posted 4 days ago on techdirt
The history of governments attempting to demonstrate either their own military prowess or the dastardly actions of others -- usually America -- is long and storied. South Korea used footage from war games to show off weapons I guess it must not have, Egypt attempted to pass off game footage as Russian airstrikes against ISIL/ISIS/whatever they're supposed to be called, and North Korea attempted to show off its nuclear capability by pinching some Modern Warfare 3 footage. Even Russia has tried its hand at this, attempting to show that America was arming Ukrainian rebels with Stinger missiles with some stills from the game Battlefield 3. That any of these countries thought they would get away with these fakes is nearly as funny as their having not considered how much international egg they'd have on their faces once they were found out. But you'd at least have thought these countries would learn their lesson. In the case of Russia, it seems not so much. The Russian Defense Ministry recently accused the American military of, get this, helping ISIS in order to promote American interests in the Middle East. While that claim is, on its face, fairly laughable, so too was the photo evidence Russia provided. If those images look sort of familiar to you, it's probably because you've played AC-130 Gunship Simulator: Special Ops Squadron. It seems that the photographic evidence offered by the Russian Defense Ministry is just more video game stills. In a sign of how lazy some propagandists can be, on Tuesday the official Russian-language Twitter account for the country’s defense ministry tweeted a selection of photos, claiming the images were irrefutable evidence that the U.S. was helping ISIS terrorists. However, one of the photos the Ministry of Defense tweeted (and later deleted) appears to be from the video game AC-130 Gunship Simulator: Special Ops Squadron, a clip of which is available on YouTube. The account also posted the photos along with a longer body of text on Facebook. Researchers from verification and citizen-journalism platform Bellingcat debunked the photo after someone else tweeted it, claiming a video was live drone-attack footage over Mosul, Iraq. Whatever those other photos are from, it's clear they are not from American forces happily supporting ISIS. We've done bad things in this country, but this claim is simply off the reservation. Russia, for its part, deleted the debunked photo, but maintained the claim that America is now helping ISIS in the Middle East. Maybe we can grab a couple of stills from The Adventures of Rocky and Bullwinkle as evidence that Russians are committing mass genocide of all moose and squirrel. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
The last time we checked in with the city of Portland, it was attempting to navigate some perilous waters regarding a trademark the city has on a famous city sign. Beer-maker Pabst, which I am to understand somehow won a blue ribbon a long time ago, built a logo for a concert series it wanted to promote in Portland that served as an homage to the famous sign, which includes an outline of the state and a stag leaping across the top of it. Because of this, the city saw fit to send a cease and desist notice to Pabst, despite beer not generally being a competitor for a city's tourism business. When everyone pointed this out to the city, it decided to not pursue any legal action. But the city continued to threaten local businesses with its trademark, including Vintage Roadside, which sells a "Made In Portland" series of photos on Etsy, some of which included the famous sign. Vintage Roadside decided to sue the city to have the trademark declared invalid, prompting Portland officials to issue a covenant not to sue to avoid any ruling on the matter. You might have thought that this series of slapdowns would have deterred Portland officials from this bullying course of action, but you'd be wrong. Portland attempted to expand the trademark it has for the sign into the alcohol designation, thinking that it could license the image to beermakers and make some coin. Unfortunately for the city, a local brewery already has a trademark for the sign for the beer business. Adam Milne's brewpub is fighting City Hall. And as of today, Milne is winning. The white sign hanging above the front door of Old Town Brewing's taproom on Northeast Martin Luther King Jr. Boulevard features the silhouette of a leaping buck. Behind the bar, a herd of white stags bound across eight wooden beer tap handles. The glasses, the coasters, and every bottle of Pilsner brewed in-house are festooned with the jumping deer—the same one that glows on the iconic "Portland Oregon" sign. In the fall of 2016, the city attempted to expand its trademark into the territory of beer. This September, a year later, the U.S. Patent and Trademark Office rejected the city's request, citing the similarity to Old Town Brewing's trademark, issued in 2012. "Getting the trademark was a very long, challenging process," Milne says. "We've built a brand we're so proud of." Now, Portland has been clear that it intends to partner with macro-breweries across the nation in a licensing scheme for the sign. It surely must have known that Old Town Brewing, local to the area, had a trademark on the imagery in question, yet it attempted to register the mark anyway. And, after the rebuke from the USPTO, it seems the city is still going to pursue the mark, essentially trying to muscle out a local business to pursue national licensing arrangements. Bryant Enge, director of the city's Bureau of Internal Business Services, says he's not discouraged by the patent office's rejection of Portland's trademark application. "Initial trademark application rejections are not uncommon," Enge says. "We're confident that the trademark will be approved." And the city is not even waiting for its preferred outcome before pursuing the very licensing arrangements that were the impetus for all this to begin with. Curiously, while the federal patent office ruled that Old Town Brewing's claim to the White Stag image is "incontestable," the city continues to negotiate with big brewers over licensing rights. The Pabst deal with the city doesn't bother Milne—a unicorn isn't going to be confused with a stag, he says. But the local beer makers at Old Town Brewing fear the city will try to license the image of the stag to large, corporate alcohol sellers. That sure reads like a pretty blatant violation of trademark law, with the added spice of it being done by a city government to one of its constituent businesses. Whatever the outcome of the trademark appeal, that's pretty gross. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
We've just written about how the Chinese government wanted to censor articles published by two academic publishers, Cambridge University Press (CUP) and Springer. After an initial wobble, CUP ultimately refused, while Springer by contrast decided to kowtow to the authorities. Those incidents concerned the publication in China of articles the Chinese didn't like. Now it seems the latter are extending their campaign against inconvenient facts to other countries, in this case Australia: Prominent Charles Sturt University academic Clive Hamilton said Allen & Unwin was ready to publish his manuscript Silent Invasion, but last week informed him it could no longer proceed because it was worried about defamation action. "Allen & Unwin said that they were worried about retaliation from Beijing through a number of possible avenues including legal threats, orchestrated by Beijing, and they decided it was too big a risk and so therefore pulled the plug and returned the rights to me," Professor Hamilton said. As the article on ABC News explains, "Silent Invasion" is about the Chinese Communist Party's activities and growing influence in Australia -- obviously a highly sensitive topic for China. In an email to the company, obtained by ABC News, Professor Hamilton's former publishers, Allen & Unwin, wrote about what it saw as "potential threats" if it published his book: The most serious of these threats was the very high chance of a vexatious defamation action against Allen & Unwin, and possibly against you personally as well. It's a little hard to see how an entire nation might sue successfully for defamation, but that's not the point. Once again, the mere threat of litigation was enough to cause someone -- in this case a publisher -- to self-censor. Interestingly, the ABC News article notes that the Australian government is expected to unveil soon new legislation to counter foreign interference in the country, which suggests that it is becoming a serious problem. We can expect more such attempts to censor overseas sources of information it doesn't like from the increasingly self-confident and intransigent China. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
If you were to have asked anyone in the film industry or the MPAA about the country of Brazil within the past decade, it's quite likely that they would have thrown their hands into the air and told you what a detestable hotbed of piracy and copyright infringement the nation was. And, hey, they would have been right. The simple fact of the matter is that there are some countries where the downloading and streaming of films and television is more common than others. The obvious next question to ask for any business interested in reversing this trend would be: why? The answer always seemed obvious to me: there is a customer demand that the legitimate options are not fulfilling. Many in film and television instead decried a lack of strict copyright enforcement and everybody wanting everything for free, instead. Well, with a recent study published by Google, it seems we are getting an answer as to who answered that question correctly, and it wasn't Hollywood. The trend in Brazil, beginning in 2016 when streaming services were expanded in the country, is the stagnation of piracy and the adoption of legitimate streaming services. While there’s still a long way to go, it’s interesting to hear the progress that’s being made not only in the West but also piracy hotspots further afield. This week, Brazil’s Exame reported on a new study published by Google. Focused on movies, one of its key findings is that local consumer interest in Netflix is now greater than pirate alternatives including torrents, streaming, and apps. As illustrated in the image below, the tipping point took place early November 2016, when searches for Netflix overtook those for unauthorized platforms. There's really only one lesson to be learned here. If an industry meets customer demand in a way that is convenient, enjoyable, and in a way that provides good value, the hassle and illegality of piracy are too much of a bother. The best way to defeat piracy is by embracing new business models, and that mantra is exemplified in a company like Netflix, which revolutionized how video content is consumed across the globe. Even if Brazil's appetite for piracy remains steady, as it has, media companies can simply out-compete it in terms of eyeballs by being awesome. “We’re not lowering piracy but this does show how relevant the [Netflix] brand is when it comes to offering content online,” Google Brazil’s market intelligence chief Sérgio Tejido told Exame. If an industry views piracy as completely irrelevant other than its use as a market research tool for what the public wants, then all that matters is the success of Netflix and its peers. The pirates are going to pirate, but meanwhile an entire new customer base and revenue stream has been uncovered in a country lamented as a pirate haven. And the popularity of Netflix in the country is on the upswing largely because of how great the service is. Importantly, nine out of ten users in Brazil said they were “extremely satisfied” or “very satisfied” with the service, up from 79% in the previous year. An impressive 66% of subscribers said that they were “not at all likely to cancel”, a welcome statistics for a company pumping billions into making its own content and increasingly protecting it, in the face of persistent pirate competition. Make a great product and give it to consumers in the way they want at a good value and suddenly piracy isn't the threat it was made out to be. That's been the Techdirt formula for years. It's great to see it in action. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
As websites increasingly struggle to keep the lights on in the age of ad blockers, a growing number of sites have increasingly turned to bitcoin miners like Coinhive. Such miners covertly use visitor CPU cycles to mind cryptocurrency while a user is visiting a website, and actively market themselves as a creative alternative to the traditional advertising model. And while this is certainly a creative revenue generator, these miners are increasingly being foisted upon consumers without informing them or providing an opt out. Given the miners consume user CPU cycles and a modest amount of power -- that's a problem. The Pirate Bay was forced to disable its bitcoin miner back in September, after users complained it was eating up to 90% of their available CPU cycles. Showtime was similarly caught using a bitcoin miner on two of its domains, and has yet to provide any detail on why it launched the miners or refused to inform visitors they were running. More recently, Trend Micro unveiled that at least two Android apps -- downloaded up to 50,000 times from the Google Play store -- were covertly putting crypto miners inside a hidden browser window: Recently, we found that apps with malicious cryptocurrency mining capabilities on Google Play. These apps used dynamic JavaScript loading and native code injection to avoid detection. We detect these apps as ANDROIDOS_JSMINER and ANDROIDOS_CPUMINER [...] This JavaScript code runs within the app’s webview, but this is not visible to the user because the webview is set to run in invisible mode by default. When the malicious JavaScript code is running, the CPU usage will be exceptionally high. The explosion in bitcoin miners is both above and below board. There's indication that the bitcoin miners running on Showtime's domains were the result of a website hack. More recently, researchers from security firm Sucuri discovered that at least 500 websites running WordPress had been hacked, and that other publishing platforms including Magento, Joomla, and Drupal were also being consistently abused. Reddit users this week documented how Choice Hotels (owner of Comfort Inn) websites have also been compromised with cryptocurrency miners the company itself seems oblivious to. Political fact-checking website PolitiFact also recently acknowledged it was hacked by intruders who installed bitcoin miners that quickly gobbled up visitors' CPU cycles without permission: BREAKING NEWS: #Coinhive found on official @PolitiFact website in latest case of #cryptojacking. pic.twitter.com/czGc5aaug7 — Bad Packets Report (@bad_packets) October 13, 2017 Not too surprisingly, security firms like Malwarebytes have started blocking the miners: The reason we block Coinhive is because there are site owners who do not ask for their users' permission to start running CPU-gorging applications on their systems. A regular Bitcoin miner could be incredibly simple or a powerhouse, depending on how much computing the user running the miner wants to use. The JavaScript version of a miner allows customization of how much mining to do, per user system, but leaves that up to the site owner, who may want to slow down your computer experience to a crawl. And while these tools help some with malicious installs and hacks, plenty of websites still appear to think it's a good idea to run the miners without notifying users or providing a functioning opt out. Which means there are plenty of folks busy trying to combat the rise of ad blockers -- by engaging in the exact same behavior that caused the rise of ad blockers in the first place. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor's attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It's a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight. Like the original ruling, it clings to the Supreme Court's decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result. Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech. Yet neither of these more recent Supreme Court decisions seems to have had any impact on either the district court or Ninth Circuit's thinking. Instead both courts seem to feel their hands are tied, that in the 1970s the Supreme Court set forth, once and for all, the rule that no one can ever resist federal grand jury subpoenas, except in very limited circumstances, and that this ruling was the final word on their enforceability, no matter what the context. But as I wrote in the previous post, what the Supreme Court said in Branzburg about the enforceability of grand jury subpoenas only related to those that arose from a specific context, journalists shielding sources, and the only question before the court then was whether journalists, as journalists, had the ability to refuse them. The Supreme Court never considered whether there might be any other set of circumstances where grand jury subpoenas could be resisted. In Branzburg the Supreme Court had only considered the question with respect to journalists. In fact, to make Branzburg apply to Glassdoor, the Ninth Circuit had to try to squeeze Internet intermediaries like Glassdoor into the shoes of reporters and make them seem like one and the same, even when they are not: Although Glassdoor is not in the news business, as part of its business model it does gather and publish information from sources it has agreed not to identify. It argues that “[a]nonymity is an essential feature of the Glassdoor community,” and that “if employees cannot speak anonymously, they often will not speak at all,” which will reduce the availability of “information about what it is like to work at a particular job and how workers are paid.” In other words, forcing Glassdoor to comply with the grand jury’s subpoena duces tecum will chill First Amendment-protected activity. This is fundamentally the same argument the Supreme Court rejected in Branzburg. With all due respect to the Ninth Circuit panel, this is not fundamentally the same argument the Supreme Court rejected in Branzburg. As I wrote last week, to view the role of an intermediary platform as the same thing as an intermediary journalist is to fundamentally misunderstand the role of the intermediary platform in intermediating information. It also fundamentally misunderstands the First Amendment interests at stake. This case isn't about the press-related First Amendment rights at issue in Branzburg; they are the speech-related First Amendment rights of online speakers. And it's not the platform's First Amendment interests that Glassdoor is primarily trying to vindicate; it is the interests of the platform's users. Yet here, too, the Ninth Circuit panel misunderstands those interests when it dismisses out of hand the idea that they might have any right not to be unmasked: Furthermore, Branzburg makes it clear that Glassdoor’s users do not have a First Amendment right not to testify before the investigating grand jury about the comments they initially made under the cloak of anticipated anonymity. See id. at 695 (“[I]f the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry . . . .”). Therefore, Glassdoor cannot refuse to turn over its users’ identifying information on the grounds that it is protecting its users’ underlying rights. "Anticipated anonymity" is a pretty grotesque way of describing a constitutional right people expected to be protected by when they chose to speak online. And it suggests a misreading of Branzburg, which never considered speech interests that were truly analogous to those of Internet platform users. Even if there's no First Amendment right to speak anonymously with a reporter it does not follow that there is no First Amendment right to speak anonymously online at all. But that's the upshot to this decision: people who wish to speak anonymously online, in any capacity, won't be able to. They will forever be vulnerable to being unmasked by any federal criminal investigation, just so long as the investigation is not being done in bad faith. Nothing else can provide any sort of check on these unmasking demands, regardless of any other interest in play – including those of innocent speakers simply trying to avail themselves of their First Amendment right to speak anonymously, and all those who benefit from that speech. This is a pretty stark result, and one that stands to affect Internet speakers everywhere. Not only does it threaten those anywhere a grand jury within the Ninth Circuit will be able to reach, but it will serve as persuasive authority governing the enforceability of subpoenas from grand juries in other circuits. It's also one that stands to have this dramatic effect after having been whipped up in secret, with a hidden docket and adamant refusal to accept amicus support. (Although two amici are listed in the caption, it does not appear that either brief was ultimately accepted by the court, much less actually read and considered.) Like anyone who insists on going it alone, without the help of their friends, the results of that obstinate independence have been predictably disastrous. Friends don't let friends inadvertently undermine the First Amendment, and I wish the court had let those of us able to help it see the full implications of this ruling be that friend. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
Listen to your music and take calls without the hassle of cords. The $29.95 FRESHeBUDS Pro Magnetic Bluetooth Earbuds connect automatically to your device via Bluetooth as soon as you pull apart the magnetic earbuds. They are sweat and water resistant, feature a battery that lasts for up to 10 hours of playtime, fully charge in 90 minutes, and are designed to be comfortably lightweight and secure in your ears. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
Just in time for the travel season to kick in, the TSA is operating at peak efficiency. Streamlining travelers' pre-boarding procedures this year -- just like every year preceding it -- will be the agency's inability to keep dangerous items from making their way onboard. Two years ago, the TSA's Inspector General discovered it could sneak contraband -- including explosive devices -- past the agency's pizza box recruits 95% of the time. A follow-up audit two years later was just as unimpressive. The IG's "Red Team" audit team called it quits after sneaking 17 of 18 forbidden items past TSA screeners. At 94.4%, it's hard to tell whether this is the TSA's idea of improvement or just the result of a smaller sample size. (The first audit team made 70 smuggling attempts, succeeding 67 times.) Theoretically, given enough attempts, the TSA may have been able to push this number much closer to 100%. Good news of a sort then: the latest screening sting operation shows exponential improvement by TSA screeners. The problem is multiples of super-low numbers still result in large amounts of failure. In recent undercover tests of multiple airport security checkpoints by the Department of Homeland Security, inspectors said screeners, their equipment or their procedures failed more than half of the time, according to a source familiar with the classified report. When ABC News asked the source familiar with the report if the failure rate was 80 percent, the response was, “You are in the ballpark.” And that ballpark is the Mendoza Line. The TSA can now tell travelers it's capable of batting .200 against would-be terrorists, just as airports begin to see increased amounts of air travel. And that's only at the airport tested. Your travel safety mileage may vary, depending on point of departure. The report itself remains classified for the time being, presumably at the request of the terminally-embarrassing agency. Hopefully, the Inspector General won't allow this to remain buried for much longer or redacted to uselessness by America's perennial underachiever. As for the TSA, it says it's definitely going to be buckling down and taking travel safety seriously. “We take the OIG’s findings very seriously and are implementing measures that will improve screening effectiveness at checkpoints,” said TSA administrator David Pekoske. “We are focused on staying ahead of a dynamic threat to aviation with continued investment in the workforce, enhanced procedures and new technologies,” he added. It is to LOL. This is a carbon copy of statements made after every egregious security failure by the TSA. The last few years of screening failures show little in the way of improvement. As for "staying ahead of dynamic threats," the TSA certainly can't do that when un-dynamic threats can walk past checkpoints carrying explosive devices. And the TSA isn't actually known for "staying ahead" of anything. Every new dehumanizing procedure and item added to the no-fly list is the result of threats screeners didn't catch before they boarded planes and wreaked havoc. These are all just words meant to make the agency sound like it truly wishes to serve some higher purpose. But the facts flatly contradict the assertions made by the TSA in the wake of multiple successive failures. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
One of the reasons for the U.S.' pricey and mediocre broadband is our historical habit of throwing oodles of tax breaks and subsidies for fiber optic networks at giant ISPs, then letting them tap dance over and around those obligations when it comes time to deliver. Verizon, for example, has gobbled up millions in subsidies and tax breaks from cities and states up and down the Eastern seaboard for fiber optic networks it fails to fully deploy. Given the stranglehold large ISPs have on federal and state regulators and lawmakers, efforts to hold these companies accountable for any of this have been decidedly mixed. AT&T has similarly spent decades demanding all manner of regulatory concessions, tax breaks or subsidies in exchange for broadband upgrades that seem perpetually just around the next corner. Whether it's gunning for tax cuts and subsidies, or looking for approval of its latest megamerger, AT&T's an absolute master of the regulatory carrot and a stick game. Even if the carrot is entirely hallucinated, as we saw when AT&T threatened to curtail its already modest fiber optic deployment unless net neutrality was killed. Ignoring the fact that AT&T has been making the same empty broadband deployment promises for the better part of the last decade, the company popped up this week to throw its support behind Trump's latest attempt at "tax reform." According to an AT&T statement, the company insisted that reducing the company's tax burden will result in all manner of new broadband investment: "By immediately lowering the corporate tax rate to 20%, this bill will stimulate investment, job creation and economic growth in the United States,” said Randall Stephenson, AT&T Chairman and CEO. "With a rate of 20% combined with provisions for full expensing of capital expenditures for the next five years, we’re prepared to increase our investment in the United States. If the House bill is signed into law, we’d commit to increase our domestic investment by $1 billion in the first year in which the new rates are in place. And research tells us that every $1 billion in capital invested in telecom creates about 7,000 good jobs for the middle class." The problem, again, is that AT&T simply has no credibility when it comes to broadband deployment promises. The company has a long-standing history of promising greater broadband investment if it gets "X" (the death of net neutrality rules, the death of privacy rules, more subsidies), then either ignoring those promises outright, or fiddling with its deployment numbers to make it appear that it adhered to its own promises. Meanwhile, in the real world, AT&T remains under fire for failing to upgrade broadband in numerous urban areas that should have been upgraded to fiber decades ago. AT&T has whined fairly incessantly about the U.S. tax rate being among the highest in the developed world. And while technically true, telecom providers in particular use all manner of loopholes to ensure they often pay a pittance in taxes. That includes using Reverse Morris Trusts to dodge all tax obligations as they sell off chunks of their networks they refuse to upgrade, efforts that have resulted in a few bankruptcies for smaller ISPs on the receiving end of this creative bookkeeping. The end result is often an effective tax rate of 0% for companies like Verizon. History generally indicates that any additional tax cuts will be pocketed by telecom sector executives, not put back into the network. That's because we've built a system where we not only refuse to do anything about a lack of competition in the broadband sector, but actively reward companies that falsely promise the broadband we truly want is just around the next corner, but only if we're willing to give these companies everything under the sun. Permalink | Comments | Email This Story

Read More...
posted 5 days ago on techdirt
As artificial intelligence (AI) finally begins to deliver on the field's broken promises of the last forty years, there's been some high-profile hand-wringing about the risks, from the likes of Stephen Hawking and Elon Musk, among others. It's always wise to be cautious, but surely even AI's fiercest critics would find it hard not to like the following small-scale application of the technology to tackle the problem of phishing scams. Instead of simply deleting the phishing email, you forward it to a new service called Re:Scam, and the AI takes over. The aim is to waste the time of scammers by engaging them with AI chatbots, so as to reduce the volume of phishing emails that they can send and follow up: When you forward an email, you believe to be a scam to [email protected] a check is done to make sure it is a scam attempt, and then a proxy email address is used to engage the scammer. This will flood their inboxes with responses without any way for them to tell who is a chat-bot, and who is a real vulnerable target. Once you've forwarded an email nothing more is required on your part, but the more you send through, the more effective it will be. Here's how the AI is applied: Re:scam can take on multiple personas, imitating real human tendencies with humour and grammatical errors, and can engage with infinite scammers at once, meaning it can continue an email conversation for as long as possible. Re:scam will turn the table on scammers by wasting their time, and ultimately damage the profits for scammers. When you send emails to Re:Scam, it not only ties up the scammers in fruitless conversations, it also helps to train the underlying AI system. The service doesn't require any sign-up -- you just forward the phishing email to [email protected] -- and there's no charge. Re:Scam comes from Netsafe, a well-established non-profit online safety organization based in New Zealand, which is supported by government bodies there. It's a nice idea, and it would be interesting to see it applied in other situations. That way we could enjoy the benefits of AI for a while, before it decides to kill us all. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
More evidence of high-flying surveillance has been uncovered by public records requests. The Texas Observer reports it has obtained documents showing local National Guard units are in possession of airborne IMSI catchers. The Texas National Guard last year spent more than $373,000 to install controversial cellphone eavesdropping devices in secretive surveillance aircraft. Maryland-based Digital Receiver Technology Inc., or DRT, installed two of its DRT 1301C “portable receiver systems” in National Guard aircraft in partnership with the Drug Enforcement Administration, according to a contract between the Texas National Guard and the company. The contract states that the dirt boxes, as they’re often called after the company’s acronym, are for “investigative case analytical support” in counternarcotics operations and were purchased using state drug-asset forfeiture money. These aren't the first DRT boxes to be exposed via public records requests. Law enforcement agencies in Chicago and Los Angeles are also deploying these surveillance devices -- with minimal oversight and no public discussion prior to deployment. The same goes for the US Marshals Service, which has been flying its DRT boxes for a few years now with zero transparency or public oversight. The same goes for the National Guard in Texas. There doesn't seem to be any supporting documentation suggesting any public consultation in any form before acquisition and deployment. Not only that, but there's nothing in the documents obtained that clarifies what legal authority permits National Guard use of flying cell tower spoofers. [T]he Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used. No one knows what guidance the National Guard is operating under, much less what it does with all the cell phone data it hoovers up. It's a black hole and the National Guard refuses to discuss it. While it's undoubtedly true some law enforcement methods need to be kept under wraps, this doesn't mean agencies -- especially those like the National Guard which only play a supporting role in some law enforcement activities -- should deploy mass surveillance tools without some public discussion. Concerns definitely need to be addressed when a military agency gets into the domestic law enforcement business. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn't known so much for containing threats as it's known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn't a good fit for most users… or really any users at all. Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma's dubious product, dubious customer service tactics (like the always-popular "auto-renew"), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes' developers, who tossed $5,000 into Bleeping Computer's legal defense fund. The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time. Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., "tortious interference." According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans. The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity. Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky's blocking of Zango's adware to be immune from Zango's claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity. Enigma argued the decision clearly stated the removed material must be "content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It claimed its software fell under none of those headings. The district court disagrees: Enigma overlooks Zango’s clear holding that § 230(c)(2)(B) immunity applies to “a provider of computer services that makes available software that filters or screens material that the user or the provider deems objectionable.” [...] This interpretation of Zango aligns with the plain language of the statute, which likewise states that immunity applies to “material that the provider or user considers to be . . . objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). In Zango, the provider of the anti-malware software, Kaspersky, exercised its discretion to select the criteria it would use to identify objectionable computer programs. The Ninth Circuit held that malware, as Kaspersky defined it, was properly within the scope of “objectionable” material. In that respect, the Court agrees with Malwarebytes that Zango is factually indistinguishable from the scenario here. In its final attempt to skirt Section 230 immunity, Enigma attempted to resculpt its arguments into a half-assed Lanham Act complaint. But the court has zero sympathy for Enigma's attempt to drag trademark into this. Enigma’s argument fails because its complaint does not allege an intellectual property claim. The Lanham Act contains two parts: one governing trademark infringement (15 U.S.C. § 1114) and one governing unfair competition (15 U.S.C. § 1125(a)). The unfair competition provision, in turn, “creates two distinct bases of liability”: one governing false association (15 U.S.C. § 1125(a)(1)(A)) and one governing false advertising (15 U.S.C. § 1125(a)(1)(B)). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). Enigma’s complaint asserts a false advertising claim under § 1125(a)(1)(B). FAC ¶ 135. Enigma does not assert claims under the trademark provisions of the Lanham Act. The complaint does not allege that Enigma owns trademarks or any other form of intellectual property, nor does it allege that Malwarebytes has committed any form of intellectual property infringement, including misuse of its trademarks. Accordingly, the Court finds that Enigma’s false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), does not arise under a “law pertaining to intellectual property” under 47 U.S.C. § 230(e)(2). Enigma loses, Malwarebytes wins, and status remains quo until the inevitable appeal. Enigma seems to believe it can sue its way into respectability -- somehow failing to realize every lawsuit against competitors and critics moves it several steps in the opposite direction. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
We've been talking about internet platform regulation for a long time, but in the past year these issues have gotten a huge amount of increased focus — for a bunch of fairly obvious reasons. But a lot of people who are fairly new to the issue tend to make a lot of questionable assumptions and jump to some problematic conclusions, so this week we're joined by someone who has been studying these questions for many years — Annemarie Bridy, a law professor at the University of Idaho and Affiliate Scholar at the Stanford University Center for Internet and Society — to discuss the complicated consequences of various attempts to regulate online platforms. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
Earlier this year I wrote about Yelp's appeal in Montagna v. Nunis. This was a case where a plaintiff had subpoenaed Yelp to unmask one of its users and Yelp tried to resist the subpoena. In that case, not only had the lower court refused to quash the subpoena, but it sanctioned Yelp for having tried to quash it. Per the court, Yelp had no right to try to assert the First Amendment rights of its users as a basis for resisting a subpoena. As we said in the amicus brief I filed for the Copia Institute in Yelp's appeal of the ruling, if the lower court were right it would be bad news for anonymous speakers, because if platforms could not resist unfounded subpoenas then users would lose an important line of defense against all the unfounded subpoenas seeking to unmask them for no legitimate reason. Fortunately, a California appeals court just agreed it would be problematic if platforms could not push back against these subpoenas. Not only has this decision avoided creating inconsistent law in California (earlier this year a different California appeals court had reached a similar conclusion), but now there is even more language on the books affirming that platforms are able to try to stand up for their users' First Amendment rights, including their right to speak anonymously. As we noted, platforms can't always push back against these discovery demands, but it is often in their interests to try protect the user communities that provide the content that make their platforms valuable. If they never could, it would seriously undermine those user communities and all the content these platforms enable. The other bit of good news from the decision is that the appeals court overturned the sanction award against Yelp. It would have significantly chilled platforms if they had to think twice before standing up for their users because of how much it could cost them financially for trying to do so. But any celebration of this decision needs to be tempered by the fact that the appeals court also decided to uphold the subpoena in question. While it didn't fault Yelp for having tried to defend its users, and, importantly, it found that it had the legal ability to, it gave short shrift to that defense. The test that California uses to decide whether to uphold or quash a subpoena is a test from a case called Krinsky, which asks whether the plaintiff has made a "prima facie" case. In other words, we don't know if the plaintiff necessarily would win, but we want to ensure that it's at least possible for plaintiffs to prevail on their claims before we strip speakers of their anonymity for no good reason. That's all well and good, but thanks to the appeals court's extraordinarily generous read of the statements at issue in this case, one that went out of its way to infer the possibility of falsity in what were at their essence statements of opinion (which is ordinarily protected by the First Amendment), the appeals court decided that the test had been satisfied. This outcome is not only unfortunate for the user whose identity will now be revealed to the plaintiff but for all future speakers now that there is an appellate decision on the books running through the "prima facie" balancing test in a way that so casually dismisses the protections speech normally has. It at least would have been better if the question considering whether the subpoena should be quashed had been remanded to the lower court, where, even if that court still reached a decision too easily-puncturing of the First Amendment protection for online speech it would have posed less of a risk to other speech in the future. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
Deputy Attorney General Rod Rosenstein continues his push for law enforcement-friendly broken encryption. The ultimate goal is the same but the arguments just keep getting worse. Trying to pitch worthless encryption (i.e., encryption easily compromised in response to government demands) as "responsible" encryption is only the beginning of Rosenstein's logical fallacies. After a month-plus of bad analogies and false equivalents, Rosenstein has managed to top himself. The path to Rosenstein's slaughtering of a metaphor runs through such highlights as the DAG claiming device encryption is solely motivated by profits and that this is the first time in history law enforcement hasn't had access to all forms of evidence. It's an intellectually dishonest campaign against encryption, propelled by the incredibly incorrect belief that the Fourth Amendment was written to provide the government with access, rather than to protect citizens from their government. In a long article by Cyrus Farivar discussing a recent interview given by Rosenstein, the Deputy Attorney General drops this abomination of an analogy: "I favor strong encryption, because the stronger the encryption, the more secure data is against criminals who are trying to commit fraud," he explained. "And I'm in favor of that, because that means less business for us prosecuting cases of people who have stolen data and hacked into computer networks and done all sorts of damage. So I'm in favor of strong encryption." "This is, obviously, a related issue, but it's distinct, which is, what about cases where people are using electronic media to commit crimes? Having access to those devices is going to be critical to have evidence that we can present in court to prove the crime. I understand why some people merge the issues. I understand that they're related. But I think logically, we have to look at these differently. People want to secure their houses, but they still need to get in and out. Same issue here." It is nowhere near the "same issue." I sincerely hope DAG Rosenstein regrets every word of this statement. Let's streamline the analogy: People want to protect the data on their phones. People still want to be able to access this data on their phones. In no case ever has encryption prevented people from accessing the data on their phones. Forgotten passcodes might, but that's like losing house keys. You might need outside assistance to get back in. Rosenstein's analogy skips a step. It has to. There's no way this analogy can ever work couched in Rosenstein's anti-encryption statements. People lock their houses when they leave and unlock them with their keys when they get back. Rosenstein's analogy is completely baffling, given the context of his remarks. How does strong security prevent people from "entering" their devices? It doesn't and Rosenstein knows this. It only prevents people other than the device owner from doing so. What he's actually talking about is government access, but he can't find a credible argument for weakening the strong encryption he just claimed he believed in. And he doesn't have the intellectual honesty to say what he really means. The "they" in "but they still need to get in and out" is meant to encompass law enforcement agencies. In the context of Rosenstein's anti-encryption argument, that's the only interpretation that makes any sort of sense. Otherwise, it's a non sequitur -- one that claims strong security is somehow capable of preventing home owners from coming and going as they please. A boneheaded analogy like this is the only rhetorical option left. That's because what Rosenstein wants -- easily-compromised "strong" encryption (i.e., "responsible encryption") -- simply cannot exist. Impossible demands can only be justified by implausible arguments. Given the swift and steady deterioration of Rosenstein's rhetoric, it's probably time to put his "Dead Horses and the Men Who Beat Them" show on ice. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
See more in the dark with these UltraBright 500-Lumen Tactical Military Flashlights. Powered with 500 lumens and an adjustable zoom that provides up to one mile of range, these elite flashlights will help you find your way through any dark place. Bright, lower bright, and SOS modes let you choose the right mode for any situation. Normally the Techdirt Deals Store sells these for $29.99 but there's been a recent price drop for the holidays to $14.99 for a limited time. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
Thought the monkey selfie saga was over? I'm beginning to think that it will never, ever, be over. If you're unfamliar with the story, there are too many twists and turns to recount here, but just go down the rabbit hole (monkey hole?) of our monkey selfie tag. Last we'd heard, PETA and photographer David Slater were trying to settle PETA's totally insane lawsuit -- but were trying to do so in an immensely troubling way, where the initial district court ruling saying, clearly, that monkeys don't get a copyright would get deleted. Not everyone was comfortable with this settlement and some concerns have been brought before the court. As of writing this, the court seems to be sitting on the matter. We knew exactly why PETA didn't want its big loss to remain on the books, but it initially appeared that Slater was more neutral. However, he's now claiming that he's preparing to sue Wikipedia -- in which case having the earlier ruling off the books (where it makes it clear that a monkey can't get a copyright) would probably be helpful. This bit of news about a planned Wikipedia lawsuit was a throwaway line in... well... a pretty bad episode of This American Life, which takes on the monkey selfie story, but does a surprisingly awful job of it. I'm a huge fan of This American Life, and in the past when they've done stories where I'm intimately familiar with the details, I think they've done a really excellent job. But, on this story, TAL falls flat on its face. It presents the story of David Slater mostly through his own telling of it, and frames Wikipedia declaring the image to be in the public domain to be a fairly radical position. I'm actually surprised that TAL didn't talk to a copyright lawyer about this (they quote Slater's lawyer, but specifically on questions related to PETA's case -- and not the copyright status of the image). Indeed, I'm surprised that the reporter, Dana Chivvis, didn't appear to speak to anyone at Wikipedia itself. She kicks off the discussion of Wikipedia's role in the monkey selfie case with this bit of utter nonsense that does not reflect Wikipedia's view at all: In other words, anyone could use it, without David's permission, for free. To David, that was just stealing. He makes a living from selling his pictures, so it was really helpful to have one that was such a hit. But now, anyone could download it from Wikipedia and hang it on their wall. Or print it in their publication. Wikipedia's opinion is that information on the internet should be free. Where to start? This is just so full of wrong, it's embarrassing. Whether or not Slater makes his living from that photo has no bearing on the legal question of who holds the copyright. And Wikimedia's reason for declaring the monkey selfie in the public domain is not that "information on the internet should be free." Its position is that the law is well established that non-human creators don't get copyright, and thus the image is in the public domain. This isn't some crazy "ooh man, everything should be free" argument. It's a legal argument based on the entire history of copyright law. While (thankfully!) Slater and/or TAL left us out of this story (Slater frequently blames us in combination with Wikipedia for the sin of accurately reporting on the law, but somehow we got spared in this story), it does a terrible job presenting the actual legal arguments about the public domain question. Wikipedia does support making knowledge available to the public, but that's unrelated to the legal question of whether the image is in the public domain -- but the way Chivvis presents it, it's as if Wikipedians just randomly declare images in the public domain because they think everything online should be free. That's wrong. And it's just bad reporting. Chivvis does do a much better job getting into the legal issues with PETA's dumb lawsuit and accurately presenting the issues at play there, but that's a separate issue from whether or not the image is in the public domain (even if the issues are somewhat entangled). She also leaves out the key part of the settlement being a desire to delete the original ruling in the case -- or the fact that the court does not appear to have accepted the settlement, and the case is technically still open (she claims that it's all settled). There is just a quick aside about Slater's plan to sue Wikipedia at the end, right before the supposed "kicker" to the story: Slater claims that "Naruto" -- the monkey PETA claims it represents and who it claims took the photo -- is not, in fact, the monkey who took the selfie. This isn't a new argument, as it's been raised before (by Slater and others) that Naruto is the wrong monkey. Either way, suing Wikipedia for accurately claiming the monkey selfie image is in the public domain would not be a wise move on Slater's part. He's almost certain to lose if it goes that way. He's also threatened to sue us in the past over this same issue, and that would be even dumber (again: we just reported on the copyright status of an image based on his own statements about how the image came to be -- he has since changed his story to make it appear that he had more of a role in the photo, but that was not his original story at all). Note that in original story, Slater said he left the camera "unattended" and the camera "attracted the attention" of a macaque. It was only later, after people pointed out that under those conditions, he doesn't have a copyright that the story began to morph into one where Slater had a bigger role (which is also heard in the TAL broadcast). Either way, Slater continues to tilt at this windmill, and it's not going to change the law. PETA's lawsuit was dumb and hopefully it really is over (though, hopefully the original ruling remains on the books). I really feel sorry that PETA decided to pick Slater as the victim of one of its stunts as it's a shitty experience to be sued. But for Slater to think the lesson to take from all of this is to sue others would be disappointing. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
Given that the Trump administration has been tripping over itself to obliterate popular consumer protections (net neutrality, broadband privacy) and most media consolidation rules (largely to benefit Sinclair broadcasting), many analysts assumed that the administration would see absolutely no problem with AT&T's latest $86 billion acquisition of Time Warner. After all, such vertical integration mergers -- while they can cause very serious market harms -- are often more difficult to make a case for than mergers where direct competitors are eliminated. Supporting that position was the fact that Makan Delrahim, Trump's new antitrust boss at the DOJ, had been on record previously stating that he saw no serious problems with the deal. That's why it was a bit of a surprise last week when reports emerged that Trump's DOJ was considering a lawsuit to block the megamerger, and may not approve the deal unless AT&T either sold off DirecTV (acquired last year) or Turner Broadcasting, owner of channels like Cartoon Network, TBS, and CNN. Given Trump's disdain for CNN's coverage of his Presidency, many began to immediately speculate that Trump was using the merger for leverage. After all, that's what one administration official told the New York Times was on the table in a story back in July: "White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card." So the idea that Trump would use the merger as leverage to take aim at CNN was clearly something that was on the table. But when asked about the decision while on Air Force One last week, Trump insisted that the decision wasn't his, but was made by "a very respected person," presumably Delrahim: "Speaking to reporters on Air Force One, Trump said he “didn’t make that decision — it was made by a man who’s a very respected person, a very, very respected person..."I did make a comment as to what I think,” Trump also acknowledged. Previously, the president has blasted AT&T and Time Warner’s merger plans — and during the 2016 election, he threatened to block the companies from combining under his watch. "I do feel you should have as many news outlets as you can — especially since so many are fake," Trump continued, according to a pool report. Then, he concluded: “I didn't make a statement, but I did make a statement long before. So we’ll see — that probably ends up being litigation, maybe not, we’ll see how it all plays out." Granted, forcing AT&T to divest either DirecTV or Turner Broadcasting makes sense from a regulatory perspective. Consumer advocates worry that AT&T's greater size, leverage, and control over broadcast content (particularly HBO) will make it harder for streaming providers to license the content they need to compete. They're also worried that AT&T will leverage this advantage -- in concert with its monopoly in broadband and stranglehold over tower backhaul -- to engage in more of the anti-competitive behavior it's well known for (zero rating, etc.). But it's hard to square this return to sensible antitrust enforcement with an administration that has been taking a mindless hatchet to media consolidation and consumer protection rules. What kind of thought process involves seeing no problem with gutting media consolidation rules (which devastates smaller news outlets and media diversity), yet suddenly having a strong disdain for the often more-murky negative impact of vertical integration? One possible explanation for the policy asymmetry may reside with Rupert Murdoch, who has apparently been trying to get AT&T to offload CNN to News Corporation for much of the year: "Rupert Murdoch telephoned AT&T Chief Executive Randall Stephenson twice in the last six months and talked about cable network CNN, sources briefed on the matter told Reuters on Friday. According to one of the sources, the 86-year-old executive chairman of Twenty-First Century Fox Inc offered to buy CNN in both conversations. And again, if you head back to media reports from January, Murdoch had been pressuring the Trump administration to make life harder on AT&T Time Warner, a News Corp. competitor: "If Fox News’ politics ultimately solidify as more pro-Trump than they were during the campaign, that might be to the benefit of Murdoch’s business interests. According to a well-placed source, Trump has asked Murdoch to submit names for FCC Chairman. Murdoch, another source said, also wants conditions put on the AT&T-Time Warner merger, and he could lobby Trump to make that happen." Again, it's entirely within the realm of possibility that an administration that has been protecting monoplists and gutting consolidation protections is having an uncharacterstic flirtation with sensible antitrust enforcement under Delrahim. But it's also entirely possible, especially when looking at the administration's behavior in full context, that Trump's DOJ is giving AT&T a hard time simply to aid a political ally and to quash a critical media outlet. Permalink | Comments | Email This Story

Read More...
posted 6 days ago on techdirt
More irresponsible handling of documents has been uncovered by public records requests. Information you'd think the government would actually want to hang onto has apparently been deleted by those charged with retaining it. The Crown Prosecution Service is facing embarrassment after admitting it destroyed key emails relating to the WikiLeaks founder Julian Assange, who is holed up in Ecuador’s London embassy fighting extradition. Email exchanges between the CPS and its Swedish counterparts over the high-profile case were deleted after the lawyer at the UK end retired in 2014. The destruction of potentially sensitive and revealing information comes ahead of a tribunal hearing in London next week. This auspicious disappearance was sniffed out by Italian journalist Stefania Maurizi, who has been covering Wikileaks for the better part of a decade. And, because it's now unavoidable, it has admitted the destruction in court as part of its filings in a FOI lawsuit brought by Maurizi. CPS officials are now offering defensive statements about the document destruction, assuring the public, angry FOI requesters, and other government branches that they are willing to dissonantly cogitate their way out of this embarrassment. Statement 1: Asked if the CPS had any idea what was destroyed, a spokesperson said: “We have no way of knowing the content of email accounts once they have been deleted.” Statement 2: A legal manager at the CPS, Mohammed Cheema, who has been dealing with the FOI requests, said, in a lengthy witness statement in August this year, that the Assange case file comprises mainly 55 lever-arch files, one A4 file and a selection of other paper files. He added it was very unlikely the CPS held further significant email correspondence. I guess it all depends on when you ask the question. The second statement could be true pre- or post-email deletion, but probably more likely to be true after the scrubbing. But it's a bit rich to ask everyone to believe these are simultaneously true -- that the contents are unknown but also unlikely to be significant. The chance something "significant" may have been deleted remains high. And it will always remain so because the absence of emails means the absence of contradictory evidence. The UK is still interested in Assange and Wikileaks, even though it hasn't pressed the issue of extradition in quite some time. This is CPS's excuse for the mass deletion: the communications were related to extradition proceedings that ended in 2012 and contain nothing relevant to ongoing Assange-related government activity. According to CPS, this deletion was per policy. “Most casework papers and related material are stored for three years following the conclusion of proceedings, or for the duration of the convicted defendant’s sentence plus three months. In some cases material may be held for longer.” The problem appears to be the policy then. If documents of interest to the public and of possible use in future prosecutions vanish just because the clock runs out, the policy would appear to run counter to the point of document retention laws. No one expects everything to be retained indefinitely, but archiving electronic documents like emails isn't exactly a Sisyphean endeavor. The ending of an investigation or prosecution shouldn't trigger a countdown clock that expires this quickly, especially when governments are almost always able to withhold documents while investigations and prosecutions are still ongoing. Generally speaking, government agencies are the only ones that can say definitively when investigations end, leaving document requesters to figure this out through trial and error. In this case, Maurizi will be continuing her FOI lawsuit against the CPS, but with some of the targeted documents already deleted, there's little to be gained. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Why Chicago's Police Force Is A Godawful Train Wreck, Part 192: A Staggering Lack of Accountability. Even after a Chicago Tribune investigation in March revealed faults with the disciplinary system that had caused officials to lose cases — and after they pledged to track down and finalize those cases — some punishments remain pending. ProPublica Illinois and the Tribune, collaborating on this story, discovered Levigne's case as reporters tried to determine whether police officials had followed through on their promise. The previous story detailed how pending punishments for at least 14 officers had been forgotten, and pointed out there likely were more. Police officials have required many of those officers, as well as about a dozen others, to serve punishments — years late — during the past few months, the Tribune and ProPublica Illinois confirmed. But officials continued to let other old cases stall as they failed to make sense of their own disjointed — and sometimes incorrect — records. That's just the latest in a long line of travesties committed by the Chicago PD. This follows other such lowlights as the PD operating its own Constitution-free "black site" inside the city, where criminal suspects were taken, detained, and interrogated with zero regard for their civil liberties. When Chicago police officers aren't shooting people and lying about it, they're participating in god knows what other sorts of misconduct after tampering with their recording devices. The reason it's taken so long for anything to be done about this is a lack of accountability. Those up top feel no compunction to punish officers for misdeeds, often only following through when forced to by public outcry. When it does finally occur, it's years after the fact and often reduced to wrist slap. The case cited above in the Chicago Tribune report involves Chicago PD officer Brandon Levigne. Levigne pulled a gun on a motorist for supposedly cutting him off in traffic. Levigne was not in uniform. The driver, Brandon Whitehead, called 911, thinking he was being carjacked. Whitehead reported this incident to the Chicago PD. This report was filed in 2006. Police officials concluded that Levigne had mistreated the Whiteheads, used profanity and lied about it, and they recommended that he be suspended for 60 days. But they didn't follow through, and the officer didn't serve a reduced suspension until just this month, after reporters repeatedly questioned the delay. It took eleven years for the officer to be punished. And it was a lighter punishment than police officials originally recommended. In the intervening years, Levigne -- who the department had ruled had engaged in misconduct years ago -- was promoted to detective. The system used to track officer misconduct is archaic and needlessly convoluted -- so much so the system's inability to provide anything resembling accountability appears to be deliberate. Emanuel fired police Superintendent Garry McCarthy, appointed a task force to propose reforms and revamped the former police oversight agency, the Independent Police Review Authority, or IPRA. A replacement agency, the Civilian Office of Police Accountability, began work Sept. 15. But COPA must work within the same labyrinthine disciplinary system that has contributed to a lack of accountability. Records are kept on paper and shuffled between the oversight agency and the Police Department. There is no management system in place to track cases, and they fall through the cracks. And again, the only reason the CPD is moving forward with long-delayed punishments is due to outside pressure. External investigations by ProPublica and the Chicago Times have resulted in more cases being completed than years of internal management by the department. The new independent oversight board faces the same challenges: a culture deeply uninterested in punishing misconduct and a tracking system so broken it makes a mockery of the phrase "paper trail." One serious complaint finally resulted in a (laughable) punishment more than a half-decade after the fact. A police spokesman said Stacker served his one-day suspension in April, six years after the warrantless entry. Stacker is currently stripped of police powers and on desk duty in connection with another case, a police spokesman said. In this case, Officer Stacker announced he would file a grievance after an internal investigation found he had violated citizens' Fourth Amendment rights. But that's all Stacker did. The grievance was never filed and the case slipped into the undertow of the CPD's complaint tracking system, only resurfacing years later with the assistance of outside scrutiny. The IRPA's help is appreciated but it too has problems following through with investigations and recommendations. Accused officers deliberately screw with the system by promising to challenge rulings or appeal decisions. These moves are never made and the complaints sit in limbo awaiting officers' next moves. When punishments are finally handed down years after the fact, they're often far less than was recommended or agreed to. The appeals that officers never got around to filing are somehow treated as being filed in absentia. And even the reduced punishments are never served. Officer Jorge Martinez Jr. was accused of drunkenly challenging and taunting a security guard and officers from a Texas police department while attending a wedding reception in Dallas in 2007. He was charged with misdemeanor assault in Texas, but the case was dismissed. IPRA recommended a 60-day suspension in 2011, but Martinez settled with the city for five days in 2015. IPRA had no record of getting the settlement agreement that reduced the punishment, so years passed and Martinez never served the suspension. In May, however, a CPD sergeant in the Bureau of Internal Affairs alerted IPRA and Police Department officials that Martinez's disciplinary case was listed as active when it should have been closed long ago, emails show. Still, nothing happened. The Chicago PD is an accountability black hole. Plenty of paperwork goes in, but it's never seen again. The CPD won't make any sort of effort, despite handling many of these investigations in house. The independent review board suffers from its outsider status and its relative powerlessness to ensure closed investigations result in the meting out of discipline. There's no reason for the CPD to change. It's gotten along for years with a minimum of scrutiny and its officers have tons of experience in the art of thwarting oversight. If the heads up top aren't rolling, abusive officers further down the organizational chart have nothing to fear. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Reading our coverage of Rozcomnadzor, the Russian government agency tasked with keeping the internet clean of piracy, you would know that the agency has a laughably bad track record for pretty much everything. Even as ranking members of the agency have been embroiled in a corruption scandal in which they bilked Russian taxpayers by creating fake employees, the statistics out on Rozcomnadzor's ability to carry out its stated mission -- blocking sites used for piracy on the internet -- are horrendous. Put simply, the agency has managed to take down 4,000 "pirate" sites through legal cluster bombs that have inflicted 41,000 sites worth of collateral damage. Any honest look at those kinds of numbers would lead a sincere government to seriously consider whether such an agency was worthy of existence at all. The Russian government, on the other hand, has decided to expand Rozcomnadzor's powers by essentially nixing anything that would even remotely look like due process. The new proposal being considered by the Russian Ministry of Culture is severe, to say the least. A new amendment that that was published by the Ministry of Culture proposes to allow for near-instant pirate site blockades to protect the local movie industry, Vedomosti reports. At the moment, website owners are given three days to remove infringing content before any action is taken. Under the new proposal, site blockades would be implemented less than 24 hours after Rozcomnadzor is alerted. Website owners will not get the chance to remove the infringing content and a court order isn't required either. If this looks like a change almost perfectly designed for even more collateral damage and practically begging to be abused, then you're looking at this in exactly the right way. The collateral damage, already severe, will be worsened by the supercharged speed of the takedown process and the omission of any site's ability to address the court's concerns prior to having its site censored. It's almost as if removing infringing material from websites isn't the actual goal of this agency at all. Instead, quick censorship based on accusations without judicial oversight is the order of the day, and it is inevitable that the government and adverse commercial entities will wield this weapon with abandon. Keep in mind that Rozcomnadzor has already proven itself unreliable on matters of public servitude. The Russian government itself, of course, has little interest in free speech rights for its citizens and has built a reputation for itself as perfectly willing to pretzel Russian law to silence dissenting opinions. Everyone should be immediately suspicious of the Russian government handing itself so much power to censor outside of the Russian's courts purview. There are some making much noise about the law's requirement that sites be infringing on Russian films. The new blocking plans go further than any of the previous legislation, but they will only apply to movies that have “a national film certificate” from Russian authorities, as HWR points out. This doesn’t cover any Hollywood movies, which typically top the local box office. Except this focus on Russian films hasn't kept those tens of thousands of sites caught up as collateral damage out of the censorship blast, has it? This new law under consideration is dangerous to anyone that cares about free speech, particularly in a region already besieged by efforts to limit that speech. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella] There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations. The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing. Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar. "Although the two concepts unfortunately are blurred at times, standing and entitlement to relief are not the same thing. Standing is a prerequisite to filing suit, while the underlying merits of a claim ... determine whether the plaintiff is entitled to relief." Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008). The Initial Opinion in this action decided that Movants -- the American Civil Liberties Union and Yale Law School's Media Freedom and Information Access Clinic -- had suffered no injury-in-fact and thus lacked standing to bring their First Amendment claim for access to redacted portions of certain of this Court's opinions. Sitting en banc for the first time in our history, we now vacate that decision. Whatever the merits of Movants' suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it. Shortly thereafter, the judges tip their hats to Snowden. By necessity, this Court conducts much of its work in secrecy. But it does so within a judicial system wedded to transparency and deeply rooted in the ideal that "justice must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 616 (1960). It comes as no surprise, then, that members of the public may at times seek to challenge whether certain controversies merit our continued secrecy or, instead, require some degree of transparency. The matter before us was born from two such challenges. On June 6, 2013, two newspapers released certain classified information about a surveillance program run by the Government since 2006. Within a day, the Director of National Intelligence declassified further details about this bulk-data-collection program, acknowledging for the first time that this Court had approved much of it under Section 215 -- the "business records" provision -- of the Patriot Act, 50 U.S.C. § 1861. From there sprung the First Amendment challenge: the plaintiffs argued the Snowden leaks stripped away the justification for continued secrecy by the government. They argued the ongoing refusal to hand over the government's legal justification of the program -- as approved by the FISA court -- violated the First Amendment "right of access" to courtroom proceedings and documents. As more documents were leaked, the right to access argument grew stronger -- especially when the leaks were followed by official government acknowledgement of each program's existence and, in some cases, the official release of other documents by the government itself. The court now agrees -- after en banc review -- that the alleged harm is sufficient enough to move forward with its lawsuit against the government. It also notes that the granting of standing doesn't pass any judgment on the merits of the arguments, other than to acknowledge the plaintiffs have the right to pursue them. (In other words, courts will entertain arguments destined for doom, but denying doomed arguments upfront would violate other rights.) A plaintiff, for instance, might lack standing "to complain about his inability to commit crimes because no one has a right to a commit a crime," and no Court could recognize such an interest. Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir. 2014). On the other hand, he would have standing to bring colorable First Amendment claims, even if he would ultimately lose on the merits. [...] Indeed, were we to define rights with any greater level of specificity, no plaintiff would have standing to challenge established First Amendment precedent. This is certainly not the case. [...] At bottom, the legally-protected-interest test is not concerned with determining the proper scope of the First Amendment right or whether a plaintiff is correct that such right has in fact been invaded; that is a merits inquiry. Waukesha, 320 F.3d at 235. The test instead seeks only to assess whether the interest asserted by the plaintiff is of the type that "deserve[s] protection against injury." [...] Against this backdrop, the sufficiency of Movants' allegation of such a legally protected interest appears clear. They identify the invasion of an interest - the First Amendment right to access judicial proceedings - that courts have repeatedly held is capable of "being known or recognized." [...] No more than this is necessary for standing purposes, even if Movants ultimately fail to prove that the precise scope of the First Amendment right extends to redacted portions of our judicial opinions under the Richmond Newspapers test. So, it's a win of sorts, even though it's very limited. As Mike Scarcella noted, it's a "foot in the door," rather than a victory. But it stems from a historic first -- an en banc review by the FISA court -- and indicates the nation's most secretive court is willing to address issues in a more adversarial setting than it's used to. There's a lengthy dissent attached that appears to believe there's no right to access to classified documents and this decision will set up the government for endless redaction challenges, but that's kind of the point. Even the nation's most secret court shouldn't be completely beyond the reach of the citizens it ultimately serves. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars. Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP. Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes: The Liberal government demonstrated genuine leadership in demanding significant changes to the flawed TPP intellectual property chapter and refusing to back down under intense pressure from some of the negotiating parties. The result isn’t perfect, but the newly named Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP), which still requires considerable negotiation, features a significantly improved IP chapter that suspends some of the most problematic provisions. Weeks after the release of the TPP text in 2015, I wrote a lengthy series on the Trouble with the TPP.  Many of the most problematic provisions, including copyright term extension, digital lock rules, and intermediary liability have been suspended from the CPTPP at the insistence of the Canadian delegation. Their removal is a remarkable victory for those that argued against overbroad, restrictive copyright provisions in the TPP and maintained that there was no reason to include unbalanced copyright provisins in a modern trade agreement. The new version also appears to remove some of the corporate sovereignty/ISDS provisions. There's still a lot of work to be done on the agreement, but it certainly appears that Canada has taken the lead with the US out of commission. This is particularly amusing, as Canada was a late entrant into the TPP negotiations, and part of that involved the US demanding that Canada accept the text as it was and not reopen negotiations on key points already agreed upon. And now, the end result is that the US has withdrawn and Canada led the way in ditching some of the key provisions the US had demanded. And, again, the current deal still has some serious problems. For one, it notes that it's possible that the worrisome intellectual property provisions could re-emerge, zombie-like, at a later date. It also notes that there's still enough of the corporate sovereignty provision to be worried about (and same with telecommunications services provisions). But, on the whole, it appears that the new CPTPP is moving in a much, much better direction, in large part by dumping the intellectual property elements. Meanwhile, later this week, NAFTA renegotiations will be taking place and intellectual property issues are on the agenda. Perhaps Canada can do the same thing it did with the TPP and convince everyone else to take that issue off the table entirely. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos] As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff. Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff’s notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff’s victims. To be clear, assets taken from Madoff were seized via criminal asset forfeiture, which requires a conviction. Rosenstein's decision to open with this glosses over this difference, allowing the reader to think civil/criminal asset forfeiture are barely distinct entities. His op-ed doesn't actually say how much of that $3.9 billion came from civil asset forfeiture -- a process that has nothing to do with a criminal prosecution like Madoff's. From there, Rosenstein says the expected stuff: civil asset forfeiture is just a way of crippling criminal enterprises, despite it being predicated on one-sided accusations about the allegedly illegitimate origin of seized property and tied to a judicial process that discourages citizens from attempting to reclaim their possessions. The opening paragraph also makes it appear as though civil asset forfeiture is often used to return unlawfully obtained assets to victims of crime. Nothing could be further from the truth. While this occasionally happens in criminal forfeiture cases, the lack of criminal charges in civil forfeiture cases makes it extremely unlikely there will be any "victims" to "return" seized assets to. In most cases, the agency performing the seizure is allowed to directly benefit from it. Whether it's used to pay for new equipment or offset investigatory expenses, seized property rarely ends up back in the hands of victims. But you won't be hearing any of that in Rosenstein's pro-forfeiture pep talk. Instead, he presents civil forfeiture as a skillfully-wielded scalpel, rather than the property-grabbing cudgel it actually is. Some critics claim that civil asset forfeiture fails to protect property rights or provide due process. The truth is that there are multiple levels of judicial protection, as well as administrative safeguards. First, money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed. That is the same standard needed to justify an arrest. Second, if anyone claims ownership of the property, it may be forfeited only if the government presents enough evidence in court to establish by a preponderance of the evidence it was the proceeds of crime, or was used to commit a crime. Courts apply the “beyond a reasonable doubt” standard only in criminal cases. That high threshold of proof is appropriate when the stakes involve a person’s criminal record and potential imprisonment. But all other lawsuits, no matter how much money is at issue, use the normal civil standard. There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds. First, the money can be seized for any reason, with justification supplied after the fact. Stating law enforcement needs "probable cause" to seize property is simply untrue. Rosenstein knows this because he points out the standard of evidence needed to secure the forfeiture is actually lower than the standard needed to secure a warrant: "preponderance of evidence." If probable cause were actually needed, drivers and travelers wouldn't have to worry nearly as much about having their cash seized by highway patrol officers during traffic stops or by DEA agents while passing through airport security. Pretextual stops and scanning passenger manifests for one-way ticket purchases are no one's idea of "probable cause." Furthermore, if the standard of evidence needed prior to seizure was actually the same as the requirement to secure an arrest warrant, more seizure victims would be arrested. But they're not. They're usually free to go, minus whatever law enforcement officers have taken from them. As for the last part, Rosenstein is right: we shouldn't need to change the standard of evidence in civil cases. But that's not where the change is needed. If property is being taken from criminals -- as Rosenstein and other forfeiture supporters claim -- then all seizures should be of the criminal variety: a conviction should be required. This leaves civil lawsuit evidence requirements unchanged… just the way Rosenstein prefers it. Then there's this, which Rosenstein offers up as some sort of proof that the government is in the right at least 80% of the time when it takes property from citizens without charging them with crimes: About 80% of the time, nobody even tries to claim the seized assets. Well, let's look at this. Rosenstein talks billions in his Madoff anecdote, but the reality of civil asset forfeiture is a majority of seizures fall well under the $1,000 mark. Considering the long, uphill battle facing forfeiture victims, anything short of several thousands dollars usually isn't worth the effort. In those cases, the expenses of challenging the forfeiture would outweigh the the value of the property recovered. This is a stupid stat that proves nothing. The years of documentation of widespread forfeiture abuse by law enforcement agencies? It's reduced to this by the Deputy Attorney General: To be sure, law-enforcement officers sometimes make mistakes. Come on, Rod. This is just embarrassing. You want the private sector to trust you and get on board with DOJ encryption key escrow, etc.? Maybe stop lying to the public. Maybe discontinue this gross minimization of repeated, abusive law enforcement behavior. Maybe do something more to curb forfeiture abuse. Hell, try doing anything at all. The only thing the DOJ has done in recent months is open back up the federal forfeiture adoption program -- something that has been abused for years by law enforcement agencies looking to route around restrictive state laws. It's unsurprising the DOJ would argue publicly that civil asset forfeiture is A-OK and good for America. It's just unsettling that the arguments are this bad. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Small and discreet, TREBLAB's X11 earbuds are perfect whether you're running, working out, doing chores, or just going about your commute. These buds have your soundtrack covered with elite Bluetooth audio, and are packed with features like passive noise cancellation and a built-in mic. They come in four different colors and are on sale for $36.99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...