should get with the program: We have moved beyond the exhausting notion that our greedy hands need to hold onto these tunes so tightly. The world just doesn’t work like that anymore. I’d happily parse out the pieces of every song I’ve made for others to use. Remix that. Use that. Think you could do it better? Show me. It’s laughable to assert that someone is losing money owed to them because I’m promoting music that I’ve written and recorded. Having the means to expose music to the masses is a deft tool to breathe new life into and promote a song. It’s the most compelling advertising, really. But it’s more than advertising. It’s sharing. If a person likes one song, then you know what’s likely to happen? They’ll press the download arrow and own it for free. You won’t believe what happens next! They become familiar with the artist, and seek out other material. Maybe they buy that. Maybe they talk about it online. Maybe they go to a show. Maybe they simply become a fan and tell a friend. I’m cool with that. The labels should be too. It’s exactly what they’re trying to accomplish by funneling endless money for Facebook Likes, Twitter trending hashtags, and totally ridiculous impotent advertising campaigns. Let the people have the music. Or, to put it in language that makes more sense for the ones who can only speak dollar bill - Free the music, and your cash will follow. It's a great read. And yet, now his works are at the center of a massive lawsuit that could end up costing someone millions of dollars even as he speaks out against the lawsuit. And, of course, Ultra could have just made use of YouTube's ContentID tools to either monetize or silence or take down Phan's videos. But, instead, the company chose to sue. It's not hard to see why. With so many of these lawsuits it's the same thing: jealousy. They see Phan being successful -- and they stupidly believe that it's just because of the music. And so they want their cut. And the way to do that is to sue. Because these days, that's pretty much all the legacy music industry knows how to do. To file lawsuits that just anger pretty much everyone else -- including the very musicians they claim to "represent."Permalink | Comments | Email This Story

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Human Rights Watch has just published a report containing the facts needed to back up everyone's suspicions that the FBI counterterrorism efforts are almost solely composed of breaking up "plots" of its own design. And the bigger and more high-profile the "bust" was, the better the chance that FBI agents laid the foundation, constructed the walls… basically did everything but allow the devised plot to reach its designed conclusion. (via Reason) All of the high-profile domestic terrorism plots of the last decade, with four exceptions, were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot. Of those four exceptions, two (Boston Bombing/LAX shooting) were successfully pulled off. Feeling safer with the g-men's increased focus on preventing terrorist attacks? Within the report is even more damning information that shows the FBI preyed on weak individuals in order to rack up "wins" in the War on Terror. Although an FBI agent even told Ferdaus’ father his son “obviously” had mental health problems, the FBI targeted him for a sting operation, sending an informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded, suffering weight loss so severe his cheek bones protruded, loss of bladder control that left him wearing diapers, and depression and seizures so bad his father quit his job to care for Ferdaus. He was eventually sentenced on material support for terrorism and explosives charges to 17 years in prison with an additional 10 years of supervised release. Those that weren't weak enough were broken. Abu Ali, a US citizen, was swept up in a mass arrest campaign in Saudi Arabia in 2003. Ali alleged being whipped, denied food, and threatened with amputation, and ultimately provided a confession he says was false to Saudi interrogators. Ali was given a life sentence and is currently serving it at a Supermax prison. Uzair Paracha was held in solitary confinement for nearly two years before he was convicted on charges of material support. Nine months after his arrest and while he was refusing to take a plea deal, the federal government moved Paracha to a harsh regime of solitary confinement pursuant to Special Administrative Measures (SAMs)—special restrictions on his contact with others imposed on the grounds of protecting national security or preventing disclosure of classified material—ostensibly due to ties with Al-Qaeda. For a time, Paracha was only permitted to speak to prison guards. As much as the DHS and FBI have stated concerns about "radicalization" and domestic terrorism, those captured in FBI sting operations were strongly pushed in that direction by informants and undercover agents. The FBI created threats where none existed. In many of the sting operations we examined, informants and undercover agents carefully laid out an ideological basis for a proposed terrorist attack, and then provided investigative targets with a range of options and the weapons necessary to carry out the attack. Instead of beginning a sting at the point where the target had expressed an interest in engaging in illegal conduct, many terrorism sting operations that we investigated facilitated or invented the target’s willingness to act before presenting the tangible opportunity to do so. In this way, the FBI may have created terrorists out of law-abiding individuals. This sort of activity should have been treated as "own goals" by the agency and some of the more credulous press. Instead, these busts are touted as evidence of the agency's superior skill and effort, something more closely related to extolling the prowess of someone who has just scored on an empty net. The FBI took a man whose main hobbies were "watching cartoons" and "playing Pokemon," a man who a forensic psychologist described (during the trial) as "highly susceptible to the suggestions of others" and fashioned him into a supposed terrorist. The planned subway bombing never happened, thanks to the FBI's keenly-honed ability to capture terrorists it created. Arrested with the would-be subway bomber was his "co-conspirator," a high school dropout with drug problems and clinically-diagnosed paranoid schizophrenia. There's much, much more in the report. Human Rights Watch's investigative work was made extremely difficult by the FBI's disingenuous counterterrorism efforts over the last decade, which made many in the Muslim communities affected deeply suspicious of people who asked too many questions. There's nothing to celebrate about victories like these. The emphasis on creating plots just to shut them down diverts resources from actual threats -- ones arising without huge amounts of FBI prompting. All this does is ensure the agency's anti-terror funding remains intact -- money that will be largely wasted on the FBI's sting operation Ouroboros. And while the FBI plays with its terrorist dress-up dolls, the real threats will go undetected.Permalink | Comments | Email This Story

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It's one thing to take a stand against questionable copyright trolling, but it's another thing to be a really bad defendant. We had this with both of the RIAA's lawsuits against Jammie Thomas and Joel Tenenbaum. In both cases, they were bad defendants who clearly broke the law and then tried to play cute in defending themselves. In both cases we pointed out that they should have settled, and that fighting on when they had no case was a really bad idea. Yes, there are all sorts of ridiculous things about many of these cases, and there are all sorts of legal questions raised about them. But if you're caught dead to rights infringing on the works of others, pretending that some magical fantasy world is going to open up in the back of the closet is just silly. Even worse: bad defendants create really bad case law that allows copyright trolls to use those cases to shake down lots of other people, many of which probably have much stronger cases. Unfortunately, it looks like we have another example of this. Uber copyright troll/porn producer Malibu Media has won an easy lawsuit against a defendant who tried to blame everything on the fact that he used Kickass Torrents to download Malibu Media movies. 57 of them. That kind of blaming the middleman is never going to work. In fact, others have tried it in the past, and it doesn't work. As the judge in the case noted: Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff’s works�”copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy. Of course, one could make a reasonable argument that the fragmented transfers raise issues concerning the distribution right of copyright, but not the reproduction right. On the reproduction right, the defendant, Don Bui, is clearly cooked. And he and his lawyer should have recognized that much earlier. Instead, they get this ruling that, because of the bad defendant, makes a bunch of broad statements that go beyond just Bui's immediate case and may create problems elsewhere. For example, the judge, Robert Jonker, cites the Aereo ruling to support this -- even though that's a dangerous way to read the Aereo ruling. Jonker seems to accept the "don't look in the black box, just look at the end results" aspect of Aereo. But, under such a system, lots of things that aren't infringement might now be judged infringing. It's basically a shortcut to avoid careful analysis, and that's what happens when you have bad defendants who clearly infringed. Bui's lawyer also tried the "poor immigrant who doesn't understand English very well" argument and saw that shot down as well. Deservedly so. There are plenty of reasons to challenge questionable lawsuits. And plenty of reasons for some folks to legally attack the underpinnings of copyright trolling -- including things like honeypots and abusing the judicial system to shake down people -- but taking a bad defendant all the way through the legal process is a bad idea. And the end result is going to be that Malibu Media not only claims vindication for its activities, but waves them around to every reporter, judge and (most importantly) future targets of its shakedown game.Permalink | Comments | Email This Story

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Just about two years ago, we wrote about the DOJ seizing three websites that were allegedly set up to let people download cracked versions of fee-based Android apps. As in the past, we were somewhat troubled by the government's willingness to seize websites without any form of adversarial hearing. As far as we can tell, such actions clearly violate the First Amendment as per the ruling in Fort Wayne Books v. Indiana. Either way, two years later, the government has finally gotten around to indicting some of the folks behind the three sites: Appbucket, Applanet and SnappzMarket. It's entirely possible that those indicted did break the law, though the fact that in all three cases the feds first got some of the other participants to take a plea deal in which they supply evidence against the others and that most of them were only charged with one or two counts on things like "conspiracy to commit criminal copyright infringement" suggests a fairly weak case. This is a DOJ that we're used to seeing pile on dozens of charges. But, what caught my attention is the ridiculous rhetoric from the DOJ in announcing these indictments. The most bizarre and stupid line has to go to US Attorney Sally Quillian Yates of the Northern District of Georgia: “Copyright infringement discourages smart people from doing innovative things,” said U.S. Attorney Yates. “This problem is especially acute when it comes to rapidly developing technologies, like apps for smart phones, and these defendants are now being held accountable for the intellectual property they stole.” Note that this isn't just a random quote in an interview. This is the quote that Yates put in the press announcement, meaning that multiple people vetted this and thought it was appropriate. First off, I'm curious: which "smart people" have been "discouraged" from "doing innovative things" because of copyright infringement? Does Yates honestly believe that some brilliant app developer out there had an idea for an app and said... "nah, if I make that, people will just infringe, so screw it." There may be a reasonable argument that some developers may not make as much money as they otherwise might have -- and that leads to fewer resources to focus on development. But the idea that it scares people off from actually doing work is... simply not true. And even if the statement were true, is that really the yardstick we want to measure things by? Because I can also show plenty of cases where copyright infringement has actually encouraged smart people to do innovative things. The creation of important peer to peer technology was built on the back of the desire of some to infringe. The amount of creative and innovative work based on infringement is pretty damn high. If we're going to get into a pissing contest over whether infringement inspires or discourages innovation, US Attorney Yates is going to lose badly. Very badly. Also, what "intellectual property" did they "steal?" This is a US attorney, and as far as I can tell, none of the indictments involve anything relating to any statutes on theft. Furthermore, nothing seems to involve them taking the copyrights away from original owners. At most, it appears that these individuals set up sites for the sharing of infringing copies of apps. If you're talking about "theft" of "intellectual property" you kinda have to be talking about someone taking someone else's copyright (or patent or trademark), otherwise you're saying things that are simply inaccurate. Next up, we have "Special Agent in Charge J. Britt Johnson of the FBI’s Atlanta Field Office." “Today’s federal indictments are the direct result of an extensive and thorough federal investigation into three groups of individuals aggressively engaged in and profiting from the theft of intellectual property,” said Special Agent in Charge Johnson. “While copyright infringement is the direct theft of the hard work of others in the form of research and development expended, it can also negatively impact incentives for further or future development of those ideas or applications. The FBI will continue to provide significant investigative resources toward such groups engaged in such wholesale pirating or copyright violations as seen here.” Copyright infringement is "the direct theft of the hard work of others." How do you "steal" the hard work of others? And where in the indictment is anything having to do with actual theft, rather than copyright infringement? It's troubling that the DOJ seems to have taken the copyright industry's bogus language of "theft" and "stealing" and falsely applied it to issues related to infringement. Even if these individuals broke the law, you'd hope that the DOJ would at least accurately portray the indictment and charges against the individuals, rather than making plainly ridiculous claims. The problem, though, is that this is what happens after a generation of entertainment industry execs spew misleading garbage about how infringement is "theft." A bunch of DOJ folks who don't understand intellectual property just act as if this is the same thing, even though it isn't even close.Permalink | Comments | Email This Story

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To call the UK's institution of ISP-level web filters "stupid" isn't just being blithely dismissive. For one, they don't work. They block the wrong stuff. They let offensive stuff in. They're easily circumvented. They're advance scouts for government censorship. The only people who think web filtering is a good thing are those with the power to turn pet projects into national laws. Add one more to the list: they're hugely unpopular. Broadband customers are overwhelmingly choosing not to use parental-control systems foisted on ISPs by the government - with take-up in the single digits for three of the four major broadband providers… Only 5% of new BT customers signed up, 8% opted in for Sky and 4% for Virgin Media. TalkTalk rolled out a parental-control system two years before the government required it and has had much better take-up of its offering, with 36% of customers signing up for it. Those pushing for filters would have you believe it's something the public has been clamoring for to help them protect their children from the many evils of the internet. In reality, hardly anyone appears to care all that deeply about hooking up to a pre-censored connection. There's more than simply unpopularity going on here. The numbers skew low for several reasons. At this point, the rollout isn't 100% complete and isn't being offered to every new customer (something that becomes a requirement in 2015). Virgin Media (somewhat ironically) has been hooking customers up with the filthiest internet. Techs for that company have only been presenting the "unavoidable choice" to a little over a third of its new signups. Other ISPs techs have been more thorough, presenting new customers with the option nearly every time. Many service providers say it's also possible the filtering has been activated post-installation (Ofcom's report only tracks filtering enabled at the time of install) or that customers are already using device-based filters. Despite all of these factors, I wouldn't expect adoption numbers to rise much. People generally don't like the government telling them what they can and can't access. Illegal content is already blocked at ISP level (as well as by several search engines), so what's being added is nothing more than a governmental parent to watch over citizens' shoulders as they surf the web. Those with children would probably prefer to run an open pipe and filter content at the device level. Not everyone in a household needs to be treated like a child, which is exactly what these filters (and their proponents) do. Beyond that, activating a web filter goes against human nature, especially the exertion of free will and the general avoidance of embarrassment. Most people view themselves as "good" and uninterested in the long list of internet vices (porn being the most popular). But even if they truly believe they'd never view this content, they'd rather have it arrive unfiltered than be forced to approach their ISP weeks (or minutes…) later like a bit-starved Oliver Twist and ask, "Please, sir. May I have some porn?" Permalink | Comments | Email This Story

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